Brandywine-Main Line Radio, Inc. v. Federal Communications Commission, Greater Philadelphia Council of Churches, Intervenors

BAZELON, Chief Judge,

dissenting:

In this case I am faced with a prima facie violation of the First Amendment. The Federal Communications Commission has subjected Brandywine to the supreme penalty: it may no longer operate as a radio broadcast station. In si*64lencing WXUR, the Commission has dealt a death blow to the licensee’s freedoms of speech and press. Furthermore, it has denied the listening public access to the expression of many controversial ’ views. Yet, the Commission would have us approve this action in the name of the fairness doctrine, the constitutional validity of which is premised on the argument that its enforcement will enhance public access to a marketplace of ideas without serious infringement of the First Amendment rights of individual broadcasters.

This paradoxical result is sustained only by a faith in the argument that, despite some short-term casualties along the way, long-term enforcement of the fairness doctrine’s obligations is the only means to achieve the marketplace ideal. But if we are to go after gnats with a sledgehammer like the fairness doctrine, we ought at least to look at what else is smashed beneath our blow.

Our perception of the need for broadcasting regulation has not, in Judge Tamm’s words, “seriously been questioned in over fifty years.” A re-examination of the value, purposes and effects of the fairness doctrine raises for me such serious doubts about the constitutionality of its application here that I am compelled to withhold my affirmance.

Instead, I would remand to the FCC for a searching inquiry into the factual issues and alternative policies1 raised within the constitutional framework outlined below, before we can even begin to answer the question: does silencing WXUR in the name of the fairness doctrine violate the First Amendment?

The entire field of governmental regulation of broadcast communication is so fraught with competing interests and uncertain results, and the shifting balance of First Amendment freedoms offers so few definite guidelines in this area, that there is no easy answer to this question. My Brother Tamm has written a lengthy, detailed opinion which carefully applies Commission regulations to the facts of this case; there was perhaps a time when I could concur fully with his conclusions. But I fear that ancient assumptions and crystallized rules have blinded all of us to the depth of the First Amendment issues involved here. In affirming the Commission, Judge Tamm relied on its application of the fairness doctrine and the Supreme Court’s decision in WOKO. Judge Wright, on the other hand, relied only on WOKO. But I must dissent on both counts. My purpose in writing a separate opinion is to try to come to grips with the conceptual underpinnings which have led the Commission to such ironic consequences in the case before me.

I.

I begin with a discussion of the standards according to which regulation of broadcasting by the federal government must be judged. And I say “judged”, because it is the particular duty and function of this court to test all federal regulation of speech and press against the mandates of our Constitution. The “public interest”, the standard under which the FCC operates, cannot be divorced from our contemporary understanding and interpretation of the First Amendment.

The purpose of the First Amendment is to preserve an “uninhibited marketplace of ideas.”2 Its language presupposes the general concept that the marketplace is best preserved by protecting the right of each individual to speak freely; that “the fitting remedy for evil counsels is good ones”,3 rather than *65coerced silence, or governmentally directed discussion. Thus, “the First Amendment does not speak equivocally. It prohibits any law ‘abridging the freedom of speech, or of the press.’ ” 4

Such has always been the logic behind our strict protection of the freedom of the press to disseminate news and views on public issues from the imposition of governmental burdens or regulations.5 The First Amendment's mandate that freedom for the individual is the only means to achieve the marketplace ideal of an informed American public “[t]o many ... is, and always will be, folly; but we have staked upon it our all.”6

Of course, there have been exceptions to this general proposition. There is a need to accommodate other societal interests: as Mr. Justice Holmes said in Schenck v. United States, “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”7 The government may also act affirmatively to regulate behavior which directly threatens the free speech of others.8 New types of regulation which promote effective communication may be required: “the various forms of modern so-called ‘mass communications’ raise issues that were not implied in the meaning of communication known to Franklin and Jefferson and Madison.”9

*66Regulations which are designed to make the system function effectively may have an adverse impact on a particular individual’s rights. But abridgement of individual rights may be tolerated only when in the long run it enhances the right of the public to receive access to the marketplace of diverse views. Obviously this requires a delicate balancing: any harm to private rights must be outweighed by benefit to the public.10

This balancing process has been applied to regulation of the broadcast industry,11 although in its infancy radio enjoyed the same freedom as the printed press: that is, “anyone who will may transmit.”12 The 1912 Radio Act gave no discretion to the Secretary of Commerce in the granting of broadcast licenses.13 But by the 1920s the number of broadcasters had increased so dramatically that every “channel” was occupied by at least one station, some by several. The resulting chaos “shook the broadcasting world and left an indelible impression of the dangers of non-regulation.”14

By 1927 it had become clear that private over-use of the airwaves threatened the public’s right to listen to what was being said. “With everybody on the air, nobody could be heard.”15 Some conditions had to be set by Congress to restrict use of the broadcast medium— conditions which created the scarcity of the resource which has come to be the outstanding characteristic of the industry.16

*67Unlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all, some who wish to use it must be denied.17

Only because private rights of access to the air had to be limited, was it feared that the public’s right of access to a robust marketplace of ideas would be endangered.18 Congress authorized the newly-created Commission to insure that broadcasters operate “in the public interest” — a duty which had never been imposed on the printed media. But Congress did “not license the Commission to scan the airwaves for offensive material with no more discriminating a lens than the 'public interest’.”19 Each new form of regulation which departed from the strict “hands-off” policy ordered by the First Amendment required a careful balancing of private vs. public rights in light of the paramount goal of a marketplace of ideas.

Many reasons have been given for the regulation of broadcasting.20 But behind all formulations lies the simple fact that a broadcast license is a scarce resource. Regulation by government cannot, under the First Amendment, be divorced from the threat to the marketplace posed by the unique characteristic of scarcity. The temptation is, however, to rely on familiar formulas to justify' new regulations, even where they may not be justified by the First Amendment test.

For instance, it is often stated as a foregone conclusion that a “broadcast license is a public trust subject to termination for breach of duty”, 21 and thus *68that the public may attach whatever conditions it believes necessary to protect its interest. Certainly government might claim ownership of the airwaves, just as it has claimed ownership of parks and streets and postal facilities, for the public good. But it cannot, unlike a private owner, place restraints upon the First Amendment rights of those who use this property simply by declaring “I own it.” The very fact of public ownership or control brings into play the First Amendment, which requires that governmental authority may not be used in and of itself to justify deprivation of freedoms of speech and press.22 Were it otherwise, these constitutional protections would fall to the caprice of governments.

There is some usefulness in the “public trust” terminology only if it is understood to be derived from technical scarcity in the broadcast industry. To the extent that government can and must impose restrictions upon licensees in order to deal with the problems posed by scarcity, a broadcast licensee is a trustee. But the scope of the trust duties cannot be extended beyond what is required to preserve the marketplace of ideas from the dangers which scarcity may threaten. Thus the term “public trust” expresses the result of a complicated process of constitutional reasoning by a deceptively simple formula. It is a conclusory label dangerously applied without reference to its history or derivation, and has no constitutional weight of its own.

As we have stated before:

First Amendment complaints against FCC regulation of content are not adequately answered by mere recitation of the technically imposed necessity for some regulation of broadcasting and the conclusory propositions that “the public owns the airwaves” and the broadcast license is a “revocable privilege”. It may well be that some venerable FCC policies cannot withstand constitutional scrutiny in the light of contemporary understanding of the First Amendment and the modern proliferation of broadcasting outlets.23

*69ii.

Brandywine’s First Amendment complaints require that the fairness doctrine be subjected to constitutional scrutiny far more searching than either the Commission or my Brother Tamm provides. The FCC, fresh from its vindication in Red Lion, focused only on whether WXUR had in fact violated certain fairness obligations.24 Judge Tamm also relied on Red Lion to set the constitutional balance in favor of a fairness doctrine: if fairness obligations could constitutionally be imposed, the imposition must be constitutional in this case.25

But the facts cry out otherwise. WXUR was no doubt devoted to a particular religious and political philosophy; but it was also a radio station devoted to speaking out and stirring debate on controversial issues.26 The station was purchased by Faith Theological Seminary to propagate a viewpoint which was not being heard in the greater Philadelphia area. The record is clear that through its interview and call-in shows it did offer a variety of opinions on a broad range of public issues; and that it never refused to lend its broadcast facilities to spokesmen of conflicting viewpoints.27

The Commission’s strict rendering of fairness requirements, as developed in its decision,28 has removed WXUR from *70the air. This has deprived the listening public not only of a viewpoint but also of robust debate on innumerable controversial issues. It is beyond dispute that the public has lost access to information and ideas. This is not a loss to be taken lightly, however unpopular or disruptive we might judge these ideas to be.

Furthermore, even if WXUR had not been removed from the air but simply ordered to comply with the FCC’s ruling, the effect would have been strangulation. There was testimony that the monitoring procedures which the FCC required for identification of controversial issues are beyond the capacity of a small staff, or a shoestring operation.29 The ratio of “reply time” required for every issue discussed would have forced WXUR to censor its views — to decrease the number of issues it discussed, or to decrease the intensity of its presentation. The ramifications of this chilling effect will be felt by every broadcaster who simply has a lot to say.30 Thus the result in this case, and the rules it establishes, seem to move us a step backwards, away from the First Amendment’s marketplace ideal, in the name of the fairness doctrine.

When we see what is being lost as the result of a single blow of this doctrinal sledgehammer, I can only assume that the FCC must be relying on the assumption that the public interest will be served in the long run through strict enforcement of the doctrine.

What troubles me most is that the FCC and Judge Tamm apparently see no need to question this underlying assumption. The FCC is perhaps too busy applying and enforcing what it sees to be the necessities of the fairness doctrine theory. But I think the time is overripe to take our blinders off and look further toward First Amendment goals than the next regulatory step which the FCC urges us to take in the name of fairness. Ease of administration is of no weight in this field where precious constitutional freedoms hang in the balance.

Nor can we simply hang our hats on Red Lion and relax. The Supreme Court deliberately withheld its approval *71of all other aspects of the fairness doctrine, and even of further applications of the very rules it was in general approving.31 The constitutional validity of each and every application of the doctrine must be tested on its own, on a case-by-case basis.32 We must not be guilty of pouring concrete around foundation of a doctrine which enhances the public’s right of access in some circumstances but abridges that right in others.

The theory of the fairness doctrine— that the paramount right of the public under the First Amendment can only be achieved by limiting the rights of individuals so that everybody talks about everything from every point of view — has rested for so long on so many assumptions that any alternative is now hard to imagine.33 But the logic which alone can justify silencing WXUR requires that this theory be re-examined in light of the narrow constitutional test outlined in Part I above.

III.

The fairness doctrine is a venerable FCC policy which originated in an era when our fears about the effects of scarcity on the public’s right of access far outweighed what we understood would be the doctrine’s minimal encroachment on private First Amendment freedoms. In fact, our belief that government could beneficently regulate a communications medium within the confines of the First Amendment can only be understood in its historical context.

At the turn of the century, there were doubts about whether the First Amendment even applied to radio. After all, radio came into the world as a magic box analogized to the telegraph.34 In *721912, broadcasting was an “undisclosed art.” 35 By 1927 the magic box was a household word, but it still held no legitimacy as press. Rather, radio was entertainment, and it was then perhaps justifiable to ask what entertainment had to do with the First Amendment. In 1928 the Radio Commission had this to say:

. The Commission is unable to see that the guaranty of freedom of speech has anything to do with entertainment programs as such. Since there are only a limited number of channels and since an excessive number of stations desire to broadcast over these channels, the commission believes it is entitled to consider the program service of the various applicants, to compare them and to favor those which render the best service. Second Annual Report of F.R.C. 160 (1928).

The Commission’s notion that entertainment was divorced from the First Amendment was not inaccurate in 1928. The Supreme Court had in 1915 upheld a state statute establishing censorship of motion picture films.36 Not until 1952 did the Court establish that movies were within the protection of the First Amendment.37 Early court decisions affirming the power of the Commission to regulate on the basis of programming were grounded on the established power of Congress to regulate commerce and gave short shrift to the First Amendment by today’s standards.38

Broadcasters themselves were viewed as entertainers rather than responsible journalists; certainly they were not “newsmen”. The Commission felt justified in imposing upon these neophytes a series of obligations to insure that they would act “responsibly” in the public interest. In 1941 the Federal Communications Commission determined that broadcasters could not editorialize.39 In 1949 the Commission reversed itself and required that broadcasters must edi*73torialize.40 In each case, of course, the the Commission was motivated by a peculiar distrust of broadcast journalists as opposed to those who reported in print. “News” was still the business of newspapers.

Today we have arrived at different constitutional definitions as to what is protected speech.41 Certainly, broadcasting is included.42 But perhaps more significant is the fact that most Americans now consider television and radio to be their most important news source.43 Broadcast journalists have grown up. They see it as in their interest to be guided by the same professional standards of “fairness” as the printed press.44 There is no factual basis for continuing to distinguish the printed from the electronic press as the true news media.

Our fears of an unregulated broadcast industry in 1927 did focus on the scarcity of the resource. It was argued that the limited facilities would make it a natural monopoly, in distinct contrast with the flourishing competition among printed media.45 It was feared that the *74effects of this monopoly would be to silence a diversity of opinion, so the Commission determined that diversity would be enforced by governmental regulations. Some of these took the form of ownership and network restrictions, but these efforts remained largely incomplete.46 So the fairness doctrine focused on the responsibility of each “monopolist” to present views in contrast with his own so that the public would not be misled.47

*75Today, our fears of a broadcasting monopoly seem dated. The number of commercial broadcasting stations on the air as of September, 1972, was 7,458. As of January 1, 1971, daily newspapers totaled only 1,749.48 Nearly every American city receives a number of different television and radio signals. Radio licensees represent diverse ownership; UHF, local and public broadcasting offer contrast to the three competing networks; neither broadcasting spectrum is completely filled. But out of 1,400 newspaper cities, there are only fifteen left with face-to-face competition.49

This is not to say that scarcity is only a problem of the past. In Red Lion, the Supreme Court premised its analysis on the reality of the existing limitations of the resource.50 There are also a variety of new arguments being raised about the lack of access for minority groups which have not yet been dealt with by the Court.51 But Red Lion cannot be read as the final word on scarcity: the cable technology of the future was not even mentioned in the Court’s decision.

*76It is a fact that with existing equipment and technology “a single coaxial [tv] cable can carry between 28 and 36 channels of television, plus the entire AM and FM radio bands and a quantity of other non-visual electronic signals.” 52 It is predicted that in perhaps 10 years it will be possible to provide to the television viewer 400 channels;53 that by 1980 half the nation will be on cable television; and that a host of educational and public services will accompany the cable revolution which are simply mind-boggling.54

Thus, even now we possess the know-how to do away with technical scarcity through CATV.55 The costs of laying cable may at some point be prohibitive, but this is to say no more than that there may be severe economic limitations to obtaining a cable station — economic limitations which affect the printed media equally severely.56 Is it not a little ironic that we still adhere to our fears of monopoly and limited access? Ought we not instead focus our attention on how we can make the cable medium economically accessible to those who assert a right to use it ? 57

*77Scarcity raised still another fear in the early days of broadcasting — that of broadcasters, licensed by a Commission of political appointees, who would propagandize political viewpoints and privately censor all opposition.58 The spur of the fairness doctrine was thus justified as encouraging “fair” discussion of pub-lice issues, and the Commission was seen as the even-handed arbiter of “fairness.”

Yet we are told today, by highly respected members of the newspaper and broadcasting corps, that governmental regulation of broadcasting has been more pernicious than any group of private censors.59 Some of the “chilling” effects of the threat of FCC intervention, which the broadcasters say have operated to suppress discussion of controversial views and ambitious journalism, remain hidden from the public eye.60 *78Red Lion dismissed this issue as speculative,61 but this cannot be the final word. Facts can change, and so can our perception of them.

Some chilling effects have become quite obvious. In the past years, networks have come under repeated attacks from government spokesmen who did not like the way television reported a variety of hot public issues.62 These attacks did not focus on inaccuracies, but on the “bias” or lack of “fairness” in the presentation. The history of the FCC is itself replete with examples, including Brandywine itself, of the controversial viewpoint being screened out in favor of the dreary blandness of a more acceptable opinion.63 In the context of broadcasting today, our democratic reliance on a truly informed American public is *79threatened if the overall effect of the fairness doctrine is the very censorship of controversy which it was promulgated to overcome.

A final word on the crucial impact of the broadcasting media. Early in the history of regulation the fear was expressed that broadcasting might be dangerous because of its unique potential for influence and control.64 And Judge Tamm seems to warn that because we are “shifting our emphasis from the printed media to the electronic media” the need for governmental regulation has grown greater. Often it is difficult to unravel this argument from fear of monopoly control. But we must be careful to meet it head on, for rightly or wrongly it has become an unexamined prescription for all sorts of government regulation.

There is no doubt about the unique impact of radio and television.65 But this fact alone does not justify governmental regulation. In fact, quite the contrary. We should recall that the printed press was the only medium of mass communication in the early days of the Republic — and yet this did not deter our predecessors from passing the First Amendment to prohibit abridgment of its freedoms. If, as has been suggested, we are to focus on the newly acquired role of broadcasting as the 20th century version of the 18th century town meeting or political pamphlet, we must be all the more careful to preserve a “free press” in the broadcast media. To argue that a more effective press requires a more regulated press flies in the face of what history has taught us about the values and purposes of protecting the individual’s freedom of speech.

IV.

We once stated that “[i]f the fairness doctrine cannot withstand First Amendment scrutiny, the reason is that to insure a balanced presentation of controversial issues may be to insure no presentation, or no vigorous presentation, at all.” 66 An examination of the facts of this ease and the history of regulation which has brought us here raise for me serious doubts about the correctness of continuing to rely primarily on the fairnéss doctrine as the proper means of insuring First Amendment goals. The plain truth is that to uphold the Commission’s fairness ruling, not only must we bless again the road we have trav-elled in the past, we must go farther; for this will be the first time that the FCC has denied a license renewal because of fairness doctrine obligations.67

Whether in this case the Commission has simply taken the doctrine too far or applied it 'too rigidly, or whether the trouble lies deeper, cannot be determined without a remand. Even now the FCC has begun a long inquiry into a question we face here: Do fairness policies truly promote a marketplace of uninhibited, wide and robust debate ? 68 It is proper that this court urge the Commission to *80reconsider this ease in light of its fairness hearings; that we encourage the Commission to draw back and consider whether time and technology have so eroded the necessity for governmental imposition of fairness obligations that the doctrine has come to defeat its purposes in a variety of circumstances; that we ask whether an alternative does not suggest itself — whether, as with printed press, more freedom for the individual broadcaster would enhance, rather than retard, the public’s right to a marketplace of ideas.

I originally authorized issuance of the opinions of the court with my concurrence resting on the narrow ledge of Brandywine’s misrepresentations under the Supreme Court’s ruling in F.C.C. v. WOKO, Inc.69 But it is abundantly clear that the fairness doctrine is the “central aspect” of this case which even touches the core of the applicability of WOKO. I have therefore concluded that the great weight of First Amendment considerations cannot rest on so narrow a ledge.

The point to be made is simply that I had originally thought that the alleged misrepresentation could be considered separately from the other issues in the case. But upon closer consideration, it became clear to me that the subject matter of the so-called “deception”70 is inextricably bound up in the considerations underlying the fairness doctrine. The Commission found one misrepresentation explicitly concerned Brandywine’s efforts to comply with the fairness doctrine. The Commission also found that Brandywine “failed to adhere to its program proposals in other respects which are relevant to the fairness questions in this case.” 24 F.C.C.2d at 30. Furthermore, in light of my discussion of the changing relationship between the First Amendment and broadcasting, there is some question as to what the FCC may constitutionally ask of applicants with respect to programming plans and adherence to fairness obligations. Thus the application of WOKO raises constitutional questions which cannot be neatly separated, as I had originally thought.

Fortunately, Justice Jackson provided some precedent for a change of mind when he quoted Baron Bramwell as saying, “ ‘The matter does not appear to me now as it appears to have appeared to me then.’ ” McGrath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, 233, 95 L.Ed. 173 (1950).

I would remand the entire case to be reviewed in light of the matters discussed in this opinion.

. For a discussion of these policies, see notes 46, 51, 57 infra.

. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). See also Emerson, The System of Freedom of Expression (1970) [hereinafter cited as Emerson].

. Whitney v. California, 274 U.S. 357, 375-376, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927). In the words of Judge *65Learned Hand, the First Amendment “presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y.1943).

. Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 392 (1941).

. See New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964) ; N.A.A.C.P. v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed. 2d 405 (1963) ; Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed. 2d 1498 (1957).

. United States v. Associated Press, supra note 3, 52 F.Supp. at 372.

. 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). The variety of aspects of American life which are touched by the First Amendment, and the constitutional tests whicli have evolved, are discussed at length in Emerson. See also Hudon, Freedom of Speech and Press in America (1963). There is disagreement over whether a balancing test should apply at all where First Amendment rights are involved. The late Justice Black described this test as having a “freedom-destroying nature,” Scales v. United States, 367 U.S. 203, 261, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961). “Since that ‘test’ denies that any speech, publication or petition has an ‘absolute’ right to protection under the First Amendment, strict adherence to it would . . . mean that there would be only a conditional right, not a complete right, for any American to express his views to his neighbors — or for his neighbors to hear those views.” Konigsberg v. State Bar of California, 366 U.S. 36, 68, 81 S.Ct. 997, 1016, 6 L.Ed.2d 105 (1961).

But even Justice Black recognized some limits to free speech, e. g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949), which may, in itself, suggest that some balancoing is required. See Nutting, Is the First Amendment Obsolete?, 30 Geo. Wash.L.Rev. 167, 171 (1961). The primary danger of broadly asserting the need to balance interests is that there is a great temptation to reduce a constitutional right to the same weight as every other interest; “moreover, it has a tendency to tip the scales against the individual,” particularly where the balance sets the individual against the needs of the nation. Hudon, supra at 174.

Regulation of the broadcast industry is designed exclusively to promote First Amendment goals rather than any other national need. The public’s rights are weighed against the individual’s. See note 10, infra. Justice Black’s admonition must be kept in mind, however, when government begins to justify the regulation of broadcast licensees on other than First Amendment grounds. See the discussion with regard to the “public trust” theory at pp. 67-68 infra.

. See, e. g., Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945).

. Kovacs v. Cooper, 336 U.S. 77, 96, 69 S.Ct. 448, 458, 93 L.Ed. 513 (Frankfurter, concurring) (1949).

. The Supreme Court in Red Lion stated that while neither interest cancelled out the other, the public’s must be paramount. 395 U.S. at 389-390, 89 S.Ct. 1794. Professor Emerson states that in this area of regulation the test “must be framed in terms of accommodation of interests within the system . . . ” (emphasis added) Emerson at 629.

. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 375, 386-390, 89 S.Ct. 1794. Congress specifically provided in § 326 that the FCC could not “interfere with the right of free speech by means of radio communication.”

§ 326. Censorship.

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

The Commission recognized this balancing in its 1949 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1257:

Any regulation of radio, especially a system of limited licensees, is in a real sense an abridgement of the inherent freedom of persons to express themselves by means of radio communication. It is, however, a necessary and constitutional abridgement in order to prevent chaotic interference from destroying the great potential of this medium for public enlightenment and entertainment.

. Remarks of Congressman White during debates on the Radio Act of 1927. 67 Cong.Rec. 5479 (1926). For the early history of radio regulation, see 1 A. Socolow, The Law of Radio Broadcasting 38-61 (1939) ; H. Warner, Radio & Television Law 757 et seq. (1948) ; National Broadcasting Co. v. United States, 319 U.S. 190, 210-213, 63 S.Ct. 997, 87 L.Ed. 1344 (1943).

. See Socolow, supra note 12 at 38; Warner, supra note 12, at 757 et seq.

. Kalven, Broadcasting, Public Policy & The First Amendment, 10 Journal Law & Economics 15, 25 (1967).

. National Broadcasting Co. v. F.C.C., 319 U.S. 190, 212, 63 S.Ct. 997, 1008, 87 L.Ed. 1344 (1943).

. Accord, Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 388, 89 S.Ct. at 1805:

the chaos which ensued from permitting anyone to use any frequency at whatever power level he wished, . . . made necessary the enactment of the Radio Act of 1927 and the Communications Act of 1934, as the Court has noted at length before. . . . It was this reality which at the very least necessitated first the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses such as amateur operation, aircraft, police, defense, and naviga*67tion; and then the subdivision of each portion, and assignment of specific frequencies to .individual users or groups of users. Beyond this, however, because the frequencies reserved for public broadcasting were limited in number, it was essential for the Government to tell some applicants that they could not broadcast at all because there was room for only a few.

. National Broadcasting Co. v. F.C.C., 319 U.S. 190, 226, 63 S.Ct. 997, 1014 (1943).

. National Broadcasting Co. v. F.C.C., 319 U.S. at 213, 63 S.Ct. at 1008:

The plight into which radio fell prior to 1927 was attributable to certain basic facts about radio as a means of communication — its facilities are limited: they are not available to all who may wish to use them; the radio spectrum simply is not large enough to accommodate everybody. There is a fixed natural limitation upon the number of stations that can operate without interfering with one another. Regulation of radio was therefore as vital to its development as traffic control was to the development of the automobile.

. Banzhaf v. F.C.C., 132 U.S.App.D.C. 14, 31, 405 F.2d 1082, 1099 (1968), cert. denied, American Broadcasting Companies v. F.C.C., 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).

. For a critical discussion of the justifications for regulation of the broadcast industry see Robinson, Observations on 40 years of Radio and Television Regulation, 52 Minn.L.Rev. 67 (1967) ; Note, Concepts of the Broadcast Media Under the First Amendment: A Reevaluation and a Proposal, 47 N.Y.U.L.Rev. 83 (1972) ; for a contrasting view see Barrow, The Equal Opportunities and Fairness Doctrines: Pillars in the Forum of Democracy, 37 Cin.L.Rev. 447 (1968).

. Office of Communication of United Church of Christ v. F.C.C., 123 U.S. App.D.C. 328, 337, 359 F.2d 994, 1003 (1966). See The Fairness Doctrine and Other Issues, Report of the Special Subcommittee on Interstate and Foreign Commerce, House of Representatives, p. 1, May 9, 1969:

Broadcast regulation has, from its inception, been based on the premise that the airwaves belong to the people, licensed to be used in the public interest, convenience and necessity.

Robinson, supra note 20, comments at p. 152:

Little effort has ever been made to look beneath the superficiality of the concept of public ownership of the broadcast spectrum to determine whether it has any practical logic or meaning. Logically the concept is meaningless. To say that the airways or spectrum can be owned by anyone is simply *68to indulge in fantasy. Surely no one seriously supposes that the airways are a thing of nature which can be possessed, occupied, or used in any normal sense of the word. In actuality, “airways” is merely convenient shorthand, an abstraction for a phenomenon created as a result of the use of privately owned transmission facilities. The “spectrum” is a purely artificial, construct of the Commission itself. To give this construct an independent nature and then attempt to justify the regulation itself in those terms is entirely circular. It is like saying that the Commission owns the frequencies because it. has the power to regulate their use, and that it has the power to regulate their use because it owns them.

. Banzhaf v. F.C.C., supra note 19, 132 U.S.App.D.C. at 42, 405 F.2d at 1100.

It has often been argued that the government could have assumed total control of the broadcasting medium, but this theory

fails to come to grips with the real issues. It could equally well be said that the public “owns” the streets and parks, and that consequently individuals have no right to use them for purposes of expression except on the government’s own terms. Moreover, the problem is not solved simply by bringing into the picture the doctrine of unconstitutional conditions — that if the government extends the privilege of using the airways to private individuals or groups it cannot attach conditions that violate the First Amendment. Surely the affirmative power of the First Amendment demands that the government make available for general use, as a constitutional right, the most significant medium in our whole system of freedom of expression. The government cannot maintain a monopoly of the airways any more than it can maintain a monopoly of the streets, or of printing presses. Starting from this point, then, the First Amendment issues begin to grow far more complex than the “public ownership” theory envisages.

Emerson at 660-61.

. Banzhaf v. F.C.C., supra note 19, 132 U.S.App.D.C. at 32, 402 F.2d at 1100.

. In its July Decision the Commission noted: “At the heart of this proceeding is the question of compliance with the Fairness Doctrine.” 24 F.C.C.2d 18, 21 (1970). In the February Decision, the Commission carried its analysis of Bran-dywine’s constitutional claims no further than Red Lion. The FCC sidestepped the issue of whether its action carried an adverse First Amendment impact by stating that since its “decision was based solely upon fairness concepts whose constitutional validity has been sustained by the Supreme Court . . . [t]here is no constitutional infirmity.” 27 F.C.C. 2d 565, 566 (1971).

. Judge Tamm noted, of course, that the Supreme Court “found that the Commission’s application of the fairness doctrine” was constitutional because it “enhances rather than abridges the freedoms of speech and press.” 153 U.S.App.D.C. at -, 473 F.2d at 57. But this conclusion was not supported by. any analysis of whether the result in this case actually enhanced these freedoms. There was only a bare assertion that WXUR was guilty of attempting to silence and censor the public — a verdict which did not originate with the FCC.

. The Hearing Examiner in this case concluded that WXUR “has presented • such discussion in about the same degree as most stations offer entertainment.” 24 F.C.C.2d 42, 131 (1970) (Issued Dec. 10, 1968).

. As the Hearing Examiner noted, “[t]here was an attempt, however inept, to allow wide-swinging utterance of all shades of thought. This met the first mandate of the Fairness Doctrine calling for broadcast of divergent viewpoints but it ran head-on into the second commandment of protecting persons and groups against attacks.” 24 F.C.C.2d at 135. He also concluded:

With so many viewpoints having been expressed over WXUR on so many different issues, it would be futile to attempt any conclusion in terms of equating the time given to each. Fortunately the Fairness Doctrine does not demand this kind of approach. What it does demand is an honest and good faith effort by the licensee to air contrasting, conflicting and varying attitudes towards subjects of important controversy. In the broad perspective of this record, it is almost inconceivable that any station could have broadcast more variegated opinions upon so many issues than WXUR. 24 F.C.C.2d at 130.

. The FCC re-examined tapes of two weeks of Brandywine’s programming and found that these established a prima facie violation of the fairness doctrine, since while Brandywine presented one side of numerous issues, it presented opposing views on only one issue. To override this prima fade showing, Brandywine was required to prove that it had established an acceptable procedure for complying with the doctrine. See Office of Communication of United Church of Christ v. F.C.C., 138 U.S.App.D.C. 112, 425 F.2d 543 (1969). The Commission narrowly defined what would be acceptable — a regular procedure for previewing, monitoring or reviewing its broadcasts; a showing of public announcements inviting the presentation of contrasting views; or *70other adequate action to encourage response to specific broadcasts.

Brandywine’s methods of compliance— call-in and interview shows — were unacceptable to the Commission by their very nature, since callers or speakers were not pre-selected or required to speak on specific and isolated issues.

Brandywine did show in its petition for rehearing that conflicting and contrasting views had been aired, albeit fortuitously, on its programs outside of the two-week taped period. But the FCC countered this showing with the argument that since the Commissioners had no way of knowing how often Brandywine’s own views were expressed outside the two-week period, they could not determine whether a “reasonable ratio” of Brandywine’s time had been devoted to opposing views. The Commission concluded that the station must have failed to “carry opposing views in any fair ratio” on the basis of the two weeks of tapes.

It may well be that Brandywine did not meet the stringent standards set by the Commission for this case. But whether these standards find any support in judicial discussion of justifications for the fairness doctrine is entirely another matter.

. If shoestring operations cannot afford to operate under FCC rules, we face very critical First Amendment questions indeed.

. The FCC expects each licensee to cata-logue each issue it discusses, and requires that it offer a “fair” ratio of opposing views on every issue. 24 F.C.C.2d at 567-69. See note 28, supra. Silencing WXUR because of infractions of these requirements could, in the words of the Hearing Examiner, “result in silencing all controversial discussion on American radio and television . . . or . that discussion would henceforth be a diluted parlor chat in which such restraint was exercised that the outcome would be insufferably dull and totally unenlightening.” Hearing Examiner Opinion, 24 F.C.C.2d at 134.

The broadcaster who makes the greater effort to serve the public interest by stimulating robust discussion incurs the further burden of presenting the countering views of his fellow broadcasters who have refused to speak out. All of this places an inordinate burden on the small off-beat broadcaster whose every opinion, requires contrasting viewpoints from all quarters.

. 395 U.S. at 396, 89 S.Ct. 1794, 1810. The precise holding of Red Lion is as follows: “The Congress and the Commission do not violate the First Amendment when they require a radio or television station to give reply time to answer personal attacks and political editorials.” Ibid. What seems to be forgotten is that both the Red Lion and RTNDA litigations involved application of principles by the Commission; that in neither case were sanctions imposed or even threatened. In neither case was there an evidentiary hearing. As the Hearing Examiner recognized, “[t]here is a valid distinction between a broad statement of principle and its specific application to a factual situation. To apply the principle in such a way as to defeat its very purpose would manifestly be an injustice. . . . ” 24 F.C.C.2d at 133-34.

. As we said in Banzhaf v. F.C.C., supra note 19, 132 U.S.App.D.C. at 43, 405 F.2d at 1101:

[W]e are not obliged simply to “invalidate the entire course of broadcasting development” with no inquiry into the particulars of the ruling before us. Rather, we think the proper approach to the difficult First Amendment issues petitioners raise is to consider them in the context of individual regulatory policies and practices on a case-by-case basis.

For example, in Green v. F.C.C., 144 U.S.App.D.C. 353, 359, 447 F.2d 323, 329 (1971), we found that strict adherence to fairness obligations might not be necessary if the issue involved was one over which there was already intense debate in all forms of media:

In our view, the essential basis for any fairness doctrine, no matter with what specificity the standards are defined, is that the American public must not be left uninformed. On the record of this ease, no matter how the issue is taken, we cannot conceive that any live American has been left uninformed about the desirability or undesirability of military service, the draft, or the Vietnam war.

. That alternatives to fairness obligations may once have enjoyed a fierce vitality is discussed in note 46, infra. That alternatives may be open for current exploration is discussed infra.

. See Warner, apra note 12, at 757. Remarks of Senator Dill during debates on Radio Act of 1927. 67 Cong.Rec. 12502 (1926) :

Mr. Dill. I will say to the Senator that I think Congress has a right to act and control these - stations, even though the broadcasting of entertainment programs is not in itself interstate commerce, for the reason that undoubtedly wireless telegraph messages are interstate commerce, and in order to protect the broadcasting of the point-to-point telegrams, *72of the shore stations to the ships, and other uses, such as transoceanic, the Government must also control the broadcasting of matter that might not per se be interstate commerce.

. Warner, supra note 12, at 758. Davis, Law of Radio Communication 33-34 (1927) :

Something of the opinion as to the value of radio at that time may be gathered from the testimony, of a high naval officer before the House Committee, who said: “Generally speaking, however, the department believes that wireless communication should be limited as far as possible to its legitimate field; that is, communication between the share and vessels at sea.”

. Mutual Film Corp. v. Industrial Commission of Ohio, 236 U.S. 230, 35 S.Ct. 387, 59 L.Ed 552 (1915).

. Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952).

. See, e. g., Trinity Methodist Church v. F.R.C., 61 App.D.C. 311, 62 F.2d 850.

If it be considered that one in possession of a permit to broadcast in interstate commerce may, without let or hindrance from any source, use these facilities, reaching out, as they do, from one corner of the country to the other, to obstruct the administration of justice, offend the religious susceptibilities of thousands, inspire political distrust and civic discord, or offend youth and innocence by the free use of words suggestive of sexual immorality, and be answerable for slander only at the instance of the one offended, then this great science, instead of a boon, will become a scourge, and the nation a theater for the display of individual passions and the collision of personal interests. This is neither censorship nor previous restraint, nor is it a whittling away of the rights guaranteed by the First Amendment, or an impairment of their free exercise.

. Mayflower Broadcasting Corp., 8 F.C.C. 333, 339-340 (1941) :

. under the American system of broadcasting it is clear that responsibility for the conduct of a broadcast station must rest initially with the broadcaster. It is equally clear that with the limitations in frequencies inherent in the nature of radio, the public interest can never be served by a dedication of any broadcast facility to the support of his own partisan ends. Radio can serve as an instrument of democracy only when devoted to the communication of information and ex*73change of ideas fairly and objectively presented. A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he happens to regard most favorably. In brief, the broadcaster cannot be an advocate.

. See In Re Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949), where the Commission set forth dual obligations for broadcast licensees: to speak out on controversial issues while giving the opportunity for contrasting views. “There is a twofold duty laid down by the FCC’s decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, . . . The broadcaster must give adequate coverage to public issues, United Broadcasting Co. . . . and coverage must be fair in that it accurately reflects the opposing views.” Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 377, 89 S.Ct. 1794, 1800, 23 L.Ed.2d 371 (1969).

. See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 386, 89 S.Ct. 1794; United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed. 1260 (1948).

. An Extended View of Public Attitudes Toward Television and Other Mass Media, 1959-1971, Report by the Roper Organization, Inc. p. 2, June, 1971.

. Testimony of Bill Monroe, Correspondent, NBC News, Feb. 2, 1972, before the Subcommittee on Constitutional Rights of the Committee on the Judiciary of the United States Senate:

The fantastic new technology and sudden impact of television may have misled us about its most vital function. Seeking to fit it into familiar categories, some of us have been impressed with the size and wealth of television, and have put it down simply as big business. Some of us have been impressed with its evening parade of singers, dancers, actors, and comedians, and have put it down as the new vaudeville. But those nervous pictures that bring the White House, Capitol Hill, Vietnam and London into our living rooms don’t strike us immediately as the new front page. So we have missed the main fact about television; it is press. And if television and radio spend more time on entertainment and commercials than on news, so, in fact, do many newspapers with their acres of advertising, their sports pages, gossips, astrologists, advice to the loveless and fat Sunday editions with the news tucked inside the colors of Dick Tracy and Peanuts. Radio and television are, at bottom, instantaneous, warm-blooded press. Like the printed press, they carry the flesh of commerce and entertainment on a hard skeleton of news. And, like the printed press, they are massively engaged in exactly that kind of communication which the First Amendment was written to protect.

Adress by Julian Goodman, President, National Broadcasting Company at “Great Issues. Forum,” University of Southern California, Oct. 11, 1972:

For fairness is a proper journalistic standard, and responsible journalists— in broadcasting and in print — follow it. But when it becomes a government standard, it moves government officials into newsrooms and seats them as judges of how broadcast news and information should be presented.

. See, e. g., Remarks of Senator Howell, during debates on Radio Act of 1927. 67 Cong.Rec. at 12503 (1926) :

Are we to consent to the building up of a great publicity vehicle and allow it to be controlled by a few men, and em*74power those men to determine what the pubic shall hear. . It may be urged that we do that with the newspapers. Yes, but anyone is at liberty to start a newspaper and reply. Not so with a broadcasting station. However, there are only about 500 who are allowed the privilege of conducting broadcasting stations, and there are not as many broadcasting stations as there are fingers on one of my hands — not more than that — that have the privilege of covering the entire United States.

. E. g., the Commission’s Chain Broadcasting Regulations which undertook to regulate the relations of individual broadcasting stations to the networks. See National Broadcasting Co. v. F.C.C., 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Other ECO rules limit the number of stations one enterprise may own under common ownership or under common control. See, e. g., 47 C.P.R. § 73.35 (AM), .240 (FM), .636 (TV) (1967). Clarksburg Pub. Co. v. F.C.C., 96 U.S.App.D.C. 211, 225 F.2d 511 (1955). For a brief discussion of some of these rules see Robinson, supra note 20, at 73 et seq.

These and other policies such as the anti-trust laws sought to promote a diversity in broadcasting by preventing monopoly control. But economic concentration has always remained a problem in the radio and television industries. See Barrow Report, House Comm. on Interstate and Foreign Commerce, Report on Network Broadcasting, H.R.Rep. No.1297, 85 Cong., 1st Sess. (1958).

The Commission’s acquiescence in trafficking in licenses reveals the extent to which the private marketplace prevailed over the terminology of “public trust” or concern for the public interest. IVe did not follow the logic of this economic theory of regulation to its limits. We allowed newspapers to acquire broadcast stations; we allowed networks to expand as much as they have. Whether or not serious pursuit of an open economic marketplace would have enhanced sufficiently the marketplace of ideas cannot today be resolved; certainly it would have been a step in the right direction. And it may yet be an option we should consider for the future. It suggests, as well, that, unless checked, cable T.V. will suffer the same consequences. “Newspapers and other communications media also began to buy in so that half of the cable systems in the United States are now owned by other media and communications interests.” Smith, The Wired Nation 22 (1972).

. This, according to Red Lion, is the primary purpose of the fairness doctrine. 395 U.S. at 377, 89 S.Ct. 1794. The FCC’s Editorializing Report of 1949, 13 F.C.C. 1246, 1249, expressed the same point :

It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day. Basically, it is in recognition of the great contribution which radio can make in the advancement of this purpose that portions of the radio spectrum are allocated to that form of radio communications known as radiobroad-casting. Unquestionably, then, the standard of public interest, convenience and necessity as applied to radio-broadcasting must be interpreted in the light of this basic purpose. The Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station. And we have recognized, with respect to such programs, the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the various groups which make up the community. It is this right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee or any individual member of the public to broadcast his own particular views on *75any matter, which is the foundation stone of the American system of broadcasting.

. Office of Information, Federal Communications Commission, News Release, Oct. 10, 1972; Editor and Publisher Year Book-1972.

. B. Bagdikian, The Effete Conspiracy and Other Crimes of the Press 11 (1972).

. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 396-401, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).

. Access of minority groups to the microphone of mass communication is indeed a serious problem; it is one which exists with respect to newspapers as well as the broadcast media. But the right to hear a countering view does not solve the problem of control of stations or newspapers. In upholding the promulgation of fairness rules in Red Lien, “Justice White found the force of the First Amendment to lie in the right of the public to hear, and he ignored the right of the ordinary citizen to use broadcasting facilities to speak.” Emerson at 664. The fairness doctrine does not necessarily speak to minority rights of access.

Recently, this court determined that broadcast licensees may not, as a general policy, refuse to sell any of its advertising time to groups or individuals wishing to speak out on controversial public issues. Business Executives’ Move For Vietnam Peace v. F.C.O., 146 U.S.App. D.C. 181, 450 F.2d 642 (1971), cert. granted Columbia Broadcasting System, Inc. v. Democratic Nat. Committee, 405 U.S. 953, 92 S.Ct. 1174, 31 L.Ed.2d 230 (1972). This case is now before the Supreme Court. While my opinion today might raise some First Amendment questions with respect to Business Execu-Uves’ Move For Vietnam, Peace, it may be well to note Judge Wright’s statement for this court:

It is particularly important that these cases deal only with the public’s First Amendment interests in broadcasters’ allocation of advertising time. They deal only with time relinquished by broadcasters to others; petitioners argue only that, in relinquishing that time, broadcasters must not discriminate against protected expression. In normal programming time, closely controlled and edited by broadcasters, the constellation of constitutional interests would be substantially different. In news and documentary presentations, for example, the broadcasters’ own interests in free speech are very, very strong. . . . The Commission’s fairness doctrine properly leaves licensees broad leeway for professional judgment in that area. But in the allocation of advertising time, the broadcasters have no such strong First Amendment interests. Their speech is not at issue; rather, all that is at issue is their decision as to which other parties will be given an opportunity to speak.

Supra, 146 U.S.App.D.C. at 198, 450 F. 2d at 654.

It also might well be argued that the economic status of the owners of broadcast stations, or the influence of advertisers, make it unlikely that certain opinions will ever be aired. The fairness doctrine approaches this problem from the perspective of regulating how and what the licensee broadcasts. An alternative approach would be the allocation of access time. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 390-391, 89 S.Ct. 1794; Emerson at 663.

. Smith, The Wired Nation 7 (1972).

. Id.

. Id. at 5. See also Industrial Electronics Division of the Electronics Industries Association, The Future of Broadband Communications, Oct. 28, 1969. Some of the public services — beyond traditional television — which are predicted include data services, mail delivery, two-way television communication, and a home library service:

This may be called the electronic home library service (designated BCNL). With such a service available a reader can request a book or jjeriodical from a large central library, using a narrow-band channel to the library (a phone circuit or the BCN network itself.) The desired book is then “transmitted” from microfiche, microfilm, or video tape, page by page, and received via the BCN network on a dedicated wide-band channel.
Several modes of operation are possible. In one, the entire book or selected article is transmitted at the maximum reception speed of the user’s facsimile recorder. Several hundred simultaneous transmissions in time-division multiplex are possible with 6-MHz BCN channels and reasonable recorder speed.
As an alternative, a soft-copy display can be used. Each page is transmitted and stored at the receiver for reading. When the reader has finished one page, he signals for the next page, and this is transmitted in a small fraction of a second with no perceptible delay. This is another form of time sharing of the broad-band channel.
To get a feeling for the capacity of a broad-band channel, it is of interest to note that in the demonstration described in Reference 5, the entire text of “Gone With the Wind” was transmitted in facsimile over a television microwave circuit in slightly over two minutes.

. “If more channels are wanted, a second cable can . be laid, and a third, and a fourth . . . ” Smith, The Wired Nation 7 (1972). See also Botein, Access to Cable Television, 57 Corn.L.Rev. 419, 424 (1972) ; 22 P. & F. Radio Reg.2d 1759, 1761-65 (1971), (Letter from Dean Burch, Chairman, F.C.C., to Subcomm. on Communication of the Senate Comm. on Commerce, p. 1771, August 5, 1971).

. It appears today that economic, not technical, limitations in reality restrict entry into the broadcast market. And as to these, “the economic barriers to entry into radio broadcasting are . far less restrictive than in the case of media such as newspapers.” Robinson, supra note 20, at 88. But of course, the economic basis of scarcity does not yet justify regulation of the content of printed press although anti-trust regulation is accepted, Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945).

. In light of the tremendous potential of cable television as a source of information concerning controversial public issues, and in view of its potential for so increasing access to the broadcast media, it is ironic to note that the FOO activity in this area has been characterized as focused, until recently, on protecting the commercial broadcast systems. See Robinson, supra note 20, at 78-83; Smith, The Wired Nation 45 et seq., (1972). See generally Botein, Access to Cable Television, 57 Corn.L.Rev. 419 (1972). Botein, CATV Regulation: A Jumble of Jurisdictions, 45 N.Y.U.L.Rev. 816 (1970) ; 79 Harv.L.Rev. 366 (1965). There are a wide variety of economic measures which might be taken to pro*77mote the ability of groups and individuals to gain access to both wired and printed media. See, e. g., Emerson at 669; Note, Concepts of the Broadcast Media Under the First Amendment: A Reevaluation and a Proposal, supra note 20.

. Senator Howell stated during the Congressional debates on the Radio Act of 1927:

Mr. President, to perpetuate in the hands of a comparatively few interests the opportunity of reaching the public by radio and allowing them alone to determine what the public shall and shall not hear is a tremendously dangerous course for Congress to pursue. . Are we to consent to the building up of a great publicity vehicle and allow it to be controlled by a few men, and empower those few men to determine what the public shall hear? Facts were brought out before the committee to show that already plans were on foot to buy up and monopolize stations in various areas of the country, and that as high as $100,000 had been paid for the transfer of a broadcasting license; in fact, if I remember correctly, it was intimated that $250,000 was paid in one case. If any public question is to be discussed over the radio, if the affirmative is to be offered, the negative should be allowed upon request also, or neither the affirmative nor the negative should be presented. 67 Cong.Rec. 12503-12504 (1926).

The Congress did not accept proposed provisions regarding the presentation of public issues. Apparently it was thought that the words “public questions” were so vague as to raise more difficulties than the regulation could solve. Id.

. Cronkite, Introduction to Part III: Points of Conflict — -Legal Issues Confronting Media Today, 60 Geo.L.J. 1001, 1003-04 (1972) ; Statement of Bill Monroe, Correspondent, NBC News, Before the Subcommittee on Constitutional Rights of the Committee on the Judiciary of the United States Senate, February 2, 1972; Address by Julian Goodman, President, National Broadcasting Company at “Great Issues Forum”, University of Southern California, October 11, 1972.

. The effect of government’s “lifted eyebrow” is discussed by both Goodman and Monroe, supra note 59. The problem was noted 15 years ago by Mr. Richard Sal-ant in a speech before the National Association of Broadcasters. Salant explained that following CBS’s interview in 1957 with Premier Khrusehev, the station was deluged with government criticisms and inquiry.

This puts us on the spot before we even get started. No matter what the laws may say about immunity from censorship and about our entitlement to the guarantees of the First Amendment there is always the brooding omnipresence that a broadcaster is a licensee and if he is not a licensee, he cannot be a broadcaster.

We are reminded of this basic dilemma with rather frightening regularity. Time and time again we are called to account by those who have, directly or indirectly, power of life and death over us. Every time we deal in our news or public affairs broadcasts with a public controversy concerning which there are strongly contending views, we can at least expect letters from legislators, public officials and private citizens representing important organizations who accuse us of partiality and call on us for an accounting — line by line and second by second.

Speech by Richard Salant, Broadcast Licensees and the Freedom of the Press, before National Association of Broadcasters, 1957.

Professor Harry Kalven, after studying CBS’s complete file of FGC complaints covering the period from 1960 to 1964, has said about “regulation by dossier” :

Think of the outcry if some great daily newspaper were requested by government, and so peremptorily requested, *78to furnish a justification for printing the views of Walter Ldppmann! To answer a letter is, to be sure, no great burden. But freedom has in no small part depended on awareness of the difference between doing something as a matter of grace and doing it as a matter of obligation. In the end there are two important aspects of the FCC dossier technique. First, it serves to extend the appearance of control far beyond what rulemaking or formal decisions would suggest, and it does so by a process which is really not public and which is awkward to challenge. Second, as Mr. Salant has pointed up, it serves' to create psychologically an atmosphere of surveillance which is destructive of the morale of a free press.

Comments Goodman,

A timid broadcaster who has gone through one or two of these experiences may think twice before he tackles a subject of strong controversy — the kind that the public needs most to know about. It is not that he wants to avoid the obligation to be fair. But he knows that where there is controversy, there are advocates who will turn to the FCC, under the umbrella of the Fairness Doctrine, to obtain a broadcasting voice that may bear no relationship to the interest or newsworthiness of their cause. And once they invoke the government process, the broadcaster knows that he must defend himself from second-guessing that will come not from a specialist in journalism, but by a generalist in the government bureaucracy.

Goodman,- supra, note 59.

. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 392-394, 89 S.Ct. 1794.

. See Press Freedoms Under Pressure, Report of the Twentieth Century Fund Task Force on the Government and the Press (1972). The experience of CBS News with its documentary, “The Selling of the Pentagon”, is a case in point. The Chairman of the House Committee on Interstate and Foreign Commerce subpoenaed the president of CBS, directing him to submit “all film, work prints, outtakes, and sound tape recordings, written scripts and/or transcripts utilized in whole or part by CBS in connection with” the documentary. See also Address by Vice President Agnew, Midwest Regional Republican Committee Meeting, Des Moines, Iowa, Nov. 13, 1969.

Such criticism and inquiries are not limited to one party or one political philosophy. During the 1972 Presidential campaign, charges of political bias have come from all sides. Goodman, supra note 59. What this suggests is that the potential to subject the “fairness” theory to political abuse is inherent in the operation of the doctrine.

Professor Emerson clearly expresses the potentially harmful effects of trying to solve the problems of scarcity and access through governmental policies like the fairness doctrine:

[A]ny effort to solve the broader problems of a monopoly press by forcing newspapers to cover all “newsworthy” events and print all viewpoints, under the watchful eyes of petty public officials, is likely to undermine such independence as the press now shows without achieving any real diversity.

Etnerson at 671

His conclusion that such efforts will or can work vis a vis radio and television is based solely on the argument of tradition — that government is involved with radio and TV so it must be all right. Id. at 665, 668. With all respect to Professor Emerson, this is a distinction without a difference.

. See, e. g., Lamar Life Broadcasting Co., 38 F.C.C. 143 (1965), reversed for hearing, United Church of Christ v. F.C.C., 123 U.S.App.D.C. 328, 359 F.2d 994 (1966) ; Palmetto Broadcasting Co., 23 P. & F. Radio Reg. 483 (1962), aff’d sub nom. Robinson v. F.C.C., 118 U.S. App.D.C. 144, 334 F.2d 534 (1964) ; Trinity Methodist Church v. F. R. C., 61 App.D.C. 311, 62 F.2d 850 (1932).

. See, e. g., comment of Senator Howell, supra note 58.

. It has been said that the average family has its television turned on for nearly six hours out of every day. National Association of Broadcasters, Television and the Wired City, A Study of the Implications of a Change in the Mode of Transmission 113 (1968). Clearly the impact, and audience, of the nightly news is far greater than any one paper or magazine. Furthermore, most Americans are apt to believe a story they get from television or radio over magazines or newspapers. An Extended View of Public Attitudes Toward Television and Other Mass Media 1959-1971, A Report by The Roper Organization, Ine. 1971.

. Banzhaf v. F.C.C., supra note 19, 132 U.S.App.D.C. at 34-35, 405 F.2d at 1102-1103.

. Cox, Does the FCC Really Do Anything?, 11 ,J. Broadcasting 97, 104 (1967) ; Note, The Fairness Doctrine and Broadcast License Renewals: Brandywine-Main Line Radio, Inc., 71 Col.L.Rev. 452, 458 (1971).

. In re The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 30 F.C.C.2d 26 (1971).

. 329 Ü.S. 223, 227, 07 S.Ct. 213, 91 L.Ed. 204 (1946).

. Unlike my Brothers, the ECC never characterizes Brandywine’s actions as “fraud'and deception." Instead the Commission found “there was a substantial failure to inform the Commission fully concerning program plans, and also a significant departure from an express representation concerning the fair treatment of all religious faiths.” 24 F.C.C.2d at 32. The Commission drew the inference that these failures were a “conscious course of conduct”, in distinct contrast to the explicitly and continuously fraudulent action at issue in WOKO.