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In Re Complaint by CALIFORNIANS AGAINST THE TAX TRAP INITIATIVE Concerning Reconsideration of "Fairness Doctrine"

Ruling Re Station KLAC, Los Angeles, Calif.




19 F.C.C.2d 507; 17 Rad. Reg. 2d (P&F) 173




JANUARY 22, 1969










    [*507]  Mr. HARRY LERNER, Californians Against the Tax Trap Initiative, Suite J, 4661 Sunset Boulevard, Los Angeles, Calif. 90027.


   DEAR MR. LERNER: This is in reply to your telegram and letter of November 1, 1968, and supplementary material in connection therewith, requesting the Commission to reconsider its October 31, 1968, action on your complaint that station KLAC, Los Angeles, failed to comply with the "Fairness Doctrine" in broadcasts regarding proposition 9 which was voted upon in the California election of November 5, 1968.  The Commission found that, on the basis of information that was available to it, it could not conclude that the licensee (Metromedia radio station KLAC, Los Angeles) has failed to comply with the requirements of the fairness doctrine.  (15 F.C.C. 2d 75.)


   Although you have alleged that KLAC broadcasters have explicitly endorsed proposition 9 on one occasion, were biased on other occasions, and otherwise failed to comply with the requirements of the fairness doctrine, your requests for reconsideration do not present any further facts in support of these allegations.  However, some understanding of the principles applicable to your claims may be helpful.


   First, the fairness doctrine requires that each licensee afford a reasonable opportunity for the presentation of contrasting views on controversial issues of public importance.  The purpose of the doctrine is to promote the fullest possible robust debate on public issues.  Consequently, so long as a licensee does not deny such "reasonable opportunity" to any competing view, it may adopt, and even vigorously support, any position it chooses on a controversial issue. Letter to Storer Broadcasting Company; 11 F.C.C. 2d 678; January 31, 1968. Second, as contrasted to section 315 of the Communications Act of 1934, as amended, the "Fairness Doctrine" does not require equality in the opportunity afforded by the licensee for the presentation of each competing view.  A licensee's programming may reflect differences in the presentation of contrasting views so long as there is reasonable balance in light of the particular circumstances.  Moreover, the licensee has considerable discretion in the manner and timing of achieving fairness, with the Commission's role limited to determining whether his actions  [*508] have been reasonable.  Letter to Lawrence M. C. Smith; 40 F.C.C. 549; April 18, 1963.


   The Commission has considered your request for reconsideration in the light of these established principles and, again based upon the information before it, adheres to its October 31, 1968, determination.  It should be noted that the Commission is not able to undertake extensive investigations of every fairness doctrine complaint.  Therefore, as set forth in part I of the enclosed public notice of July 1, 1964, "Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance," a complainant must submit specific information showing the basis for his claim.  Absent a more complete factual showing of a possible fairness doctrine violation by KLAC, no further action is contemplated in this matter.


   Commissioner Cox abstained from voting; Commissioners Wadsworth and H. Rex Lee absent; Commissioner Johnson dissented with the attached statement.











   This case neatly poses some of the tough, practical problems of enforcement of the fairness doctrine.


   The complainants were interested in a ballot proposition on the California ballot of November 5, 1968.  They organized a group calling itself "Californians Against the Tax Trap Initiative." The substance and merits of the proposition, and complainants' position regarding it, are not relevant to the issue before the FCC.


   Complainants were concerned about comments of announcers on AM radio station KLAC in Los Angeles.  Presumably this came about because they personally heard, or were told about, comments of KLAC announcers during "talk programs" that took positions contrary to theirs on this ballot proposition.


   They complained to the FCC that KLAC had violated the fairness doctrine.  In the words of their November 1, 1968, letter:


   The station has permitted its "communicators" to repeatedly assault the opponents of Proposition 9, impugning our motives, ridiculing our claims and questioning our honesty, while lauding the noble purpose of the millionaire land speculators, landlords and real estate promoters who put Proposition 9 on the ballot. On October 31, 1968, we held against them.  In a telegram and letter of November 1, 1968, they requested reconsideration.  Today we deny that petition, and uphold our original October 31, 1968, ruling.


   The fairness doctrine finds its statutory basis in section 315 of the Communications Act.  It provides, in pertinent part, that broadcasters have an "obligation * * * to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." It has evolved over the years with a large body of FCC case-by-case declarations of its applicability in specific factual settings, embodied in summary form in a pamphlet referred to as the "Fairness Primer."  [*509]  "Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance," 29 F.R. 10415-427 (July 25, 1964).  Its constitutionality has been affirmed by the Supreme Court in Red Lion Broadcasting Co., Inc. v. F.C.C., 37 U.S.L.W. 4509 (U.S., June 9, 1969).


   The primer states that responsibility falls upon the broadcast licensee --


   To make reasonable judgments in good faith on the facts of each situation -- as to whether a controversial issue of public importance is involved, as to what viewpoints have been or should be presented, as to the format and spokesmen to present the viewpoints, and all the other facets of such programming.


   All would presumably agree that if KLAC announcers consistently and deliberately commented upon only one side of the issues surrounding proposition 9 that a violation of the fairness doctrine would have occurred.  By the same token, there would be little dispute that if KLAC made "reasonable judgments in good faith" that, taken as a whole, its overall programming treated all sides of the proposition 9 issues fully and fairly, the mere fact that some announcers occasionally made comments on one side of the issue or the other would not constitute a violation of the fairness doctrine.


   So far so good.  But here the trouble begins.


   The FCC, as a practical matter, has no one whose job it is to listen to radio or watch television -- or even read TV Guide -- to see if its rules and regulations are, in fact, being carried out.  It must rely, almost exclusively, upon the complaints filed by interested members of the public.


   Once we receive such complaints, the problem arises as to who has the burden of proof and how it is to be exercised.  There is no reasonable and feasible way that a citizen could -- or should be expected to -- make and analyze continuous audio and video tapes of the programming of potential violators of the fairness doctrine.  He may hear occasional offending broadcasts while driving in his car, or at other times when he is ill-equipped to record the item or make detailed notes.  The other demands upon his time are such that he cannot undertake a project involving anything more than the most occasional monitoring.  As the complainants state in their November 1 letter, "We have made some tape recordings of 'talk show' attacks after learning about them -- mostly by chance, and our submission to you, of necessity, tells only a small part of the story."


   The nature of the broadcasters' product is such that there are no records of it.  It is ephemeral.  An unrecorded offending word, once spoken, is gone forever -- so far as legal "proof" is concerned.  Other violations may subsequently occur and be recorded, but the original one will never be recovered.  Newspapers, by contrast, are collected and bound by libraries.  Our society in general, and librarians in particular, have been slow to recognize the historical, anthropological, and artistic necessity of preserving a record of what is today undoubtedly the most powerful cultural force in this country -- radio and television programming.


   For reasons which I have never understood, and would find hard to justify, the rules of this Commission provide that the programming logs  [*510]  of its licensed stations need not be opened to the public -- notwithstanding the fact that they are but a sketchy record of events or acts that were, in every respect, "public." Network officials have refused to provide me, as an FCC Commissioner, with information about the carriage of network programming by affiliates -- even though such facts are equally public, and are even printed in TV Guide, newspaper TV supplements, and so forth.  Such behavior seems oddly recalcitrant from a "proxy or fiduciary" for the public.  Red Lion Broadcasting, supra at 4516.


   Of course, in answering fairness complaints the broadcasters' interests must also be considered.  The burden upon them could be significant if they had to answer every unsubstantiated charge by producing a typewritten transcript of all programming over a period of days or months.


   Somewhere, however, there must be a compromise procedure more satisfactory than what we are now following.  Our letter states:


   It should be noted that the Commission is not able to undertake extensive investigations of every Fairness Doctrine complaint * * *.  [A] complainant must submit specific information showing the basis for his claim.  Absent a more complete factual showing of a possible Fairness Doctrine violation by KLAC, no further action is contemplated in this matter.


In summary, complainants have charged that KLAC's announcers violated the fairness doctrine by their statements during the 21 hours a day of talk shows. KLAC answers that its 3 hours a day of news programs were balanced within the terms of the fairness doctrine -- and supplies some tapes to support its view. (These tapes do contain some statements that tend to favor complainants' position on the ballot proposition.)


   It may be true that we do not have enough information before us to find a violation of the fairness doctrine.  But it is also true that, in my judgment, we do not have enough information to find that KLAC has complied with its fairness doctrine obligations.  This Commission has recently been charged with exhibiting a "curious neutrality-in-favor-of-the-licensee" by the United States Court of Appeals in Office of Communication of the United Church of Christ v. F.C.C. (D.C. Cir., June 20, 1969) (slip opinion, p. 6).  The clear lesson of this case is that the burden of proving that licensee conduct is consistent with Commission rules rests squarely with the licensee itself, and that this


Commission must do more to protect the public interest.


Complainants have written:


   The undersigned respectfully submits that the Commission erred in its findings and that the error is directly traceable to the fact that your staff did not obtain, not did you have before you for consideration, vital facts, information, and evidence on which to base an equitable judgment. In their telegram and letter they offered to provide additional transcripts which we never considered.  Under the circumstances of the facts of this case I believe either the station or the Commission should have undertaken the burden of a little additional investigation and analysis.


   I dissent.


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