RED LION BROADCASTING CO., INC., ET AL. v. FEDERAL COMMUNICATIONS COMMISSION ET AL. No. 2 SUPREME COURT OF THE UNITED STATES 395 U.S. 367; 89 S. Ct. 1794; 1969 U.S. LEXIS 3267; 23 L. Ed. 2d 371; 1 Media L. Rep. 2053 April 2-3, 1969, Argued June 9, 1969, Decided * * Together with No. 717, United States et al. v. Radio Television News Directors Assn. et al., on certiorari to the United States Court of Appeals for the Seventh Circuit, argued April 3, 1969. PRIOR HISTORY: [***1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. DISPOSITION: No. 2, 127 U. S. App. D. C. 129, 381 F.2d 908, affirmed; No. 717, 400 F.2d 10 SYLLABUS: The Federal Communications Commission (FCC) has for many years imposed on broad C declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation und provide reply time, whether or not Cook would pay for it. The Court of Appeals upheld the e more precise and more readily enforceable, and to specify its rules relating to politica ch and press. Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC's (a) The fairness doctrine began shortly after the Federal Radio Commission was establis sides are presented, the personal attack doctrine and regulations do not differ from the f (b) The FCC's statutory mandate to see that broadcasters operate in the public interest tandard, support the conclusion that the doctrine and its component personal attack and po 2. The fairness doctrine and its specific manifestations [***3] in the personal atta (a) The First Amendment is relevant to public broadcasting, but it is the right of the (b) The First Amendment does not protect private censorship by broadcasters who are lic (c) The danger that licensees will eliminate coverage of controversial issues as a resu (d) There was nothing vague about the FCC's specific ruling in the Red Lion case and th e fairness doctrine to decide these cases. Problems involving more extreme applications o (e) It has not been shown [***4] that the scarcity of broadcast frequencies, which utilization of that spectrum. Pp. 396-400. COUNSEL: Roger Robb argued the cause for petitioners in No. 2. With him on the brief were n No. 717 and respondents in No. 2. With him on the brief were Assistant Attorney General Archibald Cox argued the cause for respondents in No. 717. With him on the brief for r espondent National Broadcasting Co., Inc., were Lawrence J. McKay, Raymond L. Falls, Jr., Wollenberg, Timothy B. Dyk, Robert V. Evans, and Herbert Wechsler. Briefs of amici curiae urging reversal in No. 717 and affirmance in No. 2 were filed by ited Church of Christ et al. J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a JUDGES: Warren, Black, Harlan, Brennan, Stewart, White, Marshall; Douglas took no part in OPINIONBY: WHITE OPINION: [*369] [**1796] MR. JUSTICE WHITE delivered the opinion of theCourt. The Federal Communications Commission has for many years imposed on radio and televisio This is known as the fairness doctrine, which originated very early in the history of broa icular cases, and which is distinct from the statutory [*370] requirement of @ 315 of in the context of controversial public issues and to political editorializing, were codif ory bases of the doctrine and component rules. Red Lion [*371] involves the applicat orializing regulations, which were laid down after the Red Lion litigation had begun. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended, 47 U. S. C. @ 301 e "315. Candidates for public office; facilities; rules. "(a) If any licensee shall permit any person who is a legally qualified candidate for a ion: Provided, That such licensee shall have no power of censorship over the material broa ly qualified candidate on any -- "(1) bona fide newscast, "(2) bona fide news interview, "(3) bona fide news documentary (if the appearance of the candidate is incidental to th "(4) on-the-spot coverage of bona fide news events (including but not limited to politi regoing sentence shall be construed as relieving broadcasters, in connection with the pres ate in the public interest and to afford reasonable opportunity for the discussion of conf "(b) The charges made for the use of any broadcasting station for any of the purposes s "(c) The Commission shall prescribe appropriate rules and regulations to carry out the - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***7] I. A. The Red Lion Broadcasting Company is licensed to operate a Pennsylvania radio station, ntitled "Goldwater -- Extremist on the Right" was discussed [**1797] by Hargis, who said ad defended Alger Hiss and attacked J. Edgar Hoover and the Central Intelligence Agency; a acked and demanded free reply time, which the station refused. After an exchange of lett ion under the fairness doctrine as expressed in Times-Mirror Broadcasting Co., 24 P & F Ra whether or not Cook would pay for it. On review in the Court of Appeals for the District - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 According to the record, Hargis asserted that his broadcast included the following s "Now, this paperback book by Fred J. Cook is entitled, 'GOLDWATER -- EXTREMIST ON THE RIGH ty government. New York publishers and NEWSWEEK Magazine for December 7, 1959, showed tha Cook went to work for the left-wing publication, THE NATION, one of the most scurrilous pu , scores of which have been cited as subversive by the Attorney General of the U.S. or by 08 page attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook was on the Centr n3 The Court of Appeals initially dismissed the petition for want of a reviewable order sy or removing uncertainty," 47 CFR @ 1.2, was in fact justified by the Administrative Pro inate a controversy or remove uncertainty." @ 5, 60 Stat. 239, 5 U. S. C. @ 1004 (d). In mply with the license's condition that the station be operated "in the public interest," o an initial license, 47 U. S. C. @ 312 (a)(2), and the statutory requirement that the publ istrative Procedure Act, have issued a declaratory order in the course of its adjudication tioner itself adopted as its own the Government's position that this was a reviewable orde - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***10] B. Not long after the Red Lion litigation was begun, the FCC issued a Notice of [**1798] specifying its rules relating to political editorials. After considering written comments es were held unconstitutional in the RTNDA litigation by the Court of Appeals for the Seve As they now stand amended, the regulations read as follows: "Personal attacks; politica "(a) When, during the presentation of views on a controversial issue of public importan e and in no event later than 1 [***11] week after the attack, transmit to the person o lable) of the [*374] attack; and (3) an offer of a reasonable opportunity to respond "(b) The provisions of paragraph (a) of this section shall not be applicable (1) to att ated with them in the campaign, on other such candidates, their authorized spokesmen, or p (including commentary or analysis contained in the foregoing programs, but the provisions "NOTE: The fairness doctrine is applicable to situations coming within [(3)], above, an . C. 315 (a); Public Notice: Applicability of the Fairness Doctrine in the Handling of Con "(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualifie same office or (ii) the candidate opposed in the editorial (1) notification of the date an espond over the [*375] licensee's facilities: Provided, however, That where such edito the broadcast to enable the candidate or candidates to have a reasonable opportunity to pr C. Believing that the specific application of the fairness doctrine in Red Lion, and the p he First Amendment, we hold them valid and constitutional, reversing the judgment below in II. The history of the emergence of the fairness doctrine and of the related legislation sh ional policy rather than embarking on a frolic of its own. A. Before 1927, the allocation of frequencies was left entirely to the private sector, and ed only by the Government. Without government control, the medium would be of little use blished [*377] to allocate frequencies among competing applicants in a manner responsi - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 Because of this chaos, a series of National Radio Conferences was held between 1922 re that allocation of this limited resource would be made only to those who would serve th ower to regulate frequencies and hours of operation, but when Secretary Hoover sought to i United States v. Zenith Radio Corporation, 12 F.2d 614 (D. C. N. D. Ill. 1926). Cf. Hoover by the Attorney General at Hoover's request confirmed the impotence of the Secretary unde lly L. Schmeckebier, The Federal Radio Commission 1-14 (1932). [***15] n5 Congressman White, a sponsor of the bill enacted as the Radio Act of 1927, commented "We have reached the definite conclusion that the right of all our people to enjoy this me of the doctrine that the right of the public to service is superior to the right of any i upon the number of broadcasting stations and it recommended that licenses should be issue t. This principle was approved by every witness before your committee. We have written i ." 67 Cong. Rec. 5479. n6 Radio Act of 1927, @ 4, 44 Stat. 1163. See generally Davis, The Radio Act of 1927, - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***16] Very shortly thereafter the Commission expressed its view that the "public interest req portance to the public." Great Lakes Broadcasting Co., 3 F. R. C. Ann. Rep. 32, 33 (1929), als or construction permits, both by the FRC, Trinity Methodist Church, South v. FRC, 61 A 178 (1938). After an extended period during which the licensee was obliged not only to co ter limitation on the licensee was abandoned [***17] and the doctrine developed into it There is a twofold duty laid down by the FCC's decisions and described by the 1949 Rep . C. 515 (1945), and coverage must be fair in that it accurately reflects the opposing vie , 25 P & F Radio Reg. 895 (1963). [*378] Moreover, the duty must be met by programming 9 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950). The rev'd on other grounds, 59 App. D. C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706 (19 79, 47 F.2d 670 (1931), and in particular respects the personal attack rules and regulati When a personal attack has been made on a figure involved in a public issue, both the d individual attacked himself be offered an opportunity to respond. Likewise, where one ca differ from the general fairness requirement that issues be presented, and presented with o represent that side. But insofar as there is an obligation of the broadcaster to see th doctrine. The simple fact that the attacked men or unendorsed candidates may respond the ation of all sides may best be served by allowing those most closely affected to make the pon them. B. The statutory authority of the FCC to promulgate these regulations derives [**1801] f such restrictions and conditions . . . as may be necessary to carry [***20] out the p course of granting licenses, 47 U. S. C. @@ 307 (a), 309 (a); [*380] renewing them, 4 e station be carried out in the public interest, 47 U. S. C. @ 309 (h). This mandate to t 319 U.S. 190, 219 (1943), whose validity we have long upheld. FCC v. Pottsville Broadcast broad enough to encompass these regulations. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 As early as 1930, Senator Dill expressed the view that the Federal Radio Commission Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., 1616 (1930): "Senator DILL. Then you are suggesting that the provision of the statute that now requ "Commissioner ROBINSON. Of course, I think in the legal concept the law requires it no unity,' and he will get it. "Senator DILL. Has the Commission considered the question of making regulations requir "Commissioner ROBINSON. Oh, no. "Senator DILL. It would be within the power of the commission, I think, to make regula - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***21] The fairness doctrine finds specific recognition in statutory form, is in part modeled In 1959 the Congress amended the statutory requirement of @ 315 that equal time be acco er this Act to operate in the public interest and to afford reasonable opportunity for the s language makes it very plain that Congress, in 1959, announced that the phrase "public i indicated the FCC's general view that the fairness doctrine inhered in the public interest e this principle [**1802] is given special force by the equally venerable principle t Congress has refused to alter the administrative construction. n10 Here, the Congress has nsistent administrative construction left undisturbed by Congress until 1959, when that co e their stations for discussion of public issues, and that the FCC is free to implement th e Act. n12 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 Federal Housing Administration v. Darlington, Inc., 358 U.S. 84, 90 (1958); Glidden Alexander v. Alexandria, 5 Cranch 1 (1809); United States v. Freeman, 3 How. 556 (1845); S n9 Zemel v. Rusk, 381 U.S. 1, 11-12 (1965); Udall v. Tallman, 380 U.S. 1, 16-18 (1965); ver R. Co., 98 U.S. 334, 341 (1879); United States v. Alexander, 12 Wall. 177, 179-181 (18 n10 Zemel v. Rusk, 381 U.S. 1, 11-12 (1965); United States v. Bergh, 352 U.S. 40, 46-47 n11 An attempt to limit sharply the FCC's power to interfere with programming practices g., 1st Sess. (1943). Also, attempts specifically to enact the doctrine failed in the Rad oposal in the Communications Act of 1934 was accepted by the Senate, 78 Cong. Rec. 8854 (1 ss. (1934). The attempt which came nearest success was a bill, H. R. 7716, 72d Cong., 1st ted on at an election or by a government agency. H. R. Rep. No. 2106, 72d Cong., 2d Sess. United States v. United Mine Workers, 330 U.S. 258, 281-282 (1947). A review of some of t gislative History of the Fairness Doctrine, 90th Cong., 2d Sess. (Comm. Print. 1968). Thi n12 "@ 326. Censorship. "Nothing in this chapter shall be understood or construed to give the Commission the po ission which shall interfere with the right of free speech by means of radio communication - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The [**1803] objectives of @ 315 themselves could readily be circumvented but for t , or other supporters. Without the fairness doctrine, then, a licensee could ban all camp to the exclusion of all others. In this way the broadcaster could have a far greater impa obligation to operate in the public interest, rather than @ 315, which prohibits the broad - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 John P. Crommelin, 19 P & F Radio Reg. 1392 (1960). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The legislative history reinforces this view of the effect of the 1959 amendment. Even arily considered a public trust. Every licensee who is fortunate in obtaining a license i Cong., 1st Sess., 8-9 (1959). See also, specifically adverting to Federal Communications Rather than leave this approval solely in the legislative history, Senator Proxmire sug of the Senate Committee, considered "rather surplusage," 105 Cong. Rec. 14462, constituted the Senate after the committee changes, Senator Pastore said: "We insisted that that prov ing the philosophy that gave birth to section 315, in giving the people the right to have added that: "It is intended to encompass all legitimate areas of public importance which a - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n14 The Proxmire amendment read: "But nothing in this sentence shall be construed as ch the license to operate in such frequencies requires operation in the public interest, and as equal an opportunity to be heard as is practically possible." 105 Cong. Rec. 14457. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***27] It is true that the personal attack aspect of the fairness doctrine was not actually ad ck was presaged by the FCC's 1949 Report on Editorializing, which the FCC views as the pr "In determining whether to honor specific requests for time, the station will inevitably b articular point of view than the person making the request. The latter's personal involvem up which has been specifically attacked over the station, where otherwise no such obligati [*385] When the Congress ratified the FCC's implication of a fairness doctrine in 1959 i he statutory authority does not go so far. But we cannot say that when a station publishe er than to leave the response entirely within the control of the station which has attacke qual time be offered to his opponents. It would exceed our competence to hold that the Co In light of the fact that the "public interest" in broadcasting clearly encompasses the nception a doctrine that these issues must be discussed, and [***29] fairly; and the fa think the fairness doctrine and its component personal attack and political editorializin and in this respect the explicit provisions of @ 315, and the doctrine and rules at issue [*386] sole guidance, and which we have held a broad but adequate standard before. F 309 U.S. 134, 138 (1940); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 285 (193 rred power to assure that stations are operated by those whose possession of a license ser III. The broadcasters challenge the fairness doctrine and its specific manifestations in the tention is that the First Amendment protects their desire to use their allotted frequencie ing what he thinks, or from refusing in his speech or other utterances to give equal weigh A. Although broadcasting is clearly a medium affected by a First Amendment interest, Unite [***31] applied to them. n15 Joseph [*387] Burstyn, Inc. v. Wilson, 343 U.S. 495, 5 the hours and places of use, of sound trucks so long as the restrictions are reasonable an - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 The general problems raised by a technology which supplants atomized, relatively in Communications (1947). Debate on the particular implications of this view for the broadc ting, Public Policy and the First Amendment, 10 J. Law & Econ. 15 (1967); M. Ernst, The Fi s to bear on the particular problem of this litigation are concisely explored by Louis Jaf mmittee on Investigations of the House Committee on Interstate and Foreign Commerce (1968) - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***32] Just as the Government may limit the use of sound-amplifying equipment potentially so n a sound truck, or any other individual does not embrace a right to snuff out the free spe When two people converse face to face, both should not speak at once if either is to be ng and the other half listening. Just as clearly, half the people might publish and the o ality. The lack of know-how and equipment may keep many from the air, but only a tiny fra ntire radio spectrum is utilized in the present state of commercially acceptable technolog It was this fact, and the chaos which ensued from permitting anyone to use any frequenc ngth before. National Broadcasting Co. v. United States, 319 U.S. 190, 210-214 (1943). It ing and for other important radio uses such as amateur operation, aircraft, police, defens cause the frequencies reserved for public broadcasting were limited in number, it was esse - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n16 The range of controls which have in fact been imposed over the last 40 years, witho Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***34] Where there are substantially more individuals who want to broadcast than there are fre . If 100 persons want broadcast [*389] licenses but there are only 10 frequencies to t be barred from the airwaves. It would be strange if the First Amendment, aimed at prote of licenses so as not to overcrowd the spectrum. This has been the consistent view of the Court. Congress unquestionably has the power license or to monopolize a radio frequency; to deny a station license because "the public By the same token, as far as the First Amendment is concerned those who are licensed st ense or to monopolize a radio frequency to the exclusion of his fellow citizens. There is iary with obligations to present those views and voices which are representative of his co This is not to say that the First Amendment is irrelevant to public broadcasting. On t of radio communication." Because of the scarcity of radio frequencies, the Government is p interest in free speech by radio and their collective right to have the medium function c See FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940); FCC v. Allentown Broadca ibited marketplace of ideas in which truth will ultimately prevail, rather than to counten 45); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Abrams v. United States, 25 Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). See Brennan, The Supreme Court and the M moral, and other ideas and experiences which is crucial here. That right may not constitu B. Rather than confer frequency monopolies on a relatively small number of licensees, in a being assigned a portion of the broadcast day or the broadcast week. The ruling and regul t time to those who have a view different from that which has already been expressed on hi sharing. As we have said, the First Amendment confers no right on licensees to prevent ot In terms of constitutional principle, and as enforced sharing of a scarce resource, the et aside reply time under specified circumstances and to which the fairness doctrine and t held valid by this Court as an obligation of the licensee relieving him of any power in an unquestioned. n17 Farmers Educ. & Coop. Union v. WDAY, 360 U.S. 525 (1959). - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 This has not prevented vigorous argument from developing on the constitutionality o 447 (1968), with Robinson, The FCC and the First Amendment: Observations on 40 Years of R - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***39] [*392] Nor can we say that it is inconsistent with the First Amendment goal of produc troversial issues, or to require that the political opponents of those endorsed by the sta le only to the highest bidders, to communicate only their own views on public issues, peop g in a medium not open to all. "Freedom of the press from governmental interference under - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n18 The expression of views opposing those which broadcasters permit to be aired in the teachers, presented as they state them, and accompanied by what they offer as refutations. eve them; who defend them in earnest, and do their very utmost for them." J. Mill, On Libe - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***40] C. It is strenuously argued, however, that if political editorials or personal attacks wil the licensees, then broadcasters will be irresistibly forced to self-censorship and their nsees actually eliminate their coverage of controversial issues, the purposes of the doctr At this point, however, as the Federal Communications Commission has indicated, that po n now they do not assert that they intend to abandon their efforts in this regard. n19 It f these doctrines indicates that they have the net effect of [***41] reducing rather th no such overall effect. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 The President of the Columbia Broadcasting System has recently declared that despit I, for one, refuse to allow that judgment and enterprise to be affected by official intim ewpoint are surveyed in W. Wood, Electronic Journalism (1967). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - That this will occur now seems unlikely, however, since if present licensees should sud [***42] Amendment to treat licensees given the privilege of using scarce radio freque licenses on a willingness to present representative community views on controversial issu d not stand idly by and permit those with licenses to ignore the problems which beset the o this effect. Licenses to broadcast do not confer ownership of designated frequencies, but only the t icenses if the "public convenience, interest, or necessity will be served thereby." 47 U. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279 (1933), the Court noted that in "view he Federal Radio Commission considered the needs of competing communities and the program , at 285. In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137-138 ( s of radio transmission" and to allay fears that "in the absence of governmental control t 's chain broadcasting regulations, which [***44] among other things forbade stations fr unequivocally recognizing that the Commission was more than a traffic policeman concerned neral program format and the kinds of programs broadcast by licensees. National Broadcast D. The litigants embellish their First Amendment arguments with the contention that the re they are presented here, we cannot conclude that the FCC has been left a free hand to vind ations; there was nothing vague about the FCC's specific ruling in [***45] Red Lion th in Red Lion. Moreover, the FCC itself has recognized that [*396] the applicability of hout warning. We need not approve every aspect of the fairness doctrine to decide these c 32 U.S. 689, 694 (1948), but will deal with those problems if and when they arise. We need not and do not now ratify every past and future decision by the FCC with regard s; of a discriminatory refusal to require the licensee to broadcast certain views which ha public broadcasting. Such questions would raise more serious First Amendment issues. But onal attacks and political editorials. E. It is argued that even if at one time the lack of available frequencies for all who wis r by giving the latter access directly to broadcast facilities, this condition no longer p Scarcity is not entirely a thing of the past. Advances [*397] in technology, such ectrum must be reserved for vital uses unconnected with human communication, such as radio methods of averting midair collisions through radio warning devices. n21 "Land mobile serv cy spectrum n22 and there are, apart from licensed amateur radio operators' equipment, 5,0 [*398] aviation, amateur, military, and common carrier users, there are easily enough cl - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n20 Current discussions of the frequency allocation problem appear in Telecommunication Committee, Institute of Electrical and Electronics Engineers and Electronic Industries As study is the Final Report of the President's Task Force on Communications Policy (1968). n21 Bendix Aviation Corp. v. FCC, 106 U. S. App. D. C. 304, 272 F.2d 533 (1959), cert. n22 1968 FCC Annual Report 65-69. n23 New limitations on these users, who can also lay claim to First Amendment protectio te Radio Electronics Corp. v. United States, 345 F.2d 278, 281 (1965). Accord, California - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Compara s it has been necessary to suspend new applications. n24 The very high frequency televisio sion, which is a relatively recent development as a commercially viable alternative, has - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n24 Kessler v. FCC, 117 U. S. App. D. C. 130, 326 F.2d 673 (1963). n25 In a table prepared by the FCC on the basis of statistics current as of August 31, COMMERCIAL Channels On the Air, Channels Authorized, or AvailableMarket Areas Allocated Applied VHF UHF VHF UHF VHF UHF Top 10 40 45 40 44 0 1 Top 50 157 163 157 136 0 27 Top 100 264 297 264 213 0 84 NONCOMMERCIAL Channels On the Air, Channels Authorized, or AvailableMarket Areas Reserved Applied VHF UHF VHF UHF VHF UHF Top 10 7 17 7 16 0 1 Top 50 21 79 20 47 1 32 Top 100 35 138 34 69 1 69 1968 FCC Annual Report 132-135. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***50] [*399] The rapidity with which technological advances succeed one another to create m te on the future allocation of that space. It is enough to say that the resource is one o convinces us that the resource is no longer one for which there are more immediate and pot e occupied at every hour by some vital use in order to sustain the congressional judgment. inuous kaleidoscopic reallocation of all available space may make this unfeasible. The al - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 RTNDA argues that these regulations should be held invalid for failure of the FCC t elves, such as Red Lion, should fall for the same reason. But this argument ignores the fa ss on the factual predicate of scarcity made plain in 1927, recognized by this Court in th able frequencies, the committee would have no hesitation in removing completely the presen re, they have been necessarily considered a public trust." S. Rep. No. 562, 86th Cong., 1s changed, undercutting the validity of the congressional judgment; and their failure to add n27 The "airwaves [need not] be filled at the earliest possible moment in all circumsta e fairness doctrine, Office of Communication of the United Church of Christ v. FCC, 123 U. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Even where there are gaps in spectrum utilization, the fact remains that existing broad new opportunities for further uses. Long experience in broadcasting, confirmed habits of ere new entry is technologically possible. These advantages are the fruit of a preferred he Government's effort to assure that a broadcaster's programming ranges widely enough to In view of the scarcity of broadcast frequencies, the Government's role in allocating t d the regulations and [*401] ruling at issue here are both authorized by statute and c is opinion. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n28 We need not deal with the argument that even if there is no longer a technological the broadcasting market on economic grounds and license no more stations than the market d argument, which we also put aside, is that quite apart from scarcity of frequencies, tec public through time sharing, fairness doctrines, or other devices which limit or dissipate - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - [***54] It is so ordered. Not having heard oral argument in these cases, MR. JUSTICE DOUGLAS took no part in the