United States v. WIYN Radio, Inc.

• Citation: 464 F. Supp. 101
• Decision Date: 15 December 1978
• Docket Number: Civ. A. No. C77-65R.
• Parties: UNITED STATES of America, Plaintiff, v. WIYN RADIO, INC., Licensee of Radio Station WIYN, Defendant.
• Court: U.S. District Court — Northern District of Georgia

464 F. Supp. 101

UNITED STATES of America, Plaintiff, v. WIYN RADIO, INC., Licensee of Radio Station WIYN, Defendant.

Civ. A. No. C77-65R.

United States District Court, N. D. Georgia, Rome Division.

December 15, 1978.

William E. Turnipseed, Asst. U. S. Atty., Atlanta, Ga., Kathleen B. Levitz, Dept. of Justice, John P. Greenspan, Federal Communications Com'n, Washington, D. C., for plaintiff.

Morton L. Berfield, Cohen & Berfield, Washington, D. C., for defendant.

ORDER

MURPHY, District Judge.

STATEMENT OF THE CASE

The United States instituted this suit to recover a forfeiture imposed by the Federal Communications Commission upon defendant WIYN for repeated violations of the personal attack rule, 47 C.F.R. § 73.123(a). In the trial of this case both plaintiff and defendant presented testimonial and documentary evidence. At the close of trial, the Court requested that the parties submit proposed findings of fact, conclusions of law, and post-trial briefs addressing: (1) the permissible scope of the Court's authority to review the facts surrounding the imposition of the forfeiture; (2) the meaning of "repeated" as used in 47 U.S.C. § 503(b)(1)(B); and (3) such other issues as counsel wished to bring to the Court's attention.

Defendant was a licensee of standard broadcast station WIYN in Rome, Georgia, on April 23, 1971. On that date during the broadcast of the program Comment the Commentator made statements the United States contends violated the personal attack rule. Defendant is alleged to have never notified the subject of the attack of the April 23, 1971 broadcast. On May 20, 1971, a request was made for time to reply.

On July 28, 1971, the Commission issued a Notice of Apparent Liability for Forfeiture in the amount of $1000.00 for defendant's alleged violations of the Federal Communications Commission Rules and Regulations. In a decision of May 24, 1972, the Federal Communications Commission found defendant had repeatedly violated its rules and ordered defendant to pay a $1000.00 forfeiture. On May 28, 1975 the Commission denied reconsideration of its order. This action is before this Court in an effort to recover the forfeiture.

ISSUES AND FINDINGS

This forfeiture action was brought as a result of the Commission's finding that defendant repeatedly failed to meet the duties imposed upon it under the personal attack doctrine. The government brought this suit pursuant to 47 U.S.C. § 504(a) which provides:

The forfeitures provided for in this chapter . . . shall be recoverable in a civil suit in the name of the United States brought in the district where the person . . . has its principal operating office . . .: provided, That any suit for the recovery of a forfeiture imposed pursuant to the provisions of this chapter shall be a trial de novo . . ..

In a trial de novo to collect this civil penalty, the Commission's "decision to seek enforcement becomes . . . not an adjudication but merely a decision to prosecute." United States v. International Harvester Co., 387 F.Supp. 1338, 1340 (D.D.C.1974).

The personal attack rule, codified at 47 C.F.R. § 73.123(a), requires a licensee to notify a person or organization who is the subject of an attack upon its honesty, integrity or some like personal quality, within seven days of the attack's occurrence, to provide a script or tape of the attack and to take the initiative in offering a reasonable opportunity to reply over the licensee's facilities. Straus Communications, Inc. v. F.C.C., 174 U.S.App.D.C. 149, 530 F.2d 1001, 1007 (1976). For the rule to be invoked, however, the attack must have occurred within the context of a discussion of a controversial issue of public importance. Id. 174 U.S.App.D.C. at 155, 530 F.2d at 1008; Personal Attacks, Political Editorials, 8 F.C. C.2d 721, 725 (1967). Thus to prevail in this action, plaintiff must establish:

(1) that the statements of Reverend Scruton concerning IAD and its newsletter, HOMEFRONT, constituted an attack upon the honesty, character, integrity or like personal qualities of IAD and HOMEFRONT;

(2) that this attack occurred during the presentation of views on a controversial issue of public importance; and

(3) that the defendant failed repeatedly to comply with the notice and offer requirements of the personal attack rule.

The April 23 broadcast contained the following statements:

You have the organization, you have its head, and you have its papers. Now who can deny that HOMEFRONT is a publication of a subversive organization and certainly its head is an avowed Communist. . . . His HOMEFRONT magazine and his IAD are definitely subversive. They are to the Far Left . . ..

In determining what would constitute a personal attack, "the contemporaneous attitude becomes all-important, temporary though it may be." L. Yankwich, Trends in Law Affecting Communication, 15 F.R.D. 291, 294 (1954); accord, Utah State Farm Bureau Federation v. National Farmers Union Service Corp., 198 F.2d 20 (10th Cir. 1952). And as Yankwich observed:

"And it is of little moment whether the statement describes plaintiff in a libel suit as a communist or as one having communistic sympathies and affiliations for, as has been observed, `any difference is one of degree only.' . . .

Since the end of the second World War, and the rise of Russian expansionism with its absorption of bordering eastern countries, . . . the term `Communism' means the Russian type which has brought on the cold war, the attack in Korea, . . . under the fiction of `Chinese volunteers,' and has sought, through revolution and rebellion, to stir up unrest throughout the world. Because the words `Communism' and `Communist' connote this type of movement, in democratic countries, especially in the United States, they are words of opprobrium. . . ."

Thus courts have consistently held since the second World War that writing or speaking of a person or organization as being a "communist" or "communist sympathizer" may subject that person or organization to such public hatred and contempt that it constitutes libel. See, e. g., Joint Anti-Fascist Refugee Commission v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (1950); Utah State Farm Bureau Federation v. National Farmers Union Service Corp., supra; Spanel v. Pegler, 160 F.2d 619 (7th Cir. 1947); Grant v. Reader's Digest Association, 151 F.2d 733 (2d Cir. 1945), cert. denied, 326 U.S. 797, 66 S.Ct. 492, 90 L.Ed. 485 (1946); Foltz v. News Syndicate Co., Inc., 114 F.Supp. 599 (S.D.N.Y.1953); Cole v. Loew's, Inc., 8 F.R.D. 508 (S.D.Cal.1948) reversed on other grounds, 185 F.2d 641 (9th Cir. 1950), cert. denied, 340 U.S. 954, 71 S.Ct. 570, 95 L.Ed. 688 (1951); see also Gertz v. Welch, 306 F.Supp. 310 (N.D.Ill.1969), verdict set aside on other grounds, 322 F.Supp. 997 (N.D.Ill.1970), affirmed 471 F.2d 801 (9th Cir. 1972), reversed, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Recognition of contemporaneous attitudes becomes particularly important when the words comprising an alleged attack upon a person's character may not be defamatory on their face because:

Words which are clearly not defamatory cannot have their natural meaning changed by innuendo. Words which are libelous per se do not need an innuendo. But between these two extremes are found many expressions which may be ambiguous, and the real meaning can then be explained by reference to the circumstances. Central of Georgia Railway Co. v. Sheftall, 118 Ga. 865, 45 S.E. 687 (1903).

In such a case, the meaning of the words becomes a question of fact. Dun & Bradstreet, Inc. v. Miller, 398 F.2d 218 (5th Cir. 1968); Spanel v. Pegler, supra at 623; Foltz v. News Syndicate Co., Inc., supra at 603. To determine whether a statement is defamatory, it must be construed in the sense in which those to whom it is addressed would ordinarily, naturally and normally interpret it. Dun & Bradstreet, Inc. v. Miller, supra at 222; Holden v. American News Co., 52 F.Supp. 24 (E.D.Wash.1943), appeal dismissed, 144 F.2d 249 (9th Cir. 1944). That a statement is defamatory may be established "by a showing of its particular meaning in context or by evidence of circumstances outside the broadcast which render the words defamatory." Hood v. Dun & Bradstreet, Inc., 335 F.Supp. 170, 175 (N.D.Ga.1971), reversed on other grounds, 486 F.2d 25 (5th Cir. 1973), cert. denied, 415 U.S. 985, 94 S.Ct. 1580, 39 L.Ed.2d 882 (1974).

In the April 23 broadcast, neither IAD nor HOMEFRONT was explicitly called "Communist." Instead both were labelled "subversive"¹ and "to the Far Left"²; and the former was characterized as headed by "an avowed Communist" who was "bent on infiltrating the Methodist Church in its entirety."

In 1960 Congress amended the Communications Act of 1934, 47 U.S.C. § 151 et seq., to provide for the imposition and collection of forfeitures assessed by the Commission for certain violations of the provisions of the Act and of its rules and regulations. The forfeitures were to be imposed in accord with the provisions of 47 U.S.C. § 503, while 47 U.S.C. § 504 governed the procedures for their collection.

The choice of language in Section 504(a), that "any suit for the recovery of a forfeiture . . . shall be a trial de novo," reflects congressional rejection of a scheme requiring a judicial review restricted to the administrative record and circumscribed by the requirements of the Administrative Procedure Act.³ The review contemplated by Congress was a trial on the merits in which the person against whom the forfeiture is ordered is given an opportunity to contest the action of the Commission.

Other Courts in which forfeiture violation proceedings have been brought have recognized that the language of Section 504(a) mandates a full review of disputed facts in the district court, even of those facts not previously brought to the Commission's attention. See, e. g., United States v. Summa Corporation, 447 F.Supp. 923, 928-929 (D.Nev.1978); United States v. Daniels, 418 F.Supp....