In the Matter of THE HANDLING OF PUBLIC ISSUES UNDER THE FAIRNESS DOCTRINE AND
THE PUBLIC INTEREST STANDARDS OF THE COMMUNICATIONS ACT
Docket No. 19260
FEDERAL COMMUNICATIONS COMMISSION
30 F.C.C.2d 26
RELEASE-NUMBER: FCC 71-623
June 11, 1971 Released
Adopted June 9, 1971
BY THE COMMISSION: COMMISSIONER ROBERT E. LEE ABSENT; COMMISSIONERS JOHNSON AND WELLS CONCURRING AND ISSUING STATEMENTS.
[*26] I. INTRODUCTION
1. The purpose of this Notice is to institute a broad-ranging inquiry into the efficacy of the fairness doctrine and other Commission public interest policies, in the light of current demands for access to the broadcast media to consider issues of public concern. It is important to stress that we are not hereby disparaging any of the ad hoc rulings that we have made in these areas. Rather, we feel the time has come for an overview to determine whether the policies derived largely from these rulings should be retained intact or, in lesser or greater degree, modified. We have divided the inquiry into four parts: (i) the fairness doctrine generally; (ii) access to broadcast media as a result of the presentation of product commercials; (iii) access generally for discussion of public issues; and (iv) application of the fairness doctrine to political broadcasts. Obviously, these parts overlap. Indeed, each is an aspect of the underlying problem of access. Interested parties may address any or all these aspects, or they may structure their comments in accordance with their own definition of the problem.
2. Several issues to which we direct particular attention have been the subject of recent Commission decisions in which both the legal and policy considerations have been treated in depth. We will not here repeat the extensive majority and minority opinions. Rather, we refer interested parties to the cited cases where they will find full treatment of the pertinent policy matters here under review.
3. We stress that we are interested in fundamental policy -- not in a re-hash of legal considerations nor in recommendations of statutory revision. Thus, this Commission cannot abandon the fairness doctrine or treat broadcasters as common carriers who must accept all material offered by any and all comers. The Communications Act is explicit in these respects (see Section 315(a) and Section 3(h)) and we take [*27] the Act as a "given" from which this inquiry necessarily proceeds. Furthermore, there are court appeals pending on several disputed legal issues and such decisions will, of course, be appropriately taken into account in the course of this proceeding.
4. This Notice thus deals with Commission-made policy -- derived from the Act and from the standards set down therein. But, in view of the broad nature of these standards, there can and must be considerable leeway in both policy formulation and application in specific cases. The goal is clear: to foster "uninhibited, robust, wide-open" debate on public issues ( New York Times Co. v. Sullivan, 376 U.S. 254, 270). That is the profound, unquestioned national commitment embodied in the First Amendment. The basic issue we pose here is whether Commission-made policies indeed promote that goal to the maximum extent. Or, are there revisions or even entirely new policies that would serve it more effectively?
5. Finally, by way of introduction, we note that promotion of the goal cited above must be consistent with the "public interest in the larger and more effective use of radio" (Section 303(g)). It is most important to note in this connection that, to a major extent, ours is a commercially-based broadcast system and that this system renders a vital service to the nation. Any policies adopted by this Commission in the areas covered in the present inquiry should be consistent with the maintenance and growth of that system and should, among other appropriate standards, be so measured. We urge all interested parties to keep this pragmatic standard centrally in mind in forwarding specific comments and proposals. Proposals that in the short run might afford great insight into public issues but in the long run might tend to undermine the existing broadcast system -- e.g., nothing but informational programming in a debate format -- would not, in this view, serve the public interest.
II. THE FAIRNESS DOCTRINE GENERALLY
6. The fairness doctrine has evolved over some forty years as the guiding principle in assuring to the public an opportunity to hear contrasting views on controversial issues of public importance. Enunciated as early as 1929 by the Federal Radio Commission, n1 the fairness doctrine was most fully fleshed out in the Report on Editorializing by Broadcast Licensees, 13 FCC 1246 (1949), and has been sustained by the Supreme Court as within the Commission's statutory authority (Section 315(a)) and in full accord with the First Amendment. Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969).
n1 See Great Lakes Broadcasting Co., 3 F.R.C. Annual Rep. 32 (1929), reversed on other grounds 37 F. 2d 993 (C.A.D.C.), certiorari dismissed, 281 U.S. 706.
7. The fairness doctrine is grounded in the recognition that the airwaves are inherently not available to all who would use them. It requires that those given the privilege of access hold their licenses and use their facilities as trustees for the public at large, with a duty to present discussion of public issues and to do so fairly by affording reasonable opportunity for the presentation of conflicting views by appropriate spokesmen. The individual licensee has the discretion, and indeed the responsibility, to determine what issues should be covered, [*28] how much time should be allocated, which spokesmen should appear, and in what format. Only in the case of personal attacks or an editorial taking sides among competing candidates is there a specific requirement as to the person to whom the station must make time available. And even this exception rests not upon an individual's right to be heard but, rather, upon the proposition that the public's right to be informed will be best served if the person attacked or the candidate opposed presents the contrasting viewpoint. The guiding premise, as the Supreme Court put it, is not "an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish" but rather "the right of the public to receive suitable access to social, political esthetic, moral, and other ideas and experiences...." Red Lion Broadcasting Co., supra, at p. 390. Indeed, it is this right that goes far to explain the amount of spectrum space devoted to broadcasting.
8. With the exception of the personal attack and political editorializing rules, it has not been found necessary to formulate detailed and definitive guidelines for licenses applying the fairness doctrine in their day-to-day operations. Rather, the doctrine has been refined case-by-case in particular and concrete situations. See Applicability of the Fairness Doctrine to Broadcast Licensees (Fairness Primer), 29 F.R. 10415 (1964). n2 We by no means denigrate this manner of proceeding. It has in its broad effect served the nation well, and Commission rulings have been realistically and thus, we believe, soundly based. But, at the same time, it does seem to us desirable to take the longer view that an overall inquiry affords -- thus permitting all interested parties to be heard and not just those involved in specific complaints. It has been about twenty-two years since we issued our 1949 Report on Editorializing, supra, and we think it is time for another overview. If our policies are sound, they should have stood the test of time and application. If they are not sound -- if they unreasonably restrict the journalistic functions of broadcasters or permit broadcasters unreasonably to restrict access -- then corrective action is called for. Indeed, in the personal attack and political editorializing fields, we pledged that we would act promptly if we were shown that in actual operation our policies did not promote the fundamental purposes of the First Amendment. 22 Fed. Reg. 11531, 11532; 33 Fed. Reg. 5363, 5364. This also is the thrust of the Supreme Court's opinion in Red Lion (395 U.S. at pp. 392-93).
n2 We have outstanding one Notice of Proposed Rulemaking in the fairness area. See Docket No. 18859. That Notice deals with a specific proposal, however, and not the broad overview here contemplated.
9. This part of the inquiry thus gives broadcasters and all other interested parties the opportunity to advance their ideas, concerning the fairness doctrine generally, for improving, refining, or even drastically revising Commission policies. They may direct their attention to any aspect of the policies set out in the Fairness Primer or in more recent cases. We cite the following as just a few examples of important issues in this area:
(i) How have the personal attack and political editorializing rules worked in actual practice? Should they be revised in any way to achieve their stated goals?
[*29] (ii) Has the fairness doctrine in fact promoted the "more effective use of radio" in the discussion of controversial public issues, or has it served to inhibit wide-open debate? (In this connection, we also direct attention to our processing policies -- see Fairness Primer, 29 F.R. at p. 10416; Letter to Hon. Oren Harris, FCC 63-851; and Letter to Mr. Allen Phelps, 21 FCC 2d 12 (1969)).
(iii) Should the Cullman rule, 40 FCC 576 (1963), which lays down the principle that the right of the public to hear contrasting views on significant public issues is so important that licensees must make time available without charge if necessary -- be expanded or restricted, or otherwise refined?
10. We repeat: these are examples only. All interested parties are invited to frame their own questions in addressing the strengths and shortcomings of the fairness doctrine generally.
III. ACCESS TO THE BROADCAST MEDIA AS A RESULT OF CARRIAGE OF PRODUCT COMMERCIALS
11. This aspect of the inquiry is prompted by a recent court decision and several complaints in which very broad-ranging policy questions appeared to be raised -- questions that reach beyond the concrete situations involved. Thus, we deal first with the policy questions raised in the opinion of the Court of Appeals for the District of Columbia Circuit in Retail Store Employees Union v. F.C.C., Case No. 22, 605, decided October 27, 1970. We refer specifically to the issues raised in Part III of the opinion. n3 The factual setting is simply stated: a department store (Hill's) had access to a station's facilities (WREO) to present frequent advertisements of the standard commercial nature ("... extolling the virtues of Hill's stocks, bargains, and services and on that basis urging listeners to patronize the various Hill's outlets" -- pp. 2-3, Sl. Op.). The employee union at the store decided on a strike and boycott to gain its bargaining objectives. It sought to support the boycott by purchasing time for one-minute announcements stating that there was a strike at Hill's and urging listeners to respect the picket lines. These bare facts are sufficient to pose the basic issue: namely, does the union have a right to purchase time for its spots in these circumstances?
n3 The Court noted that unlike the issue in Part II of the opinion, the issues in Part III do not call into question the renewal of license of the station involved and, therefore, the Commission might wish to separate those issues from the license renewal proceedings (n. 50, Sl. Op.). We think that such separation is clearly appropriate and accordingly have done so. See Order released April 26, 1971 in Radio Enterprises of Ohio, Inc., FCC 71-401.
12. In view of its holding on another matter not relevant here, the Court did not resolve the above issue. But it did indicate that the issue "... deserves fuller analysis than the Commission has seen fit to give it" (part A, p. 20, Sl. Op.). The Court then noted (part B, p. 20, Sl. Op.):
Central to the Union's argument on this point is the proposition that, in urging listeners to patronize Hill's Ashtabula Department Store, Hill's advertisements presented one side of a controversial issue of public importance. Hill's [*30] copy, of course, made no mention of the strike or boycott, or of the unresolved issues between the Union and the store. But the advertisements did urge the listening public to take one of the two competing sides on the boycott question -- they urged the public to patronize the store, i.e., not to boycott. It seems to us an inadequate answer to this argument merely to point out that Hill's copy made no specific mention of the boycott. In dealing with cigarette advertising, the Commission has recognized that a position represented by an advertisement may be implicit rather than explicit...
The Court noted a further analogy to the Cigarette Advertising ruling -- that here also there is an established Congressional policy involved. In this instance, the policy is even-handedness in labor-management relations in which both Union publicity and Hill's commercials might be viewed as weapons of "economic warfare." In the Court's words (part C, pp. 21-22):
If viewed in this light, it could well be argued that the traditional purposes of the fairness doctrine are not substantially served by presentation of advertisements intended less to inform than to serve merely as a weapon in a labor-management dispute. But the fairness doctrine, as we have pointed out, is only one aspect of the FCC's implementation of the statutory requirement that broadcast stations operate to serve the public interest. [Footnote omitted.] The public policy of the United States has been declared by Congress as favoring the equalization of economic bargaining power between workers and their employers. [Footnote omitted.] 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 strike and boycott the employer. If the Union's claim is to be rejected, we believe this question should be dealt with by the Commission.
13. The Court noted that it had not attempted a full canvass of all the issues involved but had merely indicated some of the principal questions to be answered. In the circumstances, we believe that an overall inquiry is the best way to proceed, thus allowing for maximum participation and maximum opportunity for sound policy formulation. The issue has been posed here in terms of Retail Store but, clearly, it has wider ramifications. The issue really is the right of access, if any, to the broadcast media to respond to product commercials.
14. Two of the Court's basic considerations -- that product commercials can carry implicit messages and that pertinent national policies should be taken into account -- have very wide applications indeed. For example, we might consider the national policy of avoiding environmental pollution (see National Environmental Policy Act of 1969, 83 Stat. 852, Section 101(a)). As we indicated in our Letter to Mr. Soucie, 24 FCC 2d 743 (1970), appeal pending sub nom. Friends of the Earth v. F.C.C., Case No. 24556, C.A.D.C., a great number of products commonly advertised over the broadcast media have pollution consequences: cars because of their gasoline engines; gasoline itself; airplanes; detergents; and, indeed, every product that is normally packaged in a non-biodegradable container. Commercials urging use of these products or services thus can be argued to raise implicit ecological questions. Other product commercials, similarly, could be argued to raise significant national policy questions: commercials promoting the use of aspirin, tranquillizers, soporifics, etc., on the ground that they indirectly promote overuse of drugs generally [*31] and thus might lead to harmful, illegal drug use; commercials depicting women in a manner charged to be offensive to the national policy of equal rights and equal treatment of the sexes; etc. n4 It is not necessary to list more examples. The contention is that, almost without exception, product commercials can be argued to raise some significant, controversial issue -- and as public awareness grows, so, too, does the occasion for making such arguments. On the other hand, the Court notes in Retail Store (Sl. Op., pp. 21-22, n. 67) that the "... Commission repeatedly emphasized that its holding in [Cigarette Advertising] -- that stations broadcasting cigarette advertisements must regularly provide free time if necessary for the presentation of arguments opposing cigarette smoking -- was limited to cigarette advertising...." The Court further stated that this holding was based on the ground that "the implicit and explicit messages normally carried by advertising do not concern controversial issues of public importance." (Sl. Op., p. 21).
n4 There is also the issue raised by armed forces recruiting announcements, both commercial and of a public service nature. See, e.g., the policy issues considered in such recent rulings as Letter to Mr. Albert A. Kramer, FCC 70-596, and Letter to Mr. Donald A. Jellinek, FCC 70-595.
In this connection, we also note that the Court in Banzhaf v. F.C.C., 405 F.2d 1082 (C.A.D.C., 1968), certiorari denied, 396 U.S. 842 (1969), pointed out that cigarettes were "... in fact the product singled out for special treatment which justifies the action taken" and emphasized that "... [its] cautious approval of this particular decision does not license the Commission to scan the airwaves for offensive material with no more discriminating a lens than the public interest or even the public health."
15. Free time. On the important issue of extending the Cigarette Advertising ruling to cover all product commercials, n5 we set out our position in Letter to Mr. Soucie, supra, and in Complaint of Alan F. Neckritz and Lawrence B. Ordower, FCC 71-526, released May 13, 1971. We specified in those rulings and will not here repeat our reasons for believing (i) that most product commercials are distinguishable from cigarette advertising and (ii) that, in any event, it would not serve the public interest to hold that for nearly every product commercial the licensee must make free time available -- on a virtually daily basis, in a set ratio, in part during prime viewing hours -- for counter-commercials informing the public why they should not purchase the product or services in question. In Neckritz, the Commission majority indicated its view that the advertisements for Chevron advanced a claim for product efficacy, that this is not the same as arguing a position on a controversial issue of public importance, and that 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." We indicated in Neckritz the desirability of an overview of the policy issues involved, and we here invite interested parties to address such issues as the following:
n5 In Letter to Mr. Soucie and the Neckritz ruling, we pointed out that there can be product commercials that do deal directly with controversial issues of public importance. In such cases of course the fairness doctrine, including the Cullman principle, is clearly applicable.
[*32] (i) Ought there be some public interest responsibility beyond that of fairness to carry material opposing or arguing the substance of product commercials? If so, should time be afforded free or only on a paid basis?
(ii) What account should be taken of the Court's observation (in Retail Store) that spot announcements may not add substantially to public knowledge and, on the other hand, that repetition is a significant factor to be considered?
(iii) What should or must be the licensee's area of discretion in this entire matter -- and is there some workable standard for distinguishing various categories or commercials, some of which would give rise to fairness or public interest duties and some of which would not?
(iv) Finally, what would be the predictable effect of any new policy adopted here on the carriage of product advertisements and thus on the continued growth and health of the commercial broadcasting system?
16. Paid time. This brings us to the heart of the inquiry posed by the Retail Store decision -- namely, the right of paid access to inform the public why a product or service advertised over the station's facilities should not be purchased. The Court in Retail Store posed the issue in terms of a national policy for equalizing economic bargaining power between workers and employers, and we have noted that other national policies might be pertinent in other circumstances. The broad issue posed is whether fairness and/or the public interest standard n6 imposes a kind of "equal opportunities" obligation on the broadcaster -- that is, if he sells time for the promotion of products and services, must he also sell time to others, to consumer and public interest groups for example, who wish to argue against public use of these products or services? We call for comment, pro and con, on the policy implications and the pragmatic effects of this equation.
n6 In Retail Store, the Court noted that the purposes of the fairness doctrine might not be advanced by presentation of the boycott advertisements but nevertheless raised the question whether the public interest did not require such presentation. See also Banzhaf v. F.C.C., supra, where the Court, in affirming our Cigarette Advertising ruling, held that the Commission's action was based in fact on the public interest standard. The issue posed here is thus not one of trying to fit concepts into the fairness mold but, rather, what the public interest calls for.
17. Alleged false and misleading advertising. We direct the attention of interested parties to Commission policy in the area of advertising that is alleged to be false and misleading -- as for example, in the recent Chevron case, Complaint of Alan F. Neckritz and Lawrence B. Ordower, FCC 71-526, released May 13, 1971. The Commission majority held that the Letter to Mr. Soucie was applicable and that to prohibit such advertising in advance of a pending Federal Trade Commission ruling would be a case of "sentence first, verdict later." It also stated that the issues raised were of such broad-ranging importance as to warrant an overall inquiry; and the present proceeding is in part responsive to that finding. We thus specifically raise the question whether the public interest calls for any revision or refinements in existing Commission policy with respect to false and misleading advertising, or allegations thereof, and whether we might lay down new policy guidelines for the benefit of broadcasters and the public alike.
[*33] 18. The foregoing by no means exhausts the possible issues that are involved in the area of product commercials. We have simply raised those that appear to us to be of the greatest current importance. We stress again that we hope to evolve or reaffirm policies that are fair to all concerned, that promote the commercial broadcasting system, and above all that serve "the public interest in the larger and more effective use" of the broadcast media.
IV. ACCESS GENERALLY TO THE BROADCAST MEDIA FOR THE DISCUSSION OF PUBLIC ISSUES
19. It has also been urged that, quite aside from the fairness obligation of broadcasters, there is a right of access -- at least on a paid basis -- for all those wishing to express a viewpoint on a controversial public issue. The Commission has rejected this blanket claim on the ground that there is neither Constitutional nor statutory right for any individual or group to present their views, and that as a matter of policy it would not serve the public interest to act as if there were. See, e.g., the Democratic National Committee ruling, 25 FCC 2d 216 (1970), appeal pending, Democratic National Committee v. F.C.C., Case No. 24,537, C.A.D.C.; Business Executives' Move for Vietnam Peace v. F.C.C., Case No. 24,942, C.A.D.C. The legal issues are thus before the Court, and the policy issues are sharply pointed up in the majority and minority opinions of the Commission. We request comment on the question whether there is any feasible method of providing access for discussion of public issues outside the requirements of the fairness doctrine. More specifically, we ask that comment be addressed to the differing problems raised by paid and free time; the specific standards that should be followed for determining the basis on which time is to be provided, if such a course is recommended; the effect of any such new procedure on the licensee's general responsibility to the public; and the impact of such procedure on the licensee's duties under the fairness doctrine. The essential purpose of this part of the inquiry is to ascertain, if possible, the general patterns of licensee practice as to access on a paid or sustaining basis (e.g., for discussion of controversial issues generally or of ballot issues; for fund solicitation generally or for parties or committees organized around ballot issues), and whether it would be appropriate for this Commission to lay down criteria or guidelines for these purposes. If so, what would they be? Or, are the problems in this area so varied that decisions should be left to the judgment of thousands of licensees and, in cases of complaint, to the adjudicatory process? In other words: should we reaffirm present Commission policy and practice?
V. APPLICATION OF THE FAIRNESS DOCTRINE TO POLITICAL BROADCASTS
20. The Fairness Primer contains a number of rulings concerning the application of the doctrine to political broadcasts. There have been a number of important recent rulings in this area. As examples, we point to such rulings as the Letter to Mr. Nicholas Zapple, 23 FCC 2d 708 (1970); the Republican National Committee ruling, 25 FCC 2d 283, 299-301, 739 (1970), appeal pending, CBS v. F.C.C., Case No. [*34] 24,655, C.A.D.C.; Complaint of Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 294-298 (1970). The first two set forth a quasi-equal opportunities approach -- namely, that if a licensee sells or gives time to one political party, it should sell or give comparable time to the rival party, but that the Cullman principle is inapplicable here. The last cited case declined to extend the equal opportunities concept to such appearances by public officials as Presidential Reports to the nation -- although it did hold, on the particular facts, that time for one uninterrupted presentation should be afforded to opposition spokesmen. We request comment on such relevant questions as the following: whether the quasi-equal opportunities approach should be restricted, expanded, or left alone, with a specific description of the feasibility and effect of any proposed revision on the underlying policies of the statute (see Section 315(a)). We recognize, of course, that actions by the Congress will be decisive in this area and that many statutory amendments are presently under consideration. If Congress does act, Commission policies will be appropriately revised.
21. We have gone at some considerable length into the ranges of problems that have led us to propose this comprehensive overview. But interested parties will doubtless be able to suggest additional questions and variations on those we have raised. We welcome every approach. In view of the considerations discussed above (in para. 5), however, we urge that every comment be specific with reference to the practical effect of any proposals put forward.
22. It may also turn out that a further inquiry, narrowing the focus of consideration, would be useful. If we determine that new rules are appropriate, there will of course be a further opportunity to comment. It is also possible that the material submitted in response to this Notice will permit the adoption of a new policy statement without further proceedings, just as it is possible that no changes in present policy will be found to have merit. The response to this Notice will be largely determinative of our future course of action. In any event, we intend to employ special procedures and perhaps a select staff in this highly important inquiry.
23. Pursuant to applicable procedures set forth in Section 1.415 of the Commission's Rules and Regulations, interested parties may file comments on or before September 10, 1971, and reply comments on or before October 25, 1971. Comments may be filed as to any or all parts of the inquiry and should clearly delineate the focus of consideration. In accordance with the provisions of Section 1.419 of the rules, an original and 14 copies of all comments, replies, briefs, and other documents shall be furnished the Commission. All relevant and timely comments and reply comments will be considered by the Commission before final action is taken in this proceeding. In reaching its decision, the Commission may also take into account other relevant information before it, in addition to the specific comments invited by this Notice.
[*35] 24. Authority for this inquiry is contained in Sections 4(i), 303, 307, 309, 315(a), and 403 of the Communications Act of 1934, as amended.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON
It is becoming increasingly clear that the Fairness Doctrine, rather than serving as a means of satisfying legitimate demands for access, is increasingly functioning as an "Unfairness Doctrine" by legitimizing broadcaster frustration of those demands. See, e.g., my dissenting opinions in Chevron F-310, FCC 71-526 (May 12, 1971); Friends of the Earth, 24 F.C.C. 2d 743, 452 (1970); Democratic National Committee, 25 F.C.C. 2d 216, 230 (1970); BEM, 25 F.C.C. 2d 242, 249 (1970); Armed Forces Recruitment Messages, 24 F.C.C. 2d 156, 158 (1970); Robert Scott, 25 F.C.C. 2d 239, 240 (1970); Dorothy Healey, 24 F.C.C. 2d 487, 495 (1970). Indeed, there is not a scintilla of hope in this discouraging line of cases that the FCC majority has the slightest intention of ever opening up the public's airwaves to the public under any set of circumstances. It has denied access to United States Senators, 14 Senators, 25 F.C.C. 2d 283, 305 (1970), businessmen prepared to pay for commercial spot time that was available, BEM, supra, and citizen groups attempting to reply under the fairness doctrine to "commercials" that do argue "controversial issues of public importance" Chevron F-310, supra (which the Commission once said could raise fairness obligations, Friends of the Earth, supra). It is hard to imagine any more appealing set of cases than these.
Moreover, given the timing of this "Notice of Inquiry," one cannot help but wonder whether the majority is not trying to affect the outcome of currently pending cases. Several of the cases mentioned above are now on appeal before the U.S. Court of Appeals. E.g., Chevron F-310, supra, appeal docketed sub nom Alan F. Neckritz v. U.S.A. and F.C.C., No. 26,335, 9th Cir., May 24, 1971; Dorothy Healey, supra, appeal docketed sub nom Dorothy Healey v. F.C.C. and U.S.A., No. 24,630, D.C. Cir., September 16, 1970; Friends of the Earth, supra, appeal docketed sub nom Friends of the Earth v. F.C.C. No. 24,556, D.C. Cir., August 19, 1970; D.N.C., supra, appeal docketed sub nom Democratic National Committee v. F.C.C. and U.S.A., No. 24,537 D.C. Cir., August 13, 1970; Armed Forces Recruitment Messages, supra, appeal docketed sub nom G.I. Association et al v. F.C.C. and U.S.A., No. 24,516, D.C. Cir., August 7, 1970; BEM, supra, appeal docketed sub nom Business Executives Move for Vietnam Peace v. F.C.C. and U.S.A., No. 24,492, D.C. Cir., July 31, 1970.
One can only hope that the Commission will not represent -- and that the Courts will not accept -- this hollow gesture of a "Notice of Inquiry" as the basis for altering or postponing the Court's decisions in these cases. (1) There is no reason whatsoever to believe the Commission majority is likely to change a position that has been so forcefully and repeatedly stated in such extreme cases. (2) I am fearful that this "Inquiry" may well have the serious national consequences -- [*36] whether intended or not -- of leaving the law in its current state of uncertainty and inequity through the 1972 Presidential election. (3) Those who now have cases on appeal, or who may be coming before the Commission in the near future, are entitled to the prompt rendition of justice on their complaints.
Needless to say, the law couldn't be any worse than it now is; it is unlikely the Inquiry will do much more harm. On the assumption that it will not affect the case-by-case resolution of these conflicts by the Commission and the Courts, therefore, I concur in the issuance of this Notice of Inquiry.
CONCURRING STATEMENT OF COMMISSIONER WELLS
With some reservations I concur in today's action. While I recognize that acting on an overall legislative basis is a perfectly legitimate alternative to our past practice of evolving the fairness doctrine on a case by case basis, I believe that the latter is the best way to proceed in this sensitive area. Our practice of reviewing the licensee's judgment for reasonableness in concrete factual situations has ben effective. It is difficult to try to legislate fairness for all situations, and I doubt that we can define with significantly more precision the position that has emerged from our several recent decisions. But because of the majority's desire to review the entire doctrine after this long passage of time, I concur in this inquiry.
Commissioner Johnson's concurring statement requires some comment. Unlike Commissioner Johnson, I do not disparage the recent cases which he finds so objectionable. I believe that they are correct and reflect sound policy. I am particularly concerned by the implication in his statement that today's action is not seriously undertaken, but is some kind of tactical maneuver designed to influence pending appeals of Commission decisions.
There is no mystery as to why this inquiry was undertaken. It has been under consideration for some time, and the reasons have already been given in several prior Commission actions. One reason is the Retail Store decision which necessitated Part III of the Inquiry. We also said in Neckritz that we would undertake a broad ranging inquiry. The Chairman, in an April speech to the National Association of Broadcasters, stated that it was time for another review of the fairness doctrine -- that since the 1949 Report, we had been proceeding on an ad hoc basis and, after 22 years, it was time to look again at the whole subject -- to let all interested persons participate in this important policy formulation, not just those involved in particular cases. To obtain such an overview is the sole purpose of today's action.
Certainly no one suggests that it will somehow obviate court review. On the contrary, the notice recognizes that pending cases will be decided, and expressly states that the decisions in these cases will be taken into account in this proceeding. Furthermore, there is not the slightest thought that other cases coming before the Commission in the near future should be denied prompt consideration. We shall certainly act on these cases in line with our established processes.