In Re Complaint by FRIENDS OF THE
EARTH Concerning Fairness Doctrine Re Station WBNB-TV, New York, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
24
F.C.C.2d 743
RELEASE-NUMBER: FCC 70-862
AUGUST
5, 1970
OPINION:
[*743]
MR. GARY SOUCIE, Friends of the Earth, 30 E. 42d Street, New York, N.Y.
DEAR MR. SOUCIE:
This is in reference to the complaint filed on behalf of Friends of the Earth
(FOE) on March 14, 1970, and supplements relating thereto filed March 22, 1970,
and April 8, 1970, regarding the alleged failure of station WNBC-TV, New York
City, to comply with the fairness doctrine or to meet its public interest
obligations concerning coverage of the issue of air pollution caused by
automobiles and gasoline. You urge that
the Commission's opinion on the Applicability of the Fairness Doctrine to
Cigarette Advertising (9 FCC 2d 921 (1967)) and the related court decision,
Banzhaf v. F.C.C., 405 F. 2d 1082 (D.C. Cir. 1968), are equally applicable to
automobile and gasoline commercials and that they also represent one side of a
controversial issue of public importance.
Your complaint
includes copies of a February 6, 1970 letter to WNBC-TV setting forth your
request that the station describe the methods it proposes to utilize to meet
its obligations in presenting the other side of the automobile-gasoline/air
pollution issue and the February 18, 1970 reply from WNBC-TV stating that the
station [**2] has fulfilled its
fairness obligations on the issue of air pollution in its overall programming
and declining your offer of anti-automobile/gasoline commercials.
In your March
14, 1970 complaint, you state that WNBC-TV's refusal of your request was
improper and that the reasons given by WNBC-TV are based on erroneous
interpretations of the applicable law and policy. WNBC-TV in its February 18, 1970 response stated its belief that
the Commission's cigarette ruling n1
did not extend to automobile and gasoline commercials or the advertising of any
other commercial product; that the automobile and gasoline commercials do not
represent the presentation of one side of a controversial issue of public
importance; and that WNBC-TV has fulfilled its fairness obligations with
respect to the issue of air pollution in its overall programming and will
continue to do so. WNBC noted that
between [*744] November 1969 and February 1970 it had
presented one documentary, two panel discussions and two news features dealing
with air pollution and including the effects of automobile related pollution.
n1 Applicability of Fairness
Doctrine to Cigarette Commercials, 9 FCC 2d 921 (1967), aff'd sub nom, Banzhaf
v. F.C.C., 405 F. 2d 1082 (1968). [**3]
In support of
your position you argue that the "public interest" standard referred to
in the Commission's cigarette ruling was not limited to that product but rather
that the Commission developed the standard of whether the product's
"normal use has been found by Congressional and other Governmental actions
to pose such a serious threat to general public health that advertising
promoting such use would raise a substantial controversial issue of public
importance...." n2 It is argued that governmental
action on air pollution is evidenced by both presidential messages n3 and Congressional action. n4
n2 Applicability of Fairness
Doctrine to Cigarette Advertising at p. 943.
n3 President Nixon's February 10,
1970 Address to Congress -- "... pollution is our most serious
environmental problem." President Nixon's State of the Union message --
"The automobile is our worst polluter of air."
n4 The Clean Air Act of 1965,
supplemented by the Air Quality Act of 1967 and more recently by the National
Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852
(1970), which requires federal agencies "to use all practical means,
consistent with other essential considerations of national policy..." to
"create and maintain conditions under which man and nature can exist in
productive harmony, and fulfill the social, economic and other requirements of
present and future generations of Americans." (Public Law 91-190, § 101(a)(b)) Texas Committee on Natural
Resources v. U.S., (Case No. A 69 CA 119, February 5, 1970, W.D. Texas. You also cite the report to be issued by the
National Air Pollution Control Administration (NAPCA) (as summarized in the
Wall Street Journal of March 5, 1970) regarding the danger and prevalence of
carbon monoxide (CO) pollution in urban areas and the fact that 75% of such
pollution comes from motor vehicles.
According to complainant, the NAPCA report will propose standards for CO
emissions and possibly require stricter motor vehicle exhaust emission controls
than presently exist. [**4]
The second
argument advanced is that auto and gas advertisements (particularly those for
large-displacement engines and lead additive gasolines) generally convey a
message that such products (and necessarily the pollution they cause) are a
requirement for the full rich life. The
automobile commercials extol the virtues of large car size, "be a big
rider," "4-barrel V-8" engines and "up to 429 cubic
inches" and imply that automobiles are consonant with an unpolluted
environment (e.g., by showing an automobile on a clean beach), thus, it is
argued, representing one side of controversial issue of public importance --
i.e., whether in the short run the public should prefer unleaded gasoline and
small-engined cars which utilize less lead additive gasoline until the auto and
gas companies convert to non-polluting products.
Finally, you
assert that the programs cited by WNBC-TV relating to air pollution do not
fulfill the fairness obligation the station has incurred through the broadcast
of innumerable automobile and gasoline commercials. This fairness obligation, you suggest, cannot be fulfilled by
regular programming because of the nature and frequency of the commercial
announcements. [**5] Banzhaf v. F.C.C., supra.
By letter dated
June 22, 1970, the Environmental Protection Administration (EPA) of New York
City strongly supported the position taken by the Friends of the Earth in its
complaint. The Administration's
submission set forth the pollution problems caused in New York City by autos
and use of leaded gas, cites extensive supporting authority and pertinent
Congressional enactments. In addition,
on June 24, 1970, the Citizens for Clean Air, Inc. (CCA), [*745]
submitted a telegram expressing their support for FOE's complaint and
expressing that organization's willingness to provide stations with
anti-pollution messages.
By letter dated
July 13, 1970, NBC responded to the above letter of EPA. It reiterated its position and further
stated that "WNBC-TV has presented many programs and announcements which
do express the anti-pollution point of view." It attached a partial list
of such programs during the first five months of 1970 and stated that in
addition, "news reports in which an anti-pollution viewpoint was expressed
were carried on a number of occasions, and over 200 public service
announcements for anti-pollution, conservation, and other related organizations
[**6] in the field of ecology or
environment were carried by WNBC-TV during the first 6 months of 1970,"
NBC therefore urges that the public is being informed on the anti-pollution
viewpoint.
Finally, by
letter dated July 30, 1970, Mr. Geoffrey Cowan submitted a letter setting forth
a series of recent developments bearing on the complaint (e.g., the health
hazard crisis created by New York City's automobile-produced air pollution (p.
2 Letter). Mr. Cowan does not contend
that WNBC-TV "has totally failed to discuss ecology", noting that it
made "a particular effort to discuss the environment this spring" and
in particular with the Today programming and the program, "In Which We
Live". Mr Cowan's letter does
assert that WNBC-TV coverage of the air pollution issue is inadequate; that
"at most, one-third of the 50 programs cited by the stations had anything
to do with air pollution, and only five or six of these appear to have
presented even the most cursory discussion of automobile pollution." (p.
4, Letter). He further believes that
"One reason for WNBC-TV's failure to discuss automobile pollution in depth
is the natural reluctance to criticize the products made by some of the station's
[**7] principal sources of
revenue." The letter urges, inter alia, the Commission to enunciate a
clear policy position which will require licensees to act in the public
interest in this field.
We have reviewed
the arguments presented and conclude that although no action is warranted
against WNBC, a full statement of our position would be helpful to broadcasters
and the public alike.
DISCUSSION
We shall first
discuss the pertinent background factors and then the particular complaint
here.
In the Cigarette
Advertising ruling, supra, the Commission applied the fairness doctrine --
really the public interest standard (see id. at p. 927, para. 14) -- to the
broadcast of cigarette commercials. We
pointed out that the normal use of cigarettes had been found by the Government
to be a hazard to health (e.g., Surgeon General's Reports; Congressional
enactments); that broadcasters were presenting commercials urging people to
smoke; and that therefore the public interest required that the public also be
informed, to a significant extent, that however enjoyable smoking may be, it
does represent a hazard to health. As a
practical matter, this ruling resulted in the
[*746] presentation of
anti-smoking [**8] messages, in a
reasonable ratio to the smoking commercials, including periods of maximum
audience listening. See NBC, Inc., 16
FCC 2d 956.
At the time we
adopted the above ruling, it was urged that it could not be limited to just one
product, cigarettes; that it would logically have to be extended to many
others, with the result that the present commercially based system of
broadcasting would be undermined. We
rejected that argument (9 FCC 2d 921, 943-945). We set forth our view that
cigarettes were a unique product in this respect. We recognized of course that many advertised products have
negative aspects in use. Automobiles
result in many deaths each year and because their gasoline engines constitute
the main source of air pollution (S. Rept. No. 91 -- 745 91st Cong. 2d Sess.,
p. 3), they raise most serious environmental problems. Such problems are raised by a host of other
products or services -- detergents (particularly with phosphates), gasoline
(especially of a leaded nature), electric power, airplanes, disposable
containers, disposable containers, etc.
The list could be extended greatly.
We believed, however, that cigarettes are distinguishable from these
products [**9] on a number of grounds
that really coalesce: n5
n5 We also noted that it is the
normal use of cigarettes in any amount that is hazardous -- not an abuse as in
the case of automobile accidents or aspirin.
(i) Cigarette
smoking does not involve a balancing of competing interests. It is a habit -- like snuff or chewing
tobacco -- which can fade away and, indeed, which the Government for health
reasons is urging people either not to begin or to stop at once. That is not true of the other products. As stated, they all involve ecological
problems. These problems call for remedial
action of varying nature, and some are certainly urgent. However, the Government is not urging people
to stop now -- without any delay -- buying or using gasoline-engine
automobiles, the detergents, or electricity.
The benefits and detriments here are of a more complex nature, and do
not permit the simplistic approach taken as to cigarettes. n6
n6 We do not by the above mean to
denigrate the seriousness and urgency of the problem of gasoline-engine
automobile pollution problem. Thus, we
recognize that, because of weather conditions or other factors, there may be
Governmental strictures on the use of automobiles in major cities. But nevertheless the problems are complex.
[**10]
(ii) Indeed,
because of the above consideration, we stated in our Cigarette Advertising
ruling that the real question was how such a product could be promoted at all
on a medium impressed with the public interest. In view of the Cigarette Labeling Act of 1965, we could not act
on that question, but with the expiration of that Act, we proposed to ban
cigarette advertising. See Notice of
Proposed Rule Making 32 F.R. 13162. And Congress has of course acted to do
so. Public Law 91-222. No one proposes to stop promoting or using
the fruits of the technological revolution (e.g., to stop all use of autos or
trucks); rather, we are recognizing that we must take prompt action to come to
terms with the environmental effects of that technology.
(iii) Finally,
action can be taken effectively in these areas, and therefore the focus should
properly be on action dealing with products which contribute to pollution, not
the peripheral advertising aspect. It
was urged that cigarettes are a legal product, and thus there can be no
question of promoting their use. To
this we answered that in [*747] light of the national experience with
liquor, prohibition of use of use of cigarettes might be adjudged [**11] poor policy by the Congress, but that would
be all the more reason to act effectively in the areas that remained open --
namely, educational campaigns and forbidding promotion (which would undercut
such campaigns). See Letter to Senator
Moss, September 17, 1969, 23 FCC 2d
. This consideration is not
applicable to these other products or services. There could be no thriving bootlegging industry of airplanes,
electric power plants, autos, detergents, etc.
This means that more direct and effective Governmental action, if
appropriate, is perfectly feasible. See
discussion, infra, pp. 8-9.
This brings us
to the gravamen of the complaint here -- that the public should be informed of
the issue, as a predicate for action by elected officials. We agree fully that these environmental
issues constitute issues of great importance.
See, e.g., Message of President Nixon, February 10, 1970. Licensees must devote a reasonable amount of
time to such issues, as a most important part of their obligation to operate in
the public interest. Report on
Editorializing by Broadcast Licensees, 13 FCC 1246, 1248-9 (1949). In Red Lion
Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 394 (1969), [**12]
the Supreme Court stated:
It does not
violate the First Amendment to treat licensees given the privilege of using
scarce radio frequencies as proxies for the entire community, obligated to give
suitable time and attention to matters of great public concern. To condition the granting or renewal of
licenses on a willingness to present representative community views on
controversial issues is consistent with the ends and purposes of those
constitutional provisions forbidding the abridgment of freedom of speech and
freedom of the press. Congress need not
stand idly by and permit those with licenses to ignore the problems which beset
the people or to exclude from the airways anything but their own views of
fundamental questions. The statute,
long administrative practice, and cases are to this effect.
It is up to the
licensee to determine, reasonably and in good faith, the nature of its coverage
of these most vital environmental issues (e.g., the format of the program; the
appropriate spokesmen, etc.) Report on Editorializing by Broadcast Licensees,
supra, at p. 1250. As stated, the issues are not simple ones but rather involve
difficult questions concerning the steps to be taken, [**13] both short and
long term, the transitional periods to be allowed, the allocation of cost among
the manufacturer, consumer and government, etc. Thus, the question of pollution by the internal combustion engine
has been framed in terms of emission standards (see, e.g., 1967 Clean Air Act;
1968 rule by the National Air Pollution Control Administration of HEW, 33 Fed.
Reg. 8304; or, in view of the increasing number of cars, of the eventual
development of "a new [propulsion] system which... produces few pollutants
and performs as well or better than the present power plant" (S. Rept. No.
91-745, 91st Cong., 2d Sess., p. 4; e.g., the gas turbine engine; steam
(Rankine cycle) engine). The short-term
solution also poses complex issues.
Since we are not expert in this field, we simply note that there are
several approaches besides the one urged here by complainants (e. g, emissions
standards, with periodic inspections; restriction on use of automobile,
etc.). Further, the pollution issues of
several products are often interrelated.
Thus, it has been stated that elimination of phosphates from detergents
will not be effective if steps
[*748] are not taken
concurrently with respect to sewage, etc.,
[**14] (e.g., Joshua Lederberg,
Washington Post, June 6, 1970, p. A 15).
Coverage by programs tailored to illuminate these aspects is clearly
called for. In this connection, the
matter again differs from the cigarette area, where it was appropriate, and
indeed fair, simply to track the cigarette advertisements with announcements
calling attention to the fact that cigarettes are the main cause of such
diseases as lung cancer, emphysema, and chronic bronchitis. See Federal Trade Commission Notice, 29 F.R.
8325.
This last
citation points up again the distinctions between the cigarette and these
products. Were they the same, as urged
by complainant, then we would be requiring each advertisement to contain the warning
to the public of the health hazard.
There is clearly no more effective way to proceed, and indeed, with a
matter such as cigarettes, it is the only appropriate way -- that since the
public is being urged to consume a hazardous product (e.g., main cause of lung
cancer, etc.), that it be informed, both in the advertising and labelling, of
the hazard. n7 Complaintifs do not urge this, presumably because it
would spell the end of all these product commercials. Indeed, we stress [**15]
again that were the two matters really the same, we would be proposing
to ban promotion of these high-powered automobiles or leaded gasoline, since
that is our stated view as to cigarettes.
See Notice of Proposed Rule Making in Docket No. 18434, 32 F.R. 13162.
Significantly, complainants do not request such a ban, thus tacitly recognizing
that there is a significant difference.
n7 Only passage of the Cigarette
Labelling Act of 1965 prevented effectuation of such an administrative
requirement. Indeed, what complainant does
not recognize is that the cigarette fairness ruling was a stop-gap requirement
until termination of the 1965 Act. See
para. 31, Cigarette Fairness ruling 9 FCC 2d 921.
From the
foregoing, our conclusion on the complaint now before us is clear. There is the threshold issue whether these
commercials, which are essentially advertising slogans, such as "Dodge
Rebellion" or "Ford has a better idea," "Quick start in
cold weather," or "put a tiger in your tank," present one side
of a controversial issue in this complex field. Further, complainant in effect calls for ascertainment of the
number of commercials promoting high-powered cars, the number promoting
[**16] the smaller cars, the number and
nature of the programs dealing with the issue of air pollution stemming from
the gasoline engine automobile, n8
and then a judgment whether the difference in time, as between the large and
small cars, is sufficiently great to call for the presentation of further time
to the side which the complainant espouses.
We have no such information before us, but we decline in any event to
extend the cigarette advertising ruling to these other products. We believe, for the reasons set forth
previously, that we should adhere to our previous judgment that cigarettes are
a unique product, permitting the simplistic approach adopted in that
field.
n8 We also take note that, unlike
cigarettes, some gasoline commercials increasingly do urge the use of gas which
is less polluting.
However, even assuming
that we are wrong in that belief, we would not extend the ruling generally to
the field of product advertising. That
is what, in effect, complainant urges since, as stated, a great many products
have some adverse ecological effects.
Were we to adopt a [*749] scheme of announcements tracking in a
significant ratio the ordinary product commercials, the result would [**17]
be the undermining of the present system, based as it is on such
commercials. Such a result is not
consistent with the public interest. It
is not required, since there is the alternative of providing
advertiser-supported programming, valued by the public, by means of the product
commercial, and at the same time affording appropriate time for discussion of
these vitally important issues. In
short, our action must be guided by one standard, important issues. In short, our action must be guided by one
standard, the public interest (Sec. 303(g) of the Communications Act; NBC v.
U.S., 319 U.S. 119 (1934)), and on that standard, extension of the cigarette
ruling is not in order.
In so stating,
we fully recognize that the public interest standard must take into account
public health (Banzhaf v. F.C.C., 405 F. 2d 1082, 1096 (CADC 1969)), and
specifically the environmental pollution aspects of public health. See National Environmental Policy Act of
1969, 83 Stat. 852, setting forth the "... continuing policy of the
Federal Government to use all practicable means and measures in a manner calculated...
to create and maintain conditions under which man and nature can exist in
productive [**18] harmony, and fulfill
the social, economic, and other requirements of present and future generations
of Americans" (Section 101(a)).
The act further states that "to the fullest extent possible... the
policies, regulations, and public laws of the United States shall be
interpreted and administered in accordance with the policies set forth in this
Act" (Section 102). We believe
that our action today does so, and that for the reasons set forth in this
opinion, it is Red Lion -- not the cigarette advertising ruling -- which should
be followed here as the best means of fulfilling our obligations under the 1969
Act.
We wish to
emphasize that our ruling is restricted to the general product advertisement (e.g.,
"Join the Dodge Rebellion," "Put a Tiger in your tank,"
etc.). Obviously, a commercial could
deal directly with an issue of public importance; if so, the fairness doctrine
is fully applicable.
We also
recognize that regulation of commercials may be a device used in a government
campaign against pollution. As stated
in point (iii), p. 4 supra), it would appear that if, for example, recycling
makes sense, the Government would simply move to require such recycling in
place of disposable [**19] containers;
if detergents with enzymes or phosphates should not be sold, such products
should be banned after a specified date (e.g., the Canadian law on detergents
with a specific amount of phosphates -- the New York Times, August 2, 1970, p.
26.); if only automobiles with engines of a certain size should be shipped or
sold, that can readily be specified.
However, we are not the experts here.
It may be that a program of limiting advertising on the basis of
pollution considerations would also be a helpful, transitional tool, just as
taxation is apparently being proposed.
See, e.g., President's Message on new taxes on non-leaded gasoline,
February 10, 1970. If so, here again
the matter is one for consideration by the Congress -- not this agency which is
not, and cannot be, the arbiter of such matters. And any decision made could then be applied
across-the-board. This is not only a
fairer way to handle the matter (see Letter to Senator [*750]
Moss, September 17, 1969, supra) but also avoids the danger that restricted
to one medium, there is the substantial possibility of a corresponding increase
in promotion in the other media, in order to offset the restriction. We would of course [**20] assist fully in
the implementation in the broadcast field of any decision made by an agency
appropriately authorized by the Congress to act in this respect.
Finally, we
shall comment briefly on the contention that this preserves the commercial
broadcast system, when the issue in question is whether life will be preserved
-- whether there will be anyone to tune in the commercial broadcasts. First, our action is logically and clearly
called for, since the commercial broadcast network facilitates public focus on
these great issues. If that system is
undermined, it does not promote solution of our environmental problems --
rather, it would work against such solution by eliminating or crippling a most
important information device. But all
this means that the device must be used to inform -- that it must fully and
effectively meet its Red Lion obligations.
To give but one example, the Washington Evening Star of May 29, 1970, p.
A-14, quotes the following Congressional testimony of Mr. Russell E. Train, the
chairman of the President's Council on Environment Quality,
The supersonic transport
will fly at an altitude between 60,000 and 70,000 feet. It will place into this part of the
[**21] earth's atmosphere quantities of
water, carbon dioxide, nitrogen oxide and particular matter... A fleet of 500 American SSTs and Concords
flying in this region of the atmosphere could, over a period of years, increase
the water content by as much as 50 to 100 percent... "Water in this part of the atmosphere can have two effects
of practical significance. First it
would affect the balance of heat in the entire atmosphere leading to a warmer
surface temperature... Secondly, water
vapor would react so as to destroy some fraction of the ozone that is resident
in this part of the atmosphere. The
practical consequences of such a disruption could be that the shielding
capacity of the atmosphere to penetrating and potentially dangerous ultraviolet
radiation is decreased.
We cite the above only as a recent example of an
environmental issue (see also The New York Times, August 2, 1970, p. 1); we
could have referred to the mercury crises or the metallic pollution
problem. We do not know if Mr. Train is
correct or not, or whether the SST should not be authorized. Clearly, however, this is an issue of public
importance which must be resolved.
Broadcasters must discharge their public [**22] trust by contributing fairly and effectively
to an informed electorate on these vital issues.
In sum, we
decline to extend the cigarette rulings to these products commercials, and
specifically hold that it would be inconsistent with the public interest to ban
these commercials, have them contain health hazard announcements, or require
announcements geared in some ratio to these ordinary product commercials. On the other hand, the broadcaster does have
an obligation to inform the public to a substantial extent on these important
issues, including prime time periods.
While we have stressed that the broadcaster has large discretion in
choosing and covering controversial issues of public importance, it would be no
more reasonable for broadcasting to ignore these burning issues of the
seventies -- which may determine the quality of life for decades or [*751]
centuries to come -- than it would be to ignore the issue of Vietnam or
the issue of racial unrest in communities racked by this problem. n9
n9 Of course, the broadcast licensee
retains discretion as to issues, format, appropriate spokesmen, etc. Thus, a broadcaster located in an area with
no air pollution issue but a severe water pollution one would clearly focus on
the latter. Another, such as in New
York City, would be confronted with public issues in both respects. In short, there remain wide areas for
judgment by the licensee, based upon the facts of his particular area. [**23]
It is not
necessary to peg the above obligation on the fact that the broadcaster is
carrying these product commercials and therefore should reasonably inform his
public concerning associated environmental issues. For, under Red Lion he must do so, whether or not he carries the
commercials. DDT or mercury compounds
are rarely, if ever, advertised, but that does not mean that the public should
be uninformed if there is a crucial controversial issue raised by their use. If, after cigarette advertising ends on
broadcast media, cigarette smoking continues to cause a rising epidemic of
death, the broadcaster cannot ignore discussion of the public health matter
raised by that epidemic. In the words
of the Court in Red Lion, "it is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount" (395 U.S. at 389).
The foregoing
is, we believe, responsive to the request that we enunciate clearly the public
interest considerations applicable to this field (see Cowan Letter, p. 4). We shall also deal briefly with two other
matters raised in that letter. The
first deals with the charge that WNBC-TV is not properly covering the air
pollution issue because [**24] of its
support from automobile and gasoline advertisers. There is no support for this charge. The one recent episode cited (the NBC Migrant Workers programs)
is under study by the Commission, and further comment is inappropriate. We note, however, that the networks are to
be commended for this type of broadcast (e.g., the CBS "Harvest of
Shame"; the recent NBC Migrant Workers program). For, these programs typify the commitment to "robust,
wide-open debate" upon which this nation depends. They do not constitute simply a measured,
careful assessment of where other entities or public opinion are, but rather
demonstrate a devotion to leadership -- to breaking open forcefully,
effectively, and fairly issues of great importance. It goes without saying that this kind of effort is called for,
whatever the effect on the broadcast media advertiser.
Second, the
Cowan letter challenges the adequacy of the WNBC-TV efforts in this area of air
pollution. But NBC submitted only an
example showing in this area, and that showing does indicate significant
coverage of the issue. In any event,
this is an area which would be explored, upon appropriate complaint and
showing, at renewal time, where [**25]
the licensee could demonstrate its overall record in this respect -- the
discharge of his obligation to devote a reasonable amount of time to
controversial issues. In short, this
matter is not appropriately before us at this time, and we therefore restrict
our ruling to the fairness doctrine issue presented.
On that issue,
we hold that the licensee could reasonably reject the announcement approach
sought by you, and that on the basis of the information presented, no further
Commission action is warranted.
[*752]
Commissioner Bartley concurring in the result; Commissioner
Johnson dissenting and issuing a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE,
Secretary.
DISSENT:
DISSENTING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
"The
automobile is our worst polluter of the air."
-- PRESIDENT NIXON, State of the Union
(1970).
"Poetic
License"
This license
certifies
That Ron Padgett
may tell whatever lies
His heart
desires
Until it expires
-- RON PADGETT, Columbia University Forum
(Spring 1970).
This question
today is a crucial one for American commercial television. Will we allow the little glass screen in our
living rooms to go merrily on its way merchandising the machines [**26] and mechanisms that pour thousands of pounds
of pure poison in our sky every day? Or
will American television of once put fantasies aside, pull its head out of the
smog, and put the most potent merchandising tool yet developed by man -- the
spot advertisement -- to work in curing instead of creating, in addressing
rather avoiding, one of America's greatest social ills: Pollution.
I find it
ironic, if not said, that America can invest so much stock faith and rhetoric
in the "magic" of the competitive marketplace of commerce, and yet
ignore the "marketplace of ideas" (to use a phrase by Mr. Justice
Holmes) by tolerating a monopoly used to merchandise Detroit's peculiar dreams
of the appropriate automotive life-style -- with all that life-style's
attendant social ills. In perhaps one
of the great advertising overkills of all time, Americans are being grossly
oversold an automotive product and life-style they neither need nor may really
want, and which may eventually kill them with its exhaust by-products. In effect, the Commission again rules that
Americans have no right to talk back to their television sets -- at least on
this issue. I dissent.
I
We begin with
our cigarette [**27] decision,
Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d
921 (1969), and related court decisions, e.g., Banzhaf v. F.C.C., 405 F.2d 1082
(D.C. Cir. 1968). Using law and logic stemming from these rulings, the Friends
of the Earth compellingly argue that the refusal of WNBC-TV, Net York City, to
provide Friends with an opportunity to present anti-pollution spot
advertisement violates the Fairness Doctrine.
The majority up-holds
[*753] WNBC's refusal. The flaw in the Commission's thinking is
readily revealed in the simple way the majority occasionally refers to these
complaints -- as "anti-automobile/gasoline commercials." That is only
a small part of the truth, a distorted part at that. Friends of the Earth are anti-pollution, not just anti-car or
anti-gas, and that simple yet fundamental distinction should be born in mind in
attempting to deal with all the arguments here.
The majority
labors long and hard to distinguish cigarettes from other products, including
detergents, tin cans, and gasoline engines.
The argument rests on elaborate contentions that cigarettes are so
unique the Fairness Doctrine cannot apply to other "product
commercials." Before turning [**28]
to a more detailed analysis of the majority's points, it is well to bear
in mind former Commission Loevinger's view.
In his concurring opinion in the cigarette case, Commissioner Loevinger
pointed out that cigarette smoking and automobile pollution pose closely
analogous issues. He said:
The Commission
will be hard pressed to find a rational basis for holding that cigarettes
differ from all other hazards to life and health. Contrary to the argument in the Commission opinion (para. 46),
the normal use of automobiles does pose a health hazard, polluting the
atmosphere to a degree that is dangerous not only to those using the
automobiles but, even worse, in some localities to everyone, including infants
and invalids. Applicability of the
Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921, 954 (1967).
If the analogy was strong in 1967, it is far stronger
today.
II
So far as I can
make out, the majority first argues that because cigarettes are a
"unique" product, there are logical reasons for not extending the
fairness doctrine to other products.
Yet the logic of this position is clearly faulty. The question is not whether pollution of the
lung differs from pollution [**29] of
the air, or whether the products are manufactured or used differently, but
whether advocacy of their use raises an issue of controversy and public
importance sufficient to invoke the fairness doctrine. The majority's attempt to distinguish
cigarettes from automobiles, therefore, is in fact a rather enormous non
sequitur. There are no doubt many
interesting differences between the two products, but so what" This fault
in reasoning appears more clearly in the three points used by the majority to
support it product distinction:
(1)
"Cigarette smoking does not involve a balancing of competing
interests. It is a habit -- like snuff
or chewing tobacco -- which can fade away...." Yet this is not true of
other products, the majority maintains.
First, it seems this argument is untrue. The nicotine in tobacco smoke creates in smokers a habitual and
physical dependence on tobacco. Heavy
smokers can "kick the habit," but it usually takes great effort of
will. The anti-smoking announcements
are designed to warn smokers and non-smokers of the dangers of addiction. Yet the contemporary American is wedded to
automobile pollution by even stronger bonds of necessity and lack of
choice. [**30] How could an individual "kick the
pollution habit" if he wanted to?
Most people depend [*754] on automobiles for transportation essential
to their livelihood. Many might prefer
to purchase pollution-free automobiles, but Detroit has simply not given them
this choice. Individuals wanting to
eliminate both air and lung pollution, therefore, could give up both cigarettes
and automobiles. There are, after all,
alternatives to automobiles -- new rapid transit systems, subways, electric
automobile engines, bicycle riding, and plain old walking. n1
But that task is a difficult one. The
issue here is whether the highway and oil lobbies we hear so much from on our
television set will permit us to hear of the alternatives. Second, I fail to see the force of this
argument. What difference does it make
if cigarettes involve "habits" and automobiles do not? The question before the Commission is
whether advocacy of their use invokes the Fairness Doctrine. Pay-TV, for example, may be a controversial
issue of public importance in certain areas, see, e.g., The Spartan
Radiocasting Co., 33 F.C.C. 765 (1962), yet it does not become so because it is
"habit forming"!
n1 For a timely, thorough analysis
of just how distorted our national transportation priorities are, see Leavitt,
Superhighway -- Superhoax (1970). The
book details the quiet scandal in the nation's Interstate Highway system, a
scandal that has cost the nation dearly in the legging development of
alternative modes of transportation.
Consider this portion of a
Washington Post editorial, titled "20 Billion a Year for Highways?":
"On the Senate floor one day
last month, Senator Randolph tossed off a piece of information that each member
of Congress and each taxpayer ought to ponder for a while. 'State highway officials, through their
nationwide organization,' he said, 'estimate that the national highway needs
for the next 15 years will cost $320 billion.'
"We've gotten so uses to
talking about billions -- a federal debt that approaches $400 billion, a
defense budget of around $80 billion -- that the size of this figure is hard to
grasp. But $320 billion is enough money
for the government to buy all the railroads in the country, repair their
roadbeds, fill all of their needs for new equipment, operate their passenger
and commuter trains without charge to the riders for the next 15 years, and
still have a big kitty left over.
Looked at another way, $320 billion is enough to buy every man, woman
and child in the United States a new television set on each January 1 for the
next 15 years. Washington Post, July
20, 1970, at A22, col. 1."
Consider also this portion of a New
York Times editorial, titled "How Livable the City?":
"Perhaps the only thing
absolutely clear in the recent smog was the idiocy of present priorities. Too much Federal revenue goes for
war-related purposes, too little to meet domestic needs. Even in the nonmilitary sphere, there is
distortion. The typical urban taxpayer
-- the father of two, making $10,000 a year -- paid $19 for space exploration
last year and only $1 for mass transportation.
This taxpayer paid $26 for more Federal highways to accommodate more
automobiles and only $4 to fight pollution of both the air and water. N.Y. Times, Aug. 4, 1970, at 28, col.
1." [**31]
(2) The majority
appears to argue further that the Commission could consider (and has
considered) a ban on all cigarette advertising, but no one would think of
rolling back the technological revolution to "stop all use of autos and
trucks." This argument is illogical, wrong, and a non sequitur. It is illogical because it improperly
analogizes cigarette advertising with automobile use. The analogy, if there is one, is a possible ban on automobile
advertising. Further, the argument in
any event is wrong -- for Friends of the Earth do not propose the elimination
of either automobiles or automobile advertising. They merely claim their right to present a contrary view. Finally, the argument involves a non
sequitur -- for even if it were true that we could not ban the automobile
(which it most certainly is not -- particularly if the only alternative was
death for the human race), we could certainly tolerate the view that our
society is endangered by the automobile, and that we should work toward
alternative forms of transportation. n2 The issue, therefore, is the freedom to express
differing [*755] views on air pollution, not abolition of
automobiles or their promotion. Friends
of the [**32] Earth seek only to use the public airwaves to help the people get
their sky back.
n2 Banning automobiles, at least
partially, is an idea not without merit.
Environmental Action, the conservationist group that sponsored Earth Day
last April, has suggested as much.
Environmental Action has urged mayors of five major American cities
(including New York City and Washington, D.C.) to ban cars from special
"pollution-free" downtown areas.
Washington Post, Aug. 4, 1970, at A3, col. 1. Such a suggestion hardly seems radical when one considers the
dangerous cesspool of air that hung over the entire Eastern Seaboard for
several days in late July and early August 1970. "The bread we threw out on the water now returns to
us," one newspaper editorialized.
"It is true that abnormal weather in the form of a mess of warm air
that won't move on is a major weave in the blanket of pollution now covering
us. But we cannot blame the fickleness
of nature for this mess: it is man-made, largely by the exhaust fumes from
automobiles and buses, according to local officials." Washington Post,
July 30, 1970, at A20, col. 1.
(3) The majority
says the "focus should properly be on action, not the peripheral
[**33] advertising aspects." Here again
the majority attempts to deny the special, rather incredible impact of
automobile spot advertising and its impetus to consumer "action" as a
marketing tool. The majority contends
that the anti-pollution drive has been sufficiently aired in regular news and
public affairs programming. Yet the
special effects of advertising cannot fairly be ignored. Advertising is hardly
"peripheral." It is crucial.
It has contributed enormously to our "automobile age," and is
central to the problem at issue here.
There are a
number of factors that should be weighted in determining whether a licensee has
given "significant" coverage to various views. First, an important factor is the frequency
and regularity of presentation. The
Commission has explicitly recognized this factor in its decision, Cigarette
Advertising, 9 F.C.C. 2d 921, 941 (1967):
We think that
the frequency of the presentation of one side of the controversy is a factor
appropriately to be considered in our administration of the Fairness
Doctrine... For, while the Fairness
Doctrine does not contemplate "equal time" if the presentation of one
side of the issue is on a regular and continual basis, [**34]
fairness and the right of the public adequately to be informed compels
the conclusion that there must be some regularity in the presentation of the
other side of the issues.
In affirming this ruling, the U.S. Court of Appeals
in Banzhaf v. FCC, 405 F.2d 1099 (D.C. Cir. 1968), was even more explicit:
In these
circumstances, the Commission could reasonably determine that news broadcasts,
private and governmental educational programs, the information provided by
other media... inadequately inform the public of the extent to which its life
and health are most probably in jeopardy.
The mere fact that information is available, or even that it is actually
heard or read, does not mean that it is effectively understood. A man who hears a hundred "yeses"
for each "no," when the actual odds lie heavily the other way, cannot
be realistically deemed adequately informed.
[Emphasis supplied]
Second, even if
the licensee has satisfied the fairness doctrine under traditional analyses, I
think we must recognize the unusually powerful impact of spot advertising as
compared to normal news coverage.
Prepared spot announcements should be placed in a class by themselves --
a proposition acknowledged [**35] by
FCC Chairman Dean Burch with respect to political advertising. Voters' Time, Twentieth Century Fund
Commission on Campaign Costs in the Electronic Ela, p. 15 (New York 1969);
Statement of Chairman Dean Burch, Subcommittee on Communications and Power of
the House Committee on Interstate and Foreign Commerce, June 2, 1970. The spots in question invoke the familiar
Madison Avenue techniques: the enticements of glamour and excitement ("Be
a Big Rider!"); the allure of travel
[*756] and faraway places; the
invocation of an ethic of masculinity; pleasant surroundings often out of more usual
contexts (by showing an automobile on a clean beach); and the reassuring
appearances of well-known, pleasant-looking personalities to intone the
blandishments prepared by the manipulation specialists. Petitioners seek only to present an
alternative to the siren call of the oil and auto establishments. This the majority has refused them.
III
The ultimate
rationale for denying the complaints here is that, to use the majority's
language, "the result would be the undermining of the present system [of
American television], based as it is on the product commercials. Such a result is not consistent with
[**36] the public interest." I
cannot believe that the majority finds it more important to preserve the
commercial broadcast system than life itself on our planet. Yet this may be the result of their
action. Philip Slater has written in
his recent book, The Pursuit of Loneliness -- American Culture at the Breaking
Point, that the "old culture" in America "tends to give
preference to property rights over personal rights, technological requirements
over human needs,... the producer over the consumer, [and] means over
ends...." Nothing better places the Commission majority in the "old
culture" than today's decision.
Once again, the
majority has successfully seized and wrestled to the ground a phantom issue of
its own creation. It rationale, therefore,
can hardly be taken seriously. Can
anyone seriously believe that the presentation of a few anti-pollution spot
advertisements will destroy the "American System of Broadcasting"? One would expect this argument from
Broadcasting magazine and other trade publications, but not the Federal
Communications Commission. After all,
did anti-smoking commercials bring about the end of American commercial
broadcasting? Of course not. (I sometimes [**37] suspect the broadcasting industry itself
could ban all cigarette and automobile commercials, as well as a dozen other
types, and still fund its entire operations on soap, deodorant and detergent
commercials alone.) In any event, the majority has not shown that the gravamen
of its decision -- preservation of "the present [television] system"
-- is even an issue here. We have no
economic information whatsoever on the cost impact of anti-automobile
advertisements. Without this, I must
dismiss the majority's artificial fears as illusory.
We must not lose
sight of what is fundamentally at issue here: whether our citizens should be
told the whole truth about the products they use and consume. Is this not the bedrock of American
competitive enterprise and consumer choice in the marketplace? How can such an un-American position be
urged by an agency of our government? For an intelligent contemporary consumer
to be free and independent (so the magic of the free enterprise marketplace can
play its supposed role), the consumer must the fully informed on all aspects of
his purchases.
American
television's "cop-out" is apparent. Working hand in glove with the
industrial machine it supports [**38]
and by which it is supported, it
[*757] shows us only half the
commercial picture, and always the glamorous half. Where are the warts, the wrinkles? They, too, are an important part of reality. What the majority really says today is that
our present system of commercial television depends for its livelihood on
duping the American consumer into buying faulty products n3 he may not need, for reasons unrelated to their
merits, that may indeed be literally killing him.
n3 The National Air Pollution
Control Administration (NAPCA) has just learned from new testing procedures
that new cars emit twice as much carbon monoxide and hydrocarbons as permitted
by federal law. And according to
Representative Paul Rogers, American consumers have paid roughly $1.5 billion
for pollution control systems on 30 million new cars (certified in compliance
by the NAPCA) since 1967. Automobile
commercials during those years, therefore, have been inherently deceptive,
failing to warn consumers that the products advertised do not comply with
federal law and do not effectively combat air pollution. See generally, Washington Post, July 15,
1970, p. A-2, cols. 1-2.
The majority
argues that it is necessary [**39] for
this Commission to keep its heavy hand out of programming decisions, and, in
general, I agree. The majority would
subject the broadcaster to review against the public interest standard only every
three years at renewal time. But our
system of commercial television must tell its consumers the whole truth, not
just a part of it. Otherwise, that FCC
license to use the public's airwaves becomes like Ron Padgett's "Poetic
License":
This license certifies
That Ron Padgett
may tell whatever lies
His heart
desires
Until it expires
Is this what Congress intended the "public
interest" to mean: is an FCC license to be a license to lie as much as
desired until the license expires?
The truth is far
more subtle than that. This Commission
needs to relearn the First Amendment lessons Professor Thomas I. Emerson of
Yale has been trying to teach:
Human judgment
is a frail thing. It may err in being
subject to emotion, prejudice or personal interest. It suffers from lack of information and insight, or inadequate
thinking. It can seldom rest at the
point any single person carries it, but must always remain in complete and
subject to further extension, refinement, rejection or modification. [**40]
Hence an individual who seeks knowledge and truth must hear all sides of
the question, especially as presented by those who feel strongly and argue
militantly for a different view.
Emerson, Toward a General Theory of the First Amendment 7 (Vintage Ed.
1963).
This fundamental truth the Commission today, once
again, denies.
IV
Finally, the
unstated -- or only partially articulated -- premise from which the majority
proceeds might be called the "Hit Parade" argument. It goes like this. If the Commission decrees that all licensees must carry programs
dealing with pollution, persons holding strong views on many other issues
inevitably will seek access to the Commission's "Hit Parade," and the
Commission will find itself in the unfortunate position of deciding which issues
are important and which are not, thus assuming the very role of arbiter of
programming which the Commission has always disclaimed.
[*758]
It is important to recognize that what issues gain access to this list
and why is basically beyond the Commission's powers. Who decides? The people
do. The people decide through their
proxies, the President, the Congress, and numerous public commission and bodies
that, as here, [**41] have defined what are today's
"controversial issues of public importance." The majority itself
cites much of this qualifying evidence.
President Nixon, in his February 10, 1970 address to Congress, said
pollution "is our most serious environmental problem." Witness also
the Clean Air Act of 1965, supplemented by the Air Quality Act of 1967 and more
recently by the National Environmental Policy Act of 1969 (NEPA), P.L. 91-190,
83 State. 852 (1970), which requires Federal agencies "to use all
practicable means, consistent with other essential considerations of national
policy..." to "create and maintain conditions under which man and
nature can exist in productive harmony, and fulfill the social, economic and
other requirements of present and future generations of Americans." How
can the FCC present and future generations of Americans." How can the FCC
ostensibly a "federal agency," square today's decision with that Act?
The Commission
turns aside the pleas of Friends of the Earth, the Environmental Protection
Administration of New York City, and Citizens for Clean Air, Inc., three public
interest groups who have filed some of the more thoughtful and impressively
documented petitions [**42] ever
received by this Commission. These
groups see at stake here nothing less than the quality of life in contemporary
America. The Commission's vision,
through the smog it has helped create, is not as good. It is sad and somewhat disheartening that
this Commission holds dearer the quantity to commercial profits than the
quality of human life itself.