In Re Request By COMMUNICATIONS WORKERS OF AMERICA For Declaratory Ruling
FEDERAL COMMUNICATIONS COMMISSION
31 F.C.C.2d 841
RELEASE-NUMBER: FCC 71-832
AUGUST 6, 1971
[*841] DEAR MR. KOONS: This refers to the two Requests for Declaratory Ruling filed by the Communications Workers of America (CWA) on August 3 and August 4, 1971, the first based on the refusal of the National Broadcasting Company, and the second the refusal of the Columbia Broadcasting System, to sell time on certain stations licensed to them for the broadcast of messages to members of your union. You state that the proposed announcements are in question-and-answer form and are "addressed to specific questions dealing with the current effort to ratify contracts tentatively agreed to between the Union's bargaining units and companies of the Bell System," and that their purpose is to provide sufficient information to allow your members to make sound decisions on contract ratification "by the deadline of August 10."
You state further that CWA has been able to buy time for this purpose on a number of other stations, and that after the refusal by NBC on August 2 it began negotiating with other radio stations in the cities involved, but that the Union's first choice of outlets was the stations first approached.
You state that the reason given for the refusal of both licensees was that the content of the messages was considered controversial. In answer, you state that there is no strike in progress and that the Bell System and the Union are in full agreement over the terms of the contract tentatively agreed to. You state that because of the limited time available for ratification of the contract and the fact that the medium of broadcasting is especially well suited to the Union's purposes, you are requesting the Commission to grant immediate relief by requiring NBC and CBS to sell to the Union the broadcast time which CWA has sought. You attached to your Request of August 3, copies of the twelve announcements which you have sought to broadcast.
NBC and CBS have confirmed to the Commission their refusal to sell time to CWA for the proposed announcements.
We have reviewed the proposed announcements submitted to us by CWA and we find that some if not all of them raise controversial issues of public importance. For example, Announcement No. 4 raises the question whether the proposed settlement is inflationary and answers that it is not, although the answer to the question raised in Announcement No. 2 reveals that the proposed contract calls for substantial wage increases for union members. The question of the possible [*842] inflationary effect of wage increases in a large industry would appear to be one which a substantial number of persons would consider controversial and of public importance. Moreover, the answers to the other questions also appear to involve controversial issues in that their tenor is to persuade union members that the contract should be ratified -- a conclusion with which some union members may disagree.
We have considered the Petitioner's requests and have taken cognizance of the decision of August 3, 1971, of the United States Court of Appeals for the District of Columbia Circuit reversing the Commission's decisions in two cases -- Business Executives' Move for Vietnam Peace and Democratic National Committee. Lack of time has not permitted a complete analysis of the opinion; we note, however, that although the Court held that a flat ban on paid public issue announcements is in violation of the First Amendment, the decision continued with the following language:
We do not hold, however, that the planned announcements of the petitioners -- or, for that matter, of any other particular applicant for air time -- must necessarily be accepted by broadcast licensees. Rather, we confine ourselves to invalidating the flat ban alone, leaving it up to the licensees and the Commission to develop and administer reasonable procedures and regulations determining which and how many "editorial advertisements" will be put on the air.
In view of the facts that the proposed CWA announcements appear to involve controversial issues of public importance and that the Commission as yet has had insufficient opportunity to consider actions to be taken relevant to the Court's recent decision, we believe it would be inappropriate at this time on rule that the licensees are required to broadcast the particular announcements at issue.
Accordingly, the Requests for Declaratory Ruling of the Communications Workers of America are DENIED.
Commissioners Robert E. Lee, H. Rex Lee and Houser absent. Commissioner Johnson dissenting and issuing a separate statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Communications Workers of America (CWA) filed a Request for Declaratory Ruling with the Federal Communications Commission on August 3, 1971, because of the National Broadcasting Company's refusal to sell the union AM radio broadcast time for brief spot announcements. The union sought to inform its nearly one-half million members across the United States of the aspects of a proposed contract settlement between the union and the Bell System.
Late in the afternoon of August 3, after the union had filed its Request for Delaratory Ruling against NBC at the Commission, the union was further informed by the Columbia Broadcasting System that the broadcast time CBS on August 2had agreed to sell the union would not in fact be available.
Both NBC and CBS cited a sole reason for furning the union aside: The spot announcements the union sought to purchase could not be aired because the networks deemed the content of the announcements "controversial."
[*843] The networks' flat ban on controversial editorial advertising is clearly unconstitutional under the dictates of the First Amendment. Business Executives' Move for Vietnam Peace v. F.C.C., No. 24,537 (D.C. Cir., August 3, 1971). The Commission's failure to grant the union relief in this instance, i.e., the failure to require the networks to make some time (even if minimal) available for sale to the union is likewise unconstitutional.
In an important decision handed down by the U.S. Court of Appeals (D.C. Circuit) only a few days ago, the court held "specifically that a flat ban on paid public issue announcements is in violation of the First Amendment, at least when other sorts of paid announcements are accepted." Id. at 4. The court placed critical importance on the public's interest in full and free access to the full spectrum of ideas and controversial views on radio and television. "The right to receive ideas and information is deeply rooted in First Amendment law." Id. at 22.
The court's decision rests on several strong First Amendment decisions written into law by the U.S. Supreme Court over the years, all designed to open up the nation's various channels of communications for more spontaneous, self-initiated, self-controlled expression. "The right of free speech of a broadcaster... does not embrace a right to snuff out the free speech of others." Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 387 (1969). See, Stanley v. Georgia, 394 U.S. 557, 564 (1969); Tinker v. Des Monies School District, 393 U.S.503 (1969); Lamont v. Postmaster General, 381 U.S. 301, 307-308 (1965); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964); Martin v. City of Struthers, 319 U.S. 141, 143 (1943).
There is little room for the argument here that there simply is not time to make arrangements for the union before its August 10 vote deadline, or, in another vein, that the time constraints here inconvenience the broadcaster too much. This simply will not wash with the First Amendment concerns clearly articulated by the Supreme Court.
All the networks need to in this case is sell the union a modest number of commercials, perhaps reserving an equal amount of commercial time for sale to dissident union members, if any exist. (Or the Fairness Doctrine may require the network to offer a very modest amount of free advertising time, only a fraction of that actually sold to the union, if a dissident group unable to pay demands reply time.) Of course, this may be an administrative burden to the networks. It is bound to cause a certain amount of inconvenience for any station manager or network functionary. Yet no one has ever promised the broadcaster an easy way of life. Indeed, quite the contrary. For, as the Supreme Court has said, "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago, 337 U.S. 1, 4 (1949), quoted in Business Executives v. F.C.C., supra, at 45.