Justia Federal District Court Opinions

We hold no freedom more inviolable than our precious first amendment right to freedom of speech. Free and unfettered debate has been a cornerstone of our Republic for almost two hundred years. Any attempt to silence those who would speak, no matter how unpopular their opinions, no matter how controversial their views, must be met with immovable opposition by those who cherish our basic freedoms and hold them dear.

[T]he peculiar evil of silencing the expression of opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.1

This is the setting in which we must consider the dispute arising from the refusal of the Federal Communications Commission (hereinafter "the Commission") to renew the broadcast license of Brandywine-Main Line Radio, Inc. (hereinafter either "Brandywine" or "WXUR") as licensee of radio stations WXUR and WXUR-FM, located in Media, Pennsylvania.2 Yet, even in light of the extremely high standard which we have set in this case, we must affirm the opinion of the Commission.

Brandywine was licensed to operate WXUR in 1962 by the Commission after a determination that such license would be beneficial in serving the public interest. WXUR-AM is a daytime standard broadcast station while WXUR-FM is a full-time station. The two stations are the sole stations in Media, Pennsylvania. As has been known to happen, Brandywine suffered financial reverses and the stockholders expressed an interest in selling the company in 1964. Contemporaneously, Station WVCH, located in Chester, Pennsylvania (a town which neighbors Media) elected to terminate broadcasting 20th Century Reformation Hour, the program produced by Dr. Carl McIntire.³ This event left Rev. McIntire with no outlet for his program in the Philadelphia broadcast market. It is understandable, therefore, that when Dr. McIntire learned that WXUR might be available, the Faith Theological Seminary⁴ (hereinafter "the Seminary") entered into an agreement to purchase Bradywine's stockholders' interests in October, 1964. The Seminary filed an application with the Commission seeking approval for the proposed purchase of Brandywine's stock and for Commission approval for the Seminary's proposed operation of WXUR.

In its proposal to the Commission the Seminary stated that it would continue the station's general format of broadcasting entertainment, talk shows and short newscasts, and in addition, two one-hour religious programs would be broadcast each weekday;⁵ the station would also broadcast religious programs until noon on Sunday.⁶ The terms of the Seminary application sought Commission permission to operate "for the principal purpose of broadcasting the Gospel of our Lord and Saviour Jesus Christ, for the defense of the Gospel, and for the purposes set forth in the Charter of Incorporation." This application was not without opposition, however, as some fifteen community groups and a number of individuals and churches within the community made their opposition known to the Commission.⁷ The Commission noted that it also received communications from many individuals and churches who were proponents of the transfer. As the Commission noted "[t]he complaints [opposing the transfer application] are based on the relationship to the transferee of the Reverend Carl McIntire, President of the Board of Directors of Faith Theological Seminary, Inc."⁸

The major concern of the opponents to the transfer was that the station would be incapable of providing for a balanced presentation of opposing views in light of McIntire's connection with the Seminary and in view of his radio programs and publications.

The main thrust of the complaints concerning Rev. McIntire, is that, in his radio programs and publications, he has made false and misleading statements and deliberate distortions of the facts relating to various public issues such as race relations, religious unity, foreign aid, etc.; that he has made "intemperate" attacks on other religious denominations and leaders, various organizations, governmental agencies, political figures and international organizations; and that such expressions are irresponsible and a divisive force in the community and help create a climate of fear, prejudice and distrust of democratic institutions. It is also alleged that, in light of his record of "partisan and extremist" views on various public issues, he lacks the degree of social and public responsibility demanded of broadcast licensees and that these views will carry over into the operation of the stations in view of his connection with the transferee. It is alleged, finally, that a serious question is thus raised, in light of his views, whether he is or will be able to bring about a balanced presentation of opposing views or whether he will place his personal views above the station's public interest obligations.⁹

While the applications for transfer were still pending, the Commission communicated with the Seminary with regard to various aspects of the application and with particular interest as to whether station "facilities would be available to other faiths for the presentation of religious programs, and, if so, under what conditions or circumstances." The Seminary responded by filing an amendment to the original application which included an exhibit which stated the Seminary's intent to "make time available on an equal and non-discriminatory basis to all religious faiths requesting time for the presentation of religious programs."¹⁰ To further insure balance in the area of religious broadcasting the Seminary's amendment provided for a half-hour program on Sunday to be known as Interfaith Forum.¹¹

The Commission's Memorandum Opinion and Order¹² granting the transfer application was forthcoming on March 19, 1965.¹³ This opinion, known as the Borst Decision, summarized the nature of the complaints received¹⁴ opposing the Seminary's application. The Commission continued by expressing that, as a matter of policy,

[t]he Commission is wisely forbidden from choosing "among applicants upon the basis of their political, economic or social views . . ." As Mr. Justice Douglas stated:

"The strength of our [broadcasting] system is in the dignity, resourcefulness and the intelligence of our people. Our confidence is in their ability to make the wisest choice. That system cannot flourish if regimentation takes hold."¹⁵

The Decision noted that Dr. McIntire represented that his relationship with WXUR would be as that of a broadcaster and that management decisions would be left to three other members of the Seminary's Board who would constitute the Board of Brandywine.¹⁶ Despite all of this the Commission did consider the basic fear of the application's opponents that the station would be under Dr. McIntire's influence and that it would not give full and fair treatment to divergent views on controversial issues as required by both standards of public interest and the Commission's fairness doctrine.¹⁷ The Commission's ultimate conclusion was that a hearing on the transfer application was unnecessary because of the in-depth representations, contained in the application, to fully comply with the station's acknowledged obligations in the fairness arena.¹⁸

The Borst Decision went to great lengths to reinforce and reiterate the transferee's duties and obligations under both the fairness doctrine and the personal attack corollary. The Commission took notice of Brandywine's written submission that equal opportunity would be afforded to opposing viewpoints on controversial public issues¹⁹ but nonetheless felt constrained to

[s]pecifically direct attention to our ruling in Cullman Broadcasting Co., FCC 63-849 [requiring presentation of conflicting views at licensee expense if advocates willing to pay for broadcast time cannot be found] and to our personal attack principles (see Public Notice of July 1, 1964, Applicability of the Fairness Doctrine, Part E) the licensee is required to operate in accordance with these requirements, and unless immediately informed to the contrary, we take the licensee's representation to encompass these requirements.²⁰

The Commission expressed the view that Dr. McIntire's record of offering free response time for either an opportunity to debate some issue or respond to some attack "[would] not suffice to discharge the fairness responsibilities of a licensee carrying the broadcasts in question."²¹

The Commission made every effort to assuage the fears of Brandywine's opponents that WXUR would become a medium over which McIntire could express his personal views to the exclusion of the views of the listening public. The Commission reprinted the following detailed programming promise from the Brandywine application:

It will be the policy of the transferee to make time available on an equal and nondiscriminatory basis to all religious faiths. . . . In other words, the same terms and conditions will be applicable to all faiths . . . as will be applicable to the religious faith . . . [of] the transferee. . . . It will be the policy to make time available to religious faiths equally. . . . However, . . . a half hour will be available and utilized on Sundays . . . for an Interfaith Forum program, in which ministers or representatives of different faiths will be invited to participate in round-table discussions of religious principles and tenets as related to current social problems.

Every effort will be made to obtain varied participation from week to week to assure the greatest possible balance of views on the subjects of discussion. The transferee will invite the cooperation of recognized ministerial associations in the Greater Philadelphia area to present their recommendations as to participants and subjects of discussion on this program and in the event of failure to obtain such cooperation, the transferee will extend invitations to, and make sincere efforts to obtain participation by, individual churches and faiths in a manner which will assure, to the fullest extent possible, fair and equal representation of varying views.²²

The Commission granted Brandywine's application for transfer with one final warning to the Seminary broadcast group.

In reaching this determination, we have relied upon the specific representations by the transferee indicating awareness of a licensee's responsibilities. In any event, this grant is subject to the same conditions applicable to all broadcast grants . . . [including, among itemized conditions] . . . that [Brandywine] will abide by the requirements of the fairness doctrine (see [Fairness Primer]).²³

The new management began broadcast operations on April 29, 1965.

Brandywine's initial license period ran from April 29, 1965, through August 1, 1966.²⁴ It is important for this court to examine WXUR's operations during this period as these operations are the actual predicate of the action before us.

When the new management group assumed broadcast control on April 29, 1965, they began making substantial changes in the station's program format, despite the fact that these changes were not indicated in the proposed program format as presented by the Seminary in the transfer application. In addition, one of the programs on which the Commission placed the greatest reliance in granting the application, Interfaith Dialogue, did not first appear on WXUR until November 28, 1965, some seven months after the Seminary assumed control of the station.²⁵ The Commission enumerated a partial listing of programs which did appear in the early license period although not included in the Seminary's amended "Typical Program Schedule." On May 3, 1965, WXUR broadcast Lifeline and Manion Forum; Behind the Headlines on May 4, 1965; Howard Kershner's Commentary on May 5, 1965; Independent Americans on May 6, 1965; The Dan Smoot Report on May 7, 1965; Church League of America on May 8, 1965; and Christian Crusade on June 14, 1965.²⁶ In this regard, it is interesting to note the admission by John H. Norris, the station's manager, that "as soon as the F.C.C. said that . . . [the Seminary] could take the Station over," he commenced making arrangements for broadcast of the above programs.²⁷ All of these programs shared one common characteristic: they were devoted almost solely to coverage and discussion of viewpoints on controversial issues of public importance. Personal attacks on the honesty, integrity and character of both groups and individuals were, unfortunately, not infrequent.²⁸

Seven months after the Seminary commenced operation of WXUR, the station was the subject of public condemnation by the Media Borough Council29 and the House of Representatives of the Pennsylvania General Assembly.³⁰ The Seminary's Broadcast Board attempted to soothe some of the ruffled nerves created by the Freedom of Speech program,³¹ and continued its attempts at rehabilitating the station's image by introducing Inter-Faith Dialogue, promised in the January 1965 amendment to Brandywine's transfer application, on November 28, 1965.³²

WXUR was required to file its renewal application by early May, 1966. They were sent the necessary "renewal packet" early in 1966 by the Commission. At this time WXUR was also continuing to receive more specific communications from the Commission relating to complaints it had received from individuals, community groups and local governmental bodies. The record discloses that WXUR made attempts at this time to once again enhance its public image by attempting to produce several programs containing contrasting viewpoints on controversial issues of public importance. Each of these programs were carefully detailed in Brandywine's renewal application filed May 3, 1966.³³ That application would have, if granted, provided Brandywine a license for a three-year period from August 1, 1966, through July 31, 1969. Based on Brandywine's operating record from March 17, 1965, through the May 3, 1966, filing date, nineteen parties opposed the renewal application and urged the Commission to deny Brandywine's application.³⁴ This opposition was in the form of a joint pleading filed with the Commission on July 19, 1966.

After considering the submissions of the parties the Commission found that substantial questions did exist as to

whether the applicant has met the conditions set forth in the Commission's . . . [Transfer Order] . . . during its license period from April 29, 1965 to August 1, 1966;. . . whether the applicant fully and candidly advised the Commission of its program plans in connection with its [transfer] application . . .; the applicant's efforts to comply with the Commission's Fairness Doctrine, including the personal attack principle; and . . . whether the applicant has used the facilities of its stations to serve the sectarian and political views of its principals and to raise funds for their support rather than to serve the community generally, and whether this was misrepresented to the Commission in its application for acquisition of control of these stations. In the latter connection, the Commission notes the charges that the applicant has operated stations WXUR and WXUR-FM, as a divisive force in the community by disparaging racial and religious groups and by castigating and vilifying persons and groups espousing views on public controversial issues different from those of the applicant.³⁵

The Commission adopted a number of issues for hearing of which four remain pertinent to these proceedings:

. To determine whether the applicant failed to inform the Commission fully of its program plans in connection with its application for acquisition of control of Stations WXUR and WXUR-FM;

. To determine whether the applicant has complied with the Fairness Doctrine and Section 315 of the Act by affording a reasonable opportunity for the discussion of conflicting views on issues of public importance during its license period;

. To determine whether during its license period the applicant has complied with the personal attack principle of the Fairness Doctrine by furnishing copies of pertinent tapes, continuities or summaries to persons or groups attacked, with specific offers of the stations' facilities for responses, where discussions of controversial public issues have involved personal attacks;

. To determine whether the applicant in connection with its application for transfer of control of Stations WXUR and WXUR-FM misrepresented to the Commission its program plans.³⁶

The Commission designated the WXUR renewal application for hearing stating that it was

unable to determine that a grant of these renewal applications would serve the public interest, convenience, and necessity. In order to insure that a full record is made detailing all pertinent and relevant facts concerning the applicant's operations of stations WXUR and WXUR-FM and its representations concerning such application, an evidentiary hearing is required.³⁷

Hearing Examiner H. Gifford Irion called the evidentiary hearing to order on October 2, 1967, in Media, Pennsylvania.³⁸ The hearings recessed for over three months on December 15, 1967, after the bulk of the Intervenor's and Broadcast Bureau's evidence had been submitted, to allow Brandywine to prepare its case. The Brandywine presentation began on March 20, 1968.³⁹ The record of the hearings closed on June 26, 1968, after a compilation of a nearly 8,000 page record and several hundred exhibits.

Hearing Examiner Irion released his Initial Decision on December 13, 1968. This very lengthy examination of the case⁴⁰ was most thorough with regard to findings of fact, however, the high quality of fact finding led the examiner to only irrational conclusions and findings of law. Intervenors have termed this decision "a whitewash of Brandywine's performance as a licensee"⁴¹-this court must concur in that assessment. Several examples will make this clear.

1. Presentation of Contrasting Viewpoints on Controversial Issues. Hearing Examiner Irion found that WXUR should be excused from complying with the fairness doctrine because of the small staff retained by the station. Secondly, he found that programming on WXUR was balanced by the programming of other licensees in the Philadelphia market. Both of these conclusions are clearly erroneous. The fairness doctrine applies to all licensees, while area wide programming is not a valid consideration in determining whether a licensee has complied with the fairness requirements. See Green v. F. C. C.⁴²

2. Personal Attack Violations. The Examiner made numerous findings against WXUR for failure to comply with the personal attack principle of the fairness doctrine. However, his conclusions fail to recommend any sanctions for these numerous violations. It is not necessary for this court to prepare a line-by-line analysis and refutation of the Examiner's decision; nor would it be prudent for us to do so as the Commission has issued its own detailed opinion reversing the Examiner. Nonetheless we are sufficiently disturbed by the Examiner's final conclusion to pause for a moment to reflect and comment. Examiner Irion concluded by saying:

Thus the decision must be shaped by ultimate objectives rather than by isolated instances of error. This will not be an invitation to carelessness or disregard of the ethical principles involved in the personal attack rules since punishment by forfeiture will always await the transgressor but, in the unusual circumstances of this case, Draconian justice is inadvisable.⁴³

It is clear to this court, as it was to the Commission, that the Examiner began his herculean opinion by determining both his conclusion and ultimate disposition of this case. Rather than suiting his conclusions to "let the punishment fit the crime", he chose to adopt a benevolent stance ill-suited to the facts in this case. The Initial Decision allows appearance to tyrannize over truth. The facts surrounding Brandywine's operation of WXUR are neither so pliant nor sufficiently malleable to allow for the conclusions of the Examiner.

The opinion did contain a number of findings adverse to Brandywine; however, the licensee failed to file exceptions as to any of these matters.⁴⁴ Both intervenors and the Broadcast Bureau of the Commission filed extensive exceptions.

The Commission refused to adopt the Hearing Examiner's Initial Opinion and adopted its own opinion on July 7, 1970 in which it denied the licensee's application for renewal after an independent review of the record. In its review the Commission drew adverse conclusions with reference to Brandywine's compliance with the fairness doctrine,⁴⁵ compliance with the personal attack principle,⁴⁶ and also with reference to the manner in which Brandywine misrepresented its program plans to the Commission.47 Let us examine the Commission's reasoning in each area separately.

The fairness doctrine was, in the Commission's view, the central aspect of the litigation. The reason for this is axiomatic-prior to issuing Brandywine's initial license a tremendous amount of concern was expressed to the Commission by numerous parties, each fearing that WXUR would fail to comply with the doctrine. Brandywine's response to these fears was clear and apparently forthright-it had promised at the time of the transfer application to fully comply with the doctrine.⁴⁸ In point of fact, the decision of the Commission had "reiterated the necessity that a licensee serve the public interest by adherence to the Fairness Doctrine, including the personal attack principle."⁴⁹

The Commission proceeded to review the record, including fifteen days of monitored broadcasts,⁵⁰ and concluded "that Brandywine under its new ownership did not make reasonable efforts to comply with the Fairness Doctrine during the license period."⁵¹ The Commission discovered, as a result of studying the submissions based on the monitored periods, that WXUR had failed to comply in a number of instances in which one side of an issue was broadcast

during these periods without presenting any opposing viewpoints on any but one of these issues, and with an insignificant presentation on that issue, despite the fact that such controversial issue programming was a substantial part of WXUR's total programming.⁵²

Additionally, the Commission found that WXUR had failed to affirmatively come forth with the requisite responsive evidence necessary to illustrate Brandywine's efforts to assure compliance with both the fairness doctrine and the personal attack principles, as promised in the initial transfer application. The Commission found that:

Brandywine failed to establish any regular procedure for previewing, monitoring or reviewing its broadcasts, and thus did not regularly know what views were being presented on controversial issues of public importance. Despite the prima facie evidence presented by the other parties on this issue, Brandywine did not respond with any further review of its treatment of such controversial issues, either for the full license period or any smaller reasonable segment of time. Furthermore it made no showing of public announcements inviting the presentation of contrasting views at the times the issues in Appendix A (or others) were discussed, nor of any other adequate action to encourage the presentation of contrasting viewpoints on these issues.⁵³ Brandywine relies upon certain call-in and interview programs as meeting its fairness obligations. However, our review of the record shows that these programs were inadequate to this purpose because they either were not directed at obtaining opposing views on the issues (i.e., speakers were not secured or presented in connection with these issues), or were so conducted as to discourage the presentation of views not shared by their moderators.⁵⁴

WXUR contended that Rev. McIntire had undertaken substantive efforts to assure compliance with the fairness doctrine. This submission took the form of letters which evidenced unaccepted invitations to appear on the 20th Century Reformation Hour. The Commission rejected this would-be indicia of compliance since "these were not invitations by the licensee and, more important, they do not constitute adequate invitations to present contrasting views on the issues set forth in Appendix A."⁵⁵ Similarly, the Commission rejected the suggestion that the licensee's fairness obligations could be met by the existence of a daily one-hour call-in program, entitled Freedom of Speech, on which a listener could comment briefly on any topic he wished.⁵⁶ "On the contrary," the Commission stated, "its operation demonstrates a failure to provide a fair forum by a licensee specifically on notice of its responsibilities in the fairness area."⁵⁷ This was especially true since, from the inception of the program until the replacement of Thomas Livezey as moderator, after the adverse resolution of the Media Borough Council,⁵⁸ the program

was conducted so as to discourage viewpoints with which [the moderator] disagreed. From the outset he both cut off and insulted callers who did not share his views. This conduct, for which Brandywine is of course responsible, is patently inconsistent with the requirement of fairness.⁵⁹

Likewise, the Commission rejected two other daily programs as examples of efforts to provide the required balance. The first of these was Delaware County Today⁶⁰ on which the moderator dealt with those opposed to his views by "rough[ing them] up" and by "forc[ing them] to give their views in an antagonistic setting."⁶¹ The second program on which WXUR sought to rely was Radio Free Philadelphia.⁶² The commencement of this program was shortly after Brandywine filed its renewal application with the Commission and shortly prior to the filing of the petitions to deny. Therefore, the program had a very brief period of relevance to this proceeding.⁶³

The Commission indicated that a detailed discussion of these programs and issues was necessary

both because they are critical to resolution of the fairness issue in this case and because the Examiner neither tied his view that WXUR had put on all shades of the political spectrum to the station's treatment of particular controversial issues nor made a distinction between the pre- and postrenewal date programming. We are not concerned with the social, political, or religious philosophy of the licensee or any person using its facilities. Our interest is in the right of the public to a reasonable opportunity to hear contrasting views on controversial issues; whether this right has been accorded by the licensee can be determined only in the context of issues, not by generalized political labels. In the face of particular attention being drawn to the necessity for fairness at the time control of the station was transferred, the record shows no reasonable attempt to meet the station's obligations in this area. See Editorializing by Broadcast Licensees, 13 FCC 1246 (1949).⁶⁴

The Commission refused to give weight to the Examiner's conclusion that WXUR's small staff in some way exculpated the station for its failure to achieve balance in fairness.

The objective of the Fairness Doctrine is to protect the listeners' right of access to information about all sides of controversial issues of public importance. No showing has been made of inability to comply with fairness requirements because of financial limitations.⁶⁵

The Commission was also unmoved by Brandywine's "alleged delegation of Fairness Doctrine responsibilities to the sponsors or producers of the programs it broadcast. (Tr. 7874-75)."⁶⁶

Fairness Doctrine responsibilities may not be delegated. Editorializing by Broadcast Licensees, 13 F.C.C. at 1248; see also "Living Should Be Fun," 33 F.C.C. 101, 107 (1962) . . . . [T]he ultimate responsibility for compliance with the Fairness Doctrine rests with the licensee. Norris [the General Manager] must have known this if he understood the Doctrine as thoroughly as he claimed. (See Tr. 1664-65 and 1880-82.) In any event, we have not found that any delegee adequately performed these functions.⁶⁷

The Commission concluded its consideration of this topic by finding that Brandywine "was indifferent to its affirmative obligation 'to encourage and implement the broadcast of all sides of controversial public issues' (paragraph 9, Editorializing by Broadcast Licensees, 13 F.C.C. at 1251), and indeed it was hostile to such broadcasts."⁶⁸

It was clear to the Commission, as it was to Examiner Irion, that WXUR "repeatedly violated the personal attack principle."⁶⁹ This was in spite of specific instructions from the Commission to Brandywine at the time that the initial transfer application was approved. This court need not recount these violations seriatim as the Commission has already done so for us.⁷⁰ The Commission continued by noting that the Examiner had found additional attacks, as to which no exceptions were taken by Brandywine; however, the Commission found it unnecessary to "adopt all of the Examiner's findings in this respect," because recitation of "indisputable examples is sufficient."⁷¹

Subsequent to the attacks in issue in the case at bar the personal attack principle was codified into a formal rule.⁷² Under the terms of the rule the Commission exempted bona-fide newscasts, bona-fide interviews, and on-the-spot coverage of bona-fide news events from the earlier reply requirements of the principle. Examination discloses that none of these exemptions prove applicable to the attacks broadcast by Brandywine and hence, "Brandywine was . . . obligated to comply with the personal attack principle in regard to each one of the personal attacks."⁷³ In each case the Commission found that Brandywine failed to give notice to the party attacked as required; they failed to send the required copies of transcripts, tapes or summaries; and similarly, they failed to offer an opportunity to reply to the aggrieved party as required. More dispositive, however, was the fact that:

Brandywine had not established any procedures to insure compliance. (Tr. 1662-1670.) For example, Brandywine did not arrange to know either before or at the time of broadcast whether a given broadcast contained any personal attacks. (Ibid.) Brandywine was therefore incapable of sending transcripts, tapes or summaries of the broadcasts to those attacked either prior to or at the time of the broadcast.⁷⁴

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* * *Again, the station's argument to the effect that its small staff excused it from performing in this area was unpersuasive. The Examiner was willing to excuse WXUR since those attacked often showed no concern; however, the principle was never geared at protecting persons from personal abuse, but rather "to enable the listening public to hear expositions of the various positions taken by responsible individuals and groups on important disputed issues."⁷⁵

The Commission concluded that "Brandywine simply ignored its plain duty to the public" and that this conduct was "particularly reprehensible in light of the fact that the licensee had been cautioned at the outset concerning its duties in this area."⁷⁶

The Commission noted that an independent basis for denying the Brandywine renewal application was WXUR's utter failure to live up to its original representations concerning its program plans. The much-touted Interfaith Forum,⁷⁷ which was designed to promote open discussion concerning matters of modern-day religion, did not appear until November 28, 1965, ten days after the Media Borough Council's resolution, despite the fact that the program was promised specifically in Brandywine's January 25, 1965 transfer application amendment.⁷⁸ When Interfaith Forum did finally make its belated debut it did not fulfill its advertised purpose to "'make every effort' to get a varied participation." The show never took the form of the promised round-table discussion but was an interview show on which students or faculty of the Faith Theological Seminary simply interviewed fellow seminarians. Brandywine sought to explain this away by claiming that the Greater Philadelphia Council of Churches had deliberately boycotted the program; yet, there is no support for this proposition in the record.⁷⁹

Brandywine's actual programming practices were far more objectionable than the singular failure of Interfaith Forum to appear. From the very inception of Brandywine's control of WXUR there was a marked deviation from the original programming representations made to the Commission. Between April 29, 1965 and May 8, 1965 WXUR replaced a number of promised programs, mostly classified as "entertainment," with seven new programs.⁸⁰ The Commission found, and logic dictates that this court agree, that the plans for each of these programs predated the actual transfer. These changes must be viewed as substantial inasmuch as they differed significantly from those programs which they were replacing and were a departure from the general format promised in the Brandywine transfer application: i. e., programming designed "for the purpose of broadcasting the Gospel of Our Lord and Savior Jesus Christ, for the defense of the Gospel and for the purposes set forth in the Seminary's Charter of Incorporation."⁸¹

The Commission refused to accept station manager Norris' representation that these new programs, for which sponsors allegedly purchased time from WXUR, were born of economic necessity in response to an alleged boycott on the part of commercial advertisers. Despite Brandywine's assertion that this action was in anticipation of the boycott, seven of the eight programs listed in footnote 80 were on the air between four and nine days after Brandywine's assumption of control.⁸² Three of these programs were sponsored by an organization called the "American Patriotic News", which never paid any sponsorship fees to WXUR. As Norris was a trustee of the "American Patriotic News" and station manager of WXUR, it is safe to assume that he was aware that these three programs were generating no income. The Commission concluded that the Faith Theological Seminary

[failed to apprise us] fully concerning program plans, and also a significant departure from an express representation concerning the fair treatment of all religious faiths [sic]. In view of the circumstances, these failures can not be laid to inadvertence. They must be considered a conscious course of conduct.⁸³

The Commission closed its 23-page opinion by stating:

We conclude upon an evaluation of all the relevant and material evidence contained in the hearing record, that renewals of the WXUR and WXUR-FM licenses should not be granted. The record demonstrates that Brandywine failed to provide reasonable opportunities for the presentation of contrasting views on controversial issues of public importance, that it ignored the personal attack principle of the Fairness Doctrine, that the applicant's representations as to the manner in which the station would be operated were not adhered to, that no adequate efforts were made to keep the station attuned to the community's or area's needs and interests, and that no showing has been made that it was in fact, so attuned. Any one of these violations would alone be sufficient to require denying the renewals here, and the violations are rendered even more serious by the fact that we carefully drew the Seminary's attention to a licensee's responsibilities before we approved transfer of the stations to its ownership and control.⁸⁴

On August 6, 1970 Brandywine filed a motion to reconsider with the Commission.H. Commission's Opinion on Reconsideration

The Commission released its memorandum Opinion and Order⁸⁵ denying Brandywine's request for reconsideration on February 11, 1971. The central theme raised by Brandywine constituted an assertion that the Commission's July Decision extended the concept of the fairness doctrine to an unconstitutional brink in that the July Decision was predicated upon "a disapproval of the content of the programs on WXUR." The Commission commented:

Our decision was based solely upon fairness concepts whose constitutional validity has been sustained by the Supreme Court in Red Lion Broadcasting Co., Inc. v. F. C. C., 395 U.S. 367 [89 S.Ct. 1794, 23 L.Ed.2d 371] (1969) and in no sense upon any Commission attitude toward the content of any view expressed over Brandywine's facilities.⁸⁶

The Commission expressed the view that Brandywine's failure to meet the affirmative duty set forth in Red Lion Broadcasting Co., Inc. v. F. C. C.⁸⁷ to "offer to make available a reasonable amount of broadcast time to those who have a view different from that which has already been expressed on his station",⁸⁸ was not beyond the pale of constitutional reach by the Commission, merely by demonstrating the existence of offers of time during which the proponents of contrasting views were harassed. The Commission stressed that this was a matter of presentation and not one of content.

[W]e did not hold that . . . there was anything wrong per se in harassing conduct by a moderator, but only that Brandywine could not rely for its achievement of fairness upon a program where one side was singled out for harassment.⁸⁹

The Commission proceeded to consider each of the issues which Brandywine raised and concluded by reaffirming the majority of its earlier views. Let us consider each issue separately as we did with regard to the July Decision.

In its petition for reconsideration Brandywine in no way challenged the Commission's earlier finding that despite Brandywine's initial representation and despite the Commission's strong warning in the transfer decision, "Brandywine had taken no steps to encourage the presentation of contrasting views on several issues of public importance where it had presented one side on each of these issues."⁹⁰ Brandywine contended that it had broadcast material on certain news, interview, and call-in shows which, although never considered by the Commission, did satisfy the fairness doctrine requirements as to these issues. The Commission began by reminding the licensee that its affirmative duties in the fairness arena would not be satisfied

by leaving the expression of contrasting views to such happenstance as the remarks of an unknown person on a call-in program, or to the possibility that a pertinent question will be asked on a general interview program unannounced as dealing with any particular issue and not presenting a guest selected as a responsible spokesman of a contrasting view.91

The Commission did not stop at this juncture but rather continued on to reexamine the material cited by petitioners and determined that this material was not "an expression of conflicting viewpoints in a reasonable ratio which might make a denial of renewal inappropriate."⁹² The Commission commenced with an evidentiary point-the affirmative cases presented by the intervenors and the Broadcast Bureau, based on the two weeks of monitored programming, placed an evidentiary burden on Brandywine which could not be satisfied merely by demonstrating "some instances of the expression of opposing views in other time periods without also taking account of any further expression of the original views in such other time periods."⁹³ Brandywine failed to produce any evidence concerning what was broadcast during the periods they cited to the Commission except for those specific matters on which Brandywine relied. The Commission went on to say:

In the face of the prima facie showing that its treatment of certain issues was unfair, Brandywine clearly was required to show how it encouraged the presentation of opposing views, or at least that the presentation of such views constituted a reasonable proportion to the time devoted to the issues, either throughout the license period or, at the minimum, during some other representative period of time. . . . Therefore, we adhere to our conclusion that Brandywine failed not only to seek some balance of opposing views but to carry opposing views in any fair ratio.⁹⁴

Brandywine attempted to have the Commission exclude certain broadcast statements by Dr. McIntire since they were "religious."⁹⁵ The decision on which this attempt was founded was without relevance. The Murray Letter, on which Brandywine sought to rely, only held that devotional services were not a controversial issue within the scope and meaning of the fairness doctrine; but "[t]he fairness doctrine extends to all expressions of views on controversial issues of public importance, whether or not they may be deemed religious views by some persons."⁹⁶ This holding, the Commission stated, "is no more an abridgement of freedom of religion than of freedom of speech, an issue already decided by the Supreme Court in Red Lion Broadcasting Co., supra."⁹⁷

Brandywine charged that the Commission had neglected to consider various invitations to certain spokesmen. The Commission replied by commenting that "Brandywine mistakes our disagreement with its arguments for failure to consider them."⁹⁸ The Commission once again detailed its reasons for finding the Brandywine invitations inadequate. It also discounted McIntire's sundry invitations since they did not emanate from the licensee as the law requires. The Commission noted that its action was based primarily on the inadequacy of the various offers and once again spoke to Brandywine's practice of delegating its responsibilities under the fairness doctrine:

Certainly if Dr. McIntire had made adequate invitations corresponding to the issues and had succeeded in getting spokesmen with opposing viewpoints to speak on his program, Brandywine would have been able to rely upon this success in complying with the fairness doctrine. However, the converse does not obtain. Brandywine cannot absolve itself from failure to comply by merely pointing to Dr. McIntire's abortive efforts. Dr. McIntire's inadequate invitations and failure to get acceptances do not discharge Brandywine from its fairness duties. As we stated in the decision, "the ultimate responsibility of compliance with the fairness doctrine rests with the licensee."⁹⁹

On the positive side of the scale, the Commission decided that based on materials broadcast outside of the monitored weeks that WXUR "should be given the benefit of the doubt"¹⁰⁰ with regard to its coverage of the Vietnam War issue. However, the Commission found that with reference to issues relating to federal administration policy and activities, civil rights and liberties, United States foreign relations, the proposed New Jersey group defamation law, major news media, and loyalty of federal officials, that the citations submitted by Brandywine were either inadequate, inaccurate, lacking or insufficient in light of the balance of one-sided broadcast presentation.¹⁰¹

Brandywine attempted to escape the evidentiary burden placed on it by the Commission by claiming that the standards imposed by the Commission were too vague. The Commission dealt with this allegation by stating:

Brandywine contends that our judgment that it carried personal attacks without notifying the persons attacked of their right to respond is without evidentiary support and that we have no clear definition of "honesty, character, integrity or like personal qualities" against which to measure Brandywine's actions. However, the Supreme Court has sustained the rules against the charge of vagueness in Red Lion Broadcasting Co., supra, and we think that the attacks made over WXUR (see Appendix B of our decision) were such that no reasonable doubt exists as to their proper characterization. Brandywine further charges that we have not explained why the attacks were not made during exempt news broadcasts. Putting aside the fact that Brandywine does not in fact assert that the attacks were made during bona fide news programs -something it should do if it believes we were in error-we think it plain that they were not. Brandywine did not introduce these programs when they were broadcast as newscasts and they consisted entirely of comments not commonly considered to be news reporting.¹⁰²

In addition, the Commission rejected Brandywine's argument that an adverse finding with respect to the personal attack principle was inconsistent with other Commission rulings in this area.¹⁰³ The Commission also ruled that a 1969 finding by its Broadcast Bureau was not inconsistent with its ruling concerning certain remarks, not at issue in the case, broadcast by Brandywine. The Commission held the 1969 staff decision to be correct.

In any event, what is important here is not whether there may be a reasonable doubt as to the correctness of the staff ruling in another situation, but rather whether there was such a doubt about the comments . . . in this case. We do not believe that Brandywine could have had such a doubt; nevertheless, it failed to follow the requirements of the rules.¹⁰⁴

The final contention in this area, which the Commission also rejected, was that the Commission's decision constituted an unconstitutional ex post facto approach to the July, 1967 personal attack rules. The reason that the Commission rejected this contention was that the rules codified precepts which were already in effect and which Brandywine had specifically been made aware of by the Commission's transfer order.¹⁰⁵

Once again, the Commission stressed that its concern was not with title changes being made to the program schedule but to Brandywine's "willingness to withhold [its] intentions with respect to a substantial amount of programming."¹⁰⁶ The action taken against Brandywine had nothing to do with program content; it was aimed against WXUR solely because of its failure to "candidly advise us and the public of its intentions."¹⁰⁷ The Commission determined that its concern was not based on WXUR's motive but rather its conduct.

"The fact of concealment may be more significant than the facts concealed. The willingness to deceive a regulatory body may be disclosed by immaterial and useless deceptions as well as by material and persuasive ones." F. C. C. v. WOKO, Inc., 329 U.S. 223, 227, 67 S.Ct. 213, 215, 91 L.Ed. 204 (1946).¹⁰⁸

The Commission concluded the February Decision by deleting its adverse findings in the July Decision as to the issue of ascertainment of community needs¹⁰⁹ and found, still again, "that Brandywine is not entitled to renewal of licenses of WXUR and WXUR-FM."¹¹⁰

Brandywine has taken the instant appeal from these findings.

The requirements of the fairness doctrine are by no means regulations of recent advent. Not only is the concept of the doctrine an established historical fact in the broadcast industry but the doctrine itself has been little changed over the years. The purpose of the doctrine is to assure that when controversial issues of public importance are aired on radio and television frequencies that fair coverage be given to both sides of issues presented. The doctrine is a "common law development" which has evolved from a long line of rulings by the Commission on a case by case basis. As Justice White pointed out in Red Lion, the doctrine "is distinct from the statutory requirement of Sec. 315 of the Communications Act¹¹¹ that equal time be allotted all qualified candidates for public office."¹¹² In 1967 the Commission codified two corollaries of the doctrine-the personal attack doctrine and the rules relating to political editorializing.¹¹³

The Supreme Court's opinion in Red Lion went to great lengths at setting out the history of the birth of the fairness doctrine and its related regulations. We shall review that material here because of its critical importance to the case at bar.

The government was not always engaged in the regulation of broadcast frequencies. In fact, it was only out of dire necessity and sheer confusion, accompanied by utter chaos, that the government entered into a role of broadcast regulation.¹¹⁴ Indeed, it was not until 1927 that responsibility for the assignment and allocation of radio frequencies was assumed by the government.

It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony of competing voices, none of which could be clearly and predictably heard.¹¹⁵ Consequently, the Federal Radio Commission was established to allocate frequencies among competing applicants in a manner responsive to the public "convenience, interest, or necessity."¹¹⁶ The Court continued:

Very shortly thereafter the Commission expressed its view that the "public interest requires ample play for the free and fair competition of opposing views, and the commission believes that the principle applies . . . to all discussions of issues of importance to the public." Great Lakes Broadcasting Co., 3 F.R.C.Ann. Rep. 32, 33 (1929), rev'd on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930). This doctrine was applied through denial of license renewals or construction permits, both by the FRC, Trinity Methodist Church, South v. FRC, 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L. Ed. 975 (1933), and its successor FCC, Young People's Association for the Propagation of the Gospel, 6 F.C.C. 178 (1938). After an extended period during which the licensee was obliged not only to cover and to cover fairly the views of others, but also to refrain from expressing his own personal views, Mayflower Broadcasting Corp., 8 F.C.C. 333 (1940), the latter limitation on the licensee was abandoned and the doctrine developed into its present form.

There is a two fold duty laid down by the FCC's decisions and described by the 1949 Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). The broadcaster must give adequate coverage to public issues, United Broadcasting Co., 10 F.C.C. 515 (1945), and coverage must be fair in that it accurately reflects the opposing views. New Broadcasting Co., 6 P & F Radio Reg. 258 (1950). This must be done at the broadcaster's own expense if sponsorship is unavailable. Cullman Broadcasting Co., 25 P & F Radio Reg. 895 (1963). Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950). The Federal Radio Commission had imposed these two basic duties on broadcasters since the outset, Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32 (1929), rev'd on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930); Chicago Federation of Labor v. FRC, 3 F.R.C.Ann.Rep. 36 (1929), aff'd, 59 App.D.C. 333, 41 F.2d 422 (1930); KFKB Broadcasting Assn. v. FRC, 60 App.D.C. 79, 47 F.2d 670 (1931), and in particular respects the personal attack rules and regulations at issue here have spelled them out in greater detail.¹¹⁷

Having laid the necessary historical predicate we can turn our attention to the law of the fairness doctrine.

The need for radio regulation has not seriously been questioned in over fifty years. As much as our historical study shows a need for this regulation, there has been a concomitant need for a fairness doctrine. America has turned away from its town meeting and processes of rural decision making. This is the electronic age-an age in which communications systems relay information to an eager public in fractions of milliseconds. Information has become the stock and trade of our informed public. So too has our method of getting information changed in the last half century. We are shifting our emphasis from the printed media to the electronic media. Radio and television consume massive portions of America's time. Because of this we must assume that the public be given access to varied information so that they may remain an intelligent and viable group-free to choose from the options available to them-free to make a choice. In a recent appearance before the Senate Subcommittee on Communications, Nicholas Johnson, a Commissioner of the F.C.C., expressed the need of the American people for which the Commission has undertaken to provide. This parable states the problems involved so succinctly that we reprint it in full:

Once upon a time there was a nation great in ideals and industrialization. It had businesses everywhere-and unsurpassed military might. Yet its greatest strength lay in its ideological foundation. This nation professed to be governed by the consent of its citizens. To ensure the successful functioning of this unique experiment in government, free education, libraries and full information were provided to all, so that this nation's two-hundred million governors, through wide-open debate, might govern themselves wisely. But as the years slipped by, the people spent more and more of their time in their air conditioned homes watching television, and less and less time listening to speakers in the public parks, attending town meetings, and reading handbills on the streets. Meanwhile, the number and importance of crucial issues were growing, and the need for well informed governors became paramount. Thus it was the great debate about the great debate began.

Everyone had his own theory of how to reverse this trend and return the democratic dialogue to the people, who were all at home watching their television sets. Some advocated letters, petitions, press conferences and picketing, but they had little success. Attention shifted to those who advocated bombing, burning, shooting and looting, because before and after the televising of such activities it was usually possible to present a short message, however distorted, concerning the merits of the controversy that generated such outrageous conduct. Then a third group came along. It said, "Let us simply go to the broadcasters peacefully, ask them for the time to present our concerns-we will even pay them." But the broadcasters politely explained that there was no time available for the discussion of public issues-such as war, life and politics-because the time all had to be used for programs and announcements necessary to the very difficult but essential task of inducing consumers to buy useless, joyless, and sometimes harmful products. Yet these patient and patriotic students, businessmen, and Senators were not deterred. They continued to preach the doctrine of "working within the system." "The Government," they said, "will treat us fairly. There is reason and justice in our land. Surely a democratic people need not be violent to be heard." And so it was that they came to the Federal Communications Commission . . . .¹¹⁸

In the past months this court, and several other circuit courts, have examined the fairness doctrine on several occasions, sometimes at great lengths.¹¹⁹ It is clear to this court, therefore, that what we are about to state, with reference to the law in this area, is merely repetitive of our prior efforts. Nothing which we state here is new; however, it is our hope that through our efforts we will be able to instruct appellants as to the proper standard of the law and that we will allay any lingering doubts that appellants may have as to our consideration of the pertinent authorities.

The Commission's most recent elaboration on the fairness doctrine came following the Red Lion decision. In In the Matter of Obligations of Broadcast Licensees Under the Fairness Doctrine¹²⁰ the Commission posited:

The fairness doctrine was evolved as a policy under the public interest standard in a series of cases, given its definitive policy statement in the Commission's 1949 Editorializing Report (13 F.C.C. 1246), and codified into the Communications Act of 1959. See section 315(a), 47 U.S.C. 315(a); Red Lion Broadcasting Company, Inc. v. Federal Communications Commission, supra. It requires the broadcast licensee to afford reasonable opportunity for the discussion of conflicting viewpoints on controversial issues of public importance. The Commission early determined that if the fairness doctrine were to achieve its most salutary purpose, an affirmative obligation in this respect must be imposed upon the licensee . . . .

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The Commission's general approach to this facet of the fairness doctrine is set forth in a 1964 ruling, Letter to Mid-Florida Television Corporation, 40 F.C.C. 620, 621 (1964):

. . . The Commission does not seek to establish a rigid formula for compliance with the fairness doctrine. The mechanics of achieving fairness will necessarily vary with the circumstances, and it is within the discretion of each licensee, acting in good faith, to choose an appropriate method of implementing the policy to aid and encourage expression of contrasting viewpoints. Our experience indicates that licensees have chosen a variety of methods, and often combinations of various methods . . . .¹²¹

This court made it clear in Democratic National Committee v. F. C. C. that "[t]he importance of the fairness doctrine is neither academic nor is it an administrative nicety. As the Commission stated: 'The keystone of the fairness doctrine and of the public interest is the right of the public to be informed-to have presented to it the "conflicting views of issues of public importance"."'¹²² The proposition of the fairness doctrine is easy to understand, and to accept, when one considers that because of the finite number of broadcast frequencies available "they have been necessarily considered a public trust. Every licensee who is fortunate in obtaining a license in mandated to operate in the public interest and has assumed the obligation of presenting important public questions fairly and without bias."¹²³ Because of the evident importance of the doctrine "it is the manifest intention of the Commission to maintain it as a viable instrument in protecting the right of the public to be fully informed on controversial issues."¹²⁴

The fairness doctrine is not subject to a formulistic application. Meeting the obligations can only be achieved by seeking out balance in broadcast coverage. Precise mathematic equality is neither required nor desirable. The cornerstone of the doctrine is good faith and licensee discretion.

[T]he licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation-as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present the viewpoints, and all the other facets of such programming.¹²⁵

This is an area in which the Commission has exercised a substantial degree of restraint.

In passing on any complaint in this area, the Commission's role is not to substitute its judgment for that of the licensee as to any of the above programming decisions, but rather to determine whether the licensee can be said to have acted reasonably and in good faith. There is thus room for considerably more discretion on the part of the licensee under the fairness doctrine than under the "equal opportunities" requirement.¹²⁶

Licensees seeking to meet the requirements imposed by the doctrine must be mindful of Congressional intent. It was never intended by either Congress, or the Commission, that the doctrine work toward suppression of the discussion of controversial issues. To the contrary the intent of the drafters was to "[require] the discussion of conflicting views on issues of public importance."¹²⁷

The Supreme Court spelled out the duties of the licensee in the clearest possible terms in Red Lion.

The broadcaster must give adequate coverage to public issues, . . . and coverage must be fair in that it accurately reflects the opposing views. . . . This must be done at the broadcaster's own expense if sponsorship is unavailable. . . . Moreover, the duty must be met by programming obtained at the licensee's own initiative if available from no other source.¹²⁸

Let us pause for a moment to reflect on the Red Lion litigation. The case arose out of an alleged breach of the personal attack doctrine. The attack came in the form of an opinionated broadcast by Rev. Billy Hargis, who also frequently broadcast on WXUR. Red Lion, which was managed by John H. Norris, the station manager of WXUR, failed to meet the requirements of the Commission which a licensee must follow in the event of a personal attack. These requirements, which are set out in Times-Mirror Broadcasting Co.,¹²⁹ call upon the licensee to send a tape, transcript or summary of the broadcast containing the attack to the wronged party. The licensee is required to offer the aggrieved party an opportunity to respond and must see that this opportunity be made without regard as to whether the response time will be paid for. In the opinion of this court in Red Lion¹³⁰ we went to great lengths to set out all of the correspondence between the Commission and Norris. Our account runs on for pages. Yet despite all of the instruction received by Norris he remained incapable of, or unwilling to, comply with the requirements in either Red Lion or the case currently under consideration.

The recent cases in our jurisdiction are more than adequate in setting out the current state of the law. In Green v. F. C. C.,¹³¹ a case involving requests for time to oppose military enlistment on the air waves,

Judge Wilkey wrote that the doctrine did not require identical treatment for differing viewpoints of controversial issues, "as this would place an onerous and impractical burden on the licensees." Green v. F. C. C., supra, 144 U.S.App.D.C. at 358, 447 F.2d at 328. In addition we made it clear that unlike those corollaries to the doctrine that create equal-opportunities situations the doctrine itself does not create a right for any person or group to be granted time. "[T]he licensees may exercise their judgment as to what material is presented and by whom . . . . The fairness doctrine is issue-oriented, and it would be sufficient if each licensee could show that the point of view advocated by petitioner . . . had been or was being presented on its station by others." Id. In our opinion in Business Executives' Move for Vietnam Peace v. F. C. C., supra [146 U.S.App.D.C. 181, 450 F.2d 642], we held that "[u]nder the permissive 'reasonableness' standard of the fairness doctrine, acceptance of [a] particular format is by no means compulsory." Id., at 187 of 146 U.S.App.D.C., at 648 of 450 F.2d. Thus, in opinion after opinion the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine and we have clearly stated time after time, ad infinitum ad nauseam, that the key to the doctrine is no mystical formula but rather the exercise of reasonable standards by the licensee. See also Neckritz v. F. C. C., 446 F.2d 501, 502 (9th Cir. 1971).¹³²

We reiterate-all that is required is balance; equal opportunities, except as specifically provided in Sec. 315, are not required. We believe that imposing an absolute equal time standard for controversial issues would work to the detriment of the established intent of Congress and the Commission. As the Commission has previously noted:

We have long stressed the different manner in which the "equal opportunities" and fairness requirements of Section 315 operate. The former is applicable only to uses of station facilities by candidates for public office and calls for equal treatment-as to the amount of time to be afforded, the nature of the time slot, etc. It thus works with virtually mathematical precision.¹³³ The Commission continued:

In 1959 Congress codified the fairness doctrine, by inserting the provision in Section 315(a) that broadcast licensees "must operate in the public interest and . . . afford reasonable opportunity for the discussion of conflicting views on controversial issues of public importance." The conference report makes clear that this was a Congressional "restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under the Communications Act of 1934" (H.Rep.No.1069, 86th Cong., 1st Sess., p. 5 (1959)) . . . . And, finally, the Supreme Court's opinion in Red Lion significantly recognizes the Editorializing Report as the statement of the basic principles embodied in the fairness doctrine. See Red Lion supra [395 U.S.] at pp. 384-386 [89 S.Ct. 1794].¹³⁴

The ultimate test in this area is reasonableness. "The critical issue is whether the sum total of the licensee's efforts, taking into account his plans when the issue is a continuing one can be said to constitute a reasonable opportunity to inform the public on the contrasting viewpoint-one that is fair in the circumstances."¹³⁵

As the Fourth Circuit pointed out recently, the first line for deciding fairness cases is the good faith of the licensee.¹³⁶ It is, therefore, here that we must begin our analysis.

The record of Brandywine-Main Line Radio is bleak in the area of good faith. At best, Brandywine's record is indicative of a lack of regard for fairness principles; at worst, it shows an utter disdain for Commission rulings and ignores its own responsibilities as a broadcaster and its representations to the Commission. At the very outset Brandywine was informed by the Commission, in the Borst Decision, of the obligations of the licensee under both the fairness doctrine and the personal attack principle. This action was made necessary in the first instance because of the fear of so many in the community. It is apparent now that this fear was warranted and well founded. During the entire license period Brandywine willfully chose to disregard Commission mandate. With more brazen bravado than brains, Brandywine went on an independent frolic broadcasting what it chose, in any terms it chose, abusing those who dared differ with its viewpoints. This record is replete with example after example of one sided presentation on issues of controversial importance to the public. It is not necessary for this court to recount these matters again here. The Commission has amply done so and the record supports their contentions to the penultimate degree.

Rev. McIntire's attitude toward the fairness doctrine and the rights of the public in general is made clear by considering the following excerpts from an exchange of correspondence between McIntire and Albert J. Zack, Director of Public Relations for the AFL-CIO. Let us first consider this excerpt in a letter from Zack to McIntire, sent on November 5, 1965, in response to McIntire's invitation for Zack to appear on 20th Century Reformation Hour:

Day after day, program after program, you expound a point of view which is not only contrary to mine, and that of most Americans, but which grossly offends the concepts of Christian ethics. You now propose to set everything right by asking me to come to Collingswood and speak in reply to anything you may say concerning me.

It simply will not do, Dr. McIntire. This not only does not meet the legal definition of "fairness"; but it does not meet the far more significant standards set by the conscience of men.

No, I will not come to Collingswood, though it is otherwise a pleasant town. I will not give credence to your argument that one appearance by an opponent answering anything you may say is adequate to balance your incessant drumfire of disunion and hate.

If you wish, we will supply you with a tape or tapes of full program length telling the truth about the trade union movement and its policies, which you can alternate with your own daily commentaries, on your time -which, let us remember, is my time, too, since [the] air belongs to us all.¹³⁷

Dr. McIntire replied on November 13, 1965 in these terms:

You have completely misrepresented and misunderstood my invitation, as I did not imply even that your appearance in response to your attack upon me would "set everything right." As to the FCC's "fairness doctrine" and its legal definition, the FCC has made it plain that this so-called fairness doctrine comes into play on a specific broadcast only when an individual's character and integrity are attacked, but a discussion of one's views and the position which he holds in our national life is a proper and legitimate subject for debate under the protections of the guarantees of freedom of speech and the free exercise of religion in the First Amendment. My offer to you actually went beyond any "legal" definition of fairness. . . .