smoking." Complainant argued such programs as had been offered by WCBS-TV on smoking and health were insufficient to offset the volume of cigarette commercials it carried and contended that free time, roughly approximating that devoted to smoking commercials, should be made available to responsible groups for presentation of the opposing view.

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The complaint was resolved on June 2, 1967, when FCC addressed a letter to the station. Holding the doctrine applicable to cigarette commercials, the Commission's decision was philosophically consistent with the Morris case. While KRLD and CBS were exonerated for a sin common to all broadcasters in Morris, the latter decision devolved a new responsibility upon the entire industry while not specifically being critical of WCBS-TV. Notably the recent decision was specifically limited to one product, cigarettes. While rejecting the position that licensees should afford free reply time roughly approximating that devoted to cigarette commercials, the Commission described licensee responsibility in seemingly new terms. The broadcaster who carries cigarette commercials is required "to provide a significant amount of time for the other viewpoint." [Emphasis supplied.]

No definition of the phase, "a significant amount of time," was undertaken. Rather, broad discretion in determining the adequacy of response was left with the individual licensee. Discussing this point, the Commission said:

A station might, for example, reasonably determine that the above noted responsibility would be discharged by presenting each week, in addition to appropriate news reports or other programing dealing with the subject, a number of the public service announcements of the American Cancer Society or HEW in this field. We stress, however, that in this, as in other areas under the fairness doctrine, the type of programing and the amount and nature of time to be afforded is a matter for the good faith, reasonable judgment of the licensee, upon the particular facts of his situation.

Moreover, it was clear FCC would be satisfied with reply time significantly short of equaling time devoted to the offending commercials. On that point, the Commission said:

* The fairness doctrine does not require "equal time" and, equally important, a requirement of such "rough approximation" would, we think, be inconsistent with the congressional direction in this field-the 1965 Cigarette Labeling and Advertising Act. The practical result of any roughly one-to-one correlation would probably be either the elimination or substantial curtailment of broadcast cigarette advertising. But in the 1965 act Congress made clear that it did not favor such a "drastic" step ***

Although limited in application to cigarette commercials and justified largely because of congressional, Government, and private research findings and concern in recent years about the health consequences of cigarette smoking, the decision portends fairness problems with broadcast advertisements yet to come. The product involved in Morris, alcoholic beverages, is the first which comes to mind. Philosophically, the recent decision, taken with Morris, might logically be extended to cover a multitude of other products and services.

Dentists are quite reasonably concerned about the effect of sugarladen confections upon dental health, particularly among children. Should candy, gum, and soft beverage commercials be embraced by the "fairness doctrine"? On the opposite extreme, there is a militant, orga

FCC file No. 67-641.

nized, and vocal minority whose opposition to the artificial interdiction of fluorides for dental hygiene approaches religious zeal. Their complaints have faced the Commission in the past arising from local ballot measures or other governmental action for fluoridation of water supplies. While holding broadcasters must afford their views opportunity for hearing, FCC has recognized them as a responsible element of the community. Is it illogical to assume they may object just as vehemently and responsibly to fluoride toothpastes which have become so popular in recent years?

Another minority, not necessarily mutually exclusive, is determined that a substantial number of society's problems would be obviated if all consumed only "natural foods." Saturated fats are linked with heart disease. Firearms and ammunition arouse the passion of others, both pro and con. Among those lawfully licensed to practice the medical arts are some who oppose ingestion of medications of any sort, while their opposites may ferverently believe them to be "cultists" whose very existence constitutes a threat to public health. Religious beliefs mitigate against other products and services. Adopting the philosophy of Morris and WCBS-TV, just how far may the "fairness doctrine" be extended to embrace broadcast announcements favoring commercial products and services? 38

II. ENFORCING THE FAIRNESS DOCTRINE

A. SANCTIONS

The Communications Act affords FCC a variety of flexible sanctions in dealing with licensees who do not operate in the public interest, convenience, or necessity. The most extreme of these are license revocation and nonrenewal of license. Lesser administrative sanctions include: cease and desist orders, forfeitures, and short-term probationary renewals.

The Commission is also authorized by the act to make rules and regulations. In that connection, section 4(i) provides:

(i) The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this act, as may be necessary in the execution of its functions.

The above language is permissive. "The Commission may *** make such rules ***" etc. [Emphasis supplied.] Section 303 is more obligatory. It states:

SEC. 303. Except as otherwise provided in this Act, the Commission from time to time, as public convenience, interest, or necessity requires shall— * * *

(r) Make such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act *** [Emphasis supplied.]

License revocation, the most drastic of sanctions, is authorized by section 312 of the act, which also authorizes cease and desist orders. That section reads in part as follows:

SEC. 312. (a) The Commission may revoke any station license or construction permit

as On Sept. 8, 1967, FCC again considered the WCBS-TV case upon the petitions for reconsideration filed by several. The June 2 action was upheld and the Commission emphasized that the ruling applied only to cigarette advertisements. No mention of the Morris case appeared in the majority opinion.

(1) for false statements knowingly made either in the application or in any statement of fact which may be required pursuant to section 308;

(2) because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license or permit on an original application;

(3) for willful or repeated failure to operate substantially as set forth in the license;

(4) for willful or repeated violation of, or willful or repeated failure to observe any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States;

(5) for violation of or failure to observe any final cease and desist order issued by the Commission under this section; or

(6) for violation of section 1304, 1343, or 1464 of title 18 of the United States Code.

(b) Where any person (1) has failed to operate substantially as set forth in a license, (2) has violated or failed to observe any of the provisions of this Act, or section 1304, 1343, or 1464 of title 18 of the United States Code, or (3) has violated or failed to observe any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States, the Commission may order such person to cease and desist from such action.

Six grounds for revocation are listed, including willful or repeated violation or failure to observe any provision of the act or any Commission rule or regulation and willful or repeated failure to operate substantially as set forth in the license. These grounds also obtain for the issuance of a cease-and-desist order, except, in that instance, the violation does not have to be willful or repeated.

Section 503 of the act authorizes FCC to exact administrative forfeitures in some instances. Paragraph (b) of that section reads as follows:

(b) (1) Any licensee or permittee of a broadcast station who

(A) willfully or repeatedly fails to operate such station substantially as set forth in his license or permit.

(B) willfully or repeatedly fails to observe any of the provisions of this Act or of any rule or regulation of the Commission prescribed under authority of this Act or under authority of any treaty ratified by the United States, (C) fails to observe any final cease and desist order issued by the Commission,

(D) violates section 317 (c) or section 509 (a) (4) of this Act, or

(E) violates section 1304, 1343, or 1464 of title 18 of the United States Code, shall forfeit to the United States a sum not to exceed $1,000. Each day during which such violation occurs shall constitute a separate offense. Such forefeiture shall be in addition to any other penalty provided by this Act.

As with revocation, willful or repeated failure to observe any provision of the act or of any Commission rule or regulation or willful or repeated failure to operate a station substantially as set forth in the license are grounds for invoking forfeiture.

Finally, there are two sanctions available to the Commission while acting upon applications for renewal: nonrenewal and short-term probationary renewal.

Currently, broadcast stations are licensed to opente for a maximum period of 3 years. Shortly before expiration of the license period, each licensee wishing to retain his broadcasting privilege must file an application for renewal of license before the Commission. Before granting a renewal of license, FCC is required by the Communications Act to affirmatively determine that continued operation of the station will serve the public interest, convenience, or necessity.

In that determination, FCC has asserted, among other things, that it takes into account the station's past performance and its promises

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for future performance. If, while meeting other requirements, licensee satisfies the Commission that his past operation and proposals for the future meet the standard of public interest, convenience, or necessity, his license is renewed for a full 3-year term. If, on the other hand, the Commission is not satisfied, it may do one of two things. It may deny the renewal, after hearing, and terminate licensee's privilege to broadcast. Or, if it deems the station's past performance substandard, it may grant a probationary renewal of license for any term it chooses short of 3 years. In such circumstance, the station is advised of its past deficiency and subsequent renewal is conditioned that the deficiency be corrected during the probationary term.

That short-term renewal as authorized by the act is apparent from the following language appearing in section 307 (d):

Consistently with the foregoing provisions of this subsection, the Commission may by rule prescribe the period or periods for which licenses shall be granted and renewed for particular classes of stations, but the Commission may not adopt or follow any rule which would preclude it, in any case involving a station of a particular class, from granting or renewing a license for a shorter period than that prescribed for stations of such class if, in its judgment, public interest, convenience, or necessity would be served by such action.

Until July 5, 1967, FCC had never adopted the "fairness doctrine" or any of its features as a Commission rule. By its memorandum opinion and order of that date," it elevated the personal-attack feature to the status of rule. The text of the rule follows:

In Part 73 §§ 73.123, 73.300, 73.598 and 73.679 all to read identically are added to read as follows:

"Personal attacks; political editorials.

"(a) When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group, the licensee shall, within a reasonable time and in no event later than one week after the attack, transmit to the person or group attacked (1) notification of the date, time and identification of the broadcast; (2) a script or tape (or an accurate summary if a script or tape is not available) of the attack; and (3) an offer of a reasonable opportunity to respond over the licensee's facilities.

"(b) The provisions of paragraph (a) of this section shall be inapplicable to attacks on foreign groups or foreign public figures or where personal attacks are made by legally qualified candidates, their authorized spokesman, or those associated with them in the campaign, on other such candidates, their authorized spokesman, or persons associated with the candidates in the campaign.

"Note: In a specific factual situation, the fairness doctrine may be applicable in this general area of political broadcasts. See, Section 315(a) of the Act (47 U.S.C. 315(a)); Public Notice: Applicability of the Fairness Doctrine in the handling of Controversial Issues of Public Importance. 29 Fed. Reg. 10415.

"(c) Where a licensee, in an editorial, (i) endorses or (ii) opposes a legally qualified candidate or candidates, the licensee shall, within 24 hours after the editorial, transmit to respectively (i) the other qualified candidate or candidates for the same office or (ii) the candidate opposed in the editorial (1) notification of the date and the time of the editorial; (2) a script or tape of the editorial: and (3) an offer of a reasonable opportunity for a candidate or a spokesman of the candidate to respond over the licensee's facilities: Provided, however, That where such editorials are broadcast within 72 hours prior to the day of the election, the licensee shall comply with the provisions of this subsection sufficiently far in advance of the broadcast to enable the candidate or candidates to

39 The "fairness doctrine" is brought to play in both these functions. Has the station complied with the doctrine in the past? Does it represent it will do so in the future? Thus, the "fairness doctrine" becomes a part of the overall and larger definition of "public convenience, interest. or necessity." 40 FCC file No. 67-795, Docket No. 16574.

have a reasonable opportunity to prepare a response and to present it in a timely fashion."

The rule incorporates the personal-attack feature of the doctrine and its Times-Mirror extension essentially as it had stood before, with three notable exceptions. First, under previous rulings a licensee was required to notify the person attacked or candidate before or at the time of the involved broadcast, tendering script, tape, or summary and an offer of time for response. Under the new rule the notice and tender shall be made within a "reasonable time," but not later than 1 week after the attack. Second, previous rulings had not clarified licensee obligations following personal attacks by candidates, their authorized spokesmen, or those associated with them in the campaign upon other such candidates, their authorized spokesmen, or those associated with them in the campaign.

The third exception applies to the Times-Mirror extension and involves one substantive change and two procedural ones. Under previous rulings, a licensee was obligated to notify candidates and tender script and response time when he permitted "the use of his facilities by a commentator or any person other than a candidate to take a partisan position on the issues involved in a contest for political office or to attack one candidate or support another by direct or indirect identification***." The new rule imposes this obligation only in connection with licensee editorials. It is not clear from the opinion that the older features have either been repealed or abandoned. Implicitly, this seems to be the case. The attendant confusion can only be clarified by future FCC decisions.

The procedural changes involve the time of notice and tender. When involved editorials are broadcast more than 72 hours prior to the day of election, the offer and tender must be made within 24 hours following the editorial broadcast. When the editorial is broadcast within 72 hours prior to election day "the licensee shall comply *** sufficiently far in advance of the broadcast to enable the candidate or candidates to have a reasonable opportunity to prepare a response and to present it in a timely fashion." 41

Although no part of the "fairness doctrine" had been committed to rule before July 5, 1967, we think FCC was authorized theretofore and, with respect to that portion of the doctrine not adopted as rule, is authorized hereafter to invoke revocation, cease-and-desist orders, and forfeitures against appropriate fairness violations. This is urged upon two grounds: First, fairness violations are a failure to observe a provision of the Communications Act, and second, fairness violations constitute a theoretical failure to operate the station substantially as set forth in the license.

Taking up the first ground, the following language from section 315(a) should be recalled:

***Nothing in the foregoing sentence shall be construed as relieving broadcasters * ** from the obligation to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. [Emphasis supplied.]

41 On July 27, 1967, two petitions for review of the Commission's action in adopting the rule were filed. One, on behalf of CBS, was filed in the U.S. Court of Appeals for the Second Circuit. New York. N.Y. The other, on behalf of Radio Television News Directors Association, was filed in the U.S. Court of Appeals for the Seventh Circuit, Chicago, Ill. Both petitions seek to have the rule set aside upon the grounds that it violates the First amendment and section 326 of the Communications Act of 1934.