McGRAW, Chief Justice:
In this original proceeding in mandamus, the Court is asked to examine the constitutional obligation of a state-supported university to afford interested parties an opportunity to respond to political speech contained in radio advertisements broadcast as part of a university athletic event.
The petitioners, Richard Trumka, Cecil Roberts and John Banovic, initiated this proceeding on behalf of the United Mine Workers of America (UMWA), a voluntary association and international union which represents coal miners throughout West Virginia. The respondents are Michael Parsons, assistant athletic director at West Virginia University (WVU), and the West Virginia Board of Regents, a statutory corporation responsible for all public higher education activities in West Virginia.
The petitioners seek to compel the respondents to provide them an opportunity, during the next ensuing radio broadcasts of WVU football games, to express contrasting views to those expressed in paid radio advertisements sponsored jointly by the West Virginia Coal Association and the West Virginia Surface Mining and Reclamation Association (the coal associations) and broadcast during WVU football games in the Fall of 1982 over the Mountaineer Sports Network (MSN). In the alternative, the petitioners seek to prohibit future political programming by the respondents. We find that the respondents have a constitutional obligation to present opposing viewpoints to those expressed in the coal associations' advertisements and that the UMWA, as an appropriate spokesman for the presentation of such viewpoints, has the right to respond to the coal associations' advertisements.
WVU is a publicly owned and supported land-grant institution of higher education established by the West Virginia Legislature in 1867. See 1867 W.Va. Acts ch. 9, ch. 108; see also 1863 W.Va. Acts ch. 56. MSN is an arm of the Department of Intercollegiate Athletics at WVU which contracts with advertisers to provide funds for broadcast coverage of WVU athletic events. Respondent Parsons is responsible for the oversight of MSN.
MSN is not a radio broadcaster itself, but rather produces a sports program "package" which it provides through a barter system to individual radio stations for broadcast. As part of its football programming, MSN requires local radio stations to carry 15 minutes of advertising provided by MSN pursuant to agreements with advertisers.
The respondents assert that MSN is not involved in the production of advertisements. Rather, the advertisements are received by MSN as a finished product provided by the advertiser. Although the radio "sponsor agreement" provides that MSN announcers will perform live commercials if so requested, the announcers merely read advertising copy provided by advertisers. Thus, the respondents assert that MSN performs no substantive review prior to broadcast of the content of advertising furnished. We note, however, that the radio "sponsor agreement" expressly reserves to MSN the right to "approve or disapprove... all commercial copy." The respondents assert that this right has never been exercised by MSN, and exists solely to insure compliance with NCAA obligations and WVU rules which prohibit endorsement of advertisers' products.
The West Virginia Coal Association has been an advertiser on MSN for more than ten years. In the past, its advertisements were essentially commercial in nature and designed to promote the use of coal. During the Fall of 1982, however, the advertisements provided by the coal associations to MSN and broadcast during WVU football games were both political and controversial. Their apparent purpose was to convince legislators and the public that the "business climate" in West Virginia needed improvement.
Sometime in February or early March, 1983, Michael Burdiss, a representative of the UMWA, telephoned respondent Parsons and requested free advertising time to express a rebuttal to the views expressed by the coal associations in the advertisements broadcast over MSN. Respondent Parsons denied this request. The union representative then inquired whether the UMWA could purchase advertising time. Respondent Parsons also denied this request saying no advertising time was available.
This case is unique in that it presents a novel combination of legal issues. These issues involve similar, though diverse, principles of law which have evolved from our constitutional guarantees of equal protection and free speech. Two of these principles are particularly relevant to this case—the "public forum doctrine" which protects the right of citizens to use certain governmental property for the exercise of free speech, and the "fairness doctrine" which requires that the discussion of public issues be presented on broadcast stations, and that each side of those issues be given fair coverage. Although not controlling under the facts presented, an examination of these principles is essential to understanding the nature of the issues involved.
In a series of cases, the United States Supreme Court has developed the "public forum doctrine." The doctrine first emerged in Hague v. CIO, 307 U.S. 496, 515-16, 59 S.Ct. 954, 964, 83 L.Ed. 1423, 1436-37 (1939), where the Court struck down a city ordinance requiring a permit for public assembly, stating:
To determine whether a public forum exists, courts examine several criteria. These include "the character of the place, its usual activities and whether its historical dedication has been to the exercise of First Amendment rights." Spartacus Youth League v. Board of Trustees of Illinois Industrial University, 502 F.Supp. 789, 798 (N.D.Ill.1980). Places which have been held by the United States Supreme Court to constitute public forums include: streets, parks, and sidewalks, Hague, supra; state-house grounds, Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963); a public library, Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); a military reservation, Flower v. United States, 407 U.S. 197, 92 S.Ct. 1842, 32 L.Ed.2d 653 (1972) (per curiam); a municipal theater, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); a school board meeting, City of Madison Joint School District v. Wisconsin Public Employment Relations Comm'n, 429 U.S. 167, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976); university meeting facilities, Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981); and, public sidewalks forming the perimeter of the United States Supreme Court grounds, United States v. Grace, ___ U.S. ___, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983).
Various courts have held that university facilities generally open to the public constitute public forums. In Widmar v. Vincent, 454 U.S. at 267-68 n. 5, 102 S.Ct. at 273 n. 5., 70 L.Ed.2d at 446 n. 5, the Supreme Court discussed the application of the public forum doctrine to a public university:
Other courts have also applied the public forum doctrine to institutions of higher education. See, e.g., Jones v. Board of Regents, 436 F.2d 618 (9th Cir.1971); Spartacus Youth League, supra; Brubaker v. Moelchert, 405 F.Supp. 837 (W.D.N.C.1975); Dunkel v. Elkins, 325 F.Supp. 1235 (D.Md. 1971).
West Virginia University exists as the legislative fulfillment of a constitutional mandate that it "foster and encourage, moral, intellectual, scientific and agricultural improvement [and] wherever it may be practicable, make suitable provision ... for the organization of such institutions of learning as the best interests of general education in the State may demand."
In creating West Virginia University, the Legislature established what is, practically speaking, a specialized forum. As the United States Supreme Court stated in Healy v. James, 408 U.S. at 180, 92 S.Ct. at 2345, 33 L.Ed.2d at 279, "The college classroom with its surrounding environs is particularly `the marketplace of ideas.'" Thus, a public university can properly be viewed as a governmentally created specialized forum for the propagation of information and knowledge. In Spartacus Youth League, 502 F.Supp. at 798, the court stated, "A public university although not created mainly for public interchange, is an important area for a broad range of communicative activities. The college campus is a peculiarly fertile environment for the exchange and dissemination of ideas." Public universities, such as West Virginia University, are enclaves of intellectual pursuit in which a spirit of open-mindedness, free inquiry, and critical evaluation is to be encouraged and fostered. In Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683-84, 17 L.Ed.2d 629, 640-41 (1967) (quoting Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1211-12, 1 L.Ed.2d 1311, 1324 (1957)), the Court stated:
The Supreme Court's observations in Keyishian are equally applicable to the crucial role played by institutions of higher education with regard to the social, economic, political, and cultural development of the general public at the state level.
The analysis of West Virginia University's status as a specialized forum for the dissemination of ideas does not change because intercollegiate athletics is involved. Similarly, the nature of MSN as a commercial enterprise does not diminish the responsibilities which flow from its relationship to the university. The primary mission of WVU is educational. Intercollegiate athletics are only incidental to this primary mission, and can be justified only to the extent that they serve educational goals. The substantial investment of public funds to create and support an athletic infrastructure which includes a new 20 million dollar football stadium and a new 4.5 million dollar all purpose shell building for sports and physical education at WVU,
There is no indication that any determination was made on the part of WVU that there was an unfulfilled educational need which could be met by the sale of advertising. In State ex rel. v. Southern Junior College, 166 Tenn. 535, 539-40, 64 S.W.2d 9, 10 (1933), the Tennessee Supreme Court held that although a state college could operate a printing shop as an educational tool, it could not do so on a commercial basis "since the carrying on of the business of commercial printing had no reasonable relation to the conduct of the school." The authority of WVU to create MSN is not challenged here. However, Southern Junior College demonstrates the tenuous nexus between the operation of a commercial enterprise and the educational mission of colleges and universities.
The increased popularity of WVU football presents a profound opportunity for the university to educate members of the public to the value of education. West Virginia ranks 42nd nationally in percentage of population completing at least high school, with only 43.4 percent earning high school diplomas. U.S. Department of Commerce, Statistical Abstract of the United States 1982-83, at 144. The State pride generated by the success of WVU football could be utilized to call the public's attention to the
The control exercised by WVU over the sale of advertising time is identical to that exercised over any other vehicle of expression within the institution. Therefore, the framework for evaluating whether the advertising time sold by MSN constitutes a public forum is identical. An examination of the character of a university, its usual activities, and its traditional role as an arena for the interchange of ideas, would indicate that WVU is, in fact, a "public" forum. However, previous court decisions involving the application of the public forum doctrine to universities, as well as in other contexts, have been limited to public places, e.g., classrooms, see Widmar v. Vincent, supra; a student union and adjacent walkways, see Spartacus Youth League; and other specific buildings or physical areas, Brubaker, supra; Wood v. Davison, 351 F.Supp. 543 (N.D.Ga.1972), and Dunkel, supra. In contrast, the present case involves intangible property—the sale of advertising time for broadcast during university football games.
Although the public forum doctrine functions well in protecting the right of access when governmental regulation of a physical facility is involved, its utility in the broadcasting context is considerably diminished. In Columbia Broadcasting System, Inc. v. National Democratic Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 774 (1974), the United States Supreme Court, in rejecting a right of access to the broadcast media, recognized the limited utility of the public forum doctrine in the broadcast context. The Court stated that its previous public forum decisions "provide little guidance ... in resolving the question whether the First Amendment requires a private right of access to the broadcast media. In none of those cases did the forum sought for expression have an affirmative and independent statutory obligation to provide full and fair coverage of public issues...." 412 U.S. at 129, 93 S.Ct. at 2100, 36 L.Ed.2d at 799. It is the unique nature of broadcasting as an extensively regulated vehicle of communication which gives rise to a constitutional treatment different from other modes of expression.
The broadcast media, like the print media, are protected by constitutional free speech and press guarantees. See United States v. Paramount Pictures, Inc., 334 U.S. 131, 166, 68 S.Ct. 915, 933, 92 L.Ed. 1260, 1297 (1948). In contrast to the print media, however, broadcasters have traditionally been subject to extensive governmental regulation. In Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), the United States Supreme Court chronicled the genesis of federal regulation of broadcasting:
395 U.S. at 375-77, 89 S.Ct. at 1799, 23 L.Ed.2d at 380-81.
In 1934, the Federal Radio Commission became the Federal Communications Commission. Communications Act of 1934, Pub.L. No. 73-416, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. §§ 151-609 (1976 & Supp. V 1981)). Its mission continued to be the furtherance of the "public interest, convenience, or necessity" with regards to its regulation of broadcasting. See 47 U.S.C. §§ 302a(a); 307(c); 307(e)(1); 309(a); 310(d); 311(b); 311(c)(3); 311(d)(3); 316(a); 317(d); 318, 319(d), 721(c)(7); 721(c)(8); 721(c)(9); 721(c)(10); 734(b)(1) (1976 & Supp. V 1981).
The scarcity theory of broadcasting discussed in Red Lion, supra, was first advanced by the Supreme Court in National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). In responding to the first broadcast licensee attack of Federal Communications Commission regulations on constitutional grounds, the Court stated, "Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other medias [sic] of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation." 319 U.S. at 226, 63 S.Ct. at 1014, 87 L.Ed. at 1368. This scarcity rationale has permitted the Federal Communications Commission not only to regulate the technical aspects of broadcasting, but also to set up a regulatory scheme to ensure
The basic principle underlying the fairness doctrine is the public's right to be informed. The fairness doctrine "imposes two affirmative responsibilities on the broadcaster: coverage of issues of public importance must be adequate and must fairly reflect differing viewpoints." Columbia Broadcasting System, 412 U.S. at 111, 93 S.Ct. at 2090, 36 L.Ed.2d at 788. The fairness doctrine is triggered when a broadcaster has presented only one side of a controversial issue of public importance. Green v. FCC, 447 F.2d 323 (D.C.Cir.1971). A complainant who invokes the fairness doctrine must show unfairness and imbalance in the broadcaster's treatment of the particular issue. Healy v. FCC, 460 F.2d 917 (D.C.Cir.1972). If the complainant prevails the FCC advises the licensee "to meet its fairness obligations through additional programming." In the Matter of the Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act. 48 F.C.C.2d 1, 17 (1974) [hereinafter Fairness Report]. The Federal Communications Commission in a report on its application of the fairness doctrine has stated:
48 F.C.C.2d at 13.
In an amicus brief filed by the coal associations, their primary contention is that the subject matter of the UMWA's petition is preempted by the Communications Act of 1934. This contention ignores the fact that MSN is not a licensee subject to federal jurisdiction. Rather, MSN merely produces programming which it sells to licensees. Although the concepts underlying the fairness doctrine as developed by the Federal Communications Commission provide some guidance in our examination of MSN's responsibility to afford a reasonable opportunity for the presentation of contrasting viewpoints, federal communications regulations do not control.
The petitioners base their claim for relief upon two provisions of the West Virginia Constitution derived from the Virginia Bill of Rights. See Va. Const. art. I, §§ 3, 12.
The obligation upon broadcasters under the Communications Act of 1934, 47 U.S.C. §§ 151 et seq. to operate in the "public interest" is analogous to the obligation imposed upon state government by the West Virginia Constitution to act "for the common benefit, protection and security of the people." W.Va. Const. art. III, § 3. The obligation upon state government, however, to preserve its neutrality when it provides a vehicle for political expression is even greater. The West Virginia's "common benefit, protection and security" provision is an equal protection clause. It is as applicable in the marketplace of ideas as it is in any other context. The guarantee of equal protection of the laws has been characterized as "[a] natural doctrinal vehicle for promoting the principle of equal liberty of expression." Kalven, Equality as a Central Principle in the First Amendment, U.Chi.L.Rev. 20, 20 (1975). By requiring governmental neutrality in the field of ideas and the balanced presentation of opposing points of view in governmentally created forums, our state constitution's "common benefit" provision serves important equal protection objectives that federal communications law has not been interpreted to serve. One of these objectives is fundamental fairness, a concept which is inherent to equal protection. Accordingly, we conclude that when a state agency or instrumentality sells advertising for broadcast which presents one side of a politically controversial issue of public concern, it is obligated under W.Va. Const. art. III, § 3 and art. III, § 7 to preserve its neutrality by providing a reasonable opportunity for the presentation of contrasting points of view in order that the "common benefit, protection and security" be served and fundamental fairness preserved.
In addition to the equal protection principles served by the requirement of governmental neutrality, a more enlightened discussion of important public issues is also fostered. The obligation of the State in cases such as this must be considered against "the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open." New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686, 701 (1914). The United States Supreme Court has recognized that freedom of expression concerning public issues "is at the heart of the First Amendment's protection." First National Bank of Boston v. Bellotti, 435 U.S. 765, 776, 98 S.Ct. 1407, 1415, 55 L.Ed.2d 707, 717 (1978); see also Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 1436, 16 L.Ed.2d 484, 488 (1966); Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215-16, 13 L.Ed.2d 125, 133 (1964) ("speech concerning public affairs is more than self-expression; it is the essence of self-government"). When those in power suppress competing views on public issues, self-government is trammeled. Bellotti, 435 U.S. at 777 n. 12, 98 S.Ct. at 1416 n. 12, 55 L.Ed.2d at 718 n. 12. This recognition of the dynamic nature of the marketplace of ideas has resulted in an increased appreciation of the first amendment rights of the recipients of information. See Martin v. City of Struthers, 319 U.S. 141, 143, 63 S.Ct. 862, 863, 87 L.Ed. 1313, 1316-17 (1943); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945); Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398, 403 (1965) (Brennan, J., concurring); Griswold v. Connecticut, 381 U.S. 479, 482, 85 S.Ct. 1678, 1680, 14 L.Ed.2d 510, 514 (1965); see also Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). As the United States Supreme Court stated in Red Lion, 395 U.S. at 390, 89 S.Ct. at 1806-07, 23 L.Ed.2d at 389:
Requiring MSN to provide a reasonable opportunity for the balanced presentation of contrasting points of view will provide a more enlightened debate on the public issues discussed in the coal associations' advertisements,
The respondents contend that, under the first amendment, they cannot exercise any content review over the advertisements submitted for broadcast. Although not essential to the disposition of the present case, the Court notes that content review has been permitted in certain limited contexts. For example, in Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (1974), the Supreme Court upheld a municipality's rule which prohibited political candidates from placing advertisements on placards inside rapid transit vehicles,
418 U.S. at 305, 94 S.Ct. at 2718, 41 L.Ed.2d at 778.
The sale of advertising by MSN, an instrumentality of the State, presents the same dangers addressed by the Supreme Court in Lehman. First, there is a substantial potential for abuse present in the contractual arrangement that exists between MSN and its advertisers. By giving a right of first refusal to its advertisers, MSN encourages the monopolization of the special forum it has created, and effectively prevents the expression of new ideas and viewpoints.
The nature of the broadcasting audience as "captive" has been recognized. In Columbia Broadcasting System, 412 U.S. at 127, 93 S.Ct. at 2099, 36 L.Ed.2d at 798, the Court stated: "The [Federal Communications] Commission is ... entitled to take into account the reality that in a very real sense listeners and viewers constitute a `captive audience.'" The Court also quoted Judge Bazelon's statement in Banzhaf v. FCC, 405 F.2d 1082, 1100-01 (D.C.Cir.1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969), where the Federal Communications Commission's power to promulgate rules regarding cigarette advertising was upheld:
412 U.S. at 128, 93 S.Ct. at 2099, 36 L.Ed.2d at 798. Similarly, in FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073, 1093 (1978). the Supreme
Justice Douglas, the crucial fifth vote in Lehman, based his decision on the fact that commuters on a mass transit system are a captive audience. To illustrate this position, he stated: "The radio can be turned off, but not so the billboard on streetcar placard." 418 U.S. at 308, 94 S.Ct. at 2719, 41 L.Ed.2d at 780, quoting, Packer Corp. v. Utah, 285 U.S. 105, 110, 52 S.Ct. 273, 274, 76 L.Ed. 643, 647. However, it is clear that Justice Douglas had offensive radio programming, and not offensive radio advertising broadcast during an otherwise inoffensive program in mind. As Justice Douglas stated: "One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes." Id. (quoting his dissent in Public Utilities Comm'n v. Pollak, 343 U.S. 451, 469, 72 S.Ct. 813, 824, 96 L.Ed. 1068, 1081 (1952) (emphasis added). In this case, however, WVU football fans who wish to avoid the coal associations' advertisements could do so "only by frequently leaving the room, changing the channel, or doing some other such affirmative act." 405 F.2d at 1101.
The respondents assert that the relief requested by the petitioners would impose an unconstitutional burden on their own first amendment rights. They rely upon Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) to support this contention. In Miami Herald, 418 U.S. at 258, 94 S.Ct. at 2840, 41 L.Ed.2d at 741, the Supreme Court held that a Florida statute requiring newspapers to afford free space to candidates whose character had been attacked by those newspapers was an unconstitutional violation of the first amendment's free press guarantee. Respondents allege that the imposition of a similar right to reply requirement in this case would be unconstitutional. We disagree.
In Miami Herald, the newspaper involved printed editorials critical of Tornillo's candidacy for state legislature. In response, Tornillo demanded that the newspaper print verbatim his replies, relying on a state statute which provided that if a candidate was attacked regarding his personal character or official record by any newspaper, the candidate had a right to demand that the newspaper print, free of charge, any reply the candidate might wish to make to the newspaper's charges. 418 U.S. at 243-44, 94 S.Ct. at 2832-33, 41 L.Ed.2d at 733. The Supreme Court upheld the newspaper's refusal to print Tornillo's reply, relying primarily upon the newspaper's freedom of the press. It stated,
418 U.S. at 258, 94 S.Ct. at 2840, 41 L.Ed.2d at 741. Thus, the newspaper in Miami Herald could not be penalized for the exercise of its free speech rights in the same way that any other speaker could not be penalized.
The Mountaineer Sports Network, on the other hand, exercises no editorial judgment over the advertisements it broadcasts. Indeed, respondents concede that MSN is merely a conduit for the views of its advertisers. MSN is no more than a special state revenue account within the Department of Intercollegiate Athletics at WVU. It has no employees or staff. It is not a private entity seeking to advocate its own political views, and therefore, it has no free speech interests similar to those held by the newspaper in Miami Herald.
Additionally, unlike the private character of the newspaper in Miami Herald, here a public university is involved. Accordingly, we reject the respondents' contention that the relief requested would be unconstitutional under Miami Herald.
We now reach the question of the method by which MSN can fulfill its constitutional obligation to provide an opportunity for the presentation of contrasting views on the controversial issues of public importance raised in the coal associations' advertisements. Although licensees are required under the fairness doctrine to afford a reasonable opportunity for the presentation of contrasting points of view, they are given "considerable discretion in selecting the manner of coverage, the appropriate spokesmen, and the techniques of production and presentation." Fairness Report, 48 F.C.C.2d at 16.
Under the approach adopted by the FCC, while "no particular individual has a guaranteed right of access to the broadcast microphone
74 Am.Jur.2d Telecommunications § 154 (1974) (footnotes omitted).
Where a program has been broadcast presenting one side of a controversial issue, the broadcaster has an affirmative duty to make "a diligent, good-faith effort to communicate to ... potential spokesman [for opposing points of view] his willingness to present their views on the issue or issues presented." Fairness Report, 48 F.C.C.2d at 14. Moreover, where an otherwise appropriate spokesman steps forward, the broadcaster cannot reject the presentation of the opposing viewpoint on the ground that he cannot obtain paid sponsorship. Cullman Broadcasting Co., Inc., 40 F.C.C. 576 (1963); see also John J. Dempsey, 6 P & F Radio Reg. 615 (1950); Metropolitan Broadcasting Corp., 19 P & F Radio Reg. 602 (1960); The Evening News Assn., 6 P & F Radio Reg. 283 (1950).
The petitioners request an opportunity to express contrasting views to those expressed in the political advertising of the coal associations. Respondents may not rely on either the right of first refusal or other contractual provisions to circumvent its obligation to present contrasting viewpoints. Although it is normally within a state agency's discretion to determine the appropriate spokesmen for the presentation of opposing viewpoints, it must, under the standards of reasonableness and good faith, consider legitimate requests by those wishing to express opposing views. Furthermore, although a state agency may consider ability to pay in determining the amount to be charged for the access provided, access may not turn on the financial capacity of potential spokesmen to pay the rates normally charged. Thus, in a proper case, access may be required to be provided either at a reduced rate or at no charge. Finally, while the amount of time provided for response need not be equivalent to that provided proponents of the initial point of view, it must be sufficient to ensure a reasonably balanced presentation of differing viewpoints in order to preserve the right of the people to hear diverse points of view in state-sponsored forums. We note in this regard that, in the context of state broadcast activities, the amount of time provided to proponents and opponents is perhaps the sole objective criterion for measuring the balanced presentation of opposing views. Therefore, the amount of time provided for response is an important factor in determining whether a balanced presentation has taken place.
Under the fairness doctrine as developed by the FCC, it would ordinarily be within a licensee's discretion to determine the most appropriate spokesman to respond to a controversial issue of public importance. However, several factors militate against allowing respondents to exercise such discretion in this case. First, respondents failed to seek out respondents to the coal associations' advertisements despite its knowledge of the politically controversial character of the advertisements. Second, despite the UMWA's request for an opportunity to respond, respondents neither afforded
Writ [as moulded] granted.
The coal associations purchased five minutes of advertising time for each of the 11 WVU football games broadcast over MSN. These five minutes were divided into individual 30 and 60 second commercials. The text of one of the 60 second commercials is:
The respondents concede that the coal associations' advertisements "were both political and controversial." Indeed, coal miner health and safety has long been a profoundly controversial political issue in West Virginia, as is reflected in our literature, see, e.g., L. Dillon, They Died in Darkness (1976); H. Lee, Blood-letting in Appalachia (1969), in the public record of the toll which profit-motivated operator practices have exacted on the life and limbs of West Virginia miners, see W.Va. Dept. of Mines, Annual Report and Directory of Mines (1982) (twenty-two coal miners lost their lives in West Virginia coal mines in 1982 and 4,358 miners suffered lost-time injuries), and in the decisions of this Court. See, e.g., United Mine Workers of America v. Miller, W.Va., 291 S.E.2d 673 (1982). Indeed, one of our number has been moved to note:
Walls v. Miller, W.Va., 251 S.E.2d 491, 496 (1978). A cursory review of any coal bibliography reveals a plethora of publications documenting the plight of coal miners and their struggle for a better, safer life. For example, in C. Ross, Bibliography of Southern Appalachia (1976) at 67-70, the following titles appear: "The Pittston Mentality: Manslaughter in Buffalo Creek;" "The Mine War on Cabin Creek and Paint Creek, West Virginia, in 1912-1913;" "The New Kanawha River and the Mind War of West Virginia;" "Human Crisis in the Kingdom of Coal;" "Death in the Dark;" "The Hurricane Creek Massacre: An Inquiry into the Circumstances Surrounding the Deaths of Thirty-eight Men in a Coal Mine Explosion;" "Coal: Southwest Virginia's Source of Misery;" "Notable Mine Disasters of Fayette County, West Virginia;" "A Study of Fatal Roof Fall Accidents in Bituminous Coal Mines;" "Coal Creek Rebellion;" "The Coal Miner's Insurrections, 1891-1892;" and "The Plight of the Bituminous Coal Miner." This history of bloodshed gives special meaning to a comment appearing in the public record that, in the context of mining, "one man's good business climate is another man's feudal society." Little, [Business Climate] Bowl Bid Rumored for Mountaineers, The Sunday Gazette-Mail (Charleston, W.Va.), Sept. 19, 1982, at 6B, col. 2.
In rejecting a contention that broadcasters are required to accept editorial advertisements under the Communications Act of 1934 or under the first amendment, the United States Supreme Court in Columbia Broadcasting System, 412 U.S. at 123, 93 S.Ct. at 2097, 36 L.Ed.2d at 795, stated, "a right of access ... would have little meaning to those who could not afford to purchase time in the first instance." Similar concerns surfaced in First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978). There, in a 5-4 decision, the Supreme Court held that a state statute making it unlawful for a corporation to contribute funds or other valuable assistance to campaigns for or against any election issue or candidate was an unconstitutional violation of the first and fourteenth amendments. All of the opinions in Bellotti recognized the potential for domination of the marketplace of ideas posed by corporate wealth. Although Justice Powell's majority opinion rejected the contention that corporate participation in the referendum vote involved would exert an undue influence on the outcome by drowning out other points of view, he recognized that:
435 U.S. at 789-90, 98 S.Ct. at 1422-23, 55 L.Ed.2d at 726 (footnotes and citations omitted). See also 435 U.S. at 796-77, 98 S.Ct. at 1426-27, 55 L.Ed.2d at 730-31 (Burger, C.J., concurring) (discussing the "vast wealth and power" of media conglomerates); 435 U.S. at 809-12, 98 S.Ct. at 1433-34, 55 L.Ed.2d at 738-40 (White, J., dissenting) (discussing corporate domination of the political process); 435 U.S. at 825-28, 98 S.Ct. at 1441-43, 55 L.Ed.2d at 748-49 (Rehnquist, J., dissenting) (expressing the view that corporations do not have a constitutionally protected liberty to engage in political activity with regard to matters having no material effect on their business).
(quoted in Fairness Report, 48 F.C.C.2d at 14)