In Re Complaint by THE COMMITTEE OF ONE MILLION AGAINST ADMISSION OF COMMUNIST CHINA TO THE UNITED NATIONS Concerning Fairness Doctrine re WABC-TV, WCBS-TV, WNBC-TV, WNEW-TV, WOR-TV, WMAL-TV, WRC-TV, WTOP-TV and WTTG-TV and Networks
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 545
RELEASE-NUMBER: FCC 71-1096
OCTOBER 22, 1971
[*545] This is with reference to your complaint filed October 14, 1971 against the three national television networks, and the licensees of WABC-TV, WCBS-TV, WNBC-TV, WNEW-TV and WOR-TV, all in New York City, and WMAL-TV, WRC-TV, WTOP-TV and WTTG (TV) in Washington, D.C., because of their refusal to sell time to you for the broadcast of a one hour documentary film entitled, "U.S. China Policy: Danger at the Crossroads." You also request "a declaratory ruling that the refusal by all three networks and all Washington VHF stations to sell time for the carriage of the film constitutes a violation of individual licensee obligations under the Fairness Doctrine and that in light of the unique circumstances here present the Committee is entitled to a limited access right to have its program televised on one or more of the aforementioned Washington stations and one of the networks." n1
n1 You state that television station WPIX, New York, has agreed to sell you time for the program.
The Committee is a bi-partisan national group including members of Congress. Its basic position is that Red China should not be admitted to the United Nations, and the film you wish to present "is intended to present vigorously a responsible position" against such admission. The complaint states that the film "presents a discussion with eye-witnesses and experts exposing the danger that Red China represents to the world community," and is designed to reach the general mass audience in America, and especially in New York and Washington, the government leaders in New York and Washington, and the international representatives who reside both in New York and Washington. It expresses the further belief that the film will have no value unless it can be viewed prior to or during the debate at the United Nations, and it requested immediate relief on the ground that United Nations debate on the admission of Red China was to commence on October 18, 1971, with a vote to follow within several weeks.
It is contended (1) that the reasons given you by the licensees for refusing to broadcast the program "taken together, are totally unsatisfactory [*546] and that the refusal to sell time constitutes an unlawful flat ban on the sale of time for presentation of controversial viewpoints on matters of paramount national concern," and (2) that "refusal by these licensees to televise this program violates the general public's right to information and vigorous debate on matters of vital national interest and violates the derivative access rights of responsible groups, such as the Committee, who wish to promote the public dialogue."
Primary reliance is placed upon Business Executives' Move for Vietnam Peace v. F.C.C., U.S. App. D.C. , F. 2d , 22 RR 2d 2089 (D.C. Cir., August 3, 1971), rehearing en banc denied, October 7, 1971 (hereafter BEM). Thus, the complaint states that the Court held in that case 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," and that what is at issue here "is the stations' and networks' collective refusal to give the general viewing public access to information and viewpoints on an extremely critical issue, when presented by partisan, but responsible outside groups." It is claimed that the Court in BEM expressly forbade this type of prior restraint. The complaint further relies upon the Supreme Court's decision in Red Lion Broadcasting Company v. F.C.C., 395 U.S. 367 (1969), holding that "... the right of free speech of a broadcaster... does not embrace a right to snuff out the free speech of others...." (395 U.S. at 387), and that "... it is the right of the viewers and listeners, not the right of the broadcasters, which is paramount...." (395 U.S. at 390).
You submit that in light of BEM, it is not enough to answer that the Red China issue will be covered on news programs and specials prepared by each station or network internally, but that there is a limited right of access by groups like your Committee who are trying in a responsible way to debate a critical issue of national importance. You further state that the Committee "is fully aware of the general principle that each licensee has broad discretion in discharging its responsibilities to present controversial matters," and that "conversely, no individual has a right to express his particular view by means of a broadcast facility." You declare that, nevertheless, under Red Lion and BEM, there is in some circumstances a "limited right of access" which places upon the licensee the duty to carry the requested program in the absence of most compelling reasons. This duty you find to be present here because it is not sufficient for licensees to present their own programming on the China issue where a partisan spokesman is available and prepared to purchase time to present the views of those it represents. Station convenience and the burden of responding to others who demanded equality of treatment are also rejected as inadequate excuses.
While you recognize that current proceedings in Docket No. 19260, FCC 71-623, Notice of Inquiry released June 11, 1971, are designed to resolve the problems presented by demands for access, you urge that your urgent demand cannot await the conclusion of that Inquiry.
You also contend that you qualify for time on the basis of the Commission's ruling in Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283 (1970). You state that President Nixon [*547] announced in July of this year a major shift in the United States China policy and that "his announcement has had extensive coverage on these very television stations and networks." You maintain that the opportunity for an uninterrupted presentation similar to the President's format on the issue of seating Red China should be afforded as required by that decision.
Resolution of the complaint summarized above presents considerable difficulties, partly because of the time factor. Although three networks and nine television stations are involved and the complaint states that the Committee has been attempting to purchase one hour of time for the past several weeks, relief before the Commission was not sought until October 14, 1971, almost on the eve of the commencement of debate in the United Nations. At the same time, because of the imminence of the debate, immediate relief was requested. We must therefore resolve the issues presented as best we can on the record before us.
We find first that no substantial issue is raised of a failure to adhere to the Fairness Doctrine. While the complaint relies upon our decision in Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283 (1970), that decision is not helpful to the complainant here. In that case we found that a series of prime time presidential broadcasts on a particular issue required the furnishing of some additional time for contrasting views. Here, there is reliance only upon television coverage of a single presidential policy announcement. The distinction was clearly expressed in the case relied upon as follows (25 FCC 2d at 297):
The critical consideration thus becomes: Are reasonable opportunities afforded when there has been an extensive but roughly balanced presentation on each side and five opportunities in prime time for the leading spokesman of one side to address the nation on this issue? We believe that in such circumstances there must also be a reasonable opportunity for the other side geared specifically to the five addresses (i.e., the selection of some suitable spokesman or spokesmen by the networks to broadcast an address giving the contrasting viewpoint). We wish to stress that we are not holding that such obligation arises from a single speech -- that where an uninterrupted address is afforded one side, the fairness doctrine demands that the other side be presented in the same format.
Although the complaint before us does not set forth the format in which the President's announcement regarding China was made, there is no indication that the situation before us in the cited case is present here.
Furthermore, no other basis for a fairness complaint is presented. There is no claim that the station and networks involved have not made available reasonable opportunities for the presentation of conflicting views on United States policy concerning the admission of Red China to the United Nations. We may assume that United States policy on this issue is a controversial issue of public importance, but there is no basis for either an adverse finding on the Fairness Doctrine question or for further exploration of that issue.
[*548] The heart of the complaint is the claim that whatever steps may have been taken to inform the public on the various viewpoints with respect to United States policy on Red China's admission to the United Nations, a responsible group wishing to buy an hour's time to present its views has a right to do so, limited only by the presence of some compelling factor preventing the sale of such time. The Committee urges that substantial reasons must be given for a rejection of its program and that the reasons given it, which it has summarized in an Appendix to the complaint, are clearly inadequate.
As the Committee recognizes, the Commission has not had an opportunity to resolve the complex problems attendant upon demands for access to the broadcast medium by persons or groups wishing to present viewpoints on public issues. The Commission's consistent policy, now under review, has been that licensees must have adequate control to insure that the public will be reasonably informed, and that the assertion of a right of access is incompatible with the overriding right of the public to hear all substantial sides of an issue, particularly in view of the licensee's duty to present an opposing viewpoint without charge if that is necessary to insure that a conflicting viewpoint is not denied a hearing. We read Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969), as being consistent with our position and, indeed, as rejecting a personal right of access.
It is true, as the complaint urges, that the decision of the Court of Appeals for the District of Columbia Circuit in the BEM case held 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. The Court made clear that it was not holding that any particular applicant for air time must be accepted, and it directed the Commission to develop reasonable standards covering the acceptance of editorial announcements. We recognize that the principles enunciated in that decision are pertinent here. However, for the reasons set forth below, we cannot comply with the request for a ruling that the Committee is entitled to access either on all of the complained of facilities, or in the Washington market n2 and on at least one of the national networks.
n2 The complaint refers to the Washington market because station WPIX in New York has agreed to carry the program.
While one of the petitioners in the BEM case requested a broad ruling on its right to purchase time, including program length material as well as announcements, we read the Court's opinion as focusing upon the right of access for paid public issue announcements. Thus, the Court was at pains to point out that station control of non-advertising time would not be disturbed. It stated (Slip. Op. 39): "Such a modest reform would not substantially undermine broadcasters' editorial control over their frequencies. For broadcasters would retain full latitude to control the content of their programming. Their editorial control over non-advertising time would not be disturbed whatever. All that would be affected is their allocation of advertising time -- an area in which editorial control over content has never been of major importance. The interest in deciding which advertisements to accept is not as great as in deciding what public issues to cover and how to [*549] cover them on news presentations, for example." Therefore, there has been no canvass by either the Court or the Commission of the full range of problems involved in applying the Court's holding to programs as long as the one involved here. For that reason, we would not construe the Court's mandate as specifically applicable to the situation now before us.
Furthermore, the Commission has decided to seek certiorari in the BEM case, and we have asked the Court of Appeals for a stay of its mandate. Our request for that relief has not been acted upon. We therefore feel constrained at this time to adhere to our long standing policy of leaving the choice of programs to individual licensee judgment so long as the licensee operates within the perimeters of the Fairness Doctrine. We have not in this case asked for a direct response from the networks or individual stations, both because the time available for decision seemed to preclude that course and because under our established policy we do not require an accounting for the rejection of individual programs. Indeed, it has been a fundamental purpose of our policy to keep the Commission out of individual programming decisions. The complaint before us is an example of the program review function we would have to perform to validate a limited right of access for program-length material.
In short, in view of the request for immediate relief, we have acted expeditiously, and without obtaining the comments of the networks and licensees involved, and have rejected the basic claim put forth by the complainant -- the asserted right under BEM to purchase time. In the circumstances, we leave for more appropriate overall proceedings (e.g., Docket No. 19260) possible consideration of any other policy matters.
In view of the considerations set forth above, we find that the complaint must be denied.
Commissioner Robert E. Lee concurring in the result; Commissioner Johnson dissenting and issuing a statement; Commissioner Wells absent; Commissioner Reid not participating.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
A bipartisan national group, including members of Congress, opposes the admission of Red China to the United Nations.
The group, calling itself "The Committee of One Million -- Against the Admission of Communist China to the United Nations," has prepared a one hour television documentary presumably presenting the admission question from its point of view.
It has asked for the opportunity to present its program on the three commercial networks and a number of television stations in New York and Washington. It offered to pay the full commercial rates for the time. Every network and station (except WPIX, New York) refused to sell time.
Needless to say, how one feels about the merits of the Committee's [*550] position has nothing to do with their right to present their program. The issue of Red China's admission to the UN clearly is an important and timely one. Indeed, some of the networks and stations have apparently refused to accept the program on the grounds they are already presenting programming material on the issue.
There are a number of issues before us.
(1) What was the law prior to the BEM case? Business Executives Move for Vietnam Peace v. FCC, F.2d , 22 P & F Radio Reg. 2d 2089 (D.C. Cir. 1971).
(2) Does the BEM case, holding that networks and stations may not arbitrarily refuse to carry any "commercials" from private groups on public issues, apply to programs as well? If so, what are the appropriate guidelines for stations considering requests for time?
(3) Is the BEM case applicable to the petition before us -- in view of the fact that the FCC is still trying to overturn, and postpone, the impact of that decision by seeking certiorari from the Supreme Court?
(4) If the BEM case is applicable, and governs programs as well as commercials, are the grounds allegedly stated by the networks and stations for refusing to carry the program consistent with the BEM case?
(1) Prior to the BEM case, broadcast licensees had a two-fold obligation with regard to controversial issues of contemporary public importance. Under the "public interest" requirement of the Communications Act, 47 U.S.C. 307(d), 309(a) (1970), broadcasters were required to ascertain and present such issues in their overall programming schedule. Moreover, the fairness doctrine required them to present such issues fairly, using their best efforts in a bona fide attempt to balance viewpoints expressed over the air. Fairness Doctrine Primer, 29 Fed. Reg. 19416 (1964). These regulations were subject to a constitutional attack in Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969). Although the Red Lion decision was certainly consistent with the doctrine of "access" ("there is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all," 395 U.S. at 392), the holding was limited to the constitutionality of the fairness doctrine. Thus, prior to BEM, a broadcaster had no legal obligation to put any particular spokesman, spot announcement, or program on the air. (The only exceptions to this generalization would have arisen under the "personal attack" or "equal opportunity" doctrines -- neither of which is applicable to the facts before us.) So long as he fairly presented the issues dealt with he could accept, or reject, whomever he chose. Accordingly, in this case, prior to the BEM ruling the networks and stations that rejected the Committee's program would have been fully within their rights in doing so.
(2) The BEM case, on its facts, did not involve a request for a substantial amount of television time -- let alone an hour -- for the presentation of a privately prepared program. The Businessmen's group merely wanted to purchase available commercial time, at the going rate, to present brief spot announcements with ideological content. The station involved (WTOP, Washington) refused. When the Businessmen argued to the FCC their right to the time, the FCC [*551] upheld & the station's right to refuse to accept the Businessmen's money and spot announcements. The United States Court of Appeals reversed. Judge Wright made clear, however, that the Court was not requiring all stations to accept all commercial messages with ideological content.
We hold 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. 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.
(slip op. p. 4). Needless to say, the "reasonable procedures and regulations" have not been forthcoming. The Commission is still fighting the BEM decision.
That leaves us with two questions. Does the rationale of the BEM decision cover programming as well as commercials? If so, what standards should be applied by a station in accepting or rejecting programming?
It seems to me that the general principle of the BEM decision simply must apply to programming. That is not to say for a moment, of course, that the reasonable guidelines governing licensee responsibility to accept commercial announcements would be equally appropriate for their evaluation of tendered programming. But what is a one-minute "commercial" with ideological or political content if it is not a one-minute "program"? Judge Wright said:
We conclude, then, that the public's First Amendment interests constrain broadcasters not only to provide the full spectrum of viewpoints, but also to present them in an uninhibited, wide-open fashion and to provide opportunity for individual self-expression.
He then acknowledges in a footnote at that point, "Of course, all three of these interests apply to non-advertising time as well as to advertising time." (slip op. p. 23).
Accepting for the moment that BEM does apply to the case before us, what are the appropriate guidelines governing licensee evaluation of the Committee's program? Clearly, it seems to me at this stage of development of the law of "access," the networks and stations are not obliged to accept and air this particular program merely because it was offered to them by a group willing to pay for the commercial time to show it. We need not reach and resolve all possible hypothetical fact situations in disposing of the case before us. Indeed, it is inappropriate to do so, and I will not make the attempt.
The threshold question, it seems to me, is whether the reasons alleged to have been advanced by the stations for rejecting this program are consistent with the BEM decision. For reasons I will explain in (4), below, I believe they are inadequate reasons.
There is some question as to exactly what the networks and stations did say. All we have before us at this time are the allegations contained in correspondence from the Committee to this Commission. I would hold a prompt, expedited hearing on this, and related, issues. But the [*552] Commission does not intend to follow that course, so I will proceed to offer my proposed disposition of the case based on the facts as alleged.
(3) It may technically be the case that BEM is not applicable to the case before us because the FCC is seeking a stay of the mandate from the Court of Appeals, and seeking certiorari from the U.S. Supreme Court. That fact does not, however, affect the rationale of that case. As I explained in my dissenting opinion when the case was before the Commission, Fairness Doctrine Ruling, 25 F.C.C. 2d 242, 249 (1970); Declaratory Ruling, 25 F.C.C. 2d 216, 230 (1970), I believe the FCC is required, on its own motion, to make some provision for public access to the public's airwaves. My view has not been lessened since the Court's reversal of the Commission's decision. I believe the Commission was wrong in BEM. I believe it is wrong here. I believe we can right that wrong with justice for the public and very little burden upon our licensees, and that it makes us look foolish to fight such modest reform with such tenacity and extremism on behalf of the broadcasting industry.
(4) What were the reasons given by the networks and stations for rejecting the program? Here is a summary, based upon the allegations of the Committee, prepared for the Commission by its staff:
It is stated that the networks and stations gave various reasons for refusing to broadcast the program, including the following: ABC would not accept a news program produced by an outside producer; CBS is working on two programs on Red China which will be ready some time in December, no time periods are presently open, and their documentary programming has been scheduled up to next June; NBC would not air the program because of its policy that any program dealing with a controversial issue must be dealt with from its inception by the NBC News Department; time for the airing of a controversial issue; WCBS-TV has a general news policy of not taking programs produced by outside producers regarding news; WNBC-TV stated that it feels it has covered the situation of Red China (for and against admission) adequately in its news programming and would be continuing to afford all around coverage as the events unfold, and that it rarely disturbs its programming at this time of the year for special events because of its new fall line-up; WNEW-TV stated it could not offer a time period because the station did not want to pre-empt any of its new fall programming. WOR-TV stated that it was currently having its new programming measured in the October and November Rating Books and would not be able to offer a time period where ratings would not be affected; WMAL-TV said production values were such as to preclude its being carried, and refused clearance; WRC-TV declined to attend a screening in Washington on October 5 to which its program manager had been invited; WTOP-TV was airing its own special on Red China on Friday, October 1, and it could not therefore run another special on the same subject, inasmuch as it was likely to present a re-rum of its own program if anything was further scheduled on that subject; and WTTG(TV) would not take the program because it covered a controversial issue and because the station was giving adequate coverage to the issue in other programming.
Each of these reasons could be discussed in turn. Suffice it to say that all are based, in my judgment, on pre-BEM standards. That is to say, none of the networks or stations can demonstrate that they do accept a "reasonable" amount of outside programming. Indeed, some of the reasons stated ("not accept a news program produced by an outsider producer") would, on their face, be violative of the BEM decision -- as I interpret it.
[*553] Once again, I repeat, that I do not believe the BEM decision required any of the networks and stations involved to accept this program. They might have decided that they were presenting outside-produced programs on other controversial issues this week. They might have set aside a reasonable amount of time for outside production and already committed it to other programs. They might have already accepted outside production putting forward the view of the Committee. A bona fide finding that "production values" (WMAL's reason) were deficient -- that is, poor quality audio, or video, or directing, or what not -- might be a valid reason under some circumstances. But the reasons alleged to have been stated -- if true -- were not adequate.
I would so state and direct the networks and licensees to reconsider the program in timely fashion and to establish reasonable standards for accepting at least some of the outside-produced programming tendered them. Because the Commission has not chosen to follow such a course, I therefore dissent.