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16 F.C.C.2d 941( 1969)




MARCH 20, 1969





[*941]  METROMEDIA, INC., LICENSEE OF STATION WNEW-TV, 5151 Wisconsin Avenue NW., Washington, D.C. 20016.


GENTLEMEN: This refers to a complaint filed on October 2, 1968, against station WNEW-TV, alleging a failure to comply with the requirements of the Commission's cigarette advertising policy, set forth 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 rehearing pending.


The above policy 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 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.  We note, however, that in the sample period (September 1968) although the vast majority of your cigarette commercials were broadcast during the hours which you define as "prime time," comparatively few of your antismoking messages were broadcast during these hours, and none were broadcast on 13 of the 30 days.


We recognize that in view of the considerations set forth in the last sentence of the second 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  [*942]  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 Johnson dissents, with statement.  Commissioner Wadsworth dissented.







On October 2, 1968, the Commission received a complaint that WNEW-TV, New York, had broadcast numerous procigarette commercials but "no" antismoking announcements.  Following a Commission request, Metromedia, licensee of WNEW-TV, submitted information to the Commission indicating the number of procigarette commercials to antismoking announcements during the prime-time period of 7:30 p.m. to 11 p.m. was on the order of 7 to 1.


Analysis of the Metromedia figures revealed that no antismoking announcements were broadcast by WNEW-TV during prime-time hours on 19 of the 30 days in September, and that during these hours 63 procigarette commercials were broadcast.  During a 7-day consecutive period within this month of September, no antismoking announcements were broadcast at all, while 27 procigarette commercials were programmed.  In other words, during 1 entire week of September, the ratio of procigarette commercials to antismoking announcements in prime-time was 27 to 0; and during 19 days of September -- over one-half of the entire month -- this ratio was 63 to 0.


Despite this abysmal lack of compliance with Commission policies, WNEW-TV is today given only a mild reproach by the majority.  I dissent.


I have detailed my objections to the majority's rather cavalier treatment of its fairness doctrine with respect to procigarette commercials elsewhere, and will not repeat them here.  (See dissenting opinions in, "In the Matter of Petition To Revoke the License of National Broadcasting Company, Inc., for Station WNBC-TV, New York, New York," FCC 69-270 (1969), and "In re Application of Westinghouse Broadcasting * * *," F.C.C. 69-262 (1969).) The issues raised there are equally relevant here, and I simply do not understand why the Commission continually refuses to deal with them.


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