In Re complaint of ANTHONY R. MARTIN-TRIGONA against WCIA-TV, CHAMPAIGN, ILL.; WAND-TV, DACATUR, ILL.; WICS-TV, SPRINGFIELD, ILL.; WICD-TV, CHAMPAIGN, ILL.
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 327
RELEASE-NUMBER: FCC 73-180
February 27, 1973 Released
Adopted February 14, 1973
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER REID ABSENT.
[*327] 1. The Commission has before it an Application for Review filed on April 17, 1972 by Mr. Anthony R. Martin-Trigona of the ruling of the Broadcast Bureau of March 16, 1972, 34 F.C.C. 2d 118 (1972).
2. We have examined the pleadings herein and believe that the Bureau's ruling was correct. Accordingly, pursuant to Section 1.115(g) of the Commission's Rules and Regulations, the Application for Review IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The majority decides this case today on flimsy procedural grounds rather than face up to the need for a substantive ruling on the problem of utility advertising. Since both our staff and the trade press inform us that this case is but the first in a number of such forthcoming complaints, we would do well to resolve these issues today. We do not, accordingly, I dissent.
The specific complaint in this case is against four Illinois television stations (WICD, WICS, WAND and WCIA) and refers to paid advertisements broadcast on behalf of the Illinois Power Company (IPC) advocating the increased use of electrical energy. Such an advocacy, claims Mr. Martin-Trigona, flies in the face of the stance IPC takes in attempting to justify a 15% rate increase to taxpayers by referring to a "costly expansion program of new construction" said to be required because of rising use of electrical energy. The pendency [*328] of that rate increase plus the potential increase in pollution caused by greater usage should indicate to even the most sanguine observer an issue controversial to the good citizens of Illinois.
Indeed, the four stations did not deny the controversiality of the issues as outlined by complainant. Rather they fell back on the time-worn response that these particular commercials did not contain any explicit reference to those issues. They claimed that to find discussion of controversy in a mere product advertisement extolling the virtues of using electricity would unleash a pandora's boxful of broadcaster nightmares, requiring responses to everything from furniture ads to auto ads to ads for any or all foreign imports. In doing so, they obfuscate the considerably more specific problem found in these ads.
It is crystal clear that the connection in this case between the advertising and the controversy is as great here as it was in the cigarette ad case, Banzhaf, F.C.C. 2d. (1970), or in the Friends of the Earth decision, F.2d. (1971). But the Commission majority appears to sorrowfully regret the former and has never been willing to apply the court's reasoning in the latter to any other equally obvious situations, see my dissent in Complaint of Allen Neckritz (Chevron-F-310), on remand), F.C.C. 2d , at ; and in this case they conveniently find a way not to decide the issue at all, by mis-application of the Allen C. Phelps, decision, 21 F.C.C. 2d 12 (1970). n1
n1 Not only is the Phelps decision mis-applied in the original staff letter to Martin-Trigona, it is also mis-cited, at page 712 instead of page 12 of volume 21 of the F.C.C. Reports.
In Phelps, two separate complaints were lodged against the entire content of WTOP's news and public affairs programming alleging bias and failure to comply with the fairness doctrine on "a number of controversial issues" such as "home rule, public schools, crime, and... police brutality..." 21 F.C.C. 2d, at 13. The complaints were dismissed because "absent detailed and specific evidence of failure to comply with the fairness doctrine, it would be unreasonable to require licensees specifically to disprove allegations such as those made here." Id.
In dismissing Martin-Trigona's complaint, the majority relies on language in Phelps that requires a fairness doctrine complainant to "(a) specify the particular broadcast in which the controversial issue was broadcast, (b) state the position advocated in such broadcasts, and (c) set forth reasonable grounds for concluding that the licensee in his overall programming has not attempted to present opposing views on the issue." Id. But a search of the record and correspondence in this case reveals nothing of the generality and obfuscation that marked the Phelps complaints, and, indeed, tends to indicate that all three of the "requirements" have actually been satisfied by Mr. Martin-Trigona:
a) He has specified, as well as one member of the public possibly can, that the offending broadcasts occurred in a great many commercials over a short period of time over the four stations. It is perhaps ironic that, had he "estimated" the number of commercials at, say, 400, and named a few specific times, this number-conscious Commission might have been a bit more responsive to his complaint. He did not, [*329] and he has rightfully stated that "a public citizen is not [or should not be] required to be a stenographer and provide transcripts of commercials or a per-se log of their air times, [especially] when a general attack is made on the entire scope and focus of an advertising campaign." Support for his point can easily be found in the Friends of the Earth case cited above.
b) There can be no question but that Mr. Martin-Trigona has sufficiently stated the position advocated in the advertisements -- that of encouraging the use of greater quantities of electricity -- and has ably made out a case for the position's controversiality.
c) Finally, Mr. Martin-Trigona has indicated in his allegations that the four licensees "had never afforded a forum for discussion of the controversial issues at point." Again, the point is an obvious one: if indeed the licensees had never presented opposing views on this issue, then the final Phelps criterion must be satisfied and the question of the issue's controversiality be adjudicated.
The majority simply ignores those unambiguous allegations, however, and "decides" that Mr. Martin-Trigona wasted his time prosecuting an essentially "frivolous" case. I cannot agree that he has not satisfied our threshold procedural requirements, and I believe he deserves an adjudication on the merits of his complaint. Any other solution would render our fairness complaints procedure completely meaningless vis-a-vis the average citizen, and therefore I dissent.