UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
November 20, 1974
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ILLINOIS CITIZENS COMMITTEE FOR BROADCASTING, ET AL., PETITIONERS
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS 1974.CDC.260
Rehearing Denied March 13, 1975.
Petition for Review of an Order of the Federal Communications Commission.
Fahy, Senior Circuit Judge, Leventhal and Robinson, Circuit Judges. Opinion for the Court filed by Circuit Judge LEVENTHAL.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL
This controversy arises from the response of the Federal Communications Commission to certain radio call-in programs on sex-related topics. On March 27, 1973, the FCC announced an inquiry into the broadcast of obscene, indecent, or profane material. On the following day, FCC Chairman Dean Burch, in a speech before the National Association of Broadcasters, urged licensees to exercise self-restraint. A Notice of Apparent Liability proposing a forfeiture of $2,000 against one licensee was issued on April 11. The forfeiture was paid by the licensee, but Petitioners, Illinois Citizens Committee for Broadcasting and the Illinois Division of the American Civil Liberties Union, filed an Application for Remission of the Forfeiture and a Petition for Reconsideration as representatives of the listening public. The Commission, in a Memorandum Opinion and Order, refused to grant the relief requested by Petitioners but discussed at some length its purpose in instituting the Inquiry and in assessing the forfeiture. We affirm the Commission's action. I. STATEMENT OF FACTS
In response to increasing complaints from listeners, the Commission, in January of 1973, asked its staff to tape certain radio call-in programs that focused on sexual topics. The staff taped 61 hours of programs, 22 minutes of which were culled for presentation to the Commissioners on March 21. The Commissioners also heard an 11-minute segment that included an on-the-air complaint from a listener.
On March 27, *fn1 the Commission released a Notice of "Inquiry into alleged broadcasts and cablecasts of obscene, indecent or profane material by licensees, permittees or cable systems." The inquiry was to be a nonpublic fact-finding proceeding to determine whether certain television, cable, and radio licensees had broadcast material in violation of 18 U.S.C. § 1464 (1970). *fn2
On the day of the release, the National Association of Broadcasters, at its annual convention, adopted a resolution condemning sexually oriented radio call-in shows. In his address to the Association on the following day Chairman Burch approved that step and urged the broadcasters to exercise self-restraint in order to avoid intrusions by the Commission, the Congress, and the courts.
After listening to the taped excerpts on March 21, 1973, the FCC instructed its staff to prepare a Notice of Apparent Liability under sections 503(b)(1)and 503(b)(2) of the Communications Act of 1934, as amended, *fn3 against Sonderling Broadcasting Corporation (Sonderling) for violations of § 1464. The Notice specifically cited Sonderling's "Femme Forum," a call-in show that ran Monday through Friday, from 10 a.m. to 3 p.m. on WGLD-FM, Oak Park, Illinois. The Commission focused on two programs that had been excerpted in the tapes -- one, on February 23, 1973, was on the topic of oral sex; *fn4 the other, on February 21, 1973, discussed "How do you keep your sex life alive?" and included specific descriptions of the techniques of oral sex. *fn5 The Notice "concluded" that these broadcasts called for the imposition of a forfeiture of $2,000 against Sonderling because they contained "obscene or indecent matter." It also informed Sonderling of a licensee's statutory right to refuse to pay the forfeiture voluntarily and thus to require the FCC to seek to recover it in a trial de novo before a court. *fn6 Despite its belief that the Commission's action was illegal, Sonderling decided to pay the fine because of "the tremendous financial burden involved." *fn7
Asserting that the public had an interest in seeking review of the FCC action despite Sonderling's acquiescence, Petitioners filed an Application for Remission of Forfeiture and a Petition for Reconsideration. *fn8 They allege that their members and contributors include many numbers of the Chicago area who are being deprived of listening alternatives in violation of their rights under the First Amendment. On July 6, the Commission released the Memorandum Opinion and Order now under review. Although it expressed doubts as to Petitioners' standing to seek remission or reconsideration of the forfeiture, *fn9 the FCC agreed to clarify its intentions in order to rectify misunderstandings regarding the Notice of Inquiry and the Notice of Apparent Liability. The Commission did not discuss the Chairman's speech, stating that it was not a Commission action. *fn10 II. JURISDICTION
28 U.S.C. § 2342(1) (1970) provides for review in the courts of appeals of "all final orders" of the FCC. This Court has said that "to be final an order must 'impose an obligation, deny a right or fix some legal relationship as a consummation of the administrative process.'" Bethesda-Chevy Chase Broadcasters, Inc. v. FCC, 128 U.S.App.D.C. 185, 186, 385 F.2d 967, 968 (1967), quoting Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corporation, 333 U.S. 103, 113, 92 L. Ed. 568, 68 S. Ct. 431 (1948). The FCC's Memorandum Opinion and Order is a final order within the meaning of that statute. It refuses to withdraw the Notice of Inquiry and Notice of Apparent Liability, thereby "denying the rights" asserted by Petitioners under the First Amendment and 47 U.S.C. § 326 (1970).
The speech by Chairman Burch, however, is not a "final order" of the FCC. Indeed, it is not FCC action at all, but merely represents the unofficial expression of the views of one member of the Commission. It is not a decisional pronouncement affecting legal rights and obligations in the manner contemplated by this court in Bethesda-Chevy Chase Broadcasters. It is not "agency action" for purposes of the Administrative Procedure Act, 5 U.S.C. § 702 (1970). III. STANDING
The United States urges that the public, as distinguished from the licensee, has no interest in a forfeiture proceeding. The Supreme Court, in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 36 L. Ed. 2d 772, 93 S. Ct. 2080 (1973), stressed that the public has no absolute right to dictate the content of broadcast material. That case, however, involved a conflict between the broadcaster's right to refuse to broadcast certain material and the public's right of access to air time. The Court reaffirmed "'the right to the public to be informed,'" as distinguished from "'any right on the part of . . . any individual member of the public to broadcast his own particular views on any matter.'" 412 U.S. at 112-13, quoting Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949). In this case, the representatives of the public allege that the right of the public to be informed has been curtailed by limitations imposed by the government, invalidity, on the broadcaster's discretion to present material.
We uphold Petitioners' standing to vindicate the public's interest. That interest is underscored by the likelihood that the licensee who is directly governed by the order in the forfeiture proceeding will, as here, find the burden too great, in terms of its own interest, to warrant its undertaking the risk and expense involved in contesting the Commission's action. *fn11 In comparable situations we have allowed interested parties to intervene where the party that would ordinarily be expected to press the public interest has failed to appeal an initial decision. E.g., Smuck v. Hobson, 132 U.S.App.D.C. 372, 408 F.2d 175 (1969); Wolpe v. Poretsky, 79 U.S.App.D.C. 141, 144 F.2d 505, cert. denied, 323 U.S. 777, 89 L. Ed. 621, 65 S. Ct. 190 (1944). IV. PROCEDURAL ASPECTS OF THE FCC'S ISSUANCE OF THE NOTICE OF APPARENT
The procedure used by the FCC in issuing the Notice of Apparent Liability raises questions with regard to the rights of the licensee. First, it includes terms of conclusions, while the statute contemplates only charges. *fn12 If construed as the latter, then Sonderling was not provided with notice or opportunity for a hearing before its issuance, even though it seemed to go far towards the imposition of a substantial fine. This procedure seems very like that condemned by the Supreme Court in Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). There the Court reviewed the practices of a state commission that sent distributors of publications that had been found objectionable for sale to minors notification of that finding, accompanied by reminders of possible criminal sanctions if the distributor failed to "cooperate." The system was found to constitute an informal "scheme of . . . censorship," 372 U.S. at 72, based on "radically deficient" procedures. 372 U.S. at 71. The Court stressed:
There is no provision whatever for judicial superintendence before notices issue or even for judicial review of the Commission's determinations of objectionableness. The publisher or distributor is not even entitled to notice and hearing before his publications are listed by the Commission as objectionable.
372 U.S. at 71.
It is true that the licensee here does have an opportunity for judicial review, if it is willing to shoulder the expense. However, the Court's "insistence [in Bantam Books ] that regulations of obscenity scrupulously embody the most rigorous procedural safeguards," 372 U.S. at 66, and its requirement of notice and hearing before a determination of obscenity is made, cast doubt on the procedures used by the Commission.
However, we do not think that the procedural safeguards prescribed in Bantam Books, which were found to be essential for the protection of "the publisher or the distributor," 372 U.S. at 71, can be asserted by the public as procedural error. The statute contemplates that the licensee will, in the first instance, ensure that First Amendment limitations are not overstepped in forfeiture action under 503(b)(1). We have no need to consider whether the public is entitled to intervene on a petition for reconsideration after the initial determination has been made when the licensee declines to press the matter further. Cf. Smuck v. Hobson, supra ; Nuesse v. Camp, 128 U.S.App.D.C. 172, 182 n.10, 385 F.2d 694, 704 n.10 (1967); Wolpe v. Poretsky (supra). In this case a representative of the public did in fact ask the Commission to reconsider its determination, and the Commission responded in some detail to the concerns expressed. Finding no prejudice from the procedure, *fn13 we turn to the merits. V. THE FCC'S DETERMINATION THAT THE BROADCAST IS OBSCENE *fn14
In its Memorandum Order and Opinion the Commission asserted that Sonderling's broadcast was a clear-cut violation of the law, "well within the constitutional boundaries [for obscenity] established by the Supreme Court," and therefore not entitled to protection under the First Amendment. (J.A. 104, 106)
The excerpts cited by the Commission contain repeated and explicit descriptions of the techniques of oral sex. And these are presented, not for educational and scientific purposes, but in a context that was fairly described by the FCC as "titillating and pandering." (J.A. 38) The principles of Ginzburg v. United States, 383 U.S. 463, 16 L. Ed. 2d 31, 86 S. Ct. 942 (1966), are applicable, for commercial exploitation of interests in titillation is the broadcaster's sole end. It is not a material difference that here the tone is set by the continuity provided by the announcer rather than, as in Ginzburg, by the presentation of the material in advertising and sale to solicit an audience. We cannot ignore what the Commission took into account -- that the announcer's response to a complaint by an offended listener *fn15 and his presentation of advertising for auto insurance *fn16 are suffused with leering innuendo. Moreover, and significantly, "Femme Forum" is broadcast from 10 a.m. to 3 p.m. during daytime hours when the radio audience may include children -- perhaps home from school for lunch, or because of staggered school hours or illness. Given this combination of factors, we do not think that the FCC's evaluation of this material infringes upon rights protected by the First Amendment.
The FCC found Sonderling's broadcasts obscene under the standards of Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966). The Supreme Court subsequently reformulated those standards in Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973),17 which sets out the following "basic guidelines for the trier of fact":
(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest . . . (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
413 U.S. at 24. In Huffman v. United States, 163 U.S.App.D.C. 417, 502 F.2d 419 (1974), we analyzed how the Miller standards deviate from those previously enunciated. Miller rejected the Memoirs rule that material was condemnable only if "utterly without redeeming social value" and substituted a rule that permits prohibition if the material lacks "serious literary, artistic, political, or scientific value." 413 U.S. at 24-25. In this respect, Miller expanded the range of material that can be found obscene. However, it also contracted the definition of obscenity by limiting it to encompass only materials that "depict or describe patently offensive 'hardcore' sexual conduct specifically defined by the regulating state law." 413 U.S. at 27. Accord Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642, 42 U.S.L.W. 5055, 5057 (1974); Hamling v. United States, 42 U.S.L.W. 5035, 5043 (1974). The material broadcast by Sonderling, say Petitioners, is not "utterly without redeeming social value" and thus is not obscene under the Memoirs standards applied by the Commission. The licensee may have had a right to less demanding treatment under Memoirs had he refused to pay the forfeiture. However, he accepted the fine and waived his right to a jury trial at a time when Memoirs prevailed, and that matter should not be reopened now. The public is in a somewhat different position. They seek, through this case, to define what they will be entitled to hear in the future. (Reply Br. 26-27) For that purpose, of future entitlement, we think it appropriate to apply the Miller standard concerning the purpose of the regulated material, and the Miller standard does not rescue the material in these broadcasts, which make no literary, artistic, political, or scientific contribution.18
The Commission reasonably concluded that the dominant theme of the material broadcast by Sonderling was addressed to the prurient interest and was therefore condemnable under that element of the Memoirs test. (J.A. 38) Miller, however, requires that the material depict or describe "in a patently offensive way, sexual conduct specifically defined by the applicable . . . law." 413 U.S. at 24. Although Petitioners filed a reply brief after the Court's decision in Miller, they did not challenge the possible lack of the requisite statutory specificity. Rather, they assert that Miller retained the first two tests of Memoirs and that these tests were misapplied by the Commission. (Reply Br. 14) We see no point in pursuing in the abstract the question whether the finding of obscenity here survives the narrowing of the second test that was accomplished in Miller, especially since we have the additional elements of titillation and probable exposure to children, which even some of the dissenting Justices in Miller thought sufficient to permit condemnation. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 114, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973) (Brennan, J., dissenting). Moreover, Miller's specificity requirement is designed to "provide fair notice to a dealer," 413 U.S. at 27, and it is not clear whether it is a requirement that may be insisted upon by the public when waived by the licensee. Petitioners' goal is to determine what material is withdrawn from censorship on grounds of obscenity because of the protections of the First Amendment, and that turns primarily on the nature of the social purpose that may redeem material that otherwise stands condemned. In this respect Miller narrows the protection afforded by Memoirs in a manner that undercuts the most important feature of Petitioners' claim.
Petitioners put it that an administrative agency like the Commission does not furnish the contemporary community lens which supplied the premise for obscenity determinations contemplated in both Miller and Memoirs. Here, a jury trial was available19 but was waived by the licensee. A jury determination is not required to vindicate the public interest in those circumstances. The Supreme Court has held the Miller standards applicable where defendant waives his right to trial by jury. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973). Indeed, the Court has found no constitutional bar to the application of the Miller standards in a state civil proceeding where there is no right to jury trial. Alexander v. Virginia, 413 U.S. 836, 37 L. Ed. 2d 993, 93 S. Ct. 2803 (1973).
Petitioners object that the Commission's determination was based on a brief condensation of offensive material and did not take into account the broadcast as a whole, as would seem to be required by certain elements of both the Memoirs and the Miller tests. The Commission's approach is not inappropriate in evaluating a broadcasting program that is episodic in nature -- a cluster of individual and typically disconnected commentaries, rather than an integrated presentation. It is commonplace for members of the radio audience to listen only to short snatches of a broadcast, and programs like "Femme Forum" are designed to attract such listeners. Moreover, the pervasive pandering approach here makes the broadcast pornographic even though some of its elements may be unoffensive. Ginzburg v. United States (supra) 383 U.S. at 471. If the licensee or the public representatives have reason to believe that an assessment of the impact of an offensive segment would be substantially affected by consideration of the program as a whole, they should be given an opportunity to offer such evidence. There was no such proffer in this case.
We conclude that, where a radio call-in show during daytime hours broadcasts explicit discussions of ultimate sexual acts in a titillating context, the Commission does not unconstitutionally infringe upon the public's right to listening alternatives when it determines that the broadcast is obscene.
In seeking rehearing, petitioners, Illinois Citizens Committee for Broadcasting and the American Civil Liberties Union, are essentially concerned that our opinion is insensitive to their role as representatives of the listening public. Their characterization of our opinion suggests a misunderstanding of its import.
We do contemplate that representatives of the public have a role in FCC proceedings concerning obscenity determinations -- as is indicated by our recognition that they have standing to challenge the substantive grounds of Commission action even where the licensee is willing to pay the forfeiture and thus acquiesces in the Commission's determination. We are cited to no Supreme Court case that goes this far in a situation where the producer or distributor directly affected has acquiesced.* However, we found such a requirement implicit in the contours of the statute, a procedural right that furthers the substantive rights of the public under the First Amendment.
Their standing is consequent, since the Commission must pay careful attention to ensure that the freedom of substantial numbers of the listening public is not curtailed because of possible offensiveness to particularly sensitive listeners who retain the option of switching off the offending broadcasts. Whatever the difficulty of determining the relevant community standards in a national context, we believe that the Commission must adopt, in its deliberations leading to any substantive determination of obscenity, approaches that provide, as nearly as possible, the functional equivalent of a jury determination of a clear community consensus that the material is lewd and offensive. In approaching this sensitive obligation, the Commission does not have the free hand of bureaucratic censorship. We also note that we have not relied upon the second ground of the FCC's determination in this case -- its latitude to hold thins "indecent" that are not obscene.
In evaluating petitioners' challenges, however, we were persuaded that the Commission has, in this case, made a strong showing that the conduct was unprotected by the First Amendment and that the rights of the public were not unconstitutionally infringed. Before the proceedings before the Commission were there disposed of the public interest represented by petitioners had been afforded opportunity to present for consideration all matters petitioners desired to raise, including petitioners' position that the forfeiture by Sonderling should be remitted.