Document ID: A:\YALE.TXT YALE BROADCASTING COMPANY ET AL, PETITIONERS v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS No. 71-1780 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 478 F.2d 594; 155 U.S. App. D.C. 390 January 5, 1973 SUBSEQUENT HISTORY: Reported at: 478 F.2d 594 at 602. PRIOR HISTORY: Original Opinion of January 5, 1973, Reported at: 478 F.2d 594. JUDGES: Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, R OPINIONBY: PER CURIAM OPINION: [*602] On Motion for Rehearing En Banc The motion for rehearing en banc initiated by a member of the Court in regular active s Procedure). Separate Statement by Chief Judge Bazelon as to why he would grant rehearing en banc, s BAZELON, Chief Judge: This litigation concerns a series of directives issued by the Federal Communications Co ords. n1 The petitioners argued that the impact of the Commission's rulings was indirect c that broadcast licensees must "assume responsibility for all material which is broadcast t - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 As to the nature of the broadcasters' "responsibility", see p. 603, 604, infra. n2 Yale Broadcasting Co. v. FCC, 478 F.2d 594, 600, quoting Report and Statement of Pol n3 Rule 35(a), Federal Rules of Appellate Procedure. This is -- and should be -- an unu 2d 348 (5th Cir. 1969) (dissent from denial of rehearing en banc). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The panel opinion found that the language of the Commission's directives does not purpo The Commission's initial statement in the area of "drug-oriented" songs was a "Public N of particular songs. But broadcasters might well have read it as a prohibition. For one t l was to "discourage, if not eliminate, the playing of records which tend to promote and/o of 22 songs which had come to its attention as "so-called drug-oriented song lyrics." n7 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n4 28 FCC 2d 409 (1971). n5 I.e., Cmr. Robert E. Lee; cf. Week's Profile, BROADCASTING, May 3, 1971, p. 67. n6 28 FCC 2d 410, 411 (1971). n7 In its subsequent Order, infra, the Commission reported that the 22 songs had been i he Commission did not consult with the Bureau of Narcotics and Dangerous Drugs. N.Y. Times - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's action was reported by responsible organs of the press as an act of ce of particular artists whose views might lift the Commission's eyebrow. n9 Broadcasters ci - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 See, e.g., headlines quoted at 32 FCC 2d 377 (1971) and N.Y. Times, March 7, 1971, p n9 Joint App. at 87-88; see Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S. App. D.C. n10 Joint App. at 148. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commission's subsequent "Memorandum Opinion and Order", issued on April 16, 1971, n s. It stated that the evaluation of which records to play "is one solely for the licensee" - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n11 32 FCC 2d 377 (1971). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - But the Commission's order went further. Instead of rescinding the Public Notice, the O icensee responsibility" is a nebulous concept. n12 It could be taken to mean -- as the pan warnings in the Order about the dangers of "drug-oriented" popular songs, broadcasters mig - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n12 Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App. D.C. 146, 403 F.2d 169 - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The Commissioners themselves were unclear on the matter. The Order expressed full adher ice. n13 A third Commissioner issued a dissenting statement indicating that the Order did hat they established an "impossible assignment." n15 The confusion was crystallized later Chairman Burch: . . . Contrary to Commissioner Johnson's statement that we banned drug lyr Moments later, however, the following ensued: Senator Nelson: All I am asking is: If somebody calls to the FCC's attention that a par ou do? Chairman Burch: I know what I would do, I probably would vote to take the license away. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n13 32 FCC 2d 382 (1971) (Cmrs. Bartley and H. Rex Lee). n14 Id. at 386. (Cmr. Johnson). n15 Id. at 382 (Cmr. Wells). n16 Hearings on the Effect of the Promotion and Advertising of Over-the-counter Drugs o s., pt. 2 at 734-736 (1971). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This court is the primary forum for judicial review of broadcast licensing regulation. at deference to its decisions. But no such deference is due in cases involving the Commiss s the seeds of the general authority to censor. . ." n17 Courts have a special responsibil - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n17 Banzhaf v. FCC, 132 U.S.App.D.C. 14, 26, 405 F.2d 1082, 1094 (1968), cert. denied s But we emphasize that our cautious approval [in Banzhaf] does not license the Commission t 132 U.S. App. D.C. at 31, 405 F.2d at 1099. n18 Freedman v. Maryland, 380 U.S. 51, 58, 13 L. Ed. 2d 649, 85 S. Ct. 734 (1965). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In NAACP v. Button, Mr. Justice Brennan observed that "precision of regulation must be deliberate obfuscation. The court must look to the impact of these directives, not merely or "licensee responsibility". Seven years ago, a member of the Commission explained: Talk of "responsibility" of a broadcaster in this connection is simply a euphemism for sel ain views and arguments. Since the imposition of the duty of such "responsibility" involve on still retains the ultimate power to determine what is and what is not permitted on the Judge (now Chief Justice) Burger found this reasoning to be "unanswerable." Anti-Defamatio le. But the court cannot abdicate its responsibility to face the question. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n19 371 U.S. 415, 438, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). n20 See, e.g., Baird v. State Bar of Arizona, 401 U.S. 1, 27 L. Ed. 2d 639, 91 S. Ct. 7 964); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68, 9 L. Ed. 2d 584, 83 S. Ct. 631 (196 m, 408 U.S. 1, 12-13, 33 L. Ed. 2d 154, 92 S. Ct. 2318 (1972); Banzhaf v. FCC, 132 U.S.App n21 Complaint of Anti-Defamation League of B'nai B'rith Against Station KYTM, 6 FCC 2d - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The panel opinion indicates that the present challenges to the Commission's directives Commission's actions. Opposed to this viewpoint is the often recognized principle that the ue, then there is a judicially cognizable injury [*606] as soon as broadcasters begin - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n22 CBS v. FCC, 316 U.S. 407, 414, 62 S. Ct. 1194, 86 L. Ed. 1563 (1941); see Environme icy in the White House, as to why the threat of license removal is an effective means of p inst him." The Washington Post, March 9, 1973, at p. A 17 col. 3. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This case presents several other questions of considerable significance: Is the popular ities? n24 If so, is the proper remedy to "discourage or eliminate" the playing of such so - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n23 Popular songs might be considered mere entertainment, or even noise pollution. Yale moral, and aesthetic expression in American life. Morison, Oxford History of the American n24 The only evidence in the record on this point is the statement of the Director of T k Times, March 28, 1971, p. 41, c. 1. See Banzhaf v. FCC, 132 U.S. App. D.C. 14, 31-32, 40 93 S. Ct. 390, 34 L. Ed. 2d 342, 41 USLW 4039, (1973) (Marshall, J., dissenting). n25 See Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S. App. D.C. 305, 473 F.2d 16 (1 effect is incidental to providing access to the media for viewpoints that would contribut a, warrant intrusion on broadcasters' free speech rights in this case. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Clearly, the impact of the Commission's order is ripe for judicial review. And, on that If freedom of the press. . .perishes, it will not be by sudden death. . . . It will be - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n26 Quo - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -