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In Re Complaint of ALAN F. NECKRITZ AND LAWRENCE B. ORDOWER, BERKELEY, CALIF.,

CONCERNING FAIRNESS DOCTRINE RE STATIONS KGO-TV, KRON-TV, KPIX, KNBC, and KNXT

 

FEDERAL COMMUNICATIONS COMMISSION

 

37 F.C.C.2d 528631

 

RELEASE-NUMBER: FCC 72-891

 

October 17, 1972 Released

 

 Adopted October 5, 1972

  


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE NOT PARTICIPATING; COMMISSIONER REID ABSENT; COMMISSIONER HOOKS CONCURRING IN THE RESULT.


OPINION:

 [*528]  1.  The above-captioned proceeding has been remanded to the Commission for reconsideration by the Court of Appeals.  Subsequent to the Commission's initial decision, In Re Complaint of Alan F. Neckritz, 29 F.C.C. 2d 807 (1971) (hereinafter cited as Chevron), n1 the Court of Appeals reversed another Commission decision ( In Re Complaint of Friends of the Earth, 24 F.C.C. 2d 743 (1970), reversed sub nom.  Friends of the Earth v. F.C.C., 449 F.2d 1164 (1971)) n2 dealing with the applicability of the fairness doctrine to product advertisements for high performance cars and high octane gasoline.  The Commission had cited this case with approval in Chevron.  In view of the Court's reversal, and the fact that both cases involved the applicability of the Fairness Doctrine to product commercials for gasoline, the Commission moved the Court to remand the present case for further  [*529] deliberation.  The Court, maintaining jurisdiction, remanded the matter to the Commission, granting it authority to rule on complainants' request for interim relief and to consider its ruling in respect to both the fairness and deceptive advertising issues.  Shortly thereafter, the Commission requested the parties to the proceeding to submit their views on the following questions: (1) whether petitioners' request for interim relief should be granted pending Commission reconsideration of the case; n3 (2) what effect, if any, does the Court's decision in Friends of the Earth have on the Commission's resolution of the Fairness Doctrine issue and (3) whether the Commission should reconsider the deceptive advertising issue of the case.  Licensees were also requested to advise the Commission of the dates and times of carriage of the advertisements complained of, and of any material broadcast which advised the public of the controversy concerning the Chevron F-310 advertisements. 

n1 In Chevron, the complaint filed against five California television stations, alleged licensee failure to fulfill their Fairness Doctrine and public interest obligations with respect to the broadcast of Chevron F-310 gasoline commercials in that (1) licensees presented only one viewpoint (that of the advertiser) on a controversial issue of public importance discussed in the ads, i.e. whether Chevron with F-310 contributes to the solution of the air pollution problem, and (2) licensees failed to protect the public from advertising which was misleading and deceptive, pursuant to their obligations under the public interest standard of the Communications Act.  Complainants requested that the Commission order licensees to cease broadcast of the ads and, pursuant to the Fairness Doctrine, to present spot announcements in opposition to the views presented in the ads.  The Commission declined to order the requested relief and ruled that the Chevron F-310 ads did not argue a position on a controversial issue of public importance, but rather stated a claim for product efficacy.  The Fairness Doctrine was intended to illumine significant public issues, and the claim of efficacy or utility of any particular product was not such an issue, the Commission stated.  It also held that the pendency of an unresolved FTC complaint did not compel cessation of the advertisement complained of, and that all licensees involved in this case had fulfilled their public interest obligations.

n2 In Friends of the Earth, the Court held that advertisements broadcast in New York City encouraging the use of high performance cars and high test gasoline presented a viewpoint on a controversial issue of public importance, given public and governmental concern with, and evidence about, the danger of air pollution to health and the relation of automobile emissions to air pollution.  Under the doctrine approved in Banzhaf v. F.C.C., 405 F. 2d 1082 (1968), cert. denied sub nom., Tobacco Institute v. F.C.C., 396 U.S. 842 (1969), which the Court found to be indistinguishable from Friends of the Earth, the Court held the Fairness Doctrine to be applicable.

n3 The Commission denied petitioners request for interim relief on April 21, 1972 (34 F.C.C. 2d 579 (1970)). Petitioners renewed their motion for interim relief before the U.S. Court of Appeals which was denied by order dated June 20, 1972.

2.  In response to the Commission's inquiry, Petitioners reiterate their complaint that the Chevron F-310 commercials presented one side of a controversial issue of public importance by making the claim that F-310 was a means of solving the air pollution crises in light of the fact that (1) the truth of the claim was disputed by state agencies, and (2) the fact that gasoline emissions from automobiles are a prime source of air pollution which is a problem of public importance in California.  Complainants allege that licensees have failed to present opposing viewpoints on this issue as required by the Fairness Doctrine.  They further argue that the controversy concerning Chevron F-310 gasoline is identical to the controversy in Friends of the Earth, and that the precedent and rationale upon which the Commission relied in its original Chevron opinion have been rejected by the Court of Appeals in its reversal of the Commission's decision in Friends of the Earth.  Finally, Complainants argue that the public interest standard of the Communications Act obliges the Commission to require licensees to protect the public from deceptive F-310 advertising.  Licensees' broadcast of the ads is inconsistent with their public interest obligations under current FCC regulations, complainants maintain, in view of the FTC's charges, the reports of two state agencies, the criticisms of leading environmental groups, the fact that the advertiser modified the commercials and that one licensee (KPIX) concluded that they might be misleading, and in view of the fact that the F-310 claims are extravagant on their face.

3.  Licensees, with the exception of KRON and KPIX, n4 and the interveners, Standard Oil of California (Standard) argue, in response to Complainants, that the Banzhaf and Friends of the Earth cases do not apply to the instant proceeding inasmuch as they are distinguishable.  Licensees argue that: (1) Chevron, unlike Friends of the Earth,  [*530]  is not a case in which there is "undisputed evidence" -- or even a claim -- that the advertised gasoline contributes more significantly to air pollution than other gasoline; and (2) the Chevron ads, unlike the Friends of the Earth ads, do not emphasize the product attributes of power and performance which can be said to contribute to the pollution problem.  In Friends of the Earth, licensees observe that the Court did not hold that all advertisements for gasoline raised controversial issues, but that both these factors, i.e. undisputed evidence of contribution to pollution and glorification of attributes aggravating pollution, were crucial to the Court's decision that the hazard to health issue of Banzhaf was indistinguishable from that in Friends of the Earth.  The Chevron F-310 advertisements, on the other hand, raise no public health issues, and the question in dispute is whether or not the product will perform as claimed.  Licensees further refute petitioners' fairness complaint by arguing that the Chevron commercials are only one facet of the general problem of air pollution, and that they have informed the public of the anti-pollution viewpoint as indicated by their program analysis.  Standard Oil of California further argues that counter advertising against the product categories complained of in Banzhaf and Friends of the Earth (cigarettes, high performance cars and high octane gasoline) presents consumers with a choice to use or not to use such products.  Counter advertising against a single brand, as in Chevron, presents no similar choice but attempts to persuade consumers to buy another brand within the same product category.  Whether a person buys a product category, like cigarettes, may be an issue of public importance, but whether he buys brand A or brand B cigarettes is not, Standard maintains.  Therefore, despite the fact that a particular product claim may raise a controversial issue, that issue is not of public importance, and the Fairness Doctrine is consequently inapplicable. 

n4 KPIX regards the controversy about the Chevron F-310 ads as one facet of a larger controversial issue of public importance relating to air pollution which the station has considered extensively in its programming, and also believes that Friends of the Earth is applicable to the current controversy.  KPIX is opposed, however, to Commission reconsideration of the deceptive advertising issue; believes that the initial decision was correct; and suggests that any change to the Commission's established policies would be most appropriately effected through a rule making proceeding where all interested parties could comment rather than through an ad hoc adjudication.  KRON failed to respond to the Commission's letter of inquiry.

4.  As to the deceptive advertising issue, licensees and Standard argue that the Commission should affirm its initial decision in Chevron.  They observe that the claim that the ads are false and deceptive and that licensees have consequently failed to protect the public, assumes that which is yet unproven.  Contrary to the allegations, licensees' conduct has been reasonable and consistent with present Commission standards, they maintain, given the fact that the ads have not yet been judged misleading and deceptive by the FTC.  Licensees state that the FTC has primary authority and that the FCC has no resources or standards of jurisdiction for deciding the deception question, and should not modify its policy as to licensees' responsibility in this area without first affording interested parties an opportunity to comment in a rule making proceeding.

5.  We have reconsidered our original ruling in the light of the Court's decision in Friends of the Earth.  In our opinion, this decision does not require an extension of the Fairness Doctrine to the facts of the present case.

6.  Originally, our application of the Fairness Doctrine to product advertising was intended to be limited to a single product.  We believed that cigarettes were distinguishable from other products "* * * since smoking them is a habit 'which can fade away' without impact upon other aspects of life, and which official voices have urged the  [*531]  public to avoid or abandon." Friends of the Earth, supra at 1167. The Court of Appeals held that we could not "plausibly differentiate" cigarette advertisements from certain commercials promoting large engine cars and high-test gasoline.  The Court found "undisputed evidence" that these products, like cigarettes, significantly enlarged and aggravated existing public health hazards.  Furthermore, it was noted that both public and private voices had encouraged the people to avoid the use of these products.

7.  The facts of the present case are quite different from those presented in the cigarette case and in Friends of the Earth.  There is no evidence which would indicate that the Chevron additive F-310 in any way enlarges or aggravates hazards to the public health.  Chevron with F-310 is not alleged to be more dangerous than any competing product.  Petitioners do not urge the public to abandon the use of gasoline, or even to avoid using Chevron with F-310.  It is clear, therefore, that the broadcast of contrasting views in the present case would not provide a health service similar to exhortations to stop smoking, or to drive cars with reduced horsepower and use gasoline with a low-octane rating.

8.  Even assuming arguendo that a public health issue is involved here, the present case is still distinguishable from Friends of the Earth.  The scientific evidence in this case is far from "undisputed." Chevron has amassed considerable evidence to support the proposition that its product will, in fact, contribute to a reduction of the air pollution problem.  In these circumstances, there is no way that we can say with any certainty that the broadcast of contrasting viewpoints here would provide a valuable public health service to the American people.

9.  Public health considerations aside, we remain convinced that traditional Fairness Doctrine principles do not require the broadcast of views in opposition to the F-310 advertisements.  We are still of the opinion that these announcements did not argue a position on a controversial issue of public importance, but merely advanced a claim for product efficacy.  In our original opinion, we stated that "[the] merits of any one gasoline, weight reducer, breakfast cereal or headache remedy -- to name but a few examples that readily come to mind -- do not rise to the level of a significant public issue." Chevron, supra, at 812.  The critical consideration here is that we should not substitute our judgment for the reasonable programming judgments of our licensees.  As we stated in our Fairness Primer:

* * * the licensee, in applying the fairness doctrine, is called upon to make reasonable judgments in good faith on the facts of each situation -- as to whether a controversial issue of public importance is involved * * * In passing on any complaint in this area, the Commission's role is not to substitute its judgment for that of the licensee * * * but rather to determine whether the licensee can be said to have acted reasonably and in good faith.  Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 2 R.R. 2d 1901, 1904 (1964).

 

In the circumstances, there is simply no persuasive showing that our licensees have not acted "reasonably and in good faith" in determining that the Chevron F-310 advertising claims did not constitute a discussion of a controversial issue of public importance.

 [*532]  10.  In our original opinion we expressed a concern that a contrary ruling would, in effect, extend the application of the Fairness Doctrine to an endless variety of advertisements for commercial products.  Such a ruling would likely create an administrative nightmare for this agency as well as its licensees, and could have disastrous economic consequences for our entire commercial system.  At the present time, we are conducting an over-all review of the Fairness Doctrine (Docket No. 19260).  This study includes a detailed analysis of the merits of various "counter advertising" proposals, including suggestions similar to those advanced by the Petitioners in this case.  At the end of this study, we hope to be in a position to balance more intelligently likely gains to public enlightenment against the threats these gains may present to the economic base and sound administration of the commercial broadcasting system.  In the meantime, we are convinced that our present policy is the one best designed to further "* * * the larger and more effective use of radio in the public interest." 47 U.S'C.   303(g).

11.  Finally, we believe that our original opinion in Chevron as to licensees' public interest obligations with respect to advertisements subject to an FTC complaint should be affirmed.  Petitioners have presented no additional information on reconsideration to persuade us otherwise.  Without repeating our earlier decision we emphasize again that only the FTC and the courts have the jurisdiction to decide whether the technical claims made by Standard in its ads are accurate or not.  Certainly this Commission possesses no comparable authority or expertise to resolve such questions, and we have noted that, "* * * we do not believe it to be either reasonable or feasible to impose upon the [broadcasting] industry requirements for medical or other scientific testing procedures * * *" that would make "* * * licensees into a kind of mini-FTC." In Re Complaint by Consumers Association of District of Columbia, 32 F.C.C. 2d 400, 406 (1971). There is substantial evidence in this case that licensees judgments were reasonable and consistent with Commission requirements that particular care be exercised in accepting for broadcast an advertisement subject to FTC complaint, in that "* * * all five stations either requested documentation of the advertiser's claims or made changes in the content of the advertisements * * *" Chevron, supra at 813.  We therefore are not warranted in reversing their judgments.

12.  In effect, a grant of Petitioners' demands here would require that the FCC abandon its traditional policy in this area, and instead impose a duty on licensees to either (a) automatically terminate carriage of an advertisement subject to an FTC complaint, or (b) automatically present a "counter-advertisement." Such a drastic modification of existing policy can most responsibly be considered in an overall proceeding.  In such a proceeding countervailing public interests can be weighed, and all interested parties can be afforded opportunity to comment.  In our Fairness Inquiry in Docket No. 19260 we specifically requested the submission of views on the deceptive advertising issues raised in this case.  The Commission will have the opportunity to deal with these issues at the conclusion of the inquiry.

 [*533]  13.  On reconsideration, and for the reasons stated above, our earlier decision IS AFFIRMED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

This Commission, in its first Chevron opinion, came to the specific conclusion that it "did not know of a product other than cigarettes which would trigger the Fairness Doctrine." Fairness Doctrine Ruling, 29 F.C.C. 2d 807, 814 (1971). It based that decision in no small measure upon its similar ruling in Friends of the Earth, 24 FCC 2d 743 (1970), handed down some months previously.  Now the Court of Appeals has reversed Friends of the Earth, 449 F.2d 1164 (D.C. Cir. 1971), and in doing so has said that gasoline could be such a product.

Since the Court's decision in Friends rendered the Commission's original Chevron reasoning even more tenuous and flimsy than I found it to be in my original dissent, 29 F.C.C. 2d, at 814 (1971), the Court quite naturally gave the Commission a chance to correct itself by remanding the case to us for another look.  The majority of the Commission, however, appears to have been unpersuaded as to the authority of our D.C. Circuit Court of Appeals to rule as it did in Friends, for its decision today is little more than a cavalier reaffirmation of its first Chevron decision.  Indeed, where the obvious parallels between this case and the Court's decision in Friends are considered at all, the majority merely dismisses them with no attempt at analysis.

Licensees assert (and the majority accepts) that it was the intention of the Court of Appeals that the decision in Friends of the Earth be limited to the specific fact situation (or the specific ad format) involved in that case.  They contend that "undisputed evidence of contribution to pollution and glorification of attributes aggravating pollution was (sic) crucial to the Court's decision." [emphasis added]

Nowhere in the Friends opinion was there language, however, that would lend support to the second contention.  Indeed, the Court stated what it considered to be its criteria quite succinctly:

When there is undisputed evidence; as here, that the hazards to health implicit in air pollution are enlarged and aggravated by such products, the parallel with cigarette advertising is exact.  * * *

 Friends of the Earth v. F.C.C., 499 F.2d at 1169 (D.C. Cir. 1971). The specific format of the ad was never mentioned by the Court in Friends as "crucial" to its application of the Fairness Doctrine.  Rather, the Court accepted the Commission's own assertion that

 

* * * the crucial issue in this case is whether the Commission reasonably refused to extend to gasoline and automobile commercials its ruling with respect to cigarette commercials.

 

The Court said

We have no difficulty in accepting this formulation of the issue, involving as it does a comparison of the record before us with that before the Commission and the Court in Banzhaf.  Id at 1168.

 

 [*534]  Noting the Commission's recognition of the

* * * persuasiveness of expert evidence from both official and private quarters, of the very real dangers to health presented by air pollution, and the significant degree to which automobile emissions both create and aggravate the air pollution problem,

It then went on to hold that

* * * we are unable to see how the Commission can plausibly differentiate the case presently before us from Banzhaf insofar as the application of the Fairness Doctrine is concerned.

 Friends of the Earth v. F.C.C., 499 F. 2d at 1170 (D.C. Cir. 1971). A careful examination of the Court's language discloses its ultimate concern with the problem of automobile emissions which "both create and aggravate the air pollution problem."

Licensees argue that petitioner's complaint should fail because "Chevron with F-310 is not alleged to be more dangerous than any competing product." They thereby fail to recognize the concern either of the viewing public or of the Court.  The attempted reasoning is that there is no "undisputed evidence" that Chevron contributes more to pollution than any other gasoline.  But that quite simply is not the issue.  Chevron's ads did not say "We don't pollute the air any more than Texaco or Union." Such an ad might well be unlikely to raise significant public health issues.

What the Chevron ad did say was that, "Our gasoline with F-310 is contributing to the solution of the air pollution problem." We need not even pass upon the veracity of that statement.  Truth is not relevant to this particular fairness inquiry.  All we need acknowledge is that the statement relates to a controversy.  It is sufficient for fairness purposes to note that agencies like the California Air Resources Board and the Hawaiian State Consumer Protection Agency, among others, vigorously controvert Chevron's contention.

Under the law as it stands after Friends, one threshold of fairness doctrine liability is reached when the product itself is recognized as a hazard to health.  Even so, it would be difficult as yet to find, based on Friends and Banzhaf alone, that merely advertising such a product would be enough to force the stations across that threshold.  More, it seems, is still required.  In Friends, for example, the Court indicated that fairness liability was triggered by the active promotion of higher-powered varieties of an unhealthy product.

But that does not preclude other types of gasoline promotion from triggering fairness liability.  Although the ads in Chevron admittedly differ from those in Friends, in point of fact they differ by creating an even greater apparent broadcaster liability.  If anything, the need for protection of the public interest in this case is even more compelling than it was in Friends, for in Chevron the controversy itself is openly discussed within the format of the ad.  The Chevron ads cannot be considered just another type of misleading promotion.

Nevertheless the licensees and the majority of the members of this Commission persist in "crying wolf" over this case by raising the apocalyptic specter of an "administrative nightmare" that might result from a reversal of this decision.  "Disastrous economic consequences for our entire commercial system" is the way they describe it.  One might better point out the "disastrous health consequences for  [*535]  our entire human system" from the failure to take action.  Rather than argue the merits of those contentions, in light of the responsibility of this agency to regulate industry, not be regulated by it, let us simply agree that the entire question of "administration" is spurious to a cogent decision of the issues of this case.

Contrary to licensees' suggestion, this is not merely a claim for "product efficacy" -- a boast that Chevron with F-310 will give you a cleaner engine, more miles to the gallon, or put a tiger in your tank.  Petitioners have singled out the Chevron commercial for this challenge for one very good reason: Chevron's particular misleading claim happens also to be an extremely controversial one.

In other words, the majority's analysis is fallacious when it argues that a decision for petitioners in this case would impose a duty on licensees "* * * to either a) automatically terminate carriage of an advertisement subject to FTC complaint, or b) automatically present a 'counter-advertisement.'"

To the contrary, Chevron, via its "solving air pollution" claim, is taking itself out of the realm of ordinary "misleading" advertising and placing itself in a much smaller category of advertisers who discuss their product in terms of some particular public quest for solution of a controversial problem.

Chevron has chosen, by its use of the ad copy in question, to attempt to capitalize on the existence of the air pollution issue.  In doing so, it should recognize that if it makes statements which can be controverted by recognized, public sources (which it has), it triggers in the stations carrying its ads the absolute obligation to enlighten the public as to the alternative arguments.

The Court of Appeals in Friends found that gasoline products and the pollution problems they created can entitle the public to as great a measure of care from broadcasters under the Fairness Doctrine as did advertisements for cigarettes.  Could this Commission have permitted some individual brand of cigarettes to advertise their new charcoal filter as "contributing to the solution of the lung cancer problem" without obligating the station carrying such an ad to provide further explication?  I think not.  And yet this is precisely the analogy that must be made in this case.

The Court has made absolute the correlation between the cigarette problem and the air pollution problem in the realm of controversial issues of public importance.  We must assume that the Court did not lightly "remand" a case before it to this Commission "for consideration in the light of our decision in Friends of the Earth." If the Friends decision can be dismissed with as facile an effort at reevaluation as the Commission gives it in consideration of Chevron, there would have been no reason for the Court to remand in the first place.

I dissent.


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