Larus & Brother Company, Inc., T/a the House of Edgeworth, et al., Petitioners, v. Federal Communications Commission and United States of America, Respondents,the Tobacco Institute, Incorporated, et al., Intervenors, 447 F.2d 876 (4th Cir. 1971)

The Tobacco Institute and a number of cigarette manufacturers petitioned to review a report and order of the Federal Communications Commission.¹  We affirm the Commission's ruling that licensees who broadcast announcements discouraging cigarette smoking as a health hazard are not required by the fairness doctrine to grant time for the presentation of opposing views.

In anticipation of the forthcoming statutory ban on advertising cigarettes by radio and television,²  the FCC issued a notice of inquiry inviting comment on regulatory policy, with particular regard to the application of the fairness doctrine to broadcasting of anti-smoking messages. Since the doctrine requires the presentation of opposing views on controversial issues of public importance,³  the Commission's inquiry dealt largely with whether the effect of cigarette smoking on health remained a controversial issue.

After receiving comments from interested parties, the Commission ruled that, in the light of developments, it would be reasonable for a broadcaster to determine that the health hazards of smoking no longer present a controversial issue.⁴  Consequently, the Commission held, television and radio stations that carry anti-smoking announcements need not grant free time to broadcast opposing views. The Commission cautioned, however, that outside the context of a specific complaint it could not properly issue a blanket ruling on every anti-smoking message. It further admonished that the fairness doctrine would apply to anti-smoking broadcasts over which substantial controversy might arise.

The petitioners attack the ruling of the Commission as arbitrary and capricious because in their view the Commission has failed to state a reasoned basis for repudiating its prior position that the effect of smoking on health is a controversial issue subject to the fairness doctrine. They add that the Commission failed to articulate any objective standard for determining when an issue ceases to be controversial. The petitioners emphasize the following facts as showing that the Commission has consistently regarded the hazards of smoking as controversial. In 1967, the Commission ruled that the fairness doctrine obliged stations broadcasting cigarette commercials to allow time for anti-smoking messages.⁵  A short time later, in response to an inquiry by a licensee, the Commission ruled that a broadcaster who declined cigarette commercials would be required to carry pro-smoking messages if he broadcast anti-smoking announcements.⁶  Finally, and most significantly, according to the petitioners, the Chairman of the Commission repeatedly represented to Congress during the hearings on the Public Health Cigarette Smoking Act of 1969 that the fairness doctrine would apply after the broadcasting ban went into effect.

The Commission's ruling, of course, cannot be faulted simply because it represents a shift from an earlier holding. FCC v. WOKO, Inc., 329 U.S. 223, 228, 67 S. Ct. 213, 91 L. Ed. 204 (1946). Our inquiry, therefore, is whether the Commission articulated with reasonable clarity a rational basis for its change of view. See Greater Boston Television Corp. v. FCC, 444 F.2d 841, 850 (D.C. Cir., 1970). As Judge Leventhal emphasized, "an agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored. * * *" 444 F.2d at 852.

In stating its reasons, the Commission first reiterated a well established principle of the fairness doctrine that "it is up to the licensee to make a reasonable, good faith judgment on the basis of the particular facts before him * * * whether he has presented one side of a controversial issue. * * *" The Commission next stressed that the critical issue is "the licensee's judgment today — directed to the circumstances before him." Finally, it pointed to "significant developments" since the Surgeon General's 1964 report touched off substantial controversy about the effect of cigarette smoking on health. Specifically, the Commission referred to the 1967, 1968 and 1969 reports of the Department of Health, Education and Welfare,⁷  the change in the warning on cigarette packages, and the broadcasting ban imposed by the Public Health Cigarette Smoking Act of 1969.⁸ 

The significance of the HEW reports is disclosed by extracts contained in the Senate Report on the Public Health Cigarette Smoking Act of 1969.⁹  There can be no doubt that Congress relied in part on the HEW reports when it enacted the Public Health Cigarette Smoking Act of 1969. Given this precedent, the Commission properly turned to these reports to reach its conclusion, finding in them "overwhelming evidence on the general public health aspects of cigarette smoking."

Also quite properly, the Commission relied on the 1969 Act to undergird its ruling. The label required in the Act of 1965 — "Caution: Cigarette Smoking May be Hazardous to Your Health" — was made more positive by the Act of 1969 — "Warning: The Surgeon General Has Determined That Cigarette Smoking Is Dangerous to Your Health." More importantly from the standpoint of the Commission, Congress banned cigarette advertising from the air. The enactment of this legislation entitled the Commission to draw the inference that Congress had been persuaded that evidence purporting to establish the hazards of smoking was essentially valid. The Commission, therefore, was justified in reaching the conclusion that, regardless of its former views on the controversy over cigarettes, it is now reasonable for a licensee to assume that the detrimental effects of cigarette smoking on health are beyond controversy.

We cannot accept the petitioners' suggestion that the Chairman of the Commission, testifying at legislative hearings, made representations about the fairness doctrine that precluded the Commission's ruling.¹⁰  Both the Chairman's testimony and the Commission's order recognized that, notwithstanding the ban on advertising, under certain circumstances the fairness doctrine could require the presentation of the cigarette manufacturers' views. Moreover, the Chairman noted that he was speaking unofficially in answering the questions put to him and that he was not giving a studied opinion on behalf of the Commission.¹¹  The Chairman's testimony, therefore, did not prevent the full Commission from subsequently reassessing the existence of controversy over the smoking and health issue. The fairness doctrine requires a current judgment, and it would lose its vitality if the Commission and licensees could not reasonably determine on facts before them that an issue is no longer controversial.

We conclude, therefore, that the Commission did not act arbitrarily or capriciously, that its report and order sufficiently explain the reasons for its new rules, and that the objective data on which the Commission relied were adequate to justify its change of course.

II

The tobacco industry, having acquiesced in the statutory ban on radio and television advertising, does not challenge the constitutionality of the Public Health Cigarette Smoking Act of 1969.¹²  The petitioners, however, contend that the Commission violated the first amendment and §§ 326 and 315 of the Communications Act by authorizing licensees to broadcast anti-smoking messages without requiring them to present the opposing point of view on the theory that the smoking and health issue has ceased to be controversial. In support of their position, the petitioners refer to the Commission's statement that it will consider a licensee's treatment of the effect of smoking on health when it assesses the station's overall public service performance at renewal time. This warning, say the petitioners, coupled with the Commission's refusal to compel pro-smoking announcements amounts to coerced presentation of the "official government view." Such coercion, the petitioners suggest, is just as truly censorship and abridgment of the freedom of speech and press as would be a rule explicitly requiring anti-smoking announcements and forbidding pro-smoking information.

On its face, the Commission's order does not censor information about smoking in violation of § 326 of the Communications Act.¹³  The order neither compels nor denies access to the petitioners' views but leaves program decisions on this issue to each licensee's discretion. The Commission specifically rejected a rule requiring stations to carry anti-smoking announcements, and it did not forbid them from broadcasting pro-smoking messages. Moreover, it carefully admonished that certain types of anti-smoking programs were subject to the fairness doctrine. Of course, an order or regulation valid on its face may be administered unlawfully. But petitioners have not cited any instances of coercion, and no broadcaster has petitioned for review because of the pressures the petitioners detect.

Section 315 of the Communications Act,¹⁴  as amended in 1959, provides a statutory basis for the Commission's pre-existing version of the fairness doctrine and imposes "a duty on broadcasters to discuss both sides of controversial public issues." Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380, 89 S. Ct. 1794, 1801, 23 L. Ed. 2d 371 (1969). The fairness doctrine must be administered by the Commission to enhance, not inhibit, the rights secured by the first amendment.¹⁵  In Red Lion, the landmark case on the doctrine, Mr. Justice White wrote:

"It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. * * * It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." 395 U.S. at 390, 89 S. Ct. at 1806.

The channels of radio and television transmission are public property entrusted to licensees as proxies or fiduciaries of their communities. 47 U.S.C. § 301; 395 U.S. at 389, 89 S. Ct. 1794. But the licensees are not deemed common carriers. 47 U.S.C. § 153(h). Limitations of time and frequencies make it impracticable for them to accept every tendered program. Recognizing this, the Commission has applied the fairness doctrine only to controversial issues of public importance, and Red Lion has placed its constitutionality beyond question.

As we noted in Part I, the Commission stated a rational basis for its decision that a broadcaster could reasonably determine that the effect of smoking on health was no longer controversial. However, knowledge of the effect of smoking is not static, and many aspects of this subject may still generate controversy. As to them, the Commission ruled the public is entitled to hear various points of view, including the tobacco industry's. The Commission cited particular studies, statistics, and proposals for remedial action as examples of potential controversy to which the fairness doctrine would apply. The Commission's ruling that the fairness doctrine applies to those aspects of the effect of smoking on health that remain controversial, but not to those that may now be deemed beyond controversy, provides the public "suitable access" to this issue and therefore satisfies both § 315 of the Communications Act and the first amendment. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969).

In contrast, controversy is not essential to a station's obligation to present programs about the effect of smoking on health. This duty does not rest merely on the fairness doctrine. The fundamental basis of this obligation is the licensee's responsibility to serve the public interest by providing information about cigarettes' unique threat to public health. Banzhaf v. FCC, 132 U.S.App. D.C. 14, 405 F.2d 1082, 1091 (1968), cert. denied, 396 U.S. 842, 90 S. Ct. 50, 24 L. Ed. 2d 93 (1969); see Green v. FCC, 447 F.2d 332, 333 (D.C. Cir. June 18, 1971). A station's treatment of this subject is pertinent to renewal of its license. From its inception, the Commission's licensing function has involved not only examination of technical facilities, but also evaluation of the services a station renders the public. 47 U.S.C. §§ 307, 309; National Broadcasting Co. v. United States, 319 U.S. 190, 216, 63 S. Ct. 997, 87 L. Ed. 1344 (1943). We find, therefore, no error in the Commission's continued recognition of the effect of smoking on the public welfare or in its statement that it will consider the treatment of this subject when it assesses a station's overall public service performance.

Affirmed.