In the Matter of COMPLAINT OF WILDERNESS SOCIETY AND FRIENDS
OF THE EARTH AGAINST NATIONAL BROADCASTING CO. REGARDING APPLICABILITY OF FAIRNESS
DOCTRINE TO COMMERCIAL ANNOUNCEMENTS SPONSORED BY STANDARD OIL OF NEW JERSEY
(ESSO).
FEDERAL COMMUNICATIONS COMMISSION
32 F.C.C.2d 714
RELEASE-NUMBER: FCC 71-1285
December 27, 1971 Released
Adopted December 23, 1971
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT;
COMMISSIONERS H. REX LEE AND REID ABSENT.
OPINION:
[*714] 1. By
Memorandum Opinion and Order released September 23, 1971, 31 FCC 2d 729, we denied
a petition filed by NBC for reconsideration of our earlier ruling of June 30,
1971 that the broadcast of certain commercial announcements sponsored by
Standard Oil Company of New Jersey (ESSO) created fairness doctrine obligations
relating to the dispute over the proposed construction of an Alaskan oil
pipeline. We held that the commercial announcements in question did deal
with the controversy surrounding the trans-Alaskan pipeline, but concluded that
no further action was warranted because NBC had a continuing program of
broadcasting contrasting views on the issue. We now have before us a
further petition for reconsideration filed by The Wilderness Society and
Friends of the Earth on October 22, 1971, in which it is requested that we
determine whether NBC has broadcast an adequate amount of programming on the
issue of "the need of developing Alaskan oil reserves quickly." The
petition is opposed by NBC.
2. The essential argument made
by the petitioners is that the Commission has found that the pipeline
controversy involves two separate issues: (i) the need for developing the oil
reserves in Alaska at this time, and (ii) the ecological effects which may
ensue from such development, and that we must determine separately whether NBC
has complied with the fairness doctrine with respect to the first of these
"issues." We do not agree. The clear tenor of our prior
treatment of this matter has been that the basic controversial issue involved
is the proposed construction of an Alaskan oil pipeline. While we have
recognized that the parties to the dispute were in disagreement over both the
need for developing Alaskan oil reserves quickly and the ecological effects of
transporting oil from Alaska by pipeline, we have not suggested and do not
believe that these two facets of [*715] the basic problem should be
treated as independent controversial issues to be examined separately under the
fairness doctrine. n1 NBC, we think, has reasonably
determined that the issue the petitioners have wanted influenced is the issue
of pipeline construction. As the licensee points out, the petitioners
have considered the time element important in terms of a governmental decision
to grant land use permits for the pipeline. What is important, therefore,
is that the spokesmen for the opposing viewpoints on the merits of the pipeline
be afforded a reasonable opportunity to express their views. The
particular arguments to be made and issues to be raised are matters to be
determined by the parties, and there is no indication here that the pipeline
opponents have not been afforded a reasonable opportunity to make all arguments
they regarded as significant. This is not a case of the sort mentioned in
Letter to NBC, 25 FCC 2d 735 (1970), where a licensee has made two important
points in discussion of an issue and then afforded time only for discussion of
contrasting views on one of the points, rejecting fairness requests on the
other point. We therefore decline to grant the requested relief.
n1 Our finding in the September 23,
1971 opinion that an advertisement whose thrust was America's alleged urgent
need for oil was germane to the controversy, was a finding of relevance to
"the pipeline issue." That finding does not support petitioners'
contention that the opponents of the pipeline must be afforded independent
response time on the "energy crisis issue."
3. Accordingly, IT IS ORDERED,
That the petition for reconsideration filed by The Wilderness Society and
Friends of the Earth IS DENIED.
FEDERAL COMMUNICATIONS
COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Again we are faced with the issue of
NBC's compliance with the Fairness Doctrine after its broadcast of several
commercials dealing with the Alaskan oil discoveries.
Six months ago we decided that NBC
had erred in not treating the issues presented in these advertisements as
controversial issues of public importance. Three months ago we denied
NBC's petition for reconsideration of the earlier ruling, but ruled, over my
dissent, that NBC had complied with its obligations under the Fairness Doctrine
to provide reasonable coverage to both sides of the controversy.
On October 22, 1971, the
petitioners, Wilderness Society and Friends of the Earth, filed a request that
we reconsider one aspect of our September 23, 1971 decision. Their claim
is that we erred in limiting the scope of the "controversial issue of
public importance" to whether the Alaskan pipeline ought to be built.
In our June 30 decision, we stated
that:
The quoted advertisements appear to
raise issues concerning (i) the need for developing the oil reserves in Alaska
at this time and (ii) the ecological effects which may ensue from such
development... On the basis of the information before us, we cannot find
the programs cited by you [NBC] afforded reasonable opportunity for the
presentation of contrasting views to [*716] those presented in the
commercials, e.g., the possible adverse ecological and environmental effects
and the possibility of obtaining oil elsewhere. n1
n1 Wilderness Society and Friends of
the Earth, 30 F.C.C. 2d 643, at 646 (1971).
In our September 23 decision, we
stated that: "In this case, the ESSO advertisements refer to oil
development in the far North and discuss both the need for rapid development of
oil deposits and the ecological impacts of such development." n2 However, later in that opinion, at par. 10, we limit
the discussion of NBC's compliance with the Fairness Doctrine to the single issue
of whether the oil pipeline ought to be built.
n2 Wilderness Society and Friends of
the Earth, 31 F.C.C. 2d 729, at 733 (1971).
In a separate dissenting and
concurring opinion, I argued that NBC had failed to comply with the Fairness
Doctrine by failing to present sufficient programming (of the
spot-advertisement nature) putting forward the arguments against building the
pipeline. In that opinion, I did not address myself to the issue of the
need for developing oil reserves in Alaska.
Clearly, from the opinions of June
30 and from the major portion of the majority opinion of September 23, this
Commission defined two separate issues -- both the desirability of building the
pipeline and the need to develop Alaskan oil reserves. Abruptly, in the
midst of the September 23 opinion, the Commission reversed its field and
limited the discussion to the pipeline issue. It did so without
explanation. Now, in the majority's opinion today, there is a lame
attempt to cover its elusive tracks:
The clear tenor of our prior
treatment of this matter has been that the basic controversial issue involved
is the proposed construction of an Alaskan oil pipeline. While we have
recognized that the parties to the dispute were in disagreement over both the
need for developing Alaskan oil reserves quickly and the ecological effects of
transporting oil from Alaska by pipeline, we have not suggested and do not
believe that these two facts of the basic problem should be treated as
independent controversial issues to be examined separately under the fairness
doctrine.
I do not believe that the majority
has adequately explained why, in mid-stream, the issues were narrowed.
While we are not inextricably bound by our prior decision to consider this a
two-issue controversy, unquestionably we have the legal obligation to explain
in rational, reasonable terms our change-of-mind. We are not allowed the
luxury of deciding the same case one way on Monday and the other way on
Tuesday. Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965);
Burinska v. NLRB, 357 F.2d 822 (D.C. Cir. 1966). Similarly, I do not believe
that -- in the same proceeding -- we can make a conclusion of law in Monday's
opinion and reverse it in Tuesday's, without making an adequate, rational
explanation. "[The] Commission... must explain its reasons and do
more than enumerate factual differences...." n3 Nor is it legally sufficient for the Commission to
say "Black is white, because we say it is," which is the way today's
majority opinion seems to read.
n3 Melody Music, Inc. v. FCC, 345
F.2d 730, at 73 (D.C. Cir. 1965).
We are not required to grant a
petition for reconsideration, but the fact is that we have made an error of law
in this case, and we are required to correct that error.
[*717] If my own position
on September 23 must be interpreted as an acceptance of the majority's
definition of the (narrowed) issue then I was also in error. I would
correct that error by granting the petition for reconsideration in this case,
and asking the parties for their comments on NBC's coverage of the issue of
whether there is a need to develop the Alaskan oil reserves at this time.
Accordingly, I dissent.