FCC DENIES COMPLAINT AGAINST CBS ‘ENEMY’

WASHINGTON — Acting two weeks after Gen. William C. Westmoreland dropped his $120-million libel suit against CBS, the staff of the Federal Communications Commission on Monday denied a complaint that accused CBS of distorting the news in “The Uncounted Enemy: A Vietnam Deception,” the controversial 1982 documentary that provoked the suit.

“There is a lack of any extrinsic evidence, regardless of the source, that CBS intentionally presented distorted material,” the FCC’s mass media bureau said of the complaint filed by the American Legal Foundation in January, 1983.

Moreover, the bureau ruling said that “anything short of this threshold burden of showing deliberateness would jeopardize critical First Amendment rights so important to free and robust news coverage.”

The nonprofit, Washington-based foundation, which in its complaint described itself as “particularly involved in efforts to eliminate media bias,” has said neither Westmoreland nor his lawyers were involved in its complaint to the FCC.

CBS said in a statement Monday that it is “pleased” by the staff ruling, and added: “We trust this is the last chapter in the 2 1/2-year scrutiny of the broadcast.” No other complaint about the program is pending before it, the FCC said.

The foundation has 30 days in which to appeal the ruling to the full five-member commission. Michael McDonald, the foundation’s chief attorney, said that his group has made no decision yet on an appeal. He also sharply criticized the FCC staff’s ruling.

“They just sort of shrugged their shoulders . . . and (virtually) said, ‘We don’t think we should get involved,’ ” McDonald said. He added that the FCC “seems fearful of issuing even a reprimand over what even CBS admits were shoddy journalistic practices.”

The network, which never has made such a statement, has consistently defended the substance of its controversial “CBS Reports” documentary as accurate, a point it reiterated in its brief statement Monday:

“As CBS stated last month when the general withdrew his suit, the broadcast was accurate and while there were some violations (in the program’s production) of internal CBS News guidelines, they did not diminish the accuracy of the broadcast.”

The complaint charged that CBS’ Vietnam War documentary was edited “to portray a preconceived theory” that Westmoreland and other key military and government personnel conspired to deceive the President and the American people by placing an arbitrary ceiling on enemy troop strength estimates and by deliberately underestimating the infiltration of enemy forces into South Vietnam before the Tet Offensive of 1968.

Westmoreland commanded U.S. troops in Vietnam from mid-1964 to mid-1968.

The American Legal Foundation asked the FCC to investigate its charges and, if the agency found them to be true, to revoke the broadcast licenses of the 13 radio and five television stations owned and operated by CBS. They include KCBS-TV and radio stations KNX-AM and KKHR-FM in Los Angeles.

In its 14-page ruling rejecting the foundation’s complaint, the FCC staff warned that the federal agency would be entering “an impenetrable thicket” if it attempted to review CBS’ editorial judgment without sound evidence.

“Clearly, it would be an inappropriate intrusion for the commission to look over the shoulder of any broadcast journalist or scrutinize after-the-fact why information was reported in a particular way,” the ruling said.

“The commission is not the national arbiter of the ‘truth’ of news programming,” the mass media bureau said. “Nor is the commission prepared to judge the wisdom, accuracy or adequacy with which particular news coverage may have been handled on the air.” The ruling continued: “In a democracy, dependent upon the fundamental rights of speech and the press, the commission cannot authenticate the news that is broadcast and it should not do so.”

The mass media bureau noted that a CBS News internal investigation of the broadcast showed that the program and its preparation did breach the network’s own newsgathering standards. But it refused to go further than to say that portions of the controversial broadcast did indeed violate CBS’ own journalistic standards.

The internal CBS investigation was conducted by veteran CBS News producer Burton Benjamin and completed in July, 1982. It was prompted by a TV Guide article in May that year that sharply criticized the production of “The Uncounted Enemy” but didn’t challenge the program’s premise.

The FCC said that CBS, in an “unsolicited response” to the American Legal Foundation complaint, acknowledged that among other things:

--Interviewee statements contrary to CBS’ central “conspiracy” premise were to a substantial degree either not included in the program or were not sought.

--Interviewers with persons who refuted the program’s conspiracy premise were “harsher” in tone than supporting ones.

--The audience was not informed that a principal interviewee, consultant Sam Adams, a former CIA analyst and a co-defendant in Westmoreland’s suit, had been paid a substantial consulting fee (CBS has said that the fee was $25,000).

In its ruling, the FCC’s mass media bureau said that much of the evidence to support the foundation’s claims was derived largely from information in articles published in TV Guide and an Accuracy in Media report. (AIM is a conservative media watchdog organization.)

The foundation had charged that it was the zeal of CBS and producer George Crile “to fulfill the program’s ‘conspiracy’ theory that motivated the allegedly deceptive approach to the entire broadcast.”

Crile and correspondent Mike Wallace also were co-defendants in the suit brought by Westmoreland. The federal court trial of the case ended after 18 weeks when Westmoreland agreed Feb. 18 to drop the lawsuit, saying that CBS had made what he considered an “apology.”

Westmoreland referred to a statement agreed to by each side in which CBS said that it never believed the general “was unpatriotic or disloyal in performing his duties as he saw them.” CBS denied that its statement was an apology.

“It is important to restate at this time,” said the FCC staff ruling, “that the commission does not substitute its editorial judgment for that of the broadcaster. It is irrelevant whether we would have made different editorial decisions regarding the available information.

“Absent extrinsic evidence of an intent to deliberately distort, we cannot--and will not--interfere.”

Work on the ruling theoretically could have been completed by last November or December, said James H. McKinney, head of the FCC’s mass media bureau, “but I made a decision for the staff not to have it ready by then because I didn’t want it (a ruling) to affect the outcome” of the Westmoreland-CBS trial.

He emphasized that the work preceding Monday’s ruling neither considered the trial nor relied on any evidence or testimony from it.