LEXSEE 39 F

In Re Complaint by ACTION FOR CHILDRENS TELEVISION, INC., NEWTONVILLE, MASS. Concerning Fairness Doctrine

Re National Association of Broadcasters

FEDERAL COMMUNICATIONS COMMISSION

39 F.C.C.2d 702

RELEASE-NUMBER: FCC 73-135

JANUARY 31, 1973

OPINION:

[*702] MS. EVELYN SARSON, Executive Director, Action for Children’s Television, Inc., 46 Austin Street, Newtonville, Mass. 02160

DEAR MS. SARSON: This refers to the complaint filed by Action for Children’s Television (ACT) regarding an announcement distributed to television stations by the Television Information Office (TIO) of the National Association of Broadcasters.

Your letter to the Commission and enclosures indicate the following:

1. TIO distributed to television stations in August or September 1971 a one-minute announcement titled "Do Children Learn from Television?", a copy of which you have forwarded to the Commission and which is attached hereto. The announcement portrayed five children stating what they had learned from television, e.g., "how to cook hamburgers," "about pollution and what they're doing about it," "three specific things I'm never going to take -- alcoholism, smoking and bad drugs."

2. In November 1971 ACT sent a memorandum to 133 television stations in the top 25 markets, stating that the TIO announcements discussed a controversial issue of public importance -- "The issues of the quality and effects of children's television". ACT asked how often and at what times the stations had carried or would carry the TIO spot, what other discussions of the children's television issue they had carried, and "how you intend to discharge your Fairness Doctrine responsibilities." ACT offered to provide the stations with a public service announcement presenting another view on the issue. In support of its contention that the announcement discussed a controversial issue, ACT cited portions of an article in the September 1971 issue of the TIO newsletter, which stated in part,

Too often, TV's critics fail to give credit to the medium for positive values it presents. TIO's new 60-second color spot offers a charming, low-key response to some of those critics.

[*703] ACT's memorandum to the TV stations cited the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Business Executives' Move for Vietnam Peace v. FCC, as stating that a format of spot announcements for discussion of public issues "has great potential for enlivening and enriching debate," since it presents arguments in an "uninhibited wide-open fashion."

3. ACT states that as of January 1972 it received 35 replies, 21 stating that the stations had not aired the TIO spot, 11 stating that the stations had aired the spot, and three others requesting "ACT's counterspot while not admitting whether or not they had aired the TIO spot." ACT states further that it sent a set of three slides and a 30-second script to all stations that had requested the ACT spot or had broadcast the TIO spot. Letters ACT has forwarded from two stations stated that "because it seems to us beyond dispute that children (as well as others) learn from television" they did not understand ACT's assertion that the announcement discussed a controversial issue of public importance subject to the Fairness Doctrine. The stations stated that "We will consider the question further should you submit some amplification of your request or description of the contrasting viewpoint you allege to be required." A third station stated that it had covered the issue of children's television programming on various occasions, including one within the past month on which the producer of "Sesame Street," a representative of "Let's Make a Wish" and the author of "Television's Children" had participated. The only other station whose response ACT forwarded to the Commission expressed willingness to broadcast ACT's viewpoint but objected to the first two paragraphs of ACT's proposed announcement, stating that "On this particular television station, we do not run 'twice as many commercials [on children's programs] as on adult prime time shows,'" and "we do not carry any 'repetitive violent cartoons,'" You state that modifying the ACT script (a copy of which is attached hereto) would be "interfering with the editorial freedom of our response."

4. ACT has forwarded a copy of the January 1972 issue of the TIO newsletter which contains the following language:

TIO's "Children's Spot" has proved so effective on the air that some of television's most stubborn critics are trying to invoke the Fairness Doctrine so that they can get free time to mount further attacks... but station managers need not be intimidated by vocal critics demanding time for a reply * * * In our view, the spot -- to the extent that it is controversial at all -- is a modest and sensible rebuttal to any of the unbalanced criticism that has already been aired by most television stations.

5. ACT requests that the Commission take action on this matter "in light of the clear contravention of the [U.S. Circuit Court of Appeals] ruling by at least four of the stations we contacted," and it urges

(i) that the Commission "declare that all stations that carried the TIO spot should make time available to represent the other side of the issue in similar fashion," and

(ii) that "any licensee which claims it has adequately balanced the TIO spot should be requested to advise the FCC and ACT of the programming it deems to have presented the opposing viewpoint adequately."

[*704] The complaint here essentially seeks to invoke the fairness doctrine on the ground that the TIO announcement dealt implicitly with a controversial issue as contrasted to any explicit reference. The matter of implicit advocacy is one of those now being considered in the Commission's Fairness Inquiry in Docket No. 19260. We need not consider further the ACT complaint as to this matter, however, because we find that it is defective on procedural grounds.

A licensee who presents one side of a controversial issue of public importance must afford reasonable opportunity for the presentation of contrasting viewpoints. This requirement, embodied in the fairness doctrine, places the responsibility upon the licensee to determine whether a controversial issue of public importance has been presented and, if so, how best to present contrasting views on the issue. The choice of program format and spokesmen for presentation of contrasting views is within the licensee's discretion. The Commission will review complaints only to determine whether the licensee can be said to have acted reasonably and in good faith.

In its Public Notice of July 1, 1964, "Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance," the Commission stated that a complainant is expected to submit specific information indicating, inter alia, "the date and time when the program was carried" discussing a controversial issue, "the basis for the claim that the station has presented only one side of the question" and "whether the station has afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints."

Here the complainant has not made the required showing. Of the four station responses forwarded by ACT, one stated that the issue of children's programming had been covered on various occasion, one expressed willingness to broadcast ACT's viewpoint but asked modification of the language of the proposed announcement on the ground that certain statements therein were inapplicable to the particular station, and two stated they did not understand ACT's assertion that the TIO announcement discussed a controversial issue under the Fairness Doctrine but added that they would consider the question further should ACT "submit some amplification of your request or description of the contrasting viewpoint you allege to be required." We cannot find that the four responses submitted to us by ACT are "unreasonable."

Furthermore, with respect to the other 129 stations, ACT has made no showing "whether the station has afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints," or even as to which stations broadcast the TIO announcement, except for the 21 which stated they had not aired it and the other seven which stated that they had broadcast it. We note that ACT did not forward the responses of the latter seven stations.

Assuming, arguendo, that the TIO announcements constituted advocacy of one side of a controversial issue of public importance within the meaning of the fairness doctrine, the mere fact that the announcement was sent to a station, or even that a station broadcast it, is insufficient indication that the licensee has failed to comply with the requirements of the fairness doctrine respecting that issue. Nor, in our opinion, does the receipt of the announcement, in and of itself, obligate [*705] each licensee to demonstrate to the complainant and the Commission that it has complied with the fairness doctrine with respect to the issue.

We also note that although the complaint was purportedly based upon the fairness doctrine, ACT seems in some passages to be asserting an entirely different claim; namely, its right of access for its spot announcements, based upon the Court's decision in the BEM case, supra, and regardless of fairness considerations. Complainant seems to have an erroneous impression of the decision in that case. There an organization sought to buy time for spot announcements expressing its views on the Vietnam war. There was no evidence that the licensee had failed to comply with the requirements of the fairness doctrine regarding the War. The sole question was whether a licensee might adopt a policy flatly banning the sale of time for presentation of all controversial issues.

The Commission ruled that such a policy was within the licensee's discretion. The U.S. Court of Appeals for the District of Columbia Circuit reversed the Commission's ruling. The Circuit Court's decision is now on appeal to the U.S. Supreme Court, which has stayed the mandate of the lower court. Pending release of the Supreme Court's decision, the Commission's original policy determination remains in effect under the stay of mandate. Although some aspects of the questions raised in BEM are being considered by the Commission in its Fairness Inquiry, the Commission has made it clear that it intends to withhold any further declarations on the First Amendment aspect of the question until the Supreme Court rules on the BEM appeal.

For the reasons set forth above, the requests of the complainant ARE DENIED.

Commissioner Johnson concurring and issuing the attached statement.

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.

FROM TELEVISION INFORMATION OFFICE OF THE NATIONAL ASSOCIATION OF BROADCASTERS, NEW YORK

DO CHILDREN LEARN FROM TELEVISION?

	(60 Seconds -- Color AV-28)
AUDIO
ANNC'R:	Do children learn
	from television?
1st GIRL:	I learned how to
	cook hamburgers.
1st BOY:	I learned about
	meteorite storms.
2nd BOY:	I learned about
	walterfalls, that the fish fall down and
	try to get back up.
3rd BOY:	You learn what's
	been happening in Texas with the
	drought or about the budget in
	New York City and
	other things.
4th BOY:	I saw a commercial
	about it and they said 285 kids
	died from drugs.
2nd GIRL:	I see shows on television
	about hospitals and I want
	to be a nurse when I grow up.
3rd GIRL:	You learn about
	pollution and what they're doing
	about it.
5th BOY:	On television you
	learn about other people's customs.
1st GIRL:	I learned about three
	specific things I'm never going
	to take -- alcoholism, smoking
	and bad drugs.
ANNC'R:	Do children learn from
	television? What do you
	think?
	August 1971

[*706] Because this, like previous TIO spots, has been produced on your behalf, it is not necessary to identify TIO on the air. A letter from the NAB Legal Department to this effect has been distributed to stations.

ACTION FOR CHILDREN'S TELEVISION -- DECEMBER 1971

SCRIPT (TO BE READ WITH 3 SLIDES) TIME: 30 seconds

PUBLIC SERVICE ANNOUNCEMENT

(Response to announcement from Television Information Office on Children's TV aired earlier)

Slide A:	Announcer:
Children watching TV.	"Did you know
	that on children's television there
	are twice as many commercials as on adult
Slide B:	prime-time shows?"
Shot of girl's face.
	"Children spend more time in
	front of a television
	set than in any other activity
	besides sleep. And
	most of their programs are
	repetitive violent
	cartoons."
Slide C:
Logo for ACT's address.	"If you'd like
	to learn more about how to get
	better children's TV on the
	air, write Action for
	Children's Television,
	46 Austin Street, Newtonville,
	Mass. 02160. You can help."

CONCURBY:

JOHNSON

CONCUR:

CONCURRING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON

The Commission today denies the complaint of Action for Children's Television concerning the actual or conjectured broadcast, over some or all of 133 television stations in the top 25 markets, of a one minute Television Information Office spot announcement that purported to answer the question "Do Children Learn From Television?" Since TIO is essentially a publicity organ of the broadcasters, the answer was not only in the affirmative, but contained, moreover, the clear implication that what children learn from television is healthy, benevolent and finger-lickin' good.

ACT claims the spot is taking one side of a controversial issue of public importance, and with that contention I most heartily agree.

But the fairness doctrine does not prohibit the presentation of spots like the TIO commercial -- or any other. It does require that broadcasters permit all points of view regarding controversial issues like that involved in the TIO spot. Whether individual broadcasters have done so is the issue before us.

I am therefore concurring with the dismissal of the complaint on procedural grounds, because I do not believe ACT has provided sufficient information on any individual station's response to form a rational judgment as to whether a fairness doctrine violation has occurred.

If public interest and community groups are to use effectively the few powers they have gained before this Commission, it is important [*707] that they observe a few procedural rules that have been established as much for their benefit as for ours. It is not enough for a group like ACT simply to allege the controversiality of an issue. As in any administrative or judicial proceeding, certain actions or omissions on the part of the broadcaster must also be alleged in order to give the Commission some jurisdiction over what are, after all, the First Amendment rights of the broadcaster. The Commission clearly has the Constitutional authority to regulate the programming of a licensee in matters concerning the fairness doctrine. Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969). But if we are to do so cogently we must be presented with more facts than ACT has given us in this case. If ACT had not used such an overly-enthusiastic "shotgun" approach, but had concentrated instead on building a more detailed case against one or two stations, they could conceivably have established a valuable precedent before the Commission (or in the Courts), which could then have been wielded to gain some legal leverage on this issue against other broadcasters.

Although the Commission majority refused to reach the controversiality of the issue ACT is seeking to discuss, I think there can be no question but that the TIO spot presented one side of a controversial issue of public importance. There is little doubt as to the existence of the controversy that rages today over the effect of television, and especially commercial television, on the growth and development of our nation's children. The controversy is not necessarily over the question "Do children learn * * *" but over precisely what they learn -- intellectually, emotionally and psychologically. One need only examine the extensive literature linking television to violence and other social problems to understand the concern of ACT and groups like it. n1

n1 See, e.g., Television and Growing Up: The Impact of Televised Violence, Television and Social Behavior, and the Surgeon General's Scientific Advisory Committee on Television and Social Behavior from which they are derived; Violence and the Media, a staff report to the National Commission on the Causes and Prevention of Violence; Television and Juvenile Delinquency, Report of the Subcommittee to Investigate Juvenile Delinquency, 88th Congress, 2d Session.

The upbeat tone of the TIO spot, the enthusiasm of its examples and the various statements made by TIO in its newsletters urging the stations to carry the spot are all designed to underscore the benevolence of the one eyed monster. As this Commission has heard in the course of many hours of oral argument in a major docket devoted exclusively to children's television, however, that is no more than an industry viewpoint, widely and ferociously disputed by an ever-increasing number of concerned Americans -- parents and professionals alike. This Commission could not afford to treat lightly a complaint such as this one, if only it allowed us the opportunity to scrutinize more carefully the record and response of the individual station.