Full opinion text
LEVENTHAL, Circuit Judge: On September 12, 1972, the television network of the National Broadcasting Company broadcast its documentary entitled “Pensions: The Broken Promise,” narrated by Edwin Newman. On November 27, 1972, Accuracy in Media (AIM) filed a complaint with the Federal Communications Commission charging NBC had presented a one-sided picture of private pension plans. The handling of this case by the Commission will be discussed in more detail subsequently (section II). For introductory purposes it suffices to say that on May 2, 1973 —as it happens, the same day NBC received the George Foster Peabody Award for its production — the Commission’s Broadcast Bureau advised NBC that the program violated the Commission’s fairness doctrine. That decision was upheld by the Commission. We reverse. I. THE PROGRAM The “Pensions” program is the heart of the case, and for that reason it is set out in Appendix A to this opinion. For convenience, we will summarize the main outlines of the program — with notation that certain aspects are dealt with more fully subsequently. The “Pensions” program studied the condition under which a person who had worked in an employment situation that was covered by a private pension plan did not in fact realize on any pension rights. Its particular focus was the tragic cases of aging workers who were left, at the end of a life of labor, without pensions, without time to develop new pension rights, and on occasion without viable income. The program had no set format, but its most prominent feature was a presentation of tragic case histories, often through personal interviews with the persons affected. One group of workers lost pension eligibility when their company decided to .close the division in which they had worked. The first of these was Steven Duane, who after 17 years with a large supermarket chain, lost his job as foreman of a warehouse when the company closed the warehouse and discharged all its employees, leaving them with no job and no pension rights. Now in his fifties, starting again with another company, he felt ill-used and frightened of the future. There were a number of other specific examples of employees terminated by closing of plants or divisions. The program also focused on the problems of vesting, the years of service with the company required for a worker to become eligible under its pension plan. NBC interviewed employees with many years of service who were suddenly discharged just prior to the date on which their pension rights were to have become vested. Thus Alan Sorensen asserted that he was the victim of a practice — a “very definite pattern” — under which his employer, a large department store chain, fired men just prior to vesting, assigning “shallow” reasons to men who had served with records beyond reproach. A similar account was given by Earl Schroeder, an executive fired by Kelly Nut Company, after he more than met his 20 years of service requirement but was six months shy of the age 60 condition. The program also set forth abuses in the literature given employees ostensibly explaining their plans — pictures of contented retirees and words comprehensible only to the most sophisticated legal specialist. It took up examples where the company had gone bankrupt prior to their date of retirement, leaving the employees without pension funds. The documentary gave instances of pensions lost for lack of portability, citing plans that required the employee be a member of the same local for the requisite period. NBC interviewed a number of teamsters who had worked for the same employer for over twenty years, but who later found that certain changes in work assignment entailed changes in union local representation and ultimately loss of pension. Much of the program was a recount of human suffering, interviews in which aging workers described their plight without comment on cause or remedy. They told of long years of working in the expectation of comfortable retirements, finding out that no pension would come, having to work into old age, of ■ having to survive on pittance incomes. Interspersed with these presentations by workers were comments by persons active in the pension field, public officials, and Mr. Newman. None of those interviewed — and these included two United States Senators, a state official, a labor leader, a representative of the National Association of Manufacturers, a consumer advocate, a bank president, and a social worker— disputed that serious problems, those covered by the documentary, do indeed exist. Some of the comments related to the overall performance of the private pension system. We shall discuss these later (section VI B). In addition to comments on the private system generally, there were isolated expressions of views on the related but nonetheless quite distinct issue of the wisdom of reliance on private pensions, regardless of how well they function, to meet the financial needs of retirees. Finally, several speakers gave broad, general views as to what could be done. There were also comments on legislative reforms that might be taken to cope with problems. These will be discussed separately in part VI D of this opinion. Concluding Remarks It may be appropriate to quote in full the concluding remarks of narrator Edwin Newman, since the FCC considered them “indicative of the actual scope and substance of the viewpoints broadcast in the Tensions’ program.” He said: NEWMAN: This has been a depressing program to work on but we don’t want to give the impression that there are no good private pension plans. There are many good ones, and there are many people for whom the promise has become reality. That should be said. There are certain technical questions that we’ve dealt with only glancingly, portability, which mean's, being able to take your pension rights with you when you go from one job to another, vesting, the point at which your rights in the pension plan become established and irrevocable. Then there’s funding, the way the plan is financed so that it can meet its obligations. And insurance, making sure that if plans go under, their obligations can still be met. Finally, there’s what is called the fiduciary relationship, meaning, who can be a pension plan trustee? And requiring that those who run pension funds adhere to a code of conduct so that they cannot enrich themselves or make improper loans or engage in funny business with the company management or the union leadership. These are matters for Congress to consider and, indeed, the Senate Labor Committee is considering them now. They are also matters for those who are in pension plans. If you’re in one, you might find it useful to take a close look at it. Our own conclusion about all of this, is that it is almost inconceivable that this enormous thing has been allowed to grow up with so little understanding of it and with so little protection and such uneven results for those involved. The situation, as we’ve seen it, is deplorable. Edwin Newman, NBC News. Success of Program Like many documentaries, “Pensions” was a critical success {supra, note 1) but not a commercial success. We shall consider the television reviews in more detail subsequently, but it may be observed here that they were generally enthusiastic. Critics called it, “A potent program about pitfalls and failures of some private pension plans . . “a harrowing and moving inquiry and “a public service.” Dissenting notes were also struck. As to the viewing public, “Pensions” ran in competition with a popular medical drama and a crime movie, and ran a poor third, garnering only a 16% share of the viewing audience. In fact, NBC was able to sell only two-and-one-half minutes of advertising time out of an available six. II. COMMISSION PROCEEDING Watching the program with particular interest was Accuracy in Media (“AIM”), a “nonprofit, educational organization acting in the public interest” that seeks to counter, in part by demanding aggressive enforcement of the fairness doctrine, what it deems to be biased presentations of news and public affairs. On November 27, 1972, the Executive Secretary of AIM wrote to the FCC complaining of the following: Our investigation reveals that the NBC report gave the viewers a grotesquely distorted picture of the private pension system of the United States. Nearly the entire program was devoted to criticism of private pension plans, giving the impression that failure and fraud are the rule. . The reporter, Mr. Newman, said that NBC did not want to give the impression that there were no good private pension plans, but he did not discuss any good plans or show any satisfied pensioners. In subsequent correspondence, AIM added the accusations that NBC was attempting “to brainwash the audience with some particular message that NBC is trying to convey” and that the program was “a one-sided, uninformative, emotion-evoking propaganda pitch.” Thus AIM not only claimed that the program had presented one side of an issue of public importance, the performance of private pension plans, it also charged that NBC had deliberately distorted its presentation to foist its ideological view of events on the viewing public. • In its reply, NBC rejected the allegations of distortion. It asserted that the “Pensions” broadcast had not concerned a controversial issue of public importance : The program constituted a broad over-view of some of the problems involved in some private pensions plans. It did not attempt to discuss all private pension plans, nor did it urge the adoption of any specific legislative or other remedies. Rather, it was designed to inform the public about some problems which have come to light in some pension plans and which deserve a closer look. Since, in the view of NBC, there was no attempt to comment on the overall performance of private pension plans, no controversial issue had been presented, for all agreed that the examples of suffering depicted were not themselves subject to controversy. Even so, NBC pointed out that it had presented the view that the system as a whole was functioning well; consequently, it asserted, even if it had inadvertently raised the issue of the overall performance of private pension plans, the side generally supportive of the system had been heard. In a letter to NBC, the Broadcast Burean of the Commission rejected AIM’s allegations of distortion as being unsupported by any evidence but upheld the fairness doctrine complaint. The staff took issue with “the reasonableness of your [NBC’s] judgment that the program did not present one side of a controversial issue of public importance” and concluded that the program’s “overall thrust was general criticism of the entire pension system, accompanied by proposals for its regulation.” The staff opinion included extensive quotation from the transcript of the documentary, but little explanation as to how the quoted portions sustained the staff’s conclusion. Only four brief statements were singled out as containing “general, views” on the overall performance of the private pension system. NBC appealed the Broadcast Bureau ruling to the entire Commission. On December 3, 1973, the Commission issued a “Memorandum Opinion and Order” affirming the decision of its staff. Although it acknowledged that the broad issue upon review was “whether the Bureau erred in its ruling that NBC’s judgment on these matters was unreasonable,” it emphasized that: The specific question properly before us here is therefore not whether NBC may reasonably say that the broad, overall “subject” of the “Pensions” program was “some problems in some pension plans,” but rather whether the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system. The Commission found that “Pensions” had in fact presented views on the overall performance of the private pension system. It took note of the “pro-pensions” views expressed during the documentary, but concluded that the “overwhelming weight” of the “anti-pensions” statements required further presentation of opposing views. The Commission commended NBC for a laudable journal-' istic effort, but found that the network had not discharged its fairness obligations and ordered it to do so forthwith. This petition for review followed. NBC petitioned the Commission for a stay, but was informed that the Commission “expects prompt compliance with its ruling.” NBC filed a motion in this court for an expedited appeal, a stay, and expedited consideration. That motion was heard and granted on February 14, 1974, and the case was heard on the merits on February 21, 1974. AIM has intervened on the side of the Commission. The stay that has been in effect during the pendency of this appeal reflected, in part, an estimate of the likelihood of success by NBC as petitioner. We now set forth the reasons why we have decided that the case should be determined in favor of NBC. III. THE FAIRNESS DOCTRINE: GENERAL CONSIDERATIONS Petitioners urge that the Commission’s decision be set aside as a misapplication of the fairness doctrine and a violation of the First Amendment. Since we reverse on the former ground, we have no occasion to consider the latter. Now twenty-five years old, the fairness doctrine imposes a double obligation on the broadcast licensee. First, he must devote a substantial portion of available time to the discussion of “controversial issues of public importance.” When he presents such an issue, the licensee has a further duty to present responsible conflicting views. The doctrine, particularly as applied to newscasts and news documentaries, has been given statutory recognition in section 315 of the Communications Act, and has been held to inhere in the “public interest” standard governing the grant of license applications and renewals. The essential task of the fairness doctrine is to harmonize the freedom of the broadcaster and the right of the public to be informed. Except for limited areas like libel and obscenity, the First Amendment generally forbids gov-, ernment regulation of the content of journalism. Not only is state censorship forbidden, so also is the government prohibited from compelling editors to include state approved material. Even a carefully limited statute giving political candidates attacked on a newspaper’s editorial page the right to reply in kind was recently invalidated by the Supreme Court as an unconstitutional encroachment upon journalistic discretion. In Miami Herald Publishing Company v. Tornillo, a “right to reply” law — analogous to the personal attack rule that is part of the fairness doctrine — was ruled unconstitutional. The “benign” purposes of the state statute were deemed irrelevant: [T]he Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size of the paper, and content, and treatment of public issues and public officials — whether fair or unfair — constitutes the exercise of editorial control and judgment. It has yet to be demonstrated how governmental control of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. 418 U.S. at 258, 94 S.Ct. at 2839-2840. But almost from the beginning, the broadcasting press has been treated differently. Congress created the Federal Communications Commission and its predecessor, the Federal Radio Commission, because the available space on the electromagnetic spectrum was far exceeded by the number of those who would use it. It was necessary to ration this scarce resource, for “[wjithout government control, the medium would be of little use because of the caeaphony of competing voices, none of which could be clearly and predictably heard.” Scarcity required licensing in order to bring order to chaos, but the dangers of control in the hands of a relative few were early recognized. The public interest. did not countenance delegation to a few licensees to pursue their purely private interests at the expense of listeners and viewers, and instead the broadcaster was held to have an obligation to serve and inform the public. Under the fairness doctrine the public is not to be confined to hearing only the views approved by those licensees, but is entitled to be informed of the diversity of opinion in the land, to have that presented by appropriate spokesmen for its consideration and judgment. The salutary intent of the fairness doctrine must be reconciled with the tradition against inhibition of the journalists’ freedom. That tradition, which exerts a powerful countervailing force, is rooted in the constitutional guarantee of freedom of the press, a guarantee that has vitality for broadcast journalists, though not in exactly the same degree as for their brethren of the printed word. And the same statute that provides authority for the FCC to implement the fairness doctrine for its licensees contains a clear provision (in section 326) disclaiming and prohibiting censorship as part of the legislative scheme. In construing the fairness doctrine, both the Commission and the courts have proceeded carefully, mindful of the need for harmonizing these often conflicting considerations. . In Red Lion Broadcasting Company v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the Supreme Court approved the Commission’s personal attack and political editorializing rules, which are relatively narrow corollaries of the general fairness obligation. Under the personal attack rules a licensee must afford reply time to “an identified person or group” whose “honesty, character, integrity, or like personal qualities” are attacked in the course of presentation of views on a controversial issue of public importance. The political editorializing rule imposes a reply obligation where the licensee endorses or opposes a candidate for public office. These rules were the target of sharp attack. The essence of the challenge was that no matter how slight, how narrow, or how precise, any limitation on-the freedom of the licensee to broadcast what he chooses perforce violates the First Amendment. Rejecting this contention, a unanimous Supreme Court reminded the broadcaster of the essential difference between the print and broadcast media: the physical limitations of the latter restrict the number of those who would broadcast whereas expression by publication is, at least in theory, available to all. To posit a First Amendment restriction on government action taken to enhance the variety of opinions available to the viewer is to protect those fortuitous enough to obtain broadcast licenses at the expense of those who were not. In now-famous language the Court stated: 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. This has become the guiding principle of the fairness doctrine: limitations on the freedom of the broadcaster — even those that would be unacceptable when imposed on other media — are lawful in order to enhance the public’s right to be informed. The Court’s opinion, written by Justice White, reflects the circumspection of this principle of decision. While rejecting as unfounded claims that the personal attack and political editorializing rules would induce self-censorship by licensees in order to avoid the rigors of compliance with their requirements, the Court cautioned that its judgment might be different “if experience with the administration of those doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage. . . . ” And the Court expressly stated that in approving the personal attack and political editorializing rules, it did not “approve every aspect of the fairness doctrine. . . .” Four years later, in Columbia Broadcasting System v. Democratic National Committee, the Court again discussed the fairness doctrine. The Commission had held that licensees could impose a blanket ban on all editorial advertising. An intermediate court ruling that such a ban, even if consistent with the fairness doctrine, violated the First Amendment, was reversed by the Supreme Court, in an opinion by Chief Justice Burger. In CBS the Court reaffirmed the principle that scarcity requires that the broadcast media be treated differently than other forums of expression, but observed that this is not a principle without bounds, that not all regulation can be justified in the name of scarcity. Overzealous invocation of rules such as the fairness doctrine could cause an “erosion of the journalistic discretion of broadcasters in the coverage of public issues.” Journalistic discretion, the Court emphasized, is the keynote to the legislative framework of the Communications Act. The limitations of broadcasting both spawned the fairness doctrine and establish that it is dependent primarily on licensee discretion. Perfect compliance is impossible. No broadcaster can present all colorations of all available public issues. 412 U.S. at 111, 93 S.Ct. 2080. Choices have to be made and, assuming that the area is one of protected expression, the choices must be made by those whose mission it is to inform, not by those who must rule. In the words of Chief Justice Burger: For better or worse, editing is what editors are for; and editing is selection and choice of material. That editors — newspaper or broadcast — can and do abuse this power is beyond doubt, but that is not reason to deny the discretion Congress provided. Calculated risks of abuse are taken in order to preserve higher values. The presence of these risks is nothing new; the authors of the Bill of Rights accepted the reality that these risks were evils for which there was no acceptable remedy other than a spirit of moderation and a sense of responsibility — and civility — on the part of those who exercise the guaranteed freedoms of expression. There are no other decisions on the fairness. doctrine from the Supreme Court, but this court has had occasion to consider the doctrine in several cases and it has endeavored to maintain the balance between broadcaster freedom and the public’s right to know. Com-' mercial advertising eases present different considerations than those before us and we need not reexamine the doctrine as- there applied. More related to the present issue is the public service announcement discussed in Green v. FCC, where we refused petitioners’ request to require a licensee to present a point of view on the Vietnam conflict that had already received extensive coverage. In Green, as in the instant case, there was some initial difficulty in defining the issue allegedly presented in the offending broadcast. We stated that this determination, as well as the decision as to the number of views to be presented and the manner in which they are portrayed, is one initially for the licensee, who has latitude to make all pertinent judgments and is not to be overturned unless he forsakes the standards of reasonableness and good faith. Reliance on the reasonableness standard, “which is all that is required under the fairness doctrine” preserves licensee discretion and serves the essential purposes of the fairness doctrine “that the American public must not be left uninformed” In Democratic National Committee v. FCC, we faced knotty problems in sorting out the fairness obligations generated by a radio and television address by the President and a reply by the opposition political party. In upholding the Commission decision that the licensees had not abused their discretion, Judge Tamm, writing for the court, stressed the importance of reliance on licensee judgment: By its very nature the fairness doctrine is one which cannot be applied with scientific and mathematical certainty. There is no formula which if followed will assure that the requirements of the doctrine have been met. Procedurally, the doctrine can only succeed when the licensee exercises that discretion upon which he is instructed to call upon in dealing with coverage of controversial issues. Finding no abuse of discretion, we affirmed. In Healey v. FCC, petitioner claimed to be within the ambit of the personal attack rule, which requires the licensee to afford opportunity to reply to an individual attacked in the course of a discussion of a controversial issue of public importance. As in the case now before us, the critical question was whether the broadcast involved a controversial issue of public importance. Petitioner, an American Communist, claimed that her role as a Communist within her community was such an issue. Judge Wilkey, the author of the Green opinion, pointed out that there is a substantial difference between what is newsworthy, i. e., that which is interesting to the public, and what is controversial: Merely because a story is newsworthy does not mean that it contains a controversial issue of public importance. Our daily papers and television broadcasts alike are filled with news items which good, journalistic judgment would classify as newsworthy, but which the same editors would not characterize as containing important controversial public issues. Converting every newsworthy matter into a controversial issue of public importance and requiring editors to “balance” every presentation creates a danger. Again in the words of Judge Wilkey: To characterize every dispute of this character as calling for rejoinder under the fairness doctrine would so inhibit television and radio as to destroy a good part of their public usefulness. It would make what has already been criticised as a bland product disseminated by an uncourageous media even more innocuous. The principle of deference to licensee judgments, unless the licensee has simply departed from the underlying assumptions of good faith and reasonable discretion, is an integral part of the fairness doctrine, and a fixture that has been reiterated and applied with fidelity by the courts. It is the backdrop against which Judge Tamm’s opinion for the court in the Democratic National Committee case takes note, that in opinion after opinion, the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine. . . . The question is whether NBC has been shown to have exceeded its “wide degree of discretion” in its “Pensions” documentary. IV. ABSTENTION FROM PRELIMINARY ISSUE — WHETHER FAIRNESS DOCTRINE SHOULD BE RESERVED FOR LICENSE RENEWALS A preliminary issue has been presented to us by amicus curiae Henry Geller, Esquire, formerly general counsel of the Commission, and a serious student of the fairness • doctrine. Mr. Geller’s view is that under the law the FCC- could not properly issue the ad hoe fairness ruling on this program, but was limited to consideration of the matter only in connection with NBC’s application for renewal of license, and then only to determine if some flagrant pattern of violation of the fairness doctrine is indicated by NBC’s overall operation, with a renewal standard, comparable to that voiced in New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 110, 11 L.Ed.2d 686 (1964), requiring a showing of “malice” — either bad faith, or “reckless disregard” of fairness obligations. Initially, it appears, it was the FGC’s procedure to refer complaints to the station as received, obtain its response, and then consider the matter definitively at renewal in connection with the overall showing of the station. This practice was being followed in 1959, when the Communications Act was amended to codify the standard of fairness. In 1962, the Commission changed its procedure to resolve all fairness matters as they arose and, if the station were found to have violated the doctrine, to direct it to advise the Commission within 20 days of the steps taken “to assure compliance with the fairness doctrine.” Mr. Geller puts it that the resulting series of ad hoc fairness rulings “have led the Commission ever deeper into the journalistic process, and have raised most serious problems.” The effect, particularly on the small broadcaster, has been to inhibit the promotion of robust, wide-open debate. Thus, in a case where the FCC found that a licensee had afforded reasonable opportunity for opposing viewpoints, the FCC process was long (decision 21 months after broadcast) and arduous. The licensee’s burden included not only substantial legal (about $25,000) and other expenses (e. g., travel), but also required top-level station personnel to devote substantial time and attention, with attendant dislocation of regular operational functions. In sum, Mr. Geller says that a substantial inhibiting effect derives not merely from any rulings adverse to the broadcaster, but the strain, time and resources involved in coping with particular challenges even if they are unsuccessful. Amicus cites expressions in Columbia Broadcasting System v. Democratic National Committee, supra, rejecting a contention (right of access for editorial advertisements) that would involve the government too much in the “day-to-day operations of broadcasters’ conduct,” and stating the fairness doctrine, in terms of the legislative scheme and purpose, in these terms, 412 U.S. at 127, 93 S.Ct. at 2098: Under the Fairness Doctrine the Commission’s responsibility is to judge whether a licensee’s overall performance indicates a sustained good faith effort to meet the public interest in being fully and fairly informed. The Commission’s responsibilities under a right-of-aecess system would tend to draw it into a continuing case-by-ease determination of who should be heard and when. We have stated the amicus position at some length because we do not wish our opinion to be misunderstood as inadvertent on the point. The position is a serious one, and it deserves serious consideration The fact that Red Lion reviewed a particular ruling is no bar, for this point was not raised. Indeed, even as to points that were raised, the Court was careful to say that it would be alert to reexamine its assumptions upon an appropriate showing. We do not think, however, that the present case is an appropriate vehicle for determination of the contention presented by amicus. It is resisted by petitioners, who seek reversal but not on this basis, which might enhance their risk. Moreover, it was not expressly considered by the Commission. While amicus states that a copy of the underlying study, see footnote 51, supra,, was distributed to each Commissioner prior to the Commission’s consideration of this case, that is not the same thing as putting the matter in issue in the proceeding. The proposal is one that merits consideration by the Commission before it can be discussed by this court as a legal imperative. We abstain, then, from any determination in this case concerning the merits of the proposition put by amicus curiae. V. APPLICATION OF THE FAIRNESS DOCTRINE TO NEWS DOCUMENTARIES Our assumption of the propriety of the FCC’s current practice that it may make rulings whether particular programs violate the fairness doctrine does not lessen our concern as to those rulings; it rather enhances the need for careful scrutiny, particularly where, as here, a ruling is challenged on the ground that it displaces the judgment entrusted to the broadcast journalist. A. The Function of the FCC The principal controversial issue the Commission identified for the “Pension” program is “the overall performance of the private pension plan system.” In NBC’s submission, the focus of the program was the existence of abuses, of “some problems in some pension plans.” While one understands NBC’s point as made, it might be refined as a statement that NBC was engaged in a study in abuses and did not separately examine how pervasive those abuses were. On what basis did the Commission reject NBC’s position, and accept AIM’s view that the point of the program was the performance of the common run of pension plans ? The staff ruling of May 2, 1973, said this (p. 11): The Pensions program thus did in fact present views which were broadly critical of the performance of the entire private pension system and explicitly advocated and supported proposals to regulate the operation of all pension plans. Your judgments to the contrary, therefore, cannot be accepted as reasonable. One is struck by the palpable flaw in the staff’s reasoning. The staff actually put it that because the staff found as a fact that the program was broadly critical of the entire private pension plan system, NBC’s contrary judgment “therefore” cannot be accepted as reasonable. The flaw looms the larger, in that it appears in the ruling of the staff of an agency operating under the Rule of Administrative Law. Under that Rule, agencies daily proclaim that their findings of fact must be upheld if reasonable and if supported by substantial evidence, even though there is equal and even preponderant evidence to the contrary, and even though the courts would have found the facts the other way if they had approached the issue independently. The Commission’s opinion of December 3, 1973, corrected the staff’s error of logic, but it made a mistake of law. It stated (see para. 17, JA 210): The specific question properly before us here is therefore not whether NBC may reasonably say that the broad, overall “subject” of the “Pensions” program was “some problems in some pension plans,” but rather whether the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system, [emphasis added.] Thus the Commission ruled that even though NBC was reasonable in saying that the subject of “Pensions” program was “some problems in some pension plans,” in determining that this was the essential subject of the program, its dominant force and thrust, nevertheless NBC had violated its obligation as a licensee, because the Commission reached a different conclusion, that the program had the effect “in fact” of presenting only one side of a different subject. The Commission’s error of law is that if failed adequately to apply the message of applicable decisions that the editorial judgments of the licensee must not be disturbed if reasonable and in good faith. The licensee has both initial responsibility and primary responsibility. It has wide discretion and latitude that must be respected even though, under the same facts, the agency would reach a contrary conclusion. The pertinent principle that the Commission will not disturb the editorial judgment of the licensee, if reasonable and in good faith, is applicable broadly in fairness doctrine matters. It has distinctive force and vitality when the crucial question is the kind raised in this case, i. e., in defining the scope of the issue raised by the program, for this inquiry typically turns on the kind of communications judgments that are the stuff of the daily decisions of the licensee. There may be mistakes in the licensee’s determination. But the review power of the agency is limited to licensee determinations that are not only different from those the agency would have reached in the first instance but are unreasonable. In Columbia Broadcasting System v. Democratic National Committee, supra, the Court stressed the wide latitude entrusted to the broadcaster. See 412 U.S. at 110-111, 93 S.Ct. at 2090-2091: Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations. * * * * * * The broadcaster, therefore, is allowed significant journalistic discretion in deciding how best to fulfill the Fairness Doctrine obligations, although that discretion is bounded by rules designed to assure that the public interest in fairness is furthered. While the government agency has the responsibility of deciding whether the broadcaster has exceeded the bounds of discretion, the Court makes clear that any approach whereby a government agency would undertake to govern “day-to-day editorial decisions of broadcast licensees” endangers the loss of journalistic discretion and First Amendment values. (412 U.S. at 120-121, 93 S.Ct. at 2095) What is perhaps most striking and apt for present purposes is the figure used by Chief Justice Burger wherein the licensee is identified as a “free agent” who has “initial and primary responsibility for fairness, balance, and objectivity,” with the Commission serving as an “overseer” and “ultimate arbiter and guardian of the public interest.” [Emphasis added.] Our own decisions amplify these basic propositions. Judge Tamm’s opinion for the court in Democratic National Committee v. FCC, 148 U.S.App.D.C. 383, 460 F.2d 891 (1972) serves as a compendium and a wrap up. That opinion refers to: (1) Mid-Florida Television Corp., 40 FCC 2d 620, 621 (1964), that the mechanics of achieving fairness “is within the discretion of each licensee, acting in good faith.” (2) Applicability of the Fairness Doctrine, 29 Fed.Reg. 10416, 40 FCC 598, 599 (1964): [T]he licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation — as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present such viewpoints, and all the other facets of such programming. (3) The concept that the Commission will “exercise substantial restraint in this area.” Id.: [T]he Commission’s role is not to substitute its judgment for that of the licensee as to any of the above programming decisions, but rather to determine whether the licensee can be said to have acted reasonably and in good faith. (4) This court’s other opinions and such references therein as “the permissive ‘reasonableness’ standard of the fairness doctrine.” The court therefore concluded (460 F.2d at 903): Thus, in opinion after opinion, the Commission and the courts have stressed the wide degree of discretion available under the fairness doctrine. The range of journalistic discretion is not limited to the issue of how to comply with the fairness doctrine in the details of presenting both (or more) sides of an issue when the issue has been subsequently defined by the Commission. This would be narrow and artificial. In CBS, the Court, in discussing the broadcaster’s “significant journalistic discretion” under the fairness doctrine pointed out that the licensee must consider “such questions as whether the subject is worth considering” (412 U.S. at 111 & n. 9, 93 S.Ct. at 2091). And the Court cited with approval a passage, as old as the fairness doctrine itself, wherein the Commission stated that the licensee “is called upon to make reasonable judgments in good faith on the facts of each situation — as to whether a controversial issue of public importance is involved.” Where the Commission has relatively specific rules under the fairness doctrine, as in the personal attack and political editorializing rules, it has- a more ample role in determining whether the licensee was in compliance with his obligations. But when the claim is put in terms of the general obligation concerning controversial issues of public importance, there is primary reliance on the journalistic discretion of the licensee, subject to supervision by the government agency only in case he exceeds the bounds of his discretion. This yields as a corollary that if the broadcast licensee was reasonable in his premise, and his projection of the subject-matter of the program, he cannot be said by the supervising agency to have abused or exceeded his sound discretion. The FCC’s function becomes that of correcting the licensee for abuse of discretion, as our function on judicial review is that of correcting the agency for abuse of discretion. The Commission in this case agreed that there was wide latitude of journalistic discretion in regard to news and news documentary programs. -It said (par. 25), that it “cannot uphold a patently unreasonable exercise of that discretion which would deny the right of the public to be informed as to both sides of a controversial issue which in fact has been presented by such programming.” The Commission’s reference to “patently unreasonable exercise of discretion” by the licensee, as the standard that warrants agency intervention, captures the spirit of the scope of discretion entrusted to the licensee. We need not dwell on abstract issues such as whether a licensee whose exercise of discretion is unreasonable may validly claim it was not “patently” unreasonable; this is more a matter of mood than rule. In this case, we think it plain that the licensee has not been guilty of an unreasonable exercise .of discretion. Where the Commission may have started on the wrong path in its approach is the place where the Commission undertook to determine for itself as a fact whether “the program did in fact present viewpoints on one side of the issue of the overall performance and proposed regulation of the private pension system.” This is not a sufficient basis for overturning*' the licensee. It is not clear from the Commission’s opinion that it also appreciated the need for a finding of abuse of discretion by the licensee in concluding that no controversial issue had been presented. In any event, we are clear that the licensee’s discretion was not abused in this respect. On this issue, whether there was an abuse of discretion in NBC’s determination concerning the subject matter of the “Pensions” documentary, the staff ■ — which did see that this was the real issue — proceeded to resolve it adversely to the licensee by concluding that NBC was unreasonable in determining that the subject of the program was some problems of private pension plans. The Commission backed away from that staff conclusion. A substantial burden must be overcome before the FCC can say there has been an unreasonable exercise of journalistic discretion in a licensee’s determination as to the scope of issues presented in the program. Where, as here, the underlying problem is the thrust of the program and the nature of its message, whether a controversial issue of public importance is involved presents not a question of simple physical fact, like temperature, but rather a composite editorial and communications judgment concerning the nature of the program and its perception by viewers. In the absence of extrinsic evidence that the licensee’s characterization to the Commission was not made in good faith, the burden of demonstrating that the licensee’s judgment was unreasonable to the point of abuse of discretion requires a determination that reasonable men viewing the program would not have concluded that its subject was as described by the licensee. Here the Commission concluded that the program involved a controversial issue, namely the overall performance of the private pension plan system. If the agency had free rein to make the critical finding we might well support this conclusion as a reasonable exercise of agency discretion. But here the primary discretion was not vested in the government agency but in the licensee. And the agency could not premise any order on a conclusion contrary to that of the licensee unless it was willing and able to take the additional step — which it deliberately avoided — of finding the licensee’s conclusion to be unreasonable. “A conclusion may be supported by substantial evidence even though a plausible alternative interpretation of the evidence would support a contrary view.” The situation here is unlike the case of an agency’s review of a fact finding proposed by its hearing officer. In that situation, it is the agency that has the primary discretion, and it may differ with its hearing officer even though his finding is supported by substantial evidence. Even there, where the agency has primary discretion, its “departures from the Examiner’s findings are vulnerable if they fail to reflect attentive consideration to the Examiner’s decision.” Certainly in a situation where it is the licensee that has primary discretion, and his judgment as to dominant impact is substantially supported by responsible persons skilled in judging these matters, this must be given attentive consideration before determining the licensee's judgment was unreasonable. B. The Function of the Reviewing Court When an agency purports to exercise regulatory discretion conferred by Congress, a court reviewing its order generally accords wide latitude to the agency. The court has responsibilities and restraints. Its responsibility is. to assure that the agency has not abused or exceeded its authority, that every essential element of the order is supported by substantial evidence, and that the agency has given reasoned consideration to the pertinent factors. The restraint arises out of the consideration that industry regulation has been entrusted by Congress “to the informed judgment of the Commission, and not to the preferences of reviewing courts.” If an agency has “genuinely engaged in reasoned decision-making . . - . the court exercises restraint and affirms the agency’s action even though the court would on its own account have made different findings or adopted different standards.” In the case of the fairness doctrine, a reviewing court is under the same injunction against injecting its own preferences as the rule of decision. And so when the Commission, in the exercise of its discretion, affirms the licensee’s exercise of its discretion, the role of the court is most restricted. But the court has a greater responsibility than is normally the case, when it reviews an agency’s fairness rulings that upset the licensee’s exercise of journalistic discretion, both because the area is suffused with First Amendment freedoms and because Congress has determined that the interest of the public, and its right to know, is furthered by giving primary discretion not to the government agency but instead to the regulated licensee. Congress has sharply narrowed the scope of agency discretion — which the court must see is not exceeded — to a government intervention permissible only for abuse of the licensee’s journalistic judgment. If the Commission can claim wide latitude in and deference for its exercise of prerogative to overrule and discard the journalistic judgments of the broadcast licensees, the very premise of the legislative structure is undermined. In Judge Tamm’s phrase, in another case involving a Commission determination that the licensee violated the fairness doctrine, and aspects of intrusion on the licensee’s journalistic freedoms: “Not only must the Commission take a hard look at the case in this light but so must this court.” To restate, even in a fairness doctrine case the court is not given carte blanche or an authority to interpolate its own discretion or judgment as to what should be done by the agency or what should have been done by the licensee. But a court is properly exercising the high judicial function of assuring that agencies respéct legislative mandates when it studies the record to make certain that the Commission has not interpolated its own judgment and wrested the primary discretion Congress placed in the licensee, without making the requisite showing of abuse of the licensee’s journalistic discretion. C. The Need for Selection Latitude of Broadcast and Investigative Journalism The doctrine that respects licensee determination, if not unreasonable, concerning the issues tendered in a news broadcast, is a matter of concern for the vitality of broadcast journalism generally, and for investigative journalism in particular. The Commission’s opinion in this case reaffirmed— our recognition of the value of investigative reporting and our steadfast intention to do nothing to interfere with or inhibit it. See WBBM-TV, 18 FCC 2d 124, 134 (1969); Hunger in America, 20 FCC 2d 143, 150 (1969). In Hunger in America, supra, it not only commended CBS “for undertaking this documentary on one of the tragic problems of today” but it undertook to clarify its policy as to a claim that a licensee deliberately distorted the news, to avoid concern lest its inquiry in that case “may tend to inhibit licensees’ freedom or willingness to present programming dealing with the difficult issues facing our society.” 20 FCC 2d at 150. It reiterated the ruling of ABC, 16 FCC 2d 650 (1969), that it would require extrinsic evidence of e. g., a charge that a licensee staged news events. “Otherwise, the matter would again come down to a judgment as to what was presented, as against what should have been presented —a judgmental area for broadcast journalism which this Commission must eschew.” 16 FCC 2d at 657-58. In the world of news documentaries, there is inherently an area of “judgment as to what was presented.” And if its judgment is not unreasonable, the licensee cannot fairly be held faithless to fairness doctrine responsibilities. Investigative reporting has a distinctive role of uncovering and exposing abuses. It would be undermined if a government agency were free to review the editorial judgments involved in selection of theme and materials, to overrule the licensee’s editorial “judgment as to what was presented,” though not unreasonable, to conclude that in the agency’s view the expose had a broader message in fact than that discerned by the licensee and therefore, under the balancing obligation, required an additional and offsetting program. The field of investigative exposures, as the Commission has noted, is one in which “[p]rint journalism has long engaged [and] been commended,” and to which broadcast journalism, also part of the press is “no less entitled.” Even for print journalism, not subject to the extreme time coverage limitations of broadcasters, a requirement like the Commission’s would be considered a “millstone” burdening investigative reporting. We refer to the affidavit supplied to the Commission by J. Edward Murray, associate editor of the Detroit Free Press and immediate past president of the American Society of Newspaper Editors. These are representative excerpts: The whole process of investigative reporting is a complex and sensitive equation involving editors with high purpose and intuition, reporters with skill and courage, and publishers willing to incur heavy expense and the risk of offending both public opinion and advertisers. This equation, as I said, is powered by the drive to correct evils in the society. If we weight the equation with the requirement that the press look for, and report, good wherever it finds and reports evil, we might as well forget investigative reporting. We will have overwhelmed it with the deadly commonplace of things as they are. [I]t would be commonplace newspaper procedure that if an editor decided that some private pensions are flawed or useless, and published a typical expose to this effect, the expose would simply assume that the majority of private pension plans were more or less in acceptable shape. Otherwise, the forces of both law and business would have corrected so obvious a deficiency. The investigative reporter’s thrust is against presumed evils in society. If he must always give an equivalent weight to the good (which is now presumed) in the situation he is investigating, his thrust would become so dulled as to be boring — and unread. Newspapers, including the Detroit Free Press, investigate and expose policemen who are on the “take” in the dope rackets. If an equivalent weight or time must be given to policemen who are not on the “take”, the whole campaign becomes so unwieldy, and pointless as to be useless. The suggestion of a positive non-expose, in the wake of an original negative expose, falls of its own weight. No one would read it. It would thus be a waste of space. And it would add one more millstone to the already considerable burden of legitimate investigative reporting. (JA 140-42.) To like effect are affidavits in the record from broadcast journalists. The basic point merits emphasis: A report that evils exist within a group is just not the same thing as a report on the entire group, or even on the majority of the group. An expose that establishes that certain policemen have taken bribes, or smoked pot, or participated in a burglary ring, is not a report on policemen in general. It may be that the depiction of particular abuses will lead to broader inferences. Certainly severe deficiencies within an industry may reflect on the industry as a whole. When one bank fails, others may suffer a run. But the possible inferences and speculations that may be drawn from a factual presentation, are too diverse and manifold — ranging, as they inevitably must, over the entire span of viewer predilections, characteristics and reactions — to serve as a vehicle for overriding the journalistic judgment. There is residual latitude in the Commission to condemn the journalist’s vision as, an unreasonable exercise of discretion. But if the Commission is to condemn a journalist’s vision as excessively narrow, it must show that its own vision is broadgauged. Yet here we are reviewing a Commission opinion that says: “It is difficult to see why a network would devote its time and effort to a program with no broad impact or value.” (Par. 20). But abuses in an industry are of interest to the public, and merit a documentary, if they exist in any significant amount, even though they are not the general rule. Failures on automobiles are an example. Yet this obvious underpinning for an editorial judgment to run a limited expose was not referred to by the Commission. The Commission simply neglected our caution in Healey v. FCC, supra, 460 F.2d at 922: Petitioner’s basic misapprehension here is a confusion of an issue over newsworthiness with a “controversial issue of public importance.” Merely because a story is newsworthy does not mean that it contains a controversial issue of public importance. The point is fundamental. In a case where NBC has made a reasonable judgment that a program relates to, and the public has an interest in knowing about, the “broken promise” abuses that its reporters- have identified in various private pension plans, and there is no controversy concerning the existence in fact of such abuses, then the balancing of the fairness doctrine cannot permit the intrusion of a government agency to make its own determination of the subject and thrust of the program as a report that such abuses feature private pensions generally, and with such enlargement to a controversial status to burden the reporting with the obligation of providing an opposing view of the escalated controversy. VI. THE PRESENT RECORD SUSTAINS THE LICENSEE’S EDITORIAL JUDGMENT AGAINST A CHARGE OF REQUISITE BAD FAITH OR UNREASONABLENESS This is the first case in which a broadcaster has been held in violation of the fairness doctrine for the broadcasting of an investigative news documentary that presented a serious social problem. We have already stated that the Commission used an unsound legal standard in reviewing the licensee’s exercise of discretion. What result ensues —on the record before us — from application of the sound legal standard ? A. The Issue As to the Issue In law, as in philosophy, the task of ascertaining the sound rule or precept often turns significantly on rigor in the statement of the problem. Nowhere is this more the case than in the application of the fairness doctrine, for in regard to the determination that a program raised a “controversial issue of public importance,” the first and often most difficult step is “to define the issue.” In holding that “Pensions” presented views advocating only one side of a controversial issue of public importance, the Commission defined that issue in these terms: “that issue being the overall performance of the private pension system and the need for governmental regulation of all private pension plans.” (Par. 19). In so defining the issue, the Commission overruled NBC’s judgment. NBC was called to answer AIM’s complaint that NBC had given a one-sided view of a controversial issue of public importance — in its “picture of the private pension system of the United States.” NBC responded that “Pensions” was primarily designed to expose failures found in some private plans rather than to evaluate the overall performance of the private pension system and that the program did not urge any specific legislative or other remedies. The controversial “issue” identified by the Commission reflects a compound of issues — one, whether problems exist in private pension plans generally, and two, whether overall legislation should be enacted to remedy those problems. In aid of analysis, these issues will be discussed separately. In our view, the present record sustains NBC as having exercised discretion, and not abused discretion, in making the editorial judgment that what was presented, in the dominant thrust of the program, was an expose of abuses that appeared in the private pension industry, and not a general report on the state of the industry. If this judgment of NBC may stand, there is no showing of a controversial issue. The staff’s ruling that NBC was unreasonable in this judgment was not sustained by the Commission. And in our view, the present record does not establish a basis for the conclusion that the licensee’s judgmental conclusion may be set aside as unreasonable and as constituting an abuse rather than a permissible exercise of discretion. 1. The description of the program in TV columnist reviews. NBC offered the Commission an exhibit showing the appraisal of some 25 television critics who reviewed the program, appraisals made contemporaneously, in September, 1972, immediately or shortly after the broadcast. Typically, the critical comments were favorable, reporting that the program was an important and worthwhile public news service, “superlative investigative reporting.” Many noted that most viewers were likely glued elsewhere, as was apparently the case, though perhaps one may take heart from Clarence Peterson’s observations in the Chicago Tribune: “Most viewers will have watched Marcus Welby instead but it takes only a few hard-nosed skeptics to rattle the cage.” More important for present purposes are the reviewers’ descriptions of the program. These appear in Appendix B to this opinion. In general, the reviewers’ appraisals of the nature of the program are consistent with NBC’s editorial judgment. Examples include the Philadelphia Daily News: “A potent program about pitfalls and failures of some private pension plans of business and unions ... it was an angry, incisive study that focused on some people who felt cheated by their blind faith in Pensions.” More succinct was UPI: “Tough study of the failure of some private pension systems.” The note that the program undercut a “blind faith” in pensions program was struck in a constructive way in reviews like that in the Chicago Tribune: “Pension administrators may face some hard questions from employees when they get to work this morning. If so, NBC Reports will have done its job.” Other comments cut from a different angle. Thus, the review in Business Insurance put it: “The program was by no means objective; it could not have been . . . there was just not enough time to do it th