In Re Complaint by AMALGAMATED MEAT CUTTERS AND BUTCHER WORKMEN OF NORTH AMERICA
Concerning Fairness Doctrine
Re Station WCNH, Quincy, Fla.
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 279
RELEASE-NUMBER: FCC 70-915
AUGUST 26, 1970
[*279] Mr. W. S. DODSON, President, Big Bend Broadcasting Corp., Quincy, Fla.
DEAR MR. DODSON: This letter deals with the complaint of the Amalgamated Meat Cutters and Butcher Workmen of North America (Amalgamated) that Station WCNH, improperly refused to carry paid spot announcements which would have informed the community of the union's position, concerning a strike against Suber-Edwards, a packing company located in Quincy and selling products under the brand name, "Frosty Morn." The essential facts as to the dispute are set forth in the union's letters of June 19, 1969, June 30, 1969, and January 16, 1970, and your letters of July 28, 1969 and November 13, 1969.
Amalgamated requested that WCNH carry a series of spot announcements, which would have informed listeners of the strike and reasons therefore and urged a boycott of "Frosty Morn" products. Amalgamated argued the access to radio was particularly called for in view of the local newspaper's refusal to take its advertisements, an ordinance against distributing leaflets, and the fact that the station was carrying advertisements promoting the purchase of "Frosty Morn" products. You stated that you rejected the proffered spots because of your judgment that the matter was not of sufficient importance to your listeners, that you noted the commencement of the strike on your news broadcasts and will cover any new developments as they occur, but that it did not warrant greater coverage, as "is evidenced by the fact that what is involved here is an internal dispute between management and labor, affecting less than 100 people in a town of approximately 10,000 and a county with a population of over 45,000" (letter of July 29, 1969, page 4). You further stated that if you "... felt this of major consequence to [your] listeners, [you] would try to present both sides of the dispute at no cost to either party" (page 1, letter of November 13, 1969).
The correspondence also makes clear that there was another ground for the rejection -- namely, that you believed it inappropriate to carry boycott messages because they were not "constructive." Thus, you [*280] stated that you advised the union representative as follows: "We're here as a radio station to try to build up the community and its economy, not to tear it down... I don't see how I can go on the air with messages that urge boycott of valid, federally inspected food products... The spots would only have a derogatory effect, if any, on the labor dispute and the community at large." (Letter of November 13, 1969.)
First, we hold that based on the information before us, we cannot find that you have acted unreasonably in refusing to give more than normal news coverage to the strike. The licensee is called upon to make reasonable judgments as to what matters constitute controversial issues of public importance and what type of coverage and amount of time is to be afforded such issues. Report on Editorializing by Broadcast Licensees, 13 FCC 1246, 1251 (1949). The judgment of the licensee must be a reasonable, good faith one. Here you have made such a judgment, set out your grounds therefore, and the complainant has not shown that the judgment is an arbitrary one.
In this connection, we have noted Amalgamated's argument that WCNH is carrying commercials advertising "Frosty Morn" products. The foregoing conclusion on the threshold question of controversial issue of public importance is determinative in this respect also. However, we would also point out that in any event, regular advertising of commercial products such as here involved does not fall within the scope of the fairness doctrine. The one exception, cigarette advertising, has been specifically limited to that particular product for the reasons stated in In the Matter of Television Station WCBS-TV (Applicability of the Fairness Doctrine to Cigarette Advertising) 8 FCC 2d 381, 9 FCC 2d 921, 943 (1967). The Court, in affirming our ruling, noted that it was not authorizing the Commission "to scan the horizon for offensive material..." Banzhaf v. F.C.C., 132 U.S. App. D.C. 14, 31, 405 F. 2d 1082, certiorari denied, 395 U.S. 973. It would, we believe, be chaotic and destructive of the base of commercial broadcasting to hold that regular advertising, without more, presented fairness issues entitling parties to present their viewpoints on pollution, safety aspects, boycotts, etc. See Letter to Gary Soucie, Friends of the Earth, FCC 70-862, August 5, 1970.
We are not saying that these issues may be ignored by the broadcaster. On the contrary, he is required to devote a reasonable amount of time to the coverage of issues of public importance. Report on Editorializing by Broadcast Licensees, supra, at page 1251. It is for that reason -- the contribution which broadcasting can make to an informed public -- that we have allocated so much valuable spectrum space to broadcasting. The Supreme Court in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 394 (1969), specifically said that "... licensees given the privilege of using scarce radio frequencies as proxies for the entire community, [are] obligated to give suitable time and attention to matters of great public concern."
This brings us to the final point -- the second ground stated by you as a basis for rejecting the spot announcements, that is, that they would not have a constructive effect upon the labor dispute and the community. That ground is at odds with the public interest standard. The [*281] Commission made clear in its 1949 report on Editorializing by Broadcast Licensees, 13 FCC 1246, 1249, that the duty to present contrasting views on controversial issues of public importance "... extends to all subjects of substantial importance to the community coming within the scope of free discussion under the first amendment without regard to personal views and opinions of the licensees on the matter,...." See also, Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. at 389, stating that the licensee must "... conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airways."
Thus, had you determined that there was a controversial issue of public importance, you could reasonably, and indeed commendably, have determined that you would not cover this issue with spots, but only with programming of considerable duration which would allow both sides to appear and present their views. But in considering any such program, you could not refuse to present it because you did not deem it to be constructive, or because you did not believe that it would "build up the community or its economy." The licensee, as a proxy or fiduciary, cannot permit his judgment as to whether the public should hear a contrasting view on a controversial issue of public importance depend upon his personal opinion as to whether that viewpoint is "derogatory," "constructive," "will be beneficial to the community," etc. Rather, he is called upon to make the reasonable, good faith judgment whether the viewpoint is of significance warranting access to the public. Of course, he can always state his own position, in an editorial or other programming.
The foregoing is brought to your attention so that future actions in this area will be in full compliance with the fairness doctrine. For the reasons stated, no further action is warranted in this case.
Commissioner Bartley dissenting and issuing the attached statement; Commissioner Cox concurring and issuing the attached statement; Commissioner Johnson concurring in part and dissenting in part and issuing the attached statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCURBY: COX; JOHNSON (IN PART)
CONCURRING STATEMENT OF COMMISSIONER KENNETH A. COX
I concur, but wish to add the following. It appears that the strike may have directly involved nearly 3% of the households in Quincy and that it had been going on for nine months at the time of the complaint -- and may, for all we know, still be continuing. I think it likely that this effort to unionize black workers in a Florida packing plant was, by normal standards, a controversial issue of substantial importance in this small community. However, the Union should have cited evidence to rebut the licensee's statement -- which is self-serving and not very factual -- that the strike was not a significant issue in Quincy. n1 Had it done so, it would have been entitled to access to the station to discuss the matter, even though the commercials carried for the plant's products were not, I agree, statements of one side of the strike issue. However, it did not make an adequate case on this point. I therefore concur in this action.
n1 I think we should have investigated further to determine what issues the licensee did consider significant to the community and worthy of exposure on WCNH. We should also have checked local newspaper coverage of the strike. These things would have had a bearing on the reasonableness of the station's conclusion that the strike was not an important local issue.
STATEMENT OF COMMISSIONER NICHOLAS JOHNSON
I concur in part and dissent in part. (See Business Executives Move for Peace, FCC 70-860, August 5, 1970 (dissenting opinion).)
DISSENTING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY
I dissent. The question before us is whether the licensee has violated the fairness doctrine in refusing to air advertisements publicizing a boycott. All agree that the licensee acted reasonably in determining that, because the boycott was not a controversial issue of public importance, and because one side of a controversial issue had not been presented, the fairness doctrine did not apply. However, the majority goes on to speculate what would have been the case had the fairness doctrine been applicable. This, in my opinion, is not only unnecessary, but in this particular situation, serves only to confuse a doctrine which we have attempted to refine.
The majority states that if the licensee had determined that this boycott constituted a controversial issue of public importance, then the [*282] licensee could not refuse to air tapes publicizing the boycott on the ground that they were not "constructive" or because, in the licensee's opinion, they would not "build up the community or its economy." We have stated innumerable times that a licensee in applying the fairness doctrine:
... is called upon to make reasonable judgments in good faith on the facts of each situation -- as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present the viewpoints, and all the other facets of such programming. See par. 9, Editorializing Report. In passing on any complaint in this area, the Commission's role is not to substitute its judgment for that of the licensee as to any of the above programming decisions, but rather to determine whether the licensee can be said to have acted reasonably and in good faith. (Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10416 (1964)).
The majority has gone much further than this. Once a licensee determines that a controversial issue of public importance has been aired, it has a great deal of discretion in deciding how the contrasting view should be presented and who should present it. The Commission, in turn, considers the reasonableness of the licensee's action and its good faith in fulfilling its fairness doctrine obligations. This determination is made on the facts of each particular case. To make the general statement that a licensee may never reject a proffered spokesman, or format, or tape because they are, in the licensee's own opinion, derogatory, or negative, or not beneficial to the community, is not consistent with the above-stated policy. Further clarification of the fairness doctrine is not aided by speculation, broad generalities, or purely officious language.