Head v. New Mexico Board of Examiners in Optometry/Concurrence Douglas

by William O. Douglas

United States Supreme Court

374 U.S. 424

Head  v.  New Mexico Board of Examiners in Optometry

 Argued: April 15 and 16, 1963. --- Decided: June 17, 1963

Mr. Justice DOUGLAS concurs in the result.

Mr. Justice BRENNAN (concurring).

I agree that the attack on the New Mexico statute as an unreasonable burden on interstate commerce has no merit and therefore join Part I of the Court's opinion. The attack based on the Supremacy Clause-the contention that the Federal Communications Act preempts the subject matter of this state regulation-is not, however, so easily answered. Although I conclude that it too cannot prevail, I think it is appropriate that I state separately my reasons for reaching that result. For only recently we held, in Farmers Educational & Cooperative Union, etc. v. WDAY, Inc., 360 U.S. 525, 79 S.Ct. 1302, 3 L.Ed.2d 1407, that the Communications Act displaced the state law of defamation insofar as that law directly conflicted with the 'equal time' aims of § 315. Cf. Radio Station WOW, Inc., v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092; Allen B. Dumont Laboratories v. Carroll, 3 Cir., 184 F.2d 153. What reasons arise from the relevant state and federal legislation governing advertising which require a different conclusion in this case?

I agree that, as the Court says, the New Mexico statute is not displaced by the FCC's powers 'governing the granting, renewal, and revocation of broadcasting licenses.' If that were the only sanction which the Commission might apply to the advertising practices which the New Mexico statute forbids, the basis for any claim of the federal statute's preemptive effect would be removed. For the Commission has long disclaimed the effectiveness of attempting to police minor deviations and indiscretions in programming and advertising by the use of 'the cumbersome weapons of criminal penalties and license refusal and revocation.' Regents of the University System of Georgia v. Carroll, 338 U.S. 586, 602, 70 S.Ct. 370, 378, 94 L.Ed. 363. ^[1] This obstacle led the Congress in 1960, on the recommendations of the Commission and the Attorney General, ^[2] to amend the Communications Act to authorize the Commission to impose money forfeitures, 47 U.S.C. § 503(b), and to grant short-term licenses, 47 U.S.C. § 307(d). The amendments also strengthened the Commission's preexisting power to issue cease-and-desist orders, 47 U.S.C. § 312(b). The Commission was thus expressly given more discriminating tools 'in dealing with violations in situations where revocation or suspension does not appear to be appropriate.' ^[3]

The Commission has been prompt to apply its new sanctions. Some stations 'whose violation records indicated need for closer supervision' have been limited to short-term licenses. ^[4] Forfeitures have been imposed for 'violations that do not warrant revocation proceedings'; ^[5] and cease-and-desist orders have been issued for the first time in broadcast cases. ^[6] Thus infractions which would heretofore have gone formally unregulated are apparently now being dealt with because the Commission may impose sanctions more commensurate with the gravity of the offense.

This is not to say that before the 1960 amendments the Commission never found the cancellation power useful in curbing some abuses now policed under the less drastic sanctions. Indeed, the Commission's informal policing of minor complaints had some success precisely because the 'death sentence' could be imposed. 'The licensing power of the FCC,' one commentator has said, 'hangs like a constant Damocles' sword over broadcasting.' ^[7] The Commission regularly reported to Congress that a great number of complaints about programming or advertising were readily resolved by 'informal adjustment,' without need for recourse to formal hearings, much less to revocation proceedings. ^[8] The Commission, it appears, though sparingly invoking the cancellation power, had 'powerful informal sanctions working in its favor, for the constant theoretical threat of license revocation at renewal time is always present * * *. (I)f a complaint arises in the programming field that accuses a station of violating FCC standards the mere notification of the respondent of the fact of the complaint would result in immediate settlement in many cases.' ^[9]

It seems to me, then, that a conclusion of nondisplacement of the state statute at bar by the Federal Communications Act can rest neither upon the practical inability of the FCC to police those practices which the State has forbidden, nor upon any want of authority in the Commission to regulate the subject matter of the New Mexico statute. Actually, the Commission has concerned itself with the content of radio advertising almost from the time that federal regulation of commercial broadcasting began. Advertising abuses in the early days of radio were a constant source of embarrassment and concern to the Commission and its predecessor, the Federal Radio Commission. ^[10] One of the principal abuses complained of was the very aspect of commercial sponsorship with which the New Mexico statute is concerned-'direct' or price advertising. The First Annual Radio Conference, meeting in 1922 at the invitation of Secretary Hoover, strongly recommended 'that direct advertising in radio broadcasting service be absolutely prohibited * * *.' ^[11] At least one station lost its license during the '20's because, among other abuses, it had indulged excessively in 'direct advertising, including the quoting of prices.' ^[12] And until the passage of the Communications Act in 1934, members of the Commission and of Congress continued to hope that broadcasting free of all commercials-or at least devoid of direct advertising, one form of sponsorship particularly objected to-might become a commercial reality. ^[13] Even representatives of the industry shared this hope for a time. ^[14]

The advent of the 1930's apparently foreclosed the possibility of radio without commercials, and the Commission shifted its attention to a more discriminating appraisal of the content of advertising over the air. As early as 1928, for example, the General Counsel of the Radio Commission held that abuses in network cigarette advertising-while not a sufficient basis for revocation proceedings against an individual licensee-might on renewal militate against the requisite finding of broadcasting in 'the public interest.' ^[15] During the mid-1930's, moreover, the Commission repeatedly warned that advertising excesses and the use of commercial material offensive to the listening public might constitute grounds for the cancellation of a license. ^[16] However, no license appears to have been withdrawn solely for that reason. Rather, the possibility of cancellation seems to have been employed as a threat, and an effective one, for the Commission continued to report its satisfaction that many complaints of this nature were settled through the use of warnings and other informal sanctions outside the formal administrative machinery. Recourse to these informal solutions seems to have been extensive at least until 1940.

Since World War II, however, the Commission has apparently followed a policy which puts less emphasis upon regulation of the content and quality of commercials. In its 1946 'Blue Book,' the Commission, although cataloguing various advertising abuses, including several which directly involved content, expressly disavowed any intention to regulate directly 'advertising excesses other than an excessive ratio of advertising time to program time * * *.' ^[17] The 'Blue Book' stated, regarding the other forms of abuse: 'The Commission has no desire to concern itself with the particular length, content, or irritating qualities of particular commercial plugs.' ^[18] There are more recent sings of renewed attention to the subject of advertising content, but nothing appears to approach the pervasive superintendence of the 1930's. ^[19] In any event the FCC has seemed content to leave to the Federal Trade Commission the regulation of much of the field, particularly the policing of false, misleading or deceptive advertising designed for radio and television broadcast. While the FCC has consistently warned its licensees that the continued broadcasting of material found by the FTC to be deceptive or misleading 'would raise serious questions as to whether such stations are operating in the public interest,' its policy seems to have been to leave the matter of direct and immediate sanctions largely to the Trade Commission. ^[20]

It is against this pattern of federal regulation that we must apply in this case the settled tests by which we determine whether federal legislation has displaced state regulation of a given subject matter. Under the first test the subject matter, here radio and television broadcasting, is clearly not one 'by its very nature admitting only of national supervision * * *.' Florida Lime & Avocado Growers, Inc., v. Paul, 373 U.S. 132, 143, 83 S.Ct. 1210, 1218. Nothing in our decisions which have required particular state regulations to yield to the Communications Act suggests such a view of the regulatory field. Cf. Farmers Educational & Co-operative Union, etc. v. WDAY, Inc., supra. Although in Radio Station WOW, Inc., v. Johnson, supra, 326 U.S., at 131-132, 65 S.Ct., at 1482, we decreed the displacement of state law in some respects, we recognized that state regulation in other respects might be constitutional.

The second test, whether there is evidence of congressional intent exclusively to occupy the field, is apposite but the requisite evidence is lacking. We have said, to be sure, that '(n)o state lines divide the radio waves, and national regulation is not only appropriate but essential to the efficient use of radio facilities.' Federal Radio Comm'n v. Nelson Bros. Bond & Mortgage Co., 289 U.S. 266, 279, 53 S.Ct. 627, 633, 77 L.Ed. 1166. But that language should not be read as construing the Communications Act to mandate the ouster of all local regulation the application of which might in any way prevent perfect national uniformity. ^[21] Indeed, even the Solicitor General, in his brief as amicus curiae, concedes as much by his recognition that Congress intended the survival of certain 'traditional' state powers and remedies-particularly common-law tort and traditional criminal sanctions.

Rather than mandate ouster of state regulations, several provisions of the Communications Act suggest a congressional design to leave standing various forms of state regulation, including the form embodied in the New Mexico statute. First, the Act contains a 'saving clause,' 47 U.S.C. § 414, providing that 'Nothing in this chapter contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.' Of course such a general provision does not resolve specific problems, Arrow Transportation Co. v. Southern R. Co., 372 U.S. 658, 671, n. 22, 83 S.Ct. 984, 991, 10 L.Ed.2d 52, but its inclusion in the statute plainly is inconsistent with congressional displacement of the state statute unless a finding of that meaning is unavoidable. ^[22] Second, the statutory regulation of radio and television broadcasting is far less comprehensive than the regulation in the very same title of telephone and telegraph facilities, Federal Communications Comm'n v. Sanders Bros. Radio Station, 309 U.S. 470, 474, 60 S.Ct. 693, 84 L.Ed. 869-yet even as to those means of communications some subjects and remedies are saved to state regulation. Finally, Congress has enacted detailed regulations of some broadcasting practices (not including that regulated by the New Mexico statute)-e.g., the manner in which sponsorship must be identified and announced, 47 U.S.C. § 317; the uttering of any 'obscene, indecent, or profane language' over the air, 18 U.S.C. § 1464; and the transmission of communications known to contain fraudulent matter, 18 U.S.C. § 1343; cf. 47 U.S.C. § 509. While the failure expressly to regulate nondeceptive advertising surely does not deprive the FCC of all such jurisdiction, that failure argues against a congressional design that state regulation was to be ousted. Cf. Federal Communications Comm'n v. American Broadcasting Co., 347 U.S. 284, 74 S.Ct. 593, 98 L.Ed. 699.

This brings me to the third test-whether as a practical matter 'both regulations can be enforced without impairing the federal superintendence of the field * * *.' Florida Lime & Avocado Growers, Inc., v. Paul, supra, 373 U.S., at 142, 83 S.Ct., at 1217. It is the application of this criterion which reveals the basic difference between this case and WDAY. We held there that the strong federal interest represented by the 'equal time' obligation which § 315 imposes upon broadcasters with respect to political candidates would be frustrated if not altogether defeated by the survival of state remedies against the broadcaster for allegedly defamatory political broadcasts. Thus the conflict in operation between the federal and state laws which converged in that case made it inevitable that the state law should yield in the interests of a particular federal regulatory scheme.

The instant case, by contrast, presents no such conflict or dissonance. The New Mexico law is one designed principally to protect the State's consumers against a local evil by local application to forbid certain forms of advertising in all mass media. Such legislation, whether concerned with the health and safety of consumers, or with their protection against fraud and deception, embodies a traditional state interest of the sort which our decisions have consistently respected. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447. Nor is such legislation required to yield simply because it may in some degree restrict the activities of one who holds a federal license. Cf. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 447-448, 80 S.Ct. 813, 818, 4 L.Ed.2d 852.

A conclusion that the state regulation is ousted by the federal requires, under this third test, a showing of conflict either in purpose or in operation between the state and federal regulations involved. The contrary of such a showing is made here, for the FCC, in determining whether a licensee's operation has served the public interest, considers whether he has complied with state and local regulations governing advertising ^[23]-in other words, the Commission accords important deference to the continued operation of state law in this field. Moreover, the National Association of Broadcasters has also consistently counseled obedience to state law on such matters. The Association, in its extensive Codes of Good Practices for both radio and television, unmistakably enjoins each member to 'refuse the facilities of his station to an advertiser where he has good reason to doubt the integrity of the advertiser, the truth of the advertising representations, or the compliance of the advertiser with the spirit and purpose of all applicable legal requirements'; ^[24] the Television Code, moreover, expressly enjoins: 'Diligence should be exercised to the end that advertising copy accepted * * * complies with pertinent Federal, state and local laws.' ^[25]

Finally, a practical consideration militates strongly against giving the federal statute preemptive effect in the absence of a clear congressional mandate. Even if the FCC is generally able and willing to regulate advertising abuses, the agency would understandably desire to share with state agencies the responsibility for policing the myriad local and occasional violations of the canons of advertising. Otherwise the burden might well become so heavy as to produce a 'no-man's land,' cf. Guss v. Utah Labor Relations Board, 353 U.S. 1, 77 S.Ct. 598, 609, 1 L.Ed.2d 601, in which there would be at best selective policing of the various advertising abuses and excesses which are now very extensively regulated by state law. ^[26] That could only mean a partial exemption of radio and television, alone among the media, from local regulations and a denial of the protection which consumers rightly expect from government. ^[27]

Our holding today intimates no view of the constitutionality of several other superficially similar forms of state regulation of broadcasting. First, nothing here said suggests that a system of state regulation, although not in direct conflict with federal law, would pass muster if it were so pervasive and so burdensome upon broadcasters as to interfere substantially with the overall purposes of federal regulation. Cf. Allen B. Dumont Laboratories v. Carroll, supra. Second, nothing said answers the problem of the situation, factually closer to that at bar but legally quite distinct, which would be presented if a State in which nationwide network material originates sought to restrict network advertising under a statute enacted for the protection only of that State's consumers. Such regulation might well exceed the scope of the State's legitimate interests and involve a constitutionally illegitimate attempt to control communications beyond its borders. Cf. Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003; Southern Pacific Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 775, 65 S.Ct. 1515, 1523, 89 L.Ed. 1915. Third, nothing said here may be read to sustain the constitutionality of applications of local advertising regulations which threaten to make it impossible for a local station to transmit network broadcasts because of their sponsorship. ^[28] While the State's interests might be no different from that protected by this New Mexico statute, the more drastic effect of the regulation upon the exercise of the broadcaster's federal license and his access to network material might well require a different result. All that the Court decides today is that this New Mexico statute may constitutionally be enforced against radio broadcasters equally with other news media doing business in New Mexico.

Notes

1. See H.R.Rep. No. 1800, 86th Cong., 2d Sess. 16 U.S.Code Cong. & Adm.News, 1960, p. 3516 ('The principal administrative sanctions which the FCC is presently authorized to invoke against licensees who flout the law are license revocation and cease and desist orders. Revocation, of course, amounts to a death sentence for the licensee. It may also have a serious effect upon the community served by the licensee. Because of its severity, it has seldom if ever been invoked.'). See also, e.g., Smead, Freedom of Speech by Radio and Television (1959), 3; Note, State Regulation of Radio and Television, 73 Harv.L.Rev. 386, 390 (1959); Note, Broadcast Licensee's Past Conduct as a Determinant of the Public Interest, 23 U. of Pitt.L.Rev. 157, 160 (1961). The comment of one author is particularly apposite to the question of this case: 'The great reluctance of the Commission to exercise its power of revocation, its lack of power to suspend licenses and its recognition of the importance of commercial advertising to radio broadcasting, make it customary for broadcast advertising to be considered by the Commission only on applications for renewal of station licenses.' 2 Socolow, The Law of Radio Broadcasting (1939), 1005.
2. The Attorney General, in his letter to the President, summarized his recommendation as follows:
3. H.R.Rep. No. 1800, 86th Cong., 2d Sess. 17; see also S.Rep. No. 1857, 86th Cong., 2d Sess. 4, 8-10. In addition to the three sanctions provided by the Communications Act amendments of 1960, the House bill had also originally provided for a Commission power to suspend licenses for minor violations, for periods not to exceed 10 days. The Senate Committee, however, recommended against the provision for suspension, and it was dropped from the final bill. See generally, concerning the scope and provisions of the 1960 amendments, Enforcement Provisions of the Communications Act, 18 Fed. Communications B.J. 45 (1963).
4. See 28 F.C.C.Ann.Rep. 47-48 (1962); New York Times, July 14, 1961, p. 37, col. 2. Although under the Communications Act of 1934 the Commission presumably possessed the power to issue licenses for terms shorter than the statutory maximum, a formal rule provided that maximum-period licenses would be regularly granted. The purpose of the amendment was, therefore, simply to reaffirm the existence of the power to issue licenses for less than the statutory three-year maximum. See H.R.Rep. No. 1800, 86th Cong., 2d Sess. 8-9.
5. See 28 F.C.C.Ann.Rep. 46-47 (1962). At least one of the forfeiture proceedings reported by the Commission in its most recent report concerned the advertising practices of a licensee, who paid a forfeiture of $50,000. See id., at 54.
6. See 27 F.C.C.Ann.Rep. 37, 40 (1961). Although provision was made for cease-and-desist orders in 1952, see 66 Stat. 717, until the 1960 amendment this sanction was invoked only in cases involving technical violations.
7. Schwartz, Antitrust and the FCC: The Problem of Network Dominance, 107 U. of Pa.L.Rev. 753, 769 (1959).
8. See 2 F.C.C.Ann.Rep. 19 (1936); 4 F.C.C.Ann.Rep. 69 (1938); 7 F.C.C.Ann.Rep. 27 (1941); Smead, Freedom of Speech by Radio and Television (1959), 30 and n. 63; Note, The Regulation of Advertising, 56 Col.L.Rev. 1018, 1048 (1956). One author has suggested that '(t)he net result has been regulation of programming by raised eyebrow.' Note, Broadcast Licensee's Past Conduct as a Determinant of the Public Interest, 23 U. of Pitt.L.Rev. 157, 170 (1961). It has also been noted that speeches and informal statements by individual Commissioners have often had significant impact upon programming and other activities of licensees. Note, Television Programming, Communication Research, and the FCC, 23 U. of Pitt.L.Rev. 993, 996 (1962).
9. Woll, Administrative Law: The Informal Process (1963), 139.
10. See Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 11-13; Moser and Lavine, Radio and the Law (1947), §§ 42, 43; Perry, Weak Spots in the American System of Broadcasting, 177 Annals Am.Acad.Pol. & Soc.Sci. 22, 24-25 (1935).
11. Quoted in Federal Communications Commission, Public Service Responsibility of Broadcast Licensees (1946), 41.
12. Ibid. The Commission explained its refusal to prohibit all direct advertising as follows: 'The Commission is not fully convinced that it has heard both side of the matter, but is willing to concede that in some localities the quoting of direct merchandise prices may serve as a sort of local market, and in that community a service may thus be rendered. That such is not the case generally, however, the commission knows from thousands and thousands of letters which it has had from all over the country complaining of such practices.' 2 F.R.C.Ann.Rep. 168-169 (1928).
13. See, e.g., Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., 1st Sess., pt. 5, p. 192; id., pt. 6, p. 230. One may only speculate what might have been the course of American broadcasting had such a prohibition been imposed. For recent difficulties which Sweden has experienced under a general ban on radio advertising, see New York Times, April 2, 1961, p. 1, col. 3; id., April 3, 1961, p. 8, col. 4.
14. Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., 2d Sess., pt. 13, pp. 1705-1706. Compare Durstine, The Future of Radio Advertising in the United States, 177 Annals Am.Acad.Pol. & Soc.Sci. 147, 149 (1935).
15. Opinion No. 32, 1928-1929 Opinions of the General Counsel, Federal Radio Commission, 77, 81-82. The General Counsel also rejected the contention that such consideration of a licensee's past advertising practices might amount to censorship, partly on the ground of a 'necessary distinction between restrictions placed upon the transmission of intelligence for which there is a general public demand and need and limitations imposed upon broadcasting propaganda, intended to obtain commercial success, for which there is no such demand or need.' Id., at 81.
16. See, e.g., Knickerbocker Broadcasting Co., 2 F.C.C. 76; WSBC, Inc., 2 F.C.C. 293; Hammond-Calumet Broadcasting Corp., 2 F.C.C. 321; Oak Leaves Broadcasting Station, Inc., 2 F.C.C. 298; Farmers & Bankers Life Ins. Co., 2 F.C.C. 455. In Ben S. McGlashan, 2 F.C.C. 145, 152, the Commission dismissed as 'manifestly contrary to the law' the suggestion that 'licensees should not have the duty of examining into the propriety of advertising to be broadcast * * *.' Cf. KFKB Broadcasting Ass'n, Inc., v. Federal Radio Comm'n, 60 App.D.C. 79, 47 F.2d 670. See generally Moser and Lavine, Radio and the Law (1947), § 43; Note, Governmental Regulation of the Program Content of Television Broadcasting, 19 Geo.Wash.L.Rev. 312, 317 (1951).
17. Federal Communications Commission, Public Service Responsibility of Broadcast Licensees (1946), 47.
18. Id., at 56.
19. See, e.g., WREC Broadcasting Service, 10 Pike & Fischer Radio Reg. 1323, 1350-1351, 1358-1359; Liberty Television, Inc., 30 F.C.C. 411, 414; 28 F.C.C.Ann.Rep. 54-55 (1962). Cf. Public Notice, 'Double Billing' Practices, March, 7, 1962, 23 Pike & Fischer Radio Reg. 175; Sam Morris, 11 F.C.C. 197; Hale and Hale, Competition or Control II: Radio and Television Broadcasting, 107 U. of Pa.L.Rev. 585, 603-607 (1959).
20. Liaison Between FCC and FTC Relating to False and Misleading Radio and TV Advertising, Feb. 21, 1957, 14 Pike & Fischer Radio Reg. 1262.
21. Compare, e.g., Kroeger v. Stahl, 3 Cir., 248 F.2d 121, with, e.g., Western Union Telegraph Co. v. State, 207 Ga. 675, 63 S.E.2d 878; National Broadcasting Co. v. Board of Public Utility Com'rs, D.C., 25 F.Supp. 761; RCA Communications, Inc. v. Patchogue Broadcasting Co., Inc., 19 Pike & Fischer Radio Reg. 2071. See generally Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 72-73; Note, State Regulation of Radio Lotteries, 1952 Wis.L.Rev. 177, 180-181.
22. See Note, State Regulation of Radio and Television, 73 Harv.L.Rev. 386, 387-388 (1959); Note, Governmental Regulation of the Program Content of Television Broadcasting, 19 Geo.Wash.L.Rev. 312, 322-323 (1951).
23. See Letter of Acting Chairman Paul A. Walker to Senator Edwin C. Johnson, August 11, 1949, 5 Pike & Fischer Radio Reg. 593, 594.
24. Quoted in Emery, Broadcasting and Government: Responsibilities and Regulations (1961), 430, 445.
25. Id., at 445.
26. See generally Moser and Lavine, Radio and the Law (1947), c. V; Note, State Regulation of Radio Lotteries, 1952 Wis.L.Rev. 177; State Legislation Affecting Radio and Television, 1951-1952, 12 Fed. Communications B.J. 261 (1952); Note, State Control of Bait Advertising, 69 Yale L.J. 830 (1960).
27. This is not to suggest that a statute which formally exempted certain media from penalties upon certain types of advertising would necessarily represent any violation of the Equal Protection Clause. See Packer Corp. v. Utah, 285 U.S. 105, 108 110, 52 S.Ct. 273, 274, 76 L.Ed. 643. Cf. Calif.Bus. & Prof.Code § 17502, which was amended in 1951 to exempt from the prohibitions against false and deceptive advertising a newspaper or radio station which 'broadcasts or publishes an advertisement in good faith, without knowledge of its false, deceptive, or misleading character.'
28. See Note, State Regulation of Radio and Television, 73 Harv.L.Rev. 386, 393-395 (1959).