Columbia Broadcasting System, Inc. v. FCC

Decision Date15 November 1971
Docket Number24659.,No. 24655,24655
Citation454 F.2d 1018
PartiesCOLUMBIA BROADCASTING SYSTEM, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES of America, Respondents, Democratic National Committee and Republican National Committee, Intervenors. DEMOCRATIC NATIONAL COMMITTEE, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Republican National Committee, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Timothy B. Dyk, Washington, D. C., for petitioners. Messrs. J. Roger Wollenberg, Ezekiel G. Stoddard, Daniel Marcus and Frank W. Lloyd, III, Washington, D. C., were on the brief for petitioners in No. 24,655.

Mr. Daniel R. Ohlbaum, Deputy Gen. Counsel, Federal Communications Commission, for respondents.

Messrs. Richard E. Wiley, Gen. Counsel, Federal Communications Commission, John H. Conlin, Associate Gen. Counsel, Federal Communications Commission, at the time the brief was filed, and Stuart F. Feldstein, Counsel, Federal Communications Commission, were on the brief for respondents.

Mr. W. Theodore Pierson, Washington, D. C., with whom Mr. James J. Freeman, Washington, D. C., was on the brief, for intervenor Republican National Committee.

Messrs. Joseph A. Califano, Jr., David H. Lloyd and Irvin Nathan, Washington, D. C., were on the brief for petitioner in No. 24,659 and intervenor Democratic National Committee in No. 24,655.

Before WRIGHT, TAMM and ROBINSON, Circuit Judges.

J. SKELLY WRIGHT, Circuit Judge:

The question on these appeals is whether the Federal Communications Commission abused its discretion in holding that a 25-minute program broadcast by the Democratic National Committee, setting forth views on public issues in response to views previously presented by the President and presidential spokesmen in a number of broadcast appearances, gave rise to an obligation on the part of the Columbia Broadcasting System to provide comparable reply time to partisan Republican spokesmen. For reasons that follow, we reverse the Commission's order.

I

Television has become, in recent years, a principal vehicle by which the President presents to the public his views on important issues of the day. Indeed, no single fact of our changing political life overrides the significance of the expansion of the President's ability to obtain immediate and direct access to the people through the communications media. For the words of the President, speaking as he does both in his constitutional roles of chief executive and commander-in-chief and in his extra-constitutional role as head of his party, carry an authority, a prestige and a visibility that have a counterpart in no other institution.

Moreover, there is an inherent newsworthiness in anything the President says. In addition to his huge direct audiences, in most cases over all nation-wide commercial television and radio networks simultaneously, all of what he says is later reported somewhere and something of what he says is reported almost everywhere. In the case of the incumbent administration, these built-in advantages of the presidency in forging public opinion have been used to an unprecedented degree. In his first 18 months in office, President Nixon appeared on network prime time (7:00 to 11:00 P.M.) television as often as Presidents Eisenhower, Kennedy and Johnson combined in a comparable period during their administrations.1

The President's extensive use of the media cannot, of course, be faulted, for there can be no doubt that in the distillation of an informed public opinion such appearances play a very basic role. But if the words and views of the President become a monolithic force, if they constitute not just the most powerful voice in the land but the only voice, then the delicate mechanism through which an enlightened public opinion is distilled, far from being strengthened, is thrown dangerously off balance. Public opinion becomes not informed and enlightened, but instructed and dominated.

To minimize the risks of such imbalance and to preserve the essential integrity of "politics through communication," the television networks, under the occasional prodding of the courts and the Federal Communications Commission, have attempted to achieve a balanced presentation of opposing opinions. This balancing process has extended not only to regularly scheduled news broadcasts, specials and documentaries, but also to provision of free time to leaders of the principal opposition party to respond to prior presidential appearances.2

In this spirit, on June 22, 1970 CBS offered Lawrence O'Brien, Chairman of the Democratic National Committee (DNC), 25 minutes of broadcast time for presentation of views of the Democratic Party on public issues. The offer was made in light of the "cumulative impact of broadcast appearances of representatives of the party in office" and "the disparity between presidential appearances and the opportunities available to the principal opposition party" in order to achieve "fairness and balance in the treatment of public issues."3 The format and content of the "Loyal Opposition" broadcast were left to Mr. O'Brien to fashion in conformity with the stated purpose of the offer. CBS did not dictate which of the particular issues discussed by the President were to be covered, the allocation of time to be made among such issues, or the spokesman to be used.

Mr. O'Brien accepted the CBS offer and the broadcast was aired on July 7, 1970. The format employed involved presentation of excerpts of previously broadcast presidential statements on various issues, followed by a critical commentary or rebuttal by Mr. O'Brien as to each presidential statement.4 Topics covered included: (1) the state of the economy; (2) the nation's crime problem; (3) civil rights for blacks and other minorities; (4) federal expenditures for defense versus public domestic issues; (5) air and water pollution; (6) dissent and national unity; and (7) the war in Indochina.5

On July 8, 1970, the chairman of the Republican National Committee (RNC) requested CBS to provide free time to RNC comparable to that afforded for the July 7 broadcast.6 Shortly thereafter, having received no reply,7 RNC filed a petition with the Commission requesting that "the Commission * * * make its views known to CBS that their failure to afford forthwith" an opportunity to RNC to reply to the July 7 broadcast "would constitute a violation of the Fairness Doctrine and CBS's obligations as a licensee of broadcast stations."8

In substance, RNC argued that a national committee such as DNC was an inappropriate spokesman "to discuss specific political, economic and social issues — the `gut issues.'"9 RNC alleged that the result was "a political attack on the President and his party," rather than an "issue-oriented response." Finally, RNC asserted that the O'Brien broadcast had injected a "fresh issue not specifically treated by any Presidential speech: which political party should hold power."10 RNC concluded, therefore, that Mr. O'Brien's treatment of this "which party" issue gave rise to a duty on the part of CBS, under the Commission's fairness doctrine, to afford time for RNC to present the other side of the issue.11

On July 23, 1970, CBS submitted a letter in opposition,12 and a week later RNC filed its reply.13 Then, on August 18, 1970, the Commission released its memorandum opinion and order14 disposing of five fairness doctrine complaints, including that of RNC.15 In granting the relief requested, the Commission specifically rejected RNC's argument that national committees are inappropriate spokesmen to respond to policy issues raised by presidential appearances.16 Rather, the Commission stated a new basis for its decision.

Although the Commission agreed that "CBS has acted in good faith" and "is to be commended for its concern,"17 it faulted CBS for failing "to have exercised journalistic supervision to assure fulfillment of its purpose" of allowing the principal opposition party an opportunity to reply to the President on major issues discussed in prior presidential appearances.18 The Commission held that, since Mr. Nixon's recent speeches had "largely concentrated" on the Indochina war issue, CBS should have taken steps to insure that the DNC broadcast similarly concentrated on this issue and should not have permitted Mr. O'Brien to devote as much time as he did to the other six issues previously discussed by the President.19 In making this determination of "unresponsiveness," the Commission failed to explain why it limited its consideration solely to Mr. Nixon's five speeches on Vietnam. It did not consider, for example, other presidential speeches occurring both before and after these five, other forms of presidential appearances (such as press conferences), and televised presentations by administration spokesmen other than the President.20

Having found the broadcast to be "unresponsive," however, the Commission then concluded that it therefore fell within the ambit of the Commission's recent Zapple ruling,21 which held that, where a broadcast licensee has sold time to supporters of a particular candidate during an election period, he may not decline to sell equivalent time to supporters of that candidate's opponents.22 As a result, the Commission held that, although this was not a precise "equal opportunities" situation, since the DNC broadcast "did deal to some extent with the Cambodian issue, to which the President has made the five noted addresses,"23 "fairness requires CBS to extend some time to RNC or a partisan Republican spokesman, to answer matters raised in the DNC broadcast."24

On August 20, DNC filed a petition for reconsideration of the Commission's initial opinion.25 In its petition, DNC urged that the July 7 broadcast was not intended by any of the parties involved as a response to the President on the war issue alone, as the...

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