In Re Complaint by FRIENDS OF THE EARTH Concerning Fairness Doctrine Re Station WBNB-TV, New York, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
24 F.C.C.2d 743
RELEASE-NUMBER: FCC 70-862
AUGUST 5, 1970
[*743] MR. GARY SOUCIE, Friends of the Earth, 30 E. 42d Street, New York, N.Y.
DEAR MR. SOUCIE: This is in reference to the complaint filed on behalf of Friends of the Earth (FOE) on March 14, 1970, and supplements relating thereto filed March 22, 1970, and April 8, 1970, regarding the alleged failure of station WNBC-TV, New York City, to comply with the fairness doctrine or to meet its public interest obligations concerning coverage of the issue of air pollution caused by automobiles and gasoline. You urge that the Commission's opinion on the Applicability of the Fairness Doctrine to Cigarette Advertising (9 FCC 2d 921 (1967)) and the related court decision, Banzhaf v. F.C.C., 405 F. 2d 1082 (D.C. Cir. 1968), are equally applicable to automobile and gasoline commercials and that they also represent one side of a controversial issue of public importance.
Your complaint includes copies of a February 6, 1970 letter to WNBC-TV setting forth your request that the station describe the methods it proposes to utilize to meet its obligations in presenting the other side of the automobile-gasoline/air pollution issue and the February 18, 1970 reply from WNBC-TV stating that the station [**2] has fulfilled its fairness obligations on the issue of air pollution in its overall programming and declining your offer of anti-automobile/gasoline commercials.
In your March 14, 1970 complaint, you state that WNBC-TV's refusal of your request was improper and that the reasons given by WNBC-TV are based on erroneous interpretations of the applicable law and policy. WNBC-TV in its February 18, 1970 response stated its belief that the Commission's cigarette ruling n1 did not extend to automobile and gasoline commercials or the advertising of any other commercial product; that the automobile and gasoline commercials do not represent the presentation of one side of a controversial issue of public importance; and that WNBC-TV has fulfilled its fairness obligations with respect to the issue of air pollution in its overall programming and will continue to do so. WNBC noted that between [*744] November 1969 and February 1970 it had presented one documentary, two panel discussions and two news features dealing with air pollution and including the effects of automobile related pollution.
n1 Applicability of Fairness Doctrine to Cigarette Commercials, 9 FCC 2d 921 (1967), aff'd sub nom, Banzhaf v. F.C.C., 405 F. 2d 1082 (1968). [**3]
In support of your position you argue that the "public interest" standard referred to in the Commission's cigarette ruling was not limited to that product but rather that the Commission developed the standard of whether the product's "normal use has been found by Congressional and other Governmental actions to pose such a serious threat to general public health that advertising promoting such use would raise a substantial controversial issue of public importance...." n2 It is argued that governmental action on air pollution is evidenced by both presidential messages n3 and Congressional action. n4
n2 Applicability of Fairness Doctrine to Cigarette Advertising at p. 943.
n3 President Nixon's February 10, 1970 Address to Congress -- "... pollution is our most serious environmental problem." President Nixon's State of the Union message -- "The automobile is our worst polluter of air."
n4 The Clean Air Act of 1965, supplemented by the Air Quality Act of 1967 and more recently by the National Environmental Policy Act of 1969 (NEPA), Public Law 91-190, 83 Stat. 852 (1970), which requires federal agencies "to use all practical means, consistent with other essential considerations of national policy..." to "create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans." (Public Law 91-190, § 101(a)(b)) Texas Committee on Natural Resources v. U.S., (Case No. A 69 CA 119, February 5, 1970, W.D. Texas. You also cite the report to be issued by the National Air Pollution Control Administration (NAPCA) (as summarized in the Wall Street Journal of March 5, 1970) regarding the danger and prevalence of carbon monoxide (CO) pollution in urban areas and the fact that 75% of such pollution comes from motor vehicles. According to complainant, the NAPCA report will propose standards for CO emissions and possibly require stricter motor vehicle exhaust emission controls than presently exist. [**4]
The second argument advanced is that auto and gas advertisements (particularly those for large-displacement engines and lead additive gasolines) generally convey a message that such products (and necessarily the pollution they cause) are a requirement for the full rich life. The automobile commercials extol the virtues of large car size, "be a big rider," "4-barrel V-8" engines and "up to 429 cubic inches" and imply that automobiles are consonant with an unpolluted environment (e.g., by showing an automobile on a clean beach), thus, it is argued, representing one side of controversial issue of public importance -- i.e., whether in the short run the public should prefer unleaded gasoline and small-engined cars which utilize less lead additive gasoline until the auto and gas companies convert to non-polluting products.
Finally, you assert that the programs cited by WNBC-TV relating to air pollution do not fulfill the fairness obligation the station has incurred through the broadcast of innumerable automobile and gasoline commercials. This fairness obligation, you suggest, cannot be fulfilled by regular programming because of the nature and frequency of the commercial announcements. [**5] Banzhaf v. F.C.C., supra.
By letter dated June 22, 1970, the Environmental Protection Administration (EPA) of New York City strongly supported the position taken by the Friends of the Earth in its complaint. The Administration's submission set forth the pollution problems caused in New York City by autos and use of leaded gas, cites extensive supporting authority and pertinent Congressional enactments. In addition, on June 24, 1970, the Citizens for Clean Air, Inc. (CCA), [*745] submitted a telegram expressing their support for FOE's complaint and expressing that organization's willingness to provide stations with anti-pollution messages.
By letter dated July 13, 1970, NBC responded to the above letter of EPA. It reiterated its position and further stated that "WNBC-TV has presented many programs and announcements which do express the anti-pollution point of view." It attached a partial list of such programs during the first five months of 1970 and stated that in addition, "news reports in which an anti-pollution viewpoint was expressed were carried on a number of occasions, and over 200 public service announcements for anti-pollution, conservation, and other related organizations [**6] in the field of ecology or environment were carried by WNBC-TV during the first 6 months of 1970," NBC therefore urges that the public is being informed on the anti-pollution viewpoint.
Finally, by letter dated July 30, 1970, Mr. Geoffrey Cowan submitted a letter setting forth a series of recent developments bearing on the complaint (e.g., the health hazard crisis created by New York City's automobile-produced air pollution (p. 2 Letter). Mr. Cowan does not contend that WNBC-TV "has totally failed to discuss ecology", noting that it made "a particular effort to discuss the environment this spring" and in particular with the Today programming and the program, "In Which We Live". Mr Cowan's letter does assert that WNBC-TV coverage of the air pollution issue is inadequate; that "at most, one-third of the 50 programs cited by the stations had anything to do with air pollution, and only five or six of these appear to have presented even the most cursory discussion of automobile pollution." (p. 4, Letter). He further believes that "One reason for WNBC-TV's failure to discuss automobile pollution in depth is the natural reluctance to criticize the products made by some of the station's [**7] principal sources of revenue." The letter urges, inter alia, the Commission to enunciate a clear policy position which will require licensees to act in the public interest in this field.
We have reviewed the arguments presented and conclude that although no action is warranted against WNBC, a full statement of our position would be helpful to broadcasters and the public alike.
We shall first discuss the pertinent background factors and then the particular complaint here.
In the Cigarette Advertising ruling, supra, the Commission applied the fairness doctrine -- really the public interest standard (see id. at p. 927, para. 14) -- to the broadcast of cigarette commercials. We pointed out that the normal use of cigarettes had been found by the Government to be a hazard to health (e.g., Surgeon General's Reports; Congressional enactments); that broadcasters were presenting commercials urging people to smoke; and that therefore the public interest required that the public also be informed, to a significant extent, that however enjoyable smoking may be, it does represent a hazard to health. As a practical matter, this ruling resulted in the [*746] presentation of anti-smoking [**8] messages, in a reasonable ratio to the smoking commercials, including periods of maximum audience listening. See NBC, Inc., 16 FCC 2d 956.
At the time we adopted the above ruling, it was urged that it could not be limited to just one product, cigarettes; that it would logically have to be extended to many others, with the result that the present commercially based system of broadcasting would be undermined. We rejected that argument (9 FCC 2d 921, 943-945). We set forth our view that cigarettes were a unique product in this respect. We recognized of course that many advertised products have negative aspects in use. Automobiles result in many deaths each year and because their gasoline engines constitute the main source of air pollution (S. Rept. No. 91 -- 745 91st Cong. 2d Sess., p. 3), they raise most serious environmental problems. Such problems are raised by a host of other products or services -- detergents (particularly with phosphates), gasoline (especially of a leaded nature), electric power, airplanes, disposable containers, disposable containers, etc. The list could be extended greatly. We believed, however, that cigarettes are distinguishable from these products [**9] on a number of grounds that really coalesce: n5
n5 We also noted that it is the normal use of cigarettes in any amount that is hazardous -- not an abuse as in the case of automobile accidents or aspirin.
(i) Cigarette smoking does not involve a balancing of competing interests. It is a habit -- like snuff or chewing tobacco -- which can fade away and, indeed, which the Government for health reasons is urging people either not to begin or to stop at once. That is not true of the other products. As stated, they all involve ecological problems. These problems call for remedial action of varying nature, and some are certainly urgent. However, the Government is not urging people to stop now -- without any delay -- buying or using gasoline-engine automobiles, the detergents, or electricity. The benefits and detriments here are of a more complex nature, and do not permit the simplistic approach taken as to cigarettes. n6
n6 We do not by the above mean to denigrate the seriousness and urgency of the problem of gasoline-engine automobile pollution problem. Thus, we recognize that, because of weather conditions or other factors, there may be Governmental strictures on the use of automobiles in major cities. But nevertheless the problems are complex. [**10]
(ii) Indeed, because of the above consideration, we stated in our Cigarette Advertising ruling that the real question was how such a product could be promoted at all on a medium impressed with the public interest. In view of the Cigarette Labeling Act of 1965, we could not act on that question, but with the expiration of that Act, we proposed to ban cigarette advertising. See Notice of Proposed Rule Making 32 F.R. 13162. And Congress has of course acted to do so. Public Law 91-222. No one proposes to stop promoting or using the fruits of the technological revolution (e.g., to stop all use of autos or trucks); rather, we are recognizing that we must take prompt action to come to terms with the environmental effects of that technology.
(iii) Finally, action can be taken effectively in these areas, and therefore the focus should properly be on action dealing with products which contribute to pollution, not the peripheral advertising aspect. It was urged that cigarettes are a legal product, and thus there can be no question of promoting their use. To this we answered that in [*747] light of the national experience with liquor, prohibition of use of use of cigarettes might be adjudged [**11] poor policy by the Congress, but that would be all the more reason to act effectively in the areas that remained open -- namely, educational campaigns and forbidding promotion (which would undercut such campaigns). See Letter to Senator Moss, September 17, 1969, 23 FCC 2d . This consideration is not applicable to these other products or services. There could be no thriving bootlegging industry of airplanes, electric power plants, autos, detergents, etc. This means that more direct and effective Governmental action, if appropriate, is perfectly feasible. See discussion, infra, pp. 8-9.
This brings us to the gravamen of the complaint here -- that the public should be informed of the issue, as a predicate for action by elected officials. We agree fully that these environmental issues constitute issues of great importance. See, e.g., Message of President Nixon, February 10, 1970. Licensees must devote a reasonable amount of time to such issues, as a most important part of their obligation to operate in the public interest. Report on Editorializing by Broadcast Licensees, 13 FCC 1246, 1248-9 (1949). In Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 394 (1969), [**12] the Supreme Court stated:
It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern. To condition the granting or renewal of licenses on a willingness to present representative community views on controversial issues is consistent with the ends and purposes of those constitutional provisions forbidding the abridgment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.
It is up to the licensee to determine, reasonably and in good faith, the nature of its coverage of these most vital environmental issues (e.g., the format of the program; the appropriate spokesmen, etc.) Report on Editorializing by Broadcast Licensees, supra, at p. 1250. As stated, the issues are not simple ones but rather involve difficult questions concerning the steps to be taken, [**13] both short and long term, the transitional periods to be allowed, the allocation of cost among the manufacturer, consumer and government, etc. Thus, the question of pollution by the internal combustion engine has been framed in terms of emission standards (see, e.g., 1967 Clean Air Act; 1968 rule by the National Air Pollution Control Administration of HEW, 33 Fed. Reg. 8304; or, in view of the increasing number of cars, of the eventual development of "a new [propulsion] system which... produces few pollutants and performs as well or better than the present power plant" (S. Rept. No. 91-745, 91st Cong., 2d Sess., p. 4; e.g., the gas turbine engine; steam (Rankine cycle) engine). The short-term solution also poses complex issues. Since we are not expert in this field, we simply note that there are several approaches besides the one urged here by complainants (e. g, emissions standards, with periodic inspections; restriction on use of automobile, etc.). Further, the pollution issues of several products are often interrelated. Thus, it has been stated that elimination of phosphates from detergents will not be effective if steps [*748] are not taken concurrently with respect to sewage, etc., [**14] (e.g., Joshua Lederberg, Washington Post, June 6, 1970, p. A 15). Coverage by programs tailored to illuminate these aspects is clearly called for. In this connection, the matter again differs from the cigarette area, where it was appropriate, and indeed fair, simply to track the cigarette advertisements with announcements calling attention to the fact that cigarettes are the main cause of such diseases as lung cancer, emphysema, and chronic bronchitis. See Federal Trade Commission Notice, 29 F.R. 8325.
This last citation points up again the distinctions between the cigarette and these products. Were they the same, as urged by complainant, then we would be requiring each advertisement to contain the warning to the public of the health hazard. There is clearly no more effective way to proceed, and indeed, with a matter such as cigarettes, it is the only appropriate way -- that since the public is being urged to consume a hazardous product (e.g., main cause of lung cancer, etc.), that it be informed, both in the advertising and labelling, of the hazard. n7 Complaintifs do not urge this, presumably because it would spell the end of all these product commercials. Indeed, we stress [**15] again that were the two matters really the same, we would be proposing to ban promotion of these high-powered automobiles or leaded gasoline, since that is our stated view as to cigarettes. See Notice of Proposed Rule Making in Docket No. 18434, 32 F.R. 13162. Significantly, complainants do not request such a ban, thus tacitly recognizing that there is a significant difference.
n7 Only passage of the Cigarette Labelling Act of 1965 prevented effectuation of such an administrative requirement. Indeed, what complainant does not recognize is that the cigarette fairness ruling was a stop-gap requirement until termination of the 1965 Act. See para. 31, Cigarette Fairness ruling 9 FCC 2d 921.
From the foregoing, our conclusion on the complaint now before us is clear. There is the threshold issue whether these commercials, which are essentially advertising slogans, such as "Dodge Rebellion" or "Ford has a better idea," "Quick start in cold weather," or "put a tiger in your tank," present one side of a controversial issue in this complex field. Further, complainant in effect calls for ascertainment of the number of commercials promoting high-powered cars, the number promoting [**16] the smaller cars, the number and nature of the programs dealing with the issue of air pollution stemming from the gasoline engine automobile, n8 and then a judgment whether the difference in time, as between the large and small cars, is sufficiently great to call for the presentation of further time to the side which the complainant espouses. We have no such information before us, but we decline in any event to extend the cigarette advertising ruling to these other products. We believe, for the reasons set forth previously, that we should adhere to our previous judgment that cigarettes are a unique product, permitting the simplistic approach adopted in that field.
n8 We also take note that, unlike cigarettes, some gasoline commercials increasingly do urge the use of gas which is less polluting.
However, even assuming that we are wrong in that belief, we would not extend the ruling generally to the field of product advertising. That is what, in effect, complainant urges since, as stated, a great many products have some adverse ecological effects. Were we to adopt a [*749] scheme of announcements tracking in a significant ratio the ordinary product commercials, the result would [**17] be the undermining of the present system, based as it is on such commercials. Such a result is not consistent with the public interest. It is not required, since there is the alternative of providing advertiser-supported programming, valued by the public, by means of the product commercial, and at the same time affording appropriate time for discussion of these vitally important issues. In short, our action must be guided by one standard, important issues. In short, our action must be guided by one standard, the public interest (Sec. 303(g) of the Communications Act; NBC v. U.S., 319 U.S. 119 (1934)), and on that standard, extension of the cigarette ruling is not in order.
In so stating, we fully recognize that the public interest standard must take into account public health (Banzhaf v. F.C.C., 405 F. 2d 1082, 1096 (CADC 1969)), and specifically the environmental pollution aspects of public health. See National Environmental Policy Act of 1969, 83 Stat. 852, setting forth the "... continuing policy of the Federal Government to use all practicable means and measures in a manner calculated... to create and maintain conditions under which man and nature can exist in productive [**18] harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans" (Section 101(a)). The act further states that "to the fullest extent possible... the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act" (Section 102). We believe that our action today does so, and that for the reasons set forth in this opinion, it is Red Lion -- not the cigarette advertising ruling -- which should be followed here as the best means of fulfilling our obligations under the 1969 Act.
We wish to emphasize that our ruling is restricted to the general product advertisement (e.g., "Join the Dodge Rebellion," "Put a Tiger in your tank," etc.). Obviously, a commercial could deal directly with an issue of public importance; if so, the fairness doctrine is fully applicable.
We also recognize that regulation of commercials may be a device used in a government campaign against pollution. As stated in point (iii), p. 4 supra), it would appear that if, for example, recycling makes sense, the Government would simply move to require such recycling in place of disposable [**19] containers; if detergents with enzymes or phosphates should not be sold, such products should be banned after a specified date (e.g., the Canadian law on detergents with a specific amount of phosphates -- the New York Times, August 2, 1970, p. 26.); if only automobiles with engines of a certain size should be shipped or sold, that can readily be specified. However, we are not the experts here. It may be that a program of limiting advertising on the basis of pollution considerations would also be a helpful, transitional tool, just as taxation is apparently being proposed. See, e.g., President's Message on new taxes on non-leaded gasoline, February 10, 1970. If so, here again the matter is one for consideration by the Congress -- not this agency which is not, and cannot be, the arbiter of such matters. And any decision made could then be applied across-the-board. This is not only a fairer way to handle the matter (see Letter to Senator [*750] Moss, September 17, 1969, supra) but also avoids the danger that restricted to one medium, there is the substantial possibility of a corresponding increase in promotion in the other media, in order to offset the restriction. We would of course [**20] assist fully in the implementation in the broadcast field of any decision made by an agency appropriately authorized by the Congress to act in this respect.
Finally, we shall comment briefly on the contention that this preserves the commercial broadcast system, when the issue in question is whether life will be preserved -- whether there will be anyone to tune in the commercial broadcasts. First, our action is logically and clearly called for, since the commercial broadcast network facilitates public focus on these great issues. If that system is undermined, it does not promote solution of our environmental problems -- rather, it would work against such solution by eliminating or crippling a most important information device. But all this means that the device must be used to inform -- that it must fully and effectively meet its Red Lion obligations. To give but one example, the Washington Evening Star of May 29, 1970, p. A-14, quotes the following Congressional testimony of Mr. Russell E. Train, the chairman of the President's Council on Environment Quality,
The supersonic transport will fly at an altitude between 60,000 and 70,000 feet. It will place into this part of the [**21] earth's atmosphere quantities of water, carbon dioxide, nitrogen oxide and particular matter... A fleet of 500 American SSTs and Concords flying in this region of the atmosphere could, over a period of years, increase the water content by as much as 50 to 100 percent... "Water in this part of the atmosphere can have two effects of practical significance. First it would affect the balance of heat in the entire atmosphere leading to a warmer surface temperature... Secondly, water vapor would react so as to destroy some fraction of the ozone that is resident in this part of the atmosphere. The practical consequences of such a disruption could be that the shielding capacity of the atmosphere to penetrating and potentially dangerous ultraviolet radiation is decreased.
We cite the above only as a recent example of an environmental issue (see also The New York Times, August 2, 1970, p. 1); we could have referred to the mercury crises or the metallic pollution problem. We do not know if Mr. Train is correct or not, or whether the SST should not be authorized. Clearly, however, this is an issue of public importance which must be resolved. Broadcasters must discharge their public [**22] trust by contributing fairly and effectively to an informed electorate on these vital issues.
In sum, we decline to extend the cigarette rulings to these products commercials, and specifically hold that it would be inconsistent with the public interest to ban these commercials, have them contain health hazard announcements, or require announcements geared in some ratio to these ordinary product commercials. On the other hand, the broadcaster does have an obligation to inform the public to a substantial extent on these important issues, including prime time periods. While we have stressed that the broadcaster has large discretion in choosing and covering controversial issues of public importance, it would be no more reasonable for broadcasting to ignore these burning issues of the seventies -- which may determine the quality of life for decades or [*751] centuries to come -- than it would be to ignore the issue of Vietnam or the issue of racial unrest in communities racked by this problem. n9
n9 Of course, the broadcast licensee retains discretion as to issues, format, appropriate spokesmen, etc. Thus, a broadcaster located in an area with no air pollution issue but a severe water pollution one would clearly focus on the latter. Another, such as in New York City, would be confronted with public issues in both respects. In short, there remain wide areas for judgment by the licensee, based upon the facts of his particular area. [**23]
It is not necessary to peg the above obligation on the fact that the broadcaster is carrying these product commercials and therefore should reasonably inform his public concerning associated environmental issues. For, under Red Lion he must do so, whether or not he carries the commercials. DDT or mercury compounds are rarely, if ever, advertised, but that does not mean that the public should be uninformed if there is a crucial controversial issue raised by their use. If, after cigarette advertising ends on broadcast media, cigarette smoking continues to cause a rising epidemic of death, the broadcaster cannot ignore discussion of the public health matter raised by that epidemic. In the words of the Court in Red Lion, "it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount" (395 U.S. at 389).
The foregoing is, we believe, responsive to the request that we enunciate clearly the public interest considerations applicable to this field (see Cowan Letter, p. 4). We shall also deal briefly with two other matters raised in that letter. The first deals with the charge that WNBC-TV is not properly covering the air pollution issue because [**24] of its support from automobile and gasoline advertisers. There is no support for this charge. The one recent episode cited (the NBC Migrant Workers programs) is under study by the Commission, and further comment is inappropriate. We note, however, that the networks are to be commended for this type of broadcast (e.g., the CBS "Harvest of Shame"; the recent NBC Migrant Workers program). For, these programs typify the commitment to "robust, wide-open debate" upon which this nation depends. They do not constitute simply a measured, careful assessment of where other entities or public opinion are, but rather demonstrate a devotion to leadership -- to breaking open forcefully, effectively, and fairly issues of great importance. It goes without saying that this kind of effort is called for, whatever the effect on the broadcast media advertiser.
Second, the Cowan letter challenges the adequacy of the WNBC-TV efforts in this area of air pollution. But NBC submitted only an example showing in this area, and that showing does indicate significant coverage of the issue. In any event, this is an area which would be explored, upon appropriate complaint and showing, at renewal time, where [**25] the licensee could demonstrate its overall record in this respect -- the discharge of his obligation to devote a reasonable amount of time to controversial issues. In short, this matter is not appropriately before us at this time, and we therefore restrict our ruling to the fairness doctrine issue presented.
On that issue, we hold that the licensee could reasonably reject the announcement approach sought by you, and that on the basis of the information presented, no further Commission action is warranted.
[*752] Commissioner Bartley concurring in the result; Commissioner Johnson dissenting and issuing a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
"The automobile is our worst polluter of the air."
-- PRESIDENT NIXON, State of the Union (1970).
This license certifies
That Ron Padgett may tell whatever lies
His heart desires
Until it expires
-- RON PADGETT, Columbia University Forum (Spring 1970).
This question today is a crucial one for American commercial television. Will we allow the little glass screen in our living rooms to go merrily on its way merchandising the machines [**26] and mechanisms that pour thousands of pounds of pure poison in our sky every day? Or will American television of once put fantasies aside, pull its head out of the smog, and put the most potent merchandising tool yet developed by man -- the spot advertisement -- to work in curing instead of creating, in addressing rather avoiding, one of America's greatest social ills: Pollution.
I find it ironic, if not said, that America can invest so much stock faith and rhetoric in the "magic" of the competitive marketplace of commerce, and yet ignore the "marketplace of ideas" (to use a phrase by Mr. Justice Holmes) by tolerating a monopoly used to merchandise Detroit's peculiar dreams of the appropriate automotive life-style -- with all that life-style's attendant social ills. In perhaps one of the great advertising overkills of all time, Americans are being grossly oversold an automotive product and life-style they neither need nor may really want, and which may eventually kill them with its exhaust by-products. In effect, the Commission again rules that Americans have no right to talk back to their television sets -- at least on this issue. I dissent.
We begin with our cigarette [**27] decision, Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921 (1969), and related court decisions, e.g., Banzhaf v. F.C.C., 405 F.2d 1082 (D.C. Cir. 1968). Using law and logic stemming from these rulings, the Friends of the Earth compellingly argue that the refusal of WNBC-TV, Net York City, to provide Friends with an opportunity to present anti-pollution spot advertisement violates the Fairness Doctrine. The majority up-holds [*753] WNBC's refusal. The flaw in the Commission's thinking is readily revealed in the simple way the majority occasionally refers to these complaints -- as "anti-automobile/gasoline commercials." That is only a small part of the truth, a distorted part at that. Friends of the Earth are anti-pollution, not just anti-car or anti-gas, and that simple yet fundamental distinction should be born in mind in attempting to deal with all the arguments here.
The majority labors long and hard to distinguish cigarettes from other products, including detergents, tin cans, and gasoline engines. The argument rests on elaborate contentions that cigarettes are so unique the Fairness Doctrine cannot apply to other "product commercials." Before turning [**28] to a more detailed analysis of the majority's points, it is well to bear in mind former Commission Loevinger's view. In his concurring opinion in the cigarette case, Commissioner Loevinger pointed out that cigarette smoking and automobile pollution pose closely analogous issues. He said:
The Commission will be hard pressed to find a rational basis for holding that cigarettes differ from all other hazards to life and health. Contrary to the argument in the Commission opinion (para. 46), the normal use of automobiles does pose a health hazard, polluting the atmosphere to a degree that is dangerous not only to those using the automobiles but, even worse, in some localities to everyone, including infants and invalids. Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921, 954 (1967).
If the analogy was strong in 1967, it is far stronger today.
So far as I can make out, the majority first argues that because cigarettes are a "unique" product, there are logical reasons for not extending the fairness doctrine to other products. Yet the logic of this position is clearly faulty. The question is not whether pollution of the lung differs from pollution [**29] of the air, or whether the products are manufactured or used differently, but whether advocacy of their use raises an issue of controversy and public importance sufficient to invoke the fairness doctrine. The majority's attempt to distinguish cigarettes from automobiles, therefore, is in fact a rather enormous non sequitur. There are no doubt many interesting differences between the two products, but so what" This fault in reasoning appears more clearly in the three points used by the majority to support it product distinction:
(1) "Cigarette smoking does not involve a balancing of competing interests. It is a habit -- like snuff or chewing tobacco -- which can fade away...." Yet this is not true of other products, the majority maintains. First, it seems this argument is untrue. The nicotine in tobacco smoke creates in smokers a habitual and physical dependence on tobacco. Heavy smokers can "kick the habit," but it usually takes great effort of will. The anti-smoking announcements are designed to warn smokers and non-smokers of the dangers of addiction. Yet the contemporary American is wedded to automobile pollution by even stronger bonds of necessity and lack of choice. [**30] How could an individual "kick the pollution habit" if he wanted to? Most people depend [*754] on automobiles for transportation essential to their livelihood. Many might prefer to purchase pollution-free automobiles, but Detroit has simply not given them this choice. Individuals wanting to eliminate both air and lung pollution, therefore, could give up both cigarettes and automobiles. There are, after all, alternatives to automobiles -- new rapid transit systems, subways, electric automobile engines, bicycle riding, and plain old walking. n1 But that task is a difficult one. The issue here is whether the highway and oil lobbies we hear so much from on our television set will permit us to hear of the alternatives. Second, I fail to see the force of this argument. What difference does it make if cigarettes involve "habits" and automobiles do not? The question before the Commission is whether advocacy of their use invokes the Fairness Doctrine. Pay-TV, for example, may be a controversial issue of public importance in certain areas, see, e.g., The Spartan Radiocasting Co., 33 F.C.C. 765 (1962), yet it does not become so because it is "habit forming"!
n1 For a timely, thorough analysis of just how distorted our national transportation priorities are, see Leavitt, Superhighway -- Superhoax (1970). The book details the quiet scandal in the nation's Interstate Highway system, a scandal that has cost the nation dearly in the legging development of alternative modes of transportation.
Consider this portion of a Washington Post editorial, titled "20 Billion a Year for Highways?":
"On the Senate floor one day last month, Senator Randolph tossed off a piece of information that each member of Congress and each taxpayer ought to ponder for a while. 'State highway officials, through their nationwide organization,' he said, 'estimate that the national highway needs for the next 15 years will cost $320 billion.'
"We've gotten so uses to talking about billions -- a federal debt that approaches $400 billion, a defense budget of around $80 billion -- that the size of this figure is hard to grasp. But $320 billion is enough money for the government to buy all the railroads in the country, repair their roadbeds, fill all of their needs for new equipment, operate their passenger and commuter trains without charge to the riders for the next 15 years, and still have a big kitty left over. Looked at another way, $320 billion is enough to buy every man, woman and child in the United States a new television set on each January 1 for the next 15 years. Washington Post, July 20, 1970, at A22, col. 1."
Consider also this portion of a New York Times editorial, titled "How Livable the City?":
"Perhaps the only thing absolutely clear in the recent smog was the idiocy of present priorities. Too much Federal revenue goes for war-related purposes, too little to meet domestic needs. Even in the nonmilitary sphere, there is distortion. The typical urban taxpayer -- the father of two, making $10,000 a year -- paid $19 for space exploration last year and only $1 for mass transportation. This taxpayer paid $26 for more Federal highways to accommodate more automobiles and only $4 to fight pollution of both the air and water. N.Y. Times, Aug. 4, 1970, at 28, col. 1." [**31]
(2) The majority appears to argue further that the Commission could consider (and has considered) a ban on all cigarette advertising, but no one would think of rolling back the technological revolution to "stop all use of autos and trucks." This argument is illogical, wrong, and a non sequitur. It is illogical because it improperly analogizes cigarette advertising with automobile use. The analogy, if there is one, is a possible ban on automobile advertising. Further, the argument in any event is wrong -- for Friends of the Earth do not propose the elimination of either automobiles or automobile advertising. They merely claim their right to present a contrary view. Finally, the argument involves a non sequitur -- for even if it were true that we could not ban the automobile (which it most certainly is not -- particularly if the only alternative was death for the human race), we could certainly tolerate the view that our society is endangered by the automobile, and that we should work toward alternative forms of transportation. n2 The issue, therefore, is the freedom to express differing [*755] views on air pollution, not abolition of automobiles or their promotion. Friends of the [**32] Earth seek only to use the public airwaves to help the people get their sky back.
n2 Banning automobiles, at least partially, is an idea not without merit. Environmental Action, the conservationist group that sponsored Earth Day last April, has suggested as much. Environmental Action has urged mayors of five major American cities (including New York City and Washington, D.C.) to ban cars from special "pollution-free" downtown areas. Washington Post, Aug. 4, 1970, at A3, col. 1. Such a suggestion hardly seems radical when one considers the dangerous cesspool of air that hung over the entire Eastern Seaboard for several days in late July and early August 1970. "The bread we threw out on the water now returns to us," one newspaper editorialized. "It is true that abnormal weather in the form of a mess of warm air that won't move on is a major weave in the blanket of pollution now covering us. But we cannot blame the fickleness of nature for this mess: it is man-made, largely by the exhaust fumes from automobiles and buses, according to local officials." Washington Post, July 30, 1970, at A20, col. 1.
(3) The majority says the "focus should properly be on action, not the peripheral [**33] advertising aspects." Here again the majority attempts to deny the special, rather incredible impact of automobile spot advertising and its impetus to consumer "action" as a marketing tool. The majority contends that the anti-pollution drive has been sufficiently aired in regular news and public affairs programming. Yet the special effects of advertising cannot fairly be ignored. Advertising is hardly "peripheral." It is crucial. It has contributed enormously to our "automobile age," and is central to the problem at issue here.
There are a number of factors that should be weighted in determining whether a licensee has given "significant" coverage to various views. First, an important factor is the frequency and regularity of presentation. The Commission has explicitly recognized this factor in its decision, Cigarette Advertising, 9 F.C.C. 2d 921, 941 (1967):
We think that the frequency of the presentation of one side of the controversy is a factor appropriately to be considered in our administration of the Fairness Doctrine... For, while the Fairness Doctrine does not contemplate "equal time" if the presentation of one side of the issue is on a regular and continual basis, [**34] fairness and the right of the public adequately to be informed compels the conclusion that there must be some regularity in the presentation of the other side of the issues.
In affirming this ruling, the U.S. Court of Appeals in Banzhaf v. FCC, 405 F.2d 1099 (D.C. Cir. 1968), was even more explicit:
In these circumstances, the Commission could reasonably determine that news broadcasts, private and governmental educational programs, the information provided by other media... inadequately inform the public of the extent to which its life and health are most probably in jeopardy. The mere fact that information is available, or even that it is actually heard or read, does not mean that it is effectively understood. A man who hears a hundred "yeses" for each "no," when the actual odds lie heavily the other way, cannot be realistically deemed adequately informed. [Emphasis supplied]
Second, even if the licensee has satisfied the fairness doctrine under traditional analyses, I think we must recognize the unusually powerful impact of spot advertising as compared to normal news coverage. Prepared spot announcements should be placed in a class by themselves -- a proposition acknowledged [**35] by FCC Chairman Dean Burch with respect to political advertising. Voters' Time, Twentieth Century Fund Commission on Campaign Costs in the Electronic Ela, p. 15 (New York 1969); Statement of Chairman Dean Burch, Subcommittee on Communications and Power of the House Committee on Interstate and Foreign Commerce, June 2, 1970. The spots in question invoke the familiar Madison Avenue techniques: the enticements of glamour and excitement ("Be a Big Rider!"); the allure of travel [*756] and faraway places; the invocation of an ethic of masculinity; pleasant surroundings often out of more usual contexts (by showing an automobile on a clean beach); and the reassuring appearances of well-known, pleasant-looking personalities to intone the blandishments prepared by the manipulation specialists. Petitioners seek only to present an alternative to the siren call of the oil and auto establishments. This the majority has refused them.
The ultimate rationale for denying the complaints here is that, to use the majority's language, "the result would be the undermining of the present system [of American television], based as it is on the product commercials. Such a result is not consistent with [**36] the public interest." I cannot believe that the majority finds it more important to preserve the commercial broadcast system than life itself on our planet. Yet this may be the result of their action. Philip Slater has written in his recent book, The Pursuit of Loneliness -- American Culture at the Breaking Point, that the "old culture" in America "tends to give preference to property rights over personal rights, technological requirements over human needs,... the producer over the consumer, [and] means over ends...." Nothing better places the Commission majority in the "old culture" than today's decision.
Once again, the majority has successfully seized and wrestled to the ground a phantom issue of its own creation. It rationale, therefore, can hardly be taken seriously. Can anyone seriously believe that the presentation of a few anti-pollution spot advertisements will destroy the "American System of Broadcasting"? One would expect this argument from Broadcasting magazine and other trade publications, but not the Federal Communications Commission. After all, did anti-smoking commercials bring about the end of American commercial broadcasting? Of course not. (I sometimes [**37] suspect the broadcasting industry itself could ban all cigarette and automobile commercials, as well as a dozen other types, and still fund its entire operations on soap, deodorant and detergent commercials alone.) In any event, the majority has not shown that the gravamen of its decision -- preservation of "the present [television] system" -- is even an issue here. We have no economic information whatsoever on the cost impact of anti-automobile advertisements. Without this, I must dismiss the majority's artificial fears as illusory.
We must not lose sight of what is fundamentally at issue here: whether our citizens should be told the whole truth about the products they use and consume. Is this not the bedrock of American competitive enterprise and consumer choice in the marketplace? How can such an un-American position be urged by an agency of our government? For an intelligent contemporary consumer to be free and independent (so the magic of the free enterprise marketplace can play its supposed role), the consumer must the fully informed on all aspects of his purchases.
American television's "cop-out" is apparent. Working hand in glove with the industrial machine it supports [**38] and by which it is supported, it [*757] shows us only half the commercial picture, and always the glamorous half. Where are the warts, the wrinkles? They, too, are an important part of reality. What the majority really says today is that our present system of commercial television depends for its livelihood on duping the American consumer into buying faulty products n3 he may not need, for reasons unrelated to their merits, that may indeed be literally killing him.
n3 The National Air Pollution Control Administration (NAPCA) has just learned from new testing procedures that new cars emit twice as much carbon monoxide and hydrocarbons as permitted by federal law. And according to Representative Paul Rogers, American consumers have paid roughly $1.5 billion for pollution control systems on 30 million new cars (certified in compliance by the NAPCA) since 1967. Automobile commercials during those years, therefore, have been inherently deceptive, failing to warn consumers that the products advertised do not comply with federal law and do not effectively combat air pollution. See generally, Washington Post, July 15, 1970, p. A-2, cols. 1-2.
The majority argues that it is necessary [**39] for this Commission to keep its heavy hand out of programming decisions, and, in general, I agree. The majority would subject the broadcaster to review against the public interest standard only every three years at renewal time. But our system of commercial television must tell its consumers the whole truth, not just a part of it. Otherwise, that FCC license to use the public's airwaves becomes like Ron Padgett's "Poetic License":
This license certifies
That Ron Padgett may tell whatever lies
His heart desires
Until it expires
Is this what Congress intended the "public interest" to mean: is an FCC license to be a license to lie as much as desired until the license expires?
The truth is far more subtle than that. This Commission needs to relearn the First Amendment lessons Professor Thomas I. Emerson of Yale has been trying to teach:
Human judgment is a frail thing. It may err in being subject to emotion, prejudice or personal interest. It suffers from lack of information and insight, or inadequate thinking. It can seldom rest at the point any single person carries it, but must always remain in complete and subject to further extension, refinement, rejection or modification. [**40] Hence an individual who seeks knowledge and truth must hear all sides of the question, especially as presented by those who feel strongly and argue militantly for a different view. Emerson, Toward a General Theory of the First Amendment 7 (Vintage Ed. 1963).
This fundamental truth the Commission today, once again, denies.
Finally, the unstated -- or only partially articulated -- premise from which the majority proceeds might be called the "Hit Parade" argument. It goes like this. If the Commission decrees that all licensees must carry programs dealing with pollution, persons holding strong views on many other issues inevitably will seek access to the Commission's "Hit Parade," and the Commission will find itself in the unfortunate position of deciding which issues are important and which are not, thus assuming the very role of arbiter of programming which the Commission has always disclaimed.
[*758] It is important to recognize that what issues gain access to this list and why is basically beyond the Commission's powers. Who decides? The people do. The people decide through their proxies, the President, the Congress, and numerous public commission and bodies that, as here, [**41] have defined what are today's "controversial issues of public importance." The majority itself cites much of this qualifying evidence. President Nixon, in his February 10, 1970 address to Congress, said pollution "is our most serious environmental problem." Witness also the Clean Air Act of 1965, supplemented by the Air Quality Act of 1967 and more recently by the National Environmental Policy Act of 1969 (NEPA), P.L. 91-190, 83 State. 852 (1970), which requires Federal agencies "to use all practicable means, consistent with other essential considerations of national policy..." to "create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic and other requirements of present and future generations of Americans." How can the FCC present and future generations of Americans." How can the FCC ostensibly a "federal agency," square today's decision with that Act?
The Commission turns aside the pleas of Friends of the Earth, the Environmental Protection Administration of New York City, and Citizens for Clean Air, Inc., three public interest groups who have filed some of the more thoughtful and impressively documented petitions [**42] ever received by this Commission. These groups see at stake here nothing less than the quality of life in contemporary America. The Commission's vision, through the smog it has helped create, is not as good. It is sad and somewhat disheartening that this Commission holds dearer the quantity to commercial profits than the quality of human life itself.