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29 F.C.C.2d 807

 

MAY 12, 1971

 


OPINION:

COMPLAINT

 GENTLEMEN: As you know, a complaint was filed by Alan F. Neckritz and Lawrence B. Ordower against the licensees of Television Station KGO-TV, KRON-TV, and KPIX (San Francisco) and KNBC and KNXT (Los Angeles) alleging failure to fulfill their fairness doctrine and public interest obligations regarding advertisements for Standard Oil of California's Chevron with F-310 gasoline.

Complainants allege that the advertisements are produced in several versions, which include depiction of (1) a large balloon attached to a late model Chevrolet which turns black with exhaust; (2) a car engulfed in a bag of black smoke; and (3) exhaust ignited with a blow torch to indicate unburned gasoline going out the exhaust; and that the advertisements claim these conditions are cured by "just six tankfuls of Chevron with F-310." Complainants state that the advertisements say the gasoline is a "significant contribution toward cleaner air" and that "F-310 turns dirty exhaust into good clean mileage." A Federal Trade Commission complaint n1 cites the following as a typical advertisement:

n1 On December 29, 1970, the Federal Trade Commission issued a complaint regarding Chevron F-310 and the matter has been set for hearing.

 

"TELEVISION

SCOTT CARPENTER: I'm Scott Carpenter.  We're attaching a clear balloon to this car to show you one of the most meaningful gasoline achievements in history.  The balloon is filling with dirty exhaust emissions that go into the air and waste mileage.

Now Standard Oil of California has accomplished the development of a remarkable gasoline additive, Formula F-310, that reduce exhaust emissions from dirty engines.  The same car, after just six tankfuls of Chevron with F-310; no dirty smoke, cleaner air.  A major breakthrough to help solve one of today's critical problems.  And since dirty exhaust is wasted gasoline, F-310 keeps good mileage from going up in smoke.  Cleaner air, better mileage -- Chevron with F-310 turns dirty smoke into good, clean mileage.  There isn't a car on the road that shouldn't be using it."

Complainants contend:

1.  California-Standard's F-310 advertisements have created a public controversy which is subject to the fairness doctrine, and the licensees  have not fulfilled their fairness responsibilities.  There are, complainants suggest, two controversial issues: (a) whether F-310 additive will help solve the air pollution problem; and (b) whether the advertisements themselves are controversial in light of Chevron's attempt to refute the FTC complaint.  Complainants allege that "Cal-Standard's advertisements have created a controversy... because they attempt to exploit the legitimate and appropriate public concern about air pollution."

2.  The licensees and networks failed to fulfill the public interest obligations of the Communications Act.  Complainants assert that when a licensee allows an advertiser to "exploit public concern over a community problem" he should be required to satisfy the community interest in the issues raised by the commercials.  Complaints further state that "Congress has recognized that environmental pollution creates a 'clear and present danger' to the public health and it has enacted the National Environmental Policy Act which makes it compelling upon the Commission to recognize this aspect of the public interest standard."

3.  Licensees abridged the complainants' First Amendment rights by denying access to contrasting views on the issue raised in the advertisements.  Complainants state that the First Amendment sanctions "effective speech" (Edwards v. South Carolina, 372 U.S. 229, 235 (1963)) and that its effectiveness depends on the existence and nature of an appropriate forum and format.  Complainants ask that their views be presented through spot announcements to achieve fairness with the "prepackaged nature of Standard's $9.5 million saturation television advertising campaign." In support of their contention that the opposing point of view should be presented through spot announcements, the complainants cite In Re Complaint of Bella S. Abzug, 25 FCC 2d 117 (1970), where the licensee stated that, "... programs and spots are different in their economic and impact values, and... [spots are] considerably more valuable...."

4.  The Commission should require licensees to refrain from broadcasting this particular series of advertisements because Cal-Standard's advertisements involve material deception as to the characteristics and performance of F-310.  Complainants contend the licensees have violated the Commission's policies regarding advertising because,

"(1) Of all the licensees only KPIX appears to have exercised any degree of care with respect to insuring that the ads did not mislead the public.  (2) Two official state authorities found these ads to be misleading, and the continued broadcasting of the F-310 commercials raises serious questions as to whether the licensees are operating in the public interest.  (3)... [the] official reports of the California Air Resources Board and the Hawaiian State Consumer Protection Committee, the outcry of the Friends of the Earth and the Sierra Club, have put the licensees on notice and they cannot claim ignorance of controversy that has been raised in print but silenced by the mass media."

 

In reply to the Broadcast Bureau's inquiry, the licensees n2 state that they do not believe the broadcasts of the Chevron with F-310 advertisements constitute a discussion of a controversial issue of public importance,  and that in their overall programming they have devoted ample time to the treatment of the larger issues of air pollution and ecology.  n3 KRON, KNXT, KGO-TV, and KPIX state they covered the F-310 controversy in their news broadcasts or other programs.  KNBC, KGO-TV and KRON-TV state that the advertisements were nothing more than product claims of a factual nature.  KNBC, KGO-TV, KNXT, and KPIX also state that they received documentation of the claims made in the commercials.  n4 KNBC and KNXT declare that they believe it is in the public interest to encourage manufacturers to compete in the improvement of their product and to advertise these improvements.  KNXT and KRON-TV assert that the question of deceptive advertising is solely within the jurisdiction of the Federal Trade Commission.  KNXT denies that economic pressure from the advertisers affected the news coverage of the issue of air pollution.  All licensees state that they believe the cigarette advertising case, Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom Tobacco Institute v. FCC, 396 U.S. 842 (1969), to be inapplicable and Friends of the Earth, 24 FCC 2d 743 (1970), on appeal sub nom Friends of the Earth v. FCC, No. 24,556, U.S. Ct. App., D.C. to be applicable.  n5

n2 It appears from the replies filed by ABC, CBS and NBC that the commercials were carried by the California stations licensed to them (KGO-TV, KNST and KNBC, respectively) and not by the networks.

n3 KPIX states that it considers the "disagreement concerning the ecological effects of the F-310 additive as one facet of the larger controversy over air and environment pollution."

n4 KPIX states it became concerned that the announcements were possibly misleading; that it used slides from the advertising agency to modify the original announcements in order to prevent misunderstanding; and that later it received and used new commercial announcements which incorporate the explanatory statements.  KGO-TV states that it is no longer telecasting the balloon demonstration.  KRON-TV states that the F-310 commercials contain superimposed messages stating the limitations of the test.

n5 KPIX further states that, "Even if a specific commercial did raise a controversial issue of public importance, the fairness doctrine would only require reasonable efforts to present contrasting viewpoints -- not a series of spot announcements in opposition."

 

In reply to the licensees' responses, the complainants state that (1) "the general impression test" should be applied to interpret the message conveyed by the advertisements; (2) the advertisements take a position on a public issue which is slanted and distorted, and therefore the fairness doctrine applies; (3) the licensees' judgments regarding the commercials were unreasonable; (4) the licensees failed to discuss how their decisions implement the National Environmental Policy Act of 1969.  The complaints cite Retail Store Employees Union v. FCC, D.C. Cir., Case No. 22605, decided October 27, 1970, Slip Op., at p. 22:

"It is at the very least a fair question whether a radio station properly serves the public interest by making available to an employer broadcast time for the purpose of urging the public to patronize his store, while denying the employees any remotely comparable opportunity to urge the public to join their side of the strife [sic] and boycott the employer."

 

We do not believe that complainants' First Amendment rights have been abridged by the denial of access to the air waves.  It is well established that a broadcast licensee is not a common carrier and thus is not required to provide all persons with access to the air.  47 U.S.C.   153(h).  The Supreme Court has stated that "[unlike] other modes of expression, radio inherently is not available to all...  Because it cannot be used by all, some who wish to use it must be denied." NBC v. United States, 319 U.S. 190, 226 (1943). See also Democratic National  Committee, 25 FCC 2d 216 (1970), on appeal sub nom. Democratic National Committee v. FCC, No. 24,537, U.S. Ct. App., D.C.  However, it is also well established that the absence of right to demand that any particular matter be carried by a broadcast station does not mean that a licensee can use the air waves solely for his own purposes or without regard to the public interest.  A licensee must operate his station so as to serve the needs and interest of the public.  Sioux Empire Broadcasting Co., 16 FCC 2d 995 (1969); City of Camden, et al., 18 FCC 2d 412 (1969); and has an obligation both to inform the public on major issues of public concern and to afford a reasonable opportunity for the presentation of contrasting points of view on controversial issues.  Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969). See also Editorializing by Broadcast Licensees, 13 FCC 1246 (1949), Fairness Primer, 29 Fed. Reg. 10415 (1964), and 47 U.S.C.   315(a).  The remaining issues before us must be determined in that context.

Complainants' request that we require the licensees to stop broadcasting the series of commercial announcements at issue on the ground that they are materially deceptive cannot be granted.  These announcements are now the subject of a Federal Trade Commission proceeding.  That agency of course has primary jurisdiction and qualifications in this area.  With its proceeding still pending and the issues still unresolved, it would be clearly inappropriate for us to order cessation of the disputed announcements.

The complainants' primary contentions resolve themselves into the basic position that the fairness doctrine applies to the Chevron announcements.  In this regard, they make two principal arguments, one based on the issuance by the FTC of its complaint and the second based on the factual nature of this particular advertisement.  We shall deal first with the effect of issuance of the FTC complaint.

The essence of this argument is that the filing of the FTC complaint against the advertisements and the sponsor's rebuttal thereto have in themselves created a controversial issue of public importance.  Were that the case, however, the filing of every FTC complaint alleging falsity or deception in advertising followed by the continued broadcast of the advertisements in question would invoke the fairness doctrine, requiring the broadcast of free replies in some set ratio to the advertisements.  See Cigarette Advertising ruling, supra; Cullman Broadcasting Co., supra.  Indeed, there would appear to be no way to draw a reasonable distinction, for fairness doctrine purposes, between the case where an FTC complaint is filed and the case where a substantial question can be raised concerning the validity of the product claim even though the FTC has taken no action.  And, in all instances, the licensee would be under an affirmative obligation to encourage and implement the presentation of the contrasting viewpoints to the advertisements.

We do not believe that this approach would serve the public interest.  The FTC issues many contested complaints.  We make no blanket assumption that, in each case involving allegations of false or misleading advertising, there is necessarily a controversial issue of public importance warranting the drastic and unusual remedy applied in the area  of cigarette advertising.  Just as in the case of this Commission, a substantial number of FTC complaints may turn out not to call for corrective or their action or, if so, the validity of such action may not be affirmed.  But under the approach urged by complainants, the practical effect so far as broadcasting is concerned would be "sentence first, verdict later." For the application of the fairness doctrine to product commercials in these circumstances would almost certainly rule the commercials off the air (with advertising outlays continuing or increasing in other media).

The second aspect of the complainants' fairness argument, as noted above, is based on the factual nature of the particular advertisement involved, i.e., the claim that the product provides a partial remedy to some problem of widespread concern.  In our only ruling to date applying the obligations of the fairness doctrine to advertising of commercial products, Applicability of the Fairness Doctrine to Cigarette Advertising, 9 FCC 2d 921 (1967), affirmed Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert.  den. 396 U.S. 842, we made clear that the unique situation there involved would not be extended to other product advertising.  It had been argued (9 FCC 2d at 942) that "if governmental and private reports on the possible hazard of a product are a sufficient basis for the cigarette ruling, the ruling would apply to a host of other products such as: automobiles, food with high cholesterol count, alcoholic beverages... [and] detergents...." In response to this contention, we stressed that our ruling was "limited to this product -- cigarettes." The reason was that cigarette smoking was unique in regard to the hazard which results from normal use and also in regard to the simple issue presented -- whether or not to smoke.  We therefore stated (9 FCC 2d at 943) that:

"47.  We adhere to our view that cigarette advertising presents a unique situation.  As to whether there are other comparable products whose normal use has been found by Congressional and other Government action to pose such a serious threat to general public health that advertising promoting such use would raise a substantial controversial issue of public importance, bringing into play the Fairness Doctrine, we can only  state that we do not now know of such an advertised product, and that we do not find such circumstances present in petitioners' contentions about the advertised products upon which they rely."

 

In Friends of the Earth, supra, we dealt squarely with the issue treated by way of dictum in the cigarette case, and held that advertisements of automobiles and gasoline did not invoke the fairness doctrine.  We stated (24 FCC 2d at 748-749):

"... 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...  However, even assuming that we are wrong in that belief, we would not extend the ruling generally to the field of product advertising... [a] great many products have some adverse ecological effects.  Were we to adopt a scheme of announcements tracking in a significant ratio the ordinary product commercials, the result would 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, the public interest... and on that standard, extension of the cigarette ruling is not in order."

 

 We added (24 FCC 2d at 749) that "a commercial could deal directly with an issue of public importance" and that, if it did, "the fairness doctrine is fully applicable." The question here is whether the Chevron ads come within that description.  We do not believe that they do.  The Chevron F-310 announcements do not argue a position on a controversial issue of public importance, but rather advance a claim for product efficacy.  It is true that this claim relates to a matter of public concern, but making such a claim for a product is not the same thing as arguing a position on a controversial issue of public importance.  That the claim is alleged to be untrue of partially deceptive does not change its nature.  The Chevron advertisements do not claim there is no danger in air pollution or that automobiles do not contribute to pollution but assert,  instead, that use of the sponsor's product helps to solve the problem.  It would ill suit the purposes of the fairness doctrine, designed to illumine significant controversial issues, to apply it to claims of a product's efficacy or social utility.  n6 The merits of any one gasoline, weight reducer, breakfast cereal or headache remedy -- to name but a few examples that come readily to mind -- od not rise to the level of a significant public issue.  We therefore decline to extend the doctrine to this area.  We think this conclusion in required not only only as a matter of reason, but also of practical necessity if fairness is to work for the public and not to its detriment. 

n6 This is not to say that a product commercial cannot argue a controversial issue raising fairness responsibilities.  For example, if an announcement sponsored by coal-mining company asserted that strip mining had no harmful ecological results, the sponsor would be engaging directly in debate on a controversial issue, and fairness obligations would ensue.  Or, if a community were in dispute over closing a factory emitting noxious fumes and an advertisement for a product made in the factory argued that question, fairness would also come into play.

 

A contrary view would extend the application of the fairness doctrine to an endless variety of advertisements for commercial products.  It would create a doctrine which, from a practical standpoint, would be unworkable.  This would be true for advertisement which make product claims, such as those presently in issue, just as we found it to be the case with product advertising generally in our cigarette and Friends of the Earth rulings.  As we pointed out in Friends of the Earth, requiring the broadcast of "answers" to advertisements of commercial products or services on the grounds that they raise controversial issues of public importance might eventually drive most commercials from the air, resulting in chaos and the destruction of economic support for the public service rendered by broadcast licensees.  For the above reasons, we must deny the complaint to the extent that it seeks to apply the requirements of the fairness doctrine to the advertisements in question.  n7

n7 With reference to Congressional recognition of the dangers of environmental pollution in enacting the National Environmental Policy Act, we note that all the licensees here state that they have devoted considerable time to treatment of the issue of air pollution and ecology and that complainants have not denied their assertions.  The relationship of gasoline to air pollution would appropriately be addressed in such coverage.

 

There is the further question as to a licensee's public interest obligations with respect to advertisements that have been the subject of a formal FTC complaint.  In our Public Notice of November 7, 1961, "Licensee Responsibility with Respect to Broadcasting of False, Misleading or Deceptive Advertising," we stated that if a licensee continues to broadcast advertisements after a final Order has been issued by the  FTC against the advertiser, serious questions would be raised regarding the licensee's fulfillment of his obligation to operate in the public interest, and that "if there is submitted to a licensee advertising matter which has been the subject of an FTC complaint, he should realize that although no final determination has been made that the advertising in question is false or deceptive, a question has been raised as to its propriety, and he should, therefore, exercise particular care in deciding whether to accept it for broadcast." We also stated that a licensee has a responsibility to take reasonable steps to satisfy himself as to the reliability and reputation of prospective advertisers and their ability to fulfill their promises regarding advertisements that have not been the subject of FTC action.

Although we have imposed these obligations upon licensees, we recognize that most licensees lack the facilities (i.e., laboratories, experts in the particular field) necessary to determine for themselves whether certain advertisements are false or misleading or to resolve contrary claims.  This case may well be an example of that difficult area.  However, we believe, as stated in our 1961 Public Notice, that issuance of a complaint by the federal agency charged with responsibility in this field and possessing the expertise to make judgments on such matters imposes a further obligation on broadcasters, and that the continued broadcast of the advertising matter without any further inquiry simply because a final adjudication has not been made does not represent adequate exercise of the licensee's responsibility.  The licensee should acquaint itself with the charges recited in the FTC complaint and the advertiser's response.  This should assist the licensee in making a responsible determination as to whether continuing to carry the advertisement would be in the public interest.  We do not believe that the pendency of an unresolved FTC complaint of itself should be held to require cessation of the advertisements, for this would effectively resolve the issue against the respondent before he has been fully heard in the forum provided by Congress.  We do expect a reasoned licensee judgment based on the facts available and his own capacity to ascertain the public interest.

In this connection, we note in the present case that KPIX states that it became concerned that the Chevron announcements were possibly misleading, that it requested and received supporting data from the advertising agency, that the agency sent to KPIX slides containing qualifying or explanatory statements to be used with the announcements, and that new announcements incorporating these explanatory statements were later received and used by KPIX, KRON-TV also states that messages were superimposed on the commercials stating the limitations of the tests on which the advertiser's claims were based.  We also note that all five stations either requested documentation of the advertiser's claims or made changes in the content of the advertisements, and that four of the stations state that they covered the F-310 controversy in their news or other programs.

There is a further point to be made.  We have decided the present complaint in accordance with established policies -- a result that we feel, on the basis of the facts before us, is both appropriate and required.  We recognize, however, that this case and others that have  arisen recently in the fairness and related "public interest" areas have been made on the basis of single complaints and with the participation of the few parties directly involved, even though the findings may have far broader implications.  Ad hoc proceedings have the advantages of action taken and policy evolved on the basis of concrete bodies of fact.  But they have the countervailing disadvantages of limited participation by interested parties and often lack of adequate overview.  We strongly believe that something more is now called for.

An overall proceeding with wide-ranging participation might help us to develop more finely drawn classifications, approaches, and policies within the rubric of the fairness doctrine that will better serve the public interest.  Such an overview was last undertaken by this Commission more than two decades ago, yet the evolution of broadcasting and communications generally has been profound during this timespan.

Accordingly, we expect in the near future to initiate a proceeding of broad scope to consider every facet of our fairness doctrine and related public interest policies, including the vexing problem of access that has been on the periphery of many of our decisions in these areas.  n8

n8 See Order In Radio Enterprises of Ohio, Inc., Docket No. 19207, FCC 71-401, released April 26, 1971.

 

We cannot now predict the direction in which this inquiry may lead us.  The policies involved are of such complexity and significance that, before any decisions are reached, all interested parties should have a full opportunity to be heard.  Such a proceeding will permit a thorough re-examination and re-thinking of the broader issues suggested by this and other recent cases before us to determine whether some modification of the fairness doctrine and related policies would better serve the public interest.

Commissioners Bartley, Robert E. Lee and H. Rex Lee absent; Commissioner Johnson dissenting and issuing a statement.

 

BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.


 

DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

In our recent cable hearings there was unanimity on one issue: virtually everyone conceded that one of the primary advantages of cable is its potential for meeting unsatisfied demands for access to television.

Clearly, there is a pent-up frustration felt by many that the present structure of the television industry excludes their views.  Especially does this concern relate to values other than those presented by commercials on television.  And these concerns are in no sense limited to radical intellectuals.  Without going into an endless list of quotes, I will simply set forth the views of some current Administration spokesmen.

We have seen too many patterns of deception: in political life impossible dreams; in advertising, extravagant claims; in business, shoddy deals...

-- President Nixon.  n1

n1 Address in Madison, South Dakota, reported in Advertising Age, June 9, 1969.

 

 [As] often as not, it seems that many of the programs and most of the commercials from Madison Avenue appeal to a set of values entirely different from, if not in clear opposition to, the set of values taught in home, in school, and in the church.

-- Vice President Agnew.  n2

n2 "Another Challenge to the Television Industry," T.V. Guide, May 16, 1970 at 6, 8.

 

Virginia H. Knauer, President Nixon's consumer adviser, told the advertising industry yesterday it will either have to reform itself or be reformed by the government.

-- reported in The Washington Post.  n3

n3 Feb. 2, 1971, p. B2.

 

Why these corporations are so shortsighted in this important public relations field I cannot understand, but instead of volunteering to join in smoke abatement they are resisting it.  I have about reached the conclusion that, while large industry is important, fresh air and clean water are more important, and the day may well come when we have to lay that kind of hand on the table and see who is bluffing.

Senator Goldwater.  n4

n4 Saturday Review, March 7, 1970, at 52.

 

Needless to say, these views are shared by thousands -- perhaps millions -- of all shades of the political spectrum, all economic and educational levels.

One expression of that frustration is the complaint now before the Commission which advances First Amendment arguments for access to the air and alleges that certain licensees and networks failed to fulfill their fairness doctrine and public interest obligations regarding the broadcast of commercial announcements for Chevron F-310 gasoline.

Of course, the very nature of over-the-air broadcasting makes it inevitable that many people will never be able to express their views via broadcasting, and that some viewpoints will never be expressed at all.  When a particular frequency is assigned to a broadcasting company, that company has very broad discretion in programming.

Nevertheless, "very broad" does not mean unlimited; lines have to be drawn, lines which provide realistic discretion for broadcasters while at the same time protecting "the public interest" and the public's First Amendment rights.  One method which this Commission has adopted to facilitate this line-drawing is, obviously, the fairness doctrine, which requires a licensee to provide a reasonable opportunity for the presentation of conflicting views regarding controversial issues of public importance.

The Commission majority concedes, as it must, that petitioners' "claim relates to a matter of public concern," and that in Friends of the Earth, 24 F.C.C. 2d 743, 749 (1970), on appeal sub nom, Friends of the Earth v. FCC, No. 24,556, U.S. Ct. Appeals, D.C., we said: "Obviously, a commercial could deal directly with an issue of public importance;  if so, the fairness doctrine is fully applicable." Nevertheless, the majority says:

The Chevron F-310 announcements do not argue a position on a controversial issue of public importance, but rather advance a claim for product efficiency...  The Chevron advertisements do not claim there is no danger in air pollution or that automobiles do not contribute to pollution but assert, instead, that use of a sponsor's product helps to solve the problem...  The merits of any one gasoline, weight reducer, breakfast cereal or headache remedy -- to name but a few examples that come readily to mind -- do not rise to the level of a significant public issue.

 

The problem with this argument is that it begs the question by answering an issue which is not raised.  No one has said that the "merits of any one gasoline, weight reducer, breakfast cereal or headache remedy," or any "claim for product efficiency," should trigger fairness obligations.  No one has said the Chevron advertisements claim there is no danger in air pollution.

It is opinion that such arguments are entirely unwarranted -- and ultimately self-defeating.

First I think that there is such public pressure for control of the abuses of commercialism on television that unless the FCC begins to fashion reasonable remedies, the courts will step in with rules anyway -- and rules likely to make much broader inroads on broadcaster discretion than any rules the majority would be likely to adopt.

Second, the facts of this case present a very unusual, narrow issue.  Any precedent we might set in holding for petitioners would be equally narrow.  Let me elaborate.

(1) The advertisements appear to make extravagant claims on their face.  A broadcaster would have to be blind to common experience to believe the claims which the complaint alleges are made on behalf of Chevron F-310 gasoline.  According to the majority opinion, complainants allege that the ads

include depiction of (1) a large balloon attached to late model Chevrolet which turns black with exhaust; (2) a car engulfed in a bag of black smoke; and (3) exhaust ignited with a blow torch to indicate unburned gasoline going out of the exhaust;...

The petitioners allege that "the advertisements claim these conditions are cured by 'just six tankfuls of Chevron with F-310.'... that... the gasoline is a 'significant contribution toward cleaner air' and that 'F-310 turns dirty exhaust into good clean mileage.'" At the very least, these claims seem extravagant enough to remind a licensee of "their obligation to sift our fraudulent and deceptive advertising matter..." Public Notice, Licensee Responsibility With Respect To The Broadcast Of False, Misleading or Deceptive Advertising, FCC 61-1316, November 7, 1961 [hereinafter Public Notice -- Deceptive Advertising].  The rule, as we stated in that Notice is clear: "[The] Commission has always held that a licensee's duty to protect the public from false, misleading or deceptive advertising is an important ingredient of his operation in the public interest."

(2) The Federal Trade Commission has issued a complaint against the advertisements in question.  In the 1961 Public Notice -- Deceptive Advertising we said that in such a case "a question has been raised as to [the advertisement's] propriety, and [the licensee] should therefore exercise particular care in deciding whether to accept it for broadcast."

(3) At least two official state agencies, the California Air Resources Board, and the Hawaiian State Consumer Protection Committee have found these ads to be misleading.  This is particularly significant,  since the Commission has indicated that even active consideration by local government officials was a factor which licensees should weigh in determining whether a controversial issue requiring application of the fairness doctrine has been raised.  See, e.g., Pennsylvania Community  Antenna Association, 6 P & F Radio Reg. 2d 112 (1965). Since we have said that a "formal determination" by the F.T.C. would be so significant that ignoring it would raise "serious questions... as to [a licensee's] operation in the public interest," it would seem that formal determinations by state agencies would also be entitled to substantial weight.  See Public Notice -- Deceptice Advertising (1961).

(4) The Friends of the Earth and the Sierra Club, two of the nation's leading conservationist groups, have spoken out strongly against these advertisements as misleading and exploitive of public concern over air pollution.

(5) The advertisements are not, as the majority claims, merely run-of-the-mill "claims for product efficiency." Instead, they clearly do play upon public concern about air pollution.

The majority's attempt to draw an analogy between the case and Friends of the Earth, supra, simply won't wash, because in Friends of the Earth the FCC specifically distinguished "general product [advertisements]" from other commercials which do raise fairness doctrine issues.  The majority in Friends of the Earth said:

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 with an issue of public importance; if so, the fairness doctrine is fully applicable, 24 F.C.C. 2d, at 749.

There is a world of difference between "Put a Tiger in your tank" and the Chevron F-310 ad broadcast in smog-conscious California:

Now Standard Oil of California has accomplished the development of a remarkable gasoline additive, Formula F-310, that reduces exhaust emissions from dirty engines.  The same car, after just six tankfuls of Chevron with F-310; no dirty smoke, cleaner air.  A major breakthrough to help solve one of today's critical problems... cleaner air, better mileage...  (Emphasis added.)

Another F-310 ad, furnished to the FCC by Cal-Standard, is ignored by the majority.  The ad states:

I'm sure you're as concerned as I am about the problems of controlling our environment.  And one of the most critical is the need for cleaner air...  These are some of the important steps Standard Oil has taken toward solving a growing national problem.  Use Chevron gasolines with F-310.  You'll be doing your part toward cleaner air.  Scott Carpenter for Standard Oil.  Emphasis added.)

 

These ads practically shout that they are dealing with a controversial issue of public importance.  The president of the prestigious Sierra Club has accused these ads of having "played cynically on public concern about air pollution." n5 I believe that these ads, which unquestionably attempt to exploit public concern over air pollution, present a classic case of a commercial dealing with a controversial issue of public importance. 

n5 Complaint, p. 3.

 

Moreover, there is clearly an additional controversial issue, which touches on public interest obligations as well, involving the widespread charges that these ads are false and misleading.  In view of the charges by the FTC, and two state agencies concerned with environmental protection, the two leading private environmental groups in the country, and the extravagance of the claims on their face, one  licensee,  KPIX-TV, became so concerned about the misleading nature of the Chevron F-310 ads that it chose to superimpose slides on the video portion of these commercials.  The slides modified the original commercial message, to point out, inter alia, that a very dirty engine was purposely used in the test.  In a letter to petitioners, the licensee states that it had "concluded that the dramatized demonstrations might mislead viewers...." n7 In these circumstances, there is clearly a public interest obligation to protect the public by making certain that these facts become known to the viewing public which might otherwise be misled.  The rule, as stated in our 1961 Public Notice -- Deceptive Advertising, supra, is that "In fulfilling [the public interest] obligation a broadcast station is expected to exercise reasonable care and prudence with respect to advertising copy in order to insure that no material is broadcast which will deceive or mislead the public." (Emphasis added.)

n7 Complaint, p. 15.

 

There is widespread concern throughout all sections of our society about the impact of commercialism.  This is one of the rare issues on which many college students and the Vice President are in agreement.

Many Americans -- intelligent businessmen and working men, as well as writers and reformers -- are giving serious attention to the merits of a national (and personal) goal of zero population growth.  They are questioning and ever-rising gross national product as the sole measure of America's greatness.  They are talking of the "ecology" of our natural environment and the "quality of life" for our souls.  The Pope's newest apostolic letter, according to a New York Times report yesterday, describes "the alienation caused by the consumer society." n8

n8 Paul Hofmann, "Papal Letter Sets as Goal a New Democratic Society," May 12, 1971, p. 1.

 

One might very well take the position, under these circumstances, that the broadcaster has a special "public interest" obligation -- going beyond even the requirements of the fairness doctrine -- to give full and pointed presentation to the views of those who seek to argue that the alternatives to ever-escalating conspicuous consumption of consumer goods are far preferable for us as individuals and as a society.

But I need not reach that question.

The Commission is not confronted with a request for time to present anti-commercialism massages generally.

It is not confronted with a request to answer a commercial which simply urges the purchase of a product (as cheaper, or what not) which petitioners believe has adverse side-effects.

It is confronted with a request to answer a commercial which clearly and purposefully does address a controversial issue of public importance: air pollution.  It is an attempt to sell a product by using claims that the product in fact makes a positive contribution to the problem which so concerns petitioners.

What is more, in this instance, it is not only alleged that the commercial message itself deals with such issues, it is alleged that those portions of the message are false and misleading.  And these allegations  are made, not only by petitioners, but by the Federal Trade Commission and two state agencies.  A broadcaster believed it to be misleading in some particulars, and took action accordingly.  On the face of the ad it appears to be of doubtful validity.  It would appear that current FCC regulations would raise substantial question as to the propriety of a licensee running such a commercial.

If the FCC is unprepared to act under the facts of this case, it is highly  unlikely it will act in any of the others.  Once again the American people must look to the already overburdened courts to get relief from the decision of this agency.

I have more faith in the American free private enterprise system than my colleagues.  I do not believe that its continued visibility is dependent upon deceitful advertising and the censoring by broadcasters -- with full FCC imprimatur -- of any wee small voice inquiring after the Emperor's clothes.  I believe we can have a thriving economy -- with meaningful employment, and an abundance of the products necessary to sustain a life of human fulfillment -- and still restrain what President Nixon has described as "extravagant claims," and still permit a full and open debate in the marketplace of ideas about the wares in the marketplace of products.

Speaking of the matter of race relations to the National Association of Broadcasters on April 2, 1968, then-Chairman Rosel H. Hyde said,

This is not just another story -- another "issue of public importance." It is a major crisis which calls for the best in an industry which has never failed a call from the nation.

Surely the issues before us are no less of a "major crisis."  Surely the industry would be as willing to respond.  It is a shame the Commission majority cannot find the will to support a comparable response to this crisis.

Mason Williams has written a short little poem called "L.A. Day." It reads:

I look out the window

As the day goes by

Watching the progress

Screw up the sky

 

That's kind of the way I feel.  Only in this case it's going on inside the FCC building.  And, in the name of a Nineteenth Century view of progress, we are screwing up the law as well as the sky.

I dissent.


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