DocketNumber： Nos. 16369, 16498-16499
Judges： Swygert
Filed Date： 9/10/1968
Status： Precedential
Modified Date： 11/4/2024
This review raises the question of the constitutionality of the Federal Communications Comimssion’s recently promulgated rules concerning the airing of personal attacks and political editorials by broadcasters licensed by the Commission. An unincorporated association of radio and television journalists and eight companies holding licenses for radio and television stations
On April 8, 1966, the Commission released a Notice of Proposed Rule Making. The announced purposes of the rules proposed by the Commission were “to codify the procedures which licensees are required to follow in personal attack situations” and “to implement the Times-Mirror
In the rules dealing with the responsibilities and obligations of licensees with respect to personal attacks, a “personal attack” was defined as an attack upon the “honesty, character, integrity or like personal qualities of an identified person or group.” A personal attack would come within the ambit of the rules, however, only if made “during the presentation of views on a controversial issue of public importance.”
According to the Commission’s Memorandum Opinion and Order, the personal attack rules were “simply a particular aspect of the Fairness Doctrine,” and did “not alter or add to the substance of the Doctrine.” The Fairness Doctrine was initially articulated in the Report of the Commission in the Matter of Editoriali-zation by Broadcast Licensees, 13 F.C.C. 1246 (1949). In that report, the Commission stated the basic obligation of licensees to present broadcasts concerning public issues, in a manner which would insure that the listening public would be exposed to a broad spectrum of views on a given issue.
When a personal attack has been broadcast by a licensee, the rules require that the licensee, within a reasonable time, but not later than one week after the attack, notify the person or group attacked of the “date, time and identification of the broadcast,” provide “a script or tape (or an accurate summary if a script or tape is not available),” and offer to the person or group attacked “a reasonable opportunity to respond over the licensee’s facilities.”
Although the promulgation of the rules represented an attempt to “clarify” a licensee’s obligations, the Commission said the “rules are not designed to answer such questions” as whether a “personal attack” had occurred or whether the person or group attacked was “identified.” In spite of the fact that unanswered questions were, to be left to the licensee’s “good faith judgment,” if the licensee remained doubtful of his obligations, the Commission invited prompt consultation to obtain interpretation of its rules.
Some of the comments submitted in opposition to the proposed rules contained expressions of fear that the rules would both discourage controversial issue programming and infringe the first amendment guarantee of a free press. With respect to the alleged discouragement of controversial issue programming, the Commission responded:
Statements that the rules will discourage, rather than encourage, controversial programming ignore the fact that the rules do no more than restate existing substantive policy — a policy designed to encourage controversial programming by insuring that more than one viewpoint on issues of public importance are carried over licensees’ facilities.
Regarding the constitutional question, which the Commission believed to be “without merit,” it responded:
As to these particular rules, we stress again that they do not proscribe in any way the presentation by a licensee of personal attacks or editorials on political candidates. They simply provide that where he chooses to make such presentations, he must take appropriate notification steps and make an offer for reasonable opportunity for response by those vitally affected and best able to inform the public of the contrasting veiwpoint. That such rules are reasonably related to the public interest is shown by consideration of the converse of the rules — namely operation by a licensee limited to informing the public of only one side of these issues, i. e., the personal attack or the licensee’s editorial.
In addition, the Commission referred in this regard to the discussion of the “constitutionality of the fairness doctrine generally in the Report on Editorialization,” 13 F.C.C. 1246 (1949) and the decision in Red Lion Broadcasting Co., Inc. v. FCC, 127 U.S.App.D.C. 129, 381 F.2d 908, cert, granted, 389 U.S. 968, 88 S.Ct. 470, 19 L.Ed.2d 458 (1967)
The Commission’s purpose in promulgating the political candidate editorial rules was to clarify the “licensee’s obligations in regard to station editorials endorsing or opposing political candidates.” The rules require that a licensee who broadcasts an editorial endorsing or opposing a candidate for public office must offer the other qualified candidates or the candidate opposed “a reasonable opportunity * * * to respond.”
On August 7, 1967 the Commission
“[E]ditorials or similar commentary, embodying personal attacks, broadcast in the course of newscasts,” were specifically referred to in the Commission’s memorandum opinion as not being exempt from the personal attack rules. If a licensee chose to present a personal attack in these broadcasts, the Commission believed that the licensee should not make the determination as to what the public would or would not hear in response to the personal attack. In addition, “time and practical considerations, discussed with respect to the news itself,” were not thought to be germane to “editorials or similar commentary.” The Commission did not exempt “news documentaries” from the personal attack rules because they were not thought to “involve the time and practical considerations” which necessitated the other exemptions and because “a documentary, even though fairly presented, may necessarily embody a point of view.” “News interview shows” were not exempted because of the absence of “time and practical considerations” and because a licensee having “chosen to provide one person with an ‘electronic platform’ for an attack” was required, by “elemental fairness and the duty to inform the public,” to allow the person attacked to respond.
While the instant petitions were pending in this court, the Commission filed a motion requesting authority to once again revise the personal attack rules.
In the memorandum opinion accompanying the new revision, the Commission stated that the “revision * * * [was] of a relatively narrow nature,”
Several additional considerations prompted the Commission to make the new revisions. First, noting the exemptions of four categories of news-type programs from the “equal opportunities” requirement of section 315,
Although enlarging the scope of the exemptionS! the Commission reiterated ^ ^ Fairness Doctrine (giving „the Jicensee considerable discretion”) remained licaWe t0 the exempt eate. gories. In particular, when personal attacks occurred in the course of any of the exempt broadcasts, the Commission stated;
[O]ur revision affords the licensee considerable leeway in these news-type programs but it still requires that fairness me either by the licensee s action of fairly presenting the contrasting viewpoint on the attack issue or by notifying and allowing the person or SrouP attacked a reasonable opportunity to respond,
The “labelled station or network editorial” and the “news documentary” were not added to the group of exempt broadcasts. Although the Commission viewed “news commentary or analysis” to be “an integral and important part of the news process involved in the category ‘bona fide newscast’ ” and viewed “the bona fide news interview” to be “a means of developing the news and informing the public which the Congress singled out in the 1959 Amendments [to
Petitioners’ primary contention is that the Commission’s personal attack and political editorial rules, as amended, will impose unconstitutional burdens on the freedom of the press protected by the first amendment.
Besides the alleged unreasonable burdens imposed upon licensees, the petitioners point to several additional difficulties which they argue inhere in the Commission’s rules. They contend that the rules are too vague, given the wide range of severe penalties a licensee faces for failing to comply with them. Petitioners refer to the uncertain meaning of terms in the rules such as “attack,” “character,” “like personal qualities,” and “identified individual.” Moreover, they argue that the Commission’s offer to make itself available promptly to resolve these interpretative questions could place the Commission in the role of a censor. Through the power to interpret vague rules, the Commission would be in a position to determine which views, opposing those expressed over a licensee’s facilities, do or do not merit a right of reply. The petitioners claim that this discretionary power is susceptible to the
Neither the Commission’s three memorandum opinions nor its brief filed in this court are altogether responsive to the various contentions raised by the pe-tioners. The Commission characterizes the petitioners’ arguments as asserting “a constitutional right to make a one-sided presentation.” This non-existent constitutional right, according to the Commission, is predicated on the petitioners’ failure to recognize the substantial differences between the various communication media, particularly the differences between newspapers and radio and television. Because of this failure, the Commission believes that the petitioners’ arguments lead to the untenable conclusion that the entire licensing scheme of the Communications Act is unconstitutional. Although conceding that the first amendment applies to broadcasting, the Commission urges that “different rules and standards are appropriate for different media of expression in light of their differing natures.” Finally, the Commission flatly asserts in a perfunctory fashion that under the rules as amended, there is no “possibility of inhibition” of licensees.
We approach the primary question raised in this review — the constitutionality of the Commission’s personal attack and political editorial rules —against the backdrop of a host of Supreme Court decisions. Those decisions have established the standards by which to assess claims that governmental statutes, regulations or practices abridge freedom of speech in violation of the first amendment. For example, the Supreme Court has said: “Vague laws in any area suffer a constitutional infirmity. When First Amendment rights are involved, we look even more closely, lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or of the press suffer.” Ashton v. Kentucky, 384 U.S. 195, 200, 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966). “[Standards of permissible statutory vagueness are strict in the area of free expression. * * * Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 432, 433, 83 S.Ct. 328, 337, 338, 9 L.Ed.2d 405 (1963).
Turning from cases dealing generally with the first amendment to cases dealing with the freedom of the press in particular, a series of recent Supreme Court decisions, beginning with New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), delineated the Court’s views on the proper accommodation of the private interests served by libel actions in vindicating those who are defamed with the public interests served by the printed press in criticizing public officials or public figures and in illuminating public issues.
The fear of damage awards under a rule such as that invoked by the Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal statute. * * * Whether or not a newspaper can survive a succession of such judgments, the pall of fear and timidity imposed upon those who would give voice to public criticism is an atmosphere in which First Amendment freedoms cannot survive. 376 U.S. at 277, 278, 84 S.Ct. at 724, 725.
The import of New York Times and its progeny is that the freedom of the press to disseminate views on issues of public importance must be protected from the imposition of unreasonable burdens by governmental action. We address ourselves, therefore, to the question whether the Commission’s rules here in issue pose unreasonable burdens on licensees.
Despite the Commission’s disclaimers to the contrary, we agree with the petitioners that the rules pose a substantial likelihood of inhibiting a broadcast licensee’s dissemination of views on political candidates and controversial issues of public importance.
In addition, the petitioners express fears that a licensee’s strict adherence to the requirement that he provide an opportunity to reply might result in the public airing of obnoxious or extreme views. Of course, the Commission might take the position that a licensee need not comply in those situations. But allowing the Commission selectively to enforce the rules so as to prevent the expression of those views it believes to be contrary to the best interests of the American public would cast the Commission in the role of a censor, contrary to the express provisions of the Communications Act.
An even greater threat of Commission censorship arises due to the lack of specificity in the rules. The Commission has invited a licensee to seek its advice whenever he is unsure of his obligations under the rules. In fact, the Commission itself has recognized the possibility that such situations will arise.
We agree with the petitioners that such terms as “attack,” “character,” and
Another example of the Commission’s uncertain position regarding a licensee’s obligations under the rules concerns its treatment of personal attacks occurring during the course of editorials or commentary. When the Commission first amended the rules to exempt the “bona fide newscast” and “on-the-spot coverage of a bona fide news event,” the Commission said in its accompanying memorandum opinion that the exemption was inapplicable to “editorials or similar commentary.” The clear implication from the last quoted language is that there is little, if anything, distinguishing “edtiorials” from “similar commentary.” Yet in the memorandum opinion accompanying its last amendment to the rules, the Commission made a distinction between the two categories for it exempted “news commentary or analysis in a bona fide newscast” but left the “labeled station or network editorial” still subject to the rules.
Similar uncertainty is evident in the Commission’s treatment of the “news documentary.” The Commission said in creating the various exemptions from the personal attack rules that it was “following the line drawn by Congress” when Congress created the exemptions in section 315. Congress exempted the news documentary, “if the appearance of the candidate is incidental to the presen
What these examples demonstrate is that the Commission’s rules are too vague because they lack standards precise enough to enable a licensee to ascertain whether he is subject to the rules’ obligations. When a licensee considers the vagueness of the rules, the mandatory and pervasive requirements of the rules, and the threat of suffering serious sanctions for noncompliance with them, it is likely that he will become far more hesitant to engage in controversial issue programming or political editorializing. Consequentially, he will “steer far wider of the unlawful zone.” Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958). Given the fast pace of news developments, a licensee will be understandably reluctant to make the difficult on-the-spot judgments demanded by the Commission’s rules, the meaning of which are uncertain to both the licensee and the Commission. In Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc., 360 U.S. 525, 530, 79 S.Ct. 1302, 1306, 3 L.Ed.2d 1407 (1959), the Supreme Court commented on the practical difficulties facing licensees in an analogous situation concerning the censorship prohibition of section 315:
The decision a broadcasting station would have to make in censoring libelous discussion by a candidate is far from easy. Whether a statement is defamatory is rarely clear. Whether such a statement is actionably libelous is an even more complex question * * * Such issues have always troubled courts. Yet, under petitioner’s view * * * they would have to be resolved by an individual licensee during the stress of a political campaign, often, necessarily, without adequate consideration or basis for decision. Quite possibly, * * * all remarks even faintly objectionable would be excluded out of an excess of caution.
In addition, due to a licensee’s uncertainty of his obligations under the rules, it is more likely that he will engage in rigorous self-censorship of the material he broadcasts, than if he were subject only to the Fairness Doctrine.
The bookseller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it the distribution of all books, both obscene and not obscene, would be impeded.
In response to the petitioners’ attack on the rules, the Commission has advanced two arguments to support its position that the rules áre constitutional. First, the Commission relies on the recent decision in Red Lion Broadcasting Co., Inc. v. FCC, 127 U.S.App.D.C. 129, 381 F.2d 908, cert, granted, 389 U.S. 968, 88 S.Ct. 470, 19 L.Ed.2d 458 (1967). Red Lion concerned the challenge by a radio station licensee of a Commission order requiring the licensee to make free reply-time available to a person who had been personally attacked on a program broadcast over the licensee’s station. The Commission’s order predated the personal attack rules here in question.
In correspondence with the licensee prior to the issuance of the order, the Commission indicated that the procedural requirements (later formalized in the new personal attack rules) should be complied with by the Red Lion radio station. The Commission wrote:
The licensee, with the exception of appearances of political candidates, is fully responsible for all matter which is broadcast over his station, including broadcasts containing a personal attack. The latter is defined in our recent fairness primer as an attack ‘ * * * on an individual’s or group’s honesty, character, integrity, or like personal qualities * * * 1 in connection with a controversial issue of public importance * * *.
Where such an attack occurs, the licensee has an obligation to inform the person attacked of the attack, by sending a tape or transcript of the broadcast, or if these are unavailable, as accurate a summary as possible of the substance of the attack, and to offer him a comparable opportunity to respond.
The Commission also indicated in the course of this correspondence that its ruling was an application of the Fairness Doctrine, “as applied to this situation.” Judge Tamm, who wrote the principal opinion sustaining the Commission’s order (Judge Fahy concurred in the result; Judge Miller did not participate in the decision on the merits), devoted the major portion of his discussion to a consideration of the constitutionality of the Fairness Doctrine. He held that Congress did not unconstitutionally delegate its legislative function to the Commission by enacting 47 U.S.C. § 315, which “adopted” the Fairness Doctrine, and he concluded:
The Fairness Doctrine is not unconstitutionally vague, indefinite, or uncertain, nor does it lack the precision required in legislation affecting basic freedoms guaranteed by the Bill of Rights. * * * [And that] under the facts in this case, the requirement under the Fairness Doctrine that a broadcaster may not insist upon financial payment by a party responding to a personal attack does not violate the first and fifth amendments to the Constitution nor is the Doctrine violative of either the ninth and tenth amendments. 381 F.2d at 930.
We believe two observations are in order with reference to Judge Tamm’s opinion and the holding in that case. First, we draw a distinction between the personal attack rules, whether incorporated in an ad hoc ruling such as occurred in Red Lion or in formal rules such as have now been promulgated by the Commission, and the Fairness Doctrine as referred to in section 315.
Second, the Commission relies on the alleged difference between the broadcast press and the printed press to sustain its position that the rules are constitutional. Although the Commission denies that its rules either impose unreasonable burdens on licensees or raise any constitutional difficulties,
The characteristic most frequently advanced by the Commission to distinguish the printed press from the broadcast press is that radio and television broadcasting frequencies are not available to all. Data comparing the broadcast press and the printed press, however, shows that there are more commercial radio and television stations in this country than there are general circulation daily news
The Commission replies to this data by arguing that the only barrier to the publication of additional newspapers is an economic one, whereas the barrier to the operation of additional radio and television stations is a technical one — a limitation of available frequencies. For two reasons, the Commission’s reply is unpersuasive. First, the fact that a number of allocated radio and television broadcast frequencies remain inoperative suggests that economic barriers also play a significant role in determining the number of operating broadcasters, Second the recent availability of UHF television frequencies suggests that technological development is not at a standstill and may result in increasing further the availability of broadcasting frequencies in the future.
An additional characteristic is also advanced by the Commission to distinguish the broadcast press from the printed press. Since broadcasting licenses are not available to all and licenses are issued for a limited period of time, the Corn-mission maintains that those who obtain licenses are granted a “privilege” and consequently must act as “trustee[s] for the public” since “the airwaves belong to the public.” Therefore, according to the Commission, a licensee, exercising such a privilege, must abide by Commission imposed rules_ concerning personal attacks and political editorials,
The Commission’s reliance on the concept of public ownership of space or airwaves to distinguish the broadcast press from the printed press, is as one corn-mentator has observed: “[Ljogically * * * meaningless. To say that the airways or spectrum can be owned by anyone is simply to indulge in fantasy.”
[G]rave constitutional questions are immediately raised once it is said that the use of the mails is a privilege which may be extended or withheld on any grounds whatsoever. * * * Under that view the second-class rate could be granted on condition that certain economic or political ideas not be disseminated. * * * [It would be] a radical departure from our traditions * * * to clothe the Postmaster General with the power to supervise the tastes of the reading public of the country.
See also Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965).
In view of the vagueness of the Commission’s rules, the burden they impose on licensees, and the possibility they raise of both Commission censorship and licensee self-censorship, we conclude that the personal attack and political editorial rules would contravene the first amendment. Consequently, the rules could be sustained only if the Commission demonstrated a significant public interest in the attainment of fairness in broadcasting to remedy this problem, and that it is unable to attain such fairness by less restrictive and oppressive means. Keyishian v. Board of Regents, 385 U.S. 589, 602, 87 S.Ct. 675,17 L.Ed.2d 629 (1967), and Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed. 231 (1960). We do not believe the Commission has made such a demonstration.
According to the Commission, “[T]he development of an informed public opinion through the public dissemination of news and ideas concerning the vital issues of the day is the keystone of the Fairness Doctrine” as well as the rules here in question... - The Commission assumes, however, that television viewers and radio listeners are in fact ill-informed, that they are isolated from other media of communication, and that those other media do not fully inform them of all sides of controversial public issues. We do not believe this assumption is warranted. The Commission’s rules apply only to controversial issues of public importance and to political candidate editorials. Thus, the rules deal with subjects which are likely to receive thorough exposure and illumination in all media of communication. Although we would agree that radio and television are major vehicles for the dissemination of views on controverisal public issues, the Commission has failed to demonstrate that the exposure of all sides of a given issue is not achieved by radio and television in conjunction with other media of communication.
An important reason advanced by the Commission for promulgating the personal attack and political editorial rules was to broaden the range of available sanctions to deal with licensees who fail to comply with the requirements of the Fairness Doctrine. In its initial memorandum opinion, however, the Commission disclaimed any intention of using the rules “as a basis for sanctions against those licensees who in good, faith seek to comply with the personal attack principle.”
I think that the case for the value of the broadcast reply is much weaker than it is assumed to be. Most attacks as I have said are received casually and without advance preparation by the listener. After he has heard it, will he be conditioned to expect, wait for, be alerted to a reply? How will the mandated reply or defense reach him? Does he know whether or when it will be broadcast? The advance programs do not give notice of specific replies (though it would be possible for the regulation to require such notice). It may seem something of a paradox but I would hazard the hypothesis that a reply in a newspaper, i. e., as a news item, is more likely to reach a listener than the later program. The newspaper both in time and space has greater extension and great permanency. Jaffe, The Fairness Doctrine, Equal Time, Reply to Personal Attacks, and The Local Service Obligations; Implications of Technological Change 2 (U. S. Government Printing Office, 1968).
The petitioners also challenge the personal attack and political editorial rules on the ground that Congress has not authorized the Commission to promulgate them. They argue that the required explicit Congressional authority, essential in “areas of doubtful constitutionality,” Greene v. McElroy, 360 U.S. 474, 507, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), is lacking. And even if it could not be determined that the rules clearly abridge first amendment safeguards, they urge that sufficient constitutional doubt remains to invalidate the rules pursuant to the principle enunciated in Greene v. McElroy.
The Commission has responded to this argument by calling attention to two provisions which it claims authorize the promulgation of the rules in question. First, it points to the “public interest” standard contained in the Communications Act, from, which it finds the grant of authority to devise rules requiring fairness in the treatment of public issues, citing National Broadcasting Co. Inc. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Second, the Commission maintains that the 1959 amendment of section 315(a) of the Act, clearly and unmistakably conferred upon it authority to refine and implement the Fairness Doctrine which Congress had recognized and approved through the amendment.
Since we have determined that the rules here challenged collide with the free speech and free press guarantees contained in the first amendment, we need not resolve the authorization issue presented in this review.
The Commission’s order adopting the personal attack and political editorial rules, as amended, is set aside.
APPENDIX
The full text of the Commission’s rules issued on July 10, 1967 follows:
Personal attacks; political editorials.
(b) The provisions of paragraph (a) of this section shall be inapplicable to attacks on foreign groups or foreign public figures or where personal attacks are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesman, or persons associated with the candidate in the campaign.
Note: In a specific factual situation, the fairness doctrine may be applicable in this general area of political broadcasts. See, Section 315(a) of the Act (47 U.S.C. 315 (a)); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415.
(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii )the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial; and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee’s facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this subsection sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion.
The full-text of the Commission’s amendment to the rules issued on August 9, 1967 follows:
(b) The provisions of paragraph (a) of this section shall be inapplicable (i) to attacks on foreign groups or foreign public figures; (ii) where personal attacks are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign, on other such candidates, their authorized spokesmen, or persons associated with the candidates in the campaign; and (iii) to bona fide newscasts or on-the-spot coverage of a bona fide news event (but the provisions shall be applicable to any editorial or similar commentary included in such newscasts or on-the-spot coverage of news events).
Note: The fairness doctrine is applicable to situations coming within (iii), above, and, in a specific factual situation, may be applicable in the general area of political broadcasts (ii), above. See, Section 315(a) of the Act, 47 U.S.C. 315(a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 Fed.Reg. 10415.
The full text of the Commission’s amendment to the rules issued on March 29, 1968 follows:
(b) The provisisons of paragraph (a) of this section shall not be appli*1023 cable (i) to attacks on foreign groups or foreign public figures; (ii) to personal attacks which are made by legally qualified candidates, their authorized spokesmen, or those associated with them in the campaign; and (iii) to bona fide newscasts, bona fide news interviews, and on-the-spot coverage of a bona fide news event (including commentary or analysis contained in the foregoing programs, but the provisions of paragraph (a) shall be applicable to editorials of the licensee).
Note: The fairness doctrine is applicable to situations coming within (iii), above, and, in a specific factual situation, may be applicable in the general area of political broadcasts (ii) , above. See, Section 315(a) of the Act, 47 U.S.C. 315(a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance. 29 Fed. Reg. 10415. The categories listed in (iii) are the same as those specified in Section 315(a) of the Act.
. These petitioners are Radio Television News Directors Association, Bedford Broadcasting Corporation, Central Broadcasting Corporation, The Evening News Association, Marion Radio Corporation, RKO General, Inc., Royal Street Corporation, Roywood Corporation, and Time-Life Broadcast, Inc. This group of petitioners will be collectively referred to hereafter as RTNDA.
. Commissioner Bartley dissented, Commissioner Loevinger concurred and Commissioner Wadsworth was absent.
. The rules as set forth in the July 10 order appear in the appendix to this opinion.
. Three amicus curiae briefs were filed in this court. The briefs of King Broadcasting Company and the National Academy of Television Arts and Sciences opposed the Commission’s rules. The brief of the Office of Communication of the United Church of Christ and other religious organizations favored the Commission’s rules.
. Times-Mirror Broadcasting Co. (KTTV), 24 P & F Radio Reg. 404 (1962). During the 1962 California gubernatorial campaign, a television station engaged in the “ ‘continuous’ and ‘repetitive’ * * * presentation of views * * * on the campaign as compared to a ‘minimal opportunity afforded to opposing viewpoints’ and * * * from time to time, ‘personal attacks on individuals and groups involved in the * * * campaign’.” 24 P & F Radio Reg. at 405. The Commission informed the licensee:
“Under the fairness doctrine, when a broadcast station permits, over its station facilities, a commentator or any person other than a candidate to take a partisan position on the issues involved in a race for political office and/or to attack one candidate or support another by direct or indirect identification, then it should send a transcript of the pertinent continuity in each such program to the appropriate candidates immediately and should offer a comparable opportunity for an appropriate
However, the Commission indicated that newscasts, news interviews, news documentaries, and on-the-spot coverage of news events “would not, as a general matter * * * appear to be encompassed by the Commission’s ruling.” Id. at 406.
. The specific language in the report which gave birth to the personal attack aspect of the Fairness Doctrine follows:
It should be•recognized that there can be no one all embracing formula which licensees can hope to apply to insure the fair and balanced presentation of all public issues. Different issues will inevitably require different techniques of presentation and production. The licensee will in each instance be called upon to exercise his best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view. In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as whether the subject is worth considering, whether the viewpoint of the requesting party has already received a sufficient amount of broadcast time, or whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter’s personal involvement in the controversy may also he a factor which must he considered, for elementary considerations of fairness may dictate that time he allocated to a person or group tohich has heen specifically attached over the station, tohere othenoise no such ohligation would exist. (Emphasis added.)
. That portion of the 1959 amendment to which the Commission referred follows (47 U.S.C. § 315):
Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, 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.
. In particular, the Commission referred to the Public Notice of July 26, 1963; Controversial Issue Programming, F.C.C. 63-734 and Public Notice: Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415 (1964).
. On January 29, 1968, the Supreme Court entered an order postponing the oral argument in Red Lion pending the decision of this court in the instant review and the Supreme Court’s action on any petition for certiorari to review this court’s decision, 390 U.S. 916, 88 S.Ct. 848, 19 L.Ed.2d 977 (1968). On the same day, the Supreme Court denied the petition of RTNDA for certiorari before the judgment of this court, 390 U.S. 922, 88 S.Ct. 857, 19 L.Ed.2d 982 (1968).
. This exemption also included attacks by a candidate’s authorized spokesmen or campaign associates on opposing candidates, their spokesmen or their campaign associates.
. In pertinent part, section 315 reads: (a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any—
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if tile appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),
shall not be deemed to be use of a broadcasting station within the meaning of this subsection.
. The Commission elaborated on the phrase “reasonable opportunity to respond” in its memorandum opinion:
The phrase “reasonable opportunity” to respond is used here and in the personal attack subsection because such an opportunity may vary with the circumstances. In many instances a comparable opportunity in time and scheduling will be clearly appropriate; in others such as where the endorsement of a' candidate is one of many and involves just a few seconds, a “reasonable opportunity” may require more than a few seconds if there is to be a meaningful response.
. The provision allowing the spokesman of the candidate to make the response was intended to enable the licensee “to avoid any Section 315 ‘equal opportunities’ cycle” which might be initiated if the candidate himself responded.
. The rules issued on July 10, 1967 were to become effective on August 14, 1967.
. Commissioners Bartley, Loevinger, and Wadsworth were absent. Commissioner Cox concurred in the result.
. The respective petitions for review were supplemented to take account of the August 7 order.
. The amendment as set forth in the August 7 order appears in the appendix to this opinion.
. The Commission’s motion was filed on March 4, 1968. As originally presented, the motion requested that this court hold the pending petitions for review in abeyance and authorize the Commission to conduct further rule making proceedings. According to the motion, the Commission proposed to “set aside those parts of the rules * * * dealing with personal attacks” and “to conduct an expeditious rule making proceedings looking toward their revision.” The motion was apparently prompted by consultation between the Commission and the Department of Justice and a letter from the Assistant Attorney General, Antitrust Division, to the Commission’s chairman. In pertinent part, the letter read:
[W]e are fully prepared to support the Commission’s position that the “fairness doctrine” is constitutional and within the Commission’s statutory powers, and that, as a general proposition, some special rule with regard to personal attack is a valid facet of that doctrine. However, we have some concern that the rule, as drafted, raises possible problems that might be minimized by appropriate revisions in the rule without materially interfering with the public interest objectives that the rule is intended to serve.
The motion was opposed by NBO. Neither BTNDA nor CBS had any objection to granting the motion so long as the enforcement of the rules, as originally promulgated, was stayed pending the proposed revision. In its reply, the Commission abandoned its plan to conduct additional rule making proceedings and instead appended a proposed memorandum opinion and order, revising the personal attack rules. This court’s order of March 22, 1968 denied the Commission’s motion to hold the review in abeyance but allowed the Commission leave to revise the personal attack rules.
. Commissioners Bartley and Loevinger dissented, the latter writing a lengthy opinion setting forth views critical of the Commission’s action. Commissioner Cox concurred. Commissioner Johnson concurred in the result.
. The amendment as set forth in the March 29 order appears in the appendix to this opinion.
.. . 21. The Commission did, however, attempt to impart some clarity to the requirements of the personal attack rules. In a footnote, the Commission said:
Some other matters simply call for a common, sense reading of the rule. Thus, if the person attacked has previously been afforded a fair opportunity to address himself to the substance of the particular attack, fairness and compli-anee with the rule have clearly been achieved. Similarly, as shown by the introductory phrase, “when, during the presentation of views on a controversial issue of public importance * * the ruje applicable only where a discussion of a controversial issue of public importance contains a personal attack whioh makes fte honegt int6grit or character of an identified person or group an issue in that discussion.
. See note 11, supra.
. Throughout its memorandum opinion, the Commission emphasized the parallel between its action and the 1959 Amendments. At one point the Commission said:
We stress that the program categories being exempted are defined in the 1959 Amendments, and that the legislative guides as to these categories, to the extent pertinent, will be followed in this field also.
. RTNDA not only urges the unconstitutionality of the specific rules here in issue, but of the Fairness Doctrine itself.
. Other decisions in which the Supreme Court explored the implications of New York Times are: St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (public official’s defamation action after televised speech critical of him); Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed. 2d 1094 (1967) (public figures’ libel action after printed articles critical of them); Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (action under right of privacy statute after publication of article concerning newsworthy people and events); Mills v. State of Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) (criminal action pursuant to Corrupt Practices Act after publication of a political editorial on election day) ; and Garrison v.
. The amicus curiae brief filed in this court by the King Broadcasting Company graphically illustrates the inhibitory effect on the broadcast of political editorials of the Commission’s requirement of a “reasonable opportunity to respond.” In two instances, the broadcast of editorials endorsing candidates for the Seattle City Council was delayed for several weeks while one of the unendorsed candidates in each instance prosecuted a complaint before the Commission alleging that King’s division of that person’s reply time was unreasonable. Although not ordering King to give the complaining candidates additional reply time, the Commission determined into how many segments the total amount of time should be divided. This action indicates the degree to which the Commission has gone in imposing supervision on licensees.
. The Commission’s so-called exemptions from the requirements of the personal attack rules, which were contained in the August, 1967 and March, 1968 amendments, are illusory. Our reading of the latest amendment indicates that unless the response of the person attacked is fairly presented by the licensee on the “attack issue” of the “exempt” broadcast, the licensee must adhere to the explicit requirements of the rules. But, the alternative of presenting the reply on the “attack issue” might lead licensees to view every personal attack as a controversial public issue in order to avoid compliance with the strict requirements of the rules. Because of the possible disruptive effect and difficulty in complying with the alternative, a licensee might choose to avoid controversial issue programming altogether so as to remove the possibility of broadcasting personal attacks.
. See note 6, supra.
. The Commission referred specifically to 47 U.S.C. § 503(b) in this regard in its memorandum opinion issued on July 10, 1967. In pertinent part, that section provides:
(b) Violation of rules, regulations, etc. * * *
(1) Any licensee or permitee of a broadcast station who—
(B) willfully or repeatedly fails to observe any of the provisions of this chapter or of any rule or regulation of the Commission prescribed under authority of this chapter or under authority of any treaty ratified by the United States,
shall forfeit to the United States a sum not to exceed $1,000. Each day during which such violation occurs shall constitute a separate offense. Such forfeiture shall be in addition to any other penalty provided by this chapter.
In addition, a willful and knowing violation of the Commission’s rules will subject the violator to criminal sanctions, which are set forth in 47 U.S.C. § 502.
In pertinent part, that section provides:
Any person who willfully and knowingly violates any rule, regulation, restriction, or condition made or imposed by the Commission under authority of this chapter * * * shall, in addition to any other penalties provided by law, be punished, upon conviction thereof, by a fine of not more than $500 for each and every day during which such offense occurs.
Finally, violations of the Commission’s rules could subject a violator to administrative sanctions, which are set forth in 47 U.S.C. § 312. In pertinent part, that section provides:
(a) Revocation of station license or construction permit.
The Commission may revoke any station license or construction permit—
for willful or repeated violation of, or willful or repeated failure to observe any provision of this chapter or any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States;
(b) Cease and desist orders.
Where any person * * * (3) has violated or failed to observe any rule or regulation of the Commission authorized by this chapter or by a treaty ratified by the United States, the Commission may order such person to cease and desist from such action.
. In its first memorandum opinion, the Commission said, “the only new requirement in these rules are the time limits.” (Emphasis added.) A crucial difference between the rules and the Fairness Doctrine, however, is the fact that the licensee’s obligations are incorporated in specific rules with which he must comply in every instance under the threat of severe sanctions.
. In Mills v. State of Alabama, 384 U.S. 214, 219, 86 S.Ct. 1434, 1437, 16 L.Ed.2d 484 (1966), the Supreme Court discussed the vanguard role of the press in the following language:
Thus the press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials * * * responsible to all the people whom they were elected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change, which is all that this editorial did, muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.
. 47 U.S.C. § 326, prohibiting Commission censorship of program content, provides:
Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.
. See text supra at 7.
. “[I]n appraising a statute’s inhibitory effect upon such [first amendment] rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar.” NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed. 2d 405 (1963).
. The latest revision was prompted, according to an Assistant Attorney General, by a “concern that the rule, as drafted, raises possible problems that might be minimized by appropriate revisions.”
. On previous occasions, the Commission has taken a different view on the rights of communists under the Fairness Doctrine. Thus, in the Fairness Primer, the Commission stated, “it is not the Commission’s intention to require licensees to make time available to communists or the communist viewpoint.” 29 Fed.Reg. at 10418 (1964). The statement quoted in the text apparently suggests that the Commission has altered its view respecting communists. This apparent change of attitude on the Commission’s part, however, indicates only that the Commission has been inconsistent in its application of the Fairness Doctrine. And if the rules are vague enough to require a licensee to seek Commission interpretations, there exists the possibility of further such inconsistencies in the future.
. A “news commentary or analysis” broadcast “outside one of the exempt program categories” will still be subject to the Commission’s rules. Thus, depending solely on when it is broadcast, the same commentary would be either exempt or not exempt. The Commission itself recognized this anomaly, explaining it by saying that the same result occurred under section 315 which it was following.
. There is some question whether the Commissions’ action in following the “line drawn by Congress” in section 315 was appropriate. Section 315 dealt with the problem of equal time for political candidates, not with the problem of personal attacks and political editorials. The fact that Congress exempted certain types of news-related programs from the equal time requirement in no way indicates what judgments Congress would have made (if in fact it could constitutionally have acted in this area at all) in deciding the scope of exemptions with respect to personal attacks and political editorials.
. For a discussion of the problems of time and planning that attend the preparation of a news documentary, see W. Wood, Electronic Journalism, 46-49 (1967).
. The Commission has made clear that “the obligation for compliance with these rules is on each individual licensee.” If a licensee offers the use of his facilities to others who make a personal attack, the licensee remains responsible for complying with the Commission’s rules. Under these circumstances, a licensee might also undertake to censor what others broadcast over his facilities.
. See pages 15-18, supra.
. In its three memorandum opinions, much of the Commission’s discussion of the constitutional impact of its rules, apart from relying on Red Lion, is limited to a cryptic reference in its first memorandum opinion to paragraphs 19 and 20 of the 1949 Report on Editorializing. Those two general paragraphs, written almost twenty years ago, provide no answer to the constitutional issues raised here. Also inadequate are the frequent conclusional statements that the rules neither burden nor inhibit licensees. Categorical conclusions are no substitute for reasoned analysis. Finally, the Commission, in its brief filed in this court, fails to discuss the impact of New York Times and its progeny.
. National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943), does not support the Commission’s position that the broadcast press is not entitled to the same order of first amendment protection as the printed press. At issue in that case was the validity of the Commission’s chain broadcasting regulations. The only constitutional issue raised there was whether the denial of a station license for engaging in certain network practices was a denial of free speech. Moreover, in the earlier case of FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 475, 60 S.Ct. ' 693, 697, 84 L.Ed. 869 (1940), the Supreme Court said: “[T]he Act does not essay to regulate the business of the licensee. The Commission is given no supervisory control of the programs, of business management or of policy.”
. Illustrative of the Commission’s argument on this point is the assertion in its brief that “repeal of the Communications Act would still create chaos.”
. In 1967 there were 6,253 commercial radio and television stations broadcasting as opposed to 1,754 daily newspapers. U. S. Bureau op the Census, Statistical Abstract op the United States : 1967, nos. 737, 746 (88th ed.)
. RTNDA has provided us with the following chart illustrating this point:
Standard Metropolitan Daily Broadcasting Stations
Statistical Areas Newspapers on the Air — AM-FM-TV
Chicago 13 86
Milwaukee 3 32
Indianapolis 9 29
Peoria 2 11
Madison 2 15
Champaign-Urbana 2 12
Green Bay 1 8
(Source: U. S. Bureau of the Census, County and City Data Booh 1967 636, 637, 672 (Statistical Abstract Supp.) ; Editor and Publisher International Year Book — 1967; Television Digest, Inc., Television Faetbook (Stations Vol., 1967 ed.); Broadcasting Publications, Inc., 1967 Yearbook Issue.)
. Robinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulations, 52 Minn.L.Rev. 67, 152 (1967). Professor Robinson’s article, an insightful and, at times, critical analysis of the Commission’s regulatory activities, was written after the decision in Red Lion.
. The Supreme Court has expressed the view on occasion that in determining the applicability of first amendment safeguards there is no basis for distinguishing among the various communication media. United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260 (1948); Lovell v. City of Griffin, 303 U.S. 444, 452, 58 S.Ct. 666, 82 L.Ed. 949 (1938).
. The Commission’s announced intention to enforce its rules selectively is no substitute for rules narrowly drawn to deal
. The sanctions available to the Commission under 47 U.S.C. §§ 312, 503(b) require willful or repeated violations by a licensee. The sanctions available under 47 U.S.C. § 502 require a willful and knowing violation by a licensee.