Tobacco Documents Online

Federal Communications Commission and Cigarettes Dec. i, 1966 Manhattan attorney John F. Banzhaf III writes WCBS-TV New York demanding equal time for anti- smoking advocates. Dec. 20, 1966 Jan. 5, 1967 April 1967 May 17, 1967 Banzhaf writes WCBS-TV again, reasserting pre- vious requests and asking that he personally be afforded time to rebut cigarette commercials. Banzhaf files Fairness Doctrine complaint with Federal Communications Commission against WCBS-TV. Senate-Commerce Committee Chairman Warren Magnuson suggests "a way could be found, perhaps through the implementation of the FCC's Fairness Doctrine, to ensure that public service time.is made avail- able for smoking and health education." Sen. Robert F. Kennedy, announcing cosponsorship with Magnuson of bill requiring "tar" and nicotine listing on cigarette packs and in advertising, says the FCC "has the power, in connection with its power to refuse to renew licenses of stations that do not operate in the public interest, t6 prevent or limit the advertising of products which are harmful to health." Gannett News Service Washington correspondent Jack Germond reports, "Unofficially the FCC has d-~ded to require equal radio and TV time for messages pointing out the dangers of smoking. Now, however, the agency is delaying formal action while seeking a way to placate congressional leaders who are critics of the FCC or friends of the tobacco industry, or both." June 2, 1967 FCC notifies WCBS-TV that Fairness Doctrine is applicable requiring "a station which carries cigarette commercials to provide a significant amount of time for the Other viewpoint." Questioned by reporters, FCC General Counsel Henr~ Geller gives his "personal opinion" that ~--~atibn ~evoting one-third as much time to . "... ., .... q . ,'.'.- .... ..~ :.~ "~ . , ..," ., . . . ..,.. :,.. ~. -%-~.. ,. ~,

June 5, 1967 -'- anti-cigarette programming as it does to cigarette commercials would be fulfilling its Fairness Doctrine duty. FCC gives details of ruling in Public Notice. June-July 1967 June 30, 1967 July I0, 1967 Various petitions for reconsideration and for rulemaking proceeding are filed with the FCC. Tobacco Institute petitions FCC to rescind the June 2 ruling~ charging it is "inconsistent" with the 1965 Federal cigarette labeling law, "plainly discriminatory," "invalidated" by the failure to follow administrative agency pro- cedure, and outside the jurisdiction of the agency~.s authority. FCC Co~missioner Kenneth Cox tells South Carolina Broadcasters: "We rejected the complainant's contention that equal time should be allotted for anti-smoking views because we felt this might completely bar the broadcast of cigarette commercials." -- Sept. I, 1967 In letters to all broadcasters, TI President Earle C. Clements offers off-setting radio and TV spots, saying: "So long as the FCC ruling remains in effect,-the cigarette manufacturing members of this institute request...a significant amount of free time" to present the Institute's response to "any so-called public service announce- ments or other statements with reference to claimed hazards of smoking" and requests station reports of -.:,',. .... -- ' time devoted to anti-smoking material. ;.~;, .,,..~" .. ~,.-" "~'~i~. Sept. 8, 1967 FCC issues Public Notice that it has denied re- • .--.-~ quest for reconsideration; one copy of the opinion "~" is made available in the FCC Press Office on a Friday afternoon ,~ ;.. . . • . Banzhaf files petition for review in the District of Columbia Circuit Court of Appeals. Sept. 9, 1967 Sept. 13, 1967 Sept. 13, 1967 FCC releases its opinion and order reaffirming its June 2 ruling, but making the ruling's application prospective only. National Associmtion of Broadcasters and WTRF Wheeling, W. Va., pet~-~ion for review in the Fourth Circuit Court of Appeals.

-3- Sept. 21, 1967 FCC "clarifies" the ruling in a letter to Metro- media: "Tobacco organizations are, and always have been, free to approach broadcast licensees to pur- chase regular programming time or suggest sustaining roundtable or other programs to deal intensively with the issue of smoking and health, on the ground that it is one of importance to the licensee's area... A licensee may choose to present regular programming dealing with the cigarette smoking issue...A licensee who has carried cigarette commercials has extensively covered one side of the issue on behalf of the cigarette companies, so that when he presents a significant amount of time devoted to the other side...he is under no obligation to present further materials on the first (pro-smoking) side requested by these companies or their spokesmen." ! Concurring statement of Commissioner Lee Loevinger call~.the original ruling "confused, ambiguous, loose!~ reasoned and certain to engender difficulties, as stated in my concurring opinion of that date," and declares it "preferable to withdraw the Commission . opinion and issue one-less prolix and logically more rigorous to deal with the subject." Sept. 22, 1967 Oct. 20, 1967 NAB movesin District of Columbia Circuit Court to dismiss Banzhaf's .petition for review. TI petitions FCC to reconsider and vacate its "clarification" of Sept. 21. Nov. 2, 1967 Nov. 16, 1967 Nov. 28, 1967 Dec. 5, 1967 In a letter to KMBC-FM, Eugene, Ore., Commission Secretary Waple reaffirms that the Fairness bbctrine i~ applicable if a station does not carry cigarette commercials but does carry anti- smoking announcements, stating, "whether the pre- sentation of material regarding cigarettes is in the public interest is ((a judgment)) for the licensee to make..." District of Columbia Circuit Court hears oral arguments on NAB motion to dismiss Banzhaf's petition. D. C. Circuit Court denies NAB motion to dismiss Banzhaf's petition. In letter to N~B, Commissioner Cox reiterates that stations which refuse cigarette spots but carry anti-smoking messages must give time to tobacco spokesmen, but the time doesn't have to be free.

-4- Dec. 26, 1967 Dec. 27, 1967 Jan. 16, 1968 TI mails film and tape spots to first of some 200 stations expressing interest following Clements' Sept. 1 letter to all broadcasters. TI et al move in D. C. Circuit Court to intervene in ~n~ng cases. TI petitions D. C. Circuit Court for review of FCC "clarification" ruling and its denial and moves to consolidate this case with other pending cases. Jan. 19, 1968 Feb. l, 1968 Feb. 28, 1968 Feb. 29, 1968 June 12, 1968 Nov. 21, 1968 Feb. 5, 1969 TI motion to intervene in Banzhaf and NAB cases is granted and these cases are consolidated in D. C. Circuit Court. - TI cas~ consolidated with other pending cases in D. C. 'Circuit Court. Briefs. are filed by petitioners and intervenors opposing FCC. Banzhaf calls news conference in New York to announce formation of Action on Smoking and Health (ASH) to insure stations provide free time for anti-cigarette messages. ASH files with FCC first of many petitions seeking revocation of station licenses for alleged failure to devote sufficient airtime to anti-smeking messages. D. C. Circuit Court of Appeals upholds the Fairness Doctrine application to cigarette advertising, reasoning "in view of the volume of cigarette advertising, existing sources are inadequate to inform the public of the nature and extent of the danger." FCC issues notice of proposed rule-making to ban broadcast cigarette advertising, absent voluntary action by the cigarette makers. Feb. 12, 1969 TI and eight cigarette makers petition U.S. O Supreme Court for a writ of certiorari in Banzhaf O case. Mar. 6, 1969 Testifying about the Feb. 5 action before House Subcommittee on Communications and Power, FCC Chairman.. Rosel Hyde says: "Our action is preliminary~..We c~nsider ourselves an arm of the Congress in thls area, and we thlnk it should . • .- ....... . - • . ..... . ' ~'.~ ~" ~"- ,". . ~ "~'~.~ ~" ".~'.~'~. ~<.~'~ ~L ~,~-'~.'~ ,', ""';'" ~'~ ~'~4 "" ;"~"~- " ~~:~-%~'-~,'~'~'- .... "~ ~~~'~ "- -.,., ............ ~.;~., ......... ...,.. ~...~.;...~ .......... ., ..~.....>..-~,= _..,.~ ,~ .... ..... ..... , ,. ...... , ......... .. .... , ........~ .... ,~ ~~..~ ..... _ ~.~...~ ...... ~., ..... ~. .......

-5- be helpful to you to know what the radio licensing agency feels is appropriate in the field at such time as you take up the matter." Apr. 16, 1969 On request of six major cigarette manufacturers, FCC delays from May 6 and July 7 to July 7 and August 7 the deadlines for comments and reply comments on FCC proposal to ban broadcast cigarette advertising. Apr. 17, 1969 June 27, 1969 Testifying before the House Commerce Committee on cigarette labeling and advertising, FCC Chairman Hyde says, "If we had banned advertising...I would hope that the presentation on each side of the issue would be comparable...It would still be appropriate for a station to, as a matter of public service, carry ~nformation about the health hazard involved in the use of cigarettes, and if they did that, ~they would be subject, under the Fairness Doctrine to theduty of making some reasonable provision for the presentation of the other side of the argument." FCC again extends filing dates for comments and reply comments, to July 17 and AugustlS, at re- quest of NAB. July i, 1969 Refusing its sixth ASH request for denial of station license for failure to broadcast enough anti-smoking material, the FCC informally accepts a ratio of one anti-smoking spot to five cigarette commercials. July 819, 1969 NAB Radio and TV Review Code Boards recommend to ~i~r~--~e~erships o~--mail D~llot a four~- year phaseout of broadcast cigarette advertising. July 9, 1969 July 17, 1969 July 22, 1969 FCC denies any further extension of time for filing, despite upcoming Senate Commerce Consumer Sub- Committee hearings on House-passed Federal Public ~ ~ Health Cigarette Smoking Act. Nine cigarette manufacturers file comments on FCC proposed rule. Representing nine cigarette makers,-TI Executive Committee Chairman Joseph F. Cullman III tells ~he Senate Commerce Consumer Subcommittee each manufacturer will yoluntarily leave the air by the end of the year, if networks agree, or at least by end of current contracts in September 1970, if Congress will vote an anti-trust exemp- tion for the industry. :" ." . • " ." -,:,..'7:". .... : ;. ", ~ ,..'" .. ~.~..~'." " '~.': ", ," ~" "' ~-~" :~.':~,. ~'.....~,~'C-y''.~'-.i~.~. ,. Z--~'. '

-6- Sept. 17, 1969 FCC Chairman Hyde tells the Senate Subcommittee, "the four-year phaseout ((proposed by NAB)) is inappropriate in view of the nature of the health hazard." Asked by Sen. Moss if voluntary with- drawal would make appropriate "the continuance of those so-called anti or educational broadcasts, commercials," Hyde says, "I think it would be very appropriate for the stations to continue to carry this educational material...It is always appropri- ate for a broadcast station to bring matters in- volving public health to the attention of their listeners and viewers..." but he added that "more attention could be attracted to that presentation if you had the other side of the argument avail- able at the same time. What I am suggesting is that a good, sharp argument might attract more attention than a presentation of simply one side...The licensee would also have the responsi- bilit~Qf making sure that the arrangements were fair...The issue will continue to be a controversial one of public importance." FCC Chairman Hyde tells-Sen. Magnus0n by letter that the FCC supports "voluntary action and any facili- tating legislation which will end cigarette adver- tising in the broadcast field." Oct. 13, 1969 U. S. Supreme Court declines in an unsigned order to review the Io~ court decision on FCC applica- tion of the Fairness Doctrine to cigarette adver- tising. Dec. 12, 1969 Aprl. i, 1970 Aug 16, 1970 Aug. 25, 1970 Senate passes amended Public Health Cigarette Smoking Act of 1969, banning cigarette commercials after Jan. i, 1971. Public Health Cigarette Smoking Act of 1969 is signed by Presi~n~ Nixon, signaling an end to cigarette advertising on the air. New York Times writer Christopher Lyden reports that Banzhaf will press the FCC in October for a general ruling on the responsibility of broad- casters in the smoking controversy after Jan. i, 1971. Virginia resident Michael Handley writes FCC•of his frustration in attempting to insure broad- cast of pro-cigarette material by broadcasters who carry anti-cigarette spots but no commercials and accuses the Commission of unfairness in allegedly emphasizing the anti-smoking side of the issue; . :-. -. "'.: . .. ~ .~ '., -. "-: "~ -. .~ ...-'.-' .... ..~-,", .~,->:~~'-~,~-" • %, ""-., -. ~ ..... ~, "~ ,',Z" .".- ., ,-..-.,:. :~..,-. ,,;.,.. . .... .. ,., ..... ..~. ~-']< ,,, ,.,. ..... • . --~-:-, ~.:~.-.~-e~ ~~.- ::-.. -. ~" ~ r.-; ~. ,-. ..... " -.,-- ~.~.k.'~" ,-~'--~-~ •.~ ,~..~'. .~.~; ..~.-',- ~4,...,~.-" - . ~ .. °..~ , "'.~"-,~ ,. _.,,. .'.. , l_ .~k..~.~.~. .~.%~-~

-7- he asked the Commission to rule that until Jan. 2, 1971, "all stations must balance anti-smoking spots with prosmoking spots and/or cigarette advertising in order to be in compliance with the Fairness Doctrine." Sept. 24, 1970 Sept. 28, 1970 Oct. 15, 1970 Nov. 30, 1970' Dec. 15, 1970 Dec. 15, 1970 Feb. 8, 1971 FCC General Counsel Geller is reported by the Associated Press to have said anti-smoking mess- ages must continue after cigarette commercials go and that smoking may now be so widely seen as a health hazard that the subject is no longer "controversial" and therefore no longer subject to Fairness Doctrine application. Geller tells T! he didn't say it exactly like that, "and predicts FCC will clarify the post-Jan. 1 outlook shortly with a public statement. Television Digest reports declaratory ruling .~:_ expected soon from FCC informing stations they'll be required to continue smoking hazard warnings after Jan. i. Commission calls for public comment, by Oct. 30, on two questions: Possible Fairness Doctrine obligations of broadcasters carrying anti- cigarette spots but no cigarette commercials; and .. public-interest obligations of stations after Jan. " 1 cut-off on cigarette commercials ":~ Six independent radio stations ask the District of Columbia U. S. District Court to find the no-broadcast clause of the 1969 cigarette labeling act unconstitutional. ' '~ , ~.. • " FCC rules that, as of Jan. 2, 1971, licensees will not be obligated to devote a significant amount of time to presentation of views and in- "~"~.. formation on alleged health hazards of cigarette smoking, that if broadcasters exercise discretion . to present messages that smoking is a hazard they will not be required by the Fairness Doctrine to present contrasting views. Three cigarette manufacturers, shortly to be joined by The Tobacco Institute as intervenor "~ appeal the FCC order in the Fourth Circuit Court ~-. . :. of Appeals. • NAB files motion in U, S. District Court in Washington to intervene as a plaintiff in independent stations' suit against government. . ..... • ., . . ~ . .- ,,..:~ ...... • • .' " ' ~ - "' . . ,., ~ " . - . . .- . ~'.:,-'. • .,. • '- ._~ .... ,..~.,..o.,..~ ............. ;~ .... , . • ,, ., ,.. ,.. .~.,:.~.~ ~.- ~ .... ".. • " ... ,. ; ~ ".. "-..~. -.. . .. .: " • ..... . . : ........ .. --,-~.-,. ..... ........ ,~t,, ~.~. ~.'~ • -. " ~! ,';:~ :~,.'".:;'~" ' • .","":,~~:~:" -.' "': -' ..:'.:-;~, • ...... ," ......

Feb. 24, 1971 CO FIOE. T/,4L Oral arguments heard in District Court in Washington in radio stations' suit. March 30, 1971. May 5, 1971 May 14, 1971 District Court in Washington issues an order sua sponte inviting Banzhaf, who had not asked permission to intervene, to file an amicus brief "particularly addressed to the proposition: The present or future effect of this legislation on cigarette advertising in non-electronic media." Court expresses no reason for the order. wi~h presentation of oral arguments in the Fourth Circuit Appeals Court the cigarette manufacturers' petition for FCC review awaits decision of the three-judge panel. FCC votes to review Fairness Doctrine after ruling broadcasters don't have to air criticisms of a-gasoline that claimed to reduce air pollu- tion. Commissioners say review will "permit a thorough reexamination and rethinking of the broader issues suggested by this and other recent cases before us." May 19, 1971 In a friend-of-the-court brief filed in Washington District Court in answer to the Banzhaf brief, NAB says "...advertising is not really the problem, since the reasons why people smoke have little to do with being told that cigarettes exist." Thus the broadcasters' suit awaits decision. June ii, 1971 Aug. 16, 1971 Aug. 23, 1971 FCC initiates "a broad-ranging inquiry into the efficacy of the Fairness Doctrine and other Comm/ssion public interest policies, in the light of current demands for access to the broadcast media to consider issues of public concern." U. S. Court of Appeals .for D. C. rules that TV stations must broadcast information outlining adverse effects of autos on the environment they carry ads promoting big cars and large horsepower ratings. The decision overturns a recent FCC ruling limiting Fairness Doctrine application to cigarette commercials. Advertising Age magazine calls Court ruling on auto ads "incredible and scary" when considering the possibility of balancing response to over $400 million of auto and gas commercials. NAB ~~ expresses concern that a broadcast "shambles" might result if the decision is upheld and said

Oct. 20, 1971 March 27, 1972 July 2, 1974 -9- there is "almost nothing advertised that might not be deemed controversial..." (The Court later sent the case back to FCC and the environ- mentalist group, Friends of the Earth and NBC made an out-of-court settlement.) A U. S. District Court in Washington rejects the plea of six broadcasters and the NAB to declare unconstitutional the cigarette ad broadcast ban. In a 2-1 decision, the court said: "Congress has the right to prohibit advertising of cigarettes in any media." U. S. Supreme Court upholds the appellate court finding of the constitutionality of the 1970 law prohibiting broaddast cigarette advertising. FCC decides to limit application of Fairness Doctrine to broadcast viewpoints rather than to product commercials, thus reversing its 1967 decision which applied the doctrine to a whole category of product advertising (cigarettes). The Tobacco Institute 1776 K Street, N. W. Washington, DC 20006 September 1974