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09/13/78 American Security Council v. Federal Communications


September 13, 1978




Before: DANAHER, Senior Circuit Judge, TAMM and WILKEY, Circuit Judges


Petition for Review of an Order of the Federal Communications Commission


Opinion for the Court filed by Circuit Judge WILKEY.

Dissenting opinion filed by Circuit Judge TAMM.

WILKEY, Circuit Judge : The American Security Council Education Foundation petitions for review of a Federal Communications Commission order dismissing its fairness doctrine complaint against CBS, Inc. *fn1 ASCEF's complaint alleged that the coverage of "national security" issues by CBS-TV News during the years 1972-76 was consistently imbalanced. Finding that the complaint did not define with sufficient specificity a "controversial issue of public importance" or present evidence of imbalance in CBS' overall programming, the Commission held that ASCEF failed to make out a prima facie violation of the fairness doctrine and dismissed its complaint without making inquiry of the network. We hold that the FCC's action was an abuse of discretion and remand for proceedings consistent with this opinion. I. BACKGROUND

A.Facts .

ASCEF is a non-profit educational institution dedicated to enhancing public awareness of facts and issues concerning this country's "national security." In recent years, ASCEF's members have perceived what they regard as a bias toward "dovish" positions in the major television networks' coverage of national security questions. In order to verify this perception, ASCEF determined in December 1972 to undertake an exhaustive and scientific study of network news programs. Although ASCEF initially set out to examine all three major television networks, cost and time constraints dictated that it confine its attention to one. CBS was chosen because it had the largest news audience and the greatest number of affiliated stations.

ASCEF endeavored to structure the study so as to ensure as far as possible its independence and objectivity. It assembled a team of 11 research analysts, primarily independent consultants drawn from outside ASCEF who possessed advanced academic degrees. Ernest W. Lefever, a Senior Fellow at the Brookings Institution, was chosen to coordinate the research and write a report on its findings. An Independent Review Panel, consisting of eight scholars with established academic and diplomatic credentials, was organized to scrutinize the work in progress, including research procedures and tentative findings, and to prepare written comments on the final draft manuscript before publication.

The research staff based its study on videotapes of CBS news programs obtained from the news archives at Vanderbilt University. Transcripts were made of all CBS Evening News telecasts broadcast during 1972. *fn2 From the transcripts the researchers culled all news items falling within four topic areas thought likely to produce references to national security: U.S. military and foreign affairs (including the U.S.-U.S.S.R. military balance); Soviet military and foreign policy; Chinese military and foreign policy; and Vietnam affairs. This examination produced 1,396 news items. Items that consisted of reports of events (e.g., Vietnam battlefield and casualty reports) were eliminated from consideration, since efforts to identify hidden viewpoints within these items produced disparate conclusions. To minimize subjectivity further, the researchers decided to ignore the audio-visual background of the news items, as well as the vocal inflections and facial expressions of commentators and other persons. This winnowing process left 274 explicit opinions expressed by "newsmakers" or voiced by CBS correspondents.

These 274 news items were subjected to a "viewpoint analysis" which formed the core of ASCEF's fairness doctrine complaint. Under this analysis, which resembled a three-option approach used by the Brookings Institution in analyzing the U.S. budget, *fn3 each news item was coded "A", "B", or "C", according to the viewpoint expressed on U.S. national security: *fn4

Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be decreased .

To facilitate understanding of this coding system, ASCEF provided a chart, *fn5 giving examples of typical A, B, and C viewpoints on eight major national security subjects.

The 274 coded news items were broken down into sentences, and these sentences were tabulated to reveal the relative frequency of the three viewpoints. In sum, the study indicated that the CBS Evening News in 1972 presented viewpoint C (doing less about national security) 61.83% of the time, viewpoint B (the current Government position) 34.63% of the time, and viewpoint A (doing more about national security) 3.54% of the time. The researchers recognized that the overwhelming preponderance of C views owed largely to references about the Vietnam War. Even when references to Vietnam were excluded, however, C views outnumbered A views by a ratio of three to one. *fn6

The results of the study were examined by the Independent Review Panel in April and August 1974, and published in a 209-page report released on 23 October of that year. The report, entitled TV and National Defense : An Analysis of CBS News, 1972-73, contains an elaborate description of methodology and detailed statistical findings. Not surprisingly, it stirred considerable response from the press. *fn7

Shortly before releasing the report, ASCEF sent a copy to CBS, set forth its charges of distortion and imbalance, and requested that the network take corrective action. After some additional correspondence, CBS notified ASCEF on 23 April 1975 that it found no violation of the fairness doctrine and that no response to ASCEF's complaint was called for.

ASCEF thereupon determined to update its 1972-73 data "[in] order to determine whether CBS-TV News [had] continued its policy of failing to provide a reasonable opportunity for the expression" of contrasting viewpoints on national security. *fn8 ASCEF purchased microfiche copies of CBS-TV Evening News scripts for 1975 and of all CBS-TV News programs (except "Face the Nation") beginning with January 1976. In addition, ASCEF monitored and recorded all CBS-TV News programs for the latter two weeks of May 1975 (a randomly selected period) and for the entire month of May 1976 (the month immediately preceding ASCEF's preparation of its complaint). In reviewing these programs, ASCEF "found no significant change in the pattern of viewpoint coverage reported in the basic Study." *fn9

B. Course of the Litigation .

On 8 September 1976 ASCEF filed a 21-page complaint with the FCC charging that CBS-TV News had violated the fairness doctrine by its "persistent pattern of lopsided treatment of national security issues." *fn10 The complaint elaborated a description of the A-B-C coding system and a summary of the report's findings; a copy of the 209-page report itself was furnished as an exhibit. ASCEF asked that the Commission designate the complaint for a hearing on the merits. In its order released 15 March 1977 the FCC found that "no Commission action [was] warranted" inasmuch as the complaint failed to establish a prima facie case of noncompliance with the fairness doctrine. *fn11 We review the Commission's order to determine whether it was arbitrary, capricious, or an abuse of discretion. *fn12 II. ANALYSIS

The fairness doctrine requires that broadcasters afford a reasonable opportunity for the presentation of contrasting views on controversial issues of public importance. *fn13 Although the fairness doctrine has been upheld by the Supreme Court *fn14 and been given statutory recognition by Congress, *fn15 "important constitutional questions continue to haunt this area of the law." *fn16 We should stress at the outset that none of these questions is presented here, for in this case we confront not the merits of ASCEF's fairness complaint, but rather the purely procedural question of whether the complaint on its face was sufficient to set the wheels of an FCC investigation in motion.

CBS nevertheless attempts to inject a certain constitutional flavor into this case by suggesting that ASCEF's complaint, assertedly "broad in scope and subjective in methodology, represents a serious challenge to the First Amendment value of ensuring that broadcasters can make editorial decisions free of intrusive governmental interference." *fn17 This suggestion, we believe, rests on a fundamental misapprehension of the fairness doctrine and of ASCEF's complaint.

While disavowing any effort to denigrate or challenge the constitutional validity of the fairness doctrine, CBS has attempted to drape the mantle of First Amendment protection solely around those in the broadcast industry. This approach ignores the rest of the citizens of this country. "[The] people as a whole," as the Supreme Court said in Red Lion, "retain their interest in free speech [over the airways] and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." *fn18 For the great bulk of citizens who are not broadcasters, the only way at present in which their First Amendment rights over the airways can be enforced is through the fairness doctrine.

The fairness doctrine is not a device for censorship; in fact, it is a preventive against censorship: only by application of the fairness doctrine can private censorship according to the whim of the licensee be avoided. The fairness doctrine does not restrict the licensee in anything he may broadcast; it merely compels the licensee to present other points of view to preserve some sort of rough balance on controversial issues of public importance.

As we understand the complaint, ASCEF seeks no restriction on CBS' right to broadcast anything. Even if it could be done retroactively, CBS would not - as we understand the fairness doctrine and what ASCEF contends here - be obligated to eliminate anything which it broadcast in the years 1972, 1973, 1975, and 1976 on the various facets of the issue of national security. What ASCEF contends the licensee was obligated to do, and what every licensee is obligated to do from the moment it accepts a free broadcast license from the Government, is to utilize its broadcast channel to present a rough balance of both sides of every major issue, if it deals with the issue at all. Unless the fairness doctrine itself is a violation of someone's First Amendment rights - and neither FCC nor CBS claims this - the ASCEF complaint, substantiated or unsubstantiated, can be no violation of anyone's First Amendment rights.

Contrary to the network's intimations, therefore, we emphasize that the question before us is a modest one. It is a question not of constitutional law nor of the merits of ASCEF's fairness challenge, but a question simply of FCC procedure. Phrased in the cant of the profession, the question is whether ASCEF's complaint presented prima facie evidence of a violation of the fairness doctrine sufficient to warrant an FCC inquiry to CBS. *fn19

The requirement of a prima facie showing places the initial burden on the complaining party. *fn20 This threshold allocation of burdens is rationalized by First Amendment concerns: by preventing broadcasters from being saddled with the task of "answering idle or capricious complaints," the Commission endeavors as far as possible to eschew interference with their programming discretion. *fn21 The requisities of a prima facie case were enumerated in Allen C. Phelps, *fn22 where the Commission stated: [It] has long been our policy normally to require that fairness doctrine complaints (a) specify the particular broadcasts in which the controversial issue was presented, (b) state the position advocated in such broadcasts, and (c) set forth reasonable grounds for concluding that the licensee in his overall programing has not attempted to present opposing views on the issue. *fn23

In Democratic National Committee v. FCC,*fn24 we reaffirmed our view that the Phelps requirements represented "a 'not unreasonable' standard," and ASCEF specifically disclaims any challenge to those requirements here.*fn25 Assuming for the purpose of our decision the validity of the Phelps criteria, then, the only question is whether the FCC reasonably complied with its own procedural standards in dismissing ASCEF's complaint.

It is possible to distinguish in the FCC's opinion four intertwined reasons in support of its conclusion that ASCEF's complaint failed to establish a prima facie case. The Commission argued (1) that ASCEF did not define the "controversial issue" with sufficient specificity; (2) that ASCEF's evidence did not support its assertion that the programs surveyed were imbalanced; and that ASCEF failed to provide evidence of imbalance in CBS' overall programming, either (3) because it did not survey a broad enough spectrum of the network's news and public affairs programs or (4) because it did not continue its study for a long enough period of time. We consider these arguments in turn.

A. Definition of the Issue.

The FCC on several occasions has stressed that a fairness complainant bears the burden of "specifying the particular issue of a controversial nature discussed over the air."*fn26 In this case, the FCC found that no "welldefined issue" had been presented:*fn27

Although the "national security issue" is defined by the complainant as involving "the basic conflict relationship and the relative military balance between the U.S. and the U.S.S.R.," in other parts of the complaint ASCEF refers to the subject of the study as "national defense and foreign policy issues," "Soviet and Chinese political and military objectives," and "domestic foreign policy." Moreover, the data collected in the accompanying study indicates that the complainant's perceived scope of the issue is much broader, encompassing subjects such as Chinese military and non-military policies, Southeast Asia and foreign relations generally.

By failing to define "national security issues" more precisely, ASCEF allegedly "made it impossible for the Commission to determine the actual issue, if any, which the complaint addressed."*fn28

A requirement that one specify the issue as the logical starting-point of an analytical undertaking can hardly be gainsaid. It must, however, be approached with a fair amount of common sense. From this vantage point, the FCC's inability to grasp the issue presented here can only be described as a willful obtuseness. ASCEF's complaint and accompanying report, particularly in their elaboration of the A-B-C viewpoint analysis,*fn29 made the relevant issue as plain as day: whether this nation should do more, less, or the same about perceived threats to its national security. Topics like "Soviet military affairs" and "Chinese political objectives" were never posed as "the issue" at all, but were merely subject-areas in which references to "the issue" - the appropriate response to national security threats - typically could be expected to arise.ASCEF put in evidence copies of some 30 newspaper and magazine articles discussing its report; the authors of these articles, regardless of their views on the merits, discerned with perfect comprehension what "the issue" was.*fn30 Indeed, the FCC in its opinion quoted ASCEF's definition of the three "national security" viewpoints,*fn31 and it is hard to explain the Commission's astonishment before the handwriting on the wall.

The issue ASCEF posed - whether this nation should do more, less, or the same about threats to its national security - is a specific issue because it is singular, precisely formulated, and explicit.*fn32 The issue is admittedly a large one, but no larger than other major issues (such as abortion,*fn33 or cigarette advertising)*fn34 with which the Commission in fairness cases has dealt. The issue is likewise a multi-faceted one, but no more multi-faceted than other major issues (such as "women's liberation"*fn35 or children's advertising)*fn36 which the Commission in fairness cases has considered. An issue's size and complexity, in any event, do not impugn its specificity or singularity, and we think that ASCEF's definition of the issue was statement here. plainly sufficient to cross the threshold of a prima facie

The specificity requirement, as we have noted above, has a pragmatic purpose, and it should be pragmatically employed. The FCC in the past has shown some ingenuity in extracting specificity from a variegated proffer of issues*fn37 and has suggested on at least one occasion that the specificity requirement is largely precatory.*fn38 We have discovered extremely few cases in which the FCC has cited non-specificity as a reason for throwing out a fairness complaint.*fn39 The complaints in these cases, moreover, were otherwise frivolous, and in view of the well-considered and substantial quality of the complaint in this case the Commission's verdict is virtually unprecedented.*fn40 "Inadequate definition" must not be used as a device for arbitrarily eliminating fairness complaints which the Commission for some reason may not want to process.*fn41

For these reasons, we conclude that the FCC abused its discretion in finding that ASCEF's definition of the relevant issue fell short of the specificity required of a prima facie case. Whether that issue is "controversial" and "of public importance" is not before us, and must be decided by the FCC on remand.*fn42

B. Evidence of Programming Imbalance.

In order to demonstrate a prima facie violation of the fairness doctrine, the complainant must indicate "the basis for [hia] claim that the station has presented only one side" of the issue in question.*fn43 ASCEF indicated the basis for its claim that CBS had presented only one side of the national security issue by means of a statistical study showing that the network broadcast C viewpoints (doing less about national security) 17 times more frequently than it broadcast A viewpoints (doing more about national security).

a complainant at the outset demonstrate his case beyond cavil is to transmute the requirement of a prima facie

The FCC attacked the evidentiary basis for ASCEF's claim primarily by questioning the methodology of its viewpoint coding system. Some coded viewpoints, the Commission argued, bore no logical relation to national security; others, while logically relevant to national security, were improperly coded on the A-B-C spectrum. The Commission cited one example of each sort of alleged misclassification;*fn44 on the basis of these two examples, it concluded that ASCEF failed to present "adequate, relevant evidence of a violation of the fairness doctrine. ..."*fn45

We believe that the FCC's conclusion was arbitrary for three reasons. First, neither of the Commission's examples proves any flaw in ASCEF's analysis. They evidence, at most, arguable misclassification; whether they are misclassifications in fact depends on their content and the context in which they appeared.*fn46 Without texts of the items broadcast, the FCC simply did not have sufficient information to make judgments on close questions raised by ASCEF's evidentiary showing.

Second, even if the FCC's two examples manifested clear coding errors, they would not necessarily eviscerate ASCEF's tender of proof. ASCEF's report coded almost 300 news items, broken down into several thousand sentences. A fair-minded evaluation of this evidence must frankly confront the bulk of the complaint; it cannot rest content with the citation of two, five, or ten lapses that do not fairly represent the whole.

Third, and most important, the type of detailed evidentiary challenge on which the Commission based its dismissal here is simply inappropriate at the prima facie stage of a fairness doctrine proceeding. The soundness of ASCEF's methodology and the probativeness of its particular examples are questions for the merits, to be resolved on the basis of responsive submissions by the network and the complainant. They are not questions that must unanimously be answered in favor of ASCEF before an inquiry is even made to the licensee. To require that a complainant at the outset demonstrate his case beyond cavil is to transmute the requirement of a prima facie showing into an ex parte evidentiary decision on the merits. Such a transmutation would render the fairness doctrine, whose enforcement depends almost exclusively on viewer-initiated complaints,*fn47 a dead letter.

Such a transmutation, moreover, is flatly inconsistent with the FCC's expressed procedural standards. In its 1974 Fairness Report the Commission discussed what a complainant had to do to "indicate the basis for a claim" of programming imbalance. "[If] several regular viewers or listeners join together in a statement that they have not heard a presentation of [the neglected] viewpoint," the Commission said, the evidentiary burden of a prima facie case normally would be met:*fn48

The fact that regular viewers or listeners have not been exposed to an opposing viewpoint is obviously not conclusive evidence that the viewpoint has not been presented, but it does indicate that there is a reasonable basis for the viewer's conclusion that such is the case. See Alan C. Phelps, 21 FCC 2d 12 (1969). Accordingly, we believe that it is a sufficient basis for a Commission inquiry to the station.

In this case, a host of "regular viewers" joined together not only in a "statement," but in an elaborate statistical analysis showing that they had not heard a balanced presentation of viewpoints on national security. By so doing, they "indicated the basis for their claim" of imbalanced programming and satisfied the evidentiary requirements of a prima facie case. The Commission acted arbitrarily in concluding otherwise.

C. Scope of Complainant's Study.

The fairness doctrine requires a licensee to provide for expression of opposing views in his overall programming; it does not require him to offer a forum for such views in the same program or series of programs. In order to establish a prima facie violation of the fairness doctrine, accordingly, a complainant must state his reasons for concluding that the licensee in his overall programming has demonstrated imbalance.*fn49 The Commission found that ASCEF failed to meet this burden here. In its decision, the FCC argued that ASCEF only examined "selected programs broadcast by the network for the periods covered by the study, but [did] not make an allegation as to the overall news and public affairs programming of the licensee during that time."*fn50 In its brief the Commission goes further, and faults ASCEF's failure to present evidence of imbalance "in CBS' overall news, public affairs, and non-entertainment programming."*fn51 Because ASCEF "did not address each programming component," the FCC concludes, its complaint was properly rejected as a "generalized and unsupported attack."*fn52

The requirement that a fairness complainant demonstrate, as part of his prima facie showing, the absence of contrasting viewpoints in a licensee's overall programming is, on its face, quite burdensome. Proving a negative proposition is never easy; it is especially difficult when the subject of which the proposition is predicated goes on 24 hours a day, 365 days a year. Recognizing this, the FCC in its Fairness Report proffered a narrow and reasonable interpretation of its standard:*fn53

[The Phelps doctrine] does not require, as some appear to believe, that the complainant constantly monitor the station.... While the complainant must state the basis for this claim that the station has not presented contrasting views, that claim might be based on an assertion that the complainant is a regular listener or viewer; that is, a person who consistently or as a matter of routine listens to the news, public affairs and other non-entertainment programs carried by the station involved. This does not require that the complainant listen to or view the station 24 hours a day, seven days a week. One example of a "regular" television viewer would be a person who routinely (but not necessarily every day) watches the evening news and a significant portion of the public affairs programs of a given station.

On the basis of this published procedural standard, we conclude that the FCC abused its discretion here. ASCEF's complaint asserted that its researchers had examined (1) videotapes of all Evening News broadcasts in 1972; (2) transcripts of 23 CBS News Specials and 14 "60 Minutes" programs broadcast in 1972; (3) indices and abstracts of all Evening News broadcasts in 1973; (4) scripts of all Evening News broadcasts in 1975; (5) recordings of all CBS-TV News programs in a randomly chosen two-week period in 1975; (6) scripts of all CBS-TV News programs (except "Face the Nation") broadcast in 1976; and (7) recordings of all CBS-TV News programs broadcast in May 1976. On the basis of these assertions, ASCEF's researchers were plainly shown to be "regular viewers" who "routinely... [watched] the evening news and a significant portion of public affairs programs."

The requirement that a fairness complainant establish a prima facie case is, as we have said above, a commonsense requirement. Given the nature of the fairness doctrine, a complainant can legitimately be expected to make a show of having searched the broadcaster's overall programming for contrasting viewpoints. A complainant can reasonably be expected to search for such viewpoints, however, only where he sensibly would expect to find them. The Evening News is CBS' flagship news program, and has the largest audience of any television news broadcast. It dwarfs in its length, viewership, and importance the CBS Morning News, Midday News, and other subsidiary programs. The network's "News Specials" and "60 Minutes" are among its most popular news and public affairs broadcasts, and ASCEF examined all installments of these programs dealing with national security, defense, or foreign policy in 1972. If CBS did in fact present significant "opposing views" on national security in that year one would expect it to have put them where ASCEF looked. To require that a complainant look much further afield at the prima face stage of a fairness proceeding would be unreasonable.*fn54

The FCC's assertion that a fairness complainant must examine all of a licensee's programming is illogical here, because it ignores the type of issue which is being studied. The FCC relies upon our recent decision in NOW v. FCC,*fn55 in which we did hold that a licensee's fairness toward women, women's role, and women's participation in public affairs must be tested by an examination of all its programming, not just a few specific programs ostensibly devoted to women's issues. This holding was valid in NOW because obviously women might appear, or should be expected to appear, in every role in a station's programming throughout the day, as a topic for the program itself, as announcers, actors, advertising proponents, etc. In ASCEF's case we are dealing with the issue of national security, and we would not logically expect to find a thoughtful discussion of national security on an afternoon soap opera or a prime-time comedy hour.

For these reasons, we conclude that ASCEF submitted sufficient evidence of imbalance in CBS' overall programming on "the issue" during the period surveyed to make out a prima facie case. The Commission's contrary conclusion, in view of its own procedural standards, was an abuse of discretion.

D. Timeliness of the Complaint.

In its opinion the FCC suggested that although ASCEF had submitted "a voluminous, in-depth analysis of the opinions expressed" in a variety of CBS News programs in 1972-73, 1975, and 1976, its study still "[fell] short of examining the overall programming of the network" because it "made no allegations as to the content of almost two years of the network's programming - a period during which numerous election campaigns were underway" and during which "national security issues might well have been topics for discussion."*fn56 This suggestion, we think, is frivolous. The Fairness Report requires only that a complainant establish his status as a "regular viewer." It does not suggest that a complpainant, to be a regular viewer, must monitor the station for five consecutive years. The FCC in the past has found complainants to be "regular viewers" on the basis of their assertion that "they monitored the station 'for many hours, over many weeks.'"*fn57 ASCEF easily surpassed that record here.

Both the FCC *fn58 and CBS, finally, suggest that ASCEF is to be faulted for "[waiting] more than three years" from the time the 1972 programs were broadcast - the programs that formed the core of its study - before filing its complaint. *fn59 ASCEF finished its report in October 1974 and immediately sent the results to CBS. Six months later CBS delivered its definitive response. ASCEF at once undertook to update its study (May 1975), and updated it again just before filing its complaint (May 1976). To suggest that ASCEF can be scored for dilatoriness on this record is ludicrous. Obviously, the complainant could have sent its study to the Commission in 1974 without giving CBS a chance to reply. That, however, would have violated the Commission's published rules of fairness doctrine procedure. *fn60 Alternatively, the complainant could have omitted its recheck for the years 1975 and 1976. In that event, however, the complainant might well have anticipated a rejoinder that its findings were stale or insufficiently thorough. Having made its findings thorough and up-to-date, the complainant is now faced with the charge that its complaint is untimely. This is "Kafkaesque" *fn61 bureaucracy in the ultimate. III. HOLDING

In effect, the obligation of the television licensee is the other side of the coin from the obligation of a court. The most essential part of due process for centuries has been recognized by Anglo-American jurists to be audi alteram partem - "hear the other side." A licensee's obligation is to permit the other side to be heard by the American public. "The essential basis for any fairness doctrine, no matter with what specificity the standards are defined, is that the American public must not be left uninformed." *fn62 We recognize in the courts that no justice is done if both sides are not heard; occasionally a court may reach a right result without hearing both sides, but we insist on the procedural due process of hearing both sides to validate the eventual judgment.

In regard to the exercise of free speech on the airways, the only protection under the First Amendment which those citizens not involved in the broadcast industry have is the protection of the fairness doctrine. Since television licenses cannot be granted to all, there must be a rough balance in the points of view presented over the airways. The licensee is the custodian for service to the public.Neither the licensee, nor the FCC, nor any member of the public can be the arbiter of the truth of what is broadcast. But the licensee, and then the FCC if the licensee does not perform, is the arbiter and enforcer of preserving a rough balance in the discussion of controversial issues of public importance over the facilities of each licensee.

As we stressed at the outset, so we emphasize in conclusion, that we express no views on the merits of ASCEF's complaint. Whatever flaws the study on which the complaint was based may ultimately be shown to have, the FCC did not demonstrate them in its opinion ruling on whether the complainant had made a prima facie case. Indeed, by the very nature of the issue and the purported exhaustive documentation, it would have been virtually impossible to have done so. We hold only that, as a procedural matter, ASCEF specified "an issue" and presented sufficient evidence of imbalance in the network's overall programming on that issue to meet the threshold requirements of a prima facie case concerning the issue of national security. *fn63 Since we anticipate the Commission on remand could hardly find the issue of national security not to be "controversial" and "of public importance," it must, in accordance with its own procedures, make inquiry of CBS. *fn64 Further action by the Commission likewise must be in accordance with Commission procedures and applicable precedents.

Remanded for proceedings consistent with this opinion.



The following list of eight national security issues illustrates the differences between the A, B, and C viewpoints. This was used as a guide in coding the CBS Evening News items.

Issues Viewpoint A Viewpoint B Viewpoint C

1. Desirable U.S. should be Parity between U.S. Not necessary


Military Balance to USSR and USSR f

or U.S. to match Soviet

military power

2.Actual Military USSR is ahead of USSR and U.S. are U.S. is ahead of


Balance about equal

3. SALT: ABM and Favors Soviet Union Preserves strategic Laudable, but not

at suffi-

Missile Freeze Expense of U.S. parity and enhance ciently


international peace

4. U.S. Defense Should be Should retain Should be

substantially substantially

Budget increased present level decreased

5. Soviet and USSR and PRC still USSR and PRC have USSR and PRC

in- intentions

Chinese tend to expand theirmellowed and are are largely peaceful


Objectives influence by any expansionist

available means

6. U.S. Allies U.S. should give Allies should U.S. support to

greater receive allies

support to its modest U.S. support should be

allies substantially cut

a. NATO U.S. should U.S. should withdrawU.S. should

maintain its unilaterally

force level in forces as Soviets withdraw forces

Europe withdraw

b. Vietnam War U.S. should take warU.S. should withdrawU.S. should

withdraw as

(1972) to enemy as Saigon takes fast as possible

responsi- regardless

bility for fighting of effect on South


c. South Vietnam Moderately Moderately Corrupt, repressive,

responsive, responsive,

Government enjoys fairly broad enjoys fairly broad dictatorial,

pop- pop- unworthy of

ular support, meritsular support; U.S. aid


strong U.S. U.S. aid sufficient


7. North Vietnam Dictatorial, Dictatorial, Authoritarian,

repressive repressive re- fighting just

Government regime seeking to gime seeking to war to unite

conquer conquer Vietnamese

S. Vietnam; breaks S. Vietnam; may keeppeople; will keep

inter inter-

national commitmentsinternational national commitments


8. China (Peking)

a. Government Totalitarian, Totalitarian, Disciplined,

repressive, mellowing socially

expansionist slightly progressive

b. President's Legitimatized Red Reduced tensions U.S. should have

China recognized

Trip and weakened Taiwan and encouraged

detentePeking long before


The following persons were members of the Independent Review Panel: Ambassador Willard L. Beaulac, consultant; Robert A. Gessert, Principal Scientist, General Research Corporation/Research Analysis Corporation; Whittle Johnston, Woodrow Wilson Department of Government and Foreign Affairs, University of Virginia; Charles Burton Marshall, Paul H. Nitze Professor of International Politics and Research Associate at the Washington Center of Foreign Policy Research, School of Advanced International Studies, Johns Hopkins University; Eugene H. Methvin, Senior Editor, Reader's Digest, Washington Bureau; Paul Ramsey, Harrington Spear Paine Professor of Religion, Princeton University; Riordan Roett, Director of Latin American Studies and Associate Professor of Political Science, School of Advanced International Studies, Johns Hopkins University; Dr. William Schneider, Consultant, Hudson Institute.

The following persons were members of the Board of Directors of ASCEF at the time of the study; Karl R. Bendetsen, Retired Chairman, Champion International; Gus A. Buder, Jr., Attorney; Ambassador Elbridge Durbrow, Director, Freedom Studies Center, ASCEF; Rosemary Edmiston; Harold F. Falk, Chairman, Executive Committee, Falk Corporation; Sol Feinstone, President, S & R Foundation; John M. Fisher, President and Chief Executive Officer, ASCEF; Patrick J. Frawley, Jr., President, Frawley Enterprises; Robert W. Galvin, Chairman, Motorola, Inc.; Ellen Garwood; the Honorable Mills E. Godwin, Jr., Governor of Virginia; Lady Malcolm Douglas-Hamilton, President, Committee to Unite America, Inc.; Marjorie H. Hankins, Member, Executive Committee, Missouri Council on National Security; Francis A. Harrington; Michael J. Harvey, Jr., President, Michael J. Harvey, Jr. Foundation; George R. Hearst, Jr.; Publisher, Los Angeles Herald-Examiner; Walter H. Judd, M.D.; James S. Kemper, Jr., President, Kemper Insurance Companies; Charles H. G. Kimball, Partner, Ashcraft and Ashcraft; Ollie W. Langhorst, Executive Secretary-Treasurer, Carpenters' District Council of St. Louis; Ambassador Clare Boothe Luce; Lawrence J. Meisel, Chairman of the Executive Committee, Missouri Council on National Security; Dr. Arthur G. B. Metcalf, Chairman of the Board and President, Electronics Corporation of America; Ellen Ogle; Dr. Arthur L. Peterson, Chairman, Department of Politics and Government, Ohio Wesleyan University; Henry Regnery, Chairman, Henry Regnery Company; Henry Salvatori, President, Grant Oil Tool Company; Gerald J. Schipper, M.D.; John G. Sevick, General Manager, McCormick Place; D. French Slaughter, Jr., Partner, Button, Slaughter, Yeaman & Morton; Colonel John Slezak, Chairman, Kable Printing Company; Dan A. Sullivan, Retired Conference Chairman, ASCEF; Francis J. Vignola, President, Vignola and Associates, Ltd.; William H. Weldon, Publisher, News Tribune Company, Inc.; Dr. Benjamin C. Willis, Former Superintendent of Schools, Chicago, Illinois; John R. Woods, Vice President, E. F. Hutton and Company, Inc.; James O. Wright, Chairman of the Board and President, Badger Meter Manufacturing Company.


The materials that follow, excerpted from TV AND NATIONAL DEFENSE: AN ANALYSIS OF CBS NEWS, 1972-1973,1b are illustrative of the methodology, data, and conclusions of the study on which ASCEF relied in making out a prima facie violation of the fairness doctrine by CBS.

[Chapter 4. Viewpoint Analysis.]

. . .

The Fairness Doctrine of the FCC requires TV stations and networks to provide a "reasonable opportunity for the presentation of conflicting views on issues of public importance" to "promote diverse and rubust discussion." Did CBS Evening News in 1972 provide "a reasonable opportunity" for its vast audience to hear "conflicting views" on national security problems? That is the question addressed in this chapter.

We sought to answer this question by content analysis, which has been described by Dr. Charles Winick as "an established technique" and a "powerful tool" for the "systematic description of communication content." He adds: "Even though it relies on judgments, content analysis can be scientific, if it is objective, systematic, and quantitative." Dr. Winick in 1971 prepared a critical report commissioned by CBS News on The News Twisters by Edith Efron.

In our content analysis of CBS Evening News we have made every effort to be "objective, systematic, and quantitative." At the same time, we recognize, as does Dr. Winick, such analysis relies on judgment. After grappling with the transcripts for several months, we developed a method we call viewpoint analysis, described in detail below, which may be a pioneering effort in the evaluation of communication content. We are fully aware that viewpoints are subtly transmitted by the communicator and subjectively received by the citizen-viewer, but we believe we have avoided the pitfall of subjectivity.

Four Research Phases

As far as we are aware, no one before had attempted a detailed examination of the viewpoints presented in a full year of network evening news. This first effort necessarily involved a certain amount of trial and error. We frequently had to correct and refine early assumptions, terms of reference, and techniques. Gradually, we replaced doubtful and subjective methods with more certain techniques that relied less on personal judgment. While perfecting our viewpoint analysis, we introduced and developed other methods of content analysis, the results of which are reported in Chapters 2 and 3. The 14 major research steps of the viewpoint analysis fell under four partially overlapping phases:

Phase 1: Initial Terms of Reference

1. We defined national security very broadly to include all broadcast material that fell under these nine subjects: 1) U.S. military posture, 2) U.S. national strength, 3) U.S. internal security, 4) USSR: military, 5) USSR: non-military, 6) China: military, 7) China: non-military, 8) Southeast Asia, and 9) other foreign relations.

2. We consulted the Television News Index and Abtracts of the Vanderbilt Television News Archive and rented video tapes of all evening news items carried by ABC, CBS, and NBC bearing on any of the nine subjects. (After we decided to limit the study to CBS, we returned the ABC and NBC video tapes.)

3. The Institute for American Strategy staff transcribed all the relevant CBS Evening News items for 1972. The resulting 1,396 transcripts became the original data base for the viewpoint analysis. A brief description of the audio-visual background was attached to each transcript.

4. A viewpoint coding system was devised to identify the opinion or perspective of all broadcast material on national security, using the actual position of the U.S. Government as the point of reference. In brief, the three viewpoints were: Viewpoint A, the threat to U.S. national security is greater than that on which present policy is based or we ought to do more to deal with the threat; Viewpoint B, the threat is approximately the same as that on which present policies are based and government efforts are generally appropriate; Viewpoint C, the threat to U.S. national security is less than that on which present policy is based or the government ought to do less in response to the lesser threat. If the national security item presented no viewpoint, it was designated as D. The three viewpoints are elaborated in the next section of this chapter.

Phase 2: Preliminary Analysis

5. A questionnaire for evaluating each CBS News transcript was developed, calling for detailed responses from one of a group of academic analysts formed for this purpose. (The transcript analysts and other outside researchers are listed in the acknowledgements.) The analyst was required to code all viewpoint passages as A, B, or C, to indicate the intensity of the view presented, and to identify the "tactics" used by the newsman. He was required to prepare a narrative justification for all his judgments. He was also asked to note recurring themes in the news items.

6.After the transcript was returned from the first reader, it was reviewed by a second reader. If there was serious disagreement over the coding in a particular transcript, it was often returned to the first reader. In all cases, there was a final reader whose task was to assure a reasonable degree of consistency in the application of the viewpoint definitions. All 1,396 news items were subjected to this process.

7. The last step in Phase 2 was the counting and tabulation of all viewpoint and D material by news item (as defined by Vanderbilt), by idea unit (coherent idea or thought), by sentences and by words. The tabulation was never fully completed because the reappraisal described in Phase 3 was already underway.

Phase 3: Refining Terms of Reference

While performing the seven steps above, we ran into persistent coding problems rooted in our broad definition of national security, the difficulty of ascribing a viewpoint to a description of events, and the varying perceptions of different analysts. As a result, the following steps were taken, some of them concurrently:

8. An eight-member independent review panel met at the Institute for American Strategy, April 12-14, 1974, to evaluate all aspects of the project to date. (The members of the panel are identified in Appendix D.) They commented on three draft chapters of the report. More importantly, they each independently reviewed a representative selection of previously coded transcripts, indicating their concurrence or dissent. They discussed with the staff these coding problems, the viewpoint definitions, and the problem of news items which seemed peripheral to national security. The panel confirmed some changes already underway and suggested further refinements in method, all reflected in subsequent steps.

9. The broad and somewhat diffuse definition of national security was replaced by a more precise one bearing more directly on U.S. defense and foreign policy. The following four topics replaced the nine noted in the first phase: 1) U.S. military and foreign affairs (including the U.S.-USSR military balance), 2) Soviet military and foreign policy, 3) China's military and foreign policy, and 4) Vietnam affairs.

10. The definitions of the three viewpoints were further clarified and sharpened. The D category was eliminated because it contained many irrelevant news items.

11. The single most perplexing coding problem was solved by a decision to code only directly presented viewpoints, rather than attempt to identify hidden or indirect viewpoints in reports of events. In the early months, we attempted to identify viewpoints in the reporting of events, such as battlefield reports from Vietnam, but we soon discovered that different analysts came to different conclusions. To eliminate these largely subjective judgments, we limited viewpoint coding strictly to explicitly expressed opinions reported on CBS Evening News or voiced directly by CBS correspondents. This decision had the effect of significantly reducing the number of news items finally coded. Virtually all of the numerous casualty and battefield reports in Vietnam, for example, were eliminated. Out of the original 1,396 news items, only 274 survived this rigorous screening. This left an average of more than one item for each Evening News broadcast in 1972, qite adequate for our analysis.

12. We decided that no coding judgments were to be based on the visual or audio background or on the voice inflection or facial expression of the CBS commentator or any other person. We recognize that these are important audience impact factors, but we concluded that their interpretation was too subjective to be used. In the final analysis, only the words were evaluated.

Phase 4: Final Analysis

13. Using these refined terms of reference, definitions, and techniques, a team consisting of a senior independent analyst, a senior Institute staff member, and the author did the final coding of the 274 news items carrying explicit viewpoints, modifying the earlier coding when necessary.

14. The results of the final viewpoint coding were tabulated and are presented by sentences and by words.

We are confident that any other group of objective scholars, using our viewpoint definitions, would come to essentially the same conclusions. The reader is invited to check our method and judgments by referring to the coded news items for June 1972 reproduced later in this chapter.

The Three National Security Viewpoints

A viewpoint is a position, opinion or attitude on any public issue. The most common method of viewpoint analysis employs three categories: for, against, and neutral. This is the device normally used by opinion analysts. It was also used by Edith Efron in The News Twisters. This method lends itself particularly well to an examination of broadcast or published material in an election campaign.

In the more complex area of national security issues, however, we concluded that the for-against approach was not adequate. People are not for or against national security. The vast majority of American citizens, except for a tiny fraction of pacifists, support national defense and military spending. The real questions are how much to spend for what kinds of programs. Should we spend the same amount we are now spending, significantly less, or significantly more? The question of how much for national defense is closely related to the perception of the threat.

This natural breakdown - doing more, doing the same, or doing less - reflects the options confronting the U.S. Government. After we had adopted this three-option approach we learned that it bore considerable similarity to a method used in the first annual analysis of the United States Budget by the Brookings Institution. The Brookings authors in 1970 developed the concept of alternative low, medium, and high defense budgets for both strategic and general purpose forces. 5 The medium dubget corresponded approximately to what the President had requested for fiscal year 1971, which was $72.3 billion. The low budget, based on a different assessment of the external threat and of America's responsibility in the world, came out at $48 billion, while the high budget, which assumed a greater threat and greater U.S. responsibilities, came to $77 billion. The Brookings study applied the three-option device for budget analysis to all domestic and foreign policy programs and used it with adaptations in the four subsequent budget studies.

In general, Viewpoint A holds that the threat to U.S. security is more serious than perceived by the government or that the United States ought to increase its national security efforts; Viewpoint B holds that present government threat perception is essentially correct or U.S. military and foreign policy efforts are adequate, and Viewpoint C holds that the threat to U.S. security is less serious than perceived by the government or that U.S. national security efforts should be decreased. These three perspectives can be better understood by consulting the chart on the following page which provides specific examples of the three viewpoints on eight major national security issues.

Millions of American citizens can be found who express viewpoints A, B, or C on any of the issues defined in the chart or other national security questions. This is also true of groups, organizations, and periodicals. While few persons or groups always take the A view or the C view, there is considerable consistency in an individual or organizational perspective.

. . .

Example of Viewpoint Coding: June, 1972

To show the reader how viewpoint coding was done, we are reproducing below 40 sentences on a variety of topics exactly as they were broadcast during June 1972. In that month there were 59 sentences that carried explicit opinions on national security issues, but simply to shorten the example we eliminated the 19 sentences that happened to fall on June 15. In each case the source of the passage is indicated along with the viewpoint coding we gave to it. In none of these cases did a CBS News correspondent express his own view; in this and other respects the sample is not typical.

June 1: SALT Agreement Limiting ABM Sites

Roger Mudd : "The already heated debate on the Moscow ABM Treaty has erupted on the Senate floor with Henry Jackson promising to lead a fight to shut down the two ABM sites in this country because he said the treaty made them useless. Jackson said the treaty negotiations were a comic opera of champagne sipping and frantic press briefings." (Viewpoint A)

June 2: SALT Agreements on ICBMs

Senator Scott : "Therefore, the best thing to do is to get an agreement whereby they [the Soviets] stop on the basis of what they're already building, instead of letting them double it. And there's every indication that's what they would otherwise have done." (Viewpoint B)

June 5: U.S. Defense Budget

Defense Secretary Laird: "It would say that the thing to do if you go the $30 billion route is to direct the Department of Defense to spend at least a billion dollars in white flags so that it can run them up all over, because it means surrender." (Viewpoint B)

Senator Proxmire: "Oh, now come on. The proposal that he [McGovern] has, and I don't support it, I've indicated that I think it ought to be higher than that, substantially higher. I don't know how you can call that a white flag proposal when it does provide that we would have, continue to have, superiority in many areas." (Viewpoint C)

Secretary Laird : "The point I would like to make, and why I call reductions such as those white flag reductions - and they are white flag reductions - because they are unilateral in nature." (Viewpoint B)

Senator Proxmire : "Now Mr. Secretary, you kept talking about the white flag reduction. If white flag means anything to me, it means surrender. It means... [interrupted by Laird] Now just a minute, Mr. Secretary, you've been... I haven't interrupted you. I let you talk. Let me just talk for a minute or so and point out, number one, that it is not a white flag or a surrender action on the part of Senator McGovern when he proposes...." (Viewpoint C)

Secretary Laird : "I say that any reduction on a unilateral basis before we go into negotiations on these very delicate subjects, that a unilateral disarmament action is a surrender action." (Viewpoint B)

Bob Schieffer : "To underscore his opposition to new defense cuts, Laird told a House Committee later in the day that he'll be forced to ask for a three to five billion dollar boost in the new budget if the North Vietnamese offensive continues through the end of the year. That would mean obligating more than $88 billion for defense next year." (Viewpoint B)

. . .

Distribution of Evening News Viewpoints

The bulk of the 25.6 hours on national defense and foreign policy matters broadcast by CBS Evening News in 1972 was devoted to the reporting of events, notably the war in Vietnam. Only a small portion was given to reporting opinion about events and a still smaller portion was given to direct CBS views. In the final viewpoint analysis, 274 different news items were examined and coded. This included 725 separately coded passages within news items. (A passage is an unbroken statement of one or more sentences containing one viewpoint from one source.) The number of passages per month in 1972 follow:

January 58 July 65

February 62 August 73

March 15 September 48

April 74 October 72

May 71 November 19

June 61 December 107

In these 725 coded passages there were a total of 2,235 sentences and 44,789 words. Both sentences and words were translated into percentages for each of the three viewpoints and four subjects. The difference between the word count and the sentence count turned out to be approximately 0.5 percent. This is not significant, so all subsequent data, except for Table 4-1, below, are based on the sentence count. The table summarizes the viewpoint distribution for all four national security subjects for 1972:

Table 4-1

Viewpoint Distribution: Summary

Sentences Words

Number Percent Number Percent

Viewpoint A 79 3.54 1,672 3.73

Viewpoint B 774 34.63 15,690 35.03

Viewpoint C 1,382 61.83 27,427 61.24

Totals 2,235 100.00 44,789 100.00

The above table shows that CBS Evening News gave preponderant (over 61 percent) attention to Viewpoint C and scant (under 4 percent) to Viewpoint A. Most of this disparity between C and A is attributable to the high proportion of Vietnam sentences (1,719 out of 2,235) and the high proportion (69.87 percent) of C material in these Vietnam sentences. The A, B, C distribution is indicated in the following table, first of all four subjects (United States, Soviet Union, China, and Vietnam), and then for the three subjects, less Vietnam.

Table 4-2

Viewpoint Distribution By Sentences


Viewpoint A (79)

Viewpoint B (774)

Viewpoint C (1,382)

THREE SUBJECTS (Excluding Vietnam)

Viewpoint A (54)

Viewpoint B (281)

Viewpoint C (181)

Taking all four subjects together, CBS News gave seventeen times as much attention to views advocating that the U.S. Government to substantially less in defense and national security than to views advocating that the government do more.

When the Vietnam material is excluded, Viewpoint C sentences outnumber A sentences by more than three to one. We will return to this point at the conclusion of this chapter.

It may be argued that since Vietnam comprised three-quarters of the viewpoint sentences which were strongly biased in the C direction, Vietnam material should be treated separately and that Vietnam statistics should not be combined with those of the three other topics. Our response is twofold. First, Vietnam is treated separately. Chapter 5 is devoted entirely to it.

Second, we believe the Vietnam viewpoint statistics should be included with the data on the other three topics, but that the number of sentences and percentage for each topic should be clearly indicated. There are three reasons for including Vietnam in the general analysis of this chapter:

1. CBS-TV Evening News in 1972 considered Vietnam by far the most important security issue, devoting more than twice as much time to it as to all other military and foreign policy subjects combined.

2.Vietnam continues as an issue of national concern. In 1973 after the truce had been signed, CBS Evening News gave almost as much time to Vietnam as to all other national security issues combined. And throughout 1974, Vietnam has continued as a major issue of interest to the American people, their government, and the communications media.

3. Perhaps most important, Vietnam was, and to a substantial extent still is, a controversial issue, one on which there are diverse and deeply held positions. It is precisely this kind of controversial question to which the Fairness Doctrine is addressed. It is precisely the kind of issue by which the performance of CBS News or any other network should be evaluated.

. . .

Did CBS Advocate Viewpoint C?

The evidence presented in this chapter thus for suggests that CBS Evening News in 1972 gave reasonably fair coverage to Viewpoint B in three of four national security subjects, Vietnam being the exception. The bias became evident in the uneven coverage accorded the two opposing views, except in dealing with Soviet policy toward the Middle East. The viewpoint bias was pronounced in each of the other three subjects where C significantly outstripped A by these ratios: United States, 3.7 to 1; China, 6.25 to 1; and Vietnam, 48 to 1.

Does this mean that CBS Evening News was advocating Viewpoint C? Before answering this question, several things need to be said. It might be argued that in spite of the disproportionate emphasis on C material and the neglect of A material, the result was a reasonably accurate reflection of the available opinions of national spokesmen in 1972. This argument has little merit. There were, admittedly, a larger number of articulate members of Congress who called for reductions in defense spending than there were calling for an increase in military expenditures. But it is also true that there were and are many prominent Representatives and Senators who were quietly advocating stronger national defense measures. These quieter voices were often overlooked by the communications media, especially those media not hospitable to the views expressed. Furthermore, even if it could be demonstrated that there were more C views on Capitol Hill than A views, this would be no excuse for giving 16 times as much time to the advocates of C views.

It may also be argued that CBS News met the Fairness Doctrine requirement of balance because it gave a reasonable opportunity to the viewpoints espoused by the two principal candidates in the Presidential election. It is true that the B views of President Nixon, with the exception of those on Vietnam, and the C views of Senator McGovern on all topics were reasonably covered. But there were other views of significance that were largely ignored by CBS. All significant views on national defense should be debated, especially in an election year when a wide range of policy options should compete for consideration and support. It is only in such a wide-ranging debate that the electorate has some chance of assessing the positions of candidates or of influencing national policy.

A clue to the disproportionate emphasis of CBS News on Viewpoint C may be found by examining the two chief sources of Viewpoint A and C material - the public and CBS newsmen themselves - as noted in the following table:

Table 4-5

Viewpoint Distribution by Source

This bar graph depicts by percentage and sentences the amount of CBS Evening News viewpoint material devoted to the four subjects by the source of the viewpoint.

Viewpoint A

Administration 0.0%

CBS 0.63% (14 Sentences)

Other 2.91% (65 Sentences)

Viewpoint B

Administration 19.38% (433)

CBS 2.32% (52 Sentences)

Other 12.93% (289 Sentences)

Viewpoint C

Administration 0.80% (18 sentences)

CBS 15.66% (350 Sentences)

Other 45.37% (1,014)

Table 4-5 presents the three sources of all viewpoint sentences - the Administration (the primary source of B views), CBS newsmen, and all other sources. By CBS views we refer to direct opinion on current issues expressed by any CBS newsman, not just the editorial commentary of Eric Sevareid. Most, if not all, CBS newsmen at one time or another have expressed their own opinions directly on the air. Of the 2,235 viewpoint sentences coded, 416 originated from CBS newsmen. As noted in Table 4-5, the great preponderance of the 416 CBS viewpoint sentences were coded C, as follows:

Directly Expressed Viewpoints By CBS Newsmen: 1972

Viewpoint A 3.37% (14 Sentences)

Viewpoint B 12.50% (52 Sentences)

Viewpoint C 84.13% (350 Sentences)

This chart demonstrated that when CBS newsmen chose to express an explicit opinion they chose C views 25 times more frequently than A views. One can infer from this that the reporters on CBS Evening News, if not CBS News as a corporate entity, preferred the C perspective and that they were, in fact, advocating this view directly to their vast audience.

To the argument that the CBS newsmen may not have been aware that they were giving their own opinions, let them read what they have said. To the argument that they may have been giving their views, but this does not amount to advocacy, we must point out that when CBS Evening News selected views from the larger public for broadcast, the same disproportion between A and C is evident, though it is slightly less pronounced. In direct CBS advocacy the ratio was 25 to 1 in favor of C over A, and in indirect advocacy by presenting viewpoints from other sources, the ratio was 15 to 1. In sum, CBS News reinforced its direct and one-sided expression of national security views by selecting a spectrum of opinion from the public which was only slightly less one-sided.

The Neglect of Viewpoint A

It is wholly permissible under the Fairness Doctrine for CBS Evening News to advocate Viewpoint C or any other position, providing that it gives a "reasonable opportunity" for the expression of conflicting views.This CBS Evening News did not do in 1972.

It did not provide a "reasonable opportunity" for Viewpoint A, though there were many available expressions of this perspective from politicans, military experts, scholars, editors, business executives, and leaders of civic, religious, and professional organizations, as noted earlier in this chapter. Perhaps these views were not as readily available as contrary views, in part because the Presidential campaign tended to limit the parameters of debate to viewpoints B and C. But CBS News reinforced this narrowing of the issues by focusing almost exclusively on the Administration position and the McGovern attack, to the virtual exclusion of alternative views.

CBS Evening News failed to exercise its "affirmative duty" under the Fairness Doctrine actively to seek out and present A views. The NAB Television Code says the broadcaster shall "seek out and develop with accountable individuals, groups and organizations, programs" that will "give fair representation to opposing sides." This failure to locate and report less accessable, but equally valid news, is fully documented in the proper name analysis in Chapter 5.

CBS Evening News failed to give adequate coverage to A views either in a quantitative or qualitative sense. In all four national security subjects combined, the ratio of C to A views is 17 to 1, and when Vietnam is excluded, the radio is 3 to 1.The quantitative case is clear.

But the qualitative case may be more significant. When the sprinkling of A views are examined, two facts become apparent. First, many A sentences were not as clearly expressed as their C counterparts. In coding A passages, we frequently had to sense an A position in a relatively vague statement, such as Walter Cronkite's reminder that Chinese weapons took American lives, or his report of Soviet aid to Arab guerrillas. We never found an A statement advocating that the U.S. defense budget be increased by $5 to $10 billion, but there were several C positions advocating cuts of $10 to $30 billion. Further, a number of the A statements were defensive rather than affirmative. CBS references to Senator Jackson's criticisms of the SALT I agreements are examples.

Second, many of the A statements reported by CBS were on topics peripheral to the central military calculus between the Soviet Union and the United States. This was particularly true of the 16 A sentences identified under the Soviet Union, of which only two dealt with the strategic balance.

Because of the relatively vague or peripheral character of most of the few A viewpoints CBS permitted on the air, the citizen-viewer was poorly served. As far as we could determine, the attentive viewer throughout 1972 would never have heard a clear-cut statement to the effect that the Soviet Union was militarily superior to the United States, that the United States should be militarily superior to the Soviet Union, or that the combination of Moscow's military might and political designs constituted a growing threat to the United States and its allies, with the single possible exception of Governor George Wallace's July 7 general assertion that the United States should be "so strong that no nation on the face of the earth will want to do anything but talk with us."

The absence of these views was reinforced by the seriously deficient factual reporting by CBS Evening News of Soviet military developments and Soviet statements on the meaning of detente, noted in Chapter 3. The theme analysis in Chapter 2 also demonstrates that there was little substantial reporting on Soviet military developments, but a great many stories on the desirability of detente.

These CBS News deficiencies in presenting the multiple confrontation of the superpowers, as revealed by theme and viewpoint analysis, are magnified in the smaller theater of the Vietnam War. In neither case did the citizen-viewer receive from the CBS Evening News the facts or opinions essential to thoughtful debate on these vital issues.

[Chapter 6. Overall Evaluation of CBS News]

Requirements for Responsible Broadcasting

The standards we used to evaluate CBS-TV News are drawn from the FCC's Fairness Doctrine which, as demonstrated in Chapter 1, are substantially the same as the standards of the National Association of Broadcasters Television Code and the Radio Television News Directors Association Code of Broadcast News Ethics.

The Fairness Doctrine and the industry codes apply to news, news commentary, and documentaries, and are equally applicable to local TV stations and to the networks. The requirements of the Fairness Doctrine and the codes can be summarized in four essential points. The first relates primarily to "straight" reporting about events, and the remaining three to broadcasting of opinion and judgments about events. The direct quotations are from the industry codes:

1. The broadcaster has an obligation to provide "accurate and comprehensive" news in a context that gives it "meaning and perspective," according to the RTNDA code. The NAB Television Code says TV "news reporting should be factual, fair, and without bias."

2. The broadcaster has a right to advocate his views on any controversial issue, but he has a corresponding obligation to present all other major views on that issue. He must provide a forum for meaningful and balanced debate on the public questions he addresses. The NAB code says: "Commentary and analysis should be clearly identified as such" and "opinion should be appropriately distinguished from news."

3. To achieve balance, the broadcaster must identify, find, and present all major views on the controversial issues he addresses. The NAB code says the "broadcaster should seek out... accountable individuals, groups and organizations" to present "controversial public issues" and give a "fair representation to all opposing sides of issues which materially affect the life or welfare of a substantial segment of the public."

4. When the broadcaster airs opposing opinions, he must provide "a reasonable opportunity" for each view. This means the opposing view must be presented when the issue is still current, and that the time given to it, the size and character of the audience, and the quality of presentation must be approximately the same. (See Chapter 1, page 7.)

Judged by these four standards, how well did CBS News measure up? Each requirement is considered in turn.

1. News Reporting Should Be Factual, Fair, Full, and Meaningful

. . .

The most seriously neglected area on CBS Evening News was that of Soviet military developments. A citizenviewer who watched the 196 hours broadcast in 1972-73 would have learned almost nothing about the changing military balance between Washington and Moscow. During that entire two-year period, the program devoted a total of one minute explicitly to the comparative military situation. The viewer would have gained almost no knowledge of the growing Soviet military might in missiles, aircraft, and warships. He would not have learned that the USSR developed a 4,500-mile submarine missile, a new generation of massive missiles capable of destroying U.S. Minuteman missiles in their silos and of carrying multiple warheads, and a system capable of destroying U.S. reconnaissance satellites. He would not have learned that the USSR launched its first aircraft carrier and started building its second, was producing 5 to 9 nuclear missile submarines a year, and was producing a new supersonic strategic bomber, the Backfire, capable of delivering nuclear bombs to the United States. He would not have known that Soviet military expenditures ran about $90 billion a year, four times the figure announced by Moscow.

In covering President Nixon's February 1972 trip to Peking and subsequent reporting, CBS Evening News omitted ten significant stories on Chinese military developments and two on Peking's negative views of the United States. There were several brief references to Chinese nuclear weapons developments, but these tended to be drowned out by a cascade of largely positive reporting about China. The 1972 theme count on detente with China was 54 for and 3 skeptical.

A week before President Nixon's May 1972 trip to Moscow to sign the SALT I agreement on nuclear weapons, CBS broadcast a 60-minute special, Where We Stand, which included more hard information on the strategic balance than the 521 Evening News programs in 1972 and 1973 combined. It was the only such program in the two-year period. Where We Stand was strongly prodetente, but it noted that the Soviet Union was moving rapidly to catch up with the United States economically, technically, and militarily. More important, however, the program failed to provide a number of the significant military facts conspicuously omitted from the Evening News. (See Chapter 3.)

If the citizen-viewer in 1972 and 1973 relied solely on CBS Evening News for understanding the vital issues of national security he would have been poorly served. He would not have had the elementary facts to make sound judgments. The President's budget request for developing the B-1 bomber or the Trident submarine system would have made little sense to him because he would have heard nothing about the Soviet Backfire bomber or the significant advances in the Soviet nuclear-missile submarine fleet.

In short, CBS national security news was so spotty and lopsided that it failed to provide the essential facts for understanding U.S. defense and military issues, the Soviet definition of detente, or the forward surge in Soviet military might. Consequently, on the first requirement for responsible broadcasting, we conclude that CBS Evening News was seriously deficient in presenting a fair, full, and meaningful picture of national security developments.

. . .

Even the limited time allotted each issue was not wisely used. This was perhaps most striking in the coverage of U.S. military affairs in 1972 and 1973. Overwhelming attention was given to problems within and criticisms of the military, and relatively little attention to the basic mission of the Armed Services or their accomplishments. An analysis of how CBS Evening News presented 246 news items on military matters for the two years (Chapter 2, Tables 2-5 and 2-6) indicates that approximately two-thirds of the time was devoted to stories that cast the U.S. military in an unfavorable light:

CBS Presentation of U.S. Military Affairs

1972 1973

Unfavorable 62% 69%

Neutral 30% 13%

Favorable 8% 18%

The attentive listener who relied solely on CBS Evening News would have received a highly distorted view of the U.S. Armed Forces. He would have heard a great deal about a senseless, brutal, and unjust war in Vietnam, and virtually nothing about the heroism or humanity of American soldiers. He would have heard much about the demoralization, racial conflict, and drug abuse in the Army, Navy, and Air Force, but he would have heard almost nothing about their defense and deterrent missions. Frequently, he would have heard criticism of an enormous defense budget swollen by the selfish interests of a military-industrial complex and fed by corruption, design faults, and cost overruns.

Much of CBS Evening News reporting on military affairs was trivial, to the neglect of the significant. On March 19, 1973, for example, there was a 1:50 minute story about the disappearance of thousands of table utensils from Pentagon cafeterias, almost twice as much time as CBS devoted to stories on the direct U.S.-Soviet military calculus for the entire two-year-period.

In its watchdog role, the press should be constantly critical of an institution as powerful and influential as the military establishment and there is much in the military that deserves criticism. Granting this, the over-whelmingly negative portrayal of the military by CBS Evening News cannot be justified. It was not balanced by insormation which would enable the viewer to assess the significance of the criticism. Further, the relentless barrage of criticism of military practices and personnel tended to discredit the military establishment itself, making it difficult for the citizen to give serious attention to the threat appraisals, strategic judgments, and budget requests coming from the Defense Department.

2. Advocacy Should Be Balanced by Opposing Views

The Fairness Doctrine permits a broadcaster to advocate his own views on controversial issues, but it requires him to balance this by presenting all other major views. The evidence presented in the four preceding chapters demonstrates that CBS Evening News was an active advocate on several national security issues and that its advocacy was not adequately balanced by opposing views.

CBS Evening News advocated its views directly through the explicitly expressed opinions of its newsmen. This became clear by examining the source of the viewpoints on the four principal subjects - United States, Soviet Union, China, and Vietnam. (See Appendix F and Table 4-5 in Chapter 4.) Of the 2,235 sentences expressing A, B, or C viewpoints, 416 or 18.61 percent came from CBS newsmen. Of the 416 CBS sentences, 350 expressed Viewpoint C, 52 Viewpoint B, and 14 Viewpoint A - a ratio of 25 to 1 of C over A. We conclude, therefore, that CBS Evening News was advocating Viewpoint C. This it had a right to do, but not without providing a reasonable opportunity for other important opinions. The preponderance of C views over A was true of all subjects except the Soviet Union...

The exception of the Soviet Union, as noted in Chapter 4, can be accounted for by CBS criticism of Soviet support of Arab guerrilla groups. CBS advocacy of the C view was overwhelming in its presentation of Vietnam issues; the ratio of C to A was 287 to 1.

. . .

3. Opposing Views Should be Actively Sought

The lopsided distribution of national security views in the 1972-73 CBS Evening News is ample evidence that CBS failed to seek out opposing opinions and perspectives. This was particularly true of A views, such as the following:

a. The Soviet Union still has the objective of eventual world domination.

b.The Soviet Union is militarily more powerful than the United States.

c. The fast pace of Soviet strategic weapons developments after SALT I exceeded public expectations.

d. The United States should seek to achieve and maintain military superiority over the Soviet Union.

e. The U.S. defense budget should be substantially increased.

Though views such as these were held by many experts and by millions of Americans, we did not find a single one of them clearly reflected on CBS Evening News. (This point is elaborated in Chapter 7.) Such views were privately expressed within the councils of government, privately and publicly voiced by members of Congress, endorsed by national organizations, advanced by writers in national journals, and expressed by journalists, scholars, statesmen, and former military leaders.

.. .

4. Reasonable Opportunity Should Be Given For Opposing Views

It is abundantly clear that CBS Evening News failed to provide "a reasonable opportunity" for the presentation of "opposing views." The numerical neglect of opposing views, notably A positions, was compounded by the CBS practice of deprecating its sources of A views, especially in the interpretative reporting on Vietnam. This can be seen in the proper name analysis (Chapter 5) which shows that CBS usually turned to persons it had discredited for A views and to presumably authoritative sources for C views.

President Thieu, frequently portarayed as corrupt and repressive, was the chief CBS source of A views. Similar views held by distinguished theologians, scholars, and other competent persons were not cited. No A views from Congressional spokesmen were quoted. But in presenting C views, CBS Evening News quoted religious leaders, scholars, Senators, and Representatives. Sixteen of its own newsmen also expressed them.

The Fairness Doctrine requires that opposing views be expressed by persons of approximately equal status, authority, and respect. This means the broadcaster should actively seek out such persons in the interests of balance. Exact equivalence may not always be feasible, but the guideline is clear.

When Anthony Lewis of the New York Times was given 30 sentences to praise North Vietnam and criticize U.S. Vietnam policy, why did not CBS permit or seek another journalist of equal stature to express the opposite view? When Ramsey Clark was given 34 sentences to express C positions, why was not a comparable public figure given an approximately equal opportunity?

. . .

On the larger canvas, CBS Evening News did not provide adequate information on the central national security problems nor present fairly the options for dealing with them. CBS News did not call upon its vast resources of intellect and technology to clarify the consequential issues involved in SALT I and in other vital questions. We conclude, therefore, that CBS News failed in a substantial measure to fulfill the four requirements of the Fairness Doctrine. It also failed to meet the standards of the broadcasting codes. More important, CBS News shortchanged the American people and thus compromised its public trust.


TAMM, Circuit Judge, dissenting: With due respect to my learned colleagues, I would affirm the decision of the Federal Communications Commission (Commission). I therefore must dissent from their analysis and conclusion in this case.

Under the "fairness doctrine" a broadcaster must adequately cover issues of public importance and fairly reflect differing viewpoints. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. 94, 111 (1973); see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 377 (1969).The doctrine does not contemplate mathematical equality in coverage of expressed viewpoints; nor does it even require expression of all possible viewpoints. Columbia Broadcasting System v. Democratic National Committee, 412 U.S. at 111; Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d 16, 44 (D.C. Cir. 1972), cert. denied, 412 U.S. 922 (1973); see Green v. FCC, 447 F.2d 323, 332 (D.C. Cir. 1971) (fairness doctrine does not require equality in allocation of time, time of day, dramatic impact, or any other criteria, for points of view presented).A broadcaster has great editorial freedom in implementing the fairness doctrine, and will violate it only when its actions and decisions have been unreasonable or in bad faith. Straus Communications, Inc. v. FCC, 530 F.2d 1001, 1008 (D.C. Cir. 1976); Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d at 44.

As a practical matter, news bradcasting necessarily involves the exercise of enormous editorial judgment. A news broadcaster is rigidly bound by the severe limitations of broadcast time in which to portray a very small number of items selected from the great variety of the day's events for what is in fact a cursory, basic announcement. The vertiginoous nature of the material that is the subject of news reports demands constant selection and re-formation of events by those who reproduce the events for the public. As Judge Learned Hand said:

News is history; recent history, it is true, but veritable history, nevertheless; and history is not total recall, but a deliberate pruning of, and calling from, the flux of events. Were it possible by some magic telepathy to reproduce an occasion in all its particularity, all reproductions would be interchangeable; the public could have no choice, provided that the process should be mechanically perfect. But there is no such magic; and if there were, its result would be immeasurably wearisome, and utterly fatuous. In the production of news every step involves the conscious intervention of some news gatherer, and two accounts of the same event will never be the same.

United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (three-judge court), aff'd, 326 U.S. 1 (1945). To ignore blindly the nature of news gathering and broadcasting is to turn one's back on reality.

I do not believe this case presents a fairness doctrine problem. In holding that it does, the majority apparently believes that a newscaster's paramount concern should be, not which of today's events are newsworthy, but whether it has broadcast a "rough balance" of sentences and words dedicated to various positions on issues of public importance. The majority opinion assumes either that a broadcast journalist assembling news of the day should "adjust" his news coverage in order to achieve "balance", or that a "balanced" number of newsworthy events reflecting the differing views will inevitably arise. I believe that the first assumption reflects a serious intrusion into the right of a newscaster to exercise the discretion and editorial judgment his profession demands. I find no support for the second assumption in experience or logic. In the absence of a showing that the decisions of the broadcaster with respect to newsworthiness were unreasonable or in bad faith,1 I believe the majority opinion extends the fairness doctrine far beyond its intended scope and runs the risk of injecting the government too deeply into the editorial processes of newscasting.

My brethren are obviously impressed by petitioner's statistical presentation from which they draw a strange mixture of legal ingredients heavily imbued with symbolic importance. However, it is established beyond peradventure that "[the] fairness doctrine is not subject to a formulistic application." Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d at 44; accord, Green v. FCC, 447 F.2d at 332. Nor can government involvement in the editorial judgment of a newscaster be justified on the basis of subjective inferences and conclusions concerning the issues and opinions expressed in a broadcast.

The Commission believed that petitioner's complaint against CBS, Inc., did not warrant action in major part because petitioner had not presented a well-defined issue. Joint Appendix at 26-27. I agree.2 Although the majority sees the Commission's refusal to identify the specific issue or issues as "willful obtuseness," Majority opinion at 15, I do not agree because, clearly, "[it] is not the proper function of the administering agency to frame the complaints coming before it." J.A. at 26-27 (quoting Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d 691, 696 (1976)).

In conclusion, I believe that the majority not only fails to give due weight to the Commission's judgment that petitioner failed to make a prima facie showing of a fairness doctrine violation, see Columbia Broadcasting System v. Democratic National Committee, 412 U.S. at 110, 122-23, but in reality, its conclusion accuses the Commission of concealing its true motives.I do not believe the action of the Commission was arbitrary or capricious.Nor, on this record, can I conclude that the Commission's motivation was other than as represented. As the Supreme Court has so recently stated, "to characterize the actions of the Commission as 'arbitrary or capricious' in light of the facts then available to it... is to deprive those words of any meaning." Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, 98 S. Ct. 1197, 1217 (1978).

Where the majority sees piranhas, I see but minnows. For the reasons stated, I respectfully dissent.

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