For Renewal of the License of Station
File No. BRCT-17
FEDERAL COMMUNICATIONS COMMISSION
16 F.C.C.2d 1034 (1969)
RELEASE-NUMBER: FCC 69-273
March 19, 1969 Adopted
MEMORANDUM OPINION AND ORDER
COMMISSION: COMMISSIONER COX CONCURRING BUT WOULD, IN ADDITION, HAVE INDICATED
THAT THE LICENSEE SHOULD HAVE MAINTAINED APPROXIMATELY THE SAME RATIO BETWEEN CIGARETTE
COMMERCIALS AND ANTISMOKING MESSAGES IN ALL PERIODS OF THE BROADCAST DAY:
The Commission has before it the petition of John F. Banzhaf III and
ASH, Action on Smoking and Health, filed December 24, 1968, opposing the
renewal of the license of television station KPIX,
2. Petitioner alleges that the licensee has deliberately and willfully refused to obey the order of the Commission in its decision "Applicability of the Fairness Doctrine to Cigarette Advertising," 9 F.C.C. 2d 921, affirmed, Banzhaf v. Federal Communications Commission, No. 21,285, Nos. 21,525, 21,526 U.S. App. D.C. , 14 Pike and Fischer R.R. 2d 2061 (Nov. 21, 1968). The petitioner provided the following data concerning the cigarette and antismoking announcements broadcast by KPIX-TV roughly from 6 p.m. through 11:30 p.m. between November 25, 26, 27, 28, 30, and December 1, 1968:
Total for above period:
Total number of cigarette advertisements 59
Total number of antismoking spots 5
Total time -- Cigarette advertisements 1,840
Total time -- Antismoking spots 50
[*1035] 3. In reply to the petition, Westinghouse does not dispute the number of cigarette commercials broadcast during the period used in petitioner's sampling, but it states that six (not five) antismoking spots were broadcast for a total of 80 seconds (not 50). For all of 1968, Westinghouse points out that KPIX-TV broadcast a total of 4,402 cigarette commercials and 1,529 antismoking announcements, a ratio of 2.87:1. It also notes that its efforts to comply with the Commission's decision involved more than the broadcasting of antismoking spot announcements. KPIX-TV broadcast many newscasts containing reports about the health hazards caused by smoking, as well as a number of other programs, including a documentary concerning the smoking-health controversy. Westinghouse argues that a review of KPIX-TV's over all efforts compels the conclusion that the station devoted a significant amount of broadcast time to informing its viewers of the dangers of smoking.
4. We have set out the pertinent policy considerations in the similar ruling as to the Chronicle Broadcasting Company, adopted this day, and will not repeat the discussion here. It is clear that on an overall basis, there would be no basis to the complaint, in view of the above showing as to presentation of antismoking messages during the year 1968 and of documentaries and other news items. However, again recognizing that there can be no parity of presentation of commercials and antismoking messages in the light of the policy determination set forth in "Applicability of the Fairness Doctrine to Cigarette Advertising," 9 F.C.C. 2d 921 (1967), affirmed, John Banzhaf, III v. FCC, case No. 21285, C.A.D.C., November 21, 1968, petition for certiorari pending, and without setting down any mathematical formula, we believe that greater effort is called for during the period of maximum viewing, where comparatively few antismoking messages were presented during the sample period even though a great number of the cigarette commercials were concentrated in these hours. See letter to NBC, issued this day. We hold further that in view of Westinghouse's substantial efforts to meet its obligations in this respect (see par. 3, supra) and of the remedial step set out in paragraph 5, there is no basis for designation of the Westinghouse renewal application for hearing on this score.
5. Accordingly, It is ordered, That the licensee of station KPIX-TV submit within 60 days of the date of release of this memorandum opinion and order a statement of its future policies with respect to informing its audience during the hours of maximum viewing the health hazards of cigarette smoking and submit after the passage of 4 months from the release of this order a report on its efforts to implement such policies.
6. It is ordered, That the petition opposing renewal of license of station KPIX-TV filed by John F. Banzhaf III and ASH, Action on Smoking and Health, is Denied.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
Commission today renews the license of the Westinghouse television station in
not repeat the discussion in my opinion commenting on the Commission's failure
to take action on the pending Westinghouse-MCA, Inc., merger in renewing
Westinghouse radio station KFMB in
The issues concerning the Banzhaf-ASH petition to deny turn on whether Westinghouse has complied with the Commission's fairness doctrine ruling regarding the presentation of cigarette advertising. The petitioner alleges that Westinghouse has not complied, because only a few antismoking spots have been presented in the time periods of maximum audience. There is apparently no disagreement that during the week monitored by petitioner in the time period 6 p.m. to 11:30 p.m. the ratio of cigarette advertising messages to antismoking spots was 9.8 to 1; and the ratio of the length of messages was 23 to 1. Westinghouse has opposed the petition to deny by citing their record for the entire year 1968 in the presentation of advertisements for and against cigarette advertising; by listing news coverage of the various news events that presented the antismoking position; and by citing three special programs on the health hazards of cigarettes.
But as our staff points out, while the overall ratio of cigarette ads to antismoking ads is less than 3 to 1 for the year 1968, Westinghouse in fact broadcast 82.14 percent (3,616) of its cigarette ads in the time period 6 p.m. to sign-off and only 24.13 percent (369) of its antismoking spots in the same time period. At the same time, 43.75 percent (669) of the antismoking warnings were aired in the period sign-on to noon, while only 6.38 percent (281) of its cigarette commercials were broadcast in that time. This can only lead to the somewhat cynical observation that Westinghouse chose to run its antismoking spots for audiences it thought it couldn't sell cigarettes to anyway, and ran few antismoking warnings for those audiences that were the prime candidates for a pitch on the merits of smoking this or that particular brand.
Apparently the Commission agrees with much of this analysis. For Westinghouse is ordered to file a statement on "future policies with respect to informing its audience during the hours of maximum viewing [about] the health hazards of cigarette smoking," and to demonstrate 2 months later its implementation of this policy change. The majority apparently wants to be sure Westinghouse will suffer no embarrassment or penalty notwithstanding its past noncompliance with the Commission's ruling. n1
n1 The Commission's leading statement on the Banzhaf complaints is contained in the National Broadcasting Co. letter involving his complaints against WNBC, released since the preparation of this opinion. WNBC, F.C.C. 69- (1969). I have dealt with these issues more fully in a separate dissenting opinion accompanying that letter.
[*1037] Petitioner has alleged that KPIX-TV has deliberately and willfully refused to comply with the Commission's cigarette advertising fairness ruling. The issue raised, therefore, is whether KPIX-TV's rather startling imbalance between pro-cigarette commercials and antismoking announcements in prime time is deliberately contrived to make a sham of the Commission's cigarette ruling, or whether there is some acceptable justification for what appears to be more than accidental scheduling. When issues of intent are involved, this Commission should require some objective evidence of reprehensible conduct on the part of a licensee before it conducts a full-scale hearing into the licensee's subjective motives.
Today I believe we have been presented with precisely this sort and amount of evidence, and that a hearing on this issue is warranted. I cannot believe that KPIX-TV has randomly scheduled its pro-cigarette commercials and antismoking announcements in such a manner that more than one-half of the month's prime-time periods are completely devoid of antismoking announcements, while the vast bulk of such announcements are buried somewhere in the desert of early morning and late evening time. I simply cannot fathom why the majority refuses to look for fire where there is so much smoke.