567 F.2d 1095 | D.C. Cir. | 1977
Opinion for the Court filed by McGOWAN, Circuit Judge.
These three consolidated petitions for review challenge various aspects of the Federal Communications Commission’s Fairness Report. That Report was the product of an inquiry by the FCC, extending five years from its initiation in 1971, the issuance of the Report in 1974, and the denial of reconsideration in 1976, into the policies underlying the fairness doctrine and their implementation. It was the first such sustained review since the doctrine was originally articulated by the Commission nearly thirty years ago; and it was a proceeding in which written comments were received from over 120 persons or organizations, with eighty participants in a week-long series of panel discussions and oral arguments held by the FCC in 1972.
For the reasons hereinafter appearing, we leave undisturbed the Report itself, including its central determination to withhold application of the fairness doctrine to broadcast communications promoting the sale of commercial products. Our remand to the FCC, however, is with directions to pursue further inquiry into two of the alternative courses of action proposed by some of the petitioners as ways by which the general objectives giving rise to the fairness doctrine can be realized.
I
The fairness doctrine, which is not identified in terms in the statutes administered by the FCC, had its inception in 1949.
1. The fairness doctrine generally;
2. Application of the fairness doctrine to broadcast of paid announcements;
*105 3. Access to broadcast media for discussion of public issues; and
4. Application of the fairness doctrine to political broadcasts.
The issues considered on this appeal relate to all but the last of these topics, which was the subject of a separate report issued in 1972.
In No. 74-1700, petitioners National Citizens Committee for Broadcasting (NCCB) and Friends of the Earth, and petitioner Council of Economic Priorities (CEP), in No. 76-1360, object to the decision in the Fairness Report not to apply the fairness doctrine to ordinary product advertisements, and further contend that the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq. (1970 & Supp. V 1975), requires the Commission to apply the fairness doctrine to advertisements for environmentally dangerous products.
In No. 76-1351, petitioner Committee for Open Media (COM) challenges the Commission’s failure, on reconsideration of the Fairness Report, to adopt, or order further inquiry into, its access proposal as an alternative to current fairness doctrine enforcement. Also in No. 76-1351, intervenor Henry Geller challenges the Commission’s decisions to continue case-by-case consideration of fairness doctrine complaints, and its failure to consider and adopt his “10-issue” proposal relating to the fairness doctrine requirement that a broadcaster devote a reasonable amount of time to coverage of public issues.
Because the fairness doctrine and its application have been the subject of extensive commentary in prior decisions of both this court
Accordingly, we shall first consider, in Part II hereof, the challenges to the Commission’s decisions with respect to the reach of the fairness doctrine. Part III of the opinion will address the specific contentions
II
The Fairness Report concludes that the fairness doctrine should not be applied to broadcast advertisements promoting the sale of a commercial product. This decision was made with a conscious awareness that it represents a marked shift from previous FCC policy. That previous policy, which was developed in a series of ad hoc decisions by the Commission and the courts, was never subject to precise articulation or definition, leading to uncertainty and difficulties in achieving full and fair enforcement. While we are under no illusion that the new policy, described more fully below, will solve all or perhaps even most of the implementation problems encountered heretofore, we believe that we are without warrant to deny the Commission the opportunity to attempt a new resolution of those difficulties provided that its action is consistent with constitutional and statutory commands and is otherwise in accordance with standards governing such an exercise of agency discretion. Our function in reviewing the validity of the Commission’s decision to reverse its previous course of action is to ensure that it has
providefd] an opinion or analysis indicating that the [previous] standard is being changed and not ignored, and assuring that it is faithful and not indifferent to the rule of law.7
This standard is a distillation of the general criteria governing judicial review of an exercise of agency discretion in the context of informal rulemaking such as that before us. Our
responsibility is to assure that the agency has not abused or exceeded its authority, that every essential element of the order is supported by substantial evidence, and that the agency has given reasoned consideration to the pertinent factors.8
A. Background
The basic principles of the fairness doctrine were established long before the doctrine was given a label: broadcast licensees are obliged both to cover controversial issues of public importance and to broadcast opposing points of view on them.
Whether or not these statements nearly three decades ago can be said to have established a policy of subjecting commercial advertisements to fairness requirements, it is undeniable that any such policy lay practically dormant until 1967.
In Friends of The Earth v. FCC, 146 U.S.App.D.C. 88, 449 F.2d 1164 (1971), we held that, under the approach taken by the Commission with respect to cigarettes in Banzhaf, advertisements for high powered automobiles and leaded gasoline also gave rise to the fairness obligation to broadcast opposing points of view. Just as cigarette advertisements were thought to have raised the issue of the desirability of smoking, so also the advertisements at issue in Friends of the Earth posed the question of the desirability of motorist preferences which increased air pollution. Moreover, as had been true in the cigarette controversy, there existed uncontroverted evidence of the hazards to health caused by air pollution; and this was unquestionably a controversial issue of public importance. We thus found it impossible to ignore the analogy between the Banzhaf cigarette advertisements and the advertisements for cars and gasoline challenged in Friends of the Earth ; and held that the FCC was obliged to follow the cigarette advertising precedent until and unless the Commission reformulated the policy that it had articulated in WCBS-TV.
We noted in Friends of the Earth that [i]t is obvious that the Commission is faced with great difficulties in tracing a coherent pattern for the accommodation of product advertising to the fairness doctrine.
146 U.S.App.D.C. at 94, 449 F.2d at 1170. This may, if anything, have understated the problem. Once the Commission determined in WCBS-TV that implicit advocacy gave rise to the fairness doctrine obligation to broadcast opposing points of view, it inevitably became necessary to draw a line between messages so opaque that it could not
In Neckritz v. FCC, 163 U.S.App.D.C. 409, 502 F.2d 411 (1974), this court refused to find that an advertisement for a gasoline additive purportedly helpful in reducing automobile emissions raised the controversial issue of auto pollution. Under the approach taken in Banzhaf and Friends of the Earth, the court could have reached a different conclusion under the following chain of reasoning: 1) the gasoline additive can be used only in conjunction with gasoline, and, indeed, the challenged advertisements promoted the sale of gasoline with the additive; 2) advocating the use of gasoline raises the desirability of such use; 3) gasoline use causes air pollution,
This is different from the situations in Banzhaf, Retail Store Employees Union, and Friends of the Earth, where the advertisements implicitly took a position on the ultimate public issue, rather than a position on ways to solve the ultimate matter in controversy. The court in Neckritz thus limited the reach of the approach stated in Banzhaf for application of the fairness doctrine to product commercials: debate over the efficacy of a product in solving an issue of public concern does not raise that issue. The basic policy choice underlying the Neckritz holding is that the fairness doctrine should not be transformed into a vehicle for correction of allegedly false advertising.
The difficulty of defining issues “implicitly” raised by product promotions is only one source of the confusion which resulted from the decision in WCBS-TV to apply the fairness doctrine to commercial advertisements. It has also proven difficult to apply the fairness doctrine to advertisements which do not directly promote a product. Thus, in Green v. FCC this court affirmed the FCC conclusion, 24 F.C.C.2d 171 (1970), that armed forces recruitment messages did not raise the issues of the military draft and the Vietnam war, which at the time were significant and controversial issues.
On the other hand, this court expressed agreement with the Commission’s decision in National Broadcasting, 30 F.C.C.2d 643 (1971), that advertisements by Esso advocating oil exploration and drilling in Alaska raised the then-controversial issue of whether the Alaska pipeline should be built,
Both Green and National Broadcasting involved a type of advertisement close to what has been called “institutional advertising” — that is “advertising that promotes the overall image of its sponsor and [only] indirectly its product.”
sion refused to take such an approach with respect to institutional advertising,
B. New FCC Policy with Respect to Commercial Advertisements
The failure of either the courts or the Commission to delineate clearly in the foregoing decisions the contours of the Banzhaf approach to commercial advertising and the fairness doctrine may be ascribed in part to the very proceeding now under r.eview.
The Report divides advertisements into three general categories: editorial adver
Editorial advertisements consist of “direct and substantial commentary” on controversial issues of public importance. Fairness Report at 22. The classic example of such an announcement is an “overt” editorial, id. at 22, referred to at another point in the Report as an advertisement “that explicitly raise[s] [a] controversial issue,” id. at 26.
The Report concludes that one type of announcement which may give rise to fairness doctrine obligations even though it is not an overt editorial is institutional advertising “designed to present a favorable public image of a particular corporation or industry rather than to sell a product.” Id. Although institutional advertising “ordinarily does not involve debate on public issues,” if the advertiser “seek[s] to play an obvious and meaningful role in public debate[,] . the fairness doctrine . . . applies.” Id.
We interpret the foregoing pronouncements concerning overt editorials and institutional advertising as reaffirmations of previous FCC policy in these areas. That portion of the Report dealing with standard product commercials, on the other hand, is an explicit departure from previous policy. The Report announces that advertisements for commercial products or services, such as the cigarette advertisements in Banzhaf and the automobile and gasoline advertisements in Friends of the Earth, henceforth will not give rise to fairness obligations
Under the policy announced in the Fairness Report, promotion of controversial products will not require presentation of points of view opposing use or sale of the products. This does not mean that all product advertisements are exempt from fairness obligations, however. If in the course of promotion of a product there is “obvious and meaningful . . . discussion” on one side of a controversial issue impinging on the desirability of the product, fairness obligations attach because such advocacy qualifies as an editorial advertisement. See id. at 26.
The third and final category of advertisements discussed in the Fairness Report are product claims alleged to be false or misleading, such as the claims for a gasoline additive at issue in Neckritz, discussed above.
C. Constitutionality of the New FCC Policy
As already mentioned, petitioners and intervenors in this case have not made specific objections to those portions of the Fairness Report that, in effect, reaffirm previous policy with respect to editorial advertisements and product efficacy claims. Nor does this court find any cause to upset these portions of the Report, which seem to us well reasoned and fully consistent with constitutional and statutory commands.
The Report’s treatment of commercial advertising is vigorously challenged on both statutory and constitutional grounds. We believe that the challenges invoking the first amendment are based on a fundamental misunderstanding of the relationship between constitutional protection of commercial, or any other type of, speech and the functioning of the fairness doctrine.
(a) Commercial speech is protected under the first amendment because the public has an interest in the free flow of such information;36
(b) statements which oppose views presented in commercial advertisements are a form of commercial speech;
(c) thus, the public has an interest in the free flow of such statements;
(d) thus, the FCC must require its licensees to broadcast such statements.
But surely there is no right to broadcast a particular point of view simply because that point of view is protected by the first amendment. This was clearly established in Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973), which held that a network need not sell time to persons wishing to present their views on important public issues. Of course, this court has also recognized that speech protected by the first amendment need not necessarily be broadcast under the second obligation of the fairness doctrine.
Petitioners’ other first amendment argument begins with a slightly different application of Virginia State Board:
(a) to the individual, commercial information may be of more interest than is “the day’s most urgent political debate,” and such advertisements “may be of general public interest;”38
(b) thus, commercial advertisements contribute meaningfully to public debate;
(c)the Commission’s decision not to subject commercial advertisements to the fairness doctrine is therefore unconstitutional because it is based on the denial of (b).
The last proposition is a non-sequitur. There is a missing link in the argument, which is that all speech which contributes meaningfully to public debate must be subject to the fairness doctrine. We reject the suggestion that any speech protected by the first amendment must, as a matter of constitutional law, trigger application of the fairness doctrine. While an ultimate function of both the first amendment and the fairness doctrine may be to encourage the dissemination of viewpoints and information, this does not mean that the two principles cover exactly the same ground.
We recognize that petitioners’ confusion between the standard for first amendment protection and the standard for application of the fairness doctrine may result from misplaced reliance in the Fairness Report itself on the scope of first amendment protection. Issued before either Virginia State Board or Bigelow v. Virginia,
Indeed, it can be argued that the first amendment protection afforded commercial speech cuts precisely eontrarily from the manner urged by petitioners. It has been contended by commentators,
D. Statutory Challenges to the New Commission Policy
It is alleged that the Commission’s decision to withdraw standard product commercials from the purview of the fairness doctrine violates the standards of the Communications Act and was arbitrary, capricious and an abuse of discretion.
The 1946 decision concerning commercial advertisements so heavily relied on by petitioners merely stated that debate over the “relative merits of one product or another” could raise “basic and important social, economic, or political issues.”
There still remains the possibility that the WCBS-TV approach inheres in the public interest standard of the Communications Act
Nor do we believe that the Commission has acted arbitrarily or that it has abused its discretion in withdrawing most commercial advertisements from application of the fairness doctrine. Of course, the mere fact that the approach spelled out in the Fairness Report represents a definite change of policy does not require that it be struck down. American Trucking Associations, Inc. v. Atchison, Topeka and Santa Fe Railway, 387 U.S. 397, 416, 87 S.Ct. 1608, 18 L.Ed.2d 847 (1967). We further conclude that the Commission has “given reasoned consideration to each of the pertinent factors”
It is important to track the exact reasoning employed by the Commission in its decision to overrule WCBS-TV. The Commis
Given the reasons that the Commission puts forth for its new policy, such an outright fairness doctrine exemption for product commercials would not be arbitrary or an abuse of discretion. However, we are not convinced that petitioners’ contention even correctly states what the Commission has done. When read in conjunction with that portion of the Report dealing with overt editorial and institutional advertising, the Commission’s conclusion with respect to standard product commercials is more aptly characterized as being based on the view that the ultimate controversial issue of public importance is not the desirability of the product but the issues raised in the debate over desirability. Merely advocating the use of a product does not present information or involve discussion of these underlying issues; that is, promotional presentations are not “meaningful discussion[s] of . controversial issue[s] of public importance.” When read in this manner, the Fairness Report has not arbitrarily excluded one class of issues from operation of the fairness doctrine; it has, rather, stated one standard for fairness doctrine application, quoted above, and refined and reformulated the definition of a controversial issue of public importance.
In any event, we think that the Commission has adequately supported its decision to exclude standard product commercials from the scope of the fairness doctrine. Three major arguments are presented by the Commission. First, the Commission made the judgment that the WCBS-TV approach to the fairness doctrine and standard product commercials at most informed the public about only one side of a controversial issue.
Certainly it must be admitted that counter-commercials are of a very different genre than are the product commercials themselves. They do not simply state, “Do not buy X; it is not desirable,” but rather argue one side of the issues underlying the debate over desirability. Given this fundamental asymmetry, we do not think it was unreasonable for the Commission to conclude that application of the fairness doctrine to standard product commercials does not further the objective of presenting all viewpoints on controversial issues of public importance.
The second major argument put forth by the Commission is that application of the fairness doctrine to noneditorial advertisements would “divert the attention of broadcasters from their public trustee responsibilities in aiding the development of an informed public opinion,” id. at 26. This argument is of course premised to some extent on the first. We understand the Commission to be indicating that even if enforcement of fairness doctrine obligations with respect to commercial advertisements might marginally contribute to an informed public opinion, these benefits are outweighed by the reduction in public information which results from the decreased attention that broadcasters will afford to other
Finally, the Commission suggested in the Fairness Report, though not in its arguments to this court, that application of the fairness doctrine to commercial advertisements could undermine the economic base of commercial broadcasting. It is possible that sponsors would be discouraged from broadcasting advertisements subject to mandatory counter-commercials, and that broadcasters could suffer additional losses through operation of the Cullman principle under which they must bear the cost of presenting opposing views where paid sponsorship is not available.
II
The FCC’s decision to limit the applicability of the fairness doctrine lays upon it some obligation to consider carefully other serious suggestions that have been made to ensure sufficient and balanced coverage of important public issues. We conclude that two of the proposals rejected by the Commission in its Fairness Report and Reconsideration Order deserve further considerations at the agency level.
Both the Commission and reviewing courts have been acutely sensitive to the multiple dilemmas posed by government regulation of the broadcast media. First, there is the recognition that given the scarcity of broadcast channels, it is not possible that all who desire to speak through these media will be able to do so. A limitation both on the number of broadcast licensees
Yet case-by-case, issue-by-issue enforcement of the second obligation of the fairness doctrine still requires considerable Commission intrusion into the licensee decision-making process. Id. at 10-11. At the same time, reliance on third party complaints means that many fairness violations will not be called to account with respect to both part one and part two obligations.
The Commission procedures with respect to part two complaints are spelled out in the Fairness Report. The complainant must describe the station, issue, and program involved, and must also “state his reasons for concluding that in its other programming the station has not presented contrasting views on the issue.” Id. at 19. An unavoidable consequence of these procedures is that complaints will not be received, or will not be acted upon, unless there exist persons or organizations who are simultaneously “regular” viewers or listeners of the relevant station,
The potential for less than full enforcement of the first obligation under the fairness doctrine — provision of “a reasonable amount of time for the presentation . of programs devoted to the discussion and consideration of public issues”
The Commission received three major proposals designed to overcome these difficulties of current fairness doctrine enforcement.
A. The COM Access Proposal
The Fairness Report stated that the fairness inquiry did not disclose “any scheme of government-dictated access which we consider ‘both practicable and desirable.’ ” The Commission concluded that (1) a system of paid access would favor wealthy spokesmen, (2) a system of first-come, first-served free access would “give no assurance that the most important issues would be discussed on a timely basis,” and (3) any alternative system of free access would inevitably require the FCC to determine who should be allowed on the air. Fairness Report at 28-29 & n. 29.
After the Report was issued, COM petitioned the Commission to reconsider or clarify its position with respect to right-to-access policies voluntarily adopted by licensees. In its petition, COM proposed a specific access scheme, not presented to the Commission during the fairness inquiry itself, which would be deemed presumptive compliance with the fairness doctrine. Under the scheme suggested by COM:
1) A licensee would set aside one hour per week for spot announcements and lengthier programing which would be available for presentation of messages by members of the public.
2) Half of this time would be allocated on a first-come, first-served basis on any topic whatsoever; the other half would be apportioned “on a representative spokesperson system.”
3) Both parts of the allocation scheme would be “nondiscretionary as to content with the licensee.”
4) However, the broadcaster would still be required to ensure that spot messages or other forms of response to “editorial advertisements” are broadcast.
See J.A. at 421-22.
The Commission addressed COM’s proposal in its order denying reconsideration, stating that while the proposal was “the first serious attempt to meet” what the Commission deemed the essential requirements of any access scheme, “[i]t is neither perfected nor ready for adoption as a rule or policy.” Reconsideration Order at 699. The Commission also expressed the view that the COM system could be a supplement to, but not a substitute for, the current fairness doctrine requirements. Id.
We recognize that the Commission is not required in informal rulemaking to consider exhaustively every idea put forth
Our conclusions are prompted by the Commission’s own criteria for what would constitute an acceptable “optional access system to be administered by the licensee, and supplemented by the fairness doctrine:”
The essential requirements for any such system would be that [1] licensee discretion be preserved and [2] no right of access accrue to particular persons or groups. Furthermore, [3] the access system would not be permitted to allow important issues to escape timely public discussion. Most importantly, [4] the system must not draw the government into the role of deciding who should be allowed on the air and when.
Reconsideration Order at 699.
First, it seems to us that the Commission has not explained adequately why the COM proposal does not meet most of these requirements. The fourth requirement would be furthered even more than it is under present fairness doctrine enforcement, since under the COM proposal the licensee would be subject to fairness complaints only with respect to “editorial advertisements.” The nondiscretionary apportionment system in the COM proposal would appear to be responsive to the second requirement listed above. COM vigorously argues that the third requirement would be met because spokesmen will inevitably come forth to speak on important issues.
The first FCC requirement is that “licensee discretion be preserved." COM argues that its proposal assures licensee discretion in that the licensee can decide not to adopt the access system and instead continue to operate under current fairness doctrine procedures. COM Brief at 43. But of course the discretion to which the Commission is referring is with respect to deciding which issues should be covered initially and which initial coverage requires the presentation of opposing points of view.
The Commission evidently bases this requirement on language in CBS v. DNC, supra, 412 U.S. at 125, 93 S.Ct. at 2097, that “the allocation of journalistic priorities should be concentrated in the licensee rather than diffused among many.”
Nor do the Commission’s stated requirements take into account all crucial elements of an access scheme, or indeed any other mechanism of fairness doctrine enforcement. Certainly, the “essential requirements” must include some consideration of the scheme’s likely success in meeting the first obligation of the fairness doctrine: the coverage of controversial issues. We have already described the limited extent to which current enforcement procedures can assure that this obligation is fulfilled, and v;e understand the reluctance of the Commission to become more involved in dictating which issues must be covered under the obligation. COM’s proposal will involve the Commission even less than do present procedures in overseeing compliance with the first obligation. At the same time, the proposal would ensure a minimum amount of coverage of public issues.
Similarly, we think that the Commission cannot ignore the advantage of an access system in providing information to the public which would not be provided under even full compliance with both obligations of the fairness doctrine as currently implemented. For instance, we have sustained the Commission’s decision to exclude standard product commercials from the part two fairness obligation. Although we have determined that presentation of counter-commercials is not required by the public interest standard of the Communications Act, neither the Commission’s decision nor our affirmance of it was based on the view that the information contained in counter-commercials is useless or harmful. Allowing presentation of these messages would certainly not be inconsistent with the Commission’s statutory obligations. The only reservation about the utility of counter-commercials stated in the Fairness Report and Reconsideration Order was that they would present only one side of controversial issues of public importance.
We recognize of course, that there may be significant difficulties with the COM access proposal. For instance, there is no absolute assurance that the issues addressed during access time will be the most important or controversial issues facing the licensee’s community, and even less assurance of balance in presentation of opposing viewpoints. In its further inquiry into the COM proposal, we expect the Commission to ascertain how serious these potential defects are and to examine whether they can be overcome. Throughout this process, it is especially important that the nature and scope of issue coverage under the proposed access scheme be compared to the degree of coverage actually achieved under the current system of fairness doctrine implementation, not to the coverage that would be achieved were both fairness obligations currently complied with and enforced.
B. Other Proposals Relating to the First Fairness Obligation
In conducting further inquiry on the COM proposal, the Commission will have to examine how best to ensure that licensees devote a reasonable amount of time to programing on public issues, as is required under the first obligation under the fairness doctrine. We do not think that this examination should be limited to comparison of only two alternatives: present procedures
One of the proposals submitted to the Commission during the fairness inquiry seems especially promising as one step toward fuller compliance with the first fairness obligation. Intervenor Geller suggests that
the licensee list annually the ten controversial issues of public importance, local and national, which it chose for the most coverage in the prior year, set out the offers for response made; and note representative programing that was presented on each issue.77
Mr. Geller made this proposal both during the fairness doctrine inquiry and in his petition for reconsideration of the Fairness Report
Mr. Geller failed to state exactly what he believed the Commission should do with the issue reports that it receives, and it is not our role to flesh out the details of this proposal. It does seem to us, however, that issue reports could be useful to the Commission in one or more ways. For instance, the Commission initially could review each annual list to determine whether it appears that the licensee fulfilled his part one obligation. If this is not obvious from the list, or if the Commission had received complaints concerning the overall issue coverage afforded by the licensee, the Commission might conduct further inquiry into the licensee’s issue coverage. Alternatively the Commission might take no immediate action with respect to the annual reports, but instead examine them at the time of license renewal. We leave it to the Commission’s further examination to consider whether these or other uses of annual reports such as those proposed by Mr. Geller would be appropriate in enforcement of the fairness doctrine. The Commission may find it necessary to consider also under what standard the annual reports might be reviewed. We likewise leave to the Commission the determination of how best to conduct further inquiry into Mr. Geller’s proposal, including whether this inquiry should be conducted separately from or as part of the further inquiry into the COM proposal.
C. Review at Renewal Only
Under a wholly separate proposal put forth by intervenor Geller, both during the fairness inquiry and in his petition for reconsideration, the FCC would abandon its current case-by-case consideration of fairness doctrine complaints, and return to its pre-1962 practice of ascertaining at renewal time whether or not the licensee has complied with the fairness doctrine.
This proposal is directed at reducing the amount of government interference in the everyday editorial decisions of licensees. This objective was a major consideration in the decision in CBS v. DNC, supra, which held that there exists no statutorily or constitutionally mandated right of access for paid editorial broadcasts. But we think that intervenor errs in inferring
We therefore conclude that the Commission is neither constitutionally nor statutorily required to return to its pre-1962 method of fairness doctrine enforcement. Nor do we think that its rejection of the proposal that it do so was unreasonable or arbitrary. It is not contended that the Commission failed to give the proposal serious consideration.
IV
In summary, we reject the challenges to the Commission’s decision to exempt product commercials which do not “obviously and meaningfully address a controversial issue of public importance” from fairness doctrine obligations, and find no merit in the contentions that the Commission has violated the substantive and procedural requirements of NEPA. We also affirm the Commission’s decisions to continue its policy of case-by-case consideration of fairness complaints and its policies relating to licensee consideration of editorial advertisements, news slanting and political editorializing. However, we remand the orders reviewed on this appeal with instructions that the Commission undertake further inquiry into petitioner COM’s access proposal and intervenor Geller’s “10 issue” proposal in accordance with this opinion.
It is so ordered.
. Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949).
. First Report — Handling of Political Broadcasts, 36 F.C.C.2d 40 (1972) (concerning application of the fairness doctrine to appearances by candidates and public officials).
The Fairness Report itself appears as The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 F.C.C.2d 1 (1974). The FCC response to the requests for reconsideration is to be found in Memorandum Opinion and Order on Reconsideration of the Fairness Report, 58 F.C.C.2d 691 (1976) [Reconsideration Order], Part V of the Report itself (at 31-33) deals with application of the fairness doctrine to ballot propositions — a matter which is not in issue here.
. Petitioner NCCB further urges that the FCC should have undertaken an Environmental Impact Statement before issuing the Fairness Report. NCCB argues that removal of product advertising from fairness doctrine application will result in more ads for environmentally dangerous products, more use of such products, and therefore more harm to the environment. We do not think that Congress intended to require preparation of an EIS dealing with such remote and speculative possibilities. See Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972).
. Columbia Broadcasting System, Inc. v. FCC, 147 U.S.App.D.C. 175, 183, 454 F.2d 1018, 1026 (1971).
. Pensions, supra note 5, 170 U.S.App.D.C. at 194, 516 F.2d at 1122.
. See, e. g., Great Lakes Broadcasting Co., 3 F.R.C.App.Rev. 32 (1929) (“Public interest requires ample play for . . opposing views . [on] discussions and issues of importance to the public”), rev’d on other grounds, 59 App.D.C. 197, 37 F.2d 993, cert. dismissed, 281 U.S. 706, 50 S.Ct. 467, 74 L.Ed. 1129 (1930).
. Sam Morris, 11 F.C.C. 197 (1946).
. Report on Editorializing, supra note 1, at 1249-50 (“duty [to ensure dissemination of news and ideas] extends to all subjects of substantial importance to the community”).
. In 1963 the Commission had advised broadcasters that a “paid announcement” could be subject to fairness doctrine obligations. Controversial Issue Programming, 40 F.C.C. 571, 572 (1963).
. In addition to petitioners and respondents Federal Communications Commission and United States of America and intervenors referred to above, additional intervenors in these cases are American Broadcasting Companies, Inc.; Columbia Broadcasting System, Inc.; and United Farm Workers of America, AFL-CIO. Each of these organizations participated in the FCC’s fairness doctrine inquiry.
. National Broadcasting Co. v. FCC, 170 U.S. App.D.C. 173, 516 F.2d 1101 (1974) [Pensions], vacated as moot, id., 170 U.S.App.D.C. at 252, 516 F.2d at 1180 (1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976); Democratic National Committee v. FCC, 148 U.S.App.D.C. 383, 460 F.2d 891, cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972); Healey v. FCC, 148 U.S.App.D.C. 409, 460 F.2d 917 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 447 F.2d 323 (1971).
. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 375-86, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
.Throughout the history of fairness doctrine enforcement, much more attention has been given to this second obligation — the provision of opposing points of view on controversial issues about which only one viewpoint has been broadcast — than to the first, namely, the affirmative obligation to provide coverage of controversial and important issues. FCC has only once sustained a complaint relating to the part one obligation. Patsy Mink, 59 F.C.C.2d 987 (1976).
It is also clear that issues giving rise to the part two obligation would not necessarily be required to be covered under the first obligation; the threshold which triggers the second fairness obligation is lower than that which triggers the first. See Public Communications, Inc., 49 F.C.C.2d 27, application for review denied, 50 F.C.C.2d 395, 399-400 (1974). Certainly all parties in this case recognize this asymmetry with respect to product commercials. To our knowledge it was never suggested during the inquiry into operation of the fairness doctrine that broadcasters be affirmatively obligated to present views advocating use of controversial products. Cf. Cigarette Advertising and Anti-Smoking Presentations, 27 F.C.C.2d 453 (1970), aff'd sub nom. Larus & Bros. Co. v. FCC, 447 F.2d 876 (4th Cir. 1971) (broadcast of anti-smoking messages does not give rise to fairness doctrine obligation to broadcast views advocating smoking because the issue is no longer a matter of public controversy).
. 132 U.S.App.D.C. 14, 405 F.2d 1082 (1968), cert. denied sub nom. Tobacco Institute v. FCC, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969).
. 146 U.S.App.D.C. at 93-95, 449 F.2d at 1169-71. Prior to Friends of the Earth, in Retail Store Employees Union, Local 880, R.C.I.A. v. FCC, 141 U.S.App.D.C. 94, 436 F.2d 248 (1970), this court determined that product advertising by a department store which was being boycotted as a result of a labor dispute implicitly raised the issue of whether or not the store should be patronized, which, given the union strike and boycott, was a controversial issue of substantial public importance. Id., 141 U.S.App.D.C. at 104, at 258. As was true in Banzhaf and Friends of the Earth, decided subsequently, the advertisements in Retail Store Employees Union did not discuss or even allude to an important issue in controversy. Yet in all three of these cases viewers or listeners were subjected to implicit advocacy of one side of such an issue.
. Petitioners argued that since the advertised additive was found only in leaded gasoline, the advertisements were in effect for leaded gasoline, which contributes more to auto pollution than does nonleaded gasoline.
. 163 U.S.App.D.C. at 416, 502 F.2d at 418. The court stated that charges of false advertising are a proper subject of investigation by the Federal Trade Commission. Id
. See Simmons, Commercial Advertising and the Fairness Doctrine: The New F.C.C. Policy in Perspective, 75 Colum.L.Rev. 1083, 1094 (1975).
. 144 U.S.App.D.C. 353, 447 F.2d 323 (1971).
. Id., 144 U.S.App.D.C. at 359-362, 447 F.2d at 329-332. The court also held that even if the issues of the draft, the Vietnam war, and the desirability of military service were raised sufficiently for application of the fairness doctrine, these fairness obligations were met by adequate and complete coverage of these issues. Id.
. See Friends of the Earth, supra, 146 U.S. App.D.C. at 94, 449 F.2d at 1170 (1971).
. See Simmons, supra note 18, at 1089.
. See also Media Access Project, 44 F.C.C.2d 755 (1973), where the Commission held that advertisements contending that the sponsor power company needed to expand its operations raised the issue of whether a pending request for a rate increase should be granted. One of these advertisements did explicitly advocate the desirability of “[a]n increase in price.” Id. at 765 (Appendix I).
. See, e. g., Anthony R. Martin — Trigona, 19 F.C.C.2d 620, 622 (1969) (institutional advertising by network and “praise of commercial television . . . cannot be regarded as clear criticism of pay television” and thus do not raise the pay television controversy).
. In Green, supra, 144 U.S.App.D.C. at 363, 447 F.2d at 333 n. 19, this court stated that the pending fairness inquiry “should provide a helpful and much-needed illumination of the commercial advertising aspects of the fairness doctrine.”
. Cf. Neckritz, 29 F.C.C.2d 807, 814 (1971) (Commission announced plan to undertake “thorough re-examination and rethinking” of broad issues relating to fairness doctrine and commercial advertising).
. See Green, supra, 144 U.S.App.D.C. at 363, 447 F.2d [333] at 333 & n. 19 (“Other cases . . . will provide the appropriate occasions for critically tracing the contours of the public interest standard as it applies to commercial advertising,” citing, inter alia, the Commission’s plans to undertake thorough inquiry into fairness doctrine); Friends of the Earth, supra, 146 U.S.App.D.C. at 94, 449 F.2d at 1170 (noting pending fairness doctrine inquiry); Neckritz, 163 U.S.App.D.C. at 417, 502 F.2d at 419 (Bazelon, X, voting to deny application for rehearing en banc in part because review of recently issued Fairness Report was then being sought).
. Thus, our general approval in this opinion of the decisions reached in the Fairness Report with respect to the applicability of the fairness doctrine to commercial advertisements should not be interpreted as expressing the view that an accommodation of fairness doctrine requirements with commercial advertisements consistent with the Banzhaf approach was not possible.
. “An example of an overt editorial advertisement would be a thirty — or sixty — second announcement prepared and sponsored by an organization opposed to abortion which urges a constitutional amendment to override a decision of the Supreme Court legalizing abortions under certain circumstances.” Fairness Report at 22.
. The quoted phrase suggests that the advertiser’s subjective intention is determinative of whether the commercial is an “editorial advertisement.” However, the Commission at another point in the Report states it is not concerned with “the advertiser’s actual intentions” in running an ad, but rather in whether the ad as presented “is an obvious participation in public debate.” Fairness Report at 23.
. In view of the difficulty inherent in making this judgment, the Commission expressed its intention to allow licensees considerable leeway in deciding whether the advertisement at issue incurs fairness obligations. The Commission will uphold the licensee’s decision not to broadcast opposing points of view
unless the facts are so clear that the only reasonable conclusion would be to view the “advertisement” as a presentation of one side of a specific public issue.
Id. at 24.
. The Report gives as an example an advertisement in which the arguments and views presented “closely parallel” the position of advocates on either side of a public issue, and cites Media Access Project, discussed at note 23 supra. Id.
. The Fairness Report has separate subsections dealing with editorial advertisements and standard product commercials. The application of the fairness doctrine to product efficacy disputes, however, is discussed in the course of the Commission’s response to a specific proposal made by the Federal Trade Commission during the fairness doctrine inquiry. It nevertheless seems clear that the Commission intended to distinguish advertisements containing disputed product efficacy claims from standard product commercials generally promoting desirability and from editorial advertisements.
. Nor do we find petitioners’ other constitutional arguments persuasive. For reasons stated herein, we do not think that “the Commission has engaged in an arbitrary, irrational and unconstitutional discrimination between speakers based on the content of their speech,” Brief of CEP and United Farm Workers at 19, by distinguishing for fairness doctrine purposes between speech which is editorial in nature and speech which promotes use of a product. We also do not think that the distinctions set out in
. Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 765, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976).
. See, e. g., Neckritz v. FCC, 163 U.S.App. D.C. 409, 502 F.2d 411 (1974); Healey v. FCC, 148 U.S.App.D.C. 409, 460 F.2d 917 (1972); Green v. FCC, 144 U.S.App.D.C. 353, 447 F.2d 323 (1971).
. 425 U.S. at 763-64, 96 S.Ct. 1817.
. In CBS v. DNC, supra, 412 U.S. at 131-32, 93 S.Ct. at 2101, the Court, after noting that the Commission was conducting the inquiry on the fairness doctrine which is the subject of this appeal, concluded that “courts should not freeze this necessarily dynamic process [of accommodating broadcast regulation and first amendment rights of broadcasters and the public] into a constitutional holding.”
. See, e. g., citations in note 37 supra.
. 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975). In striking down a Virginia statute prohibiting the advertising of abortion services, the Court stressed the public’s interest in receiving such information, id. at 822.
. 132 U.S.App.D.C. at 33, 405 F.2d at 1101, quoted at Fairness Report at 24-25.
. Fairness Report at 25.
. See, e. g., Dissenting Statement of Commissioner Robinson to the Reconsideration Order, supra note 2, at 703-11.
. See Red Lion, supra, 395 U.S. at 392-94, 89 S.Ct. 1794. But see Miami Herald Publishing Co. v. Tomillo, 418 U.S. 241, 257, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974) (“Government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate,’ ” quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279, 84 S.Ct. 710, 725, 11 L.Ed.2d 686 (1964)).
. See 132 U.S.App.D.C. at 33, 405 F.2d at 1101 (“The speech which might conceivably be ‘chilled’ by this ruling barely qualifies as constitutionally protected ‘speech.’ ”).
. Petitioners also contend that the mandate of the National Environmental Protection Act of 1969 (NEPA), that “to the fullest extent possible” federal agencies administer policies, regulations, and public laws in. accordance with NEPA and make available information concerning the environment, 42 U.S.C. § 4332(1), (2)(F) (Supp. V 1975), requires that fairness doctrine obligations be imposed with respect to commercials for environmentally dangerous products. This position misinterprets the effect of NEPA on federal agency action. The FCC must give consideration to questions of environmental quality, see Calvert Cliffs’ Coordinating Committee, Inc. v. Atomic Energy Commission, 146 U.S.App.D.C. 33, 36, 449 F.2d 1109, 1112 (1971). Accordingly, the Commission has indicated that “broadcasters must cover pollution issues generally, under their obliga
Given the prohibition in section 326 of the Communications Act against Commission censorship, we do not believe that . NEPA can be interpreted to compel the Commission to use its licensing power as a lever to impose special standards upon private licensees in the interest of the environment.
Public Interest Research Group v. FCC, 522 F.2d 1060, 1068 (1st Cir. 1975), cert. denied, 424 U.S. 965, 96 S.Ct. 1458, 47 L.Ed.2d 731 (1976).
. Sam Morris, 11 F.C.C. 197, 198 (1946).
. In at least one instance prior to 1959, one member of the Commission did informally express a policy very similar to that of WCBSTV. In a letter dated August 11, 1949, to the Chairman of the Senate Committee on Interstate and Foreign Commerce, the Acting Chairman of the FCC explained that Sam Morris stood for the proposition that the mere commercial “plug” of liquor “may assume the proportions of a controversial issue of public importance,” and that such advertising by itself could “raise serious social, economic, and political issues for the community,” reprinted at Hearings Before the U.S. Senate Committee on Interstate and Foreign Commerce on S. 2444, 82d Cong., 2d Sess., at 7 (1952). This letter is not referred to in the congressional history of the 1959 amendments to the Communications Act.
. Remarks of Chairman Pastore of the Senate Subcommittee on Communications, 105 Cong. Rec. 14462 (July 28, 1959). But see also Red Lion, supra, 395 U.S. at 385, 89 S.Ct. at 1804, “When the Congress ratified the FCC’s implication of a fairness doctrine in 1959 it did not, of course, approve every past decision or pronouncement by the Commission on this subject, or give it a completely free hand for the future.”
. In Banzhaf, supra, 132 U.S.App.D.C. at 24, 405 F.2d at 1092, we stated that Sam Morris has “not been followed in the twenty years since it was decided,” and was “not in any event a clear precedent for a ruling which instructs stations to broadcast opposition to their paid commercials.” Statutory recognition of the fairness doctrine thus could not have included codification of the approach approved in Banzhaf.
. Section 315(a) of the Communications Act, 47 U.S.C. § 315(a) (1970), defines this standard as affording “reasonable opportunity for the discussion of conflicting views on issues of public importance.”
. Banzhaf, supra, 132 U.S.App.D.C. at 24, 405 F.2d at 1092, quoting Applicability of the Fairness Doctrine to Cigarette Advertising, 9 F.C. C.2d 921, 943 (1967).
We expressly noted in a later decision that the Commission had authority to reformulate the commercial advertising policy established in WCBS-TV. Friends of the Earth, supra, 146 U.S.App.D.C. at 94, 449 F.2d at 1170.
. See, e. g., Banzhaf, supra, 132 U.S.App.D.C. at 23, 25, 405 F.2d at 1091, 1093.
. See CBS v. DNC, supra, 412 U.S. at 132, 93 S.Ct. at 2101 (fairness inquiry is one step in “a continuing search for means to achieve reasonable regulation compatible with the First Amendment rights of the public and the licensees”).
. Permian Basin Area Rate Cases, 390 U.S. 747, 792, 88 S.Ct. 1344, 1373, 20 L.Ed.2d 312 (1968).
. “In the cigarette case, for example, the ads run by the industry did not provide the listening public with any information or arguments relevant to the underlying issue of smoking and health.” Fairness Report at 25.
. Report on Editorializing, supra note 1, at 1249.
.The same arguments apply, albeit with less force, to institutional advertisements which do not overtly and obviously advocate one side of a controversial issue.
. See Geller, The Fairness Doctrine in Broadcasting: Problems and Suggested Courses of Action 85 (Rand Corp. 1973) (“There are relatively few advertised products whose normal use does not involve some significant issue: automobiles (large or small), gasoline (leaded or unleaded), any type of medication, beer, airplanes, any product that does not have a biodegradable container, any foreign product — the list is virtually endless.”).
. Cullman Broadcasting Co., 40 F.C.C. 576 (1963).
. No generalizations can be drawn from the effect of the order in WCBS-TV itself, since that order applied to only one product. We do find it relevant, however, that apparently the cigarette manufacturers preferred a policy of no cigarette advertisements on television at all over the policy of requiring anti-smoking commercials, see Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582, 588 (D.D.C.1971) (Wright, J., dissenting). This supports the suggestión in the Fairness Report that full enforcement of the WCBS-TV policy could undermine the economic base of current broadcasting system.
. The Commission apparently agrees. In its Reconsideration Order, supra note 2, at 699, the FCC stated, “Clearly, however, the economic impact on the broadcast industry was only one of many factors contributing to our choice of policy, and that factor alone is not of such critical importance as to cause a change of policy.”
. As additional support for our conclusion that the Commission’s new policies with respect to commercial advertising are not unreasonable or arbitrary, we note that two respected students of the fairness doctrine and of FCC regulation generally have made substantially similar proposals. See Geller, supra note 60; Jaffe, The Editorial Responsibility of the Broadcaster: Reflections on Fairness and Access, 85 Harv.L.Rev. 768 (1973).
. See National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); CBS v. DNC, supra.
. See Report on Editorializing, supra note 1; Section 315(a) of the Communications Act, 47 U.S.C. § 315(a) (1970) (requiring a “reasonable opportunity for the discussion of conflicting views on issues of public importance”).
. For a description of these obligations, see p. 8 & n. 13 supra.
. See Fairness Report at 19 (complainants must state reasons for concluding that station has not presented contrasting views; complainants thus must “specify the nature and extent of their viewing or listening habits, and should indicate the period of time during which they have been regular members of the station’s audience”).
. Id. at 9, quoting Report on Editorializing, supra note 1, at 1244.
. See generally Comment, Enforcing the Obligation to Present Controversial Issues: The Forgotten Half of the Fairness Doctrine, 10 Harv.C.R.C.L.L.Rev. 127 (1975).
. Commission rejection of certain other proposals is also objected to on this appeal. We affirm the Commission’s actions on these proposals. Petitioner NCCB asserts that there is a constitutional right of access for counter-commercials, arguing that the CBS v. DNC rationale for denying an access right for controversial
Intervenor Geller requested that the Commission require broadcasters to “consider” all editorial advertisements, because, according to Mr. Geller, “many broadcasters now pursue . a flat ban on any advertisement dealing with a controversial issue.” Geller Brief at 36. The Commission gave this proposal “serious thought” but concluded that it was not practicable, Fairness Report at 29. The Commission’s concern that this rule would cause unwarranted Commission intrusion into licensees’ broadcast decisions is ample support for its conclusion. Intervenor Geller also seeks to have the Commission modify its current policies, as set out in the Fairness Report and Reconsideration Order, with respect to news slanting and political editorializing. We find no basis upon which to upset the Commission’s policies in these areas.
. Brief of Henry Geller at 33.
.Brief of COM at 35. COM also points out that “under the present system, there is no assurance or requirement that once an offer of reply time is made, a contrasting viewpoint will actually be aired, if responsible spokespeople chose not to accept the offer.” Id. We further note that where there is offered an opportunity to speak on an issue, but no one takes advantage of the opportunity, it is highly doubtful that the issues could qualify as one of importance.
. The opinion in CBS v. DNC also states:
For better or worse, editing is what editors are for; and editing is selection and choice of material.
412 U.S. at 124, 93 S.Ct. at 2097.
. See note 66 supra.
. Fairness Report at 25; Reconsideration Order, supra note 2, at 698.
. Brief of Henry Geller at 33.
. See J.A. at 469-472.
. This change in practice was effected first with respect to cases involving personal attacks, see Tri-State Broadcasting Co., 40 F.C.C. 508 (1962).
. 412 U.S. at 126-27, 93 S.Ct. at 2098 (“Under . . . [the] right-of-access system urged by respondents . . ., the Commission would be required to oversee far more of the day-today operations of broadcasters’ conduct, deciding such questions as whether ... a particular viewpoint has already been sufficiently aired”); id. at 125, 93 S.Ct. at 2097 (“It was reasonable for Congress to conclude that the public interest in being informed requires periodic accountability on the part of [broadcasters].”) (emphasis added); id. at 120, 93 S.Ct. at 2095 (the “unmistakable Congressional purpose [is] to maintain . . essentially private broadcast journalism held only broadly accountable to public interest standards.”) (emphasis added) (opinion of Burger, C. J.).
. Red Lion did not sustain the Commission’s fairness doctrine procedures. Although the Court upheld the fairness doctrine and the Commission’s finding of a violation in that case, it did not have occasion to rule on the validity of the process by which the licensee before it was found to have violated the doctrine. See National Broadcasting Co. v. FCC [Pensions], 170 U.S.App.D.C. 173, 188, 516 F.2d 1101, 1116 (1974), vacated as moot, id. 170 U.S.App.D.C. at 252, 516 F.2d at 1180 (1975), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976).
. As previously stated, “[Mr. Geller’s] position is a serious one, and it deserves serious consideration.” Pensions, supra, 170 U.S.App.D.C. at 188, 516 F.2d at 1116. The Commission explained the proposal and the reasons for its rejection in both the Fairness Report (at 18) and the Reconsideration Order (supra note 2, at 693-94).