Neckritz v. FCC
| Decision Date | 30 July 1971 |
| Docket Number | No. 26335.,26335. |
| Citation | 446 F.2d 501 |
| Parties | Alan F. NECKRITZ, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Alan F. Neckritz, pro se.
Edward J. Kuhlmann, Atty., F.C.C. (argued), Richard W. McLaren, Asst. Atty. Gen., Richard E. Wiley, Gen. Counsel, John H. Conlin, Associate Gen. Counsel, Gregor B. Hovendon, Atty., Johnnie M. Walters, Asst. Atty. Gen., Washington, D. C., for respondents.
Before JERTBERG, MERRILL and BROWNING, Circuit Judges.
Petitioner seeks review of an adverse ruling of the FCC denying his request to present an opposing view to military recruitment announcements sponsored by the U.S. Armed Services and carried by radio station KFRC-AM, San Francisco, California. Petitioner asserted that the broadcasts presented one side of a controversial issue of public importance, and that the radio station by its denial had failed to fulfill its obligations under the so-called Fairness Doctrine. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). As seen by petitioner, the controversial issue of public importance was whether it is "desirable for a young man in America today to participate in the Armed Forces." The FCC, with Commissioner Johnson dissenting, rejected petitioner's claim, finding that the station had acted "reasonably and in good faith."1 Petitioner seeks review of this order. We affirm.
The Fairness Doctrine requires that a broadcast licensee present representative community views on controversial public issues.2 The licensee, in applying the doctrine, is called upon to make "reasonable judgments in good faith on the facts of each situation," as to whether a controversial issue is involved, and, if so, what programming is required to fairly present that issue. FCC Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 F.R. 10415, 10416, 40 F.C.C. 598, 599 (1964). In reviewing a complaint the Commission does not substitute its judgment for that of the licensee but rather determines whether the licensee has acted reasonably and in good faith. Ibid. Likewise a court's role is limited to deciding whether the Commission's order is unreasonable or in contravention of statutory purpose. In making such a determination a court "is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers." American Tel. & Tel. v. United States, 299 U. S. 232, 236, 57 S.Ct. 170, 172, 81 L.Ed. 142 (1936). See generally K. Davis, Administrative Law Treatise 5.03 (1958).
Here the station rejected petitioner's request primarily on the ground that the announcements urged enlistment on the basis of patriotism and personal advantage, and did not present a position on the issues petitioner wished to discuss namely, American military involvement in Viet Nam (or other foreign nations), and the desirability, particularly in light of that involvement, of volunteering rather than seeking a deferment or exemption. The Commission found the station had acted reasonably. The Commission also viewed both Viet Nam and the Selective Service System as controversial issues of public importance. It agreed that the recruitment announcements in and of themselves did not raise these issues, but went rather to the government's acknowledged right to raise an army. Thus the Commission saw no reason to overturn the licensee's decision. See 24 F.C.C.2d 175 (1970).
Petitioner argues that the Commission did not establish an appropriate "legal standard" for determining the meaning of the recruitment announcements. He notes that in ruling on a fairness complaint concerning cigarette commercials, the Commission considered FTC findings on...
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