Thus, the fairness obligation of broadcast licensees became an explicit provision of the act, at least to the extent applicable to broadcasts exempted from operation of section 315. Upon the second, a representation said to be required of all licensees in the renewal application should be pointed out. The application form elicits the applicant's practices affecting public affairs programing. He must describe his past and proposed policies "with respect to making time available for the discussion of public issues and the method of selecting subjects and participants." Officials at FCC claim it requires that each response demonstrate an awareness of and compliance with the "fairness doctrine." Thus, each applicant must, in accordance with FCC policy, affirmatively represent in his renewal application that he has and will comply with the doctrine. In that same connection, the license form currently being issued by the Commission contains the following language: *** This license is issued on the licensee's representation that the statements contained in licensee's application are true and that the undertakings therein contained so far as they are consistent herewith, will be carried out in good faith. The licensee shall, during the term of this license; render such broadcasting service as will serve public interest, convenience, or necessity to the full extent of the privilege herein conferred. [Emphasis supplied.] Hence, the license incorporates by reference representations of each renewal application for future operation of the station. Therefore, any. subsequent bad-faith "fairness doctrine" violation represents a failure by licensee to carry out undertakings contained in his application, assuming his response conforms with FCC policy, and, consequently, is a failure to operate his station substantially as set forth in the license. In summary, Congress has made available to FCC varied and flexible administrative sanctions for enforcing "fairness doctrine" and other infractions by broadcast licensees. They range in severity from the "death penalty" of revocation or nonrenewal to a "slap on the wrist" evinced by cease-and-desist orders. Between these extremes, in a declining order of severity, are the short-term renewal and forfeiture. Armed with these flexible sanctions, how has FCC applied them to "fairness doctrine" violations? To elicit an answer, the following questions were addressed to Chairman Hyde: (1) How many stations in the history of FCC have had licenses revoked because of "fairness doctrine” violations? (2) How many licenses have not been renewed because of "fairness doctrine" violations? (3) How many cease-and-desist orders have there been issued for "fairness doctrine" violations? (4) How many forfeitures have there been levied for "fairness doctrine" violations? (5) How many short-term probationary renewals have there been granted because of "fairness doctrine" violations? John F. Cushman, administrative assistant to Chairman Hyde, responded by letter dated May 3, 1967. In its entire history, he advised, FCC, for "fairness doctrine" violations, has never revoked a license, has never denied a license renewal, has never issued a cease-and-desist order, and has never levied a forfeiture. According to Mr. Cushman, the only sanction ever imposed for "fairness doctrine" violations was the short-term probationary renewal and it against only two licensees. Those renewals, both dated May 19, 1965, involved station WLBT and stations WJDX-AM and FM, all located in Jackson, Miss. As a practical matter, only one licensee was involved. WLBT was licensed to Lamar Life Broadcasting Co. and WJDX-AM and FM was licensed to Lamar Life Insurance Co. Although a separate corporate entity, the equitable ownership of Lamar Life Broadcasting Co. was vested in Lamar Life Insurance Co. Of all the available sanctions, FCC, in its entire history, has elected to exercise only the short-term renewal to punish fairness violations. And it has used that sanction against only one licensee, the owner of three stations. On the face of it, this history may be subject to two conclusions. If, over the years, a vigorous protection of the public interest has necessitated discipline of only one licensee for fairness infractions, then the broadcasting industry has demonstrated an enviable record of fairplay. If such is the case, there must be something inherent in the industry which insures fairness and one is left to wonder if the "fairness doctrine," as a regulatory device, much less as a rule of the Commission, is needed at all. On the other extreme the Commission's record might be construed as one of excessive timidity in protecting the public interest, even abdication of the responsibility to do so. B. ADMINISTRATION FCC has developed a broad body of policy which it calls the "fairness doctrine" governing licensee responsibility in handling issues of public importance. If licensees are to operate in the public interest. convenience, or necessity they are expected to adhere to the Commission's fairness principles and its newly adopted rule. Each 3 years, before issuing a renewal license, the Commission must, under the law, make an affirmative determination that each licensee has and will operate in the public interest, convenience, or necessity. Consequently, it must determine that each licensee has and will comply with the "fairness doctrine." How does it discharge that affirmative responsibility? How does it police fairness? How does it cope with fairness problems as they arise? To answer these questions, a review of current FCC procedures. policies, operations, and practices was undertaken. In the course of that review, agency employees at various levels of responsibility were interviewed and consulted on numerous occasions, license renewal procedures were studied, public complaint procedures were studied, and all "fairness doctrine" files associated with complaints against particular stations received during the 18-month period from January 1, 1965, through June 30, 1966, were read, abstracted, analyzed, and tabulated. The observations in this section are based upon those investigations. To police fairness infractions and to insure that licensees have complied and will comply with the doctrine's requirements, the Commission relies upon two sources of information. One is the renewal application where licensees are required to describe their past and proposed policy "with respect to making time available for the discussion of public issues and the method of selecting subjects and participants." The other source is spontaneous, unsolicited public complaints directed to the Commission against particular stations. The Commission does no policing upon its own to discover fairness violators. Short of a number of serious fairness complaints, it does not monitor any station's program content, either on a regular or random basis. Since renewal applications deal with fairness policies as distinguished from practices, the complaint is the only source of original information about station fairness practices. Hence where a licensee describes policies in his renewal application which would insure "fairness doctrine" compliance and, in practice, does not follow those policies, FCC must receive a complaint to detect the discrepancy. If no complaint is received, he need not fear discovery. We will turn now to handling of complaints by FCC. 1. Compliance Before the "Billings" letter on July 13, 1962, FCC did not rule upon complaints until renewal time. When a complaint in proper form was received, it was referred to the involved licensee for comment. Then it would be held, along with licensee's response, to be disposed of in connection with the particular station's renewal application. "Billings" was selected as a vehicle to institute a new policy. Thereafter it has been stated FCC policy to rule upon fairness complaints as they arise. There is a prophetic irony in the choice of this case to commence the new policy of prompt rulings. The broadcasts which precipitated the "Billings" complaint were aired September 18 through 22, 1960. FCC ruled upon the complaint 1 year and 294 days later. The average fairness complaint arrives as a letter addressed to the Commission by some disgruntled citizen or organization. Occasional letters are addressed to the President or a Member of Congress and referred to FCC. After arrival and characterization as a fairness complaint, the letter is assigned for processing. One full-time employee, a lawyer, has the primary responsibility for processing fairness complaints and complaints arising under section 315. During periods when the workload is heavy, he assigns overflow to other lawyers in the agency for processing. Generally, if the complaint is not in proper form or if it involves questions which have been clearly decided by previous Commission action, it is disposed of on the staff level without recourse to Commission consideration. If, on the other hand, the complaint presents a new question or a number of complaints are filed against one licensee, the matter is referred to the full Commission for determination. Before FCC will accept any complaint as actionable against a particular licensee, it expects: ** a complainant to submit specific information indicating (1) the particular station involved; (2) the particular issue of a controversial nature discussed over the air; (3) the date and time when the program was carried; (4) the basis for the claim that the station has presented only one side of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoints. Apart from the specific details of an alleged fairness offense, complainant must have observed and be prepared to allege that licensee has not presented the opposing view in another program (item (4) above), and must first contact the station before enlisting Commission assistance (item (5) above). If the complaint does not meet FCC's content requirement, it is ordinarily not referred to the involved station for comment. Such complainants generally receive a response stating sufficient facts to warrant FCC action have not been alleged and the Commission cannot, therefore, initiate an investigation of the matter. Infrequently, in this circumstance, complainant will be invited to submit additional facts with particular reference to the omission involved. Ordinarily no such invitation is extended and the complainant pursues the matter no further. A vast majority of fairness complaints received at the Commission are disposed of in this way. They involve incomplete facts and are left to lapse through complainant inactivity. On occasion when the complaint is deficient in content, FCC will depart from its normal procedure and forward it to licensee for comment. There appears to be no explanation for these departures from the norm. When, on the other hand, a complaint is received which complies with FCC's content requirements, a letter is mailed to the involved licensee stating the substance of the complaint and inviting licensee to reply, giving his side of the matter. Ordinarily complainant will be identified to licensee. Sometimes, however, complainants express a desire to remain anonymous. When this has occurred, FCC policy has not been consistent. Sometimes complainant is advised no action can be taken under cover of anonymity. Yet, on other occasions, his identity has been protected by FCC and the licensee required to respond to charges of an unnamed accuser. If licensee's response indicates the alleged offense has actually occurred and he is not able to satisfy the Commission he has presented opposing views in his overall programing, or if his response reflects an ignorance of his responsibility under the "fairness doctrine” a second letter is addressed to licensee advising him of his obligation under the law and requesting his reply, setting out those steps he has taken or will take to achieve compliance. Ordinarily licensee will then respond, stating he has broadcast opposing views in a manner satisfactory to complainant or offering an explanation which satisfies FCC no violation has occurred. That ends the matter and the case is forgotten, both for the present and at renewal time. What if the responding licensee acknowledges the offense complained of, but contends FCC's interpretation of the law is incorrect? He. therefore, refuses to comply with the Commission's interpretation of his responsibility incident thereto. Only one case of this sort was found. One Fred J. Cook, in a complaint against WGCB, Red Lion, Pa., and other stations, alleged a personal attack upon him by Rev. Billy James Hargis, the moderator of a syndicated program series "Christian Crusade." FCC concluded a personal attack did occur, that WGCB did carry the program, that it did not notify Cook of the attack or supply him a transcript, that Cook demanded time to reply, and that the station refused to carry Cook's reply unless he paid for time at the same rate Hargis had paid. Cook refused to pay. FCC advised the station that, under the law, it was obligated to carry Cook's reply on free time if commercial sponsorship could not be arranged and requested that licensee advise it as to what steps were being taken to comply with Cook's request. The station responded that it would not carry Cook's reply free and that it considered FCC's action to be unlawful as a violation of the First amendment. At this point FCC might have elected to issue a cease and desist order. It did not do so, being content to warn licensee his privilege might be jeopardized by noncompliance. Thereafter, licensee initiated proceedings in the Court of Appeals for the District of Columbia to test the legality of FCC's ruling. On June 13, 1967, that court announced its opinion.12 The decision, written by Circuit Judge Tamm, upheld FCC, ruling against licensee upon the constitutional questions which were raised. The court found the "fairness doctrine," its personal attack feature, its requirement that free time be afforded when commercial sponsorship is not available, and section 315 were all consistent with the First, Fifth, Ninth, and 10th amendments to the Constitution. In the meantime, the station's license, normally up for renewal on August 1, 1966, has been held in abeyance by FCC along with licensee's application to construct a new UHF television facility. Sometimes the licensee seems to miss the point when responding to FCC's original inquiry. Thus, additional exchange of correspondence is required. A case in point involved Station KNEV-FM, Reno, Nev. On January 29, 1965, a complaint against the station was received. It alleged generally that licensee was not presenting opposing viewpoints upon public issues. Complainant was particularly concerned about a locally originated program series called, "Speak Up." The program format involved the broadcast of conversations between its moderator and members of the listening audience who called by telephone during the broadcast. This type broadcast is referred to as an "open mike program. Complainant alleged that UNICEF, UNESCO, and United Nations were repeatedly criticized over the program. Listeners were urged not to purchase UNICEF Christmas cards. These agencies, allegedly dominated by Russian Communists, were said to be sending their literature to schools all over the country. They were accused of attempting to establish a one-world government. Favorable comments about the U.N. were described as propaganda. The Supreme Court was criticized as being politically motivated and lacking judicial experience. The qualifications of Justice White were impugned. The loyalty and intergrity of Chief Justice Warren were questioned. Communist involvement in his selection to head the Commission investigating President Kennedy's death was suggested. Civil rights measures, the State Department, the Supreme Court prayer decision, and FCC were criticized. The John Birch Society was praised. Specific dates and times were cited in the complaint. Complainant then alleged the station regularly scheduled "Manion Forum," "Lifeline," "Citizens' Council Forum," and "Howard Kerschner's Commentary on the News," describing all as having a similar slant "concentrating on negative criticism of government policies and officials." Finally complainant stated she had contacted licensee, offering to buy tapes from the "Center for the Study of Democratic Institutions" if the station would air them as a public service. According to her, the offer was refused, while licensee discredited the center. On February 8, 1965, complainant's letter was acknowledged with the advice that the complaint was being referred to the station for comment. Responding to the Commission's inquiry by letter dated February 19, 1965, licensee explained that anyone who wished to do so was in 42 Red Lion Broadcasting Co., Inc., et al. v. FCC, case No. 19,938, U.S.C.A. D.C. (June 13, 1967). |