In re Application of WESTINGHOUSE
BROADCASTING COMPANY, INC.
For Renewal of the License of Station
KPIX-TV,
File No. BRCT-17
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 1034 (1969)
RELEASE-NUMBER: FCC 69-273
March 19, 1969 Adopted
ACTION:
MEMORANDUM
OPINION AND ORDER
BY THE
COMMISSION: COMMISSIONER COX CONCURRING BUT WOULD, IN ADDITION, HAVE INDICATED
THAT THE LICENSEE SHOULD HAVE MAINTAINED APPROXIMATELY THE SAME RATIO BETWEEN CIGARETTE
COMMERCIALS AND ANTISMOKING MESSAGES IN ALL PERIODS OF THE BROADCAST DAY:
COMMISSIONER
[*1034] 1.
The Commission has before it the petition of John F. Banzhaf III and
ASH, Action on Smoking and Health, filed December 24, 1968, opposing the
renewal of the license of television station KPIX,
2. Petitioner alleges that the licensee has
deliberately and willfully refused to obey the order of the Commission in its
decision "Applicability of the Fairness Doctrine to Cigarette
Advertising," 9 F.C.C. 2d 921, affirmed, Banzhaf v. Federal Communications
Commission, No. 21,285, Nos. 21,525, 21,526
U.S. App. D.C. , 14 Pike and
Fischer R.R. 2d 2061 (Nov. 21, 1968).
The petitioner provided the following data concerning the cigarette and
antismoking announcements broadcast by KPIX-TV roughly from 6 p.m. through
11:30 p.m. between November 25, 26, 27, 28, 30, and December 1, 1968:
Total
for above period:
Total
number of cigarette advertisements 59
Total
number of antismoking spots 5
Ratio 11.8:1
Seconds
Total
time -- Cigarette advertisements 1,840
Total
time -- Antismoking spots 50
Ratio 36.8:1
[*1035]
3. In reply to the petition,
Westinghouse does not dispute the number of cigarette commercials broadcast
during the period used in petitioner's sampling, but it states that six (not
five) antismoking spots were broadcast for a total of 80 seconds (not 50). For all of 1968, Westinghouse points out
that KPIX-TV broadcast a total of 4,402 cigarette commercials and 1,529
antismoking announcements, a ratio of 2.87:1.
It also notes that its efforts to comply with the Commission's decision
involved more than the broadcasting of antismoking spot announcements. KPIX-TV broadcast many newscasts containing
reports about the health hazards caused by smoking, as well as a number of
other programs, including a documentary concerning the smoking-health
controversy. Westinghouse argues that a
review of KPIX-TV's over all efforts compels the conclusion that the station
devoted a significant amount of broadcast time to informing its viewers of the
dangers of smoking.
4. We have set out the pertinent policy
considerations in the similar ruling as to the Chronicle Broadcasting Company,
adopted this day, and will not repeat the discussion here. It is clear that on an overall basis, there
would be no basis to the complaint, in view of the above showing as to
presentation of antismoking messages during the year 1968 and of documentaries
and other news items. However, again
recognizing that there can be no parity of presentation of commercials and
antismoking messages in the light of the policy determination set forth in
"Applicability of the Fairness Doctrine to Cigarette Advertising," 9
F.C.C. 2d 921 (1967), affirmed, John Banzhaf, III v. FCC, case No. 21285,
C.A.D.C., November 21, 1968, petition for certiorari pending, and without
setting down any mathematical formula, we believe that greater effort is called
for during the period of maximum viewing, where comparatively few antismoking
messages were presented during the sample period even though a great number of
the cigarette commercials were concentrated in these hours. See letter to NBC, issued this day. We hold further that in view of
Westinghouse's substantial efforts to meet its obligations in this respect (see
par. 3, supra) and of the remedial step set out in paragraph 5, there is no
basis for designation of the Westinghouse renewal application for hearing on
this score.
5. Accordingly, It is ordered, That the
licensee of station KPIX-TV submit within 60 days of the date of release of
this memorandum opinion and order a statement of its future policies with
respect to informing its audience during the hours of maximum viewing the
health hazards of cigarette smoking and submit after the passage of 4 months
from the release of this order a report on its efforts to implement such
policies.
6. It is ordered, That the petition opposing
renewal of license of station KPIX-TV filed by John F. Banzhaf III and ASH,
Action on Smoking and Health, is Denied.
FEDERAL COMMUNICATIONS
COMMISSION, BEN F. WAPLE, Secretary.
[*1036] DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
The
Commission today renews the license of the Westinghouse television station in
I will
not repeat the discussion in my opinion commenting on the Commission's failure
to take action on the pending Westinghouse-MCA, Inc., merger in renewing
Westinghouse radio station KFMB in
The
issues concerning the Banzhaf-ASH petition to deny turn on whether Westinghouse
has complied with the Commission's fairness doctrine ruling regarding the
presentation of cigarette advertising.
The petitioner alleges that Westinghouse has not complied, because only
a few antismoking spots have been presented in the time periods of maximum
audience. There is apparently no
disagreement that during the week monitored by petitioner in the time period 6
p.m. to 11:30 p.m. the ratio of cigarette advertising messages to antismoking
spots was 9.8 to 1; and the ratio of the length of messages was 23 to 1. Westinghouse has opposed the petition to
deny by citing their record for the entire year 1968 in the presentation of advertisements
for and against cigarette advertising; by listing news coverage of the various
news events that presented the antismoking position; and by citing three
special programs on the health hazards of cigarettes.
But as
our staff points out, while the overall ratio of cigarette ads to antismoking
ads is less than 3 to 1 for the year 1968, Westinghouse in fact broadcast 82.14
percent (3,616) of its cigarette ads in the time period 6 p.m. to sign-off and
only 24.13 percent (369) of its antismoking spots in the same time period. At the same time, 43.75 percent (669) of the
antismoking warnings were aired in the period sign-on to noon, while only 6.38
percent (281) of its cigarette commercials were broadcast in that time. This can only lead to the somewhat cynical
observation that Westinghouse chose to run its antismoking spots for audiences
it thought it couldn't sell cigarettes to anyway, and ran few antismoking
warnings for those audiences that were the prime candidates for a pitch on the
merits of smoking this or that particular brand.
Apparently
the Commission agrees with much of this analysis. For Westinghouse is ordered to file a statement on "future
policies with respect to informing its audience during the hours of maximum
viewing [about] the health hazards of cigarette smoking," and to
demonstrate 2 months later its implementation of this policy change. The majority apparently wants to be sure
Westinghouse will suffer no embarrassment or penalty notwithstanding its past
noncompliance with the Commission's ruling.
n1
n1 The Commission's leading
statement on the Banzhaf complaints is contained in the National Broadcasting
Co. letter involving his complaints against WNBC, released since the
preparation of this opinion. WNBC,
F.C.C. 69- (1969). I have dealt with these issues more fully in
a separate dissenting opinion accompanying that letter.
[*1037]
Petitioner has alleged that KPIX-TV has deliberately and willfully
refused to comply with the Commission's cigarette advertising fairness ruling. The issue raised, therefore, is whether
KPIX-TV's rather startling imbalance between pro-cigarette commercials and
antismoking announcements in prime time is deliberately contrived to make a
sham of the Commission's cigarette ruling, or whether there is some acceptable
justification for what appears to be more than accidental scheduling. When issues of intent are involved, this
Commission should require some objective evidence of reprehensible conduct on
the part of a licensee before it conducts a full-scale hearing into the
licensee's subjective motives.
Today I
believe we have been presented with precisely this sort and amount of evidence,
and that a hearing on this issue is warranted.
I cannot believe that KPIX-TV has randomly scheduled its pro-cigarette
commercials and antismoking announcements in such a manner that more than
one-half of the month's prime-time periods are completely devoid of antismoking
announcements, while the vast bulk of such announcements are buried somewhere
in the desert of early morning and late evening time. I simply cannot fathom why the majority refuses to look for fire
where there is so much smoke.
I
dissent.