The Fairness Doctrine: FCC decides Esso commercials present one side of the trans-Alaska pipeline debate

For the first time since its decision in Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921 (1967), the Federal Communications Commission last month held the doctrine's requirements applicable to specific one-minute spot television commercials. In re Complaint by the Wilderness Society and Friends of the Earth, Concerning Advertisements Sponsored by the Standard Oil Company of New Jersey (Esso) and Shown Over the National Broadcasting Company (NBC), 1 ELR 30043 (June 30, 1971). See also the discussion in last month's Summary and Comments, The Fairness Doctrine, 1 ELR 10087-90. Involved [1 ELR 10102] were three one-minute Esso commercials shown over NBC television asserting that arctic oil was needed and that oil products could be developed and brought to market without wreaking ecological havoc on the Alaskan tundra. (Full texts of the commercials are set forth in the FCC opinion). The Commission held that the three spot commercials presented one side of a controversial issue of public importance, namely whether the production and transportation of arctic oil is environmentally safe, and that the licensee's claim that they simply represented "institutional" or "goodwill" advertising was unreasonable. Brief treatment by the licensee of the pipeline controversy on its regular news and interview programs was held by the Commission not to have afforded "reasonable" opportunity for the presentation of contrasting views to those presented in the commercials, e.g., the possible adverse ecological and environmental effects and the possibility of obtaining oil elsewhere." 1 ELR 36010. NBC was given 10 days to submit to the Commission a statement indicating what additional materials it plans to present which will air views opposite to those expressed in the Esso commercials "concerning the need to develop Alaskan oil reserves and the ability of oil companies to develop and transport oil without environmental damage." 1 ELR 36011.

In view of the extensive treatment afforded the subject of spot television commercials and the Fairness Doctrine in last month's Summary and Comments, only a few additional observations are warranted here in the light of the most recent FCC ruling.

First, the decision does not purport to and does not in fact expand the scope of the Fairness Doctrine as previously defined. Rather it rests upon a strained and perhaps artificial distinction between those commercials which merely make claims (however extravagant) concerning a product's "efficacy or social utility" and those in which the advertiser is "engaging directly in debate on a controversial issue." This dichotomy between puffing and debating was briefly set forth in footnote 6 to the Commission's decision in In Re Complaint by Alan F. Neckritz et al., Concerning Standard Oil of California's (Chevron) F-310 Gasoline Advertising, 1 ELR 30036, 30038 (May 12, 1971), in which the FCC rejected claims that several Chevron gasoline spot commercials presented only one side of controversial issues of public importance on the subject of air pollution. Thus the Commission noted, "We believe that these [the Esso] commercials are similar to the examples cited in footnote 6 and constitute the discussion of oneside of a controversial issue of public importance." 1 ELR 36043. What may have persuaded the Commission in the Esso case is that the television commercials were run simultaneously with several newspaper and magazine advertisements sponsored by the consortium of oil companies, including Esso, comprising the Alyeska Pipeline Company. The newspaper ads presented a far more direct case for construction of the pipeline.¹ The Fairness Doctrine, of course, has no applicability to the printed media.

Second, the reluctance of the Commission to open the floodgates of free rebuttal time to all commercials whose primary thrust remains the old fashioned sales pitch but which — by inference or underlying philosophy — deal secondarily with matters of controversy and public importance is understandable. A check of television advertising revenues for 1970 extrapolated from the May 31 issue of the industry's trade journal, Broadcasting gives some indication of the perimeters of the economic and politic thicket that obviously concerns the FCC. Gross advertising revenues of just under $3.5 billion included some of the following sub-categories:

Passenger cars $138,436,300

Car rental 6,364,200

Gasoline, lubricants and other fuels 92,629,500

Drugs and Remedies 297,890,000

Laundry Preparations 45,845,400

Soaps and detergents 109,013,500

Public Utilities 15,560,300

Dairy Products 30,415,900

Toiletries 464,360,900

Cigarettes 195,215,500

Airlines 41,768,600

Cigarette advertising was removed from the airways effective January 2, 1971. Some form of rebuttal time is being sought by environmental groups for automobile and gasoline commercials because of the underlying public controversy over the effects of big cars and leaded gasolines. See Friends of the Earth v. FCC 1 ELR Dig. [168]. But controversy also exists concerning the excessive reliance of Americans on drugs and pills, the ecological dangers of certain detergents, the pros and cons of using more electricity in view of "brown-outs" and the environmental hazards of new hydroelectric and nuclear power plant construction, health dangers involved in the consumption of polysaturated foods, the problems of already overcrowded runways and skys polluted by jetsmoke, and the manner in which women are portrayed in many cosmetic and toiletry commercials. Even the simplest commercial spot advertisements urging [1 ELR 10103] viewers to patronize a particular restaurant or retail business establishment may raise issues of public controversy and importance in the community involved if, for example, the establishment happens to be on strike. Retail Store Employees Union v. FCC, Case No. 22,605 (D.C. Cir. October 27, 1970).

It was in this context that the Commission, in issuing its June 11 Notice of Inquiry into "the efficacy of the fairness doctrine and other Commission public interest policies," warned that the goal of stimulating full and robust debate on important issues must be consistent with the public interest in the larger and more effective use of the broadcast media.

It is most important to note in this connection that, to a major extent, ours is a commercially-based broadcast system and that this system renders a vital service to the nation. Any policies adopted by this Commission in the areas covered in the present inquiry should be consistent with the maintenance and growth of that system and should, among other appropriate standards, be so measured. We urge all interested parties to keep this pragmatic standard centrally in mind in forwarding specific comments and proposals. Proposals that in the short run might afford great insight into public issues but in the long run might tend to undermine the existing broadcast system — e.g., nothing but informational programming in a debate format — would not, in this view, serve the public interest. In Re The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, Docket No. 19260 (June 11, 1971).

Finally, there would appear to be approaches capable of resolving the dilemma of spot commercials primarily directed toward selling a product but which raise secondary issues of controversy and public importance without undermining the system of commercial broadcasting or subjecting television viewers to a bombardment of competing social and political values. These might include (1) expanded duties on the part of licensees to policy commercials, not only for commercial advocacy but for deception as well; (2) institution of equal opportunity requirements for paid access to the various stations by groups or individuals wishing to rebut claims made or secondary policies dealt with in specific commercials; and (3) abolition of any licensee policies closing the airways to private parties on matters of public controversy and importance. These measures are proposed as supplements to rather than substitutes for a more rigorous application of Fairness Doctrine requirements by the Commission to situations where an advertiser has clearly crossed the line between salesmanship and public advocacy, and closer scrutiny over the various licensees by the FCC to insure that vital matters of public concern are dealt with frequently, impartially and in depth. Some would challenge the Commission's assumption that the commercial television industry is itself furthering the public interest. Absent action designed to resolve that ultimate issue, reform of the industry under FCC guidance is practicable along the lines indicated above.

1. If the Commission is to determine whether a particular issue is one of "controversy" and "public importance" it must look beyond the content of the commercial message itself. Less obvious but no less real is the need to view the commercial involved in the context of other messages in other media to determine whether the objectionable advertisement is part of an overall campaign by the advertiser or its industry to mobilize public opinion behind a particular point of view. Thus the Commission's consideration of the oil industry's newspaper and magazine campaign on behalf of the trans-Alaska pipeline was important in determining the true nature of television commercial spots which, standing naked, could conceivably have passed for mere institutional advertising. Also noteworthy was the Commission's observation that "the company's large investment in drilling for Alaskan oil quite obviously is based upon the assumption that transportation of the oil to other parts of the world will be permitted."