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In Re Complaint of DEMOCRATIC NATIONAL COMMITTEE AGAINST NATIONAL BROADCASTING CO., INC., COLUMBIA BROADCASTING SYSTEM, INC., AMERICAN BROADCASTING CO.

 

FEDERAL COMMUNICATIONS COMMISSION

 

33 F.C.C.2d 631

 

RELEASE-NUMBER: FCC 72-116

 

February 17, 1972 Released

 

 Adopted February 3, 1972 

 


JUDGES:

BY THE COMMISSION: COMMISSIONER BARTLEY CONCURRING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE ABSENT; COMMISSIONER WILEY NOT PARTICIPATING.


OPINION:

 [*631]  1.  The Commission has before it the complaint of the Democratic National Committee (DNC) against the three major networks relating to their coverage of the President's economic program beginning with the August 15, 1971 announcement of the price-wage freeze.

SUMMARY OF PLEADINGS

2.  DNC has filed a complaint with the Commission which requests the Commission to direct the three major networks to grant it time to respond to (a) three uninterrupted Presidential TV and radio appearances, two of which were in prime time; (b) one uninterrupted Presidential radio appearance and (c) three press conferences of Treasury Secretary Connally on radio and television, which were in daytime.  Each of these broadcast appearances was concerned with the President's economic policy, as initially outlined in his prime-time TV and radio message of August 15, 1971.  n1 In its complaint, DNC expresses "sharp disagreement with many of the details of the President's economic program." It contends that the program "places a disproportionate share of the burden for correcting inflation upon the wage earners of America." In addition, DNC asserts that the President placed the blame for the nation's economic ills on the Democratic Party and that the President, in his August 15 address, "claimed that the Republican Administration had been more successful than the Administration of his Democratic predecessors in holding down the rate of unemployment." adnc/ also refers to the President's reference to opposition  [*632]  to his economic polices as the pleadings of "special interest" groups in his radio address of September 6 and to Secretary Connally's press conference of November 22 which it claims "impugned the patriotism of the leaders of the Democratic Party." DNC contends that the Commission's Committee for Fair Broadcasting case requires the networks to afford it an uninterrupted opportunity to comment on the President's announced economic policies.  Specifically, DNC refers to language in that decision which stated:

n1 Information before the Commission indicates that the Presidential appearances on both the TV and radio networks, listed by DNC, were as follows: August 15, 1971, 9 p.m. to 9:20 p.m.; September 9, 12:30 p.m. to 1:08 p.m.; October 7, 7:30 p.m. to 7:46 p.m.; and September 6, 12 noon to approximately 12:15 p.m. (radio networks only).  Secretary Connally's press conferences were broadcast by the three TV and radio networks as follows: August 16, 12 noon to 1 p.m.; October 8, 1 p.m. to 2 p.m.; November 22, 11:30 a.m. to 12:10 p.m.

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 spokesman by the networks to broadcast an address giving the contrasting viewpoint).  Committee for Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 297 (1970). DNC submitted copies of each of the Presidential addresses referred to in its complaint and states that the networks denied DNC an opportunity to respond to these addresses, as it asserts is required by the above language, the fairness doctrine and the First Amendment.  n2

n2 See par. 9, infra for discussion of subsequent DNC pleading regarding overall programming.

3.  Each of the networks has responded to DNC's complaint by stating that it provided a reasonable opportunity for the presentation of contrasting views on issues raised by the Administration's economic policies, and that the Commission's decision of August 20, 1971, ( Democratic National Committee, et al., 31 FCC 2d 708 [Appeal pending before the U.S. Court of Appeals, D.C. Circuit]) would preclude the granting of time to DNC to reply to the broadcasts that are the subject of this complaint.  n3 CBS asserts that the Commission specifically limited the Committee for Fair Broadcasting language cited above to the facts of that case, namely five uninterrupted Presidential addresses in prime-time, and thus, since there are only three Presidential addresses involved here [on television], and only two in prime-time, the Committee for Fair Broadcasting case is inapplicable.  ABC contends that if it were to relinquish control over a program to DNC to respond to the economic broadcasts of the President and Secretary Connally, such action would entitle the Republican Party to a similar broadcast, under prevailing Commission precedent.  n4 NBC asserts that NBC's duty to inform the public about issues raised in Presidential speeches "should not be defined mechanically to require the giving of free time to the opposition party."

n3 That decision stated in part: Presidents and other public officials (e.g., Governors, mayors) do report to the public, and such reports, as we have said, contribute to an informed citizenry.  Of course, the officials in such reports are most often engaged in setting forth the wisdom of the particular actions on which the reports are given.  But this does not mean that this is a political party appearance to which given equal opportunities "is applicable." Democratic National Committee, supra, at 712.

n4 See CBS v. FCC,     U.S. App. D.C.    ,     F 2d    , decided November 15, 1971, Case Nos. 24,655 and 24,659, which reversed the Commission's ruling on this point.

4.  Each of the networks has listed programming which it states presented views contrasting with those of the President and Secretary Connally.  CBS refers to four broadcasts of Face the Nation after August 15 which featured interviews with Senators Proxmire, Humphrey and Muskie, portions of which were critical of the President's economic  [*633]  policies, and Governor Preston Smith of Texas, devoted entirely to his "opposition to the wage freeze." CBS also refers to two special news broadcast on August 16 and October 8, which dealt with the freeze and its aftermath.  CBS states that 53 minutes of its daily news broadcasts in the month after the August 15 address were devoted to the freeze and related issues.

5.  NBC has listed sixteen broadcasts of Today and Meet the Press which contained views on the Administration's economic policies, some of which were critical of those policies.  The guests on Meet the Press included Leonard Woodcock, Senator Harris, Walter Heller and six Republican governors.  It has also listed twenty-four news items broadcast during its daily news coverage between August 16 and October 12, which contained viewpoints critical of the Administration's policies.  NBC also cites two special programs -- one broadcast on November 7, and another broadcast on the August 26 Today show which was repeated on subsequent Today programs.  It states, however, that the "main objective" of these programs "was that of explaining how the wage-price freeze will be administered," rather than presenting views contrasting with the President's.  NBC's letter to the Commission of November 3 referred to a program it planned to broadcast on November 21 entitled "The Loyal Opposition: A Democratic Reformation." n5

n5 See Paragraph 12, infra, for further discussion of this program.

6.  ABC has listed a number of individuals, including six leading Democratic Party spokesmen, who have expressed views critical of the Administration's economic policies during daily news broadcasts since the announcement of the wage-price freeze.  Additionally, it refers to six broadcasts of Issues and Answers which presented spokesmen who discussed both sides of the Administration's economic policies.  The spokesmen were Vice-President Agnew, Labor Secretary Hodgson, George Meany, Wright Patman, George McGovern, and Leonard Woodcock.  Finally, ABC cites a program broadcast on October 13 entitled "The Economy: A Continuing Report."

7.  On November 9, the DNC responded to the networks' replies to its complaint by noting that NBC and ABC had made no effort to distinguish the case at hand from the Committee for Fair Broadcasting ruling, supra, and by asserting that CBS's argument on this point was unpersuasive.  DNC states that the networks' "unsupported assertions" that they have complied with the fairness doctrine should not settle the issue, since no anti-Administration spokesman was afforded "the kind of opportunity which the President had." Committee for Fair Broadcasting, supra, at 296. DNC adds that it did "not have the resources to monitor the programming of the three television networks on a daily basis" and that if the Commission were to examine the overall programming of the networks on the President's economic program, and not rely on Committee for Fair Broadcasting, it should provide for an "evidentiary hearing," making available to DNC the program logs and other pertinent documents of the networks since August 15.

8.  On November 16, the Commission requested transcripts of four broadcasts, two by CBS on August 16 and October 8, one by ABC on  [*634]  October 13 and one by NBC on November 21 (after it was broadcast).  It appeared at the time of the request that these broadcasts constituted the only network programming, aside from daily news coverage, weekly news interview programs and programs which the networks conceded were for information purposes only, which presented views contrasting with the Administration's economic program.

9.  On November 22, DNC submitted comments concerning the Commission's request for transcripts from the networks.  It states that if the Commission's request indicated a desire to examine the overall performance of the networks in their coverage of the Administration's economic policies, the Commission should make an inquiry into the networks' overall programming on the issue, particularly in view of the networks' failure to list pro-Administration programming in their responses to the Commission's inquiry of October 21.  However, DNC asserts that such a request is unnecessary if the Commission chooses to rely on its ruling in Committee for Fair Broadcasting, supra, with respect to responses to the five Presidential appearances on Vietnam or if the Commission rules that DNC has an automatic right to respond to Presidential broadcasts, irrespective of other programming by the licensee.  In its letter, DNC renews its request for a hearing that would "permit an exhaustive examination of all facts relevant to its complaint [if an automatic response right is not recognized]."

10.  The transcripts of the two requested CBS broadcasts were received on November 29.  CBS stated, in submitting the transcripts, that:

DNC's complaint in this matter does not contain a showing of lack of fairness by CBS in coverage of the Administration's economic policies sufficient to justify holding an evidentiary hearing or requiring CBS to disprove the allegations of unfairness.

 

The transcripts of the program "The Economy: A New Way to Go" broadcast on August 16, consisted mainly of informational background on the freeze, including the views of President Nixon, Lee Iacocca of Ford Motor Co. who expressed "his personal delight with the President's move," auto workers, automobile dealers, railroad employees, Secretary Connally, Director of the Office of Management and Budget George Shultz, economist Milton Friedman who "saw both good and bad in the President's plan," economist Paul Samuelson who was glad the President had begun to "do something about [an] unsatisfactory situation," securities and exchange dealers and journalists in Europe, Senator Proxmire who called the President's announcement "a good first step" and Senator Mansfield who "welcomed the President's New Policy." The CBS broadcast of October 8, "After the Freeze" contained additional background material and the views of Secretary Connally, an Administration economic consultant Pierre Rinfret, Milton Friedman who took a "skeptical view of the President's measures," and various union leaders and workers.

11.  ABC submitted a transcript of the program "The Economy: A Continuing Report," broadcast on October 13 from 7:30-8:00 p.m. The PROGRAM WAS DEVOTED EXCLUSIVELY TO A SIMULTANEOUS INTERVIEW WITH Senators Humphrey and Proxmire and a former Administration economic official under President Johnson, Arthur Okun.  Each of the guests was given an extended opportunity to express his views on the  [*635]  President's economic program, various aspects of which were criticized, including the composition of the Price Board, the institutional tax structure changes, and the effect of the program on imports, unemployment and inflation.  In submitting the transcripts of this program, ABC expresses its belief that the Commission should not, as a normal procedure, request transcripts from networks or licensees on the basis of vague and unsupported allegations of unfairness, as it states the allegations by DNC are in the instant case.

12.  On December 6, the Commission received the transcripts of NBC's "Loyal Opposition" program of November 21, 1971.  DNC has asserted, and the Commission's review of the program so indicates, that the program did not attempt to discuss the President's economic program, but instead dealt with pending reforms in the Democratic Party Convention.  NBC states that this program "is just a part" of its total programming, but broadcasters "should not be required, in response to every complaint such as this one [by DNC], to undertake the burden of analyzing all their past programming and sorting it out on the basis of the positions expressed on the issue concerning which the complaint is made."

DISCUSSION

13.  We shall first deal with the basis for our requests for transcripts of the four programs cited above and our refusal to require the networks to submit documentation of all pro-Administration programming with regard to present economic policies.  The networks have cited Commission precedent, including Democratic National Committee, supra, issued August 21, 1971, in opposing requests for transcripts and other documentation of their programming.  That case held that:

There is a crucial distinction to be made between the earlier and the present circumstances -- namely, that the repeated Presidential appearances in 1970 (five in that instance), the basis for our ruling in Committee for Fair Broadcasting, dealt solely with the single issue of the Vietnam war.  That fact was essential to our determination that an appropriate response was required.

Since DNC has not denied that the programming cited by the networks in their responses to the Commission's October 21 inquiry presented contrasting views on the issues raised by the President and Secretary Connally, and has not cited programs which contained pro-Administration views apart from these presentations, we feel that Commission precedent does not require a full-scale examination of all network programming on the basis of DNC's complaint.  (Cf, Allen Phelps, 21 FCC 2d 12 (1969)). However, because DNC submitted transcripts of Presidential appearances dealing with one nationally important issue on which DNC disagrees, and relied on the precedent established by the Commission in Committee for Fair Broadcasting (see language cited above), the Commission, in order to have all apparently relevant material before it on an issue of fairly narrow scope, asked for the transcripts of the only programs which might have met some of the criteria laid down by the above-cited decision.  Additionally, two of the four programs for which transcripts were requested were broadcast in prime time.

14.  Because the presentation of views on the present issue is important at this time, we shall not defer action on the complaint until completion of Section V of our Inquiry into the efficacy of the fairness  [*636]  doctrine, 30 FCC 2d 26 (1971). Therefore, this case will be resolved according to established precedent, while the matter still is current and the issues still in dispute.

15.  Next, we shall deal with DNC's contention that it must be afforded time to respond to the President's addresses and Secretary Connally's appearances.  We find no reason for extended discussion of this aspect of the complaint, since we have always made clear that, absent the special circumstances set forth in our personal attack rules, the fairness doctrine does not require that a licensee give time to any particular person or organization.  Rather, it is the right of the public to be informed by hearing contrasting viewpoints that is important.  We reiterated this principle in the very case on which DNC principally relies, Committee for Fair Broadcasting, when on page 294 of our ruling we stated that although the fairness doctrine is applicable to Presidential addresses on controversial issues of public importance,

... it does not mean that the Presidential addresses must be considered in isolation or that the licensee loses the discretion afforded him under the fairness doctrine as to the manner in which he achieves compliance with the doctrine.  Thus, it is still up to him to determine the appropriate spokesmen.

Therefore, DNC's request is in this respect denied.

16.  However, we do not believe it appropriate in cases such as this to limit our ruling to the narrow issue considered above.  Rather, we shall consider the broad question of whether DNC has presented any information to show that the networks have not exercised reasonable judgment in affording opportunity for the presentation of contrasting views on the Administration's present economic policies.

17.  The substantive portions of our ruling in Committee for Fair Broadcasting were contained in the following two paragraphs, pp. 297-298:

40.  The question is whether in the circumstances the networks have afforded reasonable opportunity for the presentation of the contrasting viewpoints on this issue.  All of the foregoing presentations were roughly balanced -- that is, the newscasts, documentaries, interview shows, etc., all presented a balanced number of spokesmen on each side of the issue.  The CBS showing indicates that the balance would slightly favor the Administration side of the issue, without consideration of the five Presidential addresses.  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.  That is the modified "equal opportunities" doctrine discussed in Part B, supra, and rejected by us.  Rather, our holding here is based upon the unusual facts of this case -- five addresses by the outstanding spokesman by one side of an issue.  [Footnote omitted]

41.  It is thus critical to examine what the networks have done in this respect, i.e., affording time for an address to answer those of the President on this issue, such as was done when Senator Mansfield was invited to respond to the President's speech on the economy.  ABC cites only one program, a May 9th speech of Mr. O'Brien, the DNC Chairman, in which, it states, he was "generally critical" of the Administration policy on Indochina.  No further details are given, such as the length of time Mr. O'Brien devoted in the 30-minute speech to this issue.  CBS has stated its plan to present a series of such programs, with spokesmen  [*637]  selected by the DNC, in order to provide a prime time opportunity to counterbalance the Presidential addresses on public issues.  But in the one program which it did present, an uninterrupted presentation by the Chairman of the DNC on July 7, 1970, there was only a few minutes (about two) reference to the Indochina War issue.  As to NBC, it has not invited any spokesman for a speech on this issue, but it does cite the broadcast on May 12, 7:30-8:00 p.m., of a special program paid for by the Amendment to End the War Committee, in which partisan spokesmen gave their views on an uninterrupted basis.  The fact that this program was on a paid basis does not take it out of consideration in this fairness evaluation.  See Letter to Republican National Committee, supra; Cullman Broadcasting Co., supra.  The NBC showing clearly comes closest to satisfying the requirements of the fairness doctrine in this respect.  However, in light of the fact of five Presidential speeches on this issue, we believe that more is required of each of the networks in this respect (i.e., affording prime time for a speech by an appropriate spokesman for the contrasting viewpoint to that of the Administration on the Indochina War issue).  We do not hold that there is any requirement for "equal treatment" to the five speeches; that is again modified "equal opportunities" requirement which we reject for the reasons previously stated.  While, as shown, all the networks have done something in the area of uninterrupted presentations in covering this issue, the result in each case falls short of what is reasonable in the circumstances.  Thus, we require that at the least, time be afforded for one more uninterrupted opportunity by an appropriate spokesman to discuss this issue, with the length of time to be determined by the nature of the prior efforts in this area of uninterrupted presentations (and with thus the least requirement in this respect on NBC).  We of course leave entirely to the judgment of the networks the selection of the appropriate spokesmen...

Thus, we repeatedly stressed that the ruling was based on the five, uninterrupted, prime-time addresses of the President on the issue, and stated that we were not holding that such an obligation arises from a single speech.  We specifically rejected a "modified 'equal opportunities' requirement" with respect to Presidential addresses and pointed out in paragraph 43 of the ruling that our holding was "limited to the unusual facts of this case -- the near balance on an issue, with one side in addition afforded five prime-time opportunities to deliver speeches on the issue." We also stated in footnote 23, page 297, that,

In referring above to the leading spokesman (i.e., the President), we wish to emphasize that we are not in any sense addressing ourselves to the matter of equalizing impact -- of the effectiveness of various spokesmen or their presentation.  As many of the complainants recognize, the President stands alone in this respect, and obviously, by the very fact of his office, commands very great audiences, particularly when he speaks on a grave national problem, such as Cambodia.  We thus repeat that our concern is rather the question of reasonable opportunity in the circumstances for the public to be informed concerning the contrasting viewpoint.

18.  The facts of the present case are obviously different from those in Committee for Fair Broadcasting.  Rather than five uninterrupted prime-time Presidential appearances on the issue, there were two, plus two such appearances outside of prime time.  n6 DNC here seeks to add the three daytime press conferences of Secretary Connally to the Presidential appearances in an effort to bolster its case.  Certainly appearances by any Administration spokesman or any other qualified representative of a viewpoint must be included in consideration of overall fairness on an issue, and it appears that Secretary Connally opened the press conferences with his own statements in support of the Administration's economic policy.  In Columbia Broadcasting System,  [*638]  Inc., 40 FCC 395 (1964), (where we were distinguishing Presidential press conferences from regularly scheduled news interview programs in determining that Congress had not intended that press conferences were exempt from "equal opportunities" under Section 315), we noted that press conferences afford the spokesman more latitude in determining their content than the exempted, regularly scheduled news interview programs.  However, Secretary Connally was subject in the three press conferences to the same kind of critical questioning that he would have faced on news interview programs, and his appearances were neither uninterrupted nor in prime time. 

 n6 As indicated in footnote one, supra, one non-prime-time Presidential appearance was broadcast on radio only.

19.  In light of the above, we decline to equate the Secretary's press conferences with uninterrupted Presidential addresses, and we find that the facts of the present case do not correspond to the particular and unusual set of circumstances which caused us to rule as we did in Committee for Fair Broadcasting.  Rather, DNC's complaint seems primarily intended to establish the kind of "modified equal opportunities" approach which we specifically rejected in the cited case.  In that ruling we stressed the different manner in which the "equal opportunities" and fairness requirements of Section 315 operate (p. 291); the reasons why "the licensee is afforded so much discretion under the fairness doctrine" (p. 292); and our reasons for refusing to engraft an "equal opportunities" requirement in the fairness area, stating, for example (p. 294) that,

... there is no basis for restricting this concept, once adopted, just to the area of Presidential speeches.  It could equally be advanced where the Governor speaks, and the State Senate or House has a role to play, or where the Mayor addresses the community on a matter within the ambit of the City Council, and so on.

20.  We believe that extension of the Committee for Fair Broadcasting ruling to the present situation would result in whittling away the basic fairness doctrine concept of reasonable opportunity for presentation of contrasting views in overall programming, and, as noted above, move us toward an "equal opportunities" requirement which we have consistently refused to adopt and which Congress has made clear that it did not intend to engraft on the fairness doctrine in amending Section 315 of the Act in 1959.  (See discussion of the latter point on p. 293 of Committee for Fair Broadcasting.)

21.  Moreover, extension of the Fair Broadcasting ruling to the facts of this case would lead us down a slippery slope with a consequent undesirable diminution of proper licensee responsibility.  If, for example, we were now to hold that the broadcast of two prime-time Presidential addresses and two not in prime time (including the extra radio address) requires the networks to afford additional time for response despite their other presentations on the issues and without any showing of overall unfairness, what ruling would be appropriate if there were only one prime-time plus three non-prime-time addresses?  or one prime-time plus two non-prime-time speech, with or without one or more non-prime-time press conferences by a Cabinet member?  Of course, the making of distinctions is a normal function of the application of policy, but a continuing series of ad hoc rulings by the Commission which necessarily constitute special departures from the general fairness weighing process would inevitably push the  [*639]  Commission further and further into the programming process.  We believe this to be both undesirable and not required by the situation.

22.  We note that all three networks assert that they have given extensive coverage to the issue during their regular newscasts and during their news interview programs.  As we have frequently pointed out, the term "fairness doctrine" is a term of art.  "It does not require equality but reasonableness -- that in the circumstances there has been 'reasonable opportunity for the discussion of conflicting viewpoints on controversial issues of public importance'" (Committee for Fair Broadcasting, pp. 293-294, quoting Section 315(a).) In view of the extensive coverage which the networks appear to have given to the current issue, including presentation of contrasting viewpoints on their news and news interview programs as well as some special programs they have cited (and DNC has presented no information to the contrary), we are unable to find that their determination here with respect to DNC's request was unreasonable.  We note, however, as we did in Committee for Fair Broadcasting (p. 298) that,

... we are dealing here with continuing plans to deal with a continuing issue, in terms of the presentations of both sides.  Obviously, the licensee's future efforts must therefore be tailored reasonably to take into account future developments.  We thus stress that on an issue of this overriding importance, there must be continuing and strict adherence to the requirements of the fairness doctrine that the public be reasonably and realistically informed in light of the circumstances.

23.  Thus, on the basis of the information before the Commission, we are unable to determine that the networks' overall presentations on the issue have been such as to represent an arbitrary refusal to afford reasonable opportunity to contrasting views.  We also deny DNC's request that we hold an evidentiary hearing on the subject of its complaint and make available to it the program logs and other pertinent documents of the networks since August 15.  We have considered DNC's representations as to the programs the networks broadcast which presented the Administration's viewpoints, and those which the networks have cited as having presented contrasting viewpoints.  In Allen C. Phelps, supra, we found that it would be unreasonable to require licensees to disprove allegations absent detailed and specific evidence of failure to comply with the fairness doctrine, and as stated above, we have not in the present case been furnished such evidence.  n7 Further, were we to hold an evidentiary hearing, which necessarily would be a prolonged proceeding, involving the submission and consideration of every reference to the issue in each network's news and other broadcasts over an extended period of time, we soon would find ourselves bogged down in an administrative quagmire which might well delay resolution of the complaint until the issue had become moot.  Certainly, designation of every such fairness doctrine complaint for a hearing would discourage the presentation by licensees of discussion of controversial issues and thus inhibit rather than promote the robust, wide open  [*640]  debate on public issues which we believe to be so important.  As to complainant's request for program logs and other documents of the networks, we rejected a similar request by the Republican National Committee in Democratic National Committee et al., 31 FCC 2d 708; affirmed Democratic National Committee et al. v. FCC,     U.S. App. D.C.    ,     F2d     (Decided February 2, 1972, Case Nos. 71-1637 and 71-1723).  Our Memorandum Opinion and Order in that case, released August 20, 1971, stated in part:  

n7 We recognize that the examples of programming cited by the networks were primarily on television.  However, as stated herein, DNC has furnished no information to indicate that on an overall basis the networks, in their radio programming, have failed to present contrasting views on the economic issue.  While the complaint also refers to the President's radio appearances (which included one broadcast which was not televised), it requests the Commission "to direct the three major television networks to provide DNC free prime time programming to present its views."

As to "other documents," as the Commission stated in Allen C. Phelps, it would be unreasonable to require licensees to disprove allegations which lack specific and detailed evidence of failure to comply with the fairness doctrine.  RNC here has merely asserted that five persons expressed certain views on one program.  It has offered no evidence that ABC failed to present contrasting views in other programs, and it is the overall programming of the licensee to which the fairness doctrine applies.  Under the circumstances, we must deny RNC's request.

24.  In sum, we believe it markedly in the public interest for licensees to cover controversial issues of public importance, such as this, as extensively as possible, and with presentation of partisan voices.  See DNC, 25 FCC 2d 216 (1970). But it does not serve the public interest - and specifically our goal of robust, wide-open debate -- to try to move, in effect, to mechanistic fairness formulas (or stated differently, modified equal time requirements) with respect to broadcast treatment of controversial issues.  This would, we believe, represent a quagmire of inappropriate governmental intervention in broadcast journalism.  The crucial test is whether the licensee has acted reasonably -- to the end that "the American people must not be left uninformed" on crucial issues of the day.  Green v. FCC,     U.S. App. D.C.    , 447 F.2d 323 (1971); Democratic National Committee et al., supra.  On the facts here, we cannot find that the broadcast licensees have acted unreasonably or left the American people uninformed on the issue of the economic program.  Accordingly, DNC's complaint IS DENIED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


 

CONCURBY: BARTLEY

 

CONCUR:

CONCURRING STATEMENT OF COMMISSIONER ROBERT T. BARTLEY

I dissented to the Commission's ruling in Committee for Fair Broadcasting, 25 FCC 2nd 283.

I concur in the result of denying this complaint.


 

DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

I.  INTRODUCTION

This case involves four broadcast appearances by President Nixon and three broadcast news conferences by Treasury Secretary Connally, the Administration's chief economic spokesman, between August 15, 1971, and November 22, 1971.  All seven appearances had to do with the Administration's New Economic Program, which the President announced to the nation August 15, 1971.  n1

 n1 The Presidential appearances on both the TV and radio networks were as follows: August 15, 1971, 9:00 p.m.-9:20 p.m.; September 9, 1971, 12:30 p.m.-1:08 p.m.; October 7, 1971, 7:30 p.m.-7:46 p.m. The radio-only appearance was September 6, 1971,1 2:00 noon-12:15 p.m. Secretary Connally's press conferences were broadcast by the three radio and TV networks as follows: August 16, 1971, 12:00 noon-1:00 p.m.; October 8, 1971, 1:00 p.m.-2:00 p.m.; November 22, 1971, 11:30 a.m.-12:10 p.m.

Of course, the President of the United States, as Chief Executive, should have the opportunity to communicate to the people about matters  [*641] of national concern.  n2 The only question is, should his be the only voice to be heard?  Or, should those in opposition be given the opportunity to participate in the national debate?  After all, a debate takes at least two speakers.  A one-man debate is only a monologue.  Neither the framers of the Constitution nor the framers of the Fairness Doctrine quite had such a result in mind. 

n2 See Democratic National Committee v. FCC,     F. 2d    , No. 71-1637, slip op. 26-27 (D.C. Cir., 1972).

II.  THE PRESIDENTIAL APPEARANCES ALONE

This case must be decided on the basis of the Commission's decision in Committee for Fair Broadcasting, 25 F.C.C. 2d 283 (1970). In that decision, to which I concurred, the Commission decided that the President's appearances on radio and TV networks five times during prime time within a period of seven months (211 days) gave rise to the networks' obligation, under the Fairness Doctrine, to provide access to those opposed to the President's Indochina policy to uninterrupted, unimpeded air-time.  In that case, the networks' treatment of the war issue was deemed "roughly balanced" in their news and public affairs coverage.  n3

n3 Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C., 2d 283, 297 (1970).

In this case, the President's access to the electronic media consisted of two radio-TV appearances within prime time, one radio-TV appearance during non-prime time, and one radio appearance during nonprime time -- all within a little over seven weeks, or 53 days.

In addition, the Treasury Secretary was on the air three times within a little over three months, or 98 days.  I think this case can be decided without reference to the appearances of Secretary Connally; nonetheless, the same result -- granting this petition -- is dictated in either case.

Aside from these uninterrupted appearances, the networks' coverage of the economic issue was balanced.

What we are measuring here is impact.  By continually mentioning the word "uninterrupted" in the Committee for Fair Broadcasting case, n4 the Commission clearly, and quite properly, was placing in issue the question of the relative impact that such uninterrupted presentations have on the networks' overall balance.  These presentations, as I stated in my concurring opinion in Committee for Fair Broadcasting, n5 are quite different from Meet the Press panel shows.  They are, as I said in another opinion, "broadcast completely intact, without interruptions, cuts, commercial insertions, or delays.  There [are] no questions asked of the President, either before, during, or after his address." n6

n4 Id., at 297-298.

n5 Id., at 307 (concurring opinion).

n6 Wilderness Society and Friends of the Earth, 31 F.C.C. 2d 729, 741-2 (1971). (concurring and dissenting opinion).

If we are talking about the impact of uninterrupted Presidential appearances on the balanced coverage required of the licensees of this Commission, we must isolate at least two separate factors.  The first of these factors is the number of uninterrupted appearances.  The second is the time span within which appearances were made.

It would be irrational for the Commission not to consider the second factor in weighing the impact of a particular series of Presidential appearances.  And yet, I search the majority's opinion in vain -- especially paragraphs 18, 19 and 20 -- for any evidence that it even considered the question of the time span within which the President's appearances took place.  I cannot see how as a matter of rational common  [*642]  sense the majority can come to a decision without even considering this crucial factor.

We are not required to decide these cases with mathematical nicety.  However, we cannot decide them without some rational basis.  Otherwise, they appear to be so much caprice.

Here's one way we might do it.  In order to distinguish prime time from non-prime time and radio from TV, in terms of their supposed relative impact, n7 let us consider prime time to be twice as powerful as non-prime time, and television to be twice as powerful as radio.  Assign a base weight of "1" to one radio, non-prime time appearance.  Thus, one prime time appearance on radio and television has a weight of "6" ("4" for prime time TV, "2" for prime time radio). 

n7 For the purposes of this discussion, I am considering prime time to be twice as powerful as non-prime time because of the number of listeners and viewers.  Television I am considering twice as powerful as radio because of the fact that it reaches more people in prime time (evenings) than does radio, and because of the inherently more compelling nature of pictures and sound together.

In Committee for Fair Broadcasting, the President appeared on radio and TV, during prime time, five times within 211 days.  The fraction denoting the impact of those appearances would be as follows:

Number of appearances (weighted) / Number of days = 5(6) / 211 = 30 / 211 = 0.142

In today's case, the President appeared on the media as follows: twice on radio and TV during prime time, once on radio and TV during non-prime time, and once on radio during non-prime time.  The fraction would be as follows:

 

Number of appearances (weighted) / Number of days = 2(6)+1(3)+1(1) / 53 16 / 538= 0.301 n8

0.301 is more than twice as big as 0.142. 

 

n8 This fraction could be inverted, to reach a result measuring the relative frequency of Presidential appearances.  Thus, the first case would involve a fraction of 211/30, or ".y, or one (weighted) appearance every seven days; today's case would involve a fraction of 53/16, or 3.3, or once every 3.3 days.  Whether or not the fraction is inverted, it produces the same result: today's case involves a situation in which the relative impact of these Presidential appearances is at least twice as great as that of the appearances in Committee for Fair Broadcasting, supra.

If the fraction is a fair approximation of the two factors -- number of appearances and time span -- with the "appearance" factor weighted to approximate the differing impacts of radio and TV and prime time and non-prime time, then it would appear that in today's case the President's appearances had at least twice the impact as the President's appearances did in Committee for Fair Broadcasting.  Yet in that case the Commission decided that opponents of the President merited uninterrupted air-time to present their case to the people, while in this case the opposite result is reached.  How can the Commission rationally defend such a result? Surely the distinguishing factor cannot be the issue involved.  It would be beyond rational measure to distinguish the war in Vietnam and the nation's economic condition in terms of their "controversiality" or their "public importance." n9 (In one sense, anything a President says is "controversial" or of "public importance.")

n9 Fairness Doctrine Primer, FCC 64-611 (1964).

I stress that my use of the "impact fraction" is not meant to be a substitute for rational consideration of the facts and the law involved in this case.  While I believe it to be reasonable, I would never suggest it is the only (or even necessarily the best) approach, and would welcome the suggestion of alternatives.  Meanwhile, I believe this formula to be of substantial aid in presenting in understandable form the true nature of the decision we must make in this case.  Recently, Chairman Dean Burch asked that this Commission develop "clear and understandable criteria" so that both the public  [*643]  and the industry would "be able to make rational forecasts about their courses of action." n10 Chairman Burch went on to say:

n10.  Wilderness Society, supra, 737 (concurring opinion).

 

Absent such clear and understandable criteria, Commission rulings tend to become simply recitations of the variables in each case, and a judgment that the action was reasonable or unreasonable -- period.  I fear that, under present circumstances, both licensees and public can only fall back on prayer to divine the Commission's intent.  n11

n11. Id.

 

I agree with the Chairman in his desire for such "clear and understandable criteria" and his abhorrence for the kind of decision in which the Commission deems the action of the licensee "reasonable or unreasonable -- period." I cannot find a more appropriate Commission decision which to apply the Chairman's words of last September than the majority's decision in this case, to which the Chairman is concurring.  After comparing the facts of this case to those of Committee for Fair Broadcasting, the majority states: "[We] find that the facts of the present case do not correspond to the particular and unusual set of circumstances which caused us to rule as we did in Committee for Fair Broadcasting." Period.

III.  SECRETARY CONNALLY'S PRESS CONFERENCE

The next issue is whether Secretary Connally's press conferences should be included in deciding this case.

As the Court of Appeals for the District of Columbia recently stated, the Commission cannot arbitrarily ignore the appearances of Presidential spokesmen.  n12 This is because the President's spokesmen are his spokesmen.  Article I of the Constitution speaks of the President alone, despite the fact the Founders clearly understood that the President, like the British Prime Minister, would have his Ministers or Cabinet Members.  They speak only for him.  Otherwise, they are subject to immediate dismissal.  n13 Thus, it would be irrational for the Commission to exclude uninterrupted appearances of the Vice President or the Treasury Secretary or any other members of the President's Administration from a consideration of the impact of these appearances.   

n12. Columbia Broadcasting System v. F.C.C.,     F. 2d    , Nos. 24,655 and 24,659, slip op., 26 (D.C. Cir. November 15, 1971).

n13. See, for example, Myers v. United States, 272 U.S. 52 (1926); see also Humphrey's Executor (Rathbun) v. United States, 295 U.S. 602 (1935).

In Columbia Broadcasting System, Inc., 40 F.C.C. 395 (1964), the Commission recognized that press conferences, while not interrupted, are different from Meet the Press-type interview shows, because the person "giving" the press conference has much greater control over the press conference than over the Meet the Press appearance.  As we said in a 1964 case, in language favorably quoted by the Court of Appeals in reviewing Committee for Fair Broadcasting:

 

...  [Not] only the scheduling but in significant part, the content and format of the press conference is not under the control of the network.  Thus, the candidate determines what portion of the conference is to be devoted to announcements and when the conference is to be thrown open to questions.  n14

 

n14.  Columbia Broadcasting System, Inc., 40 F.C.C. 395 (1964), quoted in C.B.S. v. F.C.C., supra, 28.

 

Obviously, the appearances of the Secretary of Treasury were by nature interrupted by members of the press -- but only after the Secretary gave his views, uninterrupted, on the economic program of the Administration.  But they were also not subject to the same constraints as appearances by opposition spokesmen on interview shows like Meet the Press.  Thus, the Commission cannot fail to take into  [*644]  account the appearances of the Treasury Secretary in considering the impact on the over-all balance of the networks of the various Presidential and Administration uninterrupted broadcasts.

IV.  EFFECT ON DNC V. FCC (FEBRUARY 2, 1972)

The next issue is whether the resolution of this case is whether the resolution of this case is affected by the recent decision of thee U.S. Court of Appeals in Democratic National Committee v. F.C.C., -- F.2d -- No. 71-1637, (D.C. Cir., February 2, 1972).  In that case the Court affirmed the Commission's denial of DNC's request that NBC, CBS, and ABC be ordered to grant DNC time to respond to three Presidential television appearances.  In a companion case decided the same day, Republican National Committee v. F.C.C., -- F.2d -- No. 71-1723, (D.C. Cir., February 2, 1972), the Court of Appeals affirmed the Commission's denial of RNC's request that ABC grant the Committee time to respond to a broadcast by Democratic National Chairman Lawrence O'Bren (which was a response to the President's broadcast appearance of April 7, 1971 on Vietnam); and the Commission's denial of RNC's requests to require ABC to produce logs, documents or other records indicating ABC's past programming on the war issue, in order to assess its compliance with its Fairness Doctrine obligations.

Several conclusions about this recent case are in order.  First, it does not change the continuing validity of Committee for Fair Broadcasting, supra. The doctrine of granting interrupted response time to opponents of the President was not rejected by the Court of Appeals in this recent decision.  The Court merely decided that the Commission's denial of response time in the particular instance before it was not "arbitrary, whimsical, or capricious." n15 Thus, we must judge each particular case that comes along, like the one we decide today, according to criteria developed in past cases, including Committee for Fair Broadcasting.  Complete consistency is not required; if, however, an inconsistent result is reached, it must be fully and amply explained.  n16 The failure to do so is the error of law which I believe the majority commits in today's decision. 

n15. D.N.C. v. F.C.C., supra, 42.

n16.  Melody Music, Inc., v. F.C.C., 345 F. 2d 730 (D.C. Cir. 1965).

Second, the Court's affirmance of the Commission's policy of not granting requests to inspect logs and other documents precludes a contrary result in this case, absent a change of policy at the Commission level.  I want to make clear that I disagree with the Commission's decision not to require at least the owned-and-operated affiliates of the networks to produce this information, n17 without which a complaint against the networks reaches the level of the blind leading the blind.  Obviously, we need not grant every such request; however, there is no more important occasion for the production of such information than when important national policies are being discussed over the public airwaves by partisan officials, including the President of the United States.  Unfortunately, the effectuation of a fairer and more rational policy must await a realization at the Commission of the vital nature of such a request. 

n17. See 47 U.S.C.   303(j) (1964), which grants the Commission the "authority to make general rules and regulations requiring stations to keep such records of programs... as it may deem desirable."

For the reasons I have stated above, I do not believe that the Commission has rationally distinguished this case from Committee for Fair Broadcasting.  If the Commission wishes to decide this case differently from the way it decided the other case, it is obliged to make the effort, however halting, to find and present such rational distinctions as may exist.  I cannot find them.  Apparently, the Commission cannot find them.  In such a circumstance, the Commission has no alternative but to rule that the networks must give uninterrupted time to opponents of the President's economic program.  The Commission decides the opposite.  I dissent.


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