The Fairness Doctrine: FCC challenged on its refusal to hold that TV spots advertising big cars and leaded gasolines present one side of a controversial issue of public importance.

Far-reaching questions concerning the Federal Communications Commission's Fairness Doctrine and its applicability to environmental issues have arisen in recent months, at least some of which are likely to be adjudicated by the United States Court of Appeals for the District of Columbia in Friends of the Earth v. Federal Communications Commission, No. 24,556, 1 ELR Dig. [168], (D.C.Cir., filed August 17, 1970), where petitioners have asked the court to apply the doctrine to certain commercials for large automobiles and leaded gasolines that were shown over WNBC-TV, New York. On August 5, 1970, the Commission refused to extend the doctrine to automobile and gasoline commercials, distinguishing their treatment from the "simplistic" approach it had taken with cigarette advertising where the underlying issue — to smoke or not to somke — purportedly was more clearcut. See Applicability of the Airness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921 (1967), aff'd sub tnom Banzhaf v. Federal Communications Commission, 405 F.2d 1082 (D.C. Cir. 1968), cert. denied, 396 U.S. 842 (1969). A similar result, solely with respect to gasoline commercials, was reached by the F.C.C. in In re Complaint by Alan L. Neckritz et al., Concerning Standard Oil of California's F-310 Gasoline Adversing, 1 ELR 30036 (decision letter dated May 12, 1971). The premises underlying both decisions are shortly to be reviewed by the Commission which on June 11, 1971 announced its intention to conduct a full inquiry into the Fairness Doctrine itself.

The Fairness Doctrine grew out of the need to protect the public from arbitrariness or bias on the part of broadcasters who enjoy the exclusive right to use designated frequencies owned by the public itself. Prior to passage of the Radio Act of 1927, such frequencies were used in rather indiscriminate fashion by broadcasters, with listeners often subjected to a jumble of competing voices.From almost the very beginning of regulation, the F.C.C. determined that the airways were held in trust for the public by the licensees, and that the "public interest requires ample play for the free and fair competition of opposing views, and that the principle applies … to all discussions of issues of importance to the public." Great Lakes Broadcasting Co. 3 F.R.C. Ann. Rep. 32, 33 (1929). The Supreme Court has held that the duty to air opposing viewpoints does not impinge on the first amendment rights of licensees. "It is the right of the viewers and listeners rather than the right of the broadcaster which is paramount." Red Lion Broadcasting Company v. Federal Communications Commission, 395 U.S. 367, 390 (1969).

The Supreme Court has defined the two obligations imposed on broadcasters by the Fairness Doctrine as follows:

The broadcaster must give adequate coverage to public issues, and coverage must be fair in that it adequately reflects the opposing views. This must be done at the broadcaster's own expense if sponsorship is unavailable. Moreover, the duty must be met by programming at the licensee's own initiative if available from no other source. Red Lion, supra, 395 U.S. 367, 371.¹

The twin obligations tend to overlap and lend themselves to no pat formulas. What may be a "controversial issue of public importance" in one community may not necessarily be so in another, and in any event it is the totality of treatment afforded a particular issue by a licensee rather than the views expressed in any individual program or commercial which has been recognized by both the courts and the Commission as being dispositive of any given case. Thus the Commission has:

recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to … discussion of public issues of interest in the community served by the particular station. And we have recognized, with respect to such programs, the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the various groups which make up the community. In the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1949).

The Commission has further stated that where a complaint alleges that a licensee has violatedthe Fairness Doctrine in its treatment of a controversial issue of public importance, the Commission will first determine whether the programs cited in the complaint present only one side of the issue "in the community served by the particular station" and then decide whether that station has "acted reasonably and in good faith" in presenting other viewpoints on the issue. Before making this decision, "full opportunity is given to the licensee to set out all programs which he has presented, or plans to present, with respect to the issue in question during an appropriate time period." Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10416 (1964). More recently the Commission has held that:

[t]he fairness doctrine provides that if a licensee broadcasts one side of a controversial issue of public [1 ELR 10088] importance it must afford a reasonable opportunity for the presentation of opposing points of view. It is the responsibility of the broadcast licensee to determine whether a controversial issue of public importance has been presented and the Commission will review the licensee's action to determine whether it was reasonable and in good faith. In re Sinclair, Complaint Regarding Station WNEM-TV, Bay City, Mich. 1 ELR 30041.

The Sinclair decision letter, set forth in full in this month's ELR, shows the wide latitude which the Commission will afford a licensee to cure an error in judgment, even where one was clearly shown by the complaint. In Sinclair, station WNEM-TV had presented a full half-hour program, "The Atom and the Environment," sponsored by the very power company seeking to build a nuclear plant in Midland, Mich. The program set forth the company's answers to environmental objections raised against the project. When local citizens requested free time in which to reply, the licensee refused, taking the position that the dangers of radiation and thermal pollution were not controversial issues of public importance in the Midland area. The station claimed, however, that in any event it had reported complaints regarding such dangers on its regular news programs, had also interviewed civic leaders who were against the project on a special program concerning pollution, and further planned to cover hearings scheduled to consider the project itself. The Commission recognized that the licensee's initial determination regarding the importance and controversial nature of the project "does not appear to have been reasonable," but concluded that no further action was immediately warranted, because the station "did eventually offer a reasonable opportunity for the presentation of contrasting views," and because complainants "have made no allegations that their position would be prejudiced at the hearings because the public had not heard the contrasting points of view." Unlike the equal time requirements of political campaign programming, broadcast licensees are thus able to satisfy the requirements of the Fairness Doctrine by proving balance rather than mathematical equality in the treatment of controversial issues of public importance. "To establish a violation of the Fairness Doctrine appellants must show that specific programs have dealt with controversial issues partially, and, if so, that other programs on the station have not balanced the coverage by presenting the alternative viewpoints." Hale and Wharton v. Federal Communications Commission, 425 F.2d 556, 558 (D.C. Cir. 1970).

Summarizing the various elements discussed above, to prevail against a licensee at either the Commission or appellate court level, a complainant must show that the issue involved is one of (1) controversy and (2) public importance (3) in the particular area served by the licensee, that it has (4) received one-sided treatment by the licensee and that (5) fair opportunity for the presentation of opposing views was not afforded by the licensee (6) over a period to time that was reasonable under the circumstances.

While the FCC has had little theoretical difficulty in applying the Fairness Doctrine to commercial messages,² specifically it has seen fit to do so only one occasion — for cigarette commercials. There the Commission found that the product's "normal use has been found by Congressional and other governmental actions to pose such a serious threat to general public health that advertising promoting such use would raise a substantial controversial issue of public importance." Cigarette Advertising, supra, 9 F.C.C. 2d 921, 943. Challenged for its vagueness and overbreadth, the Commission's ruling in Cigarette Advertising came before the U.S. Circuit Court of Appeals for the District of Columbia, where the court delineated five standards applicable to product advertising which in turn made the Fairness Doctrine applicable to the cigarette case:

1. The danger cigarettes may pose to health is, among others, a danger to life itself.

2. … it is a danger inherent in the normal use of the product, not one merely associated with its abuse or depending on intervening fortunitous events.

3. It threatens a substantial body of the population, not merely a peculiarly susceptible fringe group.

4. Moreover, the danger, though not established beyond all doubt, is documented by a compelling cumulation of statistical evidence.

5. Finally, the Commission expressly refused to rely on any scientific expertise of its own. Instead, it took the word of the Surgeon General's Advisory Committee, whose findings had already been adopted in substance by the Department of Health, Education and Welfare, the Federal Trade Commission, and the Senate Commerce Committee, and had in addition been acted upon by Congress itself in the Cigarette Labeling Act. Banzhaf v. FCC, supra, 405 F.2d 1082, 1907-98.

In its letter of decision to Mr. Gary Soucie, Executive Director of complainant Friends of the Earth, the FCC attempts to distinguish between the cigarette and automobile gasoline situations. First, it claims that cigarette smoking does not involve a balancing of competing interests. Unlike other products which may create certain environmental problems (cars, gasoline, detergents, airplanes, electricity) the government was urging individuals to stop all use of cigarettes immediately in order to [1 ELR 10089] protect their health. Second, the Commission states that no one has suggested that we "stop promoting or stop using the fruits of the technological revolution," but rather that we "take prompt action to come to terms with the environmental effects of that technology." Third, several approaches other than simply urging people not to buy cars or gasoline would appear more productive in the long run. These include new emissions standards, the partial restrictions on trucks and automobile traffic, and the development of new gasolines and engines. The Commission concluded:

In sum we decline to extend the cigarette rulings to these products' commercials, and specifically hold that it would be inconsistent with the public interest to ban these commercials, have been contain health hazard announcements, or require announcements geared in some ratio to these ordinary product commercials. On the other hand, the broadcaster does have an obligation to inform the public to a substantial extent on these important [environmental] issues, including prime time periods. 1 ERC 1625, 1631.

The Commission further elucidated its reasons for refusing to extend the Fairness Doctrine to gasoline commercials in Neckritz, supra. Neckritz involved complaints against three San Francisco and two Los Angeles channels for commercials describing Chevron F-310 gasoline as a "major breakthrough to help solve one of today's critical prblems," and claiming use of the product could help turn "dirty smoke into good, clean mileage." The commercials were already under investigation as deceptive by the Federal Trade Commission and had been run only with modifications by several of the stations involved. Declining to hold that investigation by the F.T.C. per se turned the issue of the gasoline's effect upon the environment into one of controversy and public importance, the Commission added:

The Chevron advertisements do not claim there is no danger in air pollution or that automobiles do not contribute to pollution but assert, instead, that use of the sponsor's product helps to solve the problem. It would ill suit the purpose of the fairness doctrine, designed to illumine significant controversial issues, to apply it to claims of a product's efficacy or social utility. The merits of any one gasoline, weight reducer, breakfast cereal or headache remedy — do not rise to the level of significant public issue. 1 ELR 30038.

In a footnote to the Neckritz opinion, the Commission outlined certain types of commercials that would properly invoke the Fairness Doctrine. For example, if an announcement sponsored by a local coal-mining company asserted that strip mining had no harmful ecological results, the sponsor would be engaging directly in debate on a controversial issue, and fairness obligations would ensue. Or, if a community were in dispute over closing a factory emitting noxious fumes and an advertisement for a product made in the factory argued that question, fairness would also come into play. 1 ELR 30038.

In Friends of the Earth v. FCC petitioners accuse the Commission of failing to apply its own principles set forth in Cigarette Advertising, supra, although they acknowledge that in that case the Commission was urged by a minority of its members to extend the doctrine to other products and specifically refused to do so. Petitioners further maintain that the Commission's decision was substantially unresponsive to the issues raised in the complaint in that it failed to distinguish among ads for small and large automobiles and leaded and unleaded gasoline, failed to consider local conditions in the New York City area in determining whether the issue was one of controversy and public importance, and failed to consider if new duties were thrust upon it by the National Environmental Policy Act of 1969 (NEPA). Petitioners listed five particularly objectionable commercials which, they claimed, urged the public to buy automobiles with large displacement engines, or lead additive gasolines, and which "generally convey a message that such products (and necessarily the pollution they cause) are a requirement for the full rich life." Also cited are statements by New York City Mayor John V. Lindsay in the summer of 1970 indicating that air pollution had reached such crisis proportions that steps as drastic as banning private automobiles from congested parts of the city were being contemplated. Appended to petitioners' brief are two supporting letters, one from the New York City Environmental Protection Agency which alleges that automobile exhaust is responsible for almost 60 percent of the city's air pollution, and the other from Citizens for Clear Air, Inc., a local group also concerned with air pollution problems. With respect to NEPA, petitioners assert that the Commission failed to fulfill its responsibilities under section 102 of the Act in failing "to the fullest extent possible" to interpret and administer the law in accordance with the policies set forth in Title One of the Act. In support of this contention petitioners cite the Commission's assertion, "that the United States should solve its automobile pollution problem exclusively through action dealing with the product rather than undertaking action concerning the advertising of the product as well." The Commission's jurisdiction to act is, of course, exclusively in the latter area. Petitioners also cite the Commission's failure to recognize that messages designed to interest the public in smaller cars, unleaded gasoline or even other methods of transportation could have been fruitfully employed here, arguing that the Fairness Doctrine was not made inoperative by the naked fact that the issue was not simply, "to smoke or not to smoke." Also attacked is [1 ELR 10090] the Commission's alleged failure to show the connection between the duty of licensees to present the other side of the issue and the quantity of automobile and gasoline advertisements on its outlet.

The ultimate issue in Friends of the Earth v. Federal Communications Commission was colorfully if rather onesidedly framed by FCC Commissioner Nicholas Johnson in his opinion dissenting from the Commission ruling:

The question today is a crucial one for American commercial television. Will we allow the little glass screen in our living rooms to go merrily on its way merchandising the machines and mechanisms that pour thousands of pounds of pure poison in our sky every day? Or will American television for once put fantasies aside, pull its head out of the smog, and put the most potent merchandising tool yet developed by man — the spot advertisement — to work in curing instead of creating, in addressing rather than avoiding, one of America's greatest social ills: Pollution.³

Many environmentalists have for some time contended that their ultimate battle is not against the most egregious assaults upon our environmen but against the value system and life style which demand the manufacture of environmentally harmful products, often in environmentally harmful ways. The court's forthcoming decision in Friends of the Earth v. Federal Communications Commission may give some indication as to whether the judiciary has itself come at least party around to this view. Among the questions the court may ultimately be called upon or choose to decide in the case are these:

1. Has use of the autombile (or at least certain types of automobiles filled with certain types of gasolines) itself become a controversial issue of public importance in certain sections of the country? If so the Fairness Doctrine would clearly apply in this case.

2. Do general, catchy spot commercials constitute advocacy by the sponsors of one side of this issue, just as the same types of commercials for cigarettes were found to constitute one side of the smoking issue?

3. Can a licensee presenting one-sided treatment of the auto-gasoline issue in its commercials still live up to the requirements of the Fairness Doctrine by dealing with air pollution problems generally in its news and special feature programming, or must environmentalists be given the opportunity to reply "in kind" to the commercial messages?

4. Is the Fairness Doctrine satisfied by the licensee's providing the automobile companies themselves — Ford or Volkswagen for example — ample time to demonstrate the advantages of the Pinto or Karmann Ghia over the larger cars, or by awarding AMOCO free time to advertise its lead-free gasoline in response to SUNOCO or Gulf commercials? Or must the response be of the sort that the Commission fears would "undermine" much of the economic basis of commercial radio and television broadcasting?⁴

5. Does NEPA bring new material into the public interest concept already built into the Federal Communications Act, or does it merely restate that which was there already?

On June 11, 1971, the Commission announced that it would shortly conduct a "broad-ranging inquiry" into the Fairness Doctrine in such areas as conflicting political views, product claims and discrimination in advertising on the basis of race and sex. An indication that the review will embrace areas of environmental controversy as well was contained in the Neckritz decision, where the Commission stated:

Ad hoc proceedings have the advantages of action taken and policy evolved on the basis of concrete bodies of fact. But they have the countervailing disadvantages of limited participation by interested parties and often lack of adequate review. We strongly believe that something more is now called for.

An overall proceeding with wide-ranging participation might help us to develop more finely drawn classifications, approaches, and policies within the rubric of the fairness doctrine that will better serve the public interest. Such an overview was last undertaken by this Commission more than two decades ago, yet the evolution of broadcasting and communications generally has been profound during this time span.1 ELR 30038.

Whether this "overall proceeding with wide-ranging participation" will be anticipated by the court's decision in Friends of the Earth v. FCC remains to be seen. If so, the Commission may have a fairly concrete set of guidelines within which to operate.

1. Congress, through amendment of the Federal Communications Act, has expressly incorporated the Fairness Doctrine into the Act, referring to the obligation of licensees "to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." 47 U.S.C. § 315 (1959).

2. "In determining compliance with the fairness doctrine the Commission looks to substance rather than labels or form. It is immaterial whether particular program … is a paid announcement, official speech, editorial or religious broadcast. Regardless of label or form, if one viewpoint of a controversial issue of public importance is presented, the licensee is obligated to make a reasonable effort to present the other viewpoint or viewpoints." Broadcast Licensees Advised Concerning Stations' Responsibilities Under the Fairness Doctrine as to Controversial Issue Programming, F.C.C. 63-734 (1963).

3. Later in his dissent, Commissioner Johnson added, "In perhaps one of the great advertising overkills of all time, Americans are being grossly oversold an automotive product and life-style they neither need nor may really want, and which may eventually kill them with its exhaust by-products. In effect, the Commission again rules that Americans have no right to talk back to their television sets — at least on this issue. I dissent."

4. The Commission, in Neckritz, supra., also expressed fear that "application of the fairness doctrine to product commercials in these circumstances would almost certainly rule the commercials off the air (with advertising outlays continuing or increasing in other media.)" 1 ELR 30037.