In Re Complaints of COMMITTEE FOR
THE FAIR BROADCASTING OF CONTROVERSIAL ISSUES, AGAINST COLUMBIA BROADCASTING
SYSTEMS, INC. (WCBS-TV, CHANNEL 2), NEW YORK, N.Y., and BROADCAST-PLAZA, INC.
(WTIC-TV, CHANNEL 3), HARTFORD, CONN.; FOURTEEN U.S. SENATORS, AGAINST NATIONAL
BROADCASTING CO., INC., COLUMBIA BROADCASTING SYSTEMS, INC., AND AMERICAN
BROADCASTING CO., INC.; BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE (LOS ANGELES
CHAPTER), AGAINST NATIONAL BROADCASTING CO., INC., COLUMBIA BROADCASTING
SYSTEMS, INC., AMERICAN BROADCASTING CO., INC., AND STATIONS KNXT, KABC-TV, AND
KNBC, LOS ANGELES; In Re Petition of REPUBLICAN NATIONAL COMMITTEE FOR RELIEF
AGAINST COLUMBIA BROADCASTING SYSTEMS, INC.; In Re Complaint of ELEVEN U.S.
SENATORS AGAINST NATIONAL BROADCASTING CO., INC.
FEDERAL
COMMUNICATIONS COMMISSION
25 F.C.C.2d 283
RELEASE-NUMBER: FCC 70-881
August
18, 1970 Released
Adopted August 14, 1970
JUDGES:
BY THE
COMMISSION: COMMISSIONERS BURCH (CHAIRMAN) AND ROBERT E. LEE ISSUING SEPARATE
STATEMENTS; COMMISSIONER BARTLEY DISSENTING; COMMISSIONER
JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE
DISSENTING AND ISSUING A STATEMENT; COMMISSIONER WELLS NOT PARTICIPATING AS TO
DOLE PETITION.
OPINION:
[*283]
1. The Commission has before it
a series of separate complaints and petitions relating to alleged violations of
the fairness doctrine by various television networks, their owned and operated
stations and individual network affiliated stations in their coverage of issues
relating to the war in Southeast Asia (also referred to as the Indochina
War). n1 We will first summarize the issues raised by the pleadings and then
turn to discussion of the matters raised.
n1 The pleadings before the
Commission are listed in the attached Appendix.
[*284]
SUMMARY OF PLEADINGS
2. The Committee for the Fair Broadcasting of
Controversial Issues (Committee) filed a "Complaint, Petition for Issuance
of Order to Show Cause to Cease and Desist and Request for Expedited
Disposition" on May 25, 1970, directed against stations WTIC-TV, Hartford,
Connecticut, and WCBS-TV, New York City, for violation of Section 315 of the
Act and the Commission's fairness doctrine.
Specifically, both stations are alleged to have failed "to afford a
fair and reasonable opportunity for the balanced presentation of the contrary
views when the President of the United States addresses the Nation on
television on the Administration's policies in Southeast Asia." n2
n2 Committee for Fair Broadcasting
did not initially contact WCBS-TV and WTIC-TV to ascertain their plans for
future coverage of the issue. Such
prior contact between complainants and licensees is strongly encouraged to
ascertain whether a controversy exists and to sharply narrow and delineate the
issues involved. (See Fairness Primer,
29 Fed. Reg. 10416 at Part I.) In the case of the Committee's complaint we will
consider the matters raised because of the similarity to the complaints of the
Amendment to End the War Committee and the Business Executives Move for Vietnam
Peace where the normal prior consultation procedures were followed.
3. The Complaint: Between November 3, 1969, and
April 30, 1970, the President presented his views on the war in Southeast Asia
(including the issues of the origins of the war, the alternative courses of
action available, "Vietnamization," rate of U.S. troop withdrawal,
American incursion into Cambodia) on four separate occasions n3 with wide prior publicity. The speeches were broadcast during prime time and varied in
length from 15 to 30 minutes. The
President entertained no questions before, during or after the speeches; the
presentations were not interrupted in any other manner; and the President's
remarks were broadcast live and complete.
The Committee contends that neither WTIC-TV nor WCBS-TV has presented
any program which presented contrasting viewpoints on the issues the President
addressed and which received significant prior publicity, was broadcast
nationwide on network owned and operated and affiliated stations during prime
time and had the same uninterrupted orderly exposition on a single issue or set
of issues. The Committee contends that
the programming concerning the Vietnam-related issues presented by WTIC-TV and
WCBS-TV is, in and of itself, balanced.
n4
n3 In the November 3, 1969 speech,
the President discussed the historical background of American presence in S. E.
Asia, outlined the "Vietnamization" program, including troop
withdrawals and training progress of Vietnam army, and the course of
negotiations. On American troops would
be withdrawn. On April 20, 1970, the
President gave another "progress report" on the Vietnam situation,
spoke of the "substantial increase" of enemy activity in Laos and
Cambodia and announced an additional troop withdrawal of 150,000 in the next
year. Finally, on April 30, 1970, the
President announced the entry of American troops into Cambodia. The Committee's pleading was filed prior to
the President's speech of June 3, 1970.
n4 E.g., Face the Nation -- 10
guests favoring Administration policy and 8 opposed; documentaries are
internally balanced with both proponents and opponents included in each show.
4. The Committee asserts that its members, as
part of the listening public of WTIC-TV and WCBS-TV, have not been given
reasonable opportunity to effectively hear the presentation of conflicting
views on issues of public importance in accordance with their rights as set
forth in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969),
Controversial Issue Programming -- Fairness Doctrine, 3 RR 2d 163 [*285]
(1964), and Editorializing by Broadcast Licensees, 13 FCC 1246 (1949).
Petitioner emphasizes that its request is not intended to inhibit television
coverage of Presidential speeches, but rather to insure that licensees fulfill
their "conscious and positive role in bringing about balanced presentation
of the opposing viewpoints." Editorializing Report, supra, at 1251 (paras.
9, 13). The Committee asserts that
WTIC-TV and WCBS-TV have failed to comply with the fairness doctrine,
notwithstanding the wide discretion permitted the licensee to choose the
precise means of achieving compliance bound by standards of reasonableness and
good faith. The Committee's argument is
that the licensees acted unreasonably by failing to exercise the discretion
afforded them and thus not attempting to present any program in conflict with
the views expressed by the President.
The licensees' performance, the Committee asserts, demonstrates a
failure to undertake the affirmative responsibility necessary to meet
"minimal standards of fairness." The fairness violation, the
Committee argues, has been repeated through the series of Presidential speeches
presented by each station. The
Committee seeks issuance of an order to show cause why the Commission should
not require the stations in question to cease and desist from their violation
and failure to observe the provisions of Section 315 and the fairness doctrine
in their coverage of additional Presidential speeches concerning the Indochina
War.
5. In response WCBS-TV and WTIC-TV submit that
they have fairly and fully covered the Vietnam War, the Cambodian incursion and
the Administration's war policy in their overall programming. Both stations have submitted exhibits
showing extensive news, discussion, interview and documentary coverage of the
issues cited by the Committee and contend that their performance cannot be
assessed simply in terms of their coverage of the President's addresses, but
must be viewed in an overall, issue-oriented context. Moreover, the stations assert, the Committee's protestations to
the contrary notwithstanding, the Committee's compliant represents an attempt
to apply the "equal opportunities" concept to the fairness doctrine
rather than the "reasonable opportunities" concept which has
traditionally prevailed. Such a
"radical extension," the stations argue, would be beyond the
Commission's authority, Finally, WTIC-TV contends that the Committee's
objections go to network programming and thus their relief must come from the
same source; n5 WCBS-TV contends the allegations
are too vague and general to demonstrate violation of the fairness
doctrine.
n5 The licensee is ultimately responsible
for assuring that fairness is achieved over the station's facilities; whether
this is done through local or network programming it of no moment insofar as
the individual station's compliance is concerned.
6. The Amendment to End the War Committee and
Fourteen U.S. Senators, n6 have filed a complaint alleging
violation of the fairness doctrine by the three major television networks and
their owned and operated stations in their coverage of the President's speeches
on the [*286] war in Indochina. The
Senators are all sponsors of Senate Amendment No. 609, the "Amendment to
End the War." The President's five speeches on the Indochina war since
November 1969, represent a "series" of programs, n7 petitioners state, which have not been balanced by a
"similarly effective presentation of the views of the major Congressional
opponents of the President's war policy." Petitioners argue that the
President's speeches have presented one side of controversial issues of public
importance (e.g., Presidential power to conduct the war; role of Congress in
making foreign policy; criticism of Senators opposing the President's war
policies; criticism of the McGovern-Hatfield Amendment and the conduct and
progress of the war). In sum,
petitioners raise the same type of objection raised by the Committee for Fair
Broadcasting (paras. 2-5, supra) -- i.e., the simultaneous dissemination of the
President's uninterrupted views by the three major networks in prime time
cannot be offset by the internally balanced programs, fragmented news
presentations regularly broadcast by the networks and the structural interview
programs which do not permit participants to deliver prepared statements of
position.
n6 Harold E. Hughes (D-Iowa); George
McGovern (D-S.D.); Mark O. Hatfiedl (R-Oreg.); Charles E. Goodell (R-N.Y.);
Alan Cranston (D-Calif.); Birch Bayh (D-Ind.); Frank Church (D-Idaho); Thomas
F. Eagleton (D-Mo.); Mike Gravel (D-Alaska); Fred R. Harris (D-Okla.); Philip
A. Hart (D-Mich.); Edward M. Kennedy (D-Mass.); Lee Metcalf (D-Mont.); Gaylord
Nelson (D-Wisc.).
n7 Petitioners term the President's
speeches a "series within the definition used in the Commission's Notice
of Proposed Rulemaking, Docket No. 18859, 35 Fed. Reg. 7820 (1970)" a
series of broadcasts... more than one within a reasonably close time period
(from 6-9 months or less).
7. Petitioners stated that all three networks
have refused the request of the Fourteen Senators for free prime time to
respond to the President and have also refused to sell time for that purpose. n8
Petitioners request that the Commission "require networks to provide time
to any substantial group of Senators opposing the President's views on a
controversial issue of national importance whenever the issue is one in which
the Senate has a role to perform in seeking resolution of the issue, and the
President has initiated debate via national television." n9 Petitioners state that they recognize that some
inequity in responding to the President will exist and therefore do not request
simultaneous three network prime time -- they would accept individual prime
time allocations from each of the three major television networks equaling the
frequency of the President's appearances.
Commission action is necessary, petitioners argue, because the broadcast
media cannot be expected to mediate a dispute between two branches of the
government and determine the amount of coverage which the position of each is
given. n10 In contrast to the complaint of the Committee for Fair Broadcasting
petitioners seek response time for themselves and state that the Senators are
the most appropriate respondents to the Presidential addresses.
n8 NBC permitted the Committee to
purchase one-half hour on May 12, 1970, but refused the same entity's
subsequent request on June 3, 1970. The
program produced for the NBC slot on May 12 was later broadcast by some local
stations including WTOP-TV, a CBS affiliate.
We have considered the question of purchasing time for the presentation
of controversial issues discussion in three rulings released Aug. 12, 1970:
Friends of the Earth (FCC 70-862), Business Executives Move for Vietnam Peace
(FCC 70-860) and Democratic National Committee (FCC 70-861).
n9 The obligation petitioners seek
to enforce would not be satisfied by granting time to the "loyal
opposition" party -- since, it is argued, conflicting views on issues do
not necessarily break down on party lines.
n10 We agree with petitioners that
such mediation is not the function of the broadcast media. However, we similarly believe that it is not
the function of an independent governmental agency to make such judgments. Under the system of broadcasting which has
developed in this country judgments as to the coverage given any issue is in
the first instance left to the licensee to be made on the basis of the
substantive contentions involved in the issues being covered rather than upon
the identity of the contestants.
[*287]
8. Aside from the requirements
of the fairness doctrine, petitioners contend that the relief they seek is
dictated by the First Amendment which by judicial interpretation precludes
private as well as governmental censorship when the avenues of use are
controlled by a few private licensees.
To support this theory, petitioners rely primarily upon the Red Lion,
supra, decision as applying numerous First Amendment cases to the broadcast
media. Moreover, petitioners contend
that the Senators must appear personally to preserve the First Amendment values
involved because of the "impact far beyond the same words spoken by another
man" which a Senator's words have.
Thus, presentation of the same views by another, "drains from the
speech a part of its most important message and best chance to persuade."
9. NBC and CBS (the Networks) have responded to
the Fourteen Senators' complaint in essentially the same fashion and by
reiterating the arguments advanced in response to the Committee for Fair
Broadcasting Complaint (see para. 2-5, supra).
n11 We will therefore summarize only
the additional points made: CBS states that in an attempt to maintain fairness,
assure balance and in response to the President's increased use of the
broadcast media, it has initiated a new series, "Loyal Opposition,"
to provide "the principal opposition party" an opportunity to present
its views on administration policies.
CBS criticizes the Senators for seeking the use of the broadcast
facilities "... to persuade, while the journalist's function is to
inform" CBS maintains that as the President's use of television has
increased so has that of his critics.
Finally, CBS contends, the relief sought by the Senators would result in
the substitution of governmental news judgment for that of the licensee --
e.g., in determining whether Congress "has a role to perform" in the
area, whether the President has "initiated debate" and whether the
President is opposed by a "substantial group" of Senators.
n11 CBS incorporates by reference
its comments filed in response to the complaints of the Democratic National
Committee and Business Executives Move for Vietnam Peace (BEM) and its comments
filed in Docket No. 18859.
10. NBC argues that a right of access to
broadcast facilities is "foreign to the fairness doctrine" even if
the individuals seeking it are elected representatives. In fact, NBC argues, it would be inconsistent
with the fairness doctrine to afford access to favor one group over others as a
general policy. NBC also argues that
the fairness doctrine does not require comparability of audience (the President
commands the attention of a greater share of the audience), format and time
slots. n12 In sum, NBC urges that compliance with the fairness doctrine be left to
"the broadcaster who is to exercise his own good faith judgment in
determining such matters as the particular formats of programs and the spokesmen
for each point of view."
n12 NBC has offered a review of its
recent Indochina programs which are included in part of our discussion, infra.
11. Business Executives Move for Vietnam Peace
filed a complaint raising questions concerning the networks' compliance with
the fairness doctrine stemming from a refusal "to provide time to a
responsible spokesman to reply to the address by President Nixon on June
3, [*288] 1970." BEM's complaint n13
raises essentially the same questions as does that of the Committee for Fair
Broadcasting (paras. 2-5, supra) and the Fourteen Senators (see paras. 6-10,
supra) -- i.e., must each network provide a substantial block of uninterrupted
prime time and permit the format to be controlled by the respondents to answer
the President's presentation of views on controversial issues; and that the
opposing presentation should follow immediately after the President has
spoken. BEM contends that the
comparable access and format they seek for contrasting views is required to
provide fair and balanced coverage as licensees are required to do under the
fairness doctrine and Red Lion. BEM
argues that programs produced by the networks (e.g., interview and discussion)
are internally balanced and that this type of presentation cannot balance the
President's uninterrupted presentation.
n13 The procedural aspects of BEM's
complaint are somewhat confused. On
June 3, 1970, the Commission received a telegram requesting that 15 minutes of
prime network time be afforded to BEM to respond to the President's June 3,
1970 speech on Indochina. The
Commission's staff responded to the telegram on June 8, 1970, with a letter
enclosing information on the fairness doctrine and the procedure for filing
complaints. Thereafter, the Commission
received a letter dated June 3, 1970, complaining of the failure of CBS, ABC
and NBC to afford opportunity to respond to President Nixon's speech to BEM or
other responsible spokesmen. On June
10, 1970, a second letter was received by the Commission in which BEM stated it
was appealing from the negative response from William B. Ray, Chief, Complaints
and Compliance. On June 15, 1970, the
Memorandum in support of BEM's application for review was received. However since the June 3, 1970 response did
not constitute a staff ruling, we will consider BEM's application for review as
a complaint against the three networks and their Los Angeles stations.
12. Specifically, BEM asserts that each of the
network presented approximately 5 minutes of commentary after the President's
June 3, 1970 speech, that the commentary merely summarized the speech with
little critical commentary and the commentators could not provide fair and
balanced presentation for the contrasting point of view. BEM says NBC's June 4th special edition of
"Meet the Press" (one hour prime time -- with one-half hour devoted
to President's position and other half-hour to two U.S. Senators who oppose the
President's views) came closest to providing reasonable opportunity for the
appropriate presentation of conflicting views, but again it was also internally
balanced with both sides appearing.
However, BEM still contends NBC was deficient because the opposing
spokesmen were not presented on June 3 and the June 4 "Meet the
Press" program was balanced. Prior
to complaining to the Commission, BEM requested that the three major networks
and their Los Angeles stations provide BEM or other responsible spokesmen prime
time to respond to the President's speech.
That request was rejected.
13. NBC in response argues that network coverage
of Presidential speeches is traditional and nothing in Red Lion requires the
equal opportunity to reply urged by BEM.
NBC states that no question of its fairness performance is raised with
respect to coverage of the overall issue of the Indochina involvement. The format and choice of spokesmen on
controversial issues of public importance is a matter which has always been
left to the licensee's discretion and, says NBC, should continue to be so.
14. The Republican National Committee (RNC) filed
a petition against CBS for failure to grant RNC network time to respond to the
statements broadcast by Lawrence F. O'Brien on behalf of the [*289]
Democratic National Committee (DNC) on July 7, 1970. RNC states that it has received no reply
from CBS but the public statements of the president of CBS indicate that the
reply would be negative.
15. The background of the RNC complaint is as
follows: the DNC was given 25 minutes on the CBS network on July 7, 1970, to
respond to the President's previously broadcast addresses to the nation; CBS
states that Mr. O'Brien accepted and in his presentation covered many
controversial issues of public importance, all of which had previously been
explored in depth by the President and have been covered many times by CBS news
and public affairs programs. RNC claims
that Mr. O'Brien's appearance was not confined to the Indochina situation n14 as apparently intended, but was used as a
springboard for a "political attack on the President and his party"
and addressed mainly the controversial issue of "which political party
should hold power," an issue which was not the subject of any Presidential
address to the nation. Thus, RNC states
that CBS has presented the Democratic side of a controversial issue of public
importance -- i.e., which political party shall hold power -- and must now
present the opposing view, that of the Republican Party. On this issue, RNC claims to be the most
appropriate spokesman. n15 As to other substantive issues, RNC challenges the
"Loyal Opposition" series that CBS has instituted as not being a
proper exercise of a licensee's responsibility to choose appropriate spokesmen
for each issue. CBS responds that the
"Loyal Opposition" program does not represent an abdication of its
responsibility to choose appropriate spokesmen but rather a determination that
a representative of the Democratic Party is an appropriate spokesman to respond
to the President. n16 CBS also points out that its policy of affording
response time to the opposition party was followed in 1963, 1966, 1967 and
1968, when time was afforded to Republican Party leaders to respond to a
Democratic President's appearances.
n14 Mr. O'Brien, RNC states, devoted
only 2 of his 25 minutes to the U.S. involvement in Indochina.
n15 RNC contends that national
committees of political parties are not policy spokesmen or policy setters and
therefore "are not necessarily appropriate spokesmen to discuss specific
political, economic and social issues -- the 'gut' issues."
n16 CBS contends that the
"Loyal Opposition" format is issue-oriented and on each issue the
appropriate Democratic spokesmen would be selected.
16. RNC contends that CBS' actions in granting
the DNC time represents a handing over of its facilities to "partisan
control" and it demands that comparable broadcast time be given over to
RNC's control. CBS, in turn, argues
that it normally attempts to achieve balance in its presentations of important
public issues through news and public affairs programs produced by news
professionals but that:
... the President of the United
States holds a unique position in American life. As we have previously discussed, his every broadcast utterance is
not subject to mechanical "equal time" rebuttals either under the
Commission's fairness doctrine or pursuant to CBS policies. At the same time we have concluded that in
view of the tremendous importance of television and radio as a medium of
communication, and the increasing use of prime time television and radio by the
President, it is appropriate to make time available to the principal opposition
party periodically to present its opposing views. For this reason we developed the "Loyal Opposition"
broadcasts which we will schedule at appropriate intervals when, in our
judgment, they would serve the interest of more fully informing [*290]
the viewing public and promote fairness and balance in our overall
schedule. This is fully supportive of
CBS' policy that the public must be fully and fairly informed and in no way
inconsistent with our policy that the bulk of the information broadcast should
be presented by our own news organization as the most effective method of
informing the public. [Footnotes
omitted]
RNC's final contention is that office-holders will be
inhibited from reporting to their constituents if each report invokes a
partisan attack from his political opponents -- thus, creating a situation
inimical to the public interest.
17. In reply to CBS' response, RNC reiterates
its contention that O'Brien's presentation raised the "which party shall
govern" issue by its format and the fairness doctrine requires a balanced
response by the only appropriate spokesman: RNC. Moreover, RNC says CBS has mischaracterized its position in that
RNC does not claim that CBS has not violated the fairness doctrine but is so
violating it if response time in not granted to RNC. RNC says it seeks no change in the fairness doctrine, only the
application and enforcement of it by sharp partisan debate.
18. Elevn United states Senators n17 have requested that the Commission require NBC
provide "equal time without cost" for the Senators opposed to the
Amendment to End the War (Amendment 609 to H.R. 17123, Military Procurement
Authorization Act) to present contrasting views to those expressed on a 30-minute
sponsored program, the Amendment to End the War, on NBC-TV on May 12,
1970. NBC declined Senator Bob Dole's
request stating that NBC had presented contrasting views on the issue n18 -- citing President Nixon's June 3, 1970 address and
other NBC programs broadcast between May 13 and July 9, 1970. Senator Dole contended that NBC had not
presented contrasting views on the Amendment itself and NBC responded by
stating that views opposing it had been presented and would continue to be
presented by NBC -- but that "equal time" would not be granted
Senator Dole for that purpose.
n17 Bob Dole, Barry Goldwater,
Clifford P. Hansen, Edward Gurney, Paul Fannin, Carl Curtis, Robert Griffin,
Ralph Smith, Gordon Allott, Peter Dominick, and Strom Thurmond.
n18 Senator Dole's request was made
on July 7, 1970, and NBC responded on July 8, 1970. A second request was made by Senator Dole on July 9, 1970, and
NBC reaffirmed its position denying the request on July 9, 1970. On July 10, 1970, a complaint was lodged
with the Commission.
19. In support of Senator Dole's contention that
NBC has not fulfilled its fairness obligations n19 the following arguments have been presented: the 30-minute program
presented by the Amendment to End the War Senators represented presentation of
one side of a controversial issue and NBC has failed to present contrasting
views which it was obligated to do whether paid sponsorship was available or
not ( Cullman Broadcasting Co., Inc., 25 R.R. 895 (1963)). Senator Dole
requests that NBC afford comparable time to the Senators joining in the
complaint to present contrasting points of view. Moreover, the complaint continues, the appeal for funds made on
the Amendment to End the War program represented the presentation of one side
of another controversial issue and NBC does not "purport to claim that it
has presented contrasting views on this matter." Senator Dole's [*291]
complaint suggests that solicitation may have been the "real
purpose" for the program presented.
NBC responded in the following manner:
n19 The complaint of the Eleven U.S.
Senators is referred to throughout the document as Senator Dole's complaint.
NBC in reply
states that NBC has covered the various views on U.S. participation in the war
and how to end it, of which the Amendment to End the War is one view. Thus, the program to which objection is
raised did not raise an additional controversial issue. Any other approach would splinter discussion
of the basic issues. NBC has offered a
brief analysis of its recent television programs which indicates that views
similar to those of the complaining Senators had been presented on some 24
programs between May 1 and July 15, 1970, not including "hard" news
programs. Clearly, NBC states, the public
has not been left uninformed. Moreover,
NBC intends to continue its presentation of contrasting views on the Indochina
issue, including the Amendment to End the War.
DISCUSSION
20. We have grouped all these complaints
because, to a significant extent, they all involve a common problem -- the
discharge by broadcast licensees of their responsibilities under the fairness
doctrine in dealing with the Indochina war issue. We recognize that other important issues are also presented in
some of the complaints and that even as to the Indochina war issue, the complaints
differ in significant aspects and thus call for different treatment as to those
aspects. We shall of course afford such
different treatment. But it is
desirable to set forth in this one document the background discussion which is
basic to an understanding of our disposition of these complaints. That discussion follows. We shall then turn to the specific
complaints.
A. Background
Discussion -- The Discretion Afforded Licensees Under the Fairness Doctrine
21. We have long stressed the different manner
in which the "equal opportunities" and fairness requirements of
Section 315 operate. The former is
applicable only to uses of station facilities by candidates for public office
and calls for equal treatment -- as to the amount of time to be afforded, the
nature of the time slot, etc. It thus
works with virtually mathematical precision.
22. The fairness doctrine works much
differently. As we stated in our
Fairness Primer, 29 Fed. Reg. 10416 (1964):
The fairness
doctrine deals with the broader question of affording reasonable opportunity
for the presentation of contrasting viewpoints on controversial issues of
public importance. Generally speaking,
it does not apply with the precision of the "equal opportunities"
requirement. Rather, the 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. There is thus room for
considerably more discretion on the part of the licensee under the fairness
doctrine than under the "equal opportunities" requirement.
23. The areas where the licensee's discretion
has been curtailed, chiefly as to selection of the appropriate spokesman, are
the personal attack and political editorializing situations. The reasons are obvious and are set forth in
our reports and in Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367,
378-379 (1969). To a substantial extent, the
[*292] considerable discretion
as to the amount or nature of time to be afforded is also curtailed in these
fields. See Clarence F. Massert, 10 FCC
2d 968 (1967); George E. Cooley, 10 FCC 2d 696 (1967).
24. We do not believe that any extended
discussion is needed as to why the licensee is afforded so much discretion
under the fairness doctrine. In our
judgment, based on decades of experience in this field, this is the only sound
way to proceed as a general policy. A
contrary approach of equal opportunities, applying to controversial issues
generally the specific equal opportunities requirements for political
candidates would in practice not be workable.
It would inhibit, rather than promote, the discussion and presentation
of controversial issues in the various broadcast program formats (e.g.,
newscasts, interviews, documentaries).
For it is just not practicable to require equality with respect to the
large number of issues dealt with in a great variety of programs on a daily and
continuing basis. Further, it would
involve this Commission much too deeply in broadcast journalism; we would
indeed become virtually a part of the broadasting "fourth estate,"
overseeing thousands of complaints that some issue had not been given
"equal treatment." We do not believe that the profound national
commitment to the principle that debate on public issues should be
"uninhibited, robust, wide-open" ( New York Times Co. v. Sullivan,
376 U.S. 254, 270) would be promoted by a general policy of requiring equal
treatment on all such issues, with governmental intervention to insure such
mathematical equality. n20
n20 Indeed, since fairness is
required, more time may need to be afforded to answer an attack than the attack
itself (e.g., a 10 second attack that an individual is a communist).
25. On the other hand, we remain firmly
convinced that the fairness doctrine is workable and does promote robust,
wide-open debate. Again, no extended
discussion is needed on this score, in light of the Red Lion opinion, where the
Court indicated that the fairness doctrine is not only constitutional but may
well be constitutionally required (p. 390).
Suffice it to say that we regard strict adherence to the fairness
doctrine as the single most important requirement of operation in the public
interest -- the "sine qua non" for grant of a renewal of license (
Office of Communications of United Church of Christ v. F.C.C., 425 F. 2d 543,
548 (C.A.D.C., 1969); see also Brandywine-Maine Line Radio, Inc., FCC 70-686,
released July 7, 1970. We have stressed
that we have allocated so much spectrum space to broadcasting because of the
contribution which it can make to an informed public. see Storer Broadcasting Co., 11 FCC 2d 678. That basic allocation
purpose would be largely undermined if the broadcaster could discuss such
issues unfairly -- by presenting only one side or only the viewpoints with
which he agreed.
26. In stressing that the licensee has
considerable discretion in discharging his fairness obligation, we do not mean
to imply that that discretion is absolute.
As stated, we will intervene if the showing establishes that the licensee
has acted unreasonably. Under that
standard, it is not a question of whether we believe that the licensee has
acted wisely or whether we would have proceeded as he did. The issue is not one of substitution of our
judgment for that of the licensee on these issues of broadcast journalism, but
rather whether the licensee [*293] has acted in an arbitrary fashion. Thus, it is patently unreasonable for a
licensee consistently to present one side in prime time and to relegate the
contrasting viewpoint to periods outside prime time. n21 Similarly, there can be an
imbalance from the sheer weight on one side as against the other. But there is no mathematical formula on any
of these questions. What is called for
is a judgment on the facts of each case, when an appropriate complaint comes
before the Commission. See Fairness
Primer, 29 Fed. Reg. 10416 (1964).
n21 The licensee has an affirmative
obligation to encourage and implement the presentation of contrasting
viewpoints. Report on Editorializing,
supra, at par. 9. The Commission has
now under consideration revisions in the doctrine to buttress this affirmative
obligation in certain fairness situations.
See Notice of Inquiry and Proposed Rule Making, Docket No. 18859, 35
Fed. Reg. 7820 (1970).
27. The foregoing principles have been long
established and consistently adhered to by the Commission. Thus, they are set out in the Commission's
"principle summary" of the fairness doctrine (Red Lion, at pp. 375-383)
-- the 1949 Editorializing Report (see particularly par. 10). They have been reflected in so many
decisions over the last twenty years that citation is impracticable. Their support does not rest in
administrative declaration. More
important, the statute and its legislative history are to the same effect. Thus, Congress early considered and rejected
the notion of equal opportunities for controversial issues. (67th Cong. Rec. 12502-12504). In 1959 Congress codified the fairness
doctrine, by inserting the provision in Section 315(a) that broadcast licensees
"must operate in the public interest and... afford reasonable opportunity
for the discussion of conflicting views on controversial issues of public
importance." The conference report makes clear that this was a
Congressional "restatement of the basic policy of the 'standard of
fairness' which is imposed on broadcasters under the Communications Act of
1934" (H. Rep. No. 1069, 86th Cong., 1st Sess., p. 5 (1959)). See also Sen. Rep. No. 562, 86th Cong., 1st
Sess., p. 13; 105th Cong. Rec. 14440, 14457, 14462, 17830-31. And, finally, the Supreme Court's opinion in
Red Lion significantly recognizes the Editorializing Report as the statement of
the basic principles embodied in the fairness doctrine. See Red Lion, supra, at pp. 384-386.
28. Further treatment of the pertinent
background is unnecessary in light of the extensive discussion in the DNC
ruling (FCC 70-861, released August 12, 1970).
We therefore refer to that ruling, and particularly with respect to the
arguments advanced in these complaints that particular persons are entitled
under the First Amendment to access to broadcast facilities. As the DNC ruling makes clear, it is the
right of the public to be informed on public issues -- and not the right of any
particular individual or group to speak over broadcast facilities -- which is
paramount here.
29. Finally, we would note that in view of the
foregoing, the fairness doctrine is a term of art. A layman might say that if A got 30 minutes to speak on some
issue, it is only "fair" that a spokesman for the other side also get
30 minutes in the same time period.
Thus, in such a lay viewpoint, "fairness" would always entail
"equal opportunities." But, as shown, that is not the thrust of the
fairness doctrine, as developed by the Commission and codified in the law in
Section 315. The fairness doctrine does
not require equality but reasonableness --
[*294] that in the circumstances
there has been "reasonable opportunity for the discussion of conflicting
viewpoints on controversial issues of public importance" (Section 315(a)).
B. The
Complaints that a Spokesman be Given Equal Opportunities to Respond When the
President has Addressed the Nation on Broadcast Facilities
30. With the foregoing as background, we turn to
the complaints. First, we deal with
those complaints which in effect request that an appropriate spokesman be
selected to respond, on an equal opportunities basic, to any broadcast
Presidential address on a controversial issue of public importance. As stated in the BEM complaint, each network
would be required to provide "a substantial block of uninterrupted prime
time and permit the format to be controlled by the respondents to answer the
President's presentation on views on controversial issues; and that the
opposing presentation should follow immediately after the President has
spoken" (BEM, p. 9-a). In the
complaint of the 14 Senators, it is that "the Commission should require
networks to provide time to any substantial group of Senators opposing the
President's views on a controversial issue of national importance whenever the
issue is one in which the Senate has a role to perform in seeking resolution of
the issue, and the President has initiated debate via nationwide
television" (14 Senators' complaint, pp. 6-7). From the foregoing discussion and as amplified below, we deny
these requests as contrary to the established principles of the fairness
doctrine.
31. There is no question but that the fairness
doctrine is applicable to Presidential addresses on Controversial issues of
public importance. See Letter to
Republican National Committee, 40 FCC 625 (1964); Letter to Blair Clark, 11 FCC
2d 511 (1968). This means that the broadcaster must afford reasonable
opportunity for the presentation of contrasting viewpoints on the issues
covered in such broadcasts. But it does
not mean that the Presidential speeches must be considered in isolation or that
the licensee loses the discretion afforded him under the fairness doctrine as
to the manner in which he achieves compliance with the doctrine. Thus, it is still up to him to determine the
appropriate spokesmen. We find no basis
for singling out any "substantial group" of Senators as being entitled
to time to respond; it may be that members of the House, Governors, and other
public or private officials would be just as appropriate spokesmen.
32. Complainants are attempting to engraft an
"equal opportunities" requirement in a fairness area where it is
wholly inappropriate. We point our that
there is no basis for restricting this concept, once adopted, just to the area
of Presidential speeches. It could
equally be advanced where the Governor speaks, and the State Senate or House
has a role to play, or where the Mayor addresses the community on a matter
within the ambit of the City Council, and so on.
33. The same considerations are applicable to
the BEM specification that the opposing broadcast immediately follow the
Presidential speech. If adopted, it
would be applicable to all speeches involving controversial issues. But we have declined such a requirement
generally because it restricts robust, wide-open debate. See Report on Editorializing, [*295]
par. 8. We adhere to that
long-established policy. What is
required is that the public be given a reasonable opportunity to be informed
about the other side -- not rigid rules which inhibit the opening or
presentation of the debate.
34. This is true also with respect to the nature
of time to be afforded the contrasting viewpoint. As stated, the question of reasonableness calls for a judgment on
the facts of each case. In the case of
Presidential addresses, there is no requirement that they be met by countering
addresses. Licensees are of course free
to do so, and have done so on many occasions in the past, but they may also
make the judgment to use a variety of formats -- the presentation of
representative partisan viewpoints on newcasts, on news interview programs, and
the licensee's own analysis, either after the speech or in subsequent newcasts
or editorials. The critical issue is
whether the sum total of the licensee's efforts, taking into account his plans
when the issue is a continuing one, can be said to constitute a reasonable
opportunity to inform the public on the contrasting viewpoint -- one that is
fair in the circumstances.
35. Just as examples, we shall discuss two
precedents. In Letter to Republican
National Committee, 40 FCC 625, 626 (1964), the Commission had before it a
complaint which is directly in point to the situation under discussion -- a TV
and radio broadcast by President Johnson and a complaint that only the equal
time appearance of the spokesman for the opposing party, Senator Goldwater,
"... can meet the test of fairness in the circumstances of this case, and
news clips and other off-hand coverage will not suffice." The Commission,
after holding that the fairness doctrine was applicable to the situation,
pointed up the different nature of that doctrine from the equal opportunities
provision (using the same quotation from the Fairness Primer -- see para. 22,
supra). The Commission stressed that in
making the determination whether the networks have acted reasonably, "the
licensee's overall performance is considered (i.e., 'all the programs
irrespective of the programming format, which he has devoted to the particular
controversial issue during the appropriate time period'). See, Ruling No. 15, Fairness Primer, Letter
to Cullman Broadcasting Co., FCC 63-849." The Commission then noted that
all the networks had afforded Senator Goldwater extensive opportunities to
state his position on the issues covered by President Johnson in a large number
of newscasts; that two of the networks had presented Senator Goldwater or his
representative in speeches (ABC in a half-hour paid broadcast, NBC in a
15-minute broadcast offered to the Republican National Committee); that NBC had
invited Senator Goldwater to appear on "Meet the Press," "where
it could give him a further opportunity to present his viewpoint in response to
questions..."; and that CBS was planning a news documentary in which
Senator Goldwater was invited, and that "if he accepts the invitation, he
will have an opportunity to make a further statement of his views on the events
in question." The Commission found, based on these showings, that the networks
had not acted unreasonably.
36. The second example case, illustrating the
same principles but on the gubernatorial rather than presidential level, is our
recent ruling in Boalt Hall Students Association, 20 FCC 2d 612 (1969). We
believe [*296] that these precedents, and others such as
Letter to Blair Clark, 11 FCC 2d 511, 515 (1968), are sound and should be
adhered to. We therefore decline to
overrule them and to hold, as these complainants in effect seek, that an "equal
opportunities" concept is applicable to broadcast addressed by the
President, a Governor, a Mayor, and so on.
C. The
Complaints that the Networks or Licensees Have Not Achieved Fairness in View of
the Number of Presidential Broadcasts on the Indo-China War and Their Efforts
to Present the Contrasting Viewpoint
37. The foregoing dealt with the applicability
and requirements of the fairness doctrine as to a single Presidential broadcast
on any controversial issue. In this
section, we deal with those complaints (or aspects of complaints) that as to
the Indo-China War issue, the networks or licensees have presented since
November 1969 five Presidential addresses on the Indo-China War in prime time, n22 and that while spokesmen for the contrasting
viewpoint have been presented in newscasts, interview programs, and
documentaries, no one has been afforded the kind of opportunity which the
President had; that the President was the only person appearing during these
prime time speeches, he answered no questions, there were no interruptions of
the President's presentation commercial or otherwise, and the speech was
unedited (Complaint of Committee for the Fair Broadcasting of Controversial
Issues; the 14 Senators' complaint; the BEM complaint).
n22 These five broadcasts and the
amount of time the President spoke are: 11/3/69 -- 9/30-10:02 p.m.; 12/15/69 --
6:00-6:14 p.m.; 4/20/70 -- 9:00-9:30 p.m.; 4/30/70 -- 9:00-9:41 p.m.; and
6/3/70 -- 9:01-9:16 p.m. The Vietnam War was discussed in the President's State
of the Union Message (1/22/70 -- 12:30-1:30 p.m.), and comparable time was
afforded by the three networks to spokesmen of the Democratic Party to respond
to this speech on the State of the Union.
38. First, we do not depart from the basic
principles governing the application of the fairness doctrine. We therefore stress, as we have in the past
cases, that we look to all the programming that has been presented on the
issue. In making the judgment whether
the networks have acted reasonably, we must take into account the nature of the
programming presented on one side of the issue; and in this instance, that
means of course the number of Presidential addresses in prime time.
39. There is no question but that the networks
have presented extensive programming dealing with the issue of the Indo-China
War CBS submitted a detailed showing in this respect, which we take to be
typical for the networks. The showing
encompasses presentations in newscasts, news interview shows, documentaries, or
on-the-spot coverage of bona fide news events, which involved either analysis
by network commentators or very frequent appearances of partisan spokesmen for
the contrasting viewpoints on this issue, including in prime time periods. Relevant here also are the analyses by the
commentators after the Presidential addresses.
In addition to the network newscasts, licensees present their own
newscasts, which again deal extensively with the Indo-China War issue. Further, many licensees editorialize. As an example, we point to the showing made
by WCBS-TV, where it has editorialized extensively against the Indo-China War
and afforded appropriate spokesmen the opportunity to reply (CBS News Exhibit).
[*297]
40. The question is whether in
the circumstances the networks have afforded reasonable opportunity for the
presentation of the contrasting viewpoints on this issue. All of the foregoing presentations were
roughly balanced -- that is, the newscasts, documentaries, interview shows,
etc., all presented a balanced number of spokesmen on each side of the
issue. The CBS showing indicates that
the balance would slightly favor the Administration side of the issue, without
consideration of the five Presidential addresses. The critical consideration thus becomes: Are reasonable
opportunities afforded when there has been an extensive but roughly balanced
presentation on each side and five opportunities in prime time for the leading
spokesman of one side to address the nation on this issue? We believe that in such circumstances there
must also be a reasonable opportunity for the other side geared specifically to
the five addresses (i.e., the selection of some suitable spokesman or spokesmen
by the networks to broadcast an address giving the contrasting viewpoint). We wish to stress that we are not holding
that such obligation arises from a single speech -- that where an uninterrupted
address is afforded one side, the fairness doctrine demands that the other side
be presented in the same format. That
is the modified "equal opportunities" doctrine discussed in Part B,
supra, and rejected by us. Rather, our
holding here is based upon the unusual facts of this case -- five addresses by
the outstanding spokesman by one side of an issue. n23
n23 In referring above to the
leading spokesman (i.e., the President), we wish to emphasize that we are not
in any sense addressing ourselves to the matter of equalizing impact -- of the
effectiveness of various spokesmen or their presentation. As many of the complainants recognize, the
President stands alone in this respect, and obviously, by the very fact of his
office, commands very great audiences, particularly when he speaks on a grave
national problem such as Cambodia. We
thus repeat that our concern is rather the question of reasonable opportunity
in the circumstances for the public to be informed concerning the contrasting
viewpoint.
41. It is thus critical to examine what the
networks have done in this respect, i.e., affording time for an address to
answer those of the President on this issue, such as was done when Senator
Mansfield was invited to respond to the President's speech on the economy. ABC cites only one program, a May 9th speech
of Mr. O'Brien, the DNC Chairman, in which, it states, he was "generally
critical" of the Administration policy on Indochina. No further details are given, such as the
length of time Mr. O'Brien devoted in the 30-minute speech to this issue. CBS has stated its plan to present a series
of such programs, with spokesmen selected by the DNC, in order to provide a
prime time opportunity to counterbalance the Presidential addresses on public
issues. But in the one program which it
did present, an uninterrupted presentation by the Chairman of the DNC on July
7, 1970, there was only a few minutes (about two) reference to the Indochina
War issue. As to NBC, it has not
invited any spokesmen for a speech on this issue, but it does cite the
broadcast on May 12, 7:30-8:30 p.m., of a special program paid for by the
Amendment to End the War Committee, in which partisan spokesmen gave their
views on an uninterrupted basis. The
fact that this program was on a paid basis does not take it out of
consideration in this fairness evaluation.
See Letter to Republican National Committee, supra; Cullman Broadcasting
Co., supra. The NBC showing clearly comes closest to satisfying the
requirements of the Fairness doctrine in this respect. However, in light of the fact of five
Presidential [*298] speeches on this issue, we believe that more
is required of each of the networks in this respect (i.e., affording prime time
for a speech by an appropriate spokesman for the contrasting viewpoint to that
of the Administration on the Indochina War issue). We do not hold that there is any requirement for "equal
treatment" to the five speeches; that is again a modified "equal
opportunities" requirement which we reject for the reasons previously
stated. While, as shown, all the
networks have done something in the area of uninterrupted presentations in
covering this issue, the result in each case falls short of what is reasonable
in the circumstances. Thus, we require
that at the least, time be afforded for one more uninterrupted opportunity by
an appropriate spokesman to discuss this issue, with the length of time to be
determined by the nature of the prior efforts in this area of uninterrupted
presentations (and with thus the least requirement in this respect on
NBC). We of course leave entirely to
the judgment of the networks the selection of the appropriate spokesmen. See discussion, supra, p. 13.
42. We believe it important to make clear two
things. First, our holding does not
reflect adversely on the networks. On
the contrary, we recognize that the networks have been making good faith
efforts to inform the public on this vital issue. Further, we appreciate that there is some support for their
position in the "theory" of the fairness doctrine, stressed by the
networks in their arguments to us. But,
as the Supreme Court stated in a different context, "Legal theory is one
thing. But the practicalities are
different." ( Ashbacker v. U.S., 326 U.S. 327, 332 (1943).) Here
"practicalities" -- or, stated differently what is
"reasonable" in the circumstances of five prime time addresses by one
side -- clearly call for the greater effort by the networks which we have noted
above.
43. Second, in so holding, we do not mean to
discourage in any way the networks' presentation of Presidential reports to the
nation. It requires no discussion by us
to point up the important contribution which such addresses make to an informed
public. We note that the networks are
unanimous in this recognition. See,
e.g., speech of President Frank Stanton, p. 3.
Our holding is thus directed solely to the matter of a reasonable
opportunity for the expression of the contrasting viewpoint. It is limited to the unusual facts of this
case -- near balance on an issue, with one side in addition afforded five prime
time opportunities to deliver speeches on that issue.
44. Finally, we note that we are dealing here
with continuing plans to deal with a continuing issue, in terms of the
presentations by both sides. Obviously,
the licensee's future efforts must therefore be tailored reasonably to take
into account future developments. We
thus stress that on an issue of this over-riding importance, there must be
continuing and strict adherence to the requirements of the fairness doctrine
that the public be reasonably and realistically informed in light of the
circumstances.
45. In view of the foregoing, we grant the
complaints here involved, to the extent noted above. n24
n24 The complaint of the Fourteen
Senators is also directed at network refusal to sell time for the presentation
of views on the Indochina War by the Senators.
In a Memorandum Opinion and Order dealing with the petition of the
Democratic National Committee, supra, the Commission has considered this
question and re-affirmed its holding that a licensee may reasonably decline to
sell time for the presentation of views on controversial issues of public
importance.
[*299] D.
The Complaint of Senator Dole and Ten Other Senators Against NBC,
Involving the May 12, 1970, Program on NBC Which Supported the "Amendment
to End the War"
46. This complaint was described in pars.
18-19. In view of our prior discussion,
we believe it clear that NBC cannot be said to have acted unreasonably in
rejecting the request for comparable time without cost to present opposing
viewpoints to the May 12, 1970 program, paid for and presented by the Committee
for the Amendment to End the War.
47. First, there is again no question but that
the program dealt with a controversial issue of public importance and that the
fairness doctrine is applicable. The
critical question is whether NBC has failed to present contrasting viewpoints
on the issue concerned.
48. The complainants urge that the issue is not
the Indochina War but rather one of the "Amendment to End the War."
However, no showing has been made that NBC's judgment is arbitrary in viewing
the "Amendment" as part of the Indochina War issue. The program dealt extensively with that
issue, and made clear that the "Amendment" constituted the sponsors'
position on the War. See Text of the May 12 broadcast, Cong. Rec. May 13, 1970, pp. S-7079-82. A contrasting position is that of the
Administration -- that the course being followed by the Administration is the
one which best serves the nation. As
shown by the above discussion, the President has had substantial time to state
that position. Further, it has been
extensively presented by other spokesmen on newscasts, news interviews and documentaries. See NBC example showing, p. 4, attachment,
NBC Reply.
49. With respect to the "Amendment"
itself, NBC states that as a part of its continuing coverage of the Indochina
issue, it will give coverage to the "Amendment" by the time it is
formally presented for adoption on the floor of the Senate. Indeed, as an example, it cites three
instances where spokesmen (Senators Cook, Dominick and Packwood) have already
been given the opportunity to express their opposition to the
"Amendment."
50. Finally, while complainants make much of the
appeal for funds by the Committee for the Amendment to End the War, no showing
has been made that this appeal in these circumstances constituted a separate
issue apart from the "Amendment" on the position against the
Indochina War.
51. In view of the applicable principles (Part
A), we conclude that NBC has not been shown to have acted unreasonably. See Letter to Republican National Committee,
40 FCC 625, 628 (1964).
E. The
Complaint of the Republican National Committee (RNC)
52. This complaint has also been described in
full (pars. 14-17). As stated, CBS
decided to present the Democratic National Committee (DNC) as an appropriate
spokesman in a series of prime time, uninterrupted broadcasts to present
contrasting views to those expressed by the President in his extensive use of
prime time for broadcasts to the nation.
RNC asserts that the DNC broadcast of July 7, 1970, was partisan in
nature and really dealt with the issue, "which party should be in
power"; and that the broadcast covered issues upon which the President had
not expressed any viewpoint.
[*300]
53. Again, we believe that no
extended discussion is needed in view of prior precedents such as the Letter to
Nicholas Zapple, 23 FCC 2d 707 (1970). We hold, based on such precedents, that
the fairness doctrine requires that some reasonable period of time be afforded
by CBS to the RNC or some other appropriate Republican Party spokesman selected
by CBS.
54. In so holding, we wish first to stress that
we do not accept arguments advanced by RNC directed to CBS' good faith. It is perfectly clear that CBS has acted in
good faith. It has become concerned
with the increasing number of prime time speeches by the President, not in
whether to present such speeches, but rather in how best to inform the public
concerning the contrasting viewpoint (p. 3, Stanton speech, CBS Showing). It therefore decided upon the "Loyal
Opposition" concept, and stated that "the CBS policy of making time
available for the principal opposing party to answer the President will apply
equally to the Republican Party when there is a Democratic President" (p.
7, CBS Opposition). Since CBS was thus
responding in good faith to the need for a greater effort in this area, found
by us to be appropriate here (see Part C, supra), it is to be commended for its
concern.
55. However, in practice, the CBS effort, as
represented by the DNC broadcast of July 7, 1970, did not fulfill CBS'
intention. That intention was to offer
the principal opposition party an opportunity to reply from time to time to a
President on major public issues treated in Presidential appearances. But as stated the Presidential addresses
have concentrated very largely on the Indochina War issue (see n22, supra; the one other address during this period was
concerned with the economy).
The DNC
broadcast only referred briefly to the Indochina War issue (i.e., about two
minutes just before the conclusion of the broadcast), and thus did not, we
believe, really fulfill the CBS purpose. n25 Rather, the broadcast would appear
to have come within the type which was the subject of our recent ruling, Letter
to Mr. Nicholas Zapple, 23 FCC 2d 707 (1970).
n25 Indeed, see in this connection
the testimony of the president of CBS before the Senate Committee on
Communications, p. 140, Transcript of Hearings on August 5, 1970, where in
answer to a question whether he thought it was fair to have presented the DNC
broadcast and not to give time for an answer, he stated: "I think that if
this were to persist, if this is the way the Loyal Opposition broadcast series
develops, we would have to reconsider." Thus, in actual implementation as
to this first DNC broadcast, the broadcast would appear to have been
"person or party" oriented rather than issue-oriented, as CBS stated
its intention to be. CBS would not
appear to have exercised journalistic supervision to assure fulfillment of its
purpose.
56. We were there concerned with the application
of the fairness doctrine to situations involving spokesmen for political
parties. For example, if during an
election period, a network sold time to the RNC Chairman who made an attack on
the Democratic Party, the fairness doctrine would be applicable, and time would
have to be sold, upon request, to the DNC for a response. n26
If the attack had been made on free time, then free time should be afforded for
the response. In this really
quasi-"equal opportunities" type of situation, it would not suffice
for the network to say that it would present the DNC side by news clips or
interview shows. Viewing the present
case, we believe that despite CBS' clearly good intentions, what occurred did
fall within this political [*301] spokesmen arena, and thus differed from the
case where CBS selected the spokesmen to speak expressly on a subject. Indeed, as stated, CBS in effect, appears to
have recognized as much (see n. 25).
n26 We further held that the Cullman
principle would be inapplicable.
57. We therefore hold that fairness requires CBS
to extend some time to RNC or a partisan Republican spokesman, to answer
matters raised in the DNC broadcast.
The exact amount of time and other matters are left to the good faith,
reasonable judgment of CBS, since, in view of all the facts here (e.g., that
the DNC broadcast is not one on a clean slate and thus did deal to some extent
with the Cambodian issue, to which the President has made the five noted
addresses), this is not a precise "equal opportunities" situation.
58. Finally, our holding is limited to the facts
of this case, and specifically to this one DNC broadcast. Thus, we do not accept the RNC argument that
the national committees "... are inappropriate spokesmen to respond to
policy issues raised by Presidential appearances" (RNC Reply, p. 6). The short answer is that this is an area
where the licensee has very great discretion.
n27 Perhaps it would be sounder or
better policy for CBS always to select spokesmen in each instance. n28
But that is not a matter for this agency.
Our holding is thus that whatever the appropriateness of the DNC and its
Chairman as a spokesman, the practical result here was one coming within the
principles of our recent ruling, Letter to Nicholas Zapple -- that CBS'
arguments, however superficially sound in theory, are defective when viewed against
"the practicalities." See discussion, supra, paragraph 41.
n27 As a further matter, we note
that RNC has no argument to CBS' point that in 1963 the RNC requested time from
CBS as the appropriate spokesman to answer an address by President Kennedy, and
that this request was granted.
n28 We note that CBS has by no means
settled upon DNC or delegated to DNC, the exclusive role of achieving fairness
by setting forth views opposing those of the Administration. Cf.
Golden West Broadcasters, 8 FCC 2d 987 (1967). On the contrary, CBS has
stressed that "for the most part, for reasons developed at length in [its]
reply to the DNC Request for Declaratory Ruling (pp. 3-10), CBS relies on the
efforts of news professionals to produce broadcasts which provide a balanced
treatment of important public issues including extensive presentations by
partisans of their viewpoints (p. 8, CBS opposition)." Thus, CBS' policy
is to rely upon its information broadcasts (e.g., newscasts, news interviews,
news documentaries, on-the-spot coverage of bona fide news coverage) "as
the most effective method of informing the public."
59. Accordingly, the RNC complaint is granted,
to the extent noted above.
FEDERAL COMMUNICATIONS COMMISSION, BEN W. WAPLE,
Secretary.
CONCURBY: BURCH; LEE; JOHNSON
CONCUR:
SEPARATE
STATEMENT OF CHAIRMAN DEAN BURCH
On August 14,
1970, the date that the decision in this case was announced by a press release
I had no intention of issuing a separate statement. However, having had the opportunity for three days to read the
press treatment of this decision, I now feel compelled to attempt to clear up
what must be a very mysterious proceeding for those people who have only had
the opportunity to read about the decision in the various print media.
First of all, I
recognize that the fairness doctrine is a term of art and that any decision in
this area is somewhat difficult to explain in lay terms and within the space
limitations of newspapers and news magazines.
Further, the Commission's procedure in issuing a news release in advance
of the text of our decisions helps to compound the problem. The reason for this procedure is an attempt
on our part to alleviate the insidious practice of news reports based on internal
leaks from within the Commission. Once
a decision is reached in this agency it finds its way into the press
immediately -- hence the press release system is an effort on our part to
insure that news reports will be accurate and available to all news media at
the same time. Nevertheless, even
considering our procedures, the difficulty of the subject, the brevity of the
press release announcing the decision and the space limitations of the media,
it seems to me that the treatment accorded this decision over the week-end is a
classic example of Murphy's law at work.
In many
instances the actual news stories are reasonably accurate but the headline
writers (as seems to happen all too often) have completely distorted the
substance of the ruling.
A good example
of the headline writer at work is to be found in the Christian Science Monitor
of Monday, August 17, 1970. The story
on this decision is headlined "Anti-Nixon TV Time Ordered." I would
think that any fair observer would agree that nowhere in this decision is there
any statement or implication that "anti-Nixon" time has been
ordered. (Perhaps the prize for the
most cryptically misleading headline
[*303] should go to Chicago
Today for its August 15 headline which reads, simply: "Anti-Nixon Prime
Time.")
The Washington
Star in its August 15 edition headlined "Equal Time Ordered on War
Issue." It should be noted that on August 17 the Washington Star did run a
story by Robert Walters on this decision which carefully interpreted the
decision and did not use a misleading headline.
The Chicago Sun
Times of August 15 fell into the same trap with its headline "FCC Rules
Equal TV Time Is Due War Critics -- GOP." The Boston Globe of August 15,
1970, captioned its story on this decision "FCC Says TV Must Give Equal
Time to War Critics." The St. Paul Pioneer Press of August 15, 1970,
headlined its story "War Foes Win Equal TV Time."
Perhaps some of
this confusion can be explained by an AP wire story on this decision which
stated in part: "The FCC has ruled broadcast networks must give opponents
of President Nixon's Indo-China War policy equal, prime-time rebuttal."
(emphasis supplied) Here, despite the Commission's careful attempt in the press
release to distinguish between "equal opportunity" under Section 315
of the Communications Act and "reasonable opportunity" under the
Fairness Doctrine a reporter indicated that the FCC had awarded
"equal" time, which simply isn't the case.
Turning now to
the bodies of the various stories which appeared throughout the country, the
National Observer on Monday, August 17, 1970, in the first paragraph of its
story on this decision stated: "The major television networks were ordered
to provide five segments of prime time to the Administration's leading war
policy critics to rebut five Vietnam war broadcasts made by President Nixon
since last November." (emphasis supplied) It is difficult to understand
how this sentence could have been extracted from our press release on the same
subject which, among other things, included the following: "The Commission
said that it would 'require that at the least, time be afforded for one more
uninterrupted opportunity by an appropriate spokesman to discuss this
issue...'" (emphasis supplied)
This decision
did not, as Newsweek opined, establish "a new fairness doctrine" and
despite the Commission's statement that "this ruling is not meant to
discourage in any way the networks' presentation of Presidential reports to the
nation...," Time was quick to speculate on "radically changed
Presidential broadcast habits." Neither is this decision a proper
foundation for the two opening paragraphs in the coverage of this decision by
the New York Times (August 15) which said:
The Federal
Communications Commission said today that President Nixon had made such
extensive use of television to defend his conduct of the war in Indochina that
the networks must now give opponents a chance to present critical replies on
prime time.
The requirement
that broadcasters not simply cover the other side but give uninterrupted,
premium exposure to the President's opponents was the first of its kind and
appeared likely to alter Mr. Nixon's use of the medium.
First of all,
the FCC did not say what the Times states it said. Secondly, the Commission was at pains to point out, in its press
release, that it was not engrafting an equal opportunities requirement in
a [*304] fairness area and as pointed out above, the Commission carefully
avoided any suggestion that the Presidential reports to the nation be
discouraged.
Although I could
cite numerous other examples of what has been, at best, peculiar coverage of
this particular decision, I think the foregoing will suffice to make the point.
I trust that my
concern over the press handling of this decision will not be interpreted as an
anti-First Amendment sentiment and I further trust that such errors as I have
pointed out will be corrected and, hopefully, in the future will be avoided.
Having dealt at
some length with what the Commission did not do in this case, it might be
helpful to state what it did.
1. We have not changed, altered or in any way
expanded the basic precepts of the fairness doctrine. It still relates to issues, not to people and requires a licensee
to make reasonable judgments in good faith as to the presentation of viewpoints
on controversial issues of public importance.
2. We have expressly rejected any principle
embodying right of reply or rebuttal to the President. In fact, in paragraph 30 of the Order we
specifically denied requests that a right of reply exists in anyone to respond
to the President or any spokesman, whomever he may be, when speaking on a
controversial issue of public importance.
We have rejected in paragraph 32 any attempt to "engraft an 'equal
opportunity' requirement in a fairness area." In paragraph 34 we find that
there is no obligation to provide time for countering addresses to those of the
President. Rather, it is up to the
licensee to ensure that whenever any spokesman for a controversial issue is
presented reasonable opportunity is made available for opposing viewpoints --
the format being left to the discretion of the licensee. This point is made abundantly clear in the
language dealing not only with the Presidential addresses but with the CBS
"loyal opposition" program.
3. As to the Indo-China War issue, we found
that the networks made "an extensive but roughly-balanced presentation on
each side... without consideration of the five opportunities in prime time for
the leading spokesman (the President n29) of one side to address the nation on
this issue" and in such circumstances time should be afforded for at least
one more uninterrupted opportunity by an appropriate spokesman for the other
viewpoint. We reiterate our rejection
in paragraph 41 of any concept of "equal treatment" of the five
speeches. Rather, those speeches were
averaged in by the Commission along with all the other opportunities for
presentation of viewpoints in finding whether fairness had been achieved.
4. Our ruling was not intended to
"discourage in any way the networks' presentation of Presidential reports
to the nation" (para. 43). We
recognize their importance to an informed public opinion as do the networks.
[*305]
5. Further, we ruled that no
matter how well intentioned CBS was in developing the "loyal
opposition" concept, the Democratic National Committee broadcast of July
7, 1970, was "person or party" oriented rather than issue-oriented as
CBS intended and as such the broadcast covered issues in the political
spokesman arena and fairness requires CBS to give some time to a Republican
spokesman to respond. (The Commission
did not treat the difficult question of whether the fairness doctrine can be
institutionalized.) In so holding the Commission concluded that contrary to its
assertions, "CBS would not appear to have exercised journalistic
supervision to assure fulfillment of its purpose."
n29 In using the term spokesman we
use it in an issue sense for purposes of the fairness doctrine.
STATEMENT OF COMMISSIONER ROBERT E.
LEE
I voted for the
results reached by the Commission in this document. Where a licensee fails to confine a "fairness doctrine"
response, such as the one made by the Democratic National Committee, to the
issues originally raised, he opens the door to a further response on the
additional issue or issues. I would
further point out that a licensee is obligated, under the fairness doctrine, to
select appropriate spokesmen on a case-by-case basis in terms of the particular
issue ( Golden West Broadcasters, 8 FCC 2d 987) and that the advance selection
of the Democratic National Committee as the appropriate spokesman in the future
for one side of national issues, as apparently proposed by CBS, could serve to
establish its Republican counterpart as the most appropriate spokesman for the
other side.
CONCURRING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
On August 14,
1970 the Commission disposed of five pending petitions involving the Fairness
Doctrine and President Nixon's televised statements on the War in Southeast
Asia. It granted some and denied
others. I concurred generally in the Commission's
decision. My vote was necessary to get
majority action to achieve the very limited relief the Commission has
provided. My support was less than
enthusiastic.
This opinion is
intended to explain my vote and to offer my views on the political fairness
matters the Commission has decided. At
the same time I wish to comment on several matters that have occurred since the
announcement of our decision.
I
With minor
variations, all five complaints allege that the three major television
networks, or their station affiliates, have failed adequately to discharge
their fairness doctrine obligations to present all major contrasting views on
the Vietnam War.
The first three
complainants, Committee for Fair Broadcasting of Controversial Issues
[Committee], Amendment to End the War Committee and Fourteen United States
Senators [Fourteen Senators], and Business Executives Move for Vietnam Peace
(Los Angeles Chapter) [Business Executives], all argue in essence that the
President's five major television addresses on Vietnam during [*306]
[*307] a period of seven months
triggered the fairness doctrine, but that the networks and affiliates failed to
present views contrary to the President's sufficiently often and in comparable
format. n30
n30 The Amendment to End the War
Committee and Fourteen United States Senators also raise the separate issue of
"access for consideration" [i.e., payment], stating that the networks
have refused to permit them to purchase time to present views opposing the
President's. My disagreement with the
majority position on this issue is fully detailed in Democratic National
Committee, FCC 70-861, August 5, 1970, and I will not repeat those
considerations here. See also Business
Executives Move for Vietnam Peace (WTOP-AM), FCC 70-860, August 5, 1970,
dealing with the precise problem of "access for consideration" with
respect to short one-minute "commercial-type" announcements.
The Republican
National Committee [RNC] has alleged that CBS triggered the fairness doctrine
when it broadcast a half-hour statement on July 7, 1970, by Lawrence F.
O'Brien, on behalf of the Democratic National Committee [DNC]. RNC argues that it is entitled to reply
time, because although CBS gave Mr. O'Brien time to respond to the President's
Vietnam addresses, he in fact spent only a few minutes on that topic and
devoted his remaining time to controversial issues not touched by the
President.
Finally, Eleven
United States Senators have asked for "equal time without cost" to
reply to a 30-minute program presented on NBC by a number of Senators who were
members of the Amendment to End the War Committee.
II
During the seven
month period from November 1969 to early June 1970, the President delivered
five major speeches on the war in Southeast Asia -- on November 3, 1969;
December 15, 1969; April 20, 1970; April 30, 1970; and June 3, 1970. These speeches were given substantial prior
publicity in newspapers and over television.
With one exception, all were delivered during the "primmest"
of prime-time hours -- between 9:00 p.m. and 10:00 p.m. The shortest was 14
minutes; the longest was 41 minutes.
Each speech was carried simultaneously by the three national
networks. Each speech was carried
live. Each speech was broadcast
completely intact, without interruptions, cuts, commercial insertions, or
delays. There were no questions asked
of the President, either before, during, or after his addresses. In every case, the President himself initiated
the speeches, chose the day and hour for those speeches (apparently with an eye
toward the largest prime-time audiences), and evidenced his willingness to
accept live television coverage. The
speeches were delivered in settings conducive to live television coverage
designed to present the most favorable possible image of the President and his
views. And the speeches were delivered
in "series" -- arranged in a pattern of periodic installments or
statements, each bringing the country "up to date" on the status of
the administration's policies. Often
the President made references to earlier speeches, reminding the audience of
his prior positions and comparing them with the war's progress.
It is important
to emphasize the President's powers in controlling his use of television in
these cases. Not only does he control
format and content, he is allowed to eliminate competition by simultaneous
carriage on the three networks as well as many other stations. In addition he is able to control when his
"pseudo-event" will occur -- just prior to an invasion, timed with
the taking of public opinion polls, or coinciding [*308] with the release
of "good" or "bad" news.
The power of a President to "go to the people" via television
is a power granted to a chief executive which is perhaps unmatched in any other
democratic country which accepts the principle of limited and diffused
governmental power.
III
The first three
complainants, Committee, Fourteen Senators, and Business Executives, argue that
the networks and their affiliates have failed to devote significant time and
attention to views opposing the President's.
I agree for the following three reasons.
The President is
our most prominent national leader. In
terms of power and prestige he occupies a unique position in the government of
this country. The fact that the Executive
is personified in the person of the President, whereas the "Legislative
Branch" is diffused in 535 Senators and Congressmen, gives the President a
special advantage in a television age.
That he also combines the roles of King, Prime Minister, and Celebrity
in Chief gives his TV appearances an added influence.
The unusually
strong impact of Presidential messages is increased when, as here, those
messages are delivered in a series, in prime-time, simultaneously on all three
networks, without interruptions by commercials or questions, and with the
dramatic urgency that a "live" presentation -- coupled with vigorous
advance publicity -- can create. It is
to be noted that these advantages can backfire. The President's November 3, 1969 speech on Vietnam was heralded
to the news media as possessing great originality, news value and importance by
White House spokesmen. When the news
media generally found little in it that was new, and allowed some rebuttal and
criticism of the President's views to appear, Vice-President Agnew's Des Moines
speech followed, and the reign of repression and response we have witnessed
during the past few months which I have detailed in speeches and
elsewhere. See my "Vice President
Agnew Statement" (November 17, 1969); "Subpoenas, Outtakes, and
Freedom of the Press" (February 12, 1970); "The Talkin' Blues"
(March 2, 1970); "Public Channels and Private Censors" (The Nation,
March 23, 1970); Chicago Journalism Review (May 1970, pp. 7-10); "The
Power of the People and the Obligation to Dissent" (May 8, 1970).
IV
I concur fully
in the majority's resolution of the petition presented by Senator Dole and ten
other Senators. Paid political speech
should not be deemed to generate fairness response requirements where
broadcasters are already meeting overall fairness requirements -- as the
majority finds the networks have done in this instance. I would hold that the 11 Senators should be
able to purchase time from NBC if they so desire. (See Business Executives, FCC 70-860; Democratic National
Committee, FCC 70-861). I would also
distinguish this situation from those circumstances where repeated commercials
paid for by sponsors would be deemed to raise fairness obligations leading to
free time. (See Friends of the Earth
FCC 70-862).
[*309]
V
My concurrence
in the majority action on the petition of the Republican National Committee is
extremely reluctant. As the majority
points out in paragraph 54, something like the CBS program "Loyal
Opposition" was clearly necessary to redress the balance between the major
parties, as well as the imbalance between access by the President and the
Congress. For the networks to make no
response to the issues that have been raised in these matters before the
Commission would, in my view, call for even more drastic Commission
action. For CBS and the other networks
now to cut back their efforts to achieve fairness in the area of political
speech would be disastrous.
Mr. O'Brien's
DNC broadcast was intended as a balance to the ability of the President to use
television in addresses and news conferences -- as CBS recognized in titling
the program the "Loyal Opposition." It was an effort to give access
to spokesmen who could play a role similar to that of a "shadow
government" in a parliamentary system.
The Republican
National Committee, by contrast, does not hold the same position in comparison
with the Democratic National Committee as the DNC does to a Republican
President. President Nixon speaks as
Party Leader as well as President, and there is no suggestion that the views of
the RNC are in any sense at variance with those of the President. It may very well be that the RNC ought to be
given time in its own right from time to time.
But it does not follow that the RNC must be given time to reply to the
DNC every time the DNC is given time to reply to the Republican President.
In this
instance, however, I am prepared to concur in the majority's decision, given
the content of the DNC program.
Certainly there is nothing in the majority's opinion to suggest that the
RNC is entitled to anything more than a five minute reply under these
circumstances. I will want to give this
matter further consideration in light of future developments.
VI
I concur in the
majority's holding that the public interest requires that time be made
available "by an appropriate spokesman for the contrasting viewpoint to
that of the Administration on the Indochina War," as argued by the BEM
petition, the Committee for Fairness petition, and the petition of the 14
Senators.
I do not agree,
however, with the majority's reliance on the supposed "uniqueness" of
the series of five addresses by President Nixon. Whenever a President speaks one could almost say that, by
definition, he has spoken on what the Fairness Doctrine characterizes as a
"controversial issue of public importance" -- if it wasn't such an
issue before he expresses his views, it is after he speaks. Furthermore, by definition, he almost always
expresses only a single point of view, or side of the argument, regarding that
issue. Therefore, I believe that the
nature of our political system requires that every broadcast of an
uninterrupted Presidential address gives rise to an obligation to present
appropriate contrasting viewpoints.
It will often be
the case that the "appropriate" spokesman to address the views of the
President will come from the Congress.
We must [*310] not forget that when the President addresses
the nation, he inevitably speaks as an advocate and as the head of his Party --
whether Democratic or Republican.
It is almost
impossible to separate the various roles of the President -- elected
representative of all the people, chief national spokesman, chief diplomat,
commander-in-chief, ceremonial head of the government, chief legislator, chief
executive officer, and party leader.
(Neustadt, "Presidential Government" in the International
Encyclopedia of the Social Sciences, v. 12, p. 451 (1968).) This being the
case, I think it is imperative that leaders of opposing parties, and opposing
viewpoints in Congress, be given the opportunity to rebut his unilateral
statements. This rebuttal is necessary
to present different views on issues, to represent opposing political parties,
and to the very perpetuation of a system of co-equal branches of national
government in a television age.
The problem of
finding and presenting spokesmen who can realistically approach the President's
impact and prestige is difficult if not impossible. We have no "shadow prime minister" or "shadow
cabinet" as in some parliamentary systems where there are national figures
who the public knows stand an election away from being head of the
government. The President has an
inherent advantage because of his office which is further enhanced by the
absence of the "head of the loyal opposition" as a spokesman. This circumstance suggests that more
response to the President is needed, not less, in order to maintain a
balance. This imbalance on television
may also ultimately result in opposition party candidates for the Presidency
being selected a year or two earlier than at present, in order to personify the
opposition for the television audience, i.e., the electorate.
VII
A second
important consideration supporting my conclusion is that the considerations
before this Commission touch the vital "separation of powers" upon
which our government is based. The
first three Articles of the United States Constitution divide the government
into three branches: the legislative, the executive, and the judicial. The first enacts the laws; the second
administers them; and the third interprets and enforces them. Martin v. Hunter's Lessee, 1 Wheat. 304
(1816). This principle of separation of powers is fundamental to our scheme of
constitutional government. See, e.g.,
National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Sharp,
The Classical American Doctrine of "Separation of Powers," 2 U. Chi.
L. Rev. 385 (1935).
The
effectiveness of each branch of government, and in particular the legislative
and executive branches, depends on the extent to which they can communicate
with the electorate -- both to solicit views and opinions on the proper conduct
of governmental business, and to explain and justify actions of government to
the people. If one branch of the
government increasingly gains effective access to the media of communications,
while the other branch is systematically excluded, then the power balance,
presumably designed to safeguard our citizenry from the tyrannies and abuses of
excessive power, will be upset.
[*311]
As I remarked in Democratic National Committee (DNC), FCC 70-861, August
5, 1970, if the President, but not the Congress, were suddenly granted access
to the computer, the telephone, the telegraph, the typewriter, the printing
press, and the Xerox machine, then the power balance between the executive and
legislative branches would be severely impaired. In today's modern world, the "power" to govern is
substantially determined by the information one controls. As Senator J. W. Fulbright of Arkansas
recently testified:
Communication is
power and exclusive access to it is a dangerous, unchecked power... As matters now stand, the President's power
to use television in the service of his policies and opinions has done as much
to expand the powers of his office as would a constitutional amendment formally
abolishing the coequality of the three branches of Government.
Statement by Senator J. W. Fulbright, Hearings on
S.J. Res. 209 Before the Subcomm. on Communications of the Senate Comm. on
Commerce, 91st Cong., 2d Sess., Aug. 4, 1970.
If the President can communicate information to the electorate, to
solicit support for his plans and policies, when the legislative branch cannot,
then I believe we will face a constitutional crisis of the gravest proportions.
The
interpretation the Commission places on its fairness doctrine, therefore,
affects the balance and separation of powers built into our scheme of
government. Unless appropriate members
of Congress are given national television to reply to Presidential speeches,
then the legislative branch of government, the Congress, will be severely
handicapped in its ability to govern.
VIII
I find a final
justification for my position in the context of other Commission decisions on
Vietnam War issues. Although we have at
least said that the Vietnam War is a controversial issue of public importance,
we have kept the doors of "access" to the media for the direct
expression of views on that War tightly locked.
We have refused
to permit those opposing Army and Marine Corps military recruitment spot
announcements to voice their opposition.
Fairness Doctrine Ruling, 24 F.C.C. 2d 156, 158 (1970). We have refused
to permit citizens groups, such as the Business Executives Move for Vietnam
Peace, to purchase short spot announcements on radio and television stations to
oppose the War -- those spots designed, perhaps, to "petition"
Congressman who live in the Washington, D.C. area for "redress of
grievances." Business Executives, FCC 70-860, Aug. 5, 1970. And we have rejected the requests of various
political parties, such as the Democratic National Committee, to purchase
halfor full-hour time segments to present discussions of political issues
affecting the country. Democratic
National Committee, FCC 70-861, Aug. 5, 1970.
Taken with this
Commission's tolerance of network censorship of views opposing the war (see,
"Public Channels and Private Censors," The Nation (March 23, 1970),
pp. 329-332), it is difficult to avoid the conclusion that this Commission has
taken great strides towards silencing direct dissent in the country on the
war. If citizens groups and political
parties cannot even buy the television time routinely available to soap
companies, and if now they are not entitled to replies to major [*312]
Presidential addresses on the war, then I fear that the pressures from
bottled-up dissent in this country will build toward an inevitable
"explosion."
It is ironic
that the only persons in the country with "direct access" to millions
of television homes are the hawkers of commercial goods and services -- deodorants
and mouth washes -- and the President.
If the President, by merely snapping his fingers, can acquire instant
simultaneous access to all four television networks, then how can we in good
conscience refuse to grant rebuttal time to opposing spokesmen and leaders from
the Congress?
IX
I cannot
conclude my opinion without some comment on the extraordinary statement issued
by Chairman Burch. I can think of no
other instance when a member of a court or administrative agency has issued an
official opinion to "correct" headline writers' accounts of his
agency's action. I trust this activity
is not to become a regular occurrence at the FCC.
Virtually every
public official has experienced occasions when he has felt that stories in
which he had a vital interest were not portrayed as he would have wished. n31
But, in my view, given the difficulties in the way the FCC handled this action,
I find little reason to complain.
Chairman Burch acknowledges as much -- his principal beef is apparently
with headline writers rather than with those who covered the stories.
n31 I will cite an example from the
general press, not for purposes of complaining but the contrary: as support for
the assertion that there have been numerous instances in which I might have
been warranted in complaining about stories or headlines, and have refrained
from doing so.
Recently Ralph Nader and I were
called by Senator Edward M. Kennedy's Administrative Practices and Procedures Subcommittee
of the Senate Judiciary Committee to testify on his bill, S. 3434. The bill is designed to redress the
imbalance in the representation of citizen and industry groups before
governmental agencies through the establishment of a Public Counsel Corporation. Both Mr. Nader and I testified to the
conditions giving rise to the need for such legislation, and endorsed the
proposal. The New York Times story on
our testimony of July 22, 1970 carried the headline, "Nader and FCC Member
Criticize Kennedy Consumer Aid Plan."
I did not complain about this
mischaracterization of our positions at the time, and do not do so now. Whether inaccurate headiness and stories are
the products of the pressure upon the daily general press, or the occasionally
questionable motives of the weekly trade press, public reports of my actions
are simply matters over which I do not have, should not have, and do not
desire, a right of constant review and rebuke.
Even when there
is reason for a public official to complain, I think it is generally
unseemingly and inappropriate -- as well as futile and self-defeating -- to do
so. For an official of the FCC to
engage in such action is also ominous, given our powers over many of those
providing the news coverage of which we might complain. There has been concern enough about
Administration intimidation of the news media without involving the FCC
directly.
One of the hopes
for the new administrative era at the FCC was that the Commission would no
longer have to release by Friday afternoon news of actions taken during the
week. The reason the FCC released the
notice of this action, as the Chairman candidly admits, is because if a release
is delayed to Monday, the trade press, which publishes on Monday, will have
generally obtained the item through a leak and published its content. The agency announcement then appears [*313]
to be merely catching up with internal leaks -- and the agency is more
embarrassed than usual.
Coverage of this
matter was made doubly difficult by the fact that the Commission has fallen
into the habit of "decision by press release" -- informing the press
(and public) of its decisions in important cases with a summary press release
only, leaving the full text of majority and minority opinions until days
later. Moreover, in this instance, even
the press release was made available so late on Friday afternoon that many of
those to whom reporters might have talked for clarification or interpretation
were not available, and would not be until Monday. In those circumstances the press did the best it could which, as
the Chairman suggests, was pretty good in an extraordinarily sophisticated and
difficult area.
But the most
revealing, and I think disturbing, aspect of my colleague's statement is his
apparent quarrel with any suggestion that the Commission's action was adverse
to the media interests of President Nixon.
His comments on Mr. Christopher Lydon's story in one of the favorite
administration targets, the New York Times, and his remarks about the Time and
Newsweek stories, clearly demonstrate his sensitivity on this question. It strikes me as overreaching a bit to
suggest that these stories were "improper" -- and it is relevant to
point out that each of these three publications is associated with companies
which are Commission licensees. n32
n32 The New York Times is associated
with the Interstate Broadcasting Co., 229 West 43rd Street, New York City (the
same address as the Times' home office), licensee of WQXR-AM-FM. Time-Life Broadcasting. Inc., Time & Life Building, Rockefeller
Center, New York City, owns and operates KIZ-TV, Denver (KLZ-AM and FM);
KOGO-TV, San Diego (KOGO AM and FM); KERO-TV, Bakersfield, California; WOOD-TV,
Grand Rapids (WOOD AM and FM); and WFBM-TV, Indianapolis (WFBM AM and FM). Time-Life also holds substantial CATV
interests. Post-Newsweek Stations,
Inc., 40th and Brandywine Streets, N.W., Washington, D.C., owns WTOP-TV,
Washington (WTOP and FM); WJXT-TV, Jacksonville, Florida; WPLG-TV, Miami, Florida;
and WCKY-AM, Cincinnati, Ohio.
But more
importantly, one possible reason for the Chairman's extraordinary force and
haste in "clarifying" that no criticism of the President was intended
is suggested by press reports that the White House staff in fact worked with
the Chairman's office in preparing his response to the press coverage of the
FCC's decision. See, e.g., New York
Times, Aug. 19, 1970, p. 1, col. 2; Washington Evening Star, Aug. 20, 1970, p.
Al. I sincerely hope that the reports
are not true and that there was no consultation with the White House at any
level. The White House, and President
Nixon himself, are in fact "parties" to this proceeding -- in the
sense that it is the President's uninhibited right to use the broadcast media
which is at issue in this case. For the
White House staff to have participated in any way in this proceeding, or in the
encouragement or preparation of "interpretative" opinions, would make
a mockery of the independence of an agency which is the creature and arm of
Congress -- even though there is no question of a violation of the letter of
our ex parte contact rules in this instance (because there was not an
adjudicatory hearing in process at the time).
And yet, one cannot help but wonder where else one could so rapidly
obtain such a thorough analysis of the nation's newspaper coverage of the
President -- including accounts in the St. Paul Pioneer Press, Chicago Today,
and Chicago Sun-Times, [*314] none of which appeared in the FCC's internal
newspaper reporting service, or are from papers prominently displayed on the
Chairman's coffee table.
X
I concurred in
the Commission's action here because I believe that, on balance, the package
adopted by five Commissioners of widely differing views was a distinct
improvement over the situation as it had existed. In this opinion I have outlined how I would have approached the
issues had I been free to write the majority opinion as I would have liked
it. I am sure that we have not heard
the end of these matters -- and that the Commission will have future responsibilities
and opportunities to consider how the public interest would best be served by
the performance of the broadcast media in the political life of our nation.
DISSENTBY: LEE
DISSENT:
DISSENTING
STATEMENT OF COMMISSIONER H. REX LEE
Under the fairness
doctrine, the Commission's general standard has always been directed toward
testing the reasonableness and good faith of a broadcaster's action. Innocent error or mistakes of judgment,
occurring in the broadcaster's overall balance of programming, do not
constitute sufficient reason to justify finding that a licensee has failed to
perform its obligations in the public interest. In the arena of political debate, both the heat of issues
involved and the volume of demands for air time (such as we find in these
cases) underscore the necessity for protecting the exercise of reasonable
discretion in the broadcasting industry.
In my view there
has been no substantial showing that the networks, and involved broadcast
licensees, acted unreasonably or failed to fulfill their obligations under the
fairness doctrine. Therefore, I believe
all the attached complaints should have been denied. Accordingly, I dissent.
APPENDIX:
APPENDIX A
I. Pleadings related to Complaint of Committee
for the Fair Broadcasting of Controversial Issues:
A. Complaint, Petition for Issuance of Order to
Show Cause and Desist and Request for Expedited Disposition filed May 25, 1970,
by Committee for the Fair Broadcasting of Controversial Issues against WCBS-TV (New
York) and WTIC-TV (Hartford, Connecticut).
B. Response of CBS, filed June 23, 1970.
C. Response of WTIC-TV, filed June 22, 1970.
D. Reply to Oppositions filed by the Committee
on June 30, 1970.
II. Pleadings related to Complaint of Fourteen
United States Senators and the Amendment to End the War Committee against CBS,
ABC and NBC and their owned and operated stations:
A. Complaint of Order to Show Cause to Cease
and Desist and Request for Expedited Disposition filed July 8, 1970.
B. Response of CBS filed July 20, 1970.
C. Response of NBC filed July 21, 1970.
D. Response of ABC filed July 28, 1970.
E. Reply of 14 U.S. Senators and Amendment to
End the War Committee filed on July 30, 1970.
III. Pleadings relating to Application for Review
filed by Business Executives Move for Vietnam Peace:
A. Application for Review filed June 15, 1970
by Business Executives Move for Vietnam Peace.
IV. Pleadings relating to Complaint of
Republican National Committee:
A. Petition of the Republican National Committee
for relief against CBS filed July 13, 1970 and supplement filed July 14, 1970.
B. Response of CBS filed July 21, 1970.
C. Reply of RNC filed July 30, 1970.
V. Pleadings relating to Complaint of Eleven
United States Senators (Senator Bob Dole, et al.):
A. Letter to Federal Communications Commission
filed by Senator Bob Dole, et al. on July 13, 1970.
B. Brief of Eleven United States Senators in
support of Request for Time to Present Contrasting Point of View filed on July
16, 1970; and,
C. Reply of NBC filed on July 30, 1970.