Broadcast Licensees of Editorial Advertising
Docket No. 19260
FEDERAL COMMUNICATIONS COMMISSION
33 F.C.C.2d 554
RELEASE-NUMBER: FCC 72-117
February 7, 1972 Released
Adopted February 3, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT.
[*554] 1. This Further Notice concerns Part IV of our Notice of June 9, 1971, including particularly the formulation of guidelines for the acceptance by broadcasters of editorial advertising. This latter facet is both the issue involved in Business Executives' Move for Vietnam Peace v. F.C.C., U.S. App. D.C. , 450 F. 2d 642 (1971), and also an important aspect of the Part IV Inquiry -- "access generally to the broadcast media for the discussion of public issues." We have delayed comment on Part IV because, as discussed below, we are seeking further review of the above decision. However, the discussion makes clear that we must now move immediately to the consideration of guidelines in the area of editorial advertising. That being so, there is no reason to delay the filing of Part IV comments. Indeed, it would be helpful to have such comments before us when we consider the other issues in this Inquiry, since the issues are all inter-related to some degree. That does not mean that we shall decide all the issues at the same time. Circumstances appear to require more expeditious resolution of some aspects of the Inquiry than others. This Notice deals with one such area.
2. In Business Executives' Move for Vietnam Peace v. F.C.C., supra, the United States Court of Appeals for the District of Columbia Circuit held that a broadcast licensee may not, as a general policy, refuse to sell advertising time to groups or individuals wishing to speak on controversial public issues. While the Court left "undisturbed the licensee's basic right to exercise judgment and control in public issue programming" and "normal programming time," and it stated that no particular person or group has an absolute right to have his (or [*555] its) message carried, it ruled that in the broadcaster's allocation of advertising time it is not permissible to maintain a "total, flat ban on editorial advertising." The Court stated that
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.
3. On January 3, 1972 a petition for a writ of certiorari was filed on behalf of the Commission in the Supreme Court of the United States. No. 71-864, 40 U.S.L.W. 3317 (January 11, 1972). The Supreme Court has not yet acted on this petition. However, on January 24, 1972, the Court denied an application for a stay of mandate. Accordingly, the Commission is under a mandate to carry out the decision of the Court of Appeals which instructed the Commission as follows:
"On remand, the Commission should develop reasonable regulatory guidelines to deal with editorial advertisements. Petitioners should be allowed to reapply for advertising time; and, unless their presentations are found to be excludable under the Commission's guidelines, their applications should be accepted. Since the issues on which BEM and DNC seek to speak are current and changing, it is essential that regulations be developed speedily and that the affected broadcasters pass promptly upon petitioners' applications to buy time."
4. The purpose of this Notice is to solicit the views of all interested parties on the nature and content of appropriate procedures and guidelines to be adopted by the Commission in furtherance of the Court's mandate. We welcome all comments which can be of assistance in developing reasonable guidelines governing the determination by licensees of which and how many editorial advertisements will be put on the air. As a general approach, suggested guidelines or procedures should so far as possible be designed to avoid frequent recourse to individual requests for Commission rulings in particular situations. In particular, we urge parties filing comments to address the following areas:
a. May a licensee limit the time available for editorial advertisements and, if so, on what basis?
b. What regulation may the licensee make as to the placement of editorial advertisements?
c. May a licensee prevent domination by a few groups or a few viewpoints and, if so, by what means?
d. May a licensee reject a proffered advertisement on the ground that the particular viewpoint has been sufficiently expressed, short of finding undue dominance?
e. May a licensee reject a proffered advertisement on standards of taste and suitability for access to the home?
f. May a licensee reject a proffered advertisement on the ground [*556] that its subject matter is of little or no significance or interest to the community?
g. Are any restrictions on content permissible short of a finding that the material is outside the protection of the First Amendment?
h. Should the Commission's Cullman doctrine n1 be applicable to editorial and controversial issue advertisements which the licensee would not have aired in the first place except for the required sale of editorial advertising time?
n1 See Cullman Broadcasting Co., 40 F.C.C. 576 (1963), which held that a licensee cannot avoid his fairness responsibilities simply because of his inability to obtain sponsorship for the presentation of a viewpoint.
i. What is the relationship generally of editorial advertising to the licensee's responsibilities under the fairness doctrine to make available a reasonable opportunity for the presentation of conflicting views on controversial issues of public importance? In this connection consideration should be given to the decision of the Supreme Court in Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969).
5. We are issuing this Further Notice of Inquiry rather than issuing guidelines without calling for comments because we believe that we need the views of those who would be confronted with the day-to-day practicalities of applying the guidelines. We are allowing a reasonable time for the submission of comments commensurate with the importance of the issues. However, prompt Commission action is required, and we intend to expedite our consideration of this matter. No extensions of time for comments are contemplated.
6. The discussion in I has dealt with access for editorial advertising. The other aspect of the Inquiry in Part IV is the matter of the right of access to programming time. We have set forth our view that the ruling in Business Excutives' Move for Vietnam Peace v. F.C.C., supra, does not extend to programming time. See Committee of One Million, October 22, 1971, FCC 71-1096. We have also set forth in Part IV issues which would be generally pertinent here (see para. 19, Notice of Inquiry of June 9, 1971). We shall not repeat that discussion here. Parties are invited to comment on those issues and any other matters that they believe pertinent.
7. Accordingly, pursuant to applicable procedures set forth in Section 1.415 of the Commission's Rules and Regulations, 47 CFR 1.415 (1972), interested parties may file comments on or before March 8, 1972, and reply comments on or before March 23, 1972, a schedule to which we intend to adhere (see para. 5, supra). In accordance with the provisions of Section 1.419 of the Rules, 47 CFR 1.419 (1972), an original and 14 copies of all comments and replies shall be furnished the Commission. All relevant and timely comments and reply comments will be considered by the Commission before final action is taken [*557] in this proceeding. In reaching its decision, the Commission may also take into account other relevant information before it, is addition to the specific comments invited by this Notice.
8. Because of the importance of the matters in this Docket, we believe that some form of oral presentations will be helpful. If it is determined to have such presentations cover the issues in Part I of this Further Notice, we shall make this the first order of business at the oral proceedings and shall schedule such proceedings promptly after receipt of the reply comments. Finally, the authority for this Further Notice is that stated in para. 24 of the Notice of Inquiry, June 9, 1971.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON
I concur in the Commission's decision to put out a Notice of Inquiry as to what regulations or guidelines the FCC should promulgate regarding the purchase of airtime for "editorial advertisements." Certainly a decision of this magnitude should not be made without some opportunity for comment from broadcasters and citizens alike.
I. The Questions
The Commission poses nine questions to which it asks interested parties to address themselves. Since the comments of interested parties need not be limited to the particular questions posed by the Commission, I shall not object by way of dissent to any of the particular questions. However, I do question the wisdom of some of these questions, for I believe that it would be unconstitutional for the Commission to answer them in the affirmative.
In discussing the limitations that may be placed on the purchase of advertising time in BEM the Court stated:
The content of the idea which the excluded speakers seek to promote is -- emphatically -- not permitted as a distinguishing factor in itself. Indeed, the existence of an exclusionary discrimination apparently based on the content of ideas presents an additional, or greatly heightened, prima facie constitutional violation. Both free speech and equal protection principles condemn any discrimination among speakers which is based on what they intend to say. If the First Amendment prohibits anything at all, it must be a censorial discrimination among ideas. (Emphasis in original.) n1
n1 Business Executives' Move for Vietnam Peace v. F.C.C., 450 F.2d 642, 660 (D.C. Cir. 1971).
And the Court went on to say:
It is well established in First Amendment law governing access to forums that "reasonable regulations" may be promulgated and enforced to limit the exercise of free speech. At the least, there may be regulations determining the time, place and manner of speech. n2
n2 Id., 663.
Then the Court proceeded to state a few of the possible "traffic" regulations that may be promulgated by the Commission: a limit on the total amount of editorial advertisement time available; limitations on the right of placement in the time period of the advertiser's choice; [*558] a limit on the amount of time available to a particular group or adherents of a particular viewpoint; limitations on the amount of free time available to those unable to pay. n3
n3 Id., 663-665.
Some of the questions posed may raise constitutional objections:
(e) May a licensee reject a proffered advertisement on standards of taste and suitability for access to the home?
(f) May a licensee reject a proffered advertisement on the ground that its subject matter is of little or no significance or interest to the community?
Affirmative answers to these two questions would transcend the "time, place and manner" limitations which the Court authorized the Commission to enact.
The only reason I concur and do not dissent to this Notice of Inquiry is that the mere posing of these questions does not bind the Commission to adopting an affirmative answer to these questions. Moreover, interested citizens and broadcasters should have the opportunity to comment on the whole range of questions raised by the BEM decision, and I would like to have the benefit of those comments.
II. Interim Procedures
The question remains, what do we do in the meantime? What is our proper response to those petitions which might be filed between now and the promulgation of our regulations? BEM is now the law of the land. This is implicit in the fact that the Commission now asks for comments and prepares to issue guidelines, even before the United States Supreme Court acts on the pending petition for certiorari. This is so, of course, because after the decision of the Court of Appeals some six months ago (August 3, 1971), the Commission's petition for rehearing was denied by the Court (October 4, 1971), our motion for a stay of mandate was denied by the Court (October 22, 1971), and our motion for a stay of mandate was denied by the Supreme Court (January 24, 1972).
Since BEM is now the law of the land, we must rule on whatever petitions that are filed according to the law of BEM: there can be no flat ban on "editorial advertisements." I have absolutely no idea whether any such petitions are going to be filed in the next 45 days or so. But it is clear that if any are filed, it will not be appropriate for the Commission to act as it did last August 6, in the Communications Workers of America case. n4 On the day after the BEM decision, CWA was turned down by NBC and CBS owned-and-operated stations in their request to buy time for "editorial advertisements." In that opinion, to which I dissented, the Commission stated that it had not yet had time to promulgate the regulations suggested by the Court of Appeals. The same excuse is not open to the Commission now. In the six months since BEM, even while appealing the BEM case to the Supreme Court, the Commission surely could have adopted regulations to go into effect whenever the BEM case became the law of the land.
n4 Communications Workers of America, Request for Declaratory Ruling, 31 F.C.C. 2d 841 (1971).
[*559] Now we are faced with that very situation. BEM is the law, and there are no regulations. How should we act?
BEM said that it was unconstitutional for a licensee to enact a flat ban on editorial advertising. The Court's opinion shows that the presumption clearly has to be in favor of the petitioner, not the licensee, in such a dispute:
It being established that there is a strong and specific First Amendment interest in editorial advertising and that the policies discriminatorily barring such expression work a prima facie violation of constitutional principles, we must consider the countervailing considerations raised by the Commission and the broadcaster-intervenors. In order to justify the policy at issue, they must show some very substantial harm that would be caused by acceptance of editorial advertising -- a sort of harm great enough to override the First Amendment interests at stake and a sort of harm not already involved in the acceptance of commercial and "non-controversial" advertising. Only such a showing could convince us that the ban on editorial advertisements is supported by sufficient countervailing values and is not based solely on the content of the ideas conveyed. n5
n5 B.E.M. v. F.C.C., supra, at 662.
Thus, in the absence of any regulations, the burden is on the broadcaster, not the citizen. The broadcaster must explain to the FCC why he cannot accept the citizen's money and put the editorial advertisement on the air: he must make a showing of "some very substantial harm that would be caused by acceptance of editorial advertising."
Since the Court of Appeals went out of its way to state that "[since] the issues on which BEM and DNC seek to speak are current and changing, it is essential that regulations be developed speedily and that the affected broadcasters pass promptly upon petitioners' applications to buy time," n6 I do not think that this Commission has any alternative but to issue an interim rule, pending the outcome of this Notice of Inquiry, that all requests for the purchase of time for editorial advertisements must be accepted by the broadcasters, absent showing of "some very substantial harm."
n6 Id., 665.
I do not honestly know what this Commission is prepared to do if, in fact, such a petition is filed between now and the time the regulations are promulgated. As with any matter of free speech, time is of the essence. Certainly this is the cardinal principle underlying the Supreme Court's decision in The New York Times Co. v. U.S., 403 U.S. 713 (1971), where the Supreme Court once again affirmed the age-old presumption against any form of prior restraint. Inasmuch as the Commission affords no guidance on this issue whatsoever, I simply must assume that the Commission intended by its silence on the issue to adopt the interim rule of law implicit in the Court's opinion in BEM: absent a showing of "some very substantial harm that would be caused by acceptance of editorial advertising," the broadcaster is required by the First Amendment to accept the request for paid access for the airing of editorial advertising. n7
n7 I do not consider it necessary to discuss in detail what sort of showing would be appropriate under the "very substantial harm" test. I must state that I find it hard to believe that the placement of a few editorial advertisements into any broadcaster's schedule -- accompanied, of course, by good money -- would do anything but enrich the broadcaster. I know of few cases in which broadcasters have been unable to find the airtime to squeeze just one more spot on the air, especially when the order is accompanied by payment. Is that not the hallmark of our commercial broadcasting system?
On the other hand, there is the question as to effect of editorial advertising on the broadcaster's fairness obligations. For the purposes of argument, I shall pose three distinct examples in order to assess this question.
The first case is that of a citizen who seeks to buy time for an issue that everyone agrees is not controversial and thus not subject to the Fairness Doctrine. These spots are by definition non-controversial and should go on the air without question, since they do not give rise to the obligation to present the other side of a controversial issue, and thus no revenue loss to the broadcaster can result under Cullman. 40 F.C.C. 576 (1963).
The second situation is if the issue being discussed by the editorial spots has already been heavily covered by the broadcaster, and the coverage has already been adequately balanced. Such an instance might be Vietnam, the subject of BEM's spots. No Cullman problems would arise since it is unlikely that any overall imbalance would result from the acceptance of a few more minutes of time for or against the war.
The third situation is that in which a controversial issue not previously covered by the broadcaster is discussed in the spots. Here, the inclusion of airtime on one side of the controversy will not create any obligations that do not already exist on the part of the broadcaster: He always has had the obligation under the Fairness Doctrine to cover the controversy at his own expense. Thus, he cannot really object to the particular form (editorial spots) in which the controversy has first been broached on his station -- especially when it was produced at no cost to him.
Accordingly, I concur.