Tobacco Documents Online

S!_t. ~ ~ ~~; \ ' Columbia E'rcadc:isting Systr..m, Inc. 51 \ti'est S2 Street Ae:f York. New York 10019 (212) 735-4321 Leon R. Brooks Vice President and Gc:nerat Counsef June 23, 1967 Mr. Ben F. Waple Secretary Federal Communications Commission Washington, D. C. 205511 Dear Mr. 4:Taple : Reference is made to your letter of June 2, 1967 to television station t~,CBS-TV setting forth the Commission's ruling upon the complaint of Mr. John F. Banzhaf, III, against that station. In its ruling the Commission holds that the fairness d-~t-rine is applicable to broadcast advertising, but states that holding is limited to one product -- cigarettes. However, the :,ommission rejects Mr. Banzhaf's claim that time "roughly approximate" to that devoted to cigarette commercials should be devoted to broadcast matter informing the station's audience of what the Commission terms "the other side of this controversial issue of public importance." The Com.mission concludes by noting that WCBS-TV, in the light of the programming which it has devoted to the effect of smoking on health, is "aware of its responsi- bilities in this area." V1e are appreciative of the Commi ssion's recognition that WCBS-TV is aware of its responsibilities. It is the judgment of this station that the issue of the health hazard involved in the smoking of cigarettes is one which should be called to the attention of the public from time to time. How that is done -- whether in neti•rs or public affairs programming, by public service announcem;,nts prepared by responsible public or private organizations in the health field, or otherwise, is, of course, a matter solely for the station's judgment. This judgment is not and (in our view) should not be affected by i,:hether or not the fairness doctrine is applicable or whether or not the station carries cigarette commercials. The Comimissi.on has now ruled that all broadcasts of cigarette commercials -- no matter what their content -- create apEr se duty to broadcast some proportional amount of other material on the hazards of smo'7i.ng. We wish to place stronEfly on the record our va-et:i that this ruling is inconsistent with the func,amentaJl objectives of the fairness doctrine. VJe believe it will severely impair --- to the detriment of the public

-2- interest -- the exercise of licensee judgment in the selectaon, andpresentation of programs d'ea.ling,withi . controversial issues of public impor.tance. We also believe that it cannot reasonably be restricted to cigarette advertising alone, and that it invoives the Commission in an activity -- regulation of cigarette advertising -- with respect to which Con~r~~ess had specifically considered and had rejectedy any new Federal controls. The Commission's departure in this case from the commonly understood requirements of the fairness doctrine may have resulted in part from an important departure from the procedures whichl the C'ami-Assion normal].y fol lo!•rs in t-r.eati:ng fairness issues.. The usual procedure is setfort4iin theCoinnission's!Fairness Primer " as follows : - "If the Commission determines that the complaint sets forth sufficient facts to i,.,arran further consic..era- tion, it will prorriptly, advise the licensee of complaint and~ request the licensee''s coin;rrents c': the matter.tA This procedurall policy of the Commission was cited t,rith approval in Red' Lion Broadcasting Company Inc. v. FCC, decid'ed om, June 13, 196 (. B'tit here the Commission did not afford VICBS-TV ani opportunity to comment upon the complaint - or to take action concerning it -- prior to its disposition of the matter. Whilet it is true that WCBS-TV had replied directly to Mr. Banzhaf and'. that Mr. Banzhaf in turn had forrrarded a copy of that letter to the Cor,imission, it is notec-,orthy that the letter in question did not set forth, except in passinu, the comments of' the station with respect to the application of the fairness doctrine to product ad'vertising,. Indeed, the station, after describinr-r the programminb, which it had already presented' on the smol.ing health issue, observed~: "In these circumstances, it r~ould appear unnecessary to consider whether the fairness dioct<rine can properly be appliied to com-merciall announcen3nnts solely and clearly aimed at sellinc, , products and services -- although we do not believe that the doctrine is applicable." Thus the Commission did not have WlCL3S-TV''s considered comr:ents or those of' any other broad'ca:st licensee --- on this important * FC'C Public Notice of July 1,, 1961!', 2'9 Fed. Reg. 10415 at 10t47.6

issue before making its fa.r reaching, decision. We respect- fully reqw.est, therefore, that the contents of this letter betreated by the Commissi.on as our comments on the complaint filed by ~ rir,. B~anz~haf', andt t~hat the Cbmmissiion~ recon~~s~ide~r~ its~~ ruling, on the basi's~~ of~ these comme~nts.~ Turning to the merits of the Coramission's ruling, we believe that it is fundamentally inconsistent with the fairness doctrine. That doctrine -- which was first enunciated in its present form inithe context of editorializing by broadcast licensees -- is supposed to further the goal of affording "reasonable opportunity for the discussion of conflicting views on issues of public importance."V One may search the Commission's 194'.9 Peoort on Editorializing by Broadca st Lic;ensees in vain for any indication that the doctrine was then viewed as encompa.ssing routine product advertising. Similarly, when the Commission issued its Fairness Primer in 19611 neither the introductory text, nor the 2Ue~:planatory rul!ings, nor the legislative history ofL uhe fairness doctrine set forth as Appendix B thereof , m~, , any reference to product advertising. When in 1965 the CC,::-:_i.zssion furnished the Senate Committee on Commerce with its co::~-aenlts on the proposed'i legislation to regulate the advertis,'_'n~; ~__'n~ and labeling of cig arettes, it seems evident that the Commission did not then have inimindl any applicability of the fairness doctrine to advertising,in general or cigarette advertising in particular. The Com.nission informed the Committee, in peruinent part: "The Federal Communications Comi-;iission's interest in this matter is necessarily limited to the use of broadcast medialfor cigarette advertising. It seems clearl'.y appropriate, hoi%,ever, that the matter of cigarette advertising be treated on aniall-inclusive, across-the-board basis, rather than iniaipiecemeal fashion. Since the Federal Trade Commission has undertakenito d'eal comprehensively with the remedial action needed to protect the public in the light of the report on smoking , and'. health, issued January 11!„ 1964', by the Advisory Cor,lmittee to the Surgeon Gcneral, the Federal Communica:tions Commission has not held pro- ceedings, or undertaken studies, to evaluate the various factors and considerations in this area. W°nilee we believe that some action oni an overall basis is: * Section 315, C'oziimunications Act, as amended.

"'a.ppropriate,, vre are thus not in a position to make reconunendations to the Congress in this field, and speci- fically, as to whether S'.547 or S. 5591 should be~ enaced. "` ~ Fbllo,aing adoption of the Cigarette Labeling and~ Advertising Act of 1965, the Commission maintained'its long silence on the subject and we are not arrare that, fromi the date of the Com- mission's comments to the Senate Commerce Committee to the present, it has held any proceedings or undertaken any studi^s of the matter, apart from its consideration of the exchange of correspondence between Mr. Banizhaf and' WCBS-TV. Mr. Banzhaf's letter "cites as examples three particular cormmercialsr" and these are the commercials on which the Con:rnission ruled. It is not clear that the Commission had before it these actual commercials, since it did, not request copies or trranscriipts from WCBS-TV. It may or may not be possible for a cigarett=~ co~~m,ercia,l whichmeets all currently applicable legal requireme..-1; to place in question the issue of smoking and heailtih:. The coi::: .: rcials here involved, however, did not do so.'"" The Commission, in any event, a:ppears to have based its ruling on the assumption that all cigarette commercials (vrhatever their content) raise the healthi issue. But the hazard involved in cigarette smoking is not, we submit, an issue necessarily raised by a cigarette commercial aimed only at promoting the. use of a particular cigarette as "attractive and enjoyable."' Sen. Ftcpt. No. 195, 89th C'on,g., lst Sess., page 13. S.547 would have requiredh each cigarette advertisement, as well as each cigarette package, to includ'e the warning, "Gaution- Habitual Smoking Is Injurious to Health." Station WCBS-TV conforms to the NAB Television Code which providPs tha~t cigarette advei~tising "shall not state or imply claims regarding health ...'° Each of the CBS o;aned radio and telievisiion, stations subscribes to the appropriate NAB Code, which contains essentially parallel provisions with respect to cigaret;te advertis:i.ng.

-5- While the Cor~I;Iission 19 years ago expressed a s_iurnilar doctrine since that time with respect to liquor advertisino;: its silence is notable. Indeed, during that period the Commission, in interpreting the fairness doctrine, has found occasion to sharply distin~uish betrreeii the explicit and implicit raising of con- troversial issues in broadcast material. Thus, withirespect to the claim of atheists and agnostics that thebroadcas.t of chtrrchservic~es should beregarde~d as advocating , one side o~fa controversial public issue, the Comn-jiissionihas recognized that, while an explJicit attack on atheists or agnostics might give rise to an obligation under the fairness doctrine, the mere broad!cas,1; of church services, devotionals or prayers does not do so. "The Com?nission has long held that mere carrying of a religious broadcast does not, in and' of itself; mean that one side of'a "controversial issue of'public importance" was presented . . . The contrary position urged in effect by complainant -- that e'very devotional service,,per se, is presentation by the licensee of a viewpoint on, a coni:roversial issue -- is, I think, patently unreason~3ble. " Letter to Mad'al,yn Marray,, 5 RR 2nd 263 at 266, 267, (~1965 Concurrin!g opini_on. of Chair- man E. William Henry in which Commissioner Kenneth A.. Cox joi:ns.]. See also Letter to Edward J. IIieffron, 3 RR' 2'6!;'a (1948), Letter• to Flobert H:. Scott, 25: RR 3119, (1962). ~ In considering a complaint that a station, though carrying liquor advertising, had reftised to sell time counsellinE, abstinence from drinking, the Commission said : "What is for other individuals merely a routine 'plug' extollinS the virtues of' a beverage, essentially no different fro;n other types of productadvertisi.ng,,is, fortheseindivid'~uials thead.vocaa:y of a practice i•rhach they deem to be detrimental to our society.. Whatever the merits of this controversy, which it is not our function to resolve, it is at least clear that it may assume the proportions of a controversial issue of public iiiipoz:tance." In: re Petition of Sam Morrris,, 3 RR 154, 156 (,194IP)1. In the Sam Morris_ case,, the Coirimission drew particular attention to the fact that in over 110 100 of the station"s service area, cov.nty laws forbade the sale of alcoholic beverages. There are, of course, no lai•;s in WCaS-TV's service area forbidding the sale of' cigarettes.

To treat any and all cigarette adverti:sements, without exception, as raising a controversial issue, and to require some proporf;ional amount of other program material, will have practical results which can only debase and distort the fairness doctrine. Efforts to sell a product are by nature repetitive and' continuous . Treating all such efforts as discussions of one side of a con- troversial issue immediately raises the question of' whether any one program, or program! series -- however enlightening and informative as to~ all points of view -- can constitute an adequate opportunity for response. The Commission has reacted to this difficulty by suggesting that stations which carry cigarette advertising must devote a significant amount of time eachi and every week to the views of those who oppose cigarette smo?:ing. Such a requirement~ mak.es nolsense in the context of news and public affairs programming, where the amount of' time used,, the number of programs presented'land the frequency of scheduling depends upon the licensee's responsible journalistic i-r1gment. Inevitably, the only recourse must be spot annou!ncemc-:+;:;, and the Co,;:-jmission sug oests as much when it indicates thalt. a stVation may dischai°ge its responsibility "by presenting each i:eelc, in addition to appropriate news reports or other prograi,~--iiingg dealing with the subject, a nuzm'ber of public service announcements of the American Cancer Society or P1EG1r, in this field." Broadcast treatment of the cigarette health issue should not be reduced to a contest of opposing spot announcements, endlessly repeatin~; the rriessage ),ong after any n:ember of the public has bleeni able to understand and act on, it if he wishes. This is the first time that the Commissi:onihas held that the fairness dioctrine requires that the public be propagandize.d even after it has been enlightened. In short, the result of analogizing, product advertise;iient . to the r`d'.iscussion" co:~:prehended" by the fairness doctrine is to convert the responsibility to discuss both sides of controversial issues into presentations very similar to product advertising. The Banzhaf ruling does not mea°,ely conflict with the fairness doctrine objecti:ve of encouraging a meaningful d'iscussion of controversial public~issues. It also severely impairs the exercise of licensee jucigment in the selection and pre- sentation of prograans dealing with such issues. A~s the Com.- mission, has stai:;ed in its Fa_irness Primer, and hzs repeatedly emphasized,, th~edoct.rine calls utpon~ thee licenisee r„to ma~lcereasonable jud-ments in good f aiith onithe facts inieach situationi-- as to whether a controversial issue of public importance is involved,, and as to what viewpoints have been or

-7- should be presented, as to the format and spokesmen to present the viewpoints and all of the other facets of suchi programr?ing.'r Furthermore, "Zn passing on any complaint in this area, the Commission's role is not to substitute its jucRgrnent for that of the licensee as to any of' the above progra!mrr,ing decisions ...." Nowl, hoi•rever,, Commission fiat is substituted for licensee judigment;. There must be balancing programming "each week," and'' the Commi ssion even suggests just what progl:amming t-rill suffice to achieve this balancing, namely public se3~~~~vice announcements of another governmental agency, HEW, or of the AmericaniCancer Society. In this connection ti:e vrould' poin'¢ out that in the recently dec.i'ded'Red Lion case the court„ in finding that the fairness doci;riiie does not affront the First Amendnient, stated: "Mor, over, petitioners: are not furnished with a man~- datory, program format, nor does the Doctrine which, iif any, controversial issues are to be ~":e subject of' broadcasting. The latitude of pet_i_t-:i:oners' operation of their station insofar as progre:mir:i;ng is concerned is 1im2tedi only by petitioners' discretion and good faith judgtment. " hFe respectfully suggest that the Co:rmiissionihas departed from, its traditional case-by-case approach to fairness issues. A 'lper se" approalch to fairness matters -- such as an arbitrary rule thaut all c_igarette commercials must be balanced by some proportional amount of'other program material dealing with the health hazards of cigarette smok:ing, ---- is bound~to result in inequities and create extraordinary operating dilem.mas for broadcasters, a.nd' resulting administrative dlilemm«s for the. Commission. Some of the difficult questions,that are boundi to arise are listed belowi: a) liou is a, proper ratio to be struck between minutes of cigarette commercials and minutes of other program matArial on cigarette smoking? While the Commission has said that no "'equal time" principle is applicable, it has suggested that other program material be broadcast „weekly. °' Already newspapers and, trade publications have carried informal inter- vies•is with Coramission personnel: intimating that certain ratios, such as 3 minutes of commercials to;one minute of other material, would b~e proper. But any such ratios are boundd to be arbitrary and! unsatisfactory. Since the Co;n-mission appear s to believe that the repetition inherent

in cigarette co.?rcerci.als affects the degree to which they "advocate" smoking, 3_t •Would follow that the repetitive effect of other pro~rammaterial would' trave asimi;lareffecton thedev_reetovrhi'chthey advocate not sinoking. But the content of a program or com-- mercial is at least as important in measuring its ad- vocacy on a controversial issue as its length or frequency. It is go:ingto be impossible for stations or for the Commission to strike any kind' of satisfactory balance by counting frequency or minutes. b~~)~ If a~ station de~ci~de~~s~ to limit the~ number of~ cigarette commercials it carries, how are choices to be made arron~, the varibus competin~; brancls~ c) If the Cominission's ruling , stands, the impact of smoking on health will become the must significant public issue on t+.hich broadcasters will regularly bee presentit:io, broadcast material. It need hardly bee suE,;F;estedi that,, important asth~e issue iJs,it does not deserve this degree of pror~Anence. In the health field alone, there are numerous issues 'equally as important. Many other nati onal; and international issues vie for and receive attention from conscientr_ouss broadcast licenseeS. Their allocationof time to the broad' ranoe of important public issues will suffer if their acceptance of product advertising is held to impose a strait-j'aclcet on their freedlom of selection of controvCrsial isUues. di) Should a station discharge its responsibilities by carrying , "canned" public service announcements prepared'by others, dealing with the hazards of smoking, or, sholuld it exercisei_ts oi•nn independ.entjluldgmenit by preparing its orrn materials analyzing all sides of the problem? 4lould a prograr;i setting, for°th both the sc=i.entifi c evidence tending to suppox°t the existence of a health hazard, together with a discussion of the gaps a:nd

weaknesses in such evidence and of the benefits people believe they dei:ive fromsmoltiing, be unacceptable because it is too balanced to offset the effects of cigarette.. commercials?' The Commission's suggestion that stations should carry HEW and~A?nerican Cancer Society announcements comes very close to prescribing the content of li.censee programs* and may indu!ce many stations to play safe by doing, what the Comrn:ission, wants. Any such loss of licensee independence in presenting controversi'al issues would be most regrettable. e)' If' the Comrnission."s ruling stands: it canniot be limited to cigarettes alone and the foretoing consequences can: be exacerbated: There is no valid logical reason for such. limitation . It cannot be grounded on the existence of Congressiona.l' findings as to the element of hazard in use of the product,, because such findings have been made in other cases -- notably and most recenL l- auto- mobiles., There would,, further, appear toben_: f* valid distinction in logic between.products that are the object of explicit Con;ressiona l action and products that are regi?l'a:ted': by administrative agencies under a Congressional delega:taon of authority. Indeed, ini Sam Morr2s„ supra, the. Commission felt that the deeply held convictions of a significant number of persons in a given area cou.ldi make. a'"rouztine advertising 'plug" a cause of controversy. Thuis,, it is not overly speculative to anticipate ani extension of' the Commission's ruling,, if it be allo;•ied to stand ini its present form, to au tomobiles ,, f ood and drug products,, insurance, mutual fund's --- conceivably even children's toys. This further extension could only magnify the conseq,uenczs that we have previously seenn must follo,:i, in. terms of distortion of licensee j udgment and overburdiening of licensees' ability to choose among the topics and issues to i.~hich they i-rill allot public service time. ' ~~ Indeed, a~ prime~ justification given b;y~ th~ie~ Conimis~~s~.io~ni for the ruling and its suggestion that F~E!,~ arrnouncem~ents be carried' is that its action "'raust be tailored' so: as to carry out"° a Congressional_ d'ecisi'.on to appropriate funds o t~o~~ support YI1U,~~"s extensive sraoking ~, educationi . campaigns.

--10 - The Commissiom's letter also refers to the Cigarette Labeling and Advertising Act of.1965:. Since Congress there reserved~ to itself'the determination of'what furthe restrictions on cigarette advertising would be proper, it appears to us that the Commission is, through an unwarranted extension of' thee fairness doctrine, injecting itself into an inappropriate area. With the adoption of the Federal Cigarette Labeling,and'Advertisin,g Act of 1965 the Congress made its finding that cigarette sr,lolt~ing, may be hazardous to health and' required the cautionary legend onievery pack of cigarettes. The Congress further,, as the Comnrission's, ruling notes, considered req,uiring the inclusion of a warning of potential hazards to health in alll advertising of cigarettes, but such requirement was not included in the reported'bill because it was felt that "at the present time the necessity for, andthe effectiveness of, this requirement has notbeenidemonstrated." As we have alread'y pointed out th~e Commission itself stated to the Congress that it was "not in aa position! to make recommendations to the Congress in this field." Although.i it did notet:n~atanytreatm~entofcigaretteadvertising should be accomplished on an "across-the-board basis, rather than inia piecemeal fa.shion." The Congress recognized that it would be inconsist-ent with the objectives of the Act for manufacturers to be permitted to make~advertising claims, or conduct advertising,campaigns, which would tend to undermine the effectiveness of the cautionary statement on the package, andthe committee reports specifi.cally enj oin the Federal Trade Comrnission to treat as false and misleadling,, andi an.unfair or deceptive act or practice within the meaning of Section 5of the Federal Trade! Commission.Act, "'any advertising %•~hich tends to negate the warning, which must be placed on the package ...it', During thep~eriodin:e whieh theFederal Trade_Commissio_n is prevented by the terms of ftie Labeling Act from requiring a health statement in cigarette advertising (and all other Federali, State and local agencies are denied~ authority to do so by a clear statement of "preeiaption") the Federal Trade Commission is continui'ng,t~o monitor current practices and methods of cigarette advertising and promotion, and has stated * H. Rep. 449, 89th Cong.,, l.stt Sess-,, p. 5; see all!so, S. Rep. 195, 89th Con~.,, lst Siess.,, p. 6.

that it will take "'a1l appropriate action consistent with that Act (The Labeling Act) to prohibit cigarette advertisi:ng that violates the Federal Trade Commission Act."' The Corunission's ruling, omits any mention of this aspect of the Congressional action,,which delineates the problem raised by Mr. _B'anzhaf's complaint in a considerably different light. If the com.mercials of vrhich: Mr. Banzhaf complains, or cigarette commercials p~er se, violate the strictures expressed by the Congress and the Federal Trade Commission then a serious questionlof an entirely different nature might be presented, but we do not believe that the commercial announcements broad- cast by WCBS-TV are defective in this manner. In.vieti-riof the express concern of the Congress with the possibility that advertising for cigarettes could'be so conducted as to undermine the effectiveness of the cigarette package warning label, and in view of'the Congress' adoptionn of specific measures to meet this concern, it i~s reasonablee to think that had~the Congress wished more to be done in this area, by way of educational campaigns or otherwise,, the legis- lative history would so indicate. We are not clear whether the Commission's letter to WCBS!-TV is intended to represent any kind of'order ti•rith respect to the licensee's programming. The letter concludes that "the question remains whether in the circumstances a sufficient amount of time is being allocated each week to cover the viewpoint of' the health hazard!posed by smoking." It then states that in the light of the letter the licensee "may, make the judgment whether suff icient time is being alloicated' each week in this area." For the reasons set forth ab~ove, it is our opinion as licensee that we are fully and responsibly discharging our obliigation: to present both sides of controversial issues,, including,the health hazard posed by ciga'i°ette smoking. We further believe that our performance in discharging this obligation must be measured primarily by the content of'our programs, and not by any arbitrary counting of'minutes, measure of frequency, or any similar standard. We see no need for changing our present policy and do not interpret your letter as an order, d!emandi or suggestion that we do so. ~ Federal Trade Commission, Order, "Vacation of j•larniin g Requirements in Trade Reg}alation R'u1eConcerning Advertising and' Labeling of Cigarettes," 30 Fed. Reg. 91IS11-9485 (1965).

_12- We believe that the question of'whether a licensee is responsibly complying with the fairness doctrine cannot be resolved by per se guidelines, ratios or other rigid rules, and':that any eff ort to dolso would raise serious constitutional as well as practical issues. 11e believe such ques.ti.ons can only be resolvedion a case--by-case basis after a detai].ed analysis of the licensee's performance. We believe that the performance of td'C;3S-TV as to cigarette smo?cing, as well a.s other controversial issues, will vrithstandsuch an examination. Very truly yours, ~ Leon R'I. £iroo~l:s