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. This obstacle led the Congress in 1960, on the recommendations of the Commission and the Attorney General, 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.'
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. Forfeitures have been imposed for 'violations that do not warrant revocation proceedings'; and cease-and-desist orders have been issued for the first time in broadcast cases. 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.' 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. 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.'