In Re
Complaint by GEORGE D. COREY, NASHUA, N.H. Concerning Fairness Doctrine
Re Stations
WBZ-TV, WNAC-TV, and WSBK-TV, Boston, Mass.
FEDERAL COMMUNICATIONS COMMISSION
37 F.C.C.2d 641
RELEASE-NUMBER: FCC 72-856
SEPTEMBER 27, 1972
OPINION:
[*641] MR. GEORGE D.
COREY, 18 Raymond Street, Nashua, N.H.
DEAR MR. COREY: This is in reference
to your letter dated March 27, 1972, concerning three Boston television
stations, namely, WBZ-TV, WNAC-TV and WSBK-TV.
In your letter you state that these
stations have continued to carry programming directed at children which
contains an inappropriate amount of violence. You also state that such
operation is not in the public interest in that there is a casual relationship
between the viewing of televised violence and children's anti-social behavior.
Therefore, you request the
Commission to take one of several alternative courses of action. First,
you request the Commission to conduct a complete investigation into the extent
of children's programs containing violence on these stations and, once having
ascertained the results of such a study, to require the stations to either (1)
eliminate such programming, (2) substantially reduce such programming, or (3)
broadcast such programming only after 9:00 p.m. as is done in Great Britain.
Alternatively, you request the
Commission to either withhold renewing the licenses for these stations or grant
them only probationary licenses until the Commission decides what action it
will take in regard to the broadcasting of violence in children's
programs. Finally, you request the Commission to require the licensees of
WBZ-TV, WNAC-TV and WSBK-TV to comply with the fairness doctrine by
broadcasting the following public service notice or its equivalent: Warning:
Viewing of violent television programming by children can be hazardous to their
mental health and well being.
In support of this aspect of your
request you cite several studies, including the Report of the Surgeon General's
Scientific Advisory Committee on Television Violence and Social Behavior
entitled, Television and Growing Up: The Impact of Televised Violence. As
noted in your letter, the Surgeon General's Report indicates that violence on
children's programming may have a detrimental effect on their behavior.
You also cite a study conducted by Professor F. Earle Barcus,
[*642] Professor of Communications Research at Boston University.
You state that this study revealed the number of dramatic episodes containing
some violence on the Saturday morning children's programming as shown on the
stations made the subject of your letter.
In conclusion, you state that "*
* * by merely showing violence via their children's programming, they [WBZ-TV,
WNAC-TV and WSBK-TV] have unfairly presented violence as something worthwhile
for young children to watch without indicating that exposure to such stimuli
may be detrimental to this class of the public -- namely, children." You
also state that you "* * * can see no rational distinction which requires
that the Fairness Doctrine apply to the Banzhaf case and not to * * *"
yours.
The Commission presently has
outstanding a Notice of Inquiry and Notice of Proposed Rule Making in Docket
No. 19142 (FCC 71-71) regarding several matters pertaining to children's
programming. Also, there is presently pending before the Commission a
petition for rule making filed by the Foundation to Improve Television
(RM-1515). This petition seeks to prevent the presentation before 11:00
p.m. of violent or horror programs on television.
The issues raised in your letter
regarding violence in television programming, particularly as it relates to
children's programming, apply to the television industry as a whole. As
such, we do not believe that it would be appropriate at this time to make an ad
hoc determination whether the presentation of such programming by one, two or
three, licensees may have a detrimental effect on children. Instead, we
believe that it is more appropriate to consider such industry wide problems
through the Commission's rule making forum. See, for example, Hale v.
F.C.C., 425 F. 2d 556 (1970).
Concerning the fairness aspects of
your letter, as you are aware the fairness doctrine requires a station which
presents one side of a controversial issue of public importance to afford
reasonable opportunity for the presentation of contrasting viewpoints on the
issue in its overall programming. As we interpret your letter, you
maintain that the controversial issue is the effect of violence in children's
television programming and, thus, that stations which broadcast children's
programming containing violent episodes are presenting one side of the issue
and must afford reasonable opportunity for the presentation of contrasting
viewpoints on that issue. As previously indicated, you compare this
situation with the cigarette situation.
Although you list the names of
several programs which allegedly contain violent episodes, you fail to provide
any specific evidence (e.g., tapes or transcripts) concerning these programs
which could lead to a conclusion that one side of a controversial issue has
been presented. As we stated with regard to similar vague allegations in
our letter of November 25, 1969, to Allen C. Phelps and the Federation of
Citizens Associations of the District of Columbia, 21 FCC 2d 12, where it was
charged that the licensee had presented only the "liberal" viewpoint
on a number of issues such as racial discrimination:
Absent detailed and specific
evidence of failure to comply with the requirement of the fairness doctrine, it
would be unreasonable to require licensees [*643] specifically to
disprove allegations such as those made here. The Commission's policy of
encouraging robust, wide-open debate on issues of public importance would in
practice be defeated if, on the basis of vague and general charges of
unfairness, we should impose upon licensees the burden of proving the contrary by
producing recordings or transcripts of all news programs, editorials,
commentaries and discussion of public issues, many of which are treated over
long periods of time. Accordingly, although the Commission intends also
to employ other appropriate procedures to insure compliance by licensees with
the fairness doctrine (e.g., in-depth spot checks at renewal time), it has long
been our policy normally to require that fairness doctrine complaints (a)
specify the particular broadcasts in which the controversial issue was
presented, (b) state the position advocated in such broadcasts, and (c) set
forth reasonable grounds for concluding that the licensees in his overall
programming has not attempted to present opposing views on the issue. See
Applicability of Fairness Doctrine in the Handling of Controversial Issues of
Public Importance, 29 Fed. Reg. 10415 (1964).
In sum, as a public trustee, the
licensee must shoulder certain burdens, including upon appropriate complaint
the burden of whole thing that he has complied with the fairness
doctrine. However, based on our experience, we find that the public
interest also requires some reasonable specificity in a complaint to trigger a
detailed showing by the licensee that he has complied with the fairness doctrine
on a particular controversial issue of public importance. There is no
such specificity contained in your letter, just as there was none in the Phelps
case, supra.
We also believe the questions raised
concerning violent episodes in children's programming are distinguishable from
our holding in the cigarette advertising matter.
The Commission's ruling in the
Banzhaf case, In the Matter of Television Station WCBS, 8 FCC 2d 381 (1967),
recons. denied, 9 FCC 2d 921, affirmed sub. nom. Banzhaf v. F.C.C., 405
F.2d 1082 (C.A.D.C./ 1968), cert. denied, 396 U.S. 842 (1969), held that the
fairness doctrine is applicable to cigarette advertising. The Commission
took note of the 1964 Report of the Advisory Committee to the Surgeon General
of the Public Health Service and other studies which found a link between
smoking and various diseases. In that case the Commission was presented
with evidence that cigarette advertisements promoted smoking as attractive and
enjoyable. The Commission concluded, therefore, that "* * * a
station which presents such advertisements has the duty of informing its
audience of the other side of this controversial issue of public importance --
that, however, enjoyable, such smoking may be a hazard to the smoker's
health."
However, it could not reasonably or
logically be concluded that the mere viewing of a person smoking a cigarette
during a movie being broadcast on television constitutes a discussion of a
controversial issue of public importance thus raising a fairness doctrine
obligation. Similarly, we cannot agree that the broadcast of violent
episodes during entertainment programs necessarily constitutes the presentation
of one side of a controversial issue of public importance. It is simply
not an appropriate application of the fairness doctrine to say that an
entertainment program -- whether it be Shakespeare or an action-adventure show
-- raises a controversial issue if it contains a violent scene and has a
significant audience of children. Were we to adopt your construction that
the depiction of a violent scene is a discussion of one [*644] side
of a controversial issue of public importance, the number of controversial
issues presented on entertainment shows would be virtually endless (e.g., a
scene with a high-powered car; or one showing a person taking an alcoholic
drink or cigarette; depicting women in a soft feminine or light romantic
role). Finally, we note that there are marked differences in the
conclusiveness of the hazard established in this area as against cigarette smoking.
See the Surgeon General's Report on the Impact of Televised Violence, pp.
11-12.
The real thrust of your complaint
would appear to be not fairness in the discussion of controversial issues but the
elimination of violent TV children's programming because of its effect on
children. That issue is being considered particularly by appropriate
Congressional committees and agencies such as HEW. See above Report. It
is a difficult, complex, and sensitive matter. But whatever its
resolution, there is no basis for the action along the lines proposed by you.
In view of the above, no further
action is warranted by the Commission at this time and, accordingly, your
request for relief is DENIED.
Commissioner
Johnson dissenting and issuing a statement.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
JOHNSON
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
The Commission today gives
incredibly short shrift to one of children's television's most pressing
problems: violence.
George D. Corey, a student at
Suffolk Law School, brought this complaint against three Boston television
stations -- WBZ, WNAC and WSBK -- charging that the children's programming
carried by these stations contains inordinate amounts of violence. Mr.
Corey asks that, pending an investigation of these programs, we grant the
stations only probationary license renewals, and that we require the stations
to comply with the fairness doctrine by agreeing to present announcements
warning of the dangers of violence in children's television.
The majority advises Mr. Corey that
the Commission is currently studying several matters pertaining to children's
programming in its outstanding Notice of Proposed Rulemaking, Docket No.
19142. So the majority simply dismisses Mr. Corey's complaint.
Surely this is a Draconian method of dealing with a charge which raises
problems the seriousness of which the Commission has itself acknowledged by
holding its present hearings. I would have thought that in these
circumstances we would at least defer our ruling on the Corey complaint, and
grant probationary renewals to the stations until after the completion of our
nationwide inquiry into children's television.
Perhaps more serious, however, is
the majority's cursory treatment of Mr. Corey's fairness doctrine
contention. Mr. Corey asserts that violence on children's television
raises a controversial issue of public importance and that the stations
presenting such programming must afford a reasonable opportunity for the
presentation of contrasting viewpoints.
[*645] The majority
rejects this claim for two reasons.
First, it notes that Mr. Corey has
not presented the requisite "detailed and specific" evidence of the
stations' failure to comply with the fairness doctrine. If, by this, the
majority means that the complainant has not come forth with specific examples
of violent programming on children's television, the Commission should so
advise Mr. Corey and should give him an opportunity to amend his
complaint. Simply to dismiss that complaint is to penalize a concerned
citizen for his unfamiliarity with the complexities of our pleading rules -- an
approach even the courts have rejected in their dealings with attorneys
schooled in the intricacies of the law. Such an approach cannot possibly
serve the public interest. (See my concurring and dissenting opinion in
In re Application of the Meredith Corporation [WOW],
FCC 2d , decided this day.)
The majority also suggests that
violence on children's television is not, for fairness doctrine purposes,
analogous to cigarette advertising. In the Banzhaf case, In the Matter of
Television Station WCBS, 8 F.C.C. 2d 381 (1967), recons., den., 9 FCC 2d 921,
aff'd sub. nom., Banzhaf v FCC, 405 F. 2d 1082 (D.C. Cir. 1968), cert. den.,
396 U.S. 842 (1969), we noted that cigarette advertisements promote the use of
products which, according to findings by the Surgeon General, may be hazardous
to the users' health. We therefore held that such advertisements
presented one side of a controversial issue of public importance, thus
warranting presentation of the other side under the fairness doctrine.
The majority attempts, rather
disingenuously, to distinguish Banzhaf on the grounds 1) that the Surgeon
General has not found a close link between violence on children's television
and a child's anti-social behavior and 2) that broadcasting violence does not
promote such violence in the same way that a cigarette advertisement promotes
smoking.
Yet the majority itself notes that
the Surgeon General has determined that "televised violence may lead to
increased aggressive behavior in certain sub groups of children."
Television and Growing Up: Report on the Impact of Televised Violence (1971) at
7. And that report goes on to reveal the more general conclusion that
"a modest relationship exists between the viewing of violence and
aggressive behavior." Id. at 9. The multi-volume staff backup uses
much stronger language. In any event, the existence of this casual link
is surely close enough to warrant considerable concern.
Further, the fact that violence on
children's television is not promoted through advertising, but simply exists as
a substantial component of children's television fare, is not only irrelevant
but actually cuts the other way. Not only would it be rather bizarre if
advertisers attempted to promote the "goodness" of violence in the
same manner they promote cigarettes, but, to the child, the fact of continuous
violent programming is, in itself, a promotion of the idea. What made
Banzhaf a break through was the application of the fairness doctrine to
advertising in such a forceful manner. Thus, the absence of advertising
in this case makes it a stronger one than Banzhaf, not weaker.
[*646] To assert that
violence on children's television does not raise a controversial issue of
public importance is, then, to close one's eyes to a very real problem.
Indeed, by refusing to require that licensees at least warn parents of the
potential dangers inherent in current children's programming, the majority has,
in my judgment, left our licensees wide open to possible tort liability.
For, if the television set manufacturer is legally liable for the physical
damage done by radiation from the set, why should the network be free of
responsibility for the psychic harm done by what it radiates from the
set? (See How To Talk Back To Your Television Set 172 (Bantam, 1970)).
One of the reasons the cigarette
manufacturers wanted the warning ("Caution: Cigarette smoking may be
hazardous to your health") printed on the cigarette packs is that, without
such a warning to the user, they were taking a substantial risk of hundreds of
millions of dollars of tort liability to the survivors of the 300,000 people
they helped kill every year. Now that the evidence of the relation of
violent programming to violent behavior (and other psychic harm to children) is
so clear, it is only a matter of time before the networks' tort liability will
also begin to grow. One would think that they would want such warnings
broadcast to avoid it. The FCC, in its eagerness to serve the industry's
profits, may actually be handing it a loss from which it will be a long time in
recovering.
While recourse to the courts is
certainly one means of dealing with this problem, and whatever the industry's
best interest may be, this Commission also has a responsibility to the public
as well as the broadcasters, a responsibility which it completely ignores by
today's decision. The majority has, once again, passed the buck to the
courts. I dissent.