In Re Complaint
by DR. BENJAMIN SPOCK PEOPLES PARTY Concerning Fairness Doctrine
Re: ABC,
NBC, and CBS Networks
FEDERAL COMMUNICATIONS COMMISSION
38 F.C.C.2d 316
RELEASE-NUMBER: FCC 72-984
NOVEMBER 6, 1972
OPINION:
[*316] PEOPLES' PARTY, c/o
SAMUEL J. BUFFONE, Esq., Stern Community Law Firm, 2005 L Street NW.,
Washington, D.C. 20036
GENTLEMEN: This is in reply to the
fairness doctrine complaint filed on behalf of Dr. Benjamin Spock, candidate of
the Peoples' Party for the office of President of the United States, against
the ABC, NBC and CBS television networks for their alleged failure to broadcast
adequate coverage of the controversial issues of public importance raised by
his candidacy. You request that the Commission require ABC, NBC and CBS
to provide at least one-half hour of time on Monday evening, November 6, 1972,
for the presentation of the Peoples' Party's views on the issues involved in
the current Presidential campaign, and that the Commission direct that,
"Dr. Spock personally be permitted to express his views on these
controversial issues due to the unique nature of the fairness doctrine
consideration presented herein."
You state that the Peoples' Party is
a national political party with candidates for local, state and national
offices; that its candidates for President and Vice President (Julius Hobson)
are on the ballots of ten states; that it adjudges its strength to be between
five and ten per cent of the nation's electorate; that Dr. Spoke and Mr. Hobson
were formally nominated at the Peoples' Party Convention in St. Louis,
Missouri, on July 29, 1972, and have been waging an extensive national campaign
since that date; that there has been almost total lack of network broadcast
coverage; that both CBS and NBC carried one to two-minute segments discussing
the party's convention on July 29; that as the result of an equal time
complaint pursuant to Section 315 of the Communications Act, NBC carried a
brief interview with Dr. Spock on its early morning "Today Show"; that
on October 8, 1972, ABC presented Dr. Spock and three minor party presidential
candidates on its "Issues and Answers" program; that on October 15,
1972, CBS carried a seven-minute segment of its morning news on the Spock
campaign; and that on October 30, 1972, ABC carried a two and one-half minute
segment on its evening news program.
You assert that NBC and ABC
repeatedly promised additional coverage, yet refused specific requests and
equivocated on the exact nature of time of the promised coverage.
[*317] You state that
Dr. Spock's candidacy presents a controversial issue of public importance; that
by extensively covering the campaigns of President Nixon and Senator McGovern,
"the networks have given disproportionate coverage to one side of this
controversial issue"; that Dr. Spock's candidacy raises numerous other
controversial issues of public importance such as the war in Vietnam, military
spending, abortion, and guaranteed income, and that these issues take on a
unique character when associated with candidates for that office. You
contend that "when only one side of these controversial issues is carried
during news programming exempted from equal time treatment by Section 315, the
licensee is nevertheless not relieved of its fairness doctrine obligation to
cover these issues fairly."
In their responses, the networks
state in essence that the complaint sets forth no valid grounds for its
request; that the Commission's requirements for fairness doctrine complaints
have not been met; that Dr. Spock's complaint is against their news coverage of
him and the Peoples' Party; that exercise of news judgment in coverage of
political campaigns, like that with respect to other news events, falls within
the discretion of a licensee and must prevail unless unreasonable or in bad
faith; that the 1959 Amendments to Section 315 recognized journalistic news
judgment (CBS); that there are at least 12 "self-professed candidates for
President" and that "the inhibitions which granting the complaint
would have on broadcaster coverage of campaigns with as many possible
candidates would clearly violate the Congressional interest in establishing the
Section 315 exemption" (NBS); and that fairness "does not require
that equal or comparable amounts of time be given to fringe parties"
(ABC). ABC cites the Broadcast Bureau's Letter to the Libertarian
Party, FCC 2d (October 31,
1972), and ABC and NBC cite the Commission's First Report, Handling of
Political Broadcast; The Handling of Public Issues Under the Fairness Doctrine
and the Public Interest Standards of the Communications Act, 36 F.C.C. 2d 40
(1972).
DISCUSSION
At the outset, we note that you have
characterized this as a "fairness" rather than an "equal
opportunities" complaint. However, you ask specifically that the
Commission order that Dr. Spock be permitted by the networks to appear
personally on the November 6, 1972 program requested by you. The
Commission has power to order a candidate on a non-exempt program only if a
licensee has failed to afford equal opportunities under Section 315.
Since you are not complaining of, nor has any showing been made, of a Section
315 equal opportunities violation by any network, there is no basis for the
Commission's granting your request. We now address ourselves to the fairness
aspect of your complaint.
The controversial issue of public
importance involved here is who should be elected President of the United
States. Under established fairness doctrine procedures (see Applicability
of the Fairness Doctrine in the Handling of Controversial Issues of Public
Importance, 29 F.R. 145 (1964), a complainant must first make his complaint to
a licensee or network and, if not satisfied, furnish the Commission
[*318] with reasonable grounds for his contention that the licensee or
network has failed in its overall programming to afford reasonable opportunity
for the presentation of contrasting views on a specific controversial issue of
public importance. We note initially that the Peoples' Party did not make
its complaint first to the networks. Moreover, the complaint was not
filed with the Commission until the close of business on Thursday, November 2,
and the networks did not received their copies until November 3, although the
complaint is based on the networks' conduct throughout the campaign.
We do not have sufficient facts here
to make a ruling that there has been a violation of the fairness
doctrine. Thus, the only information before the Commission is that the
Peoples' Party candidates for President and Vice-President are currently on the
ballots of 10 states and that the Peoples' Party has "been conducting an
extensive national campaign" since July 29, 1972. You state that the
Party has lawsuits pending to obtain full ballot status in three of the states
and that "write-in campaigns for local and national candidates are active
in all unballoted states except Alaska and Wyoming." You furnished no
further information with respect to the nature and extent of Dr. Spock's
campaign. Thus, you have set forth no reasonable grounds for concluding that
the substantiality of Dr. Spock's campaign is such as to render unreasonable
the networks' judgment that in their overall programming they have adequately
covered the campaign under the fairness doctrine. See Allen C. Phelps, 21
FCC 2d (1969), generally with respect to the type of showing a complainant
should make to warrant a finding that fairness has not been complied
with. In this case, you have presented us with no facts to show that
there has been any violation of the fairness doctrine.
In view of the foregoing, no
Commission action is warranted at this time and your complaint IS DENIED.
Commissioner Hooks absent; Commissioner Johnson Dissenting and issuing a statement.
BY
DIRECTION OF THE COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
Dr. Benjamin Spock is the Peoples'
Party candidate of President of the United States.
You wouldn't know it from watching
CBS and NBC. Both networks have devoted zero minutes and zero seconds of
coverage to his campaign from October 16 through November 5 -- the crucial last
three weeks before election November 7, 1972.
The majority finds this complies
with the networks' obligations under the Fairness Doctrine.
I dissent.
This is not as easy a case as either
the majority's characterization of it -- or mine -- would tend to indicate.
It is snarled in legal, procedural
and factual disputes. There is something to be said for almost everyone's
point of view on almost every issue.
[*319] Nonetheless, on
balance, I believe the Commission is in error, and that the Fairness Doctrine
does impose an obligation on CRS and NBC to make more time available to the
Peoples' Party.
I. EQUAL TIME
It is important to note, at the
outset, that this is not one of the so called "equal time" cases.
Section 315 of the Communications
Act provides that if a broadcaster permits a "use" of his station by
a candidate he has an obligation to "afford equal opportunities to all
other such candidates for that office." If the time was made available
free, he must make free time available to all. If it was sold, he cannot
refuse to sell time to others.
Neither the Peoples' Party nor the
FCC treat this compliant as an "equal time" complaint. I must,
therefore, presume that no free time was given by the networks to Richard Nixon
or George McGovern, and that Dr. Spock's failure to purchase time to match
theirs was a personal choice or (more likely) a lack of funds, rather than a
refusal to sell time by the networks.
Section 315 specifically excludes
from the "equal time" doctrine, however, a number of categories of
candidate coverage. These include:
"(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary * *
*, or
(4) on-the-spot coverage of bona
fide news events. * * *"
It is these
categories which give rise to the controversy before us.
II. THE FAIRNESS DOCTRINE
In addition to the "equal
time" requirements, broadcasters also have an obligation to comply with
the "fairness doctrine."
Immediately following the list of
exemptions to the "equal time" doctrine, Section 315 goes on to say:
Nothing in the foregoing sentence
shall be construed as relieving broadcasters, in connection with the presentation
or newscasts, news interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under this Act to operate in
the public interest and to afford reasonable opportunity for the discussion of
conflicting views on issues of public importance.
This
sentence is the basic for what has come to be called the "fairness
doctrine."
The fairness doctrine requires two
things of a broadcaster: (1) that he cover "issues of public
importance," and (2) that he do so fairly, that he present
"conflicting views," that he not use his station to censor, or
propagandize for one point of view or another. This is not, it should be
noted, a requirement that "equal time" be devoted to all views, nor
is it a requirement that any given individual need be put on the station.
III. CANDIDATES AND FAIRNESS
Thus, at the threshold, we are
confronted with the question of whether the fairness doctrine covers candidates
at all. In its letter of [*320] November 6, 1972, for
example, NBC states unequivocally, "NBC does not believe the fairness
doctrine applies to candidates." The argument for this point of view would
be that the equal time doctrine is the only law intended to cover candidates,
that fairness only covers other kinds of issues, and that so long as a
broadcaster has complied with the equal time doctrine he has no further
obligation to candidates.
The law is very clear as I read
it. The fairness doctrine does cover the election coverage of
candidates. Accordingly, I think it would be extremely unfortunate if any
ambiguity were left on this score.
The language of Section 315 really
needs no interpretation, or legislative history. It is crystal
clear. After stating the exemptions to the equal time requirements,
Congress very expressly stated that, "Northing * * * shall be construed as
relieving broadcasters * * * from the obligation * * * to afford reasonable
opportunity for the discussion of conflicting views on issues of public
importance" [i.e., the fairness doctrine]. And that is precisely
what NBC is trying to do: to construe the equal time doctrine as relieving it
from its obligations under the fairness doctrine.
As I say, the Act really stands on
its own language. However, it may be viewed as somewhat reinforcing to
know that the Commission has always reassured Congress that it would, indeed,
interpret the language as Congress wrote it.
Thus, on March 2, 1971, Chairman
Dean Burch, in testifying before the Senate Commerce Committee on S. 382, presented
alternative draft legislation and analysis to deal with what he called
"fringe candidates." The proposal would, in brief, have limited equal
time to those candidates receiving more than 2 percent of the vote, or 1
percent signatures on petitioners. He was very careful on that occasion
to assure Congress, however, that "candidates who do not meet any of the
above criteria" would not be excluded from the airwaves; "licensees
would still be bound by the requirements of the 'Fairness Doctrine,' * * *."
To my knowledge, it has never been
seriously suggested -- prior to this case -- that the fairness doctrine was
inapplicable to candidates in a Presidential election.
IV. WHAT IS A
"CANDIDATE"?
The Commission majority says it is
inhibited in ruling on this case because it does not have enough information to
judge, among other things, whether or not Dr. Spock is a candidate.
The following is uncontroverted in
this proceeding:
(1) The Peoples' Party held a
national nominating convention in St. Louis, Missouri, on July 29, 1971;
(2) The Peoples' Party nominated
Presidential (Dr. Benjamin Spock) and Vice Presidential (Julius Hobson)
candidates on that occasion; and
(3) The Peoples' Party Presidential
and Vice Presidential candidates are on the ballot in ten states, and are
conducting write-in campaigns in some other states.
We have the Party's allegation that
their candidates have been waging an extensive national campaign. We do
not have a detailed [*321] itinerary of the candidates, but we
might take judicial notice of the fact that it would not have to be very
extensive to exceed that of the Republican Party candidate this year.
Given these facts, it seems to me
preposterous to hold any serious doubts about whether or not Dr. Spock is, in
fact, a "candidate" for the Presidency -- unless one looks only to
the probability of election as a criterion. And that standard would raise
some question about the Republican candidate in 1964 -- and the Democratic
candidate this year.
V. HOW MUCH IS
"FAIRNESS"?
Once we acknowledge that the law
requires the broadcaster to give some time to Dr. Spock under the fairness
doctrine, the questions then arise as to how much and when.
My own view is that the three weeks
prior to an election is a crucially important time for any candidate, and that
any common sense approach to either equal time or fairness in politics would
have to acknowledge that fact.
For example, I do not believe the
fact that ABC, CBS and NBC covered Dr. Spock's acceptance speech on July 29,
1972, is evidence that he has been fairly treated in October -- although it may
be some evidence that his candidacy was taken seriously by the networks at that
time.
ABC is the only network to give any
attention to Dr. Spock's candidacy during the last three weeks of the campaign
-- two and one-half minutes in the October 30, 1972, evening news show.
In addition to the convention coverage, ABC also presented Dr. Spock for 12-15
minutes on a special Issues and Answers program on Sunday, October 8.
CBS presented an interview with Dr.
Spock for about seven minutes on October 13, 1972, in addition to its July
coverage.
NBC offered Dr. Spock time on a
program about minority candidates on August 27, 1972 which he was unable to
accept, Following an equal time complaint, it reluctantly presented a brief
interview with Dr. Spock on the Today Show on September 13. It also
covered the convention in July. It has, apparently, presented nothing
regarding Dr. Spock's candidacy since September.
Whatever may be said of CBS and
NBC's coverage during August, September, and the first two weeks of October --
one seven-minute appearance on CBS and one "brief" interview on NBC
-- it seems clear to me, that their coverage during the last three weeks of the
campaign -- zero appearance and zero minutes -- does not comply with their
obligations under the fairness doctrine.
VI. PROCEDURAL PROBLEMS
The Peoples' Party complaint was
filed Thursday, November 2, 1972. It was apparently mailed -- special delivery
-- rather than hand delivered to the networks. CBS -- which has many
lawyers -- received the letter at the "wrong" law firm for matters of
this kind.
Notwithstanding these problems,
however, the FCC met on the matter on Friday, November 3, and the networks were
at least notified of the complaint -- and asked to respond -- on that date.
[*322] Normally, a
complainant should first present his fairness grievances to the broadcast
stations (or networks) involved, and present the Commission with their answers
as well as the compliant's allegations. However, it could be said that
the People's Party did carry on a running complaint with the networks -- which
seemed, to the Party, to be always on the verge of promising coverage -- until
this past week.
Had the networks been able to
conduct a more thorough and leisurely search of their records, they might have
been able to find they had provided more coverage of Dr. Spock.
These procedural problems are
unfortunate. They are not, however, all that unusual in the onrush of
last-minute election issues that come to the Commission -- most of which are
presented, and resolved, orally, with no documentation whatsoever. Nor
are they, in my judgment, decisive.
VII. RELIEF
Whenever a government agency is
involved in broadcast issues involving a Presidential election, with remedies
involving news content, on the afternoon before an election, it is perhaps too
much to hope that light will overcome heart.
It is very easy to misrepresent the
positions of any of the parties or Commissioners involved in this case --
including my own.
I have consistently taken the
position that the government in general, and the FCC in particular, should not
meddle in the news judgment of broadcasters -- subpoenaing newsmen's notes and
film, criticizing newsmen's "bias," complaining about
"commentaries" after Presidential addresses, and so forth.
I do not want the right to tell
Walter Cronkite that he has to present Dr. Spock -- or anyone else -- as
"news." News judgment is just that, news judgment -- and the FCC (as
the Commission has often unanimously declared) is not the national arbiter of
"truth."
But the Congress has clearly
required the FCC to apply the fairness doctrine to minority parties, and the Commission
has often reassured Congress it would do so. All our fairness decisions
may result in a broadcaster righting an imbalance through additional news
items; none requires that format. And so it is with this decision: the
networks might choose to treat Dr. Spock as "news" this evening; they
need not do so should they choose another program format.
Had this case been presented a week
or two ago it would have been easier to debate, analyze, and resolve. But
that can be said every two years of the election-eve equal time and fairness
complaints. I would have preferred to give CBS and NBC more time than a
few hours to figure out a way to present Dr. Spock to their viewers in a format
that is exempt from the equal time requirements and most conveniently suits the
programming schedules and news judgments of the networks. I would not,
however, fail to decide the case on those grounds.
Accordingly, I would treat this as
any other fairness decision; find that CBS and NBC have not complied with that
doctrine in presenting Dr. Spock during the last three weeks of the campaign
(two months, in the case of NBC); and require that they make some
[*323] effort, even at this late hour, to come into compliance with that
doctrine. The Commission is seldom more precise than this in ordering
relief in fairness cases, and I would not be so here.
I need not, and do not, for the
purposes of this separate opinion, reach or pass upon ABC's compliance with the
fairness doctrine. I believe all would agree its performance was better
than that of CBS or NBC. Whether it was enough better to distinguish it
in law is an issue that the majority, necessarily, does not reach.
To find that zero coverage is
adequate, however, is a resolution I cannot abide. Therefore, I dissent.