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11/20/74 Petitioners v. Federal Communications

November 20, 1974




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.


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 ...

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