American Security Council Education Foundation v. Federal Communications Commission and United States of America, Cbs Inc., Intervenor

607 F.2d 438, 197 U.S. App. D.C. 124, 5 Media L. Rep. (BNA) 1193, 45 Rad. Reg. 2d (P & F) 1433, 1979 U.S. App. LEXIS 13578

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 29, 1979
• Docket: 77-1443
• Status: Published

Opinions

Opinion for the court filed by TAMM, Circuit Judge.

Concurring Opinion filed by J. SKELLY WRIGHT, Chief Judge.

Concurring Opinion filed by BAZELON, Circuit Judge.

Dissenting Opinion filed by WILKEY, Circuit Judge, with whom MacKINNON and ROBB, Circuit Judges, join.

TAMM, Circuit Judge:

We are called upon to decide whether the American Security Council Education Foundation (ASCEF) presented prima facie evidence that CBS, Inc. (CBS) violated the fairness doctrine by giving imbalanced coverage to “national security issues” in its news programming. The Federal Communications Commission (Commission) concluded that because ASCEF did not base its complaint on a particular, well-defined issue, it did not present prima facie evidence of a fairness doctrine violation. We uphold the Commission’s decision.

I

In 1972, ASCEF¹ launched a study to analyze the national television networks’ coverage of issues relating to this country’s national security. ASCEF originally planned to examine the news programs of all three national networks, but later decided, “in the interests of depth and thoroughness,” to examine only one. E. Lefever, TV and National Defense, An Analysis of CBS News, 1972-73, at vi (1974) (TV and National Defense).² ASCEF chose CBS because CBS had the largest audience for evening news and the largest number of affiliated stations. Id.

ASCEF examined videotapes of all CBS Evening News broadcasts aired during 1972.³ It transcribed broadcasts of all news reports that it determined were relevant to four topics:⁴ United States military and foreign affairs; Soviet Union military and foreign policy; China military and foreign policy; and Vietnam affairs. ASCEF submitted examples of the broadcasts it transcribed to the Commission, which included, inter alia, news reports of President Nixon’s remarks and congressional debate on the Strategic Arms Limitations Treaty (SALT); Defense Secretary Laird’s and various Senators’ statements on the defense budget; Administration and congressional statements concerning the Trident submarine system and the B-l bomber; the Democratic Party platform on amnesty for draft evaders; Soviet Union involvement in the Middle East; presidential campaign statements of Senator McGovern concerning, among other things, the defense budget, the space shuttle, and troops in Western Europe, South Korea and Indochina; the President’s trip to China; the Vietnam War; and the activities of Chinese school children.⁵

ASCEF dissected the transcribed news reports⁶ into sentences and categorized each sentence into one of three basic positions on national security:

Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to increase its national security efforts;

Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate[;] and

Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be decreased.

TV and National Defense at 78 (emphasis in original).⁷ *Using this methodology, ASCEF concluded that 3.54 per cent of the sentences transcribed reflected viewpoint A, 34.63 per cent reflected viewpoint B, and 61.83 per cent reflected viewpoint C.⁸ ASCEF filed a fairness doctrine complaint with the Commission against CBS based upon these statistics. In its complaint, AS-CEF also alleged that it reviewed CBS’s news programming other than CBS Evening News for 1972, as well as CBS’s news programming for 1973 and parts of 1975 and 1976, and observed the same disproportionate treatment of national security issues.⁹ On the basis of its findings, ASCEF contended that CBS had engaged in advocacy journalism on “basic national security issues.”¹⁰ ASCEF asked the Commission to find the existence of a fairness doctrine violation and order CBS to provide a reasonable opportunity for the expression of A viewpoints.¹¹

II

The fairness doctrine provides the framework for insuring that the American broadcast system is operated in the public interest. From its inception, the doctrine’s goal has been to promote the “paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning [the] vital and often controversial issues which are held by various groups which make up the community.” Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949); see Fairness Report, 48 F.C.C.2d 1, 5 (1974); see also Democratic National Committee v. FCC, 148 U.S.App.D.C. 383, 402, 460 F.2d 891, 910, cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 363, 447 F.2d 323, 333 (1971) (quoting Retail Store Employees Union v. FCC, 141 U.S.App.D.C. 94, 103, 436 F.2d 248, 257 (1970)). The fairness doctrine achieves its goal through imposing a two-fold requirement on broadcasters. It requires each broadcaster to (1) devote a reasonable percentage of its broadcast time to coverage of controversial issues of public importance, and (2) provide a reasonable opportunity for the presentation of conflicting views on such issues.¹²

The Supreme Court upheld the constitutionality of the fairness doctrine,¹³ despite the general first amendment prohibition on government regulation of speech and of the press,¹⁴ because it furthers the paramount first amendment right of viewers and listeners to receive “suitable access to . . . ideas and experiences.” Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 389-90, 89 S.Ct. 1794, 1806-1807, 23 L.Ed.2d 371 (1969). The Court justified the fairness doctrine’s imposition of limitations on broadcast content on the basis of the scarcity of broadcast frequencies. Id. at 390, 89 S.Ct. 1794. Because broadcast frequencies are scarce, not all those who wish to broadcast may do so. In essence, the fairness doctrine recognizes that broadcasters act as public trustees who manage a scarce national resource: ¹⁵

There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.

Id. at 389, 89 S.Ct. at 1806.

Although the Court in Red Lion legitimized the fairness doctrine, it recognized the argument that overly ambitious enforcement could lead broadcasters to reduce coverage of controversial public issues, or to cover those issues blandly, in an attempt to avoid fairness doctrine complaints.¹⁶ See id. at 393, 89 S.Ct. 1794; see generally Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-57, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).¹⁷ The Court believed this danger was speculative at that time. It warned, however, that the constitutional implications could be reconsidered if the fairness doctrine, in practice, reduced rather than enhanced the volume and quality of coverage of public issues. 395 U.S. at 393, 89 S.Ct. 1794.

In administering the fairness doctrine, the Commission wisely attempts to avoid unnecessary risk of “chilling” presentations of controversial issues.¹⁸ The Commission is concerned that unduly burdensome regulation will induce broadcasters to decrease vigorous and effective coverage of issues that are the subject of public debate.¹⁹ This result would advance neither the broadcasters’ nor the public’s first amendment rights. See Fairness Report, 48 F.C.C.2d at 6-9; see also Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d 691, 694 (1976); id. at 708 n.13 (Robinson, C., dissenting). The Commission thus exercises its duties under the fairness doctrine with restraint, balancing the various first amendment interests to determine “what best serves the public’s right to be informed.” Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 102, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973).²⁰

At center stage of the Commission’s regulatory scheme is its determination that broadcasters should have maximum editorial discretion in deciding how to fulfill fairness doctrine obligations. See Fairness Report, 48 F.C.C.2d at 8-9, 28-31. In the course of presenting its programming, the broadcaster decides what issue has been discussed, whether an issue is a controversial issue of public importance, what views have been or should be presented on the issue,²¹ what format or which spokesmen should be used, and how much time should be allotted to discussion of various views.²² See Applicability of Fairness Doctrine in Handling Controversial Issues of Public Importance (Fairness Primer), 40 F.C.C. 598, 599 (1964); see also Fairness Report, 48 F.C.C.2d at 9.

A viewer or listener who believes that a broadcaster is not meeting its fairness doctrine obligations must first complain to the broadcaster.²³ See Broadcast Procedure Manual, 49 F.C.C.2d 1, 5 (1974). If the broadcaster agrees to rectify the complaint or explains its position to the satisfaction of the complainant, Commission intervention is unnecessary. See id.; Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696. A viewer or listener who remains dissatisfied may then file a complaint with the Commission.

Such a complaint must present prima facie evidence of a fairness doctrine violation. Prima facie evidence consists of specific factual information which, in the absence of rebuttal, is sufficient to show that a fairness doctrine violation exists.²⁴ Unless the complaint contains such evidence, the Commission will not demand a response to a complaint from a broadcaster.

The prima facie evidence requirement is “part of the delicate balance allocating burdens between licensees and complainants”: the complainant must produce prima facie evidence of a violation before the broadcaster will be burdened with establishing compliance with the fairness doctrine. Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696; see text supra at 197 U.S.App.D.C. at ---, 607 F.2d at 444-445. The Commission explained the reasons for the prima facie evidence requirement in Allen C. Phelps, 21 F.C.C.2d 12, 13 (1969):

Absent detailed and specific evidence of failure to comply with the requirements of the fairness doctrine, it would be unreasonable to require licensees specifically to disprove allegations . The Commission’s policy of encouraging robust, wide-open debate on issues of public importance would in practice be defeated if, on the basis of vague and general charges of unfairness, we could impose upon licensees the burden of proving the contrary by producing recordings or transcripts of all news programs, editorials, commentaries, and discussion of public issues, many of which are treated over long periods of time.²⁵

See Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696.

In its Fairness Primer, 40 F.C.C. at 600, the Commission set forth the information necessary to establish a prima facie case of a violation. The complainant should submit specific facts to show

(1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air; (3) the date and time when the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints. (Emphasis added; footnote omitted.)

See also Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d at 696; Fairness Report, 48 F.C.C. at 19.²⁶ This court has upheld the reasonableness of these requirements. See Hale v. FCC, 138 U.S.App.D.C. 125, 127-28, 425 F.2d 556, 558-59 (1970) (per curiam); see also Democratic National Committee v. FCC, 148 U.S.App.D.C. at 399-400, 460 F.2d at 907-08.²⁷

If the Commission determines that there is prima facie evidence of a fairness doctrine violation, it will direct the broadcaster to respond to the complaint. See Memorandum Opinion and Order on Reconsideration of the Fairness Doctrine, 58 F.C.C.2d at 696. The Commission finds that prima facie evidence of a violation exists in relatively few cases. During fiscal year 1973, for example, the Commission received approximately 2,400 complaints and determined that only ninety-four, or four per cent, required the filing of a response. See Fairness Report, 48 F.C.C.2d at 8. When the Commission does require a broadcaster to respond to a fairness doctrine complaint, it reviews the response to determine whether the broadcaster’s decisions with respect to the issues raised,²⁸ the views presented, the format and spokesmen used, and the time allotted were made reasonably and in good faith. See Fairness Primer, 40 F.C.C.2d at 599; see also Straus Communications, Inc. v. FCC, 174 U.S.App.D.C. 149, 156-57, 530 F.2d 1001, 1008-09 (1976); Brandywine-Main Line Radio, Inc. v. FCC, 153 U.S.App.D.C. 305, 333, 473 F.2d 16, 44 (1972), cert. denied, 412 U.S. 922, 93 S.Ct. 2731, 37 L.Ed.2d 149 (1973). If the Commission determines that the broadcaster acted unreasonably or in bad faith,²⁹ it will advise the broadcaster to meet its fairness obligations through additional programming. See Fairness Report, 48 F.C.C.2d at 17.

Our function in reviewing a decision made by the Commission at any step of the fairness doctrine complaint procedure is to determine “ ‘whether the Commission’s order is unreasonable or in contravention of statutory purpose.’ ” Democratic National Committee v. FCC, 148 U.S.App.D.C. at 394, 460 F.2d at 912 (quoting Neckritz v. FCC, 446 F.2d 501, 502-03 (9th Cir. 1971) (per curiam)). We are mindful that the Commission’s task in administering the fairness doctrine is one of great delicacy and difficulty, and that the Commission’s experience in this matter accordingly is entitled to “great weight.” Columbia Broadcasting System v. Democratic National Committee, 412 U.S. at 102, 93 S.Ct. 2080.

Ill

The Commission ruled that ASCEF failed to meet the prima facie evidence requirement because, inter alia, it did not base its complaint on a particular, well-defined issue. American Security Council Education Foundation, 63 F.C.C.2d 366, 368 (1977). In dismissing the complaint, the Commission stated:

Although the “national security issue” is defined by the complainant as involving “the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R.” in other parts of the complaint ASCEF refers to the subject of the study as “national defense and foreign policy issues,” “Soviet and Chinese political and military objectives,” and “domestic foreign policy.” Moreover, the data collected in the accompanying study indicates that the complainant’s perceived scope of the issue is much broader, encompassing subjects such as Chinese military and non-military policies, Southeast Asia and foreign relations generally.

Id. at 368 (footnote omitted).³⁰ We affirm the Commission’s decision that ASCEF failed to base its complaint on a particular, well-defined issue because (1) the indirect relationships among the issues aggregated by ASCEF under the umbrella of “national security” do not provide a basis for determining whether the public received a reasonable balance of conflicting views, and (2) a contrary result would unduly burden broadcasters without a countervailing benefit to the public’s right to be informed.

The fairness doctrine, by definition, is issue-oriented. It calls upon broadcasters to provide fair coverage on each controversial public issue discussed in their programs. See text supra at 197 U.S.App.D.C. at -, 607 F.2d at 443; National Citizens Committee for Broadcasting v. FCC, 186 U.S.App.D.C. 102, 118, 567 F.2d 1095, 1111 (1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978); Green v. FCC, 144 U.S.App.D.C. 353, 355, 447 F.2d 323, 328 (1971). A fairness doctrine complaint, therefore, must focus the Commission’s attention on a particular, well-defined issue on which coverage was allegedly imbalanced.³¹ Presentation of such an issue is a prerequisite to a determination whether a broadcaster presented a reasonable balance of conflicting views.³²

ASCEF contends in this court that “national security” is a particular, well-defined issue. Brief for Petitioner at 7 & n.8, 56-57. ASCEF defines the issue, however, by aggregating under a broad umbrella concept individual issues that it determined were relevant to national security. As ASCEF stated in the material it submitted to the Commission, the study which formed the basis of its allegation of imbalance “deal[t] with many U.S. foreign and defense policies” and various “national security issues facing the United States.” TV and National Defense at vi, 3. The broadcasts ASCEF studied involved issues as distinct as America’s commitment to the North Atlantic Treaty Organization (NATO), detente with China, SALT, amnesty, the Vietnam war, and America’s response to the Soviet Union’s role in the Middle East.³³

The issues that ASCEF joined together may have relevance, in varying degrees, to the umbrella concept of “national security.” However, their relationships to one another are tangential. The issues analyzed by ASCEF arose independently in time and were largely discussed and acted upon on an independent basis. Consideration of the issues together, rather than individually, would not provide a basis for determining whether the broadcaster presented a reasonable balance of conflicting views because views on any one issue do not support or contradict views on the others.

Under ASCEF’s approach, a broadcast containing a view on SALT, for example, is expected either to conflict with or support a. broadcast containing a view on amnesty for draft evaders, detente with China, or the Vietnam war. According to ASCEF, a news report quoting Defense Secretary Laird’s statement that he “could not support the [SALT] agreements if the Congress fails to [move] forward on the Trident System, [and] on the B-l bomber”³⁴ conflicts with a news report stating that “[f]or those who have evaded service [the Democratic platform called for] ‘amnesty on an appropriate basis’ after the war when the prisoners are returned.”³⁵ ASCEF contends that each of these broadcasts also conflicts with a news report concerning the President’s trip to China, in which Walter Cronkite stated that the “gracious hospitality of our hosts here cannot disguise the fact [that] the weapons they are so proudly displaying . . . have taken uncounted numbers of American lives in Korea and Southeast Asia.”³⁶ A view in any of these broadcasts, however, contributes little, if anything, toward informed evaluation of a view in any other. An average viewer realistically could not be expected to perceive such a nexus among them.

We do not hold that a fairness doctrine complaint may never be based upon an issue that consists of separately identifiable sub-issues.³⁷ Whether the fairness doctrine should be applied to a general “umbrella” issue or to the separate issues comprising it depends on what should be done to insure that the public is adequately informed.³⁸ See Democratic National Committee v. FCC, 148 U.S.App.D.C. at 402, 460 F.2d at 910; Green v. FCC, 447 F.2d at 329, 333. An issue is not a “particular, well-defined” issue for fairness doctrine purposes if the separate issues comprising it are so indirectly related that a view on one does not, in a way that would be apparent to an average viewer or listener, support or contradict a view on any other. When an “umbrella” issue is that ill-defined, there is no reasonable basis for determining whether the public is receiving balanced conflicting views. On the other hand, if in the Commission’s expert judgment, an issue contains two or more component issues so obviously related that average viewers or listeners can be expected to believe that expression of a view on one supports or refutes a view on another, the “umbrella” issue can serve as the basis of a fairness doctrine complaint. In this connection, we emphasize that it is, after all, the rights of viewers and listeners that are paramount, not the rights of broadcasters or expert complainants. See Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390, 89 S.Ct. 1794.

If ASCEF had focused on individual issues, it could have identified the actual views expressed ³⁹ instead of superimposing artificial A, B and C viewpoints on the broadcasts studied. The Commission then could have determined which, if any, issues had been the subject of imbalanced coverage, and could have ordered a meaningful remedy in the form of additional coverage if necessary. If a broadcaster fulfills fairness obligations on the various issues relating to national security, the fairness doctrine’s goal of promoting informed public opinion will be served.

Acceptance of ASCEF’s contention that “national security” is a particular, well-defined issue would not only render impossible a determination of reasonable balance vel non, but also would place a substantial burden on the broadcaster. A broadcaster must have a clear understanding of the issue forming the basis of a complaint in order to assess its compliance with the fairness doctrine. Unless a broadcaster can recognize the issue “with precision and accuracy,” American Security Council Education Foundation, 63 F.C.C.2d at 368, proof of compliance with the fairness doctrine would require the production of “recordings or transcripts of all news programs, editorials, commentaries, and discussion of public issues, many of which are treated over long periods of time.” Allen C. Phelps, 21 F.C.C.2d at 13; see note 25 supra. The Commission has wisely determined that imposition of such onerous burdens on broadcasters would, in practice, defeat the policy of “encouraging robust, wide-open debate.” 21 F.C.C.2d at 13; see text supra at 197 U.S.App.D.C. at -- -, 607 F.2d at 444-445.

The burdens that would have been associated with response to the complaint in this case are particularly apparent. CBS could have had to review all of its news programming relevant to national security over at least a year’s time. It then would have had to determine whether the relevant news broadcasts, taken as a whole, were reasonably balanced. It would have been virtually impossible to know which broadcasts should be included as relevant to national security,⁴⁰ or how views discussed on the myriad issues involved in the broadcasts should be tallied to measure “balance” under the fairness doctrine.

Adoption of ASCEF’s notion of the particular issue requirement would create a precedent that might well have a serious effect on daily news programming, by inducing broadcasters to forego programming on controversial issues or by disrupting the normal exercise of journalistic judgment in such programming that is aired. The broadcasting of daily news demands the exercise of enormous editorial skill. The news editor must select from the vast array of the day’s fast-moving events those which, in the limited amount of broadcast time available, should be presented to the public. In attempting to comply with the fairness doctrine as interpreted by ASCEF, an editor’s news judgment⁴¹ would be severely altered. An editor preparing an evening newscast would be required to decide whether any of the day’s newsworthy events is tied, even tangentially, to events covered in the past, and whether a report on today’s lead story, in some remote way, balances yesterday’s, last week’s or last year’s. Because this requirement would not promote the public interest, the limitations on the exercise of news judgment would be unjustified.⁴²

IV

ASCEF’s blunderbuss approach to the fairness doctrine would contribute little, if anything, toward achievement of the fairness doctrine’s goal while posing all the dangers associated with government administration of fairness obligations. The prima facie case requirements are designed to weed out those complaints that would burden broadcasters without sufficient likelihood that a countervailing benefit will be gained. We uphold the Commission’s determination that ASCEF failed to present prima facie evidence of a fairness doctrine violation.⁴³ The Commission’s decision that no action was warranted on the complaint is therefore

Affirmed.

1 . At the time of the study, American Security Council Education Foundation (ASCEF) was known as the Institute for American Strategy.

2 . See note 3 infra.

3 . The “content” and “viewpoint” analyses of CBS Evening News during 1972 formed the core of ASCEF’s fairness doctrine complaint. See Joint Appendix (J.A.) at 8-13. In 1974, ASCEF published a report of its study, written by Dr. Ernest W. Lefever, called TV and National Defense, An Analysis of CBS News, 1972-1973 (TV and National Defense). ' The report was incorporated by reference into the complaint filed with the Federal Communications Commission (Commission). J.A. at 2. Chapter four of the report describes the relevant methodology. The methodology is commented on in S. Simmons, The Fairness Doctrine and The Media 207-08 (1978) and F. Friendly, The Good Guys, the Bad Guys and the First Amendment 167-91 (1975).

4 . These topics replaced nine topics originally identified by ASCEF as relevant to national security: (1) United States military posture; (2) United States national strength; (3) United States internal security; (4) Soviet Union: military; (5) Soviet Union: non-military; (6) China: military; (7) China: non-military; (8) Southeast Asia; and (9) other foreign relations. See TV and National Defense at 74-76. AS-CEF decided that the nine topics constituted a “broad and somewhat diffuse definition of national security,” which caused “persistent coding problems.” Id. at 76. ASCEF believed that the four topics it substituted for the nine bore “more directly on U.S. defense and foreign policy.” Id.

5 . See id. at 81-92. Although the report of the study did not contain a comprehensive list of the broadcasts transcribed, it gave examples. The majority of examples were derived from broadcasts during June 1972. ASCEF reproduced in its report forty of the fifty-nine sentences broadcast that month that it had determined were relevant to national security. AS-CEF excluded from its examples the nineteen sentences broadcast on June 15. See id. at 81. For a critical discussion of ASCEF’s decision to eliminate these broadcasts from its examples, see Friendly, supra note 3, at 178-79.

6 . ASCEF stated that it eliminated from its study news reports that, in its judgment, did not contain explicitly expressed opinions. See TV and National Defense at 76. ASCEF explained, for example, that it did not include news reports of events such as casualty and battlefield reports from the Vietnam war. Id. at 76-77. From the 1,396 broadcasts of separate news items originally transcribed, 274 survived this screening. The 274 news items were comprised of 2,235 sentences. According to ASCEF, CBS news staff expressed their own opinions in 416 of the 2,235 sentences. Id. at 77, 85-86, 95.

7 . Viewpoint B, by ASCEF’s definition, “is an opinion that supports the current policy and declared objectives of the U.S. Government.” Id. at 90. ASCEF categorized any statement by an Administration official as Viewpoint B regardless of its content. Thus, Defense Secretary Laird’s statement that he could not support agreement on SALT unless Congress acted to “improve our strategic offensive systems” thereby enabling the United States to “bargain from a strong position” was labeled as Viewpoint B, doing the same for national security, rather than Viewpoint A, doing more for national security. See id. at 83.

8 . See id. at 85-86.

9 . J.A. at 10-13. ASCEF apparently did not subject this programming to the same “viewpoint” analysis applied to CBS Evening News broadcasts aired during 1972.

10 . Id. at 19.

11 . ASCEF specifically asked that the Commission order CBS to provide a reasonable opportunity for the presentation of the following views:

a. The Soviet Union still has the objective of eventual world domination.

b. The Soviet Union is militarily superior to the United States.

c. The United States should be militarily superior to the Soviet Union.

d. The United States should have the objective of winning the conflict between the two systems.

Id. at 21.

12 . See Fairness Report, 48 F.C.C.2d 1, 7 (1974); Applicability of Fairness Doctrine in Handling Controversial Issues of Public Importance (Fairness Primer), 40 F.C.C. 598, 599, 607 (1964).

The fairness doctrine was developed by the Commission based on the public interest standard of the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. §§ 151-609 (1976). See, e. g, 47 U.S.C. §§ 303(f); 307(a), (d); 309(a). In FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 795, 98 S.Ct. 2096, 2112, 56 L.Ed.2d 697 (1978), the Supreme Court stated that the public interest standard in the law of broadcasting “ ‘necessarily invites reference to First Amendment principles’ ” most notably the goal of achieving “ ‘the widest possible dissemination of information from diverse and antagonistic sources.’ ” (quoting Columbia Broadcasting Sys. v. Democratic Nat’l Comm., 412 U.S. 94, 122, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) and Associated Press v. United States, 326 U.S. 1, 20, 65 S.Ct. 1416, 89 L.Ed.2d 13 (1945)).

The Federal Communications Commission had given the doctrine firm content by 1949. See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1257-58 (1949). See generally Simmons, Fairness Doctrine: The Early History, 29 Fed.Com.B.J. 207, 242 — 44 (1976). In 1959, Congress confirmed the Commission’s view that the fairness doctrine was part of the public interest standard. See Pub. L.No. 86-274, § 1, 73 Stat. 557 (1959). That year, Congress amended the “equal time” provision, 47 U.S.C. § 315(a) (1976), to provide that:

Nothing in the foregoing sentence [exempting certain news programming from the equal time requirement for qualified candidate broadcasts] shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

13 . The Court upheld the “personal attack” and “political editorial” components of the fairness doctrine. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 373-75, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The Commission’s current personal attack and political editorial rules appear at 43 Fed.Reg. 45856 (1978). See generally Simmons, The FCC’s Personal Attack and Political Editorial Rules Reconsidered, 125 U.Pa.L.Rev. 990 (1977).

14 . See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491, 495-97, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975); United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 92 L.Ed.2d 1260 (1948); Columbia Broadcasting Sys. v. Democratic Nat’l Comm., 412 U.S. at 133, 93 S.Ct. 2080 (Stewart, J., concurring); Community-Service Broadcasting v. FCC, 192 U.S.App.D.C. 448, 456, 593 F.2d 1102, 1110 (1978) (en banc) (Wright, J.); id. at 489-90, 593 F.2d at 1143-44 (Leventhal, J., dissenting).

15 . See Office of Communication of United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 117, 425 F.2d 543, 548 (1969).

16 . At some point, of course, a broadcaster who refrained from presenting coverage of controversial public issues would fail to fulfill its obligations under the first part of the fairness doctrine — that broadcasters must devote a reasonable amount of time to such issues. See text supra at 197 U.S.App.D.C. at -, 607 F.2d at 443; Fairness Report, 48 F.C.C.2d at 9-10; see also Red Lion Broadcasting Co. v. FCC, 395 U.S. at 392-93, 89 S.Ct. 1794. This obligation, however, is not extensive and is met by presenting a minimum of controversial subject matter. See Simmons, The Problem of “Issue” in the Administration of the Fairness Doctrine, 65 Cal.L.Rev. 546, 578-86 (1977); Rosenfeld, The Jurisprudence of Fairness: Freedom Through Regulation in the Marketplace of Ideas, 44 Fordham L.Rev. 877, 912-13 (1976).

17 . In Miami Herald, the Court held that a right-to-reply statute applicable to newspapers was unconstitutional. The Court recounted its

sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which “ ‘reason’ tells them should not be published” is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues cannot be legislated.

418 U.S. at 256, 94 S.Ct. at 2839. The Court explained that, faced with such a statute, newspaper editors might well decide to avoid controversy in their publications, which would “ ‘dampen[] the vigor and limitQ the variety of public debate.’ ” Id. at 257, 94 S.Ct. at 2839 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). See also Cox Broadcasting Corp. v. Cohn, 420 U.S. at 496, 95 S.Ct. 1029.

18 . The Commission is expressly prohibited from censoring broadcast communications. See 47 U.S.C. § 326 (1976). In FCC v. Pacifica Foundation, 430 U.S. 726, 735, 98 S.Ct. 3026, 57 (1978), the Court stated that the censorship prohibition denies the Commission power to edit broadcasts in advance and to excise material considered inappropriate for the airwaves. See also id. at 735 n.9, 98 S.Ct. 3026; National Ass’n for Better Broadcasting v. FCC, 192 U.S.App.D.C. 203, 209, 591 F.2d 812, 818 (1978); see generally Comment, The Regulation of Competing First Amendment Rights: A New Fairness Doctrine Balance After CBS, 122 U.Pa.L.Rev. 1283, 1288 & n.33 (1974).

19 . See note 16 supra.

20 . See generally Rosenfeld, supra note 16, at 885-87.

21 . The fairness doctrine does not require a broadcaster to present the entire spectrum of views on an issue. The broadcaster must only make a good faith effort to identify and present the major views being debated in the community. See Fairness Report, 48 F.C.C.2d at 14-15; see also Horace P. Rowley, 39 F.C.C.2d 437, 441-42 (1973).

22 . The fairness doctrine does not require a broadcaster to provide equal time for the various opposing points of view. The Commission has “long felt that the basic goal of creating an informed citizenry would be frustrated if for every controversial item or presentation on a newscast or other broadcast the licensee had to offer equal time to the other side.” Fairness Report, 48 F.C.C.2d at 16. There is no mathematical ratio to establish the appropriate time allocations; the licensee must exercise good faith and reasonableness in considering the particular facts and circumstances of each case. Id. at 17; see Public Media Center v. FCC, 190 U.S.App.D.C. 425, 432-35, 587 F.2d 1322, 1329-32 (1978).

23 . ASCEF, before releasing the report of its study, advised CBS of its findings and requested a reasonable opportunity for the presentation of A viewpoints. After considerable correspondence, CBS informed ASCEF that, in its opinion, it had not violated the fairness doctrine. See J.A. at 3.

24 . See generally Columbus Broadcasting Coalition v. FCC, 164 U.S.App.D.C. 213, 216-17, 219-20, 505 F.2d 320, 323-24, 326-30 (1974) (discussing prima facie case requirements for petition to deny a broadcast license under 47 U.S.C. § 309(d)); Stone v. FCC, 151 U.S.App.D.C. 145, 150-51, 157-59, 466 F.2d 316, 321-22, 328-30 (1972) (same); WLVA, Inc. v. FCC, 148 U.S.App.D.C. 262, 269-70, 273-74, 459 F.2d 1286, 1293-94, 1297-98 (1972) (same); Folkways Broadcasting Co. v. FCC, 126 U.S.App.D.C. 123, 127-29, 375 F.2d 299, 303-05 (1967) (same); id. at 132-34, 375 F.2d at 308-10 (Tamm, J., dissenting).

In general terms, prima facie evidence is evidence which is sufficient in law to sustain a finding in favor of a claim, but which may be contradicted. See Black’s Law Dictionary 1353 (Rev. 4th ed. 1968).

25 . In responding to a fairness doctrine complaint, “[f]ull opportunity is given to the licensee to set out all programs which he has presented, or plans to present, with respect to the issue in question during an appropriate time period.” Fairness Primer, 40 F.C.C. at 600. More recently, the Commission stated that the broadcaster “is not required to research everything it has broadcast on the subject over a considerable period of time, unless it believes it is necessary to do so in order to establish its compliance with the fairness doctrine with respect to the issue involved.” Fairness Report, 48 F.C.C.2d at 20; see generally Democratic Nat’l Comm. v. FCC, 148 U.S.App.D.C. 383, 399—400, 460 F.2d 891, 907-08, cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972).

26 . In its Broadcast Procedure Manual, 49 F.C.C.2d 1, 5 (1974), the Commission described the components of a prima facie case more specifically:

The complaint should contain specific information concerning the following matters: (1) The name of the station or network involved; (2) the controversial issue of public importance on which a view was presented; (3) the date and time of its broadcast; (4) the basis for your claim that the issue is controversial and of public importance; (5) an accurate summary of the view [or] views broadcast; (6) the basis for your claim that the station or network has not broadcast contrasting views on the issue or issues in its overall programming; and (7) whether the station or network has afforded, or has expressed the intention to afford, a reasonable opportunity for the presentation of contrasting viewpoints on that issue.

In its Fairness Report, the Commission stated it will excuse the complainant from listing the date and time of each particular program addressing the issue if a message on one side of the issue obviously has been repeated many times, as in an editorial advertising campaign. 48 F.C.C.2d at 20 n.19. The Commission has reiterated in a number of its cases the requirement that a complaint contain an accurate summary of the views presented. See, e. g., James L. Waller, 57 F.C.C.2d 1281, 1282 (1976); Thomas E. Mitchell, 54 F.C.C.2d 593, 595 (1975); Robert O. Galligan, 48 F.C.C.2d 343, 344 (1974).

27 . The most frequent subjects of dispute arising under the prima facie evidence requirement concern whether the complainant presented sufficient information to show (1) that a particular issue was discussed in the challenged programming, see, e. g., Thomas E. Mitchell, 54 F.C.C.2d at 595; Roger Pilon, 53 F.C.C.2d 615, 616 (1975); Citizens for Decency, 50 F.C.C.2d 328, 329 (1974); Robert O. Galligan, 48 F.C.C.2d at 344—45; Horace P. Rowley, 44 F.C.C.2d 770, 770-71 (1974); John F. Jackson, 44 F.C.C.2d 752, 754 (1974); Accuracy in Media, 42 F.C.C.2d 426, 428-29 (1973); (2) that an issue is a controversial issue of public importance, see, e. g., Hon. Baldy Hansen, 47 F.C.C.2d 34, 35 (1974); Horace P. Rowley, 46 F.C.C.2d 748, 749-50 (1974); John Birch Society, 11 F.C.C.2d 790, 791 (1968); and (3) that a broadcaster has presented only one side of the issue in its overall programming, see, e. g., Jos. A. O’Connor, 59 F.C.C.2d 605, 606 (1976); Dale Pontius, 46 F.C.C.2d 1118, 1120 (1974); Horace P. Rowley, 39 F.C.C.2d at 443.

28 . A broadcaster may not agree with the complainant about what issue was raised in a broadcast. In this connection, the Commission has stated:

Where a licensee poses an alternative issue to that specified in the complaint, such alternative will be considered an implicit denial that the basic thrust of the program addressed the issue specified by the complaint. In such a case the Commission will continue to review the reasonableness of the licensee’s denial, considering the alternative issue as evidence concerning the licensee’s good faith and reasonableness. Any departure from this policy would render useless the requirement for specificity by the complainant and permit licensees to avoid presenting opposing viewpoints by sophistic distinctions entirely lost on the average viewer.

Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d 691, 697 n.8 (1976).

29 . It is the Commission’s practice to deal with fairness doctrine complaints by written submissions rather than by evidentiary hearings. See Democratic Nat’l Comm. v. FCC, 148 U.S.App.D.C. at 394, 460 F.2d at 912.

30 . The Commission explained the reason for requiring the complainant to specify the particular issue on which its complaint is based:

This requirement is needed so that complainants, licensees and the Commission will have a clearer understanding of the positions of the parties. This is particularly true because once the burden of specificity has been placed upon the complainant, our attention and that of the licensee is then directed to the issue as framed by the complainant. We do not intend to be placed in the position of specifying the alleged controversial issue of public importance in a complaint. It is not the proper function of the administering agency to frame the complaints coming before it and it is incumbent upon the complaining party to bring before us a prima facie complaint.

American Sec. Educ. Foundation, 63 F.C.C.2d 366, 368 (1977) (quoting Memorandum Opinion and Order on Reconsideration of the Fairness Report, 588 F.C.C.2d at 696).

31 . The Commission has said that “imbalance might be a reflection of the total amount of time afforded to each side, of the frequency with which each side is presented, of the size of the audience during the various broadcasts, or a combination of factors.” Fairness Report, 48 F.C.C.2d at 17 (emphasis in original).

32 . See generally Roger Pilon, 53 F.C.C.2d at 616; Hakki S. Tamimie, 42 F.C.C.2d 876, 877 (1973); Robert L. Sassone, 37 F.C.C.2d 1017, 1017-18 (1972).

33 . As pointed out previously, ASCEF did not include a comprehensive list of the broadcasts it determined were relevant to national security; it only gave the Commission a relatively small number of examples. See note 5 supra. The issues that we identify are derived from the broadcasts given as examples and from charts used by ASCEF to explain its coding technique. It is unclear how many other issues were studied or what those issues were. It does appear that ASCEF decided that issues involving the draft, racial riots, drug use in the armed services, and military surveillance of civilians were relevant to national security. See TV and National Defense at 32.

34 . Id. at 83. ASCEF categorized this news report as viewpoint B.

35 . Id. at 84. ASCEF categorized this news report as viewpoint C.

36 . Id. at 92. ASCEF categorized this news report as viewpoint A.

37 . In Horace P. Rowley, 39 F.C.C.2d at 442, the Commission noted that “it is sometimes difficult to determine whether only one general issue exists or whether another distinct but related issue arising out of the general issue should be treated separately.” The Commission stated “we can assume that the controversy over the bombing and mining [of North Vietnam] is sufficiently separable from the general controversy over the Vietnam war to be treated as a distinct issue under the Fairness Doctrine.” Id.; see Hakki S. Tamimie, 42 F.C.C.2d at 877 (complainant stated issue was “Middle East”; Commission ruled complainant “failed to specify the particular aspect of the general topic which was discussed.”)

38 . A relevant consideration in some cases may be whether the component issues are controversial issues of public importance. If they are not, no obligation to provide contrasting views will arise. In this case there is no doubt that most of the issues aggregated by ASCEF under the umbrella of “national security” are controversial issues of public importance.

39 . In this connection, we note that a complainant must also show that the defined issue was meaningfully discussed in the broadcasts in question. Advocacy of a position on an issue need not be explicit to constitute meaningful discussion, but the statements made must be “so substantially and obviously related to the . issue as to amount to advocacy of a position” thereon. Fairness Report, 48 F.C.C.2d at 12. It is doubtful that ASCEF could have shown that positions on its “national security issue” were “meaningfully discussed” throughout the challenged broadcasts. See Thomas E. Mitchell, 54 F.C.C.2d at 595 (complaint dismissed for failure to show police and detective dramas meaningfully discussed issue of handgun control); Robert O. Galligan, 48 F.C.C.2d at 344-45 (complaint dismissed for failure to show station editorial encouraging visit to department of state university meaningfully discussed issue of alleged department scandal); Horace P. Rowley, 44 F.C.C.2d at 771 (complaint dismissed for failure to show broadcast of union members’ views on job opportunities and union services meaningfully discussed issues of union pensions or union power); John F. Jackson, 44 F.C.C.2d at 754 (complaint dismissed for failure to show broadcast of interview with Vietnam war veteran who received less-than-honorable discharge meaningfully discussed issues of draft and combat assignment of servicemen to Vietnam); see also National Citizens Comm. for Broadcasting v. FCC, 186 U.S.App.D.C. 102, 115-17, 567 F.2d 1095, 1108-10 (1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978); National Organization for Women v. FCC, 181 U.S.App.D.C. 65, 75-8, 555 F.2d 1002, 1012-15 (1977).

The Commission apparently was referring to the “meaningful discussion” requirement when it stated:

The procedure by which the opinions expressed on these issues are cataloged under the three viewpoint codes is unclear. Although ASCEF contends that it has “avoided the pitfalls of subjectivity” in this matter, there appears to be no explanation for the resulting categorization other than the use of subjective judgment on the part of the researchers. For instance, we do not perceive how views expressed on the non-military affairs of the Chinese government can be classified under headings dealing with the “threat to U.S. security” without the subjective conclusion being reached that an opinion on one issue necessarily implies an opinion on the other. The Commission can look only to what specific issues have been presented, not to the ideology which those who express those opinions might possess.

American Sec. Council Educ. Foundation, 63 F.C.C.2d at 369 (emphasis added).

40 . For example, does a broadcast concerning the role of women in the armed services sufficiently relate to national security to be included in the analysis? See Gilder, The Case Against Women in Combat, N.Y. Times Mag., Jan. 28, 1979, at 29, Col. 1. ASCEF apparently believes that it does. See TV and National Defense at 32. Is a broadcast concerning the strength of the American dollar sufficiently related to national security to be included? See Evans & Novak, The ‘Downward Course' of American Power, the Washington Post, Mar. 12, 1979, at A19, Col. 1. The same question can be asked of many different issues, including, for example, the state of energy supplies.

41 . In affirming a Commission refusal to order an evidentiary hearing in a license renewal proceeding on the basis of a claim of “discriminatory weighting of news items,” this court recently stated:

Generally the licensee’s news judgment will not be questioned unless there is extrinsic evidence of deliberate distortion or news staging, CBS Program, “Hunger in America. ” [20 F.C.C.2d 143, 150-51 (1969)], or unless the licensee consistently fails to report news events of public importance that could not in good faith be ignored, Radio Station WSNT, Inc., [27 F.C.C.2d 993, 995 (1971)].

National Organization for Women v. FCC, 181 U.S.App.D.C. at 73, 555 F.2d at 1010. ASCEF does not allege that CBS deliberately distorted the news. See Brief for Petitioner at 57 n.30.

42 . See generally Columbia Broadcasting Sys. v. Democratic Nat’l Comm., 412 U.S. at 110, 93 S.Ct. 2080.

43 . Because of our disposition of this case, we have no need to consider other possible bases for the Commission’s dismissal of the complaint.