Larus & Brother Co. v. Federal Communications Commission
Larus & Brother Co. v. Federal Communications Commission
Opinion of the Court
The Tobacco Institute and a number of cigarette manufacturers petitioned to review a report and order of the Federal Communications Commission.
In anticipation of the forthcoming statutory ban on advertising cigarettes by radio and television,
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.
I.
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 doc
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 Leven-thal 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,
The significance of the HEW reports is disclosed by extracts contained in the Senate Report on the Public Health Cigarette Smoking Act of 1969.
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.
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.
On its face, the Commission’s order does not censor information about smoking in violation of § 326 of the Communications Act.
Section 315 of the Communications Act,
“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.
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.
. Jurisdiction is based on 47 U.S.C. § 402 (a) and 28 U.S.C. § 2342(1). Contrary to the Commission’s assertion, its order is reviewable at this time. 5 U.S.C. §§ 551(13), 702 and 704. Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967) ; Columbia Broadcasting System v. United States, 316 U.S. 407, 416, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942).
. The Public Health Cigarette Smoking Act of 1969 (15 U.S.C. § 1335) provides :
“After January 1, 1971, it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission.”
. The fairness doctrine, which has its roots in the earliest regulatory decisions involving use of the air-waves, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), reflects the duty of radio and television licensees “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” Communications Act § 315(a), 47 U.S.C. § 315(a). See generally Green v. FCC, 447 F.2d 323, 327 (D.C.Cir. 1971) ; Retail Store Employees Union, Local 880 Retail Clerks International Ass’n v. FCC, 436 F.2d 248, 256 (D.C.Cir. 1970) ; In re Obligations of Broadcast Licensees Under the Fairness Doctrine, 23 F.C.C.2d 27 (1970) ; Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949).
. The Commission, one member dissenting, also held that broadcasters would not be required by rule to devote significant time to anti-smoking messages. No review is sought of this aspect of the Commission’s ruling.
. In re Television Station WCBS-TV, New York, N. Y., Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C.C.2d 921 (1967), aff’d sub nom. Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
. Letter to Larry Jonas, KBMC-FM, Nov. 2, 1967, 8330-S, C9-1304. See also, Tobacco Institute, Inc., 11 P & F Radio Reg.2d 987, 988 (1967).
. The reports were made pursuant to § 5 (d) (1) of the Cigarette Labeling and Advertising Act of 1965. See also 15 U.S.C. § 1337(a).
. Section 2 of the Public Health Cigarette Smoking Act of 1969 (amending the Cigarette Labeling and Advertising Act of 1965). 15 U.S.C. §§ 1333, 1335.
. The Senate Report states in part:
“Following are significant conclusions from the HEW reports, ‘The Health Consequences of Smoking, 1967, 1968, and 1969: Smoking and Cardio-Vascu-lar Disease’:
1967— ‘ * * evidence not only confirms the fact that cigarette smokers have increased death rates from coronary heart disease, but also suggests how these deaths may be caused by cigarette smoking.’ ‘Cigarette smoking males have a higher coronary heart disease deatli rate than nonsmoking males. This death rate may, on the average, be 70 percent greater, and, in some, even 200 percent greater or more in the presence of other known “risk factors” for coronary heart disease.’
1968— ‘Because of the increasing convergence of epidemiological and physiological findings relating cigarette smoking to coronary heart disease, it is con-
1969 — ‘Further data from prospective studies confirm the judgment that cigarette smoking is a significant risk factor that contributes to the development of coronary heart disease, apparently by promoting myocardial infarct and cardiac arrhythmias.’
Smoking and chronic obstructive bron-chopulmonary diseases (emphysema and bronchitis) :
1967— ‘It — cigarette smoking — greatly increases the risk of dying not only from chronic bronchitis but also from pulmonary emphysema.’ ‘Even relatively young cigarette smokers frequently have demonstrable respiratory symptoms and reduction in ventilatory function.’
1968— ‘Additional physiological and epidemiological evidence confirms the previous findings that cigarette smoking is the most important cause of chronic nonneoplastic bronchopulmonary disease in the United States.’
Smoking and cancer
1968 — '“Additional evidence substantiates the previous findings that cigarette smoking is the main cause of lung cancer in men. Cigarette smoking is causally related to lung cancer in women * * ‘Smoking is a significant factor in the causation of cancer of the larynx and in the development of cancer of the oral cavity.’
1969 — -‘More studies have been done to identify those substances in tobacco smoke which take part in carcinogenesis. These studies may help to define the exact biomeclianisms involved in the cause and effect relationship between cigarette smoking and lung cancer.’ ”
S.B.ep.No.91-566, 91st Cong., 1st Sess., p. 3, 2 U.S.Code Cong. & Admin.News pp. 2652, 2654 (1970).
. Illustrative of the testimony on which the petitioners rely is the following colloquy with Senator Moss:
“Senator Moss. Something was said this morning about there might be a turnaround of the fairness doctrine the other way ; that in the event there were a number of these educational, anti-smoking showings, that perhaps there ought to be a right of the tobacco industry to come in the fairness doctrine and state its pro side over again.
What is your response to that?
“Mr. Ilyde. There may well be an advantage in that, Senator. Let me explain. The fairness doctrine in principle holds that the public is entitled to hear both sides of the proposition or both sides of the issue which is controversial, and affects the public interest.
Now, it is quite possible that, if a station carries an anticigarette smoking presentation, that more attention could be attracted to that presentation if you had the other side of the argument available at the same time.
*881 What I am suggesting is that a good, sharp argument might attract more attention than a presentation of simply one side of the issue.
“Senator Moss. For that reason you wouldn’t necessarily oppose the statement of the pro side if the anti side was permitted to continue?
“Mr. Hyde. That is right. But let me indicate how this operates.
The fairness doctrine says that if a station presents one side of an issue of public importance, a controversial issue of public importance, they must provide some reasonable opportunity for the presentation of other viewpoints.
Now, assuming there is no cigarette advertising as such, but simply a presentation of what we might classify as an educational presentation to discourage the use of a product which the Surgeon General has found harmful to health. In that situation fairness would require that there be some reasonable opportunity for the presentation of the other viewpoint as long as this remains in controversy. This doesn’t mean that the other viewpoint should be presented in an advertising form. It simply means that some other spokesman, one knowledgeable, we trust, would present the other side of the argument, so that the public could have all of the relevant viewpoints upon which to make their judgment.
It is not an invitation to advertising. It is not an invitation to equal time. It simply calls on the broadcaster to make some reasonable provision for the presentation of the other side of the argument on which he has presented the “first argument.”
Hearing on H.R. 6543 Before the Consumer Subcommittee of the Senate Commerce Committee, 91st Cong., 1st Sess., p. 160 (1969) ; see also id. at 161 and 162; Hearings on I-I.R. 643 Before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., Part 1, pp. 209 and 226 (1969).
. Hearing on H.R. 6543 Before the Consumer Subcommittee of the Senate Commerce Committee, 91st Cong., 1st Sess., p. 162 (1969).
. In a prepared statement, Josejih P. Cullman, III, Chairman of the Board of Directors and Chief Executive Officer, Philip Morris, Inc., and Chairman of the Executive Committee, the Tobacco Institute said:
“I am further authorized to inform the committee that if the broadcast industry will simultaneously terminate all contractual arrangements for the broadcast of cigarette advertising, we are prepared to agree to discontinue all such advertising at any time after December 31, 1969, that such termination becomes effective.” Hearing on H.R. 6543 Before the Consumer Subcommittee of the Senate Commerce Committee, 91st Cong., 1st Sess., p. 79 (1969).
. Title 47 U.S.C. § 326:
“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”
. Title 47 U.S.C. § 315(a) deals generally with the use of broadcast facilities by candidates for public office. It further provides:
“Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.”
. See generally, Note, A Fair Break for Controversial Speakers: Limitations of the Fairness Doctrine and the Need for Individual Access, 39 Geo.Wash.L.Rev. 532 (1971).
Reference
- Full Case Name
- LARUS & BROTHER COMPANY, Inc., t/a the House of Edgeworth v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, The Tobacco Institute, Incorporated, Intervenors
- Cited By
- 3 cases
- Status
- Published