American Security Council Education Foundation v. Federal Communications Commission and United States of America, Cbs Inc., Intervenor , 607 F.2d 438 ( 1979 )

BAZELON, Circuit Judge,

concurring:

This case vividly illustrates the substantial constitutional perils inherent in the fairness doctrine.¹ Unlike the personal attack and political editorial components of the fairness doctrine upheld in Red Lion,² applying the fairness doctrine to daily news coverage poses a serious threat to the independence of the broadcast press.³

I heartily subscribe to the basic principle that underlies the fairness doctrine — “the paramount right of the public in a free society to be informed and to have presented to it for acceptance and rejection the different attitudes and viewpoints [on] vital and often controversial issues . . . .”⁴ I harbor grave doubts, however, that the fairness doctrine promotes this goal. Certainly, what benefits it may have generated in diversity have been undercut by the tendency of the fairness doctrine to suppress coverage of controversy altogether.⁵

In view of the Commission’s disposition of this fairness complaint, it is unnecessary to consider whether the application of the fairness doctrine to daily news coverage, absent bad faith or deliberate distortion,⁶ could ever meet the FCC’s statutory mandate ⁷ or the dictates of the First Amendment. I agree completely with Judge Tamm’s careful and thorough analysis of the inadequacies of petitioners’ prima facie complaint. We need go no further at this time.

As Judge Tamm notes,⁸ the fairness doctrine has traditionally found its justification in the scarcity of broadcast frequencies. As that factual predicate is called into question,⁹ courts may well be required to reassess the statutory and constitutional validity of the fairness doctrine’s restraints on the independence of broadcast journalism. Such a reexamination, however, must await another day.¹⁰

1 . I have previously voiced my concern over the constitutional implications of the fairness doctrine as applied to news and public affairs programming. See National Broadcasting Co. v. F. C. C., 170 U.S.App.D.C. 173, 228, 244-49, 516 F.2d 1101, 1156, 1172-77 (Bazelon, C. J., dissenting from the order vacating the order granting rehearing), vacated, 170 U.S.App.D.C. 252, 516 F.2d 1180 (1974), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976).

2 . Red Lion Broadcasting Co. v. F. C. C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).

3 . The peculiar dangers posed by fairness complaints against daily news coverage are ably described by Judge Tamm, Maj. op. at -- - of 197 U.S.App.D.C., at 458-459 of 607 F.2d.

4 . Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949); see Red Lion Broadcasting Co. v. F. C. C., supra, 395 U.S. at 389-90, 89 S.Ct. 1794.

5 . See, e. g.„ The Handling of Public Issues under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 30 F.C.C.2d 26, 35 (1971) (Johnson, Comm’r, concurring); Comment, Enforcing the Obligation to Present Controversial Issues: The Forgotten Half of the Fairness Doctrine, 10 Harv.Civ.Rights-Civ.Lib.L.Rev. 137, 154 (1975). The counterproductive effects of the fairness doctrine are exacerbated by the Commission’s focus on part two of the fairness doctrine (the “balance” requirement), while it virtually ignores part one (the “coverage” requirement). See generally, S. Simmons, The Fairness Doctrine and the Media, 166-73 (1978), Comment, supra, passim.

6 . Even in the absence of the fairness doctrine, the F.C.C. would be empowered to consider deliberate news distortion or failure to cover news that “could not in good faith be ignored,” National Org. for Women v. F. C. C., 181 U.S.App.D.C. 65, 73, 555 F.2d 1002, 1010 (1977), in conjunction with license renewal proceedings.

7 . The fairness doctrine, developed under the general public interest standard of the 1934 Communications Act, 47 U.S.C. § 309(a) (1976), was “ratified” by Congress in 1959, when it amended § 315(a) of the Act to exempt certain news coverage from the equal time requirement. The amended 315(a) provides in pertinent part that the exemptions from the equal time provision do not relieve broadcasters “from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” 47 U.S.C. § 315(a) (1976).

8 . Maj. op. at --- of 197 U.S.App.D.C., at 441—442 of 607 F.2d.

9 . See Brandywine-Main Line Radio, Inc. v. F. C. C., 153 U.S.App.D.C. 305, 364-365, 473 F.2d 16, 75-76 (1972) (Bazelon, C. J., dissenting), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973).

10 . The Supreme Court, in Red Lion, left open the possibility that the constitutional implications of the fairness doctrine might require reexamination if experience should demonstrate that the doctrine failed to promote diversity. Red Lion Broadcasting, Inc. v. F. C. C., supra, 395 U.S. at 393, 89 S.Ct. 1794.