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FTC Petition |
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A Petition before the Federal Trade Commission The Request for the Commencement of an Official Investigation and Complaint Regarding False and Deceptive Advertising Practices |
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UNITED STATES OF AMERICA BEFORE THE FEDERAL TRADE COMMISSION ROCKY MOUNTAIN MEDIA WATCH, INC, PETITIONERS, IN RE: THE REQUEST FOR THE COMMENCEMENT OF AN OFFICIAL INVESTIGATION AND COMPLAINT REGARDING FALSE AND DECEPTIVE ADVERTISING PRACTICES BY: KCNC-TV AND VIACOM INC, KMGH-TV AND THE MCGRAW HILL CORPORATION, KUSA-TV AND MULTIMEDIA HOLDINGS CORPORATION, AND KWGN AND THE TRIBUNE COMPANY. POTENTIAL RESPONDENTS. 1. Summary The Federal Communication Commission (FCC) awards exclusive licenses to four major television broadcasters in the Denver-area market: KCNC-TV, KMGH-TV, KUSA-TV, and KWGN (The Stations). In granting these licenses, the FCC takes into consideration the privilege and power of this exclusivity by awarding The Stations licenses not in pure commercial terms but "in the public interest." A public trustee is charged with a heightened standard of conduct and cannot act exclusively in its own self-interest. This heightened responsibility mandates that The Stations balance the interests of the public against their own commercial interests. Each station broadcasts several "news" programs each day. These broadcasts occupy a position of unique credibility due to their exclusivity, and the public relies upon them as the most popular source of accurate information. The Stations heavily advertise these programs in order to enhance their popularity and to maximize advertising revenue. In their advertisements, The Stations repeatedly claim that these broadcasts contain "news" programming. The Stations intentionally, knowingly, and substantially violate the federal prohibitions against false and deceptive advertising contained in 15 USC 45 by advertising these programs as "news," when this allegation has no basis in fact as required by the provisions of 49 FR 30,999 (1984), the FTC Policy Statement on Advertising Substantiation. The programs are substantially non-news, comprised of violence, mayhem, entertainment, and fluff. Left out are stories about the full range of issues—including election issues—that news consumers need in a democracy. In addition, this false and deceptive advertising contravenes The Stations’ obligation as public trustees. The false and deceptive advertising causes direct and substantial harm Relief Requested Petitioner Rocky Mountain Media Watch, pursuant to 16 CFR 2.1 and 16 CFR 260.4, hereby requests the Federal Trade Commission to: 1) Investigate and issue a complaint that advertising by KCNC-TV, KMGH-TV, KUSA-TV, and KWGN of their news programming is false, misleading and deceptive, and in violation of section 5 of the Federal Trade Commission Act, 15 USC section 45 (Denver’s FOX 31 has been excluded from this Petition due to its recent arrival in the Denver market and resultant lack of historical data about its programming and advertising tactics.); 2) Order KCNC-TV, KMGH-TV, KUSA-TV, and KWGN to cease and desist from all such false and deceptive practices in all of their print, outdoor, broadcast, and other media; 3) Order KCNC-TV, KMGH-TV, KUSA-TV, and KWGN to fairly and accurately advertise future programming so as not to mislead the public (such as replacing "News" with "Reality Entertainment News," "Info-tainment" or "Reality-based Mayhem, Fluff, Weather, and Sports," or some other phrase that accurately describes the primary content of local TV non-news "news" programs) if the current deceptive practice of non-news-based "news" programming is continued; 4) Order KCNC-TV, KMGH-TV, KUSA-TV, and KWGN to provide news consumers through appropriate labeling—either prior to their shows or in TV guides—more information about the average percentage of airtime dedicated to balanced, diverse news; and 5) Issue clear advertising guidelines for news programming consistent with standards set by the Society of Professional Journalists and National Association of Broadcasters. Jurisdiction This body has jurisdiction to initiate and investigate and issue a complaint against KCNC-TV, KMGH-TV, KUSA-TV, and KWGN based on 16 CFR 2.1, which provides: Commission investigations and inquiries may be originated upon the request of the President, Congress, governmental agencies, or the Attorney General; upon referrals by the courts; upon complaint by members of the public; or by the Commission upon its own initiative… (emphasis added). [1] Facts and Law in Support of Petition In support of this Petition, Rocky Mountain Media Watch (RMMW) alleges as follows: The Parties 1) Petitioner Rocky Mountain Media Watch is a Denver-based nonprofit organization founded in 1994 to educate the public about the news media and to challenge news media outlets, particularly local TV news, to meet the highest standards of professional journalism. RMMW’s publications include: Not in the Public Interest: Local TV News On Cable (1999); Local TV News in America (1998); Baaad News: Local TV News in America (1997); Pavlov’s TV Dogs: A Snapshot of Local TV News in America (1995); and others. (Additional RMMW material can be found on the RMMW web site, www.bigmedia.org.) a) RMMW surveys of local TV "news," reports on election coverage by local TV "news," and legal challenges to the licenses of Colorado stations have been covered by hundreds of print and broadcast news outlets, including journalism’s most prestigious journals and leading newspapers. RMMW received a Media Hero award in 1995 from the Independent Media Institute. Dedicated to informing the public, RMMW fields regular phone and e-mail inquiries from citizens, particularly students and researchers, and disseminates its work widely through speeches, mailings, and its web site, www.bigmedia.org. RMMW is funded by donations from individuals and foundations. 2) Potential Respondents KCNC-TV, KMGH-TV, KUSA-TV, and KWGN are Denver-based television stations. They broadcast daily programming, including "news," accessible on Channel 4, 7, 9, and 2 respectively. They are divisions of Viacom Inc., the McGraw Hill Corporation, Multimedia Holdings Corporation, and the Tribune Company respectively. 3) Each of The Stations has been granted a license by the FCC to exclusively broadcast programming to the Denver market. The FCC renewed each Station’s broadcast license in 1998, after each Station pledged to broadcast in the "public interest." Stations Advertising Claims of "News" 4) The Stations can and do freely and advertise their "news" programs throughout the programming day on their own TV channels with commercials. In these advertisements, The Stations make direct claims that their programming is the "news," "local news" or the "nightly news." For example, "You’re watching Colorado’s news channel," claimed one recent KCNC advertisement. [2] KWGN’s anchors tell viewers, "You’re watching WB2 News." [3] Frequently, nationally known network journalists advertise The Stations’ "news" programs. For example, prior to a recent KCNC 10 p.m. "news" broadcast, famous CBS news anchor Dan Rather told viewers, "Stay tuned for your local news." [4] 5) The Stations also broadcast "teaser" advertisements on television, making direct claims that their upcoming programs will feature news. For example, about 15 minutes prior to the beginning of a recent program, KCNC teased viewers with: "Witness a rare live birth! Tonight on News 4" and "The doctor from the South Pole talks with News 4 tonight." [5] A couple days later, KCNC enticed viewers with this teaser: "Consignment stores of the rich and famous—only on News 4 at 10." [6] A KUSA teaser stated: "Supermodel Nickie Taylor is in critical condition after a car wreck…coming up on 9 News." [7] KMGH concluded a tease with: "Exactly what to expect where—on Denver’s 7 News tonight. [8] 6) In addition to television advertisements, The Stations promote their "news" programming in print, billboard, radio, and Internet advertisements. a) KCNC, which is found on channel 4 on television, claims to be "Colorado’s News Channel." It widely advertises itself as "News 4." [9] b) KMGH, which is found on channel 7 on television, advertises itself as "7 News." [10] c) KUSA, which is found on channel 9 on television, labels itself "Colorado’s News Leader" or "9 News." Recent billboards pictured the KUSA and the phrase, "Colorado’s News Leader." [11] d) KWGN, which is found on channel 2 on television, advertises itself as "WB2 News" or "Colorado’s First News." [12] The Law Against Deceptive Advertising 7) The regulation of advertising in general. a) The crux of this petition is that The Stations, like any other commercial advertiser, cannot recklessly or intentionally disregard the truth in their advertisements. b) The truth is recklessly or intentionally disregarded when The Stations claim they broadcast news. The FTC should force The Stations to abide by the same principles that all advertisers must follow that prevent deceptive or unsubstantiated advertisement claims. c) Courts have continually found that the FTC’s reasonable and limited regulation of advertising to protect the public against the harm caused by false claims is not censorship prohibited by the First Amendment of the United States Constitution. d) The FTC, as the ultimate consumer watchdog, regulates commercial advertising. It has filed complaints against industries ranging from the food industries to appliance manufacturers to the telecommunications industries. i) The FTC filed a complaint against Collins Buick, Inc., a Louisville, Kentucky auto dealership, and its principal operating officer, William Kevin Collins, for making numerous deceptive advertising claims. The FTC alleged Collins to have engaged in violent advertising in connection with advertising deceptive financing and lease terms for automobiles in Kentucky and Indiana. One of the ads made the following claim: "All New Buicks In Stock $125 Down & $125 A Month." While partially true, the claim is deceptive because there are significant terms and conditions that conveniently are not mentioned. The FTC complaint alleged that, in this ad and others, the respondents engaged in a deceptive practice by failing to disclose to consumers that the financing to be signed at the time of purchase would require the buyers to make a substantial balloon payment, or a second series of installment payments, at the conclusion of the initial payments. The FTC also alleged that Collins failed to state in ads the terms of repayment, such as the amount of the final balloon payment or the number and amount of the second series of installment payments. ii) Even where advertising is not deceptive, the FTC may require an industry to provide more accurate and/or detailed information as needed by the consumer to make informed and meaningful decisions. In Food and Drug Administration: Trans Fat Labeling Information, V000003, (Apr. 14, 2000), the FDA required more specific labeling of the fat content in food. The FDA concluded that trans fats increase the risks of heart disease; therefore the "Nutrition Facts Panel" labeling should be amended to include trans fatty acid information. As the basis for regulating advertising, the FDA stated that: Information is an important ingredient for preventative health,(9) and the Nutrition Facts Panel is a unique component of the total consumer nutrition information environment, which includes the media, reference books, doctors, and nutritionists. Without truthful content information, even those consumers most informed about diet and health would be unable to identify products that best meet their dietary goals. Accurate and truthful nutrition labeling also can help foster product improvements by delivering information to consumers on quality variables that they may not otherwise know about. More information can increase the demand for more healthful products, and provide the incentive for additional investments in research for healthful product innovations. iii) The U.S. Congress granted the FTC authority to promulgate the Appliance Labeling Rule, directing that it require labeling which provides average annual fuel consumption estimates, that the Department of Energy establish the national average costs for fuel types each year, and that the operating cost information on EnergyGuides be based on these average costs. In addition, the DOE was required to reevaluate the ranges of comparability annually and to publish new ranges when they changed significantly. e) There is no exemption that excludes broadcast television from the regulations that any other industry must follow in advertising and promoting its products. The bottom line is that advertisements for news programming must be truthful, accurate and complete like any other advertisement. In fact, as in the food labeling industry and the appliance industry, news consumers may benefit from labeling or ratings which let the consumers know exactly the amount of news contained in the news broadcasts as opposed to mayhem and fluff designed to attract viewers. f) Three FTC policies apply to all commercial advertisers: The Policy of Substantiation, The Policy on Deceptive Advertising, and the Policy on Unfairness. 8) The FTC Policy on Substantiation a) In its Policy Statement Regarding Advertising Substantiation (attached as exhibit one), as published by the Commission on March 11, 1983, the FTC summarized its position on required substantiation of advertising. The FTC stated: Therefore, a firm's failure to possess and rely upon a reasonable basis for objective claims constitutes an unfair and deceptive act or practice in violation of Section 5 of the Federal Trade Commission Act…. Many ads contain express or implied statements regarding the amount of support the advertiser has for the product claim. When the substantiation claim is express (e.g., "tests prove", "doctors recommend", and "studies show"), the Commission expects the firm to have at least the advertised level of substantiation. Of course, an ad may imply more substantiation than it expressly claims or may imply to consumers that the firm has a certain type of support; in such cases, the advertiser must possess the amount and type of substantiation the ad actually communicates to consumers. Absent an express or implied reference to a certain level of support, and absent other evidence indicating what consumer expectations would be, the Commission assumes that consumers expect a "reasonable basis" for claims. The Commission's determination of what constitutes a reasonable basis depends, as it does in an unfairness analysis, on a number of factors relevant to the benefits and costs of substantiating a particular claim. These factors include: the type of claim, the product, the consequences of a false claim, the benefits of a truthful claim, the cost of developing substantiation for the claim, and the amount of substantiation experts in the field believe is reasonable. Extrinsic evidence, such as expert testimony or consumer surveys, is useful to determine what level of substantiation consumers expect to support a particular product claim and the adequacy of evidence an advertiser possesses… (Emphasis added.). 9) The FTC Policy on Deceptive Advertising a) In its Policy Statement on Deception (attached as exhibit two), as stated in its response to an inquiry from the Committee on Energy and Commerce, dated October 14, 1983, the FTC summarized its position on deceptive acts or practices. The FTC stated: Certain elements undergird all deception cases. First, there must be a representation, omission or practice that is likely to mislead the consumer. Practices that have been found misleading or deceptive in specific cases include false oral or written representations, misleading price claims, sales of hazardous or systematically defective products or services, without adequate disclosures, failure to disclose information regarding pyramid sales, use of bait and switch techniques, failure to perform promised services, and failure to meet warranty obligations. Second, we examine the practice from the perspective of a consumer acting reasonably in the circumstances. If the representation or practice affects or is directed primarily to a particular group, the Commission examines reasonableness from the perspective of that group. Third, the representation, omission, or practice must be a "material" one. The basic question is whether the act or practice is likely to affect the consumer's conduct or decision with regard to a product or service. If so, the practice is material, and consumer injury is likely, because consumers are likely to have chosen differently but for the deception. In many instances, materiality, and hence injury, can be presumed from the nature of the practice. In other instances, evidence of materiality may be necessary. 10) The FTC Policy on Unfairness a) In the "FTC Policy Statement on Unfairness" (attached as exhibit three), the FTC’s response to a query from The Consumer Subcommittee, Committee on Commerce, Science, and Transportation, dated December 17, 1980, the FTC articulated a clear and unequivocal standard: Section 5 of the FTC Act prohibits, in part, ‘unfair ... acts or practices in or affecting commerce.’ This is commonly referred to as the Commission's consumer unfairness jurisdiction…. The present understanding of the unfairness standard is the result of an evolutionary process. The statute was deliberately framed in general terms since Congress recognized the impossibility of drafting a complete list of unfair trade practices that would not quickly become outdated or leave loopholes for easy evasion. The task of identifying unfair trade practices was therefore assigned to the Commission, subject to judicial review, in the expectation that the underlying criteria would evolve and develop over time. As the Supreme Court observed as early as 1931, the ban on unfairness "belongs to that class of phrases which do not admit of precise definition, but the meaning and application of which must be arrived at by what this court elsewhere has called 'the gradual process of judicial inclusion and exclusion. By 1964 enough cases had been decided to enable the Commission to identify three factors that it considered when applying the prohibition against consumer unfairness. These were: (1) whether the practice injures consumers; (2) whether it violates established public policy; (3) whether it is unethical or unscrupulous. These factors were later quoted with apparent approval by the Supreme Court in the 1972 case of Sperry & Hutchinson. Since then the Commission has continued to refine the standard of unfairness in its cases and rules, and it has now reached a more detailed sense of both the definition and the limits of these criteria. The Stations Claims Contravene FTC Policy 11) The claims are unsubstantiated and deceptive a) While creating an expectation among consumers that they will receive legitimate news, The Stations knowingly, recklessly and intentionally substitute real news with non-news designed to maximize commercial profits. b) Surveys reveal that news consumers undisputedly want balanced and informative news, not just reality-based information that interests them. [13] Despite the wishes of news consumers, The Stations do not provide any balance whatsoever. Local TV "news" programs on The Stations are severely unbalanced, emphasizing repetitive and dramatic coverage of crime, disaster, trivial events, sports and weather. Consequently, judging by objective content analyses, these programs do not contain the balanced coverage of a broad range of issues that is expected from a trusted news program. c) The evidence for these assertions comes from a series of content analyses of local newscasts conducted between 1994 and 1998 by Rocky Mountain Media Watch. [14] More recent studies have confirmed the results of RMMW data. d) In RMMW's 1998 survey of local TV news in America, titled "Not in the Public Interest," The Stations’ 10 p.m. broadcasts were found to be typical of the broadcasts on local television stations across America. [15] e) News broadcasts offer a dismally narrow mix of topics. The Stations’ typical broadcast breaks down as follows: about 40 percent "news," about 11 percent sports, and about 10 percent weather—with commercials (about 32 percent), previews and promos (about six percent), chatter among the anchors (about one percent), and public service announcements (less than one percent) constituting the remainder of the show. f) The "news" segment of the "news" broadcast is dominated by mayhem and fluff. About 40 percent of the "news" segment of The Stations’ broadcast is dedicated to coverage of crime. And about half of the airtime devoted to crime coverage is about murders. Other violent crimes are also popular "news" fare. i) To help citizens develop a better understanding of the content of local TV "news," RMMW developed a "Mayhem Index." This index is the percentage of news (excluding weather and sports) devoted to stories about violent topics: crime, disasters, war and terrorism. RMMW’s latest survey revealed that mayhem on The Stations averaged 46 percent of the news (KCNC 41 percent, KMGH 49 percent, KUSA 44 percent, and KWGN, 48 percent). This is consistent with other RMMW analyses conducted over the past seven years. In seven studies, the average mayhem content of KCNC’s news broadcast was 50 percent, on KMGH’s 53 percent, on KUSA's 47 percent, and on KWGN’s 42 percent. ii) Weather, sports, and fluff are the other prominent news topics. RMMW surveys also quantify the amount of "fluff" in newscasts. Fluff is defined as chatter between the anchors, teases, soft news, and celebrity stories. On average, The Stations’ fluff takes up about 20 percent as much airtime as "news." On average more time is dedicated to chatter between the anchors than many important topics, like poverty, AIDS, religion, and others. (1) Some examples of the soft news included in our Fluff Index: [16] (a) Man runs in diaper. (b) Bill the dog returns home. (c) Boy walks on stilts. (d) Horse pulled from mud by helicopter. (e) Beauty contest in Albania. (f) New fad — beer baths. g) Coverage of weather and sports is featured prominently on The Stations’ "news" broadcasts. In fact, the combined amount of time dedicated to weather and sports is over half as much as the amount of time dedicated to "news." h) Evidence abounds that since RMMW’s last survey, content of the news programs on The Stations has not changed. For example, in a Columbia Journalism Review article discussing an exhaustive three-year study (1998-2000) of 49 local TV stations in 15 cities, Tom Rosenstiel, Carl Gottlieb, and Lee Ann Brady make these observations: i) Local TV ignores whole sectors of society. The poor have all but disappeared. Out of 8,095 stories studied this year, only seven concerned the disadvantaged. By comparison, 336 concerned entertainers. Over three years, and some 25,000 stories, only 35 focused on the needy.... ii) A whole range of what people expect from journalism--like helping the disadvantaged or being a watchdog over the powerful--is ignored. [17] i) Because they have chosen to broadcast entertainment-oriented non-news, The Stations have no reasonable basis for claiming that their shows broadcast "news" to consumers. The fact that The Stations have no reasonable basis for the claims of the "news" shows is borne out by professional journalists and some employees of The Stations themselves, who believe that The Stations are more interested in entertaining news consumers than providing them with information. i) KUSA's own Ed Sardella, recognized by many as Denver's most credible local TV news anchor, acknowledged in a June 2000 Denver Post interview: "I've found it more and more difficult to be an information specialist. Management has found it more and more difficult to work with me." [18] (Sardella is now partially retired, although he still works as an occasional KUSA anchor.) j) The non-news broadcasts on the Denver local television stations are typical of America’s local TV stations, which—with the exception of a handful of stations identified by various studies—are virtually indistinguishable in style and content. Numerous analyses have shown that, in markets large and small, local TV "news" stations broadcast similar content. As a result, expert analyses of the local TV "news" industry in general are relevant to the Denver stations. k) Celebrated Pulitzer-Prize winning journalist Max Frankel is one of many highly credible journalists and media experts who viciously attack the ratings-geared tactics of "news" on local TV "news" programs. He described the late-night local TV "news" this way: i) Sirens bleed, bodies float, suspects cringe, victims weep. Celebrities preen and promote. Anchors chat and emote. It's local news time: normally 30 minutes of hill and blather, ads and promos, weather and sports, starting at 9, 10 or 11--local television's most profitable time of night and its most disheartening use of the air. There are exceptions, of course, here and there, one night or another. But in most of America, whatever channel you watch, the late news is obsessed with crime and disaster, encouraging fear or smug comfort, or both. It assails the mind but offers nothing much to think about--not even about crime, war and disaster. No assessments of the police or local hospital. Almost nothing about education except some school shooting. Nothing about traffic except some flaming collision. Much less anything reflective about politics, economics, foreign affairs.... To find the juiciest scandal, local television news need only to look at itself. [19] (a) A prominent television executive tells me it's wrong even to think of these programs as ventures in "news." They are "spot deliverers," meaning they are low-cost noisemakers looking to attract the largest possible audience for ads whose revenues the station keeps entirely for itself. I am not persuaded that even such crass motivation requires universal departure from the standards of civilized news gathering. (Emphasis added.) [20] l) No one would argue that a news program should ignore crime, disaster, or any violent topic. Nor would anyone suggest that weather, sports, and fluff have not place on such a program. m) But, with the news programs on The Stations consistently dominated by these topics, vital issues that consumers expect to find on a newscast are squeezed out of the news. These include the environment, arts, elections, science, education, poverty, AIDS, children, public works, media, religion, overpopulation, government, and others. n) By representing that their programs offer news, when in reality, non-news is broadcast, The Stations’ deception is clearly material. 12) The Claims are Unfair a) The Stations’ practice of broadcasting non-news instead of news is unfair to consumers for two reasons: 1) By withholding vital civic information, the ability of citizens to make sound decisions in our democracy is impaired, thereby undermining America’s democracy, and 2) By broadcasting stories about a narrow range of topics, The Stations create the illusion that public life is dominated by violence, sports, weather, and fluff, thereby severely distorting how citizens perceive each other and how they act in their communities. b) The Stations unfairly lure news consumers to their reality-based entertainment programs by advertising them as "news." In their crusade to attract and entertain viewers, The Stations have crippled the news content of their programming. As a result, it is unfair for these programs to be advertised as news. i) If The Stations were meeting their basic journalistic and public interest requirements of providing basic information enabling news consumers to make decisions in a democracy, they would be expected—at a minimum—to broadcast information about elections. But it turns out that nowhere is the neglect of the news more apparent than in local election coverage. ii) During the 1994 election cycle, RMMW monitored Denver KUSA during the week of October 10-14, a few weeks before the election. Election news averaged less than one minute per show. iii) Two years later, RMMW conducted three national surveys leading up to the November 1996 ballot. In Colorado, numerous ballot initiatives as well as a complete set of state legislative and local races were on the ballot. RMMW monitored The Stations on September 11, October 2, and October 23, eight, five, and two weeks, respectively, before election day. KCNC broadcast six election stories out of 36 news items. Four of these were related to the U.S. Presidential race, leaving local election issues virtually uncovered. Two election ads related to ballot initiatives. KMGH aired four election news items out of approximately 35 stories. Three of the four concerned the U.S. Presidential race. Of 12 ads on these shows, four were for U.S. President, five for U.S. Congress, and three for ballot initiatives. KUSA, on its 10 p.m. show, broadcast six election items out of approximately 35 stories. Five of the six concerned the U.S. Presidential race. Most of the meager political information broadcast on the local news was not about local election contests, and there were more political ads about local election contests than election-related news items. KWGN broadcast six out of a total of 65 news items. Five of these concerned the U.S. Presidential race. Twelve political ads in these shows were predominantly for U.S. President (5 ads) and U.S. Congress (5 ads). iv) Though RMMW did not conduct a survey in the year 2000, other reputable analyses indicate that election coverage was meager, continuing a well-documented trend from prior years. The Stations did not accept a challenge—endorsed by Walter Cronkite and a White House panel, among others—to voluntarily broadcast just five minutes of "candidate-centered discourse" per night beginning 30 days prior to the election. v) A study released in June 2000 revealed that in the 30 days prior to the presidential primaries, local TV "news" outlets broadcast an average of only 40 seconds per night of election coverage. This is consistent with exhaustive studies in past election years. While election news coverage was meager on local TV "news," political advertising was overwhelming. Stations in New York and Philadelphia, for example, broadcast 10 times more ads than news stories. [21] vi) News consumers are unfairly harmed when they turn to trusted television journalists for evening news, and they are offered primarily only five topics: weather, sports, disaster, crime, and fluff. No reasonable person would argue that this menu gives consumers the diverse range of issues expected of a news broadcast licensed to operate in the public interest. vii) News consumers want the full range of important issues—including election-related issues—that are critical to keeping the public informed in a democracy. viii) Of course, The Stations have the clear right to broadcast shows solely depicting weather, sports, mayhem, and fluff—or any other combination of topics falling within the decency standards of their community. The Stations could offer all-mayhem-all-the-time shows, if they want. ix) However, it is false and deceptive to lure news consumers to such shows by advertising them as "news." c) The Petitioner contends that The Stations’ practice of knowingly broadcasting false and deceptive advertisements is unscrupulous, in part because it appears that the stations continue this practice for the sole purpose of revenue generation–in clear violation of their role as public trustees and news providers. d) Acknowledging this, respected KUSA anchor Ed Sardella stated in a June 2000 Denver Post interview, "TV news is a sales vehicle. Even management has come to a point where they don't try to hide it." [22] e) KUSA News Director Patti Dennis told the Boston Globe: "There are times when I watch our news and think: Am I the only person in Denver who didn’t die today? But it’s tough. This is a business, you know. We have to think about our audience, and the bottom line." [23] f) While RMMW believes that the pursuit of profit by The Stations should be profoundly tempered by their public interest requirements, [24] RMMW is not petitioning the FTC to even consider the amount of air time dedicated to commercials on The Stations’ non-news shows (about 25 percent of each program). g) What’s important to the news consumer is not the number of commercials but the impact of advertising on the news topics aired. For example, The Stations would be unscrupulously deceiving news consumers under the following fictitious (but plausible in light of the Sardella quote above) scenario: Journalists at The Stations decide to stop airing stories about the Colorado Legislature because The Stations are concerned that broadcasting stories about the Legislature may cause some viewers to change the channel and, thus, marginally decrease The Stations’ advertising revenue. (This may be the explanation for the scant election coverage on The Stations.) h) While The Stations should not be expected to lose money, The Stations are forsaking their roles as public trustees if unreasonable advertising pressures—not professional journalistic judgment—determine what’s news. The Harm Done by Deceptive Claims 13) When citizens turn to local TV "news" programs, they expect and need a news product that will provide them with a reasonable balance of information about their community. As stated above, surveys show that citizens want information about "important events." [25] i) Consumers have this expectation based on the public interest aura that the stations cultivate. First, the stations periodically inform news consumers that they receive FCC licenses to operate in the public interest. These licenses require periodic renewal, engender public trust, and legitimize The Stations as sources of news. No other news source receives a federal license to operate in the public interest. ii) No other news source enjoys the astounding popularity of local TV news, which is the number one news source for all Americans. A recent survey by the reputable Pew Center for the People and the Press shows that: (1) 80 percent of the public "regularly" or "sometimes" watch local TV news, versus 58 percent for national nightly news shows, like those featuring Dan Rather, 55 percent for CNN, 32 percent for National Public Radio, and 17 percent for the News Hour with Jim Lehrer, and four percent for C-Span. Sixty-three percent of those surveyed report that they read a daily newspaper "regularly." [26] iii) The popularity of local TV news raises the public interest responsibility of The Stations. In light of the popularity of The Stations’ "news" broadcasts, The Stations’ news programming sets a de facto standard for news among news consumers. If The Stations broadcast non-news in place of news, then consumers—who believe The Stations’ advertising and who want news about "important events"—will come to believe that non-news is, in fact, news. Due to the popularity of The Stations, this misguided understanding of news could become the dominant belief among the public. iv) Because the "news" programs are so popular, their claims to broadcast news carry more cultural legitimacy—because they help define what our culture considers to be news. v) To further promote the expectation among news consumers that The Stations will offer balanced news on their news programs, The Stations’ "news" personnel tout journalistic awards that they have received during their careers and they identify themselves not as entertainers, but as journalists—implying that they respect the role of journalists to inform citizens in a democracy. 14) The Standard: How Much News Must a "News" Show Contain To Be Considered Truthful and To Be in Compliance with FTC Regulations? a) Once deception has been established, the FTC is faced with a remedy that protects the public. In the case of the Stations’ deceptive claims, the questions are: What standard must be applied to determine a minimum level of truthfulness and what level of disclosure is required to be fair? How much balanced news must The Stations broadcast, to be able to advertise them as news? Can they advertise their "news" programming as "news" when it includes only about 15 percent of news content? Can they replace traditional broadcasters with strip-teasing broadcasters – a trend in Europe – and still call it "news?" b) The FTC regulates many industries in regard to the amount of substantiation required to constitute a good faith or truthful claim in advertisements. There is no known standard for television news shows and the Petitioner would contend the misuse of the news is every bit as harmful as misrepresented milk-fat content or untruthful claims about the percentage of Niacin in cereal. c) In determining what constitutes a substantiated claim in regard to "news" shows, the FTC can look to the broadcast industry itself, which has set forth basic standards for news programming. i) The Society of Professional Journalists, the nation's largest and most broad-based journalism organization, summarizes the role of a journalist in its mission statement: 1. To ensure that the concept of self-government outlined by the U.S. Constitution remains a reality into future centuries, the American people must be well informed in order to make decisions regarding their lives, and their local and national communities. 2. It is the role of journalists to provide this information in an accurate, comprehensive, timely and understandable manner. [27] ii) Similar journalistic ethics have been approved by the Radio-Television News Directors Association (RTNDA), an international organization representing local and network news executives in broadcasting, cable, and other electronic media. These ethical standards—which can be viewed in their entirety on the RTNA web site—include: (a) Professional electronic journalists should operate as trustees of the public, seek the truth, report it fairly and with integrity and independence, and stand accountable for their actions. (b) Professional electronic journalists should.... Provide a full range of information to enable the public to make enlightened decisions.... Resist distortions that obscure the importance of events.... Determine news content solely through editorial judgment and not as the result of outside influence.... [28] d) The Petitioner respectfully requests this Agency to grant the relief requested herein (See page 2, of this petition under the section titled "Relief Requested.") after a full and fair public hearing, and any other relief that protects the public interest. Respectfully submitted, David Akerson Attorney for Rocky Mountain Media Watch 2037 Dahlia Denver, CO 80207 Jason Salzman, Board Chair Shannon Service, Executive Director Rocky Mountain Media Watch 1836 Blake Street, #100 A Denver, CO 80202 FOOTNOTES [1] 48 FR 41374, Sept. 15, 1983, as amended at 50 FR 53304, Dec. 31, 1985. [2] KCNC Channel 4, April 26, 2001, 9:55 p.m. [3] KWGN, Channel 2, April 26, 2001, 9:30 p.m. [4] KCNC Channel 4, April 26, 2001, 9:55 p.m. [5] KCNC Channel 4, April 26, 2001, 9:30 p.m. to 10 p.m. [6] KCNC Channel 4, May 1, 2001, 9:30 p.m. [7] KUSA Channel 9, May 1, 2001, 9:55 p.m. [8] KMGH Channel 7, May 1, 2001, 9:45 p.m. [9] KCNC website, www.kcncnews4.com. Also see, KCNC Channel 4, April 26, 2001, 9:55 p.m. [10] KMGH website, www.kmgh.com. [11] Billboards appeared in April along Colfax Ave. between Federal Blvd. and I-25 and at the intersection of Colfax Ave. and Sheridan Ave. Another was visible heading west on Speer Blvd. prior to the Wewatta St. intersection. Also see the KUSA website, www.kusa.com [12] KWGN website, www.kwgn.com. [13] News consumers expect that the stations substantiate their news in accordance with the basic public interest principles that form the basis of their broadcasting licenses. In fact, surveys indicate that news consumers do not want news that caters to their personal interests. News consumers want to get important information from the news. In a May 2000 poll conducted for the reputable Pew Center for the People and the Press, 67 percent of news consumers said that they want "news that gives them general information about important events," rather than "news that's mostly about [their] interests." [14] See all RMMW studies on the RMMW web site, www.bigmedia.org. [15] See Rocky Mountain Media Watch, "Not in the Public Interest: Local TV News in America," and "Petitions to Deny the Re-licensing of Four Stations," on the RMMW web site, www.bigmedia.org. [16] Rocky Mountain Media Watch, "Not in the Public Interest: Local TV News in America," 1998. [17] Tom Rosenstiel, Carl Gottlieb, and Lee Ann Brady, "Time of Peril for TV News," Columbia Journalism Review, December, 2000. [18] Joanne Ostrow, "Anchor leaves on top but mourns changes," Denver Post, June 18, 2000. [19] Max Frankel, "Body Bags at 11," New York Times, February 15, 1996. [20] Max Frankel, "The Murder Broadcasting System," New York Times, December 12, 1995. [21] Alliance for Better Campaigns, "Millions for Ads, Seconds for Discourse," www.bettercampaigns.org. [22] Joanne Ostrow, "Anchor leaves on top but mourns changes," Denver Post, June 18, 2000. [23] Michael Grunwald, "Air War in the Mile High City," Boston Globe, March 9, 1998. [24] Rocky Mountain Media Watch, "FCC Local TV License Renewal Petitions." [25] Pew Research Center for the People and the Press, "Biennial Media Consumption Survey," April 13 - May 20, 2000. [26] Pew Research Center for the People and the Press, "Biennial Media Consumption Survey," April 13 - May 20, 2000. [27] Society of Professional Journalists, "SPJ Mission," www.spj.org. The text of the mission statement reads: "The Society of Professional Journalists is dedicated to the perpetuation of a free press as the cornerstone of our nation and our liberty. To ensure that the concept of self-government outlined by the U.S. Constitution remains a reality into future centuries, the American people must be well informed in order to make decisions regarding their lives, and their local and national communities. It is the role of journalists to provide this information in an accurate, comprehensive, timely and understandable manner. It is the mission of the Society of Professional Journalists: To promote this flow of information. To maintain constant vigilance in protection of the First Amendment guarantees of freedom of speech and of the press. To stimulate high standards and ethical behavior in the practice of journalism. To foster excellence among journalists. To inspire successive generations of talented individuals to become dedicated journalists. To encourage diversity in journalism. To be the pre-eminent, broad-based membership organization for journalists. To encourage a climate in which journalism can be practiced freely." [28] Radio-Television News Directors Association and Foundation, "Ethics," www.rtnda.org. FTC Policy Statements FTC Policy Statement on Deception FTC Policy Statement on Unfairness FTC Policy Statement Regarding Advertising Substantiation |