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09/13/78 American Security Council v. Federal Communications

September 13, 1978

AMERICAN SECURITY COUNCIL EDUCATION FOUNDATION, PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS; CBS, INC., INTERVENOR 1978.CDC.155



Before: DANAHER, Senior Circuit Judge, TAMM and WILKEY, Circuit Judges

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petition for Review of an Order of the Federal Communications Commission

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WILKEY

Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge TAMM.

WILKEY, Circuit Judge : The American Security Council Education Foundation petitions for review of a Federal Communications Commission order dismissing its fairness doctrine complaint against CBS, Inc. *fn1 ASCEF's complaint alleged that the coverage of "national security" issues by CBS-TV News during the years 1972-76 was consistently imbalanced. Finding that the complaint did not define with sufficient specificity a "controversial issue of public importance" or present evidence of imbalance in CBS' overall programming, the Commission held that ASCEF failed to make out a prima facie violation of the fairness doctrine and dismissed its complaint without making inquiry of the network. We hold that the FCC's action was an abuse of discretion and remand for proceedings consistent with this opinion. I. BACKGROUND

A.Facts .

ASCEF is a non-profit educational institution dedicated to enhancing public awareness of facts and issues concerning this country's "national security." In recent years, ASCEF's members have perceived what they regard as a bias toward "dovish" positions in the major television networks' coverage of national security questions. In order to verify this perception, ASCEF determined in December 1972 to undertake an exhaustive and scientific study of network news programs. Although ASCEF initially set out to examine all three major television networks, cost and time constraints dictated that it confine its attention to one. CBS was chosen because it had the largest news audience and the greatest number of affiliated stations.

ASCEF endeavored to structure the study so as to ensure as far as possible its independence and objectivity. It assembled a team of 11 research analysts, primarily independent consultants drawn from outside ASCEF who possessed advanced academic degrees. Ernest W. Lefever, a Senior Fellow at the Brookings Institution, was chosen to coordinate the research and write a report on its findings. An Independent Review Panel, consisting of eight scholars with established academic and diplomatic credentials, was organized to scrutinize the work in progress, including research procedures and tentative findings, and to prepare written comments on the final draft manuscript before publication.

The research staff based its study on videotapes of CBS news programs obtained from the news archives at Vanderbilt University. Transcripts were made of all CBS Evening News telecasts broadcast during 1972. *fn2 From the transcripts the researchers culled all news items falling within four topic areas thought likely to produce references to national security: U.S. military and foreign affairs (including the U.S.-U.S.S.R. military balance); Soviet military and foreign policy; Chinese military and foreign policy; and Vietnam affairs. This examination produced 1,396 news items. Items that consisted of reports of events (e.g., Vietnam battlefield and casualty reports) were eliminated from consideration, since efforts to identify hidden viewpoints within these items produced disparate conclusions. To minimize subjectivity further, the researchers decided to ignore the audio-visual background of the news items, as well as the vocal inflections and facial expressions of commentators and other persons. This winnowing process left 274 explicit opinions expressed by "newsmakers" or voiced by CBS correspondents.

These 274 news items were subjected to a "viewpoint analysis" which formed the core of ASCEF's fairness doctrine complaint. Under this analysis, which resembled a three-option approach used by the Brookings Institution in analyzing the U.S. budget, *fn3 each news item was coded "A", "B", or "C", according to the viewpoint expressed on U.S. national security: *fn4

Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be decreased .

To facilitate understanding of this coding system, ASCEF provided a chart, *fn5 giving examples of typical A, B, and C viewpoints on eight major national security subjects.

The 274 coded news items were broken down into sentences, and these sentences were tabulated to reveal the relative frequency of the three viewpoints. In sum, the study indicated that the CBS Evening News in 1972 presented viewpoint C (doing less about national security) 61.83% of the time, viewpoint B (the current Government position) 34.63% of the time, and viewpoint A (doing more about national security) 3.54% of the time. The researchers recognized that the overwhelming preponderance of C views owed largely to references about the Vietnam War. Even when references to Vietnam were excluded, however, C views outnumbered A views by a ratio of three to one. *fn6

The results of the study were examined by the Independent Review Panel in April and August 1974, and published in a 209-page report released on 23 October of that year. The report, entitled TV and National Defense : An Analysis of CBS News, 1972-73, contains an elaborate description of methodology and detailed statistical findings. Not surprisingly, it stirred considerable response from the press. *fn7

Shortly before releasing the report, ASCEF sent a copy to CBS, set forth its charges of distortion and imbalance, and requested that the network take corrective action. After some additional correspondence, CBS notified ASCEF on 23 April 1975 that it found no violation of the fairness doctrine and that no response to ASCEF's complaint was called for.

ASCEF thereupon determined to update its 1972-73 data "[in] order to determine whether CBS-TV News [had] continued its policy of failing to provide a reasonable opportunity for the expression" of contrasting viewpoints on national security. *fn8 ASCEF purchased microfiche copies of CBS-TV Evening News scripts for 1975 and of all CBS-TV News programs (except "Face the Nation") beginning with January 1976. In addition, ASCEF monitored and recorded all CBS-TV News programs for the latter two weeks of May 1975 (a randomly selected period) and for the entire month of May 1976 (the month immediately preceding ASCEF's preparation of its complaint). In reviewing these programs, ASCEF "found no significant change in the pattern of viewpoint coverage reported in the basic Study." *fn9

B. Course of the Litigation .

On 8 September 1976 ASCEF filed a 21-page complaint with the FCC charging that CBS-TV News had violated the fairness doctrine by its "persistent pattern of lopsided treatment of national security issues." *fn10 The complaint elaborated a description of the A-B-C coding system and a summary of the report's findings; a copy of the 209-page report itself was furnished as an exhibit. ASCEF asked that the Commission designate the complaint for a hearing on the merits. In its order released 15 March 1977 the FCC found that "no Commission action [was] warranted" inasmuch as the complaint failed to establish a prima facie case of noncompliance with the fairness doctrine. *fn11 We review the Commission's order to determine whether it was arbitrary, capricious, or an abuse of discretion. *fn12 II. ANALYSIS

The fairness doctrine requires that broadcasters afford a reasonable opportunity for the presentation of contrasting views on controversial issues of public importance. *fn13 Although the fairness doctrine has been upheld by the Supreme Court *fn14 and been given statutory recognition by Congress, *fn15 "important constitutional questions continue to haunt this area of the law." *fn16 We should stress at the outset that none of these questions is presented here, for in this case we confront not the merits of ASCEF's fairness complaint, but rather the purely procedural question of whether the complaint on its face was sufficient to set the wheels of an FCC investigation in motion.

CBS nevertheless attempts to inject a certain constitutional flavor into this case by suggesting that ASCEF's complaint, assertedly "broad in scope and subjective in methodology, represents a serious challenge to the First Amendment value of ensuring that broadcasters can make editorial decisions free of intrusive governmental interference." *fn17 This suggestion, we believe, rests on a fundamental misapprehension of the fairness doctrine and of ASCEF's complaint.

While disavowing any effort to denigrate or challenge the constitutional validity of the fairness doctrine, CBS has attempted to drape the mantle of First Amendment protection solely around those in the broadcast industry. This approach ignores the rest of the citizens of this country. "[The] people as a whole," as the Supreme Court said in Red Lion, "retain their interest in free speech [over the airways] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." *fn18 For the great bulk of citizens who are not broadcasters, the only way at present in which their First Amendment rights over the airways can be enforced is through the fairness doctrine.

The fairness doctrine is not a device for censorship; in fact, it is a preventive against censorship: only by application of the fairness doctrine can private censorship according to the whim of the licensee be avoided. The fairness doctrine does not restrict the licensee in anything he may broadcast; it merely compels the licensee to present other points of view to preserve some sort of rough balance on controversial issues of public importance.

As we understand the complaint, ASCEF seeks no restriction on CBS' right to broadcast anything. Even if it could be done retroactively, CBS would not - as we understand the fairness doctrine and what ASCEF contends here - be obligated to eliminate anything which it broadcast in the years 1972, 1973, 1975, and 1976 on the various facets of the issue of national security. What ASCEF contends the licensee was obligated to do, and what every licensee is obligated to do from the moment it accepts a free broadcast license from the Government, is to utilize its broadcast channel to present a rough balance of both sides of every major issue, if it deals with the issue at all. Unless the fairness doctrine itself is a violation of someone's First Amendment rights - and neither FCC nor CBS claims this - the ASCEF complaint, substantiated or unsubstantiated, can be no violation of anyone's First Amendment rights.

Contrary to the network's intimations, therefore, we emphasize that the question before us is a modest one. It is a question not of constitutional law nor of the merits of ASCEF's fairness challenge, but a question simply of FCC procedure. Phrased in the cant of the profession, the question is whether ASCEF's complaint presented prima facie evidence of a violation of the fairness doctrine sufficient to warrant an FCC inquiry to CBS. *fn19

The requirement of a prima facie showing places the initial burden on the complaining party. *fn20 This threshold allocation of burdens is rationalized by First Amendment concerns: by preventing broadcasters from being saddled with the task of "answering idle or capricious complaints," the Commission endeavors as far as possible to eschew interference with their programming discretion. *fn21 The requisities of a prima facie case were enumerated in Allen C. Phelps, *fn22 where the Commission stated: [It] has long been our policy normally to require that fairness doctrine complaints (a) specify the particular broadcasts in which the controversial issue was presented, (b) state the position advocated in such broadcasts, and (c) set forth reasonable grounds for concluding that the licensee in his overall programing has not attempted to present opposing views on the issue. *fn23

In Democratic National Committee v. FCC,*fn24 we reaffirmed our view that the Phelps requirements represented "a 'not unreasonable' standard," and ASCEF specifically disclaims any challenge to those requirements here.*fn25 Assuming for the purpose of our decision the validity of the Phelps criteria, then, the only question is whether the FCC reasonably complied with its own procedural standards in dismissing ASCEF's complaint.

It is possible to distinguish in the FCC's opinion four intertwined reasons in support of its conclusion that ASCEF's complaint failed to establish a prima facie case. The Commission argued (1) that ASCEF did not define the "controversial issue" with sufficient specificity; (2) that ASCEF's evidence did not support its assertion that the programs surveyed were imbalanced; and that ASCEF failed to provide evidence of imbalance in CBS' overall programming, either (3) because it did not survey a broad enough spectrum of the network's news and public affairs programs or (4) because it did not continue its study for a long enough period of time. We consider these arguments in turn.

A. Definition of the Issue.

The FCC on several occasions has stressed that a fairness complainant bears the burden of "specifying the particular issue of a controversial nature discussed over the air."*fn26 In this case, the FCC found that no "welldefined issue" had been presented:*fn27

Although the "national security issue" is defined by the complainant as involving "the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R.," in other parts of the complaint ASCEF refers to the subject of the study as "national defense and foreign policy issues," "Soviet and Chinese political and military objectives," and "domestic foreign policy." Moreover, the data collected in the accompanying study indicates that the complainant's perceived scope of the issue is much broader, encompassing subjects such as Chinese military and non-military policies, Southeast Asia and foreign relations generally.

By failing to define "national security issues" more precisely, ASCEF allegedly "made it impossible for the Commission to determine the actual issue, if any, which the complaint addressed."*fn28

A requirement that one specify the issue as the logical starting-point of an analytical undertaking can hardly be gainsaid. It must, however, be approached with a fair amount of common sense. From this vantage point, the FCC's inability to grasp the issue presented here can only be described as a willful obtuseness. ASCEF's complaint and accompanying report, particularly in their elaboration of the A-B-C viewpoint analysis,*fn29 made the relevant issue as plain as day: whether this nation should do more, less, or the same about perceived threats to its national security. Topics like "Soviet military affairs" and "Chinese political objectives" were never posed as "the issue" at all, but were merely subject-areas in which references to "the issue" - the appropriate response to national security threats - typically could be expected to arise.ASCEF put in evidence copies of some 30 newspaper and magazine articles discussing its report; the authors of these articles, regardless of their views on the merits, discerned with perfect comprehension what "the issue" was.*fn30 Indeed, the FCC in its opinion quoted ASCEF's definition of the three "national security" viewpoints,*fn31 and it is hard to explain the Commission's astonishment before the handwriting on the wall.

The issue ASCEF posed - whether this nation should do more, less, or the same about threats to its national security - is a specific issue because it is singular, precisely formulated, and explicit.*fn32 The issue is admittedly a large one, but no larger than other major issues (such as abortion,*fn33 or cigarette advertising)*fn34 with which the Commission in fairness cases has dealt. The issue is likewise a multi-faceted one, but no more multi-faceted than other major issues (such as "women's liberation"*fn35 or children's advertising)*fn36 which the Commission in fairness cases has considered. An issue's size and complexity, in any event, do not impugn its specificity or singularity, and we think that ASCEF's definition of the issue was statement here. plainly sufficient to cross the threshold of a prima facie

The specificity requirement, as we have noted above, has a pragmatic purpose, and it should be pragmatically employed. The FCC in the past has shown some ingenuity in extracting specificity from a variegated proffer of issues*fn37 and has suggested on at least one occasion that the specificity requirement is largely precatory.*fn38 We have discovered extremely few cases in which the FCC has cited non-specificity as a reason for throwing out a fairness complaint.*fn39 The complaints in these cases, moreover, were otherwise frivolous, and in view of the well-considered and substantial quality of the complaint in this case the Commission's verdict is virtually unprecedented.*fn40 "Inadequate definition" must not be used as a device for arbitrarily eliminating fairness complaints which the Commission for some reason may not want to process.*fn41

For these reasons, we conclude that the FCC abused its discretion in finding that ASCEF's definition of the relevant issue fell short of the specificity required of a prima facie case. Whether that issue is "controversial" and "of public importance" is not before us, and must be decided by the FCC on remand.*fn42

B. Evidence of Programming Imbalance.

In order to demonstrate a prima facie violation of the fairness doctrine, the complainant must indicate "the basis for [hia] claim that the station has presented only one side" of the issue in question.*fn43 ASCEF indicated the basis for its claim that CBS had presented only one side of the national security issue by means of a statistical study showing that the network broadcast C viewpoints (doing less about national security) 17 times more frequently than it broadcast A viewpoints (doing more about national security).

a complainant at the outset demonstrate his case beyond cavil is to transmute the requirement of a prima facie

The FCC attacked the evidentiary basis for ASCEF's claim primarily by questioning the methodology of its viewpoint coding system. Some coded viewpoints, the Commission argued, bore no logical relation to national security; others, while logically relevant to national security, were improperly coded on the A-B-C spectrum. The Commission cited one example of each sort of alleged misclassification;*fn44 on the basis of these two examples, it concluded that ASCEF failed to present "adequate, relevant evidence of a violation of the fairness doctrine. ..."*fn45

We believe that the FCC's conclusion was arbitrary for three reasons. First, neither of the Commission's examples proves any flaw in ASCEF's analysis. They evidence, at most, arguable misclassification; whether they are misclassifications in fact depends on their content and the context in which they appeared.*fn46 Without texts of the items broadcast, the FCC simply did not have sufficient information to make judgments on close questions raised by ASCEF's evidentiary showing.

Second, even if the FCC's two examples manifested clear coding errors, they would not necessarily eviscerate ASCEF's tender of proof. ASCEF's report coded almost 300 news items, broken down into several thousand sentences. A fair-minded evaluation of this evidence must frankly confront the bulk of the complaint; it cannot rest content with the citation of two, five, or ten lapses that do not fairly represent the whole.

Third, and most important, the type of detailed evidentiary challenge on which the Commission based its dismissal here is simply inappropriate at the prima facie stage of a fairness doctrine proceeding. The soundness of ASCEF's methodology and the probativeness of its particular examples are questions for the merits, to be resolved on the basis of responsive submissions by the network and the complainant. They are not questions that must unanimously be answered in favor of ASCEF before an inquiry is even made to the licensee. To require that a complainant at the outset demonstrate his case beyond cavil is to transmute the requirement of a prima facie showing into an ex parte evidentiary decision on the merits. Such a transmutation would render the fairness doctrine, whose enforcement depends almost exclusively on viewer-initiated complaints,*fn47 a dead letter.

Such a transmutation, moreover, is flatly inconsistent with the FCC's expressed procedural standards. In its 1974 Fairness Report the Commission discussed what a complainant had to do to "indicate the basis for a claim" of programming imbalance. "[If] several regular viewers or listeners join together in a statement that they have not heard a presentation of [the neglected] viewpoint," the Commission said, the evidentiary burden of a prima facie case normally would be met:*fn48

The fact that regular viewers or listeners have not been exposed to an opposing viewpoint is obviously not conclusive evidence that the viewpoint has not been presented, but it does indicate that there is a reasonable basis for the viewer's conclusion that such is the case. See Alan C. Phelps, 21 FCC 2d 12 (1969). Accordingly, we believe that it is a sufficient basis for a Commission inquiry to the station.

In this case, a host of "regular viewers" joined together not only in a "statement," but in an elaborate statistical analysis showing that they had not heard a balanced presentation of viewpoints on national security. By so doing, they "indicated the basis for their claim" of imbalanced programming and satisfied the evidentiary requirements of a prima facie case. The Commission acted arbitrarily in concluding otherwise.

C. Scope of Complainant's Study.

The fairness doctrine requires a licensee to provide for expression of opposing views in his overall programming; it does not require him to offer a forum for such views in the same program or series of programs. In order to establish a prima facie violation of the fairness doctrine, accordingly, a complainant must state his reasons for concluding that the licensee in his overall programming has demonstrated imbalance.*fn49 The Commission found that ASCEF failed to meet this burden here. In its decision, the FCC argued that ASCEF only examined "selected programs broadcast by the network for the periods covered by the study, but [did] not make an allegation as to the overall news and public affairs programming of the licensee during that time."*fn50 In its brief the Commission goes further, and faults ASCEF's failure to present evidence of imbalance "in CBS' overall news, public affairs, and non-entertainment programming."*fn51 Because ASCEF "did not address each programming component," the FCC concludes, its complaint was properly rejected as a "generalized and unsupported attack."*fn52

The requirement that a fairness complainant demonstrate, as part of his prima facie showing, the absence of contrasting viewpoints in a licensee's overall programming is, on its face, quite burdensome. Proving a negative proposition is never easy; it is especially difficult when the subject of which the proposition is predicated goes on 24 hours a day, 365 days a year. Recognizing this, the FCC in its Fairness Report proffered a narrow and reasonable interpretation of its standard:*fn53

[The Phelps doctrine] does not require, as some appear to believe, that the complainant constantly monitor the station.... While the complainant must state the basis for this claim that the station has not presented contrasting views, that claim might be based on an assertion that the complainant is a regular listener or viewer; that is, a person who consistently or as a matter of routine listens to the news, public affairs and other non-entertainment programs carried by the station involved. This does not require that the complainant listen to or view the station 24 hours a day, seven days a week. One example of a "regular" television viewer would be a person who routinely (but not necessarily every day) watches the evening news and a significant portion of the public affairs programs of a given station.

On the basis of this published procedural standard, we conclude that the FCC abused its discretion here. ASCEF's complaint asserted that its researchers had examined (1) videotapes of all Evening News broadcasts in 1972; (2) transcripts of 23 CBS News Specials and 14 "60 Minutes" programs broadcast in 1972; (3) indices and abstracts of all Evening News broadcasts in 1973; (4) scripts of all Evening News broadcasts in 1975; (5) recordings of all CBS-TV News programs in a randomly chosen two-week period in 1975; (6) scripts of all CBS-TV News programs (except "Face the Nation") broadcast in 1976; and (7) recordings of all CBS-TV News programs broadcast in May 1976. On the basis of these assertions, ASCEF's researchers were plainly shown to be "regular viewers" who "routinely... [watched] the evening news and a significant portion of public affairs programs."

The requirement that a fairness complainant establish a prima facie case is, as we have said above, a commonsense requirement. Given the nature of the fairness doctrine, a complainant can legitimately be expected to make a show of having searched the broadcaster's overall programming for contrasting viewpoints. A complainant can reasonably be expected to search for such viewpoints, however, only where he sensibly would expect to find them. The Evening News is CBS' flagship news program, and has the largest audience of any television news broadcast. It dwarfs in its length, viewership, and importance the CBS Morning News, Midday News, and other subsidiary programs. The network's "News Specials" and "60 Minutes" are among its most popular news and public affairs broadcasts, and ASCEF examined all installments of these programs dealing with national security, defense, or foreign policy in 1972. If CBS did in fact present significant "opposing views" on national security in that year one would expect it to have put them where ASCEF looked. To require that a complainant look much further afield at the prima face stage of a fairness proceeding would be unreasonable.*fn54

The FCC's assertion that a fairness complainant must examine all of a licensee's programming is illogical here, because it ignores the type of issue which is being studied. The FCC relies upon our recent decision in NOW v. FCC,*fn55 in which we did hold that a licensee's fairness toward women, women's role, and women's participation in public affairs must be tested by an examination of all its programming, not just a few specific programs ostensibly devoted to women's issues. This holding was valid in NOW because obviously women might appear, or should be expected to appear, in every role in a station's programming throughout the day, as a topic for the program itself, as announcers, actors, advertising proponents, etc. In ASCEF's case we are dealing with the issue of national security, and we would not logically expect to find a thoughtful discussion of national security on an afternoon soap opera or a prime-time comedy hour.

For these reasons, we conclude that ASCEF submitted sufficient evidence of imbalance in CBS' overall programming on "the issue" during the period surveyed to make out a prima facie case. The Commission's contrary conclusion, in view of its own procedural standards, was an abuse of discretion.

D. Timeliness of the Complaint.

In its opinion the FCC suggested that although ASCEF had submitted "a voluminous, in-depth analysis of the opinions expressed" in a variety of CBS News programs in 1972-73, 1975, and 1976, its study still "[fell] short of examining the overall programming of the network" because it "made no allegations as to the content of almost two years of the network's programming - a period during which numerous election campaigns were underway" and during which "national security issues might well have been topics for discussion."*fn56 This suggestion, we think, is frivolous. The Fairness Report requires only that a complainant establish his status as a "regular viewer." It does not suggest that a complpainant, to be a regular viewer, must monitor the station for five consecutive years. The FCC in the past has found complainants to be "regular viewers" on the basis of their assertion that "they monitored the station 'for many hours, over many weeks.'"*fn57 ASCEF easily surpassed that record here.

Both the FCC *fn58 and CBS, finally, suggest that ASCEF is to be faulted for "[waiting] more than three years" from the time the 1972 programs were broadcast - the programs that formed the core of its study - before filing its complaint. *fn59 ASCEF finished its report in October 1974 and immediately sent the results to CBS. Six months later CBS delivered its definitive response. ASCEF at once undertook to update its study (May 1975), and updated it again just before filing its complaint (May 1976). To suggest that ASCEF can be scored for dilatoriness on this record is ludicrous. Obviously, the complainant could have sent its study to the Commission in 1974 without giving CBS a chance to reply. That, however, would have violated the Commission's published rules of fairness doctrine procedure. *fn60 Alternatively, the complainant could have omitted its recheck for the years 1975 and 1976. In that event, however, the complainant might well have anticipated a rejoinder that its findings were stale or insufficiently thorough. Having made its findings thorough and up-to-date, the complainant is now faced with the charge that its complaint is untimely. This is "Kafkaesque" *fn61 bureaucracy in the ultimate. III. HOLDING

In effect, the obligation of the television licensee is the other side of the coin from the obligation of a court. The most essential part of due process for centuries has been recognized by Anglo-American jurists to be audi alteram partem - "hear the other side." A licensee's obligation is to permit the other side to be heard by the American public. "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." *fn62 We recognize in the courts that no justice is done if both sides are not heard; occasionally a court may reach a right result without hearing both sides, but we insist on the procedural due process of hearing both sides to validate the eventual judgment.

In regard to the exercise of free speech on the airways, the only protection under the First Amendment which those citizens not involved in the broadcast industry have is the protection of the fairness doctrine. Since television licenses cannot be granted to all, there must be a rough balance in the points of view presented over the airways. The licensee is the custodian for service to the public.Neither the licensee, nor the FCC, nor any member of the public can be the arbiter of the truth of what is broadcast. But the licensee, and then the FCC if the licensee does not perform, is the arbiter and enforcer of preserving a rough balance in the discussion of controversial issues of public importance over the facilities of each licensee.

As we stressed at the outset, so we emphasize in conclusion, that we express no views on the merits of ASCEF's complaint. Whatever flaws the study on which the complaint was based may ultimately be shown to have, the FCC did not demonstrate them in its opinion ruling on whether the complainant had made a prima facie case. Indeed, by the very nature of the issue and the purported exhaustive documentation, it would have been virtually impossible to have done so. We hold only that, as a procedural matter, ASCEF specified "an issue" and presented sufficient evidence of imbalance in the network's overall programming on that issue to meet the threshold requirements of a prima facie case concerning the issue of national security. *fn63 Since we anticipate the Commission on remand could hardly find the issue of national security not to be "controversial" and "of public importance," it must, in accordance with its own procedures, make inquiry of CBS. *fn64 Further action by the Commission likewise must be in accordance with Commission procedures and applicable precedents.

Remanded for proceedings consistent with this opinion.

APPENDIX A

EXAMPLES OF NATIONAL SECURITY VIEWPOINTS: 19721a

The following list of eight national security issues illustrates the differences between the A, B, and C viewpoints. This was used as a guide in coding the CBS Evening News items.

Issues Viewpoint A Viewpoint B Viewpoint C

1. Desirable U.S. should be Parity between U.S. Not necessary

superior

Military Balance to USSR and USSR f

or U.S. to match Soviet

military power

2.Actual Military USSR is ahead of USSR and U.S. are U.S. is ahead of

U.S. USSR

Balance about equal

3. SALT: ABM and Favors Soviet Union Preserves strategic Laudable, but not

at suffi-

Missile Freeze Expense of U.S. parity and enhance ciently

comprehensive

international peace

4. U.S. Defense Should be Should retain Should be

substantially substantially

Budget increased present level decreased

5. Soviet and USSR and PRC still USSR and PRC have USSR and PRC

in- intentions

Chinese tend to expand theirmellowed and are are largely peaceful

less

Objectives influence by any expansionist

available means

6. U.S. Allies U.S. should give Allies should U.S. support to

greater receive allies

support to its modest U.S. support should be

allies substantially cut

a. NATO U.S. should U.S. should ...


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