In Re Complaint by DR. BENJAMIN SPOCK PEOPLES PARTY Concerning Fairness Doctrine
Re: ABC, NBC, and CBS Networks
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 316
RELEASE-NUMBER: FCC 72-984
NOVEMBER 6, 1972
[*316] PEOPLES' PARTY, c/o SAMUEL J. BUFFONE, Esq., Stern Community Law Firm, 2005 L Street NW., Washington, D.C. 20036
GENTLEMEN: This is in reply to the fairness doctrine complaint filed on behalf of Dr. Benjamin Spock, candidate of the Peoples' Party for the office of President of the United States, against the ABC, NBC and CBS television networks for their alleged failure to broadcast adequate coverage of the controversial issues of public importance raised by his candidacy. You request that the Commission require ABC, NBC and CBS to provide at least one-half hour of time on Monday evening, November 6, 1972, for the presentation of the Peoples' Party's views on the issues involved in the current Presidential campaign, and that the Commission direct that, "Dr. Spock personally be permitted to express his views on these controversial issues due to the unique nature of the fairness doctrine consideration presented herein."
You state that the Peoples' Party is a national political party with candidates for local, state and national offices; that its candidates for President and Vice President (Julius Hobson) are on the ballots of ten states; that it adjudges its strength to be between five and ten per cent of the nation's electorate; that Dr. Spoke and Mr. Hobson were formally nominated at the Peoples' Party Convention in St. Louis, Missouri, on July 29, 1972, and have been waging an extensive national campaign since that date; that there has been almost total lack of network broadcast coverage; that both CBS and NBC carried one to two-minute segments discussing the party's convention on July 29; that as the result of an equal time complaint pursuant to Section 315 of the Communications Act, NBC carried a brief interview with Dr. Spock on its early morning "Today Show"; that on October 8, 1972, ABC presented Dr. Spock and three minor party presidential candidates on its "Issues and Answers" program; that on October 15, 1972, CBS carried a seven-minute segment of its morning news on the Spock campaign; and that on October 30, 1972, ABC carried a two and one-half minute segment on its evening news program.
You assert that NBC and ABC repeatedly promised additional coverage, yet refused specific requests and equivocated on the exact nature of time of the promised coverage.
[*317] You state that Dr. Spock's candidacy presents a controversial issue of public importance; that by extensively covering the campaigns of President Nixon and Senator McGovern, "the networks have given disproportionate coverage to one side of this controversial issue"; that Dr. Spock's candidacy raises numerous other controversial issues of public importance such as the war in Vietnam, military spending, abortion, and guaranteed income, and that these issues take on a unique character when associated with candidates for that office. You contend that "when only one side of these controversial issues is carried during news programming exempted from equal time treatment by Section 315, the licensee is nevertheless not relieved of its fairness doctrine obligation to cover these issues fairly."
In their responses, the networks state in essence that the complaint sets forth no valid grounds for its request; that the Commission's requirements for fairness doctrine complaints have not been met; that Dr. Spock's complaint is against their news coverage of him and the Peoples' Party; that exercise of news judgment in coverage of political campaigns, like that with respect to other news events, falls within the discretion of a licensee and must prevail unless unreasonable or in bad faith; that the 1959 Amendments to Section 315 recognized journalistic news judgment (CBS); that there are at least 12 "self-professed candidates for President" and that "the inhibitions which granting the complaint would have on broadcaster coverage of campaigns with as many possible candidates would clearly violate the Congressional interest in establishing the Section 315 exemption" (NBS); and that fairness "does not require that equal or comparable amounts of time be given to fringe parties" (ABC). ABC cites the Broadcast Bureau's Letter to the Libertarian Party, FCC 2d (October 31, 1972), and ABC and NBC cite the Commission's First Report, Handling of Political Broadcast; The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 36 F.C.C. 2d 40 (1972).
At the outset, we note that you have characterized this as a "fairness" rather than an "equal opportunities" complaint. However, you ask specifically that the Commission order that Dr. Spock be permitted by the networks to appear personally on the November 6, 1972 program requested by you. The Commission has power to order a candidate on a non-exempt program only if a licensee has failed to afford equal opportunities under Section 315. Since you are not complaining of, nor has any showing been made, of a Section 315 equal opportunities violation by any network, there is no basis for the Commission's granting your request. We now address ourselves to the fairness aspect of your complaint.
The controversial issue of public importance involved here is who should be elected President of the United States. Under established fairness doctrine procedures (see Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 F.R. 145 (1964), a complainant must first make his complaint to a licensee or network and, if not satisfied, furnish the Commission [*318] with reasonable grounds for his contention that the licensee or network has failed in its overall programming to afford reasonable opportunity for the presentation of contrasting views on a specific controversial issue of public importance. We note initially that the Peoples' Party did not make its complaint first to the networks. Moreover, the complaint was not filed with the Commission until the close of business on Thursday, November 2, and the networks did not received their copies until November 3, although the complaint is based on the networks' conduct throughout the campaign.
We do not have sufficient facts here to make a ruling that there has been a violation of the fairness doctrine. Thus, the only information before the Commission is that the Peoples' Party candidates for President and Vice-President are currently on the ballots of 10 states and that the Peoples' Party has "been conducting an extensive national campaign" since July 29, 1972. You state that the Party has lawsuits pending to obtain full ballot status in three of the states and that "write-in campaigns for local and national candidates are active in all unballoted states except Alaska and Wyoming." You furnished no further information with respect to the nature and extent of Dr. Spock's campaign. Thus, you have set forth no reasonable grounds for concluding that the substantiality of Dr. Spock's campaign is such as to render unreasonable the networks' judgment that in their overall programming they have adequately covered the campaign under the fairness doctrine. See Allen C. Phelps, 21 FCC 2d (1969), generally with respect to the type of showing a complainant should make to warrant a finding that fairness has not been complied with. In this case, you have presented us with no facts to show that there has been any violation of the fairness doctrine.
In view of the foregoing, no Commission action is warranted at this time and your complaint IS DENIED.
Commissioner Hooks absent; Commissioner Johnson Dissenting and issuing a statement.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
Dr. Benjamin Spock is the Peoples' Party candidate of President of the United States.
You wouldn't know it from watching CBS and NBC. Both networks have devoted zero minutes and zero seconds of coverage to his campaign from October 16 through November 5 -- the crucial last three weeks before election November 7, 1972.
The majority finds this complies with the networks' obligations under the Fairness Doctrine.
This is not as easy a case as either the majority's characterization of it -- or mine -- would tend to indicate.
It is snarled in legal, procedural and factual disputes. There is something to be said for almost everyone's point of view on almost every issue.
[*319] Nonetheless, on balance, I believe the Commission is in error, and that the Fairness Doctrine does impose an obligation on CRS and NBC to make more time available to the Peoples' Party.
I. EQUAL TIME
It is important to note, at the outset, that this is not one of the so called "equal time" cases.
Section 315 of the Communications Act provides that if a broadcaster permits a "use" of his station by a candidate he has an obligation to "afford equal opportunities to all other such candidates for that office." If the time was made available free, he must make free time available to all. If it was sold, he cannot refuse to sell time to others.
Neither the Peoples' Party nor the FCC treat this compliant as an "equal time" complaint. I must, therefore, presume that no free time was given by the networks to Richard Nixon or George McGovern, and that Dr. Spock's failure to purchase time to match theirs was a personal choice or (more likely) a lack of funds, rather than a refusal to sell time by the networks.
Section 315 specifically excludes from the "equal time" doctrine, however, a number of categories of candidate coverage. These include:
"(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary * * *, or
(4) on-the-spot coverage of bona fide news events. * * *"
It is these categories which give rise to the controversy before us.
II. THE FAIRNESS DOCTRINE
In addition to the "equal time" requirements, broadcasters also have an obligation to comply with the "fairness doctrine."
Immediately following the list of exemptions to the "equal time" doctrine, Section 315 goes on to say:
Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation or newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
This sentence is the basic for what has come to be called the "fairness doctrine."
The fairness doctrine requires two things of a broadcaster: (1) that he cover "issues of public importance," and (2) that he do so fairly, that he present "conflicting views," that he not use his station to censor, or propagandize for one point of view or another. This is not, it should be noted, a requirement that "equal time" be devoted to all views, nor is it a requirement that any given individual need be put on the station.
III. CANDIDATES AND FAIRNESS
Thus, at the threshold, we are confronted with the question of whether the fairness doctrine covers candidates at all. In its letter of [*320] November 6, 1972, for example, NBC states unequivocally, "NBC does not believe the fairness doctrine applies to candidates." The argument for this point of view would be that the equal time doctrine is the only law intended to cover candidates, that fairness only covers other kinds of issues, and that so long as a broadcaster has complied with the equal time doctrine he has no further obligation to candidates.
The law is very clear as I read it. The fairness doctrine does cover the election coverage of candidates. Accordingly, I think it would be extremely unfortunate if any ambiguity were left on this score.
The language of Section 315 really needs no interpretation, or legislative history. It is crystal clear. After stating the exemptions to the equal time requirements, Congress very expressly stated that, "Northing * * * shall be construed as relieving broadcasters * * * from the obligation * * * to afford reasonable opportunity for the discussion of conflicting views on issues of public importance" [i.e., the fairness doctrine]. And that is precisely what NBC is trying to do: to construe the equal time doctrine as relieving it from its obligations under the fairness doctrine.
As I say, the Act really stands on its own language. However, it may be viewed as somewhat reinforcing to know that the Commission has always reassured Congress that it would, indeed, interpret the language as Congress wrote it.
Thus, on March 2, 1971, Chairman Dean Burch, in testifying before the Senate Commerce Committee on S. 382, presented alternative draft legislation and analysis to deal with what he called "fringe candidates." The proposal would, in brief, have limited equal time to those candidates receiving more than 2 percent of the vote, or 1 percent signatures on petitioners. He was very careful on that occasion to assure Congress, however, that "candidates who do not meet any of the above criteria" would not be excluded from the airwaves; "licensees would still be bound by the requirements of the 'Fairness Doctrine,' * * *."
To my knowledge, it has never been seriously suggested -- prior to this case -- that the fairness doctrine was inapplicable to candidates in a Presidential election.
IV. WHAT IS A "CANDIDATE"?
The Commission majority says it is inhibited in ruling on this case because it does not have enough information to judge, among other things, whether or not Dr. Spock is a candidate.
The following is uncontroverted in this proceeding:
(1) The Peoples' Party held a national nominating convention in St. Louis, Missouri, on July 29, 1971;
(2) The Peoples' Party nominated Presidential (Dr. Benjamin Spock) and Vice Presidential (Julius Hobson) candidates on that occasion; and
(3) The Peoples' Party Presidential and Vice Presidential candidates are on the ballot in ten states, and are conducting write-in campaigns in some other states.
We have the Party's allegation that their candidates have been waging an extensive national campaign. We do not have a detailed [*321] itinerary of the candidates, but we might take judicial notice of the fact that it would not have to be very extensive to exceed that of the Republican Party candidate this year.
Given these facts, it seems to me preposterous to hold any serious doubts about whether or not Dr. Spock is, in fact, a "candidate" for the Presidency -- unless one looks only to the probability of election as a criterion. And that standard would raise some question about the Republican candidate in 1964 -- and the Democratic candidate this year.
V. HOW MUCH IS "FAIRNESS"?
Once we acknowledge that the law requires the broadcaster to give some time to Dr. Spock under the fairness doctrine, the questions then arise as to how much and when.
My own view is that the three weeks prior to an election is a crucially important time for any candidate, and that any common sense approach to either equal time or fairness in politics would have to acknowledge that fact.
For example, I do not believe the fact that ABC, CBS and NBC covered Dr. Spock's acceptance speech on July 29, 1972, is evidence that he has been fairly treated in October -- although it may be some evidence that his candidacy was taken seriously by the networks at that time.
ABC is the only network to give any attention to Dr. Spock's candidacy during the last three weeks of the campaign -- two and one-half minutes in the October 30, 1972, evening news show. In addition to the convention coverage, ABC also presented Dr. Spock for 12-15 minutes on a special Issues and Answers program on Sunday, October 8.
CBS presented an interview with Dr. Spock for about seven minutes on October 13, 1972, in addition to its July coverage.
NBC offered Dr. Spock time on a program about minority candidates on August 27, 1972 which he was unable to accept, Following an equal time complaint, it reluctantly presented a brief interview with Dr. Spock on the Today Show on September 13. It also covered the convention in July. It has, apparently, presented nothing regarding Dr. Spock's candidacy since September.
Whatever may be said of CBS and NBC's coverage during August, September, and the first two weeks of October -- one seven-minute appearance on CBS and one "brief" interview on NBC -- it seems clear to me, that their coverage during the last three weeks of the campaign -- zero appearance and zero minutes -- does not comply with their obligations under the fairness doctrine.
VI. PROCEDURAL PROBLEMS
The Peoples' Party complaint was filed Thursday, November 2, 1972. It was apparently mailed -- special delivery -- rather than hand delivered to the networks. CBS -- which has many lawyers -- received the letter at the "wrong" law firm for matters of this kind.
Notwithstanding these problems, however, the FCC met on the matter on Friday, November 3, and the networks were at least notified of the complaint -- and asked to respond -- on that date.
[*322] Normally, a complainant should first present his fairness grievances to the broadcast stations (or networks) involved, and present the Commission with their answers as well as the compliant's allegations. However, it could be said that the People's Party did carry on a running complaint with the networks -- which seemed, to the Party, to be always on the verge of promising coverage -- until this past week.
Had the networks been able to conduct a more thorough and leisurely search of their records, they might have been able to find they had provided more coverage of Dr. Spock.
These procedural problems are unfortunate. They are not, however, all that unusual in the onrush of last-minute election issues that come to the Commission -- most of which are presented, and resolved, orally, with no documentation whatsoever. Nor are they, in my judgment, decisive.
Whenever a government agency is involved in broadcast issues involving a Presidential election, with remedies involving news content, on the afternoon before an election, it is perhaps too much to hope that light will overcome heart.
It is very easy to misrepresent the positions of any of the parties or Commissioners involved in this case -- including my own.
I have consistently taken the position that the government in general, and the FCC in particular, should not meddle in the news judgment of broadcasters -- subpoenaing newsmen's notes and film, criticizing newsmen's "bias," complaining about "commentaries" after Presidential addresses, and so forth.
I do not want the right to tell Walter Cronkite that he has to present Dr. Spock -- or anyone else -- as "news." News judgment is just that, news judgment -- and the FCC (as the Commission has often unanimously declared) is not the national arbiter of "truth."
But the Congress has clearly required the FCC to apply the fairness doctrine to minority parties, and the Commission has often reassured Congress it would do so. All our fairness decisions may result in a broadcaster righting an imbalance through additional news items; none requires that format. And so it is with this decision: the networks might choose to treat Dr. Spock as "news" this evening; they need not do so should they choose another program format.
Had this case been presented a week or two ago it would have been easier to debate, analyze, and resolve. But that can be said every two years of the election-eve equal time and fairness complaints. I would have preferred to give CBS and NBC more time than a few hours to figure out a way to present Dr. Spock to their viewers in a format that is exempt from the equal time requirements and most conveniently suits the programming schedules and news judgments of the networks. I would not, however, fail to decide the case on those grounds.
Accordingly, I would treat this as any other fairness decision; find that CBS and NBC have not complied with that doctrine in presenting Dr. Spock during the last three weeks of the campaign (two months, in the case of NBC); and require that they make some [*323] effort, even at this late hour, to come into compliance with that doctrine. The Commission is seldom more precise than this in ordering relief in fairness cases, and I would not be so here.
I need not, and do not, for the purposes of this separate opinion, reach or pass upon ABC's compliance with the fairness doctrine. I believe all would agree its performance was better than that of CBS or NBC. Whether it was enough better to distinguish it in law is an issue that the majority, necessarily, does not reach.
To find that zero coverage is adequate, however, is a resolution I cannot abide. Therefore, I dissent.