NATIONAL BROADCASTING CO., INC. v. F. C. C

[171] LEVENTHAL, Circuit Judge, supplemental concurring statement:

I append a concurring statement in which I speak for myself, even though I have authored the opinion for the court, because I find that this device, which I have used in other cases, gives reasonable latitude to offer comments that occurred to me in the course of my researches and reflections on the subject under consideration, but which for one reason or another are not appropriate for the opinion of the court.

A judge confronted with a problem like this one has a natural tendency, born of his years of lawyering and judging, to try to strike a middle ground between the antagonists — here, between NBC and AIM.

The Commission's recognition of latitude to NBC as to how to give access to an opposing viewpoint tempts a judge to be swayed by the submission of Commission counsel that the "cost of presenting an opposition spokesman should be minimal."

It is doubtless tempting not only to the judge but to counsel for a licensee — particularly if the problem should arise not for a network but as to a station owner — to say: "See if you can't run something that will satisfy the government officials."

What is overlooked is the stultifying burden on journalism. Even the monetary burden is not inconsequential, as the record indicates, and it is no answer to say that the license is profitable, because the problem is that the incremental burden will lead a licensee to acquiesce in the Government's instruction as to what he should broadcast. More important, however, is the unquantified burden, the bureaucrat peeking over the journalist's shoulder.

In the context of the fairness doctrine, the twin principles of latitude for the licensee and narrow review for the Federal Communications Commission merit special vigilance when the question is whether the "issue" in a program of investigative reporting is one of evils described or a broad subject canvassed, because government latitude to redefine the issue enfleshes the specter of a subtle and self-serving government censorship impeding the ventilation of abuses.

While journalists on the public airwaves are subject to fairness doctrine responsibilities, the risks of government interference are so oppressive as to require a plain showing of journalistic abuse before a government official can issue a direction that the journalist's report must be supplemented with a codicil. The danger of intrusion on journalistic discretion is no less real and profound because it rests, at base, in the spirit, in the way men carry on their functions. Journalism in America has had its evils and abuses, but in the large they are outweighed by its achievements in liberating the questioning mind and spirit. The public interest pulses in the investigative reporting that depicts whatever evils are seen wherever they are seen, and asks provocative questions.

Journalists may be stifled if they are steered from the way in which their profession looks at things, and channeled to another way, which however congenial to men of the law, dampens the investigative spirit.

The major item in the diet of the press is controversy and confrontation. Lawyers are usually working to compose and accommodate differences. The press must try to make simple that which in fact is complex and to suppress factual detail in favor of the emotional jugular. The lawyers pull exactly the other way.

The First Amendment freedoms established in the interest of an informed citizenry "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, 361 U.S. 516, 523, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960).

[283] FAHY, Senior Circuit Judge:

On September 27, 1974, this division of the court, Judge Tamm dissenting, remanded this case to the Federal Communications Commission to vacate its order of December 3, 1973. The order grew out of proceedings before the Commission initiated by the public interest organization Accuracy in Media, Inc. (AIM). It had filed a complaint with the Commission that the National Broadcasting Company, Inc. (NBC) by its broadcast on September 12, 1972, of a documentary entitled "Pensions: The Broken Promise" had presented a one-sided picture of private pension plans. The Commission's Memorandum Opinion and Order affirmed the findings of its staff that NBC should afford a reasonable opportunity in its over-all programming for the public to be informed of the opinions of groups or individual spokesmen opposed to the viewpoint that the private pension system has performed poorly and should be regulated. The decision rested upon the Fairness Doctrine. NBC was ordered to submit a statement within 20 days indicating how it intended to fulfill its "fairness doctrine obligations."

NBC petitioned the court for review and for a stay. The panel granted the stay and, in an opinion disagreeing with the Commission that by the broadcast NBC had violated the Fairness Doctrine, remanded the case as we have noted, the Commission's order to be vacated.

Prior to issuance of the panel's mandate the court en banc, on the suggestion of AIM filed October 29, 1974, ordered the case to be reheard en banc. Thereupon, in accordance with usual practice, the en banc court vacated the opinions and judgment of the panel, but continued the stay in effect. With the case in this posture the Commission on March 6, 1975, suggested to the en banc court that the case was moot. The Commission pointed out, as it had previously stated in its brief before the en banc court, "NBC is no longer under any duty to comply" with the order of December 3, 1973, because "that order contemplated compliance prior to enactment of pension reform legislation." The Commission continued,

Thus, an order of this court affirming the Commission will not result in the broadcast of additional views on the pensions issue. Similarly, an order reversing the Commission will not relieve NBC of any obligation to air additional material. Neither of the original adversaries in this dispute (NBC and AIM) nor the Commission stands to gain or lose by this Court's resolution of the case.

The Commission requested the court to remand the case to enable the Commission to vacate its order of December 3, 1973, as moot.

NBC, on March 13, 1975, opposed the suggestion of mootness, pointing out that in the decision of September 27, 1974, the panel had held that the enactment of the Employee Retirement Income Security Act of 1974, had not mooted the case, and also that the controversy remained alive as involving two distinct, if related, issues:

the overall performance of the private pension system and the need for governmental regulation of all private pension plans. (Emphasis added by NBC in thus quoting from the Commission's opinion.)

NBC also relied upon the "important and recurring controversy" category as defined by decisions of the Supreme Court and of this court.

On March 18, 1875, in light of the representations of the Commission, the en banc court vacated its order of December 13, 1974, granting rehearing en banc, reinstated the panel's opinions and judgment, and ordered that the suggestion of mootness and all responsive pleadings filed with respect thereto be referred to the panel for consideration. The case is now before the original panel pursuant to that order.

Memoranda have been filed by NBC, Amicus Curiae Columbia Broadcasting System, Inc. (CBS), and Intervenor AIM, all opposing the suggestion of mootness. The position of NBC has been noted above.

AIM supports the views of NBC and also contends that the suggestion of mootness is a disservice to licensees, the public and the Commission, reflecting a discouraging reluctance by the Commission to resolve the pivotal questions that are at the heart of effective regulation. AIM urges also that if one were to assume that the narrow factual controversy has somehow been resolved by the new legislation, the court properly may exercise discretion to decide the question of public interest, stated to relate "to the manner in which the Fairness Doctrine is to apply to `investigative journalism' and the standards for assessing Commission review of broadcast journalists."

In response to the views of AIM and NBC opposing mootness the Commission disputes the "two-issue" arguments raised by them. It characterizes its decision as dealing with a single issue: "the issue of the overall performance and proposed regulation of the private pension system," language used in its Memorandum Opinion and Order. The Commission states that its decision "was rendered under the circumstance and in consideration of the existence of both aspects of the issue," and not as though they were separate issues.

CBS emphasizes, in its opposition, that the mootness question turns upon,

whether the matter which the Commission originally identified as "the controversial issue of public importance" treated in the broadcast has, by virtue of the intervening passage of legislation, ceased to be the controversial issue it was originally perceived to be.

CBS asserts it has not. The Commission responds,

The Commission had before it a fact situation which involved both parts of the issue and it is clear that its decision was based upon the existence of both.

The question, the Commission urges, "must be resolved in the context of the absence of facts material to the Commission's decision."

For reasons now to be stated I agree to remand the case to the Commission to vacate its order of December 3, 1973, and to dismiss the Fairness Doctrine complaint. At the same time I agree to vacate the panel's judgment of September 27, 1974, since the order to which it was directed is to be vacated.

It cannot reasonably be disputed that the situation has materially changed since the Commission's decision and order of December 3, 1973, and, also, since this panel's decision and order of September 27, 1974. Moreover, largely to avoid the question of mootness which NBC suggested might be raised were it required to comply with the order of the Commission pending its review, we stayed the order between the two dates, and on the latter date reversed the Commission on the merits. NBC accordingly has never been required to comply with the order of the Commission. Between the two dates, on September 2, 1974, legislation regulating private pension plans was signed by the President, thus in large part, if not entirely, undermining the reason the Commission had ordered NBC to meet what the Commission considered NBC's obligation under the Fairness Doctrine, namely, to have the other side of the issue publicly aired as it might enlighten and influence the public and the legislative process. Positing this changed situation the Commission contends that "Any decision on the merits at this point would be an abstract ruling" and that compliance with its order would be "meaningless". While continuing to adhere to the position that when it decided the case it did so correctly, the Commission no longer seeks enforcement of its order.

Thus the Commission would have the decisional quality of its order removed by allowing it to be vacated, with the result that the ruling against NBC would be erased as it were, although the reasons given for it by the Commission, and the views advanced in the opinions of Judge Leventhal for the majority of the panel and of Judge Tamm in dissent would remain for their influence in the development of the law.

The Commission seeks the remand on the theory of mootness. It is clear, however, that this theory is simply the medium advanced by the Commission to enable the case to be ended without a definitive decision on the merits. The essence of the matter is that the Commission seeks permission to vacate its order.

There resides in the court a discretion to grant the permission, whether or not some peripheral aspects of the case may reasonably be considered to remain alive. Certainly the intellectual and legal points of view regarding the controversy aroused by the broadcast do not of themselves amount to an Article III controversy. Certainly, also, I think, the recurrence category under which a controversy is kept alive is not a compelling reason for holding that this case must continue as such a controversy, for it is almost if not entirely certain that any recurrence which might be envisaged would be in circumstances so different factually from the present that the differences would materially color the legal problems then to be decided. And if it be assumed, arguendo, that the other side of private pension plans has a reasonable complaint that its views were not fairly presented in the NBC broadcast, it is true also that the Commission has a reasonable position that its decision and order would not have been made because of that alone, and apart from the legislative situation.

In the changed situation which has arisen — due to the stay of the Commission's order, the enactment of the new regulatory legislation before the order could be complied with, and, therefore, the failure of the proceedings to accomplish their main purpose — there resides authority in the court to respect the Commission's desire to vacate its order. The main purpose of the order cannot now be satisfied. The understandable desire of NBC that our majority decision remain effective is not a legal right to bind the Commission to an order which this panel considers should never have been entered, which our stay relieved NBC of the obligation of complying with, and which the Commission itself desires now to vacate because of changed circumstances. Nor do the important interests represented by intervenor AIM constitute a legal barrier to the grant by the court of the Commission's request, based as it is on developments which have drained the objective of the Commission, sought by AIM, of its major substance. Amicus Curiae CBS has no greater right than AIM.

The equity powers of a court in reviewing an agency order enable the court to "adjust its relief to the exigencies of the case in accordance with the equitable principles governing judicial action." Ford Motor Co. v. Labor Board, 305 U.S. 364, 373, 59 S.Ct. 301, 307, 83 L.Ed. 221 (1939). Application of these equitable principles in different circumstances is illustrated by Mobil Oil Corp. v. F.P.C., 417 U.S. 283, at 311, 94 S.Ct. 2328, 41 L.Ed.2d 72 (1974), and Burlington Truck Lines v. United States, 371 U.S. 156, at 172, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962); Indiana Michigan Electric Co. v. F.P.C., 163 U.S.App.D.C. 334, 502 F.2d 336, at 346 (1974); Sindicato Puertorriqueno de Trabajadores v. Hodgson, 145 U.S.App.D.C. 238, 448 F.2d 1161, at 1170 (1971); American Importers Association v. C.A.B., 154 U.S.App.D.C. 38, 473 F.2d 168, at 173 (1972).

The equitable principles embodied in the relationship between agency and reviewing court, utilized under a judicially controlled discretion, I think enables this panel to grant the Commission permission to vacate its order even though on remand for that purpose no other proceedings are to be had by the Commission in this matter. Surely in Ford the remand would not have been denied had the Board represented it intended to vacate its order and take no further action against the Ford Company. It is true that in Ford the Circuit Court had not passed upon the validity of the order of the Board before the motion to remand was made. This factual difference between Ford and our case while not insignificant is not controlling. The Commission is not being allowed to wipe the slate clean in order to escape the consequence of an adverse judicial decision. To allow it to do so would be to abuse both the administrative and the judicial functions. As the Supreme Court said in Ford, "we are unable to conclude that the Board has an absolute right to withdraw its petition at its pleasure." 305 U.S. at 370, 59 S.Ct. at 305. But the discretion to permit the withdrawal was held to reside in the Court. Such discretion would not seem to be rendered unavailable by the circumstance here that an adverse decision of the panel, subject to further judicial scrutiny, has been rendered on the merits. Developments other than the decision of the panel have intervened to animate a controlled discretion to permit the litigation to be ended. The Commission I think acts in good faith and is well justified in its position that intervening events have drained the controversy of much if not all of its substance, so that the Commission's hope and purpose of vindicating the Fairness Doctrine cannot be achieved in this case, with the consequence that the reality of the present situation would best be served by permitting the Commission to vacate its order.

[305] TAMM, Circuit Judge:

I must conclude that the controversy concerning the Pensions program has been mooted by subsequent events. Consequently, I support the order vacating the prior judgment and remanding the case to the Commission to dismiss the fairness doctrine complaint.

The Commission argues that the enactment by Congress of pension reform legislation has mooted the case and that even if its position on the merits were vindicated, it would no longer order NBC to discharge its fairness doctrine obligations. Undeniably, the need for legislation was not the only controversial issue identified in the Pensions program, the Commission also asserted that the current overall performance of the private pension system was such an issue. Accuracy in Media, 44 F.C.C.2d 1027, 1039 (1973). However, the context of that latter determination must be understood. As NBC concedes, the idea for the program was principally generated by Senate hearings and reports detailing abuses in the pension industry and calling for reform. J.A. 24, 124. The NBC crew was in contact with the relevant Senate staff, the show was broadcast the week of the reports' release, and the program was seized upon by reform leaders as further evidence of the need for legislation. Id. at 24.

Since the controversial nature of the performance of the pension system was inexorably intertwined with the controversial issue of the need for legislation, resolution of the latter question must have a significant impact on the controversial nature of the former. In essence, while passage of the legislation does not eliminate the possibility of inquiry into pension performance, it does transform what may have been a controversial issue into merely a newsworthy one. See Healey v. FCC, 148 U.S.App.D.C. 409, 460 F.2d 917, 922 (1972). In such circumstances, it would be unrealistic for the Commission to continue to press for further programming on the issue.

It is axiomatic that in federal jurisdiction, an actual controversy must exist at all stages of appellate review, not simply at the date the action is initiated. See DeFunis v. Odegaard, 416 U.S. 312, 319, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974). Here, the Commission's position has destroyed the adverseness between the parties required for the exercise of Article III jurisdiction. Moreover, since events have eliminated the possibility of relief, dismissal is the appropriate remedy. See Alton So. Railway Co. v. International Ass'n of Machinists and Aerospace Workers, 150 U.S.App.D.C. 36, 463 F.2d 872 (1972).

In its September 27th opinion, the majority briefly considered the mootness issue. Upon reflection, I find all the arguments against mootness, advanced either in the September 27th opinion or today, unpersuasive. The argument that legislation is always subject to reconsideration is little more than specious; by this line of reasoning, the passage of legislation could never end a dispute because the legislature might in the future rescind it. Second, the principle of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515-16, 31 S.Ct. 279, 55 L.Ed. 310 (1911) is certainly not applicable. While the controversy is undoubtedly capable of repetition, I doubt whether it will continue to evade review. If the history of this country tells us anything, it is that not all controversial issues will be expeditiously resolved by congressional action. Finally, although the majority opinion may be used to explain why two members of the division voted to maintain a stay, that does not give us license to effectuate a judgment in a case that is moot.

Judge Leventhal, in his first new argument today, maintains that the case is not moot because NBC has "continuing contacts" with the Commission. This new "continuing contacts" test seems to be little more than one-half of the Southern Pacific Terminal test discussed above; specifically, since NBC maintains "continuing contact with the Commission," the controversy is capable of repetition and therefore should be adjudicated. However, that the controversy before us is capable of repetition does not mandate invoking an exception to the mootness doctrine; to avoid a finding of mootness the moving party must also demonstrate that the issue involved evades review. There has been no such showing in this case.

The cases on which Judge Leventhal relies do not stand for the proposition that a case remains "live" because the parties to the controversy will in the future have "contact" with each other. In the two class action cases cited by Judge Leventhal, Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), and Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974), members of the class had, at all times, an actual controversy with the state officials involved, even though the named plaintiffs no longer had such controversies. In the case sub judice, NBC, the only party adversely affected by the Commission's decision, no longer has an actual controversy with the Commission. Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) is similarly unsupported of Judge Leventhal's position. In Super Tire, the plaintiffs sought declaratory and injunctive relief on the ground that the receipt of public welfare benefits by striking employees was an invalid interference with national labor policy. Although the strike that precipitated that suit was settled before an adjudication of the merits, the Supreme Court concluded that an actual controversy existed for two reasons. First, the Court noted that the plaintiffs were seeking declaratory, as well as injunctive relief:

Clearly, the District Court had "the duty to decide the appropriateness and the merits of the declaratory request irrespective of its conclusions as to the propriety of the issuance of the injunction." Thus, even though the case for an injunction dissolved with the subsequent settlement of the strike and the strikers' return to work, the parties to the principle controversy, that is, the corporate petitioners and the New Jersey officials, may still retain sufficient interests and injury as to justify the award of declaratory relief.

Id. at 121-22, 94 S.Ct. at 1698 (citations omitted). Moreover, the Court stated that the case fell within the purview of the Southern Pacific Terminal principle: "If we were to condition our review on the existence of an economic strike, this case most certainly would be of the type presenting an issue `capable of repetition, yet evading review.'" Id. at 125, 94 S.Ct. at 1700. However, the case before us is not one for declaratory relief and does not raise the unique issues present in a declaratory judgment context, nor does it present issues "capable of repetition, yet evading review." In short, Super Tire does not explain either directly or analogously why the case sub judice is not moot.

Judge Leventhal's second new argument, the existence of so-called "collateral consequences", is unavailing. Since the court has today ordered the Commission to dismiss the fairness doctrine complaint against NBC, it cannot be used adversely at license renewal time. Moreover, any "chill" that Judge Leventhal perceives stems from a gross misinterpretation of the Commission's opinion and the fairness doctrine itself, which will be discussed later. In short, I support the court's order for I believe that the case is moot.

Despite the conclusion we reach today, circumstances peculiar to this case compel me to supplement my previously expressed views. Since I cast the only vote on jurisdictional grounds, this undertaking, notwithstanding Judge Leventhal's astonishment, is far from unprecedented. See, e. g., Chambers v. Maroney, 399 U.S. 42, 54-55, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (Stewart, J., concurring); Evans v. Newton, 382 U.S. 296, 315-16, 86 S.Ct. 486, 15 L.Ed.2d 373 (1969) (Harlan, J., dissenting). First, it would be less than candid not to take note of the exceptional interest and attention that has been paid this case; it is an important case simply because it has been regarded as one. Both affirming or overruling the Commission has been viewed as having a "chilling effect," either on the Commission's enforcement of the fairness doctrine or on the broadcasters' continued discharge of their journalistic responsibilities; in this atmosphere, I believe I should set out my views with more particularity. Moreover, I also feel a responsibility to express my views in more detail in light of the exceptional procedural circumstances surrounding this case; the eleventh hour suggestion of mootness has been sufficient to drain the case of its "exceptional importance" which prompted the original decision to rehear the case en banc. Finally, I am convinced that the majority opinion represented such a severe departure from existing fairness doctrine jurisprudence that it demands extended scrutiny.

The question before this court has been the correctness of the Commission's December 3, 1973 decision. There are several reasons why I did not join, nor can I now endorse, the majority's September 27, 1974 reversal of that decision. My first source of disagreement is my firm belief that the majority either mischaracterized or misperceived the thrust and holding of the Commission's decision. While, as I shall demonstrate, the majority compounded its error by applying to this distorted perception an incorrect standard of review and a tortured interpretation of the fairness doctrine, much of the majority's error stemmed from this defective factual foundation.

No one disputes that the Commission must not overturn a licensee's determination unless the licensee acted in bad faith or was unreasonable. The majority accused the Commission of making a "mistake of law" by departing from that standard. 170 U.S.App.D.C. ___, 516 F.2d 1118. It focused with microscopic precision on the following sentence in the Commission's opinion:

The specific question properly before us here is therefore not whether NBC may reasonably say that the broad, overall "subject" of the "Pensions" program was "some problems in some pension plans," but rather whether the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system. [emphasis added.]

Id.; see 44 FCC 2d at 1035. The majority then concluded:

Thus the Commission ruled that even though NBC was reasonable in saying that the subject of "Pensions" program was "some problem in some pension plans," in determining that this was the essential subject of the program, its dominant force and thrust, nevertheless NBC had violated its obligation as a licensee, because the Commission reached a different conclusion, that the program had the effect "in fact" of presenting only one side of a different subject.

170 U.S.App.D.C. ___, 516 F.2d 1118. Later in its opinion, the majority attempted to buttress its characterization of the Commission's "erroneous" holding by asserting that "[t]he staff's ruling that NBC was unreasonable in this judgment [the proper standard] was not sustained by the Commission." Id. 170 U.S.App.D.C. ___, 516 F.2d 1125-1126.

In fact, the Commission never overruled NBC's characterization of the program's theme while conceding that the characterization was reasonable. Moreover, it is patently incorrect that the Commission failed to sustain its staff's crucial ruling. Finally in contrast to the majority's myopic embrace of a single quoted-out-of-context sentence as demonstrating both the Commission's holding and error, a fair reading of the Commission's entire opinion reveals that the Commission applied the proper standard and found NBC's characterization of the subject of the program to be unreasonable.

Apparently, the majority found its mistake of law in the sentence set out above. Concededly that sentence is prone to the majority's inference, but only if read in a vacuum as the majority was content to do. In the same paragraph of its opinion, the Commission clearly stated that its role was "to determine whether the licensee can be said to have acted reasonably . . . ." 44 FCC 2d at 1034, quoting Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 FCC at 599. In performing that role and rejecting NBC's characterization as unreasonable, the Commission found:

it would be an unrealistic oversimplification to characterize the program as one addressing only "some problems of some pension plans." The program did examine such problems, but it would strain the most " permissive standard of reasonableness" past the breaking point to imply that the program was confined to such a limited examination.

44 FCC 2d at 1040 (emphasis added). To base reversal on that one sentence would be simply blinking reality.

Similarly, the Commission never overruled its staff's finding of unreasonableness, for it explicitly held:

The basic issue thus presented by the Application for Review is whether the [staff] erred in its ruling that NBC's judgment on these matters was unreasonable. For the reasons which follow, we affirm the [staff's] ruling.

Id. at 1034. Further, the Commission ruled that:

we cannot accept as reasonable a judgment that the "Pensions" program did not present views advocating one side of a controversial issue a public importance within the meaning of the fairness doctrine, that issue being the overall performance of the private pension system and the need for governmental regulation of all private pension plans.

Id. at 1039.

In sum, the majority proceeded to its conclusion armed with a complete misperception of the decision we were called upon to review. If that alone did not produce the error of its ultimate holding, the majority exacerbated its difficulties by applying woefully inappropriate legal standards of review.

Without adequate justification, the majority refused to follow decades of consistent application of the standards used by courts to review determinations of administrative agencies. The function of the reviewing court has been and still is to ensure that the agency's determination is supported by substantial evidence, that the agency has not exceeded its powers, and that it has engaged in reasoned decision making. See, e. g., Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968); Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841 (1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). No person had more forcefully articulated the court's limited role in reviewing agency determinations than Judge Leventhal. In WAIT Radio v. FCC, 135 U.S.App.D.C. 317, 418 F.2d 1153, 1156 (1969), he recognized:

Of course busy agency staffs are not expected to dot "i's" and cross "t's." Our decisions recognize the presumption of regularity. We adhere to "salutary principles of judicial restraint." Courts are indulgent toward administrative action to the extent of affirming an order where the agency's path can be "discerned" even if the opinion "leaves much to be desired."

(citations omitted).

The majority reaffirmed the court's limited role when the Commission upholds a licensee's actions against a fairness doctrine challenge. However, the majority then departed from its proper role and held that where the Commission determines that the licensee has not discharged its fairness doctrine obligations, a stricter standard of review must be applied "because the area is suffused with First Amendment Freedoms . . . ." 170 U.S.App.D.C. ___, 516 F.2d 1122. Citing a phrase from the opinion I authored in Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 473 F.2d 16 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973), the majority concluded that the court must take a "hard look" at the case. See id. 170 U.S.App.D.C. ___, 516 F.2d 1122. I can find no justification in reasoning or in precedent for a new and unwarranted "hard look" standard of judicial review.

The scope of our review is limited here to established standards; Congress had delegated the function of regulating the broadcast industry to the Commission, not to this court. Specifically, the Supreme Court in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379, 89 S.Ct. 1794, 1801, 23 L.Ed.2d 371 (1969), emphasized that the Commission is invested with the power to promulgate rules and regulations as the "public convenience, interest, or necessity requires," and that "[t]his mandate to the FCC to assure that broadcasters operate in the public interest is a broad one, a power `not niggardly but expansive.'" Moreover, in Columbia Broadcasting System v. Democratic National Committee, the Court stated:

Balancing the various First Amendment interests involved in the broadcast media and determining what best serves the public's right to be informed is a task of great delicacy and difficulty. The process must necessarily be undertaken within the framework of the regulatory scheme that has evolved over the course of the past half century. For, during that time, Congress and its chosen regulatory agency have established a delicately balanced system of regulation intended to serve the interests of all concerned. . . .

Thus, in evaluating the First Amendment claims of respondents, we must afford great weight to the decisions of Congress and the experience of the Commission.

412 U.S. 94, 102, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973). The more stringent standard of review to which the majority gave birth utterly ignored congressional judgments and Supreme Court precedent, and failed to give any weight, let alone great weight, to the "experience of the Commission."

Not only do I question the majority's departure from established standards of judicial review, but I also challenge the standard that the majority applied. The majority maintained that the court must take a "hard look" at this ruling because of the first amendment implications, and that this doctrine was allegedly made a part of our jurisprudence by Brandy-wine-Main Line Radio, Inc. v. FCC, supra. I do not agree. The "hard look" doctrine was not used in Brandywine to justify a stricter standard of review of Commission findings. Before the case sub judice, I knew of no other that had used the hard look doctrine as a rule of judicial review. Heretofore, "hard look" has been used as a shorthand designation for the requirement that an agency engage in reasoned decision making. See, e. g., Greater Boston Television Corp. v. FCC, supra, 444 F.2d at 850-52. Since a court must always diligently examine the record to determine whether the agency's determinations are supported by substantial evidence, stating that we must take a "hard look" at the Commission's actions is mere surplusage. Moreover, when I stated in Brandywine that we must take a hard look at the case, I was referring to the contention that the Commission's decision was unconstitutional; after a careful scrutiny of first amendment precedent I concluded that the Commission's decision fully respected first amendment principles. Unlike my Brandywine opinion, the majority opinion, eschewed the need to decide the first amendment challenge to the fairness doctrine. 170 U.S.App.D.C. ___, 516 F.2d 1109. In short, the majority did not offer any reasoned explanation for departing from the normal standard for judicial review of agency action.

Accoutered with an interpretation of the Commission's opinion so misguided that it strained credulity, and a profoundly incorrect legal standard, the majority proceeded to substitute its own judgment for that of the Commission concerning the content of NBC's program and the reasonableness of NBC's position. Although the majority opinion was replete with disclaimers such as "the court is not given carte blanche or an authority to interpolate its own discretion or judgment as to what should be done by the agency . . .", 170 U.S.App.D.C. ___, 516 F.2d at 1122, the majority's actions belied its words. An examination of part VI of the majority opinion illustrates that the majority substituted its own view of the record by applying a methodology for analyzing the content of the program and the licensee's judgment as to whether a controversial issue of public importance was raised that was fraught with error. In so doing, the majority rejected the Commission's approach, the agency Congress designated to regulate the broadcast industry, without ever concluding that it was arbitrary, capricious, or otherwise an abuse of the agency's discretion.

The majority's first error was its uncritical acceptance of snippets of reviews selected by NBC to support NBC's conclusion that no controversial, issue of public importance had been presented. Id. 170 U.S.App.D.C. ___, 516 F.2d 1125-1127. The Commission refused to consider the reviews as "substantial factors" because:

Such brief and general one-line summaries provide no information as to what particular views on the subject of pensions may have been presented in the one-hour documentary, and hence are of little value in determining the applicability of the fairness doctrine and the validity of the arguments of the parties with respect to the actual substance of the program.

44 FCC 2d at 1035 n. 4. This statement indicates a healthy skepticism toward placing too much reliance on excerpts prepared by the licensee from longer reviews both with regard to the description of the program itself and the valid inferences that reasonably could be drawn from it. However, without any concern for the potential deficiencies inherent in such exhibits, the majority afforded them significant probative value.

The majority's second error lay in its selection of isolated adverse and favorable comments concerning the overall performance of the pension system without considering the impact of the entire program. The majority claimed that throughout the entire show only a "handful" of comments on the overall functioning of the pension system were made, and maintained that some of these comments were favorable, thereby giving the program reasonable balance. However, the impact of these comments cannot be considered in isolation, but must be viewed as a whole. For example, the majority cited the following excerpt as a specific reference to a good pension plan:

NEWMAN: . . . [I]n most respects, the pension programs run by the Chicago teamsters union locals are among the best. Benefits are generous and a teamster can retire as early as age fifty-seven.

170 U.S.App.D.C. ___, 516 F.2d 1130. However, when this comment is read in the context of the entire program, it appears to be part of an attack on the entire system. Noting that the Chicago plan is among the best, the serious problems with the plan are then considered in great detail, covering three pages in the appendix. 170 U.S.App.D.C. ___, 516 F.2d 1139-1141. I do not understand how the majority could characterize this comment as favorable, when the so-called "best" plan was subjected to severe criticism, thus implying that others were even worse. To isolate these comments from the program as a whole and attempt to label them as favorable or unfavorable was not only poor methodology, but disingenuous.

Equally troubling as the majority's significant methodological errors is the fact that it chose to test the program on a statement-by-statement basis without ever holding that the Commission's approach was arbitrary, capricious, or an abuse of discretion. In National Broadcasting Co., 25 FCC 2d 735 (1970), the Commission, ruling in favor of the licensee on another fairness doctrine complaint, recognized that the reasonableness and good faith of the licensee's judgment can only be discerned by viewing the impact of the program as a whole. The Commission reaffirmed its method of analysis in the case sub judice:

Our conclusion is not based upon a singling out, "line-by-line" or "statement-by-statement," of isolated expressions of viewpoints, a procedure we rejected in National Broadcasting Co., 25 FCC 2d 735 (1970). Rather it appears to us to be the only conclusion which can be drawn upon review of the program in its entirety, and one which could be avoided only by ignoring a significant and substantial part of the material presented.

44 FCC 2d at 1040. I have searched the majority opinion in vain for a holding that the Commission's method of analysis was arbitrary or other reasons for not adopting it. There are none; to reach its holding the majority totally supplanted its view of the record for that of the Commission without ever explaining the Commission's error.

By so doing, the majority failed to heed or even to acknowledge the doctrine first enunciated in Red Lion and reiterated in CBS involving the guiding standards when considering an application of the fairness doctrine:

And here this principle is given special force by the equally venerable principle that the construction of a statute by those charged with its execution should be followed unless there are compelling indications that it is wrong, especially when Congress has refused to alter the administrative construction. Here, Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation.

Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 381-82, 89 S.Ct. at 1802 (footnotes omitted); see Columbia Broadcasting System, Inc. v. Democratic National Committee, supra, 412 U.S. at 121, 93 S.Ct. 2080.

I have been unable to discover any compelling indications that the Commission was wrong in determining that viewed as a whole the Pensions program imposed upon NBC a fairness obligation that it had not discharged, nor can I find any recognition in the majority opinion of this command by the Supreme Court.

Finally, I can find no justification for the de novo review of the record that the majority undertook. The majority never claimed that the Commission's conclusions were unsupported by substantial evidence or were otherwise inadequate. The entire course taken by the majority was predicated upon its holding that the Commission applied an improper legal test. Even if the majority were correct — which I dispute — the proper disposition of the case would have been to remand it to the Commission to make new findings given the proper legal standard. The majority's decision to review the record de novo failed to accord proper deference to the expertise of the Commission, see Columbia Broadcasting System v. Democratic National Committee, supra, 412 U.S. at 102, 93 S.Ct. 2080, and is compelling evidence that the majority simply substituted its own judgment for that of the Commission.

I have strained to find a reasoned explanation for the majority's tortured reading of the Commission's opinion, its departure from established standards of appellate review, and its failure to remand the case to the Commission under what the majority considered to be appropriate legal principles. Of course, if the majority's point was merely that the Commission did not adhere to the test of reasonableness, then such an elaborate opinion would have been unnecessary. I must conclude that the majority's rationale of Commission error was a ploy to stalk bigger game. Unfortunately, only one reason explicates the majority's action — an obvious antipathy to the fairness doctrine suggesting that, given a free hand, it would have struck down the doctrine as unconstitutional. However, since the Supreme Court unanimously upheld the fairness doctrine in Red Lion Broadcasting Co. v. FCC, supra, the majority could not do so directly, and thus, did so indirectly. It so limited the doctrine that, as a practical matter, the licensee's obligation of fairness would have been a dead letter. I believe that the majority prematurely attempted to lay the doctrine to rest because of fears that it infringes upon broadcast journalists' first amendment rights and inhibits their expression and creativity. The majority misunderstood the fairness doctrine and attempted to destroy it from ignorance. Had the majority properly viewed the role of the doctrine, its fears would have been assuaged, and it would not have reached its holding.

The role of the fairness doctrine cannot be understood without a brief consideration of the precepts and circumstances which led to its creation. Fundamental is the recognition that the electromagnetic spectrum which broadcast licensees use to transport their message is not the private property of any individual or group; rather, it is a public resource in which every citizen has an interest. Almost from the infancy of broadcasting, the government has been forced to play the role of umpire or arbiter in determining who will be permitted use of the spectrum. Because the number of persons who wished to broadcast their message far exceeded the capacity of the spectrum:

It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.

Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 376, 89 S.Ct. at 1799; see National Broadcasting Co. v. United States, 319 U.S. 190, 210-14, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Thus, the government's role is that of trustee of the public's interest in this critically important resource, and when the government authorizes private parties to broadcast on a frequency within the spectrum, the parties are invested with the public's interest. In sum, as this court has made clear,

[b]y whatever name or classification, broadcasters are temporary permittees — fiduciaries — of a great public resource and they must meet the highest standards which are embraced in the public interest concept. The Fairness Doctrine plays a very large role in assuring the public resource granted to licensees at no cost will be used in the public interest.

Office of Commun. of United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543, 548 (1969).

From the start, the first amendment rights of licensees have been specifically recognized by Congress in the Federal Communications Act, and by the courts. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). However, these rights are not absolute. "There is noting in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." Red Lion, supra, 395 U.S. at 389, 89 S.Ct. at 1806. In the final analysis, "[i]t is the right of the viewers and listeners, not the broadcasters, which is paramount." Id. at 390, 89 S.Ct. at 1806.

Properly understood, the fairness doctrine is a balancing influence between the public's right of access to the broadcast media and the right of licensees to transmit their own message. It is a compromise designed to enhance first amendment rights rather than to detract from them. This notion is implicit in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the first Supreme Court test of the constitutionality of the fairness doctrine. At issue in Red Lion were the Commission's personal attack and political editorializing rules, see 170 U.S.App.D.C. ___, 516 F.2d 1111, corollaries of the licensee's fairness obligation. The Court not only upheld the constitutionality of these rules, but also adopted the premise on which the general fairness obligation is based — that the scarcity of frequencies requires the licensee to devote some of its broadcast time to the messages of others.

The importance of the fairness doctrine was made explicit by the recent case of Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), in which the Court upheld a licensee's refusal to accept paid editorial advertising. Reversing this court's conclusion that the first amendment gave a limited right of access to responsible members of the public, the Supreme Court concluded that such a limited right of access was not mandated by the first amendment because the fairness doctrine, part of an "independent statutory obligation to provide full and fair coverage of public issues," was sufficient. Id. at 129-31, 93 S.Ct. at 2100. Thus, while recognizing the necessity for licensee discretion, the Court saw the fairness doctrine as the primary protector of the public's interest in "the widest possible dissemination of information from diverse and antagonistic sources . . ." Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 1424, 89 L.Ed. 2013 (1945).

As administered by the Commission, the fairness doctrine reflects the spirit of compromise and tension implicit in competing first amendment rights. As I shall discuss in more detail infra, the balance has been struck by affording the licensee great deference in deciding upon the mechanics to achieve fairness, see Letter to Mid-Florida Television Corp., 40 FCC 598 (1964) and then judging its exercise of that discretion by a test of good faith and reasonableness. See Fairness Doctrine Primer, 40 FCC 598 (1964). As we have noted, the fairness doctrine "nowhere requires equality but only reasonableness." Democratic National Comm. v. FCC, 148 U.S.App.D.C. 383, 460 F.2d 891, 905, cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972). The Commission has explicitly endorsed this axiom:

The fairness doctrine deals with the broader question of affording reasonable opportunity for presentation of contrasting viewpoints on controversial issues of public importance. Generally speaking, it does not apply with the precision of the "equal opportunities" requirement [the rule at issue in Red Lion]. Rather, the licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation . . . [t]here is thus room for considerably more discretion on the part of the licensee under the fairness doctrine than under the "equal opportunities" requirement.

Fairness Doctrine Primer, supra, 40 FCC at 599.

Before leaving these general considerations, I am constrained to comment upon the Supreme Court's recent decision in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), where a carefully drawn "right to reply" law — analogous to the fairness doctrine's personal attack rule — was held to be an unconstitutional infringement of freedom of the press. The majority invoked Tornillo to demonstrate the general prohibition against the Government "compelling editors to include state approved material." 170 U.S.App.D.C. ___, 516 F.2d 1110. Even more interestingly, in briefs filed in anticipation of the en banc rehearing of this case, several parties argued that despite the Supreme Court's decisions in Red Lion and CBS, Tornillo raises substantial doubts over the continuing constitutional vitality of the fairness doctrine See, e. g., CBS' Br. at 17-18; Radio Television News Directors' Br. at 9-16. In fact, petitioner opined that "the decisions appear flatly inconsistent." NBC's Br. at 13.

I cannot conclude that Tornillo has any effect on the constitutionality of the fairness doctrine; I find the decisions "flatly consistent." Arguments advanced to the contrary are only reflective of broadcasters' desires to become indistinguishable from the print media and to be freed of their obligations as public trustees. While the relevancy of Red Lion was fully briefed in Tornillo, that decision contained no reference to Red Lion or to implications for the broadcast media. I read the Court's striking down a reply rule for newspapers in Tornillo after upholding a similar rule for broadcasters in Red Lion as demonstrating the Court's continuing recognition of the distinction between the two media, which is primarily manifested in the unique responsibilities of broadcasters as public trustees. As we observed in United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 359 F.2d 994, 1003 (1966):

A broadcaster has much in common with a newspaper publisher, but he is not in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations. A newspaper can be operated at the whim or caprice of its owners; a broadcast station cannot. After nearly five decades of operation the broadcast industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty.

See also CBS v. Democratic National Comm., 412 U.S. at 111, 118, 93 S.Ct. at 2090.

Both under applicable judicial precedent and Commission administration of the fairness doctrine, the licensee is charged with primary responsibility in fulfilling the doctrine's mandate and is given broad discretion as to how best to meet that obligation. As Chief Justice Burger noted in CBS "[t]he broadcaster . . . is allowed significant journalistic discretion in deciding how best to fulfill its Fairness Doctrine obligations . . ." 412 U.S. at 111, 93 S.Ct. at 2091; "the initial and primary responsibility for fairness, balance, and objectivity lies with the licensee." Id. at 117, 93 S.Ct. at 2094. This court has endorsed time and again the primacy of the licensee's role. See, e. g., Neckritz v. FCC, 163 U.S.App.D.C. 334, 502 F.2d 411, 418 (1974); Democratic National Comm. v. FCC, 148 U.S.App.D.C. 383, 460 F.2d 891, 903, cert. denied, 409 U.S. 843, 93 S.Ct. 42 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 447 F.2d 323, 329-30 (1971). The Commission has also consistently affirmed the primacy of the licensee's role:

We firmly believe that the public's need to be informed can best be served through a system in which the individual broadcasters exercise wide journalistic discretion . . . .

Fairness Doctrine Primer, 40 FCC 598, 599 (1964); see Fairness Report, 48 FCC 2d at 8-9 (1974). The Commission recognizes that "[i]n passing on any complaint in this area, the Commission's role is not to substitute its judgment for that of the licensee as to any of the above programming decisions . . . . Id.

However, the licensee's discretion is not absolute, but "is bounded by rules designed to assure that the public interest in fairness is furthered." CBS v. Democratic National Comm., supra, 412 U.S. at 111, 93 S.Ct. at 2091. The Commission tests the exercise of the licensee's discretion under the standards of good faith and reasonableness. See, e. g., Neckritz v. FCC, supra, 502 F.2d at 418; Fairness Report, supra, at 8-9; Fairness Primer, supra, 40 FCC at 599. Thus, "the Commission acts in essence as an `overseer' . . . ." CBS v. Democratic National Comm., supra, 412 U.S. at 117, 93 S.Ct. at 2094. "Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act." Id. at 110, 93 S.Ct. at 2090. The inherent tension in protecting the public's rights while not impermissibly interfering with licensee discretion has made the Commission walk "a tightrope between saying too much and saying too little." Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082, 1095 (1968), cert. denied sub nom., Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969). As the Chief Justice recognized in CBS:

This role of the Government as an "overseer" and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic "free agent" call for a delicate balancing of competing interests. The maintenance of this balance for more than 40 years has called on both the regulators and the licensees to walk a "tightrope" to preserve the First Amendment values written into the Radio Act and its successor, the Communications Act.

412 U.S. at 117, 93 S.Ct. at 2094.

Thus, under this scheme it becomes important to delineate precisely the extent of both the licensees' discretion and the Commission's role as protector of the public interest. In the case at bar, we are concerned only with that portion of the fairness doctrine dealing with controversial issues of public importance. Since it is physically impossible to provide time for all issues and viewpoints, the right to exercise editorial judgment was granted to the broadcasters. See CBS v. Democratic National Comm., supra, 412 U.S. at 111, 93 S.Ct. 2080. Broadcasters, therefore, must make a series of reasonable judgments in good faith — as to which controversial issues to present; as to whether a program raises a controversial issue of public importance; and if so, as to the format and spokesmen to present the necessary range of viewpoints. See Fairness Primer, supra, 40 FCC at 599. As the majority emphasized, these are all editorial judgments. However, they are also judgments that broadcasters are obligated to make under their responsibilities as fiduciaries and public trustees and for which the licensees are accountable to the public's designated guardian, the Commission.

Clearly, the discretion afforded the licensee must be the greatest as to its determinations of which and how many controversial issues it presents — both to avoid censorship and intolerable infringements on broadcasters' first amendment rights. The Commission's role is consequently limited to ensuring that the licensee reasonably and in good faith devotes sufficient time to coverage of such issues. The Supreme Court has recognized this; it is the true significance of this much misapplied passage from CBS:

For better or worse, editing is what editors are for; and editing is selection and choice of material. That editors — newspaper or broadcast — can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to preserve higher values.

412 U.S. at 124-125, 93 S.Ct. at 2097 (emphasis added).

Similarly, the broadcasters' range of reasonableness to determine spokesmen and formats in providing the reasonable opportunities for contrasting views must be broad to prevent unnecessary governmental encroachment. That is clearly another teaching of CBS.

However, a different situation is presented by the question of whether a broadcast discussed a controversial issue. This is the fundamental question posed by the case sub judice, — whether petitioner by broadcasting Pensions: The Broken Promise incurred any fairness doctrine obligations at all. While the Commission must still show deference to a licensee's judgment here, recognition of the broadcaster's position as a public trustee dictates that the latitude afforded the licensee be significantly less. In no other situation must the rights of the public be more paramount than when determining whether the public may receive contrasting views on a subject. In ensuring that the licensee reasonably performs its obligation as public trustee, the Commission does not override first amendment judgments, but furthers the first amendment foundation of the fairness doctrine — the right of the public in a free society to be informed. See Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 389, 89 S.Ct. 1794; Report on Editorializing, supra, 13 FCC at 1249.

Instead of recognizing the public's compelling interest, the majority resolved this problem by standing the teaching of Red Lion on its head. In essence, the majority asserted that the licensee's determination of whether a particular program deals with a controversial issue must be upheld as reasonable unless reasonable men could not agree with the broadcaster's characterization of the program. 170 U.S.App.D.C. ___, 516 F.2d 1121. I have two criticisms of this "substantial burden" the majority placed upon the Commission. While admitting that the standards are good faith and reasonableness, the majority defined the latter so that it is indistinguishable from good faith, for certainly if no reasonable man could concur in a licensee's characterization, it could not have been advanced in good faith. My more fundamental objection is that the majority's test clearly represented an erosion of the public's right and ability to receive full information on vital issues, under the stringent test the majority expounded, controversial issues, undoubtedly would have been presented without the triggering of any fairness obligations, because this "substantial burden" places the broadcaster, not the public, on a pedestal. The majority, by worshiping at the alter of editorial judgment, attempted to strip the American people of a large part of their ability to ensure access to full, free and robust discussion of controversial issues over the airwaves.

If the majority had properly understood that the licensee's discharge of its fiduciary obligations would not pose an intolerable strain upon journalistic discretion, it would not have attempted to redefine those obligations out of existence. As I have set out above, the burden placed upon the licensee is not onerous, nor does it represent government censorship. The Commission need not force the licensee to place one minute of programming on the air; the broadcaster must realize, however, that his trusteeship will be best discharged and the public interest best served if a liberal interpretation is given to what is meant by a controversial issue. Thereafter, the licensee is accorded extensive latitude and journalistic discretion in fulfilling his obligation of reasonable opportunity. Equal time is not required nor, is unlimited access to all spokesmen. Journalistic control over views, format, and spokesmen is retained. Moreover, the licensee's ability to engage in investigative journalism and present news documentaries is not impaired. As Henry Geller, who participated as amicus curiae in this proceeding, has stated:

It is clear that an investigative program can be as hard-hitting and one-sided as the broadcast journalist wishes; the only requirement is that at some time the opposing side be given the opportunity to appear.

H. Geller, The Fairness Doctrine in Broadcasting 39 (1973).

That this perception of the fairness doctrine is realistic is buttressed by reference to the Commission's actual administration of the doctrine. For example, in fiscal year 1973, the year AIM's complaint in this case was filed, the Commission received 2,406 fairness complaints; only 94 warranted submission to the licensees for comment. Of these, only five rulings adverse to the broadcasters eventually resulted. Of the five, three involved the personal attack rule, while only two were general fairness rulings. See Fairness Doctrine and Public Interest Standards, 39 Fed.Reg. 26372, 26375, 26379 (1974). These statistics belie any impression that the Commission does not recognize its limited overseeing role or the discretion to be afforded the licensee.

In sum, when making the determination whether a particular program generates any fairness doctrine obligation, a licensee must recognize his fiduciary obligation to the paramountcy of the public interest. This case presents such a determination. Application of the proper definition of that obligation, and the Commission's role in enforcing it, leads to the inescapable conclusion that the Commission's decision in this case was correct.

NBC characterized the subject of the Pensions program as a study of "some problems of some pension plans." 44 FCC 2d at 1035. The Commission found that NBC's characterization was unreasonable:

we cannot accept as reasonable a judgment that the "Pension" program did not present views advocating one side of a controversial issue of public importance within the meaning of the fairness doctrine, that issue being the overall performance of the private pension system and the need for governmental regulation of all private pension plans.

Id. at 1039. Applying the proper standard, and granting, as we must, deference to the Commission's expertise in administering the statutory scheme, I believe that the Commission's judgment should have been affirmed.

Invoking the proper standard — judging the impact of the program as a whole, the Commission concluded that a finding that no controversial issue was presented "could be avoided only by ignoring a significant and substantial part of the material presented:"

it would be an unrealistic over-simplification to characterize the program as one addressing only "some problems of some pension plans." The program did examine such problems, but it would strain the most "permissive standard of reasonableness" past the breaking point to imply that the program was confined to such a limited examination.

Id. at 1040. The Commission found that the "overwhelming weight of the . . program supported the view that the overall performance of private pension plans was `deplorable' and that the pension system should be regulated to rectify that situation . . . ." Id. at 1041.

There appears to be substantial evidence to support these conclusions. The Commission reached its holding by carefully reviewing the transcript of the entire program. Id. at 1035. The program itself was a highly effective mix of interviews with workers who had been damaged in some way by a private pension plan, interspersed with narration and comments by various spokesmen. The unavoidable impression the program leaves is a clear sense of the inadequacy of the then-prevalent system and of the need for reform.

Perhaps the most striking evidence that the program's point was more ambitious than merely to describe "some abuses in some plans" is the title petitioner itself placed upon the program: the broadcast was entitled "Pensions: The Broken Promise," not "Pensions: Some Broken Promises" or "Pensions: Some Broken Promises." In fact, I wonder whether any dispute would exist over the existence of fairness obligations if NBC had telecast a program entitled "Pensions: The Kept Promise."

The majority, of course, did not attack the Commission's conclusions head-on, but attempted to undermine them in two ways. First, it drew extensively upon the newspaper reviews of the program, the limited probative value of which I have discussed earlier. Second, the majority detailed the function and need for latitude in investigative journalism. The majority opined that "investigative reporting has a distinctive role of uncovering and exposing abuses" which "would be undermined if the government agency were free to review the editorial judgments" and to conclude that "the expose had a broader message than that discerned by the licensee . . . ." 170 U.S.App.D.C. ___, 516 F.2d 1123. The majority argued that "[a] report that evils exist within a group is just not the saae thing as a report on the entire group, or even on the majority of the group." Id. 170 U.S.App.D.C. at ___, 516 F.2d at 1124. These twin themes — that a licensee must be afforded extra discretion for investigative journalism and that "effective presentation of problems in a system does not necessarily generate either comment on the performance of the system as a whole, or a duty to engage in a full study," id. 170 U.S.App.D.C. at ___, 516 F.2d at 1127 dictated the majority's conclusion to reverse the Commission.

These arguments were but another manifestation of the consequences the majority feared in affirming the Commission. However, such fears are unfounded. Certainly the Commission does not believe that every investigative report's look at abuse or corruption is in reality a commentary on an entire industry or branch of government. Similarly, the majority surely did not believe that an investigative documentary never attempts to or in reality never indicts an entire industry; such an assumption would deny the existence of inductive reasoning. Thus, labelling the program an investigative report does not erase the Commission's findings as to its content and petitioner's fairness obligation.

Even more fundamentally, any special exception for investigative reporting is unwarranted. Petitioner, joined by several of the amici, has consistently argued that the Commission's ruling must be overturned to avoid a chilling effect on broadcasters, the net result being blandness in programming. See, e. g., 44 FCC 2d at 1041; NBC's Br. at 20-21; CBS' Br. at 13. In affidavits submitted in this litigation, NBC newsman Bill Monroe opined that the ruling could only have "a serious inhibiting effect on broadcast journalism." J.A. 138. NBC News President Reuben Frank asserted that "almost all the great television documentaries . . . would have been impossible under this rule." J.A. 127. Finally, the majority referred to the "inhibitory dimension" of the Commission's actions. 170 U.S.App.D.C. at ___, 516 F.2d at 1133.

These allegations have been repeatedly rejected, by the courts, see Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 393, 89 S.Ct. 1794; Brandywine-Main Line Radio, Inc. v. FCC, supra, 473 F.2d at 157-58, and by the Commission:

A number of commentators have argued that, in spite of its worthy purposes, the actual effect of the fairness doctrine can only be to restrict and inhibit broadcast journalism. Far from inhibiting debate, however, we believe that the doctrine has done much to expand and enrich it.

Fairness Report, supra, 48 FCC 2d at 7. Nothing in this case should generate reevaluation of those assessments. Far from deprecating investigatory journalism, the Commission reaffirmed its "recognition of the value of investigatory reporting and [its] steadfast intention to do nothing to interfere with or inhibit it." 44 FCC 2d at 1041. The Commission commended NBC "for airing such an `uninhibited, robust, and wide open' presentation of one side of the pensions issue." Id.

Moreover, as the Commission recognized its ruling does not make impossible the sort of program NBC had already presented, as the licensee remains free to determine format, spokesmen, and time within which to discharge its fairness obligations. Id. at 1042. As a final protection against any chilling effect, the fairness doctrine itself requires the licensee to devote time to presentation of controversial issues, see Red Lion, supra, 395 U.S. at 393, 89 S.Ct. 1794; Fairness Report, supra, 48 FCC 2d at 7-8.

In response to the argument that investigatory journalism lies at the heart of the press' first amendment freedoms and that therefore the area demands even greater deference, I can only endorse the Commission's reply:

If the broadcaster's First Amendment interest in freedom of journalistic expression is greatest in the area of the presentation of news and news documentaries, then the right of the public to have access to the various competing viewpoints on controversial issues discussed in such presentations is certainly no less compelling. News and news documentaries usually treat of public affairs, and for this reason perhaps no other vehicles of broadcast speech should function more consistently with the First Amendment's purpose of fostering "uninhibited, robust, and wide open" debate with respect to the public issues which they present and discuss. NBC has a journalist's role; it has an additional role as a public trustee of providing a forum for diverse views on public issues. The two roles are not incompatible.

44 FCC 2d at 1043 (emphasis added). In sum, there is no need for a special exception to the fairness doctrine for investigatory journalism, nor would the public interest be furthered by one.

There is one final issue to discuss — whether the Pensions program itself discharged petitioner's obligations under the fairness doctrine. As I have indicated, the fairness doctrine nowhere requires equality, only reasonableness. The majority after examining and labeling individual passages from the transcript concluded that the program contained reasonable balance. 170 U.S.App.D.C. at ___-___, 516 F.2d at 1127-1132; see id. 170 U.S.App.D.C. at ___, 516 F.2d at 1130. As I have demonstrated in part I, that methodology contained substantial factual inaccuracies. Moreover, it represented another instance of the majority substituting its judgment for that of the Commission without ever finding agency error.

The Commission analyzed petitioner's contentions that the program carried sufficient favorable comments to be balanced. However, it concurred in its staff's conclusions that while those three pro-pension statements "could be taken to present a contrasting view, they alone cannot be said to have afforded the reasonable opportunity contemplated by the fairness doctrine when compared to the views presented during the remainder of the Program." 44 FCC 2d at 1041. In light of the overwhelming negative tenor of the entire program, I cannot conclude that this finding was not supported by substantial evidence. Moreover, since NBC had informed the Commission that aside from the Pensions program it had not "telecast any program dealing with private pensions" and had no definite plans to present such a future program, id. at 1040, the Commission's order to petitioner to discharge its fairness obligations was clearly proper.

As the majority correctly noted "[t]his is the first case in which a broadcaster has been held in violation of the fairness doctrine for the broadcasting of an investigative news documentary that presented a serious social problem." 170 U.S.App.D.C. at ___, 516 F.2d at 1125. The majority attempted to ensure that it would be the last. To do so, as we have seen, the majority started from erroneous premises concerning the Commission's decision, applied an incorrect standard of review, and substituted its judgment for that of the Commission. All of the errors stemmed from an unwarranted fear that the fairness doctrine (and the Commission) impermissibly intrudes upon journalistic freedom and expression.

One commentator has opined that if the Commission had been upheld in this case:

the court would have legitimized the idea that the Government could in effect substitute its judgment for that of the network as to what issue was involved in a broadcast documentary and order that more air time be given to elements that the journalist never thought central to the story. This, the broadcasters feel, would genuinely restrict their efforts at investigative reporting. It would mean that every assertion of wrongdoing by persons or groups would have to be balanced with an equal statement of their claims to innocence — however unbelievable they might be. The result would be confusion and, more often then not, outright misinformation. In addition, the broadcasters feared, a decision for the government would make it difficult to air any program that took a point of view.

That is exactly what this case is not about. The Commission did not substitute its judgment for the licensee's; it found the broadcaster's judgment to be unreasonable. It did not order equal time; it only required reasonable opportunity. The Commission did not tell petitioner whom to put on the air; journalistic discretion as to format and spokesmen remains intact. The Commission's decision does not preclude programming with a point of view; the fairness doctrine encourages such programming. What the Commission has done here is acted in the public interest to ensure that the licensee fulfills its obligation as public trustee. This role has been endorsed and reendorsed by the Supreme Court.

This court has stated in no uncertain terms: " the American people must not be left uninformed." Green v. FCC, supra, 447 F.2d at 329. Standing applicable principles on their heads and reacting to an unwarranted spectre of Armageddon advanced by broadcasters, the majority would have virtually eliminated the broadcaster's trusteeship; the licensees would have been given an unbounded and unsupervised discretion, so that the American public would be left either ill- or only half-informed. I think both the fairness doctrine and the American people deserve a better fate. The majority's holding left the public interest "no longer `paramount' but, rather, subordinate to private whim . . . ." CBS, supra, 412 U.S. at 124, 93 S.Ct. at 2097. Fortunately after today, the September 27th opinion is no longer precedent, but must stand or fall on the weight of its own reasoning. I am confident, under that standard, its influence will be evanescent.

[181] TAMM, Circuit Judge (dissenting):

This case presents us squarely with questions arising from the head on collision of First Amendment rights of freedom of the media and the right of the people to know. It requires again "an expression of the pervasive precept of fairness between government and governed that runs thru American jurisprudence. . . ." Trailways of New England, Inc. v. C.A.B., 412 F.2d 926, 931 (1st Cir. 1969). Involved is not the so called "on the spot reporting" which makes up a substantial portion of television newscasts but a documentary type of presentation referred to in these proceedings as investigative reporting. The editorial supervision and selectivity frequently approved in judicial decisions was not herein discharged under the pressure of time considerations essential to the preservation of news values, but permitted, according to representations made to us, the digesting of eighty thousand feet of film into a two thousand foot final product. Most importantly we are not dealing with a printed publication utilizing its private property to disseminate its news and views in the exercise of that freedom of the press which is the central freedom of the whole democratic process. Our petitioner, the National Broadcasting Company, Inc. is the temporary licensee of a right to utilize the public's airways in the public interest and for the public welfare. To me this is the dominant element in distinguishing the rights and obligations of a telecaster from those of the press, which under controlling Supreme Court opinions has an unlimited freedom to report events in the public domain.

No right is absolute. It is elementary that each right carries with it an obligation. In accepting the right to use the public airways our petitioner, willingly or reluctantly, assumed the obligation of utilizing those airways in the public interest. The public interest in television programming expressed in fundamentals is to know the facts.

Petitioner argues that investigative reporting is somehow a special specie to which the application of a fairness requirement is constitutionally repugnant. The majority opinion supports in substance this position and capsulized into its basic and ultimate holding concludes that fairness, meaning a presentation of both sides of a question of public interest, is not a practically enforceable obligation of a licensee of the public airways. This position means that a telecaster's presentation under the label of investigative reporting of a few factual bones covered with the corpulent flesh of opinion and comment fulfills the obligation of the network to give a fair picture to the public and to assist the public in knowing the facts essential to a determination of basic policies. The majority opinion fails to recognize that as a practical matter there is no real distinction between this type of so called investigative reporting and propaganda. The investigative reporter, regardless of his initial motivation, too often reaches a point where objectively disappears and he becomes an ardent advocate for a particular position or viewpoint. Developing a feeling for what might or should be, rather than awareness of what is, he produces a manipulated and selective presentation which ignores all viewpoints and positions other than his own. There is no doubt but that embellishment, color and opinion often prove to be more interesting than objective presentation of both sides of an issue of public interest but is such a production a discharge of the responsibility of the telecaster to give a fair picture and a presentation of all points of view?

The history of democracy is a record of the fear and distrust by the people of unrestrained power. This is the womb in which was gestated the constitutional amendments which we identify as the Bill of Rights. First Amendment guarantees were and are designed to afford the people an effective weapon against the existence or use of destructive and abusive power. Does anyone doubt that a tremendous reservoir of power exists today in the radio and television industry? Are not television and radio newscasters and commentators dominant in the shaping of the public's viewpoints and opinions? Does not their ability to capture the public attention arm them with a weapon of such magnitude that public officials are too often completely subject to their influence? Is it an exaggeration to say that the telecasting industry constitutes a power system comparable if not superior to government itself but basically free of the restraints imposed on government power? We proudly proclaim that in our democracy all power is in the people, but is this power impartially exercised today upon a full knowledge of all facts which affect the public order? The answer is obviously dependent upon the public's ability to learn the facts and again we are face to face with the use which is made of the public airways by the licensees.

I recognize and will readily defend the constitutionally mandated right of the licensed media to exercise its choice of what to report and what not to report. Beyond this the right to editorialize with properly descriptive identification is judicially recognized, but confining my position to the record before us, in the presentation of a so called investigative or documentary report I believe that there is a legally enforceable obligation on broadcasters to present a report in which all conflicting positions and view-points are fairly portrayed. To require less in my view is to permit an abuse of the public's right to know, and a desecration of the license to use the public airways in the public interest.

"Freedom of the Press" as a generic term has long been prominent in the lexicon of judicial opinions. It will never be fully defined because it is not a static phrase with final and permanent meaning. It defines a continuously evolving phenomenon with changing, disappearing, materializing and sometimes almost mystifying significance. Rapid development of the utilization of the public airways as a means of informing the public has placed tremendous power in these media. The fairness doctrine, as the Federal Communications Commission has exercised it in this case, is not a censorship, is not a prior (or subsequent) restraint, is not a usurpation of what the majority describes as "Journalistic Discretion" but is merely a policy that requires in the public interest all viewpoints be presented in factual matters of public interest. The doctrine, as it has been utilized here, is the yeast of fairness in the dough of the telecaster's right to exercise his journalistic freedom. The resulting problem of the Commission is then the securing of responsibility in the exercise of the freedom which the broadcasting industry enjoys. We are asked to rule that on the traditional scales of justice the right of the people to know is outweighed by the claimed right of the telecasters to exercise a constitutional infallibility in determining what the public is entitled to know. I cannot so hold. I would affirm the Commission's action.

[207] BAZELON, Chief Judge, dissenting from the order vacating the previous order granting rehearing en banc:

For better or worse, the propriety of some governmental intervention into broadcast journalism under the Fairness Doctrine has been declared constitutional and there seems to be no serious effort under way to reconsider the assumptions of that declaration. This case, however, stirs large questions concerning the administration of the Fairness Doctrine now that some governmental intervention has been authorized. The court I think has attempted to find a path through the existing body of Fairness obligations that both recognizes the constitutionality of some obligations and limits that intervention to the precise extent necessary to achieve defined public interests. The path it has chosen, however, suffers from many difficulties and appears to me, upon reflection, as not the most efficacious method of combining the elements of constitutional review of Fairness obligations with administration of those obligations found to be permissible. Indeed, as I will argue, the court's method creates rather insurmountable problems in the traditional relationship between administrative agencies and appellate courts and in the proper protection of the legitimate constitutional interests that permeate this area of the law. The subject is conceptually slippery, but discussion of it is no less necessary for that reason. I, therefore, in this statement attempt to point out the error of the court's way and to suggest a better institutional posture for appellate courts in their role as overseer of the Fairness Doctrine. This discussion is necessitated by the court's unexplained action in reversing its earlier decision that ordered the case reheard en banc.

The first part of this statement is devoted to establishing that under current FCC practice, the "Pensions" broadcast of petitioner NBC did raise a controversial issue of public importance. This encompasses (A.) an argument that the Commission properly applied the established legal standard to the "Pensions" broadcast (170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1105-1106); (B.) an argument that the "Pensions" program did discuss the overall performance and the need for reform of the private pension plan system (170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1107-1112); and (C.) an argument that the court's methodology in determining that the broadcast did not discuss this issue, as that methodology is developed in Part B, is inconsistent with established FCC methodology in ruling upon Fairness Doctrine complaints (170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1112-1114). The second part of the statement concerns itself with the constitutional overtones to Fairness Doctrine litigation under present law. This involves (A.) a discussion of the court's use of First Amendment interests in its decision and why that use is not a proper protection of the journalistic interests implicated by this case (170 U.S.App.D.C. pp. ___ _ ___, 516 F.2d pp. 1114-1115) and (B.) a consideration of what I perceive as the true nature of judicial review of Fairness Doctrine decisions in light of the serious First Amendment interests concerned (170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1115-1116). The third part of the statement considers the propriety of the court's decision to avoid rehearing en banc and the one argument which might justify that decision — the FCC's suggestion of mootness (170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1117-1118).

The Commission, agreeing with the Broadcast Bureau, delineated the potential controversial issue of public importance at stake here to be this: "the overall performance and proposed regulation of the private pension system." All parties seem to agree that this is indeed a controversial issue of public importance, although, as will be discussed below, 170 U.S.App.D.C. pp. ___-___, 516 F.2d pp. 1174-1177, there might be a First Amendment objection to such a view and the passage the pension reform suggests mootness to the FCC. Passing these problems for the present, the question raised in this litigation is whether the "Pensions" documentary did present one side of this above-described controversial issue. NBC's position, adopted by this court, is that its documentary did not address this above-described controversial issue, but rather addressed a different issue it alleges is not a controversial issue of public importance, viz. "some problems of some pension plans." The Commission, on the other hand, found that while the program did address the issue described by NBC, the program also presented one side of the controversial issue defined by the Commission.

Initially the court states that the FCC committed legal error in allegedly substituting its own judgment for that of NBC on the issue of whether NBC did present one side of the agreed upon controversial issue. Says the court:

Thus the Commission ruled that even though NBC was reasonable in saying that the subject of "Pensions" program [sic] was "some problems in some pension plans," in determining that this was the essential subject of the program, its dominant force and thrust, nevertheless NBC had violated its obligation as a licensee, because the Commission reached a different conclusion, that the program had the effect "in fact" of presenting only one side of a different subject

The Commission's error of law is that it failed adequately to apply the message of applicable decisions that the editorial judgments of the licensee must not be disturbed if reasonable and in good faith.

My most serious difficulty with this statement by the court is that it simply misrepresents the Commission's opinion. Here is the Commission's language. The reader may judge for himself.

Given these facts and circumstances, we cannot accept as reasonable a judgment that the "Pensions" program did not present views advocating one side of a controversial issue . . ., that issue being the overall performance of the private pension system and the need for governmental regulation of all private pension plans.

. . . [In] light of the presentation of so many statements sharply criticizing the performance of the entire pension system and strongly recommending the regulation of all private pension plans, it would be an unrealistic oversimplification to characterize the program as one addressing only "some problems of some pension plans." The program did examine such problems, but it would strain the most "permissive standard of reasonableness" past the breaking point to imply that the program was confined to such a limited examination.

The court's error is one of simple logic, as the Commission insists in its brief filed in the abortive rehearing en banc: the Commission found plainly that it was unreasonable to suggest the program was limited to only a discussion of "some problems of some pension plans." Since the parties were seemingly agreed that the only issue in the case was whether the program was limited to a discussion of "some problems", there can be no doubt that the FCC focused its attention on exactly the problem the court now finds it misapprehended. It follows that the Commission meant exactly what it said when it found the licensee was unreasonable in concluding that the show was as limited as the licensee suggested. There is plainly no error of law in the Commission's opinion; all agree that the licensee's judgment must be unreasonable.

More extraordinary than this imaginary error of law is the fact that once discovering it, the court does not follow the proper path of remanding the case to the FCC for application of the correct legal standard. Rather the court on its own applies the correct standard to the facts of the case. This action could be a result of two possible conclusions. First, the court may be assuming that it should review the evidence in Fairness Doctrine cases de novo and hence there is no reason to remand the case. The court tells us that this is not its view, although I cannot see how else its conclusions on the facts could even be plausible. There is, of course, no authority for this view and as will be discussed below there is no First Amendment cause for creating such authority, at least in the context of determinations of controversiality. Second, the court may be assuming that the FCC could not reasonably conclude that NBC was unreasonable in arguing that the "Pensions" broadcast dealt only with "some problems of some pension plans." This approximates the court's stated principle of review, if one adds an element of super-scrutiny, allegedly designed to protect First Amendment interests. But as discussed below there are no First Amendment interests involved in a licensee's "discretion" to argue before the FCC that its program is not controversial. (Part II. B, infra) Even if we assume that this second explanation of the court's refusal to remand the case fully comprehends the actuality of the court's review of the evidence, I do not think, in the absence of First Amendment interests, that this court should assume the initial task of weighing evidence when the evidence has been improperly considered by the Commission and when the subject under review is one to which the Commission's expertise is relevant. Assuming, however, that the court is correct in this, I do not believe the record supports its conclusion and hence NBC's position, whether the evidence is reviewed de novo or under a reasonableness with super-scrutiny standard.

A determination of whether the "Pensions" broadcast raised the issue of overall performance and the need for reform is undoubtedly confusing. Much of this confusion is a result of the manner in which the court re-conceptualizes the nature of the agreed upon controversial issue of public importance and once having done so, prunes the evidence around this re-conceptualization to achieve the desired result. This is the business of administrative agencies not appellate courts and is a result of the fact that the court has taken upon itself to apply the correct legal standard instead of remanding to the Commission. But with some trepidation, I criticize the court's analysis of the evidence. First, "in aid of analysis" the court divides the FCC's definition of the controversial issue in two parts: (1) the issue of over-all performance of private pensions plans and (2) the need for reform of private plans. This signals a "divide and conquer" tactic which I consider extremely inappropriate; the significance of this tactic may be seen after a review of the evidence. So, for the moment, I follow the court's new split definition.

Before exploring this issue, the court again divides the issue. It first (1) considers how many statements in the broadcast comment on overall performance, thus weeding out most of the broadcast, and then (2) compares the statements discovered to be adverse on overall performance with the statements discovered to be favorable, and finds a "reasonable balance." In regard to point (1), I state first (a) the comments in the broadcast I think are manifestly relevant to overall performance but which are not mentioned by the court and then (b) criticize the court's process of pruning out many manifestly adverse statements on overall performance.

(1)(a). The most serious omission from the court's collection of statements regarding overall performance are the various remarks of Senator Schweiker. Schweiker begins by telling the audience that his subcommittee had made a study of fifty-one pension plans covering 6.9 million workers since 1950. He states that only eight per cent of the workers in those plans received their pensions. He lists a variety of reasons why this has occurred. Later on, Schweiker returns and states that he believes the government should guarantee vesting at a certain point. This is not just a discussion of "some problems." A survey of a very substantial sample leads a legislator to conclude that government guarantee of vesting of presumably all plans is required. Schweiker uses no general rhetoric but his comments are clearly directed to the functioning of the entire pension system.

The court does not mention the narrator's opening remark that the program is the story about the hopes of working people, but hopes that are "all too often not realized." The court does not mention Newman's (the narrator's) further comments (i) on the "slick brochures", "most" of which "do make a pension seem a sure thing" but the "many restrictions and exclusions are buried in fine print or concealed by obscure language"; (ii) on the discrimination against lower and middle level employees, particularly women; (iii) on the existence of fraud and mismanagement in private pension plans. There are a number of other omissions but I think it better to mention those in connection with the comments that were discussed by the court in order to criticize the court's handling of the ones it did discuss.

(b). The opening sequence of the program is in my view a commentary on the whole of the pension system. The court mentions from this sequence only one statement by an unidentified man and a segment of Newman's opening statement. The court does not mention the statement by an unidentified woman that "thousands maybe millions of them that's getting the same song and dance that my husband got"; the statement by an unidentified man that Hoffa gets a large pension but he gets very little, suggesting discrimination; and Newman's statement that there is "a good deal of bewilderment about [the shattering of retirement dreams] and bitterness . . . ." The court makes the remarkable statement that Newman's suggestion that "very many of the hopes will prove to be empty" does not mean that all or even most will be unprotected. But the simple fact that a substantial number of dreams are shattered is a comment on overall performance. We need not prove that every single American is bilked of his pension before we decide that the overall performance of the plans is inadequate. The opening sequence taken as a whole reveals an attack on the overall inadequacies and inequities of the present pension plans.

The court's discussion of Herbert Dennenberg's statements is incomplete. Dennenberg clearly states that most pension funds are inadequate and later in the broadcast makes a sharp comparison between the extent of regulation of insurance companies and the lack of regulation of pension plans and states generally that pension plan funds are not being used for the benefit of the employees to whom those funds belong. The court attempts to disarm these criticisms of the overall performance of the private pensions by asserting the accuracy of his factual assertions. But as the court itself notes, one may assume the validity of the factual assertions and yet reach a different conclusion on the "value question" of whether those factual assertions make out a case of failure in overall performance and a concomitant need for regulation. Dennenberg's own statements indicate which value choice he has made. His statements plainly thus refer to the previously defined controversial question, the overall performance of the plans.

The court next attempts to disarm Dennenberg's and certain other statements relating to the alleged "inadequacies" of pensions in combination with social security and to a lesser extent the difficulties in achieving vesting by stating that these individual subjects (that is, alleged inadequacy and problems of vesting) are not themselves controversial issues of public importance (or at least the FCC has not so proven). By this the court is attempting in the middle of argument to shift the ground of argument from the question of whether there was commentary on overall performance to whether the issue of overall performance should be sub-divided into various sub-issues and each of those sub-issues justified as controversial. The court indicates no grounds for overruling the Commission's definition of the controversial issue and as will be indicated below (170 U.S.App.D.C. ___-___, 516 F.2d 1168-1171, infra) it would be manifestly improper in this case to do so. The attempted disarmament fails; Dennenberg's comments are clearly on overall performance.

The treatment of Senator Williams' statement is also defective. Williams clearly states that the private plans promise retirement security but do not deliver it. Then, with Newman, he demonstrates how legislation might reform this failure. The court again shifting ground seems to admit that this is a comment on overall performance but states that the fact that "eligibility requirements are not clearly defined" has not been identified as a controversial issue. Of course, this is true, but the reason is, as noted above, that the Commission had expressly refused to sub-divide the controversial issue beyond overall performance of the plans and the need for governmental regulation. The fact is that Senator Williams, Chairman of the Senate Committee considering pension legislation, made directly adverse comments on the overall performance of the plans.

The court describes the favorable comments given at the end of the program but again fails to put these comments in perspective. After the statements by Anderson and Hubbard, the only favorable comments on the program, Dennenberg, Gotbaum and Schweiker rebut their favorable comments with impassioned language. These three all had previously discussed in general and in specific the failures of the private plans and their impassioned comments have more meaning therefor. The sequence is closed by the following statement of an unidentified man:

What are they waiting for? What the hell are they waiting for? Do they have to give us a certain quota, a certain number of people that have to be victims? Do they have to give us a certain amount of money? How many billions must it take before they do something about this? How many people have to starve? How many people have to lay on the sidelines and just hope and pray? How much misery do they want before they actually act upon it?

This statement is not mentioned by the court. It culminates a powerful closing sequence. And this statement is followed by Newman's final remarks in which he states that the situation as he has seen it is "deplorable."

(2) The court takes the comments on over-all performance that it has collected and finds that there is a reasonable balance between the favorable and unfavorable comments. The court's error is in its pruning of the many unfavorable comments on overall performance down to a fraction. When the evidence is examined, it is clear that the court erred in weighing the number of adverse statements and hence the existence of reasonable balance. Again I question whether this court should ever make a judgment on reasonable balance before the FCC is given an opportunity to do so. In this case the Commission expressly found a lack of reasonable balance. But absent established facts which conclusively demonstrate that no other reasonable conclusion is permissible, I think the proper course is to remand to the administrative agency for a re-determination.

The more general error of the court's analysis on reasonable balance is its view that it can segregate the commentary on overall performance from the commentary on reform and from the commentary on "some problems" and find reasonable balance on overall performance alone. Of this, more will be said below (170 U.S.App.D.C. ___-___, 516 F.2d 1166-1167, infra).

This is the second division of the Commission's controversial issue of public importance. The court's discussion of this also demonstrates an assumption of powers reserved to administrators. The court "in aid of analysis" has divided up the controversial issue of public importance into two parts. After discussing the first part, it turns around and finds that the "Commission wholly failed to document its premise that there is a controversial issue in the assertion that there is a need for some remedial legislation applicable generally to pension plans." The evidence for this statement is a letter from NBC to the Commission which stated that a number of groups supported some form of remedial legislation and that in the 35 witnesses that testified in the recent Senate hearing, none opposed all legislative efforts in the field. This is woefully incomplete. "We know as judges, as we knew as lawyers" that interest groups opposed to serious regulatory efforts often offer pale substitute measures to stem the reform tide. This is exactly what happened in regard to the pensions reform legislation. Groups opposed to any reform coalesced behind a weak substitute, not because they were in favor of reform necessarily, but because in political terms this was, they hoped, the least damaging alternative. The "evidence" adduced by the court is not substantial. The Broadcast Bureau, which the Commission affirmed on this point, quite correctly found on the basis of AIM's submissions that a major legislative battle was shaping up and whether Congress should enact the tough reform legislation proposed was an extremely controversial subject of public importance The court is clearly erroneous, even as a matter of de novo review, in concluding that the need for reform legislation was not a controversial subject. And I have said nothing about the anomalous consequences of defining controversiality by reference to what interest groups in Washington are willing to support as legislation. The FCC did not have to consider whether sentiment in the nation was sufficient to render the subject controversial despite the stand of certain interest groups; the court's position, however, requires that it do so consider. At the very least, the matter should be remanded to the Commission for further consideration.

One reason why this issue was not thrashed out at the agency level was that the Commission and the parties quite reasonably considered the controversial issue to be both overall performance and need for reform, assuming I guess that one's view of overall performance defined one's attitude toward reform. This assumption is certainly true of the many statements in the broadcast. The court thus creates this "void" in the record by its own division of the controversial issue allegedly to aid in its analysis. The two may thus not be considered separately unless the court is willing to reverse the FCC's determination of what the controversial issue of public importance is in this case. Once this concept of inseparability is recognized, all the statements in the broadcast relating to the overall need for reform must be considered as comments on the controversial issue defined by the Commission. With these additional comments on overall performance, there is really nothing of substance left to the court's effort to uphold NBC's contention that the broadcast did not present one side of a controversial issue.

Implicit in the preceding discussion have been the following two conclusions about the nature of the court's error. First, the court attempts to sub-divide the controversial issue and then declare that the FCC has not proven that its various subparts are controversial. Second, the court sees a neat distinction between a televised presentation of a problem, an isolated incident, if you will, and an overall criticism of the institution or citizens to whom that problem relates. I deal with the second of these errors first.

There is no such neat distinction. If one presents in graphic form, an isolated but extremely serious problem, there will be sentiment to remedy the whole, the overall structure, simply to eliminate this problem. The court enjoins us to remember that the statement that one policeman takes bribes does not mean that all policemen take bribes. This is surely an irrelevant analogy. We may accept the court's formulation but still contend that an expose of bribe-taking, if sufficiently serious examples are given, is sufficient to call into question the overall performance of the police department and to suggest that serious reform efforts be made. We do not need to find that all or even most policeman are on the take to begin to question the present structure of the police department. So it is simply not meaningful to say that one is concerned only with "some problems" of the police force when the problems raised are so serious. And, of course, the Congress or any citizen when they decide to reform the overall structure of an institution will never "know" that the institution is "riddled" with problems but only that "some problems of some" members of the institution are serious enough to warrant an overhaul of the system.

This is particularly the case when one deals not with a linear argument, e. g. statistics about the number of workers who lose benefits, but with pictorial and extremely immediate depictions of the actual victims. Television as we all know operates by images and the image one gets when one is bombarded with "some problems of some plans" as serious as the ones described in this broadcast in issue here is that the overall performance of the pension plans leaves a great deal to be desired. The court would seemingly find that the broadcast raised an issue as to overall performance if it ran before our eyes the statistics on the operation of most private plans — which would bore the tears out of most of us — but in this case finds no controversial issue raised when we are given in stark terms the human tragedy of plan failures.

With this point in mind, the Commission's decision comes right into focus:

Our conclusion is not based upon a singling out, "line-by-line" or "statement-by-statement", of isolated expressions . . . . Rather it appears to us to be the only conclusion which can be drawn upon a review of the program in its entirety, and one which could be avoided only by ignoring a significant and substantial part of the material presented. We note here that in light of the presentation of so many statements sharply criticizing the performance of the entire pension system . . ., it would be an unrealistic oversimplification to characterize the program as one addressing only "some problems of some pension plans."

This is clearly the kind of rational administrative judgment, by an agency with experience in the field, which courts do not disturb. In particular, I note several elements of the broadcast which in addition to the previous discussion support the Commission's determination. Evaluation of the opening and closing segments of the program reveal a well-timed series of general criticism (opening) and general calls for reform (closing). The final tape, prior to Newman's summation, was the previously quoted, eloquent statement by an unidentified man which even on a bare transcript has enormous impact. The organization of the broadcast is built upon examination of a series of general problems with specific and moving examples to buttress the discussion. Those problems are (1) problem of vesting and eligibility: (2) problem of understanding the vesting and eligibility; (3) problem of loss of benefits through bankruptcy or closing of a business; (4) problem of portability and loss of benefits on termination; (5) problem of insufficient amounts for poor and middle income workers and suggestion of discrimination; (6) problem of fraud, mismanagement and self-serving in the disposition of pension funds; (7) the need for reform. Once this structure of the show is perceived it may be seen how great is the court's error in segregating the specific comments on overall performance and balancing those comments among themselves: the journalistic interaction between the overall statements on performance and the specific examples ("some problems") which illustrate those overall statements makes any such neat segregation an "unrealistic oversimplification" indeed. The whole structure of the program belies NBC's assertions that the show concerned only "some problems of some plans." The program clearly argues for the overhaul of the private pension plan system.

This discussion leads to consideration of the court's second major error mentioned above. The FCC on the basis of its experience with the Fairness Doctrine correctly defined the controversial issue in a manner which would be relevant to television — the image of the private pension plans ("overall performance" and not a bunch of legal subdivisions of that general concept) and the relation of that image to reform efforts ("the need for reform" and not any specific bill). To attempt to conceptualize the issue in any other manner is simply irrelevant to television. The court appears to recognize this at one point but fails to apply it in its analysis. The court in its apparent rejection of this general conceptualization of the controversial issue of public importance does not tell us why the Commission erred. Indeed, there is no overt argument advanced in support of the court's sub-division of the controversial issue. As will be discussed below 170 U.S.App.D.C. ___, 516 F.2d 1171-1172, infra), there is much to be said for leaving the delicate question of defining what a particular broadcast is really "about" to an administrative agency which has experience in making such judgments. But be that as it may, there is no evidence in this opinion of the court that the FCC's determination was unreasonable or even that a contrary determination would have been more wise.

Of course, once the Commission has defined the issue as it has, the licensee, found to have presented only one side, is thus obligated only to present the other side of that issue and not all other issues that might be latent in the broadcast. I quote the Commission's decision:

We note in this regard that NBC cites a long list of subjects concerning the vesting and portability of pension rights, the adequacy of plan funding and payments upon retirement, and the fiduciary relationship in pension plan management, and claims that under the staff's analysis and ruling each of these might be considered a distinct controversial issue of public importance entitled to separate treatment under the Fairness Doctrine. However, neither the staff's ruling nor our decision here gives grounds for such an overly-broad interpretation. While each of the subjects cited is an aspect of overall pension plan performance, there is no information before the Commission to indicate that these subjects are by themselves independent controversial issues of public importance . . . . [T]he applicability of the Fairness Doctrine . . . does not require their wholly separate treatment or discussion.

There can be, therefore, no argument that the Commission's definition of the controversial issue prejudices the licensee in responding such that this court would be justified in treating the Commission's definition as a series of mini-issues.

The previous discussion concerning the court's effort to re-define the potential issues raised by a broadcast and thereby to prevent a finding that the broadcast did raise any controversial issues of public importance leads to a discussion of the administrative and judicial decisions on this subject. Those decisions illustrate both the problems of administration of the "controversiality" standard and the extent to which the analysis of the court departs from established doctrine. The purpose of this discussion is to suggest the chaos that further application of the court's analysis will cause.

The most difficult problem in the Fairness Doctrine is the definition of what particular issues are raised by a broadcast program. This may be named the "implicit issue" problem. The FCC in its recent policy statement on the Fairness Doctrine had this to say about the "implicit issue" problem:

[A] broadcast may avoid explicit mention of the ultimate matter in controversy and focus instead on assertions or arguments which support one side or the other on that ultimate issue. . . .

[We] would expect a licensee [in determining whether such a broadcast presented one side of the ultimate matter in controversy] to exercise his good faith judgment as to whether [a] spokesman had in an obvious and meaningful fashion presented a position on the ultimate controversial issue . . . . The licensee's inquiry should not focus on whether the statement bears some tangential relevance [to the ultimate issue], but rather on whether that statement, in the context of the ongoing community debate, is so obviously and substantially related to the [ultimate issue] as to amount to advocacy of a position on that question. If, for example, the arguments and views expressed over the air closely parallel the major arguments advanced by partisans on one side or the other of the public debate it might be reasonable to conclude that there had been a presentation on one side of the ultimate issue. . . .

The Commission has followed this general principle of decision in numerous cases and the principle has been affirmed by this court. The Commission followed this principle here. And as we have seen and as the evidence discussed in Part B above indicates, the principle should control disposition of the instant litigation. The program did focus on specific assertions and arguments made by those in favor of reform of the present pension plan system. Even the court would be hard pressed to deny this.

As noted in Part B, one tool which the court uses to avoid this conclusion is that many of the statements allegedly commenting on overall performance are in the court's view only comments on a specific issue — such as inadequacy of the plans, obscure vesting and eligibility requirements and the like. But it may be easily seen that this tool totally undercuts the very basis of the Commission's principle for determining whether an implicit issue has been raised. The court, by placing the burden on the FCC to demonstrate that these sub-issues are themselves controversial and of public importance, ignores the implication these assertions have in the presentation of the ultimate issue. The FCC cannot prove and has no intention of proving that the various sub-issues are themselves controversial and of public importance. It uses them only as evidence of a presentation of an ultimate issue.

So, the court's own implicit message must be that the FCC may not resort to the implicit issue principle but may apply the Fairness Doctrine only to overt editorializing denominated as such. No reasons are advanced for such a holding. It would be inconsistent with previous cases in this Circuit and would gut the Fairness Doctrine. This latter eventuality would occur in two ways. First, of course, elimination of the implicit issue principle would make application of the Fairness Doctrine totally dependent on the discretion of the licensee, who could communicate his messages implicitly without a Fairness obligation or explicitly, with such an obligation.

But more importantly, the court's method of analysis — its implicit holding against the implicit issue principle — changes the focus from "ultimate issues", such as overall performance of private pension plans and the need for reform, to the various components of those ultimate issues. These components are often statements of fact, not opinion, and in general are not the sort to meet the Commission's standards of "controversiality", standards I will discuss in a moment. Statements of fact are not the concern of the Fairness Doctrine. The FCC has shown very little interest, and rightfully so, in claims that broadcasts are factually inaccurate. There are some Fairness obligations associated with the failure to report facts, but that is not in issue in this case. If the Fairness Doctrine were centrally concerned with the factual accuracy of broadcasts, we would expect some body of administrative doctrine defining the limits of agency intervention. But the only doctrine that exists is to the effect that there will be no intervention short of a willful misrepresentation by the licensee. Rather the concern of the Fairness Doctrine is with "viewpoints", which consist of arrangements of facts and perhaps opinion in a journalistic form.

With this understanding, we may proceed to consider the problem of defining "controversiality" and the extent to which the court's opinion departs from established practice in that area as well. First, it is necessary to distinguish between a determination of "controversiality" and a determination of "public importance." The former is the issue relevant here. Of the latter more will be said below. 170 U.S.App.D.C. ___, 516 F.2d 1176, infra) The Commission had this to say about the determination of "controversiality":

The question of whether an issue is "controversial" may be determined in a somewhat more objective manner [than is the case with the "public importance" determination]. Here, it is highly relevant to measure the degree of attention paid to an issue by government officials, community leaders and the media. The licensee should be able to tell . . . whether an issue is the subject of vigorous debate with substantial elements of the community in opposition to one another.

This standard is built upon the nature of public debate and public debate is by definition a conflict of viewpoints, arrangements of fact and perhaps opinion, within a community. The standard is not basically concerned with factual disputes.

The court's analysis both in its splitting of the controversial issue into various sub-issues and in its discussion of the controversiality of the "need for reform" is not consistent with the Commission's standard. By re-defining the issue, the court has in effect reduced the issue from a generalized viewpoint on a public issue to a series of factual disputes. These factual disputes could not meet the standards of controversiality just mentioned because they are not viewpoints which contrast with other viewpoints in public debate. Furthermore, by considering only the actions of various interest groups in determining whether an issue is controversial, the court side-steps the issues of whether public debate over the need for reform is "vigorous" and whether "substantial elements of the community" are opposed in that debate. Instead of viewing Congressional attention to the issue as evidence of "controversiality", the court uses it as evidence of non-controversiality. The court has sub silentio overruled the Commission's standard for determining "controversiality."

I think there is a proper role for Commission "expertise" or experience in the administration of the treacherous problems of determining what issues are raised by a broadcast and whether those issues are "controversial." The FCC has by now had 40 years of experience in dealing with telecommunications broadcasts and we may assume that it has gained the institutional experience which aids in the sifting and weighing of evidence in the application of the above-stated standards relating to the "implicit issue" problem and "controversiality." Furthermore, under present judicial organization, appellate courts have only a limited role in the evaluation of evidence. Finally, we must recognize that application of the "controversiality" standard and the "implicit issue" standard involve to a large extent an evaluation of the impact of a television message and a concomitant evaluation of the nature of a television communication. As noted previously, television communicates by images and not linear argumentation. The manner in which the medium presents issues and participates in public debate is shaped by this mode of communication. Thus, the very concept of a "viewpoint" presented on television is defined by the nature of the medium. This fact magnifies the necessity of an appellate court to defer to the evidence-organizing functions of an experienced administrative agency. The court's opinion foregoes this necessity in favor of a super-scrutiny of the evidence. This is inconsistent with sound appellate practice and prior case law.

The Commission has in one sense brought this mistaken decision upon itself. It has cried "wolf" too many times, avoiding serious scrutiny of programming under the guise of deferring to licensee discretion. But at least the Commission knew there was a line to be drawn. Now the court has erased it and the "reasonableness" standard of review of licensee discretion is therefore devoid of meaningful content. The Commission could, perhaps, avoid the consequences of application of the court's analysis in the daily run of Fairness Doctrine litigation. It will do so, however, only by ignoring the broader impact of the court's opinion on its traditional tools of analysis. We may be certain that the licensees will bring this fact to the Commission's attention. There is thus no way in which this court or the Commission can long prevent a conflict between this decision here and established Fairness Doctrine analysis. I think that potential conflict should be resolved now, by the court sitting en banc.

At various points in its opinion, the court reminds us that journalistic or editorial discretion in the presentation of news or public information is the core concept of the Free Press guarantee. On this there can be no dispute. What can and should be disputed is whether a legal judgment by the licensee that a Fairness obligation does or does not attach to a particular program is such an exercise of "journalistic discretion." I know of no aspect of First Amendment doctrine that supplants the primary role of the courts and various censoring agencies in the definition of whether certain speech is fully protected vel non. Therefore, a legal judgment by a licensee that its programming is or is not subject to the Fairness Doctrine cannot be legally binding upon the FCC or this court, in any form, as a true exercise of journalistic discretion must be. The issue in Fairness Doctrine litigation is whether an exercise of journalistic discretion is to be protected, not whether the licensee could reasonably conclude that it is. This follows from the fundamental precept of the Fairness Doctrine that only overall programming must be balanced and not each individual program. The legal argument thus in a very real sense turns on future obligations and not on past practice alone. In short, it is for the courts and not the licensee to define the licensee's future obligations under the Fairness Doctrine and we cannot subvert this legal issue and our responsibility to resolve it by terming the issue itself an exercise of journalistic discretion.

As discussed in Part A above, the Commission does have a requirement that a licensee's judgment as to the existence of a controversial issue of public importance in a particular broadcast will be overruled only if unreasonable. However, the purpose of this requirement is apparently the need to reduce the burden of Fairness Doctrine litigation. The requirement of licensee unreasonableness coupled with the strict pleading requirements necessary to make out a prima facie violation of the Fairness Doctrine operate as "sensitive tools" to reduce litigation with censoring agencies in this delicate area. The First Amendment overtones to the reasonableness standard thus lie in this. But these First Amendment interests are rooted in controlling the process of distinguishing protected from unprotected speech and only with protecting journalistic discretion to the extent journalistic discretion might be hampered by the prospect of constant litigation. And these First Amendment interests have nothing to do with the "journalistic discretion" to represent to the censoring agent that a past exercise of journalistic discretion is something other than what it appears.

Two conclusions follow from a recognition of the court's error in granting First Amendment protection to a licensee's legal judgment. First, any expansion of traditional concepts of judicial review of agency action, such as that suggested by the court in this case, cannot be justified by First Amendment interests, at least when the issue involves whether a broadcast raises a controversial issue of public importance. It follows that the extraordinary process of judicial review utilized by the court was improper. Second, it is abundantly clear that any possible insensitivity by the Commission, and I certainly perceive none, to the requisites of the "reasonableness" standard does not involve an intrusion into journalistic discretion but rather into the procedural guarantees that surround administration of the Fairness Doctrine. I do not think that any reasonable argument could be made that the Commission decision in this case in any manner infringed these procedural guarantees, as those procedural guarantees are presently understood. The fact that the Commission overruled the licensee's judgment in this case does not by itself raise any First Amendment issues.

The constitutionality of some FCC regulation of broadcast journalism under present assumptions of scarcity of broadcast frequencies is settled by Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). However, as the court notes, the Court there approved only the personal attack and the political editorializing rules and expressly stated that it did not "approve every aspect of the fairness doctrine." The language of the decision was more broad than the holding and provided the theoretical basis for a broadscale regulatory effort. In the more recent case of Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) the Court appeared to retreat from the more expansive dicta of Red Lion and stated that under the Federal Communications Act: "Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted. . . ." Furthermore, in the case of Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), the Court held that the Free Press guarantee protects the exercise of journalistic discretion in the presentation of a particular issue. Statutory-constitutional review after CBS and Red Lion thus requires us to define the contours of the "public interest" which may over-balance the protected journalistic discretion of the licensees.

In CBS itself, the Court held that the interests of the public in direct, paid access was not sufficient to overcome the protected journalistic discretion of the licensees. However, the Court in dicta reaffirmed the concept of the Fairness Doctrine and seemed to suggest that the Fairness Doctrine was a permissible public interest obligation which might outweigh the interest in protected journalistic discretion. The distinction between the Fairness Doctrine, which requires presentation of contrasting views, and paid access, which accomplishes the same result, is that in the former journalistic discretion is placed between the holder of the contrasting view and the audience. Thus, the Fairness Doctrine is, the Court suggests, a less limited governmental intervention into the process of journalistic discretion. The key to this statutory-constitutional holding of CBS, extremely relevant to the case under review here, is that a system of paid access would give rise to an indeterminable number of Fairness obligations and other sorts of governmental regulations which will intrude into the journalistic process. It is this sort of governmental oversight of day-to-day broadcast operations that is basis of the infringement of protected journalistic discretion. An expansive view of the number of issues to which a Fairness Doctrine obligation attaches would have a similar result. For expressly this reason, this court in Healey v. FCC, 148 U.S.App.D.C. 409, 460 F.2d 917, 923 (1972) warned that the definition of a "controversial issue of public importance" should not be so expansive.

The issue thus presented is: how may a non-vague line be drawn between those issues to which a Fairness Doctrine obligation attaches and those to which it is not. Red Lion held that the personal attack and editorial reply rules (the later being a backstop to the equal time provisions of 47 U.S.C. § 315 (1970)) do represent a sufficiently significant public interest to outweigh protected journalistic discretion. These suggest that individual privacy and the protection of the electoral process from undue influence are compelling public interests and there is much doctrine outside of the broadcasting area to support that determination. This court in Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969) extended the definition to matters of public health where there existed a documented public health danger and a risk that persons might be uniformed about it. A further element in the Banzhaf balance was the fact that the speech involved was commercial speech and thus entitled to less protection. Presumably, a further element in the balance, to be weighed on the side of journalistic freedom, is whether the particular government intervention is information control, i. e. the licensee must present a contrasting view, or absolute censorship, i. e. the broadcaster is forced off the air.

The post Red Lion constitutional-statutory issue perfectly framed by this case is whether the careful definition of a "controversial issue of public importance" outlined in the decided appellate cases should be extended to include major legislation pending before a significant legislative body when the journalistic interest is at its height, i.e. investigatory journalism. Is a "balanced" discussion of those sorts of issues a sufficiently important public interest to justify curtailment of journalistic discretion in such circumstances? I think this a very serious constitutional question which is obscured by the court's decision and now avoided since the court has decided not to reconsider the case en banc.

I had thought when the court originally decided to rehear the case en banc that at least some of the questions I have raised about the panel opinion were sufficient to justify rehearing en banc. The only event between the issuance of the order granting rehearing en banc on December 13, 1974 and the order vacating that order on March 18, 1975 has been the Commission's Suggestion of Mootness. I am led to the conclusion that this must be the cause for the March 18 order, although the order does not so state, simply referring the Suggestion to the panel. If this is the cause, I am at a loss to understand the court's action.

First, the basis for the suggestion of mootness is the passage of the legislation which was the partial subject of the broadcast; but that act was passed before the issuance of the panel opinion. The panel expressly confronted the issue of mootness in footnote 88 and rejected it for the obvious reasons. The fact that the FCC now presses the argument adds nothing to the potential mootness question. The issue is equally frivolous in my view whether considered sua sponte or upon the Suggestion of the Commission. The mere fact that the Commission now wishes to vacate its order in this case is, of course, no addition either since the reason why it does not wish to enforce its previous order is the erroneous conception of mootness. If the Commission is wrong on the mootness point, then it must enforce its order upon application by the intervenor or suffer reversal in this court.

Second, there is no reason to believe the panel will reverse itself on the mootness question. As the panel itself notes, even if the cause is now moot in regard to enforcement — and I see no reason why it would be — the stay pending disposition in this court must be explained. And surely the panel opinion is the vehicle for doing that. Thus, the panel opinion will remain the law. Furthermore, the Suggestion of Mootness is frivolous since controversiality in this case was never premised entirely on the fact that a majority of Congressmen might agree with the concept of overall performance and the need for reform presented by NBC. I certainly hope we have not yet reached the stage where a majority of Congressmen can by their votes determine that an issue is no longer "controversial." And presumably the definition of "controversial" does not mean that whatever a majority of citizens believe is per se non-controversial. We might certainly question whether the interest groups that fought the pension legislation have now been converted and believe the Congressional action has become magically non-controversial by a movement of the Presidential pen. The argument is not substantial.

The Commission in its brief on rehearing en banc tells us that it did not seek rehearing because it felt the panel opinion resulted "from a difference in interpretation of this particular case." As discussed in Part I supra, I think the Commission is unduly sanguine about its ability to ignore the panel's analysis in future cases. Perhaps the Court too can confidently consign this opinion to the judicial boneyard. I cannot. And this says nothing about the potential constitutional issues the court's opinion obscures. The court was right the first time, when it ordered rehearing en banc.

I suspect the court's action in reinstating the panel's opinion and denying rehearing en banc will be seen in some quarters as a vindication of the First Amendment rights of the telecommunications press. But it is not, appearances notwithstanding. The court has rather provided licensees with a litigation strategy for avoiding adverse Fairness Doctrine rulings — i. e. hassling complaining parties and the FCC about the definition of the controversial issue and whether a particular broadcast raises that issue. I see no purpose in providing such a litigation strategy but if that were all that occurred, we would only, as Roscoe Barrow notes in his commentary on the panel opinion, "have resorted to extracting some of [ Red Lion's] teeth." But the greater fear is that this litigation strategy will back up into the journalistic process itself and lead to the manipulation of programming in a manner designed to avoid the Fairness Doctrine through contortions in the subject matter of the program. If this occurs, we would be faced with the ironic consequence of the court's action having a greater chilling effect on broadcasters than a forthright, open application of the Fairness Doctrine. The court will have granted the broadcaster the right to make non-controversial speech and in the name of the First Amendment, broadcasters may seek to embrace this "right." I seem to recall that it is controversial speech and not the right to assert that one's speech is not really controversial which should be protected. A corollary to this fear is my concern that invocation of the right to assert one's speech is not really controversial will only serve to denigrate and compromise a genuine journalistic achievement. I wonder what the professional journalists who prepared the "Pensions" program think about NBC's litigation position in this case that their program was not really controversial. My own thought is that NBC has by its litigation position done more to attack and undercut the "Pensions" program than anything AIM could have done through the FCC. This is the saddest commentary of all.

A further serious drawback to the court's approach is that it increases rather than decreases the ambiguity of the Fairness Doctrine. The uncertainty of operation of the Fairness Doctrine both heightens its chilling effect and increases the possibilities of Commission abuse of the Doctrine through "raised eyebrow" harassment as an alternative to overt enforcement and judicial review. The uncertainty also serves as a potential cover for politically motivated applications of the Fairness Doctrine. As the standards of the Doctrine become increasingly subjective, the direction in which the court points us, the possibility of political biases infecting decision-making of both Commissioners and appellate judges becomes a more serious concern. I had thought it agreed that if we must have a Fairness Doctrine, we should be as concise and definite as humanly possible in its administration. The court takes us in the opposite direction. The corollary to this point is that, as I noted in another context, the First Amendment must always rely on rational analysis and constitutional command to support its invocation when its majority support is fragile, such as in the case of controversial and unpopular speech. The point applies as well to the licensees whose litigation judgments, it would appear, will now have much to do with how the Fairness Doctrine is administered. If they exploit the ambiguities of the Doctrine in lieu of a forthright attack on its constitutionality in particular applications, they will find the First Amendment less strong than before and may one day reap the harvest of that ambiguity being used in an unauthorized manner to control their expression.

The court's opinion leads me to recall a favorite Lincoln story. He was asked by a delegation of constituents to make a public statement which he knew the people would never accept. After countering several arguments in favor of the statement, he asked the group: How many legs will a sheep have if you call the tail a leg? Five, answered the group. No, said Lincoln, he would have only four. Because a tail is not a leg.

I dissent.

[390] LEVENTHAL, Circuit Judge (concurring in part and dissenting in part):

This has been a Big Case with issues large in law and judicial approach. This is the way it ends: All the judges on the panel that drew this case agree on the dissolution of the order of the Federal Communications Commission that the National Broadcasting Company's Pensions telecast violated the Fairness Doctrine. But the reason for the result differs from judge to judge.

The panel has for consideration, following the withdrawal of the court en banc, a suggestion of mootness filed by the FCC. Judge Fahy declines to accept that suggestion of mootness, which would, if entertained, have meant that the FCC was required to dismiss the proceeding, as a matter of jurisdiction, and without regard to its own discretion. I agree with Judge Fahy as to this ruling, for reasons set forth in part III of this opinion responding to Judge Tamm's view that the mootness doctrine is applicable.

Judge Fahy has written an opinion which remands the proceeding, to permit the FCC to vacate its order in the exercise of its discretion, on an equitable doctrine rooted in considerations of administrative and judicial discretion. While I disagree as to this course, I do not undertake to enlarge on my reasons, for this disposition ordered by Judge Fahy is not as objectionable as a dismissal for mootness. Indeed I would be ready to join affirmatively in the order implementing Judge Fahy's opinion if necessary to break an impasse.

1. The Commission's suggestion of mootness contends that "the case has become moot as a result of the enactment of legislation dealing with pension reform, leaving NBC no longer under a duty to comply with the Commission's order." It says that "[n]either of the original adversaries in this dispute (NBC and AIM) nor the Commission stands to gain or lose by this Court's resolution of the case." Id. at 5. However the Commission takes care to emphasize that it continues to adhere to its determination that NBC violated the fairness doctrine. And both NBC and AIM contend that the case has not become moot.

2. The FCC's claim of mootness presents the same issue that this court considered sua sponte — as it was bound to do, on a matter of jurisdiction — in our opinion of September 27, 1974. In holding that our jurisdiction 170 U.S.App.D.C. at ___, 516 F.2d at 1133-1134 n. 88) had not been undermined by mootness we said:

We conclude our opinion on the merits with a brief comment explaining that it has not been mooted by the passage of the Employment Retirement Income Security Act of 1974 (Public Law 93-406) signed by the President on Labor Day, September, 2, 1974, while this opinion was being distributed to our colleagues for information, and readied for publication. First, the passage of the act does not technically moot any aspect of this case because legislation is always subject to reconsideration and modification. Second, we think the principle of Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515-16 [ 31 S.Ct. 279, 55 L.Ed. 310] (1911) on recurring controversies is properly invoked.

Third, this opinion sets forth the reasons for maintenance of the stay pending appeal ( see note 18 and text thereto). The case was expedited because the pensions bill was on a current legislative time table. Following oral argument on the merits the panel voted, with one dissent, that it would vacate the Commission's order, and continue the stay pending preparation of the opinion. All votes are subject to reconsideration, and if in the course of preparation of the opinion it had become evident that an opinion for reversal "would not write," the court would have reversed course. But the court continued to adhere to its vote, and this opinion on the merits is also, therefore, an opinion explaining why the court continued its stay in effect.

On this issue, there was no dissent. Judge Tamm did not contend that the case should be dismissed, but that the FCC's order should be affirmed.

3. The FCC takes note that NBC, when it sought and obtained a stay from the Commission and this court, voiced the concern that if it complied with the FCC's order it might be confronted with the claim that the appeal was rendered moot. The FCC continues: "Ironically DeFunis subsequently established that issuance of a stay would also moot the case." And the FCC explains that DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974), issued after it filed in this court its opposition to NBC's motion for stay, wherein it stated that "this Court has full discretion to consider questions of continuing importance to the public interest even though the immediate controversy which gave rise to the case may have been resolved."

DeFunis, however, was a case where the plaintiff-petitioner was scheduled, by the mere passage of time, to lose all pertinent contact with the governmental authority whose practice was being challenged. The significance of the loss of contact is sharpened by the Court's virtually simultaneous decision in Super Tire Engineering to be discussed presently, and with its rulings in class action cases. The Court noted that DeFunis had not brought his case as a class action. There are several class action cases where the Court exercises jurisdiction because the class may continue to have contact with the governmental entity although the original litigating member of the class loses such contact.

In striking contrast with DeFunis is the case of NBC, which remains subject to FCC's monitoring and doctrines. NBC's continuing contacts with FCC present the reasons for review that arise for orders evading review and orders with collateral consequences. As Judge Tamm has recently pointed out, the former doctrine has application when officials maintain in effect the program under challenge, even though any future violations will not present "identical circumstances." Carlson v. Schlesinger, 167 U.S.App.D.C. 325, 511 F.2d 1327, 1338 (D.C. Cir., 1975). Here, the FCC has not recanted, or disavowed as rooted in error its specific ruling that NBC has violated the fairness doctrine, or its general approach to application of the fairness doctrine.

Fairness rulings raise the problem of a chilling effect on broadcast journalism. And specifically NBC, with its owned and operated stations, faces the possibility that the Pensions broadcast will haunt their renewal applications. AIM, or members of the public of the same view, may oppose renewal on the ground of past non-compliance with licensee obligations. Indeed, AIM had notified each station carrying the "Pensions" program, that it intended to enter notice of the fairness doctrine violation in the station's file and warned that the licensee "may have this used against him in any challenge to a license renewal."

In sum, this case is governed not by DeFunis but by the decision rendered by the Supreme Court one week earlier in Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974). There the Court found that an employer's challenge to state grants of public assistance to striking workers was not mooted by the resolution of the strike prior to decision in the district court. The Court ruled that the controversy persisted because "the challenged governmental activity in the present case is not contingent, has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties." Id. at 122, 94 S.Ct. at 1698.

4. I have referred to the "collateral consequences" doctrine as part of the total picture of the case. While this doctrine has usually been employed in criminal cases, it applies with equal force to civil actions. In accordance with this rule, Judge Tamm observed in In re Ballay, that the existence of collateral consequences provides "yet another independent reason why the present appeal is not moot." 157 U.S.App.D.C. 59, 62, 482 F.2d 648, 651 (1973).

5. This complex of factors produces an ongoing resonance in fairness doctrine rulings, especially when no definite life span has initially been set for the ruling. Thus it was that the Supreme Court proceeded to the merits in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), although the personal attack, that was held to trigger the "right of reply" aspect of fairness, had been broadcast as long as five years prior to the Supreme Court decision.

The Commission did not limit its 1973 order to NBC in the fashion its counsel now say was what it "contemplated," that NBC's fairness broadcast be made prior to the legislative battle. If anything, a personal attack is more likely to recede in mists of time than presentation on a public issue. Pensions, and what to do about them, are matters of continuing concern.

6. Finally, any diminution in practical consequence of the FCC order does not establish mootness for lack of adversary posture. Even if the FCC had wholly lost interest in the cause, complainant AIM — which triggered the FCC proceeding and consideration — has a continuing interest. Such a complainant must be given status, at the appellate level, of an intervenor in support of the government position, who may appeal even when the government agency wants submission to the court. United Automobile, Aerospace and Agricultural Implement Workers v. Scofield, 382 U.S. 205, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965). More important, the very premise of Southern Pacific jurisprudence is that adversariness may flow not from the particular order but from the underlying principle at stake. While a "common law mootness" falling short of "constitutional mootness" may lead a court to exercise discretion to abstain from considering a case, in the allocation of limited time and energy, here we have already had full and deliberate reflection and preparation and publications of opinions, and considerations of judicial administration run against obliteration of what has been done. We do not rescind an opinion even where the factual record underlying the opinion has been established on remand to require correction. Allen v. United States, 131 U.S.App.D.C. 358, 404 F.2d 1335 (1968).

Curiously, Judge Tamm, while professing to say that the case is now moot, which would mean lack of jurisdiction, seizes the occasion to enlarge on his views of the merits, and to unwind an extended critique of the opinion on the merits of a majority of the panel. Without engaging in a point by point rejoinder, which might prompt the kind of surrebuttal that flourished in the days of common law pleading, it may be useful to identify the salient premises of the court's opinion.

1. The court's opinion rejects the premise — however permissible logically, or sound psychologically — that an effective depiction of abuses in an institution is pro tanto an attack on the institution, which calls for a full perspective in order to comply with the fairness doctrine. That doctrine calls for more than strict logic or balance. It calls for respecting the public's right to know but without stifling investigatory journalism.

2. The vice in the Commission's opinion was that in deciding that NBC had presented only one viewpoint on a "controversial issue of public importance" it used the approach of ascertaining what issue or issues had been presented in fact, instead of approaching the case from the viewpoint of whether NBC had been reasonable in its view of the issue or issues being presented. The court's ruling is not based solely on the telltale formulation in paragraph 17 of the Commission's opinion of the "specific question properly before us," but on the approach underlying and pervading its opinion.

3. It is said that the court's function is to sustain an administrative agency if its determination is supported by substantial evidence. That rule is subject to a special gloss when the primary responsibility is not in the agency, as is normally the case, but in a private licensee with public aspects, who has a discretion suffused with First Amendment values. In such a case when there is substantial evidence for both results it is the licensee who prevails — under an exception to the normal rule that when there is substantial evidence both ways the agency must prevail. While the court's opinion was not couched in these precise terms, it rests on the predicate that there is substantial evidence to support the licensee's determination as reasonable, and consequently the FCC's determination rejecting the licensee's determination cannot be valid in law.

To avoid any possible misunderstanding, I wish to emphasize that the court's decision did not rest on the majority's own analysis of the issue presented in the broadcast — on our own, we might very well have expressed a view closer to that of the FCC — but on our conclusion that there was plainly substantial evidence to support the licensee's approach as reasonable.

To say that the FCC must be affirmed so long as there is substantial evidence to support its judgment that the licensee was unreasonable, in its characterization of the issue presented by a program or its evaluation of the controversiality of an issue, would require affirmance even if the licensee's characterization was not only reasonable but more reasonable than that of the Commission. This application of the conventional standard of review would subject the licensee to intolerable second-guessing by the FCC, and undermine the carefully balanced scheme adopted by Congress to protect licensees from undue governmental interference. Instead of looking to see whether the Commission's conclusion is supported by substantial evidence, the court must ask whether the licensee's judgments are based on "such relevant evidence as a reasonable mind might accept as adequate."

It bears reiteration, for emphasis, that "a court is properly exercising the high judicial function of assuring that agencies respect legislative mandates when it studies the record to make certain that the Commission has not interpolated its own judgment and wrested the primary discretion Congress placed in the licensee, without making the requisite showing of abuse of the licensee's journalistic discretion." 170 U.S.App.D.C. at ___, 516 F.2d at 1123.