In the Matter of PETITION TO REVOKE
THE LICENSE OF NATIONAL BROADCASTING CO., INC. For Station WNBC-TV,
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 947 (1969)
RELEASE-NUMBER: FCC 69-270
March 19, 1969 Adopted
ACTION:
MEMORANDUM
OPINION AND ORDER
BY THE
COMMISSION: COMMISSIONER COX CONCURRING IN THE RESULT; COMMISSIONER
JOHNSON DISSENTING AND ISSUING A STATEMENT.
[*947] 1.
The Commission has the following pleadings before it for consideration: n1
n1 Also before the Commission is a
reply to the Commission's letter of Nov. 22, 1968, filed Dec. 4, 1968, by NBC.
(a) A
petition to revoke broadcast license of station WNBC-TV, New York, N.Y., held
by National Broadcasting Co., Inc., filed June 12, 1968, by John F. Banzhaf III
and ASH, Action on Smoking and Health.
(b) Response
of National Broadcasting Co., Inc., filed July 22, 1968.
(c)
Supplemental response filed August 9, 1968.
(d)
Reply to responses of National Broadcasting Co., Inc., filed August 29, 1968,
by John F. Banzhaf III and ASH, Action on Smoking and Health.
2. Banzhaf and ASH, in their petition to
revoke, allege that licensee has failed to fulfill its obligations under the
fairness doctrine as it applies to cigarette advertising.
3. By letter of this date to licensee, the
Commission stated the following:
We have
reviewed the facts of the case and find a disparity between the number of
cigarette commercials and the efforts to inform the public on the other side of
the matter (i.e., here the antismoking messages). However, when your total performance in the test weeks is
considered, we cannot say that the disparity is so great, taking into account
the above policies, as to require a conclusion that your overall performance
has been deficient.
We do note,
however, that in the sample weeks, April 1 to 7 and 15 to 21, 1968, there
appears to have been a concentration of antismoking messages outside of the
hours of maximum viewing, in contrast to cigarette commercials, which were
heavily represented in these periods. *
Thus, according to the information you have supplied, although a great number
of cigarette commercials were broadcast during the period 7:30-11 p.m.,
antismoking messages were broadcast within this period on only 5 of the 14
days.
* Omitted.
We
recognize that, in view of the considerations set forth in the last sentence of
the second paragraph above [omitted], 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 [*948] down any
mathematical formula and recognizing that you have made substantial efforts to
meet your obligations in this respect, we believe that greater effort is called
for during the period 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 leter, you submit a report
of your efforts to implement such policies.
4. In light of the foregoing, the petition to
revoke will be denied. We believe that
while the above action is called for, there is no basis for action to revoke
the license in light of NBC's substantial efforts to meet its obligation in
this respect. Cf. Report on Editorializing by Broadcasting
Licensees, 13 F.C.C. 1246, 1255-56 (1949).
5. We note that Banzhaf and ASH stated in their
petition to revoke that "* * * if the Commission should rule that the
entire broadcast record of WNBC-TV must be considered, then the petitioners
respectfully reserve the right to amend and supplement this petition to provide
additional information and respectfully allege the following additional areas
in which the licensee-respondent fails to serve the public interest."
Fourteen additional areas are listed by petitioners. While any additional information filed by petitioners to
supplement their petition may raise significant questions, their examination
and resolution are more appropriate to a consideration of licensee's renewal
application, n2
which necessarily will involve a review of station activities during the entire
license term, including actions of the licensee to discharge its obligations
under the fairness doctrine. n3
n2 WNBC-TV's license expires June
1, 1969.
n3 In this connection we wish to
point out neither the Communications Act nor the Commission's rules and
regulations provide for the filing of a petition to revoke and that such
petitions are treated by the Commission pursuant to sec. 1.41 of the rules as
informal requests for Commission action.
6. In view of the foregoing, It is ordered,
That the petition to revoke broadcast license filed June 12, 1968, by John F.
Banzhaf III and ASH, Action on Smoking and Health, Is denied.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
John
Banzhaf and a group called Action on Smoking and Health (ASH) have sought to
persuade this Commission that its ruling regarding cigarette advertising and
the fairness doctrine ought to be enforced.
Unfortunately the majority feels otherwise.
WNBC-TV,
NBC's flagship station in
We have revised the facts of the case and find a disparity
between the number of cigarette commercials and the efforts to inform the
public on the other side of the matter (i.e., here the antismoking
messages). However, when your total
performance in the test week is considered, we cannot say that the disparity is
so great, taking into account the above policies, as to require a conclusion
that your overall performance has been deficient.
We do
note, however, that in the sample weeks, April 1 to 7 and 15 to 21, 1968, there
appears to have been a concentration of antismoking messages outside of the
hours of maximum viewing, in contrast to cigarette commercials, which were
heavily represented in these periods.
Thus, according to the information
[*949] you have supplied, although
a great number of cigarette commercials were broadcast during the period 7:30
to 11 p.m., antismoking messages were broadcast within this period on only 5 of
the 14 days.
We
recognize that * * * 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 made substantial efforts to meet your obligations in this respect, we
believe that greater effort is called for during the period of maximum
viewing. * * *
A survey
conducted by the Commission analyzing only 2 weeks of WNBC programming in prime
time showed that the ratio of cigarette announcements to antismoking
announcements was 8.1 to 1, and that the length of announcements was 5.6 to
1. This substantial disparity is alone
sufficient to warrant a Commission inquiry into the issues involved. Yet, as shall become clear below, these
ratios must be substantially increased to reflect the true ineffectiveness of
WNBC-TV's presentation of antismoking announcements. The Commission does not need to deal with "mathematical
formulas" to conclude that its ruling under the fairness doctrine has been
flagrantly violated. n1 How unconcerned
can we be when licensees ignore our rulings?
n1 It
goes without saying that the instant case is not the only potential violation
which has been reported to the Commission in recent months. This case is not an isolated incident but
may be reflective of widespread industry practice.
The
contrast between the way the Commission deals with small stations and large
corporate licensees is striking. A
small, family-owned AM radio station that operates with the wrong power for a
few days, or comes on the air before sunup, may be levied a substantial fine by
this Commission. Time brokerage, false
logging, or an abuse of advertisers -- such as double billing -- may actually
result in license revocation. See,
e.g., Continental Broadcasting, Inc., 15 F.C.C. 2d 120 (1968). But a network
licensee that ignores a Commission ruling on the life and death issues
surrounding a controversy of such importance that the Commission has now
proposed to outlaw all cigarette advertisements entirely ["Cigarette
Advertising," F.C.C. 69-95 (1969)], is merely sent an apologetic letter
politely requesting the network to do better if it possibly can. (It should also be noted that petitioners'
complaint was filed over 9 months ago, dealing with programming almost a year
old. We are not told whether NBC has
continued its pattern of noncompliance during this period -- a prime example of
the Commission's vaunted "expeditious resolution.")
The
issue here involved, therefore, is whether WNBC has failed to comply with a
Commission ruling by not devoting "significant" time to anticigarette
announcements -- that is, whether the impact of such anticigarette
announcements is so disproportionately small as to fail to counteract to any
"significant" degree the station's current barrage of procigarette
commercials. The resolution of this
issue depends on the standards adopted to gauge the "significance" of
antismoking announcements in combating the persuasive charm of procigarette
commercials.
The
majority has acknowledged a "disparity" between the number of
cigarette commercials and antismoking announcements, and has even recognized
that substantial periods of prime evening time are [*950] completely devoid
of any such announcements.
Nevertheless, it inexplicably asserts that this disparity is not
"so great * * * as to require a conclusion that your overall performance
has been deficient." The majority's failing is its almost exclusive
concentration on the number, rather than the impact, of the procigarette commercials. This exclusive emphasis is unfortunate for
several reasons.
First,
the majority has not adequately considered the fact that WNBC-TV has
concentrated its procigarette commercials during those prime evening time
periods which attract the largest audiences. WNBC-TV only broadcast antismoking announcements in prime time on
5 of the 14 days studied, and on 4 of these days only one antismoking
announcement was broadcast during the heavy revenue producing prime time periods. This inevitably means that millions of
Second,
it is clear that prime time audiences include larger numbers of young, presmoking
teenagers -- one of the age groups most susceptible to the purported charm,
adventure and romance of the "smoking style of life." This age group
is less well represented in the audiences for the late, late, shows, and is in
school during morning and afternoon programs.
It would not be surprising if members of this impressionable age group
in
[*951]
Again, in this Commission's proposed rulemaking on "Cigarette
Advertisements" [F.C.C. 69-95 (1969], we noted that cigarette
"commercials reach children to a very significant extent," and
estimated that 23 percent of all cigarette commercial exposures reach children
and teenagers between the ages of 2 and 17.
(
Finally,
the ratio of 8.1 procigarette commercials to 1 antismoking announcements on
WNBC disclosed by the Commission's survey does not include
"billboard" announcements.
Thus, the already large disparities between the number of procigarette
commercials and antismoking announcements must be increased further by the
addition of such "billboard" announcements as the following,
broadcast over WNBC:
"The
High Chaparral," brought to you by * * *
I am
simply unwilling to accept the assumption of the majority that such
"billboard" sales techniques are without impact and can therefore be
excluded from consideration. According
to respondent's supplementary response, inclusion of procigarette
"billboard" announcements broadcast over WNBC in the list of
procigarette commercials on that station would increase their number by more
than 20 percent. (Supplement to
response of NBC, at p. 3.) n2
n2 This
list of factors the majority has not considered is not exhaustive. The length of procigarette commercials and
antismoking commercials is often particularly revealing. In one case reported to the Commission, the
number of procigarette to antismoking spots was 7.7 to 1, yet the ratio of
length was 21 to 1 in prime time.
It is
clear, therefore, that the majority's analysis of the ratio of procigarette
commercials to antismoking announcements conceals more than it reveals. The inclusion of "billboard"
announcements would increase this ratio from 8.1 to 1, to approximately 10 to
1, and if it is assumed that most school-age children and teenagers watch
television during prime-time hours when procigarette commercials are at their
heaviest, and few watch when the antismoking announcements are aired (while
they are in school or asleep), it becomes clear that the "impact"
ratio of procigarette commercials to antismoking announcements on an important
and susceptible segment of our population should provide greater cause for
Commission concern.
It would
appear, therefore, that procigarette commercials in fact reach a far greater
and more impressionable audience than the majority's reasoning might
suggest. Yet the majority has made no
real attempt to enunciate any meaningful formula by which the true impact of
cigarette commercials and announcements, both pro and con, can be
assessed. In actual fact, the
majority's response appears to be more of an instinctive "gut-reaction"
than an attempt clearly to articulate a standard or judgment by which we may
give the industry guidance in the future.
I do not
have the slightest idea how the majority arrived at, or can justify, its
apparently unsupported conclusion that WNBC-TV's performance [*952]
has not been "deficient." If the majority is in fact going to
establish a working standard of "significance" for antismoking
announcements, then I would suggest there are many important factors to
consider. I have attempted partially to
list some of these factors above. It
does not become the Commission to justify its opinions by snatching speculative
and unsupported judgments out of the blue when its decisions are apparently
reached on conjectural or unarticulated grounds. For these reasons, the Commission should at least attempt to
articulate the standards by which it is guided, and not merely dismiss
petitioners complaint with the flat assertion that no action is warranted.
Nor is
the majority's handling of the procedural matters in this case anymore
satisfactory. Banzhaf and ASH have
sought revocation of the WNBC-TV license.
That relief is denied, although the majority agrees that NBC has not
fully fulfilled its fairness obligations.
But Mr.
Banzhaf and ASH did not limit their allegations to WNBC's performance under the
cigarette fairness decision.
They
state:
It is the position of the petitioners that the deliberate
and willful violation of both the letter and spirit of the Commission's ruling
in this area so vital to the health and very lives of millions of its viewers
is more than sufficient grounds for revoking the license of WNBC-TV and that
the Commission need not and should not consider its entire broadcast
record. Petitioners therefore
respectfully request that a hearing on these matters and only these matters be
set for the earliest possible date, bearing in mind that any decision of the
Commission is bound to be appealed to the courts and thus delaying a final
resolution in this area. However, if
the Commission should rule that the entire broadcast record of WNBC-TV must be
considered, then the petitioners respectfully reserve the right to amend and
supplement this petition to provide additional information and respectfully
allege the following additional areas in which the license respondent fails to
serve the public interest:
1. Excessive number
of commercials, often presented so as to disrupt and detract from the principal
programing.
2. Misleading and
deceptive programming practices.
3. Failure to
present programming responsive to the needs of racial minority groups and to
feature members of such groups in the regular and commercial programming.
4. Incomplete,
deceptive, and misleading responses on official forms in connection with
licenses renewal.
5. Failure to
present programming critically exploring areas of public importance and concern
where the interests of advertisers and potential advertisers might be adversely
affected.
6. Insufficient and
in fact almost nonexistent programming of a cultural and intellectual nature.
7. Excessive
violence, crime, sadism, etc., especially in programs presented for, and viewed
by, young children.
8. Contributing
towards the monopolization of the communications media.
9. Failure to
provide programming responsive to the educational, social, and cultural needs
of its very large preadult audience.
10. Excessive use of
reruns and old movies, thus depriving viewers of fresh programming.
11. Failure to
fulfill its obligations under the fairness doctrine with respect to other
controversial issues of public importance.
12. Failure to
provide programming responsive to the special needs and desires of substantial
minority groups and interests within its viewing audience.
13. Unimaginative,
uninteresting, and unentertaining programming.
14. Lack of
participation by representatives from the community in its program planning and
failure to respond to the wishes of its viewers.
[*953]
And what do we say to the 14 points? The majority responds:
While any additional information filed by petitioners to
supplement their petition may raise significant questions, their examination
and resolution are more appropriate to a consideration of licensee's renewal
application, which necessarily will involve a review of station activities
during the entire license term, including actions of the licensee to discharge
its obligations under the fairness doctrine.
This is
a peculiar ruling.
Surely
the majority remembers that over the last 9 months it has taken the following
investigatory actions with regard to NBC:
(1) On May
1, 1968 the Commission wrote NBC concerning "allegations that your
broadcasts of the Hollywood Golden Globe Awards have contained substantial
misrepresentations." The Commission, after investigation, concluded:
[We]
believe that your Golden Globe Award broadcasts prior to 1968 substantially
misled the public as to the basis on which winners were chosen and the
procedures followed in choosing them, and that you were seriously delinquent in
this respect. * * *
* * *
We
believe that you have fallen far below the degree of responsibility which is
expected of a license with respect to the matters set forth herein, and we
request that you submit a statement as to future procedures to be followed with
respect to this program and other programs raising comparable problems. This matter will be considered further in
connection with the next application for renewal of license of your
F.C.C.
68-491 (1968).
(2) On
October 9, 1968 the Commission wrote NBC concerning procedures on two of its
quiz-game shows -- "PDQ" and "Hollywood Squares." The
Commission concluded:
[The]
public has from time to time been misled as to the procedures preceding the
questioning of guest celebrities on "Hollywood Squares," and that
your own procedures for prevention of improper practices on these programs has
been lax.
* * *
The
matters set forth above will be considered further in connection with the
pending application for renewal of license of station KNBC.
F.C.C.
68-1025 (1968).
(3) The
Commission has received numerous fairness doctrine complaints regarding NBC's
coverage of the 1968 Democratic National Convention. That matter has not yet been resolved by the Commission.
(4) One
of the charges against NBC in connection with its coverage of the Democratic
Convention is the allegation that NBC employees placed a hidden microphone in a
room that was subsequently used for closed platform committee meetings.
(5) On
September 11, 1968 the Commission wrote NBC concerning possible conflicts of
interest involving one of its commentators, Chet Huntley, and his comments
about the Wholesome Meat Act. The
Commission noted:
[We]
find that NBC did not exercise reasonable diligence in light of information
publicly available and information brought to its attention. * * *
* * *
The
above record over the period stretching from 1964 to the present shows a
failure to exercise reasonable diligence or to fulfill public interest
requirements in this important area.
* * *
[*954]
Thus, you appear to have fallen short of your responsibilities with
respect to the matters set forth with regard to the Fairness Doctrine.
F.C.C.
68-931 (1968).
(6) On
September 17, 1968 the Commission wrote NBC concerning a "Lucky
Bucks" contest presented over NBC station WKYC in
In the Eastern Broadcasting Corp. letter the Commission
noted that advertising deception may result from the use of statements which
are not technically false or which may even be literally true, since the only relevant
consideration is the impact of the statements on the general public, including
the ignorant, the unthinking, and the credulous. Applying this proposition to the instant case, the Commission is
of the view that the advertisements pertaining to the WKYC "Million
Dollar" contest tended to mislead the public in that they contained
extravagant claims concerning the amount of money to be given away.
* * *
In view
of all the circumstances of this matter, the Commission is of the opinion that
the advertising pertaining to the WKYC "Million Dollar" contest fell
short of the required degree of licensee responsibility. This matter will be considered further in
connection with the next applications for renewal of license of stations
WKYC-AM-FM.
F.C.C.
68-957 (1968). (The majority referred
to the Eastern Broadcasting Corporation case, F.C.C. 68-768 (1968). In that case Eastern Broadcasting's license
renewal was limited to a 1-year period for station WCVS,
(7) In
March 1968 the Commission considered reports in a Los Angeles newspaper that a
KNBC-TV crew had brought "dove" and "hawk" picket signs for
use in filming a student debate at Claremont College (in the Los Angeles
area). n3 NBC responded that the signs had
been prepared "to depict 'sloganeering' as opposed to the type of mature
debate shown on the program, or merely as colorful additions to the set."
The Commission disposed of this matter without further action in a minute entry
for March 20, 1968, with Commissioner Cox issuing a concurring statement joined
in by Commissioners Wadsworth and Johnson.
n3 The slogans were "Victory
in Viet Nam," "No Retreat," "Stop Communism,"
"End the Bombing," "Down With the Draft" and "Bring
Them Home." The Los Angeles Times reported that the students complained
that the signs would misrepresent student feeling on the issue and began to
picket the NBC cameramen with their own signs that read "Hearst is alive
and working at NBC." It also reported that the start of the debate was
delayed while students heckled the NBC crew and that both speakers in the
debate criticized the TV men for bringing the signs.
At some
point this conduct by RCA-NBC, the ultimate responsible licensee, must be
evaluated, whether in a renewal proceeding or a revocation action. The majority suggests in footnote 3,
however, that a petition to revoke is somehow procedurally inappropriate and
that the matters raised in the petition must be treated at the end of a 3-year
license period. The majority is simply
wrong. The Communications Act provides:
The Commission may revoke any station license or
construction permit because of conditions coming to the attention of the
Commission which would warrant it in refusing to grant a license or permit on
an original application. [*955] 47 U.S.C. §
312(a) (2) (1964). How else is
this Commission, given its disinclination actively to oversee its licensees, to
learn of changed "conditions" except from petitions to revoke? And the Act further provides that:
The Commission, at any time after the filing of such
original application and during the term of any such license, may require from
an applicant or licensee further written statements of fact to enable it to
determine whether such original application should be granted or denied or such
license revoked.
47
U.S.C. § 309(b) (1964). This Commission's rules also provide for
calling up the renewal of a license prior to its expiration date if it is
"essential to the proper conduct of a hearing or investigation." 47
CFR 1.539(c) (1968).
In sum,
the petition to revoke WNBC's license is timely, appropriate and sanctioned by
Commission rules. The issues raised by
petitioners fully warrant a hearing into the licensee's qualifications to
continue its operation of WNBC in the public interest.
The
majority's refusal to initiate a hearing into the licensee's qualifications is
unjustified in practical fact as well as legal theory. It so happens that WNBC's petition for
renewal of its license, due on March 1, 1969, has already been filed. And the majority itself states that the
"significant questions" which may have been raised by petitioners
"are more appropriate to a consideration of licensee's renewal
application, which necessarily will involve a review of * * * actions of the
licensee to discharge its obligations under the fairness doctrine."
According to the majority's own reasoning; therefore, the proper time for
consideration of these issues is now at hand.
The Commission should order a hearing to determine whether WNBC's
license ought to be revoked on the grounds raised by petitioners and others,
and then consolidate this hearing with a general inquiry into WNBC's
qualifications for a 3-year license renewal.
The
majority does a disservice to the agency by suggesting that its powers somehow
do not encompass the facts of this case.
The problem is not weak legislative authority but a weak will to
act. I dissent.