478 F.2d 594 (D.C. Cir. 1973), 71-1780, Yale Broadcasting Co. v. F. C. C.

Docket Nº:71-1780.
Citation:478 F.2d 594
Party Name:YALE BROADCASTING COMPANY et al., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Case Date:January 05, 1973
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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478 F.2d 594 (D.C. Cir. 1973)



FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

No. 71-1780.

United States Court of Appeals, District of Columbia Circuit.

January 5, 1973

Argued Oct. 24, 1972.

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Mr. Tracy A. Westen, Washington, D. C., with whom Mr. Eric H. Smith, Washington, D. C., was on the brief, for petitioners.

Mr. Joseph A. Marino, Associate Gen. Counsel, F. C. C., with whom Messers. John W. Pettit, Gen. Counsel, R. Michael Senkowski, Counsel, F. C. C., and Howard E. Shapiro, Atty., Dept. of Justice, were on the brief, for respondents. Mr. John H. Conlin, Associate Gen. Counsel, F. C. C. at the time the record was filed, also entered an appearance for respondent, F. C. C.

Before DANAHER, Senior Circuit Judge, and ROBINSON and WILKEY, Circuit Judges.

WILKEY, Circuit Judge:

The source of this controversy is a Notice issued by the Federal Communications Commission regarding "drug oriented" music allegedly played by some radio stations. 1 This Notice and a subsequent Order, the stated purposes of which were to remind broadcasters of a pre-existing duty, required licensees to have knowledge of the content of their programming and on the basis of this knowledge to evaluate the desirability of broadcasting music dealing with drug use. Appellant, a radio station licensee, argues first that the Notice and the Order are an unconstitutional infringement of its First Amendment right to free speech. In the alternative, appellant contends that they impose new duties on licensees and must, therefore, be the subject of rulemaking procedures. Finally it is argued that the statements' requirements are impermissibly vague and that the FCC has abused its discretion in refusing to clarify its position. Finding none of these arguments of the licensee valid, we affirm the action of the FCC.

I. Substance of the First and Second Notices

In the late 1960's and early 1970's the FCC began receiving complaints from the public regarding alleged "drug oriented" songs played by certain radio broadcasters. In response to these complaints the Commission issued a Notice, the stated purpose of which was to remind broadcasters of their duty to broadcast in the public interest. 2 To fulfill this obligation licensees were told that they must make "reasonable efforts" to determine before broadcast the meaning of music containing drug oriented lyrics. The Notice specified that this knowledge must be in the possession of a management level executive of the

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station, who must then make a judgment regarding the wisdom of playing music containing references to drugs or the drug culture.

This initial Notice led to substantial confusion within the broadcast industry and among the public. Confusion centered around the meaning of phrases such as "knowing the content of the lyrics, " "ascertain before broadcast, " and "reasonable efforts."

In order to clarify these ambiguities, the FCC issued a second Memorandum and Order clarifying and modifying certain parts of the original Notice. 3 The thrust of this Order was that (1) the Commission was not prohibiting the playing of "drug oriented" records, (2) no reprisals would be taken against stations that played "drug oriented" music, but (3) it was still necessary for a station to "know" the content of records played and make a "judgment" regarding the wisdom of playing such records.

II. Interpretation of the Definitive Order

Many of appellant's fears and arguments stem from the apparent inconsistencies between the Notice and the subsequent Order. It is quite clear, however, that the Order "constitutes the Commission's definitive statement" regarding broadcaster responsibility. 4 To the extent that the two are inconsistent or confused, we treat the Notice, as we believe the Commission intends, as superseded by the Order. Reference to the Commission's requirements is to those established by the Order.

Once the Order is taken as definitive, it becomes fairly simple to understand what the FCC asks of its licensees. The Order recognizes the gravity of the drug abuse problem in our society. From this basis, the Order proceeds to remind broadcasters that they may not remain indifferent to this severe problem and must consider the impact that drug oriented music may have on the audience. 5

The Commission then makes the common sense observation that in order to make this considered judgment a broadcaster must "know" what it is broadcasting. 6

The Commission went to great lengths to illustrate what it meant by saying that a broadcaster must "know" what is being broadcast. The Order emphasizes that it is not requiring the unreasonable and that the Commission was "not calling for an extensive investigation of each . . . record" 7 that dealt with drugs. It also made clear that there

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was no general requirement to prescreen records. 8

The Commission in its Order was obviously not asking broadcasters to decipher every syllable, settle every ambiguity, or satisfy every conceivable objection prior to airing a composition. A broadcaster must know what he can reasonably be expected to know 9 in light of the nature of the music being broadcast. It may, for example, be quite simple for a broadcaster to determine that an instrumental piece has little relevance to drugs. Conversely, it may be extremely difficult to determine what thought, if any, some popular lyrics are attempting to convey. In either case, only what can reasonably be understood is demanded of the broadcaster.

Despite all its attempts to assuage broadcasters' fears, the Commission realized that if an Order can be misunderstood, it will be misunderstood-at least by some licensees. To remove any excuse for misunderstanding, the Commission specified examples of how a broadcaster could obtain the requisite knowledge. A licensee could fulfill its obligation through (1) pre-screeing by a responsible station employee, (2) monitoring selections while they were being played, or (3) considering and responding to complaints made by members of the public. 10 The Order made clear that these procedures were merely suggestions, and were not to be regarded as either absolute requirements or the exclusive means for fulfilling a station's public interest obligation. 11

Having made clear our understanding of what the Commission has done, we now take up appellant's arguments seriatim.

III. An Unconstitutional Burden on Freedom of Speech

Appellant's first argument is that the Commission's action imposes an unconstitutional burden on a broadcaster's freedom of speech. This contention rests primarily on the Supreme Court's opinion in Smith v. California, 12 in

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which a bookseller was convicted of possessing and selling obscene literature. The Supreme Court reversed the conviction. Although the State had a legitimate purpose in seeking to ban the distribution of obscene materials, it could not accomplish this goal by placing on the bookseller the procedural burden of examining every book in his store. To make a bookseller criminally liable for all the books sold would necessarily "tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature . . . ." 13

Appellant compares its own situation to that of the bookseller in Smith and argues that the Order imposes an unconstitutional burden on a broadcaster's freedom of speech. The two situations are easily distinguishable.

Most obviously, a radio station can only broadcast for a finite period of twenty-four hours each day; at any one time a bookstore may contain thousands of hours' worth of readable material. Even if the Commission had ordered that stations pre-screen all materials broadcast, the burden would not be nearly so great as the burden imposed on the bookseller in Smith. As it is, broadcasters are not even required to pre-screen their maximum of twenty-four hours of daily programming. Broadcasters have specifically been told that they may gain "knowledge" of what they broadcast in other ways. 14

A more subtle but no less compelling answer to appellant's argument rests upon why knowledge of drug oriented music is required by the Commission. In Smith, knowledge was imputed to the purveyor in order that a criminal sanction might be imposed and the dissemination halted. Here the goal is to assure the broadcaster has adequate knowledge. Knowledge is required in order that the broadcaster can make a judgment about the wisdom of its programming. It is beyond dispute that the Commission requires stations to broadcast in the public interest. In order for a broadcaster to determine whether it is acting in the public interest, knowledge of its own programming is required. The Order issued by the Commission has merely reminded the industry of this fundamental metaphysical observation-in order to make a judgment about the value of programming one must have knowledge of that programming.

We say that the licensee must have knowledge of what it is broadcasting; the precise understanding which may be required of the licensee is only that which is reasonable. No radio licensee faces any realistic possibility of a penalty for misinterpreting the lyrics it has chosen or permitted to be broadcast. If the lyrics are completely obscure, the station is not put on notice that it is in fact broadcasting material which would encourage drug abuse. If the lyrics are meaningless, incoherent, the same conclusion follows. The argument of the appellant licensee, that so many of these lyrics are obscure and ambiguous, really is a circumstance...

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