In Re Request By
COMMUNICATIONS WORKERS OF AMERICA For Declaratory Ruling
FEDERAL
COMMUNICATIONS COMMISSION
31 F.C.C.2d 841
RELEASE-NUMBER: FCC 71-832
AUGUST 6, 1971
OPINION:
[*841] DEAR MR. KOONS: This
refers to the two Requests for Declaratory Ruling filed by the Communications
Workers of America (CWA) on August 3 and August 4, 1971, the first based on the
refusal of the National Broadcasting Company, and the second the refusal of the
Columbia Broadcasting System, to sell time on certain stations licensed to them
for the broadcast of messages to members of your union. You state that
the proposed announcements are in question-and-answer form and are
"addressed to specific questions dealing with the current effort to ratify
contracts tentatively agreed to between the Union's bargaining units and
companies of the Bell System," and that their purpose is to provide
sufficient information to allow your members to make sound decisions on
contract ratification "by the deadline of August 10."
You state further that CWA has been able to buy time
for this purpose on a number of other stations, and that after the refusal by
NBC on August 2 it began negotiating with other radio stations in the cities
involved, but that the Union's first choice of outlets was the stations first
approached.
You state that the reason given for
the refusal of both licensees was that the content of the messages was
considered controversial. In answer, you state that there is no strike in
progress and that the Bell System and the Union are in full agreement over the
terms of the contract tentatively agreed to. You state that because of
the limited time available for ratification of the contract and the fact that
the medium of broadcasting is especially well suited to the Union's purposes,
you are requesting the Commission to grant immediate relief by requiring NBC
and CBS to sell to the Union the broadcast time which CWA has sought. You
attached to your Request of August 3, copies of the twelve announcements which
you have sought to broadcast.
NBC and CBS have confirmed to the
Commission their refusal to sell time to CWA for the proposed announcements.
We have reviewed the proposed
announcements submitted to us by CWA and we find that some if not all of them
raise controversial issues of public importance. For example,
Announcement No. 4 raises the question whether the proposed settlement is
inflationary and answers that it is not, although the answer to the question
raised in Announcement No. 2 reveals that the proposed contract calls for
substantial wage increases for union members. The question of the
possible [*842] inflationary effect of wage increases in a large
industry would appear to be one which a substantial number of persons would
consider controversial and of public importance. Moreover, the answers to
the other questions also appear to involve controversial issues in that their
tenor is to persuade union members that the contract should be ratified -- a
conclusion with which some union members may disagree.
We have considered the Petitioner's
requests and have taken cognizance of the decision of August 3, 1971, of the
United States Court of Appeals for the District of Columbia Circuit reversing
the Commission's decisions in two cases -- Business Executives' Move for
Vietnam Peace and Democratic National Committee. Lack of time has not
permitted a complete analysis of the opinion; we note, however, that although
the Court held that a flat ban on paid public issue announcements is in
violation of the First Amendment, the decision continued with the following
language:
We do not hold, however, that the
planned announcements of the petitioners -- or, for that matter, of any other
particular applicant for air time -- must necessarily be accepted by broadcast
licensees. Rather, we confine ourselves to invalidating the flat ban
alone, leaving it up to the licensees and the Commission to develop and
administer reasonable procedures and regulations determining which and how many
"editorial advertisements" will be put on the air.
In view of the facts that the
proposed CWA announcements appear to involve controversial issues of public
importance and that the Commission as yet has had insufficient opportunity to
consider actions to be taken relevant to the Court's recent decision, we
believe it would be inappropriate at this time on rule that the licensees are
required to broadcast the particular announcements at issue.
Accordingly, the Requests for
Declaratory Ruling of the Communications Workers of America are DENIED.
Commissioners Robert E. Lee, H. Rex
Lee and Houser absent. Commissioner Johnson
dissenting and issuing a separate statement.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
The Communications Workers of
America (CWA) filed a Request for Declaratory Ruling with the Federal
Communications Commission on August 3, 1971, because of the National Broadcasting
Company's refusal to sell the union AM radio broadcast time for brief spot
announcements. The union sought to inform its nearly one-half million
members across the United States of the aspects of a proposed contract
settlement between the union and the Bell System.
Late in the afternoon of August 3,
after the union had filed its Request for Delaratory Ruling against NBC at the
Commission, the union was further informed by the Columbia Broadcasting System
that the broadcast time CBS on August 2had agreed to sell the union would not
in fact be available.
Both NBC and CBS cited a sole reason
for furning the union aside: The spot announcements the union sought to
purchase could not be aired because the networks deemed the content of the
announcements "controversial."
[*843] The networks'
flat ban on controversial editorial advertising is clearly unconstitutional
under the dictates of the First Amendment. Business Executives' Move for
Vietnam Peace v. F.C.C., No. 24,537 (D.C. Cir., August 3, 1971). The
Commission's failure to grant the union relief in this instance, i.e., the
failure to require the networks to make some time (even if minimal) available
for sale to the union is likewise unconstitutional.
I dissent.
I
In an important decision handed down
by the U.S. Court of Appeals (D.C. Circuit) only a few days ago, the court held
"specifically that a flat ban on paid public issue announcements is in
violation of the First Amendment, at least when other sorts of paid
announcements are accepted." Id. at 4. The court placed critical
importance on the public's interest in full and free access to the full
spectrum of ideas and controversial views on radio and television.
"The right to receive ideas and information is deeply rooted in First
Amendment law." Id. at 22.
The court's decision rests on
several strong First Amendment decisions written into law by the U.S. Supreme
Court over the years, all designed to open up the nation's various channels of communications
for more spontaneous, self-initiated, self-controlled expression.
"The right of free speech of a broadcaster... does not embrace a right to
snuff out the free speech of others." Red Lion Broadcasting Co. v. F.C.C.,
395 U.S. 367, 387 (1969). See, Stanley v. Georgia, 394 U.S. 557, 564 (1969);
Tinker v. Des Monies School District, 393 U.S.503 (1969); Lamont v. Postmaster
General, 381 U.S. 301, 307-308 (1965); New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964); Martin v. City of Struthers, 319 U.S. 141, 143 (1943).
II
There is little room for the
argument here that there simply is not time to make arrangements for the union
before its August 10 vote deadline, or, in another vein, that the time
constraints here inconvenience the broadcaster too much. This simply will
not wash with the First Amendment concerns clearly articulated by the Supreme
Court.
All the networks need to in this
case is sell the union a modest number of commercials, perhaps reserving an
equal amount of commercial time for sale to dissident union members, if any
exist. (Or the Fairness Doctrine may require the network to offer a very
modest amount of free advertising time, only a fraction of that actually sold
to the union, if a dissident group unable to pay demands reply time.) Of
course, this may be an administrative burden to the networks. It is bound
to cause a certain amount of inconvenience for any station manager or network
functionary. Yet no one has ever promised the broadcaster an easy way of
life. Indeed, quite the contrary. For, as the Supreme Court has
said, "a function of free speech under our system of government is to
invite dispute. It may indeed best serve its high purpose when it induces
a condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949),
quoted in Business Executives v. F.C.C., supra, at 45.