U.S. Supreme Court Red Lion Broadcasting Co., Inc. v.
FCC, 395
U.S. 367 (1969) Red Lion Broadcasting Co., Inc.
v. Federal Communications
Commission No. 2 Argued April 2-3,
1969 Decided June 9, 1969 395
U.S. 367 ast|>* 395
U.S. 367 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus The Federal Communications Commission (FCC) has for many years
imposed on broadcasters a "fairness doctrine," requiring that
public issues be presented by broadcasters and that each side of
those issues be given fair coverage. In No. 2, the FCC declared
that petitioner Red Lion Broadcasting Co. had failed to meet its
obligation under the fairness doctrine when it carried a program
which constituted a personal attack on one Cook, and ordered it to
send a transcript of the broadcast to Cook and provide reply time,
whether or not Cook would pay for it. The Court of Appeals upheld
the FCC's position. After the commencement of the Red Lion litigation, the FCC began a rulemaking proceeding to make the
personal attack aspect of the fairness doctrine more precise and
more readily enforceable, and to specify its rules relating to
political editorials. The rules, as adopted and amended, were held
unconstitutional by the Court of Appeals in RTNDA (No.
717) as abridging the freedoms of speech and press. Held: 1. The history of the fairness doctrine and of related
legislation shows that the FCC's action in the Red Lion case did not exceed its authority, and that, in adopting the new
regulations, the FCC was implementing congressional policy. Pp. 395 U. S.
375 -386.

															(a) The fairness doctrine began shortly after the Federal Radio
Commission was established to allocate frequencies among competing
applicants in the public interest, and insofar as there is an
affirmative obligation of the broadcaster to see that both sides
are presented, the personal attack doctrine and regulations do not
differ from the fairness doctrine. Pp. 395 U. S.
375 -379.

															(b) The FCC's statutory mandate to see that broadcasters operate
in the public interest and Congress' reaffirmation, in the Page 395 U. S. 368 1959 amendment to § 315 of the Communications Act, of the FCC's
view that the fairness doctrine inhered in the public interest
standard, support the conclusion that the doctrine and its
component personal attack and political editorializing' regulations
are a legitimate exercise of congressionally delegated authority.
Pp. 395 U. S.
379 -386.

															2. The fairness doctrine and its specific manifestations in the
personal attack and political editorial rules do not violate the
First Amendment. Pp. 395 U. S.
386 -401.

															(a) The First Amendment is relevant to public broadcasting, but
it is the right of the viewing and listening public, and not the
right of the broadcasters, which is paramount. Pp. 395 U. S.
386 -390.

															(b) The First Amendment does not protect private censorship by
broadcasters who are licensed by the Government to use a scarce
resource which is denied to others. Pp. 395 U. S.
390 -392.

															(c) The danger that licensees will eliminate coverage of
controversial issues as a result of the personal attack and
political editorial rules is, at best, speculative, and, in any
event, the FCC has authority to guard against this danger. Pp. 395 U. S.
392 -395.

															(d) There was nothing vague about the FCC's specific ruling in
the Red Lion case, and the regulations at issue in No. 717
could be employed in precisely the same way as the fairness
doctrine in Red Lion. It is not necessary to decide every
aspect of the fairness doctrine to decide these cases. Problems
involving more extreme applications or more difficult
constitutional questions will be dealt with if and when they arise.
Pp. 395 U. S.
395 -396.

															(e) It has not been shown that the scarcity of broadcast
frequencies, which impelled governmental regulation, is entirely a
thing of the past, as new uses for the frequency spectrum have kept
pace with improved technology and more efficient utilization of
that spectrum. Pp. 395 U. S.
396 -400.

															No. 2, 127 U.S.App.D.C. 129, 381 F.2d 908, affirmed; No. 717,
400 F.2d 1002, reversed and remanded. Page 395 U. S. 369 MR. JUSTICE WHITE delivered the opinion of the Court

															The Federal Communications Commission has for many years imposed
on radio and television broadcasters the requirement that
discussion of public issues be presented on broadcast stations, and
that each side of those issues must be given fair coverage. This is
known as the fairness doctrine, which originated very early in the
history of broadcasting and has maintained its present outlines for
some time. It is an obligation whose content has been defined in a
long series of FCC rulings in particular cases, and which is
distinct from the statutory Page 395 U. S. 370 requirement of § 315 of the Communications Act [ Footnote 1 ] that equal time be allotted all
qualified candidates for public office. Two aspects of the fairness
doctrine, relating to personal attacks in the context of
controversial public issues and to political editorializing, were
codified more precisely in the form of FCC regulations in 1967. The
two cases before us now, which were decided separately below,
challenge the constitutional and statutory bases of the doctrine
and component rules. Red Lion Page 395 U. S. 371 involves the application of the fairness doctrine to a
particular broadcast, and RTNDA arises as an action to
review the FCC's 1967 promulgation of the personal attack and
political editorializing regulations, which were laid down after
the Red Lion litigation had begun. I A The Red Lion Broadcasting Company is licensed to operate a
Pennsylvania radio station, WGCB. On November 27, 1964, WGCB
carried a 15-minute broadcast by the Reverend Billy James Hargis as
part of a "Christian Crusade" series. A book by Fred J. Cook
entitled "Goldwater -- Extremist on the Right" was discussed by
Hargis, who said that Cook had been fired by a newspaper for making
false charges against city officials; that Cook had then worked for
a Communist-affiliated publication; that he had defended Alger Hiss
and attacked J. Edgar Hoover and the Central Intelligence Agency,
and that he had now written a "book to smear and destroy Barry
Goldwater." [ Footnote 2 ] When
Cook heard of the broadcast, he Page 395 U. S. 372 concluded that he had been personally attacked and demanded free
reply time, which the station refused. After an exchange of letters
among Cook, Red Lion, and the FCC, the FCC declared that the Hargis
broadcast constituted a personal attack on Cook; that Red Lion had
failed to meet its obligation under the fairness doctrine as
expressed in Times-Mirror Broadcasting Co., 24 P & F
Radio Reg. 404 (1962), to send a tape, transcript, or summary of
the broadcast to Cook and offer him reply time, and that the
station must provide reply time whether or not Cook would pay for
it. On review in the Court of Appeals for the District of Columbia
Circuit, [ Footnote 3 ] the Page 395 U. S. 373 FCC's position was upheld as constitutional and otherwise
proper. 127 U.S.App.D.C. 129, 381 F.2d 908 (1967). B Not long after the Red Lion litigation was begun, the
FCC issued a Notice of Proposed Rule Making, 31 Fed.Reg. 5710, with
an eye to making the personal attack aspect of the fairness
doctrine more precise and more readily enforceable, and to
specifying its rules relating to political editorials. After
considering written comments supporting and opposing the rules, the
FCC adopted them substantially as proposed, 32 Fed.Reg. 10303.
Twice amended, 32 Fed.Reg. 11531, 33 Fed.Reg. 5362, the rules were
held unconstitutional in the RTNDA litigation by the Court
of Appeals for the Seventh Circuit, on review of the rulemaking
proceeding, as abridging the freedoms of speech and press. 400 F.2d
1002 (1968).

															As they now stand amended, the regulations read as follows:

															"Personal attacks; political editorials."

															"(a) When, during the presentation of views on a controversial
issue of public importance, an attack is made upon the honesty,
character, integrity or like personal qualities of an identified
person or group, the licensee shall, within a reasonable time and
in no event later than 1 week after the attack, transmit to the
person or group attacked(1) notification of the date, time and
identification of the broadcast; (2) a script or tape (or an
accurate summary if a script or tape is not available) of the Page 395 U. S. 374 attack, and (3) an offer of a reasonable opportunity to respond
over the licensee's facilities."

															"(b) The provisions of paragraph (a) of this section shall not
be applicable (1) to attacks on foreign groups or foreign public
figures; (2) to personal attacks which are made by legally
qualified candidates, their authorized spokesmen, or those
associated with them in the campaign, on other such candidates,
their authorized spokesmen, or persons associated with the
candidates in the campaign, and (3) to bona fide newscasts, bona
fide news interviews, and on-the-spot coverage of a bona fide news
event (including commentary or analysis contained in the foregoing
programs, but the provisions of paragraph (a) of this section shall
be applicable to editorials of the licensee)."

															"NOTE: The fairness doctrine is applicable to situations coming
within [(3)], above, and, in a specific factual situation, may be
applicable in the general area of political broadcasts [(2)],
above. See section 315(a) of the Act, 47 U.S.C. 315(a); Public
Notice: Applicability of the Fairness Doctrine in the Handling of
Controversial Issues of Public Importance. 29 F. R. 10415. The
categories listed in [(3)] are the same as those specified in
section 315(a) of the Act."

															"(c) Where a licensee, in an editorial, (i) endorses or (ii)
opposes a legally qualified candidate or candidates, the licensee
shall, within 24 hours after the editorial, transmit to
respectively (i) the other qualified candidate or candidates for
the same office or (ii) the candidate opposed in the editorial (1)
notification of the date and the time of the editorial; (2) a
script or tape of the editorial, and (3) an offer of a reasonable
opportunity for a candidate or a spokesman of the candidate to
respond over the Page 395 U. S. 375 licensee's facilities: Provided, however, That where
such editorials are broadcast within 72 hours prior to the day of
the election, the licensee shall comply with the provisions of this
paragraph sufficiently far in advance of the broadcast to enable
the candidate or candidates to have a reasonable opportunity to
prepare a response and to present it in a timely fashion."

															47 CFR §§ 73.123, 73.300, 73.598, 73.679 (all identical). C Believing that the specific application of the fairness doctrine
in Red Lion, and the promulgation of the regulations in RTNDA, are both authorized by Congress and enhance, rather
than abridge, the freedoms of speech and press protected by the
First Amendment, we hold them valid and constitutional, reversing
the judgment below in RTNDA and affirming the judgment
below in Red Lion. II The history of the emergence of the fairness doctrine and of the
related legislation shows that the Commission's action in the Red Lion case did not exceed its authority, and that, in
adopting the new regulations, the Commission was implementing
congressional 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 the result was chaos. [ Footnote 4 ] Page 395 U. S. 376 It quickly became apparent that broadcast frequencies
constituted a scarce resource whose use could be regulated and
rationalized only by the Government. Without government control,
the medium would be of little use because of the cacaphony of
competing voices, none of which could be clearly and predictably
heard. [ Footnote 5 ]
Consequently, the Federal Radio Commission was established Page 395 U. S. 377 to allocate frequencies among competing applicants in a manner
responsive to the public "convenience, interest, or necessity."
[ Footnote 6 ]

															Very shortly thereafter, the Commission expressed its view that
the

															"public interest requires ample play for the free and fair
competition of opposing views, and the commission believes that the
principle applies . . . to all discussions of issues of importance
to the public." Great Lakes Broadcasting Co., 3 F.R.C.Ann.Rep. 32, 33
(1929), rev'd on other grounds, 59 App.D.C.197, 37 F.2d
993, cert. dismissed, 281 U.S. 706 (1930). This doctrine
was applied through denial of license renewals or construction
permits, both by the FRC, Trinity Methodist Church, South v.
FRC, 61 App.D.C. 311, 62 F.2d 850 (1932), cert.
denied, 288 U.S. 599 (1933), and its successor FCC, Young
People's Association for the Propagation of the Gospel, 6
F.C.C. 178 (1938). After an extended period during which the
licensee was obliged not only to cover and to cover fairly the
views of others but also to refrain from expressing his own
personal views, Mayflower Broadcasting Corp., 8 F.C.C. 333
(1940), the latter limitation on the licensee was abandoned, and
the doctrine developed into its present form.

															There is a twofold duty laid down by the FCC's decisions and
described by the 1949 Report on Editorializing by Broadcast
Licensees, 13 F.C.C. 1246 (1949). The broadcaster must give
adequate coverage to public issues, United Broadcasting
Co., 10 F.C.C. 515 (1945), and coverage must be fair in that
it accurately reflects the opposing views. New Broadcasting
Co., 6 P & F Radio Reg. 258 (1950). This must be done at
the broadcaster's own expense if sponsorship is unavailable. Cullman Broadcasting Co., 25 P & F Radio Reg. 895
(1963). Page 395 U. S. 378 Moreover, the duty must be met by programming obtained at the
licensee's own initiative if available from no other source. John J. Dempsey, 6 P & F Radio Reg. 615 (1950); see Metropolitan Broadcasting Corp., 19 P & F Radio
Reg. 602 (1960); The Evening News Assn., 6 P & F Radio
Reg. 283 (1950). The Federal Radio Commission had imposed these two
basic duties on broadcasters since the outset, Great Lakes
Broadcasting Co., 3 F.R.C.Ann.Rep. 32 (1929), rev'd on
other grounds, 59 App.D.C.197, 37 F.2d 993, cert.
dismissed, 281 U.S. 706 (1930); Chicago Federation of
Labor v. FRC, 3 F.R.C.Ann.Rep. 36 (1029), aff'd, 59
App.D.C. 333, 41 F.2d 422 (1930); KFKB Broadcasting Assn. v.
FRC, 60 App.D.C. 79, 47 F.2d 670 (1931), and in particular
respects the personal attack rules and regulations at issue here
have spelled them out in greater detail.

															When a personal attack has been made on a figure involved in a
public issue, both the doctrine of cases such as Red Lion and Times-Mirror Broadcasting Co., 24 P & F Radio Reg.
404 (1962), and also the 1967 regulations at issue in RTNDA, require that the individual attacked himself be
offered an opportunity to respond. Likewise, where one candidate is
endorsed in a political editorial, the other candidates must
themselves be offered reply time to use personally or through a
spokesman. These obligations differ from the general fairness
requirement that issues be presented, and presented with coverage
of competing views, in that the broadcaster does not have the
option of presenting the attacked party's side himself or choosing
a third party to represent that side. But insofar as there is an
obligation of the broadcaster to see that both sides are presented,
and insofar as that is an affirmative obligation, the personal
attack doctrine and regulations do not differ from the preceding
fairness doctrine. The simple fact that the attacked men or
unendorsed candidates may respond themselves or through Page 395 U. S. 379 agents is not a critical distinction, and, indeed, it is not
unreasonable for the FCC to conclude that the objective of adequate
presentation of all sides may best be served by allowing those most
closely affected to make the response, rather than leaving the
response in the hands of the station which has attacked their
candidacies, endorsed their opponents, or carried a personal attack
upon them. B The statutory authority of the FCC to promulgate these
regulations derives from the mandate to the "Commission from time
to time, as public convenience, interest, or necessity requires" to
promulgate

															"such rules and regulations and prescribe such restrictions and
conditions . . . as may be necessary to carry out the provisions of
this chapter. . . ."

															47 U.S.C. § 303 and § 303(r). [ Footnote 7 ] The Commission is specifically directed to
consider the demands of the public interest in the course of
granting licenses, 47 U.S.C. §§ 307(a), 309(a); Page 395 U. S. 380 renewing them, 47 U.S.C. § 307, and modifying them. Ibid. Moreover, the FCC has included among the conditions
of the Red Lion license itself the requirement that operation of
the station be carried out in the public interest, 47 U.S.C. §
309(h). This mandate to the FCC to assure that broadcasters operate
in the public interest is a broad one, a power "not niggardly but
expansive," National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S. 219 (1943), whose validity we have long upheld. FCC v. Pottsville
Broadcasting Co., 309 U. S. 134 , 309 U. S. 138 (1940); FCC v. RCA Communications, Inc., 346 U. S.
86 , 346 U. S. 90 (1953); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933). It is broad enough to encompass these regulations.

															The fairness doctrine finds specific recognition in statutory
form, is in part modeled on explicit statutory provisions relating
to political candidates, and is approvingly reflected in
legislative history.

															In 1959, the Congress amended the statutory requirement of § 315
that equal time be accorded each political candidate to except
certain appearances on news programs, but added that this
constituted no exception

															" from the obligation imposed upon them under this Act to
operate in the public interest and to afford reasonable opportunity
for the discussion of conflicting views on issues of public
importance. "

															Act of September 14, 1959, § 1, 73 Stat. 557, amending 47 U.S.C.
§ 315(a) (emphasis added). This language makes it very plain that
Congress, in 1959, announced that the phrase "public interest,"
which had been in the Act since 1927, imposed a duty on
broadcasters to discuss both sides of controversial public issues.
In other words, the amendment vindicated the FCC's general view
that the fairness doctrine inhered in the public interest standard.
Subsequent legislation declaring the intent of an earlier
statute Page 395 U. S. 381 is entitled to great weight in statutory construction. [ Footnote 8 ] And here this principle is
given special force by the equally venerable principle that the
construction of a statute by those charged with its execution
should be followed unless there are compelling indications that it
is wrong, [ Footnote 9 ]
especially when Congress has refused to alter the administrative
construction. [ Footnote 10 ]
Here, the Congress has not just kept its silence by refusing to
overturn the administrative construction, [ Footnote 11 ] but has ratified it with Page 395 U. S. 382 positive legislation. Thirty years of consistent administrative
construction left undisturbed by Congress until 1959, when that
construction was expressly accepted, reinforce the natural
conclusion that the public interest language of the Act authorized
the Commission to require licensees to use their stations for
discussion of public issues, and that the FCC is free to implement
this requirement by reasonable rules and regulations which fall
short of abridgment of the freedom of speech and press, and of the
censorship proscribed by § 326 of the Act. [ Footnote 12 ]

															The objectives of § 315 themselves could readily be circumvented
but for the complementary fairness doctrine ratified by § 315. The
section applies only to campaign appearances by candidates, and not
by family, friends, campaign managers, or other supporters. Without
the fairness doctrine, then, a licensee could ban all campaign
appearances by candidates themselves from the air [ Footnote 13 ] and Page 395 U. S. 383 proceed to deliver over his station entirely to the supporters
of one slate of candidates, to the exclusion of all others. In this
way, the broadcaster could have a far greater impact on the favored
candidacy than he could by simply allowing a spot appearance by the
candidate himself. It is the fairness doctrine as an aspect of the
obligation to operate in the public interest, rather than § 315,
which prohibits the broadcaster from taking such a step.

															The legislative history reinforces this view of the effect of
the 1959 amendment. Even before the language relevant here was
added, the Senate report on amending § 315 noted that

															"broadcast frequencies are limited, and, therefore, they have
been necessarily considered a public trust. Every licensee who is
fortunate in obtaining a license is mandated to operate in the
public interest, and has assumed the obligation of presenting
important public questions fairly and without bias."

															S.Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). See
also, specifically adverting to Federal Communications
Commission doctrine, id. at 13.

															Rather than leave this approval solely in the legislative
history, Senator Proxmire suggested an amendment to make it part of
the Act. 105 Cong.Rec. 14457. This amendment, which Senator
Pastore, a manager of the bill and a ranking member of the Senate
Committee, considered "rather surplusage," 105 Cong.Rec. 14462,
constituted a positive statement of doctrine, [ Footnote 14 ] and was altered Page 395 U. S. 384 to the present merely approving language in the conference
committee. In explaining the language to the Senate after the
committee changes, Senator Pastore said:

															"We insisted that that provision remain in the bill, to be a
continuing reminder and admonition to the Federal Communications
Commission and to the broadcasters alike that we were not
abandoning the philosophy that gave birth to section 316, in giving
the people the right to have a full and complete disclosure of
conflicting views on news of interest to the people of the
country."

															105 Cong.Rec. 17830. Senator Scott, another Senate manager,
added that: "It is intended to encompass all legitimate areas of
public importance which are controversial," not just politics. 105
Cong.Rec. 17831.

															It is true that the personal attack aspect of the fairness
doctrine was not actually adjudicated until after 1959, so that
Congress then did not have those rules specifically before it.
However, the obligation to offer time to reply to a personal attack
was presaged by the FCC's 1949 Report on Editorializing, which the
FCC views as the principal summary of its ratio decidendi in cases in this area:

															"In determining whether to honor specific requests for time, the
station will inevitably be confronted with such questions as . . .
whether there may not be other available groups or individuals who
might be more appropriate spokesmen for the particular point of
view than the person making the request. The latter's personal
involvement in the controversy may also be a factor which must be
considered, for elementary considerations of fairness may dictate
that time be allocated to a person or group which has been
specifically attacked over the station, where otherwise no such
obligation would exist."

															13 F.C.C. at 1251-1252. Page 395 U. S. 385 When the Congress ratified the FCC's implication of a fairness
doctrine in 1959, it did not, of course, approve every past
decision or pronouncement by the Commission on this subject, or
give it a completely free hand for the future. The statutory
authority does not go so far. But we cannot say that, when a
station publishes personal attacks or endorses political
candidates, it is a misconstruction of the public interest standard
to require the station to offer time for a response, rather than to
leave the response entirely within the control of the station which
has attacked either the candidacies or the men who wish to reply in
their own defense. When a broadcaster grants time to a political
candidate, Congress itself requires that equal time be offered to
his opponents. It would exceed our competence to hold that the
Commission is unauthorized by the statute to employ a similar
device where personal attacks or political editorials are broadcast
by a radio or television station.

															In light of the fact that the "public interest" in broadcasting
clearly encompasses the presentation of vigorous debate of
controversial issues of importance and concern to the public, the
fact that the FCC has rested upon that language from its very
inception a doctrine that these issues must be discussed, and
fairly, and the fact that Congress has acknowledged that the
analogous provisions of § 315 are not preclusive in this area, and
knowingly preserved the FCC's complementary efforts, we think the
fairness doctrine and its component personal attack and political
editorializing regulations are a legitimate exercise of
congressionally delegated authority. The Communications Act is not
notable for the precision of its substantive standards, and, in
this respect the explicit provisions of § 315, and the doctrine and
rules at issue here which are closely modeled upon that section,
are far more explicit than the generalized "public interest"
standard in which the Commission ordinarily finds its Page 395 U. S. 386 sole guidance, and which we have held a broad but adequate
standard before. FCC v. RCA Communications, Inc., 346 U. S. 86 , 346 U. S. 90 (1953); National Broadcasting Co. v. United States, 319 U. S. 190 , 319 U. S.
216 -217 (1943); FCC v. Pottsville Broadcasting
Co., 309 U. S. 134 , 309 U. S. 138 (1940); FRC v. Nelson Bros. Bond & Mortgage Co., 289 U. S. 266 , 289 U. S. 285 (1933). We cannot say that the FCC's declaratory ruling in Red
Lion, or the regulations at issue in RTNDA, are
beyond the scope of the congressionally conferred power to assure
that stations are operated by those whose possession of a license
serves "the public interest." III The broadcasters challenge the fairness doctrine and its
specific manifestations in the personal attack and political
editorial rules on conventional First Amendment grounds, alleging
that the rules abridge their freedom of speech and press. Their
contention is that the First Amendment protects their desire to use
their allotted frequencies continuously to broadcast whatever they
choose, and to exclude whomever they choose from ever using that
frequency. No man may be prevented from saying or publishing what
he thinks, or from refusing in his speech or other utterances to
give equal weight to the views of his opponents. This right, they
say, applies equally to broadcasters. A Although broadcasting is clearly a medium affected by a First
Amendment interest, United States v. Paramount Pictures,
Inc., 334 U. S. 131 , 334 U. S. 166 (1948), differences in the characteristics of new media justify
differences in the First Amendment standards applied to them.
[ Footnote 15 ] Joseph Page 395 U. S. 387 Burstyn, Inc. v. Wilson, 343 U.
S. 495 , 343 U. S. 503 (1352). For example, the ability of new technology to produce
sounds more raucous than those of the human voice justifies
restrictions on the sound level, and on the hours and places of
use, of sound trucks so long as the restrictions are reasonable and
applied without discrimination. Kovacs v. Cooper, 336 U. S. 77 (1949).

															Just as the Government may limit the use of sound-amplifying
equipment potentially so noisy that it drowns out civilized private
speech, so may the Government limit the use of broadcast equipment.
The right of free speech of a broadcaster, the user of a sound
truck, or any other individual does not embrace a right to snuff
out the free speech of others. Associated Press v. United
States, 326 U. S. 1 , 326 U. S. 20 (1945).

															When two people converse face to face, both should not speak at
once if either is to be clearly understood. But the range of the
human voice is so limited that there could be meaningful
communications if half the people in the United States were talking
and the other half listening. Just as clearly, half the people
might publish and the other half read. But the reach of radio
signals is Page 395 U. S. 388 incomparably greater than the range of the human voice, and the
problem of interference is a massive reality. The lack of know-how
and equipment may keep many from the air, but only a tiny fraction
of those with resources and intelligence can hope to communicate by
radio at the same time if intelligible communication is to be had,
even if the entire radio spectrum is utilized in the present state
of commercially acceptable technology.

															It was this fact, and the chaos which ensued from permitting
anyone to use any frequency at whatever power level he wished,
which made necessary the enactment of the Radio Act of 1927 and the
Communications Act of 1934, [ Footnote 16 ] as the Court has noted at length before. National Broadcasting Co. v. United States, 319 U.
S. 190 , 319 U. S.
210 -214 (1943). It was this reality which, at the very
least, necessitated first the division of the radio spectrum into
portions reserved respectively for public broadcasting and for
other important radio uses such as amateur operation, aircraft,
police, defense, and navigation, and then the subdivision of each
portion, and assignment of specific frequencies to individual users
or groups of users. Beyond this, however, because the frequencies
reserved for public broadcasting were limited in number, it was
essential for the Government to tell some applicants that they
could not broadcast at all, because there was room for only a
few.

															Where there are substantially more individuals who want to
broadcast than there are frequencies to allocate, it is idle to
posit an unabridgeable First Amendment right to broadcast
comparable to the right of every individual to speak, write, or
publish. If 100 persons want broadcast Page 395 U. S. 389 licenses, but there are only 10 frequencies to allocate, all of
them may have the same "right" to a license, but, if there is to be
any effective communication by radio, only a few can be licensed,
and the rest must be barred from the airwaves. It would be strange
if the First Amendment, aimed at protecting and furthering
communications, prevented the Government from making radio
communication possible by requiring licenses to broadcast and by
limiting the number of licenses so as not to overcrowd the
spectrum.

															This has been the consistent view of the Court. Congress
unquestionably has the power to grant and deny licenses and to
eliminate existing stations. FRC v. Nelson Bros. Bond &
Mortgage Co., 289 U. S. 266 (1933). No one has a First Amendment right to a license or to
monopolize a radio frequency; to deny a station license because
"the public interest" requires it "is not a denial of free speech." National Broadcasting Co. v. United States, 319 U.
S. 190 , 319 U. S. 227 (1943).

															By the same token, as far as the First Amendment is concerned,
those who are licensed stand no better than those to whom licenses
are refused. A license permits broadcasting, but the licensee has
no constitutional right to be the one who holds the license or to
monopolize a radio frequency to the exclusion of his fellow
citizens. 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.

															This is not to say that the First Amendment is irrelevant to
public broadcasting. On the contrary, it has a major role to play,
as the Congress itself recognized in § 326, which forbids FCC
interference with "the right Page 395 U. S. 390 of free speech by means of radio communication." Because of the
scarcity of radio frequencies, the Government is permitted to put
restraints on licensees in favor of others whose views should be
expressed on this unique medium. But the people as a whole retain
their interest in free speech by radio and their collective right
to have the medium function consistently with the ends and purposes
of the First Amendment. It is the right of the viewers and
listeners, not the right of the broadcasters, which is paramount. See FCC v. Sanders Bros. Radio Station, 309 U.
S. 470 , 309 U. S. 475 (1940); FCC v. Allentown Broadcasting Corp., 349 U.
S. 358 , 349 U. S.
361 -362 (1955); 2 Z. Chafee, Government and Mass
Communications 546 (1947). It is the purpose of the First Amendment
to preserve an uninhibited marketplace of ideas in which truth will
ultimately prevail, rather than to countenance monopolization of
that market, whether it be by the Government itself or a private
licensee. Associated Press v. United States, 326 U. S.
1 , 326 U. S. 20 (1945); New York Times Co. v. Sullivan, 376 U.
S. 254 , 376 U. S. 270 (1964); Abrams v. United States, 250 U.
S. 616 , 250 U. S. 630 (1919) (Holmes, J., dissenting). "[S]peech concerning public
affairs is more than self-expression; it is the essence of
self-government." Garrison v. Louisiana, 379 U. S.
64 , 379 U. S. 74 -75
(1964). See Brennan, The Supreme Court and the Meiklejohn
Interpretation of the First Amendment, 79 Harv.L.Rev. 1 (1965). It
is the right of the public to receive suitable access to social,
political, esthetic, moral, and other ideas and experiences which
is crucial here. That right may not constitutionally be abridged
either by Congress or by the FCC. B Rather than confer frequency monopolies on a relatively small
number of licensees, in a Nation of 200,000,000, the Government
could surely have decreed that Page 395 U. S. 391 each frequency should be shared among all or some of those who
wish to use it, each being assigned a portion of the broadcast day
or the broadcast week. The ruling and regulations at issue here do
not go quite so far. They assert that, under specified
circumstances, a licensee must offer to make available a reasonable
amount of broadcast time to those who have a view different from
that which has already been expressed on his station. The
expression of a political endorsement, or of a personal attack
while dealing with a controversial public issue, simply triggers
this time-sharing. As we have said, the First Amendment confers no
right on licensees to prevent others from broadcasting on "their"
frequencies, and no right to an unconditional monopoly of a scarce
resource which the Government has denied others the right to
use.

															In terms of constitutional principle, and as enforced sharing of
a scarce resource, the personal attack and political editorial
rules are indistinguishable from the equal time provision of § 315,
a specific enactment of Congress requiring stations to set aside
reply time under specified circumstances and to which the fairness
doctrine and these constituent regulations are important
complements. That provision, which has been part of the law since
1927, Radio Act of 1927, § 18, 44 Stat. 1170, has been held valid
by this Court as an obligation of the licensee relieving him of any
power in any way to prevent or censor the broadcast, and thus
insulating him from liability for defamation. The constitutionality
of the statute under the First Amendment was unquestioned.
[ Footnote 17 ] Farmers
Educ. & Coop. Union v. WDAY, 360 U.
S. 525 (1959). Page 395 U. S. 392 Nor can we say that it is inconsistent with the First Amendment
goal of producing an informed public capable of conducting its own
affairs to require a broadcaster to permit answers to personal
attacks occurring in the course of discussing controversial issues,
or to require that the political opponents of those endorsed by the
station be given a chance to communicate with the public. [ Footnote 18 ] Otherwise, station
owners and a few networks would have unfettered power to make time
available only to the highest bidders, to communicate only their
own views on public issues, people and candidates, and to permit on
the air only those with whom they agreed. There is no sanctuary in
the First Amendment for unlimited private censorship operating in a
medium not open to all.

															"Freedom of the press from governmental interference under the
First Amendment does not sanction repression of that freedom by
private interests."

															" Associated Press v. United States, 326 U. S. 1 , 326 U. S. 20 (1945)." C It is strenuously argued, however, that, if political editorials
or personal attacks will trigger an obligation in broadcasters to
afford the opportunity for expression Page 395 U. S. 393 to speakers who need not pay for time and whose views are
unpalatable to the licensees, then broadcasters will be
irresistibly forced to self-censorship, and their coverage of
controversial public issues will be eliminated, or at least
rendered wholly ineffective. Such a result would indeed be a
serious matter, for, should licensees actually eliminate their
coverage of controversial issues, the purposes of the doctrine
would be stifled.

															At this point, however, as the Federal Communications Commission
has indicated, that possibility is, at best, speculative. The
communications industry, and, in particular, the networks, have
taken pains to present controversial issues in the past, and even
now they do not assert that they intend to abandon their efforts in
this regard. [ Footnote 19 ]
It would be better if the FCC's encouragement were never necessary
to induce the broadcasters to meet their responsibility. And if
experience with the administration of these doctrines indicates
that they have the net effect of reducing, rather than enhancing,
the volume and quality of coverage, there will be time enough to
reconsider the constitutional implications. The fairness doctrine
in the past has had no such overall effect.

															That this will occur now seems unlikely, however, since, if
present licensees should suddenly prove timorous, the Commission is
not powerless to insist that they give adequate and fair attention
to public issues. Page 395 U. S. 394 It does not violate the First Amendment to treat licensees given
the privilege of using scarce radio frequencies as proxies for the
entire community, obligated to give suitable time and attention to
matters of great public concern. To condition the granting or
renewal of licenses on a willingness to present representative
community views on controversial issues is consistent with the ends
and purposes of those constitutional provisions forbidding the
abridgment of freedom of speech and freedom of the press. Congress
need not stand idly by and permit those with licenses to ignore the
problems which beset the people or to exclude from the airways
anything but their own views of fundamental questions. The statute,
long administrative practice, and cases are to this effect.

															Licenses to broadcast do not confer ownership of designated
frequencies, but only the temporary privilege of using them. 47
U.S.C. § 301. Unless renewed, they expire within three years. 47
U.S.C. § 307(d). The statute mandates the issuance of licenses if
the "public convenience, interest, or necessity will be served
thereby." 47 U.S.C. § 307(a). In applying this standard, the
Commission for 40 years has been choosing licensees based in part
on their program proposals. In FRC v. Nelson Bros. Bond &
Mortgage Co., 289 U. S. 266 , 289 U. S. 279 (1933), the Court noted that, in "view of the limited number of
available broadcasting frequencies, the Congress has authorized
allocation and licenses." In determining how best to allocate
frequencies, the Federal Radio Commission considered the needs of
competing communities and the programs offered by competing
stations to meet those needs; moreover, if needs or programs
shifted, the Commission could alter its allocations to reflect
those shifts. Id. at 289 U. S. 285 .
In the same vein, in FCC v. Pottsville Broadcasting Co., 309 U. S. 134 , 309 U. S.
137 -138 (1940), the Court noted that Page 395 U. S. 395 the statutory standard was a supple instrument to effect
congressional desires "to maintain . . . a grip on the dynamic
aspects of radio transmission" and allay fears that, "in the
absence of governmental control, the public interest might be
subordinated to monopolistic domination in the broadcasting field."
Three years later, the Court considered the validity of the
Commission's chain broadcasting regulations, which, among other
things, forbade stations from devoting too much time to network
programs in order that there be suitable opportunity for local
programs serving local needs. The Court upheld the regulations,
unequivocally recognizing that the Commission was more than a
traffic policeman concerned with the technical aspects of
broadcasting and that it neither exceeded its powers under the
statute nor transgressed the First Amendment in interesting itself
in general program format and the kinds of programs broadcast by
licensees. National Broadcasting Co. v. United States, 319 U. S. 190 (1943). D The litigants embellish their First Amendment arguments with the
contention that the regulations are so vague that their duties are
impossible to discern. Of this point it is enough to say that,
judging the validity of the regulations on their face as they are
presented here, we cannot conclude that the FCC has been left a
free hand to vindicate its own idiosyncratic conception of the
public interest or of the requirements of free speech. Past
adjudications by the FCC give added precision to the regulations;
there was nothing vague about the FCC's specific ruling in Red
Lion that Fred Cook should be provided an opportunity to
reply. The regulations at issue in RTNDA could be employed
in precisely the same way as the fairness doctrine was in Red
Lion. Moreover, the FCC itself has recognized that Page 395 U. S. 396 the applicability of its regulations to situations beyond the
scope of past cases may be questionable, 32 Fed.Reg. 10303, 10304
and n. 6, and will not impose sanctions in such cases without
warning. We need not approve every aspect of the fairness doctrine
to decide these cases, and we will not now pass upon the
constitutionality of these regulations by envisioning the most
extreme applications conceivable, United States v.
Sullivan, 332 U. S. 689 , 332 U. S. 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 to programming. There is no question here of
the Commission's refusal to permit the broadcaster to carry a
particular program or to publish his own views; of a discriminatory
refusal to require the licensee to broadcast certain views which
have been denied access to the airwaves; of government censorship
of a particular program contrary to § 326; or of the official
government view dominating public broadcasting. Such questions
would raise more serious First Amendment issues. But we do hold
that the Congress and the Commission do not violate the First
Amendment when they require a radio or television station to give
reply time to answer personal attacks and political editorials. E It is argued that, even if, at one time, the lack of available
frequencies for all who wished to use them justified the
Government's choice of those who would best serve the public
interest by acting as proxy for those who would present differing
views, or by giving the latter access directly to broadcast
facilities, this condition no longer prevails, so that continuing
control is not justified. To this there are several answers.

															Scarcity is not entirely a thing of the past. Advances Page 395 U. S. 397 in technology, such as microwave transmission, have led to more
efficient utilization of the frequency spectrum, but uses for that
spectrum have also gown apace. [ Footnote 20 ] Portions of the spectrum must be reserved
for vital uses unconnected with human communication, such as
radionavigational aids used by aircraft and vessels. Conflicts have
even emerged between such vital functions as defense preparedness
and experimentation in methods of averting mid-air collisions
through radio warning devices. [ Footnote 21 ] "Land mobile services" such as police,
ambulance, fire department, public utility, and other
communications systems have been occupying an increasingly crowded
portion of the frequency spectrum, [ Footnote 22 ] and there are, apart from licensed amateur
radio operators' equipment, 5,000,000 transmitters operated on the
"citizens' band," which is also increasingly congested. [ Footnote 23 ] Among the various uses
for radio frequency space, including marine, Page 395 U. S. 398 aviation, amateur, military, and common carrier users, there are
easily enough claimants to permit use of the whole with an even
smaller allocation to broadcast radio and television uses than now
exists.

															Comparative hearings between competing applicants for broadcast
spectrum space are by no means a thing of the past. The radio
spectrum has become so congested that, at times, it has been
necessary to suspend new applications. [ Footnote 24 ] The very high frequency television
spectrum is, in the country's major markets, almost entirely
occupied, although space reserved for ultra high frequency
television transmission, which is a relatively recent development
as a commercially viable alternative, has not yet been completely
filled. [ Footnote 25 ] Page 395 U. S. 399 The rapidity with which technological advances succeed one
another to create more efficient use of spectrum space, on the one
hand, and to create new uses for that space by ever-growing numbers
of people, on the other, makes it unwise to speculate on the future
allocation of that space. It is enough to say that the resource is
one of considerable and growing importance whose scarcity impelled
its regulation by an agency authorized by Congress. Nothing in this
record, or in our own researches, convinces us that the resource is
no longer one for which there are more immediate and potential uses
than can be accommodated, and for which wise planning is essential.
[ Footnote 26 ] This does not
mean, of course, that every possible wavelength must be occupied at
every hour by some vital use in order to sustain the congressional
judgment. The Page 395 U. S. 400 substantial capital investment required for many uses, in
addition to the potentiality for confusion and interference
inherent in any scheme for continuous kaleidoscopic reallocation of
all available space may make this unfeasible. The allocation need
not be made at such a breakneck pace that the objectives of the
allocation are themselves imperiled. [ Footnote 27 ]

															Even where there are gaps in spectrum utilization, the fact
remains that existing broadcasters have often attained their
present position because of their initial government selection in
competition with others before new technological advances opened
new opportunities for further uses. Long experience in
broadcasting, confirmed habits of listeners and viewers, network
affiliation, and other advantages in program procurement give
existing broadcasters a substantial advantage over new entrants,
even where new entry is technologically possible. These advantages
are the fruit of a preferred position conferred by the Government.
Some present possibility for new entry by competing stations is not
enough, in itself, to render unconstitutional the Government's
effort to assure that a broadcaster's programming ranges widely
enough to serve the public interest.

															In view of the scarcity of broadcast frequencies, the
Government's role in allocating those frequencies, and the
legitimate claims of those unable without governmental assistance
to gain access to those frequencies for expression of their views,
we hold the regulations and Page 395 U. S. 401 ruling at issue here are both authorized by statute and
constitutional. [ Footnote
28 ] The judgment of the Court of Appeals in Red Lion is affirmed and that in RTNDA reversed, and the causes
remanded for proceedings consistent with this opinion. It is so ordered. Not having heard oral argument in these cases, MR. JUSTICE
DOUGLAS took no part in the Court's decision.

															* 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.

															[ Footnote 1 ]

															Communications Act of 1934, Tit. III, 48 Stat. 1081, as amended,
47 U.S.C. § 301 et seq. Section 315 now reads:

															"315. Candidates for public office; facilities; rules."

															"(a) If any licensee shall permit any person who is a legally
qualified candidate for any public office to use a broadcasting
station, he shall afford equal opportunities to all other such
candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of
censorship over the material broadcast under the provisions of this
section. No obligation is imposed upon any licensee to allow the
use of its station by any such candidate. Appearance by a legally
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 the presentation of the subject or
subjects covered by the news documentary), or"

															"(4) on-the-spot coverage of bona fide news events (including
but not limited to political conventions and activities incidental
thereto),"

															"shall not be deemed to be use of a broadcasting station within
the meaning of this subsection. Nothing in the foregoing sentence
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."

															"(b) The charges made for the use of any broadcasting station
for any of the purposes set forth in this section shall not exceed
the charges made for comparable use of such station for other
purposes."

															"(c) The Commission shall prescribe appropriate rules and
regulations to carry out the provisions of this section."

															[ Footnote 2 ]

															According to the record, Hargis asserted that his broadcast
included the following statement:

															"Now, this paperback book by Fred J. Cook is entitled,
'GOLDWATER -- EXTREMIST ON THE RIGHT.' Who is Cook? Cook was fired
from the New York World Telegram after he made a false charge
publicly on television against an unnamed official of the New York
City government. New York publishers and NEWSWEEK Magazine for
December 7, 1959, showed that Fred Cook and his pal, Eugene
Gleason, had made up the whole story, and this confession was made
to New York District Attorney, Frank Hogan. After losing his job,
Cook went to work for the left-wing publication THE NATION, one of
the most scurrilous publications of the left which has championed
many communist causes over many years. Its editor, Carry
McWilliams, has been affiliated with many communist enterprises,
scores of which have been cited as subversive by the Attorney
General of the U.S. or by other government agencies. . . . Now,
among other things Fred Cook wrote for THE NATION was an article
absolving Alger Hiss of any wrongdoing . . . ; there was a 208-page
attack on the FBI and J. Edgar Hoover; another attack by Mr. Cook
was on the Central Intelligence Agency . . . ; now this is the man
who wrote the book to smear and destroy Barry Goldwater called
'Barry Goldwater -- Extremist Of The Right.'"

															[ Footnote 3 ]

															The Court of Appeals initially dismissed the petition for want
of a reviewable order, later reversing itself en banc upon argument
by the Government that the FCC rule used here, which permits it to
issue "a declaratory ruling terminating a controversy or removing
uncertainty," 47 CFR § 312, was, in fact, justified by the
Administrative Procedure Act. That Act permits an adjudicating
agency, "in its sound discretion, with like effect as in the case
of other orders, to issue a declaratory order to terminate a
controversy or remove uncertainty." § 5, 60 Stat. 239, 5 U.S.C. §
1004(d). In this case, the FCC could have determined the question
of Red Lion's liability to a cease and desist order or license
revocation, 47 U.S.C. § 312, for failure to comply with the
license's condition that the station be operated "in the public
interest," or for failure to obey a requirement of operation in the
public interest implicit in the ability of the FCC to revoke
licenses for conditions justifying the denial of an initial
license, 47 U.S.C. § 312(a)(2), and the statutory requirement that
the public interest be served in granting and renewing licenses, 47
U.S.C. §§ 307(a), (d). Since the FCC could have adjudicated these
questions it could, under the Administrative Procedure Act, have
issued a declaratory order in the course of its adjudication which
would have been subject to judicial review. Although the FCC did
not comply with all of the formalities for an adjudicative
proceeding in this case, the petitioner itself adopted as its own
the Government's position that this was a reviewable order, waiving
any objection it might have had to the procedure of the
adjudication.

															[ Footnote 4 ]

															Because of this chaos, a series of National Radio Conferences
was held between 1922 and 1925, at which it was resolved that
regulation of the radio spectrum by the Federal Government was
essential, and that regulatory power should be utilized to ensure
that allocation of this limited resource would be made only to
those who would serve the public interest. The 1923 Conference
expressed the opinion that the Radio Communications Act of 1912, 37
Stat. 302, conferred upon the Secretary of Commerce the power to
regulate frequencies and hours of operation, but when Secretary
Hoover sought to implement this claimed power by penalizing the
Zenith Radio Corporation for operating on an unauthorized
frequency, the 1912 Act was held not to permit enforcement. United States v. Zenith Radio Corporation, 12 F.2d 614 (D.C.N.D.Ill.1926). Cf. Hoover v. Intercity Radio Co., 52
App.D.C. 339, 286 F. 1003 (1923) (Secretary had no power to deny
licenses, but was empowered to assign frequencies). An opinion
issued by the Attorney General at Hoover's request confirmed the
impotence of the Secretary under the 1912 Act. 35 Op.Atty.Gen. 126
(1926). Hoover thereafter appealed to the radio industry to
regulate itself, but his appeal went largely unheeded. See
generally L. Schmeckebier, The Federal Radio Commission 1-14
(1932).

															[ Footnote 5 ]

															Congressman White, a sponsor of the bill enacted as the Radio
Act of 1927, commented upon the need for new legislation:

															"We have reached the definite conclusion that the right of all
our people to enjoy this means of communication can be preserved
only by the repudiation of the idea underlying the 1912 law that
anyone who will may transmit and by the assertion in its stead of
the doctrine that the right of the public to service is superior to
the right of any individual. . . . The recent radio conference met
this issue squarely. It recognized that, in the present state of
scientific development, there must be a limitation upon the number
of broadcasting stations, and it recommended that licenses should
be issued only to those stations whose operation would render a
benefit to the public, are necessary in the public interest, or
would contribute to the development of the art. This principle was
approved by every witness before your committee. We have written it
into the bill. If enacted into law, the broadcasting privilege will
not be a right of selfishness. It will rest upon an assurance of
public interest to be served."

															67 Cong.Rec. 5479.

															[ Footnote 6 ]

															Radio Act of 1927, § 4, 44 Stat. 1163. See generally Davis, The Radio Act of 1927, 13 Va.L.Rev. 611 (1927).

															[ Footnote 7 ]

															As early as 1930, Senator Dill expressed the view that the
Federal Radio Commission had the power to make regulations
requiring a licensee to afford an opportunity for presentation of
the other side on "public questions." Hearings before the Senate
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 requires a station to give equal opportunity to
candidates for office shall be applied to all public
questions?"

															"Commissioner ROBINSON. Of course, I think, in the legal
concept, the law requires it now. I do not see that there is any
need to legislate about it. It will evolve one of these days.
Somebody will go into court and say, 'I am entitled to this
opportunity,' and he will get it."

															"Senator DILL. Has the Commission considered the question of
making regulations requiring the stations to do that?"

															"Commissioner ROBINSON. Oh, no."

															"Senator DILL. It would be within the power of the commission, I
think, to make regulations on that subject."

															[ Footnote 8 ] Federal Housing Administration v. Darlington, Inc., 358 U. S. 84 , 358 U. S. 90 (1958); Glidden Co. v. Zdanok, 370 U.
S. 530 , 370 U. S. 541 (1962) (opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE
BRENNAN and MR. JUSTICE STEWART). This principle is a venerable
one. Alexander v.
Alexandria , 5 Cranch 1 (1809); United
States v. Freeman , 3 How. 556 (1845); Stockdale v. The Insurance
Companies , 20 Wall. 323 (1874).

															[ Footnote 9 ] Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12
(1965); Udall v. Tallman, 380 U. S.
1 , 380 U. S. 16 -18
(1965); Commissioner v. Sternberger's Estate, 348 U.
S. 187 , 348 U. S. 199 (1955); Hastings & D. R. Co. v. Whitney, 132 U.
S. 357 , 132 U. S. 366 (1889); United States v. Burlington & Missouri River R.
Co., 98 U. S. 334 , 98 U. S. 341 (1879); United States v.
Alexander , 12 Wall. 177, 79 U. S.
179 -181 (1871); Surgett v.
Lapice , 8 How. 48, 49 U. S. 68 (1850).

															[ Footnote 10 ] Zemel v. Rusk, 381 U. S. 1 , 381 U. S. 11 -12
(1965); United States v. Bergh, 352 U. S.
40 , 352 U. S. 46 -47
(1956); Alstate Construction Co. v. Durkin, 345 U. S.
13 , 345 U. S. 16 -17
(1953); Costanzo v. Tillinghast, 287 U.
S. 341 , 287 U. S. 345 (1932).

															[ Footnote 11 ]

															An attempt to limit sharply the FCC's power to interfere with
programming practices failed to emerge from Committee in 1943. S.
814, 78th Cong., 1st Sess. (1943). See Hearings on S. 814
before the Senate Committee on Interstate Commerce, 78th Cong., 1st
Sess. (1943). Also, attempts specifically to enact the doctrine
failed in the Radio Act of 1927, 67 Cong.Rec. 12505 (1926)
(agreeing to amendment proposed by Senator Dill eliminating
coverage of "question affecting the public"), and a similar
proposal in the Communications Act of 1934 was accepted by the
Senate, 78 Cong.Rec. 8854 (1934); see S.Rep. No. 781, 73d
Cong., 2d Sess., 8 (1934), but was not included in the bill
reported by the House Committee, see H.R.Rep. No. 1850,
73d Cong., 2d Sess. (1934). The attempt which came nearest success
was a bill, H.R. 7716, 72d Cong., 1st Sess. (1932), passed by
Congress but pocket-vetoed by the President in 1933, which would
have extended "equal opportunities" whenever a public question was
to be voted on at an election or by a government agency. H.R.Rep.
No. 2106, 72d Cong., 2d Sess., 6 (1933). In any event, unsuccessful
attempts at legislation are not the best of guides to legislative
intent. Fogarty v. United States, 340 U. S.
8 , 340 U. S. 13 -14
(1950); United States v. United Mine Workers, 330 U.
S. 258 , 330 U. S.
281 -282 (1947). A review of some of the legislative
history over the years, drawing a somewhat different conclusion, is
found in Staff Study of the House Committee on Interstate and
Foreign Commerce, Legislative History of the Fairness Doctrine,
90th Cong., 2d Sess. (Comm.Print.1968). This inconclusive history
was, of course, superseded by the specific statutory language added
in 1959.

															[ Footnote 12 ]

															"§ 326. Censorship."

															"Nothing in this chapter shall be understood or construed to
give the Commission the power of censorship over the radio
communications or signals transmitted by any radio station, and no
regulation or condition shall be promulgated or fixed by the
Commission which shall interfere with the right of free speech by
means of radio communication."

															[ Footnote 13 ]

															John P. Crommelin, 19 P & F Radio Reg. 1392 (1960).

															[ Footnote 14 ]

															The Proxmire amendment read:

															"[B]ut nothing in this sentence shall be construed as changing
the basic intent of Congress with respect to the provisions of this
act, which recognizes that television and radio frequencies are in
the public domain, that the license to operate in such frequencies
requires operation in the public interest, and that, in newscasts,
news interviews, news documentaries, on-the-spot coverage of news
events, and panel discussions, all sides of public controversies
shall be given as equal an opportunity to be heard as is
practically possible."

															105 Cong.Rec. 14457.

															[ Footnote 15 ]

															The general problems raised by a technology which supplants
atomized, relatively informal communication with mass media as a
prime source of national cohesion and news were discussed at
considerable length by Zechariah Chafee in Government and Mass
Communications (1947). Debate on the particular implications of
this view for the broadcasting industry has continued unabated. A
compendium of views appears in Freedom and Responsibility in
Broadcasting (J. Coons ed.) (1961). See also Kalven,
Broadcasting, Public Policy and the First Amendment, 10 J.Law &
Econ. 15 (1967); M. Ernst, The First Freedom 125-180 (1946); T.
Robinson, Radio Networks and the Federal Government, especially at
75-87 (1943). The considerations which the newest technology brings
to bear on the particular problem of this litigation are concisely
explored by Louis Jaffe in The Fairness Doctrine, Equal Time, Reply
to Personal Attacks, and the Local Service Obligation; Implications
of Technological Change, Printed for Special Subcommittee on
Investigations of the House Committee on Interstate and Foreign
Commerce (1968).

															[ Footnote 16 ]

															The range of controls which have in fact, been imposed over the
last 40 years, without giving rise to successful constitutional
challenge in this Court, is discussed in W. Emery, Broadcasting and
Government: Responsibilities and Regulations (1961); Note,
Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701
(1964).

															[ Footnote 17 ]

															This has not prevented vigorous argument from developing on the
constitutionality of the ancillary FCC doctrines. Compare Barrow, The Equal Opportunities and Fairness Doctrines in
Broadcasting: Pillars in the Forum of Democracy, 37 U.Cin.L.Rev.
447 (1968), with Rohinson, The FCC and the First
Amendment: Observations on 40 Years of Radio and Television
Regulation, 52 Minn.L.Rev. 67 (1967), and Sullivan, Editorials and
Controversy: The Broadcaster's Dilemma, 32 Geo.Wash.L.Rev. 719
(1964).

															[ Footnote 18 ]

															The expression of views opposing those which broadcasters permit
to be aired in the first place need not be confined solely to the
broadcasters themselves as proxies.

															"Nor is it enough that he should hear the arguments of
adversaries from his own teachers, presented as they state them,
and accompanied by what they offer as refutations. That is not the
way to do justice to the arguments, or bring them into real contact
with his own mind. He must be able to hear them from persons who
actually believe them; who defend them in earnest, and do their
very utmost for them."

															J. Mill, On Liberty 32 (R. McCallum ed.1947).

															[ Footnote 19 ]

															The President of the Columbia Broadcasting System has recently
declared that, despite the Government,

															"we are determined to continue covering controversial issues as
a public service, and exercising our own independent news judgment
and enterprise. I, for one, refuse to allow that judgment and
enterprise to be affected by official intimidation."

															F. Stanton, Keynote Address, Sigma Delta Chi National
Convention, Atlanta, Georgia, November 21, 1968. Problems of news
coverage from the broadcaster's viewpoint are surveyed in W. Wood,
Electronic Journalism (1967).

															[ Footnote 20 ]

															Current discussions of the frequency allocation problem appear
in Telecommunication Science Panel, Commerce Technical Advisory
Board, U.S. Dept. of Commerce, Electromagnetic Spectrum Utilization
-- The Silent Crisis (1966); Joint Technical Advisory Committee,
Institute of Electrical and Electronics Engineers and Electronic
Industries Assn., Report on Radio Spectrum Utilization (1964);
Note, The Crisis in Electromagnetic Frequency Spectrum Allocation,
53 Iowa L.Rev. 437 (1967). A recently released study is the Final
Report of the President's Task Force on Communications Policy
(1968).

															[ Footnote 21 ] Bendix Aviation Corp. v. FCC, 106 U.S.App.D.C. 304, 272
F.2d 533 (1959), cert. denied, 361 U.S. 965 (1960).

															[ Footnote 22 ]

															1968 FCC Annual Report 65-69.

															[ Footnote 23 ]

															New limitations on these users, who can also lay claim to First
Amendment protection, were sustained against First Amendment attack
with the comment, "Here is truly a situation where, if everybody
could say anything, many could say nothing." Lafayette Radio
Electronics Corp. v. United States, 345 F.2d 278, 281 (1965). Accord, California Citizens Band Assn. v. United States, 375 F.2d 43 (C.A. 9th Cir.), cert. denied, 389 U.S. 844
(1967).

															[ Footnote 24 ] Kessler v. FCC, 117 U.S. App.D.C. 130, 326 F.2d 673
(1963).

															[ Footnote 25 ]

															In a table prepared by the FCC on the basis of statistics
current as of August 31, 1968, VHF and UHF channels allocated to
and those available in the top 100 market areas for television are
set forth:

															COMMERCIAL

															Channels

															On the Air,

															Channels Authorized, or Available

															Market Areas Allocated Applied for Channels

															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 Available

															Market Areas Allocated Applied for Channels

															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.

															[ Footnote 26 ] RTNDA argues that these regulations should be held
invalid for failure of the FCC to make specific findings in the
rulemaking proceeding relating to these factual questions.
Presumably the fairness doctrine and the personal attack decisions
themselves, such as Red Lion, should fall for the same
reason. But this argument ignores the fact that these regulations
are no more than the detailed specification of certain consequences
of longstanding rules, the need for which was recognized by the
Congress on the factual predicate of scarcity made plain in 1927,
recognized by this Court in the 1943 National Broadcasting
Co. case, and reaffirmed by the Congress as recently as
1959.

															"If the number of radio and television stations were not limited
by available frequencies, the committee would have no hesitation in
removing completely the present provision regarding equal time and
urge the right of each broadcaster to follow his own conscience. .
. . However, broadcast frequencies are limited, and, therefore,
they have been necessarily considered a public trust."

															S.Rep. No. 562, 86th Cong., 1st Sess., 8-9 (1959). In light of
this history; the opportunity which the broadcasters have had to
address the FCC and show that somehow the situation had radically
changed, undercutting the validity of the congressional judgment,
and their failure to adduce any convincing evidence of that, in the
record here, we cannot consider the absence of more detailed
findings below to be determinative.

															[ Footnote 27 ]

															The "airwaves [need not] be filled at the earliest possible
moment in all circumstances without due regard for these important
factors." Community Broadcasting Co. v. FCC, 107
U.S.App.D.C. 95, 105, 274 F.2d 753, 763 (1960). Accord, enforcing the fairness doctrine, Office of Communication of the
United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 343, 359
F.2d 994, 1009 (1966).

															[ Footnote 28 ]

															We need not deal with the argument that, even if there is no
longer a technological scarcity of frequencies limiting the number
of broadcasters, there nevertheless is an economic scarcity in the
sense that the Commission could or does limit entry to the
broadcasting market on economic grounds and license no more
stations than the market will support. Hence, it is said, the
fairness doctrine or its equivalent is essential to satisfy the
claims of those excluded and of the public generally. A related
argument, which we also put aside, is that, quite apart from
scarcity of frequencies, technological or economic, Congress does
not abridge freedom of speech or press by legislation directly or
indirectly multiplying the voices and views presented to the public
through time sharing, fairness doctrines, or other devices which
limit or dissipate the power of those who sit astride the channels
of communication with the general public. Cf. Citizen
Publishing Co. v. United States, 394 U.
S. 131 (1969).

Summary: In Red Lion Broadcasting Co., Inc. v. FCC, the Supreme Court upheld the Federal Communications Commission's (FCC) "fairness doctrine," which required broadcasters to present public issues fairly and give airtime to opposing views. The case centered around a broadcaster's obligation under the doctrine when they aired a personal attack. The Court ruled that the FCC's actions were within its authority and implemented congressional policy. The Court also rejected First Amendment challenges to the doctrine, prioritizing the public's right to diverse viewpoints over broadcasters' rights. The scarcity of broadcast frequencies was cited as a key factor in the decision.