concurring.
I concur in the result, but not the reasoning, of the majority. The difference is significant. With Chief Justice Wilentz, I believe that the New Jersey Legislature intended that NJPTV be subject only to federal law in its coverage of political candidates. My disagreement with the majority, however, runs deeper.
Despite comprehensive federal regulation of political. broadcasting, administered by an agency capable of ensuring the precise result the Court reaches today, the majority holds that New Jersey’s courts may review independently the broadcasting decisions of the journalists of NJPTV. It reaches that conclusion by finding that state control over the content of the news is justified by state ownership of NJPTV. I disagree.
Historically the relationship between the courts and the media has been an uneasy one, calling for a careful balance of extraordinarily sensitive considerations. This case involves a particularly volatile mix of interests. We are attempting to reconcile a gubernatorial candidate’s demand for access to the airwaves with the right of a federally licensed broadcaster to exercise journalistic discretion, all the while keeping our eye on the needs of the public for information. This reconciliation is complicated because the broadcaster is a publicly-financed television network providing the only significant daily coverage of New Jersey news. Our task becomes even more difficult because of the existence of a pervasive federal regulatory scheme governing political broadcasting, carefully structured by Congress and entrusted for enforcement to the FCC with review by the federal courts. These competing considerations, which probe deeply one’s perception of the proper relationship of a free press, the judiciary and the public interest, cause different members of this Court to see the issues differently.
I
Two problems merit attention. First, the effect, albeit unintended, of the majority opinion may be to convert NJPTV into a *178public forum. Not only is that result contrary to the intention of the New Jersey Legislature, but it creates a myriad of problems unforeseen by the majority. Second, regulation of broadcasting under federal law assures fairness for all concerned: NJPTV, political candidates and the people of New Jersey. State laws as interpreted by the majority, however, over-regulate broadcaster discretion and may well be preempted by the federal regulatory scheme.
Before discussing these issues, it may be helpful to state what this case is not. It is not a case in which a candidate was denied all access to the television stations or was precluded from using the airwaves to advance his candidacy. Nor is it a case in which a publicly-financed broadcaster refused to cover a significant political campaign. The majority concedes as much. Furthermore, the question is not whether political broadcasting should be fair. Of course political broadcasting should be fair, and fairness has been assured by the United States Congress and the Federal Communications Commission. Nor is the question whether broadcasting may be regulated. It may, and federal law creates a pervasive scheme of regulation. What this case is about is whether the State should superimpose its control of broadcasting on federal regulation. My answer is in the negative.
The inescapable implication of the majority opinion is that the Legislature entrusted the State, not NJPTV, with editorial discretion in television programming. The further implication is that the State, through its courts, may supervise the editorial process. This dangerous doctrine prompts my disagreement.
II
My fundamental concern with the majority opinion is that it opens a Pandora’s box letting loose unforeseen problems about public access to public television stations. Initially, I believe that the majority opinion threatens to convert NJPTV into a public forum. The path to a “public forum” is over uncertain *179ground enshrouded by the mists of the First Amendment. Recent federal cases, however, demonstrate the reality of the risk of converting a public television station into a public forum. In Muir v. Ala. Educational Tel. Com’n, 656 F.2d 1012 (5 Cir., 1981), the United States Court of Appeals for the Fifth Circuit divided on whether a public television station was a public forum. The majority declined to find a public forum primarily because there was no evidence in the record to support a finding that the government was operating the public station. Id. at 1018, 1018 — 19 n.ll. The dissent, however, declared flatly that “whenever a state agency supervises broadcast programming, even when it holds the broadcast license, it may not discriminate between points of view on issues of public controversy.” Id. at 1027.
In Barnstone v. Univ. of Houston, 514 F.Supp. 670 (S.D.Tex.1980) (appeal pending, 5 Cir., No. 81-2011), the court concluded that a public television station was a public forum. The court wrote: “a public forum is a place that is (1) controlled by the government and (2) appropriate as a place for the communication of views on issues of political and social significance .... There is no question that KUHT — TV is precisely such a place.” 514 F.Supp. at 685.
I recognize that the FCC has noted twice, without discussion, that publicly-held noncommercial broadcasters are not subject to the public forum doctrine. See City of New York Municipal Broadcasting System, 56 F.C.C.2d 169, 170 (1975) (“the public forum doctrine is inapplicable to broadcast licensees”); Mississippi Authority for Educational Television, 71 F.C.C.2d 1296, 1312 n.23 (1979). Furthermore, the United States Supreme Court has not determined the degree of governmental involvement necessary to result in a finding of state action and consequent conversion of a public television station into a public forum. Nonetheless, in Columbia Broadcasting System v. Democratic National Committee (“CBS v. DNC”), 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), three members of the Court concluded that the status of the networks as federal licensees *180was sufficient governmental action to require at least that “individuals be permitted some opportunity to express their views on public issues over the electronic media.” Id. at 201, 93 S.Ct. at 2136 (Brennan and Marshall, JJ., dissenting) (emphasis in original); see id. at 149-150, 93 S.Ct. at 2109-10 (Douglas, J., concurring). Under the constraints of deciding this case, we need not determine whether NJPTV is a public forum. The majority decision, nonetheless, raises the question whether the State could own, operate and regulate NJPTV without converting it into a public forum. One implication of the majority decision is that NJPTV could be “obligated to grant the demands of all citizens to be heard over the air, subject only to reasonable regulations as to ‘time, place and manner.’ ” CBS v. DNC, supra, 412 U.S. at 139, 93 S.Ct. at 2104 (Stewart, J., concurring). I am confident the Legislature never intended that result.
Ill
The Legislature intended NJPTV to be an autonomous agency free from its control and that of the Governor. Concededly, the Legislature could have created an agency that was an arm of the State. I believe, however, that the Legislature created NJPTV as an independent broadcaster subject to federal, but not state, regulation.
This case makes manifest the inevitability of conflict in dual regulation of political broadcasting. Here, the Appellate Division ruled that NJPTV must include ail candidates in the Closer Look part of New Jersey Nightly News. This Court affirmed. The FCC decided, however, that NJPTV need not include all gubernatorial candidates in Closer Look. See In re Ann Klein, Docket No. 8330-B, C5-860 (May 29, 1981). Now, five months later, this Court agrees that NJPTV and the FCC were right all along. That is, this Court now determines that NJPTV could have broadcast the Closer Look with the leading candidates only. These contradictory decisions do not exhaust the contra*181dictions that may occur in the future. What if, last spring, the federal courts had reversed the FCC while this Court had reversed the Appellate Division? In discussing possible permutations one is limited only by the scope of one’s imagination.
The abiding problem in the majority decision is that the journalists of NJPTV will exercise their freedom of speech under a judicial sword of Damocles. As Chief Justice Wilentz demonstrates (ante at 148), NJPTV may abandon in-depth coverage of leading candidates for superficial coverage of all candidates in a crowded field. Thus, judicial intervention may lead to journalistic paralysis. The real losers are the people of New Jersey who may be deprived of information about those gubernatorial candidates in whom they are most interested.
A conflict between federal and state regulation of political broadcasting raises substantial questions of preemption. A state law is preempted where federal regulation is “so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it.” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Preemption also occurs whenever a state enactment “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67-68, 61 S.Ct. 399, 404, 85 L.Ed. 581 (1941).
Congress has enacted a pervasive scheme of regulation of political broadcasting. The part of federal regulation relevant to this case is the fairness doctrine. That doctrine imposes on a broadcaster the obligation “to make a reasonable, good faith judgment on the significance of a particular candidate and on this basis to decide how much coverage should be given to his candidacy and campaign activities. The broadcaster is not required to give as much coverage to ‘fringe’ party candidates as major party candidates.” The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209, 2301 (1978).
This deference to the judgment of the broadcaster is the result of “nearly a half century of unmistakable congressional *182purpose to maintain — no matter how difficult the task — essentially private broadcast journalism held only broadly accountable to public interest standards.” CBS v. DNC, supra, 412 U.S. at 120, 93 S.Ct. at 2095. In this respect, the editorial judgment of a public television station is entitled to the same deference as that of a private broadcaster. Community-Service Broadcasting of Mid-America, Inc. v. F. C. C., 593 F.2d 1102, 1110 (D.C.Cir. 1978) (en banc). The majority, however, undertakes to supplement, if not supplant, the federal regulatory scheme with its own amorphous test of “fairness”. I see no room or need for a state fairness doctrine superimposed on a federal fairness standard designed as part of “a delicately balanced system of regulation intended to serve the interests of all concerned.” CBS v. DNC, supra, 412 U.S. at 102, 93 S.Ct. at 2086.
Thus, my disagreement focuses on the rule to be applied, not the application of the rule. I would reverse the judgment of the Appellate Division and dismiss the complaint.
WILENTZ, C. J., and POLLOCK, J., concurring in the result.
For reversal■ — Chief Justice WILENTZ and Justices PASHMAN, SCHREIBER, HANDLER, POLLOCK and SULLIVAN —6.
For affirmance —None.