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In the Matter of PETITION TO REVOKE THE LICENSE OF NATIONAL BROADCASTING CO., INC. For Station WNBC-TV, New York, N.Y.

 

FEDERAL COMMUNICATIONS COMMISSION

 

16 F.C.C.2d 947 (1969)

 

RELEASE-NUMBER: FCC 69-270

 

March 19, 1969 Adopted

 


 

ACTION:

 

MEMORANDUM OPINION AND ORDER

BY THE COMMISSION: COMMISSIONER COX CONCURRING IN THE RESULT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.

 

[*947] 1. The Commission has the following pleadings before it for consideration: n1

 

n1 Also before the Commission is a reply to the Commission's letter of Nov. 22, 1968, filed Dec. 4, 1968, by NBC.

 

(a) A petition to revoke broadcast license of station WNBC-TV, New York, N.Y., held by National Broadcasting Co., Inc., filed June 12, 1968, by John F. Banzhaf III and ASH, Action on Smoking and Health.

 

(b) Response of National Broadcasting Co., Inc., filed July 22, 1968.

 

(c) Supplemental response filed August 9, 1968.

 

(d) Reply to responses of National Broadcasting Co., Inc., filed August 29, 1968, by John F. Banzhaf III and ASH, Action on Smoking and Health.

 

2. Banzhaf and ASH, in their petition to revoke, allege that licensee has failed to fulfill its obligations under the fairness doctrine as it applies to cigarette advertising.

 

3. By letter of this date to licensee, the Commission stated the following:

 

We have reviewed the facts of the case and find a disparity between the number of cigarette commercials and the efforts to inform the public on the other side of the matter (i.e., here the antismoking messages). However, when your total performance in the test weeks is considered, we cannot say that the disparity is so great, taking into account the above policies, as to require a conclusion that your overall performance has been deficient.

 

We do note, however, that in the sample weeks, April 1 to 7 and 15 to 21, 1968, there appears to have been a concentration of antismoking messages outside of the hours of maximum viewing, in contrast to cigarette commercials, which were heavily represented in these periods. * Thus, according to the information you have supplied, although a great number of cigarette commercials were broadcast during the period 7:30-11 p.m., antismoking messages were broadcast within this period on only 5 of the 14 days.

 

* Omitted.

 

We recognize that, in view of the considerations set forth in the last sentence of the second paragraph above [omitted], parity between cigarette commercials and antismoking messages cannot be required during these hours, and that the implementation of our policy requires a sensitive balancing. Without setting [*948] down any mathematical formula and recognizing that you have made substantial efforts to meet your obligations in this respect, we believe that greater effort is called for during the period of maximum viewing. We therefore request that within 60 days of the date of this letter you submit a statement of your future policies in this area and that, after the passage of a period of 4 months from the issuance of this leter, you submit a report of your efforts to implement such policies.

 

4. In light of the foregoing, the petition to revoke will be denied. We believe that while the above action is called for, there is no basis for action to revoke the license in light of NBC's substantial efforts to meet its obligation in this respect. Cf. Report on Editorializing by Broadcasting Licensees, 13 F.C.C. 1246, 1255-56 (1949).

 

5. We note that Banzhaf and ASH stated in their petition to revoke that "* * * if the Commission should rule that the entire broadcast record of WNBC-TV must be considered, then the petitioners respectfully reserve the right to amend and supplement this petition to provide additional information and respectfully allege the following additional areas in which the licensee-respondent fails to serve the public interest." Fourteen additional areas are listed by petitioners. While any additional information filed by petitioners to supplement their petition may raise significant questions, their examination and resolution are more appropriate to a consideration of licensee's renewal application, n2 which necessarily will involve a review of station activities during the entire license term, including actions of the licensee to discharge its obligations under the fairness doctrine. n3

 

n2 WNBC-TV's license expires June 1, 1969.

 

n3 In this connection we wish to point out neither the Communications Act nor the Commission's rules and regulations provide for the filing of a petition to revoke and that such petitions are treated by the Commission pursuant to sec. 1.41 of the rules as informal requests for Commission action.

 

6. In view of the foregoing, It is ordered, That the petition to revoke broadcast license filed June 12, 1968, by John F. Banzhaf III and ASH, Action on Smoking and Health, Is denied.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


 

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

 

John Banzhaf and a group called Action on Smoking and Health (ASH) have sought to persuade this Commission that its ruling regarding cigarette advertising and the fairness doctrine ought to be enforced. Unfortunately the majority feels otherwise.

 

WNBC-TV, NBC's flagship station in New York City, is told by the majority:

 

We have revised the facts of the case and find a disparity between the number of cigarette commercials and the efforts to inform the public on the other side of the matter (i.e., here the antismoking messages). However, when your total performance in the test week is considered, we cannot say that the disparity is so great, taking into account the above policies, as to require a conclusion that your overall performance has been deficient.

 

We do note, however, that in the sample weeks, April 1 to 7 and 15 to 21, 1968, there appears to have been a concentration of antismoking messages outside of the hours of maximum viewing, in contrast to cigarette commercials, which were heavily represented in these periods. Thus, according to the information [*949] you have supplied, although a great number of cigarette commercials were broadcast during the period 7:30 to 11 p.m., antismoking messages were broadcast within this period on only 5 of the 14 days.

 

We recognize that * * * parity between cigarette commercials and antismoking messages cannot be required during these hours, and that the implementation of our policy requires a sensitive balancing. Without setting down any mathematical formula and recognizing that you have made substantial efforts to meet your obligations in this respect, we believe that greater effort is called for during the period of maximum viewing. * * *

A survey conducted by the Commission analyzing only 2 weeks of WNBC programming in prime time showed that the ratio of cigarette announcements to antismoking announcements was 8.1 to 1, and that the length of announcements was 5.6 to 1. This substantial disparity is alone sufficient to warrant a Commission inquiry into the issues involved. Yet, as shall become clear below, these ratios must be substantially increased to reflect the true ineffectiveness of WNBC-TV's presentation of antismoking announcements. The Commission does not need to deal with "mathematical formulas" to conclude that its ruling under the fairness doctrine has been flagrantly violated. n1 How unconcerned can we be when licensees ignore our rulings?

 

n1 It goes without saying that the instant case is not the only potential violation which has been reported to the Commission in recent months. This case is not an isolated incident but may be reflective of widespread industry practice.

The contrast between the way the Commission deals with small stations and large corporate licensees is striking. A small, family-owned AM radio station that operates with the wrong power for a few days, or comes on the air before sunup, may be levied a substantial fine by this Commission. Time brokerage, false logging, or an abuse of advertisers -- such as double billing -- may actually result in license revocation. See, e.g., Continental Broadcasting, Inc., 15 F.C.C. 2d 120 (1968). But a network licensee that ignores a Commission ruling on the life and death issues surrounding a controversy of such importance that the Commission has now proposed to outlaw all cigarette advertisements entirely ["Cigarette Advertising," F.C.C. 69-95 (1969)], is merely sent an apologetic letter politely requesting the network to do better if it possibly can. (It should also be noted that petitioners' complaint was filed over 9 months ago, dealing with programming almost a year old. We are not told whether NBC has continued its pattern of noncompliance during this period -- a prime example of the Commission's vaunted "expeditious resolution.")

 

The issue here involved, therefore, is whether WNBC has failed to comply with a Commission ruling by not devoting "significant" time to anticigarette announcements -- that is, whether the impact of such anticigarette announcements is so disproportionately small as to fail to counteract to any "significant" degree the station's current barrage of procigarette commercials. The resolution of this issue depends on the standards adopted to gauge the "significance" of antismoking announcements in combating the persuasive charm of procigarette commercials.

 

The majority has acknowledged a "disparity" between the number of cigarette commercials and antismoking announcements, and has even recognized that substantial periods of prime evening time are [*950] completely devoid of any such announcements. Nevertheless, it inexplicably asserts that this disparity is not "so great * * * as to require a conclusion that your overall performance has been deficient." The majority's failing is its almost exclusive concentration on the number, rather than the impact, of the procigarette commercials. This exclusive emphasis is unfortunate for several reasons.

 

First, the majority has not adequately considered the fact that WNBC-TV has concentrated its procigarette commercials during those prime evening time periods which attract the largest audiences. WNBC-TV only broadcast antismoking announcements in prime time on 5 of the 14 days studied, and on 4 of these days only one antismoking announcement was broadcast during the heavy revenue producing prime time periods. This inevitably means that millions of New York City viewers did not see any antismoking announcements. For them, ratios are irrelevant: they will still see nothing but procigarette commercials. At the very least; therefore, a substantially greater number of antismoking announcements appear to be required during prime time hours before a comparison of ratios becomes meaningful at all. In addition, the majority makes no attempt to estimate the true impact of procigarette commercials and antismoking announcements during prime time hours. A more relevant criterion of "significance" might be the total number of persons viewing each such spot -- the number of "exposures" -- each evening. Yet the majority fails to cast its analysis in these terms just a few short months after the Commission used such an approach to propose a total ban on all cigarette advertising from radio and television. ["Cigarette Advertisements," F.C.C. 69-95 (1969)]. At that time, we stated there was "no question but that cigarette commercials have significant impact" (italic supplied) on their audience, and supported our conclusion by measuring the number of "exposures" of cigarette commercials to viewers -- "(i.e., the number of cigarette commercials times the estimated program audience) resulting in 13.3 billion exposures in January, 1968 alone." (Id. at par. 7.) If this audience "exposure" calculation was deemed persuasive enough to justify a complete ban on cigarette advertising from radio and television, one would think that a similar calculation would contribute toward consideration of the need for a hearing to determine whether WNBC-TV's performance on these fairness and other issues justifies renewal of its license. Surely it is no accident that the cigarette industry is expending millions of dollars a week for prime time advertising space. It would ignore the obvious to contend that late evening or early morning or afternoon advertisements are as effective as prime time commercials.

 

Second, it is clear that prime time audiences include larger numbers of young, presmoking teenagers -- one of the age groups most susceptible to the purported charm, adventure and romance of the "smoking style of life." This age group is less well represented in the audiences for the late, late, shows, and is in school during morning and afternoon programs. It would not be surprising if members of this impressionable age group in New York City could easily have gone for weeks without viewing one anticigarette announcement on WNBC-TV.

 

[*951] Again, in this Commission's proposed rulemaking on "Cigarette Advertisements" [F.C.C. 69-95 (1969], we noted that cigarette "commercials reach children to a very significant extent," and estimated that 23 percent of all cigarette commercial exposures reach children and teenagers between the ages of 2 and 17. (Id. at par. 7.) If the impact of cigarette advertisements on children is substantial enough to support a complete ban on such advertisements from radio and television, it is difficult to imagine why the Commission now refuses even to consider this type of calculation.

Finally, the ratio of 8.1 procigarette commercials to 1 antismoking announcements on WNBC disclosed by the Commission's survey does not include "billboard" announcements. Thus, the already large disparities between the number of procigarette commercials and antismoking announcements must be increased further by the addition of such "billboard" announcements as the following, broadcast over WNBC:

"The High Chaparral," brought to you by * * * Raleigh, the filter cigarette with real tobacco taste; valuable coupons too. * * *

 

I am simply unwilling to accept the assumption of the majority that such "billboard" sales techniques are without impact and can therefore be excluded from consideration. According to respondent's supplementary response, inclusion of procigarette "billboard" announcements broadcast over WNBC in the list of procigarette commercials on that station would increase their number by more than 20 percent. (Supplement to response of NBC, at p. 3.) n2

 

n2 This list of factors the majority has not considered is not exhaustive. The length of procigarette commercials and antismoking commercials is often particularly revealing. In one case reported to the Commission, the number of procigarette to antismoking spots was 7.7 to 1, yet the ratio of length was 21 to 1 in prime time.

 

It is clear, therefore, that the majority's analysis of the ratio of procigarette commercials to antismoking announcements conceals more than it reveals. The inclusion of "billboard" announcements would increase this ratio from 8.1 to 1, to approximately 10 to 1, and if it is assumed that most school-age children and teenagers watch television during prime-time hours when procigarette commercials are at their heaviest, and few watch when the antismoking announcements are aired (while they are in school or asleep), it becomes clear that the "impact" ratio of procigarette commercials to antismoking announcements on an important and susceptible segment of our population should provide greater cause for Commission concern.

 

It would appear, therefore, that procigarette commercials in fact reach a far greater and more impressionable audience than the majority's reasoning might suggest. Yet the majority has made no real attempt to enunciate any meaningful formula by which the true impact of cigarette commercials and announcements, both pro and con, can be assessed. In actual fact, the majority's response appears to be more of an instinctive "gut-reaction" than an attempt clearly to articulate a standard or judgment by which we may give the industry guidance in the future.

 

I do not have the slightest idea how the majority arrived at, or can justify, its apparently unsupported conclusion that WNBC-TV's performance [*952] has not been "deficient." If the majority is in fact going to establish a working standard of "significance" for antismoking announcements, then I would suggest there are many important factors to consider. I have attempted partially to list some of these factors above. It does not become the Commission to justify its opinions by snatching speculative and unsupported judgments out of the blue when its decisions are apparently reached on conjectural or unarticulated grounds. For these reasons, the Commission should at least attempt to articulate the standards by which it is guided, and not merely dismiss petitioners complaint with the flat assertion that no action is warranted.

 

Nor is the majority's handling of the procedural matters in this case anymore satisfactory. Banzhaf and ASH have sought revocation of the WNBC-TV license. That relief is denied, although the majority agrees that NBC has not fully fulfilled its fairness obligations.

 

But Mr. Banzhaf and ASH did not limit their allegations to WNBC's performance under the cigarette fairness decision.

 

They state:

 

It is the position of the petitioners that the deliberate and willful violation of both the letter and spirit of the Commission's ruling in this area so vital to the health and very lives of millions of its viewers is more than sufficient grounds for revoking the license of WNBC-TV and that the Commission need not and should not consider its entire broadcast record. Petitioners therefore respectfully request that a hearing on these matters and only these matters be set for the earliest possible date, bearing in mind that any decision of the Commission is bound to be appealed to the courts and thus delaying a final resolution in this area. However, if the Commission should rule that the entire broadcast record of WNBC-TV must be considered, then the petitioners respectfully reserve the right to amend and supplement this petition to provide additional information and respectfully allege the following additional areas in which the license respondent fails to serve the public interest:

 

1. Excessive number of commercials, often presented so as to disrupt and detract from the principal programing.

2. Misleading and deceptive programming practices.

3. Failure to present programming responsive to the needs of racial minority groups and to feature members of such groups in the regular and commercial programming.

4. Incomplete, deceptive, and misleading responses on official forms in connection with licenses renewal.

5. Failure to present programming critically exploring areas of public importance and concern where the interests of advertisers and potential advertisers might be adversely affected.

6. Insufficient and in fact almost nonexistent programming of a cultural and intellectual nature.

7. Excessive violence, crime, sadism, etc., especially in programs presented for, and viewed by, young children.

8. Contributing towards the monopolization of the communications media.

9. Failure to provide programming responsive to the educational, social, and cultural needs of its very large preadult audience.

10. Excessive use of reruns and old movies, thus depriving viewers of fresh programming.

11. Failure to fulfill its obligations under the fairness doctrine with respect to other controversial issues of public importance.

12. Failure to provide programming responsive to the special needs and desires of substantial minority groups and interests within its viewing audience.

13. Unimaginative, uninteresting, and unentertaining programming.

14. Lack of participation by representatives from the community in its program planning and failure to respond to the wishes of its viewers.

 

[*953] And what do we say to the 14 points? The majority responds:

 

While any additional information filed by petitioners to supplement their petition may raise significant questions, their examination and resolution are more appropriate to a consideration of licensee's renewal application, which necessarily will involve a review of station activities during the entire license term, including actions of the licensee to discharge its obligations under the fairness doctrine.

 

This is a peculiar ruling.

 

Surely the majority remembers that over the last 9 months it has taken the following investigatory actions with regard to NBC:

 

(1) On May 1, 1968 the Commission wrote NBC concerning "allegations that your broadcasts of the Hollywood Golden Globe Awards have contained substantial misrepresentations." The Commission, after investigation, concluded:

[We] believe that your Golden Globe Award broadcasts prior to 1968 substantially misled the public as to the basis on which winners were chosen and the procedures followed in choosing them, and that you were seriously delinquent in this respect. * * *

* * *

We believe that you have fallen far below the degree of responsibility which is expected of a license with respect to the matters set forth herein, and we request that you submit a statement as to future procedures to be followed with respect to this program and other programs raising comparable problems. This matter will be considered further in connection with the next application for renewal of license of your Los Angeles television station, KNBC.

F.C.C. 68-491 (1968).

 

(2) On October 9, 1968 the Commission wrote NBC concerning procedures on two of its quiz-game shows -- "PDQ" and "Hollywood Squares." The Commission concluded:

[The] public has from time to time been misled as to the procedures preceding the questioning of guest celebrities on "Hollywood Squares," and that your own procedures for prevention of improper practices on these programs has been lax.

* * *

The matters set forth above will be considered further in connection with the pending application for renewal of license of station KNBC.

F.C.C. 68-1025 (1968).

 

(3) The Commission has received numerous fairness doctrine complaints regarding NBC's coverage of the 1968 Democratic National Convention. That matter has not yet been resolved by the Commission.

 

(4) One of the charges against NBC in connection with its coverage of the Democratic Convention is the allegation that NBC employees placed a hidden microphone in a room that was subsequently used for closed platform committee meetings.

 

(5) On September 11, 1968 the Commission wrote NBC concerning possible conflicts of interest involving one of its commentators, Chet Huntley, and his comments about the Wholesome Meat Act. The Commission noted:

 

[We] find that NBC did not exercise reasonable diligence in light of information publicly available and information brought to its attention. * * *

* * *

The above record over the period stretching from 1964 to the present shows a failure to exercise reasonable diligence or to fulfill public interest requirements in this important area.

* * *

[*954] Thus, you appear to have fallen short of your responsibilities with respect to the matters set forth with regard to the Fairness Doctrine.

F.C.C. 68-931 (1968).

 

(6) On September 17, 1968 the Commission wrote NBC concerning a "Lucky Bucks" contest presented over NBC station WKYC in Cleveland, Ohio. The Commission concluded:

 

In the Eastern Broadcasting Corp. letter the Commission noted that advertising deception may result from the use of statements which are not technically false or which may even be literally true, since the only relevant consideration is the impact of the statements on the general public, including the ignorant, the unthinking, and the credulous. Applying this proposition to the instant case, the Commission is of the view that the advertisements pertaining to the WKYC "Million Dollar" contest tended to mislead the public in that they contained extravagant claims concerning the amount of money to be given away.

* * *

In view of all the circumstances of this matter, the Commission is of the opinion that the advertising pertaining to the WKYC "Million Dollar" contest fell short of the required degree of licensee responsibility. This matter will be considered further in connection with the next applications for renewal of license of stations WKYC-AM-FM.

 

F.C.C. 68-957 (1968). (The majority referred to the Eastern Broadcasting Corporation case, F.C.C. 68-768 (1968). In that case Eastern Broadcasting's license renewal was limited to a 1-year period for station WCVS, Springfield, Ill., because of a "Lucky Bucks" contest. The Commission learned of the NBC-WKYC contest only because part of Eastern's defense was that it simply duplicated a contest being run by the Cleveland, Ohio, NBC radio stations.)

 

(7) In March 1968 the Commission considered reports in a Los Angeles newspaper that a KNBC-TV crew had brought "dove" and "hawk" picket signs for use in filming a student debate at Claremont College (in the Los Angeles area). n3 NBC responded that the signs had been prepared "to depict 'sloganeering' as opposed to the type of mature debate shown on the program, or merely as colorful additions to the set." The Commission disposed of this matter without further action in a minute entry for March 20, 1968, with Commissioner Cox issuing a concurring statement joined in by Commissioners Wadsworth and Johnson.

 

n3 The slogans were "Victory in Viet Nam," "No Retreat," "Stop Communism," "End the Bombing," "Down With the Draft" and "Bring Them Home." The Los Angeles Times reported that the students complained that the signs would misrepresent student feeling on the issue and began to picket the NBC cameramen with their own signs that read "Hearst is alive and working at NBC." It also reported that the start of the debate was delayed while students heckled the NBC crew and that both speakers in the debate criticized the TV men for bringing the signs.

 

At some point this conduct by RCA-NBC, the ultimate responsible licensee, must be evaluated, whether in a renewal proceeding or a revocation action. The majority suggests in footnote 3, however, that a petition to revoke is somehow procedurally inappropriate and that the matters raised in the petition must be treated at the end of a 3-year license period. The majority is simply wrong. The Communications Act provides:

 

The Commission may revoke any station license or construction permit because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license or permit on an original application. [*955] 47 U.S.C. 312(a) (2) (1964). How else is this Commission, given its disinclination actively to oversee its licensees, to learn of changed "conditions" except from petitions to revoke? And the Act further provides that:

The Commission, at any time after the filing of such original application and during the term of any such license, may require from an applicant or licensee further written statements of fact to enable it to determine whether such original application should be granted or denied or such license revoked.

 

47 U.S.C. 309(b) (1964). This Commission's rules also provide for calling up the renewal of a license prior to its expiration date if it is "essential to the proper conduct of a hearing or investigation." 47 CFR 1.539(c) (1968).

 

In sum, the petition to revoke WNBC's license is timely, appropriate and sanctioned by Commission rules. The issues raised by petitioners fully warrant a hearing into the licensee's qualifications to continue its operation of WNBC in the public interest.

 

The majority's refusal to initiate a hearing into the licensee's qualifications is unjustified in practical fact as well as legal theory. It so happens that WNBC's petition for renewal of its license, due on March 1, 1969, has already been filed. And the majority itself states that the "significant questions" which may have been raised by petitioners "are more appropriate to a consideration of licensee's renewal application, which necessarily will involve a review of * * * actions of the licensee to discharge its obligations under the fairness doctrine." According to the majority's own reasoning; therefore, the proper time for consideration of these issues is now at hand. The Commission should order a hearing to determine whether WNBC's license ought to be revoked on the grounds raised by petitioners and others, and then consolidate this hearing with a general inquiry into WNBC's qualifications for a 3-year license renewal.

 

The majority does a disservice to the agency by suggesting that its powers somehow do not encompass the facts of this case. The problem is not weak legislative authority but a weak will to act. I dissent.

 


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