A CGNG‘EEE‘SE "AL. HEfiTGRX" 0F ?GLE‘EECAL
NEQAEECAQTENG} REGULATEGNS EN
THE UNITED STATEg

Thesis for The Degree of M. A.
MECHEGAN SE ‘E'E UREVEESETY

James. C. Law

1967

m m mmmmmmw \

J“ 3__129 93 10726 247

SSSSSS

 

 

 

MSU

 

 

 

RETURNING MATERIALS:
P1ace in book drop to
remove this checkout from

 

 

LIBRARIES .
.—,—. your record. FINES W111
be charged if book is
returned after the date
stamped be1ow.
Aggy“? Q '3” ’3

 

 

 

ABSTRACT

A CONGRESSIONAL HISTORY OF POLITICAL
BROADCASTING REGULATIONS IN
THE UNITED STATES

by James C. Lau

Since 1927 there has been federal regulation govern-
ing political broadcasting in this country. These regu-
lations, now identified as Section 315 of the Communications
Act of 1934, are highly controversial and in recent years
Congress has come under increasing pressure to deal with
problems they have caused.

The rapid growth of television and its subsequent
value to the national political campaign has, for the most
part, been a major reason for this increased concern. The
"equal opportunities" portion of this section requires that
if a legally qualified candidate for a elected office is
given time on radio or television all other legally quali-
fied candidates for that office must be afforded "equal
opportunities" in the use of the broadcasting facility. As
a result of this regulation, broadcasters are not disposed
to give away free broadcast time to the major parties be-
cause it would result in their being required to do the same

with the numerous splinter groups. Because of this, the

James C. Lau

major political parties in this country must purchase the
vast majority of their air time. Today, this expenditure is
the single greatest expense of the national and many local
political campaigns. At the same time the high cost of the
time has made it virtually impossible for the smaller, less
affluent political parties to gain nationwide exposure by way
of the broadcast media.

Attempts to alter Section 315 have been frequent and
varied. A few have been successful. All have been interest-
ing and some deserve closer study.

This, then, is the purpose of this thesis; to provide
a detailed Congressional history of the development of the
present law. In this way one may gain an understanding of
the purposes and ideas behind Section 315, as well as a
clearer insight as to the present day problems which it
poses.

For the most part the thesis will trace the chrono—
logical history of the actions of Congress in dealing with
political broadcasting regulation. The sources of material
have been the U.S. Congressional Record, various Senate and
House documents, Pike and Fischer Radio Regulations, and
other pertinent public documents as well as important books
dealing with the subject. Five chapters make up the body of

the thesis and they deal with the following: first, Section

James C. Lau

18 of the Federal Radio Act of 1927, and attempts at amend-
ment; second, its transfer to the Communications Act of 1934
as Section 315, attempts at amendment, and the end of rate
discrimination among political candidates in 1952; third,
the question of censorship and liability under Section 315;
fourth, the 1959 amendment dealing with equal time require—
ment and its relation to news broadcasts; and fifth, the
1960 joint resolution to permit the "Great Debates" between
John Kennedy and Richard Nixon, and its effect on the con-
gressional mood and actions since that time.

In each of these cases I have studied closely the
congressional debate and comments. In some cases I have in-
cluded important actions by agencies outside the Congress.
Federal Communications Commission decisions which have in-
fluenced congressional activity such as the Lar Daly De-
.gision of 1959 have been included. In the same vein I have
included references to court cases, when I felt they were
warranted.

The questions surrounding section 315 and its "equal
opportunities" requirement are extremely complex and touch
basic concepts of our political way of life. Alteration of
this regulation would involve conflicts of basic freedom, and
rights which throughout our history, have been strictly pro—
tected. This thesis, I hOpe, will aid the reader in under-

standing these conflicts, as it has the author, and at the

James C. Lau

same time present an interesting history of Congress in
action in dealing with this section of our law governing

broadcasting in the United States.

6' ll Wind

A CONGRESSIONAL HISTORY OF POLITICAL
BROADCASTING REGULATIONS IN

THE UNITED STATES

BY

James C. Lau

A THESIS

Submitted to
Michigan State University
in partial fulfillment of the requirements
for the degree of

MASTER OF ARTS

Department of Television & Radio

1967

ACKNOWLEDGMENTS

To Dr. Walter B. Emery for his counsel and advice,
to my wife Valerie for her encouragement and assistance, and

to my parents who made it all possible.

ii

TABLE OF CONTENTS

ACKNOWLEDGMENTS
LIST OF APPENDICES . . . . . . . . . . . . . . .

INTRODUCTION . . . . . . . . . . . . .
Chapter

I. THE BEGINNINGS OF POLITICAL BROADCASTING
REGULATION 1910-1933 . . .

Section 18 of the Federal Radio Act of
1927 . . . . . .

Unsuccessful Attempts to Amend Section
18 . .

Footnotes

II. SECTION 315 AND ATTEMPTS AT AMENDMENT 1934-
1956 . . .

First Attempts to Amend Section 315
The White Bill of 1947 . .

The End Of Rate Discrimination - 1952
Make-Up and Teleprompters . . .
Political Campaign Length and Costs
Footnotes . . . . . . .

III. CENSORSHIP AND LIABILITY UNDER SECTION 315

Early Unsuccessful Amendments
The Port Huron Case - 1948
Renewed Congressional Action
The 0' Hara and Horan Amendments

Fair Political Broadcasting Act of 1959

The Port Huron Case and the Courts .
Industry Reaction . . . . . . .
State Action . . . . . . ,
Supreme Court Action — 1959 .
Footnotes . . . . . .

iii

Page

ii

20
28

31

34
36
39
45
47
51

53

54
56
57
58
62
63

67
68
71

Chapter Page

IV. EQUAL TIME AND NEWS BROADCASTING 1955 -

1960 . . . . . . . . . . . . . . . 73

The Blondy Case . . . . . . . . . . . . . 74

The Lar Daly Decision . . . . . . . . . . 75
Congressional Reaction . . . . . . . . 78

Section 315 is Amended — 1959 . . . . . . 79

Footnotes . . . .. . . . . . . . 87

V. SECTION 315 IN THE 60's - 1960 - 1965 . . . . 89

A Temporary Change - 1960 . . . . . . . 92

Lasting Effects of the 1960 Action . . . . 95

Attempts to Repeal "Equal Time" . . . . . 104

Industry Reaction . . . . . . . . . . 105
Congressional Inaction . . . . . . . . . . 106

Footnotes . . . . . . . . . . . . . . . . 109

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . 111
APPENDICES . . . . . . . . . . . . . . . . . . . . . . 117
BIBLIOGRAPHY . . . . . . . . . . . . . . . . . . . . . 141

iv

LIST OF APPENDICES

Appendix Page
A Text of H.R. 9230, August 1935 . . . . . . . . 118
B Text of H.R. 9231, August 1935 . . . . . . . . 119

C Section 15 of the White Bill, S. 1333 to
Amend the Communications Act of 1934,
May 1947 . . . . . . . . . . . . . . . . . . 120

D Section 17 of the White Bill, S. 1333 to
Amend the Communications Act of 1934,

May 1947 . . . . . 122
E Text of S. 3926, May 1956 . . . . . . . . . . 124
F Text of The Fair Political Broadcasting Act

of 1959, S. 1858, May 1959 . . . . . . . . . 127
G Section 315 of the Communications Act of

1934 as Amended . . . . . . . . . . . . . . 130
H Text of S. 3171, A Bill to Provide for the

Use of Television Broadcasting Stations'

by Candidates for the Office of President

of the United States, March 1960 . . . . . . 132
I Minority Vote Totals & Percentages for

Presidential Elections, 1900 - 1964 . . . . 134
J House Joint Resolution 247 - To Suspend for

the 1964 Campaign the Equal Opportunity Re-

quirement of Section 315 of the Communi-

cations Act of 1934, for Neminees for the

Office of President and Vice President,

June 1960 . . . . . . . . . . . . . . . . . 135
K Text of S. 3434, June 1962 . . . . . . . . . . 136

Text of S. 1287, February 1965 . . . . . . . . 137

M Federal Communications Commission Rules &

Regulations Governing Section 315 of the

Communications Act of 1934 . . . . . . . . . 139

INTRODUCTION

Since 1948 a revolution in political campaigning has
been taking place in this country. It was that year in
Philadelphia that television first poked its long lens into
the field of politics. From that day to this, television's
role in political campaigns at all levels has grown rapidly,
and there is no reason to believe it will not continue.

Broadcasting was not completely unique to politics
at that time. Radio had been there for two and a half de-
cades and correspondingly so had government regulation of po-
litical broadcasting. In the Federal Radio Act of 1927,
Section 18 stated the now well-known doctrine of "equal time"
for all "legally qualified candidates." Through the years
up to the present day, this idea, now expressed in Section
315 of the Communication Act of 1934, has been the basic
philosophy in dealing with political broadcasts.

Hewever, with the recent expansion of the use of
television in political campaigning, this philosophy of equal
time for all has come under numerous attacks from citizens in
various walks of life. The main complaint raised is that
stations cannot give free time to the major candidates with-
out being obligated to give equal facilities to all minority

candidates who may request them. As a result, recent

national political campaigns have shown an extremely rapid
rise in broadcasting expenses.

According to Federal Communication Commission
figures for the past three presidential elections, this fact
is all too obvious. In 1956 the total approximate cost to
all political parties for radio and television time was 7.8
million dollars. By 1960 this figdre had risen by 45%.to
14.2 million dollars, which was 56% of the total campaign
cost for that year.1 Four years later, during the Johnson-
Goldwater campaign, the media time expenditures had sky—
rocketed to 24 million dollars, over three times that of
1956. The total cost for both primaries and for general
elections that year was a whopping 35 million dollars.2
Figures like these make it clear that broadcasting has become
by far the greatest single expense of any major political
campaign held in our country today.

It was these facts that prompted Newton Minow, former
Federal Communications Commission head to state in a recent
book:

The most valued asset of representative government is
access to public office for the most skilled, best
equipped and most dedicated men and women the society
produces. Television's soaring costs have created a
monumental danger that a dollar-wall will be stretched
across ready access to the public air waves. This
wall can create obstacles to the most able candidates,
while helping the election of the most obligated
candidates. Such an event would be a catastrophe.3

Mr. Minow is not alone in his concern in this area.

Many others, including broadcasters, political figures, and

private citizens, have increasingly begun to debate the rela—
tive worth of and reason for Section 315 over the past number
of years. A high point in this controversy was experienced
by all in the 1960 presidential campaign when as an experi-
ment, Congress, by joint resolution, temporarily suspended
Section 315 to permit debates between the Republican and
Democratic presidential candidates. However, the suspension
was only temporary and studies of its results are still being
examined and debated.

Aside from the main requirement of equal time for
political candidates, Section 315 also contains a contro-
versial portion dealing with censorShip and liability. Over
the years much confusion and misunderstanding had arisen
from this question. As originally paSsed, Section 315 denies
the broadcaster the right to censor any political speeches
which he allows over his facilities. Controversy developed,
however, over whether or not the broadcaster could be held
liable for statements made within these speeches. A basic
question in dealing with this problem was one of state
rights, in that: could the Federal government, through the
Federal Communications Commission, override the individual
state libel laws and hold that the broadcasters are not liable
for statements over which they have no control by law? Al-
though repeated legislative attempts to correct this problem
failed, a recent Supreme Court ruling has cleared up the

legal question.

The interesting aspects of the controversies over
Section 315 today are that they are not new. They have ex-
isted from the act's inception, yet it has been mainly since
the development of the powerful and expensive role of tele—
vision in politics that they have seemed so urgent and im-
portant. It is, therefore, necessary to take an extensive
look into the legislative history of this action dealing
with political broadcasting regulation and attempt to get an
exact idea of what the men who wrote it had in mind at the
time. It is important to realize that without a keen in-
sight into the original thinking behind a certain piece of
legislation, a comprehensive and rational evaluation of its
present day merits is impossible.

The purpose then of this thesis will be to study
closely the legislative development of Section 315; to trace
its development from Section 18 of the Federal Radio Act of
1927, through its transfer to Section 315 of the Communi—
cations Act of 1934 and its subsequent amendment in 1953,
1959, and 1960; and to study important unsuccessful attempts
at amendment. At the same time, the paper will look closely
at the Federal Communications Commission decisions and court
cases and their impact on legislative action.

My hOpe is that the study will provide a clearer
understanding of the underlying political and social philoso-
phy involved; will enable the reader to perceive the basic

philosophical conflicts which have arisen over Section 315,

and will open his eyes to the legislative trends and changes
made necessary by the growth and increased importance of the
broadcast media in our political life. And finally, it will
aid the reader in understanding and forecasting possible
future legislative action in the field of political
broadcasting.

Congress most certainly will soon be facing basic
decisions regarding Section 315. A study of their past
actions can provide a more complete insight into their con-
cerns and problems. This look into the legislative history
of Section 315 then, I hope, will aid in the understanding
of those events to come and the congressional decisions
which will shape the future of political broadcasting and as
a direct result the future of political campaigning in the

United States.

FOOTNOTES - INTRODUCTION

.Federal Communications Commission, 27th Annual Report

(Washington: U.S. Government Printing Office, 1961),
p. 44.

Federal Communications Commission, 3lst Annual Report
(Washington: U.S. Government Printing Office, 1965),
p. 88.

Newton N. Minow, Equal Time: The Private Broadcaster
_and the Public Interest, Lawrence Laurent (ed.) (New
Ybrk: Atheneum Press, 1964), p. 33.

CHAPTER I

THE BEGINNING OF POLITICAL BROADCASTING

REGULATION 1910 - 1933

Prior to 1927, regulation of radio communication in
the United States was limited, and legislation dealing spe-
cifically with the political use of radio was nonexistent.
Section 3, however, of the Interstate Commerce Act of 1888,
read that it was unlawful for a common carrier to "make or
give any undue or unreasonable preference or advantage to
any particular person, company, firm, corporation or lo-
cality, or any particular description of traffic, in any re—
spect whatsoever, or to subject any particular person,
company, firm, corporation, or locality, or any particular
description of traffic to any undue or unreasonable prejudice
or disadvantage in any respect whatsoever."l

In 1910, the Mann-Elkins Act amended this so as to
.make its provisions, including Section 3 above, applicable
to the transmission of messages in interstate commerce by
wire or wireless. The following year the Interstate Commerce
Commission decided, after a series of hearings, that Section

3 among others of the 1888 act as amended were applicable to

the communication companies.

Although this section does not mention broadcasting,
candidates for political office, or political parties, one
can hardly ignore the fact that the principle of fair play
set forth here is similar to the "equal opportunities"
principle which was to follow.

The 1924 presidential campaign was the source of a
number of complaints directed towards radio‘s handling of
political events. The Radio Corporation of America was ac-
»cused of censoring speeches of political orators, a charge
which was promptly denied. The New Republic Magazine,
November 19, 1924, pointed out inequalities in the amount of
radio time available to each party. In Congress, Repre-
sentative Emanuel Celler complained that the American Tele-
phone and Telegraph Company asked him to pay $10.00 a minute
for air time and that he had "no knowledge that candidates
of the opposing party were asked to pay the same amount for
the same use."3

From the industry itself came the call of David
Sarnoff for responsible broadcasting practices as well as
legislative safeguards:

. . . where a broadcasting station performs a function
of public service, or as a common carrier, and charges
for the service it renders at that station, it should

open its doors to all who may have a legitimate right

to use it, and that type of station should be subject

to Government regulations both as to rates, character

of service, and license . . . so powerful an instru-

ment for good ibould be kept free from partisan
manipulations.

Section 18 of the Federal Radio Act of 1927

These criticisms were closely related and in 1927 be-
came the focus of Section 18 of the Federal Radio Act of
that year. This act, the first major piece of broadcasting
regulation, was born in the House of Representatives as House

5 The real development of

Bill number 9971 on March 3, 1926.
Section 18 dealing with equal time and political speeches be-
gan with an amendment introduced in the Senate when H.R. 9971
was presented to that body for consideration.

As it appeared before the Senate, Section 4 of H.R.
9971 read in part as follows:

. . If any licensee shall permit a broadcasting
station to be used as aforesaid, or by a candidate
or candidates for any public office, or for the dis-
cussion of any question affecting the public, he
shall make no discrimination as to the use of such
broadcasting station, and with respect to said
matters the licensee shall be deemed a common carrier
in interstate commerce: Provided, That such licensee
shall have no power to censor the material broadcast.

On Tuesday, June 30, 1926, Senator Dill, who had re-
ported the bill out of the Committee on Interstate Commerce
seven weeks earlier, began discussion on an amendment that he
was planning to propose for Section 4 at the proper time.
Senator Heflin had brought up the subject with the statement
that he felt that ". . . the conditions ought to be abso-
lutely fair; if a Republican has a speech he wants to broad-

cast, let him do it and say what he pleases, and let a Demo—

crat do likewise."7

 

to

C8

pr

it

L11".

me

pa

ir.

IE

he
no

We

10

Senator Dill replied that in committee this proposal
to treat broadcasters as common carriers when they were deal-
ing with political broadcasts or debatable issues had ".
caused more objection to the bill than probably all the other
provisions combined . . . we finally agreed to it in order,

I think, to get the bill out of the committee. After we got
it out we realized that the 'common carrier' phrase was an
unwise phrase, to say the least, at this time . ."8

Following this exchange, Senator Dill read the amend-
ment which he was prepared to put formally before the Senate.
The Dill Amendment struck out of H.R. 9971 the above quoted
part of Section 4 and replaced it with the following:

. If any licensee shall permit a broadcasting

station to be used by a candidate or candidates for
any public office, he shall afford equal opportuni-
ties to all candidates for such office in the use of
such broadcasting station: Provided, That such
licensee shall have no power to censor the material
broadcast under the provisions of this paragraph and
shall not be liable to criminal or civil action by
reason of any uncensored utterances thus broadcast.

Earlier, in the House, Representative Johnson had
introduced an amendment which was similar in principle; it
read ". . . equal facilities and rate, without discrimination,
shall be accorded to all political parties and all candidates
for office, and to both the proponents and opponents of all
political questions or issues."10 However, that amendment
had not come to a vote because a point of order that it was

not pertinent to the section to which it had been attached,

was sustained by the House Chairman.11

11

After Senator Dill read his proposed amendment,
Senator Davis asked that remarks on the bill as before the
Senate be read into the record. These remarks expressed his
support for such an amendment and were in part as follows:
. . . the broadcasting field holds untold potentiali-
ties in a political and propaganda way; its future
use in this respect will undoubtedly be extensive and
effective.
. . . There are no provisions in this bill or in the
existing radio law providing for the regulation of
rates or services or requiring equal treatment to
citizens . . . there is nothing to prevent a broad-
casting station from permitting one party or one
candidate or the advocate of a measure or a program
or the opponent thereof to employ its service and re-
fuse to accord the same right to the opposing side.12
The following day, Wednesday, July 1, 1926, Senator
Dill formally presented his amendment for the consideration
of the Senate. The debate that followed immediately after
the Chief Clerk's reading questioned the intent and possible
effect the amendment would have on political broadcasting
activities. First, in reply as to why the common carrier
wording was deleted, Senator Dill stated: ". . . That was put
in . . . after considerable discussion, and there has been a
rather general agreement among the members of the committee
that it was an unwise phrase to use because of the present
state of development."13
Here we get an idea of the committee's concern for
radio and its proper and healthy development. The Senators
were afraid that if a station were treated as a common

carrier in dealing with candidates as well as public ques-

tions, it would be constantly swamped with obligations to

12

broadcast political and public question programs. As a re—
sult, radio programming and scheduling development as well
as growth would be greatly impaired.

By far the greatest portion of the debate centered
around the clarification of the "equal time“ provision. It
was Senator Cummins contention that it was the station's duty
to provide, without discrimination, the service that was
asked of it by politicians; in other words that it should be
a common carrier. He concluded his comments thus, provoking
a debate on the point in the following manner:

Mr. Cummins. The amendment which is now proposed is
one, in my judgement of pure form and will lead to
some misinterpretation and misunderstanding, for when—
ever we say that the service must be rendered without
discrimination we have made that agency a common
carrier.

Mr. Dill. There is the difference that under the
common carrier provision a radio station is com—
pelled to take any kind of broadcasting that anybody
wants to offer, which would mean that it would take
anybody who came in order of the person presenting
himself and would be compelled to broadcast for an
hour's time speeches of any kind they wanted to broad-
cast. This provision simply says that if a radio
station permits one candidate for a public office to
address the listener it must allow all candidates for
that public office to do so, and to that extent there
must be no discrimination.

Mr. Cummins. I think there is something in the state—
ment of the Senator from Washington that the broad—
casting station is made a common carrier as to all
candidates for office.

Mr. Dill. If it permits one candidate-—but it need
not pe it any candidate. In otherwords, a station
may re use to allow any candidate to broadcast; but
if it allows one candidate for governor to broadcast,
then all candidates for governor must have an equal
right; but it is not required to allow any candidate

13

to broadcast . . . It can regulate, but it can not
discriminate under this provision . .

Mr. Cummins. Of course, the Senator understands
that the effect of the amendment now offered is to
deny to all candidates the use of the broadcasting
station.

Mr. Dill. Unless it permits one candidate to use it.

Mr. Cummins. But the Senator knows that if it permits
one there will be enough others to insist upon the use
of the service to take up all the time of the broad-
casting stations.

Mr. Dill. I will say to the Senator that at present
they are not required to allow anybody to speak over
the radio. Under the House bill they can allow one
man to speak and forbid everybody else to speak. I
felt that was not the proper thing. If a station
permitted a candidate for Congress to broadcast, then
other candidates for Congress should have an equal
right.

Mr. Cummins. My own view of it is that this must be-
come a common carrier service. I think that all the
rules we apply to common carriers must finally apply
to this particular agency . . . I am not going to de-
velop that though, because it would delay the con-
sideration of the bill; it is obvious to me that if we
are going to allow it to be used for political pur—
poses at all, it will become a common carrier as to
political service, and the Senator is simply providing
a situation in which broadcasting will be denied to
political candidates.

Mr. Dill. It is now if the broadcasters see fit to

deny it. I think it would be better to deny it al—

together than to allow the candidate of one party to

broadcast and the candidate of the other party not to

be able to secure the same right.14

It is important to note here that debate over the

"equal time" concept centered around the premise that it was
not strong enough. As Senator Cummins pointed out, he was in

favor of making radio a common carrier in this respect.

Senator Dill, on the other hand, was firm in his idea that

 

.-

hr
by
arr

01'.

We
at
Cr

Ph

14

broadcasters would not be able to operate and grow if bound
by common carrier regulations. In this sense, Senator Dill's
amendment was a softening, more lenient restriction placed
on the young broadcasting industry.

However, although he had the broadcasters' welfare
in mind, he was also very firm in his belief that if one
candidate was allowed or given time then all other candidates
had an "equal right." In other words, Senator Dill felt that
if one candidate was given the freedom to speak over radio,
then all candidates should have equal freedom. In this re—
spect the Senator was attempting to preserve the candidates‘
basic right to free speech and equality of opportunity and at
the same time preserve in part the broadcasters' right to de-
termine his own programming policies. IHe clearly demon-
strated this when, referring to broadcasting, he said they
"can regulate, but . . . not discriminate."

In this respect Senator Dill was very concerned that
the American public be allowed to hear over radio all politi-
cal voices or none. At the same time he believed that it
was the right of all candidates regardless of party affili-
ation or basic beliefs to be treated fairly and not dis-
criminated against or censored by broadcasters. This basic
philosophy of protection of all political ideas, popular or
unpopular, is fundamental in our society. Justice Douglas

puts it into better words by saying:

15

Full and free discussion has indeed been the first
article of our faith. we have founded our political
system on it. It has been the safeguard of every
religious, political, philosophical, economic, and
racial group among us. We have counted on it to
keep us from embracing what is cheap and false; we
have trusted the common sense of our people to
choose the doctrine true to our genius and to re-
ject the rest. This has been the one single out-
standing tenent that has made our institutions the
symbol of freedom and equality. we have deemed it
more costly to liberty to suppress a despised mi-
nority than to let them vent their spleen. we have
above all also feared theqpolitical censor. we have
wanted a land where our people can be exposed to all
the diverse creeds and cultures of the world.15

The equal time legislation was designed to protect
this free and full discussion over radio for all political
candidates, if one was given the right. .A broadcasters'
right to determine whether or not to allow this type of pro-
gram is not censorship. It would be, however, if he allowed
one candidate to speak and not another, for then he would be
using the public airwaves to voice exclusively one opinion
while censoring or discriminating against the other.

John Stuart Mill expressed his belief on the im-
portance of protecting all opinion, popular or not, thusly:

If all mankind minus one were of one opinion, and
only one person were of the contrary opinion, mankind
would be no more justified in silencing that one
person, than he, if he had the power, would be justi-
fied in silencing mankind . . . The peculiar evil of
silencing the expression of an opinion is, that it is
robbing the human race; posterity as well as the ex—
isting generation: those who dissent from the opinion,
still more than those who hold it. If the opinion is
right, they are deprived of the Opportunity of ex-
changing error for truth; if wrong, they lose, what
is almost as great a benefit, the clearer perception
and livelier impression of truth, produced by its
collision with error.16

16

Later in the debate (to which reference has been
made above) Senator Foss asked a question covering non-
political appearances by a candidate. This is a question
pinpointing a problem area which today is still clouded with
misunderstanding and apparent inconsistency in Federal Com-
munications Commission decisions.

Mr. Foss. . . . It would appear to me from the first
part of the paragraph, beginning with line 5, the
amendment would mean this, although I am sure the
Senator does not intend to write this meaning into
the amendment; that an individual being a candidate
for an office, Senator of the United States, for ex-
ample, might be invited to speak somewhere on the oc-
casion of some great celebration where what he was
going to say would be broadcasted. He would not talk
on the subject of politics at all, he might be talk-
ing on something entirely free from his interests,
but in the interests of the community at large. I
read in this amendment that he could not accept the
invitation to speak over the radio unless the candi-
date who might be running against him in the same
election would be invited likewise to speak. I know
the Senator from washington does not mean so to
provide.

Mr. Dill. . . . I recognize that the construction
stated by the Senator from Ohio might be put upon the
amendment; but, if the Senator will examine the amend-
ment, he will find that following this provision is

the statement that the Commission shall make rules and
regulations to carry out the provision. It seemed to
me to be better to allow the Commission to make rules
and regulations governing such questions as the Senator
has raised rather than to attempt to go into the

matter in the bill.17

Senator Howell followed this exchange with a lengthy
explanation of his observations on the desirability of treat-
ing all controversial public issues equally.

Mr. Howell. . . . radio affords such a unique facility

of publicity that one has to think very carefully lest
he go astray, thinking of newspapers and reasoning by'

17

analogy. This vehicle for publicity is entirely
different from any other with which we are familiar.
we have tens of thousands of newspapers, magazines,
and other publications, but there is now from neces—
sity, and will be hereafter, only a limited number of
radio stations . . .

'k * ' *
we are familiar with the results of propaganda, its
dangers and its advantages; and the question which we
are called upon to settle now is how the public may
enjoy the advantages of broadcasting and avoid the
dangers that may result therefrom. It must be recog—
nized that, so far as principles and policies are cen-
cerned, they are major in political life; candidates
are merely subsidiary. We recognized that fact when
this bill was formulated, and provided that if a radio
station allowed the discussion of a public question
it must afford, if reguested, an opportunity to pre-
sent the other side.1

Senator Howell continued with his opinions on the
original provision in Section 4 of H.R. 9971 which would have
considered stations as common carriers when political speeches
or public questions were being aired:

Mr. President, to perpetuate in the hands of a com-
paratively few interests the opportunity of reaching
the public by radio and allowing them alone to de—
termine what the public shall and shall not hear is

a tremendously dangerous course for Congress to pur-
sue . . . Are we to consent to the building up of a
great publicity vehicle and allow it to be controlled
by a few men, and empower those few men to determine
what the public shall hear?

It may be urged that we do that with the newspapers.
Yes, that is true; but anyone is at liberty to start
a newspaper and reply. Net so with a broadcasting
station . . ..If any public question is to be dis-
cussed over the radio, if the affirmative is to be
offered, the negative should be allowed upon request
also, or neither the affirmative nor the negative
should be presented.

We furthermore provided in this bill that if one
candidate was allowed to address his constituency his
opponents should be allowed to make addresses also,
and if all could not have this privilege then no one
should have the privilege. Is not that fair and just?

18

Mr. President, if all candidates can not be heard,
none should be heard. If both sides of a question
can not be heard over a particular radio station,
none should be heard. I can not emphaSize this too
strongly. It is a matter of tremendous importance,
because ever day radio is reaching more and more
homes

Finally, after the debate had subsided and all sides
had been heard, a vote was taken and the Dill amendment was
accepted.20

The next day, July 2, 1926, the question on the bill
itself was called, the vote taken and H.R. 9971 passed the
Senate. Senator Waters then moved that the Senate insist up-
on its amendment and asked for a conference with the House
to iron out.the differences in the two versions of the bill.

It wasn't until the next year at the second session
of the 69th Congress that the conferenCe report was ready
for presentation. The report (H. Report 1886) was submitted
in the House on Thursday, January 27, 1927, and was brought
up for debate two days later. On the matter of political
broadcasting, the conferees had made certain changes in the
language of the D111 amendment and had placed it in the bill
as Section 18. The section as presented by the conferees
read as follows:

Section 18. If any licensee shall permit any person
who is a legally qualified candidate for any public
office to use a broadcasting station, he shall afford
equal opportunities to all other such candidates for
that office in the use of such broadcasting station,
and the licensing authority shall make rules and regu-
‘lations to carry this provision into effect: Provided,
That such licensee shall have no power of censorship

over the material broadcast under the provisions of
this paragraph. No obligation is hereby imposed upon

19

any licensee to allow the use of its station by any
such candidate.21

A short debate followed concerning this section:

Mr. Blanton. Suppose there are two candidates, one a
rich man and one a poor man, and the corporation
charges for services one candidate $5,000, a sum that
the poor man can not pay. Is that giving them an
equal chance?

Mr. Scott. No; I think the bill preserves to the com-
mission the authority to prevent any discrimination.

Mr. Blanton. That would be discrimination.

Mr. Scott. Absolutely.22

Later that day, following further debate on other

sections of the bill, the House agreed to the compromise

bill as presented in the conference report.23

On Monday, January 31, 1927, the conference report
(Senate Document Number 200) was submitted to the Senate.
Two and a half weeks later, on February 18th, it was brought
forth for debate. Senator Howell had his opinions on Section
18 as agreed to by the conferees and had no hesitation about
voicing them:

Mr. President, it will be noted that under the pro-
visions of this latter section (Section 18) if a
candidate is allowed to use a station, other candi-
dates for the same office must be allowed the same
privilege, however, if a representative of a candi-r
date is allowed to use a station, there is no pro—
vision that the representatives of other candidates
must likewise be allowed to broadcast. Mbreover, as
to public questions, censoring discrimination general-
ly and declaring the licensee to be a common carrier,
this substitute section is silent.

But despite the misgivings of Mr. Howell on Section

18 and of others on various sections of the conference bill,

20

a final vote showed a majority of the Senate agreeable to
the conference report. The first major radio legislation

25

had passed Congress, and with it, Section 18. On February

23, 1927 the signature of President Coolidge made it official

and the Federal Radio Act of 1927 was made law.26

Unsuccessful Attempts to Amend Section 18

Following five years of rapid industry growth,
Section 18 of the Federal Radio Act of 1927 and radio regu-
lations in general once more came under the close scrutiny
of Congress. The result was a bill to amend the 1927 act,
which passed both Houses of Congress in March of 1933, but
was subject to a pocket veto by President Hoover.27 It is
included here because of the interesting concepts which it
proposed as a change to Section 18. It should be noted that
a portion of the ideas stated in this bill would be enacted
in future legislation.

The bill, H.R. 7716, as first introduced and passed
by the House, left Section 18 untouched. On Tuesday,
February 11, 1932, it was presented to the Senate. After
two readings it was referred to the Committee on Interstate
Commerce.28 Almost a month later, on April 14, 1932, Senator
Dill submitted the committee's report (Senate Report #564)
upon the bill. In Committee a Section 14 was added; it
struck out Section 18 and replaced it with a longer section
having several additional features. In dealing with equal

opportunities for candidates Section 14 stated:

21

. . . If any licensee shall permit any person to use
a broadcasting station in the interest or support of
or in opposition to any candidate for public office,
or in the presentation of views on any side of a
public question to be voted upon at an election, he
shall afford equal opportunity to any other person
to use such station in the interest or support of
any opposing candidate for public office, or for the
presentation Of Opposite views on such public ques—
tion, or to reply to any person who has used such
broadcasting station in Opposition to any candidate.

Section 14 kept two principles found in Section 18.
First, that there was need of an authority to make rules to
carry out the provisions Of the section and second, that the
stations were not obligated to allow candidates to use their
services. A final section, however, added a new thought:

The rates charged for the use Of any station for any
purpose set forth in this section shall not exceed
the regular rates charged for the use of said station
to advertisers furnishing regular programs, and shall
not be discriminatory as between persons using the
station for such purposes.

In the explanation of Section 14 the Committee said
that it was added for the purpose of "extending the equality
of treatment requirement of political candidates to supporters
and opponents of candidates, and public questions before the
people for a vote."30

Before debate on this bill could begin, however, a
motion by Senator Couzens sent it back to the Committee on
Interstate Commerce.31 When the 2nd Session Of the 72nd
Congress convened Senator Dill again brought forth H.R. 7716
and submitted a committee report (S. Report #1044).

But once again, on January 3, 1933, upon the request

of Senator Couzens, the bill was recommitted to the Committee

22

on Interstate Commerce.32 When the next committee report (S.

Report #1045) was submitted by Senator Dill on January 11,
there appeared a slight change in Section 14. Following the
words “or in the presentation of views on a public question
to be voted upon at an election" was added "or by a govern—
mental agency."33

On Friday, February 10, Senator Dill called for the
consideration of H.R. 7716 by the Senate. Section 14 was
read in its order and passed without debate; and, following
the reading Of the entire bill and debate dealing with other
sections, H.R. 7716 was read for the third time and passed
by the Senate.34 The next day the House formally disagreed
with the Senate amendments and called for a conference.

The conference report (House Report 2106) was sub-
mitted Saturday, February 25th, 1933, in the House. In deal-
ing with Section 14 the committee recommended that: "The
House secede from its disagreement to the amendment of the
Senate . . . and agree to the same with an amendment as
follows . . . strike out 'or by a governmental agency' (added
in Senate Report 1045)." It also called for the addition of
a sentence which would state: "Furthermore, it should be
considered in the public interest for a licensee, so far as
possible, to permit equal Opportunity for the presentation
Of both sides of public questions."35

Some discussion on Section 14 of the bill followed.

Mr. Stafford pointed out that it banned, "for all time the

23

right of these broadcasting stations and particularly those
controlled by newspapers, from-holding up members of Congress
for higher rates than are charged to advertisers furnishing
the regular programs."

Mr. Davis followed with a statement which expressed
his gratitude that Section 14 was "considerably broader" than
the existing legislation regulating political broadcasting.
He then called for the adOption or rejection of the confer-
ence report. The report was agreed to by the House.36

On Tuesday, February 28th, the same conference re—
port was submitted to the Senate by Senator Dill. In the
discussion that followed, Senator White expressed his whole—
hearted disapproval of the section as reported by the confer-
ence committee. For one thing, SenatOr White pointed out,
"it leaves to implication or to construction entirely whether
or not the present section is intended to repeal Section 18
of the existing law." Also, in discussing the part of the
section dealing with rates, Senator White complained that,
"if (the rule) is to be enforced, (it) involved a determi—
nation as to what are regular programs, and . . . what are
the regular rates charged for such regular programs." He
further pointed out that under the then existing law neither
were there means for filing of rates, nor was there control
over the rates charged, and that "there (was) no authority

in the present law to make effective this provision."37

24

In defending Section 14 Senator Dill stated:

we have found in actual experience that some radio
stations have charged candidates for Office a higher
rate for the time used fOr making a political speech”
than they charge advertisers. The committee believes
that public discussion is of such interest that it is
but a fair requirement to say that they should not
charge any higher rate when a candidate speaks than
when an advertisement of some kind is going over the
air. That is not fixing of rates; that is a provision
for equality of treatment of public candidates as com-
pared to advertising clients who may come to the radio
station.

Following this statement Senator Dill moved for the

adoption of the report, and after some debate not concerning

Section 14 the report was agreed to in the Senate.38

On March 1, 1933 H.R. 7716 was presented to President
Hoover for his approval. Section 14 of that bill as sent to
the President read in full:

(a) If any licensee shall permit any person who is a
legally qualified candidate for any public office to
use a broadcasting station, he shall afford equal
Opportunities to all other such candidates for that
office in the use of such station and if any licensee
shall permit any person to use a broadcasting station
for public Office, or in the presentation Of views on
a public question to be voted upon at an election, he
shall afford equal Opportunity to an equal number of
other persons to use such station in support of an Op—
posing candidate for such public office, or to reply
to a person who has used such broadcasting station in
support of or in Opposition to a candidate or for the
presentation of opposite views on such public question.
Furthermore, it shall be considered in the public
interest for a licensee so far as possible, to permit
equal opportunity for the presentation of both sides
of public questions.

(b) The commission shall make rules and regulations
to carry this provision into effect. NO such licensee
shall exercise censorship over any material broadcast
in accordance with the provisions of this subsection.
NO Obligation is imposed upon any licensee to allow the
use Of his station by any candidate, or in support of

25

or in opposition to any candidate, or for the presen-
tation of views of any side of a public question.

(c) The rates charged for the use of any station for
any of the purposes set forth in this sectiOn shall
not exceed the regular rates charged for the use of
said station to advertisers furnishing regular pro-
grams, and shall not be discriminating as between
persons using the station for such purposes.

On March 4, 1933, the bill was killed by a pocket
veto by President Hoover.4O This veto only temporarily
halted the attempts to revise broadcasting legislation for,
as we shall see, major communications legislation was just
around the corner.

Prior to this, however, another unsuccessful attempt
at legislative change was to take place. It would have
broadened the regulation for fair treatment or non-
discrimination towards political candidates to include "any
religious, charitable or educational company, corporation,
association, or society or any other like association."41
This bill, H.R. 7986, introduced to the House by Representa—
tive McFadden on February 14, 1934, carried a penalty of a
$500 - $5,000 fine and possible loss of a license to any sta-
tion which willingly discriminated against or in favor of any
of these groups to the exclusion of another with an Opposing
view.

Interest in this type of legislation, unsuccessful
though it was, arose with the politicians' realization that

they could use broadcasting for other reasons than campaign—

ing. They found it, for instance, to be a very effective aid

26

to explain certain stands they had taken, a means to publi-
cize their idea on governmental policy, and an effective way
to influence public opinion. In the late 1920's and early
1930's, concern on the part of individuals and groups began
to grow. At that time a group of anti-Hoover Senators raised
the question because they feared that the radio people would

42 Also at about this same

favor the Hoover administration.
time, Congress was faced by a demand by the Jehovah's
Witnesses for radio time to preach its doctrine, after the
National Broadcasting Company had withdrawn its facilities
because of an intemperate attack made by the "Witnesses“ up-
on other churches. With their failure to get the desired
regulations out Of the Federal Radio Commission, the "Wit—
nesses" brought their demands to Congress resulting in bill
H.R. 7986.43

Consequently in the Senate a much broader and all in—
clusive bill S. 2910 was introduced. This bill would have re-
quired the broadcaster to air material equally for all points

44 Although

of view on all subjects "so far as possible."
neither of these bills made it out Of their respective com-
mittees, the principle of fair treatment to all responsible
points of view was later placed into broadcasting legislation
and today is known as the "fairness doctrine."

As the decade of the 1930's progressed, the rapid

development of the broadcasting industry caused our Senators

and Representatives in Congress to take second looks at the

27

Federal Radio Act Of 1927, the Federal Radio Commission, and
Section 18. As the industry grew, so did our lawmakers' con—
cern that a proper and efficient set of regulatory laws exist
to protect the public and to insure the proper use of their
airwaves. The results Of their concern was to be the Com-

munications Act of 1934.

7.
8.

9.

10.
11.
12.

13.

14.

15.

16.

17.

18.

19.

28

FOOTNOTES - CHAPTER I

James M. Herring and Gerald C. Gross, Telecommunications:
Economics and Regulations (New York: McGraw—Hill Book
Company, Inc., 1936), p. 212.

Ibid., p. 213.

Sidney Kraus, ed., The Great Debates: Backggound -
Perspective - Effects (Bloomington: Indiana University
Press, 1962), p. 28.

U.S., Congressional Record, 69th Cong., lst Sess., 1926,
LXVII, Part 11, p. 12452.

.12l§°’ Part 5, p. 4956.

Pike and Fischer, Radio Regulations, XVIII, p. 718.
Op. cit., Cong. Rec., LXVII, p. 12356.

_;p;g., p. 12358.

Op. cit., Radio Regulations, and also Cong. Rec., LXVII,
pp. 12501, 12502.

Op. cit., Cong. Rec., LXVII, Part 5, p. 5560.
Ibid., p. 5561.
Ibid., Part 11, p. 12452.

Op. cit., Radio Regulations, pp. 718, 719, and also
Cong. Rec., LXVII, p. 12502.

Ibid., Radio Regulations, pp. 719, 720.

Dennis v. United States, 341 U.S. 494 (1951), pp. 584,
585.

John Stuart Mill, On Liberty (Oxford: Basil Blackwell,
1946), pp. 14, 15.

Op. cit., Radio Regulations, p. 721, and also Cong.
Rec., Part 11, p. 12503.

Ibid., Radio Regulations, pp. 721, 722, and also Cong.
Rec., pp. 12503, 12504.

Ibid.

20.

21.

22.

23.

24.

25.
26.

27.

28.

29.

30.
31.
32.

33.

34.

35.
36.
37.
38.

39.

40.

41.

29

Op. cit., Cong. Rec., Part 11, p. 12505.

U.S., Congressional Record, 69th Cong., 2nd Sess., 1927,
LXVIII, Part 3, p. 2561, also House Document NO. 1886,
and Senate Document No. 200, 69th Cong., 2nd Sess.
Ibid., p. 2567.

Ibid., p. 2580.

 

 

Ibid., Part 4, p. 4125.

Ibid., Part 4, p. 4155.

 

Ibid., Part 5, p. 4938.

 

U.S., Congressional Record, 72nd Cong., lst Sess., 1932,
LXXV, Part 5, p. 5397.

Ibid., Part 4, p. 3735.

U.S. Congress, Senate, Report on Public @1115, Vol. I,
72nd Cong., lst Sess., 1932, Rept. #564.

Ibid., p. 10.
Op. cit., Cong. Rec., Part 9, p. 10049.
Ibid., Part 2, p. 1181.

U.S. Congress, Senate, Report on Public Bills etc., 72nd
Cong., 2nd Sess., 1933, Rept. #1045.

U.S., Congpessional Record, 72nd Cong., 2nd Sess., 1933,
LXXVI, Part 4, pp. 3767-3770.

Ibid., Part 5, p. 5037.
Ibid., p. 5039.

Ibid., p. 5210.

 

Ibid., p. 5212.

 

8. Congress, House, Report on Public Bills, 72nd

Op. cit., Cong. Rec., p. 5397.

.U.
Cong., 2nd Sess., 1933, Rept. #2106.
U.

8., Congressional Record, 73rd Cong., 2nd Sess., 1934,
LXXVIIIf Part 4, p. 3544.

30

42. Elmer E. Smead, Freedom of Speech by Radio and TV.
(washington, D.C.: Public Affairs Press, 1959), p. 53.

43. Ibid., p. 54.

44. Ibid.

CHAPTER II

SECTION 315 AND ATTEMPTS AT AMENDMENT

1934 — 1956

In 1934 Congress enacted the most important piece of
Federal legislation in the field of broadcast law. The Com—
munications Act Of 1934 replaced the earlier Federal Radio
Act of 1927, and with amendments thereto, remains today the
law governing broadcasting in the country. Easily the most
noted achievement of this act was the formation of the Federal
Communications Commission, to police and regulate all fields
of communication.

In dealing with political broadcasting regulations,
the bill was less dramatic. In fact the end result was the
direct transfer Of Section 18 from the Older act to the new,
as Section 315.

This famous piece of communications legislation be—
gan in the Senate as Senate Bill #3285. It was introduced
to that body by Senator Dill on April 4, 1934, and was re—
ferred immediately to the Committee on InterstateCommerce.1
As introduced, S. 3285 contained the same provisions as the
earlier House Bill H.R. 7716 concerning political broadcast-

ing. These included the provision for extending the equal

31

(3

In

32

time principle to supporters and opponents of candidates, or
public questions. It also contained a section that would
prevent rate discrimination against political speakers.2

On Thursday, April 18th, Senator Dill presented be—
fore the Senate the committee report on S. 3285. Section
315 of this legislation dealt with political broadcasting.
In explanation the committee said, “Section 315 on facilities
for candidates for public office is a considerable enlarge-
ment of Section 18 of the Radio Act of 1927 . . . It is
identical with the provisions of H.R. 7716 of the 72nd
Congress which passed both houses."3

S. 3285 was formally presented for the consideration
Of the Senate on May 15th. After considerable debate over a
variety of provisions, mostly regarding the creation Of the
new commission, the bill was passed; and with it, undebated,
Section 315.4

On Monday, April 21, 1934, S. 3285 was placed before
the House and referred to the Committee on Interstate and
Foreign Commerce for review and opinions.5 Eleven days
later, Mr. Rayburn brought the bill from the committee with
an amendment. The committee report (H. Report 1850) showed
that a drastic change in Section 315 had been made. In fact
it was completely eliminated from the bill. The committee
comment of this change was as follows:

The amendment of this committee eliminates this title

(Number III of which Section 315 was a part) from the
bill and substitutes a provision which transfers to

33

the new commission all the functions of the Federal
Radio Commission, but leaves the provisions of the
Radio Act of 1927, as amended unchangpd and adds no
provisions to supplement that act.6

 

 

On June 2, 1934 the House passed S. 3295 and without
debate had restored Section 18 to its 1927 style and content.
Following the passage, the House insisted upon its amend—
ments, and appointed conferees. Two days later the Senate
did likewise.7

The committee's conference report was presented be—
fore both Houses of the Congress on Saturday, June 9, 1934.
As presented in the House by Mr. Rayburn, House Report #1978
did not alter the House action which left Section 18 as it
was; it did, however, place it intact as Section 315 into
the new bill.8

Most of the debate following the report centered
around the new Federal Communications Commission and the
common carriers. Finally Mr. Rayburn moved that the House
adopt the conference report; the question was asked and
passed by a vote of 58 ayes and 40 noes. A point of order
that a quorum was not present was raised, then withdrawn,
and the conference report was formally agreed to in the
House.9 In the Senate, following a very short debate by
Senators King and Dill on jurisdiction over public utilities,
the conference report was accepted.10 On June 14, 1934,

carrying the signatures of House speaker Henry Rainey and

Vice President John N. Garner, S. 3285 was presented to

w'r

IE

(D

rn

34

President Roosevelt. Four days later the President expressed
his approval by adding his signature to the bill, and the
Communications Act of 1934 was law.11

As for political broadcasting regulations, for the
second time in as many years, attempts to revise Section 18
were unsuccessful, and it remained unchanged. It was to re-
main this way for another eighteen years, until 1952. In
that year Congress and the President were to agree on a bill
which would enact the provisions concerning the prevention of
rate discrimination which, as discussed above, was killed in
the House Committee on Interstate and Foreign Commerce in

1934. Prior to this 1952 amendment, however, several unsuc-

cessful yet interesting attempts at change took place.
First Attempts to Amend Section 315

In August of 1935 two bills were introduced in the
House of Representatives with the purpose of broadening
Section 315. The first of these bills introduced by Mr.
Scott, H.R. 9230,* would have required broadcast stations to
make available on a regular basis, attractive periods of
time for the free and full discussion of public issues. It
would also have required that all speakers on such issues be-
given equal treatment, and that the licensees could not be
held liable or responsible in local courts for any remarks

made during these broadcasts.12

 

*See Appendix A for full text.

35

The other bill introduced by Mr. Scott, H.R. 9231,*
would have placed an additional subsection to Section 315,
which would be administrative in nature and would outline the
stations' record keeping function in dealing with broadcasts
falling under this regulation. Among other things, it would
have required the stations to keep complete and accurate re-
cords of political broadcast requests and rejections which
were to be open to reasonable public inspection.13
Although these proposed law changes never proceeded
out of committee, the attitude of concern expressed by Mr.
Scott cannot be overlooked. Many lawmakers shared similar
feelings then and still do today. In asking for consider—
ation of his bills Mr. Scott stated:
Section 315 in its present form is unsatisfactory
from the standpoint of the industry as well as the
public . . . The provision has . . . favored the party
or person with the largest war chest to the prejudice
Of minority groups and individuals of small means
It is believed that all stations as an incident of the
right to operate as public callings under Federal
franchises should be required to devote certain
periods to political broadcasts without profit or
censorship. 4
Four years later in the first session of the 76th
Congress these same bills were proposed in the United States
Senate as S. 635 and S. 636. The results however, were the

same as those of their House counterparts of four years

earlier.

 

*See Appendix B for full text.

36
The White Bill of 1947

On May 23, 1947, the "White Bill," S. 1333, was
introduced in the United States Senate. This bill, which in
essence would be a complete overhaul of the Communications
Act of 1934, was the culmination of a series of attempts by
Senators White, Wheeler and others to rewrite broadcasting
regulations. The purpose of S. 1333 was, according to Senator
White, "to clarify the meaning and intent of the existing act
and to rectify some of the defects which have become Obvious
during the past twelve years of administration of the law."15
Section 15* of this bill amended Section 315, and Section
17** would have added two new Sections, 330 and 331. The
amendment of Section 315 was a lengthy one, spelling out the
regulations in extreme detail. It kept all the existing
principles but went further by extending the equal oppor-
tunity principle to Official representatives Of a candidate,
to Officials Of a regularly organized political party, and
to persons supporting or opposing any public measure re-
quiringa vote. At the same time it prohibited use of broad-
casting stations by any persons for or against any candidate
except (1) by a legally qualified candidate for the same
office, (2) by a person so designated in writing by the

candidate, or (3) by a representative Of a regularly organized

 

*See Appendix C for text.

**See Appendix D for text.

37

political party. In addition tO this, Section 15 also pro-
hibited the broadcasting of any political material for a
period of twenty-four hours before and extending through the
day of an election. The problem Of station liability was
met by a section to exempt the broadcaster from any libel,
slander, invasion of right of privacy, or any other similar
complaint under any state, Federal, territorial, or local
law for statements made during broadcasts governed by Section
315. Finally, Section 15 defined in detail what was meant
by “equal Opportunities."
Hearings on this bill before a subcommittee of the

Senate Committee on Interstate and Foreign Commerce in June
of 1947 brought forth vast disapproval from the broadcasters,
network Officials and officials of the National Association
of Broadcasters. Most of them complained that the amendments
were too confusing. The Opinion Of Frank Stanton of Columbia
Broadcasting System was typical:

. . . it is impossible to legislate fairness. I am

convinced that no mathematical formula, no matter how

detailed, will insure that result. Because of a

multitude of uncontrollable factors, available

listeners and actual listeners vary from hour to hour,

day to day, and week to week, so also are there

differences in delivery, content and personality

among speakers.

In an effort to plug all possible loopholes, the

detailed provisions of the proposed Section 315

might well have the effect Of inducing a large number

of stations to refuse to carry political broadcasts

at all. The minutiae of the proposed regulations

are such as to cause any broadcaster to wonder

whether it is possible in the course of a political

campaign to avoid unintentional violation Of some
prohibition . . . I recommend that Section 315 of

38
the Act, as well as Of the bill be eliminated be-
cause it is unworkable as a practical matter.16

The first Of the two new sections, #330, which
Section 17 of the bill would have added to the Communications
Act of 1934, dealt with the broadcasting of controversial
issues, and public questions not covered by Section 315. It
provided that a station had to provide time for the broad-
casting of both sides of any public question-raised or com—
mented on over the air. It also stated that the station or
Commission had no power of censorship over this material,
provided that the material did not advocate the overthrow of
the United States Government by force or violence. Finally
it stated that the station was entitled to an accurate copy
Of material to be broadcast in sufficient time to check it
as it would not be required to broadcast any material which
might subject it to "liability for damages or to penalty or
forfeiture under any local, state, or federal law or
regulation."

The second section added dealt with the requirement
of announced indentification of all political or public
presentations which were covered by Sections 315 or 330.

These sections drew as much criticism as the first
from the industry spokesmen. Mr. Stanton again voiced his
opposition.

. . . A speaker in reply seldom limits himself to ex—
actly the same points made by the original speaker.
If broadcasters attempt to confine a speaker in reply

to the points raised by the original speaker, we would
soon hear the cry of censorship. If broadcasters do

39

not attempt this kind of control——and I do not for

a moment think they should-—then if A speaks upon a

question and time is given to B and C to reply, both

B and C may make new points which would require re-

plies from D and E and from F and G. The require-

ment for twice the number Of replies results in a

geometric progression which would, conceivably, ex-

haust the entire broadcast schedule of the station.

It is obvious that a majority of congressmen were

not willing at that time to accept the ideas of S. 1333.
The bill, following the committee hearing, was never acted
upon, and as a result Section 315 remained unchanged in form

and principle.
The End of Rate Discrimination — 1952

Four years later, however, in June 1952, a bill (S.
658) was brought to the floor of the House of Representatives
which eventually would contain the first successful addition
to Section 315 since its birth 27 years earlier.

On January 23, 1951 Senator McFarland introduced in
the Senate this bill, to amend the Communications Act of
1934. As introduced and as it had passed the Senate on
February 5th, 1952, s. 658 did not involve Section 315.18
The bill then proceeded to the House where political broad-
casting was not mentioned until June, after the bill had
reached the floor from the Committee on Interstate and
Foreign Commerce. At that time Representative O‘Hara pre—

sented his feelings on the subject of station liability for

the content of political broadcasts thusly:

40

New, I intend to Offer an amendment which will, in
plain language, say that in a political broadcast
the radio station shall exercise the right of
censorship as to defamatory or Obscene matters in
the script; it shall have the right to delete it.19
During the debate which followed, Mr. Horan made it
known that he was going to propose a substitute amendment
for the one planned by Mr. O'Hara. In the proposed Horan
amendment, stations would be eliminated from any liability
over political broadcasts and the rates for these broadcasts
would be regulated so that they would be no higher than the
regular commercial rates. Mr. Horan proceeded to explain
that his amendment was an outgrowth of an earlier bill H.R.
5470, introduced in the House.20
Mr. McCormack then took the floor and voiced his
thoughts on the principles involved in the two proposed
amendments. He stated that he felt the Horan amendment was
sound, and that speeches by politicians should not be
censored by any station. He then proceeded to state:
the stations themselves should not be liable.
They are more or less in an innocent bystander po-
sition . . . The question Of libel is one that con—
cerns a very small percentage of those who might
be candidates for public Office, it seems to me
that . . . the station should be removed from being
liable for certain statements. The person who makes
them is liable. Why the station is made liable is
hard for me to understand.21
The Congressman went on to express his belief that
only one rate should be charged for speeches, and that being

the same as the regular advertising rates. His feelings had

been shown earlier in the form of an amendment to a bill

41

(H.R. 7062) which had been introduced by Mr. Horan. That
measure had included all of the principles concerning politi-

cal broadcasting that were in Mr. Horan's proposed amendment

to s. 658.22

Following this statement the bill was read for the
purpose of calling for proposed amendments. At the proper
time Mr. O'Hara introduced his amendment. It would have
changed Section 315 to read:

(a) If any licensee shall permit any legally quali-
fied candidate for any public office to use, in’
person, a broadcasting statiOn, such licensee shall
afford equal opportunity to all other such candi-
dates for that office, to use, in person, such broad-
casting station.

(b) In any case of such use of a broadcasting sta-
tion, the licensee shall have no power to censor the
material broadcast; but the licensee may require de-
letion of any defamatory, obscene, or other matter
which would subject the licensee to any civil or
criminal liability in any Federal, State, or local
court.

(c) Except to the extent.expressly provided in sub-
section (a) Of this section, no obligation is imposed
upon any licensee to allow the use of its broadcast-
ing station by any person. d

(d) The Commission shall issue regulations to carry
into effect the provisions Of this section, and such
regulations shall be issued initially not later than
one year after the date of the enactment of the Com—
munications Act Amendments, 1952.23

In effect, the only change suggested by this amend-
ment was contained in subsection (b), in that it would hand
over to the broadcast licensee the right to require the omis—
sion of material they felt would subject them to legal

action.

42

Mr. Horan followed the amendment with a statement

which summed up the decision which faced Congress. He stated:

we are here . . . to do one Of two things. The O‘Hara
bill suggests one, and my amendment, if we reach it,
by defeating his amendment will do the other . . .

There are two people subject to being responsible
when you talk about radio broadcast; one is the
broadcast station, the other is the individual who
makes the broadcast; I feel that it should be the
individual who is responsible.2

It seems that the majority of Congressmen agreed
with him because the O'Hara amendment was then defeated by a
vote of 59 to 37. This defeat allowed Mr. Horan to present
his amendment. It read in full:

Section 315

(a) If any licensee shall permit any legally quali~
fied candidate for any public office in a primary,
general, or other election, or any person authorized
in writing by such candidate to speak on his behalf,
to use a broadcasting station, such licensee shall
afford equal opportunities in the use of such broad-
casting station to all other such candidates for that
Office or to persons authorized in writing by such
other candidates to speak on their behalf.

(b) The licensee shall have no power to censor the
material broadcast by any person who is permitted to
use its station in any of the cases enumerated in sub—
section (a) or who uses such station by reason of any
requirement specified in such subsection; and the
licensee shall not be liable in any civil or criminal
action in any local, State, or Federal court because
of any material in such a broadcast, except in case
said licensee shall willfully, knowingly and with in-
tent to defame participate in such broadcasts.

(c) Except to the extent expressly provided in sub-
section (a), nothing in this section shall impose up-
on any licensee any Obligation to allow the use of
its broadcasting station by any person.

(d) The charges made for the use Of any broadcasting
station for any Of the purposes set forth in this
section shall not exceed the minimum charges made for
comparable use of such station for other purposes.
(e) The Commission shall prescribe appropriate rules
and regulations to carry out the provisions of the
section.

43

We see here that in subsection (a) Mr. Horan included
the principle of extending the equal facilities guarantee to
persons authorized to speak in behalf of candidates. This
is quite similar to those changes proposed several times be-
fore which fell by the wayside. Subsection (b) echoed the
principle dealing with censorship that had been put forth
prior in the various versions Of the White and Wheeler Bills.
This whole complex problem of station liability versus the
right to censor, which plagued broadcast law for many years,
will be covered in more detail in the next chapter.

Briefly, however, the debate which followed saw Mr.
O'Hara expressing his dissatisfaction with the amendment,
and Mr. Horan and Mr. McCormack defending. Concerning the
rate principle of subsection (d) which ultimately was the
only part to become law, Mr. McCormack states:

If we are going to do anything now about proper and
justifiable protection of men and women who aspire
to public Office in the use of radio stations and
television stations, now is the time to see that we
are not charged more than the minimum commercial
rates charged to others.

After further debate over the censorship section of
the amendment, it was called for a last reading by Mr.
Dondero. The amendment was read, the question called, and
passed by a vote of 92 ayes and 27 noes.27 A little later
the question was called on the bill itself, and the House
gave its approval.28 During the next two days conferees

were appointed on the part of both houses.29

44

On Wednesday, July 2, 1952 the conference report was
submitted to both houses Of the Congress and passed after
little debate. The report (H. Report #2426) showed some
drastic changes and omissions in Section 315:

Section 315

(a) If any licensee shall permit any person who is a
legally qualified candidate for any public office to
use a broadcasting station, he shall afford equal
opportunities to all other such candidates for that
Office in the use of such broadcasting station: Pro-
vided, that such licensee shall have no power of
censorship over the material broadcast under the
provisions of this section. NO obligation is hereby
imposed upon any licensee to allow the use of its
station by any such candidate.

(b) The charges made for the use of any broadcasting
station for any of the purposes set forth in this
section shall not exceed the charges made for com-
parable use Of such station for other purposes.

(c) The Commission shall prescribe appropriate rules
and regulations to carry out the provisions of this
section.30

In explanation of the changes the committee stated:

The committee of conference agreed to omit the pro-
visions with respect to liability of licensees in
civil or criminal action and the extension of the
present law to include spokesmen for candidates be-
cause these subjects have not been adequately studied
by the Committee on Interstate and Foreign Commerce
of the Senate and the House of Representatives. This
proposal was adopted in the House after the bill had
been reported to the House committee. The proposal
involved many different problems and it is the judge-
ment of the committee of conference that it should be
acted on only after full hearings have been held.31

It should be noted here that the broadcasters are
still waiting for legislative action in this vein, although
a 1959 Supreme Court decision would seem to have solved this

problem.

45

On July 15, 1952 President Truman signed S. 658 and
it became public law number 554 of the 82nd Congress. Here
we see legislation passed by Congress and approved by the
President to protect against rate discriminations in politi-
cal broadcasting. The question of rates discrimination was
far from being new, as it had been proposed in H.R. 7716 in
1933, again in S. 3285 in 1934, and once again in 1949 by
Senator Howard McGrath.32 All these attempts failed for one
reason or another.

In 1933, H.R. 7716, which passed the Congress, had
been vetoed by the President. In the 1934 bill, the rate
principle was dropped in committee along with the more contro-
versial idea of extending the equal time principle to sup-
porters and opponents of candidates. Finally in 1949 no
legislative action at all was taken on Senator McGrath's
call for guaranteed equal rates. It was not until this bill,
S. 658, was made law in July 1952 that candidates for Office

were protected from increased time rates by law.
Make-Up and Teleprompters

By 1955 the rapid expansion of the use of the tele—
vision media by candidates for public Office, prompted a
bill dealing with a problem of a different nature. On May
5th of that year a bill, S. 1909, was introduced in the
Senate by Senator Neuberger. This bill would have provided

that " . . . any TV broadcast of an address by or on behalf

46

Of a candidate for any public Office shall include an an-
nouncement of whether the speaker is speaking extemporaneous—
1y or from prepared material and what facial make-up, if any,
is being used by the speaker . . ."33
Senator Neuberger was concerned with the growing use
of theatrical and specialized television devices such as
make-up and teleprompters, in the political broadcasts. The
bill would have required that the television audience ”be
informed when a candidate for public office (was) using
either facial make-up or a contrived device for reading,
which (was) not in the line of vision Of his viewers."34
This idea found a supporter in Lawrence Laurent, the

radio editor of the Washington Post and Times Herald. It

was his feeling that the use of these "aids" were a "form Of

deception." He stated in an editorial in support Of this
bill that ”. . . this practice (use Of make—up and tele-
prompters) is not entirely honest. It deceives the voters.

It can make an empty headed dolt appear an intelligent

candidate."35

Although the bill was never acted upon it raised an
interesting problem and one in which, if not corrected,
Senator Neuberger found deeper implications.

If politicians' speeches are to be staged like
comedians' jokes, and if public policies are to be
merchandised like soap, we shall soon see the ef-
fects of a Gresham's law on politics, in which show-
manship on the television screen will take the place
of statesmanship, and public officials will be chosen

47

for histrionic aptitude by those who can afford to
contribute the immense financial expense of a tele-
vision buildup.36

Political Campaign Length and Costs

Prompted by his concern over the vast sums needed
for a television campaign, Senator Neuberger also took issue
with the major parties, who in 1955, had decided on a shorter
campaign period. It was the feeling of many that because of
the expanded use Of the media, the campaign time as it stood
from mid-summer until Nevember was too long. However, con-
trary to these beliefs Senator Neuberger held the Opposite
opinion. It was his belief that the shorter campaign time
would hurt the poorer candidates who could not afford tele-
vision and had to depend on the whistle-stops, community
suppers, church socials etc.

Such word of mouth campaigning . . . takes time--a
lot of time. It can't be flashed onto millions of
television screens virtually overnight at vast ex-
pense. .I wonder if a "blitzkreig" on television
will not shape the public mind, before a less favor—
ably financed nominee can get his message to the
people by slower and less costly means. Someday
shorter political campaigns may well be possible and
desirable, but I believe they will be premature un-
til we have solved the urgent problem of making tele-
vision--and perhaps other media--equally available to
candidates irrespective of their financial backing.

Once again, as we have seen before and as we will see
again, the cry of inequality caused by the high costs Of
.broadcast air time was raised. On May 29, 1956 the then

Senator Hubert Humphrey introduced a bill in the United

48

States Senate (S. 3962)* which he and others felt would help
bring about the "equality" that Senator Neuberger had called
for the year before.38
This bill, along with its companion bill in the
House, H.R. 11150, proposed two major changes in Section 315.
In the first part of the bill a limitation was placed on
those candidates for President, Vice President, United States
Senators and United States Representatives, in connection
with the equal time requirement. Senator Humphrey's bill
would have required stations only to provide equal time to
the before mentioned candidates if they represented a politié
cal party which received at least 4% of the total vote in
the preceeding election; or if they were supported by peti-
tions in each state in which they were running containing
signatures equal to at least 1% of the total vote cast there

39 It also provided for a simi-

in the preceeding election.
lar provision in dealing with candidates for the nomination
to such positions.

In support of this section Senator Humphrey pointed
out the problems that broadcasters were having with the
present equal time requirement, and the resulting small amount
of free time that was being Offered to the candidates. He

stated, "I can appreciate that we must always safeguard the

right of minority party candidates to obtain appropriate

 

*See Appendix E for complete text.

49

public attention. Nevertheless, it is obvious that a change
in the present provision of the Communications Act is called
for.“40

The second major change contained in this bill was a
plan for the requirement of licensees to provide free time
to presidential candidates. Under this plan presidential
candidates would qualify for free time only if they filled
one of the requirements mentioned in the first part of the
bill. If they did, they would be provided with: one-half
hour per week during the month of September; one hour per
week during the month of October; and one hour in NOvember

41

preceeding the election. These time segments could be

used by either the candidate for president or his vice-
presidential running mate.
In support Of his argument, Senator Humphrey stated
that in the case of radio and television,
the American people have made a gift of the ex-
clusive use of certain channels to the licensees in-
volved. This gift is for a temporary period Of time
only, and I think it is upon this that the American
people may, if they wish, attach to such a lucrative
gift certain conditions important to the public wel-
fare. The condition Of free time for the discussion
of public issues is a reasonable one. Indeed it has
now become more than that, I think it has become
essential.42
(Although this bill was not acted upon, it typified
the thinking of many leaders of government, industry and
other segments of society. On the other hand, a large number

of others fear that restrictions of this type would

50

discriminate against the minority point of View, and in ef-
fect would compromise our free speech tradition. Others,
predominently the broadcasters themselves, are against any
federal regulation which would force them to give away free
time to anyone, even political candidates. These peOple

feel such federal control would be an infringement upon their
right and a dangerous first step toward direct government
control of programming.

In spite of these differing Opinions, it is easy to
see that a very difficult problem exists. What Newton Minow
has called the "dollar wall" is real, and Senator Humphrey
described it in these words:

Campaigning techniques themselves have now been revo-
lutionized by the medium of television. It has added
many new dimensions to a candidate's public image.

In projecting appearance, as well as words and voice,
the television medium is rapidly becoming the single
most important vehicle for the conduct of political
campaigns . . . We cannot overestimate the importance
of allowing the American people to hear the leading
presidential candidates without being subject to the
financial limitations burdening any particular candi-
date Or party. (All of us know television is rapidly
assuming the bulk of the expense in campaigning for
public office. In some cases it is threatening to
force public servants to rely more and more heavily

upon the financial contributions of special interests.43

51

FOOTNOTES - CHAPTER II

1. U.S., Congressional Record, 73rd Cong., 2nd Sess., 1934,
LXXVIII, Part 6, p. 5953.

 

2. James M. Herring and Gerald C. Gross, Telecommuni-
cations: Economics and Regulations (New York: McGraw—
Hill Book Company, Inc., 1936), pp. 396 and 402.

 

 

3. U.S. Congress, Senate, Report on Public Bills, 73rd
Cong., 2nd Sess., 1934, Rept. #781, p. 8.

 

4. Op. cit., Cong. Rec., Part 8, p. 8854.

 

5. Ibid., p. 9204.

6. U.S. Congress, House, Rgport on Public Bills, 73rd
Cong., 2nd Sess., 1934, Rept. #1850, p. 2.

7. Op. cit., Cong. Rec., Part 10, pp. 10332 and 10365.

 

8. Ibid., p. 10988.
9. Ibid., p. 10995.

10. Ibid., p. 10912.

 

11. Ibid., Part 11, p. 12452.

 

l2. U.S., Congressional Record, 74th Cong., lst Sess., 1935,
LXXIX, Part 13, p. 14400.

 

13. Ibid.

 

14. Ibid., pp. 14399, 14000.

 

15. U.S., Congressional Record, 80th Cong., lst Sess., 1947,
XCIII, Part 5, p. 5707.

 

l6. Broadcasting and the Bill Of Rights (Washington, D.C.:
National Association of Broadcasters, 1947), p. 153.

17. Ibid., p. 154.

18. U.S., Congressional Record, 82nd Cong., lst Sess., 1951,
XCVII, Part 1, p. 961.

 

l9. U.S., Congressional Record, 82nd Cong., 2nd Sess., 1952,
XCVIII, Part 6, p. 7401.

 

20. Ibid., p. 7403.

21.
22.
23.
24.
25.
26.
27.
28.
29.

30.

31.

32.

33.

34.
35.
36.
37.

38.

39.
40.
41.
42.

43.

 

 

 

 

 

 

 

52

 

Ibid , p. 7404.

Ibid , p. 7412.

Ibid

Ibid , p. 7414.

Ibid , p. 7415.

Ibid.

Ibid., p. 7416.

.lélg': p. 7421.

'lpig., pp. 7508 and 7620.

U.S Congress, House, Report on Public Bills, 82nd
Cong., 2nd Sess., 1952, Rept. #2426, p. 8.

.léig': p. 21.

Sidney Kraus, ed., The Greatppebates: Backgpgund -

Perspective - Effects (Bloomington:

 

Indiana University

 

 

 

 

 

 

 

 

 

Press, 1962), p. 40.

U.S., Congressional Record, 84th Cong., 1st Sess., 1955,
CI, Part 5, p. 5750.

.1182-

lpgg., p. 6749.

Ibid., Part 7, p. 9246.

Ibid., Part 2, pp. 2331 and 2332.

U. ., Congressional Record, 84th Cong., 2nd Sess., 1956,
CII, Part 7, p. 9148.

Ibid., p. 9341.

Ibid., p. 9342.

Ibid.

Ibid., p. 9343.

Ibid., p. 9342.

 

CHAPTER III

CENSORSHIP AND LIABILITY UNDER SECTION 315

Throughout most Of its controversial forty—three
years of existence, Section 315 has posed a problem dealing
with station censorship and liability. As long as there
have been political broadcasting regulations on the books,
it has contained the following statement, ". . . Provided,
that such licensee shall have no power of censorship over
the material broadcast under the provisions of this
(section)."

Almost from the first day of its appearance as part
of Section 18 of the Federal Radio Act of 1927, this portion
of the law has raised important questions as to its interpre-
tation. In some quarters it meant that since the broadcaster
could not censor he correspondingly could not be held liable
for any statements broadcast under the section. To others
the word censor did not mean protecting one's self against
law suit, but rather the elimination of thoughts and ideas
which conflicted with that of the licensee. This second in-
terpretation would have allowed the licensee to eliminate any
material from a political speech which he felt was in some

way libelous.

53

54

Over the years Congress has been struggling with
this problem. Bills have been introduced advocating both
interpretations, but all have failed. As a result Of this
lack of action at the Congressional level and because of in—
creasing industry pressure for a solution, the Federal Com-
munications Commission was compelled to act. Their answer

was the 1948 Port Huron Decision, which was upheld by the

 

United States Supreme Court in 1959.

Looking back, we can see the problem developing in
Congress prior to the enactment of Section 18. In Senator
Dill's original section dealing with political broadcasts,
introduced to the Senate on July 1, 1926, the censorship
sentence read; ". . . licensee . . . shall not be liable to
criminal or civil action by reason ofany uncensored utter-
ance thus broadcast."1 Eventually this idea was eliminated
from the section as it emerged from the conference committee.
Since that time legislative attempts to resolve this problem
have been as futile as they have been numerous. It remains
today an area where legislative action is needed to place

the law in step with the Supreme Court's interpretation.
Early Unsuccessful Amendments

A closer look at the historical development of this
problem will prove useful and interesting. In 1935 an un-
successful attempt to answer the question of whether or not

a station could be held liable for uncensorable material,

55

was submitted to the United States House by Representative
Scott. This bill, H.R. 9230* stated in part:

. Provided, that the licensing authority, the ad-
visory committee, and licensees shall have no power
of censorship of any kind, nor shall any licensee be
subject to liability, civil or criminal, in any State
or Federal court for material broadcast under the
provisions Of this section, nor shall any license be
revoked or renewal be refused because of material so
broadcast. '

Mr. Scott called for the passage of this bill as a
means of solving the problem posed by Section 315. In plead-
ing his case he stated:

It is law at present that network and station owners,
managers, program directors, and even announcers and
technicians in charge of the electrical controls,
must, at the peril of the station, determine at the
moment of utterance whether a remark is actionable,

a feat that no responsible judge or lawyer would pre-
sume to perform except in the plainest cases. This
has led necessarily to direct and indirect censorship,
to the vicious practice Of requiring the submission
of manuscripts for approval of networks and stations
on an editorial basis.

During the 1940's the question received the attention
of the Senate Committee on Interstate Commerce. The dis—
cussion showed that most of the committee members favored
action but were divided as to the methods to be used. The
major question asked was whether or not Congress had the
authority to countermand state libel and slander laws. In
referring this problem to the Federal Communications Com—

mission's legal staff, it received an answer in return that

this staff felt such a law would be constitutional.4

 

*See Appendix A for complete text.

56

The results were the Wheeler-White Bill (S. 814), of
1943, and the White Bill (s. 1333),* of 1947. Both of these
bills would have provided that:
. . licensees shall not be liable for any libel,
slander, invasion of right of privacy, or any simi-
lar liability imposed by any State, Federal, or
territorial or local law for any statement made in
any broadcast under the provisions of this section,
except as to statements mage by the licensees or
persons under his control.
.As discussed in Chapter II, both of these measures
were never passed, due for the most part to general industry

Opposition. This opposition was directed to the over-all

bill and not this section as such.
The Port Huron Case - 1948

The following year however, positive action was
taken; not by Congress itself but by the Federal Communi-
cations Commission. In one Of its landmark decisions, the

Port Huron Case, the Commission ruled that a station could

 

not censor political speeches or any material and as a result
could not be held liable for its content.6 Immediately fol-
lowing this controversial decision the Federal Communications
Commission was charged by many lawyers with misinterpreting
the law. Many felt that Congress had not intended to prevent
broadcasters from censoring libelous statements, but rather

only statements which politicians had the right to say. This

 

*See Appendix C and D for a complete text.

57

group defined censorship to mean "the deletion of something
which one has a legal right to say."7

On the other hand, others criticized the Federal Com-
munications Commission on the alleged grounds that the Com-
munications Act of 1934 did not give the industry any pro-
tection from liability under state laws. In fact the
Attorney General of Texas wrote the Commission stating:
"Texas libel laws are still in effect. Radio stations carry-

ing libelous matters will be subject to state laws."8

Renewed Congressional Action

The controversy raised as a result of this 1948 Com-
mission decision resulted in renewed activity in Congress.
The industry began to demand a release from the fear and un-
certainty created by the decision, and government people
recognized a need for new legislation. In January of 1950 a
renewed effort in Congress began, with H.R. 6949 introduced
by Representative Sedowski. This bill, which failed to win
approval, contained substantially the same language as the
two previously mentioned White Bills. In presenting his
bill before his colleagues Mr. Sadowski explained that:

". . . a serious question has arisen as to whether the obli-
gation to afford equal Opportunities on the one hand and the
prohibition of censorship on the other hand automatically
renders the licensee immune from actions for libel and

slander brought on account of any such statement."9 He

58

followed with a call to Congress to “clarify the issue by
pursuing his bill and thereby immuning the broadcaster from

libel and slander action under this section."10

The O'Hara and Horan Amendments

 

The closest attempt to reach any concrete legis—
lative result with this problem area occurred in the form of
Senate Bill 658, introduced in the Senate in January of 1951.
This bill has been discussed earlier in some detail. Al-
though it passed Congress and became law to protect against
rate discrimination in political broadcasts, we are interested
here in material which was deleted from the bill in the joint
conference committee. A closer look at the debate concern—
ing this bill in the House of Representatives will provide
the Opportunity to examine the two basic philosophical
answers to this problem of censorship and liability.

As we have seen, as S. 658 reached the floor of the
House in June of 1952 two amendments concerning censorship
were presented. Mr. O'Hara's amendment would have allowed
broadcasters no power of censorship but the right to "re-
quire deletion of any defamatory, obscene, or other matter,"
which the broadcaster felt would involve him in any legal
troubles.11

In Opposition to this Mr. Horan made it known that
he planned to Offer an amendment which would free the broad-

caster from the liability of political broadcasts. As a

59

result of these two Opposing answers to a very complex
problem, long and sometimes passionate debate took place on
the floor of the House. The major roles in this debate, as
would be expected, were taken by Mr. O'Hara and Mr. Horan.

In defense of his "right to delete" amendment Mr.

O‘Hara began:

On three different occasions in the history of radio
legislation the Congress of the United States has
refused to give the exemption Of liability to radio,
and rightfully so: this great, tremendous instru-
mentality that enters into 50,000,000 to 75,000,000
American homes. This instrumentality that is in the
business of selling radio time and political time
should also take some responsibility, because so
Often the vicious character assassins who may at-
tempt in a political campaign to ruin someone's repu-
tation may not be worth a dime, so far as civil lia-
bility is concerned. However, that radio station
must treat both sides alike and give both of them
time. That is provided for in my amendment. But,
if they are going to permit broadcasts, then they
are going to have to assume also some Of the lia-
bility and some of the responsibility of controlling
the vicious types of statements that are made that
are defamatory or Obscene.

At this point a question was put to Mr. O'Hara as to
the operations of his amendment if the station was broad-
casting an ad-lib, round table discussion type program. A
program of this type would have no script to screen for Ob-
scene or defamatory materials. He answered that the ruling
would not change just for these types Of programs, and added:

. . . it is true there would be a different defense
to that if they were completely surprised by the
statement that was made by the individual on such a
broadcast. You would not have the right to censor
the script because there would not be any script,
but that is one of the responsibilities they would
have to take.13

60

This prompted a short exchange between the two repre-
sentatives, Mr. O'Hara, and Mr. Horan.

Mr. Horan. My bill would eliminate his (the sta-
tion‘s) liability.

Mr. O'Hara. Yes: the gentlemen would eliminate all
liability on the part of the station.

Mr. Horan. And place it on the guilty party, who
was the individual who uttered the libelous words.
Mr. O'Hara. Yes. He is also liable under my bill,
too. Do not worry about that.14

Later, during the debate, these two were involved in
a longer exchange provoked by Mr. Horan's criticism of the
O'Hara amendment. It was Mr. Horan's contention that it
would be impossible, in most cases, to decide between the
libelous and obscene, which would be approved for censure;
and the partisan or political matters which could not be
censored.

This exchange followed:

Mr. Horan. The bill (O'Hara Amendment) does not in-
volve censOrship to that extent. If it is Obscene,

or libelous, or otherwise, the station may censor it,
but the trouble would come in the matter of deciding
what was partisan or political, because most defama-
tory statements would come in political broadcasts.
The result would be that the radio station would find
itself between the courts and the FCC. . . .

Mr. O'Hara. Does the gentleman think the Congress
could pass an act which would amend and change the
police powers of the States as affecting libel or
slander?

Mr. Horan. I am not sure about that, but I do know
that you have interstate, even national broadcasts
which come within the purview of the National Govern-
ment in the matter of the morals concerned in any such
broadcast; and I believe that we will have to make a
final, factual, and statutory determination one way or
the other after considerable study until we can answer
that question authoritatively. . . . We must do what
we can to clarify the status of radio stations. Some
of them are going to refuse to carry political broad-
casts, or so they tell me, if this matter is not

61

clarified. I would simply relieve them Of a lot of
that liability, which should be the individuals, so
they could feel free to go ahead. . . . something
must be done to correct what is generally considered
to be an intolerable situation in the present Com-
munications Act of 1934. We should keep in mind
that whatever we do here we will have to finally
meet this problem in some succeeding session of the
Congress.1

Following a short speech by Mr. McCormack, in support

of the Horan idea of no censorship and no liability on the

part of the station, Mr. O'Hara issued his major defense of

his amendment.

Mr. O'Hara. . . . I think . . . In the first place,
(Mr. McCormack) expressed his views that he resented
censorship and therefore, under the Horan bill,

which he favored and which I doubt the constitution-
ality of very much, he felt it was wrong to censor,
no matter what the statement was. This is a radio
station which broadcasts all over the country. Why
should it not apply to radio stations? If-a news-
paper took a political advertisement that was libel-
ous, it would be responsible if it carried it in the
newspaper. Here is the great instrumentality of the
radio. This (Horan Amendment) gives the political
candidate the right to come on there and speak in
whatever partisan or political sense he wants to.
What he may say may affect his political Opponent.

If it is defamatory or libelous or slanderous, which—
ever it may be, under certain decisions it is subject
to a charge of being libelous or slanderous. But the
point is that the damage is done after that instru-
mentality has been used.

I think probably every one of us as political
candidates has been solicited at double the commercial
rates to take all the time we can on the radio. Let
them take some of the responsibility. . . . The only
right of censorship that my amendment gives is the
right to eliminate defamatory or Obscene matter.
Defamatory matter means libelous or slanderous matter,
not the partisan statements or the vieWpoints of the
gentleman from Massachusetts (Mr. McCormack) or any
other political person speaking upon a political
subject.16

62

Debate over these two amendments continued and re-
flected the complex problem which they raised. When the
votes were counted, the Horan amendment was adopted and
placed as part of Section 315 in the bill (S. 658) which
later passed the Senate. As we have seen, all the debates
were purely academic, for this section on censorship was com-
pletely killed in the House Senate Conference Committee.
The only thing most congressmen could agree upon was that a
basic problem existed in this area of broadcast law. How—
ever, the committee felt compelled to postpone any direct
action towards the solution of the problem until full and
thoughtful hearings could be held on the possible solu-
tions.17 Today the broadcaster is still waiting for this

thoughtful legislative action.
Fair Political Broadcasting Act of 1959

In May of 1959 another in a long line of attempts to
free the licensee of this liability under Section 315 was
introduced in the United States Senate, as Section 3(d),
within the Fair Political Broadcasting Act of 1959 (S. 1858).*
This bill was introduced by Senator Hartke with the purpose
to "revise, extend, and otherwise improve the Communications
Act of 1934 (and) to bring into focus and more proper per—
spective that section Of the law governing political broad—

casts."19 If acted upon it would have, among other things,

 

*See Appendix F for full text.

63

provided that ". . . no action, either civil or criminal,

(could) be maintained by any person in any court against any
licensee or agent or employee Of any licensee," for material
aired by political candidates, unless of course the station

was involved further or had intended to defame.20

The Port Huron Case and the Courts

Long before this unsuccessful attempt, the nation's
broadcasters realized that they would have to turn to the
courts of the land and state lawmakers rather than relying

on Federal legislative action. The 1948 Port Huron Decision

 

on the part of the Federal Communications Commission Offered
the broadcasters a way out. In their ruling, radio station
WHLS of Port Huron, Michigan, was found guilty of violating
the Communications Act of 1934 by censoring the campaign
speeches of a candidate for municipal judge. To support
this decision the Commission had stated:

We are of the Opinion that the prohibition of Section

315 against any censorship by licensees of political

speeches by candidates for Office is absolute, and no

exception exists in the use of material which is either

libelous or might tend to involve the station in an

action for damages.21

As we have seen earlier the Commission stipulated

that since the stations had absolutely no power Of censor-
ship in this area, they could not be held liable for any
utterances.

In making this decision the Commission was aware

that years earlier the Nebraska Supreme Court had reached a

64

contrary decision in the case of Sorenson v WOod (1932), 123

 

Neb. 348. In this case it was ruled that Congress had not

intended to prevent a broadcaster from censoring libelous re-

marks and that he was liable for the remarks Of a candidate
22

while making a political broadcast.

For the few years following the Port Huron Decision,

 

the Federal Communications Commission let it be known that
it would follow a more lenient course and wait for the courts
to pass on the legal issues involved and to give Congress a
chance to enact new legislation. In this regard the Com-
mission instructed the licensees that if they acted ration-
ally, and fairly to all candidates and parties they would not
lose their licenses even if they did censor defamatory state-
ments. The Commission kept this promiSe in the case of
radio station WGOV in Valdosta, Georgia. WGOV had been
charged with the censoring of a political speech Of such
references to an opponent as "pistol toten criminals," "fugi-
tive from justice," "jail bird," and "big slew-footed ox."
Its licensing was set for a hearing but it was renewed.23

If the Federal Communications Commission expected
any immediately conclusive action on the part of the courts
or Congress, it must have been quite disappointed. As we
have seen, the Congress was unable to resolve the division
of thought within its ranks to pass any new legislation. In

the field of judicial review the results were contradictory.

A three judge Federal District Court in Houston, Texas in

65

1948 held that the Federal Communications Commission had
merely stated its opinion as to the meaning of a statute and
that the decision (Port Huron) was not an order having the
force of law. They added, "We think it doubtful that the
Commission would have power to lay down a binding rule or
regulation on the nature of that expressed in its opinion."24
On the other hand, two years later the United States
District Court, of the Eastern District of Pennsylvania
ruled that since the Port Huron Decision had denied the
power of censorship to the defendent, it could not be held
liable under Pennsylvania law. This law stated "a broadcast-
ing station cannot be held for damages for remarks in a
broadcast made by others than its own agents or employees un—

less there is fault Of some kind on its part."25

Industry Reaction

 

All the while, the Federal Communications Commission
was a target from both sides. The regular practice of the

broadcasters prior to the Port Huron Decision was to screen

 

all up-coming political talks and delete any Objectionable
materials. However, the Commission had taken a stand to pre—
vent this practice. The courts and Congress, however, had
not provided the broadcasters with any protection. The con—
fusion had prompted Broadcasting Magazine to advise the
industry to : "Do as you have done. Accept no speech that

is even borderline libel. If possible get candidates to

66

agree in advance to protect you from damage suits. Act in
good faith. Let the Federal Communications Commission sweat
it out.“26

A few peOple suggested that to protect themselves,
broadcasters refuse to allow any campaigner to use their
facilities. This threat, however, was never taken too
seriously, for broadcasters, generally, weren't eager to give
up substantial income derived from political broadcasting.
Also tradition had called for the broadcasting of campaignes
as part of a station's obligation to operate in the public
interest. To ignore this tradition might well result in re-
action in Congress which would produce new and possibly more
distasteful regulations.

By 1951 the Commission had heard a lot of talk, but
there was still no positive action from either the courts or
Congress. As a result, in that year, it announced that it
would begin enforcing the law as it had interpreted it in the
Port Huron Case:

Hereafter we will not accept the plea Of doubt and un-
certainty in the state of law as a reason for not ad-
ministering the law as we read it. NOr will we ac-
cept the argument that state statutes or common law
on the subject of libel in someway supplement or modi-
fy the unqualified pronouncements Of Congress on the
use Of the interstate facilities of radio by candi-
dates in making political broadcasts. 7

In response to this the industry developed a new

pattern Of procedure. It generally became the common

practice for stations to ask candidates for scripts of their

67

speeches in advance of air time. At that time, offensive

and doubtful language was called to the attention of the
candidate and a change urged. Discussion and persuasion, in-
stead of coersion, became the chief protective tool of the
broadcaster. Just the same, as the decade of the 1950's
rolled on, the broadcaster still had no concrete protection
against the off-hand remark of a politician or the ad-lib
remark of an unscripted discussion program.

With the election year pressure off, in 1953, the
National Association of Broadcasters changed its stand. In
that year it announced that it would ask Congress to delete
completely the "no censorship" part of the law. In this
action it hoped that broadcasters would get control over
what went over the air. The claim was made that in order to
serve the public interest broadcasters should have power to
prevent defamation; that they were responsible people who
could be trusted not to abuse this power. As could be ex-
pected, Congress took a very dim View of giving power to

broadcasters to censor their speeches.
State Action

In a more positive vein the National Association of
Broadcasters also urged the broadcasters to press for legis-
lation in their individual states which would limit their
liability in political cases. This approach received a more

favorable response. Although the results were varied, most

68

of the states acted. A few states gave the station complete
exemption from liability in political campaign speeches.
Others more commonly relieved stations of liability if they
had exercised due care in preventing the Offense. In a few
states it was made law that the plaintiff must prove a
station negligent before he could recover damages. Also, a
few states required the plaintiff to prove actual malice.28
In all such cases the speakers were personally held liable

for their defamatory statements.
Supreme Court Action - 1959

Finally in 1956 the basic tenent of the Port Huron
.gppp was directly challenged. Station WDAY-TV in Fargo,
NOrth Dakota, was sued by a farmers' union on the grounds
that it had been libeled on the air by a candidate who said
that the union was tainted with communism. The station's de-
fense was that it could not be held liable for any uncensor-
able material broadcast Over its facilities, and cited the
1948 Federal Communications Commission decision. WDAY won
this case, and it was upheld by the North Dakota Supreme
Court and by the United States Supreme Court in 1959.
Prior to support by the United States Supreme Court,
the North Dakota Supreme Court had held that:
. . . since (the) power of censorship of political
broadcasts is prohibited it must follow as a corol-
lary that the mandate prohibiting censorship includes

the privilege Of immunity from liability for defama-
tory statements made by the speakers.29

69

In upholding this position the Supreme Court had to
override the petitioner's (the farmers' union) argument that
Congress had continually defeated any attempt to write into
the law this type Of liability immunity. To this the court
majority opinion answered ". . . whatever adverse inference
may be drawn from the failure of Congress to legislate an ex-

press immunity is Offset by its refusal to permit stations

to avoid liability by censoring broadcasts."30

The conclusion of this majority opinion must have
been sweet music to the ears of all broadcasters. For at
last, here in black and white, the U.S._Supreme Court re-
moved the weight of liability from the broadcasters' drooping
shoulders, and, if nothing else, provided them with at least
one concrete hand-hold in an area Of regulatory quicksand.
The Court stated:

. . . We are aware that causes of action for libel
are widely recognized throughout the states. But we
have not hesitated to abrogate state law where satis-
fied that its enforcement would stand "as an Obstacle
to the accomplishment and execution of the full pur-
poses and objective of Congress.31 Here, petitioner
(Farmers Union) is asking us to attribute to Section
315 a meaning which would either frustrate the under-
lying purpose for which it was enacted, or alterna-
tively impose unreasonable burdens on the parties
governed by that legislation. In the absence of clear
expression by Congress we will not assume that it de-
sired such a result. Agreeing with the State Courts
Of NOrth Dakota that Section 315 grants a licensee an
immunity from liability for libelous material it
broadcasts, we merely read Section 315 in accordance
with what we believe to be its underlying purpose.32

This momentous decision for United States broadcasters

finally began to settle the waters which the Commission had

70

churned up in 1948. The Port Huron Case raised questions
which have never been answered by our Federal lawmakers.
And although recent court decisions appear to have freed the
broadcaster of liability in political cases, the best advice
for the broadcaster is still provided in a 1966 edition of a
handbook on Federal Communications Commission rules and regu-
lations, which says:
However, due to inconsistencies in case law, it still
seems advisable, where local law does not provide com—

plete protection, for the broadcaster to Obtain his
own protection via libel and slander insurance.3

lo.

11.

12.

13.
14.
15.
16.

17.

18.

19.

20.

71

FOOTNOTES - CHAPTER III
U.S., Congressional Record, 69th Cong., lst Sess., 1926,
LXVIIfiPart 11, pp. 12501, 12502.

U.S., Congressional Record, 74th Cong., lst Sess., 1935,
LXXIX, Part 13, p. 14399.

Ibid.

Elmer E. Smead, Freedom of Speech bpradio and TV
(washington, D.C.: Public Affairs Press, 1959), p. 24.

 

Broadcasting and the Bill of Rights (Washington, D.C.:
National Association of Broadcasters, 1947), p. 243.

 

Op. cit., Smead, pp. 23,24.
Ibid., p. 24.
gpgoadcasting Magazine, May 10, 1948, p. 4.

U.S., Congressional Record, 81st Cong., 2nd Sess., 1950,
XCVI, Part 1, p. 839.

Ibid.

U.S. Congress, House, Report on Publicygills etc., Vol.
III, 73rd Cong., 2nd Sess., 1934, Rept. #1850, p. 2.

U.S., Congressional Record, 82nd Cong., 2nd Sess., 1952,
XCVIII, Part 6, pp. 7401, 7402.

Ibid., p. 7402.

 

Ibid.

 

Ibid., p. 7403.

 

Ibid., p. 7412.

 

U.S. Congress, House, Miscellaneous Reports, Vol. IV,
82nd Cong., 2nd Sess., 1952, Rept. #2426, p. 21.

U.S., Congressional Record, 86th Cong., lst Sess., 1959,
CV, Part 6, p. 7408.

Ibid., p. 7404.

Ibid., p. 7408.

21.

22.

23.
24.
25.
26.

27.

28.
29.
30.

31.

32.

33.

72

Op. cit., Smead, pp. 23, 24, and also Radio Regulations,
Vol. IV, p. 1.

James M. Herring and Gerald C. Gross, Telecommuni-
cations: Economics and Regulations (New York: McGraw-
Hill Book Company, Inc., 1936), p. 174.

 

Op. cit., Smead, p. 27.

.lPi§°: p. 24.

.lhig" pp. 24, 25.

ggpadgasting Magegipe, February 8, 1948, p. 50.

Op. cit., Smead, p. 27, and also Federal Communications
Commission Release (Mimeo.), NOvember 26, 1951, p. 5.

Op. cit., Smead, p. 26.

Farmers Union v .EQAX, 360 U.S. 248, p. 527.

.lhlg°’ p. 532.

Bepplehemp§tee1 Company v New York ppbor goard, 330 U.S.
767, 773;_§lll v Florida, 325 U.S. 538, 542. Also San

ggpqo guilding Trades Council v Gormon, 359 U.S. 236;
California v Taylor, 353 U.S. 553.

Op. cit., Farmers Union v WDAY, p. 335.
Verne M. Ray, Interpreting F.C.C. Broadcast Rules and

Regulations (Thurmont, Maryland: Tab Books, 1966),
p. 85.

CHAPTER IV

EQUAL TIME AND NEWS BROADCASTING

1955 - 1960

The January 29, 1959 United States Supreme Court de-
cision in Farmers Union v WDAY Inc. settled just in time the
broadcasters troubles concerning political candidate censor—
ship and station liability. Three months earlier the Federal
Communications Commission had Opened another can of worms,
bringing to a head a problem which had been festering for

several years. On February 19th in its landmark Lar Daly De-

 

cision, the Federal Communications Commission had ruled that
"an appearance by a political candidate on a newscast not
initiated by him constitutes a 'use' of the stations facili-
ties by the candidate within the meaning Of Section 315 of

1 The distastefulness of

the Communications Act of 1934."
this move can be measured by the outcry from the industry
and more so by the fact that before the year was out Congress
had acted to correct the situation.

Prior to this decision an attempt to exempt news
shows from the equal time requirement had failed to win sup-

port in Congress. In June of 1955, S. 2306 and H.R. 6810

were introduced in their respective chambers. These bills

73

74

called for the amendment of Section 315 by the addition Of

the following:
Appearance by a legally qualified candidate on any
news, news interview, news documentary, panel dis—
cussion, debate or similar type program where the
format and production of the program and the par-
ticipants therein are determined by the broadcast—
ing station, or by the network in the case of a
network program, shall not be deemed to be use of a
broadcasting station within the meaning of this
subsection.

In 1955 the pressure, which was later to be applied
on Congress to make such a change, was absent. The idea of
the exemption of news programs from the equal time require-
ment was new, and study was needed. Senator Payne intro-
duced the bill in the Senate but warned that the matter,
"should be given careful study . . . before any legislation."
He added further:

Although the difficulties caused the broadcasting
industry by the present law are readily apparent,
those difficulties should not be resolved in such a
way as to infringe on equal opportunities to broad-
cast time by legitimate candidates for public office.

While the Congress was beginning to take this
problem to its committee rooms, the actions of the Federal

Communications Commission were such as to warrant positive

congressional action.
The plondy Case

In the winter of 1957 the Federal Communications Com—
mission had refused a request by Allen H. Blondy for equal

time on a Detroit television station. Mr. Biondy, then a

75

candidate for Judge of the Common Pleas Court of the City of
Detroit, claimed that he was deserving of this time because
one of his Opponents had been seen on a local news program.
The program, one of WWJ-TV's regularly scheduled newscasts,
had aired a filmed coverage of the swearing in ceremonies Of
a number of newly appointed judges to a state court, one of
whom was Elvin L. Davenport, a legally qualified candidate
running for the same post as Mr. Blondy.4
The Commission held that the appearance of Mr.

Davenport on WWJ-TV did not amount to a "use" of the station
by the candidate, and therefore did not require the station
to give equal Opportunities to the other candidates. In a
letter to Mr. Blondy dated February 4, 1957, the Commission
explained its action:

There is no evidence before us that Mr. Davenport in

any manner or form directly or indirectly initiated

or requested either filming of the ceremony or its

presentation by the station, or that the broadcast

was more than a routine news broadcast by WWJ-TV in

exercise of its judgement as to newsworthy events.

In our Opinion . . . WWJ-TV did not "permit" . . .

a legally qualified candidate . . . for public Office

to use a broadcasting station by showing and re-

ferring to Mr. Davenport on its routine newscast

. . . therefore, it is under no obligation to

afford equal opportunities to all other candidates
for the Office for which Mr. Davenport has filed.5

The par Qalyygecision

Two years later in the now famous Lar Daly Decision

the Commission completely reversed directions and ruled:

76

An appearance by a political candidate on a newscast
not initiated by him constitutes a "use" of the
stations facilities by the candidate within the mean-
ing Of Section 315 of the Communications Act.6

This decision grew out of a case initiated by Mr.
Lar Daly, a perennial candidate who in the winter of 1959
was a candidate in both the Republican and Democratic pri-
maries for mayor of the city of Chicago. His Opponents in
this election were Democrat, Richard J. Daley, the incumbent
mayor, and Republican, Timothy P. Sheehan. Prior to the
February 24th election date, Lar Daly filed a complaint with
the Federal Communications Commission alleging that certain
Chicago television stations had broadcast film clips showing
his opponents performing a variety of functions and that
they had refused his request for equal broadcasting time
over their stations.

The film clips in question each averaged less than a
minute in length. They involved an interview with the Re-
publican candidate as to his reasons for entering the mayor—
ality race; films of both candidates filing their petitions
for candidacy; Mayor Daley speaking in connection with the
selection of the speaker Of the Illinois House of Repre—
sentatives; the picking of the site of the Democratic National
Convention; and the broadcasting of the candidates making
their acceptance speeches. In addition, there were two
short segments dealing with the incumbent Mayor greeting the

President of Argentina and the mayors' official proclamation

Opening the annual March of Dimes Campaign.

77

In way of explanation Of the decision which shocked
the nation's broadcasters the Commission stated:

. . . This interpretation is compelled by the legis—
lative history of the Section and by the possible
benefits and adVantages whiCh occur in favor of a
candidate who is given exposure on televiSion. While
news presentation by radio and television stations is
of inestimable value to the public interest, a station
licensee does not have the same freedom of choice in
presenting the news that a neWSpaper enjoys. Radio
and television stations employ the public domain and
their use thereof may properly be limited by Congress.
The word "use" in Section 315 is synonymous with "ap—
pearance" and the word appearance is essentially the
same as "exposure." The problem Of equalizing ad-
vantages through exposure of candidates on television
and radio newscasts is not one to be resolved through
application of the overall "public interest" standard
of fairness in presenting balanced programming . .

The Commission continued to assert that its interpre—
tation in no way involved any violation of freedom of speech
or the press, nor did it bring about any discrimination be—
tween candidates in violation of the 5th amendment.

The industry moved immediately to pursuade the Com-
mission to reconsider and reverse its ruling. Columbia
Broadcasting System, National Broadcasting Company, and
Westinghouse filed documents with the Federal Communications
Commission in argument against this strict interpretation of
Section 315. On June 15, 1959, the Commission issued a 41
page decision upholding its original decision. It traced in
detail the legislative history of Section 315 and dealt in
great length with the arguments put forth by its petitioners.

Referring to the importance of the role of television in

political campaigning the Commission stated:

78

. . . the candidate has several roles in which he may
appear on television. The most obvious appearance is
as a candidate campaigning for Office. Of no less
importance is the candidate's appearance as a public
servant, as an incumbent Office holder, or as a pri-
vate citizen in a non—political role. It is, of
course, in these latter roles that questions are

raised about the applicability of Section 315 of the
Act. while not always indiSpensable to political
success, for some purposes television may enjoy a
unique superiority in selling a candidate to the

public in that it may create an impression of immediacy
and intimate presence, it shows the candidate in action
and it affords a potential for reaching wide audiences.i

The effect of the decision was to place pressure on
Congress for legislative action to alter this section. This
pressure appears to be exactly the result the Commission had
wanted. The wording of their opinion made it clear that the
problem was placed squarely in the laps of Congress.

. . . It may, Of course, seem that such a holding is
harsh or underly rigid and that within the area of
political broadcasts, it has a tendency to restrict
radio and television licensees in their treatment of
campaign affairs. If this be so, the short answer is
that such a result follows not from any lack of sympathy
on our part for the problems faced by licensees in com-
plying with Section 315, which we are not at liberty

to ignore. As the Court of Appeals Observed in Felix v
Westinghouse 186F. 2dl, ”we must accordingly take the
statute as the Congress intended it to be and leave it
to that body to resolve the questions of public policy
involved in the one construction or the other."1

 

Congressional Reaction

By this time action was alreadybeing initiated in
Congress. On May 21, 1959, Senator Case of South Dakota
echoed the feeling of the industry and many governmental
leaders. In referring to the_Lar Daly Decision, the Senator

said:

79

. . The President has termed Section 315 "ridiculous."
Mr. John Doerfer, Chairman of the Federal Communications
Commission has called for repeal of Section 315. At-
torney General Rogers' recent memorandum urged that the
Federal Communications Commission reverse its equal time
ruling in the Lar Daly case.

We pride ourselves on freedom of speech and press in
this country. But a ruling which can indirectly in-
hibit the handling of news would be as injurious to a
free press and free speech as consorship.

To require equal time for all candidates in the
coverage of news is as absurd as requiring of a news-
paper equal space to all candidates, including minor
factions.

It would make candidates the judge of news values;
abuse would be inevitable.12

A short time before, bills to rewrite Section 315 to
exempt news broadcasts from the equal time requirement had be-
gun to appear before both houses of Congress. On March 9,
1959, H.R. 5389 was introduced to the House by Mr. cunning—

ham.13 In May of the same year Senator Hartke presented a

bill, S. 1858, to his colleagues in the Senatef"l4 Both of
these were unsuccessful, but the ground work had been laid and

it was only a matter of time before Congress would take posi—

tive steps to correct the situation.
Section 315 is Amended — 1959

Finally on July 22, 1959, Senator Pastore brought
forth from committee the report #562 on Senate bill S. 2424.
The bill dealing entirely with Section 315 read:

Be it enacted by the Senate and House of Representa-
tives Of the United States of America in Congress as-
sembled, That Section 315 (a) of the Communications
Act of 1934 is amended by inserting at the end there-
of the following: "Appearance by a legally qualified
candidate on any newscast, news interview, news

 

*Text of Sec. 3 (e) in Appendix F.

80

documentary, on-the-spot coverage of news events or
panel discussion, shall not be deemed to be use of a
broadcasting station within the meaning of this
subsection.

Sec. 2. (a) The Congress declares its intention to ex-
amine the amendment to Section 315 (a) of the Communi-
cations Act of 1934 made by the first section of this
Act, at or before the end of the three-year period be—
ginning on the date of the enactment of this Act, to
ascertain whether the remedy provided by such amend-
ment has proved to be effective and practicable.

(b) To assist Congress in making the re-examination of
the amendment made by the first section of this Act,
the Federal Communications Commission shall make a re-
port to the Congress, within 15 days after close of
each of the following two years, setting forth (1) the
information and data used by it in determining ques-
tions arising from or connected with such amendment,
and (2) such recommendations as it deems necessary to
protect the public interest and to assure equal treat-
ment of all legally qualified candidates for public
officisunder Section 315 of the Communications Act of
1934.

The Committee felt that although it agreed with the
basic purpose of Section 315, the strict line held by the
Federal Communications Commission in the Lar Daly case, would
“tend to dry up meaningful radio and television coverage of
political campaigns." The report continued:

No one will question that these categories of programs
exempted by this legiSlation serve to enlighten the
public and that a broadcaster who offers news, news
interviews, new documentaries, onéthe—spot coverage of
.news events, or panel diScussion programs is discharging
his obligation to operate in the public interest by
making such programs available.

In conclusion the committee expressed its belief that
the bill would provide broadcasters with the opportunity to
serve the public and that adequate safeguards had been placed
in the bill to assure that broadcasters did not abuse the

. . l7
pr1V1lege.

81

The Senate debate on S. 2424 began on July 28, 1959.
During these deliberations three amendments were proposed,
the first by Senator Engle. This amendment would have struck
out the words, "or panel discussion" in the main section of
the bill. Senator Engle, who was basically in favor of re-
versing the Lar Daly Decision, felt that the bill as read
went too far. He was in agreement that news shows etc.
should be exempt from the equal time provision, but not panel
discussions. He explained:
. . . panel discussions go to the point where it is
possible to intrude into the field of favoritism and
thus violate the basic intention of the law, the pur-
pose for which it was passed and for which it has
been on the bOoks for a period of 32 years, during
which time there have been no complaints about it, and
no difficulty with it, until the Lar Daly,Decision.18
Senator Javits expressed his Opinion against the pro—

posed amendment in this manner:

I think we should preserve panel discussions, and not

make the requirement ridiculous. I refer to the oppor-
tunity of Americans to hear face-to-face debates by
Opponents . . . Let us not fOrget that Congress is a

dynamic agency, and if the broadcasting systems abuse
their facilities, Congress can adopt another fsgu-
lation by passing a bill to that effect . . .

Debate continued along these lines until the alloted
time limit was reached, and the question was called. The
amendment by Senator Engle was agreed to and the words "or
panel discussion," were removed from the main section.20

The second amendment proposed to this bill was intro—

duced by Senator Long of Louisiana. His amendment would

have struck out most of the section labeled 2 (a) and have

82

inserted the following at the end of the bill, "Section 1 of
this Act shall expire on June 30, 1960."21

In explaining his amendment, Senator Long expressed
his feeling that the bill would permit "great discrimination”
on behalf of particular candidates if a station so desired.
He went on to explain that because of the automatic expiration
date, if the principle involved did not work out and the
broadcasters abused their privileges the bill would auto—
matically expire at the appointed time. He reasoned that it
would be much easier for Congress to extend the law if it
worked out rather than try to reverse it later if it did not.
He feared that it would be very difficult to, "overcome the
tremendous inertia which (would) develop to try to get a
bill through the Congress to amend the Communications Act,
over what might be the overwhelming opposition of NBC and
CBS and all the affiliated stations."

Despite these feelings, Senator Long could not con-
vince enough of his Senatorial colleagues to stand with him.
His amendment was defeated.22

The third and final amendment was proposed by Senator
Proxmire. This change would have added to the first sub-
section of the bill a statement reading:

. . . but nothing in this sentence shall be construed
as changing the basic intent of Congress with respect
to the provisions of this act, whiCh recognizes that

television and radio frequencies are in the public

dOmain, that the license to operate in such frequencies
requires Operation in the public interest, and that

83

in newscasts, news interviews, news documentaries,
and onethe-spot coverage of news events, all sides
of public controversies shall be given as equal an
opportunity to be heard as is practically possible.23
Senator Pastore followed the reading with the sug-
gestion that in the last sentence of the amendment the phrase
"as equal an opportunity" be changed to read "as fair an op-
portunity,"; to which Senator Proxmire agreed.24
Following statements by Senator Hartke that the
amendment served only to confuse the issue further, and
Senator Javits in favor of the measure, the question was
called and the Proxmire amendment was passed.25 Following
this action, there being no more amendments presented, the
bill was read for the third time, voted upon, passed, and
sent on to the House.26
On August 18, 1959, Representative Harris asked for
consideration of S. 2424 since it was very similar to H.R.
7985 which had just been passed by the House. Mr. Harris
then prOposed an amendment that would strike out all of S.
2424 after the enacting clause and add the text of H.R.

7985.27

The bill was therefore cut down to read simply:

Appearances by a legally qualified candidate on any
bona fide newscast (including but not limited to po-
litical conventions and activities incidental there-
to), where the appearance of the candidate On such
newscast, interview, or in connection with such
coverage is incidental to the presentatiOn of news,
Shall not be deemed to be use of broadcasting stations
within the meaning of this subsection.

84

The amendment was agreed to at once and the bill was
passed.

The following day the Senate moved to disagree to the
House amendment.

The resulting conference report was submitted for
the approval of the House on Wednesday, September 2, 1959.

In conference the delegdtes fromboth houses of the Congress
produced a bill which contained most of the main points
placed in the Senate bill, only in slightly different form;
however, a second section was added which removed the three
year limit on congressional reexamination.

That day, following a lengthy defense of the bill by
Representative Harris, the bill passed the House by a vote
of 142 to 70. The next day Senator Pastore submitted the
conference bill to the Senate and after a full explanation
of all its provisions, the bill passed the Senate.29 On
September 14, 1959 President Eisenhower signed S. 2424 and it
became public law 86-274.*

This law exempted from the equal time requirement any
"appearance by a legally qualified candidate on any, bona
fide newscast, news interview, news documentary, or on—the-
Spot coverage of a news event." It also added that it was
Congress' intention to "reexamine from time to time," the
amendment to see if it had proved to be "effective and

practicable." Finally the last portion of the law instructed

 

*Complete text of Section 315 in Appendix G.

85

the Federal Communications Commission to include in its
annual report to Congress all information and any recommen-
dations concerning the new amendment.3O

In June of 1960 the passage of Senate Resolution 305
established a watch dog sub-committee to study the effects
of the 1959 change in Section 315. At this time many
congressmen felt that a sub-committee was needed to prevent
any broadcasters from taking unfair advantage of this loosen—
ing of 315 requirements.31

This committee with the assistance of the Federal
Communications Commission has proposed no new regulations
as a result of their study. In fact, since 1959, in their
Annual Reports the Federal Communications Commission had
constantly repeated that it has encountered no "serious
problems in applying the 1959 amendment to Section 315 in
cases before it, (and) accordingly, is not making any recom—
mendation on the subject."32

As the 1950's ended and we embarked on a new decade,
the liberalizing effects of the 1959 amendment could be felt.
The Congressional action encouraged the broadcaster to be-
lieve that at last he was beginning to be trusted in the
delicate field of political broadcasting. Statements like
the following from Senator Pastore served to strengthen this
belief:

Very frankly . . . I think the broadcasting systems
today have reached a position of integrity and good

86

judgement so that they can very well parcel out time
without the assistance of any law.33

As a result, as one decade gave way to the new, the
old beliefs on the strict regulation of political broadcast—

ing seemed to be giving away to those of a more liberal

point of View.

3.
4.
5.
6.
7.
8.
9.
10.

11.

12.

13.
14.

15.

16.
17.
18.
19.
20.
21.

22.

87

FOOTNOTES - CHAPTER IV

Pike and Fischer,_§adio Regulations, XVIII, p. 701.

 

U.S., Congressional Record, 84th Cong., lst Sess., 1955,
CI, Part 6, p. 8208, Part 7, p. 9152.

 

Ibid., Part 7, p. 9153.

 

 

 

Op. cit., Radio Regulatipns, XIV, p. 1199.
Ibid., p. 1200.

Op. cit., Radio Regulations, XVIII, p. 701.
.lhl§°: pp. 703-704.

Ibid., p. 701.

 

.Ibid., pp. 701-744.

 

Ibid., p. 713.

 

Ibid., p. 736.

 

U.S., Congressional Record, 86th Cong., lst Sess., 1959,
CV, Part 7, p. 8746.

Ibid., Part 3, p. 3675.

 

,Ibid., Part 6, p. 7404.

 

U.S. Congress, Senate, Senate Miscellaneous Reports on
~Publichills, IV, 86th Cong., lst Sess., 1959, Rept.
#562. PP. 1-2.

Ibid‘, po 10-

Ibid., p. 14.

Op. cit., Cong. Rec., Part 11, p. 14451.

Ibid., p. 14452.

 

 

Ibid., p. 14453.

 

Ibid., p. 14456.

 

23.
24.
25.
26.
27.

28.

29.

30.

31.

32.

33.

88

Ibid., p. 14457.

 

Ibid., p. 14462.

 

Ibid., p. 14463.

 

8'
P.
9‘

Part 13, p. 16260.

 

U.S. Congress, House, House Miscellaneous Reports on
Public Bills, VI, 86th Cong., lst Sess., 1959, Rept.
#1069, pp. 3-4!

Op. cit., Cong. Rec., Part 14, pp. 17782, 17832.

Ibid., p. 17777, and U.S. Statutes at Large, LXXIII,
p. 557.

U.S., Congressional Record, 86th Cong., 2nd Sess., 1960,
CVI, Part 10, pp. 12517, 12518.

U.S. Federal Communications Commission, 28th Annual Re-
pprt (washington, D.C.: U.S. Government Printing
Office, 1962), p. 49. ,

Op. cit., Cong. Rec., Part 10, p. 12520.

 

CHAPTER V

SECTION 315 IN THE 60's

1960 - 1965

Since the beginning of this decade, the “equal time"
requirement in Section 315 has drawn a great deal of at-
tention from our law makers. Congressional attempts at
change have been frequent. Amendments have fallen into
three distinct groups. First, those to eliminate permanently
the equal time requirement of the section; second, those to
lift temporarily the requirement for certain candidates; and
third, those to limit the equal time requirement to majority
candidates and at the same time require from the licensee
free broadcast time for political programs.

Of the three, attempts to obtain temporary repeal of
the equal time clause when applied to the leading candidates
have been most numerous. All this type of legislation owes
its existence to the 1960 Joint Resolution which temporarily
allowed the now famous Kennedy-Nixon debates.

Just prior to this action by the Congress, Senator
Magnuson and others had introduced in the Senate a bill to

deal with this question.1 Introduced on March 10, 1960,

89

90

this bill, S. 3171,* would have provided that certain facili—
ties be given to the presidential candidates of the major
parties without charge, during the presidential election cam-
paign.2 Generally this bill would have provided that each
network and station give one hour of free time each week to
"major party“ candidates for president. This provision would
have been in effect during the eight week period beginning
September 1 preceding all presidential elections. Also, a
one hour period would have been reserved for the Monday pre-
ceding the day of the election.

The bill defined "major party" candidates as those
who represented political parties which received no fewer
than 4% of the total popular vote in the previous presidential
election. Judging from past presidential elections this 4%
figure would in effect have precluded all minority parties.
In fact, only once in the past 40 years has the total vote
of all minority groups totaled more than 4%.**

Senator Magnuson along with a number of his colleagues
felt that the bill was a sorely needed piece of legislation.
Senator Smathers stated:

. . . the time (has) come when We (have) to make it
pOSSible for those who run for election to (the
presidency) in the United States to have an oppor-
tunity to go before all the people of the nation and

at one time develop their thinking on all the major
issues of the day.

 

*Complete text in Appendix H.

**See.Appendix I for total minority vote figures 1900-
1964.

 

91

In discussing the problems of determining whether or
not a political party was major or minor, and its rights
under this bill, Senators Pastore and Monroney had this
exchange:

Mr. Monroney... ... the suggested 4-percent provision
would seem to provide—-as I think any bill must—-a
chance for a third party to have this opportunity,
once a third party has been organized and established,
and once it has developed that much strength. Such a
third party would be entitled to time on the air, if
it had demonstrated that it had received a certain
percentage of the total pOpular vote in the last
election.

In other words, we dare not freeze out a third
party movement by making it impossible for its candi-
date to be heard.

Mr. Pastore. However, such a law must not be made too
liberal for then we would become involved in the
dilemma which has plagued the television and the radio
broadcasting stations, who have had great difficulty
in deciding to what extent to limit these
opportunities. ,

Finally Senator Church had hopes that such a change
in the law would help to lower the rapidly rising campaign
costs.

It seems to me that until we come to grips with the
problem of cost, we place the parties in jeopardy of
captivity to those organized groups within the country
that have the necessary sums of money to contribute.
So I think this bill works Constructively in two di-
rections.’ Firet, it makes it possible to have a cam-
paign Which focuses attention upon the issues through
the best means by which that can be done, namely, by
direct debate between the presidential candidates.
Second, it permits this debate to take place as a
public serVice, without the enormous expense which is
new entailed, and which tends to bind the two parties
to the large organized groups that alone have the
means to affOrd the heavy Cost. ~

Elections should be won, not bought. This bill
advances democracy in the best sense.

As would be expected, the broadcasting industry was

strongly opposed to any such type of government—controlling

92

legislation. They felt that their industry had matured to a
point where they should be relieved of the shackles placed
upon them by the "equal time" requirement. As a compromise
move, Congress in 1960 gave the broadcasters an Opportunity
to prove to the Congress and the public that they would oper-
ate fairly and with good conscience without this requirement.
Congress, however, in taking this step made it quite clear
that if the broadcasting industry didn't conduct itself in a
proper manner, legislation on the order of S. 3171 would be

forthcoming.
A Temporary Change - 1960

This legislation, known as Joint Resolution 207, was
brought to the floor of the Senate out of the Committee on

Interstate and Foreign Commerce by Senator Pastore on June 8,

1960.6) The resolution read:

Resolved by the Senate and House of Representatives
of the United States of America in Congress assembled,
that that part of Section 315 (a) of the Communi-
cations Act of 1934, as amended, which requires any
licensee ofra broadcast station who permits any person
who is a legally qualified candidate for any public
office to uSe a broadcasting station to afford equal
opportunities to all other such candidates for that
office in the use Of such broadcasting station, is
suspended for the period of the 1960 presidential

and vice presidential campaign with respect to '
nominees fOr the offices of President and Vice Presi-
dent of the United States. Nething in the foregoing
shall be construed as relieving broadcasters from the
obligation imposed upon them under this Act to Oper-
ate in the public interest. (a) The Federal Communi—
cations Commission shall make a report to the Congress,
not later than March 1, 1961, with respect to the ef—
fect of the provisions of this joint resolution.

.-__-__ __-g-

 

.73..“ _

93

In its report (S. Rept. 1539) the committee said
that the hearings had shown very little disagreement about
the need, importance, and urgency of such legislation. It
reported, however, that the basic disagreement arose over
the method of giving time to the major presidential and vice
presidential candidates. On the one hand many people be-

lieved the amount of time should be regarded as outlined in

_ Hg,

Senate bill 3171 which had been introduced earlier. On the

other hand, there were those who felt the time scheduling

should be left to the networks on a voluntary basis.8

wn---a—
-__.: 2 ‘_; 5... ’

The committee continued to say that the reason it
had adopted this original joint resolution was that it was
". . . impressed by the sincere desire of the broadcasters

to meet their obligation of public service in the national

political arena provided this obligation was voluntary."9

However, the committee issued this warning to the

networks:

If the broadcasters fail to measure up to their re-
sponsibility in this limited field or attempt to abuse
the discretion herein granted, the committee serves
notice that it will proceed to consider legislation
similar to S. 3171 in the next Congress.

The report was concluded by this statement of the
individual view of Senator Ralph Yarborough.

I do not agree with all the views expressed in the
majority report. In my opinion, the resolution, as
reported, does not contain sufficient safeguards to
insure fairness ind impartiality of treatment to
the candidates.1

94

On Monday, June 27, 1960 the resolution was brought
to the floor of the Senate by Senator Pastore. Following a
statement of explanation of the resolution, Senator Yarborough
expressed his Opinion as stated in the report. A portion of
the short exchange here sums up the debate.

Mr. Yarborough. Under the provisions of the Senate
joint resolution any station could grant to a candi-
date for the Presidency or a candidate for the Vice
Presidency any time it chose without Obligation to
grant any time to an opponent of either of these
candidates.

Mr. Pastore. That is correct under the joint reso-
lution, but the stations and networks would come under
the rules of fair and impartial treatment by all with
respect to their public service responsibility. I
think they would be in a difficult position when their
licenses came up for renewal if, to use a harsh word,
they betrayed the committee and the Congress by doing
what the Senator has suggested.

Mr. Yarborough. But there is no obligation for them
to grant an Opponent time.

Mr. Pastore. There is no legal obligation, and I

have already stated that.

Mr. Yarborough. They are free from all restraint.

Mr. Pastore. That is correct.1

Following this exchange and after getting Senator
Pastore's assurances that the network affiliates were bound
by the network agreement of fairness, Senator Yarborough
ended his move in opposition to the resolution. The question
was then taken and the Senate approved the resolution without
amendment.13

In the House on August 22, Representative Harris
moved for a suspension of the rules and the passage of the

resolution. Mr. Harris then explained the resolution and

presented to that body a letter from network officials

J!

w““-W _ __

95

expressing their good faith.14

Following some debate over
this expressed good faith, the question on the suspension of
the rules and passage of the resolution was called, and re—
ceived the required 2/3 majority.15

On Wednesday, August 24, President Eisnehower placed
his name along with those of House Speaker Rayburn and Vice

President Nixon thus opening the door for the "1960 Great De-

bates" between Richard Nixon and John F. Kennedy.
Lastinngffects of the 1960 Action

The effects of these debates are still being weighed
today. However, the precedent set by the passage of this
measure, along with the acceptable behavior of the networks,
has resulted in a series of bills calling for more temporary
as well as permanent suspensions of the equal time requirement.

On June 7, 1961, Senator Pastore introduced Senate
Bill 2035, which would have added to the list of candidates
not to be covered by the "equal time" requirement, those
running for United States Senate, United States House of
Representatives and Governors.l6 Senator Javits introduced
a similar joint resolution (S.J. Res. 140) on September 19,
1961, which would have been applicable to New YOrk City's
candidates for mayor, president of city council, and city
comptroller.17

Another attempt to temporarily alter Section 315 was

introduced by Senator Javits June 6, 1962, in the form of S.

96

J. Res. 196. This joint resolution was to make possible
television debates between major party candidates for United
States Senate and House of Representatives in the 1962 Con-
gressional elections.18 A month later a similar piece of
legislation was presented. S.J. Res. 209, introduced by
Senator Williams on July 18, 1962, would have gone a little

further than the previous measures.19

This joint resolution
would have done three things:

First, it would suSpend the equal opportunity or equal

time requirement of the Communications Act for the

1964 presidential and vice presidential campaign.

Second, it would suspend the equal time requirement

for the 1962 congressional and gubernatorial campaigns.

Third, it would direct the Federal Communications Com—

misssion to study the effect of the suspension On the

1962 and 1964 campaigns, the advisability of suspend—

ing or repealing or modifying the equal time require-

ment for future campaigns, and the need for establish—

ing standards with respect to any change in Section

315.2

Action on these measures was not forthcoming; but as
the 1964 presidential election approached, interest grew in
the possibility of another series of “Great Debates.“ Presi-
dent Kennedy had indicated that he would be willing to meet
his Republican opponent on a face to face broadcast. Under
these circumstances the Democratic majority in both Houses
of Congress generally favored providing legislation to make
these debates possible.
On February 11, 1963, House Joint Resolution 247 was

introduced to the House of Representatives by Mr. Harris.

This resolution, except for a word change and appropriate date

97

changes, was identical to the resolution which was passed

prior to the 1960 national election.*21

Supporters of this measure included both National
Political Committees, National Association of Broadcasters,
and all three major broadcasting networks. Its opponents in-

cluded the Socialist Labor Party, the International Brother-

hood of Teamsters, and the American Civil Liberties Union.22

Although a majority of the representatives favored this reso-
lution and were eventually to pass it, the arguments against
it were passionate. For the most part these arguments were
voiced in an effort to "protect" minority rights of free
speech.

Representative Williams, who was against the reso-_-
lution stated:

Mr. Chairman, if I had been told 20 years ago
that there would be legislation before this House
which had for its purpose a restriction on free
speech, I would have thought such a suggestion com-
pletely fantastic.

Voltaire has been quoted here many times, even by
those who support this legislation in this House when
he said, in effect, “I may not agree with what you say,
but I will defent to the death your right to say it."
This bill certainly cannot be reconciled in the light
of that Statement.

' As far as I am concerned any candidate, no matter
how minor he might be, so long as he is a legally
qualified candidate, has the same rights, privileges,
and immunities as any other candidate for the office
that he seeks, no matter how little his chances of
election may be. '

I hOpe this legislation, Mr. Chairman is defeated.23

 

*See Appendix J for Text of Resolution with House
Committee Amendments.

98

Although the basic philosophy of free speech and
minority rights behind these arguments against this resolution
were agreed to by all, those who favored the measure felt
that high campaign costs and small third party numbers, out
weighed idealistic concepts. A speech by Representative
Springer expressed this feeling.

. ... The purpose of this legislation is to get before
the American people the two nominees who have a chance
to be elected in 1964. That is about as practical
legislation as I know.

Mr. Chairman, this has been supported editorially
from coast to coast. I have not seen an editorial
against it. There may be some to which the Members
may refer, but all of the editorials I have seen, and
I think I have read them all on the rack out here,
have supported it. They supported it in 1960 and they
will support it in 1964 because they believe that is
the only way the American peOple can see the two candi-
dates Of the two major parties confront each other,
and they can then deCide after seeing them on television
which one of those candidates they want.24

Eventually, after defeating an amendment which would
have limited H.J. Res. 247 to joint appearances by the two
major presidential candidates, the House passed the measure
by a vote of 263 to 126, and sent it to the Senate for its
approval.

On September 1, 1963, the resolution was reported
out of committee favorably to the Senate.25 The committee
had made only two slight changes. First, it shortened the
period that the resolution would be in effect, from 75 days to
60 days prior to NOvember 3, 1964. This move was made be—

cause of the late summer date of the Democratic National

Convention, scheduled for August 24—28. Second, it removed

99

from Section 2 the requirement which would have required
broadcasters to provide information on rates charged for
political broadcasts.26

Debate on the measure was very limited, with no major
objections. Senator Pastore, on October 2, introduced it to
his fellow Senators stating that it was his belief “the
public interest (would) be served by the enactment Of this
bill."27 Senator Hartke expressed support for the bill, but
called for more permanent action and the complete elimination
of the equal time requirement from Section 315. Following
voices of support from a few more Senators, H.J. Res. 247
was passed by the Senate.2

Almost two months later the tragedy in Dallas, Texas,
had a profound effect on this legislation. The assassin's
bullet which killed President Kennedy also made Lyndon B.
Johnson President of the United States. As the months
passed, the new President adjusted to his office and the
American people, beginning to adjust themselves to the
terrible events which had passed, looked towards the 1964
national elections.

As the interest in the election increased, action on
H.J. Res. 247 was renewed. In February 1964, both Houses of
Congress appointed members of a conference committee to ex—

amine the measure and come to one accord.29 By May 19, the

conference report (H. Rept. 1415) was ready and presented to

100

the House. The report recommended that the House accept
both of the Senate amendments.

By the time the conference report was submitted to
the Senate on June 3, 1964, new opposition to the entire
resolution was beginning to be evident. As the weeks passed
with no action on the conference report, Senator Mansfield
was compelled as majority leader to explain that the holdup
on the bill was due to the lack of response from the Demo-
cratic National Committee as to its stand on the issue, since
the death of President Kennedy.30

Debate in the Senate began on August 11, 1964. Com-
plaints were raised by Republican Senator Colton that the
Democrats were keeping the resolution from a vote on purpose.
By this time it was generally known that President Johnson
was not interested in a face to face debate with the Republi-
can nominee, Senator Goldwater. So now the Democrats were
placed in an awkward position. The change in their leader-
ship brought a change in ideas, which would cause some of them,
in order to support the new party line, to vote against a
bill which they had supported under President Kennedy.

In pointing this situation out to the Senate, Senator
Colton stated:

I must say this plainly-—let the chips fall where
they may- I can see but one reaSOn why those who have
pushed this prOposal all the way alOng to its final
enactment are hesitating and holding, and that is

that they want to save the president of the United
States from simply saying "NO" when he can say that

101

without loss of respect or prestige on the part of
any citizen in the country.

In view of what has transpired this afternoon I
shall still, as a member of the minority, wait
patiently, in the hOpe that the distinguished majority
leader and those charged with the responsibility of
conducting the Senate will decide to permit the Senate
to vote on the conference report.

I wish also to add--and this is only an honest
statement, not in any sense a threat--that I do not
propose to be governed by the Democratic policy
committee.31

In answering this, Senator Pastore, who had been a
driving force in the passage of this resolution before Presi-
dent Kennedy's death, was a little less than enthusiastic.
Although he was still for the passage, he acknowledged that
the change of leadership had affected his thinking on the
problem of whether or not a president should be subject to
a debate with his opponent.

Mr. Pastore. I am one of those who believe that the
joint resolution would serve a good purpose. I am
not denying that. I am only saying that a cloud has
been cast over the issue on the question of personal
confrontation . . . the question of whether or not
the President of the United States should be sub-
jected to debate is quite serious. I am the One who
said in the committee hearing, when we were receiving
a report from the officials of the networks, that I
would question very much whether President Kennedy,
now that he was the President-—and this was shortly
after he was elected and inaugurated—-would be amen-
able to-a debate format.

That very question was asked of him at a news con-
ference. I believe he answered the question in the'
affirmative. That was his responsibility. That was
his decision. He was speaking for himself, and no
one else. .

Since that time we have had a new President, and
this serious question has risen. There are sensitive
spots all over the world} It makes a great differ—
ence, when a President is asked a question, whether or
not he answers or does not answer it, or takes a cer-
tain posture, or shows some physical feature that

102

indicates or leaves an impression one way or the
other. It is quite serious.

Next, Senator Pastore questioned whether or not the
networks would be so in favor of this legislation if the
candidates did not appear jointly. He felt that the networks
were after the dramatic, the debate, and would not be so
eager to give the President free time for individual exposure
and his Republican Opponent the same. Finally, the Senator
suggested that the choice on this type of temporary measure
should be left up to the two candidates themselves, since
they were the ones directly involved.33

Mr. Pastore . . . If the two potential participants
are not interested, what are we becoming excited
about? This measure has to do with President Johnson
and Senator Goldwater; and if neither one is in-
terested--and neither one has discussed it with me--
why should I become excited? Why should we take four
hours this afternoon to decide something they do not
want?34 . -

A week later the debate was resumed. On this date
the Senate majority leader, Senator Mansfield, moved that
the conference report on J.H. Res. 247 be tabled. Senator
Colton once again took up the call to denounce those who
were out to kill the bill:

. . . why should we kill this meaSure which has been

the reSult of long, painstaking, and careful prepar-
ation and support by the very people who seem to be

lukewarm now . . . Free and fair public exposure is
being killed by the very people who pressed for it in
the beginning . . . I believe that those who feel com-
pelled to kill the bill tonight . . . are doing so
with regret and sorrow . .‘. I feel that this is un-
fortunate . . . Politics are being talked, but the

question is one of future policy. I regret the

103
action that is being taken. This is a regretable
occurrence.
When the vote on the Mansfield motion was taken, the
"regretable occurrence" became reality; the motion passed by
a vote of 44-41, with 15 not voting.36 Following this action

an editorial appeared in the New York Times on August 20,

 

1964, which was typical of the papers throughout the country.
The editorial read:

(From the New YOrk Times, August 20, 1964)
No Debate

The decision of President Johnson to avoid a tele-
vision debate with Senator Goldwater is poor public
policy, whether or not it is wise politics. The
Senate Democrats were clearly deferring to the Presi-
dent's assessment of his own political interests when
they voted to table the bill which would have sus-
pended the equal-time requirement and thus cleared
the way for a direct confrontation before a nationwide
audience.

It is in the public's interest that a presidential
campaign should approach as nearly as possible a co-
herent and responsive dialog between the two candi-
dates.» The televised debates, as our experience of
1960 demonstrated, are valuable in developing that
dialog. They could have been especially useful this
year in View of the Republican candidate's apparent
determination to aVoid press conferences and his pro-
pensity for repudiating or reinterpreting his previous
remarks.

President Johnson is not a man given to underconfi-
dence in his own persuasiveness. His reticence in this
instance has put an unfortunate limit on the evidence
available to the voters in judging whiCh nominee is
better qualified to act as spokesman for this nation
before the world.

These actions by the United States Senate are quite
revealing, and very likely will be indicative of Congression-
al action in this field for some time. It appears that on

the subject of debates between the major candidates for

104

president and vice president, the candidates themselves will
be the determining factors. The positions taken by the
candidates, for or against debates, will be reflected in Con-
gress. The will of the candidate who represents the majority
party in the Congress will most likely prevail. It is safe
to say that the determining factor as to whether or not Con-
gress passes legislation allowing for "Great Debates" rests
not so much on the question of the relative worth of such de-
bates to our society, but rather on the willingness of the
nominees to face each other in full view of the vast tele-

vision audience.
Attempts to Repeal "Equal Time"

The "Great Debates" of the 1960 presidential election
prompted not only these attempted temporary measures, but a1-
so a number of attempts for the complete repeal of the "equal
time" requirement in Section 315.

On June 18, 1962, Senator Pastore of Rhode Island
(representing his colleague Senator Hartke) introduced Senate
Bill 3434.* This measure would have amended Section 315 so
as to eliminate the statutory_requirement of affording equal
time for use of broadcasting stations by candidates for
public office.37 Speaking for Senator Hartke, Senator

Pastore explained that it was time for the Congress to

 

*Complete text in Appendix K.

105

"recognize the maturity" of the broadcasting industry by act-
ing favorably upon this amendment.38 One year later Senator
Hartke himself, who had by this time become the leading voice

in the Senate advocating repeal of the equal time require-

ment, reintroduced this bill as Senate Bill 1696.39 On

February 4, 1965 he made another attempt, with Senate Bill

1010.40 A month prior to this, Senator Robertson, added his

voice to this cause, with the introduction of Senate Bill

673.41

Industry Reaction

As could be expected, industry support of these
bills was very favorable. For years the industry had been
complaining that the "equal time“ requirements had hindered
their presentation of our political campaigns. In a talk be—
fore the Economic Club of Detroit, in December of 1964, David
Sarnoff, Chairman of the Board of the National Broadcasting
System~stated=

. . . Its (the equal time requirement) effect has been
to restrain broadcasters from presenting serious and
major candidates who command the public interest, by
requiring the same amount of air time to be devoted to
candidates of splinter and frivolous parties, in whom
the public has little or no interest: and the by-
product of this mechanistic rule has been less, rather
'than more, exposure of candidates and discussion of
issues. ‘ ‘

. . . the Congress should revise section 315 of the
Communications Act to eliminate the equal—time require—
ment completely and permanently. This provision of'
the law has in fact served a purpose contrary to the
one anticipated and it disoriminates against the medium
of information best equipped to inform the public on
candidates and issues.

106

Only then will we be true to the precepts of
Thomas Jefferson, who displayed an insight that was
to prove applicable over the ages when he wrote: "I
know of no safe repository of the ultimate powers of
society but the people themselves, and if we think
them not enlightened enough to exercise their control
with a wholesome discretion, the remedy is not to
take it from them but to inform their discretion by
education."42

Holding similar views, Dr. Frank Stanton, President

of Columbia Broadcasting System, has stated:

. . . As a practical matter, Section 315 not only pre-
vents face-to-face discussions . . . but many indi-
vidual appearances by the candidate . . . Congress has

a clear mandate to correct what is in effect a de—
plorable short-changing of the American People.43

Congressional Inaction

Despite these pleas, the Congress has refused to act.
Guarding carefully this aspect of broadcast regulation which
so directly affects them as well as basic traditional be-
liefs of free speech and minority rights, our Congressmen
have not been willing to allow the broadcasters of the United
States the right.to cover our political campaigns as they see
fit. .Rather, it hasubeen their general feeling that it is
government's rOle to protect all political opinions and to
see that broadcasters do not discriminate for or against a
cause just because they champion it or because it does not
command widespread popular support.

In an attempt to compromise between those who would
repeal the "equal time" requirement, and those who would

leave the Section as it stands, Senator Scott offered Senate

107

Bill 1287* on February 25, 1965. This amendment would have
made the following basic changes in Section 315:

First, it would permit the broadcaster to make free
time available to major candidates without requiring that he
make similar free time available to the nominee of every
splinter group.

Second, if a station chose to sell time to a major
candidate, it could effectively charge no more than 2/3 of

the rate which the candidate would, under present law, be

required to pay.44

Senator Scott explained to his fellow Senators his
reasons for submitting this measure:

The presidents of both major television networks
have recently delivered speeches urging complete re-
peal of this section. It is understandable that the
broadcasting industry would like to see the equal-
time provision pass into oblivion so that it could
exercise sole power over which candidates would ap-
pear and under what circumstances. This may be the
ultimate answer, but I suggest an approach which I
believe to be presently preferable.

My amendment would meet the legitimate objections
of the industry, while still preserving certain
guaranteesrof fair and equitable use of broadcasting
facilities. Furthermore, it would assure a reduction
in the actual charges for television and radio time

‘which a major candidate would have to pay, in keeping
with the public interest in a vigorous campaign be-
tween qualified candidates, regardless of their fi-
nancial resources.

This would not impose an unreasonable burden on
the broadcasting industry.45

Up to now the controversy over Section 315 in Con—

gress has been unsolvable. The factions representing the

 

*Complete text of this bill in Appendix L.

108

three basic approaches to the "equal time" question have
been unable to come up with a compromise solution. As a re—
sult, Section 315 remains today unchanged since the liberal-
izing 1959 amendment dealing with bona fide newscasts. With
the eyes of the nation and its political parties now turning
towards another presidential election, however, pressure in
Congress to once again review this Section is bound to in-
crease. The American people liked the 1960 "Great Debates"
and would like to see them repeated in 1968. The American
broadcast industry feels that it proved itself with its con-
duct in the 1960 election and has earned the right to be
freed from the equal time restriction of Section 315. The
cost of the American political campaign is rising with alarm—
ing speed, with broadcast expenses taking the larger share.
Many contend that Section 315 causes these large expenditures
by preventing the broadcaster from providing the major candi-
dates with free time without being obligated to a host of
minority candidates. All these factors will combine and en-
large as the magnifying effect of a presidential election
sweeps the country and the halls of Congress. The pressure
will build and the results in Congress could have a profound
effect on the future of political broadcasting in the United

States.

109
FOOTNOTES - CHAPTER V
l. U.S., Congressional Record, 86th Cong., 2nd Sess., 1960,
CVI, Part 4, p. 5121.
2. Ibid., p. 5146.
3. Ibid.
4. Ibid., p. 5147.

5. Ibi

Q:

6. Ibid., Part 9, p. 12064.

7. U.S. Congress, Senate, Senate Miscellaneous Reports on
Public Bills, III, 86th Cong., 2nd Sess., 1960, Rept.
#1539, p. l.

80 Ibid., pp. 4-5.

9. Ibid., p. 5.

 

10. Ibid., p. 6.

 

11. Ibid., p. 9.

 

l2. Op. cit., Cong. Rec., Part 11, p. 14474.
13. .2229‘) p. 14477.

14. .gppg., Part 13,-pp. 17036-38.

15. ‘gppg., p. 17041.

16. -U.S., Congressional Record, 87th Cong., lst Sess., 1961,
CVII, Part 7, p. 9698.

17. Ibid., Part 15, p. 20150.

18. U.S., Congressional Record, 87th Cong., 2nd Sess., 1962,

 

19. Ibid., Part 9, p. 12510.
20. Ibid., p. 12511.

21. U.S., CongreSsional Record, 88th Cong., lst Sess., 1963,
CIX, Part 2, pp. 2203 and 2219.

22.
23.
24.

25.

26.
27.
28.

29.

30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.

45.

110

Ibid., Part 8, p. 11182.

Ibid., p. 11190.

 

Ibid“ ‘9 p. 11193-

 

Ibid., Part 13, p. 17119, also U.S. Congress, Senate,
Senate Miscellaneous Reports on Public Bills, IV, 88th
Cong., lst Sess., 1963, Rept. #501.

O . cit., Cong. Rec., Part 14, p. 18565.

“I"

Ibi 0
Ibid., p. 18566.

U.S” Congressional Record, 88th Cong., 2nd Sess., 1964,
CX, Part 3, pp. 3005 and 3246.

 

Ibid., Part 14, p. 19043 and Part 9, p. 12566.

 

Ibid., Part 14, p. 19048.

 

Ibid., pp. 19046-47.

 

8'
9'

i p. 19047.

 

E
O:

 

8'
1"“
0.:

Part 15, pp. 20030-31.

 

20032.

H
U’
p.
Q:
’U

 

Op. cit., Cong. Rec., CVIII, Part 8, p. 10734.
Ibid., p. 10736.

O . cit., Cong. Rec., CIX, Part 8, pp. 10555-56.

(

 

U.S., Congressional Record, 89th Cong., lst Sess., 1965,
CXI, Part 1, p. 1948.

I;p;g., p. 1009.
Ibid., p. 1271.
Ibid., p. 1010.

Ibid., Part 3, p. 3459.

 

Ibid.

 

CONCLUSION

In the forty years since the emergence of political
broadcasting regulations, the industry has develOped into a
major force in American life. The technical advances of the
transistor have freed radio to go easily everywhere we go.
Television has become a major factor in our society and one
of the most important factors in political campaigns.

During these forty years of rapid development and
growth of the industry, political broadcasting regulations
has remained basically the same. The "equal time" concept
placed in the law in 1927 has remained untouched, with the
exception of the 1959 amendment and the 1960 experiment. To-
day Congress is faced with the task of reevaluating Section
315 in terms of the times in which we live. In making this
reevaluation it must use its knowledge of the past to de-
termine what changes, if any, should be made for the future
of political broadcasting regulations. The problems are
fundamental to our political structure, and the debate over
changes will likely be extensive.

On the surface the conflicts are easily viewed.
First, as mentioned before, as a result of the law, networks
and stations do not generally give free time to majority

candidates because of the obligation by which they would

111

112

have to do the same for all candidates. The result is that
only the major parties can afford the high expense of buying
broadcast time. Newton Minow called this a "dollar wall"
preventing the small parties from access to the air waves.
This economic problem was for the most part overlooked at the
time of original drafting of the law, because the Congress-
men at the time did not foresee the great growth of the media,
especially that of television. However, at that time a short
exchange between two senators during the debate over Section
18 in 1927 suggests Congress did believe that this economic
wall would be discriminating.

Senator Blanton. Suppose there are two candidates,

one a rich man and one a poor man, and the corporation

charges for services one candidate $5,000, a sum that

the poor man can not pay. Is this giving them equal

chance. ‘

Senator Scott. No: I think the bill preserves to the

commission the authority to prevent any discrimination.

Senator Blanton. That woul be discrimination?

Senator Scott. Absolutely.

It is obvious that the commission has not taken any
action in this vein, and today this is the most pressing com-
plaint concerning Section 315. To remedy this problem, the
broadcasters have pushed for full repeal of the Section. In
one typical opposing answer to this suggestion, Robert Lewis
Shayon from the Saturday Review has stated, "If he (the
minority candidate) gets an unfair shake in buying time on the

air he may get no shake at all in his demands for free and

equal time if he is left to the mercy of the broadcasters."2

113

In the same vein, during the 1959 Lar Daly case, the
American Broadcasting Company network voiced its opinion
against the elimination of Section 315:

. . . While the political scene is as presently con-
stituted with two major parties, it may seem of less
importance that candidates of parties who represent
fractional interests in our country be accorded the
same opportunity as those representatives of the
major parties. It is, however, impossible to foresee
that this Situation will always remain and the possi-
bility of a third party is ever present. The broad-
caster should not be put in a position where he makes
the decision that the third party candidate is of
less importance than the candidate of the two other
parties and therefore need not be given equal time.3

On the other hand as we have seen, support for full
repeal of the "equal time" portion of Section 315 can be
found on the Senate floor.

In a democracy such as ours, congressional action
has to walk the narrow line of majority rule on the one side,
and protection of minority rights on the other. In dealing
with Section 315 the question is, should minority candidates
representing only a fraction of the voting public (total
vote in national elections only once over 1% since 1940)* be
guaranteed equal right over radio and television? Or con—
versly, should major political candidates, who represent the
overwhelming majority of American voters, be barred from free
broadcast time by a law which is designed to serve the

interest of minority candidates who represent only a small

fraction of the voters?

 

*For complete figures, see Appendix I.

114

Along with this question is an alternative one:
should the United States Government step in and make it its
business to tell the broadcaster to give free time to some
candidates and not others. A number of suggestions have been
made in this area. Some suggest giving free time on a
formula basis; that is with majority parties given so much
per week before the election and minority parties getting a
fraction of free time to correspond to the percent Of votes
they received in the previous election. There have been
many different formulas of this type proposed, and I would be
very much surprised if this kind of answer to the Section
315 question is not in the forefront when Congress returns
to the problem. However, this type of expanded government
control will bring sharp criticism from those who fear strong
government authority in the regulation of political cam—
paigns. For in this case the government would be given
authority not only to tell broadcasters to whom they should
give time but how much time they are required to give.

As one can see, there is no easy solution to this di-
lemma. About the only thing we can agree upon is that
Section 315 should be studied and debated, and decisions
made by our representatives as to its relative worth to our
political way of life. May we all hOpe that when the time
comes for an evaluation of Section 315, the men we have
elected to represent us and preserve our way of life, have

the intellect, the foresight, and good judgment to accomplish

115

that task. I for one do not envy their role and will be
very interested in seeing what road they will take in solving

the problem of Section 315.'

116
FOOTNOTES - CONCLUSION
U.S., Congressional Record, 69th Cong., 2nd Sess., 1927,

LXVIII, Part 3, p. 2567.

The Saturday Review, Robert Lewis Sheyon, Television and
Radio Section, January 7, 1961, p. 33.

Pike & Fischer, Radio Regulations, Vol. 18, p. 728.

APPENDICES

APPENDIX A

H.R. 9230 Text August, 1935

Be it enacted, etc., That Section 315 of the Com-
munications Act of 1934 be and hereby is amended by striking
out the whole of said section and by inserting in lieu there—
of the following:

"Sec. 315. Each licensee of a radio broadcasting
station shall be required to set aside regular and definite
periods at desirable times of the day and evening for un—
censored discussion of a nonprofit basis of public social,
political, and economic problems, and for educational pur-
poses. When any such licensee permits any speaker Of any
controversial social, political, or economic issue to use
its facilities during any such period, it shall afford to at
least one exponent or advocate of each opposing vieWpoint
equivalent facilities. The licensing authority shall without
delay makes rules and regulations to carry this provision in—
to effect, and in proceeding hereunder it shall appoint, and,
in its discretion, act upon the recommendations of an ad-
visory committee consisting of disinterested, representative
citizens: Provided, That the licensing authority, the ad—
visOry committee, and licensees shall have no power of
censorship of any kind, nor shall any license be subject to
liability, civil or criminal, in any State or Federal court
for material so broadcast under the provisions of this
section, nor shall any license be revoked or renewal be re-
fused bedause of material so broadcast.“

118

APPENDIX B

H.R. 9231 Text August, 1935

Be 15 enacted, etc., That the Communications Act of
1934 be and hereby is amended by adding thereto the following:

"Sec. 315. (a) Each licensee of a radio broadcasting
station shall keep complete and accurate records open to
reasonable public inspection:

"(1) Of all applications for time;

"(2) Of all rejected applications and the reasons
for such rejections;

"(3) Of all additions and changes requested in ar-
ranged programs on public, social, political, and economic
issues, and on educational subjects;

"(4) Of interference with and substitution of pro-
grams on public, social, political, and economic issues, and
on educational subjects."

"The licensing authority shall make rules and regu-

lations to effectuate this provision.“

119

APPENDIX C

S. 1333 Section 15 of the White Bill to Amend Sec. 315
May 23, 1947 of the Communications Act of 1934

Section 15
Section 315 of Such Act is amended to read as follows:

Section 315. Nothing in this Act shall be understood as im-
posing as authorizing or permitting the Commission to impose
any obligation upon the licensee of any radio broadcast
station to allow the use of such in any political campaign.
In the event that the licensee of any such station shall per-
mit such use, it shall be in accordance with the following
conditions and obligations:

"(a) When any licensee permits any person who is a
legally qualified candidate for any public Office in a pri-
mary, general, or other election to use a broadcast station,
or permits any person to use a broadcast station in support
of any such candidate, he shall afford equal opportunity to
all other such candidates for that offiCe, or to a person
designated by any such candidate, to use such broadcast sta-
tion: and if any licensee permits any person to use a broad-
Cast station in Opposition to any such candidate or candi-
dates, he shall afford equal Opportunities to the candidate
or candidates so Opposed, or to'a person designated by any
such candidate, in the use of such broadcast station.

"(b) When a licensee permits an official of a regu-
larly organized political party, Or a person designated by
him, to uSe a broadcast station in any political campaign,
then the corresponding official in all other regularly organ—
ized political parties, or a person designated by him shall
have equal opportunities for its use.

"(c) No licensee shall, during a political campaign,
permit the use Of the facilities of a broadcast station for
or against any candidate for any public office except (1) by
a legally qualified candidate for the same office; or (2) by
a person designated, in writing, by such candidate; or (3) by
a regularly organized political party whose candidate's or
candidates' names appear on the ballot and whose duly chosen
responsible officers designate a person to use such
facilities.

120

121

"(d) When any licensee permits any person to use a
broadcast station in support or in Opposition to any public
measure to be voted upon as such in a referendum, initiative,
recall or other form of election, he shall afford equal
oppOrtunities (including time in the aggregate) for the
presentation of each different View on such public measures.

"(a) NO licensee shall permit the making of any
political broadcast, of the discussion of any question by or
upon behalf of any political candidate or party as herein
provided, for a period beginning twenty-four hours prior to
and extending throughout the day on which a National, State
or local election is to be held.

"(f) Neither licensees nor the Commission shall have
power of censorship Over the material broadcast under the
provisions of this section: Provided, That licensees shall
not be liable for any libel, slander, invasion of right of
privacy, or any similar liability imposed by any State,
Federal, or Territorial or local law for any statement made
in any broadcast under the provisions of this section, ex-
cept as to statements made by the licensee or persons under
his control.

"(9) The duty of the licensee to observe the con-
ditions herein stated shall apply to all political activities,
whether local, State, Or National in their scope and appli-
cation. The term 'equal opportunities‘ as used in this
section and in section 330 of this Act means the consideration,
if any, paid or promised for the use of such station, the ap-
proximate time of the day or night at which the broadcast is
made, an equal amount of time, the uSe of the station in
Combination with other stations, if any used by the original
user, and in the case of network organizations, an equivalent
grouping of stations connected for simultaneous broadcast or
for any recorded rebroadcasts."

APPENDIX D

S. 1333 Section 17 to Amend Sec. 315 of the Communications
Act of 1934 May 23, 1947

Sec. 17. Part 1, of title III of such Act is amended by add—
ing two new sections as follows:

"Discussion of Public or Political Questions

"Sec. 330. When and if a radio broadcast station is
used for the presentation of political or public questions
otherwise than as provided for in section 315 hereof, it
shall be the duty of the licensee of any such station to af-
ford equal opportunities, for the presentation of different
views on such questions Provided, That the time, in the aggre—
gate, devoted to different views on any such questions shall
not be required to exceed twice that which was made available
to the original user or users. Neither the licensee of any
station so used nor the Commission shall have the power to
censor, alter, or in any manner effect or control the sub-
stance of any program material so used: Provided, however,
That no licensee shall be required to permit the broadcasting
of any material which advocates the overthrow of the govern-
ment of the United States by force or violence: And provided
further, That no licensee shall be required to broadcast any
material which might subject the licensee to liability for
damages or to penalty or forfeiture under any local, State,
or Federal law or regulation. In all caSes arising under
this section, the licensee shall have the right to demand and
receive a complete and accurate COpy of the material to be
broadcast a sufficient time in advance of its intended use to
permit an examination thereof and the deletion therefrom of
any material necessary to conform the same to the require-
ments of this section. '

“Sec. 331. NO licensee of any radio broadcast sta—
tion shall permit the use of such station for the presen—
tation of any public or political questions under sections
315 or 330, unless the person or persons arranging or con—
tracting for the broadcast time shall, prior to the proposed
broadcast, disclose in writing and deliver to the licensee
(a) the name of the speaker or speakers; (b) the subjeCt of
the diScussion (c) the capacity in which the speaker or
speakers appear; that is, whether on their own account as an
individual candidate or public officer, or as the representa—
tive, advocate, or employee of another; and how the time for

122

123

the broadcast was made available, and if paid for, by whom.
It shall be the duty of the licensee of the station so used
to cause an announcement of the name of the speaker or
speakers using the station together with the other infor—
mation required by this section, to be made at both the be-
ginning and the end of the broadcast: Provided, That in the
case of a public officer, speaking as such, the announcements
shall specify only the subject of the discussion, the office
held by him, whether such office is elective or appointive
and by what political unit or political officer the power of
election or appointment is exercised. Where more than broad-
cast station or network of such stations is used as herein
provided, the requirements of this section will be met by
filing the required material with the licensee of the origin—
ating station and by broadcasting the required announcements
over all stations which broadcast the subject program.

APPENDIX E
s. 3926 Text May 29, 1956

Be it enacted, etc., That section 315 of the Communi-
cations Act of 1934 (47 U.S.C. 315) is amended to read as
follows:

"Sec. 315. (a) If any licensee shall permit any person
who is a legally qualified candidate for any public office to
use a broadcasting station, he shall (except as provided by
subsections (b) and (c)) afford equal opportunities to all
other such candidates for that office in the use of such
broadcasting station.

"(b) Subsection (a) shall apply to the use of a
broadcasting station by any legally qualified candidate for
the office of President or Vice President of the United
States only if such candidate -

“(1) is (A) the nominee of a political party whose
candidate for such office in the preceding presidential elec-
tion was supported by not fewer than 4 percent of the total
votes cast, or (2) supported by petitions filed under the laws
of the several States which in the aggregate bear a number of
signatures, valid under the laws of the States in which they
are filed, equal to at least 1 percent of the total popular
votes cast in the preceding presidential election; or

"(2) is a candidate for presidential or vice presi-
dential nomination by a political party whose candidate for
such office in the preceding presidential election Was sup-*
ported by not fewer than 4 percent of the total popular votes
cast and - '

‘ ‘ "(A) is the incumbent of any elective Federal or state-
wide elective office Of any state: or

"(B) has been nominated for President or Vice Presi-
dent at any prior convention of his party; or

"(C) is supported by petitions filed under the laws
of the several states which in the aggregate bear at least
200,000 signatures which are valid under the laws of the
States in which they are filed. ' "

"(C) Subsection (a) shall apply to the use of a broad—
casting Station by any legally qualified congressional candi—
date only if such candidate is -

"(1) the nominee of a political party whose candidate
for the congressional office sought by the legally qualified
candidate received in the preceding general congressional

124

125

election not less than 4 percent Of the total votes cast for
all candidates for that office in such election; or

"(2) supported by one or more petitions filed under
applicable State law which in the aggregate bear a number of
signatures, valid under the laws of the State, equal to at
least 1 percent of the total votes cast for all Candidates
for that office in the preceding general congressional elec-
tion. For the purposes of this subsection, the term 'congres-
Sional candidate' means a candidate for election as a Senator
or Representative in, or Delegate or Resident Commissioner
to, the Congress of the United States.

"(d) NO licensee shall have any power of censorship
over the material broadcast under the provisions of this
section. NO obligation is hereby imposed upon any licensee
to allow the use of its station by any such candidate.

"(e) The charges made for the use of any broadcast-
ing station for any of the purposes heretofore set forth in
this section shall not exceed the charges made for comparable
use of such station for other purposes. ‘

"(f) It shall be the obligation of each television
network and each television station to make available without
charge to each candidate for the office of President of the
United States eligible to receive equal opportunity under
subsection (b) one-half hour of time per week during
September and 1 hour of time per week during October and 1
hour in NOvember preceding election of any year in which a
presidential election is being held. Time made available
under this subsection may be utilized only by the candidate
for President or the candidate for Vice President and shall
be in such time segments (not less than lS-minute segments)
and at such time as the candidate for President shall request
not less than 15 days in advance, but no network or station
shall be under any obligation to provide time in less than
half-hour segments at any time When there is a regularly
scheduled half-hour program on such network or StatiOn or to
provide time in less than l-hour segments at any time when
there is a regularly sCheduled 1—hour program on such net-
work Or station. Where a request for time is made to a net-
work under this subsection, it shall be the Obligation of
each station affiliated with that network to clear the time
requested; Provided, however, That if a station is affili-
ated with more than 1 network and the total time requested
for clearance in any 1 week shall exceed the amOunt of time
the station is obligated to make available under this sub-
section, the candidate fOr President Shall determine the net—
work to which the time is to be made available by the station.
The candidate for President may request time under this sub-
section directly from a station or stations rather than
through a network or networks, but in no event shall any net-
work or station be required to carry programs without charge

 

126

for more time than specified in the first sentence of this
subsection. NO network or station shall be held responsible
for the nonfulfillment of any contract heretofore or here-
after made because of its inability to carry out said con-
tract by reason of the obligations imposed upon such network
or station under this subsection.

"(9) The Commission shall -

"(1) prescribe appropriate rules and regulations to
carry out the provisions of this section, and

"(2) determine, and upon request of any licensee
notify such licensee concerning, the eligibility of any
candidate to receive equal opportunity under subsection (b)
or (c) in the use of any broadcasting station."

APPENDIX F

S. 1858 "The Fair Political Broadcasting Act of 1959."
May 5, 1959

Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
That this Act may be cited as the "Fair Political Broadcast-
ing Act of 1959.

Sec. 2. The Congress finds (1) radio and television
as a means of mass communication have played, and will con-
tinue to play, an ever-increasing role in the conduct of
election campaigns; (2) the basic purpose of section 315 of
the Communications Act of 1934 is to insure that a broadcast
ing licensee, which allows its facilities to be used by a
legally qualified candidate, affords fair and equal oppor-
tunities to all opposing legally qualified candidates; (3)
the great variety of factors which are relevant in deciding
what constitutes "fair and equal“ opportunity have afforded
constant frustration and pitfalls to legally qualified candi—
dates for public office and the broadcast industry; and (4)
recent rulings by the Federal Communications Commission con-
cerning the interpretation of section 315 as it now stands
have tended to be inconsistent with the original intent of
the Congress and thus with the objectives of public service
and public enlightenment. Therefore, it is the purpose of
the Congress to extend, revise, and improve the Communications
Act of 1934 to bring into focus that section of the law
governing political broadcasts.

Sec. 3. Section 315 of the Communications Act of
1934 (47 U.S.C. 315) is amended to read as follows:

“Sec. 315. (a) If any licensee shall permit any
person who is a legally qualified and nominated candidate
for the Office of President or Vice President of the United
States to use a broadcasting station, he shall afford fair
and equal OppOrtunity in the use of such broadcasting station
to every other such candidate for such Office - ‘ ’

‘ "(1) who is the nominee of a political party whose
candidate for that office in the preceding presidential
election was supported by not fewer than 4 percentum of the
total popular votes cast; or '

"(2) whose candidacy is supported by petitions filed
under the laws of the several States which in the aggregate
bear a number of signatures equal to at least 1 percentum of

127

128

the total popular votes cast in the preceding presidential
election and which signatures are valid under the laws of
the States in which they are filed.

"(b) If any licensee shall permit any person who is
a legally qualified or substantial candidate for nomination
by a political party for the office of President or Vice
President of the United States to use a broadcasting station,
such licensee shall afford fair and equal opportunity in the
use of such broadcasting station to every other such candi-
date for nomination to such Office by such party.

"For the purposes of subsection (b) of this Section
315, a candidate for Presidential or Vice Presidential nomi-
nation who is otherwise legally qualified shall be presumed
to be substantial if:

"(i) he is the incumbent of any elective Federal or
statewide elective office of any State; or

"(ii) he has been nominated for President or Vice
President at any prior convention or caucus of his party; or

"(iii) his candidacy is supported by petitions filed
under the laws of the several states which, in the aggregate,
bear a number of signatures, valid under the laws of the
States in which they are filed, equal to at least -

"(a) one percentum of the total popular vote cast in
the preCeding Presidential election for the candidate of
such party, or

"(b) 200,000 whichever is smaller.

“(C) If any licensee shall permit any person who is
a legally qualified candidate for any other public office to
use a broadcasting station, he shall afford fair and equal
opportunities to all other suCh candidates for that office in
the use of such broadCasting station.

“(d) No licensee shall have any power of censorship
OVer the material broadcast under the provisions of this
section. NO action, either civil Or criminal, shall be main—
tained by any person in any court against any licensee or
agent or employee of any licensee, because of any defamatory
or libelous statement made by a legally qualified candidate
for public office in a broadcast made under the provisions of
this section, unless such licensee, agent or employee par-
ticipated in such broadcast willfully, knowingly, and with
intent to defame. '

"(e) Appearance by a legally qualified candidate on
any regularly scheduled or bona fide newscast, news docu-
mentary, panel discussion, debate, or similar type program
where the format and production of the program are under ex-
clusive control of the broadcaSting Station, or by the net-
wOrk in case of a network program, as to content, presentation,
length, time, and all other details, and determined in good
faith in the exercise of the broadcaster's judgment to be a
newsworthy event and in no way designed to advance the cause

129

of or discriminate against any candidate shall not be deemed
to be use of a broadcasting station within the meaning of
this subsection.

"(f) The charges made for the use of any broadcast-
ing station for any of the purposed set forth in this section
shall not exceed the charges made for comparable use of such
station for other purposes.

"(9) The Commission shall -

"(1) prescribe appropriate rules and regulations to
carry out the provisions of this section, and

"(2) determine, and upon the request of any licensee
notify such licensee concerning, the eligibility of each
candidate for the office of President or Vice President of
the United States to receive equal opportunity under sub-
sections (a) and (b) of this section in the use of any
broadcasting station.

“(h) No obligation is hereby imposed upon any licensee
to allow the use of its station by any such candidate."

Sec. 4. The amendment made by this Act shall be ef-
fective as of January 1, 1960.

APPENDIX G
Section 315 of the Communications Act of 1934, as amended.1

Section 315 (a) if any licensee shall permit any person who
is a legally qualified candidate for any public office to

use a broadcasting station, he shall afford equal Opportuni-
ties to all other such candidates for that office in the use
of such broadcasting station: provided that such licensee
shall have no power of censorship over the material broadcast
under the provisions of this section. NO obligation is here-
by imposed upon any licensee to allow the use of its station
by any such candidate. Appearance by a legally qualified
candidate on any

(1) bona fide newscast

(2) bona fide news interview

(3) bona fide news documentary (if the appearance of
the candidate is incidental to the presentation of the sub-
ject or subjects covered by the news documentary). or

(4) on-the-spot coverage of bona fide news events (in-
cluding but not limited to political conventions and activi-
ties incidental thereto), shall not be deemed to be use of a
broadcasting station within the meaning of this subsection.
Nothing in the foregoing sentence shall be construed as re-
lieving broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries, and on—the-
spot coverage of news events, from the obligation imposed up-
on them under this act to operate in the public interest and
to afford reasonable opportunity for the discussion of con-
flicting views on issues of public importance. '

(b) The charges made for the use of any brOadcasting
station for any of the purposes set forth in this section
shall not exceed the charges made for comparable use of such
station for other purposes. ‘ '

(c) The Commission shall prescribe appropriate rules
and regulations to carry out the provisiOns of this section.

Section 2 (a) The Congress declares its intention to
reexamine from time to time the amendment to Sec. 315 (a) of
the Communications Act of 1934 made by the first sections of

 

lU.S. Statutes at Large, LXVI, p. 717 and also LXIII,

p. 557.

130

131

this Act, to ascertain whether such amendment has proved to
be effective and practicable.

(b) To assist the Congress in making its reexami-
nations of such amendment, the Federal Communications Com-
mission shall include in each annual report it makes to Con-
gress a statement setting forth (1) the information and data
used by it in determining queStions arising from or connected
with such amendment, and (2) such recommendations as it deems
necessary in the public interest.

.APPENDIX H

S. 3171 A bill to provide for the use of television broad-
casting stations by candidates for the office of
President of the United States. March 10, 1960.

Be it enacted by the Senate and House of Representa-
_Eives of the United States of America in Congress assembled,
That this Act may be cited as the “Presidential Campaign
Broadcasting Act.“

Sec. 2 (a) It shall be the obligation of each tele-
vision broadcasting station licensed under the Communications
Act of 1934 and each television network to make available
without charge the use of its facilities as hereinafter pro—
vided to each candidate for the Office of President of the
United States who is the nominee of a political party whose
candidate for that office in the preceding presidential elec-
tion was supported by not fewer than 4 percentum of the total
popular votes cast.

(b) Each candidate eligible under subSection (a)
shall be entitled to one hour of time each week from each
such station and network for eight weeks during the period
beginning September 1 preceding election of any year in which
a presidential election is being held.

(c) The time to which eligible candidates are en-
titled under subsection (b) shall be provided in prime view-
ing hours, and shall be scheduled in programs of one hour
each, equally divided, without intervening cOmmercial material,
one of which shall be presented on Monday preceding the day
of election.

(d) The Federal Communications Commission shall make
arrangements for carrying out the provisions of this Act in
COOperation with the networks and stations. Such arrange—
ments shall provide that time provided under this Act shall
to the extent pOssible be simultaneous in each time zone of
the Nation. Where such time Cannot be provided simultaneous—
ly any expenses incurred in recording and distributing such
simultaneous broadcast for later use shall be borne by the
candidates.

(e) Time made available under this Act may be uti—
lized only by a candidate for President, except that at the
electiOn Of such candidate for President the candidate for
Vice President may utilize not to exceed two of the half—
hour periods made available.

132

133

(f) No station or network shall be held responsible
for the nonfulfillment of any contract heretofore or hereafter
made because of its inability to carry out such contract by
reason of the obligations imposed upon such station or net-
work under this Act.

Sec. 3. A station or network shall have no power of
censorship over material broadcast under the provisions of
this Act.

Sec. 4. (a) The Federal Communications Commission
shall make rules and regulations to carry out the provisions
of this Act, including requirements for each station or net-
work to report to the Commission, in such form and manner and
at such time, as the rules and regulations may prescribe,
with respect to use of its facilities pursuant to the pro-
visions of this Act.

(b) In determining whether public interest, con-
venience, and necessity will be served by the granting of a
renewal of a license for the operation of a broadcasting
station, the Commission shall give due consideration to the
reports with respect to compliance with the provisions of
this Act submitted to the Commission pursuant to subsection
(a) of this section.

Sec. 5. The provisions of Section 315 of the Communi—
cations Act of 1934 (47 U.S.C. 315) shall not apply in the
case of the use of facilities without charge under the pro-
visions of this act.

, 3'3"- Dim-n—

Year

1900
1904
1908
1912
1916
1920
1924
1928
1932
1936
1940
1944
1948
1952
1956
1960
1964

Party.

*1

*2

APPENDIX I

Minority Party Minority Party
Percentage Votes

.8

U

[.4
NNI-‘flmnhnbmqw

.P-oommpqoxxnolawmouow

 

1

393,000
810,000
897,000

5,254,000*1
869,000

1,475,000

4,983,000*2
404,000

1,163,000

1,215,000
262,000
347,000

2,615,000
299,000
413,000
504,000
337,0001

Over 4,100,000 for Theodore Roosevelt, Progressive

Over 4,800,000 for Lafallot, Progressive Party.

Statistical Abstract of the United States 1965,

National Data Book and Guide to Sources, 86th Edition, U.S.

Dept. of Commerce,

Bureau of the Censis.

134

APPENDIX J

House Joint Resolution 247 - Joint resolution to suspend for
the 1964 campaign the equal opportunity requirement
of Section 315 of Communications Act of 1934, for
nominees for the office of President and Vice
President.

Resolved by the Senete and House of Representatives of the
United States Of America in Congress assembled, That that
part of section 315(8) of the Communications Act of 1934, as
amended, which requires any licensee of a broadcast station
who permits any person who is a legally qualified candidate
for any public office to use a broadcaSting station to afford
equal Opportunities to all Other such candidates for that
office in the use of such broadcasting station, is suspended
for the period of the 1964 presidential and vice presidential
campaigns with respect to nominees for the offices of Presi-
dent and Vice President of the United States. NOthing in

the foregoing shall be construed as relieving broadcasters
from the obligation imposed upon them under that Act to oper-
ate in the public interest.

‘With the following committee amendments.

Page 1, line 9, strike out "period of the l964~presi-
dential and vice presidential campaigns" and insert “seventy-
five—day period immediately preceding NOvember 3, 1964.

‘ "Committee amendment: Page 2, line 2 strike out
"nominees" and insert "legally qualified candidates."

Sec. 2. The Federal Communications CommisSion shall
require broadcast stations and networks to make such repOrts
as may be necessary to enable the Commission to make a de—
tailed report to the Congress not later than May 1, 1965, on:
(1) The effect of the suspension of the equal opportunities
requirement of section 315 on the 1964 presidential and vice
presidential campaigns, including information concerning re—
quests for time, amount of time made available (including
amount of free time, time paid for by candidates or political
organizations, and time paid for by others), total charges,
rates, editorializing, distribution of time during various
phases of the campaigns, and clearance by individual stations
of network program concerning the candidates or the issues,
and (2) the role of broadcast stations and networks in other
political campaigns during 1964.

135

APPENDIX K
S. 3434 June 18, 1962 Text

Be it enacted by the Senate and Houee of Represente—
tives of the United States of America in Congress assembled,
That section 315 of the Communications Act of 1934, as amended
(47 U.S.C. sec. 315), is amended to read as follows:

"CHARGES FOR USE OF BROADCASTING FACILITIES BY CANDIDATES
FOR PUBLIC OFFICE

“Sec. 315. (a) The charges made for the use of any
broadcasting station by any person who is a legally qualified
candidate for public office shall not exceed the charges made
for comparable use of such station for other purposes.

"(b) The Commission shall prescribe appropriate rules
and regulations to carry out the provisions of subsection
(a) ."

Sec. 2. The amendment to section 315 of the Communi—
cations Act of 1934, as amended, made by the first section of
this Act shall not be construed as relieving any licensee
from.the obligation imposed upon him under the Communications
Act of 1934 as amended, to operate in the public interest and
to afford reasonable opportunity for the discussion of con-

flicting views on issues of public importance.

136

APPENDIX L
S. 1287 February 25, 1965 Text.

The bill (S. 1287) is as follows:

Be it enacted by the_§enate and House quRepresenta-
.pives of the United SteEes of America in Congress assembled,
That section 315 of the Communications Act of 1934 is amended-

(1) in the first sentence of subsection (a) by in-
serting after “to use a broadcasting station" the following;
"in return for a payment of any kind:, and

(2) by redesignating subsection (c) as subsection (d)
and inserting before such subsection the following new
subsection:

"(c) (1) For the purposes of this subsection the term
'major candidate' means any person who is a legally qualified
and nominated candidate for the office of President or Vice
President of the United States, Senator, Representative,
Delegate, or Resident Commissioner in Congress, or Governor
of a State or Commonwealth of the United States, and who is
the nominee of a political party whose candidate for such
office in the preceding election was supported by not less

than 10 percentum of the total votes cast for such Office.

137

138

"(2) If any licensee shall permit any major candidate
to use a broadcasting station without charge, it shall afford
equal opportunity in the use of such station to all other
major candidates for the same office.

"(3) If any licensee shall permit any major candidate
to use a broadcasting station for any period of time in re-
turn for a payment of any kind, the charges for such time
shall not exceed two-thirds of the charges made for compar—

able use of such station for other purposes."

 

APPENDIX M

Federal Communications Commission Rules and Regulations
Governing Section 315 of the Communications Act of 1934.

73.120 Broadcasts by candidates for public Office.

(a) Definipions. A "legally qualified candidate"
means any person who has publicly announced that he is a
candidate for nomination by a convention of a political party
or for nomination or election in a primary, special, or
general election, municipal, county, State or national, and
who meets the qualifications prescribed by the applicable
laws to hold the office for which he is a candidate, so that
he may be vOted for by the electorate directly or by means
of delegates or electors, and who:

(1) Has qualified for a place on the ballot or

(2) Is eligible under the applicable law to be voted
for by sticker, by writing in his name on the ballot, or
other method, and (k) has been duly nominated by a political
party which is commonly known and regarded as such, or (ii)
makes a substantial showing that-he is a bona fide candidate
for nomination or office, as the case may be.

'(b) Generel requirements. NO station licensee is re-
quired to permit the use of its facilities by any legally
qualified candidate for public office, but if any licensee
shall permit any such candidate to use its facilities, it
shall afford equal opportunities to all other such candidates
for that Office to use such facilities: Provided, That such
licensee shall have no power of censorship over the material
broadcast by any such candidate. ‘

' (c) Rates and_practices. (l) The rates, if any,
charged all such candidates for the same Office shall be uni—
form and shall not be rebated by any means direct or in—
direct. A candidate shall, in each case, be charged no more
than the rate the station would charge if the candidate were
a commercial advertiser whose advertising was directed to
promoting its business within the same area as that encom—
passed by the particular Office for which such perSon is a
candidate. All discount privileges otherwise offered by a
station to commercial advertisers shall be available upon
equal terms to all candidates for public office.

139

140

(2) In making time available to candidates for public
office no licensee shall make any discrimination between
candidates in charges, practices, regulations, facilities, or
services for or in connection with the service rendered pur-
suant to this part, or make or give any preference to any
candidate for public Office or subject any such candidate to
any prejudice or disadvantage; nor shall any licensee make any
contract or other agreement which shall have the effect of
permitting any legally qualified candidate for any public
office to broadcast to the exclusion of other legally quali-
fied candidates for the same public office.

(d) Records; inspection. Every licensee shall keep
and permit public inspection of a complete record of all re-
quests for broadcast time made by or on behalf of candidates
for public office, together with an appropriate notation
showing the disposition made by the licensee of such requests,
and the charges made, if any, if request is granted. Such
records shall be retained for a period of two years.

(a) Time ofypequest. A request for equal opportuni-
ties must be submitted to the licensee within one week of
the day on which the prior use occurred.

(f) Burden of_proof. A candidate requesting such
equal opportunities of the licensee, or complaining of non-
compliance to the Commission shall have the burden of proving
that he and his opponent are legally qualified candidates
for the same public Office.

 

1Federal Communications Commission, Rules and Regu—

lations, III, Part 73, January 1946, Radio Broadcast Services.

BIBLIOGRAPHY

BIBLIOGRAPHY
Public Documents

U.S., Congressional Record. Vols. LXVII, LXVIII, LXXV,
LXXVI, LXXVIII,_LXXIX, XCIII, XCVI, XCVII, XCVIII,
CI, CII, CV, CVI, CVII, CVIII, CIX, CX, CXI.

U.S.“Federal Communications Commission. Annual Report
(washington, D.C.: U.S. Government Printing Office),
V018. III, VI, VII, XIV, XVIII, XX, XXI, XXII, XXIII,
XXIV, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI.

 

U.S. Reports. (washington, D.C.: U.S. Government Printing
Office, Vol. 360.

U.S. Statutes at Large. Vols. LXVI, LXXIII.
Books

Bogart, Leo. ,Age of Television. (New York: Federick Unyor
' Publishing Co., 1956).

Broadcasting and theygill of Rights. (Washington, D.C.:
National Association of Broadcasters, 1947).

Emery, Walter B. Broadcasting and Government, Responsibili-
ties and Regulations (East Lansing: Michigan State
University Press, 1961).

Head, Sidney Wu Broadcasting in America (Boston: Houghton
Mifflin Company, 1956).

Herring, James M. and Gerald C. Gross. Telecommunications:
.Eeonomic and Regulation (New York: McGraw-Hill Book
Company, Inc., 1936).

Kraus, Sidney (ed). The Great;pebate: ,packground, Perspec-

tive and EffeEt (Bloomington: Indiana University
Press, 1962).

142

143

Marx, Herbert L., Jr. (ed). Televieion and Radio in American
Life. The Reference Shelf Vol. XXV, NO. 2 (New York:
The H. W. Wilson Company, 1953).

Minow, Newton N. qual Time: The Private Broadcaster and
theLPublic Interest, Lawrence Laurent (ed.). (New
York: Atheneum Press, 1964).

Pike and Fischer Radio Regulations, Vols. I, IV, XVII, XVIII.

Ray, Verne M. (ed). Interppetinq F.C.C. Broadcast Rules and
Regulations (Thurmont, Maryland: Tab Books, 1966).

Shurick, Edward P.J. The First_Quarter Centuryyof American

.groadcasting (Kansas City (Mo.) Midland Publishing
Company, 1946).

Smead, Elmer E. Freedom of Speech by Radio and TV (Washing-
ton, D.C.: Public Affairs Press, 1956).

Thomson, Charles A. H. Television & Presidential Politics
(Washington, D.C.: Brookings Institution, 1956).

White, Llewellyn, The American Radio (Chicago: University
of Chicago Press, 1947).

HICHIGQN STQTE UNIV. LIBRQRIES

31293107262473