29
F.C.C.2d 807
OPINION:
COMPLAINT
GENTLEMEN: As you know, a
complaint was filed by Alan F. Neckritz and Lawrence B. Ordower against the
licensees of Television Station KGO-TV, KRON-TV, and KPIX (San Francisco) and
KNBC and KNXT (Los Angeles) alleging failure to fulfill their fairness doctrine
and public interest obligations regarding advertisements for Standard Oil of
California's Chevron with F-310 gasoline.
Complainants allege that the
advertisements are produced in several versions, which include depiction of (1)
a large balloon attached to a late model Chevrolet which turns black with
exhaust; (2) a car engulfed in a bag of black smoke; and (3) exhaust ignited
with a blow torch to indicate unburned gasoline going out the exhaust; and that
the advertisements claim these conditions are cured by "just six tankfuls
of Chevron with F-310." Complainants state that the advertisements say the
gasoline is a "significant contribution toward cleaner air" and that
"F-310 turns dirty exhaust into good clean mileage." A Federal Trade
Commission complaint n1 cites the following as a typical
advertisement:
n1 On December 29, 1970, the Federal
Trade Commission issued a complaint regarding Chevron F-310 and the matter has
been set for hearing.
"TELEVISION
SCOTT CARPENTER: I'm Scott
Carpenter. We're attaching a clear balloon to this car to show you one of
the most meaningful gasoline achievements in history. The balloon is
filling with dirty exhaust emissions that go into the air and waste mileage.
Now Standard Oil of California has
accomplished the development of a remarkable gasoline additive, Formula F-310,
that reduce exhaust emissions from dirty engines. The same car, after
just six tankfuls of Chevron with F-310; no dirty smoke, cleaner air. A
major breakthrough to help solve one of today's critical problems. And since
dirty exhaust is wasted gasoline, F-310 keeps good mileage from going up in
smoke. Cleaner air, better mileage -- Chevron with F-310 turns dirty
smoke into good, clean mileage. There isn't a car on the road that
shouldn't be using it."
Complainants contend:
1. California-Standard's F-310
advertisements have created a public controversy which is subject to the
fairness doctrine, and the licensees have not fulfilled their fairness
responsibilities. There are, complainants suggest, two controversial
issues: (a) whether F-310 additive will help solve the air pollution problem;
and (b) whether the advertisements themselves are controversial in light of
Chevron's attempt to refute the FTC complaint. Complainants allege that
"Cal-Standard's advertisements have created a controversy... because they
attempt to exploit the legitimate and appropriate public concern about air
pollution."
2. The licensees and networks
failed to fulfill the public interest obligations of the Communications
Act. Complainants assert that when a licensee allows an advertiser to
"exploit public concern over a community problem" he should be
required to satisfy the community interest in the issues raised by the
commercials. Complaints further state that "Congress has recognized
that environmental pollution creates a 'clear and present danger' to the public
health and it has enacted the National Environmental Policy Act which makes it
compelling upon the Commission to recognize this aspect of the public interest
standard."
3. Licensees abridged the complainants'
First Amendment rights by denying access to contrasting views on the issue
raised in the advertisements. Complainants state that the First Amendment
sanctions "effective speech" (Edwards v. South Carolina, 372 U.S.
229, 235 (1963)) and that its effectiveness depends on the existence and
nature of an appropriate forum and format. Complainants ask that their
views be presented through spot announcements to achieve fairness with the
"prepackaged nature of Standard's $9.5 million saturation television
advertising campaign." In support of their contention that the opposing
point of view should be presented through spot announcements, the complainants
cite In Re Complaint of Bella S. Abzug, 25 FCC 2d 117 (1970), where the
licensee stated that, "... programs and spots are different in their
economic and impact values, and... [spots are] considerably more
valuable...."
4. The Commission should
require licensees to refrain from broadcasting this particular series of
advertisements because Cal-Standard's advertisements involve material deception
as to the characteristics and performance of F-310. Complainants contend
the licensees have violated the Commission's policies regarding advertising
because,
"(1) Of all the licensees only KPIX
appears to have exercised any degree of care with respect to insuring that the
ads did not mislead the public. (2) Two official state authorities found
these ads to be misleading, and the continued broadcasting of the F-310
commercials raises serious questions as to whether the licensees are operating
in the public interest. (3)... [the] official reports of the California
Air Resources Board and the Hawaiian State Consumer Protection Committee, the
outcry of the Friends of the Earth and the Sierra Club, have put the licensees
on notice and they cannot claim ignorance of controversy that has been raised
in print but silenced by the mass media."
In reply to
the Broadcast Bureau's inquiry, the licensees n2 state that they do not believe the broadcasts of the Chevron with F-310
advertisements constitute a discussion of a controversial issue of public
importance, and that in their overall programming they have devoted ample
time to the treatment of the larger issues of air pollution and ecology. n3 KRON, KNXT, KGO-TV, and KPIX state they covered the
F-310 controversy in their news broadcasts or other programs. KNBC,
KGO-TV and KRON-TV state that the advertisements were nothing more than product
claims of a factual nature. KNBC, KGO-TV, KNXT, and KPIX also state that
they received documentation of the claims made in the commercials. n4 KNBC and KNXT declare that they believe it is in the
public interest to encourage manufacturers to compete in the improvement of
their product and to advertise these improvements. KNXT and KRON-TV
assert that the question of deceptive advertising is solely within the
jurisdiction of the Federal Trade Commission. KNXT denies that economic
pressure from the advertisers affected the news coverage of the issue of air
pollution. All licensees state that they believe the cigarette
advertising case, Banzhaf v. FCC, 132 U.S. App. D.C. 14, 405 F.2d 1082
(1968), cert. denied sub nom Tobacco Institute v. FCC, 396 U.S. 842
(1969), to be inapplicable and Friends of the Earth, 24 FCC 2d 743
(1970), on appeal sub nom Friends of the Earth v. FCC, No. 24,556, U.S. Ct.
App., D.C. to be applicable. n5
n2 It appears from the replies filed
by ABC, CBS and NBC that the commercials were carried by the California
stations licensed to them (KGO-TV, KNST and KNBC, respectively) and not by the
networks.
n3 KPIX states that it considers the
"disagreement concerning the ecological effects of the F-310 additive as
one facet of the larger controversy over air and environment pollution."
n4 KPIX states it became concerned
that the announcements were possibly misleading; that it used slides from the
advertising agency to modify the original announcements in order to prevent
misunderstanding; and that later it received and used new commercial announcements
which incorporate the explanatory statements. KGO-TV states that it is no
longer telecasting the balloon demonstration. KRON-TV states that the
F-310 commercials contain superimposed messages stating the limitations of the
test.
n5 KPIX further states that,
"Even if a specific commercial did raise a controversial issue of public
importance, the fairness doctrine would only require reasonable efforts to
present contrasting viewpoints -- not a series of spot announcements in
opposition."
In reply to the licensees'
responses, the complainants state that (1) "the general impression
test" should be applied to interpret the message conveyed by the
advertisements; (2) the advertisements take a position on a public issue which
is slanted and distorted, and therefore the fairness doctrine applies; (3) the
licensees' judgments regarding the commercials were unreasonable; (4) the
licensees failed to discuss how their decisions implement the National
Environmental Policy Act of 1969. The complaints cite Retail Store
Employees Union v. FCC, D.C. Cir., Case No. 22605, decided October 27, 1970,
Slip Op., at p. 22:
"It is at the very least a fair
question whether a radio station properly serves the public interest by making
available to an employer broadcast time for the purpose of urging the public to
patronize his store, while denying the employees any remotely comparable
opportunity to urge the public to join their side of the strife [sic] and
boycott the employer."
We do not
believe that complainants' First Amendment rights have been abridged by the
denial of access to the air waves. It is well established that a
broadcast licensee is not a common carrier and thus is not required to provide
all persons with access to the air. 47 U.S.C. § 153(h).
The Supreme Court has stated that "[unlike] other modes of expression,
radio inherently is not available to all... Because it cannot be used by
all, some who wish to use it must be denied." NBC v. United States, 319
U.S. 190, 226 (1943). See also Democratic National Committee, 25
FCC 2d 216 (1970), on appeal sub nom. Democratic National Committee v. FCC,
No. 24,537, U.S. Ct. App., D.C. However, it is also well established that
the absence of right to demand that any particular matter be carried by a
broadcast station does not mean that a licensee can use the air waves solely
for his own purposes or without regard to the public interest. A licensee
must operate his station so as to serve the needs and interest of the
public. Sioux Empire Broadcasting Co., 16 FCC 2d 995 (1969); City
of Camden, et al., 18 FCC 2d 412 (1969); and has an obligation both to
inform the public on major issues of public concern and to afford a reasonable
opportunity for the presentation of contrasting points of view on controversial
issues. Red Lion Broadcasting Co., Inc. v. FCC, 395 U.S. 367 (1969).
See also Editorializing by Broadcast Licensees, 13 FCC 1246 (1949),
Fairness Primer, 29 Fed. Reg. 10415 (1964), and 47 U.S.C. § 315(a).
The remaining issues before us must be determined in that context.
Complainants' request that we
require the licensees to stop broadcasting the series of commercial
announcements at issue on the ground that they are materially deceptive cannot
be granted. These announcements are now the subject of a Federal Trade
Commission proceeding. That agency of course has primary jurisdiction and
qualifications in this area. With its proceeding still pending and the
issues still unresolved, it would be clearly inappropriate for us to order
cessation of the disputed announcements.
The complainants' primary
contentions resolve themselves into the basic position that the fairness
doctrine applies to the Chevron announcements. In this regard, they make
two principal arguments, one based on the issuance by the FTC of its complaint
and the second based on the factual nature of this particular
advertisement. We shall deal first with the effect of issuance of the FTC
complaint.
The essence of this argument is that
the filing of the FTC complaint against the advertisements and the sponsor's
rebuttal thereto have in themselves created a controversial issue of public
importance. Were that the case, however, the filing of every FTC
complaint alleging falsity or deception in advertising followed by the
continued broadcast of the advertisements in question would invoke the fairness
doctrine, requiring the broadcast of free replies in some set ratio to the
advertisements. See Cigarette Advertising ruling, supra; Cullman
Broadcasting Co., supra. Indeed, there would appear to be no way to draw
a reasonable distinction, for fairness doctrine purposes, between the case
where an FTC complaint is filed and the case where a substantial question can
be raised concerning the validity of the product claim even though the FTC has
taken no action. And, in all instances, the licensee would be under an
affirmative obligation to encourage and implement the presentation of the
contrasting viewpoints to the advertisements.
We do not believe that this approach
would serve the public interest. The FTC issues many contested
complaints. We make no blanket assumption that, in each case involving
allegations of false or misleading advertising, there is necessarily a
controversial issue of public importance warranting the drastic and unusual
remedy applied in the area of cigarette advertising. Just as in the
case of this Commission, a substantial number of FTC complaints may turn out
not to call for corrective or their action or, if so, the validity of such
action may not be affirmed. But under the approach urged by complainants,
the practical effect so far as broadcasting is concerned would be
"sentence first, verdict later." For the application of the fairness
doctrine to product commercials in these circumstances would almost certainly
rule the commercials off the air (with advertising outlays continuing or
increasing in other media).
The second aspect of the
complainants' fairness argument, as noted above, is based on the factual nature
of the particular advertisement involved, i.e., the claim that the product
provides a partial remedy to some problem of widespread concern. In our
only ruling to date applying the obligations of the fairness doctrine to
advertising of commercial products, Applicability of the Fairness Doctrine
to Cigarette Advertising, 9 FCC 2d 921 (1967), affirmed Banzhaf v. FCC,
132 U.S. App. D.C. 14, 405 F.2d 1082 (1968), cert. den. 396 U.S.
842, we made clear that the unique situation there involved would not be
extended to other product advertising. It had been argued (9 FCC 2d at
942) that "if governmental and private reports on the possible hazard
of a product are a sufficient basis for the cigarette ruling, the ruling would
apply to a host of other products such as: automobiles, food with high
cholesterol count, alcoholic beverages... [and] detergents...." In
response to this contention, we stressed that our ruling was "limited to
this product -- cigarettes." The reason was that cigarette smoking was
unique in regard to the hazard which results from normal use and also in regard
to the simple issue presented -- whether or not to smoke. We therefore
stated (9 FCC 2d at 943) that:
"47. We adhere to our
view that cigarette advertising presents a unique situation. As to
whether there are other comparable products whose normal use has been found by
Congressional and other Government action to pose such a serious threat to
general public health that advertising promoting such use would raise a
substantial controversial issue of public importance, bringing into play the
Fairness Doctrine, we can only state that we do not now know of such an
advertised product, and that we do not find such circumstances present in
petitioners' contentions about the advertised products upon which they
rely."
In Friends
of the Earth, supra, we dealt squarely with the issue treated by way of
dictum in the cigarette case, and held that advertisements of automobiles and
gasoline did not invoke the fairness doctrine. We stated (24 FCC 2d at
748-749):
"... we decline in any event to
extend the cigarette advertising ruling to these other products. We
believe, for the reasons set forth previously, that we should adhere to our
previous judgment that cigarettes are a unique product... However, even
assuming that we are wrong in that belief, we would not extend the ruling
generally to the field of product advertising... [a] great many products have
some adverse ecological effects. Were we to adopt a scheme of
announcements tracking in a significant ratio the ordinary product commercials,
the result would be the undermining of the present system, based as it is on
such commercials. Such a result is not consistent with the public
interest. It is not required, since there is the alternative of providing
advertiser-supported programming, valued by the public, by means of the product
commercial, and at the same time affording appropriate time for discussion of
these vitally important issues. In short, our action must be guided by
one standard, the public interest... and on that standard, extension of the
cigarette ruling is not in order."
We
added (24 FCC 2d at 749) that "a commercial could deal directly
with an issue of public importance" and that, if it did, "the
fairness doctrine is fully applicable." The question here is whether the
Chevron ads come within that description. We do not believe that they
do. The Chevron F-310 announcements do not argue a position on a
controversial issue of public importance, but rather advance a claim for
product efficacy. It is true that this claim relates to a matter of
public concern, but making such a claim for a product is not the same thing as
arguing a position on a controversial issue of public importance. That
the claim is alleged to be untrue of partially deceptive does not change its
nature. The Chevron advertisements do not claim there is no danger in air
pollution or that automobiles do not contribute to pollution but assert,
instead, that use of the sponsor's product helps to solve the problem. It
would ill suit the purposes of the fairness doctrine, designed to illumine
significant controversial issues, to apply it to claims of a product's efficacy
or social utility. n6 The merits of any one gasoline,
weight reducer, breakfast cereal or headache remedy -- to name but a few
examples that come readily to mind -- od not rise to the level of a significant
public issue. We therefore decline to extend the doctrine to this
area. We think this conclusion in required not only only as a matter of
reason, but also of practical necessity if fairness is to work for the public
and not to its detriment.
n6 This is not to say that a product
commercial cannot argue a controversial issue raising fairness
responsibilities. For example, if an announcement sponsored by
coal-mining company asserted that strip mining had no harmful ecological
results, the sponsor would be engaging directly in debate on a controversial
issue, and fairness obligations would ensue. Or, if a community were in
dispute over closing a factory emitting noxious fumes and an advertisement for
a product made in the factory argued that question, fairness would also come
into play.
A contrary view would extend the
application of the fairness doctrine to an endless variety of advertisements
for commercial products. It would create a doctrine which, from a
practical standpoint, would be unworkable. This would be true for
advertisement which make product claims, such as those presently in issue, just
as we found it to be the case with product advertising generally in our
cigarette and Friends of the Earth rulings. As we pointed out in Friends
of the Earth, requiring the broadcast of "answers" to advertisements
of commercial products or services on the grounds that they raise controversial
issues of public importance might eventually drive most commercials from the
air, resulting in chaos and the destruction of economic support for the public
service rendered by broadcast licensees. For the above reasons, we must
deny the complaint to the extent that it seeks to apply the requirements of the
fairness doctrine to the advertisements in question. n7
n7 With reference to Congressional
recognition of the dangers of environmental pollution in enacting the National
Environmental Policy Act, we note that all the licensees here state that they
have devoted considerable time to treatment of the issue of air pollution and
ecology and that complainants have not denied their assertions. The
relationship of gasoline to air pollution would appropriately be addressed in
such coverage.
There is the further question as to
a licensee's public interest obligations with respect to advertisements that
have been the subject of a formal FTC complaint. In our Public Notice of
November 7, 1961, "Licensee Responsibility with Respect to Broadcasting of
False, Misleading or Deceptive Advertising," we stated that if a licensee
continues to broadcast advertisements after a final Order has been issued by
the FTC against the advertiser, serious questions would be raised
regarding the licensee's fulfillment of his obligation to operate in the public
interest, and that "if there is submitted to a licensee advertising matter
which has been the subject of an FTC complaint, he should realize that although
no final determination has been made that the advertising in question is false
or deceptive, a question has been raised as to its propriety, and he should,
therefore, exercise particular care in deciding whether to accept it for
broadcast." We also stated that a licensee has a responsibility to take
reasonable steps to satisfy himself as to the reliability and reputation of
prospective advertisers and their ability to fulfill their promises regarding
advertisements that have not been the subject of FTC action.
Although we have imposed these
obligations upon licensees, we recognize that most licensees lack the
facilities (i.e., laboratories, experts in the particular field) necessary to
determine for themselves whether certain advertisements are false or misleading
or to resolve contrary claims. This case may well be an example of that
difficult area. However, we believe, as stated in our 1961 Public Notice,
that issuance of a complaint by the federal agency charged with responsibility
in this field and possessing the expertise to make judgments on such matters
imposes a further obligation on broadcasters, and that the continued broadcast
of the advertising matter without any further inquiry simply because a final
adjudication has not been made does not represent adequate exercise of the
licensee's responsibility. The licensee should acquaint itself with the
charges recited in the FTC complaint and the advertiser's response. This
should assist the licensee in making a responsible determination as to whether
continuing to carry the advertisement would be in the public interest. We
do not believe that the pendency of an unresolved FTC complaint of itself
should be held to require cessation of the advertisements, for this would
effectively resolve the issue against the respondent before he has been fully
heard in the forum provided by Congress. We do expect a reasoned licensee
judgment based on the facts available and his own capacity to ascertain the
public interest.
In this connection, we note in the
present case that KPIX states that it became concerned that the Chevron
announcements were possibly misleading, that it requested and received
supporting data from the advertising agency, that the agency sent to KPIX
slides containing qualifying or explanatory statements to be used with the
announcements, and that new announcements incorporating these explanatory
statements were later received and used by KPIX, KRON-TV also states that
messages were superimposed on the commercials stating the limitations of the
tests on which the advertiser's claims were based. We also note that all
five stations either requested documentation of the advertiser's claims or made
changes in the content of the advertisements, and that four of the stations
state that they covered the F-310 controversy in their news or other programs.
There is a further point to be
made. We have decided the present complaint in accordance with
established policies -- a result that we feel, on the basis of the facts before
us, is both appropriate and required. We recognize, however, that this
case and others that have arisen recently in the fairness and related
"public interest" areas have been made on the basis of single
complaints and with the participation of the few parties directly involved,
even though the findings may have far broader implications. Ad hoc
proceedings have the advantages of action taken and policy evolved on the basis
of concrete bodies of fact. But they have the countervailing
disadvantages of limited participation by interested parties and often lack of
adequate overview. We strongly believe that something more is now called
for.
An overall proceeding with
wide-ranging participation might help us to develop more finely drawn
classifications, approaches, and policies within the rubric of the fairness
doctrine that will better serve the public interest. Such an overview was
last undertaken by this Commission more than two decades ago, yet the evolution
of broadcasting and communications generally has been profound during this
timespan.
Accordingly, we expect in the near
future to initiate a proceeding of broad scope to consider every facet of our
fairness doctrine and related public interest policies, including the vexing
problem of access that has been on the periphery of many of our decisions in
these areas. n8
n8 See Order In Radio Enterprises of
Ohio, Inc., Docket No. 19207, FCC 71-401, released April 26, 1971.
We cannot now predict the direction
in which this inquiry may lead us. The policies involved are of such
complexity and significance that, before any decisions are reached, all
interested parties should have a full opportunity to be heard. Such a
proceeding will permit a thorough re-examination and re-thinking of the broader
issues suggested by this and other recent cases before us to determine whether
some modification of the fairness doctrine and related policies would better
serve the public interest.
Commissioners Bartley, Robert E. Lee
and H. Rex Lee absent; Commissioner Johnson
dissenting and issuing a statement.
BY DIRECTION
OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
In our recent cable hearings there
was unanimity on one issue: virtually everyone conceded that one of the primary
advantages of cable is its potential for meeting unsatisfied demands for access
to television.
Clearly, there is a pent-up
frustration felt by many that the present structure of the television industry
excludes their views. Especially does this concern relate to values other
than those presented by commercials on television. And these concerns are
in no sense limited to radical intellectuals. Without going into an
endless list of quotes, I will simply set forth the views of some current
Administration spokesmen.
We have seen too many patterns of
deception: in political life impossible dreams; in advertising, extravagant
claims; in business, shoddy deals...
-- President Nixon. n1
n1 Address in Madison, South Dakota,
reported in Advertising Age, June 9, 1969.
[As] often as not, it seems
that many of the programs and most of the commercials from Madison Avenue
appeal to a set of values entirely different from, if not in clear opposition
to, the set of values taught in home, in school, and in the church.
-- Vice President Agnew. n2
n2 "Another Challenge to the
Television Industry," T.V. Guide, May 16, 1970 at 6, 8.
Virginia H. Knauer, President
Nixon's consumer adviser, told the advertising industry yesterday it will
either have to reform itself or be reformed by the government.
-- reported in The Washington
Post. n3
n3 Feb. 2, 1971, p. B2.
Why these corporations are so
shortsighted in this important public relations field I cannot understand, but
instead of volunteering to join in smoke abatement they are resisting it.
I have about reached the conclusion that, while large industry is important,
fresh air and clean water are more important, and the day may well come when we
have to lay that kind of hand on the table and see who is bluffing.
Senator Goldwater. n4
n4 Saturday Review, March 7, 1970,
at 52.
Needless to
say, these views are shared by thousands -- perhaps millions -- of all shades
of the political spectrum, all economic and educational levels.
One expression of that frustration
is the complaint now before the Commission which advances First Amendment
arguments for access to the air and alleges that certain licensees and networks
failed to fulfill their fairness doctrine and public interest obligations
regarding the broadcast of commercial announcements for Chevron F-310 gasoline.
Of course, the very nature of
over-the-air broadcasting makes it inevitable that many people will never be
able to express their views via broadcasting, and that some viewpoints will
never be expressed at all. When a particular frequency is assigned to a
broadcasting company, that company has very broad discretion in programming.
Nevertheless, "very broad"
does not mean unlimited; lines have to be drawn, lines which provide realistic
discretion for broadcasters while at the same time protecting "the public
interest" and the public's First Amendment rights. One method which
this Commission has adopted to facilitate this line-drawing is, obviously, the
fairness doctrine, which requires a licensee to provide a reasonable
opportunity for the presentation of conflicting views regarding controversial
issues of public importance.
The Commission majority concedes, as
it must, that petitioners' "claim relates to a matter of public concern,"
and that in Friends of the Earth, 24 F.C.C. 2d 743, 749 (1970), on
appeal sub nom, Friends of the Earth v. FCC, No. 24,556, U.S. Ct. Appeals,
D.C., we said: "Obviously, a commercial could deal directly with an issue
of public importance; if so, the fairness doctrine is fully
applicable." Nevertheless, the majority says:
The Chevron F-310 announcements do
not argue a position on a controversial issue of public importance, but rather
advance a claim for product efficiency... The Chevron advertisements do
not claim there is no danger in air pollution or that automobiles do not
contribute to pollution but assert, instead, that use of a sponsor's product
helps to solve the problem... The merits of any one gasoline, weight
reducer, breakfast cereal or headache remedy -- to name but a few examples that
come readily to mind -- do not rise to the level of a significant public issue.
The problem
with this argument is that it begs the question by answering an issue which is
not raised. No one has said that the "merits of any one gasoline,
weight reducer, breakfast cereal or headache remedy," or any "claim
for product efficiency," should trigger fairness obligations. No one
has said the Chevron advertisements claim there is no danger in air pollution.
It is opinion that such arguments
are entirely unwarranted -- and ultimately self-defeating.
First I think that there is such
public pressure for control of the abuses of commercialism on television that
unless the FCC begins to fashion reasonable remedies, the courts will step in
with rules anyway -- and rules likely to make much broader inroads on
broadcaster discretion than any rules the majority would be likely to adopt.
Second, the facts of this case
present a very unusual, narrow issue. Any precedent we might set in
holding for petitioners would be equally narrow. Let me elaborate.
(1) The advertisements appear to
make extravagant claims on their face. A broadcaster would have to be
blind to common experience to believe the claims which the complaint alleges
are made on behalf of Chevron F-310 gasoline. According to the majority
opinion, complainants allege that the ads
include
depiction of (1) a large balloon attached to late model Chevrolet which turns
black with exhaust; (2) a car engulfed in a bag of black smoke; and (3) exhaust
ignited with a blow torch to indicate unburned gasoline going out of the
exhaust;...
The
petitioners allege that "the advertisements claim these conditions are
cured by 'just six tankfuls of Chevron with F-310.'... that... the gasoline is
a 'significant contribution toward cleaner air' and that 'F-310 turns dirty
exhaust into good clean mileage.'" At the very least, these claims seem
extravagant enough to remind a licensee of "their obligation to sift our
fraudulent and deceptive advertising matter..." Public Notice, Licensee
Responsibility With Respect To The Broadcast Of False, Misleading or Deceptive
Advertising, FCC 61-1316, November 7, 1961 [hereinafter Public Notice --
Deceptive Advertising]. The rule, as we stated in that Notice is clear:
"[The] Commission has always held that a licensee's duty to protect the
public from false, misleading or deceptive advertising is an important
ingredient of his operation in the public interest."
(2) The Federal Trade Commission has
issued a complaint against the advertisements in question. In the 1961
Public Notice -- Deceptive Advertising we said that in such a case "a
question has been raised as to [the advertisement's] propriety, and [the
licensee] should therefore exercise particular care in deciding whether to
accept it for broadcast."
(3) At least two official state
agencies, the California Air Resources Board, and the Hawaiian State Consumer
Protection Committee have found these ads to be misleading. This is particularly
significant, since the Commission has indicated that even active
consideration by local government officials was a factor which licensees should
weigh in determining whether a controversial issue requiring application of the
fairness doctrine has been raised. See, e.g., Pennsylvania
Community Antenna Association, 6 P & F Radio Reg. 2d 112 (1965).
Since we have said that a "formal determination" by the F.T.C. would
be so significant that ignoring it would raise "serious questions... as to
[a licensee's] operation in the public interest," it would seem that
formal determinations by state agencies would also be entitled to substantial
weight. See Public Notice -- Deceptice Advertising (1961).
(4) The Friends of the Earth and the
Sierra Club, two of the nation's leading conservationist groups, have spoken
out strongly against these advertisements as misleading and exploitive of
public concern over air pollution.
(5) The advertisements are not, as
the majority claims, merely run-of-the-mill "claims for product
efficiency." Instead, they clearly do play upon public concern about air
pollution.
The majority's attempt to draw an
analogy between the case and Friends of the Earth, supra, simply won't
wash, because in Friends of the Earth the FCC specifically distinguished
"general product [advertisements]" from other commercials which do
raise fairness doctrine issues. The majority in Friends of the Earth
said:
We wish to emphasize that our ruling
is restricted to the general product advertisement, e.g., "Join the Dodge
Rebellion," "Put a Tiger in your tank," etc.). Obviously,
a commercial could deal with an issue of public importance; if so, the fairness
doctrine is fully applicable, 24 F.C.C. 2d, at 749.
There is a
world of difference between "Put a Tiger in your tank" and the
Chevron F-310 ad broadcast in smog-conscious California:
Now Standard Oil of California has
accomplished the development of a remarkable gasoline additive, Formula F-310,
that reduces exhaust emissions from dirty engines. The same car, after
just six tankfuls of Chevron with F-310; no dirty smoke, cleaner air. A
major breakthrough to help solve one of today's critical problems... cleaner
air, better mileage... (Emphasis added.)
Another
F-310 ad, furnished to the FCC by Cal-Standard, is ignored by the
majority. The ad states:
I'm sure you're as concerned as I am
about the problems of controlling our environment. And one of the most
critical is the need for cleaner air... These are some of the important
steps Standard Oil has taken toward solving a growing national problem.
Use Chevron gasolines with F-310. You'll be doing your part toward
cleaner air. Scott Carpenter for Standard Oil. Emphasis added.)
These ads
practically shout that they are dealing with a controversial issue of public
importance. The president of the prestigious Sierra Club has accused
these ads of having "played cynically on public concern about air
pollution." n5 I believe that these ads, which
unquestionably attempt to exploit public concern over air pollution, present a
classic case of a commercial dealing with a controversial issue of public
importance.
n5 Complaint, p. 3.
Moreover, there is clearly an
additional controversial issue, which touches on public interest obligations as
well, involving the widespread charges that these ads are false and
misleading. In view of the charges by the FTC, and two state agencies
concerned with environmental protection, the two leading private environmental
groups in the country, and the extravagance of the claims on their face,
one licensee, KPIX-TV, became so concerned about the misleading
nature of the Chevron F-310 ads that it chose to superimpose slides on the
video portion of these commercials. The slides modified the original
commercial message, to point out, inter alia, that a very dirty engine was
purposely used in the test. In a letter to petitioners, the licensee
states that it had "concluded that the dramatized demonstrations might
mislead viewers...." n7 In these
circumstances, there is clearly a public interest obligation to protect the
public by making certain that these facts become known to the viewing public
which might otherwise be misled. The rule, as stated in our 1961 Public
Notice -- Deceptive Advertising, supra, is that "In fulfilling [the public
interest] obligation a broadcast station is expected to exercise reasonable
care and prudence with respect to advertising copy in order to insure that no
material is broadcast which will deceive or mislead the public." (Emphasis
added.)
n7 Complaint, p. 15.
There is widespread concern
throughout all sections of our society about the impact of commercialism.
This is one of the rare issues on which many college students and the Vice
President are in agreement.
Many Americans -- intelligent businessmen
and working men, as well as writers and reformers -- are giving serious
attention to the merits of a national (and personal) goal of zero population
growth. They are questioning and ever-rising gross national product as
the sole measure of America's greatness. They are talking of the
"ecology" of our natural environment and the "quality of
life" for our souls. The Pope's newest apostolic letter, according
to a New York Times report yesterday, describes "the alienation caused by
the consumer society." n8
n8 Paul Hofmann, "Papal Letter
Sets as Goal a New Democratic Society," May 12, 1971, p. 1.
One might very well take the
position, under these circumstances, that the broadcaster has a special
"public interest" obligation -- going beyond even the requirements of
the fairness doctrine -- to give full and pointed presentation to the views of
those who seek to argue that the alternatives to ever-escalating conspicuous
consumption of consumer goods are far preferable for us as individuals and as a
society.
But I need not reach that question.
The Commission is not confronted
with a request for time to present anti-commercialism massages generally.
It is not confronted with a request
to answer a commercial which simply urges the purchase of a product (as
cheaper, or what not) which petitioners believe has adverse side-effects.
It is confronted with a request to
answer a commercial which clearly and purposefully does address a controversial
issue of public importance: air pollution. It is an attempt to sell a
product by using claims that the product in fact makes a positive contribution
to the problem which so concerns petitioners.
What is more, in this instance, it
is not only alleged that the commercial message itself deals with such issues,
it is alleged that those portions of the message are false and
misleading. And these allegations are made, not only by
petitioners, but by the Federal Trade Commission and two state agencies.
A broadcaster believed it to be misleading in some particulars, and took action
accordingly. On the face of the ad it appears to be of doubtful
validity. It would appear that current FCC regulations would raise
substantial question as to the propriety of a licensee running such a
commercial.
If the FCC is unprepared to act
under the facts of this case, it is highly unlikely it will act in any of
the others. Once again the American people must look to the already
overburdened courts to get relief from the decision of this agency.
I have more faith in the American
free private enterprise system than my colleagues. I do not believe that
its continued visibility is dependent upon deceitful advertising and the
censoring by broadcasters -- with full FCC imprimatur -- of any wee small voice
inquiring after the Emperor's clothes. I believe we can have a thriving
economy -- with meaningful employment, and an abundance of the products
necessary to sustain a life of human fulfillment -- and still restrain what
President Nixon has described as "extravagant claims," and still
permit a full and open debate in the marketplace of ideas about the wares in
the marketplace of products.
Speaking of the matter of race
relations to the National Association of Broadcasters on April 2, 1968,
then-Chairman Rosel H. Hyde said,
This is not just another story --
another "issue of public importance." It is a major crisis which
calls for the best in an industry which has never failed a call from the
nation.
Surely the
issues before us are no less of a "major crisis." Surely the
industry would be as willing to respond. It is a shame the Commission
majority cannot find the will to support a comparable response to this crisis.
Mason Williams has written a short
little poem called "L.A. Day." It reads:
I look out the window
As the day goes by
Watching the progress
Screw up the sky
That's kind
of the way I feel. Only in this case it's going on inside the FCC
building. And, in the name of a Nineteenth Century view of progress, we
are screwing up the law as well as the sky.
I dissent.