In the Matter of THE HANDLING OF PUBLIC ISSUES UNDER THE FAIRNESS DOCTRINE AND
THE PUBLIC INTEREST STANDARDS OF THE COMMUNICATIONS
ACT
Docket
No. 19260
FEDERAL COMMUNICATIONS COMMISSION
30 F.C.C.2d 26
RELEASE-NUMBER: FCC 71-623
June 11, 1971 Released
Adopted June 9, 1971
JUDGES:
BY THE COMMISSION: COMMISSIONER
ROBERT E. LEE ABSENT; COMMISSIONERS JOHNSON AND WELLS
CONCURRING AND ISSUING STATEMENTS.
OPINION:
[*26] I.
INTRODUCTION
1. The purpose of this Notice
is to institute a broad-ranging inquiry into the efficacy of the fairness
doctrine and other Commission public interest policies, in the light of current
demands for access to the broadcast media to consider issues of public
concern. It is important to stress that we are not hereby disparaging any
of the ad hoc rulings that we have made in these areas. Rather, we feel
the time has come for an overview to determine whether the policies derived
largely from these rulings should be retained intact or, in lesser or greater
degree, modified. We have divided the inquiry into four parts: (i) the
fairness doctrine generally; (ii) access to broadcast media as a result of the
presentation of product commercials; (iii) access generally for discussion of
public issues; and (iv) application of the fairness doctrine to political
broadcasts. Obviously, these parts overlap. Indeed, each is an
aspect of the underlying problem of access. Interested parties may
address any or all these aspects, or they may structure their comments in
accordance with their own definition of the problem.
2. Several issues to which we
direct particular attention have been the subject of recent Commission
decisions in which both the legal and policy considerations have been treated
in depth. We will not here repeat the extensive majority and minority
opinions. Rather, we refer interested parties to the cited cases where
they will find full treatment of the pertinent policy matters here under
review.
3. We stress that we are
interested in fundamental policy -- not in a re-hash of legal considerations
nor in recommendations of statutory revision. Thus, this Commission cannot
abandon the fairness doctrine or treat broadcasters as common carriers who must
accept all material offered by any and all comers. The Communications Act
is explicit in these respects (see Section 315(a) and Section 3(h)) and we
take [*27] the Act as a "given" from which this inquiry
necessarily proceeds. Furthermore, there are court appeals pending on
several disputed legal issues and such decisions will, of course, be
appropriately taken into account in the course of this proceeding.
4. This Notice thus deals with
Commission-made policy -- derived from the Act and from the standards set down
therein. But, in view of the broad nature of these standards, there can
and must be considerable leeway in both policy formulation and application in
specific cases. The goal is clear: to foster "uninhibited, robust,
wide-open" debate on public issues ( New York Times Co. v. Sullivan, 376
U.S. 254, 270). That is the profound, unquestioned national commitment embodied
in the First Amendment. The basic issue we pose here is whether
Commission-made policies indeed promote that goal to the maximum extent.
Or, are there revisions or even entirely new policies that would serve it more
effectively?
5. Finally, by way of
introduction, we note that promotion of the goal cited above must be consistent
with the "public interest in the larger and more effective use of
radio" (Section 303(g)). It is most important to note in this
connection that, to a major extent, ours is a commercially-based broadcast
system and that this system renders a vital service to the nation. Any
policies adopted by this Commission in the areas covered in the present inquiry
should be consistent with the maintenance and growth of that system and should,
among other appropriate standards, be so measured. We urge all interested
parties to keep this pragmatic standard centrally in mind in forwarding
specific comments and proposals. Proposals that in the short run might
afford great insight into public issues but in the long run might tend to undermine
the existing broadcast system -- e.g., nothing but informational programming in
a debate format -- would not, in this view, serve the public interest.
II. THE FAIRNESS DOCTRINE
GENERALLY
6. The fairness doctrine has
evolved over some forty years as the guiding principle in assuring to the
public an opportunity to hear contrasting views on controversial issues of
public importance. Enunciated as early as 1929 by the Federal Radio
Commission, n1 the fairness doctrine was most
fully fleshed out in the Report on Editorializing by Broadcast Licensees, 13
FCC 1246 (1949), and has been sustained by the Supreme Court as within the
Commission's statutory authority (Section 315(a)) and in full accord with the
First Amendment. Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367
(1969).
n1 See Great Lakes Broadcasting Co.,
3 F.R.C. Annual Rep. 32 (1929), reversed on other grounds 37 F. 2d 993
(C.A.D.C.), certiorari dismissed, 281 U.S. 706.
7. The fairness doctrine is grounded
in the recognition that the airwaves are inherently not available to all who
would use them. It requires that those given the privilege of access hold
their licenses and use their facilities as trustees for the public at large,
with a duty to present discussion of public issues and to do so fairly by
affording reasonable opportunity for the presentation of conflicting views by
appropriate spokesmen. The individual licensee has the discretion, and
indeed the responsibility, to determine what issues should be covered,
[*28] how much time should be allocated, which spokesmen should appear,
and in what format. Only in the case of personal attacks or an editorial
taking sides among competing candidates is there a specific requirement as to
the person to whom the station must make time available. And even this
exception rests not upon an individual's right to be heard but, rather, upon
the proposition that the public's right to be informed will be best served if
the person attacked or the candidate opposed presents the contrasting
viewpoint. The guiding premise, as the Supreme Court put it, is not
"an unabridgeable First Amendment right to broadcast comparable to the
right of every individual to speak, write, or publish" but rather "the
right of the public to receive suitable access to social, political esthetic,
moral, and other ideas and experiences...." Red Lion Broadcasting Co.,
supra, at p. 390. Indeed, it is this right that goes far to explain the amount
of spectrum space devoted to broadcasting.
8. With the exception of the
personal attack and political editorializing rules, it has not been found
necessary to formulate detailed and definitive guidelines for licenses applying
the fairness doctrine in their day-to-day operations. Rather, the doctrine
has been refined case-by-case in particular and concrete situations. See
Applicability of the Fairness Doctrine to Broadcast Licensees (Fairness
Primer), 29 F.R. 10415 (1964). n2 We by no
means denigrate this manner of proceeding. It has in its broad effect
served the nation well, and Commission rulings have been realistically and
thus, we believe, soundly based. But, at the same time, it does seem to
us desirable to take the longer view that an overall inquiry affords -- thus
permitting all interested parties to be heard and not just those involved in
specific complaints. It has been about twenty-two years since we issued
our 1949 Report on Editorializing, supra, and we think it is time for another
overview. If our policies are sound, they should have stood the test of
time and application. If they are not sound -- if they unreasonably
restrict the journalistic functions of broadcasters or permit broadcasters
unreasonably to restrict access -- then corrective action is called for.
Indeed, in the personal attack and political editorializing fields, we pledged
that we would act promptly if we were shown that in actual operation our
policies did not promote the fundamental purposes of the First Amendment.
22 Fed. Reg. 11531, 11532; 33 Fed. Reg. 5363, 5364. This also is the thrust of
the Supreme Court's opinion in Red Lion (395 U.S. at pp. 392-93).
n2 We have outstanding one Notice of
Proposed Rulemaking in the fairness area. See Docket No. 18859.
That Notice deals with a specific proposal, however, and not the broad overview
here contemplated.
9. This part of the inquiry
thus gives broadcasters and all other interested parties the opportunity to
advance their ideas, concerning the fairness doctrine generally, for improving,
refining, or even drastically revising Commission policies. They may
direct their attention to any aspect of the policies set out in the Fairness
Primer or in more recent cases. We cite the following as just a few
examples of important issues in this area:
(i) How have the personal attack and
political editorializing rules worked in actual practice? Should they be
revised in any way to achieve their stated goals?
[*29] (ii) Has the
fairness doctrine in fact promoted the "more effective use of radio"
in the discussion of controversial public issues, or has it served to inhibit
wide-open debate? (In this connection, we also direct attention to our
processing policies -- see Fairness Primer, 29 F.R. at p. 10416; Letter to Hon.
Oren Harris, FCC 63-851; and Letter to Mr. Allen Phelps, 21 FCC 2d 12 (1969)).
(iii) Should the Cullman rule, 40
FCC 576 (1963), which lays down the principle that the right of the public to
hear contrasting views on significant public issues is so important that
licensees must make time available without charge if necessary -- be expanded
or restricted, or otherwise refined?
10. We repeat: these are
examples only. All interested parties are invited to frame their own
questions in addressing the strengths and shortcomings of the fairness doctrine
generally.
III. ACCESS TO THE BROADCAST
MEDIA AS A RESULT OF CARRIAGE OF PRODUCT COMMERCIALS
11. This aspect of the inquiry
is prompted by a recent court decision and several complaints in which very
broad-ranging policy questions appeared to be raised -- questions that reach
beyond the concrete situations involved. Thus, we deal first with the
policy questions raised in the opinion of the Court of Appeals for the District
of Columbia Circuit in Retail Store Employees Union v. F.C.C., Case No. 22,
605, decided October 27, 1970. We refer specifically to the issues raised
in Part III of the opinion. n3
The factual setting is simply stated: a department store (Hill's) had access to
a station's facilities (WREO) to present frequent advertisements of the
standard commercial nature ("... extolling the virtues of Hill's stocks,
bargains, and services and on that basis urging listeners to patronize the
various Hill's outlets" -- pp. 2-3, Sl. Op.). The employee union at
the store decided on a strike and boycott to gain its bargaining
objectives. It sought to support the boycott by purchasing time for
one-minute announcements stating that there was a strike at Hill's and urging
listeners to respect the picket lines. These bare facts are sufficient to
pose the basic issue: namely, does the union have a right to purchase time for
its spots in these circumstances?
n3 The Court noted that unlike the
issue in Part II of the opinion, the issues in Part III do not call into
question the renewal of license of the station involved and, therefore, the
Commission might wish to separate those issues from the license renewal
proceedings (n. 50, Sl. Op.). We think that such separation is clearly
appropriate and accordingly have done so. See Order released April 26,
1971 in Radio Enterprises of Ohio, Inc., FCC 71-401.
12. In view of its holding on
another matter not relevant here, the Court did not resolve the above
issue. But it did indicate that the issue "... deserves fuller
analysis than the Commission has seen fit to give it" (part A, p. 20, Sl.
Op.). The Court then noted (part B, p. 20, Sl. Op.):
Central to the Union's argument on
this point is the proposition that, in urging listeners to patronize Hill's
Ashtabula Department Store, Hill's advertisements presented one side of a
controversial issue of public importance. Hill's [*30] copy,
of course, made no mention of the strike or boycott, or of the unresolved
issues between the Union and the store. But the advertisements did urge
the listening public to take one of the two competing sides on the boycott
question -- they urged the public to patronize the store, i.e., not to
boycott. It seems to us an inadequate answer to this argument merely to
point out that Hill's copy made no specific mention of the boycott. In
dealing with cigarette advertising, the Commission has recognized that a
position represented by an advertisement may be implicit rather than
explicit...
The Court noted a further analogy to
the Cigarette Advertising ruling -- that here also there is an established
Congressional policy involved. In this instance, the policy is
even-handedness in labor-management relations in which both Union publicity and
Hill's commercials might be viewed as weapons of "economic warfare."
In the Court's words (part C, pp. 21-22):
If viewed in this light, it could
well be argued that the traditional purposes of the fairness doctrine are not
substantially served by presentation of advertisements intended less to inform
than to serve merely as a weapon in a labor-management dispute. But the
fairness doctrine, as we have pointed out, is only one aspect of the FCC's
implementation of the statutory requirement that broadcast stations operate to
serve the public interest. [Footnote omitted.] The public policy of the
United States has been declared by Congress as favoring the equalization of
economic bargaining power between workers and their employers. [Footnote
omitted.] It is at the very least a fair question whether a radio station
properly serves the public interest by making available to an employer
broadcast time for the purpose of urging the public to patronize his store,
while denying the employees any remotely comparable opportunity to urge the
public to join their side of the strike and boycott the employer. If the
Union's claim is to be rejected, we believe this question should be dealt with
by the Commission.
13. The Court noted that it
had not attempted a full canvass of all the issues involved but had merely
indicated some of the principal questions to be answered. In the
circumstances, we believe that an overall inquiry is the best way to proceed,
thus allowing for maximum participation and maximum opportunity for sound
policy formulation. The issue has been posed here in terms of Retail
Store but, clearly, it has wider ramifications. The issue really is the
right of access, if any, to the broadcast media to respond to product
commercials.
14. Two of the Court's basic
considerations -- that product commercials can carry implicit messages and that
pertinent national policies should be taken into account -- have very wide
applications indeed. For example, we might consider the national policy
of avoiding environmental pollution (see National Environmental Policy Act of
1969, 83 Stat. 852, Section 101(a)). As we indicated in our Letter to Mr.
Soucie, 24 FCC 2d 743 (1970), appeal pending sub nom. Friends of the
Earth v. F.C.C., Case No. 24556, C.A.D.C., a great number of products commonly
advertised over the broadcast media have pollution consequences: cars because
of their gasoline engines; gasoline itself; airplanes; detergents; and, indeed,
every product that is normally packaged in a non-biodegradable container.
Commercials urging use of these products or services thus can be argued to
raise implicit ecological questions. Other product commercials,
similarly, could be argued to raise significant national policy questions:
commercials promoting the use of aspirin, tranquillizers, soporifics, etc., on
the ground that they indirectly promote overuse of drugs generally [*31]
and thus might lead to harmful, illegal drug use; commercials depicting women
in a manner charged to be offensive to the national policy of equal rights and
equal treatment of the sexes; etc. n4
It is not necessary to list more examples. The contention is that, almost
without exception, product commercials can be argued to raise some significant,
controversial issue -- and as public awareness grows, so, too, does the
occasion for making such arguments. On the other hand, the Court notes in
Retail Store (Sl. Op., pp. 21-22, n. 67) that the "... Commission
repeatedly emphasized that its holding in [Cigarette Advertising] -- that
stations broadcasting cigarette advertisements must regularly provide free time
if necessary for the presentation of arguments opposing cigarette smoking --
was limited to cigarette advertising...." The Court further stated that
this holding was based on the ground that "the implicit and explicit
messages normally carried by advertising do not concern controversial issues of
public importance." (Sl. Op., p. 21).
n4 There is also the issue raised by
armed forces recruiting announcements, both commercial and of a public service
nature. See, e.g., the policy issues considered in such recent rulings as
Letter to Mr. Albert A. Kramer, FCC 70-596, and Letter to Mr. Donald A.
Jellinek, FCC 70-595.
In this connection, we also note
that the Court in Banzhaf v. F.C.C., 405 F.2d 1082 (C.A.D.C., 1968), certiorari
denied, 396 U.S. 842 (1969), pointed out that cigarettes were "... in fact
the product singled out for special treatment which justifies the action
taken" and emphasized that "... [its] cautious approval of this
particular decision does not license the Commission to scan the airwaves for
offensive material with no more discriminating a lens than the public interest
or even the public health."
15. Free time. On the
important issue of extending the Cigarette Advertising ruling to cover all
product commercials, n5 we set out our position in Letter
to Mr. Soucie, supra, and in Complaint of Alan F. Neckritz and Lawrence B.
Ordower, FCC 71-526, released May 13, 1971. We specified in those rulings
and will not here repeat our reasons for believing (i) that most product
commercials are distinguishable from cigarette advertising and (ii) that, in
any event, it would not serve the public interest to hold that for nearly every
product commercial the licensee must make free time available -- on a virtually
daily basis, in a set ratio, in part during prime viewing hours -- for
counter-commercials informing the public why they should not purchase the
product or services in question. In Neckritz, the Commission majority
indicated its view that the advertisements for Chevron advanced a claim for
product efficacy, that this is not the same as arguing a position on a
controversial issue of public importance, and that it "would ill suit the
purposes of the fairness doctrine, designed to illumine significant
controversial issues, to apply it to claims of a product's efficacy or social
utility." We indicated in Neckritz the desirability of an overview of the
policy issues involved, and we here invite interested parties to address such
issues as the following:
n5 In Letter to Mr. Soucie and the
Neckritz ruling, we pointed out that there can be product commercials that do
deal directly with controversial issues of public importance. In such
cases of course the fairness doctrine, including the Cullman principle, is
clearly applicable.
[*32] (i) Ought there be
some public interest responsibility beyond that of fairness to carry material
opposing or arguing the substance of product commercials? If so, should
time be afforded free or only on a paid basis?
(ii) What account should be taken of
the Court's observation (in Retail Store) that spot announcements may not add
substantially to public knowledge and, on the other hand, that repetition is a
significant factor to be considered?
(iii) What should or must be the
licensee's area of discretion in this entire matter -- and is there some
workable standard for distinguishing various categories or commercials, some of
which would give rise to fairness or public interest duties and some of which
would not?
(iv) Finally, what would be the
predictable effect of any new policy adopted here on the carriage of product
advertisements and thus on the continued growth and health of the commercial
broadcasting system?
16. Paid time. This
brings us to the heart of the inquiry posed by the Retail Store decision --
namely, the right of paid access to inform the public why a product or service
advertised over the station's facilities should not be purchased. The
Court in Retail Store posed the issue in terms of a national policy for
equalizing economic bargaining power between workers and employers, and we have
noted that other national policies might be pertinent in other
circumstances. The broad issue posed is whether fairness and/or the
public interest standard n6 imposes a kind of "equal
opportunities" obligation on the broadcaster -- that is, if he sells time
for the promotion of products and services, must he also sell time to others,
to consumer and public interest groups for example, who wish to argue against
public use of these products or services? We call for comment, pro and
con, on the policy implications and the pragmatic effects of this
equation.
n6 In Retail Store, the Court noted
that the purposes of the fairness doctrine might not be advanced by
presentation of the boycott advertisements but nevertheless raised the question
whether the public interest did not require such presentation. See also
Banzhaf v. F.C.C., supra, where the Court, in affirming our Cigarette
Advertising ruling, held that the Commission's action was based in fact on the
public interest standard. The issue posed here is thus not one of trying
to fit concepts into the fairness mold but, rather, what the public interest
calls for.
17. Alleged false and
misleading advertising. We direct the attention of interested parties to
Commission policy in the area of advertising that is alleged to be false and
misleading -- as for example, in the recent Chevron case, Complaint of Alan F.
Neckritz and Lawrence B. Ordower, FCC 71-526, released May 13, 1971. The
Commission majority held that the Letter to Mr. Soucie was applicable and that
to prohibit such advertising in advance of a pending Federal Trade Commission
ruling would be a case of "sentence first, verdict later." It also
stated that the issues raised were of such broad-ranging importance as to warrant
an overall inquiry; and the present proceeding is in part responsive to that
finding. We thus specifically raise the question whether the public
interest calls for any revision or refinements in existing Commission policy
with respect to false and misleading advertising, or allegations thereof, and
whether we might lay down new policy guidelines for the benefit of broadcasters
and the public alike.
[*33] 18. The
foregoing by no means exhausts the possible issues that are involved in the
area of product commercials. We have simply raised those that appear to
us to be of the greatest current importance. We stress again that we hope
to evolve or reaffirm policies that are fair to all concerned, that promote the
commercial broadcasting system, and above all that serve "the public
interest in the larger and more effective use" of the broadcast media.
IV. ACCESS GENERALLY TO THE
BROADCAST MEDIA FOR THE DISCUSSION OF PUBLIC ISSUES
19. It has also been urged
that, quite aside from the fairness obligation of broadcasters, there is a
right of access -- at least on a paid basis -- for all those wishing to express
a viewpoint on a controversial public issue. The Commission has rejected
this blanket claim on the ground that there is neither Constitutional nor
statutory right for any individual or group to present their views, and that as
a matter of policy it would not serve the public interest to act as if there
were. See, e.g., the Democratic National Committee ruling, 25 FCC 2d 216
(1970), appeal pending, Democratic National Committee v. F.C.C., Case No.
24,537, C.A.D.C.; Business Executives' Move for Vietnam Peace v. F.C.C., Case
No. 24,942, C.A.D.C. The legal issues are thus before the Court, and the
policy issues are sharply pointed up in the majority and minority opinions of
the Commission. We request comment on the question whether there is any
feasible method of providing access for discussion of public issues outside the
requirements of the fairness doctrine. More specifically, we ask that
comment be addressed to the differing problems raised by paid and free time;
the specific standards that should be followed for determining the basis on
which time is to be provided, if such a course is recommended; the effect of
any such new procedure on the licensee's general responsibility to the public;
and the impact of such procedure on the licensee's duties under the fairness
doctrine. The essential purpose of this part of the inquiry is to
ascertain, if possible, the general patterns of licensee practice as to access
on a paid or sustaining basis (e.g., for discussion of controversial issues
generally or of ballot issues; for fund solicitation generally or for parties
or committees organized around ballot issues), and whether it would be
appropriate for this Commission to lay down criteria or guidelines for these
purposes. If so, what would they be? Or, are the problems in this
area so varied that decisions should be left to the judgment of thousands of
licensees and, in cases of complaint, to the adjudicatory process? In other
words: should we reaffirm present Commission policy and practice?
V. APPLICATION OF THE FAIRNESS
DOCTRINE TO POLITICAL BROADCASTS
20. The Fairness Primer
contains a number of rulings concerning the application of the doctrine to political
broadcasts. There have been a number of important recent rulings in this
area. As examples, we point to such rulings as the Letter to Mr. Nicholas
Zapple, 23 FCC 2d 708 (1970); the Republican National Committee ruling, 25 FCC
2d 283, 299-301, 739 (1970), appeal pending, CBS v. F.C.C., Case No.
[*34] 24,655, C.A.D.C.; Complaint of Committee for the Fair Broadcasting
of Controversial Issues, 25 FCC 2d 283, 294-298 (1970). The first two set forth
a quasi-equal opportunities approach -- namely, that if a licensee sells or
gives time to one political party, it should sell or give comparable time to
the rival party, but that the Cullman principle is inapplicable here. The
last cited case declined to extend the equal opportunities concept to such
appearances by public officials as Presidential Reports to the nation --
although it did hold, on the particular facts, that time for one uninterrupted
presentation should be afforded to opposition spokesmen. We request
comment on such relevant questions as the following: whether the quasi-equal
opportunities approach should be restricted, expanded, or left alone, with a
specific description of the feasibility and effect of any proposed revision on
the underlying policies of the statute (see Section 315(a)). We
recognize, of course, that actions by the Congress will be decisive in this
area and that many statutory amendments are presently under
consideration. If Congress does act, Commission policies will be
appropriately revised.
VI. CONCLUSION
21. We have gone at some
considerable length into the ranges of problems that have led us to propose
this comprehensive overview. But interested parties will doubtless be
able to suggest additional questions and variations on those we have
raised. We welcome every approach. In view of the considerations
discussed above (in para. 5), however, we urge that every comment be specific
with reference to the practical effect of any proposals put forward.
22. It may also turn out that
a further inquiry, narrowing the focus of consideration, would be useful.
If we determine that new rules are appropriate, there will of course be a
further opportunity to comment. It is also possible that the material
submitted in response to this Notice will permit the adoption of a new policy
statement without further proceedings, just as it is possible that no changes
in present policy will be found to have merit. The response to this
Notice will be largely determinative of our future course of action. In
any event, we intend to employ special procedures and perhaps a select staff in
this highly important inquiry.
23. Pursuant to applicable
procedures set forth in Section 1.415 of the Commission's Rules and
Regulations, interested parties may file comments on or before September 10,
1971, and reply comments on or before October 25, 1971. Comments may be
filed as to any or all parts of the inquiry and should clearly delineate the
focus of consideration. In accordance with the provisions of Section
1.419 of the rules, an original and 14 copies of all comments, replies, briefs,
and other documents shall be furnished the Commission. All relevant and
timely comments and reply comments will be considered by the Commission before
final action is taken in this proceeding. In reaching its decision, the
Commission may also take into account other relevant information before it, in
addition to the specific comments invited by this Notice.
[*35] 24.
Authority for this inquiry is contained in Sections 4(i), 303, 307, 309,
315(a), and 403 of the Communications Act of 1934, as amended.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCUR:
CONCURRING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
It is becoming increasingly clear that
the Fairness Doctrine, rather than serving as a means of satisfying legitimate
demands for access, is increasingly functioning as an "Unfairness
Doctrine" by legitimizing broadcaster frustration of those demands.
See, e.g., my dissenting opinions in Chevron F-310, FCC 71-526 (May 12, 1971);
Friends of the Earth, 24 F.C.C. 2d 743, 452 (1970); Democratic National
Committee, 25 F.C.C. 2d 216, 230 (1970); BEM, 25 F.C.C. 2d 242, 249 (1970);
Armed Forces Recruitment Messages, 24 F.C.C. 2d 156, 158 (1970); Robert Scott,
25 F.C.C. 2d 239, 240 (1970); Dorothy Healey, 24 F.C.C. 2d 487, 495 (1970).
Indeed, there is not a scintilla of hope in this discouraging line of cases
that the FCC majority has the slightest intention of ever opening up the
public's airwaves to the public under any set of circumstances. It has
denied access to United States Senators, 14 Senators, 25 F.C.C. 2d 283, 305
(1970), businessmen prepared to pay for commercial spot time that was
available, BEM, supra, and citizen groups attempting to reply under the
fairness doctrine to "commercials" that do argue "controversial
issues of public importance" Chevron F-310, supra (which the Commission
once said could raise fairness obligations, Friends of the Earth, supra). It is
hard to imagine any more appealing set of cases than these.
Moreover, given the timing of this
"Notice of Inquiry," one cannot help but wonder whether the majority
is not trying to affect the outcome of currently pending cases. Several
of the cases mentioned above are now on appeal before the U.S. Court of
Appeals. E.g., Chevron F-310, supra, appeal docketed sub nom Alan F.
Neckritz v. U.S.A. and F.C.C., No. 26,335, 9th Cir., May 24, 1971; Dorothy
Healey, supra, appeal docketed sub nom Dorothy Healey v. F.C.C. and U.S.A., No.
24,630, D.C. Cir., September 16, 1970; Friends of the Earth, supra, appeal
docketed sub nom Friends of the Earth v. F.C.C. No. 24,556, D.C. Cir., August
19, 1970; D.N.C., supra, appeal docketed sub nom Democratic National Committee
v. F.C.C. and U.S.A., No. 24,537 D.C. Cir., August 13, 1970; Armed Forces
Recruitment Messages, supra, appeal docketed sub nom G.I. Association et al v.
F.C.C. and U.S.A., No. 24,516, D.C. Cir., August 7, 1970; BEM, supra, appeal
docketed sub nom Business Executives Move for Vietnam Peace v. F.C.C. and
U.S.A., No. 24,492, D.C. Cir., July 31, 1970.
One can only hope that the
Commission will not represent -- and that the Courts will not accept -- this
hollow gesture of a "Notice of Inquiry" as the basis for altering or postponing
the Court's decisions in these cases. (1) There is no reason whatsoever
to believe the Commission majority is likely to change a position that has been
so forcefully and repeatedly stated in such extreme cases. (2) I am
fearful that this "Inquiry" may well have the serious national
consequences -- [*36] whether intended or not -- of leaving the law
in its current state of uncertainty and inequity through the 1972 Presidential
election. (3) Those who now have cases on appeal, or who may be coming
before the Commission in the near future, are entitled to the prompt rendition
of justice on their complaints.
Needless to say, the law couldn't be
any worse than it now is; it is unlikely the Inquiry will do much more
harm. On the assumption that it will not affect the case-by-case
resolution of these conflicts by the Commission and the Courts, therefore, I
concur in the issuance of this Notice of Inquiry.
CONCURRING STATEMENT OF COMMISSIONER WELLS
With some reservations I concur in
today's action. While I recognize that acting on an overall legislative
basis is a perfectly legitimate alternative to our past practice of evolving
the fairness doctrine on a case by case basis, I believe that the latter is the
best way to proceed in this sensitive area. Our practice of reviewing the
licensee's judgment for reasonableness in concrete factual situations has ben
effective. It is difficult to try to legislate fairness for all
situations, and I doubt that we can define with significantly more precision
the position that has emerged from our several recent decisions. But
because of the majority's desire to review the entire doctrine after this long
passage of time, I concur in this inquiry.
Commissioner Johnson's concurring
statement requires some comment. Unlike Commissioner Johnson, I do not
disparage the recent cases which he finds so objectionable. I believe
that they are correct and reflect sound policy. I am particularly
concerned by the implication in his statement that today's action is not seriously
undertaken, but is some kind of tactical maneuver designed to influence pending
appeals of Commission decisions.
There is no mystery as to why this
inquiry was undertaken. It has been under consideration for some time,
and the reasons have already been given in several prior Commission
actions. One reason is the Retail Store decision which necessitated Part
III of the Inquiry. We also said in Neckritz that we would undertake a
broad ranging inquiry. The Chairman, in an April speech to the National Association
of Broadcasters, stated that it was time for another review of the fairness
doctrine -- that since the 1949 Report, we had been proceeding on an ad hoc
basis and, after 22 years, it was time to look again at the whole subject -- to
let all interested persons participate in this important policy formulation,
not just those involved in particular cases. To obtain such an overview
is the sole purpose of today's action.
Certainly no one suggests that it
will somehow obviate court review. On the contrary, the notice recognizes
that pending cases will be decided, and expressly states that the decisions in
these cases will be taken into account in this proceeding. Furthermore,
there is not the slightest thought that other cases coming before the Commission
in the near future should be denied prompt consideration. We shall
certainly act on these cases in line with our established processes.