Broadcast
Licensees of Editorial Advertising
Docket No. 19260
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 554
RELEASE-NUMBER: FCC 72-117
February 7, 1972 Released
Adopted February 3, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT;
COMMISSIONER H. REX LEE ABSENT.
OPINION:
[*554] 1. This
Further Notice concerns Part IV of our Notice of June 9, 1971, including
particularly the formulation of guidelines for the acceptance by broadcasters
of editorial advertising. This latter facet is both the issue involved in
Business Executives' Move for Vietnam Peace v. F.C.C.,
U.S. App. D.C. , 450 F. 2d 642 (1971), and also an important
aspect of the Part IV Inquiry -- "access generally to the broadcast media
for the discussion of public issues." We have delayed comment on Part IV
because, as discussed below, we are seeking further review of the above
decision. However, the discussion makes clear that we must now move
immediately to the consideration of guidelines in the area of editorial
advertising. That being so, there is no reason to delay the filing of
Part IV comments. Indeed, it would be helpful to have such comments
before us when we consider the other issues in this Inquiry, since the issues
are all inter-related to some degree. That does not mean that we shall
decide all the issues at the same time. Circumstances appear to require more
expeditious resolution of some aspects of the Inquiry than others. This
Notice deals with one such area.
I
2. In Business Executives'
Move for Vietnam Peace v. F.C.C., supra, the United States Court of Appeals for
the District of Columbia Circuit held that a broadcast licensee may not, as a
general policy, refuse to sell advertising time to groups or individuals
wishing to speak on controversial public issues. While the Court left
"undisturbed the licensee's basic right to exercise judgment and control
in public issue programming" and "normal programming time," and
it stated that no particular person or group has an absolute right to have his
(or [*555] its) message carried, it ruled that in the broadcaster's
allocation of advertising time it is not permissible to maintain a "total,
flat ban on editorial advertising." The Court stated that
We hold 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. 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.
3. On January 3, 1972 a
petition for a writ of certiorari was filed on behalf of the Commission in the
Supreme Court of the United States. No. 71-864, 40 U.S.L.W. 3317 (January
11, 1972). The Supreme Court has not yet acted on this petition.
However, on January 24, 1972, the Court denied an application for a stay of
mandate. Accordingly, the Commission is under a mandate to carry out the
decision of the Court of Appeals which instructed the Commission as follows:
"On remand, the Commission
should develop reasonable regulatory guidelines to deal with editorial
advertisements. Petitioners should be allowed to reapply for advertising
time; and, unless their presentations are found to be excludable under the
Commission's guidelines, their applications should be accepted. Since the
issues on which BEM and DNC seek to speak are current and changing, it is
essential that regulations be developed speedily and that the affected
broadcasters pass promptly upon petitioners' applications to buy time."
4. The purpose of this Notice
is to solicit the views of all interested parties on the nature and content of
appropriate procedures and guidelines to be adopted by the Commission in
furtherance of the Court's mandate. We welcome all comments which can be
of assistance in developing reasonable guidelines governing the determination
by licensees of which and how many editorial advertisements will be put on the
air. As a general approach, suggested guidelines or procedures should so
far as possible be designed to avoid frequent recourse to individual requests
for Commission rulings in particular situations. In particular, we urge
parties filing comments to address the following areas:
a. May a licensee limit the
time available for editorial advertisements and, if so, on what basis?
b. What regulation may the
licensee make as to the placement of editorial advertisements?
c. May a licensee prevent
domination by a few groups or a few viewpoints and, if so, by what means?
d. May a licensee reject a proffered
advertisement on the ground that the particular viewpoint has been sufficiently
expressed, short of finding undue dominance?
e. May a licensee reject a
proffered advertisement on standards of taste and suitability for access to the
home?
f. May a licensee reject a
proffered advertisement on the ground [*556] that its subject
matter is of little or no significance or interest to the community?
g. Are any restrictions on
content permissible short of a finding that the material is outside the protection
of the First Amendment?
h. Should the Commission's
Cullman doctrine n1 be applicable to editorial and
controversial issue advertisements which the licensee would not have aired in
the first place except for the required sale of editorial advertising
time?
n1 See Cullman Broadcasting Co., 40
F.C.C. 576 (1963), which held that a licensee cannot avoid his fairness
responsibilities simply because of his inability to obtain sponsorship for the
presentation of a viewpoint.
i. What is the relationship
generally of editorial advertising to the licensee's responsibilities under the
fairness doctrine to make available a reasonable opportunity for the
presentation of conflicting views on controversial issues of public
importance? In this connection consideration should be given to the
decision of the Supreme Court in Red Lion Broadcasting Co. v. F.C.C., 395 U.S.
367 (1969).
5. We are issuing this Further
Notice of Inquiry rather than issuing guidelines without calling for comments
because we believe that we need the views of those who would be confronted with
the day-to-day practicalities of applying the guidelines. We are allowing
a reasonable time for the submission of comments commensurate with the
importance of the issues. However, prompt Commission action is required,
and we intend to expedite our consideration of this matter. No extensions
of time for comments are contemplated.
II
6. The discussion in I has
dealt with access for editorial advertising. The other aspect of the
Inquiry in Part IV is the matter of the right of access to programming
time. We have set forth our view that the ruling in Business Excutives'
Move for Vietnam Peace v. F.C.C., supra, does not extend to programming
time. See Committee of One Million, October 22, 1971, FCC 71-1096.
We have also set forth in Part IV issues which would be generally pertinent
here (see para. 19, Notice of Inquiry of June 9, 1971). We shall not
repeat that discussion here. Parties are invited to comment on those
issues and any other matters that they believe pertinent.
III
7. Accordingly, pursuant to
applicable procedures set forth in Section 1.415 of the Commission's Rules and
Regulations, 47 CFR 1.415 (1972), interested parties may file comments on or
before March 8, 1972, and reply comments on or before March 23, 1972, a
schedule to which we intend to adhere (see para. 5, supra). In accordance
with the provisions of Section 1.419 of the Rules, 47 CFR 1.419 (1972), an
original and 14 copies of all comments and replies shall be furnished the Commission.
All relevant and timely comments and reply comments will be considered by the
Commission before final action is taken [*557] in this
proceeding. In reaching its decision, the Commission may also take into
account other relevant information before it, is addition to the specific
comments invited by this Notice.
8. Because of the importance
of the matters in this Docket, we believe that some form of oral presentations
will be helpful. If it is determined to have such presentations cover the
issues in Part I of this Further Notice, we shall make this the first order of
business at the oral proceedings and shall schedule such proceedings promptly
after receipt of the reply comments. Finally, the authority for this
Further Notice is that stated in para. 24 of the Notice of Inquiry, June 9,
1971.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCUR:
CONCURRING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
I concur in the Commission's
decision to put out a Notice of Inquiry as to what regulations or guidelines
the FCC should promulgate regarding the purchase of airtime for "editorial
advertisements." Certainly a decision of this magnitude should not be made
without some opportunity for comment from broadcasters and citizens alike.
I. The Questions
The Commission poses nine questions
to which it asks interested parties to address themselves. Since the
comments of interested parties need not be limited to the particular questions
posed by the Commission, I shall not object by way of dissent to any of the
particular questions. However, I do question the wisdom of some of these
questions, for I believe that it would be unconstitutional for the Commission
to answer them in the affirmative.
In discussing the limitations that
may be placed on the purchase of advertising time in BEM the Court stated:
The content of the idea which the
excluded speakers seek to promote is -- emphatically -- not permitted as a
distinguishing factor in itself. Indeed, the existence of an exclusionary
discrimination apparently based on the content of ideas presents an additional,
or greatly heightened, prima facie constitutional violation. Both free
speech and equal protection principles condemn any discrimination among
speakers which is based on what they intend to say. If the First
Amendment prohibits anything at all, it must be a censorial discrimination
among ideas. (Emphasis in original.) n1
n1 Business Executives' Move for
Vietnam Peace v. F.C.C., 450 F.2d 642, 660 (D.C. Cir. 1971).
And the
Court went on to say:
It is well established in First
Amendment law governing access to forums that "reasonable
regulations" may be promulgated and enforced to limit the exercise of free
speech. At the least, there may be regulations determining the time,
place and manner of speech. n2
n2 Id., 663.
Then the Court proceeded to state a few of the possible
"traffic" regulations that may be promulgated by the Commission: a
limit on the total amount of editorial advertisement time available; limitations
on the right of placement in the time period of the advertiser's choice;
[*558] a limit on the amount of time available to a particular group or
adherents of a particular viewpoint; limitations on the amount of free time
available to those unable to pay. n3
n3 Id., 663-665.
Some of the questions posed may
raise constitutional objections:
(e) May a licensee reject a
proffered advertisement on standards of taste and suitability for access to the
home?
(f) May a licensee reject a proffered
advertisement on the ground that its subject matter is of little or no
significance or interest to the community?
Affirmative
answers to these two questions would transcend the "time, place and
manner" limitations which the Court authorized the Commission to enact.
The only reason I concur and do not
dissent to this Notice of Inquiry is that the mere posing of these questions
does not bind the Commission to adopting an affirmative answer to these
questions. Moreover, interested citizens and broadcasters should have the
opportunity to comment on the whole range of questions raised by the BEM
decision, and I would like to have the benefit of those comments.
II. Interim Procedures
The question remains, what do we do
in the meantime? What is our proper response to those petitions which
might be filed between now and the promulgation of our regulations? BEM
is now the law of the land. This is implicit in the fact that the
Commission now asks for comments and prepares to issue guidelines, even before
the United States Supreme Court acts on the pending petition for
certiorari. This is so, of course, because after the decision of the
Court of Appeals some six months ago (August 3, 1971), the Commission's
petition for rehearing was denied by the Court (October 4, 1971), our motion
for a stay of mandate was denied by the Court (October 22, 1971), and our
motion for a stay of mandate was denied by the Supreme Court (January 24,
1972).
Since BEM is now the law of the
land, we must rule on whatever petitions that are filed according to the law of
BEM: there can be no flat ban on "editorial advertisements." I have
absolutely no idea whether any such petitions are going to be filed in the next
45 days or so. But it is clear that if any are filed, it will not be
appropriate for the Commission to act as it did last August 6, in the
Communications Workers of America case. n4 On the day after the BEM decision, CWA was turned down by NBC and CBS
owned-and-operated stations in their request to buy time for "editorial
advertisements." In that opinion, to which I dissented, the Commission
stated that it had not yet had time to promulgate the regulations suggested by
the Court of Appeals. The same excuse is not open to the Commission
now. In the six months since BEM, even while appealing the BEM case to
the Supreme Court, the Commission surely could have adopted regulations to go
into effect whenever the BEM case became the law of the land.
n4 Communications Workers of
America, Request for Declaratory Ruling, 31 F.C.C. 2d 841 (1971).
[*559] Now we are faced
with that very situation. BEM is the law, and there are no
regulations. How should we act?
BEM said that it was
unconstitutional for a licensee to enact a flat ban on editorial
advertising. The Court's opinion shows that the presumption clearly has
to be in favor of the petitioner, not the licensee, in such a dispute:
It being established that there is a
strong and specific First Amendment interest in editorial advertising and that
the policies discriminatorily barring such expression work a prima facie
violation of constitutional principles, we must consider the countervailing
considerations raised by the Commission and the broadcaster-intervenors.
In order to justify the policy at issue, they must show some very substantial
harm that would be caused by acceptance of editorial advertising -- a sort of
harm great enough to override the First Amendment interests at stake and a sort
of harm not already involved in the acceptance of commercial and "non-controversial"
advertising. Only such a showing could convince us that the ban on
editorial advertisements is supported by sufficient countervailing values and
is not based solely on the content of the ideas conveyed. n5
n5 B.E.M. v. F.C.C., supra, at 662.
Thus, in the absence of any
regulations, the burden is on the broadcaster, not the citizen. The
broadcaster must explain to the FCC why he cannot accept the citizen's money
and put the editorial advertisement on the air: he must make a showing of
"some very substantial harm that would be caused by acceptance of
editorial advertising."
Since the Court of Appeals went out
of its way to state that "[since] the issues on which BEM and DNC seek to
speak are current and changing, it is essential that regulations be developed
speedily and that the affected broadcasters pass promptly upon petitioners'
applications to buy time," n6 I
do not think that this Commission has any alternative but to issue an interim
rule, pending the outcome of this Notice of Inquiry, that all requests for the
purchase of time for editorial advertisements must be accepted by the
broadcasters, absent showing of "some very substantial harm."
n6 Id., 665.
I do not honestly know what this
Commission is prepared to do if, in fact, such a petition is filed between now
and the time the regulations are promulgated. As with any matter of free
speech, time is of the essence. Certainly this is the cardinal principle
underlying the Supreme Court's decision in The New York Times Co. v. U.S., 403
U.S. 713 (1971), where the Supreme Court once again affirmed the age-old
presumption against any form of prior restraint. Inasmuch as the
Commission affords no guidance on this issue whatsoever, I simply must assume
that the Commission intended by its silence on the issue to adopt the interim
rule of law implicit in the Court's opinion in BEM: absent a showing of
"some very substantial harm that would be caused by acceptance of
editorial advertising," the broadcaster is required by the First Amendment
to accept the request for paid access for the airing of editorial
advertising. n7
n7 I do not consider it necessary to
discuss in detail what sort of showing would be appropriate under the
"very substantial harm" test. I must state that I find it hard to
believe that the placement of a few editorial advertisements into any
broadcaster's schedule -- accompanied, of course, by good money -- would do
anything but enrich the broadcaster. I know of few cases in which
broadcasters have been unable to find the airtime to squeeze just one more spot
on the air, especially when the order is accompanied by payment. Is that
not the hallmark of our commercial broadcasting system?
On the other hand, there is the
question as to effect of editorial advertising on the broadcaster's fairness
obligations. For the purposes of argument, I shall pose three distinct
examples in order to assess this question.
The first case is that of a citizen
who seeks to buy time for an issue that everyone agrees is not controversial
and thus not subject to the Fairness Doctrine. These spots are by
definition non-controversial and should go on the air without question, since
they do not give rise to the obligation to present the other side of a
controversial issue, and thus no revenue loss to the broadcaster can result
under Cullman. 40 F.C.C. 576 (1963).
The second situation is if the issue
being discussed by the editorial spots has already been heavily covered by the
broadcaster, and the coverage has already been adequately balanced. Such
an instance might be Vietnam, the subject of BEM's spots. No Cullman
problems would arise since it is unlikely that any overall imbalance would
result from the acceptance of a few more minutes of time for or against the
war.
The third situation is that in which
a controversial issue not previously covered by the broadcaster is discussed in
the spots. Here, the inclusion of airtime on one side of the controversy
will not create any obligations that do not already exist on the part of the
broadcaster: He always has had the obligation under the Fairness Doctrine to
cover the controversy at his own expense. Thus, he cannot really object
to the particular form (editorial spots) in which the controversy has first
been broached on his station -- especially when it was produced at no cost to
him.
Accordingly, I concur.