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02/02/72 Democratic National v. Federal Communications

February 2, 1972











Companies, Inc., et al., Intervenors.

America, Respondents, Democratic National Committee et al.,


Nos. 71-1637, 71-1723 1972.CDC.27


Tamm and MacKinnon, Circuit Judges, and A. Sherman Christensen,* U. S. District Judge for the District of Utah.


In these consolidated appeals we are once again asked to review a decision of the Federal Communications Commission (hereinafter either "FCC" or "the Commission") which was issued under the Commission's fairness doctrine. The two petitioners are the Democratic National Committee (hereinafter "DNC") and the Republican National Committee (hereinafter "RNC"). The three major networks, American Broadcasting Companies , Columbia Broadcasting System, Inc. , and the National Broadcasting Company , have all intervened in these actions and have filed briefs with the court, as has the Office of Communication of the United Church of Christ. While the issues in both actions revolve around the fairness doctrine, they do not raise precisely the same questions of law or involve the same facts. Therefore, it will be necessary for us to examine the facts and contentions of each of the petitioners separately. I. The Facts

DNC placed three questions before us in its pleadings. They are:

(1) Did the FCC construe the fairness doctrine so as to deny DNC an opportunity to respond to three presidential network appearances thereby constituting an arbitrary act contrary to the "public interest" standard of the Communications Act of 1934?

(2) Did the FCC's application of the fairness doctrine conflict with the paramount first amendment right of the public to be informed on the controversial issues of the day which affect the conduct of our government?

(3) Were the FCC's procedures in this case adequate to safeguard the first amendment interests relating to the fairness doctrine which were involved in this litigation?

DNC now requests us to review the Memorandum Opinion and Order of the Commission, 22 P. & F. Radio Reg.2d 727 (1971), which denied a request by DNC to compel the three major networks to provide time for DNC to respond to three separate appearances made by the President of the United States on radio and television.

The first of the appearances to which DNC seeks the right to respond was a March 15, 1971 telecast of the "Today" show broadcast over the NBC Television Network. During the two hour show there was a 48 minute interview of the President by Barbara Walters, one of the show's regular staff. This interview centered on the President's family life, the effect of his public career on his wife and family, and the role of his wife in his decisions as a public official. The President also gave his opinion as to "many of the important issues of the day." (J.A. 1.) NBC refused a request by Lawrence F. O'Brien, Chairman of the DNC, for exposure on "Today" similar to that afforded the President.

The second broadcast to which DNC sought to reply was entitled "A Conversation With the President" appearing March 22, 1971 on ABC. The program was a one-hour interview by Howard K. Smith. This program was broadcast simultaneously over both ABC radio and television. A major portion of this interview related to an explanation of the President's program and policies in Vietnam. He espoused the virtues of his Vietnamization program and of his policy of not announcing a date certain for total withdrawal of all American forces in Southeast Asia. The President also spoke about his veto of the election reform bill during the last session of Congress which had the wide-spread support of the Democratic Party. In addition he explained the rationale for his proposed revenue-sharing proposals to the Congress. ABC rejected DNC's request for time to respond to the interview.

The last of the programs here in question involved a Presidential address to the nation on April 7, 1971, on all three major networks, on both radio and television. The broadcast involved the Administration's programs and policies in Southeast Asia. DNC contends that

the address was a forceful defense of the President's Vietnam war policies. It was also highly partisan in tone and content. The President unambiguously placed the blame for that tragic conflict on previous Democratic administrations and strongly suggested that his predecessors had no program to bring that war to an end. (A. 80) At the same time, he claimed unqualified success for his policies, including his Vietnamization program and the military invasions of Cambodia and Laos. (A. 80-82.)

(DNC Br. at 5.) Once again, the President explained his opposition to establishing a fixed date for withdrawal of all of our troops from Vietnam. The views expressed by the President in this area were in direct conflict with those of the Senate and House Democratic Caucuses and of the DNC Policy Council. DNC sent telegrams to each of the networks requesting an opportunity to respond. This request was denied by NBC and CBS. ABC agreed to grant the Democratic Party one-half hour of prime-time to permit a spokesman to speak about the American policy in Vietnam and explain the differences between the Administration's policy and that of the Democratic Party. On April 22, 1971, ABC broadcast "Indochina: Another View" on both ABC radio and television.

Alleging violations of the fairness doctrine, DNC filed four complaints with the FCC requesting that the networks be directed to provide time to DNC to respond to the above described Presidential appearances. Specifically they requested the Commission to order responses to (1) the March 15 interview on "Today" and the April 7 Indochina address on NBC; (2) the March 22 Howard K. Smith interview on ABC; and (3) the April 7 CBS presentation of the Indochina address.

The gravamen of the DNC complaint was

that the three television appearances at issue were part of a deliberate presidential television blitz designed to provide increased exposure for President Nixon's positions on controversial issues and to improve his image with the electorate at a time when the 1972 presidential campaign was underway. Unless response time were afforded to the Democratic Party, the complaints stated, the President would have a virtual monopoly over access to the most powerful and influential of all communications media.

(DNC Br. at 7.)

Two of the complaints, one regarding the Howard K. Smith interview and the second being the Indochina address, were based on traditional fairness doctrine principles. DNC contends that those appearances were of a partisan nature requiring rebuttal by the opposition party. As to the "Today" show broadcast, it was DNC's position that the sole purpose of the show was to improve the President's image with the voting public. This, they assert, was a purely political appearance which gave rise to an "equal opportunity" situation under ยง 315 of the Communications Act of 1934.

In their answers to DNC's complaint, the three networks alleged that the fairness doctrine only required that there be a reasonable opportunity for discussion of conflicting views with regard to issues of public importance. It was the networks' contention that they had each achieved the required balanced broadcasting of each of the issues discussed by President Nixon in the three appearances in question and that refusal of DNC's request for time to respond was therefore justified. To support these contentions both ABC and CBS submitted detailed data on programs on which parties opposed to the Administration's war policy had appeared. NBC did not submit any such data but did allege achievement of the required programming balance. DNC then requested the FCC to hold an evidentiary hearing in order to test the presentations of the networks' by way of the adversary process.

DNC wrote to FCC Chairman Burch more than three months after filing its complaint to protest the Commission's delay in ruling on the DNC complaints. Two weeks later, still having no indication of action by the Commission, this suit was filed. However, on August 20, 1971, the Commission issued its Memorandum Opinion and Order, 22 P. & F. Radio Reg.2d 727 (1971), denying DNC the relief sought. We shall consider the Commission's ruling infra.

B. Republican National Committee v. Federal Communications Commission, No. 71-1723

RNC also seeks review of the Commission's Memorandum Opinion and Order, FCC 71-882, of August 20, 1971, 22 P. & F. Radio Reg.2d 727 (1971), which denied RNC's claim that ABC had violated the fairness doctrine. In seeking this review RNC raises two distinct questions which were not raised by DNC. Initially, RNC claims that it was error for ABC to fail to consider its non-news programs in determining whether fairness had been achieved in its coverage of the war in Indochina. Secondly, RNC asserts that it was error for the Commission to fail to meaningfully articulate disposition of RNC's complaint that ABC failed to consider a meaningful viewpoint in its coverage of the Vietnam war, i. e., the position of the Republican Party.

RNC requested that ABC grant it time to respond to Chairman O'Brien's broadcast which was in response to the President's radio and television broadcast of April 7, 1971. In its response to O'Brien's request ABC maintained that its "overall coverage of the Indochina issue ha[d] been fair and balanced, complying fully with the requirements of the FCC Fairness Doctrine," (J.A. 86) nevertheless, ABC granted DNC a half-hour of prime-time in order to present the views of the Democratic Party after determining that "in view of the importance to the nation of the Indochina issue, additional coverage at this time would serve the public interest." Id.

RNC was particularly concerned that ABC's grant of time to DNC would serve only to polarize the war issue along partisan lines. They took this position based on ABC's statement that prior coverage had been fair and balanced. It was RNC's feeling that once these partisan presentations were begun that RNC should be given an opportunity to present the views of the Republican Party qua political party. In responding to RNC, ABC made it clear that they were not of the belief that DNC was automatically entitled to, or granted, a right to respond to the President's appearance. ABC asserted that its decision was made only after an analysis had been made by its News Department of all previous coverage of this topic by the network. Based on this analysis ABC deemed it necessary to give additional time to DNC.

In a letter sent to Senator Robert Dole, Chairman of RNC, Leonard H. Goldenson, president of ABC wrote that:

[ABC is] denying the request of both the Republican and Democratic National Committees for detailed reports and logs of our coverage of the issue under discussion. As we previously indicated, our News Department carefully analyzed all the material relating to this coverage and concluded in good faith, and based upon their professional judgment, that opportunity should be given Democratic spokesmen to express their opinions on a limited issue. The Fairness Doctrine requires us as responsible broadcasters to exercise that good faith judgment on programs, formats and spokesmen for presentation of contrasting views, and that we have done. We ...

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