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. % ' 1.^,162 i'L l1f il/'iL CO[`MilUi~'Ih(i) fU~!~ ~0i1li,~lSS1Q11 I irCC 67-10291 APPLICABILITY OF THE FAIRNESS DOCTRINE TO CIGARETTE ADVi:R- TiSING• Meniorandum Opinion and Order In the matter of Television Station WCBS-TV, New York, N.Y., RM-1170; FCC 67-1029. 1. The Commission has before it for consideration: A "Petition for Rulemak- ing" and a"Petition for Stay of Effec- tiveness of Application of Fairness Doe- trine to Cigarette Advertising," filed on June 20, 1967, by the law firm of Smith, Pepper, Shack and L'Heureux on be- half of various broadcast clients; a letter dated June 23, 1967, from Columbia Broadcasting System, Inc. (CBS), re- questing reconsideration of a ruling in the Commission's letter of June 2, 1967, to television station WCBS-TV; a"Pett- tion for Reconsideration" and a "Petition for Immediate Stay of Effectiveness Pending Reconsideration by the Coin- mission," filed on July 3, 1967, by the National Association of Broadcasters (NAB) ; a letter from Association of Na- tional Advertisers, Inc., dated June 29, 1967, requesting reconsideration of the ruling; petitions for reconsideration Incorporating requests for stay, filed by the Tobacco Institute, Inc., et al., and WGN Cotninental Broadcasting Co., et al., on June 30, 1967, and July 3, 1967, respectively; and petitions or requests ~ for reconsideration filed on July 3 and 5, 1967, by American Broadcasting Co., Inc. (ABC), National Broadcasting Co., Inc. (NBC), Storer Broadcasting Co., Griffin-Leake TV, Ir.c., et al., the law firru of Dow, Lohnes and Albertson on be- half of 17 broadcast licensees, and the law firrn of Pierson, Ball and Dot, d on behalf of the licensees of 61 radio and television stations. A petition for recon- sideration was filed on August 1, 1967, by the Maryland/District of Colurnbia/ Delaware Broadcasters' Association; and a "Statement of Position by Federal Communications Bar Association" on July 27, 1967.1 Requests for reconsidera- tion have also been received from several Congresslonal soiirces. A pl~ading in sup- port of the Commisslon's ruling has L::en filed by the complainant, John. F. Banz- haf III; his pleading challenges the staudil:g of the petitioncrs and marv of the argu:nents advanced, and urges de- nial of the relief sought.2 Petitioners seek rule making on, and recon.sideration and rccission of, a ruling In the Commission's letter of June 2,1967, to television Station WCBS-TV, New York City, that the Fair- ness Doctrine is applicable to cigarette advertising (FCC 67-641), and a stay of the eflectivelSess of the ruling pending action on their petitions. I In r.•.ldition, the Commivlon has recelved various resolutions from S:ate a~sociations of brc•:!dcasSe:s and numerous letters from the public. 2 We do not find the arguments raised s.3 to petitioners' standing persuzsive. t•:OTICES 2. Our ruling (FCC 67-641) vras mnde on a complaint against Station WC13S- TV, New York, by Mr. John F. P.anzhaf iII, who asserted that this station, after having aired nunlerous comercial ad- vertisements far cigarette manufactlu'- ers, had not afforded him or some other responsible spokesman an opportunity "to present contrasting views on the Issue of the benefits and advisability of slnok- ing." Specifically, he noted three ciga- rette advertisements broadcast on No- vember 24, 1966, over WCBS-TV which presented smcking as "socially accept- able and desirable, manly, and a neces- sary part of a rich full life." Attached to the complaint was a letter by Mr. Banz- haf to the station requesting that free time be made available to "responsible groups" roughly app roximate to that spent on the promotion of the "virtues and values of smoking." There was also attached a reply to Mr. Banzhaf by WCBS-TV setting forth the programs which It had broadcast on the effect of smoking on health, taking the position that these pro; rams provided contrast- ing viewpoints on this issue, and stating its view that the Fairness Doctrine may be Inapplicable to commercial announce- ments solely aimed at selling products. In Mr. Banzhaf's complaint, he asserted that the WCBS-TV showing of compli- ance with the Fairness Doctrine was in- sufl-1cient to offset the eftccts of advertise- rnents broadcast daily for a total of 5 to 10 minutes each broadcast day. 3. The Comnlission ruled that the Fair- ness Doctrine is applicable to cigarette advertisements, but rejected Mr. Banz- haf's claim that the time to be afforded roughly approximate that devoted to cigarette commercials. We held that a station which carries commercials pro- moting the use of a particular ci-garette as attractive and enjoyable Is required to provide a significant amount of time to the other side of this controversial issue of public importance-i.e., that however enjoyable, such smoking may be a hazard to the smoker's health. We stated that here, as in other areas under the Fair- ness 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 fact s of his situation; and that accordil,gly the initial judgment as to whether sufficient time is being allocated each week ht this area by WCBS-TV Is one for the licensee. 4. By a letter to the Commission dated June 23, 1967, CBS requests that the con- tents of Its letter be treated as the com- rrients of WCBS-TV on the complaint and that the Commission recons'.der its ruling on the basis of these comments. CBS does not request a stay of the ef- fectiveness of the ruling, but does challenge the merits of t•he ruling. 5. In support of their requests for re- lief, other petitioners urge that the rul- iny has broad implications and will affect all licensees carrying cigarette advertis- ing tbough they did not have.an oppor- tunity to be aoa.rd prior to its adoption. It is asserted that aubstant'al doubts as to the validity of the ruling are pre:>cntcd by the various requests for reconsidera- tion and other relict, and that licensees tviil not dare risk noncoznpliance pending action on these pleadings lest their non- compliance be raiscd at liccrlse renewal time. It is further as',crtcd that licensees would stifTer irreparable damage in the interim by temporarily adhering to the ruling because they would risk loss of substantial amounts of advertising rev- enue and compliance would disrupt sta- tion advertising policies as well as give rise to scheduling and production prob- lems. Consequelltly, petitioners state, fairness and an equitable administration of the Fairness Doctrine call for a sus- pension of the effectiveness of the ruling pending action on the petitions #or re- consideration and rule making. . 6. We agree that the ruling constitutes a precedent on an important issue which will affect licensees other than WCBS- TV and may necessitate a change in the operations of some. In view of the wide- spread interest in the ruling by persons who have not hitherto been heard, and since stay relief has been requested, we have decided to give expeditious con- sideration to the arguments made In all of the pleadings before us to determine whether anything has been advanced on the merits which would wa:Tant recon- sideration of our ruling, a stay of its effectiveness, or rule making In this area. The positions of the parties appear to be amply set forth In the pleadings on file, and we have given thorough considera= tion to the arguments made in reachinb our decision. For the reasons set forth below, it is the conclusion of this Com- mission that nothing has been advanced which would warrant reconsideration or a stay of our ruling or rule making. How- ever, in the circumstances, we have de- cided for reasons of equity that the con- duct of licensees (including Y/CBS-TV) in applying the Fairness Doctrine to cigarette advertising prior to the publi- cation date of this memorandum opinion and order (which we shall also mail to all broadcast licensees) will not be con- sidered in connection with their appli- cations for renewal of license; conduct subsequent to that date will receive con- sideration, in specific rulings where ap- propriate or at license renewal time. I. PETITIONERS' ARGUMENTS ON THE MERITS 7. The principal contentions presented on the merits of the ruling are: (A) That the Fairness Doctrine Is itself violative of the First and Fift.h Arnendrnents to the U.S. Constitution and hence cannot prop- erly serve as a basis for delineating licensee responsibilities under the Com- Tnunications Act; (B) that the Fairness Doctrine, even if constitutional, applies only to programing in the nature of ner,•s, commentary on public isstles, or editorial opinion, and does not extend to adver- tising; (C) that the Colilmission Is pre- cluded from applying the Fairness Ddc- trine to cigarette advertising because Congress has preempted the field and the Commission's ruling Is contrary to Con- gressional policy; (D) that cveri If the Fairness -Doctrlne properly applfes to cigarette advertising, the Commission has invalidly made a blanket rtiling that FEDEU.L REGISTER, VOL. 32, NO. 179-FEIDAY, SEFiE/.1BER 15, 1967 Ln O ..a 0) CJC. %G

`D I. . any cigarette advertisement pcr 5e pre- sents a controversi:0 issue of public im- portance, v,hereas no controversial Issue of public importance can be presented ,wherc a lawful business is advertising a lawful product and,ln the absence of anY health claim in the commercial or afiirm- ative discussion of the health issue, there is no viewpoint to oppose; (E) that the requirement that a siguificant afnount of time be allocated cach week to cover the viewpoint of the health hazard posed by smoking and the suggestion that a licen- see might, Inter alia, present a number of public service announcements of the American Cancer Society or the Depart- ment of Health, Education, and Welfare, will cause a debascnlent of the-Fairness Doctrine generally and substitute Com- mission iiat for licensee judgment; (F) that the ruling cannot logically be limited to cigarette advertising alone; (G) that the ruling will have an adverse financial effect upon broadcast licensees by caus- ing the cigarette Industry to turn to other advertising media and will also have an adverse effect on the sale of cigarettes; and (H) that the ruling is in any event procedurally invalid for failure to accord interested persons an opportunity to be heard prior to the lssuance of a novel and unprecedented policy determination. We shall carefully examine each of these contentions below and set forth 1n full our reasons for concluding that they lack merit. . A. CONS1'ITUTIONALITY OF FAIP,NESS DOCTRINE 8. Those parties claiming that the Fairness Doctrine Is violative of the First and Fifth Amendments to the Constitu- tion Incorporate by reference their com- ments to this cf:ect In Doc)set No. 16574, In the matter of amendment of Part 73 of the Rules to Provide Procedures in the Yh•ent of a Personal Attack or Where a Station Editorializes as to Political Can- didates.' By a memorandum opinion and order released on July 10,'1967 In that docket (FCC 67-795), the Commission re- jected the contention as to the First Amendment. For the reasons and author- ities there set forth, we adhere to that determination hel•e' The Fifth Anlend- ment challenge -%Vas also rejected In Red Lion Broadcasting Co. v. Federal Com- munications Commission, Case No. 19,938 (C.A.D.C., decided June 13, 1967), and we I This contention is madc by the l:AB, the law firm of Pierson, Ball and Dowd, and WGN Continental Broadcasting Co., et al. The pet!tion for rule making fi!ed by Smith & Pepper states that 1t docs not address Itself to the question of whether Red Lion Broad- casting Co. v. Federal Communicatlons Com- mission, Case No. 19,938 (C.A.D.C., June 23, 1967), Is good law. - 4 Since advertising, although not a-ho:ly beyond the First Amcndment, enjoys less protection than other speech (See Murdock v. Pennsylvania, 379 U.S. 105, 110-111; Valen- tine v. Chrestenson, 316 U.S. 62, 54; Dfartin v. Struthers, 319 U.S. 141, 142, note 1; Beard v. Alcxandrla, 341 U.S. 622, 641-643), the Commission's power to rc•gulate advertising by radio may, Indeed, be broader than it is T4OTICES see no valid distinction in the c•ircunl- stances of this matter ` B. SCOI'E OF FATGNESs DOCTP,INE 9. In contcndhlg that lhc fairness Doc- trine does not apply to advertising, the parties argue that the doctrine had its genesis in the 1949 Report of the Com- mission in the matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246, which was meant to apply only to dis- semination of news, commentary on pub- lic issues, and editorial opinion because it contains no refe.ence to advcrtising. It is furthef urged that no mention of advertising was made in the 1964 Fair- ness Prinler, 29 F.R. 10415, and that the Commission has never interpreted the doctrinc as applying to advertising. In addition, it is asserted that Congress, in giving specific approval to the Fairness Doctrine as a basic delineation of a standard of public Interest in broadcast- ing In the 1959 amendment of section 315 (a) of the Communications Act, 73 Stat. 557, 47 U.S.C. 315(a), limited the scope of the doctrine to programing of that nature since it did not amend sec- tion 317 of the Act to incorporate a simi- lar provision. It follows, the parties state, that the present ruling is an unprece- dented extension of the Fairness Doctrine which is beyond the Commission's discre- tion or statutory authority. 10. We do not find these arguments persuasive. The Fairness Doctrine has Its foundation In the obligation imposed on licensees by the Communications Act to operate in the public interest (see discus- sion, infra, par. 64), which includes the "basic policy of the 'standard of fair- ness' " and the "broad encompassing duty of providing a fair cross section of opin- ion in the station's coverage of public affairs and matters of public contro- versey." H. Rept. No. 1069, 86th Cong., 1st sess., p. 5; S. Rept. No. 562, 86th Cong., 1st sess., p. 13; section 315(a) ; 1949 Report on Edit.orializing, 13 F.C.C. 1246, 1248-1249. That "one of the basic ele- ments of any such operation" (13 F.C.C. at 1248) Is a recognition by the licensee of "the right of the public to be in- formed" (13 F.C.C. at 1249) as to "oppos- ing positions on the public issues of Interest and importance in the com- munity" (13 F.C.C. at 1258) when t•he licensee Is presenting programing 1n the nature of news, commentary on public Issues, or editorial opinion, does not mean with respect to programing. See B'ead v. Board of Examiner, 374 U.S. 424, 430--431, 437-441 (advertising), and cf. Farmers Union v. «'DAY, 360 U.S. 525. 529-530 (political broadcasts) • Hgnry v. Federal Communica- tions Commisslon, $02 -F. 2d 191, 194 (CJ,D.C.), cert. den. 371 U.S. 821 (enter- tainment). ' Insofar as it is asserted that due process has not been accorded, we believe that our extensive consideration of the pleadings filed since the ruling meets the requirements of due process In view of the nature of the issue and the arguments relating thereto (see pars. 55-58, infra). The conduct of licensees prior to the publication of this memorandum opinion and order will not be considered ad- versely when the question of renewal of license arises. • 113163 that the liccnsee is rcliel•cd of his statu- toly responsibility for advertising broad- cast over his facilities or his overall duty to operate in the public interest and to make a fair presentation of conta•over- si;tl Issues of public Importance in what- ever context they may arise. Section 315(a); 1949 Report on Editoriali•r.ina, 13 F.C.C. at 1257-1258. Moreover, the clr- cunlstance that Congress specifically incorporated In the Fairness Doctrine into the 1959 amendment to section 315 - to make it "crystal clear" that the pro- graming exemptions from the equal time requirement of that section did not exempt licensees "from objective- pres- entation thereof in the public Interest" does "not diminsh or affect in aily way Federal Communications Commission policy or existing law which holds that a licensee's statutory obligation to serve the public interest 1s to iuclude the broad encompassing duty 'of providing a fair cross section of opinion in the sta- tion's coverage of public affairs and matters of public controversy." S. Rept. No. 562, 86th Cong.; 1st sess., p. 13; 105 Cong. Rec. 14439' Most important, the amendment refers to the obligation im- posed upon broadcast licensees" ' ' • under ihfs Act to operate In the public interest and to afford reasonable oppor- tunity for the discussion of conflicting views on issues of public Importance" (emphasis supplied). - 11. The Commission's present ruling that advertising falls within the public interest responsibilities of a licensee is not a novel or unprecedented policy de- tel:mination. See concurring opinion of P.4r. Justice Brennan In Head v. Board of Examiners, 374 U.S. 424, 437-441. This opinion sets out in detail the administra- tive and other pertinent history estab- lishing the pattern of Commission regu- lation In this area. See paragraph 13, Infra. 12. The Commission has always di- rected itself particularly to programing and advertising which bears upon public health and safety. The Federal Radio Commission denied a renewal of license to a station which broadcast a "medical question box" devoted to diagnosing and prescribing treatment of illnesses from symptoms given in letters from listeners, and which received a rebate on @acb pre- scription sold. KFKB Broadcasting As- sociation v. Federal Radio Commission, 47 F. 2d 670, 671 (C.A.D.C.). The Radio Conlmission he)d, v.-ith judicial approval, that "the practice of a physiciall's pre- scribing treatment for a patient whom he has never seen, and bases his diagnosis upon what symptoms may be recited by the patient in a letter addressed to him, 0 Given the background to the 1959 amend- ments (see Iled Lion Broadcasting Company v. Federal Cornmunications Commission, supra), we are unable to see any significance In the fact that Congress did not also amend sec. 317 to incorporate the Fairness Doctrine expressly. In any erent, as stated, the absence of a spccific reference to the Fairness Doc- tri,ne In sec. 317 does not show a lack of Commission aut3ozity under the general provisions of the Act. FEDERAL P.EGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEMBER 15, 1967

13164 is inimical to the public health and safety, and for that reason is not in the public interest." Id., at 671-672. The Communications Commission has simi- larly condemned advertising of alle°ed medical prescriptions and quack reme- dies which were deemed inimical to health, and granted renewal only upon assurances that such broadcasting would be discontinued. Farmers and Bankers Life Insurance Co., 2 F.C.C. 455, 457-459. The Commission stated that "[a] broad- cast station carrying such programs should be held to a high degree of re- sponsibility, affecting as they may the health and welfare of the listeners, and careful Investigation of such products, and of the claims made therefor, should be made before they are advertised over a broadcast station." 2 F.C.C. at 458. See also WSBC, Inc., 2 F.C.C. 293, 294-296, and Oak Leaves Broadcasting Station, Inc., 2 F.C.C. 298 (both involv)ng ad- vertising of quack medicines by one not licensed to practice medicine). The Com- mission has also applied the Fairness Doctrine to products such as Krebiozen and to the health issues Involved in Carl- ton Fredericks program, "Living Should be Fun." See 33 F.C.C. 101, 107 (1962).' 13. Mr. Justice Brennan, in his con- curring opinion In the IIead case, 374 U.S. at 439, noted that: ••• As early as 1928, for cxample, the General Counsel of the Radio ConLmisslon held that abuses in network cioarette ad- vertising-while not a sufricient bas:s for rev- ocation proceedings against an Individual ]tcensee-might on renewal ntilitate against the requisite finding of broadcasting in the "public interest." The opinion also notes (n. 15) that: Shortly after the Issuance of the General Counsel's opinion, the Chairman of the Fed- eral Radio Commission.was asked by Senator Dill during his appearance before the Senate Commerce Committee whether l:e thought the Commission had suficient pov:er "through its power of regulation and its de- termination of public interest to handle objectionable advertising?" The Chairnian replied, "I think so, Senator Dill, because we have had little trouble about It, even with- out direct power. •••"• Hearings before Senate Committee on Interstate Commerce on S. 6, 71st Cong., ist sess., pt. 6, p. 230. See also'Hearings before Senate Com- mittee on Interstate Conlnlerce on S. 6, 71st Cong., Sst and 2d sess., pp. 88-89. The paa~ticular complaint leading to the General Counsel's opinion charged, inter alia, that "tile object of this broadcast- ing is to transform 20 million adolescent boys and girls into confirmed cigarette addicts by creating a vast child market for cigarettes in the United States," that _"10 million boys throughout the country are being viciously and deliberately mis- led by paid testimonials, secured from professiollal athletes, football coaches and others, de.finitely suggesting the use I As further administrative background in this area, see In re petition of Sam l.forrls, 11 FCC 197 (1946), where the Comrnission indicated the applicability of the Fairness Doctrine to advertising In certain situations. NOTICES of cic_,•arcttes as an aid to physical prow- cs.s; ' tlrat "the mEtliall opinion of the country is being Colltiiluou:ly IniSrepl'C- sented to support the health and medical claims made for cigarettes; " that the spe- ci;ic claims made for a particular brand of cigarette advertised on the air are overwhelmingly opposed by established health and mcdical facts," .and that "Such radio activities, the petitioner maintains, are clearly contrary to pub- lic Interest, public welfare and public health." Opinion. No. 32, 1928-1929 Opinions of the General Counsel, Fed- eral Radio Commission, 77, at 78 (Apr. 15, 1929). General Counsel Bethuel M. Webster, Jr. concluded that the "Com- mission may find, in view of this show- ing, that public interest, convenience, and necessity will not be served by further renewal of the licenses In qucs- tion, in which case the matter will be set for hearing pursuant to section 11, and petitioner's prayer for general relief will be granted: " Id., at 82. 14. In short, we believe that the licen- see's statutory obligation to operate In the public interest includes the duty to lllake a fair presentation of opposing viewpoints on the controversial issue of public importance posed by cigarette ad- vertising (i.e., the desirability of smok- ing), that this duty extends to cigarette advertising which encourages the public to use a product that Is habit forming and, as found by the Congress and Gov- ernmental reports, may In normal use be hazardous to health; and that the licensee's complianpe with this duty may be examined at'license renewal time (see 1960 Programing Policy Statement, 20 Pike and Fischer, Radio Regulation 1901, 1912-1913). It Is our belief that the pub- lic interest standard and Fairuess Doc-. trine embodied this principle from their inception. In any event; even assulning the contrary, ,ti'e think 'that the Com- mission clearly has the statutory author- ity to make this public interest ruling and to extend the Fairness Doctrine, to cigarette advertising at this time. While the agency's position as to what the ob- liga#ion to operate in the public Interest requires for cigarette advertising may have f:uctuated over the years sillce 1929, the exercise of such authority In the present circumstances is plainly reason- able. Corisidering the 1964 Report of the Surgeon General's Advisory Committee, the establishment of the National Inter- agency Council on S.noking and Health and the enactment of Cigarette Labeling and A(h°elt,ising Act (Public I3w 89-92, 15 U.S.C. 1331 et seq.) in 1965, and the recent Reports to Congress.by the Fed- eral Trade Commission and the Depart- ment of Health, Education, and Welfare pursuant to that Act, it is not an abuse of discretion for the Commission to de- cide now that a licensee who presents programing and advertising which en- courages the public to form this habit potentially hazardous to health has, at the very least, an obligation adequately to Inform the public as to the possible hazard" See infra, paragraphs 30-32. Nothing that Is presentcd In the exten- sive pleadings riled in this matter con- vinces us that petitioners should prevail on their position to the contrary. C. COMPATIBILITY WITH THE CIGAIIETTE LASr.LIiQG ACT 15. Petitioners further urge that Con- gress in the Cigarette Labeling and Ad- vertising Act of 1965 (Public Law 89-92, 15 U.S.C. 1331 et. seq.) preempted Fed- eral, State, and local activity to compel health warnings in cigarette advertising, and that the Commission's ruling is not only inconsistent with that policy but lies also in an area where Congress has with- drawn authority. On the basis of our analysis of the provisions of the.Labeling Act and Its legislative history, we agree that no Federal or State body could le- gally adopt regulatory measures which would require either a cessation of cig- arette advertising or the inclusion of a health warning in the advertisement it- . self. We nevertheless believe, for the reasons set forth below, that our ruling that broadcast licensees presenting cig- arette advertising must otherwise Inform the public as to the potential health haz- ard, Is not precluded by the Labeling Act and is entirely consistent with the Con- ,gressional decision to promote extensive smoking education campaigns. 16. The Cigarette Labeling Act states that: It i~s the policy of the Congress, and the purpose of this Act, to establish a compre- hensive' Federal progranr to deal with ciga- rette labeling and ach•crtlsing with respect to any relationshfp between smoking and health, whereby- (1) The public mrty be adequately in- formed that cigarette smoking may be haz- ardoi4s'to health by inclusion of a warning to that e7ect on each package of cigarettes; and (2) Commerce and the national economy may be (A) protected to the maximum ex- tent consistent with this declared policy and (B) not lmpeded by diverse, nonuniform, and confusing cigarette labeling and advertis- iug regulations with respect to any relation- ship between smoking and health. ' The Act thus requires the labeling of cigarette packages with the statement: "Caution: Cigarette Smoking May Be Hazardous to Your Health." The Act also does the following: (1) Makes It ulllaw- ful for any person to manufacture, ini- port, or package for sale within the Unit- ed States any cigarettes which do not bear the above-mentioned st.atelilent on the package. Violation of this require- ment Is made a misdemeanor subject to a fine of not more than $10,000 (sec. 4, 6) ;(2) prohibits the requirement oi any • It has long been recognized, of course, that "the Commksion's vlew of what Is best In the public interest may change from time to time. Commissions themselves change, - underlying philosophies differ, and expcri- ence often dictates clranges"- Pinellas Broadcasting Co. v. Federal Communications Commission, 230 P. 2d 204, 206 (C.A.D.C.), cert. den., 350,U.S. 1007. FEDaAI REGISTER, VOI. 32, NO. 179-FRIDAY, SEFTEASBER 15, 1967

iJO1ICES , other cautionary st.atcmcnt on the l.^.bel- ing of cigarettes under laws adminis- tercd by any Federa l, State, or local authority (seo. 5(a)), and prohibits, for 3 years, any requIremel:t by any Fcderal, State, or local authority that c:isarette advertising include a statement rclating to smoking and health (seo. 5(b) ); (3) st,iites that the Federal Trade Connnis- sion has no authority to require any cautionary statcment In any advertise- ment of cigarettes labeled in conformity with the Act, but otherv: ise neither limits nor expands the authority of the FTC with respect to the dissemination of false or mis)eading advertisements of ciga- rettes (sec. 5(c) ) ; (4) permits injunc- tions to be obtained to restrain violations of the Act, and provides an exemption for cigarettes manufactured for export from the United States (sec. 7 and 8) ; and (5) requires two Federal agcncies to t.ransmit reports to Congress before July 1, 1967, and aluiua)ly thereafter: (a) The Secre- t.ary of Health, Education, and Welfare concerning current information on the health consequences of smoking and rec- orruncndations for legislation and (b) the Federal Trade Conulassion concern- ing the effectiveness of ci.-arette adver- tising, current practices and methods of cigarette advertising and promotion, and recommendations for legislation. 16a. Section 5-the portion preempt- ing Federal, State and local activity to compel health varniligs in cigarette labeling and advertising-provides- in subsection (b) : No sts,ternent relating to emoking and health shall be rec,uired in the advertising of any cigarette the pr.ckages of which are labeled in conformity with the provisions of this Act. It Is -clear from the wording of this section that neither the FCC nor the FTC could require cigarette advertise- nients to contain statements of health warnings. However, this does not mean that the FCC or the FTC cannot regulate in other respect-s concerning smoking and health. The section does not read, as petitioners Nvonld have it, that no statement by others Interested in in- forlning the . public of the potential hazard from smoking may be required "because of the advertising of any ciga- rette"-i.e., not In or adjacent to the advertising but at some other time pe- riod, by others or the licensee, because the advertising has presented but one face of this important issue to the pablic. Moreover, although the Senate debate on the Labeling Act. Is not wholly clear In this respect' the House debate indi- cates that the FTC is still free to regulate with respect to misleading or deceptive advertising concerning smoking and health under section 5 of the Federal Trade Commission Act." For examnle, if an advertisement said that cigarette smoking v:as not a health hazard, the FTC could act to prevent such advertis- ing. The Chairman of the House Com- merce Committee explained t that the Labeling Act did not purport to change • 111 Cong. Rec. 15597-15598 (1965). 10 111 Cong. Rcc. 16541-16544 (1965). the prcceut authority of the FTC, only to limit that atithority with respect to compulsory inclusion of statements e.olt- cerninl; smol:ing and health in cigarette lnbels and advertising" S:e scction 5(c) of the Act. The FCC's regulatory author- ity was not discussed in the committee reports on the proposed legislation or in the legislative debates. Nevertheless the background and legislative history of the I,abcling Act furnish some basis for judging what Impact, if any, that Act has on the FCC's authority in this field, particularly under the Fairness Doctrine. L.EGISLATIVE IIISTORY 17. The pertinent background to the 1965 Act is set out In Appendix A. We turn here to the relevant le-dslative his- tory. Prior to 1964 a number of bills had been Introduced wit•hout enactment by Congress In an effort to compel cigarette manufacturers to acquaint the public In various fashions with the health hazards of smoking. With the Advisory Commit- tee's Report as a catalyst, many bills were Introduced during the second ses- sion of the 88th Congress embodying several approaches to acquaint the pub- lic with the hazards of smoking: (1) To require that cigarettes sold in Interstate commerce be labeled with a health warn- ing, and/o.r with a disclosure of nicotine and tar content (H.R. 4168; H.R. 7476; H.R. 9693); (2) to confer on the FTC the power and duty to regulate adver- tising and labeling of cigarettes (H.R. 9655; H.R. 9657; H.R. 9808; S. 2429); (3) to amend the Federal Food, Drug and CosmeticAct so as to make that Act applicable to smoking (H.R. 5973; H.R. 9512) ;(4) to provide for Informational and. educational campaigns by HEW to acquaint the public with the health haz- ards involved in the use of cigarettes and to provide for continued research in this field (H.R. 9668; S. 2430) ; and (5) to enjoin all Government agencies, etc., from taking any action or pursuing any policy which encourages or promotes the public to buy or use cigarett.es (S. 2430). 18. As a result of the submission of these bills, Chairman Harris conducted hearings from June 23, 1934, through July 1, 1904, before the House Commerce _Committee concerning possible action by Congress. The purposes of the hearings were to review the scientific evidence of the causal link between smoking and cancer and, if Federal action n•as found to be required in the interest of public health, to - determine what approach Nrotild be most desirable. Chairman Har- ris commented later that the closing days of that session of Congress had not per- mitted sufficient time for further hear- ings and for the preparation and con- sideration of carefully drawn legislation in this field. These hearings before the House Commerce Committee -%sere the only hearings conducted on the subject of cigarette labeling and advertising by either side of Congress during the sec- ond session of the 88th Congress. ' 19. Legislative activity resumed in the first session of the 89th Congress with 11 Remarks of Chairman Harris, 111 Cong. Rec., p. 16544 (1965). co:lrWcrat.lon of bilis three basic rqr,lroaches to the smol:inL hca)l1I h: •r.ard problem: (1) To anicnd the I'cderal Food, Drug and Cosmctic Act to ret'ulat.c smok- in(: products (H.)t. 2248); (2) t<, provide for a health warning and/or nicotine and t.ar conlont on the )abel of cii,r.rette pac):- a~res (S. 559; H.R. 3014; ILR. 4007; H.It. 7051; H.R. 4244) ; and (3) to give the FTC the power and duty to regulate ad- vcrtising and labeling of cigarettes (S. 547). Both the Senate and the House Commerce Committees undertook hcar- ings to determine the state of the medical evidence for and against the causal link betwcen smoking and diseasc and to determine v.hat Federal action, if any, should be required in the public interest. With regard to these questions, the Sen- ate Committee concluded (S. Rept. No. 195, 89th Cong., 1st sess., p. 3) : \Vhtle there rcmain a substantial number of Individual physicians and scientists-the Commerce Committee received testimony from 39 of them-who do not believe that it has been demonstrated scientificaliy that smokfng causes lung cancer or other diseases, no prominent medical or scientific body, undertaking a systematic review of the evi- dence has reached conclusions opposed to those of the Surgeon General's Advisory Com- mtt tee. The Commerce Conunittce, therefore, con- curs in the judgment that "appropriate remedial action" Is warranted. The House Colmnittee was unwilling to conclude for or against the medical opinions embodied in the Advisory Com- mittee's Report or the medical evidence elicited by its own hearings. Hovrever, It did conclude that Congressional action should be taken with regard to the rela- tionship of sinoking and health _(H. Rept. No. 449, 89th Cong., 1st sess., p. 3). 20. As petitioners point out, Congress in enacting the Cigarette Labeling Act vrP.s concerned about possible economic impact on the tobacco and broadcasting industries, as well as the potential health hazard to the public. The House Report states (id., at.p. 3) : The determination of appropriate remedial action In this erea, as recommended by the Surgeon General's Advisory Committee, is a responsibility which should be exercised by Congress after considering aU facets of the problem. Tne problem has broad implications in the field of public health and health re- search, and involves potentially far-reaching consequences for a number of sectors of our "onomy. Thc entire tobacco raising and manufacturing industry, and the numerous businesses which marY.et tobFcco products are involved. Some proposals have been made in this erea which-might lead to severe curtaUing or the pcssible e:imination of cigarette sdvcrtising. This could have a serl- ous economic impact on the television, radio, and publishing lndustrles in the United States. 21. The conlpromise evolved by Con- gress was to require a health warning In labeling, but not in advertising, for an interim period pending a further Con- gressional determination as to whether extensive smoking education campaigns and Industry self-discipline would render such a drastic step unnecessary. The Sen- ate Report states (S. Rept. No. -195, 89th Cong.,lst sess., p. 5) : FEDERAL F.EGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEMBER 15, 1967

13iGG r;O1tcEs Considering the combined impact of vol- ment embodied In the Act (see par. 21, unt.:ry limitatlons on advertising under the sttpra). Cigarette Advertising Code, the eaten-lee smoking education campaigns now under- 23. As stated, our ruling accords with way, and the compulsory warning on the and Is tailored to the legislative policy package, which will be required under the embodied in the Labeling Act. In the provisions of this bill, It was the Commit- first place, the ruling does not require a tce's unanimous judgment that no n•:uning health warning in or adjacent to ciga- in cigarette advertising should be required rette advertising-a matter conling with- pending the showing that thesc vigorous, but In seetion 5(b) of the "preemption" less drastic, steps have not adequately alerted the public to the potential hazard from portion of the Act. Rather It leaves to smoking. the good faith, reasonable judgment of the licensee-upon the facts of his situ- The House Report similarly states that ation-the matters of the type of pro- the Cigarett.e Advertising Code and the granling, the nature of the time to be educaticnal and Informational programs afforded for the opposing viewpoint, and of HEW In combination with the Label- the amount of time to be allocated on a Ing Act made It unnecessary to Insert regularbasis. health warnings in cigarette advertising 24. Second, our ruling does not pre- as proposed by the FTC (H. Rept. No. 449, clude or curtail presentation by stations 89th Cong., 1st sess., pp. 4, 5) . The Label- of cigarette advertising which they Ing Act provides that the provisions choose to carry (see also, pars. 48-54, which affect the regulation of advertis- infra). We rejected Mr. Banzhaf's claim Ing shall terminate on July 1, 1969 (sec. that the time afforded for the opposing 10). The reason for specifying this termi- viewpoint should "roughly approximate" nation date was the expectation of Con- that devoted to cigarette advertising, not gress that before that date, on the basis only because the Fairness Doctrine does of all available information, including not reo-uire "equal time" but also in the that contained In the reports to be sub- belief that this would be Inconsistent mitted by HEW and FTC, it would re-___ vrith the Congressional direction in this examine the subject matter of the field provided in the Labeling Act. For, ~_,,Labeling Act, we recognized that the. "practical result CONCLUSION of any roughly one-to-one correlation 22. In light of the foregoing, It is our would probably be either.the elimination view that section 5 of the Labeling Act or substantial curtailment of broadcast was meant to preclude any requirement, cigarette advertising." We stressed that of a health warning in the advertising our action would be tailored so as to Itself, as proposed by the FTC rule (see par. 7, App. A), but there was no legis- lative Intent otherwise to foreclose the use of radio, along with other educa- tional media, as an effective means of In- forming the public to the potential haz- ard of smoking. The Fairness Doctrine has it.s reason for being In (1949 Report on Editorializing, 13 F.C.C. at 1249) : the par:unount rl.~ht of the public in a free society to be informed and to have presented to It for acceptance or rejection the differen,t attitudes and viewpoints con- cerning these vital and often controversial issues which are held by the various groups which make up the conununity. It is this ~ right of the public to be informed, rather ('than any right on the part of the Govern- l ment, any broadcast licensee or any individ- ual member of the public to broadcast his own particular views on any matter, which Is the foundation stone of the Amerlcan system of broadcasting. (Footnote omitted:) We also cannot believe that Congress would have overturned so basic a tenet of communications law and policy in this area or that It would have with- drawn so fundamental a responsibility of the Commission without some express indication and explanation. See para- graph 30, Infra. On the 'contrary we believe that for reasons developed below, our action is entirely consistent with the "comprehensive Federal program * * " (sec. 2, Cigarette Labeling Act), since It vri11 promote the "extensive education campaigns," n•hich Congress noted and relied upon in reaching the policy judg- cany out the Congressional purpose, and we shall of course adhere to that guide- line•in hnplementation of the ruling. , 25. Most important, we think that our ruling implements the smoking educa- tion campaigns referred to as a basis for Congressional action in the Labeling Act (supra, par. 21). Congress Itself has afl'irmatively promoted such educational efforts by appropriating $2 million for use by HEW in this direction. P.L. 89- 156, Title II, Public Health Services, Chronic Diseases and Health of the Aged. As a consequence, HEW has estab- lished the National Clearinghouse for Smoking and Health,.Its purposes are to collect, organize, and .disserninate Information on smoking and health, to provide encouragement and support for State and 'local educational activities, and to conduct research Into the behavioral nature of the smoking habit. The Public Health Service and others have acted to Inform the public on snlo}ang and health directly by sending lecturers across the United States to address local groups, distributing printed Information to the public, and funlish- ing the broadcast media with spot alulouncements on smoking and health. The Public Health Service reported in January 1967 that It has distributed spot announcements to over 900 radio stat.ions and Is itt present approaching individtlal television stations to obtain further coverage for its messages. The American Cancer Society reports that it has rcccivcd favorable responses from all the networks and many independent stations concerning the promotion of its spots on smoking and health. 26. The Public Health Service has also v: orked through local organizations to warn the public of the health hazards of smoking. It Is In direct contact with a nuulber of regional, State, or local inter- agency advisory committees on smoking and health, which have worked to stim- ulate community interest in 35 States. As a result of this stimulus and ot•)lers, the medical societies of at least 18 States have made statements linking cigarette smoking with lung cancer and other health hazards and, In some cases, have undertaken organized activity to publi- cize the relationship of snloking and health. For example, the California Med- ical Association has recently undertaken a program urging individual doctors to acquaint their patients with the health hazards of smoking. Local and statewide ' civic groups have also started public edu- cation efforts. 27. The Public Health Service and the U.S. Children's Bureau have dil•ected a special education campaign aimed at school age children. To date, school pro- grams on smoking and health reach about 70 percent of the school children In the United States. Forty States have de- veloped materials on smoking and health for children or plan to do so, and 27 States have either held conferences on smoking and health or.intend 0 do so. In September 1966 a nationwide program to discourage smoking among seventh and eighth graders was launched by the Na- t.ional Congress of Parents and Teachers. This plan is being supported by the Pub- lic Health Service and Is operating in 21 States. 28. The • affected Industries have re- newed their efforts at self-regttlation since the enactment of the Labeling Act. While there has been no change in the Cigarette Advertising Code of the cig- arette manufacturers, they have sought and obtained FTC approval to make factual advertising statements about tar and nicotine content. On March 25, 1966, the FTC determined that a factual statelnent of the tar and nicotine content of the mainstream smoke from a cig- arette would not be in violation of that Commission's 1955 Cigarette Advertis- ino Guides or of any provision of the law aciminste.red by the Commission. How- ever, no collateral statements (other than the factual statement of tar and nicotine content of cigarettes) suggesting the re- duction or elimination of health hazai•ds In smoking are allowed, and all these factual statements must be based upon a standardized testing technique" 29. In October 1966 the Code Authority for the NAB Issued the Cigarette Adver- tising Guidelines which they had an- nounced during the 1965 Senate hearings v New York Times, Mar. 29, 1966, 53:6. : . FfDERAI REGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEMBER 15, 1967

v,ould be forthcoming." The rnr.hl oLjec- thes of the €uidclines are to rcr;trict ad- sing appeals to youth au;ti state- mcnts conccrning the health benefits of smoking. In January 1967, the Code Au- thority announced in a news rclea.se a slight change in the Television Code to streinthen Its position as to appeals to youth. The Television Code, section IX, General Advertisiilg Standards, para- graph 7, now reads: The advertising of clgarettas shnll not state or Imply clainis regartling hcalth and shall not be presentetl in such a rnanner as to lndicate to youth that the use of ciga- rettes contributes to individual achievement, personal accc"ptancc or is a habit worthy of Imitation. 30. Considering these affirmative efforts by Congress, Federal, State and local public and private agencies, and the affected industries' to educate the public as to the smoking health hazard and, particularly, to discourage youth from forming the habit, we are not per- suaded by "petitioners' argument that HEW and FTC have primary jurisdic- tioli In this matter and that this Com- mission alone is precluded from follow- ing Its traditional method of assuring that the public is adequately informed as to both sides of this controversial Issue of public Importance. Significantly. Congress was at pains to spell out what was precmpted (sees. 5 (a) and (b) ), and specifically stated that except as Is otherwise provided In subsections (a) and (b), "nothing in this Act shall be constrlled to limit, restrict, expand, or otherv.ise affect, the authority of the Federal Trade Commission with respect to unfair or deceptive aets or practices in the advertising of cigarettes •'':' Similarly, we believe that there was no preclusion of FCC action, so long as such action Is consonant with the "compre- hensive Federal program • * " (see. 2), As set forth In the prior discussion, "Tcxt of the New Cigarette Advertising Guidelines: Athletic activity. A person who 1s or bas been a prominent athlete shall not be used In a' cigarette commercial. Cigarette commer- cials shall not depict persons participating In, or appearing to be participants in, sports or athletic activity requiring physical exertion. Tar and nicotine sLatenier.is. Factual state- ments of tar and nicotine content of ciga- rettes are subJect to propcr documentetion. No stat^-rnents or claims regarding benefits to health and well-being are acccptable. Filters. Cigarette advertising shall not state that because of the presence of the filter or Its construction the cigarette is beneficial to the health or well-being of the smol:er. Uniformed inaividvals. Individuals in cer- tain types of uniforms have a ypecial appeal to youth. Therefore, such unifonned Inditid- uals as commercial pilots, firemen, the mill- tary and police ofiicers ahall not be used In cigarette advertising. Premiums. Cigarette advertising shall not Include references to offers of premiums v,hich are primatily designed for youth. Portrayai of yotith. Children or youth shail not appear in cigarette commercials in any manner, even though they are merely by- standers or part of the bacia;round. Ciga- rette advertising shall use 1ndividuals v ho both are and appear to be adults.and who are shown In settings asseci: ted with adults. 1:OTICES ]31G7 s ince the ITC had undcrttil:c:i a co:nprc- hcnsive rculc•dial rciulatory pla n, the FCC had not held proctcdin,-s or under- taken studics to evalur.tc the vr.rious fzc- tors and consitlerations in this area. Comment,; on S. 2429, 6Eth Con;., FCC 64-730; co:nments on S. 559 and S. 547, FCC 65-96. • 32. We do not believe that thesti facts preclude us, as a matter of law or of policy, from issuing our ruling In the present circumstances. First, as shown above, circumstances have changed. The FI'C, while proceeding in other respects consistent with the 1965 Act, Is not, of course, undertaking its comprehensive regulatory plan to require a health haz- ard announcement to accompany each cigarette commercial. Second, as also shown above, our ruling Is consistent with and particularly suited to pronlot- ing the "across-the-board" objective of Congress to treat this matter through extensive campaigns to educate the pub- lic as to the hazards of smoking. Third, we did not defer to the FTC as a matter of legal nuthority but rather of policy. The Commission is not precluded from changing its policies so long as any new policy adopted is, like our ruling, rca- sonable In the circumstances. See supra, paragraph 14 and footnote 8. And, fi- nally, studies by this Commission are clearly not required to evaluate the various factors and public intprest con- siderations posed by the issue of smoking and health, particularly since Congress declared and pursued its policy of pro- moting smoking education campaigns. In this connection, see also the discus- sion below (pars. •33-34 and 60-62). 33. On July 12, 1967, I-JEW submitted its Report to Congress, which Includes the Surgeon General's Report on Cur- rent Information on the Health Conse- quences of Smoking. Upon the basis of more than 2,000 research studies that have been completed and reported in the biomedical literature throughout the world in the intervening 31/2 years since the Advisory Committee's Report, the Surgeon General states that there is no evidence calling Into question the con- clusions of the 1964 Report and, on the contrary, the research studies published since 1964 have strengthened those con- clusions. The Surgeon General sum- nlarizes the present state of }.non'ledge of these health consequences, In the judgment of the Public Health Service, as follows (Surgeon General's Report" on the Health Consequences of Smolcing- 1967,p.2) 1. Cigarette smokers have substan- tially higher death rates and disability than their nonsmoking counterparts In the population. This nieans that cigarette smokers tend to die at ea1•lier ages and experience more days of disability than conlparable nonsmokers. 2. A substantial portion of earlier deaths and excess disability would not have occurred if those affected had never smoked. 3. If it were not for cigarette smoking, practically none of the earlier deaths from lung cancer would have occurred; nor a substantial portion of the earlier deaths from chronic bronchoptllnlonary FEDEI;AL REGISTER, VOL. 32, NO. 179-FRIDAY, SEPTEf:18ER 15, 1967 we think that our respoll',ibilitics and policies uncler the Cumnlunications Aet :tnd our rulin." hercin arc entirely con- sonant Nrith the Congressional objec- tives in this area. Indccd, it is our belicf that the Commission could not propcrly follow any other course in this matter. For this Comnlission, like other admin- istratil•e ai:cncics, was "not commis- sioned to effectuate the policies" of the Cofunlunic:ations Act "so singlc-minded- ly that it may wholly Ignore other and equally important Congressional objec- ti /es. Frequently the entire scope of Congressional purpose calls for careful accommodation of one statutory scheme to another and it Is not too much to demand of an administrative body that it undertake this accommodation without excessive emphasis upon its inlmediate task." Southern S.S. Co. v. Labor Board, 310 U.S. 31,47. 31. One further contention of pcti- tioners on this aspect warrants discus- sion. It Is asserted that we are precluded from issuing our ruling because the Com- mission declined to nlalce any recom- nlendation to Congress In connection with the Labeling Act legislation on the ground that it had not yet studied the matter, and because the Commission still has not conducted any study or proceed- ing on the snlol:ing hazard issue. The cir- cumstances giving rise to the contention are rs follows: Prior to the Issuance of the Advi~ory Committee Report, the Colnmission stated In a "by direction" letter, concerning possible rule making with regard to advertising, promoting, or encouraSing cigarette smoking among young people, that action would be inap- propl•iate before the Advisory Commit- tec's Report was available and (Letter to Senator Magnuson, FCC 63-1033) : The Commission's concern Is lirnitcd, of course, to advertising in the broadcast field. Other agencics may have authority to take comprehensive and effective actdon, if neces- sary or appropriate. It is, we think, obviously more desirable to treat such an inportant matt•er, If possible, on a broad, across-the- board basis rather than In pieceineal fashion. When the Advisory Committee's Report was issued and the FTC had announced Its rule making proceeding concerning cigarette labeling and advertising (see App. A), the Commission on January 1954 initiated plans to coordinate its ef- forts with the comprehensive regulation which the FTC had proposed and with ar:tivities of other interested a_^.encies. FCC Letter to FTC Chairman Dixon, FCC 64-29 (Jan. 15, 1964). On February 7, 1964, In "by direction" letters to Con- gressman Leonard Farbstein (FCC 64- 100) and his constituent, Mr. Sidney Katz (FCC 64-99), then Chairman Henry answered a request to institute rule mak- ing proceedings to ban ci;arette adver- tising by rciterating the policy statement quoted above and noting that the Com- mission would await the results of the FTC rule rnaking proceeding before act- Ing in this area. When asked to comment on S. 2429, 88th Cong., and S. 547 and S. 559, 89th Cong., the Commission 1•e- it;.•rated its policy that it favored "across- the-board treatment of the matter of reglilating cigarette advertising and that

l3lGS ' diseases (commonly diagnosed as chronic broncliitis or pulmonary emphysema or both) ; nor a portion of the earlier deaths of cardiovascular origin. Excess dis- ability from chronic pulmonary and cardiovascular diseases would also be less. 4. Cessation or appreciable reduction of cigarette smoking could delay or avert a substantial portion of deaths which occur from lung cancer, a substantial portion of the earlier deaths and excess disability from chronic bronchopulinon- ary diseases, and a portion of the earlier deaths and excess disability of cardio- vascular origin. In releasing the Report, HEW Secretary John W. Gardner stated (HEW Press Release for July 13, 1967) : The relationship between smoking and health has obvious and serious implications for Individuals who now smoke and for young people who may be thinking of start- ing to smoke. From the standpoint of public policy and social concern, this association constitutes one of the most critical health problems today. It is perfectly obvious that if we are going ~ to reduce the unnecessary death and illness now caused by cigarette smoking, three things must take place: There must be a reduction in the number of people who smoke, a number which now constitutes 42 percent of our population. We must do every- thing we can to encourage young people not to start smoking; at present, half of our young people are cigarette smokers by the time they are 18. And finally, we must work toward the development of a less hazardous cigarette and, concurrently, help develop a climate of opinion which will encouiage ae- ceptance if such a cigarette Is developed. 34. The June 30. 1967 Report of the FTC to Congress pursuant to the Label- ing Act stressed the importance of edu- cating teenagers before they start smoking since the use of cigarettes Is so strongly habit forming (Report, p. 8). The FTC Report states (p. 13) that whether intentional or fortuitous, teen- agers appear to be a prime tatget for televised cigarette advertising and that , the "average American teenager sees i more cigarette commercials on network television than does the average Ameri- can" (p. 25) ;"'87.9 p_=ent of teenage boys' and '89.5 percent of teenage girls hear radio on the average day"' (p. 13). Tlle Report comments (p. 24) : In making a decision on v:hether to start smo'r.ing, youngsters especially have a rlght to know that once they start, they may ne%cr be able to stop. A viewer of cigarette com- mercials and advertisements would never hear of this aspect of smoking. • " The concluding paragraph of the FTC Report states (p. 29) : Cigarette commercials continue to appeal to youth and continue to blot out any con- sciousness of the health hazards. Cigarette advertisements continue to appear on pro- grams watched and heard repeatedly by mil- lion+(s1c) of teenagers. Today, teenagers are constantly exposed to an endless barrage of subtle messages that cigarette smoking increases popularity, makes one more mas- culine or attraCtive to the o?posite sex, enhances one's social poise, etc. To allow the American people, and especially teenagers, the opportunity to make an informed and NOTICES deliberate choice of whether or not to start smolang, they must be freed from constant exposure to such one-sided blandishments and told the whole story. 35. This Commission agrees. Consider- ing all of the foregoing, we believe that our ruling is within our statutoly au- thority and not precluded by the Con- gressional policy embodied In the Label- ing Act--that rather it implements that policy. We also think It Is Imperative In the public Interest that we exercise our discretion now without delay for further studies. D. THE ARGUMENT AS To BLANKET RULING 36. Petitioners further contend that even if the Fainless Doctrine properly applies to cigarette advertising, the Coln- mission has invalidly made a blanket ruling that any cigarette advertisement per se presents a controversial issue of public importance, whereas no controver- sial issue of public importance can be presented where a lawful business is ad- vertising a lasvful product and, in the absence of any health claim in the com- merciaT or afnrinative discussion of the health issue, there Is no viewpoint to oppose. But this argument misconceives the nature of the controversial Issue. Mr. Banzhaf's complaint ti'as that the ciga- rette commercials over WCBS-TV pre- sented the point of view that smoking is "socially accept?ble and desirable, man- ly, and a necessary part of a rich full life." Our ruling points out that: The advertisements In question clearly promote the use of the particular cigarette as attractive and enjoyable.. Indeed, they understandably have no other purpose. But we beliece that a station which presents such advertisements has the duty of inforn:ing its audience of the other side of this controver- sial Issue of public importance-that how- ever enjoyable, such srnoking may be a hazard to the smoker's health. Petitioners point to no example of a cigarette commercial that does not por- tray the use of the particular cigai•ette as attractive and enjoyable as well as encourage people to smoke, and we find it diinctllt to conceive of one. 37. Further, we are unable to accept the argument that In the absence of any express health claim In the commercial or affirmative discussion of the health issue, there is no viewpoint to oppose. The June 30, 1967 FTC Report amply documents its conclusion that cigarette col:unercials today still contain the two principal elements if foand to e.xist in 1964-a portrayal of the desirability of smol:ing and assurances of the relative safety of smoking (pp. 15-16). The FTC states that desirability is portrayed in terms of the satisfactions engendered by smoking and by associating smoking with attractive people and enjoyable events and experiences, and that by so doing the impression is conveyed that smoking carries relatively little risk (ibid.)." The Report supports this con- 34The FTC Report statcs (p. 17) that an estimated 58 percent of the public feel that current cigarette advertlsing leaves the im- press!on that smoking is a healthy thing to do. clusion, nlore than adequately in our view, by a comprehensive review :uld Rnalysis of the advertising submitted by a large number of cigarette com- panies and monitored by the Comnlis- sion (FTC Report, pp. 15-23). Nuiner- ous examples are given of the "satisfac; tioll" theme (pp. 15-16) ; " the "associa- , tive" theme (pp. 16-17 ) ; " "appeals di- rected to vanity" (pp. 17-18);." subtle methods of "assuaging anxiety" about 25 The Report states that portrayal of sat- isfactlon, particularly oral satisfaction, con- tinues to be an important element of clga- rette advertising. Taste or flavor of ciga- rettes is most often described in terms of "mildness" (Tareyton filters, Ttontclair menthols, Camel regulars, Carlton filters, Lucky Strike filters, Pall Tfall filters, and . Chesterfield kings); "smoothness" (Tarey- ton filters, Pall 1•fall kings, Newport men- thols, and Lucky Strike menthols); "real," "true," "rich;" or "great" tobacco flavor or taste (Raleigh filters, Newport menthols, Viceroy fiiters, Salem menthols, and Philip ATorris filters). Invariably, the taste of men- thol cigarettes is either cool, fresh and/or refreshing ("coolest flavor;' Lucky Strike Green; "forest-fresh tast.e * * • cooler tasting," Pall Afall; "as fresh as y:ou'like it," Philip Morrls; "most refreshing coolness," Kool; "fresher," Newport; "fresh mentiiol flavor," Camel; "Springtime fresh" and "re- freshes your taste," Salem; "a full, fresh taste," Chesterfield). The FTC comments (p. 16) : "The impression . forms that "menthol taste" relieves' smoking Jrritation, albeit "smoking irritation" is never express- ly stated." - lo The Report states (p. 16) that associat- ing cigarette smoking with persons, act3vi- ties, places, and things likely to be admired, respected, or emulated, i.e., endowing ciga- rette smoking with a positive associative image, continues unabated 1n current r.dver- tising. For exa mple, outdoor activity of an athletic nature such as sailboating "sug- gests that the smoking depicted 1n thd fore- ground, if not conducive to rousingly good health, Is certainly not incompatible with it" (FTC Rept., p. 17). In addition, social events abound in which the viewer is brought int,o the "wholesome, jolly com- pany of cigarette smokers" (ibid.). E.g., "singing aboard the old paddle wheel steam- er (with Pall Mall kings); picnicking (teith Camel filters); and coffee klatching (with Winston filters) ' - 11 The Report gives as examples of ap- peals to vanity (pp. 17-18) : "Be di:crinrinating: 'Pr•rticular about taste • • • I'm particular' (Pall Afall Kings); 'T7icy liko the style of this cigarette' (P. rliamcnt filters). Be exclusive: • • ' 'exclusR•e plastic pack' (Philip rforris filters and menthols); 'There's no other cigarette' (Lark filters). • • • 'the smokers who ):now' (Camel filters). Be a success: 'tastes rich, good, rewarding' (Viceroy filters); 'This man was born rich' (Camel filters), Be a social success: 'Come up to the taste of Kool' (Kool rnenthols); 'find something better' (Old Gold filters). Be independent: 'break away from the crowd the cigarette for indepcndent people' (Old Gold filters); 'stands out from the crowd' (Salem men- thols). Associate with important people: 'Chairmen arc never bored with them' (Ben- son & 1ledges filter); the charter boat skipper who has 'got a good ship, a good crew and a good breczo' (Camel regulars):' ~ FEDERAL REGISTER, VOL. 32, NO. 179-fRIDAY, SEPTEMBER 15, 1967 • (!1 ~ OD OD - I -4 I A,D ! lii N

`. 1 any hcalth hazard (pp. 19 -21) ;" the "loyalty" theme (pp. 15-IG);1° and the "bonils" thcmc, which inc:ludes proinot- ing longer ci_orcttes at ),upular prices as Well as coupon promotions (pp. 22- 23) '0 We note also the FTC's corn- nlent" (Iteport, p. 18) : Thcre is in all of the array of positive iniagcs an element of escape from actuality. Sonic cigarette advertising transcends rnere lmage assoclation and projects its own sep- arate and unique veorld. Examples include "Salcm Coiuriry;" a land In which romantic' couples romp and preen through shifting, sylvan, sottings; the "Night People," whose post evening encounters can lead to smoklng Parliament filters; and "Marlboro Country," where there daily unfolds the simple male heroic virtues of the "Old West." \Vorry over health has been vanished from these Shangri-las. 38. It conles down, we think, to a simple controversial issue: the cigarette commercials are colrvcying any nulnber of reasons why It appears desirable to smoke but understandably do not set forth the reasons why It Is not desirable to commence or continue smoking. It is the affirmat.ive presentation of smoking as a desirable habit which constitutes the viewpoint others desire to oppose. We see no inequity in the circumstances that cigarette advertisers are precluded by 1 M The Report states that as a result of extens!ve promotion dur:no 1957-59, the be- lief appears to be v:idely held that filter cigarettes are less hazardous to health than regular cigarettes (p. 19). Comparatively overt attempts to allay hcalth anxieties have been made by manufacturers of charcoal filter cigarettes by pictorial details of filters creating the impression that they prevent passage of tars and gaseous effusions (Tarey- ton, Lireky Strike, Tennyson, Cold Harbor, King Sano, Tempo, Duke, and Lark). Rc:pt:, p. 20. Other "very low key" a8vertising en- hances the impression of relative safety by adding suitable adjectives to the word "Yil- ter": "recessed filters" (Benson & Hedoes and Parliaments), "white filters" (Yorks), "menthol filters' (Springs) and "filters with coconut shell charcoal" (Plillip Aforris), Ibid. 31See R.eport (p. 22). Underlying these "lol•alty" theme examples Is, of coursa, the promise that the partlcular cig:rrette g!ves great satisfaction (e.g., "Change to Winston and change for good"). N"The Report states (p. 23) : "The purchase ' of Faliegh cigarettes hrs lon,- been rewarded with coupons redeemable for goods. Today. Belair menthols, Old Go'.d flters, York filters, Spring menthNs, and Domino filters also carry coupons redeemab:e for goods. I.Ter+.thol and filter Chcaterfields and Philip \;orrises carry coupons redeemable for niore claa- rettes." The report also glves caamples of 100 millimeter cigarette advertising (Benson & Hedges, Lucky Strike, Winston, and Pall Mall), and states (ibid.): "With a definite relationship having bean established betvrcen amount of cigarette smo:cing and incidence of lung cancer and other diseases, a fitting motto for the 103 milllmeter c':garette c:im- paign might be 'extra hc:+lth hazard at no extra cost"' (footnotes omitted). !1 While we have, as petitioners point out, distinguished between explicit and-impliclt raising of controversial issues in broadcast material where health a-; s not Involved (e.g., atlicists and a.pnostics iersus the broadcast of religious services), we do not regard those cases as pertinent here in view of the nature of the controvers!al is,sue. No.179-Pt. II-2 t:OTICES vtuiuus codes from making rTil'rnative heallh e:lainls in thc advertising pro- grainining" 'he L'airliess Doc . ne af- fords a~l nvczl~eforl»r•SCntin^ in rct'u ar pro;;i~tm inl~hc vi~y;lK~1111~tS11ft115i- b.e s>o,:c•am i fvr t~ ic_c arcLe adver- t.~ers n rebuttal to any heaTth 1-T a~ard c a nls nlac e o»losi tO[i 6o ci i~c commerc 1s_ An , ulaTT'y; i~•e ai) to sec any nc•rit in the argument that no con- troversial Issue of public irnportance can be presented where a IawSUi business is advertising a lawful product" While an unlawful business advertising an unlaw- ful product over the air tvaves might well raise some controversial issue of public importance, we do not regard that ele- nlent as essent•ial. The claim that no controversial issue of public Importance is presented by cigarette advertising Is neither realistic nor persuasive. E. TII6 COKTENTION AS TO A SUESTITUTION OF "COL:MISSION FIAT" FOR LICENSEE JUDC7dENT 39. Petitioners also argue that the rltl- ing, by requiring that a significant amount of time be allocated each week to cover the viewpoint of the health hazard posed by cigarette smoking arid by suggesting that a licensee might, arnong other things, present a number of public service announcements of the' American Cancer Society or HEW, Will cause a debasement of the Fairness Doc- trine generally and a substitution of Commission fiat for licensee judgment. CBS in particular, noting that corrllner- cials are by nature repetitive and con- tinuous, urges that treating all cigarette ~ ?" We recognize also (as set forth 1n par. 29 above and Appcndix A) that the tobacco and broadcasting industries have endeavored in their codes to prescribe cigarette advertising standards aimed at reducing the appeal to youth. But the conclusions of the FTC Report (par. 37 above) and the statistics and other matters set forth In pars. 33-34 and 60-61 would seem to Indicate that the standards are either ziot being follovred or are not effective 1n discouraging new teenage smok- ing. Moreover, It occurs to us that teenagers on the verge of adulthood may be more inAu- enced.by a portrayal of the attractiveness and desirability of adult conduct than by one connoting childhood or youthful behavior. As the FTC Report notes (p. 8) :"They tend to view cigarette smoling as a visible mark of maturity, a passport to adulthood. Because the health dangers of cigarette smoking are not brought home to them in an effective and meaningful way, many teenagers take up the smoking habit" =3NBC, in urging tha{ licensees could rea- sonably and in good faith conclude that no controversial 1.ssue of public importance is presented by cigarette advertising, notes that the FTC advertising guides permit presenta- tion of enjoyment since they state: . "Nothing contained 1n these guides is in- tended to prohibit the use of any represcnta- tion, claim or Illustration relating solely to taste, Savor, aroma, or enjoyment." Our ruling is consistent. It, too, does not In any way prohib!t the presentation of enjoy- ment In cigarette commercials. It merely requires the licensee adequately to inform the public of the potential hazard, as found by Congress and Government reports, en- tailed in commencing or continuing this habit. ]31GJ connncrcials as prc•scntalions of one aide Of a COiltl•overSiitl issue Will raise a(lucs- tion as to vrhethcr any one progranl or pro.,rrm series-hov, evcr cnligllic•ning and informative as to all points of vien•- can constitute nn adcqunt.e opportunity for response. Asserting that inevitably the licensee's only recoln•se will be a series of health hazard spot announce- ments, CBS states that broadcast treat- ment of cigarette hcalth issues should not be reduced to a contest of opposing spot announcements endlessly repcated long after any member of thc public has understood and acted If he wished. It further asserts that such an approach makes no sense in the area of nev.•s and public affairs programing and that the net result of our ruling will be to convert licensee responsibility In such areas to presentations very similar to product advertising. . 40. Like CBS, we recognize that the presentation of one side of a controver- sial Issue of public importance In adver- tising progl`aming poses a situation which differs from that usually pertaining to the presentation of controversial Issues In news and public affairs programing. In the latter instance, the iss,le may arise only once, or a few times, or several times in a relatively short time period because of factors such as timeliness. But as CBS points out, conunercials are by nature ^repetitive and continuous;" the com- plaint here went to advertisements broadcast daily for a total of 5 to 10 minutes each broadcast day. We think that the frequency of the presentation of one side of the controversy Is a factor appropriately to be considered in our administration of the Fairness Doctrine under the Act's basic policy of the "standard of fairness" (supra, par. 10). For, while the Fairness Doctrine does not contemplate "equal time", if the presen- tation of one side of the Issue is on a regular continual basis, fairness and the right of the public adequately to be in- formed compels the conclusion t•hat there must be some regularity in the presen- tation of the other side of the Issue. This consideration is not limited to advertis- illg. For example, if one side of a con- troversial issue of public impol•tance were regularly presented in a daily net- work program, compliance with the Fair- ness Doctrine would require something more than an occasional presentation of the other side of the issue during the course of the year. 41. Moreover, here the controversial issue posed is one of health hazard and the repeated and continuous broadcasts of the advertisement may be a contribut- ing factor to the adoption of a habit which may lead to untimely death. In the circunlstances, we thinh that the licensee is under a higher duty than in the case of other controversial issues to ameliorate the possible hal•mful effect of the broad- casts by sufficiently Informing the pub- lic as to the hazard. As indicated in our rulin„ and in light of the considerations set forth in paragraphs 33-34 and 60-61, we believe that the frequency of the presentation of the one side and the nature of the potential hazard to the pub- lic here necessitates presentation of the FEDERAL REGISTER, VOL. 32, NO. 179-FCIDAY, SEPTEtA6ER 15, 1937

]31i0 opposing vier:point on a rcgular basis (e.g., each week). 42. We note that, contrary to CBS' position, the repetition of short com- municat.ions has apparently been re- F;arded by the broadcasting and advertis- Ing industries and other Interested orga- nizations as an effective means of reach- ing the listener or viewer. But in any event, there is nothing In our rtlling which compels a licensee to treat the issue through presentation of spot messages. In our ruling we stated: "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 sub- ject, a nulnber of the public service an- nouncenlents of the Cancer Society or HEW in this field." This example does not on its face indicate that the opposing viewpoint should be presented solely or principally through spot annotuicements, and it was not intended as a"Commis- sion fiat" as to the manner of compliance with the Fairness Doctrhie.=` We stressed in the ruling, and here strongly empha- size again, that "in this, as In othel' 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. See Cullnlan Broadcasting Co., F.C.C. 63-849 (Sept. 18, 1963) : ' 43. In other words, we agrce with CBS that the "question of whether a licensee Is responsibly complying v; ith the fairness doctrine cannot be resolved by per se guidelines, ratios or other rigid rules." A licensee which has just presented a vely lengthy program on this issue obviously might reach a difierent judgment as to what his obliL.-ation was in this respect for the next week or so. But as stated, the carriage of the normally substantial amount of weekly commercials raises a concomitant responsibility to be met over i-elatively the same period of time. Fur- ther, In these circumstances, c,hile a I to 1 ratio Is ruled out by considerations of / the legislative histoly of the Cigarette t~~ Labelling Act, the licensee's obligation Is just as clearly not met by an occasional program a few times a year or by some appropriate announcements once or twice - a week. We stress again that what 1s called for is the allocation of a significant ='As set forth In par. 25, prior to our ruling the Atnerican Cancer Society received favor- able re_ponses from all the networks and many independent stations concerning the promotion of its spots on sn:oking and health. Moreover, the Public Health Service reported in January 1967 that it had distributed spot a,nnouncements to over 900 ra dio stations and was then approaching indh•Idual television st,ations to obtain furthcr coyerr.ge for 'its messages. The exa mple we gave n:crely took cognizance of the fact that such material is available to licensees if, In their judgment, its use a,ould facilitate compliance with their obligations under the Fairness Doctrhie. We thought it desirable to note its availability particularly for the small station with limtted resources, which might have diRculty In pre- paring Its ov;n prdgram material dealing with this issue. NOTICES amount of time each week, absent un- usual circulnst.ances, to the presentation of the opposing viewpoint in the case of ci_earette coiiunercials.l'Je do not see why Lcens^_cs, proceeding 1n good faith, should expe:•icnce any real difficulty in reason- ably discharging that responsibility nor why, in view of the nature of the issue- the public's health, they would seek to fulfill that obligation In a niggardly fashion, designed to raise problems or complaints. In suln, we have not usurped licensee judgment as to the type of pro- granling or the amount or nature of the time to be afforded, but rather have left these matters to the good faith, reason- able judgment of the licensee based on his evaluation of the facts of his par-r ticular casc n - F. EFFECT OF THE RULING ON THE AD- VERTISING OF PRODUCTS OTHER THAN CIGARETTES 44. Petitionels further assert that the ruling cannot logically be limited to cig- arette advertising alone, and hence will have broad-scale effect on broadcast op- cratiolls and the presentation of adver- tising by radio generally. They state that very little in society is uncontroversial and, since many products are subject to one form of controversy or other, an appeal to the Commission by a vocal minority is all that Is needed to classify a subject as controversial and of public importance. They further claim that if governmental and private reports on the possible hazard of a product are a sufd- cient basis for the cigarette ruling, the ruling would apply to a host of other products, such as: automobiles, food with _ high cholesterol count, alcoholic bever- ages, fluoride In toothpaste, pesticide res- Idue in food, aspirin, detergents, candy, gum, soft drinks, girdles, and even com- nlon table salt. We do not find this "pa- rade of horribles" argument Impressive. 45. We stressed In our ruling that It was "limited to this product-cigarettes," stating further in this connection: -- Governmental and private reports (e.g., the IDG4 Report of the Surgeon General's Com- n~tttee) and Corigreesional action (e.g., the Federal Cigarette Labeling and Advertising Act of 19G5) assert that the normal use of this product can be a hazard to the health of millions of persons. The advertisements in question clearly promote the use of a particular product as attractive and enjoy- able. Indeed, they understandably have no ~ It is also argued that the licensees may simply substitute cigarette health mess~ges for other public service announcements now being carried. The duty of a station carrying cigarette commercials to inform the public as to the hazards of smoking stems directly from the fact that 1ts facilities have been used to promote the use of this product found by- _the-Congress and go ernniental it•liorts to be so pot^ntially hazardous to health; its responsibility 1s therefore the s-me as in the case of any other fairness situation. It thus has a duty to present the othcr side, over and beyond what a licensee decides in other respects to prescnt in order to serve the best interests of his area. We therefore do not believe that a licensee would or should adopt a pattern of operation which he does not adjudge to serve fully the needs- and lntcrests of his public. other purpose. We believe that a station which presents such advcrtiscmcnts hiis the duty of informing its audience of the other side of this controversial i..sue of public im- por tance--that however enjoyabte, s u c h smolang niay be a hazard to the snioY.er's hcal th. Our ruling does not state, and was In no tvay meant to imply, that any appeal to the Commission by a vocal minority will suf;ice to classify advertising of a product as controversial and of public impor- tance. Rather, the key factors he're we're`-- ' twofold: (1) Governmental and private reports and Congressional action with respect to cigarettes, and (2) their as- sertion in common that "norlual use of this product can be a hazard to the health of millions of persons." 46. The products to which petitioners refer do not present a comparable situ- ation. The example most uniformly cited is auto safety. But the governmental and private reports on tilis matter do not . urge the public to refrain from "norlnal use" of automobiles In the interest of public safety; rather, the emphasis Is on increased safety features in the manu- facture of automobiles and Increased care by dliversr Moreover, we no of no wide- spread contention by governmental or private authorities that the "normal use" of any of the other prodtlcts cited by petitior,ers poses a serious health hazard to millions of persons who otherwise en- joy good health. 47. We adhere to our view that ciga- rette advertising presents a unique situ- ation. As to whether there are other comparable products whose normal use has been found by Congressional and other Government action to pose such a serious threat to general public health that advertising promoting such use would raise a substantial controversial issue of public importance, bringing Into play the Fairness Doctrine, we can only state that vve do not now know of such an .. advertised product, and that we do not find such circumstances present in peti- tioners' contentions about the advertised products upon which they rely. Thus, to saythe-least, Instances of extcnsYon of the ruling to other products upon con- sideration of future complaints would be rare, If Indeed they ever occurred. In short, our ruling applies only to cigarette advertising, and Imposes no Fairness Doctrine obligation upon petitioners with respect to other product advertising. • 0. THE CLAI1f AS TO ADVERSE FINANCIAL IT._PACT UPON THE BROADCASTING AND TGBACCO II.UUSTRIES 48. Petitioners further assert that the ruliny will seriously undermine the com- mercial structure of broadcasting, cause a substantial reduction In or t.he eliml- natlon_o_f_ cigarette advertising .to -the-- -- .- :.evere detriment of these stations and their ability to serve the public intel'est, require a major change In the operation' of broadcast stations by necessitating the acquisition and presentation of new program material and the keeping of . additional records to document compli- ance with the Fairness Doctrine, limit the ability- of - cigarettee manufacturers--- - • pnd advertisers to obtain advertising tn FEDERAL P.EGISTER, VOL. 32, NO. 179-FRIDAY, SEDTEfdCER 15, 1967 0 ~ • . . C> CD ~ tC . ~ .4 I

tinlc orl brortdaw.l lnedia, n rn) ad~crscly nfYcct tile sale of ct"arc•tlcs, fM of which Nvill imposc zur tnrlawful burden on Int.^_r- st.ate comlucrce nnd confl;ct 'with tlie Con,'ressionll intent underlying the Cigarette Labc•ling Act. 49. The contcntion that our ruling v:ill seriously undcrmine the conunercial structure of broaclcasting is pressed princ3pally by the Association of National Ach•ertisers, Inc., an association com- posed of leadinr iilanufacturers and service concerns that use advertising, seven of vrhoim market cig:rrettes. Their coneern appcars to rest principally on the fear that the ruling will be extended to ma11y other products v:hich are sub- ject to controversy in one form or an- other. However, as set forth in the preceding section of this opinion (supra. pars. 44-47), v;e believe 'that this fear is groundless. The only real question here Is the inlpact of our ruling on cig- arette advertising on broadcast media and the sale of cigarettes. 50. We have no reason to think, and petitioners have proferred nothing con- crete in support of their claim, that the ruling Will cause any substantial reduc- tion,in or the climination of cigarette advertishlg on broadcast media or ad- versely affect the ability of broadcast licensees to serve the public interest. As Ave have stated, we shall tailor the re- qttiremeat that a station -%ahich carries cigarette commercials provide a sig- t nificant amount of time for the other viev:pohlt, so as not to preclude or curtail presentation by stations of cigarette ad- vertising that they choose to carry. 51. Nor do we think It realistic to as- sume that the requirement will cause cigarette advertisers and manufacturers to turn to other advertising media. The attl'actiti'eness of the broadcast media, particularly television, as a means of effectively.reaching the vast majority of the American public v,ith advertising, as well as other, messages Is withotlt equal °d We find It difficult to believe that ciga- rette manufacturers and advertisers would abandon or make substantially less use of a mediuln of this nature merely be- cause our ruling may require an Increase in the progra.ining on the smoking- health issue which broadcast licensees are already presenting in the exercise of their. judgement under the Fairness Doctrine and pursuant to their obliga- tion to operate In the public interest * 27 Rather, particularly in light of the con- sidration set forth above (par. 50), we are not persuaded that the effect of our ruling on the amount of cigarette adver- r- The FTC Report states (p. 10) that more of the mormy spent for cigarette advertising in the year 1966 was spent on television ad- vertising than on all other media combined (66.6 percent In 79GG). T'ne Report also states (ibid.) that "in 19G6, cigarette ad- ver:ising accounted for approximately 7.2 percent of total television advertising expenditures." 1D In this connection, a•e note that many stations and the tclcvlslori networks (e.g., CBS's efforts as detailed 1n this case) have given coverage to the smol:ing-health Issue and that they also conl.inue to air ntunerous cigarette commcrcials. hOTICES tising presented on broadcast mcctia will bc significant." 52. We also fail to see ho1.r the ruling v;ou)d require any m:.jor change in the opcration of broadcast stalions. In com- plying generally with the I'airncss Doc- trine in their overall broadcast opera- tions, broadcast licensees are required to afford rer.sonable opportunity for the presentation of the other side of con- troversial issues of public importance when they choose to present one side, and to document their efforts upon com- plaint. Our rules require the keeping of prog ram logs (see, e.g., tE 73.111 and 73.112; see also sec. 303(3) of the Conl- munications Act), and we are stn•e that licensees in the conduct of their business affairs presently keep full accounts as to advertising matters. Thus, we think that this particular controversial Issue can be handled by licensees in a man- ner similar to their established practices in this area !9 53. There is nothing in our ruling which would preclude or curtai) the abil- ity of cigarette mamliact•tu•ers to obtain advertising time on broadcast media. Li- censees remain free to present such ciga- rette advertising as they choose. Con- ceivably, some licensees, in view of the mounting public concern as to the po- tential health hazard of cigarette smok- ing, might voluntarily decide to curtail or refrain from cigarette advertising broadcasts in the public interest. But that Is appropriately a rnatter for li- censce judgment as to hov., to conduct broadcast operations to serve the public interest, and not a requirenlent of our ruling.-Under section 3(h) of the Coin- munications Act, broadcasters are not comuion carriers and they cannot be compelled to present advert.ising which they do not wish to present. >\ioi•eover, cigarette manufacturers clearly have no right to insist that a bro,,~dcast licensee, vlo is willing to present cigarette ad- vertising, present it In a manner that does not comport with his statutory ob- ligat•ion to operate in the pub)ic interest. Nor does a cigarette manufacturer have any legal right to complain that the use of radio to inform the public as to the potential health hazard of cigarette smoking may lead so some decline in cigarette sales or slow down the present trend of rising cigarette sales (FTC Re- port, pp. 4-7). Indeed, that is the verY purpose of the educational efforts which Congress has directed I3>;vV to under- take. 54. In suni, Nee see no merit to the con- tention that our ruling v; ill lead to severe curtailn:ent or possible elimination of ci.varette advertising, or have a serious econornic impact on the broadcasting in- dustry, contt•ary to the intent of Congress " Ccrl.ainly, there is no reason to anticipate that any such minimal implct could have any substanttal adverse effect upon the abil- ity of broadcast stations to scrve the public Interest. Cf. also FTC Report of June 80, 1967 at p. 10. r R'e note that WCBS-TV apparently had no difT'iculty in ascertaining what programs that station had broadcast on this Issue In response to Mr. Banzhaf's complatnt. ]3171 in the I,tlbCliltg Act. The rulinL properly cffcctuat.cs the rc.1,ponsibilitic•s of broad- cast licensees and this Commission under the Coinmtuiications Act. There is no tin- l.^.tt•ful burden on intcrstate commerce nor conflict v: it)1 Congressional intent in, or the provisions of, the Labeling Act. H. TiiE PROCEDUICAL CONTENTION 55. Finally, petitioners urge that the ruling is procedurally Invalid because it effects an.important and unprecedented change of policy which will affect all licensees and It was adopted without af- fording WCBS-TV, broadcast licensees generally and other interested persons an opportunity to be heard. CBS, in particu- hr, asserts that this was a departure from the Commission's procedure of ad- vishng a licensee of a fairness complaint and requesting its comments (Fairness Prinlet•, F.C.C. Public Notice of July 1, 1964, 29 F.R. 10415, 10416, cited with ap- proval in the Red Lion case, supra, par. 8). CBS requests that the contents of Its letter be treated as Its comments on Mr. Banzhaf's complaint, and that we recon- sider the ruling on the basis of such commen ts °° 56. We have granted this request of CBS and have carefully considered its comments in determining that recon- sideration is not warranted by the argu- ments contained in its letter. Our omis- sion to seek the comments of WCBS-TV initially v:as occasioned by our view that Mr. Banzhaf's conlplaint, which enclosed his request to WCBS-TV and the reply of that station, adequately set forth the facts.of the case and the positions of the parties. Since WCBS-TV has a contintt- ing policy of presenting the smoking- health hazard controversy and asserted only its position that the Fairness Doc- trine does not apply to advertising, our letter of June 2, 1967 to that station had two purposes: One, to apprise WCBS-TV of the Commission's view that the Fair- ness Doctrine does apply to cigarette advertising, as a matter of law and policy, and second, to bring to the sta- tion's attention our view that a sufficient amount of time must be allocated, usually each week, for the opposing viewpoint so that WCBS-TV could appropriately exercise Its licensee judgment in connec- tion with Its continuing program. As stated in paragraph 6, supl•a, the effectiveness of the June 2d 1•uling will not be the basis for action against any licensee, including WCBS-TV, until publication of.this memorandum opinion M I:BC notes that the Commiesion did not have before it the text of the three commer- cials Mr. Banzhaf referred to as examples. It has attached to fts comments the texts of three advertisements and states that two of them appear to be those mentioned in the complaint and the third Is probably the other. NBC further states: "They may show 'attractive' people 'enjoying' themselves while smoking cigarettes, but surely that does not constitute the expression of a view- point on whether smoking Is a hazard to the smoker's health." For the reasons stated In par. 38 above, we do not think that the text of the particular advertisements was necessary to our ruling or to our decision on the requests for reconsideration. FEDERAL REGISTER, VOL. 32, NO. 179-FRIDAY, SEFTEIAEER 15, 1967