Writers Guild of America, West, Inc. v. FCC, CV 75-3641-F

• Citation: 423 F. Supp. 1064
• Decision Date: 04 November 1976
• Docket Number: CV 75-3710-F.,No. CV 75-3641-F,CV 75-3641-F
• Court: U.S. District Court — Central District of California
• Parties: WRITERS GUILD OF AMERICA, WEST, INC., a corporation, et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants. TANDEM PRODUCTIONS, INC., a corporation, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, INC., a corporation, et al., Defendants.

423 F. Supp. 1064

WRITERS GUILD OF AMERICA, WEST, INC., a corporation, et al., Plaintiffs, v. FEDERAL COMMUNICATIONS COMMISSION, et al., Defendants.

TANDEM PRODUCTIONS, INC., a corporation, Plaintiff, v. COLUMBIA BROADCASTING SYSTEM, INC., a corporation, et al., Defendants.

Nos. CV 75-3641-F, CV 75-3710-F.

United States District Court, C. D. California.

November 4, 1976.

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Munger, Tolles & Rickershauser by Ronald L. Olson, Harvey I. Saferstein, Allen M. Katz, Nancy Bekavac, Los Angeles, Cal., for plaintiffs Writers Guild of America, West, Inc., and others.

Beardsley, Hufstedler & Kemble by Seth Hufstedler, Dennis M. Perluss, John Sobieski, Jerome H. Craig, Burton J. Gindler, Evelyn Balderman, Los Angeles, Cal., for plaintiff Tandem Productions, Inc.

Donald A. Fareed, Asst. U. S. Atty., Los Angeles, Cal., David J. Anderson, Dennis G. Linder, Special Litigation Counsel, Dept. of Justice, Washington, D.C., Barbara O'Malley, Federal Communications Commission, Washington, D.C., for defendant F.C.C.

McCutchen, Black, Verleger & Shea by Philip K. Verleger, David A. Destino, Donna R. Black, Los Angeles, Cal., Columbia Broadcasting System, Inc. by Jack B. Purcell, John D. Appel, Deputy Gen. Counsel, New York City, for defendant Columbia Broadcasting System, Inc.

Schnader, Harrison, Segal & Lewis by Irving R. Segal, Eugene A. Spector, Philadelphia, Pa., Gibson, Dunn & Crutcher by John J. Hanson, Tom Lallas, Los Angeles, Cal., for defendant National Broadcasting Co., Inc.

Bergson, Borkland, Margolis & Adler by Daniel H. Margolis, William R. Robertson, Eric J. Branfman, McKenna, Wilkinson & Kittner by Thomas N. Frohock, Washington, D.C., Lillick, McHose & Charles by Kenneth E. Kulzick, Andrew W. Robertson, Los Angeles, Cal., for defendant American Broadcasting Companies, Inc.

Paul, Hastings & Janofsky by Oliver F. Green, Jr., David W. Steuber, Geoffrey L. Thomas, Los Angeles, Cal., for defendant National Association of Broadcasters.

Moore, Berson & Lifflander by Ellen Shaw Agress, New York City, for National Citizens Committee for Broadcasting & Action for Children's Television, amicus curiae.

Frank W. Lloyd, III, Washington, D.C., for Citizens Communications Center, amicus curiae.

Rachel Wolkin, Newtonville, Mass., for Action for Children's Television, amicus curiae.

Louis Nizer, New York City, Rosenfeld, Meyer & Susman by Allen E. Susman, Beverly Hills, Cal., for Motion Picture Association of America, Inc., amicus curiae.

MEMORANDUM OPINION

FERGUSON, District Judge.

INTRODUCTION

More than half a century ago, Secretary of Commerce Herbert Hoover warned that, "We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcast to the public, nor do I believe that the government should ever be placed in a position of censoring this material."¹ The plaintiffs in this case have exposed a joint agreement on the part of the three major television networks, the Federal Communications Commission ("FCC"), and the National Association of Broadcasters ("NAB") to permit one group — the NAB Television Code Review Board — to act as a national board of censors for American television. The plaintiffs have evidenced a successful attempt by the FCC to pressure the networks and the NAB into adopting a programming policy they did not wish to adopt. The plaintiffs have proven that the FCC formulated and imposed new industry policy without giving the public its right to notice and its right to be heard.

The policy involved is well known. It has been called the "family hour," the "family viewing policy," the "9:00 rule," even the "prime time censorship rule." Specifically, the policy is that "Entertainment programming inappropriate for viewing by a general family audience should not be broadcast during the first hour of network entertainment programming in prime time and in the immediately preceding hour. In the occasional case when an entertainment program is deemed to be inappropriate for such an audience, advisories should be used to alert viewers." NAB, The Television Code 2-3 (18 ed. June, 1975).

Two different lawsuits have been filed to contest the means by which this policy was promoted by the FCC and adopted by the networks and the NAB. The defendants are the same in both cases: (1) The Federal Communications Commission and Commissioners Wiley, Hookes, Lee, Quello, Reid, Robinson and Washburn the "government defendants"; (2) American Broadcasting Companies, Inc. ("ABC"), CBS, Inc. ("CBS"), National Broadcasting Company, Inc. ("NBC"), and the National Association of Broadcasters the "private defendants". The plaintiffs in CV 75-3641-F include the Writers Guild of America, West, Inc., Writers Guild of America, East, Inc., Directors Guild of America, Inc., Screen Actors Guild, Inc., Concept Plus II Productions, Four D Productions, Danny Arnold, Allan Burns, Samuel Denoff, Larry Gelbart, Susan Harris, Norman Lear, William Persby, Paul Witt, and Edwin Weinberger (hereinafter "Writers Guild"). The plaintiff in CV 75-3710-F is Tandem Productions, Inc. ("Tandem"). Most of the plaintiffs are creators, writers, and producers for television programming. The shows in which they are involved include "All In The Family," "Phyllis," "The Mary Tyler Moore Show," "Barney Miller," "M*A*S*H," and "Fay."

The Writers Guild plaintiffs charge the government defendants with violations of the First Amendment, section 326 of the Federal Communications Act of 1934, and of the Administrative Procedure Act ("APA"). All of the Writers Guild plaintiffs allege that the private defendants have violated the First Amendment; all but Lear charge the defendants with a violation of the Sherman Antitrust Act. Tandem, the producer of "All In The Family," charges the defendants with the same violations except that it does not include an Administrative Procedure Act count. All plaintiffs seek declaratory relief, injunctive relief, and attorneys' fees. Tandem asks for damages as well.

Much of the energy associated with this case has been generated because the plaintiffs and defendants disagree about the wisdom of the family viewing policy. In the last analysis, however, this is not the family hour case. The desirability or undesirability of the family viewing policy is not the issue. Rather the question is who should have the right to decide what shall and shall not be broadcast and how and on what basis should these decisions be made. This court will not evaluate the family viewing policy except to say that individual broadcast licensees have the right and the duty to exercise independent judgment in deciding whether or not to follow that policy. This court has no authority to declare an end to the family hour. At the same time, however, neither the FCC nor the NAB has the right to compromise the independent judgments of individual station owner licensees. The court will formulate remedies designed to let those with the right and the duty to make programming decisions make them without improper interference from government or other broadcasters. If the family hour continues, it should continue because broadcasters in their independent judgment decide that it is desirable policy, not because of government pressure or NAB regulation. If government intervenes in the future to control entertainment programming on television, it shall do so not in closed-door negotiating sessions but in conformity with legislatively mandated administrative procedures. If the government has any power to regulate such programming, it must be exercised by formal regulation supported by an appropriate administrative record, not by informal pressure accompanied by self-serving and unconvincing denials of responsibility. In short, the family hour may or may not be desirable. Censorship by government or privately created review boards cannot be tolerated.

The legal and factual issues raised by this case and discussed in this opinion are numerous and complicated. Section I of this opinion deals in detail with motions to dismiss which were made by the defendants several months ago. The court denied those motions — at that time only briefly describing its reasons. Section IA rejects the private defendants' contention that 47 U.S.C. § 405 dictates that the plaintiffs are required to file a petition for rehearing with the FCC before securing relief and the private defendants' alternative contention that 47 U.S.C. § 402(a) and 28 U.S.C. § 2342 confer exclusive jurisdiction over the subject matter of this lawsuit to the court of appeals. Section IB rejects the defendants' contention that the doctrine of exhaustion of remedies is applicable to this case. Section IC discusses the defendants' contention that the FCC has exclusive jurisdiction over the plaintiffs' claims. The contention is accepted with respect to section 326 claims in part IC1 and rejected with respect to the APA claims and First Amendment claims in parts IC2 and IC3. Section ID rejects the defendants' contention that the doctrine of primary jurisdiction has any role to play in this case.

Section II of the opinion contains the factual findings of the court entered after considering the weeks of trial testimony, hundreds of exhibits, and thousands of pages of deposition testimony. It has not been possible to discuss all of the evidence in the record which supports those conclusions. Still less has it been possible to discuss all of the contrary evidence and each of the defendants' comments with respect to the many items of evidence. Section II, however, does attempt to present the highlights and most significant evidence which has led the court to conclude that the Commission exerted improper pressure, that the networks improperly considered that pressure in making programming judgments, and that...