Brandywine-Main Line Radio, Inc. v. FCC

• Decision Date: 25 September 1972
• Docket Number: No. 71-1181.,71-1181.
• Citation: 473 F.2d 16
• Parties: BRANDYWINE-MAIN LINE RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION, Greater Philadelphia Council of Churches et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

473 F.2d 16 (1972)

BRANDYWINE-MAIN LINE RADIO, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION Greater Philadelphia Council of Churches et al., Intervenors.

No. 71-1181.

United States Court of Appeals, District of Columbia Circuit.

Argued April 10, 1972.

Decided September 25, 1972.

Dissenting Opinion November 4, 1972.

Rehearing Denied December 4, 1972.

COPYRIGHT MATERIAL OMITTED

Messrs. Benedict P. Cottone and Eugene F. Mullin, Washington, D.C., with whom Mr. John C. Eldridge, Washington, D.C., was on the brief, for appellant.

Mr. Joseph A. Marino, Associate Gen. Counsel, F.C.C., for appellee. Messrs. Richard E. Wiley, Gen. Counsel at the time the brief was filed, John H. Conlin, Associate Gen. Counsel at the time the brief was filed, and Miss Katrina Renouf, Counsel, F.C.C., at the time the brief was filed, were on the brief for appellee.

Messrs. Thomas Schattenfield, Michael Valder and David Tillotson, Washington, D.C., were on the brief for intervenors.

Before BAZELON, Chief Judge, and WRIGHT and TAMM, Circuit Judges.

TAMM, Circuit Judge:

We hold no freedom more inviolable than our precious first amendment right to freedom of speech. Free and unfettered debate has been a cornerstone of our Republic for almost two hundred years. Any attempt to silence those who would speak, no matter how unpopular their opinions, no matter how controversial their views, must be met with immovable opposition by those who cherish our basic freedoms and hold them dear.

The peculiar evil of silencing the expression of opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.¹

This is the setting in which we must consider the dispute arising from the refusal of the Federal Communications Commission (hereinafter "the Commission") to renew the broadcast license of Brandywine-Main Line Radio, Inc. (hereinafter either "Brandywine" or "WXUR") as licensee of radio stations WXUR and WXUR-FM, located in Media, Pennsylvania.² Yet, even in light of the extremely high standard which we have set in this case, we must affirm the opinion of the Commission.

I. FACTUAL BACKGROUND

A. Early Operation of WXUR

Brandywine was licensed to operate WXUR in 1962 by the Commission after a determination that such license would be beneficial in serving the public interest. WXUR-AM is a daytime standard broadcast station while WXUR-FM is a full-time station. The two stations are the sole stations in Media, Pennsylvania. As has been known to happen, Brandywine suffered financial reverses and the stockholders expressed an interest in selling the company in 1964. Contemporaneously, Station WVCH, located in Chester, Pennsylvania (a town which neighbors Media) elected to terminate broadcasting 20th Century Reformation Hour, the program produced by Dr. Carl McIntire.³ This event left Rev. McIntire with no outlet for his program in the Philadelphia broadcast market. It is understandable, therefore, that when Dr. McIntire learned that WXUR might be available, the Faith Theological Seminary⁴ (hereinafter "the Seminary") entered into an agreement to purchase Bradywine's stockholders' interests in October, 1964. The Seminary filed an application with the Commission seeking approval for the proposed purchase of Brandywine's stock and for Commission approval for the Seminary's proposed operation of WXUR.

B. The Transfer Application

In its proposal to the Commission the Seminary stated that it would continue the station's general format of broadcasting entertainment, talk shows and short newscasts, and in addition, two one-hour religious programs would be broadcast each weekday;⁵ the station would also broadcast religious programs until noon on Sunday.⁶ The terms of the Seminary application sought Commission permission to operate "for the principal purpose of broadcasting the Gospel of our Lord and Saviour Jesus Christ, for the defense of the Gospel, and for the purposes set forth in the Charter of Incorporation." This application was not without opposition, however, as some fifteen community groups and a number of individuals and churches within the community made their opposition known to the Commission.⁷ The Commission noted that it also received communications from many individuals and churches who were proponents of the transfer. As the Commission noted "the complaints opposing the transfer application are based on the relationship to the transferee of the Reverend Carl McIntire, President of the Board of Directors of Faith Theological Seminary, Inc."⁸

The major concern of the opponents to the transfer was that the station would be incapable of providing for a balanced presentation of opposing views in light of McIntire's connection with the Seminary and in view of his radio programs and publications.

The main thrust of the complaints concerning Rev. McIntire, is that, in his radio programs and publications, he has made false and misleading statements and deliberate distortions of the facts relating to various public issues such as race relations, religious unity, foreign aid, etc.; that he has made "intemperate" attacks on other religious denominations and leaders, various organizations, governmental agencies, political figures and international organizations; and that such expressions are irresponsible and a divisive force in the community and help create a climate of fear, prejudice and distrust of democratic institutions. It is also alleged that, in light of his record of "partisan and extremist" views on various public issues, he lacks the degree of social and public responsibility demanded of broadcast licensees and that these views will carry over into the operation of the stations in view of his connection with the transferee. It is alleged, finally, that a serious question is thus raised, in light of his views, whether he is or will be able to bring about a balanced presentation of opposing views or whether he will place his personal views above the station\'s public interest obligations.⁹

While the applications for transfer were still pending, the Commission communicated with the Seminary with regard to various aspects of the application and with particular interest as to whether station "facilities would be available to other faiths for the presentation of religious programs, and, if so, under what conditions or circumstances." The Seminary responded by filing an amendment to the original application which included an exhibit which stated the Seminary's intent to "make time available on an equal and non-discriminatory basis to all religious faiths requesting time for the presentation of religious programs."¹⁰ To further insure balance in the area of religious broadcasting the Seminary's amendment provided for a half-hour program on Sunday to be known as Interfaith Forum.¹¹

C. Commission Approval of Transfer

The Commission's Memorandum Opinion and Order¹² granting the transfer application was forthcoming on March 19, 1965.¹³ This opinion, known as the Borst Decision, summarized the nature of the complaints received¹⁴ opposing the Seminary's application. The Commission continued by expressing that, as a matter of policy,

the Commission is wisely forbidden from choosing "among applicants upon the basis of their political, economic or social views ..." As Mr. Justice Douglas stated:

"The strength of our broadcasting system is in the dignity, resourcefulness and the intelligence of our people. Our confidence is in their ability to make the wisest choice. That system cannot flourish if regimentation takes hold."¹⁵

The Decision noted that Dr. McIntire represented that his relationship with WXUR would be as that of a broadcaster and that management decisions would be left to three other members of the Seminary's Board who would constitute the Board of Brandywine.¹⁶ Despite all of this the Commission did consider the basic fear of the application's opponents that the station would be under Dr. McIntire's influence and that it would not give full and fair treatment to divergent views on controversial issues as required by both standards of public interest and the Commission's fairness doctrine.¹⁷ The Commission's ultimate conclusion was that a hearing on the transfer application was unnecessary because of the in-depth representations, contained in the application, to fully comply with the station's acknowledged obligations in the fairness arena.¹⁸

The Borst Decision went to great lengths to reinforce and reiterate the transferee's duties and obligations under both the fairness doctrine and the personal attack corollary. The Commission took notice of Brandywine's written submission that equal opportunity would be afforded to opposing viewpoints on controversial public issues¹⁹ but nonetheless felt constrained to

specifically direct attention to our ruling in Cullman Broadcasting Co., FCC 63-849 requiring presentation of conflicting views at licensee expense if advocates willing to pay for broadcast time cannot be found and to our personal attack principles (see Public Notice of July 1, 1964, Applicability of the Fairness Doctrine, Part E) the licensee is required to operate in accordance with these requirements, and unless immediately informed to the contrary, we take the licensee\'s representation to encompass these requirements.²⁰

The Commission expressed the view that Dr. McIntire's record of offering free response time for either an opportunity to debate some issue or respond to some attack "would not suffice to discharge the fairness responsibilities of a licensee carrying the broadcasts in question."²¹

The Commission made every effort to assuage the fears of Brandywine's opponents...