In Re Complaints of COMMITTEE FOR THE FAIR BROADCASTING OF CONTROVERSIAL ISSUES, AGAINST COLUMBIA BROADCASTING SYSTEMS, INC. (WCBS-TV, CHANNEL 2), NEW YORK, N.Y., and BROADCAST-PLAZA, INC. (WTIC-TV, CHANNEL 3), HARTFORD, CONN.; FOURTEEN U.S. SENATORS, AGAINST NATIONAL BROADCASTING CO., INC., COLUMBIA BROADCASTING SYSTEMS, INC., AND AMERICAN BROADCASTING CO., INC.; BUSINESS EXECUTIVES MOVE FOR VIETNAM PEACE (LOS ANGELES CHAPTER), AGAINST NATIONAL BROADCASTING CO., INC., COLUMBIA BROADCASTING SYSTEMS, INC., AMERICAN BROADCASTING CO., INC., AND STATIONS KNXT, KABC-TV, AND KNBC, LOS ANGELES; In Re Petition of REPUBLICAN NATIONAL COMMITTEE FOR RELIEF AGAINST COLUMBIA BROADCASTING SYSTEMS, INC.; In Re Complaint of ELEVEN U.S. SENATORS AGAINST NATIONAL BROADCASTING CO., INC.
FEDERAL COMMUNICATIONS COMMISSION
25 F.C.C.2d 283
RELEASE-NUMBER: FCC 70-881
August 18, 1970 Released
Adopted August 14, 1970
BY THE COMMISSION: COMMISSIONERS BURCH (CHAIRMAN) AND ROBERT E. LEE ISSUING SEPARATE STATEMENTS; COMMISSIONER BARTLEY DISSENTING; COMMISSIONER JOHNSON CONCURRING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE DISSENTING AND ISSUING A STATEMENT; COMMISSIONER WELLS NOT PARTICIPATING AS TO DOLE PETITION.
[*283] 1. The Commission has before it a series of separate complaints and petitions relating to alleged violations of the fairness doctrine by various television networks, their owned and operated stations and individual network affiliated stations in their coverage of issues relating to the war in Southeast Asia (also referred to as the Indochina War). n1 We will first summarize the issues raised by the pleadings and then turn to discussion of the matters raised.
n1 The pleadings before the Commission are listed in the attached Appendix.
[*284] SUMMARY OF PLEADINGS
2. The Committee for the Fair Broadcasting of Controversial Issues (Committee) filed a "Complaint, Petition for Issuance of Order to Show Cause to Cease and Desist and Request for Expedited Disposition" on May 25, 1970, directed against stations WTIC-TV, Hartford, Connecticut, and WCBS-TV, New York City, for violation of Section 315 of the Act and the Commission's fairness doctrine. Specifically, both stations are alleged to have failed "to afford a fair and reasonable opportunity for the balanced presentation of the contrary views when the President of the United States addresses the Nation on television on the Administration's policies in Southeast Asia." n2
n2 Committee for Fair Broadcasting did not initially contact WCBS-TV and WTIC-TV to ascertain their plans for future coverage of the issue. Such prior contact between complainants and licensees is strongly encouraged to ascertain whether a controversy exists and to sharply narrow and delineate the issues involved. (See Fairness Primer, 29 Fed. Reg. 10416 at Part I.) In the case of the Committee's complaint we will consider the matters raised because of the similarity to the complaints of the Amendment to End the War Committee and the Business Executives Move for Vietnam Peace where the normal prior consultation procedures were followed.
3. The Complaint: Between November 3, 1969, and April 30, 1970, the President presented his views on the war in Southeast Asia (including the issues of the origins of the war, the alternative courses of action available, "Vietnamization," rate of U.S. troop withdrawal, American incursion into Cambodia) on four separate occasions n3 with wide prior publicity. The speeches were broadcast during prime time and varied in length from 15 to 30 minutes. The President entertained no questions before, during or after the speeches; the presentations were not interrupted in any other manner; and the President's remarks were broadcast live and complete. The Committee contends that neither WTIC-TV nor WCBS-TV has presented any program which presented contrasting viewpoints on the issues the President addressed and which received significant prior publicity, was broadcast nationwide on network owned and operated and affiliated stations during prime time and had the same uninterrupted orderly exposition on a single issue or set of issues. The Committee contends that the programming concerning the Vietnam-related issues presented by WTIC-TV and WCBS-TV is, in and of itself, balanced. n4
n3 In the November 3, 1969 speech, the President discussed the historical background of American presence in S. E. Asia, outlined the "Vietnamization" program, including troop withdrawals and training progress of Vietnam army, and the course of negotiations. On American troops would be withdrawn. On April 20, 1970, the President gave another "progress report" on the Vietnam situation, spoke of the "substantial increase" of enemy activity in Laos and Cambodia and announced an additional troop withdrawal of 150,000 in the next year. Finally, on April 30, 1970, the President announced the entry of American troops into Cambodia. The Committee's pleading was filed prior to the President's speech of June 3, 1970.
n4 E.g., Face the Nation -- 10 guests favoring Administration policy and 8 opposed; documentaries are internally balanced with both proponents and opponents included in each show.
4. The Committee asserts that its members, as part of the listening public of WTIC-TV and WCBS-TV, have not been given reasonable opportunity to effectively hear the presentation of conflicting views on issues of public importance in accordance with their rights as set forth in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969), Controversial Issue Programming -- Fairness Doctrine, 3 RR 2d 163 [*285] (1964), and Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). Petitioner emphasizes that its request is not intended to inhibit television coverage of Presidential speeches, but rather to insure that licensees fulfill their "conscious and positive role in bringing about balanced presentation of the opposing viewpoints." Editorializing Report, supra, at 1251 (paras. 9, 13). The Committee asserts that WTIC-TV and WCBS-TV have failed to comply with the fairness doctrine, notwithstanding the wide discretion permitted the licensee to choose the precise means of achieving compliance bound by standards of reasonableness and good faith. The Committee's argument is that the licensees acted unreasonably by failing to exercise the discretion afforded them and thus not attempting to present any program in conflict with the views expressed by the President. The licensees' performance, the Committee asserts, demonstrates a failure to undertake the affirmative responsibility necessary to meet "minimal standards of fairness." The fairness violation, the Committee argues, has been repeated through the series of Presidential speeches presented by each station. The Committee seeks issuance of an order to show cause why the Commission should not require the stations in question to cease and desist from their violation and failure to observe the provisions of Section 315 and the fairness doctrine in their coverage of additional Presidential speeches concerning the Indochina War.
5. In response WCBS-TV and WTIC-TV submit that they have fairly and fully covered the Vietnam War, the Cambodian incursion and the Administration's war policy in their overall programming. Both stations have submitted exhibits showing extensive news, discussion, interview and documentary coverage of the issues cited by the Committee and contend that their performance cannot be assessed simply in terms of their coverage of the President's addresses, but must be viewed in an overall, issue-oriented context. Moreover, the stations assert, the Committee's protestations to the contrary notwithstanding, the Committee's compliant represents an attempt to apply the "equal opportunities" concept to the fairness doctrine rather than the "reasonable opportunities" concept which has traditionally prevailed. Such a "radical extension," the stations argue, would be beyond the Commission's authority, Finally, WTIC-TV contends that the Committee's objections go to network programming and thus their relief must come from the same source; n5 WCBS-TV contends the allegations are too vague and general to demonstrate violation of the fairness doctrine.
n5 The licensee is ultimately responsible for assuring that fairness is achieved over the station's facilities; whether this is done through local or network programming it of no moment insofar as the individual station's compliance is concerned.
6. The Amendment to End the War Committee and Fourteen U.S. Senators, n6 have filed a complaint alleging violation of the fairness doctrine by the three major television networks and their owned and operated stations in their coverage of the President's speeches on the [*286] war in Indochina. The Senators are all sponsors of Senate Amendment No. 609, the "Amendment to End the War." The President's five speeches on the Indochina war since November 1969, represent a "series" of programs, n7 petitioners state, which have not been balanced by a "similarly effective presentation of the views of the major Congressional opponents of the President's war policy." Petitioners argue that the President's speeches have presented one side of controversial issues of public importance (e.g., Presidential power to conduct the war; role of Congress in making foreign policy; criticism of Senators opposing the President's war policies; criticism of the McGovern-Hatfield Amendment and the conduct and progress of the war). In sum, petitioners raise the same type of objection raised by the Committee for Fair Broadcasting (paras. 2-5, supra) -- i.e., the simultaneous dissemination of the President's uninterrupted views by the three major networks in prime time cannot be offset by the internally balanced programs, fragmented news presentations regularly broadcast by the networks and the structural interview programs which do not permit participants to deliver prepared statements of position.
n6 Harold E. Hughes (D-Iowa); George McGovern (D-S.D.); Mark O. Hatfiedl (R-Oreg.); Charles E. Goodell (R-N.Y.); Alan Cranston (D-Calif.); Birch Bayh (D-Ind.); Frank Church (D-Idaho); Thomas F. Eagleton (D-Mo.); Mike Gravel (D-Alaska); Fred R. Harris (D-Okla.); Philip A. Hart (D-Mich.); Edward M. Kennedy (D-Mass.); Lee Metcalf (D-Mont.); Gaylord Nelson (D-Wisc.).
n7 Petitioners term the President's speeches a "series within the definition used in the Commission's Notice of Proposed Rulemaking, Docket No. 18859, 35 Fed. Reg. 7820 (1970)" a series of broadcasts... more than one within a reasonably close time period (from 6-9 months or less).
7. Petitioners stated that all three networks have refused the request of the Fourteen Senators for free prime time to respond to the President and have also refused to sell time for that purpose. n8 Petitioners request that the Commission "require networks to provide time to any substantial group of Senators opposing the President's views on a controversial issue of national importance whenever the issue is one in which the Senate has a role to perform in seeking resolution of the issue, and the President has initiated debate via national television." n9 Petitioners state that they recognize that some inequity in responding to the President will exist and therefore do not request simultaneous three network prime time -- they would accept individual prime time allocations from each of the three major television networks equaling the frequency of the President's appearances. Commission action is necessary, petitioners argue, because the broadcast media cannot be expected to mediate a dispute between two branches of the government and determine the amount of coverage which the position of each is given. n10 In contrast to the complaint of the Committee for Fair Broadcasting petitioners seek response time for themselves and state that the Senators are the most appropriate respondents to the Presidential addresses.
n8 NBC permitted the Committee to purchase one-half hour on May 12, 1970, but refused the same entity's subsequent request on June 3, 1970. The program produced for the NBC slot on May 12 was later broadcast by some local stations including WTOP-TV, a CBS affiliate. We have considered the question of purchasing time for the presentation of controversial issues discussion in three rulings released Aug. 12, 1970: Friends of the Earth (FCC 70-862), Business Executives Move for Vietnam Peace (FCC 70-860) and Democratic National Committee (FCC 70-861).
n9 The obligation petitioners seek to enforce would not be satisfied by granting time to the "loyal opposition" party -- since, it is argued, conflicting views on issues do not necessarily break down on party lines.
n10 We agree with petitioners that such mediation is not the function of the broadcast media. However, we similarly believe that it is not the function of an independent governmental agency to make such judgments. Under the system of broadcasting which has developed in this country judgments as to the coverage given any issue is in the first instance left to the licensee to be made on the basis of the substantive contentions involved in the issues being covered rather than upon the identity of the contestants.
[*287] 8. Aside from the requirements of the fairness doctrine, petitioners contend that the relief they seek is dictated by the First Amendment which by judicial interpretation precludes private as well as governmental censorship when the avenues of use are controlled by a few private licensees. To support this theory, petitioners rely primarily upon the Red Lion, supra, decision as applying numerous First Amendment cases to the broadcast media. Moreover, petitioners contend that the Senators must appear personally to preserve the First Amendment values involved because of the "impact far beyond the same words spoken by another man" which a Senator's words have. Thus, presentation of the same views by another, "drains from the speech a part of its most important message and best chance to persuade."
9. NBC and CBS (the Networks) have responded to the Fourteen Senators' complaint in essentially the same fashion and by reiterating the arguments advanced in response to the Committee for Fair Broadcasting Complaint (see para. 2-5, supra). n11 We will therefore summarize only the additional points made: CBS states that in an attempt to maintain fairness, assure balance and in response to the President's increased use of the broadcast media, it has initiated a new series, "Loyal Opposition," to provide "the principal opposition party" an opportunity to present its views on administration policies. CBS criticizes the Senators for seeking the use of the broadcast facilities "... to persuade, while the journalist's function is to inform" CBS maintains that as the President's use of television has increased so has that of his critics. Finally, CBS contends, the relief sought by the Senators would result in the substitution of governmental news judgment for that of the licensee -- e.g., in determining whether Congress "has a role to perform" in the area, whether the President has "initiated debate" and whether the President is opposed by a "substantial group" of Senators.
n11 CBS incorporates by reference its comments filed in response to the complaints of the Democratic National Committee and Business Executives Move for Vietnam Peace (BEM) and its comments filed in Docket No. 18859.
10. NBC argues that a right of access to broadcast facilities is "foreign to the fairness doctrine" even if the individuals seeking it are elected representatives. In fact, NBC argues, it would be inconsistent with the fairness doctrine to afford access to favor one group over others as a general policy. NBC also argues that the fairness doctrine does not require comparability of audience (the President commands the attention of a greater share of the audience), format and time slots. n12 In sum, NBC urges that compliance with the fairness doctrine be left to "the broadcaster who is to exercise his own good faith judgment in determining such matters as the particular formats of programs and the spokesmen for each point of view."
n12 NBC has offered a review of its recent Indochina programs which are included in part of our discussion, infra.
11. Business Executives Move for Vietnam Peace filed a complaint raising questions concerning the networks' compliance with the fairness doctrine stemming from a refusal "to provide time to a responsible spokesman to reply to the address by President Nixon on June 3, [*288] 1970." BEM's complaint n13 raises essentially the same questions as does that of the Committee for Fair Broadcasting (paras. 2-5, supra) and the Fourteen Senators (see paras. 6-10, supra) -- i.e., must each network provide a substantial block of uninterrupted prime time and permit the format to be controlled by the respondents to answer the President's presentation of views on controversial issues; and that the opposing presentation should follow immediately after the President has spoken. BEM contends that the comparable access and format they seek for contrasting views is required to provide fair and balanced coverage as licensees are required to do under the fairness doctrine and Red Lion. BEM argues that programs produced by the networks (e.g., interview and discussion) are internally balanced and that this type of presentation cannot balance the President's uninterrupted presentation.
n13 The procedural aspects of BEM's complaint are somewhat confused. On June 3, 1970, the Commission received a telegram requesting that 15 minutes of prime network time be afforded to BEM to respond to the President's June 3, 1970 speech on Indochina. The Commission's staff responded to the telegram on June 8, 1970, with a letter enclosing information on the fairness doctrine and the procedure for filing complaints. Thereafter, the Commission received a letter dated June 3, 1970, complaining of the failure of CBS, ABC and NBC to afford opportunity to respond to President Nixon's speech to BEM or other responsible spokesmen. On June 10, 1970, a second letter was received by the Commission in which BEM stated it was appealing from the negative response from William B. Ray, Chief, Complaints and Compliance. On June 15, 1970, the Memorandum in support of BEM's application for review was received. However since the June 3, 1970 response did not constitute a staff ruling, we will consider BEM's application for review as a complaint against the three networks and their Los Angeles stations.
12. Specifically, BEM asserts that each of the network presented approximately 5 minutes of commentary after the President's June 3, 1970 speech, that the commentary merely summarized the speech with little critical commentary and the commentators could not provide fair and balanced presentation for the contrasting point of view. BEM says NBC's June 4th special edition of "Meet the Press" (one hour prime time -- with one-half hour devoted to President's position and other half-hour to two U.S. Senators who oppose the President's views) came closest to providing reasonable opportunity for the appropriate presentation of conflicting views, but again it was also internally balanced with both sides appearing. However, BEM still contends NBC was deficient because the opposing spokesmen were not presented on June 3 and the June 4 "Meet the Press" program was balanced. Prior to complaining to the Commission, BEM requested that the three major networks and their Los Angeles stations provide BEM or other responsible spokesmen prime time to respond to the President's speech. That request was rejected.
13. NBC in response argues that network coverage of Presidential speeches is traditional and nothing in Red Lion requires the equal opportunity to reply urged by BEM. NBC states that no question of its fairness performance is raised with respect to coverage of the overall issue of the Indochina involvement. The format and choice of spokesmen on controversial issues of public importance is a matter which has always been left to the licensee's discretion and, says NBC, should continue to be so.
14. The Republican National Committee (RNC) filed a petition against CBS for failure to grant RNC network time to respond to the statements broadcast by Lawrence F. O'Brien on behalf of the [*289] Democratic National Committee (DNC) on July 7, 1970. RNC states that it has received no reply from CBS but the public statements of the president of CBS indicate that the reply would be negative.
15. The background of the RNC complaint is as follows: the DNC was given 25 minutes on the CBS network on July 7, 1970, to respond to the President's previously broadcast addresses to the nation; CBS states that Mr. O'Brien accepted and in his presentation covered many controversial issues of public importance, all of which had previously been explored in depth by the President and have been covered many times by CBS news and public affairs programs. RNC claims that Mr. O'Brien's appearance was not confined to the Indochina situation n14 as apparently intended, but was used as a springboard for a "political attack on the President and his party" and addressed mainly the controversial issue of "which political party should hold power," an issue which was not the subject of any Presidential address to the nation. Thus, RNC states that CBS has presented the Democratic side of a controversial issue of public importance -- i.e., which political party shall hold power -- and must now present the opposing view, that of the Republican Party. On this issue, RNC claims to be the most appropriate spokesman. n15 As to other substantive issues, RNC challenges the "Loyal Opposition" series that CBS has instituted as not being a proper exercise of a licensee's responsibility to choose appropriate spokesmen for each issue. CBS responds that the "Loyal Opposition" program does not represent an abdication of its responsibility to choose appropriate spokesmen but rather a determination that a representative of the Democratic Party is an appropriate spokesman to respond to the President. n16 CBS also points out that its policy of affording response time to the opposition party was followed in 1963, 1966, 1967 and 1968, when time was afforded to Republican Party leaders to respond to a Democratic President's appearances.
n14 Mr. O'Brien, RNC states, devoted only 2 of his 25 minutes to the U.S. involvement in Indochina.
n15 RNC contends that national committees of political parties are not policy spokesmen or policy setters and therefore "are not necessarily appropriate spokesmen to discuss specific political, economic and social issues -- the 'gut' issues."
n16 CBS contends that the "Loyal Opposition" format is issue-oriented and on each issue the appropriate Democratic spokesmen would be selected.
16. RNC contends that CBS' actions in granting the DNC time represents a handing over of its facilities to "partisan control" and it demands that comparable broadcast time be given over to RNC's control. CBS, in turn, argues that it normally attempts to achieve balance in its presentations of important public issues through news and public affairs programs produced by news professionals but that:
... the President of the United States holds a unique position in American life. As we have previously discussed, his every broadcast utterance is not subject to mechanical "equal time" rebuttals either under the Commission's fairness doctrine or pursuant to CBS policies. At the same time we have concluded that in view of the tremendous importance of television and radio as a medium of communication, and the increasing use of prime time television and radio by the President, it is appropriate to make time available to the principal opposition party periodically to present its opposing views. For this reason we developed the "Loyal Opposition" broadcasts which we will schedule at appropriate intervals when, in our judgment, they would serve the interest of more fully informing [*290] the viewing public and promote fairness and balance in our overall schedule. This is fully supportive of CBS' policy that the public must be fully and fairly informed and in no way inconsistent with our policy that the bulk of the information broadcast should be presented by our own news organization as the most effective method of informing the public. [Footnotes omitted]
RNC's final contention is that office-holders will be inhibited from reporting to their constituents if each report invokes a partisan attack from his political opponents -- thus, creating a situation inimical to the public interest.
17. In reply to CBS' response, RNC reiterates its contention that O'Brien's presentation raised the "which party shall govern" issue by its format and the fairness doctrine requires a balanced response by the only appropriate spokesman: RNC. Moreover, RNC says CBS has mischaracterized its position in that RNC does not claim that CBS has not violated the fairness doctrine but is so violating it if response time in not granted to RNC. RNC says it seeks no change in the fairness doctrine, only the application and enforcement of it by sharp partisan debate.
18. Elevn United states Senators n17 have requested that the Commission require NBC provide "equal time without cost" for the Senators opposed to the Amendment to End the War (Amendment 609 to H.R. 17123, Military Procurement Authorization Act) to present contrasting views to those expressed on a 30-minute sponsored program, the Amendment to End the War, on NBC-TV on May 12, 1970. NBC declined Senator Bob Dole's request stating that NBC had presented contrasting views on the issue n18 -- citing President Nixon's June 3, 1970 address and other NBC programs broadcast between May 13 and July 9, 1970. Senator Dole contended that NBC had not presented contrasting views on the Amendment itself and NBC responded by stating that views opposing it had been presented and would continue to be presented by NBC -- but that "equal time" would not be granted Senator Dole for that purpose.
n17 Bob Dole, Barry Goldwater, Clifford P. Hansen, Edward Gurney, Paul Fannin, Carl Curtis, Robert Griffin, Ralph Smith, Gordon Allott, Peter Dominick, and Strom Thurmond.
n18 Senator Dole's request was made on July 7, 1970, and NBC responded on July 8, 1970. A second request was made by Senator Dole on July 9, 1970, and NBC reaffirmed its position denying the request on July 9, 1970. On July 10, 1970, a complaint was lodged with the Commission.
19. In support of Senator Dole's contention that NBC has not fulfilled its fairness obligations n19 the following arguments have been presented: the 30-minute program presented by the Amendment to End the War Senators represented presentation of one side of a controversial issue and NBC has failed to present contrasting views which it was obligated to do whether paid sponsorship was available or not ( Cullman Broadcasting Co., Inc., 25 R.R. 895 (1963)). Senator Dole requests that NBC afford comparable time to the Senators joining in the complaint to present contrasting points of view. Moreover, the complaint continues, the appeal for funds made on the Amendment to End the War program represented the presentation of one side of another controversial issue and NBC does not "purport to claim that it has presented contrasting views on this matter." Senator Dole's [*291] complaint suggests that solicitation may have been the "real purpose" for the program presented. NBC responded in the following manner:
n19 The complaint of the Eleven U.S. Senators is referred to throughout the document as Senator Dole's complaint.
NBC in reply states that NBC has covered the various views on U.S. participation in the war and how to end it, of which the Amendment to End the War is one view. Thus, the program to which objection is raised did not raise an additional controversial issue. Any other approach would splinter discussion of the basic issues. NBC has offered a brief analysis of its recent television programs which indicates that views similar to those of the complaining Senators had been presented on some 24 programs between May 1 and July 15, 1970, not including "hard" news programs. Clearly, NBC states, the public has not been left uninformed. Moreover, NBC intends to continue its presentation of contrasting views on the Indochina issue, including the Amendment to End the War.
20. We have grouped all these complaints because, to a significant extent, they all involve a common problem -- the discharge by broadcast licensees of their responsibilities under the fairness doctrine in dealing with the Indochina war issue. We recognize that other important issues are also presented in some of the complaints and that even as to the Indochina war issue, the complaints differ in significant aspects and thus call for different treatment as to those aspects. We shall of course afford such different treatment. But it is desirable to set forth in this one document the background discussion which is basic to an understanding of our disposition of these complaints. That discussion follows. We shall then turn to the specific complaints.
A. Background Discussion -- The Discretion Afforded Licensees Under the Fairness Doctrine
21. We have long stressed the different manner in which the "equal opportunities" and fairness requirements of Section 315 operate. The former is applicable only to uses of station facilities by candidates for public office and calls for equal treatment -- as to the amount of time to be afforded, the nature of the time slot, etc. It thus works with virtually mathematical precision.
22. The fairness doctrine works much differently. As we stated in our Fairness Primer, 29 Fed. Reg. 10416 (1964):
The fairness doctrine deals with the broader question of affording reasonable opportunity for the presentation of contrasting viewpoints on controversial issues of public importance. Generally speaking, it does not apply with the precision of the "equal opportunities" requirement. Rather, the licensee, in applying the fairness doctrine, is called upon 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. See par. 9, Editorializing Report. In passing on any complaint in this area, the Commission's role is not to substitute its judgment for that of the licensee as to any of the above programming decisions, but rather to determine whether the licensee can be said to have acted reasonably and in good faith. There is thus room for considerably more discretion on the part of the licensee under the fairness doctrine than under the "equal opportunities" requirement.
23. The areas where the licensee's discretion has been curtailed, chiefly as to selection of the appropriate spokesman, are the personal attack and political editorializing situations. The reasons are obvious and are set forth in our reports and in Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367, 378-379 (1969). To a substantial extent, the [*292] considerable discretion as to the amount or nature of time to be afforded is also curtailed in these fields. See Clarence F. Massert, 10 FCC 2d 968 (1967); George E. Cooley, 10 FCC 2d 696 (1967).
24. We do not believe that any extended discussion is needed as to why the licensee is afforded so much discretion under the fairness doctrine. In our judgment, based on decades of experience in this field, this is the only sound way to proceed as a general policy. A contrary approach of equal opportunities, applying to controversial issues generally the specific equal opportunities requirements for political candidates would in practice not be workable. It would inhibit, rather than promote, the discussion and presentation of controversial issues in the various broadcast program formats (e.g., newscasts, interviews, documentaries). For it is just not practicable to require equality with respect to the large number of issues dealt with in a great variety of programs on a daily and continuing basis. Further, it would involve this Commission much too deeply in broadcast journalism; we would indeed become virtually a part of the broadasting "fourth estate," overseeing thousands of complaints that some issue had not been given "equal treatment." We do not believe that the profound national commitment to the principle that debate on public issues should be "uninhibited, robust, wide-open" ( New York Times Co. v. Sullivan, 376 U.S. 254, 270) would be promoted by a general policy of requiring equal treatment on all such issues, with governmental intervention to insure such mathematical equality. n20
n20 Indeed, since fairness is required, more time may need to be afforded to answer an attack than the attack itself (e.g., a 10 second attack that an individual is a communist).
25. On the other hand, we remain firmly convinced that the fairness doctrine is workable and does promote robust, wide-open debate. Again, no extended discussion is needed on this score, in light of the Red Lion opinion, where the Court indicated that the fairness doctrine is not only constitutional but may well be constitutionally required (p. 390). Suffice it to say that we regard strict adherence to the fairness doctrine as the single most important requirement of operation in the public interest -- the "sine qua non" for grant of a renewal of license ( Office of Communications of United Church of Christ v. F.C.C., 425 F. 2d 543, 548 (C.A.D.C., 1969); see also Brandywine-Maine Line Radio, Inc., FCC 70-686, released July 7, 1970. We have stressed that we have allocated so much spectrum space to broadcasting because of the contribution which it can make to an informed public. see Storer Broadcasting Co., 11 FCC 2d 678. That basic allocation purpose would be largely undermined if the broadcaster could discuss such issues unfairly -- by presenting only one side or only the viewpoints with which he agreed.
26. In stressing that the licensee has considerable discretion in discharging his fairness obligation, we do not mean to imply that that discretion is absolute. As stated, we will intervene if the showing establishes that the licensee has acted unreasonably. Under that standard, it is not a question of whether we believe that the licensee has acted wisely or whether we would have proceeded as he did. The issue is not one of substitution of our judgment for that of the licensee on these issues of broadcast journalism, but rather whether the licensee [*293] has acted in an arbitrary fashion. Thus, it is patently unreasonable for a licensee consistently to present one side in prime time and to relegate the contrasting viewpoint to periods outside prime time. n21 Similarly, there can be an imbalance from the sheer weight on one side as against the other. But there is no mathematical formula on any of these questions. What is called for is a judgment on the facts of each case, when an appropriate complaint comes before the Commission. See Fairness Primer, 29 Fed. Reg. 10416 (1964).
n21 The licensee has an affirmative obligation to encourage and implement the presentation of contrasting viewpoints. Report on Editorializing, supra, at par. 9. The Commission has now under consideration revisions in the doctrine to buttress this affirmative obligation in certain fairness situations. See Notice of Inquiry and Proposed Rule Making, Docket No. 18859, 35 Fed. Reg. 7820 (1970).
27. The foregoing principles have been long established and consistently adhered to by the Commission. Thus, they are set out in the Commission's "principle summary" of the fairness doctrine (Red Lion, at pp. 375-383) -- the 1949 Editorializing Report (see particularly par. 10). They have been reflected in so many decisions over the last twenty years that citation is impracticable. Their support does not rest in administrative declaration. More important, the statute and its legislative history are to the same effect. Thus, Congress early considered and rejected the notion of equal opportunities for controversial issues. (67th Cong. Rec. 12502-12504). In 1959 Congress codified the fairness doctrine, by inserting the provision in Section 315(a) that broadcast licensees "must operate in the public interest and... afford reasonable opportunity for the discussion of conflicting views on controversial issues of public importance." The conference report makes clear that this was a Congressional "restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under the Communications Act of 1934" (H. Rep. No. 1069, 86th Cong., 1st Sess., p. 5 (1959)). See also Sen. Rep. No. 562, 86th Cong., 1st Sess., p. 13; 105th Cong. Rec. 14440, 14457, 14462, 17830-31. And, finally, the Supreme Court's opinion in Red Lion significantly recognizes the Editorializing Report as the statement of the basic principles embodied in the fairness doctrine. See Red Lion, supra, at pp. 384-386.
28. Further treatment of the pertinent background is unnecessary in light of the extensive discussion in the DNC ruling (FCC 70-861, released August 12, 1970). We therefore refer to that ruling, and particularly with respect to the arguments advanced in these complaints that particular persons are entitled under the First Amendment to access to broadcast facilities. As the DNC ruling makes clear, it is the right of the public to be informed on public issues -- and not the right of any particular individual or group to speak over broadcast facilities -- which is paramount here.
29. Finally, we would note that in view of the foregoing, the fairness doctrine is a term of art. A layman might say that if A got 30 minutes to speak on some issue, it is only "fair" that a spokesman for the other side also get 30 minutes in the same time period. Thus, in such a lay viewpoint, "fairness" would always entail "equal opportunities." But, as shown, that is not the thrust of the fairness doctrine, as developed by the Commission and codified in the law in Section 315. The fairness doctrine does not require equality but reasonableness -- [*294] that in the circumstances there has been "reasonable opportunity for the discussion of conflicting viewpoints on controversial issues of public importance" (Section 315(a)).
B. The Complaints that a Spokesman be Given Equal Opportunities to Respond When the President has Addressed the Nation on Broadcast Facilities
30. With the foregoing as background, we turn to the complaints. First, we deal with those complaints which in effect request that an appropriate spokesman be selected to respond, on an equal opportunities basic, to any broadcast Presidential address on a controversial issue of public importance. As stated in the BEM complaint, each network would be required to provide "a substantial block of uninterrupted prime time and permit the format to be controlled by the respondents to answer the President's presentation on views on controversial issues; and that the opposing presentation should follow immediately after the President has spoken" (BEM, p. 9-a). In the complaint of the 14 Senators, it is that "the Commission should require networks to provide time to any substantial group of Senators opposing the President's views on a controversial issue of national importance whenever the issue is one in which the Senate has a role to perform in seeking resolution of the issue, and the President has initiated debate via nationwide television" (14 Senators' complaint, pp. 6-7). From the foregoing discussion and as amplified below, we deny these requests as contrary to the established principles of the fairness doctrine.
31. There is no question but that the fairness doctrine is applicable to Presidential addresses on Controversial issues of public importance. See Letter to Republican National Committee, 40 FCC 625 (1964); Letter to Blair Clark, 11 FCC 2d 511 (1968). This means that the broadcaster must afford reasonable opportunity for the presentation of contrasting viewpoints on the issues covered in such broadcasts. But it does not mean that the Presidential speeches must be considered in isolation or that the licensee loses the discretion afforded him under the fairness doctrine as to the manner in which he achieves compliance with the doctrine. Thus, it is still up to him to determine the appropriate spokesmen. We find no basis for singling out any "substantial group" of Senators as being entitled to time to respond; it may be that members of the House, Governors, and other public or private officials would be just as appropriate spokesmen.
32. Complainants are attempting to engraft an "equal opportunities" requirement in a fairness area where it is wholly inappropriate. We point our that there is no basis for restricting this concept, once adopted, just to the area of Presidential speeches. It could equally be advanced where the Governor speaks, and the State Senate or House has a role to play, or where the Mayor addresses the community on a matter within the ambit of the City Council, and so on.
33. The same considerations are applicable to the BEM specification that the opposing broadcast immediately follow the Presidential speech. If adopted, it would be applicable to all speeches involving controversial issues. But we have declined such a requirement generally because it restricts robust, wide-open debate. See Report on Editorializing, [*295] par. 8. We adhere to that long-established policy. What is required is that the public be given a reasonable opportunity to be informed about the other side -- not rigid rules which inhibit the opening or presentation of the debate.
34. This is true also with respect to the nature of time to be afforded the contrasting viewpoint. As stated, the question of reasonableness calls for a judgment on the facts of each case. In the case of Presidential addresses, there is no requirement that they be met by countering addresses. Licensees are of course free to do so, and have done so on many occasions in the past, but they may also make the judgment to use a variety of formats -- the presentation of representative partisan viewpoints on newcasts, on news interview programs, and the licensee's own analysis, either after the speech or in subsequent newcasts or editorials. The critical issue is whether the sum total of the licensee's efforts, taking into account his plans when the issue is a continuing one, can be said to constitute a reasonable opportunity to inform the public on the contrasting viewpoint -- one that is fair in the circumstances.
35. Just as examples, we shall discuss two precedents. In Letter to Republican National Committee, 40 FCC 625, 626 (1964), the Commission had before it a complaint which is directly in point to the situation under discussion -- a TV and radio broadcast by President Johnson and a complaint that only the equal time appearance of the spokesman for the opposing party, Senator Goldwater, "... can meet the test of fairness in the circumstances of this case, and news clips and other off-hand coverage will not suffice." The Commission, after holding that the fairness doctrine was applicable to the situation, pointed up the different nature of that doctrine from the equal opportunities provision (using the same quotation from the Fairness Primer -- see para. 22, supra). The Commission stressed that in making the determination whether the networks have acted reasonably, "the licensee's overall performance is considered (i.e., 'all the programs irrespective of the programming format, which he has devoted to the particular controversial issue during the appropriate time period'). See, Ruling No. 15, Fairness Primer, Letter to Cullman Broadcasting Co., FCC 63-849." The Commission then noted that all the networks had afforded Senator Goldwater extensive opportunities to state his position on the issues covered by President Johnson in a large number of newscasts; that two of the networks had presented Senator Goldwater or his representative in speeches (ABC in a half-hour paid broadcast, NBC in a 15-minute broadcast offered to the Republican National Committee); that NBC had invited Senator Goldwater to appear on "Meet the Press," "where it could give him a further opportunity to present his viewpoint in response to questions..."; and that CBS was planning a news documentary in which Senator Goldwater was invited, and that "if he accepts the invitation, he will have an opportunity to make a further statement of his views on the events in question." The Commission found, based on these showings, that the networks had not acted unreasonably.
36. The second example case, illustrating the same principles but on the gubernatorial rather than presidential level, is our recent ruling in Boalt Hall Students Association, 20 FCC 2d 612 (1969). We believe [*296] that these precedents, and others such as Letter to Blair Clark, 11 FCC 2d 511, 515 (1968), are sound and should be adhered to. We therefore decline to overrule them and to hold, as these complainants in effect seek, that an "equal opportunities" concept is applicable to broadcast addressed by the President, a Governor, a Mayor, and so on.
C. The Complaints that the Networks or Licensees Have Not Achieved Fairness in View of the Number of Presidential Broadcasts on the Indo-China War and Their Efforts to Present the Contrasting Viewpoint
37. The foregoing dealt with the applicability and requirements of the fairness doctrine as to a single Presidential broadcast on any controversial issue. In this section, we deal with those complaints (or aspects of complaints) that as to the Indo-China War issue, the networks or licensees have presented since November 1969 five Presidential addresses on the Indo-China War in prime time, n22 and that while spokesmen for the contrasting viewpoint have been presented in newscasts, interview programs, and documentaries, no one has been afforded the kind of opportunity which the President had; that the President was the only person appearing during these prime time speeches, he answered no questions, there were no interruptions of the President's presentation commercial or otherwise, and the speech was unedited (Complaint of Committee for the Fair Broadcasting of Controversial Issues; the 14 Senators' complaint; the BEM complaint).
n22 These five broadcasts and the amount of time the President spoke are: 11/3/69 -- 9/30-10:02 p.m.; 12/15/69 -- 6:00-6:14 p.m.; 4/20/70 -- 9:00-9:30 p.m.; 4/30/70 -- 9:00-9:41 p.m.; and 6/3/70 -- 9:01-9:16 p.m. The Vietnam War was discussed in the President's State of the Union Message (1/22/70 -- 12:30-1:30 p.m.), and comparable time was afforded by the three networks to spokesmen of the Democratic Party to respond to this speech on the State of the Union.
38. First, we do not depart from the basic principles governing the application of the fairness doctrine. We therefore stress, as we have in the past cases, that we look to all the programming that has been presented on the issue. In making the judgment whether the networks have acted reasonably, we must take into account the nature of the programming presented on one side of the issue; and in this instance, that means of course the number of Presidential addresses in prime time.
39. There is no question but that the networks have presented extensive programming dealing with the issue of the Indo-China War CBS submitted a detailed showing in this respect, which we take to be typical for the networks. The showing encompasses presentations in newscasts, news interview shows, documentaries, or on-the-spot coverage of bona fide news events, which involved either analysis by network commentators or very frequent appearances of partisan spokesmen for the contrasting viewpoints on this issue, including in prime time periods. Relevant here also are the analyses by the commentators after the Presidential addresses. In addition to the network newscasts, licensees present their own newscasts, which again deal extensively with the Indo-China War issue. Further, many licensees editorialize. As an example, we point to the showing made by WCBS-TV, where it has editorialized extensively against the Indo-China War and afforded appropriate spokesmen the opportunity to reply (CBS News Exhibit).
[*297] 40. The question is whether in the circumstances the networks have afforded reasonable opportunity for the presentation of the contrasting viewpoints on this issue. All of the foregoing presentations were roughly balanced -- that is, the newscasts, documentaries, interview shows, etc., all presented a balanced number of spokesmen on each side of the issue. The CBS showing indicates that the balance would slightly favor the Administration side of the issue, without consideration of the five Presidential addresses. The critical consideration thus becomes: Are reasonable opportunities afforded when there has been an extensive but roughly balanced presentation on each side and five opportunities in prime time for the leading spokesman of one side to address the nation on this issue? We believe that in such circumstances there must also be a reasonable opportunity for the other side geared specifically to the five addresses (i.e., the selection of some suitable spokesman or spokesmen by the networks to broadcast an address giving the contrasting viewpoint). We wish to stress that we are not holding that such obligation arises from a single speech -- that where an uninterrupted address is afforded one side, the fairness doctrine demands that the other side be presented in the same format. That is the modified "equal opportunities" doctrine discussed in Part B, supra, and rejected by us. Rather, our holding here is based upon the unusual facts of this case -- five addresses by the outstanding spokesman by one side of an issue. n23
n23 In referring above to the leading spokesman (i.e., the President), we wish to emphasize that we are not in any sense addressing ourselves to the matter of equalizing impact -- of the effectiveness of various spokesmen or their presentation. As many of the complainants recognize, the President stands alone in this respect, and obviously, by the very fact of his office, commands very great audiences, particularly when he speaks on a grave national problem such as Cambodia. We thus repeat that our concern is rather the question of reasonable opportunity in the circumstances for the public to be informed concerning the contrasting viewpoint.
41. It is thus critical to examine what the networks have done in this respect, i.e., affording time for an address to answer those of the President on this issue, such as was done when Senator Mansfield was invited to respond to the President's speech on the economy. ABC cites only one program, a May 9th speech of Mr. O'Brien, the DNC Chairman, in which, it states, he was "generally critical" of the Administration policy on Indochina. No further details are given, such as the length of time Mr. O'Brien devoted in the 30-minute speech to this issue. CBS has stated its plan to present a series of such programs, with spokesmen selected by the DNC, in order to provide a prime time opportunity to counterbalance the Presidential addresses on public issues. But in the one program which it did present, an uninterrupted presentation by the Chairman of the DNC on July 7, 1970, there was only a few minutes (about two) reference to the Indochina War issue. As to NBC, it has not invited any spokesmen for a speech on this issue, but it does cite the broadcast on May 12, 7:30-8:30 p.m., of a special program paid for by the Amendment to End the War Committee, in which partisan spokesmen gave their views on an uninterrupted basis. The fact that this program was on a paid basis does not take it out of consideration in this fairness evaluation. See Letter to Republican National Committee, supra; Cullman Broadcasting Co., supra. The NBC showing clearly comes closest to satisfying the requirements of the Fairness doctrine in this respect. However, in light of the fact of five Presidential [*298] speeches on this issue, we believe that more is required of each of the networks in this respect (i.e., affording prime time for a speech by an appropriate spokesman for the contrasting viewpoint to that of the Administration on the Indochina War issue). We do not hold that there is any requirement for "equal treatment" to the five speeches; that is again a modified "equal opportunities" requirement which we reject for the reasons previously stated. While, as shown, all the networks have done something in the area of uninterrupted presentations in covering this issue, the result in each case falls short of what is reasonable in the circumstances. Thus, we require that at the least, time be afforded for one more uninterrupted opportunity by an appropriate spokesman to discuss this issue, with the length of time to be determined by the nature of the prior efforts in this area of uninterrupted presentations (and with thus the least requirement in this respect on NBC). We of course leave entirely to the judgment of the networks the selection of the appropriate spokesmen. See discussion, supra, p. 13.
42. We believe it important to make clear two things. First, our holding does not reflect adversely on the networks. On the contrary, we recognize that the networks have been making good faith efforts to inform the public on this vital issue. Further, we appreciate that there is some support for their position in the "theory" of the fairness doctrine, stressed by the networks in their arguments to us. But, as the Supreme Court stated in a different context, "Legal theory is one thing. But the practicalities are different." ( Ashbacker v. U.S., 326 U.S. 327, 332 (1943).) Here "practicalities" -- or, stated differently what is "reasonable" in the circumstances of five prime time addresses by one side -- clearly call for the greater effort by the networks which we have noted above.
43. Second, in so holding, we do not mean to discourage in any way the networks' presentation of Presidential reports to the nation. It requires no discussion by us to point up the important contribution which such addresses make to an informed public. We note that the networks are unanimous in this recognition. See, e.g., speech of President Frank Stanton, p. 3. Our holding is thus directed solely to the matter of a reasonable opportunity for the expression of the contrasting viewpoint. It is limited to the unusual facts of this case -- near balance on an issue, with one side in addition afforded five prime time opportunities to deliver speeches on that issue.
44. Finally, we note that we are dealing here with continuing plans to deal with a continuing issue, in terms of the presentations by both sides. Obviously, the licensee's future efforts must therefore be tailored reasonably to take into account future developments. We thus stress that on an issue of this over-riding importance, there must be continuing and strict adherence to the requirements of the fairness doctrine that the public be reasonably and realistically informed in light of the circumstances.
45. In view of the foregoing, we grant the complaints here involved, to the extent noted above. n24
n24 The complaint of the Fourteen Senators is also directed at network refusal to sell time for the presentation of views on the Indochina War by the Senators. In a Memorandum Opinion and Order dealing with the petition of the Democratic National Committee, supra, the Commission has considered this question and re-affirmed its holding that a licensee may reasonably decline to sell time for the presentation of views on controversial issues of public importance.
[*299] D. The Complaint of Senator Dole and Ten Other Senators Against NBC, Involving the May 12, 1970, Program on NBC Which Supported the "Amendment to End the War"
46. This complaint was described in pars. 18-19. In view of our prior discussion, we believe it clear that NBC cannot be said to have acted unreasonably in rejecting the request for comparable time without cost to present opposing viewpoints to the May 12, 1970 program, paid for and presented by the Committee for the Amendment to End the War.
47. First, there is again no question but that the program dealt with a controversial issue of public importance and that the fairness doctrine is applicable. The critical question is whether NBC has failed to present contrasting viewpoints on the issue concerned.
48. The complainants urge that the issue is not the Indochina War but rather one of the "Amendment to End the War." However, no showing has been made that NBC's judgment is arbitrary in viewing the "Amendment" as part of the Indochina War issue. The program dealt extensively with that issue, and made clear that the "Amendment" constituted the sponsors' position on the War. See Text of the May 12 broadcast, Cong. Rec. May 13, 1970, pp. S-7079-82. A contrasting position is that of the Administration -- that the course being followed by the Administration is the one which best serves the nation. As shown by the above discussion, the President has had substantial time to state that position. Further, it has been extensively presented by other spokesmen on newscasts, news interviews and documentaries. See NBC example showing, p. 4, attachment, NBC Reply.
49. With respect to the "Amendment" itself, NBC states that as a part of its continuing coverage of the Indochina issue, it will give coverage to the "Amendment" by the time it is formally presented for adoption on the floor of the Senate. Indeed, as an example, it cites three instances where spokesmen (Senators Cook, Dominick and Packwood) have already been given the opportunity to express their opposition to the "Amendment."
50. Finally, while complainants make much of the appeal for funds by the Committee for the Amendment to End the War, no showing has been made that this appeal in these circumstances constituted a separate issue apart from the "Amendment" on the position against the Indochina War.
51. In view of the applicable principles (Part A), we conclude that NBC has not been shown to have acted unreasonably. See Letter to Republican National Committee, 40 FCC 625, 628 (1964).
E. The Complaint of the Republican National Committee (RNC)
52. This complaint has also been described in full (pars. 14-17). As stated, CBS decided to present the Democratic National Committee (DNC) as an appropriate spokesman in a series of prime time, uninterrupted broadcasts to present contrasting views to those expressed by the President in his extensive use of prime time for broadcasts to the nation. RNC asserts that the DNC broadcast of July 7, 1970, was partisan in nature and really dealt with the issue, "which party should be in power"; and that the broadcast covered issues upon which the President had not expressed any viewpoint.
[*300] 53. Again, we believe that no extended discussion is needed in view of prior precedents such as the Letter to Nicholas Zapple, 23 FCC 2d 707 (1970). We hold, based on such precedents, that the fairness doctrine requires that some reasonable period of time be afforded by CBS to the RNC or some other appropriate Republican Party spokesman selected by CBS.
54. In so holding, we wish first to stress that we do not accept arguments advanced by RNC directed to CBS' good faith. It is perfectly clear that CBS has acted in good faith. It has become concerned with the increasing number of prime time speeches by the President, not in whether to present such speeches, but rather in how best to inform the public concerning the contrasting viewpoint (p. 3, Stanton speech, CBS Showing). It therefore decided upon the "Loyal Opposition" concept, and stated that "the CBS policy of making time available for the principal opposing party to answer the President will apply equally to the Republican Party when there is a Democratic President" (p. 7, CBS Opposition). Since CBS was thus responding in good faith to the need for a greater effort in this area, found by us to be appropriate here (see Part C, supra), it is to be commended for its concern.
55. However, in practice, the CBS effort, as represented by the DNC broadcast of July 7, 1970, did not fulfill CBS' intention. That intention was to offer the principal opposition party an opportunity to reply from time to time to a President on major public issues treated in Presidential appearances. But as stated the Presidential addresses have concentrated very largely on the Indochina War issue (see n22, supra; the one other address during this period was concerned with the economy).
The DNC broadcast only referred briefly to the Indochina War issue (i.e., about two minutes just before the conclusion of the broadcast), and thus did not, we believe, really fulfill the CBS purpose. n25 Rather, the broadcast would appear to have come within the type which was the subject of our recent ruling, Letter to Mr. Nicholas Zapple, 23 FCC 2d 707 (1970).
n25 Indeed, see in this connection the testimony of the president of CBS before the Senate Committee on Communications, p. 140, Transcript of Hearings on August 5, 1970, where in answer to a question whether he thought it was fair to have presented the DNC broadcast and not to give time for an answer, he stated: "I think that if this were to persist, if this is the way the Loyal Opposition broadcast series develops, we would have to reconsider." Thus, in actual implementation as to this first DNC broadcast, the broadcast would appear to have been "person or party" oriented rather than issue-oriented, as CBS stated its intention to be. CBS would not appear to have exercised journalistic supervision to assure fulfillment of its purpose.
56. We were there concerned with the application of the fairness doctrine to situations involving spokesmen for political parties. For example, if during an election period, a network sold time to the RNC Chairman who made an attack on the Democratic Party, the fairness doctrine would be applicable, and time would have to be sold, upon request, to the DNC for a response. n26 If the attack had been made on free time, then free time should be afforded for the response. In this really quasi-"equal opportunities" type of situation, it would not suffice for the network to say that it would present the DNC side by news clips or interview shows. Viewing the present case, we believe that despite CBS' clearly good intentions, what occurred did fall within this political [*301] spokesmen arena, and thus differed from the case where CBS selected the spokesmen to speak expressly on a subject. Indeed, as stated, CBS in effect, appears to have recognized as much (see n. 25).
n26 We further held that the Cullman principle would be inapplicable.
57. We therefore hold that fairness requires CBS to extend some time to RNC or a partisan Republican spokesman, to answer matters raised in the DNC broadcast. The exact amount of time and other matters are left to the good faith, reasonable judgment of CBS, since, in view of all the facts here (e.g., that the DNC broadcast is not one on a clean slate and thus did deal to some extent with the Cambodian issue, to which the President has made the five noted addresses), this is not a precise "equal opportunities" situation.
58. Finally, our holding is limited to the facts of this case, and specifically to this one DNC broadcast. Thus, we do not accept the RNC argument that the national committees "... are inappropriate spokesmen to respond to policy issues raised by Presidential appearances" (RNC Reply, p. 6). The short answer is that this is an area where the licensee has very great discretion. n27 Perhaps it would be sounder or better policy for CBS always to select spokesmen in each instance. n28 But that is not a matter for this agency. Our holding is thus that whatever the appropriateness of the DNC and its Chairman as a spokesman, the practical result here was one coming within the principles of our recent ruling, Letter to Nicholas Zapple -- that CBS' arguments, however superficially sound in theory, are defective when viewed against "the practicalities." See discussion, supra, paragraph 41.
n27 As a further matter, we note that RNC has no argument to CBS' point that in 1963 the RNC requested time from CBS as the appropriate spokesman to answer an address by President Kennedy, and that this request was granted.
n28 We note that CBS has by no means settled upon DNC or delegated to DNC, the exclusive role of achieving fairness by setting forth views opposing those of the Administration. Cf. Golden West Broadcasters, 8 FCC 2d 987 (1967). On the contrary, CBS has stressed that "for the most part, for reasons developed at length in [its] reply to the DNC Request for Declaratory Ruling (pp. 3-10), CBS relies on the efforts of news professionals to produce broadcasts which provide a balanced treatment of important public issues including extensive presentations by partisans of their viewpoints (p. 8, CBS opposition)." Thus, CBS' policy is to rely upon its information broadcasts (e.g., newscasts, news interviews, news documentaries, on-the-spot coverage of bona fide news coverage) "as the most effective method of informing the public."
59. Accordingly, the RNC complaint is granted, to the extent noted above.
FEDERAL COMMUNICATIONS COMMISSION, BEN W. WAPLE, Secretary.
CONCURBY: BURCH; LEE; JOHNSON
SEPARATE STATEMENT OF CHAIRMAN DEAN BURCH
On August 14, 1970, the date that the decision in this case was announced by a press release I had no intention of issuing a separate statement. However, having had the opportunity for three days to read the press treatment of this decision, I now feel compelled to attempt to clear up what must be a very mysterious proceeding for those people who have only had the opportunity to read about the decision in the various print media.
First of all, I recognize that the fairness doctrine is a term of art and that any decision in this area is somewhat difficult to explain in lay terms and within the space limitations of newspapers and news magazines. Further, the Commission's procedure in issuing a news release in advance of the text of our decisions helps to compound the problem. The reason for this procedure is an attempt on our part to alleviate the insidious practice of news reports based on internal leaks from within the Commission. Once a decision is reached in this agency it finds its way into the press immediately -- hence the press release system is an effort on our part to insure that news reports will be accurate and available to all news media at the same time. Nevertheless, even considering our procedures, the difficulty of the subject, the brevity of the press release announcing the decision and the space limitations of the media, it seems to me that the treatment accorded this decision over the week-end is a classic example of Murphy's law at work.
In many instances the actual news stories are reasonably accurate but the headline writers (as seems to happen all too often) have completely distorted the substance of the ruling.
A good example of the headline writer at work is to be found in the Christian Science Monitor of Monday, August 17, 1970. The story on this decision is headlined "Anti-Nixon TV Time Ordered." I would think that any fair observer would agree that nowhere in this decision is there any statement or implication that "anti-Nixon" time has been ordered. (Perhaps the prize for the most cryptically misleading headline [*303] should go to Chicago Today for its August 15 headline which reads, simply: "Anti-Nixon Prime Time.")
The Washington Star in its August 15 edition headlined "Equal Time Ordered on War Issue." It should be noted that on August 17 the Washington Star did run a story by Robert Walters on this decision which carefully interpreted the decision and did not use a misleading headline.
The Chicago Sun Times of August 15 fell into the same trap with its headline "FCC Rules Equal TV Time Is Due War Critics -- GOP." The Boston Globe of August 15, 1970, captioned its story on this decision "FCC Says TV Must Give Equal Time to War Critics." The St. Paul Pioneer Press of August 15, 1970, headlined its story "War Foes Win Equal TV Time."
Perhaps some of this confusion can be explained by an AP wire story on this decision which stated in part: "The FCC has ruled broadcast networks must give opponents of President Nixon's Indo-China War policy equal, prime-time rebuttal." (emphasis supplied) Here, despite the Commission's careful attempt in the press release to distinguish between "equal opportunity" under Section 315 of the Communications Act and "reasonable opportunity" under the Fairness Doctrine a reporter indicated that the FCC had awarded "equal" time, which simply isn't the case.
Turning now to the bodies of the various stories which appeared throughout the country, the National Observer on Monday, August 17, 1970, in the first paragraph of its story on this decision stated: "The major television networks were ordered to provide five segments of prime time to the Administration's leading war policy critics to rebut five Vietnam war broadcasts made by President Nixon since last November." (emphasis supplied) It is difficult to understand how this sentence could have been extracted from our press release on the same subject which, among other things, included the following: "The Commission said that it would 'require that at the least, time be afforded for one more uninterrupted opportunity by an appropriate spokesman to discuss this issue...'" (emphasis supplied)
This decision did not, as Newsweek opined, establish "a new fairness doctrine" and despite the Commission's statement that "this ruling is not meant to discourage in any way the networks' presentation of Presidential reports to the nation...," Time was quick to speculate on "radically changed Presidential broadcast habits." Neither is this decision a proper foundation for the two opening paragraphs in the coverage of this decision by the New York Times (August 15) which said:
The Federal Communications Commission said today that President Nixon had made such extensive use of television to defend his conduct of the war in Indochina that the networks must now give opponents a chance to present critical replies on prime time.
The requirement that broadcasters not simply cover the other side but give uninterrupted, premium exposure to the President's opponents was the first of its kind and appeared likely to alter Mr. Nixon's use of the medium.
First of all, the FCC did not say what the Times states it said. Secondly, the Commission was at pains to point out, in its press release, that it was not engrafting an equal opportunities requirement in a [*304] fairness area and as pointed out above, the Commission carefully avoided any suggestion that the Presidential reports to the nation be discouraged.
Although I could cite numerous other examples of what has been, at best, peculiar coverage of this particular decision, I think the foregoing will suffice to make the point.
I trust that my concern over the press handling of this decision will not be interpreted as an anti-First Amendment sentiment and I further trust that such errors as I have pointed out will be corrected and, hopefully, in the future will be avoided.
Having dealt at some length with what the Commission did not do in this case, it might be helpful to state what it did.
1. We have not changed, altered or in any way expanded the basic precepts of the fairness doctrine. It still relates to issues, not to people and requires a licensee to make reasonable judgments in good faith as to the presentation of viewpoints on controversial issues of public importance.
2. We have expressly rejected any principle embodying right of reply or rebuttal to the President. In fact, in paragraph 30 of the Order we specifically denied requests that a right of reply exists in anyone to respond to the President or any spokesman, whomever he may be, when speaking on a controversial issue of public importance. We have rejected in paragraph 32 any attempt to "engraft an 'equal opportunity' requirement in a fairness area." In paragraph 34 we find that there is no obligation to provide time for countering addresses to those of the President. Rather, it is up to the licensee to ensure that whenever any spokesman for a controversial issue is presented reasonable opportunity is made available for opposing viewpoints -- the format being left to the discretion of the licensee. This point is made abundantly clear in the language dealing not only with the Presidential addresses but with the CBS "loyal opposition" program.
3. As to the Indo-China War issue, we found that the networks made "an extensive but roughly-balanced presentation on each side... without consideration of the five opportunities in prime time for the leading spokesman (the President n29) of one side to address the nation on this issue" and in such circumstances time should be afforded for at least one more uninterrupted opportunity by an appropriate spokesman for the other viewpoint. We reiterate our rejection in paragraph 41 of any concept of "equal treatment" of the five speeches. Rather, those speeches were averaged in by the Commission along with all the other opportunities for presentation of viewpoints in finding whether fairness had been achieved.
4. Our ruling was not intended to "discourage in any way the networks' presentation of Presidential reports to the nation" (para. 43). We recognize their importance to an informed public opinion as do the networks.
[*305] 5. Further, we ruled that no matter how well intentioned CBS was in developing the "loyal opposition" concept, the Democratic National Committee broadcast of July 7, 1970, was "person or party" oriented rather than issue-oriented as CBS intended and as such the broadcast covered issues in the political spokesman arena and fairness requires CBS to give some time to a Republican spokesman to respond. (The Commission did not treat the difficult question of whether the fairness doctrine can be institutionalized.) In so holding the Commission concluded that contrary to its assertions, "CBS would not appear to have exercised journalistic supervision to assure fulfillment of its purpose."
n29 In using the term spokesman we use it in an issue sense for purposes of the fairness doctrine.
STATEMENT OF COMMISSIONER ROBERT E. LEE
I voted for the results reached by the Commission in this document. Where a licensee fails to confine a "fairness doctrine" response, such as the one made by the Democratic National Committee, to the issues originally raised, he opens the door to a further response on the additional issue or issues. I would further point out that a licensee is obligated, under the fairness doctrine, to select appropriate spokesmen on a case-by-case basis in terms of the particular issue ( Golden West Broadcasters, 8 FCC 2d 987) and that the advance selection of the Democratic National Committee as the appropriate spokesman in the future for one side of national issues, as apparently proposed by CBS, could serve to establish its Republican counterpart as the most appropriate spokesman for the other side.
On August 14, 1970 the Commission disposed of five pending petitions involving the Fairness Doctrine and President Nixon's televised statements on the War in Southeast Asia. It granted some and denied others. I concurred generally in the Commission's decision. My vote was necessary to get majority action to achieve the very limited relief the Commission has provided. My support was less than enthusiastic.
This opinion is intended to explain my vote and to offer my views on the political fairness matters the Commission has decided. At the same time I wish to comment on several matters that have occurred since the announcement of our decision.
With minor variations, all five complaints allege that the three major television networks, or their station affiliates, have failed adequately to discharge their fairness doctrine obligations to present all major contrasting views on the Vietnam War.
The first three complainants, Committee for Fair Broadcasting of Controversial Issues [Committee], Amendment to End the War Committee and Fourteen United States Senators [Fourteen Senators], and Business Executives Move for Vietnam Peace (Los Angeles Chapter) [Business Executives], all argue in essence that the President's five major television addresses on Vietnam during [*306] [*307] a period of seven months triggered the fairness doctrine, but that the networks and affiliates failed to present views contrary to the President's sufficiently often and in comparable format. n30
n30 The Amendment to End the War Committee and Fourteen United States Senators also raise the separate issue of "access for consideration" [i.e., payment], stating that the networks have refused to permit them to purchase time to present views opposing the President's. My disagreement with the majority position on this issue is fully detailed in Democratic National Committee, FCC 70-861, August 5, 1970, and I will not repeat those considerations here. See also Business Executives Move for Vietnam Peace (WTOP-AM), FCC 70-860, August 5, 1970, dealing with the precise problem of "access for consideration" with respect to short one-minute "commercial-type" announcements.
The Republican National Committee [RNC] has alleged that CBS triggered the fairness doctrine when it broadcast a half-hour statement on July 7, 1970, by Lawrence F. O'Brien, on behalf of the Democratic National Committee [DNC]. RNC argues that it is entitled to reply time, because although CBS gave Mr. O'Brien time to respond to the President's Vietnam addresses, he in fact spent only a few minutes on that topic and devoted his remaining time to controversial issues not touched by the President.
Finally, Eleven United States Senators have asked for "equal time without cost" to reply to a 30-minute program presented on NBC by a number of Senators who were members of the Amendment to End the War Committee.
During the seven month period from November 1969 to early June 1970, the President delivered five major speeches on the war in Southeast Asia -- on November 3, 1969; December 15, 1969; April 20, 1970; April 30, 1970; and June 3, 1970. These speeches were given substantial prior publicity in newspapers and over television. With one exception, all were delivered during the "primmest" of prime-time hours -- between 9:00 p.m. and 10:00 p.m. The shortest was 14 minutes; the longest was 41 minutes. Each speech was carried simultaneously by the three national networks. Each speech was carried live. Each speech was broadcast completely intact, without interruptions, cuts, commercial insertions, or delays. There were no questions asked of the President, either before, during, or after his addresses. In every case, the President himself initiated the speeches, chose the day and hour for those speeches (apparently with an eye toward the largest prime-time audiences), and evidenced his willingness to accept live television coverage. The speeches were delivered in settings conducive to live television coverage designed to present the most favorable possible image of the President and his views. And the speeches were delivered in "series" -- arranged in a pattern of periodic installments or statements, each bringing the country "up to date" on the status of the administration's policies. Often the President made references to earlier speeches, reminding the audience of his prior positions and comparing them with the war's progress.
It is important to emphasize the President's powers in controlling his use of television in these cases. Not only does he control format and content, he is allowed to eliminate competition by simultaneous carriage on the three networks as well as many other stations. In addition he is able to control when his "pseudo-event" will occur -- just prior to an invasion, timed with the taking of public opinion polls, or coinciding [*308] with the release of "good" or "bad" news. The power of a President to "go to the people" via television is a power granted to a chief executive which is perhaps unmatched in any other democratic country which accepts the principle of limited and diffused governmental power.
The first three complainants, Committee, Fourteen Senators, and Business Executives, argue that the networks and their affiliates have failed to devote significant time and attention to views opposing the President's. I agree for the following three reasons.
The President is our most prominent national leader. In terms of power and prestige he occupies a unique position in the government of this country. The fact that the Executive is personified in the person of the President, whereas the "Legislative Branch" is diffused in 535 Senators and Congressmen, gives the President a special advantage in a television age. That he also combines the roles of King, Prime Minister, and Celebrity in Chief gives his TV appearances an added influence.
The unusually strong impact of Presidential messages is increased when, as here, those messages are delivered in a series, in prime-time, simultaneously on all three networks, without interruptions by commercials or questions, and with the dramatic urgency that a "live" presentation -- coupled with vigorous advance publicity -- can create. It is to be noted that these advantages can backfire. The President's November 3, 1969 speech on Vietnam was heralded to the news media as possessing great originality, news value and importance by White House spokesmen. When the news media generally found little in it that was new, and allowed some rebuttal and criticism of the President's views to appear, Vice-President Agnew's Des Moines speech followed, and the reign of repression and response we have witnessed during the past few months which I have detailed in speeches and elsewhere. See my "Vice President Agnew Statement" (November 17, 1969); "Subpoenas, Outtakes, and Freedom of the Press" (February 12, 1970); "The Talkin' Blues" (March 2, 1970); "Public Channels and Private Censors" (The Nation, March 23, 1970); Chicago Journalism Review (May 1970, pp. 7-10); "The Power of the People and the Obligation to Dissent" (May 8, 1970).
I concur fully in the majority's resolution of the petition presented by Senator Dole and ten other Senators. Paid political speech should not be deemed to generate fairness response requirements where broadcasters are already meeting overall fairness requirements -- as the majority finds the networks have done in this instance. I would hold that the 11 Senators should be able to purchase time from NBC if they so desire. (See Business Executives, FCC 70-860; Democratic National Committee, FCC 70-861). I would also distinguish this situation from those circumstances where repeated commercials paid for by sponsors would be deemed to raise fairness obligations leading to free time. (See Friends of the Earth FCC 70-862).
My concurrence in the majority action on the petition of the Republican National Committee is extremely reluctant. As the majority points out in paragraph 54, something like the CBS program "Loyal Opposition" was clearly necessary to redress the balance between the major parties, as well as the imbalance between access by the President and the Congress. For the networks to make no response to the issues that have been raised in these matters before the Commission would, in my view, call for even more drastic Commission action. For CBS and the other networks now to cut back their efforts to achieve fairness in the area of political speech would be disastrous.
Mr. O'Brien's DNC broadcast was intended as a balance to the ability of the President to use television in addresses and news conferences -- as CBS recognized in titling the program the "Loyal Opposition." It was an effort to give access to spokesmen who could play a role similar to that of a "shadow government" in a parliamentary system.
The Republican National Committee, by contrast, does not hold the same position in comparison with the Democratic National Committee as the DNC does to a Republican President. President Nixon speaks as Party Leader as well as President, and there is no suggestion that the views of the RNC are in any sense at variance with those of the President. It may very well be that the RNC ought to be given time in its own right from time to time. But it does not follow that the RNC must be given time to reply to the DNC every time the DNC is given time to reply to the Republican President.
In this instance, however, I am prepared to concur in the majority's decision, given the content of the DNC program. Certainly there is nothing in the majority's opinion to suggest that the RNC is entitled to anything more than a five minute reply under these circumstances. I will want to give this matter further consideration in light of future developments.
I concur in the majority's holding that the public interest requires that time be made available "by an appropriate spokesman for the contrasting viewpoint to that of the Administration on the Indochina War," as argued by the BEM petition, the Committee for Fairness petition, and the petition of the 14 Senators.
I do not agree, however, with the majority's reliance on the supposed "uniqueness" of the series of five addresses by President Nixon. Whenever a President speaks one could almost say that, by definition, he has spoken on what the Fairness Doctrine characterizes as a "controversial issue of public importance" -- if it wasn't such an issue before he expresses his views, it is after he speaks. Furthermore, by definition, he almost always expresses only a single point of view, or side of the argument, regarding that issue. Therefore, I believe that the nature of our political system requires that every broadcast of an uninterrupted Presidential address gives rise to an obligation to present appropriate contrasting viewpoints.
It will often be the case that the "appropriate" spokesman to address the views of the President will come from the Congress. We must [*310] not forget that when the President addresses the nation, he inevitably speaks as an advocate and as the head of his Party -- whether Democratic or Republican.
It is almost impossible to separate the various roles of the President -- elected representative of all the people, chief national spokesman, chief diplomat, commander-in-chief, ceremonial head of the government, chief legislator, chief executive officer, and party leader. (Neustadt, "Presidential Government" in the International Encyclopedia of the Social Sciences, v. 12, p. 451 (1968).) This being the case, I think it is imperative that leaders of opposing parties, and opposing viewpoints in Congress, be given the opportunity to rebut his unilateral statements. This rebuttal is necessary to present different views on issues, to represent opposing political parties, and to the very perpetuation of a system of co-equal branches of national government in a television age.
The problem of finding and presenting spokesmen who can realistically approach the President's impact and prestige is difficult if not impossible. We have no "shadow prime minister" or "shadow cabinet" as in some parliamentary systems where there are national figures who the public knows stand an election away from being head of the government. The President has an inherent advantage because of his office which is further enhanced by the absence of the "head of the loyal opposition" as a spokesman. This circumstance suggests that more response to the President is needed, not less, in order to maintain a balance. This imbalance on television may also ultimately result in opposition party candidates for the Presidency being selected a year or two earlier than at present, in order to personify the opposition for the television audience, i.e., the electorate.
A second important consideration supporting my conclusion is that the considerations before this Commission touch the vital "separation of powers" upon which our government is based. The first three Articles of the United States Constitution divide the government into three branches: the legislative, the executive, and the judicial. The first enacts the laws; the second administers them; and the third interprets and enforces them. Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). This principle of separation of powers is fundamental to our scheme of constitutional government. See, e.g., National Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949). Sharp, The Classical American Doctrine of "Separation of Powers," 2 U. Chi. L. Rev. 385 (1935).
The effectiveness of each branch of government, and in particular the legislative and executive branches, depends on the extent to which they can communicate with the electorate -- both to solicit views and opinions on the proper conduct of governmental business, and to explain and justify actions of government to the people. If one branch of the government increasingly gains effective access to the media of communications, while the other branch is systematically excluded, then the power balance, presumably designed to safeguard our citizenry from the tyrannies and abuses of excessive power, will be upset.
[*311] As I remarked in Democratic National Committee (DNC), FCC 70-861, August 5, 1970, if the President, but not the Congress, were suddenly granted access to the computer, the telephone, the telegraph, the typewriter, the printing press, and the Xerox machine, then the power balance between the executive and legislative branches would be severely impaired. In today's modern world, the "power" to govern is substantially determined by the information one controls. As Senator J. W. Fulbright of Arkansas recently testified:
Communication is power and exclusive access to it is a dangerous, unchecked power... As matters now stand, the President's power to use television in the service of his policies and opinions has done as much to expand the powers of his office as would a constitutional amendment formally abolishing the coequality of the three branches of Government.
Statement by Senator J. W. Fulbright, Hearings on S.J. Res. 209 Before the Subcomm. on Communications of the Senate Comm. on Commerce, 91st Cong., 2d Sess., Aug. 4, 1970. If the President can communicate information to the electorate, to solicit support for his plans and policies, when the legislative branch cannot, then I believe we will face a constitutional crisis of the gravest proportions.
The interpretation the Commission places on its fairness doctrine, therefore, affects the balance and separation of powers built into our scheme of government. Unless appropriate members of Congress are given national television to reply to Presidential speeches, then the legislative branch of government, the Congress, will be severely handicapped in its ability to govern.
I find a final justification for my position in the context of other Commission decisions on Vietnam War issues. Although we have at least said that the Vietnam War is a controversial issue of public importance, we have kept the doors of "access" to the media for the direct expression of views on that War tightly locked.
We have refused to permit those opposing Army and Marine Corps military recruitment spot announcements to voice their opposition. Fairness Doctrine Ruling, 24 F.C.C. 2d 156, 158 (1970). We have refused to permit citizens groups, such as the Business Executives Move for Vietnam Peace, to purchase short spot announcements on radio and television stations to oppose the War -- those spots designed, perhaps, to "petition" Congressman who live in the Washington, D.C. area for "redress of grievances." Business Executives, FCC 70-860, Aug. 5, 1970. And we have rejected the requests of various political parties, such as the Democratic National Committee, to purchase halfor full-hour time segments to present discussions of political issues affecting the country. Democratic National Committee, FCC 70-861, Aug. 5, 1970.
Taken with this Commission's tolerance of network censorship of views opposing the war (see, "Public Channels and Private Censors," The Nation (March 23, 1970), pp. 329-332), it is difficult to avoid the conclusion that this Commission has taken great strides towards silencing direct dissent in the country on the war. If citizens groups and political parties cannot even buy the television time routinely available to soap companies, and if now they are not entitled to replies to major [*312] Presidential addresses on the war, then I fear that the pressures from bottled-up dissent in this country will build toward an inevitable "explosion."
It is ironic that the only persons in the country with "direct access" to millions of television homes are the hawkers of commercial goods and services -- deodorants and mouth washes -- and the President. If the President, by merely snapping his fingers, can acquire instant simultaneous access to all four television networks, then how can we in good conscience refuse to grant rebuttal time to opposing spokesmen and leaders from the Congress?
I cannot conclude my opinion without some comment on the extraordinary statement issued by Chairman Burch. I can think of no other instance when a member of a court or administrative agency has issued an official opinion to "correct" headline writers' accounts of his agency's action. I trust this activity is not to become a regular occurrence at the FCC.
Virtually every public official has experienced occasions when he has felt that stories in which he had a vital interest were not portrayed as he would have wished. n31 But, in my view, given the difficulties in the way the FCC handled this action, I find little reason to complain. Chairman Burch acknowledges as much -- his principal beef is apparently with headline writers rather than with those who covered the stories.
n31 I will cite an example from the general press, not for purposes of complaining but the contrary: as support for the assertion that there have been numerous instances in which I might have been warranted in complaining about stories or headlines, and have refrained from doing so.
Recently Ralph Nader and I were called by Senator Edward M. Kennedy's Administrative Practices and Procedures Subcommittee of the Senate Judiciary Committee to testify on his bill, S. 3434. The bill is designed to redress the imbalance in the representation of citizen and industry groups before governmental agencies through the establishment of a Public Counsel Corporation. Both Mr. Nader and I testified to the conditions giving rise to the need for such legislation, and endorsed the proposal. The New York Times story on our testimony of July 22, 1970 carried the headline, "Nader and FCC Member Criticize Kennedy Consumer Aid Plan."
I did not complain about this mischaracterization of our positions at the time, and do not do so now. Whether inaccurate headiness and stories are the products of the pressure upon the daily general press, or the occasionally questionable motives of the weekly trade press, public reports of my actions are simply matters over which I do not have, should not have, and do not desire, a right of constant review and rebuke.
Even when there is reason for a public official to complain, I think it is generally unseemingly and inappropriate -- as well as futile and self-defeating -- to do so. For an official of the FCC to engage in such action is also ominous, given our powers over many of those providing the news coverage of which we might complain. There has been concern enough about Administration intimidation of the news media without involving the FCC directly.
One of the hopes for the new administrative era at the FCC was that the Commission would no longer have to release by Friday afternoon news of actions taken during the week. The reason the FCC released the notice of this action, as the Chairman candidly admits, is because if a release is delayed to Monday, the trade press, which publishes on Monday, will have generally obtained the item through a leak and published its content. The agency announcement then appears [*313] to be merely catching up with internal leaks -- and the agency is more embarrassed than usual.
Coverage of this matter was made doubly difficult by the fact that the Commission has fallen into the habit of "decision by press release" -- informing the press (and public) of its decisions in important cases with a summary press release only, leaving the full text of majority and minority opinions until days later. Moreover, in this instance, even the press release was made available so late on Friday afternoon that many of those to whom reporters might have talked for clarification or interpretation were not available, and would not be until Monday. In those circumstances the press did the best it could which, as the Chairman suggests, was pretty good in an extraordinarily sophisticated and difficult area.
But the most revealing, and I think disturbing, aspect of my colleague's statement is his apparent quarrel with any suggestion that the Commission's action was adverse to the media interests of President Nixon. His comments on Mr. Christopher Lydon's story in one of the favorite administration targets, the New York Times, and his remarks about the Time and Newsweek stories, clearly demonstrate his sensitivity on this question. It strikes me as overreaching a bit to suggest that these stories were "improper" -- and it is relevant to point out that each of these three publications is associated with companies which are Commission licensees. n32
n32 The New York Times is associated with the Interstate Broadcasting Co., 229 West 43rd Street, New York City (the same address as the Times' home office), licensee of WQXR-AM-FM. Time-Life Broadcasting. Inc., Time & Life Building, Rockefeller Center, New York City, owns and operates KIZ-TV, Denver (KLZ-AM and FM); KOGO-TV, San Diego (KOGO AM and FM); KERO-TV, Bakersfield, California; WOOD-TV, Grand Rapids (WOOD AM and FM); and WFBM-TV, Indianapolis (WFBM AM and FM). Time-Life also holds substantial CATV interests. Post-Newsweek Stations, Inc., 40th and Brandywine Streets, N.W., Washington, D.C., owns WTOP-TV, Washington (WTOP and FM); WJXT-TV, Jacksonville, Florida; WPLG-TV, Miami, Florida; and WCKY-AM, Cincinnati, Ohio.
But more importantly, one possible reason for the Chairman's extraordinary force and haste in "clarifying" that no criticism of the President was intended is suggested by press reports that the White House staff in fact worked with the Chairman's office in preparing his response to the press coverage of the FCC's decision. See, e.g., New York Times, Aug. 19, 1970, p. 1, col. 2; Washington Evening Star, Aug. 20, 1970, p. Al. I sincerely hope that the reports are not true and that there was no consultation with the White House at any level. The White House, and President Nixon himself, are in fact "parties" to this proceeding -- in the sense that it is the President's uninhibited right to use the broadcast media which is at issue in this case. For the White House staff to have participated in any way in this proceeding, or in the encouragement or preparation of "interpretative" opinions, would make a mockery of the independence of an agency which is the creature and arm of Congress -- even though there is no question of a violation of the letter of our ex parte contact rules in this instance (because there was not an adjudicatory hearing in process at the time). And yet, one cannot help but wonder where else one could so rapidly obtain such a thorough analysis of the nation's newspaper coverage of the President -- including accounts in the St. Paul Pioneer Press, Chicago Today, and Chicago Sun-Times, [*314] none of which appeared in the FCC's internal newspaper reporting service, or are from papers prominently displayed on the Chairman's coffee table.
I concurred in the Commission's action here because I believe that, on balance, the package adopted by five Commissioners of widely differing views was a distinct improvement over the situation as it had existed. In this opinion I have outlined how I would have approached the issues had I been free to write the majority opinion as I would have liked it. I am sure that we have not heard the end of these matters -- and that the Commission will have future responsibilities and opportunities to consider how the public interest would best be served by the performance of the broadcast media in the political life of our nation.
DISSENTING STATEMENT OF COMMISSIONER H. REX LEE
Under the fairness doctrine, the Commission's general standard has always been directed toward testing the reasonableness and good faith of a broadcaster's action. Innocent error or mistakes of judgment, occurring in the broadcaster's overall balance of programming, do not constitute sufficient reason to justify finding that a licensee has failed to perform its obligations in the public interest. In the arena of political debate, both the heat of issues involved and the volume of demands for air time (such as we find in these cases) underscore the necessity for protecting the exercise of reasonable discretion in the broadcasting industry.
In my view there has been no substantial showing that the networks, and involved broadcast licensees, acted unreasonably or failed to fulfill their obligations under the fairness doctrine. Therefore, I believe all the attached complaints should have been denied. Accordingly, I dissent.
I. Pleadings related to Complaint of Committee for the Fair Broadcasting of Controversial Issues:
A. Complaint, Petition for Issuance of Order to Show Cause and Desist and Request for Expedited Disposition filed May 25, 1970, by Committee for the Fair Broadcasting of Controversial Issues against WCBS-TV (New York) and WTIC-TV (Hartford, Connecticut).
B. Response of CBS, filed June 23, 1970.
C. Response of WTIC-TV, filed June 22, 1970.
D. Reply to Oppositions filed by the Committee on June 30, 1970.
II. Pleadings related to Complaint of Fourteen United States Senators and the Amendment to End the War Committee against CBS, ABC and NBC and their owned and operated stations:
A. Complaint of Order to Show Cause to Cease and Desist and Request for Expedited Disposition filed July 8, 1970.
B. Response of CBS filed July 20, 1970.
C. Response of NBC filed July 21, 1970.
D. Response of ABC filed July 28, 1970.
E. Reply of 14 U.S. Senators and Amendment to End the War Committee filed on July 30, 1970.
III. Pleadings relating to Application for Review filed by Business Executives Move for Vietnam Peace:
A. Application for Review filed June 15, 1970 by Business Executives Move for Vietnam Peace.
IV. Pleadings relating to Complaint of Republican National Committee:
A. Petition of the Republican National Committee for relief against CBS filed July 13, 1970 and supplement filed July 14, 1970.
B. Response of CBS filed July 21, 1970.
C. Reply of RNC filed July 30, 1970.
V. Pleadings relating to Complaint of Eleven United States Senators (Senator Bob Dole, et al.):
A. Letter to Federal Communications Commission filed by Senator Bob Dole, et al. on July 13, 1970.
B. Brief of Eleven United States Senators in support of Request for Time to Present Contrasting Point of View filed on July 16, 1970; and,
C. Reply of NBC filed on July 30, 1970.