In re Complaint Against CHRONICLE
PUBLISHING CO. Concerning Application of Fairness Doctrine to Cigarette
Advertising
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 884 (1969)
RELEASE-NUMBER: FCC 69-269
MARCH 20, 1969
ACTION: COMPLAINT
[*884] CHRONICLE PUBLISHING CO.,
GENTLEMEN:
This refers to the petition opposing renewal of license filed on November 8,
1968 by John F. Banzhaf III and ASH, Action on Smoking and Health. The petition charges a violation of the
fairness doctrine because of an alleged failure to devote a significant amount
of time, from October 1967 to the date of the petition (Nov. 8, 1968), to the
presentation of the other side of the issue raised by the cigarette
advertisements carried by you. Petitioners
alleged that during the "prime time evening hours" of the period
November 11 to November 15, 1968, the licensee presented 43 cigarette
advertisements (for a total of 1,520 seconds), as opposed to two antismoking
messages (for a total of 120 seconds).
In your
December 16, 1968, response to the petition, you furnished the Commission with
evidence that during the entire broadcast days for the period November 11 to
November 17, 1968 (thereby including the weekend), you presented 54 cigarette
advertisements (for a total of 2,260 seconds), as opposed to 22 antismoking
messages (for a total of 1,300 seconds).
Furthermore, for the period October 1967 through October 1968, the
station broadcast 2,739 cigarette advertisements (for a total of 31 hours, 53
minutes, and 30 seconds), as opposed to 1,024 antismoking messages (for a total
of 15 hours, 22 minutes, and 10 seconds).
The
policy set out 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, requires
that a broadcast licensee presenting cigarette commercials, which "* * *
convey any number of reasons why it appears desirable to smoke * * *" --
must "* * * devote a significant amount of time to informing the listeners
of the other side of the matter -- that however enjoyable smoking may be, it
represents a habit which may cause or contribute to the earlier death of the
user." (9 F.C.C. 2d at 939.) At the same time, we stressed that we would
implement the requirement in such a way as not to drive cigarette commercials
off the air -- a result which would be inconsistent [*885] with the
congressional direction in the Cigarette Labeling and Advertising Act.
We have
reviewed the facts of this case in the light of the above policies, and find
that if the matter were viewed on the basis of the entire broadcast day there
would be no basis to the complaint in light of the information supplied above. We note, however, that in the sample period
although the vast majority of your cigarette commercials were broadcast during
hours of maximum viewing, comparatively few of your antismoking messages were
broadcast during these hours. See
letter to WNBC, issued this day.
We
recognize that in view of the considerations set forth in the last sentence of
the third paragraph, parity between cigarette commercials and antismoking
messages cannot be required during these hours, and that the implementation of
our policy requires a sensitive balancing.
Without setting down any mathematical formula, and recognizing that you
have been making substantial efforts to inform listeners of the health hazards,
we nevertheless believe that greater effort is called for during the periods of
maximum viewing. We therefore request
that within 60 days of the date of this letter you submit a statement of your
future policies in this area and that, after the passage of a period of 4
months from the issuance of this letter, you submit a report on your efforts to
implement such policies.
This
letter was adopted by the Commission on March 19, 1969. Commissioner Cox concurred in the adoption
of the letter 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 Wadsworth abstains; Commissioner Johnson dissents, with statement.
BY DIRECTION
OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Once
again the Commission has refused even to inquire into what may well be willful
and deliberate violations of its fairness doctrines with respect to cigarette
advertising. Accordingly, I must
dissent.
On
November 8, 1968, petitioners John Banzhaf and ASH filed an opposition to the
renewal of KRON-TV's license, alleging that during the prime time evening hours
of one 5-day period in November, KRON-TV broadcast 43 procigarette commercials
as opposed to only two antismoking announcements. These allegations are apparently not disputed by the
licensee. It appears, therefore, that
during one weekday period KRON-TV has broadcast 21.5 procigarette commercials
for each antismoking announcement. Yet
the majority fails to impose any meaningful sanction on the licensee for its
conduct. I simply cannot agree to such
a disposition.
I
believe petitioners have provided the Commission with sufficient evidence to
indicate that KRON-TV has failed in its obligation to provide a significant
amount of time to counteract the prosmoking views contained in its cigarette
commercials. I believe this shocking [*886]
disparity between the number of procigarette and antismoking spots
provides sufficient evidence to warrant a Commission inquiry, at a public
hearing, into the question of whether the licensee has deliberately and
willfully attempted to undermine the effectiveness of this Commission's
fairness doctrine. And I believe the
licensee should be required to offer evidence at such a hearing that its
scheduling of antismoking announcements comports with the public interest and
accordingly its qualifications to operate a television station. I would add such an issue to the hearing
ordered yesterday on the renewals of KRON-FM-TV. See Chronicle Broadcasting Co., F.C.C. 69-262 (1969).
I have
elsewhere stated my views on the issues here involved, and will not repeat them
here. (See dissenting opinions in the
license renewals of WNBC-TV,