In Re Complaint by AMALGAMATED MEAT
CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA
Concerning Fairness Doctrine
Re Station WCNH, Quincy, Fla.
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 279
RELEASE-NUMBER: FCC 70-915
AUGUST
26, 1970
OPINION:
[*279]
Mr. W. S. DODSON, President, Big Bend Broadcasting Corp., Quincy, Fla.
DEAR MR. DODSON:
This letter deals with the complaint of the Amalgamated Meat Cutters and
Butcher Workmen of North America (Amalgamated) that Station WCNH, improperly refused
to carry paid spot announcements which would have informed the community of the
union's position, concerning a strike against Suber-Edwards, a packing company
located in Quincy and selling products under the brand name, "Frosty
Morn." The essential facts as to the dispute are set forth in the union's
letters of June 19, 1969, June 30, 1969, and January 16, 1970, and your letters
of July 28, 1969 and November 13, 1969.
Amalgamated
requested that WCNH carry a series of spot announcements, which would have
informed listeners of the strike and reasons therefore and urged a boycott of
"Frosty Morn" products.
Amalgamated argued the access to radio was particularly called for in
view of the local newspaper's refusal to take its advertisements, an ordinance
against distributing leaflets, and the fact that the station was carrying
advertisements promoting the purchase of "Frosty Morn" products. You stated that you rejected the proffered
spots because of your judgment that the matter was not of sufficient importance
to your listeners, that you noted the commencement of the strike on your news
broadcasts and will cover any new developments as they occur, but that it did
not warrant greater coverage, as "is evidenced by the fact that what is
involved here is an internal dispute between management and labor, affecting
less than 100 people in a town of approximately 10,000 and a county with a
population of over 45,000" (letter of July 29, 1969, page 4). You further stated that if you "...
felt this of major consequence to [your] listeners, [you] would try to present
both sides of the dispute at no cost to either party" (page 1, letter of
November 13, 1969).
The
correspondence also makes clear that there was another ground for the rejection
-- namely, that you believed it inappropriate to carry boycott messages because
they were not "constructive." Thus, you [*280] stated that you
advised the union representative as follows: "We're here as a radio
station to try to build up the community and its economy, not to tear it
down... I don't see how I can go on the
air with messages that urge boycott of valid, federally inspected food
products... The spots would only have a
derogatory effect, if any, on the labor dispute and the community at
large." (Letter of November 13, 1969.)
First, we hold
that based on the information before us, we cannot find that you have acted
unreasonably in refusing to give more than normal news coverage to the
strike. The licensee is called upon to
make reasonable judgments as to what matters constitute controversial issues of
public importance and what type of coverage and amount of time is to be
afforded such issues. Report on
Editorializing by Broadcast Licensees, 13 FCC 1246, 1251 (1949). The judgment
of the licensee must be a reasonable, good faith one. Here you have made such a judgment, set out your grounds
therefore, and the complainant has not shown that the judgment is an arbitrary
one.
In this
connection, we have noted Amalgamated's argument that WCNH is carrying
commercials advertising "Frosty Morn" products. The foregoing conclusion on the threshold
question of controversial issue of public importance is determinative in this
respect also. However, we would also
point out that in any event, regular advertising of commercial products such as
here involved does not fall within the scope of the fairness doctrine. The one exception, cigarette advertising,
has been specifically limited to that particular product for the reasons stated
in In the Matter of Television Station WCBS-TV (Applicability of the Fairness
Doctrine to Cigarette Advertising) 8 FCC 2d 381, 9 FCC 2d 921, 943 (1967). The
Court, in affirming our ruling, noted that it was not authorizing the
Commission "to scan the horizon for offensive material..." Banzhaf v.
F.C.C., 132 U.S. App. D.C. 14, 31, 405 F. 2d 1082, certiorari denied, 395 U.S.
973. It would, we believe, be chaotic and destructive of the base of commercial
broadcasting to hold that regular advertising, without more, presented fairness
issues entitling parties to present their viewpoints on pollution, safety
aspects, boycotts, etc. See Letter to
Gary Soucie, Friends of the Earth, FCC 70-862, August 5, 1970.
We are not
saying that these issues may be ignored by the broadcaster. On the contrary, he is required to devote a
reasonable amount of time to the coverage of issues of public importance. Report on Editorializing by Broadcast
Licensees, supra, at page 1251. It is for that reason -- the contribution which
broadcasting can make to an informed public -- that we have allocated so much
valuable spectrum space to broadcasting.
The Supreme Court in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 394 (1969),
specifically said that "... licensees given the privilege of using scarce
radio frequencies as proxies for the entire community, [are] obligated to give
suitable time and attention to matters of great public concern."
This brings us to the final point -- the second ground stated by you as
a basis for rejecting the spot announcements, that is, that they would not have
a constructive effect upon the labor dispute and the community. That ground is at odds with the public
interest standard. The [*281] Commission made clear in its 1949 report on
Editorializing by Broadcast Licensees, 13 FCC 1246, 1249, that the duty to
present contrasting views on controversial issues of public importance
"... extends to all subjects of substantial importance to the community
coming within the scope of free discussion under the first amendment without
regard to personal views and opinions of the licensees on the matter,...."
See also, Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. at 389, stating
that the licensee must "... conduct himself as a proxy or fiduciary with
obligations to present those views and voices which are representative of his
community and which would otherwise, by necessity, be barred from the
airways."
Thus, had you determined that there was a controversial issue of public
importance, you could reasonably, and indeed commendably, have determined that
you would not cover this issue with spots, but only with programming of
considerable duration which would allow both sides to appear and present their
views. But in considering any such
program, you could not refuse to present it because you did not deem it to be
constructive, or because you did not believe that it would "build up the
community or its economy." The licensee, as a proxy or fiduciary, cannot
permit his judgment as to whether the public should hear a contrasting view on
a controversial issue of public importance depend upon his personal opinion as
to whether that viewpoint is "derogatory," "constructive,"
"will be beneficial to the community," etc. Rather, he is called upon
to make the reasonable, good faith judgment whether the viewpoint is of
significance warranting access to the public. Of course, he can always state his own
position, in an editorial or other programming.
The foregoing is brought to your attention so that future actions in
this area will be in full compliance with the fairness doctrine. For the reasons stated, no further action is
warranted in this case.
Commissioner Bartley dissenting and issuing the attached statement;
Commissioner Cox concurring and issuing the attached statement; Commissioner Johnson concurring in part and dissenting
in part and issuing the attached statement.
BY DIRECTION OF THE
COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: COX; JOHNSON (IN PART)
CONCUR:
CONCURRING
STATEMENT OF COMMISSIONER KENNETH A. COX
I concur, but
wish to add the following. It appears
that the strike may have directly involved nearly 3% of the households in
Quincy and that it had been going on for nine months at the time of the
complaint -- and may, for all we know, still be continuing. I think it likely that this effort to
unionize black workers in a Florida packing plant was, by normal standards, a
controversial issue of substantial importance in this small community. However, the Union should have cited
evidence to rebut the licensee's statement -- which is self-serving and not
very factual -- that the strike was not a significant issue in Quincy. n1
Had it done so, it would have been entitled to access to the station to discuss
the matter, even though the commercials carried for the plant's products were
not, I agree, statements of one side of the strike issue. However, it did not make an adequate case on
this point. I therefore concur in this
action.
n1 I think we should have
investigated further to determine what issues the licensee did consider
significant to the community and worthy of exposure on WCNH. We should also have checked local newspaper
coverage of the strike. These things
would have had a bearing on the reasonableness of the station's conclusion that
the strike was not an important local issue.
DISSENTBY:
BARTLEY; JOHNSON (IN
PART)
DISSENT:
STATEMENT OF
COMMISSIONER NICHOLAS JOHNSON
I concur in part
and dissent in part. (See Business Executives
Move for Peace, FCC 70-860, August 5, 1970 (dissenting opinion).)
DISSENTING STATEMENT OF COMMISSIONER
ROBERT T. BARTLEY
I dissent. The question before us is whether the
licensee has violated the fairness doctrine in refusing to air advertisements
publicizing a boycott. All agree that
the licensee acted reasonably in determining that, because the boycott was not
a controversial issue of public importance, and because one side of a
controversial issue had not been presented, the fairness doctrine did not
apply. However, the majority goes on to
speculate what would have been the case had the fairness doctrine been
applicable. This, in my opinion, is not
only unnecessary, but in this particular situation, serves only to confuse a
doctrine which we have attempted to refine.
The majority
states that if the licensee had determined that this boycott constituted a
controversial issue of public importance, then the [*282] licensee could not
refuse to air tapes publicizing the boycott on the ground that they were not
"constructive" or because, in the licensee's opinion, they would not
"build up the community or its economy." We have stated innumerable
times that a licensee in applying the fairness doctrine:
... is called upon 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. See par. 9, Editorializing Report. In passing on any complaint in this area,
the Commission's role is not to substitute its judgment for that of the
licensee as to any of the above programming decisions, but rather to determine
whether the licensee can be said to have acted reasonably and in good
faith. (Applicability of the Fairness
Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.
Reg. 10416 (1964)).
The majority has
gone much further than this. Once a
licensee determines that a controversial issue of public importance has been
aired, it has a great deal of discretion in deciding how the contrasting view
should be presented and who should present it.
The Commission, in turn, considers the reasonableness of the licensee's
action and its good faith in fulfilling its fairness doctrine obligations. This determination is made on the facts of
each particular case. To make the
general statement that a licensee may never reject a proffered spokesman, or
format, or tape because they are, in the licensee's own opinion, derogatory, or
negative, or not beneficial to the community, is not consistent with the
above-stated policy. Further
clarification of the fairness doctrine is not aided by speculation, broad
generalities, or purely officious language.