In Re Request by THOMAS M. SLATEN, BEVERLY HILLS, CALIF. For Reconsideration of Grant of Review of Fairness Doctrine Ruling Re Stations KNX and KNX-FM
FEDERAL COMMUNICATIONS COMMISSION
39 F.C.C.2d 16
RELEASE-NUMBER: FCC 72-986
NOVEMBER 8, 1972
[*16] AIR MAIL MR. THOMAS M. SLATEN, Post Office Box 5338, Beverly Hills, Calif.
DEAR MR. SLATEN: The Commission has before it your "Petition for Reconsideration" requesting reconsideration of our action (34 FCC 2d 733) granting the application of Columbia Broadcasting System, Inc., for review of the Broadcast Bureau's ruling that Radio Stations KNX and KNX-FM had failed to comply with the fairness doctrine with respect to an editorial advocating reform of the California judiciary. In granting that review, we ruled that in light of additional facts submitted by CBS showing repeated attempts by the stations to obtain responsible representation of views contrasting with the position taken by their editorial, the licensee had made a reasonable effort, overall, to comply with the fairness doctrine and that, therefore, the Commission would not second-guess CBS's determination that you were not an appropriate spokesman to present a viewpoint on the issue of judicial reform.
We believe that the facts pertinent to this matter are fully and adequately set forth in our previous decision and therefore need not be repeated here.
You first assert that in granting the CBS application for review, the Commission erred in waiving provisions of Sections 1.106 and 1.115(c) of its rules to permit CBS to introduce for original consideration facts showing additional efforts made by KNX and KNX-FM to present viewpoints in contrast with that of their editorial. We find no such error, for Section 1.3 of the Commission's Rules provides that "Any provision of the rules may be waived by the Commission on its own motion... if good cause therefore is shown." It is manifest that such additional facts were plainly relevant and material to the issue before the Commission of whether the licensee, either before or after rejecting your offer of reply, had made a reasonable effort to present contrasting viewpoints. A proper determination as to the reasonableness of the licensee's overall performance under the fairness doctrine necessarily requires that all pertinent facts be before the Commission for review, and that administrative necessity will establish sufficient "good [*17] cause" for waiver where no element of bad faith is evident. While we did admonish the licensee for its tardiness in submitting such additional facts, reminding it of its duty to respond fully to Commission inquiries, we did not then, nor do we now, find that any bad faith on its part was indicated.
Your petition next asserts that it was error for the Commission to consider such additional facts on the ground that this additional evidence "was not of probative value." Specifically, you contend that CBS's additional allegation of fact that KNX and KNX-FM had sent copies of the editorial to 550 individuals and groups in their service area with notice that reply time would be afforded responsible representatives of opposing viewpoints upon request was "unsubstantiated" and hence improperly considered. Since your petition presents no denial of the truth of the additional facts introduced by CBS, and does not allege any facts which might be taken to controvert those submitted by the licensee, your argument that such evidence was improperly considered must be rejected.
Finally, we note that your petition repeatedly attempts to direct our consideration to your qualifications as a potential spokesman on the issue of judicial reform and to the reasonableness of the licensee's refusal to accept your offer of reply. We must reiterate that the issue in this case is not one concerning the personal qualifications of individuals to present viewpoints on controversial issues of public importance or of any obligation on the part of the licensee to afford reply time to any particular group or individual. n1 In this regard, with exceptions not applicable here, no single group or person is entitled as a matter of right to present a viewpoint differing from that expressed on the station. Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed. Reg. 10416 (1964). The issue properly before us here is rather whether the licensee, in its overall treatment of a controversial issue of public importance, has made a reasonable effort to obtain responsible representation of contrasting views. It has been determined that Stations KNX and KNX-FM did in fact take such reasonable steps to present contrasting viewpoints thereby complying with the fairness doctrine and that upon the facts here presented, the Commission will not substitute its judgment for that of the licensee in matters of spokesman selection. Your petition raises no new or relevant questions of material fact to prompt reconsideration of that decision.
n1 Similiarly, although our prior review of this matter took note of indications of personal animus existing between the parties, our ruling was in no way premised upon or influenced by that finding, nor do we deem such evidence relevant to any reconsideration here.
In light of the foregoing, your petition for reconsideration IS DENIED.
Commissioner Johnson dissented and issued the attached statement; Commissioner H. Rex Lee abstained from voting.
BY DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
[*18] DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
It would appear that the Commission majority is bent upon gutting the fairness doctrine even before its re-evaluation is complete. (see Notice of Inquiry into the Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 30 FCC 2d 26, June 9, 1971). I refer to the dangerous trend in recent cases toward the finding that zero minutes of time devoted by a broadcaster to one side of a controversial issue can somehow constitute a "reasonable effort" on the part of the licensee. The Commission said as much last week, over my dissent, when it found that zero minutes of coverage of the Presidential campaign of People's Party Candidate Dr. Benjamin Spock by two major networks in the last three weeks of the campaign constituted "fairness." Letter to People's Party, FCC 2d (November 6, 1972). It does so once again in this case, by its decision that zero times given to the expression of views opposed to a CBS radio editorial can also, by some incomprehensible chain of logic, constitute a "reasonable effort."
In this case, CBS, the licensee of radio stations KNX and KNX-FM, Los Angeles, broadcast an editorial critical of the California judiciary on October 29, 1969. At the end of that editorial, I will assume the station added the usual trailer regarding the station's offer to broadcast "opposing views." In any event, licensee claims that it sent copies of the editorial, along with an offer of time to reply, to some 550 individuals and groups in its service area, but that none of the 550 responded. The only person to request time from the station to reply to the editorial was Thomas M. Slaten -- and his request was refused. To all intent and purposes, then, the listeners of KNX-AM and FM were left with the impression that no one opposed the licensee's viewpoint, since zero time was allotted by the station to any other side. In my absence last April, the Commission found that CBS had not run afoul of the fairness doctrine. Today the majority refuses to reconsider that decision.
In its Cullman decision, 40 FCC 576 (1963), this Commission found that a station was required to make a positive effort to air views on controversial issues opposed to those already presented in the course of its programming. At the same time, the Commission stated that in all applications of the fairness doctrine, "the type of programming and the amount and nature of time to be afforded is a matter for the good faith, reasonable judgment of the licensee, upon the particular facts of his situation." 40 FCC, at 577. Nowhere, however, has it been stated that a licensee, having presented one side of a controversial issue, could then exercise its "good faith, reasonable judgment" to refuse to devote any time to the other. Yet that appears to be the Commission's holding today.
What the majority in this case seems to forget is that the fairness doctrine was not designed for the benefit of the licensee, or even for the benefit of the party who claims the right to respond. It is for the benefit of the viewing or listening public, and represents the obligation of the licensee, the public trustee of the airwaves, to inform that public as to the various viewpoints that may exist on controversial issues. [*19] This obligation is especially important when the viewpoint is one being directly advocated by the licensee itself.
When the whole question of editorializing by broadcast licensees was considered by this Commission in 1947, it was, in part, "to determine whether the expression of editorial opinions by broadcast station licensees on matters of public interest and controversy is consistent with their obligation to operate their stations in the public interest." The answer was yes, editorializing was consistent -- but only so long as the licensee could ensure that opposing viewpoints were sufficiently represented to prevent an "overemphasis on the side of any particular controversy which the licensee chooses to espouse." Report on Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). Thus, at a very early juncture, the Commission recognized the thin line it would have to walk between allowing a licensee to propagandize freely -- with the incredible powers of the broadcast media -- and stifling a licensee's First Amendment rights to freedom of expression. It sought a rather delicate balance between these conflicting factors, and the fairness doctrine was the result.
For the fairness doctrine to operate to protect the public interest, there must be some indication that the licensee has actually presented some aspect of each side of a controversial issue. Merely soliciting replies to on-air editorials cannot be a major factor in a station's "good faith effort" to comply with the fairness doctrine, whether CBS solicits from 500 or even 5000 persons or groups.
This Commission often plays numbers games over fairness issues, in which it attempts to decide such questions as whether six and one-half minutes of news coverage might sufficiently balance some 15 one minute spots. But one game that has not been played until now has been the determination that a licensee has made a sufficient "effort" at fairness on the basis of the weight of its "extra-broadcast" activities, when the time presented on the air has been zero.
I do not claim that CBS had an absolute obligation to air the particular views expressed by Mr. Slaten. It did, however, have an absolute obligation to inform the public of views on "the California judiciary" counter to its own by one means or another. Since there is not one scrap of evidence that CBS ever did so on its own, and Mr. Slaten did request time to reply to its editorial, I believe, in this instance, he should have been given that time. A contrary result would make a mockery of the fairness doctrine.