Are All Advertisements For Automobiles And Gasoline Subject To The Fairness Doctrine?

In Los Angeles, a city perhaps more afflicted with air pollution than any other in the United States, citizens' groups are seeking a broader application of the Federal Communication Commissions' fairness doctrine which would brand all automobile advertising as a practice which in itself raises a controversial issue of public importance.If the groups are successful, Los Angeles television stations will have to provide air time for pointing out the environmental consequences of purchasing automobiles, as urged in commercials. The fairness doctrine, the requirements of which are generally well known,¹ may therefore afford a means of alerting the public to the dangers of continual reliance on private automobiles as the principal means of transportation.

The complainants, the Sierra Club and the National Council of Jewish Women, contend that KTTV of Los Angeles is obligated under the fairness doctrine to make presentations which describe the health hazards produced by automobile pollution and urge reduced automobile use and development and use of alternative modes of transportation.² The complainants rely on Friends of the Earth v. FCC,³ which held that advertisements for large-engined automobiles and leaded gasoline present one side of a controversial issue of public importance and require broadcasters to give substantial treatment of significant opposing viewpoints. The court in Friends explained that "when there is undisputed evidence … that the hazards implicit in air pollution are enlarged and aggravated by such products," application of the doctrine to advertisements for those products is "inescapable." Because the health hazards caused by automobile pollution in Los Angeles are even more severe than those in New York, Friends seems clearly applicable to Los Angeles broadcasters. Complainants contend, however, that Friends' application to Los Angeles broadcasters cannot be limited to advertisements for large-engine automobiles and leaded gasoline, but must extend to all automobile and gasoline commercials. The controversial issue in the Los Angeles area, complainants say, is not whether to use automobiles which pollute to a greater or lesser extent as was the case in Friends, but whether automobile use as a whole should be reduced. In support of this proposition, complainants point out that the EPA Administrator himself has actually proposed gasoline rationing for the Los Angeles area. This proposal and the debate which followed it highlight the fact that a reduction in automobile use is urgently needed, and is supported by prominent groups and public officials in the community. EPA reports indicate that the standards for clean and healthful air established under the Clean Air Act for the Los Angeles area cannot be achieved by limiting road access to small-engine cars completely equipped with emission control devices. Therefore, the only viable way to achieve the important national policy of clean air in the Los Angeles area is by dramatic reduction of automobile use.

Finally, complainants add, it cannot be disputed that all automobiles and all gasolines contribute substantially to the public health problems caused by automobile pollution. EPA automobile emission standards reflect this fact by making no distinction on the basis of a vehicle's size. Similarly, the FCC should make no such distinction in this application of the fairness doctrine.

The FCC is not likely to receive these arguments with open arms. The Commission does recognize that "good will" advertisements "engaging directly in debate of a controversial issue," such as those advocating the construction of a trans-Alaska pipeline, are within the scope of the fairness doctrine. The Los Angeles complainants, however, are attacking general product advertising which explicitly urges only that consumers purchase a particular product, but implicitly presents one side of a controversial matter. Furthermore, they are attacking not just one specific product advertisement, but a whole class of advertisements: all those for automobiles and gasoline. The Commission has expressed reluctance to apply the fairness doctrine to general product advertising, except in the one case of cigarettes. Even when confronted with a single product advertisement that seemingly engaged directly in debate on a controversial issue, the Commission decided that "it would ill suit the purpose of the fairness doctrine, designed to illuminate significant controversial issues, to apply it to claims of a product's efficacy or social utility."⁴

The Commission has recognized that broad application of the fairness doctrine to general product advertising would in the short run afford great insight into important public issues, but still fears that in the long run, such a policy would undermine the broadcast system by destroying its economic base. Such a policy would require broadcasters to provide numerous free rebuttal commercials in time slots that normally produce revenue. If broadcasters' revenue is substantially diminished, the Commission reasons they will be unable to provide the "uninhibited, robust, wide-open" discussion of public information contemplated by the Communications Act. The potential threat which broad fairness doctrine application [3 ELR 10084] to general product advertising poses to broadcasters' economic base is great, the Commission explains, because practical limits for such a policy are not easily found. For example, if all commercials which raised issues of national policy required fairness doctrine application, NEPA alone would require application of the doctrine to a great number of products commonly advertised, such as airplanes, gasoline itself, detergents, and products packaged in non-biodegradable containers. Other product commercials also could be argued to raise significant questions of national policy: commercials promoting the use of certain drugs, or the overuse of drugs generally; commercials depicting women in a manner offensive to the national policy of equal rights and equal treatment of the sexes; and so on. "Almost without exception, product commercials can be argued to raise some significant, controversial issue."⁵

The current procedural treatment of fairness doctrine complaints reflects the Commission's restrictive application of the doctrine. In Letter to The Wilderness Society, et al.,⁶ May 9, 1973, the Commission made clear that the burden is on the complainant to show that the broadcaster's presentation on a particular issue is unbalanced in the totality of his programming, both prior to and after the challenged presentation. Thus merely pointing to an imbalanced presentation on a particular issue is not enough to shift the burden to the broadcasters and require them to show that other programs balance treatment of the issue. This decision places a great evidentiary burden the complainants, who are often unable to marshall the complete facts about broadcast programming, instead of on the broadcasters who have ready access to such information, and who stand in a fiduciary relationship to the public. The Commission maintains that if the burden were so easily put on broadcasters to search their records and disprove the validity of fairness complaints, broadcasters would be discouraged from programming controversial issues at all.

The Commission's treatment of the fairness doctrine has been extensively criticized for being overly sensitive to the broadcast industry's economic health and impervious to the public's right to be informed on important issues. Courts note that broadcasters are fiduciaries temporarily granted the privilege of using a great public resource, and that it is the responsibility of the FCC to hold them to the highest standards which are embraced in the public interest concept. The public's right to be informed is the cornerstone of the American system of broadcasting, the argument runs. Some legal commentators feel that the Commission has lost slight of this primary concern in its enthusiasm for fostering large broadcast industry profits.

Court decisions which required broader application of the fairness doctrine to product advertising than the Commission has favored to date have prompted it to launch an inquiry into the proper scope of the fairness doctrine.⁷ This inquiry, now over two years old, has not yet reached a conclusion. The inquiry's conclusion was presumably delayed pending the outcome of important fairness doctrine cases before the courts. One such case was Business Executives Move for Vietnam Peace v. FCC⁸ handed down by the Supreme Court on May 29, 1973. Another was In re Neckritz,⁹ which was argued before the District of Columbia Circuit Court of Appeals on April 23, 1973, in which the decision is now pending. The resolution of these cases may precipitate the long-awaited conclusion of the Commission's fairness doctrine inquiry, and result in substantial revision of the Commission's treatment of the fairness doctrine.

1. The fairness doctrine requires broadcasters to give balanced presentations on controversial issues of public importance.

2. Complaint available on request from ELR Digest Facsimile service.

3. 1 ELR 20397 (D.C. Cir. 1971).

4. In re Complaint by Alan L. Neckritz, et al., Concerning Standard Oil of California's F-310 Gasoline Advertising, 1 ELR 30036 (FCC May 12, 1971). The advertisements claimed that "our gasoline with F-310 is contributing to the solution of the air pollution problem."

5. Notice of Inquiry, 30 F.C.C. 2d 636 (1971).

6. FCC 73-496, 96604.

7. Notice of Inquiry, supra note 5.

8. Docket Nos. 73-863, 64,65, 66.

9. Docket No. 71-1392.