In Re Complaint by CALIFORNIANS
AGAINST THE TAX TRAP INITIATIVE Concerning Reconsideration of "Fairness
Doctrine"
Ruling Re Station KLAC,
FEDERAL COMMUNICATIONS COMMISSION
19 F.C.C.2d 507; 17 Rad. Reg. 2d
(P&F) 173
RELEASE-NUMBER: FCC 69-79
JANUARY 22, 1969
ACTION:
COMPLAINT
OPINION:
[*507] Mr. HARRY LERNER, Californians
Against the Tax Trap Initiative, Suite J, 4661 Sunset Boulevard,
DEAR
MR. LERNER: This is in reply to your telegram and letter of November 1, 1968,
and supplementary material in connection therewith, requesting the Commission
to reconsider its October 31, 1968, action on your complaint that station KLAC,
Although
you have alleged that KLAC broadcasters have explicitly endorsed proposition 9
on one occasion, were biased on other occasions, and otherwise failed to comply
with the requirements of the fairness doctrine, your requests for
reconsideration do not present any further facts in support of these
allegations. However, some
understanding of the principles applicable to your claims may be helpful.
First,
the fairness doctrine requires that each licensee afford a reasonable
opportunity for the presentation of contrasting views on controversial issues
of public importance. The purpose of
the doctrine is to promote the fullest possible robust debate on public
issues. Consequently, so long as a
licensee does not deny such "reasonable opportunity" to any competing
view, it may adopt, and even vigorously support, any position it chooses on a
controversial issue. Letter to Storer Broadcasting Company; 11 F.C.C. 2d 678;
January 31, 1968. Second, as contrasted to section 315 of the Communications
Act of 1934, as amended, the "Fairness Doctrine" does not require
equality in the opportunity afforded by the licensee for the presentation of
each competing view. A licensee's
programming may reflect differences in the presentation of contrasting views so
long as there is reasonable balance in light of the particular
circumstances. Moreover, the licensee
has considerable discretion in the manner and timing of achieving fairness,
with the Commission's role limited to determining whether his actions [*508] have been reasonable. Letter to
The
Commission has considered your request for reconsideration in the light of
these established principles and, again based upon the information before it,
adheres to its October 31, 1968, determination. It should be noted that the Commission is not able to undertake
extensive investigations of every fairness doctrine complaint. Therefore, as set forth in part I of the
enclosed public notice of July 1, 1964, "Applicability of the Fairness
Doctrine in the Handling of Controversial Issues of Public Importance," a
complainant must submit specific information showing the basis for his
claim. Absent a more complete factual
showing of a possible fairness doctrine violation by KLAC, no further action is
contemplated in this matter.
Commissioner
Cox abstained from voting; Commissioners Wadsworth and H. Rex Lee absent; Commissioner Johnson dissented with the attached
statement.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
This
case neatly poses some of the tough, practical problems of enforcement of the
fairness doctrine.
The
complainants were interested in a ballot proposition on the
Complainants
were concerned about comments of announcers on AM radio station KLAC in
They
complained to the FCC that KLAC had violated the fairness doctrine. In the words of their November 1, 1968,
letter:
The
station has permitted its "communicators" to repeatedly assault the
opponents of Proposition 9, impugning our motives, ridiculing our claims and
questioning our honesty, while lauding the noble purpose of the millionaire
land speculators, landlords and real estate promoters who put Proposition 9 on
the ballot. On October 31, 1968, we held against them. In a telegram and letter of November 1,
1968, they requested reconsideration.
Today we deny that petition, and uphold our original October 31, 1968,
ruling.
The
fairness doctrine finds its statutory basis in section 315 of the
Communications Act. It provides, in
pertinent part, that broadcasters have an "obligation * * * to afford
reasonable opportunity for the discussion of conflicting views on issues of
public importance." It has evolved over the years with a large body of FCC
case-by-case declarations of its applicability in specific factual settings,
embodied in summary form in a pamphlet referred to as the "Fairness
Primer." [*509] "Applicability of the Fairness Doctrine
in the Handling of Controversial Issues of Public Importance," 29 F.R.
10415-427 (July 25, 1964). Its
constitutionality has been affirmed by the Supreme Court in Red Lion
Broadcasting Co., Inc. v. F.C.C., 37 U.S.L.W. 4509 (U.S., June 9, 1969).
The
primer states that responsibility falls upon the broadcast licensee --
To
make reasonable judgments in good faith on the facts of each situation -- as to
whether a controversial issue of public importance is involved, as to what
viewpoints have been or should be presented, as to the format and spokesmen to
present the viewpoints, and all the other facets of such programming.
All
would presumably agree that if KLAC announcers consistently and deliberately
commented upon only one side of the issues surrounding proposition 9 that a
violation of the fairness doctrine would have occurred. By the same token, there would be little
dispute that if KLAC made "reasonable judgments in good faith" that,
taken as a whole, its overall programming treated all sides of the proposition
9 issues fully and fairly, the mere fact that some announcers occasionally made
comments on one side of the issue or the other would not constitute a violation
of the fairness doctrine.
So
far so good. But here the trouble
begins.
The
FCC, as a practical matter, has no one whose job it is to listen to radio or
watch television -- or even read TV Guide -- to see if its rules and
regulations are, in fact, being carried out.
It must rely, almost exclusively, upon the complaints filed by
interested members of the public.
Once
we receive such complaints, the problem arises as to who has the burden of
proof and how it is to be exercised.
There is no reasonable and feasible way that a citizen could -- or
should be expected to -- make and analyze continuous audio and video tapes of
the programming of potential violators of the fairness doctrine. He may hear occasional offending broadcasts
while driving in his car, or at other times when he is ill-equipped to record
the item or make detailed notes. The
other demands upon his time are such that he cannot undertake a project
involving anything more than the most occasional monitoring. As the complainants state in their November
1 letter, "We have made some tape recordings of 'talk show' attacks after
learning about them -- mostly by chance, and our submission to you, of
necessity, tells only a small part of the story."
The
nature of the broadcasters' product is such that there are no records of
it. It is ephemeral. An unrecorded offending word, once spoken,
is gone forever -- so far as legal "proof" is concerned. Other violations may subsequently occur and
be recorded, but the original one will never be recovered. Newspapers, by contrast, are collected and
bound by libraries. Our society in
general, and librarians in particular, have been slow to recognize the
historical, anthropological, and artistic necessity of preserving a record of
what is today undoubtedly the most powerful cultural force in this country --
radio and television programming.
For
reasons which I have never understood, and would find hard to justify, the
rules of this Commission provide that the programming logs [*510]
of its licensed stations need not be opened to the public --
notwithstanding the fact that they are but a sketchy record of events or acts
that were, in every respect, "public." Network officials have refused
to provide me, as an FCC Commissioner, with information about the carriage of
network programming by affiliates -- even though such facts are equally public,
and are even printed in TV Guide, newspaper TV supplements, and so forth. Such behavior seems oddly recalcitrant from
a "proxy or fiduciary" for the public. Red Lion Broadcasting, supra at 4516.
Of
course, in answering fairness complaints the broadcasters' interests must also
be considered. The burden upon them
could be significant if they had to answer every unsubstantiated charge by
producing a typewritten transcript of all programming over a period of days or
months.
Somewhere,
however, there must be a compromise procedure more satisfactory than what we
are now following. Our letter states:
It
should be noted that the Commission is not able to undertake extensive
investigations of every Fairness Doctrine complaint * * *. [A] complainant must submit specific
information showing the basis for his claim.
Absent a more complete factual showing of a possible Fairness Doctrine
violation by KLAC, no further action is contemplated in this matter.
In summary,
complainants have charged that KLAC's announcers violated the fairness doctrine
by their statements during the 21 hours a day of talk shows. KLAC answers that
its 3 hours a day of news programs were balanced within the terms of the
fairness doctrine -- and supplies some tapes to support its view. (These tapes
do contain some statements that tend to favor complainants' position on the
ballot proposition.)
It
may be true that we do not have enough information before us to find a
violation of the fairness doctrine. But
it is also true that, in my judgment, we do not have enough information to find
that KLAC has complied with its fairness doctrine obligations. This Commission has recently been charged
with exhibiting a "curious neutrality-in-favor-of-the-licensee" by
the United States Court of Appeals in Office of Communication of the United
Commission
must do more to protect the public interest.
Complainants
have written:
The
undersigned respectfully submits that the Commission erred in its findings and
that the error is directly traceable to the fact that your staff did not
obtain, not did you have before you for consideration, vital facts,
information, and evidence on which to base an equitable judgment. In their
telegram and letter they offered to provide additional transcripts which we
never considered. Under the
circumstances of the facts of this case I believe either the station or the
Commission should have undertaken the burden of a little additional
investigation and analysis.
I
dissent.