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31 F.C.C.2d 729




September 23, 1971 Released


 Adopted September 17, 1971





 [*729]  1.  Pursuant to Section 1.106 of the Commission's Rules, NBC has filed a petition for reconsideration of the Commission's June 30, 1971, ruling that the broadcast of certain commercial announcements sponsored by the Standard Oil of New Jersey (ESSO) created fairness doctrine obligations.  n1 NBC has also requested oral argument of this case. 

n1 The following pleadings have been filed by the parties with the Commission: Petition for reconsideration filed July 23 by NBC: complainants' response filed July 27; letter from complainants filed August 3; letter from NBC filed August 10; and complainants' response to NBC's August 10 letter filed August 11.


2.  NBC's arguments are as follows:

(1) "The Commission erred in holding the three commercials presented views on controversial issues." NBC states that the public controversy which generated the complaint was whether the trans-Alaska pipeline should be construed and that "not one word in any of the commercials... expressly refers to, much less discusses, the controversial pipeline." NBC, referring to the Commission's statement that the ESSO advertisements "... inherently raise controversial issues," states that "[by] this reasoning any advertisement, institutional or otherwise, may always be held to state a position on a controversial issue." NBC refers to the advertisement run in Harper's Magazine which was submitted by complainants and states that a television station should not be required "to review other media to determine if the supposed intent of a sponsor was to affect particular public policy." NBC also cited Green v. FCC,     F 2d     (D.C. Cir. 1971) and states  [*730]  "[the] trans-Alaska pipeline... is certainly not more and probably less intertwined with north slope oil exploration and development than enlistment in the army is currently intertwined with the draft and service in Vietnam." NBC contends that the Commission should encourage institutional advertising which states the sponsor's concern for the public and that the effect of the ESSO ruling will be to discourage such presentations.  NBC states that if it were required to present views opposed to the trans-Alaska pipeline, it would "deprive the broadcasters of the right to determine the manner in which the public is to be informed on public issues."

(2) "The Commission improperly held NBC had not complied with the fairness doctrine despite the fact that NBC's judgment was made in good faith and was reasonable." Based on the arguments set forth in (1) above, NBC contends that its determination that the advertisements did not raise a controversial issue of public importance was reasonable and that the Commission's decision should be reversed.

(3) "The nature of the Commission's decision, if allowed to stand, will cause great uncertainty to licensees in application of the fairness doctrine and should instead be considered in the forthcoming inquiry proceeding." NBC contends that cases such as ESSO should not be considered on an ad hoc basis but rather as a part of the fairness doctrine inquiry where there would be broad participation and the Commission could take an overall view of the fairness doctrine.  n2

n2 NBC refers to our Notice of Inquiry (Study of Fairness Doctrine), 30 FCC 2d 26 (1971, Docket Number 19260).

(4) "The Commission's findings as to the adequacy of program balance were made prematurely on an incomplete record and is factually erroneous." NBC states that:

In reliance on long-standing Commission practice including its decision in Green v. FCC, NBC did not discuss the coverage given in pipeline controversy in its letter to the Commission dated [May 4,] 1971.  Following normal procedure in such inquiries, NBC would first have been informed of the staff decision.  If adverse, it could then have provided this information which would have been available to the Commission on its review of the matter.  The telescoping of the normal multi-step procedures deprived NBC of the opportunity to furnish information about the judgment in question and about its program balance.  By the same token the Commission was deprived of an adequate basis for its own determination.  The informational gaps were not filled by complainant's description of the programs we cited to them.


3.  Mr. Geoffrey Cowan, on behalf of The Wilderness Society and Friends of the Earth, requests that the Commission deny NBC's petition for reconsideration because it does not present any new considerations of law or policy, and that the Commission find that the programming presented by NBC failed to satisfy its fairness doctrine obligations.

4.  Mr. Cowan states that NBC had adequate opportunity to present the Commission with all factual data regarding its programming; that the Commission never suggested that licensees must "police the print media" but that "It is not inappropriate for the Commission to  [*731]  expect licensees, in examining a fairness doctrine request, to take account of such information [newspaper and magazine clippings] when it is specifically called to the licensees attention by complainants"; and that the Commission's ruling regarding the applicability of the fairness doctrine to the advertisement was correct.  Mr. Cowan alleges that when NBC's regular programming plus the advertisements are combined, NBC's programming is "heavily weighted in favor of the pipeline." It is also requested that the Commission order NBC to immediately fulfill its with the impact of the advertisements. fairness obligations with programming that is broadcast on a regular basis, broadcast during time periods likely to reach the viewers of Meet the Press and the Saturday and Sunday Evening News (on which the ESSO announcements were broadcast) and with a format that provides an impact commensurate


5.  We deal first with two preliminary matters.  NBC requests that we consider this case as part of our overall fairness inquiry (Docket No. 19260).  Certainly the fairness aspects of advertising urgently require comprehensive review, possibly leading to major revision of the fairness doctrine.  Thus, while we recently extended the time for filings in this docket, we granted only a 30-day extension with respect to Parts III and IV, those bearing directly on the issues in the present case.  See FCC 71-889.  We cannot simply call a halt to all ad hoc proceedings until the overall review is completed.  We are dealing with claims that go to the public's right to be fairly informed on "matters of great public concern" ( Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969)), and both thoroughness and expedition are required.  Rather than holding specific fairness complaints in abeyance, we must proceed to resolve them, as best we can, under established policies and law.

6.  NBC also asserts that because the Commission failed to follow its "normal procedures," the network was deprived of an opportunity to furnish materials concerning its program balance.  This simply was not the case.  The Commission addressed a letter of inquiry to NBC on April 19, 1971, and specifically requested that, whether or not NBC believed controversial issues of public importance were involved, it submit an accurate summary of programs that in its view presented significant contrasting viewpoints to those raised in the ESSO commercials.  After receiving NBC's response, a member of the Commission's staff asked NBC whether it wished to submit any additional information.  NBC said it did not.  (Now, on petition for reconsideration, additional information has in fact been provided by the network as to its relevant programming.) We would simply point out that, when the Commission's staff is acting pursuant to delegated authority, it is acting with full authority -- and it is not for the licensee to make guesses as to whether the staff or the Commission will rule and, on this basis, hold back pertinent information.  The licensee has an affirmative duty to respond, and respond fully, to all proper inquiries.

 [*732] 7.  We turn now to the merits of the case, and first to the contention that none of the ESSO commercials specifically discussed the trans-Alaska pipeline and, thus, that the Commission should not have held that NBC acted unreasonably in determining that no controversial issue had been raised.  We want to stress that our ruling does not require licensees to review other media to divine the intent of broadcast sponsors.  It is based solely on the content of the broadcast commercials, in the context of the ongoing public issues concerning the proposed Alaska pipeline.  Nor is our ruling designed in any way to discourage "institutional" as contrasted with "product" advertising.  If any advertisement deals with one side of a controversial issue, and to the extent it does, the requirements of the fairness doctrine must be met.  The matter is a factual one and, as it is in this instance, one that calls for a difficult balancing of substantial arguments on both sides.

8.  We published the texts of the three advertisements in question on p. 1 of our June 30 ruling.  (a) On advertisement I, NBC argues that it nowhere mentions the pipeline and that its clear thrust is America's urgent need for oil, the consequent need for such difficult oil explorations as that going forward on Alaska's North Slope, and thus that "... the search for domestic oil must go on, and fast." We agree that the advertisement does not specifically mention the pipeline.  But we also note that germane to the controversy is the question of whether the nation urgently requires development of the North Slope deposits or whether there is room for delay to assess more carefully the alternatives to the proposed pipeline.  (See, e.g., pp. 3-4, Moorman letter of February 25, 1971, and p. 21 of the statement attached to that letter.) By its juxtaposition of North Slope deposits and the nation's need for fast oil development, advertisement I does relate to the pipeline issue.  (b) As to advertisement II, NBC points out that it mentions the Canadian arctic and not the Alaska pipeline.  Again we agree; indeed, opponents of the Alaska pipeline are now urging consideration of a Canadian pipeline as a better alternative from the ecological perspective.  (See e.g., Moorman statement for EDF, p. 8, and p. 2 of the EPA statement of March 12, 1971.) On the other hand, we must also note that the advertisement opens with a reference to "* * * the Canadian Arctic near Alaska" and specifically refers to the ability of Jersey's Canadian affiliate to build a pipeline and "* * * yet preserve the ecology." The "experience" referred to is "* * * in the far North" and thus the discussion does bear on the present Alaska controversy.  (c) NBC also presents cogent arguments on advertisement III.  This advertisement does not mention the pipeline but simply states that Humble, in exploring and drilling for oil in the Arctic, "can't avoid disturbing some of the Tundra" and, by way of remedy, has developed four types of grass that hold promise of surviving the bitter Arctic winter.  The accuracy of this statement is not in dispute.  Further, it is obviously desirable that business enterprises take ecological factors into account and that they be encouraged to inform the public of their actions in this regard.  Nonetheless, the clear import of this announcement is that ESSO, operating in the far North, can strike a "* * * balance between the need for oil and the needs of nature."  [*733]  And thus it has a cognizable bearing on the controversial issue of the Alaska pipeline.

9.  The Green ruling, cited by NBC, is distinguishable from the present case on its facts.  In Green, the purpose of the recruitment announcements was to persuade men to join the Armed Services.  There was no mention of the Indochina war and no argument, explicit or implicit, that the war was justified.  As the Court stated, "We consider that * * * military recruitment by voluntary means is all that was implicit in virtually all the Armed Services recruitment announcements." Green v. F.C.C., supra (Slip Opinion p. 13).  In this case, the ESSO advertisements refer to oil development in the far North and discuss both the need for rapid development of oil deposits in Alaska and the ecological impacts of such development.  The matter is indeed a difficult one -- because we are reviewing the reasonableness of the licensee's judgment and because the pipeline controversy is not specifically referred to -- but we adhere to our original finding, in the June 30 ruling, that these advertisements do raise fairness obligations.

10.  Thus we arrive at the core issue -- whether NBC has afforded "reasonable opportunity for the discussion of conflicting viewpoints * * *" on this matter.  See Section 315(a); Green v. F.C.C., supra.  In resolving this issue, we have stressed in past cases "* * * that we look to all programming that has been presented on the issue." Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 296 (1970). NBC has submitted a list of programs or news items that it states have "presented the views of those for the pipeline, those opposing it, and the various arguments for both points of view." Transcripts, excerpts, or summaries of these programs or news items have now been furnished to the Commission.  Further, NBC has shown that it is continuing to inform the American people on this issue by the material that has been presented since the issuance of our June 30 decision.  Thus, on July 11 it presented former Secretary of the Interior Udall, a trustee of the complainant's organization, who stated his views on the subject during the Comment program.  On August 6 it presented on the Today Show two spokesmen, Senator Randolph and Congressman Dingell, to discuss the pipeline issue.  On September 15, it broadcast on The Today Show an eight minute presentation by two anti-pipeline spokesmen, Representatives Aspin and Saylor.  We conclude on the basis of this data that NBC has a continuing program to broadcast views on the issue a significant number of times and that, taking into account all the circumstances described above, NBC has thus afforded, and is acting to afford, reasonable opportunity for the presentation of contrasting views.  In short, the American people are not being "* * * left uninformed" on this issue (Green v. F.C.C., supra, S1. Op. p. 12).  We stress in this connection that the issue, in the end, is not what this Commission or some other observer might have done but, rather, the reasonableness of the licensee's journalistic judgment.  That is the crucial difference between the "equal opportunities" standard of Section 315 and the much greater leeway necessarily and wisely afforded the licensee under the fairness doctrine.

 [*734]  11.  NBC has also requested oral argument.  We do not believe there is any such necessity in this case inasmuch as both parties have had full opportunity in their pleadings to make their positions clear.

12.  Accordingly, IT IS ORDERED, That NBC's petition for reconsideration IS DENIED, to the extent reflected above.  In view of the conclusions stated in par. 10, above, no further action is warranted in this case.







I join in the Commission's action in this case.  But I do so with such a sense of frustration and disenchantment -- reaching to the fundamentals of Commission process -- that I believe it is essential to go in much greater detail into both the factual and policy bases of the action.  This case ideally points up the "* * * great difficulties [the Commission faces] in tracing a coherent pattern for the accommodation of product advertising to the fairness doctrine." (Friends of the Earth v. F.C.C., Case No. 24,556, C.A.D.C., S1. Op., p. 14) and, indeed, "difficulties" is a pretty pallid word for it.  Bluntly, the situation we face is a chaotic mess.  As the Court notes (ibid.), the Commission cannot simply slough off pending matters.  It must act.  But it is essential to articulate the fundamental problems so that those commenting in our wide-ranging Inquiry in Docket No. 19260 will be sure to focus on them.  When I first broached the idea of such an inquiry -- the first such proceeding since the 1949 Report on Editorializing (13 F.C.C. 1246) -- in a speech before the N.A.B. in April, I predicted we were heading down a perilous road in fairness matters to "no one knows where".  I'll now modify that prediction.  We're already there.

The problem, in my judgment, is not the root applicability of the fairness doctrine to the announcements in question.  The Commission has affirmed that produce commercials can raise fairness obligations and that these commercials do so.  I agree.  Thus, in our June 30 ruling, we directed NBC to inform us as to what it had done or planned to do to fulfill its fairness obligations -- to afford reasonable opportunity for the presentation of the other side of a controversial issue, in the name of full and fair information to the public.  In theory, this should be the end of the matter: pulling together of facts, followed by analysis and judgment, followed by appropriate remedy.  But the whole thrust of this Concurring Statement is that, in the fairness area, the bond of theory and implementation has come unstuck and all the principal actors -- licensees, public interest advocates, the Commission itself -- are in limbo, left to fend for themselves.

One difficulty in this case is that NBC has in fact treated the Alaska pipeline issue repeatedly and has presented partisan spokesmen on both sides a significant number of times.  Its coverage is a continuing one, as shown by presentations after the submission of the original complaint and after the issuance of our June 30 ruling.  (In an Appendix, the pertinent programs are listed.)

 [*735]  An inevitable further question is, "how balanced was the NBC coverage overall?" Thus the problem is posed.  For this involves, first, an examination of the scripts to determine whether the material was pro-pipeline, anti-pipeline, or just neutral background.  It then involves either counting lines in the scripts or pulling out the stop-watch to estimate the time afforded each side.  (Which assumes, of course, that there are only two sides to the issue -- and in this as in most such cases, there may in fact be a multiplicity of "sides" many of which may deserve an airing.) In this instance, the Commission judged that NBC has presented fairly balanced coverage, excluding the ESSO announcements, with the best estimate being that its coverage has somewhat favored the anti-pipeline position (roughly 21 against 11 minutes).  The core issue is thus whether the ESSO commercials result in an inbalance.  If they are counted fully -- without any consideration of the countering considerations noted in par.  8 of the majority opinion -- the result is roughly a 2-to-1 ratio in time and probably a higher one in frequency, in the range of 4 or 5-to-1.  All these figures must also be viewed against the fact that they are constantly changing, in view of NBC's continuing coverage of the issue.

If the matter came within the equal time provision, there is no question but that remedial action would be called for.  But that provision is applicable only to broadcasts by candidates.  We have also evolved a quasi-equal opportunities approach to political broadcasts generally (see Committee for Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283, 300 (1970); Letter to Mr. Nicholas Zapple, 23 F.C.C. 2d 707 (1970) and have tended significantly in that direction as to political editorials (see In re Complaint of George E. Cooley, 10 F.C.C. 2d 970 (1967)).

A layman would have no difficulty with this case under the popular understanding of the fairness doctrine.  He would simply say that fairness means each side gets the same treatment.  But the fairness doctrine does not stand for any such simplistic proposition, and wisely so.  The purpose of the doctrine is to contribute to an informed citizenry on "matters of great public concern" by promoting "uninhibited, robust, wide-open debate" on broadcast facilities.  Red Lion Bcstg. Co. v. F.C.C., 395 U.S. 367, 394; The New York Times Co. v. Sullivan, 376 U.S. 254, 270. It would clearly frustrate that purpose if for every controversial item or presentation on a newscast or other broadcast, the licensee had to offer equal time to the other side or sides.  See discussion at pp. 291-292, Committee for Fair Broadcasting, supra. The resulting quagmire would, in effect, mean the end of "robust, wide-open" debate.  Therefore, the Commission has from the beginning afforded wide discretion to licensees in the manner of fulfilling their fairness obligations.  See Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1250-51 (1949); In re Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 40 F.C.C. 598, 599 (1964).

The Courts have also noted this distinction between the operation of fairness and "equal time".  See, e.g., Green v. F.C.C., Case No. 24,470,  [*736]  C.A.D.C.  The latter case is important here because it is the only one that treats this issue head on.  The Court there stated (S1. Op., p. 10):

* * * As to how the conflicting points of view are presented, a licensee can present conflicting views in any fashion, so long as the balance in format, time, protagonists, etc., meets a test of 'reasonableness.' (Footnote quoting Fairness Primer omitted)

To the argument that there was an imbalance in that case, the Court asserted (S1. Op., pp. 18-19):

* * * We will not attempt to assay here what balance or lack of balance there has existed and does exist in a presentation of the desirable and undesirable features of military life; it is sufficient to point out that under the fairness doctrine it is not necessary that there be an absolute equality in any other criteria for the points of view presented under the fairness doctrine.  What the petitioners are apparently confusing with the fairness doctrine is the doctrine of equal time, which has no relevance whatsoever to the issues in this case.  Unlike the 'equal opportunities' requirement, which as we have already pointed out deals with legally qualified candidates for public office, the question under the fairness doctrine is one of reasonableness of the station's action, and not whether absolute equality in allocation of time, time of day, or any other criteria has been achieved.

In affirming the Commission, the Court stressed that, "In our view, the essential basis for any fairness doctrine, no matter with what specificity the standards are defined, is that the American public must not be left uninformed." (S1. Op., p. 12).

Against this general background, it is also necessary to ask, "what do past Commission precedents tell us about this specific matter?" And I am forced to conclude that the answer, after twenty years of administration of the doctrine, is "virtually nothing".  There is one Commission ruling in the cigarette advertising area that a 5-to-1 ratio is not unreasonable.  NBC-TV, 16 F.C.C. 2d 956 (1969). But like all others in this area, I believe that this ruling is sui generis.  And, while I note that the Court has not acceded to this position on the general issue (see Friends of the Earth v. F.C.C., supra.), this aspect was not before the Court, and I continue to regard it as inapposite precedent here.  I am also told that there was a staff ruling several years back on an urgent fairness matter, and a 3-to-1 time ratio was considered not unreasonable in that case.  But, clearly, a single staff ruling cannot be equated with full or proper Commission consideration in so thorny an area.

And I strongly suspect that the issue has not been resolved precisely because it is so thorny.  I for one find it impossible to feel very confident or secure about a process that relies on the stop-watch approach -- that is, making judgments, and then quantifying the category into which each presentation falls.  And this is only the beginning.  There are such additional ramifications as the time and style of the various presentations (does a prime-time spot count two times more heavily than a mid-morning interview?  three times?  or ten times?), the size and make up of the audience, and (as NBC urges in this case) the relative weight that should be accorded an indirect commercial announcement as against the direct rebuttal that would be afforded under a remedial fairness doctrine ruling.  And now do we take into account the fact that a broadcaster, like any good journalist, stays with a hot issue until it's resolved -- do we simply adopt an arbitrary cut-off?  It might even be argued that we have to consider the dial switching  [*737]  habits of the average viewer -- which means that only rarely does he recall where he viewed which side of what controversial issue!  The road here could lead to a series of decisions with enough variables and shadings to rival a medieval religious tract.

Without driving the point into the ground, this clearly is poor policy.  By contrast, good administrative practice dictates that both licensees and the public should know what the pertinent criteria are and thus be able to make rational forecasts about their courses of action.  See Friendly, The Federal Administrative Agencies: the Need for Better Definition of Standards (Harvard Univ. Press, 1962).  Absent such clear and understandable criteria, Commission rulings tend to become simple recitations of the variables in each case, and a judgment that the action was reasonable or unreasonable -- period.  I fear that, under present circumstances, both licensee and the public can only fall back on prayer to divine the Commission's intent.

Additionally, the Commission has consistently and rightly striven to avoid the posture of a super-broadcast journalist.  See Hunger in American, 20 F.C.C. 2d 143 (1969); Democratic National Convention, 16 F.C.C. 2d 650 (1969). I question whether a process of categorizing and quantifying presentations, times, and formants, in order to rule on the reasonableness of a licensee's judgment, does not involve the Commission too deeply in day-to-day journalistic practices.  More important still, I must question whether it is appropriate for an agency of the government, even with the best of good faith, to get so involved.

On the other hand, there is obviously another side to be considered.  Suppose a licensee were clearly and patently to devote 100 times more exposure to one side of an issue than to any other side? Or 50 times?  Or any other clearly unreasonable disparity? Such a disparity surely could not be said to constitute "reasonable" opportunity, and this agency must be able and willing to take corrective action.  But then it becomes a question of where the line should be drawn, and what process would be appropriate for agency review and remedy -- and we are back full circle.

It may be that I exaggerate the difficulties.  Perhaps, somewhere, there are good and workable solutions waiting to be articulated.  My purpose here is to direct attention to the problems, and I urgently request that interested parties focus on them in the overall Inquiry.

In light of Commissioner Johnson's concurring/dissenting opinion, I feel I must add a few words at this point.  He simply sweeps away the problems I've been discussing with two approaches, both of them invalid.  First, he asserts that "fairness * * * is no more difficult to apply -- or to use in guiding men's behavior -- than 'negligence', 'false and misleading', 'tend to create a monopoly', or 'the reasonable man'".  He is right: these are all honorable legal concepts.  But none of them involve, as the case before us clearly does, free speech or free press considerations.  Commissioner Johnson wants to have it both ways.  In such recent cases as "The Selling of the Pentagon", he comes down hard on the inappropriateness of governmental intrusion into the journalistic process; but here, where he urges the Commission to intrude in great detail into that same process, he has no problem.  I can't grasp  [*738]  his distinction.  This is a most sensitive area.  And there is always the need to tailor our actions with infinite care -- as we all recognized in two sua sponte modifications of our personal attack rules in order to avoid a "chilling effect" on broadcast journalism.

Our objective is clear: to promote "uninhibited, robust, wide-open debate" by means of Commission policies that do not unduly intrude into the broadcast journalistic process.  For to do that would precisely frustrate our objective.  Unlike Commissioner Johnson, I believe it markedly serves the public interest, and specifically the purposes of the First Amendment, to face the issue head on: namely, is there some workable middle course?

Commissioner Johnson need not face that issue -- and this leads to my second comment on his opinion -- because he has already opted for one of the extremes.  He would adopt an "equal opportunities" approach with a vengeance, requiring that NBC "* * * air additional programming against the Alaskan pipeline which can reach the same audience as saw the original ESSO spots * * * with the same force and with the same regularity as the original spots".  In its ultimate logic, this approach would involve a counter-announcement for every announcement, back-to-back, and measuring to the same split-vibration on some "intensity" scale.  I will not repeat the reasons why, in my judgment, the approach Commissioner Johnson recommends in this case would signal the end of robust, wide-open debate altogether.  See discussion supra.  It would be poor policy and worse law.  See Section 315(a); Green v. F.C.C., supra.

Finally, I turn to the resolution of the matter in the case before us.  Because, of course, the Commission must resolve the issue as best it can on the basis of existing policies.  I think it has.

The test is whether NBC has afforded reasonable opportunity -- whether the American public has or has not been "* * * left uninformed" on one side of this pipeline issue by NBC's actions.  Further, the test is not what we would do as broadcast journalists but whether we can say that NBC's actions here are of such a nature that they may be termed arbitrary.  I cannot find that to be the case.  If we are to prescribe criteria that would result in some other conclusion, they must emerge from the Inquiry on the basis of overall considerations, and not by yet another ad hoc determination in the confines of this narrow adjudication.





The question of the desirability of building a pipeline across Alaska is, to borrow from the rhetoric of the law of the fairness doctrine, "a controversial issue of public importance."

Standard Oil of New Jersey (ESSO) favors the pipeline.  The Wilderness Society and Friends of the Earth oppose it.  NBC has carried programming and commercial announcements regarding the issue.  The Wilderness Society and Friends of the Earth, the complainants, believe NBC has violated the fairness doctrine and urge that the FCC order the network to provide more time for the presentation of complainants' position.

On June 30, 1971, the FCC ruled that the commercial spot announcements presented by ESSO were the presentation of one side of a controversial issue of public importance and therefore should be counted along with the programming of NBC in evaluating the balance in the network's presentation.  NBC has asked for reconsideration of that decision.  The majority denies NBC's request.  I concur.  However, the opinion of the majority, and the separate opinion of Chairman Burch -- finding NBC to have complied with its fairness obligations -- warrant some comment.

There are a number of issues before us that need to be separately addressed to be fully understood.

The fairness doctrine requires that a licensee (or network) accord a rough balance in the presentation of various points of view on a controversial issue of public importance in its news and public affairs coverage.  As of September 14, 1971, the majority -- and I -- agreed with NBC that it acted reasonably and in good faith in trying to achieve such a balance in its presentation of the Alaska pipeline issue on its public affairs and news programs.  It should be made clear that no one has even suggested a "bias" or lack of professionalism on the part of anyone associated with NBC News.

 [*740]  The problem arises here because of the existence of the commercial spot announcements -- paid for by ESSO and carried by NBC -- which we have decided supported the construction of the pipeline.

Does the fairness doctrine apply only to programming? The majority has ruled not, that the commercial must be considered.  I agree.

Can the fairness doctrine be complied with by merely including commercial announcements along with the other programming in totaling up the balance?  NBC has, the morning of September 15, 1971, informed the Commission it has presented an additional eight minutes of anti-pipeline programming (an interview on the Today Show).  Can such programming be found to "balance" commercials?  The majority has ruled it can.  I disagree.

An issue for this Commission to determine is "whether the licensee can be said to have acted reasonably and in good faith" in making certain judgments -- "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." n1

n1 Fairness Doctrine Primer, FCC 64-611 (1964), 2.

An aspect of this task involves totaling up the number of minutes afforded on both sides of the controversial issue in question, and then making a judgment about the reasonableness of the licensee's balance.  As much as I recognize the fairly subjective nature of the process involved here, I must say that I feel that NBC has not acted reasonably in presenting both sides of the issues involved in the Alaska pipeline dispute.  Accordingly, I cannot agree with the majority's handling of this issue, and I dissent.

There is no doubt that NBC has covered the Alaska pipeline dispute in its news and public affairs programming.  Generally, NBC's coverage of this issue in such programming has been balanced.  On September 15, 1971, NBC aired the additional eight minutes of anti-pipeline news programming.  The true question we face, a question which the majority does not want to admit must be faced, is what effect these additional eight minutes of interview time has on a situation involving an otherwise balanced news presentation and the presentation of a number of spots giving only the proponent of one side of the public controversy an unfettered opportunity to address and inform the American public on his own terms, with one of the most forceful means of communication known to man (the TV commercial).

According to NBC, one or another of these ESSO announcements were presented a total of 28 times on NBC between November 1970 and April 1971, during Meet the Press, Saturday Night News, and Sunday Night News.  I assume that these are 60-second spots, inasmuch as complainant's statement to that effect in their letter in opposition to NBC's petition for reconsideration is uncontradicted by NBC.  As such, they constitute 28 minutes of argument for the Alaska pipeline.  Throwing all of the programming -- news, interviews, and spots -- into the hopper, there is still a ratio of unbalance of approximately 2 to 1 for the pipeline.  n2

n2 This ratio is arrived at as follows: Pro, 10:52, Anti, 21:15 (news and public affairs); Pro, 28 (spot announcements).  Totals: Pro, 38:52; anti, 21:15 (minutes).

 [*741]  There are two questions.  (1) What decisional significance does this ratio have?  Does 2 to 1 comply with the fairness doctrine?  (2) Even if it does, can commercials on one side be balanced by programming on the other?

It is important to begin by stating that our responsibility is not merely to total up the pros and cons and decide the fairness doctrine issue solely according to this arithmetic.  Instead, of course, we are talking about the licensee's good faith and reasonableness.  No one questions NBC's good faith.  What about their reasonableness?

I think it would be useful to quote from NBC's own Directive on the fairness doctrine:

The various contrasting points of view on controversial public issues are presented by NBC in regular and special news, discussion and interview programs, under the standard of fairness.  This generally meets the public interest goal at which NBC aims.  That goal seeks to provide the public with information on a balanced basis, rather than to assure particular advocates with a means of personal expression of their views.  In many cases, adding to the NBC coverage of a controversial issue a paid-time presentation advocating a position on that issue might itself lead to imbalance.  (Italics supplied.) n3

n3 NBC's Petition for Reconsideration, Exhibit A.

Were it not for NBC's last-minute addition of eight minutes of "anti"-programming on September 15, I believe that this excerpt from NBC's own internal management directive alone would establish the fact that NBC was unreasonable in not putting on programming against the Alaskan pipeline to balance the force of the ESSO spots.  NBC itself understood, in general, the impact of such spots; NBC has been on notice since June 30, 1971, that the ESSO spots presented one point of view on this controversial issue; thus, NBC should soon have made time available to complainants or other responsible spokesmen for complainants' viewpoint.  This would have been a procedure consonant with NBC's own internal policies.  What better minimal definition do we have of the word "reasonable" than the licensee's own standard operating procedure?  This is not to say that NBC's or any other licensee's standard is per se reasonable on the issue of licensee conduct under the fairness doctrine.  It is only to say that if the licensee fails to operate according to what it determines to be in the public interest, there may be a prima facie case of unreasonable conduct.

In Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283 (1970), we ordered the networks to give uninterrupted rebuttal time to opponents of the President's Indochina policy, after we found that the President's five national TV and radio addresses within a few months had created an imbalance in network coverage of the war issue.  However, in a separate opinion, I addressed myself to a question I considered far more important and significant than the narrow question of whether on a particular issue the networks' cover-age added up to "balance" under the fairness doctrine.

In that opinion, I described the impact of these Presidential broadcasts, which represent, in the purest form, the concept of unfettered individual access to the media:

Each [of the President's speeches] was broadcast completely intact,  [*742]  without interruptions, cuts, commercial insertions, or delays.  There were no questions asked of the President, either before, during, or after his addresses.  n4

n4 Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283, 307 (1970).

In this case, I would approach the issue of licensee reasonableness in a similar manner to the way I advocated in the Committee for the Fair Broadcasting case.  When the proponent of one side of a "controversial issue of public importance" purchases spot advertisements he shares many of the powerful aspects of the Presidential address -- his positions are "broadcast completely intact, without interruptions, cuts, commercial insertions, or delays,"; and the proponent is asked "no questions * * * either before, during, or after" his spot.  In this circumstance I would ask whether the licensee satisfied his fairness doctrine obligation by balancing this spot advertising campaign with an interview program controlled and directed by a third party.

The court have ruled -- generally reversing this Commission -- that individual citizens do, under some circumstances, have "access" to radio and television stations for purposes of presenting their own point of view (without having to go through the format of an interview, or the process of having a brief excerpt presented on the news).  n5 The case before us goes nowhere nearly as far.  All it requires us to hold is that when a broadcaster does grant access to one party to a controversial issue of public importance, he has created a fairness doctrine obligation to grant direct access for the presentation of opposing points of view as well.  The purpose of the fairness doctrine is to insure "that the American public... not be left uninformed." (Emphasis in original.) n6 Recognizing the impact on the individual, as he becomes informed, of the unrestrained program such as the Presidential address or the commercial spot, in short, recognizing the ability of these types of programs to deliver an unimpeded, undiluted message directly from speaker to listener, I would treat such direct access programming differently from other informative (and perfectly commendable) programming like the Today interview.  It cannot be simply thrown in with the other less powerful programming formats for purposes of evaluating the balance. 

n5 Red Lion Broadcasting v. F.C.C., 395 U.S. 367 (1969); BEM v. F.C.C.,     Fd 2d     (D.C. Cir. 1971).

n6 Green v. F.C.C.,     F.2d     (D.C. Cir. 1971).

Thus, I believe that NBC should be instructed to place on the air additional programming against the Alaskan pipeline which can reach the same audience as saw the original ESSO spots -- on Meet the Press, Saturday Night News, and Sunday Night News -- with the same force and with the same regularity as the original spots.

Finally, a word about the Chairman's concurring statement.

The broadcasting industry has long ridiculed and fought the fairness doctrine -- even its constitutionality, see, Red Lion Broadcasting v. F.C.C., 395 U.S. 367 (1969). They will undoubtedly read the Chairman's statement with delight.

It would be far preferable, in my view, if an unlimited-channel cable system made access to "television" available to all comers.  Then  [*743]  the need for regulation of "broadcasting" would be more analogous to the "regulation" of the magazine industry.  But we have not yet reached that day.  We are still living in a nation in which mass media, access to the minds of Americans, is disproportionately controlled by a government-sanctioned quasi-monopoly of the three commercial television networks and their affiliates in the largest markets.  So long as that condition persists the rationale for FCC regulation, including the fairness doctrine, is as valid today as when Congress debated the issues in the late 1920's and early 1930's and enacted the Communications Act of 1934.

Of course, the fairness doctrine is subjective and difficult to enforce on a case by case basis.  But that's what the common law has been all about for centuries.  And its creation is what commissioners and judges are paid to do.  "Fairness," as it has been interpreted over the years, is no more difficult to apply -- or to use in guiding men's behavior -- than "negligence," "false and misleading," "tend to create a monopoly," or the "reasonable man." Any of these concepts can be ridiculed and made to appear impossible of administration -- especially by those who don't like their effect in the first place.  But such is the stuff of which "law and order" is made.  It has worked pretty well.  It should be improved where it can be.  But the anarchy that remains when it's disposed of is a pretty poor substitute.

Finally, it is curious that when a case is difficult or impossible to resolve this Commission usually disposes of it by concluding that the broadcaster wins.  It would be as unreasonable to propose that all difficult cases will be resolved in favor of the complaining public interest representative.  In fact, I propose we do neither.  I think we ought to continue to dispose of these cases as they come along as best we can in light of the body of fairness doctrine law created by the courts and this Commission over the years.  I dissent from the way we have done so today.



Following is an analysis by the Commission's staff of material broadcast by NBC dealing with the general subject of the ESSO announcements during the period June 7, 1970 through September 15, 1971.  The amount of time accorded each side of the issue, based upon the estimate of the staff, is given in minutes and seconds.  That which was believed to have favored the position set forth in the ESSO announcements is listed under the heading "Pro" and that which appeared to have advocated a contrasting view is listed under "Anti."

Date of broadcast



June 7, 1970



September 10, 1970



January 13, 1971



February 14, 1971



February 16, 1971



February 24, 1971



February 28, 1971



June 4, 1971



July 11, 1971



August 6, 1971



August 26, 1971



September 15, 1971






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