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28 Fed. Comm. B.J. 1 (1975)
The Limits of Broadcast Self--Regulation under the First Amendment

handle is hein.journals/fedcom28 and id is 7 raw text is: THE LIMITS OF BROADCAST SELF-REGULATION UNDER THE FIRST AMENDMENT DANIEL L. BRENNER* Our story begins with an astrologist named Alexandra Mark, who in 1971 unsuccessfully sought an appearance on the National Broadcasting Company's Tonight Show to discuss and publicize her book, Astrology for the Aquarian Age. Pressed by her agent to explain its denial, the network replied that program material on astrology was unacceptable when presented for the purpose of fostering belief in the subject.1 Mark complained without success to the Federal Communications Commission (FCC) that NBC's decision as to her unsuitability had resulted from a mechanical application of the Television Code of the National Association of Broadcasters (NAB) to which it subscribes and from which its explanation was fashioned. Mark insisted that the network as licensee of WNBC-TV, New York, was required to make an individuated judgment as to the suitability of programming that treats astrology with hospitality. In Mark v. FCC,2 the Court of Appeals for the First Circuit sustained the FCC's finding that Mark had failed to demonstrate that NBC's refusal to air program matter banned *B.A., A.M., Stanford University. Copyright 1975 by the Board of Trustees of the Leland Stanford Junior University. This article was origi- nally published at 27 Stan.L.Rev. 1527 (1975), and is reprinted here, with revisions, by permission of the copyright holder. 'National Association of Broadcasters, The Television Code of the National Association of Broadcasters ch. IV-21 (16th ed. 1972). 2468 F.2d 266 (1st Cir.), aff'g Alexandra Mark, 34 F.C.C. 2d 434 (1972). This article does not suggest that NBC acted unreasonably in its decision to deny Mark an opportunity to showcase her ideas on the Tonight Show, for not every aspiring author can demand to be scheduled on a program that requires its producers to exercise considerable selectivity in choosing guests. Rather, NBC erred by attempting to cloak its decision by invoking the Television Code when a more candid, if less delicate, reply-that Mark or her ideas did not possess sufficient audience appeal-would have sufficed.

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