Who Decides Fairness?

When it became a regulation in 1949, the Federal Communications Commission's fairness doctrine was considered a boon for electronic journalism. Now, in an important test case pending before the U.S. Court of Appeals in Washington, the National Broadcasting Co. claims that the FCC'S current interpretation of the rule will throttle investigative reporting.

The doctrine originally freed radio and television from a 1940 FCC ban on airwave editorializing and crusading. But it also required broadcasters to give "reasonable opportunity for the presentation of contrasting viewpoints on controversial issues." The FCC promised not to tell broadcasters how this was to be done; it reserved the right to judge whether they handled the balancing of issues "reasonably and in good faith."

The current dispute centers on an NBC documentary called Pensions: The Broken Promise. Aired in September 1972, the program was a bleak expose of failings in privately administered group-pension plans. Workers told of losing all or most of their pension income through a variety of misfortunes: pre-retirement dismissals, company closings or mergers, the collapse of pension funds because of mismanagement. Correspondent Edwin Newman, who was co-author of the script with NBC Producer David Schmerler, noted near the end of the hour-long broadcast that "there are many good" pension plans. But his conclusion was downbeat: "The situation, as we've seen it, is deplorable."

Shining Example. Most reviewers praised NBC for its journalistic enterprise. (The show later received a George Foster Peabody Award as a "shining example of constructive and superlative investigative reporting.") But Accuracy In Media, a nonprofit, nonpartisan (though generally conservative) group in Washington that acts as a self-appointed watchdog on press performance, protested. AIM Executive Secretary Abraham H. Kalish, a former professor at the U.S. Defense Intelligence School, formally complained to the FCC that the NBC program gave "a grotesquely distorted picture" of the private pension systems in the U.S. He contended that AIM'S monitoring of NBC programs had turned up no balancing discussion of successful pension programs and that the network had thus "violated the fairness doctrine" by presenting only one side of a "controversial issue of public importance."

On the same day as the Peabody Award, an FCC staff report declared that NBC had not complied with the fairness doctrine. The ruling did not challenge the program's accuracy but charged that NBC had failed to provide "reasonable opportunity" for the airing of positive views on the subject. NBC asked for a review of the report by the full FCC membership. Last December the commission supported (5-0) its staffs decision and ordered NBC to come up with some counterpoint to its documentary. At that point, NBC took its appeal to court.

The network could have ducked a legal battle simply by dropping some rosy comments on pensions into talk shows like Today. But it contends that the documentary does not raise fairness-doctrine questions, because the existence of some inadequate pensions--the program's subject--is a fact, not a "controversial issue."

The Other Side. NBC is obviously worried that the FCC decision, if upheld, will doom investigative reporting on the air. "There is no documentary," network lawyers argue, "dealing with and exposing any social problem to which the reasoning of the [FCC] staff opinion could not apply." Lawyer Floyd Abrams, who is representing NBC, says that the FCC "is moving into the newsroom more than ever before." Charges Executive Producer Reuven Frank, NBC news president at the time the documentary was shown: "If this were a rule, it would mean that television news must never examine a problem in American life without first ascertaining that we had piled up enough points on the other side."

The FCC disagrees in its commission report: "The issue is not whether NBC or any other licensee or network is free to deal with an issue as it sees fit, but whether it may constitutionally be required to present the views of others who may see the issue from a different perspective." It says that NBC is not obliged to air an hour program on happy pensioners, only to offer defenders of the system the "reasonable opportunity" to speak demanded by the fairness doctrine. As an FCC spokesman puts it: "It's a simple fairness-doctrine case."

In fact, invoking the fairness doctrine is rarely simple. The NBC documentary certainly was not "balanced," but should it have been? It dramatically showed that, for a significant number of Americans, pensions do not deliver the incomes that were promised. This undisputed fact hardly seems to require the pro-and-con treatment that networks must legally give such clearly controversial subjects as abortion, legalized gambling or school busing.

Federal statute and administrative rulings impose restrictions on broadcasting that do not exist for print journalism. The rationale is that those who use the limited, public air waves must be held accountable to the public interest. Without the rule, dissenting views would have no automatic access to TV. But if electronic journalists must pair every discovery of specific ills with assurances of general health, the result will be a bland journalism that serves no one's interest. "A fire is reported," says Reuven Frank, "but not the houses that didn't burn." Should network producers like Frank decide that they must use news time for programs, on unburnt houses, they will be apt to avoid tough subjects entirely. The eventual settlement of the NBC case is certain to have enormous impact on the future of TV and radio reporting.

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