In the Matter of COMPLAINT OF WILDERNESS SOCIETY AND FRIENDS OF THE EARTH AGAINST NATIONAL BROADCASTING CO. REGARDING APPLICABILITY OF FAIRNESS DOCTRINE TO COMMERCIAL ANNOUNCEMENTS SPONSORED BY STANDARD OIL OF NEW JERSEY (ESSO).
FEDERAL COMMUNICATIONS COMMISSION
32 F.C.C.2d 714
RELEASE-NUMBER: FCC 71-1285
December 27, 1971 Released
Adopted December 23, 1971
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONERS H. REX LEE AND REID ABSENT.
[*714] 1. By Memorandum Opinion and Order released September 23, 1971, 31 FCC 2d 729, we denied a petition filed by NBC for reconsideration of our earlier ruling of June 30, 1971 that the broadcast of certain commercial announcements sponsored by Standard Oil Company of New Jersey (ESSO) created fairness doctrine obligations relating to the dispute over the proposed construction of an Alaskan oil pipeline. We held that the commercial announcements in question did deal with the controversy surrounding the trans-Alaskan pipeline, but concluded that no further action was warranted because NBC had a continuing program of broadcasting contrasting views on the issue. We now have before us a further petition for reconsideration filed by The Wilderness Society and Friends of the Earth on October 22, 1971, in which it is requested that we determine whether NBC has broadcast an adequate amount of programming on the issue of "the need of developing Alaskan oil reserves quickly." The petition is opposed by NBC.
2. The essential argument made by the petitioners is that the Commission has found that the pipeline controversy involves two separate issues: (i) the need for developing the oil reserves in Alaska at this time, and (ii) the ecological effects which may ensue from such development, and that we must determine separately whether NBC has complied with the fairness doctrine with respect to the first of these "issues." We do not agree. The clear tenor of our prior treatment of this matter has been that the basic controversial issue involved is the proposed construction of an Alaskan oil pipeline. While we have recognized that the parties to the dispute were in disagreement over both the need for developing Alaskan oil reserves quickly and the ecological effects of transporting oil from Alaska by pipeline, we have not suggested and do not believe that these two facets of [*715] the basic problem should be treated as independent controversial issues to be examined separately under the fairness doctrine. n1 NBC, we think, has reasonably determined that the issue the petitioners have wanted influenced is the issue of pipeline construction. As the licensee points out, the petitioners have considered the time element important in terms of a governmental decision to grant land use permits for the pipeline. What is important, therefore, is that the spokesmen for the opposing viewpoints on the merits of the pipeline be afforded a reasonable opportunity to express their views. The particular arguments to be made and issues to be raised are matters to be determined by the parties, and there is no indication here that the pipeline opponents have not been afforded a reasonable opportunity to make all arguments they regarded as significant. This is not a case of the sort mentioned in Letter to NBC, 25 FCC 2d 735 (1970), where a licensee has made two important points in discussion of an issue and then afforded time only for discussion of contrasting views on one of the points, rejecting fairness requests on the other point. We therefore decline to grant the requested relief.
n1 Our finding in the September 23, 1971 opinion that an advertisement whose thrust was America's alleged urgent need for oil was germane to the controversy, was a finding of relevance to "the pipeline issue." That finding does not support petitioners' contention that the opponents of the pipeline must be afforded independent response time on the "energy crisis issue."
3. Accordingly, IT IS ORDERED, That the petition for reconsideration filed by The Wilderness Society and Friends of the Earth IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Again we are faced with the issue of NBC's compliance with the Fairness Doctrine after its broadcast of several commercials dealing with the Alaskan oil discoveries.
Six months ago we decided that NBC had erred in not treating the issues presented in these advertisements as controversial issues of public importance. Three months ago we denied NBC's petition for reconsideration of the earlier ruling, but ruled, over my dissent, that NBC had complied with its obligations under the Fairness Doctrine to provide reasonable coverage to both sides of the controversy.
On October 22, 1971, the petitioners, Wilderness Society and Friends of the Earth, filed a request that we reconsider one aspect of our September 23, 1971 decision. Their claim is that we erred in limiting the scope of the "controversial issue of public importance" to whether the Alaskan pipeline ought to be built.
In our June 30 decision, we stated that:
The quoted advertisements appear to raise issues concerning (i) the need for developing the oil reserves in Alaska at this time and (ii) the ecological effects which may ensue from such development... On the basis of the information before us, we cannot find the programs cited by you [NBC] afforded reasonable opportunity for the presentation of contrasting views to [*716] those presented in the commercials, e.g., the possible adverse ecological and environmental effects and the possibility of obtaining oil elsewhere. n1
n1 Wilderness Society and Friends of the Earth, 30 F.C.C. 2d 643, at 646 (1971).
In our September 23 decision, we stated that: "In this case, the ESSO advertisements refer to oil development in the far North and discuss both the need for rapid development of oil deposits and the ecological impacts of such development." n2 However, later in that opinion, at par. 10, we limit the discussion of NBC's compliance with the Fairness Doctrine to the single issue of whether the oil pipeline ought to be built.
n2 Wilderness Society and Friends of the Earth, 31 F.C.C. 2d 729, at 733 (1971).
In a separate dissenting and concurring opinion, I argued that NBC had failed to comply with the Fairness Doctrine by failing to present sufficient programming (of the spot-advertisement nature) putting forward the arguments against building the pipeline. In that opinion, I did not address myself to the issue of the need for developing oil reserves in Alaska.
Clearly, from the opinions of June 30 and from the major portion of the majority opinion of September 23, this Commission defined two separate issues -- both the desirability of building the pipeline and the need to develop Alaskan oil reserves. Abruptly, in the midst of the September 23 opinion, the Commission reversed its field and limited the discussion to the pipeline issue. It did so without explanation. Now, in the majority's opinion today, there is a lame attempt to cover its elusive tracks:
The clear tenor of our prior treatment of this matter has been that the basic controversial issue involved is the proposed construction of an Alaskan oil pipeline. While we have recognized that the parties to the dispute were in disagreement over both the need for developing Alaskan oil reserves quickly and the ecological effects of transporting oil from Alaska by pipeline, we have not suggested and do not believe that these two facts of the basic problem should be treated as independent controversial issues to be examined separately under the fairness doctrine.
I do not believe that the majority has adequately explained why, in mid-stream, the issues were narrowed. While we are not inextricably bound by our prior decision to consider this a two-issue controversy, unquestionably we have the legal obligation to explain in rational, reasonable terms our change-of-mind. We are not allowed the luxury of deciding the same case one way on Monday and the other way on Tuesday. Melody Music, Inc. v. FCC, 345 F.2d 730 (D.C. Cir. 1965); Burinska v. NLRB, 357 F.2d 822 (D.C. Cir. 1966). Similarly, I do not believe that -- in the same proceeding -- we can make a conclusion of law in Monday's opinion and reverse it in Tuesday's, without making an adequate, rational explanation. "[The] Commission... must explain its reasons and do more than enumerate factual differences...." n3 Nor is it legally sufficient for the Commission to say "Black is white, because we say it is," which is the way today's majority opinion seems to read.
n3 Melody Music, Inc. v. FCC, 345 F.2d 730, at 73 (D.C. Cir. 1965).
We are not required to grant a petition for reconsideration, but the fact is that we have made an error of law in this case, and we are required to correct that error.
[*717] If my own position on September 23 must be interpreted as an acceptance of the majority's definition of the (narrowed) issue then I was also in error. I would correct that error by granting the petition for reconsideration in this case, and asking the parties for their comments on NBC's coverage of the issue of whether there is a need to develop the Alaskan oil reserves at this time.
Accordingly, I dissent.