In Re Complaint by DIOCESAN UNION OF HOLY NAME SOCIETIES OF ROCKVILLE CENTRE AND
LONG ISLAND COALITION FOR LIFE Concerning Fairness Complaint re Station WCBS-TV, New York, N.Y.
FEDERAL COMMUNICATIONS COMMISSION
43 F.C.C.2d 548
OCTOBER 31, 1973.
[*548] On October 11, 1973, the Commission denied the application by the Diocesan Union of Holy Name Societies of Rockville Centre and the Long Island Coalition for Life for review of a June 12, 1973, ruling by the Broadcast Bureau denying Fairness Doctrine and personal attack complaints against WEBS-TV, New York, N.Y. The complaints were about a two-part episode of "Maude" aired by WCBS-TV on November 14 and 21, 1972, which portrayed Maude's discovery that she was pregnant and her decision to have an abortion.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The Commission today issued a two-sentence order summarily denying Complainant's application for review of a fairness doctrine complaint involving the segments of CBS' program "Maude" dealing with the subject of abortion. In doing so, it conclusively precludes any Commission consideration of the substantive merits of the complaint.
The majority bases its decision on a contrived procedural rule which has no foundation in law or reason but which threatens to effectively emasculate the fairness doctrine. Because the scope of my dissent is limited to the relatively narrow procedural aspects of the case, I think it important to clarify at the outset both what my opinion does not, as well as what it does, cover.
First, I am neither taking any position herein on the issue of abortion, nor am I expressing any opinion on whether abortion is an appropriate subject for entertainment programming in general, or for "Maude" in particular. These are both emotionally-charged, sensitive and difficult issues that have nothing to do with the procedural infirmity which has prompted this dissent.
Moreover, I am expressing no opinion on whether WCBS-TV has provided other programming on the "Maude" series, or elsewhere, to "balance" the subject matter presented on the programs in question. Again, this is a subject I need not reach today.
Rather, my dissent is limited to the procedural straight-jacket in which the majority's decision straps fairness complainants; a restraint [*549] which, in effect, denies them a substantive ruling until they meet a burden that, as a practical matter, can never be met.
In the June 12, 1973 letter-opinion which is the subject of our review, the Division Chief notified Complainants that:
* * * assuming arguendo that the program [raised a controversial issue of public importance], you have not provided the Commission with any information indicating that the station has presented only one side of such issue in its overall programming.
The letter then concluded that Commission action would not be warranted until Complainants provided "* * * specific, detailed information to support a claim that the licensee has failed in its overall programming to comply with the fairness doctrine * * *"
In other words, before the staff would even consider the merits of the complaint (i.e., what issue was raised and whether it was controversial and of public importance), Complainants were required to submit proof that WCBS-TV had not carried other programming balancing the issues raised in the "Maude" telecasts. Besides being an unreasonable requirement with no legal basis, it is ludicrous for this Commission to sanction a procedural rule requiring members of the public to submit proof of something the licensee has not broadcast.
Nevertheless, Complainants attempted to meet the burden. In their letter seeking review of the Bureau's decision, Complainants set forth all of the information at their disposal:
The "MAUDE" programs have been monitored and said programs have never presented the pro-life position on abortion.
Complainants added that no other programming designed to balance the "Maude" presentations had been broadcast.
What other proof would we require of public complainants who have access neither to station program logs nor to transcripts -- because current FCC rules keep such public documents secret? Would we require them to watch television eighteen hours a day, seven days a week, 365 days a year in order to compile lists of everything not broadcast in the event that they might want to file a fairness complaint sometime in the future? If the Commission needs more detailed information about a licensee's programming, clearly it must be obtained from the only source of that information available to anyone, including the Commission -- namely, the licensee.
Only the most myopic interpretation of our fairness guidelines would require complainants to set forth with precision what the licensee has not broadcast before we will consider the merits of a complaint. Neither logic nor law suggests such a procedure which, in addition to being nonsensical, misconstrues the fundamental requirements of the fairness doctrine as articulated nearly ten years ago:
Where complaint is made to the Commission, the Commission excepts a complainant to submit specific information indicating (1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air; (3) the date and time the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints. n4
n4 The complainant can usually obtain this information by communicating with the station.
[*550] Fairness Primer, 2 R.R.2d 1901, 1904 (1964).
In the same Prime, the Commission reiterated the necessity of obtaining substantive programming information from the licensee:
If the Commission determines that the complaint sets forth sufficient facts to warrant further consideration it will promptly advise the licensee of the complaint and request the licensee's comments on the matter. Full opportunity is given to the licensee to set out all programs which he has presented, or plans to present, with respect to the issue in question during an appropriate time period. 2 R.R.2d at 1905.
In the instant case, Complainants set forth all of the facts at their disposal with specificity and precision. They met the burdens which reason and regulations imposed upon them. They were entitled to a determination on the merits of their complaint.
If the Commission needed additional information concerning the licensee's attempts or failures, in its overall programming, to provide balanced coverage of the issues in question, it should have requested those facts from the licensee.
The effect of the Commission's action is to sanction a procedural requirement which discourages public complaints and literally rips the heart out of the fairness doctrine. While it is true that the death knell of the doctrine has, of late, been sounded rather frequently, it seems chicken-hearted to destroy it on as flimsy a procedural infirmity as the Commission has chosen today.