In Re Complaint by Hon. H. CLARK
BELL, ALBANY, N.Y. Concerning Fairness Doctrine Re Station WKNY
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 38
JANUARY
23, 1970
OPINIONBY: RAY
OPINION:
[*38]
Hon. H. CLARK BELL, New York Assembly, Albany, N.Y.
DEAR MR. BELL:
This is in reference to your complaint against radio station WKNY, Kingston,
N.Y., made initially in your letter of June 11, 1969. The letter stated it had been reported to you that during call-in
programs broadcast over WKNY on June 4 and 5, 1969, there was discussion
"indicating that a Mr. Bell requested or was paid the sum of $200 as a
condition precedent to securing employment for a member of the community."
You stated that you are the Ulster County assemblyman and, "in the minds
of some people in the community," there was little doubt that the
moderator was attempting to slur you.
Thereafter, by telephone, telegram, and letter you requested WKNY's vice
president and general manager, Lawrence Swars, to send you tapes of the two
broadcasts, and you were told the station's tape recorders had malfunctioned
during those broadcasts so that tapes were not available. You were also told you and all other people
named Bell in the Kingston radio listening area would be sent copies of a
deposition by the moderator of the questioned programs which would give the
substance of the alleged remarks.
Copies of the
deposition and letter sent by the station to all people named Bell, in the
area, which you enclosed with your June 11, 1969 letter, show that the
deposition summarized part of the June 4 broadcast (saying it included a charge
that someone, identified only as Mr. Bell, had required a job seeker to pay him
$200 to obtain a political position) and that the letter, dated June 9, 1969,
said "Since we at WKNY believe this to be a general indictment of all
people named Bell, you are being informed of your rights to request equal time
should you desire to make a statement."
Mr. Swars stated
in a letter to the Commission, dated July 8, 1969, that he sent the letter and
deposition to 31 people named Bell listed in the local telephone book. He stated, also, that no mention of Mr. Bell
was made on June 5, and that therefore no transcript or deposition referring to
that date's programming would be sent.
After receiving
your response to the station's letter, the Commission determined that further
information was necessary, and several specific inquiries were addressed to the
station. By letter of September 16,
1969, Mr. Swars, on behalf of the station, confirmed that no tape or [*39]
transcript was available of either the June 4 or June 5 programs; that
the moderator's affidavit accurately summarized the June 4 program; that the
"Mr. Bell" was not identified in any way and that Mr. Douglas Dye, a
member of the Ulster County Legislature, who was the guest on the June 4
program, confirmed that fact; that the June 5 program made no direct or
indirect reference to Mr. Bell; and that you had, in fact, been offered time to
respond (a copy of the station's letter to you was enclosed). In addition, Mr. Swars stated that prior to
your complaint, it was not felt that there was an identifiable Mr. Bell to
notify and, thereafter, that absent real identification, it was a wise
precaution to notify and offer time to all Bells in the area. The latter step was taken, he said, without
"though or intention to give circulation to an attack upon any specific
Mr. Bell."
In your October
28, 1969 letter of reply, in addition to questioning further the accuracy of
some of the station's statements and the motivation for various actions taken,
you strongly urged the Commission to adopt rules requiring stations to make and
retain tapes of call-in programs to avoid questions about what is said on
them. You further allege that the
station would not have notified you or offered you time had you not made a
complaint and that sending you the summary and offer of time on June 9, 1969,
did not comply with the Commission's personal attack rules. As you may know, section 73.123(a) of the
Commission's Rules concerning personal attacks provides as follows:
§ 73.123
Personal attacks; political editorials.
(a) When, during
the presentation of views on a controversial issue of public importance, an
attack is made upon the honesty, character, integrity or like personal qualities
of an identified person or group, the licensee shall, within a reasonable time
and in no event later than one week after the attack, transmit to the person or
group attacked (1) notification of the date, time and identification of the
broadcast; (2) a script or tape (or an accurate summary if a script or tape is
not available) of the attack; and (3) an offer of a reasonable opportunity to
respond over the licensee's facilities.
In the present case, station WKNY has indicated that
in its judgment there was no real identification of the Mr. Bell referred to on
the program so as to bring it within the purview of the Commission's
rules. Based upon the facts which we
have before us, we are unable to find that this judgment by the licensee was
unreasonable.
More important,
when you did complain about the broadcast in question, the station did, in
fact, send to you within 7 days of the broadcast, as required by the rules, an
affidavit summarizing the attack and an offer for you to respond over the station. We appreciate your concern with the fact
that the station also notified and offered time "to all of the other Bells
living within the area." While it is possible, of course, to sympathize
with your quarrel about the station's decision concerning either the necessity
or wisdom of notifying all the Bells, we cannot find under all the
circumstances that this action was motivated by malice or intent to ridicule
you. In this connection we note that
there is no indication that the station gave any publication to the fact that
it was notifying all the Bells in the area.
We would also
point out that the broadcast in question occurred on June 4, 1969, which was
during the period in which the Commission had publicly announced, as a result
of a decision of the Court of Appeals
[*40] for the Seventh Circuit
invalidating the personal attack rules, it would not impose sanctions for
violations of the rules pending the decision upon further review in the Supreme
Court. That period ended with the
Supreme Court decision of June 9, 1969, in the Red Lion Broadcasting Co. v.
F.C.C., 395 U.S. 367, upholding the Commission's rules.
In light of all
of the foregoing considerations, and particularly the station's offer to you of
time to respond, we have concluded that this is not an appropriate case for the
imposition of further sanctions.
Finally, we
appreciate your thoughtful suggestion that the Commission make it a requirement
that stations make tapes of call-in programs and keep them available. We recognize considerable merit in this
suggestion and it will receive consideration although you will appreciate that
there are countervailing factors which must be taken into account.
Sincerely yours,
WILLIAM B. RAY, Chief, Complaints and Compliance
Division, Broadcast Bureau.