In Re request by NATIONAL CITIZENS COMMITTEE FOR BROADCASTING For Declaratory Ruling
FEDERAL COMMUNICATIONS COMMISSION
29 F.C.C.2d 386
RELEASE-NUMBER: FCC 71-503
MAY 5, 1971
[*386] NATIONAL CITIZENS COMMITTEE FOR BROADCASTING, Washington, D.C.
GENTLEMEN: This is with reference to your "Request for Immediate Issuance of Declaratory Ruling":
(1) that "where 'extrinsic evidence' exists that a television station altered its programming content as a direct and proximate result of governmental pressure, whether from White House officials or other members of the federal government, then such programming alterations violate the terms of the station's license," and
(2) "that broadcast licensees must maintain their independence as forums for free expression; that the Federal Communications Commission will not undertake any retaliatory action against a broadcast licensee, at license renewal time or otherwise, for the broadcast of views critical of current Administration policies; and that broadcast licensees will be deemed to violate the public interest in free and independent broadcasting if they capitulate to government pressures, threats, or other forms of coercion by altering their planned programming formats."
Your request refers, inter alia, to allegations that the "Dick Cavett Show" on the ABC network was altered in content as a result of calls from a member of the staff of the Executive Branch of the government in March 1971.
Section 554(e) of Chapter 5 of the United States Code (47 USC 554e [Administrative Procedure Act]) reads, in part:
The agency... in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty.
With regard to the possible removal of uncertainty, you have stated:
The statements of Mr. Gilroy, executive producer of the "Dick Cavett Show," as reported by several newspapers, may or may not supply the necessary "extrinsic evidence" that high officials of ABC altered the shows' programming content as a direct result of improper White House pressure. However, given the obvious potential for such abuses, the Commission should immediately clarify licensees' responsibilities to remain independent in this area.
[*387] The Commission has consistently recognized the broad discretion which licensees have in determining whether the presentation of particular material will serve the public interest. As the Commission stated in its Report and Statement of Policy re Commission en bane Programming Inquiry, 35 F.R. 7291, 22 RR 1901, "we do not intend to guide the licensee along the path of programming..." Rather, it is the licensee's responsibility to attempt to "discover and fulfill the tastes, needs and desires of his community or service area, for broadcast service." (Ibid.)
We believe there is no uncertainty in the Commission's policy in this area. It has been repeated many times with respect to all forms of programming, including those involving controversial issues of public importance, and news reports and commentaries. For example, see Report in the Matter of Editorializing by Broadcast Licensees. 13 FCC 1246 (1949); Letter to American Broadcasting Company, et al., 16 FCC 2d 650 (1969); CBS Program, "Hunger in America," 20 FCC 2d 143 (1969); Letter to Mrs. J. R. Paul, 26 FCC 2d 591 (1969).
As we stated in the letter to Mrs. Paul, at 592:
In sum, our policies are designed (i) to promote robust, wide-open debate involving both sides to a controversy, to the end that the American public will be informed; (ii) to take action against rigging or slanting of the news, wherever we may appropriately do so; and (iii) to avoid the censor's role, "including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the possible rigging itself" (Hunger in America ruling).
In our letter to ABC, supra, we pointed out that "The right to be critical of public officials is so well engrained in the First Amendment as to make any comment by this Commission wholly superfluous. Indeed, one of the most fundamental purposes of the Amendment is to insure the freedom of the press to criticize government."
Many organizations and individuals, in both private and public life, may seek to persuade those responsible for operation of the electronics and the printed media to present their views on controversial issues. Indeed, the democratic process depends upon the rights of holders of significant conflicting views on controversial issues to seek and to achieve publication of their views.
However, as stated above, it is the responsibility of the licensee to determine what broadcast matter will best serve the public interest. The Commission will impose sanctions only where a licensee has refused to fulfill the obligations imposed by the fairness doctrine, or where, in connection with the presentation of news, documentary or other extrinsic evidence establishes that a licensee has deliberately distorted the news or staged news events.
In light of these policies we find no basis for Commission intervention. There is no controversy which we appropriately could terminate; significantly you have presented no information to the Commission alleging that any licensee failed to comply with the fairness doctrine in its handling of the SST controversy.
[*388] In view of the foregoing, your request for a declaratory ruling is denied.
Commissioners Robert E. Lee and Wells absent; Commissioner Johnson concurring and issuing a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON
I concur in this letter on the assumption it does, for all practical purposes, acknowledge the validity of petitioners' request and endorse the interpretations of law they have urged.