In Re
Complaint of ALAN F. NECKRITZ AND LAWRENCE B. ORDOWER, BERKELEY, CALIF.,
CONCERNING
FAIRNESS DOCTRINE RE STATIONS KGO-TV, KRON-TV, KPIX, KNBC, and KNXT
FEDERAL COMMUNICATIONS COMMISSION
37 F.C.C.2d 528631
RELEASE-NUMBER: FCC 72-891
October 17, 1972 Released
Adopted October 5, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT;
COMMISSIONER H. REX LEE NOT PARTICIPATING; COMMISSIONER REID ABSENT;
COMMISSIONER HOOKS CONCURRING IN THE RESULT.
OPINION:
[*528] 1. The
above-captioned proceeding has been remanded to the Commission for
reconsideration by the Court of Appeals. Subsequent to the Commission's
initial decision, In Re Complaint of Alan F. Neckritz, 29 F.C.C. 2d 807 (1971)
(hereinafter cited as Chevron), n1
the Court of Appeals reversed another Commission decision ( In Re Complaint of
Friends of the Earth, 24 F.C.C. 2d 743 (1970), reversed sub nom. Friends
of the Earth v. F.C.C., 449 F.2d 1164 (1971)) n2 dealing with the applicability of the fairness doctrine to product
advertisements for high performance cars and high octane gasoline. The
Commission had cited this case with approval in Chevron. In view of the
Court's reversal, and the fact that both cases involved the applicability of
the Fairness Doctrine to product commercials for gasoline, the Commission moved
the Court to remand the present case for further
[*529] deliberation. The Court, maintaining jurisdiction, remanded
the matter to the Commission, granting it authority to rule on complainants'
request for interim relief and to consider its ruling in respect to both the
fairness and deceptive advertising issues. Shortly thereafter, the
Commission requested the parties to the proceeding to submit their views on the
following questions: (1) whether petitioners' request for interim relief should
be granted pending Commission reconsideration of the case; n3 (2) what effect, if any, does the
Court's decision in Friends of the Earth have on the Commission's resolution of
the Fairness Doctrine issue and (3) whether the Commission should reconsider
the deceptive advertising issue of the case. Licensees were also
requested to advise the Commission of the dates and times of carriage of the
advertisements complained of, and of any material broadcast which advised the
public of the controversy concerning the Chevron F-310 advertisements.
n1 In Chevron, the
complaint filed against five California television stations, alleged licensee
failure to fulfill their Fairness Doctrine and public interest obligations with
respect to the broadcast of Chevron F-310 gasoline commercials in that (1)
licensees presented only one viewpoint (that of the advertiser) on a
controversial issue of public importance discussed in the ads, i.e. whether
Chevron with F-310 contributes to the solution of the air pollution problem,
and (2) licensees failed to protect the public from advertising which was
misleading and deceptive, pursuant to their obligations under the public
interest standard of the Communications Act. Complainants requested that
the Commission order licensees to cease broadcast of the ads and, pursuant to
the Fairness Doctrine, to present spot announcements in opposition to the views
presented in the ads. The Commission declined to order the requested
relief and ruled that the Chevron F-310 ads did not argue a position on a
controversial issue of public importance, but rather stated a claim for product
efficacy. The Fairness Doctrine was intended to illumine significant
public issues, and the claim of efficacy or utility of any particular product
was not such an issue, the Commission stated. It also held that the
pendency of an unresolved FTC complaint did not compel cessation of the
advertisement complained of, and that all licensees involved in this case had
fulfilled their public interest obligations.
n2 In Friends of the Earth,
the Court held that advertisements broadcast in New York City encouraging the
use of high performance cars and high test gasoline presented a viewpoint on a
controversial issue of public importance, given public and governmental concern
with, and evidence about, the danger of air pollution to health and the
relation of automobile emissions to air pollution. Under the doctrine
approved in Banzhaf v. F.C.C., 405 F. 2d 1082 (1968), cert. denied sub nom.,
Tobacco Institute v. F.C.C., 396 U.S. 842 (1969), which the Court found to be
indistinguishable from Friends of the Earth, the Court held the Fairness Doctrine
to be applicable.
n3 The Commission denied
petitioners request for interim relief on April 21, 1972 (34 F.C.C. 2d 579
(1970)). Petitioners renewed their motion for interim relief before the U.S.
Court of Appeals which was denied by order dated June 20, 1972.
2. In response to the
Commission's inquiry, Petitioners reiterate their complaint that the Chevron
F-310 commercials presented one side of a controversial issue of public
importance by making the claim that F-310 was a means of solving the air pollution
crises in light of the fact that (1) the truth of the claim was disputed by
state agencies, and (2) the fact that gasoline emissions from automobiles are a
prime source of air pollution which is a problem of public importance in
California. Complainants allege that licensees have failed to present
opposing viewpoints on this issue as required by the Fairness Doctrine.
They further argue that the controversy concerning Chevron F-310 gasoline is
identical to the controversy in Friends of the Earth, and that the precedent
and rationale upon which the Commission relied in its original Chevron opinion
have been rejected by the Court of Appeals in its reversal of the Commission's
decision in Friends of the Earth. Finally, Complainants argue that the public
interest standard of the Communications Act obliges the Commission to require
licensees to protect the public from deceptive F-310 advertising.
Licensees' broadcast of the ads is inconsistent with their public interest
obligations under current FCC regulations, complainants maintain, in view of
the FTC's charges, the reports of two state agencies, the criticisms of leading
environmental groups, the fact that the advertiser modified the commercials and
that one licensee (KPIX) concluded that they might be misleading, and in view
of the fact that the F-310 claims are extravagant on their face.
3. Licensees, with the
exception of KRON and KPIX, n4
and the interveners, Standard Oil of California (Standard) argue, in response to
Complainants, that the Banzhaf and Friends of the Earth cases do not apply to
the instant proceeding inasmuch as they are distinguishable. Licensees
argue that: (1) Chevron, unlike Friends of the Earth, [*530] is not
a case in which there is "undisputed evidence" -- or even a claim --
that the advertised gasoline contributes more significantly to air pollution
than other gasoline; and (2) the Chevron ads, unlike the Friends of the Earth
ads, do not emphasize the product attributes of power and performance which can
be said to contribute to the pollution problem. In Friends of the Earth,
licensees observe that the Court did not hold that all advertisements for
gasoline raised controversial issues, but that both these factors, i.e.
undisputed evidence of contribution to pollution and glorification of
attributes aggravating pollution, were crucial to the Court's decision that the
hazard to health issue of Banzhaf was indistinguishable from that in Friends of
the Earth. The Chevron F-310 advertisements, on the other hand, raise no
public health issues, and the question in dispute is whether or not the product
will perform as claimed. Licensees further refute petitioners' fairness
complaint by arguing that the Chevron commercials are only one facet of the general
problem of air pollution, and that they have informed the public of the
anti-pollution viewpoint as indicated by their program analysis. Standard
Oil of California further argues that counter advertising against the product
categories complained of in Banzhaf and Friends of the Earth (cigarettes, high
performance cars and high octane gasoline) presents consumers with a choice to
use or not to use such products. Counter advertising against a single
brand, as in Chevron, presents no similar choice but attempts to persuade
consumers to buy another brand within the same product category. Whether
a person buys a product category, like cigarettes, may be an issue of public
importance, but whether he buys brand A or brand B cigarettes is not, Standard
maintains. Therefore, despite the fact that a particular product claim
may raise a controversial issue, that issue is not of public importance, and
the Fairness Doctrine is consequently inapplicable.
n4 KPIX regards the controversy about the Chevron
F-310 ads as one facet of a larger controversial issue of public importance
relating to air pollution which the station has considered extensively in its
programming, and also believes that Friends of the Earth is applicable to the
current controversy. KPIX is opposed, however, to Commission
reconsideration of the deceptive advertising issue; believes that the initial
decision was correct; and suggests that any change to the Commission's
established policies would be most appropriately effected through a rule making
proceeding where all interested parties could comment rather than through an ad
hoc adjudication. KRON failed to respond to the Commission's letter of
inquiry.
4. As to the deceptive
advertising issue, licensees and Standard argue that the Commission should
affirm its initial decision in Chevron. They observe that the claim that
the ads are false and deceptive and that licensees have consequently failed to
protect the public, assumes that which is yet unproven. Contrary to the
allegations, licensees' conduct has been reasonable and consistent with present
Commission standards, they maintain, given the fact that the ads have not yet
been judged misleading and deceptive by the FTC. Licensees state that the
FTC has primary authority and that the FCC has no resources or standards of
jurisdiction for deciding the deception question, and should not modify its
policy as to licensees' responsibility in this area without first affording
interested parties an opportunity to comment in a rule making proceeding.
5. We have reconsidered our
original ruling in the light of the Court's decision in Friends of the
Earth. In our opinion, this decision does not require an extension of the
Fairness Doctrine to the facts of the present case.
6. Originally, our application
of the Fairness Doctrine to product advertising was intended to be limited to a
single product. We believed that cigarettes were distinguishable from
other products "* * * since smoking them is a habit 'which can fade away'
without impact upon other aspects of life, and which official voices have urged
the [*531] public to avoid or abandon." Friends of the Earth,
supra at 1167. The Court of Appeals held that we could not "plausibly
differentiate" cigarette advertisements from certain commercials promoting
large engine cars and high-test gasoline. The Court found
"undisputed evidence" that these products, like cigarettes,
significantly enlarged and aggravated existing public health hazards.
Furthermore, it was noted that both public and private voices had encouraged
the people to avoid the use of these products.
7. The facts of the present
case are quite different from those presented in the cigarette case and in
Friends of the Earth. There is no evidence which would indicate that the
Chevron additive F-310 in any way enlarges or aggravates hazards to the public
health. Chevron with F-310 is not alleged to be more dangerous than any
competing product. Petitioners do not urge the public to abandon the use
of gasoline, or even to avoid using Chevron with F-310. It is clear,
therefore, that the broadcast of contrasting views in the present case would
not provide a health service similar to exhortations to stop smoking, or to
drive cars with reduced horsepower and use gasoline with a low-octane rating.
8. Even assuming arguendo that
a public health issue is involved here, the present case is still
distinguishable from Friends of the Earth. The scientific evidence in
this case is far from "undisputed." Chevron has amassed considerable
evidence to support the proposition that its product will, in fact, contribute
to a reduction of the air pollution problem. In these circumstances,
there is no way that we can say with any certainty that the broadcast of
contrasting viewpoints here would provide a valuable public health service to
the American people.
9. Public health
considerations aside, we remain convinced that traditional Fairness Doctrine
principles do not require the broadcast of views in opposition to the F-310
advertisements. We are still of the opinion that these announcements did
not argue a position on a controversial issue of public importance, but merely
advanced a claim for product efficacy. In our original opinion, we stated
that "[the] merits of any one gasoline, weight reducer, breakfast cereal
or headache remedy -- to name but a few examples that readily come to mind --
do not rise to the level of a significant public issue." Chevron, supra,
at 812. The critical consideration here is that we should not substitute
our judgment for the reasonable programming judgments of our licensees.
As we stated in our Fairness Primer:
* * * 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 * * * In passing on any complaint in this area, the
Commission's role is not to substitute its judgment for that of the licensee *
* * but rather to determine whether the licensee can be said to have acted
reasonably and in good faith. Applicability of the Fairness Doctrine in
the Handling of Controversial Issues of Public Importance, 2 R.R. 2d 1901, 1904
(1964).
In the circumstances, there is simply no persuasive showing
that our licensees have not acted "reasonably and in good faith" in
determining that the Chevron F-310 advertising claims did not constitute a
discussion of a controversial issue of public importance.
[*532] 10. In our
original opinion we expressed a concern that a contrary ruling would, in
effect, extend the application of the Fairness Doctrine to an endless variety
of advertisements for commercial products. Such a ruling would likely
create an administrative nightmare for this agency as well as its licensees,
and could have disastrous economic consequences for our entire commercial
system. At the present time, we are conducting an over-all review of the
Fairness Doctrine (Docket No. 19260). This study includes a detailed
analysis of the merits of various "counter advertising" proposals,
including suggestions similar to those advanced by the Petitioners in this
case. At the end of this study, we hope to be in a position to balance
more intelligently likely gains to public enlightenment against the threats
these gains may present to the economic base and sound administration of the
commercial broadcasting system. In the meantime, we are convinced that
our present policy is the one best designed to further "* * * the larger
and more effective use of radio in the public interest." 47 U.S'C. §
303(g).
11. Finally, we believe that
our original opinion in Chevron as to licensees' public interest obligations
with respect to advertisements subject to an FTC complaint should be
affirmed. Petitioners have presented no additional information on
reconsideration to persuade us otherwise. Without repeating our earlier
decision we emphasize again that only the FTC and the courts have the
jurisdiction to decide whether the technical claims made by Standard in its ads
are accurate or not. Certainly this Commission possesses no comparable
authority or expertise to resolve such questions, and we have noted that,
"* * * we do not believe it to be either reasonable or feasible to impose
upon the [broadcasting] industry requirements for medical or other scientific
testing procedures * * *" that would make "* * * licensees into a
kind of mini-FTC." In Re Complaint by Consumers Association of District of
Columbia, 32 F.C.C. 2d 400, 406 (1971). There is substantial evidence in this
case that licensees judgments were reasonable and consistent with Commission
requirements that particular care be exercised in accepting for broadcast an
advertisement subject to FTC complaint, in that "* * * all five stations
either requested documentation of the advertiser's claims or made changes in
the content of the advertisements * * *" Chevron, supra at 813. We
therefore are not warranted in reversing their judgments.
12. In effect, a grant of
Petitioners' demands here would require that the FCC abandon its traditional
policy in this area, and instead impose a duty on licensees to either (a)
automatically terminate carriage of an advertisement subject to an FTC
complaint, or (b) automatically present a "counter-advertisement."
Such a drastic modification of existing policy can most responsibly be
considered in an overall proceeding. In such a proceeding countervailing
public interests can be weighed, and all interested parties can be afforded
opportunity to comment. In our Fairness Inquiry in Docket No. 19260 we
specifically requested the submission of views on the deceptive advertising
issues raised in this case. The Commission will have the opportunity to
deal with these issues at the conclusion of the inquiry.
[*533] 13. On
reconsideration, and for the reasons stated above, our earlier decision IS
AFFIRMED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
This Commission, in its first
Chevron opinion, came to the specific conclusion that it "did not know of
a product other than cigarettes which would trigger the Fairness
Doctrine." Fairness Doctrine Ruling, 29 F.C.C. 2d 807, 814 (1971). It
based that decision in no small measure upon its similar ruling in Friends of
the Earth, 24 FCC 2d 743 (1970), handed down some months previously. Now
the Court of Appeals has reversed Friends of the Earth, 449 F.2d 1164 (D.C.
Cir. 1971), and in doing so has said that gasoline could be such a product.
Since the Court's decision in
Friends rendered the Commission's original Chevron reasoning even more tenuous
and flimsy than I found it to be in my original dissent, 29 F.C.C. 2d, at 814
(1971), the Court quite naturally gave the Commission a chance to correct
itself by remanding the case to us for another look. The majority of the
Commission, however, appears to have been unpersuaded as to the authority of
our D.C. Circuit Court of Appeals to rule as it did in Friends, for its
decision today is little more than a cavalier reaffirmation of its first
Chevron decision. Indeed, where the obvious parallels between this case
and the Court's decision in Friends are considered at all, the majority merely
dismisses them with no attempt at analysis.
Licensees assert (and the majority
accepts) that it was the intention of the Court of Appeals that the decision in
Friends of the Earth be limited to the specific fact situation (or the specific
ad format) involved in that case. They contend that "undisputed
evidence of contribution to pollution and glorification of attributes
aggravating pollution was (sic) crucial to the Court's decision."
[emphasis added]
Nowhere in the Friends opinion was
there language, however, that would lend support to the second
contention. Indeed, the Court stated what it considered to be its
criteria quite succinctly:
When there is undisputed evidence;
as here, that the hazards to health implicit in air pollution are enlarged and
aggravated by such products, the parallel with cigarette advertising is
exact. * * *
Friends
of the Earth v. F.C.C., 499 F.2d at 1169 (D.C. Cir. 1971). The specific format
of the ad was never mentioned by the Court in Friends as "crucial" to
its application of the Fairness Doctrine. Rather, the Court accepted the
Commission's own assertion that
* * * the crucial issue in this case is whether the
Commission reasonably refused to extend to gasoline and automobile commercials
its ruling with respect to cigarette commercials.
The Court
said
We have no difficulty in accepting this
formulation of the issue, involving as it does a comparison of the record
before us with that before the Commission and the Court in Banzhaf. Id at
1168.
[*534]
Noting the Commission's recognition of the
* * * persuasiveness of expert
evidence from both official and private quarters, of the very real dangers to
health presented by air pollution, and the significant degree to which
automobile emissions both create and aggravate the air pollution problem,
It then
went on to hold that
* * * we are unable to see how the
Commission can plausibly differentiate the case presently before us from
Banzhaf insofar as the application of the Fairness Doctrine is concerned.
Friends
of the Earth v. F.C.C., 499 F. 2d at 1170 (D.C. Cir. 1971). A careful
examination of the Court's language discloses its ultimate concern with the
problem of automobile emissions which "both create and aggravate the air
pollution problem."
Licensees argue that petitioner's
complaint should fail because "Chevron with F-310 is not alleged to be
more dangerous than any competing product." They thereby fail to recognize
the concern either of the viewing public or of the Court. The attempted
reasoning is that there is no "undisputed evidence" that Chevron
contributes more to pollution than any other gasoline. But that quite
simply is not the issue. Chevron's ads did not say "We don't pollute
the air any more than Texaco or Union." Such an ad might well be unlikely
to raise significant public health issues.
What the Chevron ad did say was that,
"Our gasoline with F-310 is contributing to the solution of the air
pollution problem." We need not even pass upon the veracity of that
statement. Truth is not relevant to this particular fairness
inquiry. All we need acknowledge is that the statement relates to a
controversy. It is sufficient for fairness purposes to note that agencies
like the California Air Resources Board and the Hawaiian State Consumer
Protection Agency, among others, vigorously controvert Chevron's contention.
Under the law as it stands after
Friends, one threshold of fairness doctrine liability is reached when the
product itself is recognized as a hazard to health. Even so, it would be
difficult as yet to find, based on Friends and Banzhaf alone, that merely
advertising such a product would be enough to force the stations across that
threshold. More, it seems, is still required. In Friends, for
example, the Court indicated that fairness liability was triggered by the
active promotion of higher-powered varieties of an unhealthy product.
But that does not preclude other
types of gasoline promotion from triggering fairness liability. Although
the ads in Chevron admittedly differ from those in Friends, in point of fact
they differ by creating an even greater apparent broadcaster liability.
If anything, the need for protection of the public interest in this case is
even more compelling than it was in Friends, for in Chevron the controversy
itself is openly discussed within the format of the ad. The Chevron ads
cannot be considered just another type of misleading promotion.
Nevertheless the licensees and the
majority of the members of this Commission persist in "crying wolf"
over this case by raising the apocalyptic specter of an "administrative
nightmare" that might result from a reversal of this decision.
"Disastrous economic consequences for our entire commercial system"
is the way they describe it. One might better point out the
"disastrous health consequences for [*535] our entire human
system" from the failure to take action. Rather than argue the
merits of those contentions, in light of the responsibility of this agency to
regulate industry, not be regulated by it, let us simply agree that the entire
question of "administration" is spurious to a cogent decision of the
issues of this case.
Contrary to licensees' suggestion,
this is not merely a claim for "product efficacy" -- a boast that
Chevron with F-310 will give you a cleaner engine, more miles to the gallon, or
put a tiger in your tank. Petitioners have singled out the Chevron
commercial for this challenge for one very good reason: Chevron's particular
misleading claim happens also to be an extremely controversial one.
In other words, the majority's
analysis is fallacious when it argues that a decision for petitioners in this
case would impose a duty on licensees "* * * to either a) automatically
terminate carriage of an advertisement subject to FTC complaint, or b)
automatically present a 'counter-advertisement.'"
To the contrary, Chevron, via its
"solving air pollution" claim, is taking itself out of the realm of
ordinary "misleading" advertising and placing itself in a much
smaller category of advertisers who discuss their product in terms of some
particular public quest for solution of a controversial problem.
Chevron has chosen, by its use of
the ad copy in question, to attempt to capitalize on the existence of the air
pollution issue. In doing so, it should recognize that if it makes
statements which can be controverted by recognized, public sources (which it
has), it triggers in the stations carrying its ads the absolute obligation to
enlighten the public as to the alternative arguments.
The Court of Appeals in Friends
found that gasoline products and the pollution problems they created can
entitle the public to as great a measure of care from broadcasters under the
Fairness Doctrine as did advertisements for cigarettes. Could this
Commission have permitted some individual brand of cigarettes to advertise
their new charcoal filter as "contributing to the solution of the lung
cancer problem" without obligating the station carrying such an ad to
provide further explication? I think not. And yet this is precisely
the analogy that must be made in this case.
The Court has made absolute the
correlation between the cigarette problem and the air pollution problem in the
realm of controversial issues of public importance. We must assume that
the Court did not lightly "remand" a case before it to this
Commission "for consideration in the light of our decision in Friends of
the Earth." If the Friends decision can be dismissed with as facile an
effort at reevaluation as the Commission gives it in consideration of Chevron,
there would have been no reason for the Court to remand in the first place.
I dissent.