In Re Complaint by GEORGE D. COREY, NASHUA, N.H. Concerning Fairness Doctrine
Re Stations WBZ-TV, WNAC-TV, and WSBK-TV, Boston, Mass.
FEDERAL COMMUNICATIONS COMMISSION
37 F.C.C.2d 641
RELEASE-NUMBER: FCC 72-856
SEPTEMBER 27, 1972
[*641] MR. GEORGE D. COREY, 18 Raymond Street, Nashua, N.H.
DEAR MR. COREY: This is in reference to your letter dated March 27, 1972, concerning three Boston television stations, namely, WBZ-TV, WNAC-TV and WSBK-TV.
In your letter you state that these stations have continued to carry programming directed at children which contains an inappropriate amount of violence. You also state that such operation is not in the public interest in that there is a casual relationship between the viewing of televised violence and children's anti-social behavior.
Therefore, you request the Commission to take one of several alternative courses of action. First, you request the Commission to conduct a complete investigation into the extent of children's programs containing violence on these stations and, once having ascertained the results of such a study, to require the stations to either (1) eliminate such programming, (2) substantially reduce such programming, or (3) broadcast such programming only after 9:00 p.m. as is done in Great Britain.
Alternatively, you request the Commission to either withhold renewing the licenses for these stations or grant them only probationary licenses until the Commission decides what action it will take in regard to the broadcasting of violence in children's programs. Finally, you request the Commission to require the licensees of WBZ-TV, WNAC-TV and WSBK-TV to comply with the fairness doctrine by broadcasting the following public service notice or its equivalent: Warning: Viewing of violent television programming by children can be hazardous to their mental health and well being.
In support of this aspect of your request you cite several studies, including the Report of the Surgeon General's Scientific Advisory Committee on Television Violence and Social Behavior entitled, Television and Growing Up: The Impact of Televised Violence. As noted in your letter, the Surgeon General's Report indicates that violence on children's programming may have a detrimental effect on their behavior. You also cite a study conducted by Professor F. Earle Barcus, [*642] Professor of Communications Research at Boston University. You state that this study revealed the number of dramatic episodes containing some violence on the Saturday morning children's programming as shown on the stations made the subject of your letter.
In conclusion, you state that "* * * by merely showing violence via their children's programming, they [WBZ-TV, WNAC-TV and WSBK-TV] have unfairly presented violence as something worthwhile for young children to watch without indicating that exposure to such stimuli may be detrimental to this class of the public -- namely, children." You also state that you "* * * can see no rational distinction which requires that the Fairness Doctrine apply to the Banzhaf case and not to * * *" yours.
The Commission presently has outstanding a Notice of Inquiry and Notice of Proposed Rule Making in Docket No. 19142 (FCC 71-71) regarding several matters pertaining to children's programming. Also, there is presently pending before the Commission a petition for rule making filed by the Foundation to Improve Television (RM-1515). This petition seeks to prevent the presentation before 11:00 p.m. of violent or horror programs on television.
The issues raised in your letter regarding violence in television programming, particularly as it relates to children's programming, apply to the television industry as a whole. As such, we do not believe that it would be appropriate at this time to make an ad hoc determination whether the presentation of such programming by one, two or three, licensees may have a detrimental effect on children. Instead, we believe that it is more appropriate to consider such industry wide problems through the Commission's rule making forum. See, for example, Hale v. F.C.C., 425 F. 2d 556 (1970).
Concerning the fairness aspects of your letter, as you are aware the fairness doctrine requires a station which presents one side of a controversial issue of public importance to afford reasonable opportunity for the presentation of contrasting viewpoints on the issue in its overall programming. As we interpret your letter, you maintain that the controversial issue is the effect of violence in children's television programming and, thus, that stations which broadcast children's programming containing violent episodes are presenting one side of the issue and must afford reasonable opportunity for the presentation of contrasting viewpoints on that issue. As previously indicated, you compare this situation with the cigarette situation.
Although you list the names of several programs which allegedly contain violent episodes, you fail to provide any specific evidence (e.g., tapes or transcripts) concerning these programs which could lead to a conclusion that one side of a controversial issue has been presented. As we stated with regard to similar vague allegations in our letter of November 25, 1969, to Allen C. Phelps and the Federation of Citizens Associations of the District of Columbia, 21 FCC 2d 12, where it was charged that the licensee had presented only the "liberal" viewpoint on a number of issues such as racial discrimination:
Absent detailed and specific evidence of failure to comply with the requirement of the fairness doctrine, it would be unreasonable to require licensees [*643] specifically to disprove allegations such as those made here. The Commission's policy of encouraging robust, wide-open debate on issues of public importance would in practice be defeated if, on the basis of vague and general charges of unfairness, we should impose upon licensees the burden of proving the contrary by producing recordings or transcripts of all news programs, editorials, commentaries and discussion of public issues, many of which are treated over long periods of time. Accordingly, although the Commission intends also to employ other appropriate procedures to insure compliance by licensees with the fairness doctrine (e.g., in-depth spot checks at renewal time), it has long been our policy normally to require that fairness doctrine complaints (a) specify the particular broadcasts in which the controversial issue was presented, (b) state the position advocated in such broadcasts, and (c) set forth reasonable grounds for concluding that the licensees in his overall programming has not attempted to present opposing views on the issue. See Applicability of Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10415 (1964).
In sum, as a public trustee, the licensee must shoulder certain burdens, including upon appropriate complaint the burden of whole thing that he has complied with the fairness doctrine. However, based on our experience, we find that the public interest also requires some reasonable specificity in a complaint to trigger a detailed showing by the licensee that he has complied with the fairness doctrine on a particular controversial issue of public importance. There is no such specificity contained in your letter, just as there was none in the Phelps case, supra.
We also believe the questions raised concerning violent episodes in children's programming are distinguishable from our holding in the cigarette advertising matter.
The Commission's ruling in the Banzhaf case, In the Matter of Television Station WCBS, 8 FCC 2d 381 (1967), recons. denied, 9 FCC 2d 921, affirmed sub. nom. Banzhaf v. F.C.C., 405 F.2d 1082 (C.A.D.C./ 1968), cert. denied, 396 U.S. 842 (1969), held that the fairness doctrine is applicable to cigarette advertising. The Commission took note of the 1964 Report of the Advisory Committee to the Surgeon General of the Public Health Service and other studies which found a link between smoking and various diseases. In that case the Commission was presented with evidence that cigarette advertisements promoted smoking as attractive and enjoyable. The Commission concluded, therefore, that "* * * a station which presents such advertisements has the duty of informing its audience of the other side of this controversial issue of public importance -- that, however, enjoyable, such smoking may be a hazard to the smoker's health."
However, it could not reasonably or logically be concluded that the mere viewing of a person smoking a cigarette during a movie being broadcast on television constitutes a discussion of a controversial issue of public importance thus raising a fairness doctrine obligation. Similarly, we cannot agree that the broadcast of violent episodes during entertainment programs necessarily constitutes the presentation of one side of a controversial issue of public importance. It is simply not an appropriate application of the fairness doctrine to say that an entertainment program -- whether it be Shakespeare or an action-adventure show -- raises a controversial issue if it contains a violent scene and has a significant audience of children. Were we to adopt your construction that the depiction of a violent scene is a discussion of one [*644] side of a controversial issue of public importance, the number of controversial issues presented on entertainment shows would be virtually endless (e.g., a scene with a high-powered car; or one showing a person taking an alcoholic drink or cigarette; depicting women in a soft feminine or light romantic role). Finally, we note that there are marked differences in the conclusiveness of the hazard established in this area as against cigarette smoking. See the Surgeon General's Report on the Impact of Televised Violence, pp. 11-12.
The real thrust of your complaint would appear to be not fairness in the discussion of controversial issues but the elimination of violent TV children's programming because of its effect on children. That issue is being considered particularly by appropriate Congressional committees and agencies such as HEW. See above Report. It is a difficult, complex, and sensitive matter. But whatever its resolution, there is no basis for the action along the lines proposed by you.
In view of the above, no further action is warranted by the Commission at this time and, accordingly, your request for relief is DENIED.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission today gives incredibly short shrift to one of children's television's most pressing problems: violence.
George D. Corey, a student at Suffolk Law School, brought this complaint against three Boston television stations -- WBZ, WNAC and WSBK -- charging that the children's programming carried by these stations contains inordinate amounts of violence. Mr. Corey asks that, pending an investigation of these programs, we grant the stations only probationary license renewals, and that we require the stations to comply with the fairness doctrine by agreeing to present announcements warning of the dangers of violence in children's television.
The majority advises Mr. Corey that the Commission is currently studying several matters pertaining to children's programming in its outstanding Notice of Proposed Rulemaking, Docket No. 19142. So the majority simply dismisses Mr. Corey's complaint. Surely this is a Draconian method of dealing with a charge which raises problems the seriousness of which the Commission has itself acknowledged by holding its present hearings. I would have thought that in these circumstances we would at least defer our ruling on the Corey complaint, and grant probationary renewals to the stations until after the completion of our nationwide inquiry into children's television.
Perhaps more serious, however, is the majority's cursory treatment of Mr. Corey's fairness doctrine contention. Mr. Corey asserts that violence on children's television raises a controversial issue of public importance and that the stations presenting such programming must afford a reasonable opportunity for the presentation of contrasting viewpoints.
[*645] The majority rejects this claim for two reasons.
First, it notes that Mr. Corey has not presented the requisite "detailed and specific" evidence of the stations' failure to comply with the fairness doctrine. If, by this, the majority means that the complainant has not come forth with specific examples of violent programming on children's television, the Commission should so advise Mr. Corey and should give him an opportunity to amend his complaint. Simply to dismiss that complaint is to penalize a concerned citizen for his unfamiliarity with the complexities of our pleading rules -- an approach even the courts have rejected in their dealings with attorneys schooled in the intricacies of the law. Such an approach cannot possibly serve the public interest. (See my concurring and dissenting opinion in In re Application of the Meredith Corporation [WOW], FCC 2d , decided this day.)
The majority also suggests that violence on children's television is not, for fairness doctrine purposes, analogous to cigarette advertising. In the Banzhaf case, In the Matter of Television Station WCBS, 8 F.C.C. 2d 381 (1967), recons., den., 9 FCC 2d 921, aff'd sub. nom., Banzhaf v FCC, 405 F. 2d 1082 (D.C. Cir. 1968), cert. den., 396 U.S. 842 (1969), we noted that cigarette advertisements promote the use of products which, according to findings by the Surgeon General, may be hazardous to the users' health. We therefore held that such advertisements presented one side of a controversial issue of public importance, thus warranting presentation of the other side under the fairness doctrine.
The majority attempts, rather disingenuously, to distinguish Banzhaf on the grounds 1) that the Surgeon General has not found a close link between violence on children's television and a child's anti-social behavior and 2) that broadcasting violence does not promote such violence in the same way that a cigarette advertisement promotes smoking.
Yet the majority itself notes that the Surgeon General has determined that "televised violence may lead to increased aggressive behavior in certain sub groups of children." Television and Growing Up: Report on the Impact of Televised Violence (1971) at 7. And that report goes on to reveal the more general conclusion that "a modest relationship exists between the viewing of violence and aggressive behavior." Id. at 9. The multi-volume staff backup uses much stronger language. In any event, the existence of this casual link is surely close enough to warrant considerable concern.
Further, the fact that violence on children's television is not promoted through advertising, but simply exists as a substantial component of children's television fare, is not only irrelevant but actually cuts the other way. Not only would it be rather bizarre if advertisers attempted to promote the "goodness" of violence in the same manner they promote cigarettes, but, to the child, the fact of continuous violent programming is, in itself, a promotion of the idea. What made Banzhaf a break through was the application of the fairness doctrine to advertising in such a forceful manner. Thus, the absence of advertising in this case makes it a stronger one than Banzhaf, not weaker.
[*646] To assert that violence on children's television does not raise a controversial issue of public importance is, then, to close one's eyes to a very real problem. Indeed, by refusing to require that licensees at least warn parents of the potential dangers inherent in current children's programming, the majority has, in my judgment, left our licensees wide open to possible tort liability. For, if the television set manufacturer is legally liable for the physical damage done by radiation from the set, why should the network be free of responsibility for the psychic harm done by what it radiates from the set? (See How To Talk Back To Your Television Set 172 (Bantam, 1970)).
One of the reasons the cigarette manufacturers wanted the warning ("Caution: Cigarette smoking may be hazardous to your health") printed on the cigarette packs is that, without such a warning to the user, they were taking a substantial risk of hundreds of millions of dollars of tort liability to the survivors of the 300,000 people they helped kill every year. Now that the evidence of the relation of violent programming to violent behavior (and other psychic harm to children) is so clear, it is only a matter of time before the networks' tort liability will also begin to grow. One would think that they would want such warnings broadcast to avoid it. The FCC, in its eagerness to serve the industry's profits, may actually be handing it a loss from which it will be a long time in recovering.
While recourse to the courts is certainly one means of dealing with this problem, and whatever the industry's best interest may be, this Commission also has a responsibility to the public as well as the broadcasters, a responsibility which it completely ignores by today's decision. The majority has, once again, passed the buck to the courts. I dissent.