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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