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In re Complaint Against CHRONICLE PUBLISHING CO. Concerning Application of Fairness Doctrine to Cigarette Advertising





16 F.C.C.2d 884 (1969)




MARCH 20, 1969





[*884]  CHRONICLE PUBLISHING CO., 1001 Van Ness Avenue, San Francisco, Calif. 94109.


GENTLEMEN: This refers to the petition opposing renewal of license filed on November 8, 1968 by John F. Banzhaf III and ASH, Action on Smoking and Health.  The petition charges a violation of the fairness doctrine because of an alleged failure to devote a significant amount of time, from October 1967 to the date of the petition (Nov. 8, 1968), to the presentation of the other side of the issue raised by the cigarette advertisements carried by you.  Petitioners alleged that during the "prime time evening hours" of the period November 11 to November 15, 1968, the licensee presented 43 cigarette advertisements (for a total of 1,520 seconds), as opposed to two antismoking messages (for a total of 120 seconds).


In your December 16, 1968, response to the petition, you furnished the Commission with evidence that during the entire broadcast days for the period November 11 to November 17, 1968 (thereby including the weekend), you presented 54 cigarette advertisements (for a total of 2,260 seconds), as opposed to 22 antismoking messages (for a total of 1,300 seconds).  Furthermore, for the period October 1967 through October 1968, the station broadcast 2,739 cigarette advertisements (for a total of 31 hours, 53 minutes, and 30 seconds), as opposed to 1,024 antismoking messages (for a total of 15 hours, 22 minutes, and 10 seconds).


The policy set out in Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C. 2d 921 (1967), affirmed John Banzhaf III v. FCC, Case No. 21285 (C.A.D.C.), November 21, 1968, petition for certiorari pending, requires that a broadcast licensee presenting cigarette commercials, which "* * * convey any number of reasons why it appears desirable to smoke * * *" -- must "* * * devote a significant amount of time to informing the listeners of the other side of the matter -- that however enjoyable smoking may be, it represents a habit which may cause or contribute to the earlier death of the user." (9 F.C.C. 2d at 939.) At the same time, we stressed that we would implement the requirement in such a way as not to drive cigarette commercials off the air -- a result which would be inconsistent  [*885]  with the congressional direction in the Cigarette Labeling and Advertising Act.


We have reviewed the facts of this case in the light of the above policies, and find that if the matter were viewed on the basis of the entire broadcast day there would be no basis to the complaint in light of the information supplied above.  We note, however, that in the sample period although the vast majority of your cigarette commercials were broadcast during hours of maximum viewing, comparatively few of your antismoking messages were broadcast during these hours.  See letter to WNBC, issued this day.


We recognize that in view of the considerations set forth in the last sentence of the third paragraph, parity between cigarette commercials and antismoking messages cannot be required during these hours, and that the implementation of our policy requires a sensitive balancing.  Without setting down any mathematical formula, and recognizing that you have been making substantial efforts to inform listeners of the health hazards, we nevertheless believe that greater effort is called for during the periods of maximum viewing.  We therefore request that within 60 days of the date of this letter you submit a statement of your future policies in this area and that, after the passage of a period of 4 months from the issuance of this letter, you submit a report on your efforts to implement such policies.


This letter was adopted by the Commission on March 19, 1969.  Commissioner Cox concurred in the adoption of the letter but would, in addition, have indicated that the licensee should have maintained approximately the same ratio between cigarette commercials and antismoking messages in all periods of the broadcast day.  Commissioner Wadsworth abstains; Commissioner Johnson dissents, with statement.







Once again the Commission has refused even to inquire into what may well be willful and deliberate violations of its fairness doctrines with respect to cigarette advertising.  Accordingly, I must dissent.


On November 8, 1968, petitioners John Banzhaf and ASH filed an opposition to the renewal of KRON-TV's license, alleging that during the prime time evening hours of one 5-day period in November, KRON-TV broadcast 43 procigarette commercials as opposed to only two antismoking announcements.  These allegations are apparently not disputed by the licensee.  It appears, therefore, that during one weekday period KRON-TV has broadcast 21.5 procigarette commercials for each antismoking announcement.  Yet the majority fails to impose any meaningful sanction on the licensee for its conduct.  I simply cannot agree to such a disposition.


I believe petitioners have provided the Commission with sufficient evidence to indicate that KRON-TV has failed in its obligation to provide a significant amount of time to counteract the prosmoking views contained in its cigarette commercials.  I believe this shocking  [*886]  disparity between the number of procigarette and antismoking spots provides sufficient evidence to warrant a Commission inquiry, at a public hearing, into the question of whether the licensee has deliberately and willfully attempted to undermine the effectiveness of this Commission's fairness doctrine.  And I believe the licensee should be required to offer evidence at such a hearing that its scheduling of antismoking announcements comports with the public interest and accordingly its qualifications to operate a television station.  I would add such an issue to the hearing ordered yesterday on the renewals of KRON-FM-TV.  See Chronicle Broadcasting Co., F.C.C. 69-262 (1969).


I have elsewhere stated my views on the issues here involved, and will not repeat them here.  (See dissenting opinions in the license renewals of WNBC-TV, New York (F.C.C. 69-270), WNEW-TV, New York (F.C.C. 69-272), and KPIX-TV, San Francisco (F.C.C. 69-262).) I believe the Commission has again failed in its duties to the public it is purportedly attempting to serve.


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