In Re Complaint by Hon. H. CLARK BELL, ALBANY, N.Y. Concerning Fairness Doctrine Re Station WKNY
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 38
JANUARY 23, 1970
[*38] Hon. H. CLARK BELL, New York Assembly, Albany, N.Y.
DEAR MR. BELL: This is in reference to your complaint against radio station WKNY, Kingston, N.Y., made initially in your letter of June 11, 1969. The letter stated it had been reported to you that during call-in programs broadcast over WKNY on June 4 and 5, 1969, there was discussion "indicating that a Mr. Bell requested or was paid the sum of $200 as a condition precedent to securing employment for a member of the community." You stated that you are the Ulster County assemblyman and, "in the minds of some people in the community," there was little doubt that the moderator was attempting to slur you. Thereafter, by telephone, telegram, and letter you requested WKNY's vice president and general manager, Lawrence Swars, to send you tapes of the two broadcasts, and you were told the station's tape recorders had malfunctioned during those broadcasts so that tapes were not available. You were also told you and all other people named Bell in the Kingston radio listening area would be sent copies of a deposition by the moderator of the questioned programs which would give the substance of the alleged remarks.
Copies of the deposition and letter sent by the station to all people named Bell, in the area, which you enclosed with your June 11, 1969 letter, show that the deposition summarized part of the June 4 broadcast (saying it included a charge that someone, identified only as Mr. Bell, had required a job seeker to pay him $200 to obtain a political position) and that the letter, dated June 9, 1969, said "Since we at WKNY believe this to be a general indictment of all people named Bell, you are being informed of your rights to request equal time should you desire to make a statement."
Mr. Swars stated in a letter to the Commission, dated July 8, 1969, that he sent the letter and deposition to 31 people named Bell listed in the local telephone book. He stated, also, that no mention of Mr. Bell was made on June 5, and that therefore no transcript or deposition referring to that date's programming would be sent.
After receiving your response to the station's letter, the Commission determined that further information was necessary, and several specific inquiries were addressed to the station. By letter of September 16, 1969, Mr. Swars, on behalf of the station, confirmed that no tape or [*39] transcript was available of either the June 4 or June 5 programs; that the moderator's affidavit accurately summarized the June 4 program; that the "Mr. Bell" was not identified in any way and that Mr. Douglas Dye, a member of the Ulster County Legislature, who was the guest on the June 4 program, confirmed that fact; that the June 5 program made no direct or indirect reference to Mr. Bell; and that you had, in fact, been offered time to respond (a copy of the station's letter to you was enclosed). In addition, Mr. Swars stated that prior to your complaint, it was not felt that there was an identifiable Mr. Bell to notify and, thereafter, that absent real identification, it was a wise precaution to notify and offer time to all Bells in the area. The latter step was taken, he said, without "though or intention to give circulation to an attack upon any specific Mr. Bell."
In your October 28, 1969 letter of reply, in addition to questioning further the accuracy of some of the station's statements and the motivation for various actions taken, you strongly urged the Commission to adopt rules requiring stations to make and retain tapes of call-in programs to avoid questions about what is said on them. You further allege that the station would not have notified you or offered you time had you not made a complaint and that sending you the summary and offer of time on June 9, 1969, did not comply with the Commission's personal attack rules. As you may know, section 73.123(a) of the Commission's Rules concerning personal attacks provides as follows:
§ 73.123 Personal attacks; political editorials.
(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.
In the present case, station WKNY has indicated that in its judgment there was no real identification of the Mr. Bell referred to on the program so as to bring it within the purview of the Commission's rules. Based upon the facts which we have before us, we are unable to find that this judgment by the licensee was unreasonable.
More important, when you did complain about the broadcast in question, the station did, in fact, send to you within 7 days of the broadcast, as required by the rules, an affidavit summarizing the attack and an offer for you to respond over the station. We appreciate your concern with the fact that the station also notified and offered time "to all of the other Bells living within the area." While it is possible, of course, to sympathize with your quarrel about the station's decision concerning either the necessity or wisdom of notifying all the Bells, we cannot find under all the circumstances that this action was motivated by malice or intent to ridicule you. In this connection we note that there is no indication that the station gave any publication to the fact that it was notifying all the Bells in the area.
We would also point out that the broadcast in question occurred on June 4, 1969, which was during the period in which the Commission had publicly announced, as a result of a decision of the Court of Appeals [*40] for the Seventh Circuit invalidating the personal attack rules, it would not impose sanctions for violations of the rules pending the decision upon further review in the Supreme Court. That period ended with the Supreme Court decision of June 9, 1969, in the Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, upholding the Commission's rules.
In light of all of the foregoing considerations, and particularly the station's offer to you of time to respond, we have concluded that this is not an appropriate case for the imposition of further sanctions.
Finally, we appreciate your thoughtful suggestion that the Commission make it a requirement that stations make tapes of call-in programs and keep them available. We recognize considerable merit in this suggestion and it will receive consideration although you will appreciate that there are countervailing factors which must be taken into account.
WILLIAM B. RAY, Chief, Complaints and Compliance Division, Broadcast Bureau.