Galloway v. F.C.C.
| Citation | 778 F.2d 16 |
| Decision Date | 06 December 1985 |
| Docket Number | No. 84-1346,84-1346 |
| Parties | , 54 USLW 2355, 12 Media L. Rep. 1443 Carl GALLOWAY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., Intervenor. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Petition for Review of an Order of the Federal Communications commission.
John D. Hemenway, Washington, D.C., for petitioner.
C. Grey Pash, Counsel, F.C.C., with whom J. Paul McGrath, Asst. Atty. Gen., Jack D. Smith, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., and John G. Powers, III and Margaret G. Halpern, Attys. Dept. of Justice, Washington, D.C., were on brief, for respondents.
J. Roger Wollenberg, with whom Joel Rosenbloom, Neal T. Kilminster, and John W. Zucker, Washington, D.C., were on brief, for intervenor.
Before J. SKELLY WRIGHT, MIKVA and FRIEDMAN, * Circuit Judges.
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Petitioner Carl Galloway, who was mentioned during a CBS News broadcast about insurance fraud, complained to the Federal Communications Commission that the broadcast had violated both the Commission's Personal Attack rule and its policy against deliberate news distortion. Petitioner asked the Commission to revoke the licenses of intervenor CBS's owned-and-operated stations. The Commission denied Galloway's request and he appeals to this court, challenging both the policies and their application. Because petitioner has failed to make the necessary showings on either his personal attack or deliberate distortion complaint, we affirm the Commission's ruling.
On December 9, 1979 the CBS News program 60 Minutes broadcast a story entitled "It's No Accident," about an allegedly widespread fraudulent insurance scheme. According to the program, doctors, lawyers and "victims" would conspire to submit reports of accidents that had never occurred (or were greatly exaggerated) and submit bills for medical treatment that had never been rendered. The program said that such schemes cost insurers more than $1 billion a year, that much of the cost was passed on to honest policyholders in the form of higher premiums, and that the insurance companies were not as vigorous as they might be in investigating fraudulent claims "because it's cheaper to settle than to investigate." Broadcast Transcript at 2, reprinted in Joint Appendix (JA) at 32.
In the course of preparing the broadcast CBS sent an insurance investigator to a clinic suspected of participating in the fraudulent schemes. "[She] was instructed to tell the clinic that one month earlier she had been in a minor accident, had not been hurt, but needed back-dated full medical bills as the basis for an insurance claim." Id. at 7, JA 37. She received a bill listing 19 visits that never occurred for treatment that was never administered. In describing that bill CBS Correspondent Dan Rather said, "It was signed by Carl A. Galloway, M.D." Id. Although the clinic figured prominently in the broadcast, no other mention was made of Galloway.
Galloway sued CBS for libel in the state courts of California, claiming that his name had been forged on the fraudulent bill. Galloway lost at trial on a general jury verdict that is currently the subject of a separate appeal in the California courts. During discovery for the libel suit Galloway received a great deal of information, including film or tape that was shot for the broadcast but never aired ("outtakes"). This material formed the basis of his complaint to the FCC.
Galloway's FCC complaint alleged two separate violations by CBS. First, he said he had been the victim of a personal attack and had been denied an opportunity to reply. Second, he said that CBS "violated Commission policy by deliberately distorting, slanting, falsifying and staging" the broadcast at issue. Complaint at 1, JA 1. We will consider these two issues separately.
The Personal Attack rule, 47 C.F.R. Sec. 73.1920 (1984), is the component of the Fairness Doctrine that requires licensees to provide notice and an opportunity to reply whenever "during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group." 1 The general Fairness Doctrine imposes an obligation on broadcasters to present opposing points of view, but the licensee may select the person or method of presenting those views; the Personal Attack rule designates the persons attacked as "natural opposing spokesmen" and gives them the personal right of reply. In the Matter of the Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 FCC2d 1, 16 (1974), reconsid. denied, 58 FCC2d 691 (1976), aff'd in part and remanded in part sub nom. National Citizens Committee for Broadcasting v. FCC, 567 F.2d 1095 (D.C.Cir.1977), cert. denied, 436 U.S. 926, 98 S.Ct. 2820, 56 L.Ed.2d 769 (1978) (hereinafter Fairness Report ). As a corollary of the general Fairness Doctrine, the rule is intended to insure that the public is informed about important issues; it is not intended to air private disputes or to serve as a substitute for defamation actions. Healey v. FCC, 460 F.2d 917, 922-923 (D.C.Cir.1972); CIA v. American Broadcasting Co., Mass Media Bureau Mimeo No. 1862, para. 12 n. 9 (Jan. 10, 1985); Fairness Report, 48 FCC2d at 12 n. 11; Personal Attacks, 8 FCC2d 721, 722, 725 (1967). The limited scope of the rule is consistent with the principles of the First Amendment and congressional intent to allow licensees the maximum editorial freedom consistent with their role as public trustees. See Strauss Communications, Inc. v. FCC, 530 F.2d 1001, 1008 (D.C.Cir.1976).
It is not disputed that the allegation of insurance fraud constitutes an "attack * * * upon the honesty, character, integrity or like personal qualities" of Dr. Galloway. The only issue is whether this attack occurred "during the presentation of views on a controversial issue of public importance." The Commission determines separately whether an issue is controversial and whether it is of public importance. Controversy, which the Commission considers the more objective determination, depends on "the degree of attention paid to an issue by government officials, community leaders and the media," and whether it is "the subject of vigorous debate with substantial elements of the community in opposition to one another." Fairness Report, 48 FCC2d at 12. "The principal test of public importance, however, is not the extent of media or government attention, but rather a selective evaluation of the impact the issue is likely to have on the community at large." Id. Newsworthiness alone is not the touchstone of public importance. Healey v. FCC, supra, 460 F.2d at 922.
In his original complaint Galloway characterized the controversial issues here as "(1) phony insurance claims stemming from fraudulent automobile accidents and (2) insurance companies response to those claims." Complaint, JA 26. The Commission found that Galloway had "furnished no information which shows that the 'It's No Accident' program involved an issue which met the required standard." In re Complaint of Carl Galloway, Staff Ruling (Feb. 3, 1984) at 8, JA 322 (hereinafter Staff Ruling). Although Galloway alleged that increases in insurance rates "have been the subject of vigorous debate among substantial elements of the community in opposition to one another," Complaint, JA 27, he provided no evidence of that debate. Instead, his initial complaint merely said, Id. The burden of establishing the prima facie case, including the existence of an appropriate issue, is on the complainant. Healey v. FCC, supra, 460 F.2d at 921; Joint Council of Allergy and Immunology v. American Broadcasting Co., 94 FCC2d 734, 735-736 (1983). He cannot satisfy that burden with vague references to unspecified materials. If Galloway wanted to cure the insufficiency of his pleadings, he should have sought a rehearing before the Commission on an amended complaint, rather than appealing to this court. He did not do so.
Galloway also argues that "it is always a controversial matter to malign an innocent third party." Brief for petitioner at 19 (emphasis in original). If that were the case, there would be no need for a requirement that the personal attack come during a discussion of an controversial issue of public importance, and the Personal Attack rule would become a substitute for libel actions, nullifying the valid policy choices of the Commission.
We hold that the Commission correctly found that Galloway failed to establish that any personal attack came during the discussion of a "controversial issue of public importance" within the well-established meaning of the Personal Attack rule, and that his personal attack claim was properly rejected.
The FCC's policy on rigging, staging, or distorting the news was developed in a series of cases beginning in 1969. 2 In the first of these, Hunger In America, CBS had shown an infant it said was suffering from malnutrition, but who was actually suffering from another ailment. The Commission found that
[r]igging or slanting the news is a most henious act against the public interest--indeed, there is no act more harmful to the public's ability to handle its affairs. In all cases where we may appropriately do so, we shall act to protect the public interest in this important respect. But in this democracy, no government agency can...
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