In Re Complaint of DEMOCRATIC STATE CENTRAL COMMITTEE OF CALIFORNIA Concerning Fairness Doctrine Re California Broadcasters Association and Station KNBC-TV
FEDERAL COMMUNICATIONS COMMISSION
19 F.C.C.2d 833
RELEASE-NUMBER: FCC 68-69
JANUARY 17, 1968
[*833] STEPHEN REINHARDT, Esq., Bodle, Fogel Julber & Reinhardt, 3540 Wilshire Boulevard, Suite 807, Los Angeles, Calif. 90005.
DEAR MR. REINHARDT: This refers to the complaint of the Democratic State Central Committee of California, which you represent (hereafter referred to as the DSCC) against the stations listed at the end of this letter. n1 You mention several broadcasts of the program "Report to the People," but the gravamen of your complaint is the alleged refusal of the stations to provide an opportunity to any responsible person to rebut the views expressed by Governor Reagan on the July 9, 1967, "Report to the People."
n1 Station XETV, which also was named in the complaint, is licensed by the Mexican Government and is not subject to the regulatory authority of this Commission.
From the information furnished to us by you and by the broadcast licensees involved, it appears the July 9, 1967, program was prepared at station KNBC-TV and the California Broadcasters Association (hereafter CBA) acted as a clearinghouse for the program. Each station licensee which carried it made its own decision as to whether it should broadcast the program and as to the manner in which it should be broadcast; i.e., live or at a later time from tape. The stations participating were not a continuously functioning network, but rather participants in a special broadcast.
You have asserted that there was a discussion of controversial issues of public importance in the program and on Governor Reagan's other broadcasts. In response to Commission inquiry, some of the licensees referred to in your complaint contend that the remarks on the July 9, 1967, program did not constitute a viewpoint on any controversial issue of public importance and do not give rise to any obligation to afford an opportunity for the expression of conflicting views. An examination of the text reveals that there was discussion of proposed State withholding taxes, a proposed tax increase, a proposal to charge tuition fees to students at State universities and colleges and other legislative proposals. These were clearly controversial issues of public importance to which the fairness doctrine is applicable.
[*834] Your request for time to respond to views on the issues discussed by Governor Reagan was addressed to the CBA, which, in turn, notified each station broadcasting the program of the request.
It appears from their correspondence with the commission and copies of their correspondence with the CBA and the DSCC that stations KTUV-TV, KJEO-TV, KERO-TV, KERE-TV, and KNTV-TV, promptly informed the CBA they would make time available to the DSCC for response.
The licensee of stations KOVR-TV and KMJ-TV states that it made efforts to arrange for appearances of Assemblyman Charles E. Warren and Assembly Speaker Jesse M. Unruh to appear on a program the Sunday evening following the July 9, 1967, program, but were unable to do so because Mr. Unruh advised the licensee that Democratic spokesmen would accept only simultaneous time on the full network of stations which broadcast Governor Reagan's program. The licensee of station KOGO-TV also advises that it made an offer of time to Speaker Unruh, but that the offer was rejected.
Since the committee's request for time was addressed to the CBA and relayed to these licensees by the CBA, it does not appear inappropriate for them to have made their response to that association or, in the alternative, directly to Messrs. Warren and Unruh, the proposed speakers. It is clear that neither the licensees of those stations nor the CBA had the responsibility or the authority to require any other licensee who had broadcast Governor Reagan's program to air the proposed program of Messrs. Warren and Unruh.
The fairness doctrine requires that a licensee, having presented one viewpoint on a controversial issue of public importance, afford a reasonable opportunity for the presentation of opposing views. No one individual or group, except in the case of a personal attack under certain conditions, is entitled as a matter of right to broadcast his views in opposition to those previously broadcast.
The fact that a program on which an elected official appeared contained a discussion of controversial issues of public importance does not entitle an opposing political party as a matter of right to present its views. See: Paul Fitzpatrick, 6 R.R. 543; California Democratic State Central Committee, 20 R.R. 867. Rather, the presentation of opposing views falls within the context of affording a reasonable opportunity through overall programming for the expression of such views.
At is appears that the licensees of television stations KFRE, KMJ, KOVR, KERO, KTVO, KNTV, KOGO, and KJEO offered to the DSCC through the CBA, or Messrs. Warren and Unruh, who were the spokesmen suggested by the DSCC, an opportunity to present views on the issues discussed by Governor Reagan, we find that they have complied with the fairness doctrine in this instance.
The licensees of television stations KABC, KNBC, KTLA, KFMB, KCRA, KXTV, KGO, KRON, KPIX, and KEYT have advised the Commission that in their opinions, views opposing those expressed by Governor Reagan were broadcast in other programming. Each of those licensees has furnished to us descriptions of the programs to which they refer and the dates and general times on which such programs [*835] were broadcast. After a careful examination of the information supplied by those licensees and by the DSCC, we cannot find that they have failed to afford a reasonable opportunity on an overall basis for presentation of views conflicting with those presented by Governor Reagan on July 9, 1967 or any of his other programs, which were broadcast by some of those licensees. The information submitted discloses that these licensees presented opposing viewpoints in a variety of formats, including newscasts, public affairs and open-mike programs; e.g., station KABC broadcast a 30-minute public affairs program and news items on five different occasions which presented views contrasting with those in the July 9 report of the Governor. n2
n2 The number of licensees involved in the complaint makes it infeasible to set forth in complete detail the information submitted by them showing the presentation of opposing viewpoints. However, this information is contained in the Commission's files and is open to public inspection.
We have taken into account the argument based upon the difference in format (i.e., a 15-minute report as against numerous smaller segments on newscasts) and your contention that Governor Reagan's speaking but once and reaching the audience of 20 licensees placed an obligation upon those licensees to make a similar effort to disseminate the views of those opposing him. However, we find that such differences are still within the reasonable judgment of the licensee as to format and manner of presentation. Cf. Republican National Committee, 3 R.R. 2d 767 (1964).
In passing on any complaint in the fairness area, the Commission's role is not to substitute its judgment for that of the licensee as to any programming decision but rather to determine whether the licensee can be said to have acted reasonably and in good faith. In light of these considerations and based upon the showing before us (see preceding paragraphs), we cannot find that any of the licensees listed in A below has acted other than reasonably and in good faith as to the issues discussed by Governor Reagan and we are of the opinion that further Commission action with respect to the said licensees (listed in A below) is not warranted.
However, with respect to KBAK-TV, the licensee advised the Commission that the station did broadcast two of the "Report to the People" programs, one on February 5, 1967, and the other on July 9, 1967. KBAK-TV did not afford the DSCC the time requested and is of the view that it had made a good faith effort to keep its audience informed of all sides of the issues involved. As evidence, it attached copies of one brief news story in which Assembly Speaker Unruh's views on several issues were reported, two brief news stories in which his name was mentioned and a short statement of July 7, 1967, as to the status of then pending tax legislation. The four brief news items which KBAK-TV submitted do not, in themselves, appear to amount to a reasonable presentation of opposing views on the issues involved, nor has KBAK-TV described other efforts on its part to achieve that end.
We cannot find on the basis of the information which KBAK-TV has submitted to us that it has complied with the fairness doctrine principles. In order to achieve compliance, it will be necessary for KBAK-TV to take further steps to bring about a balanced presentation [*836] of the issues which were the subject of the broadcast in question, and the licensee is being so informed.
Commissioner Cox issued a statement concurring in part and dissenting in part. Commissioner Johnson issued a concurring statement. Both are attached.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: JOHNSON; COX (IN PART)
CONCURRING STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
I concur in the majority's judgment with regard to the stations involved in this complaint.
I share Commissioner Cox's concern that convenient availability of network facilities should be one element in determining whether stations have met their fairness obligations. But I cannot conclude, under the circumstances of this case, that the stations involved (with the exception of KBAK-TV) did not make a good faith, reasonable effort to comply with the Commission's standards of fairness.
DISSENTBY: COX (In Part)
STATEMENT OF COMMISSION KENNETH A. COX CONCURRING IN PART AND DISSENTING IN PART
I am not convinced by our staff's analysis that fairness has been achieved by KFMB-TV. It appears that, during a relevant period before and after the broadcast by Governor Reagan which is in issue here, KFMB carried 32 news items totaling 19 1/2 minutes which presented Democratic views on the issues of budget and taxes. During the same period it carried 12 news items totaling about the same time which reported Republican views on these issues. But it seems to have made no effort at all to balance its presentation of Governor Reagan's statewise broadcast dealing with these matters. I do not think this satisfies the requirements of the fairness doctrine.
Beyond this, however, I think that fairness could have been more clearly and easily effected by all the stations' providing the same sort of ad hoc network for a comparable program presenting a qualified spokesman -- or spokesmen -- for those who hold views opposed to those expressed by Governor Reagan. I agree that the California Broadcasters Association did not have the authority to require the stations in question to carry such a program replying to the Governor -- any more than it could have required them to carry the latter's program. But it assumed the responsibility for the presentation of one side in a convenient and effective manner, and could have performed the same function for the other side -- indeed its notification to the stations of the Democratic State central committee's request for time could be interpreted as an inquiry as to whether the stations would take a feed of a comparable reply program. If the stations which had carried Governor Reagan's program had replied that they would carry a program stating the opposing view, they could have made it perfectly clear that they had complied with the requirements of the fairness doctrine and could have made things as easy for those asserting the need for time to respond as they had for the Governor. In addition, the fact that a program is carried on a statewide network lends it an air of importance and makes it easy to promote the broadcast. While overall balance can be achieved in many situations by adding up news items, brief interviews, comments on telephone shows, etc., I wonder whether practical balance was provided here by the periodic presentation of brief opposing statements.
I think the California Broadcasters Association is to be commended for arranging for carriage of a significant expression of Governor Reagan's views, and I think anything it might have done to assist its member stations in carrying a response by appropriate Democratic leaders would have been equally in the public interest. Then the stations [*837] would have been left with the continuing responsibility for seeing to it that their coverage of these and other controversial issues in other, locally originated programming was kept in reasonable balance. I agree that ultimate responsibility for fairness rests on the individual licensee, but when he joins a network -- even temporarily -- for a program dealing with public controversy, I think the most logical way to balance that broadcast is through another network program. Certainly that is the way our national networks have normally functioned, and I think their practice provides a good pattern for such statewide networks as that involved here.
I therefore dissent from the ruling that KFMB-TV has met its fairness obligations here. I concur fully in the ruling with respect to KBAK-TV. I concur in the ruling with respect to the other stations, but with the comments set forth above.