A LEGISLATIVE, ADMINISTRATIVE AND IUDICEAL HISTQRY OF THE FAERNESS DOCTRINE [N TELEVE‘SEGN AND RAMS B‘RQADCA§?ENG “was for {‘56 chgm 0? pk. D. MICHRGAN STATE UNIVERSITY Demaid P. Mullally 1968 TH ESIS 0-169 3 LIBRAIL} ’-.Iicthigar1 C * in. {dull-15‘! IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII \/ 3 1293 104 A: nbmwa - 0-.m._ m This is to certify that the thesis entitled A Legislative, Administrative, and Judicial History of the Fairness Doctrine In Radio and Television Broadcasting presented by Donald Patrick Mullally has been accepted towards fulfillment of the requirements for 31.1). degree in Jmfl "/’ / /‘ ~‘ .2 3’ } 4 . g-r _- L 7%: 'c’é—z/ 2: * /L{’ch-<2’/’ Major {professor Datew I , -.‘.’O"‘~—o" n» we. . -1 o‘l»o—-~D We $me WW . APR 1 s 1995 "V g. ETYO‘igM; ‘ \"V. 0‘“. ‘ u‘r'Hn. ‘V'HI'VIML'I‘ Irv ‘fl‘. ’. M.- w-TIW‘ i ' .. . ' r‘ :J I“ . r, .. J‘ M m: . ,. ,- 6%" v t ‘ ‘ .1 .. L 5'1 5.111“ 3’13: I .’ . ‘. A .1! ».I . IE ABSTRACT g NATIVE, ADMINISTRATIVE, AND JUDICIAL HISTORY ‘ THE FAIRNESS DOCTRINE IN TELEVISION AND ' RADIO BROADCASTING by Donald P. Mullally Nfiroversial issue of public importance, time must be ‘ 1 “Tierded for the presentation of contrasting viewpoints. Inlls closely related to-—but not identical with--the gnal—time law Nhich regulates broadcasts by political "3didates. The object of the fairness doctrine is the Igflil discussion of controversial issues of public impor- a» *ée and the building of a more informed electorate. In t ' . Donald P. Mullally ation: 1912-1941.. It considers the Radio Act Ithe Radio Act of 1927, and the Communications .39. The concept of fairness is traced from the yof Herbert Hoover to a specific decision of the 53$} Radio Commission. The intentions of Congress are V.tes illustrate the feelings of this branch of govern- §;t relative to the standard of fairness. ‘. Recent developments (1960—1968) are the subject of pter VI. Suspension of the equal-time law for 1960, and Donald P. Mullally .The‘"Fairness Primer" of l96h is considered, as recent cases: Red Lion Broadcasting Co. v. FCCI élevision News Directors Association v. FCC. and cation of the fairness doctrine of cigarette lsing. The 1968 "Fairness Panel" hearings are re— .1 The dissertation is current as of April; 1968. IThe‘final chapter is titled "A Summary and A Specula- - ; it summarizes the history of the fairness doctrine Ig'sixipages, and speculates on the future importance of Ifairness doctrine in light of the rapidly changing "wture;of the electronic media. The dissertation is completed by an extensive RADIO BROADCASTING By .1 rs. l l ‘0 K Donald P? Mullally A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Department of Speech and Theatre 1968 COPYRIGHT Donald P. Mullally 1968 ACKNOWLEDGMENTS Qtpriter is indebted to the many staff members of I w "4_:Communications Commission who were so helpful gleertation. The staff of the University of Michi- Library and the Documents Room at the Michigan Dr. Gordon Thomas was of great help in the prepara- of the manuscript, and his kind suggestions were 3; his many years of experience in the field of com— uieations law and his generosity with his time made ’ This dissertation would not have been completed C her help and encouragement. 11 TABLE OF CONTENTS 35:: NTS . . . . . . . . . adePENDIcEs . . . . . . . . . AN ' INTRODUCTION a e c I u a 0 Definition of Fairness Doctrine . Purpose of this Study. . . . . Limitations of this Study . . . Sources . . Justification for the Study. . IN THE BEGINNING~ (1912—19A1). . . Early Regulation: 1912-1921 Federal Radio Act of 1927 . The Commission Develops a Policy The Policy is Tested . Significant Cases . . THE MAYFLOWER YEARS (1941—19u9) The Significant Decision. . The Chain Broadcasting Regulations Other Cases . . . . THE FAIRNESS DOCTRINE IS ARTICULATED (19u9) The Majority Opinion . Other Opinions . . . . . The Dissent . . . . . . FREEDOM, FAIRNESS, AND FRUSTRATION (1950-1960)I o I I n a o a 0 Significant Cases . . . . Court Decisions. The 1959 Amendments to Section 315 The Commission's Interpretation 111 Congress Tackles the Fairness Problem Page ii 96 98 106 11A 12A “as? DEVELOPMENTS (1960-1968) . . . - jflhe 1960 Suspension of the Equal Time » “Inequirements . . . . ', ~rse 1962 and 196A Elections. . i Lsflearings on Broadcast Editorializing. . Advice from the Commission . . . . F Connission Action on Fairness . . . Wflhe Fairness Primer . . . . . . cases . . . . . . . Three Important Cases. . . . . . -Yra SUMMARY AND A SPECULATION . . . . iv .a-____ L__ -L. __L ._.l ALL‘ _ L . LIST OF APPENDICES {’ngroductien of Pages 10H16-10h27, d The Federal Register, Vol. 29, _' July 25, 196“, including the <'~"Fairness Primer" and the Report on Editorializing by Broadcast ‘. Licensees . . . . . . . . . -LTH;§n Letters Re Red Lion Reproduced from “‘2‘... 381 F(2d) 908. s a a I a o o ;;”»nfi+~ taafla Correspondence Between House Interstate ‘ and Foreign Commerce Committee and Federal Communications Commission Excerpt from Brief for Petitioner Columbia Broadcasting System, Inc.. A Fairness Doctrine Time-Line . . , 3.: , ’J Page . 263 . 275 . 289 . 310 . 317 CHAPTER I AN INTRODUCTION nation, and said by many to violate the constitutional ;ntees of freedom of speech and due process-—how did I, my which govern the broadcasting of issues of contro— y should itself become an issue of great controversy §bry.agency created by Congress to deal with radio, rLe,.telegraph, television, and other public com- attens media. This body of rules and policy, al- in based to some extent upon the provisions of sec- ; ed)1 and to some extent upon the mandate of this act “nthe Commission regulate broadcasting in the "public “ rest, convenience, and necessity,"2 is actually the sult of many seemingly unrelated events which have oc- ‘rred-in the years since 192M. The fairness doctrine 4,,aéals with the presentation of controversial issues of L”$;Mblic importance, and requires that when a licensee Station owner) presents one side of an important con- roversial issue, he has the obligation to afford to [yesponsible spokesmen for other opposing points of view ime to make a fair presentation of their position. In 'he event that a person's character or integrity is at- “tacked over a broadcast facility, the fairness doctrine peduires that the licensee provide the person attacked s attackers. In a recent and very important enlargement plus Stat. 106a, June 19, 193a. ”21b1d., Section 303. Tm ‘ Purpose of this Study diIt'is the purpose of this study to trace the con- :éa history of the fairness doctrine from its genesis be present. This history is, at once, legislative, inistrative, and Judicial in nature, for from these ‘ tiof man's search for ways of preserving human liber- 3 within the framework of a highly organized society. 3 will require the consideration of several basic con- ltional questions, and the discussion of certain '3Initially promulgated in a letter from the Com- ,to WCBS-TV (New York), June 2, 1967, and reaf- _d by later actions of the Commission. “mun liberty must be balanced with the necessity eservation of the social order. n equal amounts of time for presentation of opposing ewpoints. In view of this distinction, this study will iconcerned with the equal time provision only periph- ‘ally, as it relates to the history of the fairness doc— rine. Similarly, although the topic of financing politi— '“1 broadcasts is frequently mentioned bibliographically .conjunction with the fairness doctrine, the former is .9; really the subject of this study. Clearly, this study cannot be a compendium of all igation involving the fairness doctrine, for there Hynus Stat. 106M, Section 315. ‘1 5Fcc, In the Matter of Editorializin b Broadcast "'ees, Report of the Commission, Docket No. 8516, a I 71ts~application to broadcasting. r“““ . Although_this is a history of the legislative, ad- , . than a topical or case-study approach. The intervals 'jvered by the several chapters are rather arbitrary, t are selected in View of what are, in this writer's wctrine. Finally, the reader should note that although many ubJect of this study—-the evolution of the fair- ’octrine and its application to the electronic media. Sources :for this study was gathered primarily from a) the-Congressional Record and reports ‘late to broadcasting.8 Interviews of government offic- ‘ 8, especially employees of the Federal Communica- ns Commission, have been relied upon extensively, as e interviews with attorneys practicing before the 5&8 Stat. 106M, June 19, 1934. g; 7nu Stat. 1162—117u, February 23, 1927. ‘ 37 Stat. 199 (Federal Radio Act of 1912), 't. 717 and 52 Stat. 111 (Federal Trade Acts), 52 .1ou1 (Federal Food, Drug, and Cosmetic Act), and arena in the courts. Moreover, the writer has derable correspondence with those who are involved tion on this problem, both as parties to the liti- .;1;and as counsel. "‘Gertain legal texts, cited herein, have also been Siderable value to the writer. Other more general .5 although they were not directly concerned with the ,./*Hle85 doctrine, offered valuable background information, terical perspective, and bibliographic guidance. Natu- gustification for the Study The fairness doctrine, created to regulate the broad- ' sting of controversial issues, has, ironically enough, ‘HSPike and Fischer, Radio Re ulation, Pike and Fischer, Washington, D. C. (Weekly, 19 --to date). 1y a matter of moment when the broadcaster upublic trust. The fairness doctrine, as an trof public policy, must straddle the frontier hese two extremes. ‘ rmal course of its activities. The whole philosophy of gork has been peripheral to the central problem (See bibliographic references). Indeed, I” “one Masters Thesis was written on the subject of {7:}; ‘ 7. W IWSS doctrine some years ago, it appears that For these reasons, it seems that a thorough and walarly study is not only Justified, but needed by the “ademic community if we are to understand this important 'ce of regulation. CHAPTER II ,the,great Minoan age centuries ago. These basic “ed of further protecting it. That it is vital is at- Jted to by Socrates, who said, "The sun might as easily finstitutions of society." Ironically, Socrates was 'in what amounted to a freedom of speech case, and is life for his views. And Demosthenes, the Gre— “orator said, "No greater calamity could come upon . J. Patterson, Free Spe eech and a Free Press (Bos- tt e, Brown, and Co., 1939)] pp. 7- 18. 10 .if an idea has sufficient value and appeal, it 'e‘Stifled by censorship. He uses as his example ETigure from the Judeo-Christian cultural milieu. ‘Ifihbws that Christ was tried in a freedom of speech iéfle has blasphemedl), and lost his life for his views. 2 Aheless, those same views could not be stamped out. the desire for freedom of speech is a part of our always been a reality is equally as clear. With the increasing complexity of society-—and pre— ..‘ 2John Stuart Mill, On Liberty, Great Books Edition, ‘}H~.3, pp. 274 et. seq., Chapter 11, "Of the Liberty of aught and Discussion. , 7‘ 12 fited it. Because the press is relatively available Early Regulation: 1912—1927 The advent of broadcasting had somewhat different fiualities, not as readily or universally accessible to 0],. I 4' “ 'hose who would express their ideas to the mass of their which we are here concerned. It is the horn on which ash and due process. The regulation of broadcasting (and, in a certain “g 13 -5the airwaves in the early 1920's. Stations .zgi .equently-in poor taste. Understandably, the public heard in the din. Despite the fact that the radio ndition continued to grow more serious. Many stations J ower: he had no authority to specify power or frequency, ‘right to limit hours of operation or to revoke the 337 Stat. 199 (1912). r. “The New York Times, July 23, 1922, Section 1, p. 17. also Walter B. Emery, Broadcasting and Government. 14,»~nsibilities and Regulations (East Lansing: Michigan Ta 7 University Press, 1961), Chapter 2. .11g537 Stat. 199 (1912)- 1H '.;series of conferences to find a solution. Hoover actor. . . . Public good must ever balance private esire; but its acceptance leads to important and ,ar-reaching practical effects, as to which there may not be the same unanimity, but from whi h, ’nevertheless, there is no practical escape. iris unclear whether Hoover intended to enunciate so elo- ‘ntly a statement repeated in more legalistic terms by ‘ural resource which were (and are) in limited supply, .;. 'hough the demand may be great. M With the public pressure continuing to mount, legis- Ye action seemed an obvious solution, and a series of on should take. Although this series of hearings is "Network Programming Inquiry, Report and t of Policy," FCC 60-970 (July 29, 1960), p. 729M. l5 ' The record of the initial hearings reveals that ass was even then aware that some broadcasters .-:procedures, which were later adopted by the Depart- 'l‘fith- of Commerce. But Hoover, still aware that the real ‘INIJL‘ eblem had not been solved, called still another confer— There was no positive result from either the Con— ss or the conference, so Hoover called a Fourth National dio Conference, which met in November, 1925. At this - 7Hearings before the House Committee on Merchant fine and Fisheries, 68th. Cong. , 1st. Sess., on H. R. pp 82, 83, 179 (1924) 8Third National Radio Conference, Recommendations .e;u1ation of Radio (Washington, D. October 6-110, ,pp.'l-2. l6 ,figarwa great deal about freedom of the air, ’ ere are two parties to freedom of the air, , freedom of speech, for that matter. Cer— ly in radio I believe in freedom for the ener. . .'. Freedom cannot mean a license very person or corporation who wishes to «castrhis name or his wares, and thus monop- S the listener's set. ’ vFinally, stating a philosophy which has become the 'stone of the regulation of broadcasting in the United , es until today, he said: The ether is a public medium, and its use must be for public benefit. . . . [The main] consideration in-the radio field is, and always will be the .great body of the listening public, millions in ,yq number, countrywide in distribution. There is no I ‘proper line of conflict between the broadcaster f7; and the listener. . . . Their interests are mutual, for without the one, the other could not exist. The Federal Radio Act of 1927 ‘f‘ Although the Fourth National Radio Conference recom- m1, .jw7lmnnded new legislation, and the pressure from other sources (‘1':- dncreased, action by Congress was sporadic and rather unpro- ling to provide equal time and facilities to candidates .public office, authorizing license revocation if the nsee "has been guilty of any discrimination, either 1 9Fourth National Radio Conference, Proceedings and mmendations for Regulation of Radio (Washington, D. C., mber 9—11, 1925), p. 7. { 1°1bid. 17 .ge Or as to service . . ."11 This provision, _flan amendment on the floor of the house, was simi- Vone proposed in the White Bill (an anti-monopoly (3 in the 1922—23 session.12 The author of the 'Kever done in the past.13 He favored a strong Radio and apparently was aware of the difficulties which If the strong arm of the law does not prevent ‘ monopoly ownership and_make discrimination by .‘stations illegal, American thought and American “politics will be largely at the mercy of those who operate these stations.14 (Emphasis sup— plied). Although he was clearly concerned about the pos- ‘ 'For publicity is the most powerful weapon that can be wielded in a Republic, and when such a weapon is placed in the hands of one, or a single selfish group is permitted to either tacitly or otherwise ' acquire ownership and dominate these broadcasting 11H. R. 9971, In The Senate of the United States, 15 (calendar day March 16), 1926, pp. 10-11. V‘."123, R. Report No. 1u16, 67th. Congress, “tho Ses- “»~p. A, and 67 Cong. Rec. 2329. 1367 Cong. Rec. 5558. lU’Ibid. Y‘V* 18 ho dare to differ with them. It will be pitical parties, and all spokesmen for the various . 'jof political questions or issues be offered equal {M Vfane to the action then under debate, and it was not ered for later consideration in the House.17 (These ments are to be found in the fairness doctrine and in he- equal time provisions of the amended Communications HJ)« . '537Ast .of 193u.18) ‘tions to operate as common carriers for purposes of V he,discussion of any question affecting the public."19 151bid. ‘1 l667 Cong. Rec. 5559- AVIbid. 5‘18u8 Stat. 106A, Sec. 315. IIQSenate Report No. 772, 69th Congress, lst Ses- l9 Mr. Howell: Mr. President, 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 analogy. . . . We have tens of thousands of newspapers, magazines, and other publications, but there is now from necessity, and will be hereafter, only a limited number of radio stations. As the Senator from Washington stated yesterday, the total number of stations that are now authorized for broadcast— ing is about 500 . . . and there are certain great interests in this country that have radio stations which practically cover the United States. We are all familiar with the results of propa- ganda, 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 recognized that, so far as principles and policies are concerned, 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 20Hearings before the Senate Committee on Interstate Foreign Commerce, 71st Congress, 2nd Session (on , Part 13), (1930L (Testimony of former N.B.C. Presi— gent Aylesworth), and 67 Cong. Rec. 12502 (1926). 2O ”tion allowed the discussion of a public ques- ion it must afford, if requested, an opportun- hi to present the other side. ‘u I think it was the view of the committee that if any subject was to be presented to the public “by any of the limited number of stations, the Wfsther side should have-the right to use the same ‘ forum; and if such privilege were not to be granted, ‘ then there should be no such forum whatever. . . . " Mr. President, to perpetuate in the hands of a ‘g'comparatively few interests the opportunity of ‘ reaching the public by radio and allowing them -alone to determine what the public Shall and Shall not hear is a tremendously dangerous course for Congress to pursue. . . . 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 news— papers. Yes, that is true; but anyone is at lib- erty to start a newspaper and reply. Not so with a broadcasting station. However, there are only about 500 who are allowed the privilege of con- ducting broadcasting stations, and there are not as many broadcasting stations as there are fingers on one of my hands——not more than that-—that have the privilege of covering the entire United States. . . The Senator from Washington has left in the bill a provision respecting candidates. It is impor- tant, but it has not anything like the importance of the provision he has sgiicken out--the discus- sion of public questions. But Senator Dill had determined to delete the men- l;tion of the discussion of public questions. He responded: Mr. Dill: I sympathize with a great deal of what the Senator is saying, but I want to remind the Senator of the danger of having the words "public questions" in the bill. That is such a general term that there is prob— ably no question of any interest whatsoever that could be discussed but that the other side of it could demand time; and thus a radio station would be placed in the position that the Senator from Iowa mentions about candidates, namely, that they 2167 Cong. Rec. 12503—0u (1926). 21 Fhave to give all their time to that kind ‘cussion, or no public question could be §HI say, I sympathize with the Senator' s tion; but the opposition to that was so .,7 ate await developments, and get this organi- "tion to functioning, and the bill can be nded in the future. Q just wanted to leave that idea with the Sega- (Wtor as to my reasons for taking the View I do. the licensee. The remarks of Senator Howell reveal that The Dill amendment provided that: =, .If any licensee shall permit a broadcasting sta- tion to be used by a candidate or candidates for 22Ibid. 23Ibid. 22 lic office, he Shall afford use of such (sting station: Provided that such licensee _ have no power to censor the material broad— under the provisions of this paragraph, and 1 not be liable to criminal or civil action . It seemed unwise to put the broadcaster under ‘the hampering control of being a common carrier ‘ and compelled to accept anything and everything that was offered to him so long as the price was paid. . . . 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 candidgtes for Congress should have an equal right.2 Despite this stand, Dill had said in the hearings ans) under the original Act of 1926: Commissioner Robinson: Let us go farther and say that one of the stations in Washington, WMAL, Q would to-night put on a forceful speech against labor, making a strong argument against labor, labor organizations. Ought not labor to have the opportunity to reply with equal facility? If denied, how about equal opportunity for freedom .of speech? It is, after all, merely an enlargement ’V“ 23 gs‘natural transmitter. I am using a fre- y-from my transmitter to your receiving set ~bmmissioner Robinson. Of course, I think in lylegal concept the law requires it now. I do rsee that there is any need to legislate about fit It will evolve one of these days. Somebody ill go into court and say "I am entitled to this .opportunity," and he will get it. “. Senator Dill: Has the commission considered the ‘guestion of making regulations requiring stations to do that‘7 . Commissioner Robinson: Oh, no. .Senator Dill: It would be within the power of -the commission I think, to make regulations on that subject.25 Nevertheless, because, as Dill put it, "the opposi- iéion to that was so strong in the minds of many," he nar- 16wed the bill when it came to the floor.27 In any event, J¢$fiith the vote on the bill coming in the final minutes of ‘““fi§he Session (and, indeed, with the possibility of any faquabble delaying the legislation for months), Senator .ficwell's plea to check abuses at the beginning went un— useded, and the Dill amendment was passed.28 When the ill later went to a conference committee, the wording "of the D111 amendment was changed slightly, but, in es— “ '1’" .1; 2’4 ‘0 1 : J 1 . r W W“ ‘ q t .. The Commission Develops a Policy Although the Federal Radio Commission's earliest ‘ks-consisted primarily in unsnarling the problems of “-quency assignments, licensing, and other primarily N§Commission in these earliest days became the basis later development of the fairness doctrine. One of f 29Hearings on H. R. 7357, 69th. Congress, 1st Ses— pp. 82-83, 179 (192”)and Hearings on S. 1 and S. 175“, W“ . .' 25 ‘aas under consideration. Clearly, this step “=ito the development of the fairness doctrine, the Commission were to issue and renew licenses ‘on the basis of technical considerations, it is ult,to see how the doctrine could have emerged. yearly and significant license—renewal case, WEVD, 'rfar left to the exclusion of almost all other views.30 ('9 Commission, calling WEVD the "mouthpiece of the W Socialist Party," cautioned that the views of others , must be given due regard. 31 Schmidt, in his thesis ’Telating to the subject of the fairness doctrine, men- ions several other stations which had been operating uflmnder somewhat similar circumstances, notably WIBA, I Wison, Wisconsin ("Spokesman for the LaFollette pro- cesive movement").32 While the Commission apparently pd not have the full force of either law or formal le with which to deal with this situation, it committed 3OSee Federal Radio Commission, Second Annual t (1928), pp. 15A- 160. 311b___i_d. ‘fi132Larry D. Schmidt, The Development of the Federal .m-,..i_...- __..__ -s- - - i fVD ‘ 26 lite in August of 1928, to the view that: 4 it’. the constitutional guaranty of freedom of ech applies to the expression of political ; religious opinions, to discussions, fair bmments, and criticisms on matters of general blic interest, of candidates, of men holding blic office, and of Igglitical, social, and ‘_onomic issues. . ‘:¥0n the other hand, it was the opinion of the Com- ion that the First Amendment did not apply to the 4f ' ing’"of personal disputes and private matters," or 'entertainment programs as such."3u This latter View most interesting in view of the recent developments d extensions of the fairness doctrine into hitherto 17~undreamed of areas. In any event, the Commission, having “in ‘fashioned the principle by which to operate, thereupon enied the licenses of several stations whose owners had Vfieed them as personal instruments: WCOT was denied [renewal because its owner had used it to campaign for “public office and to attack his personal enemies, and Imithin a short time the names of Schuler and Brinkley Gwould become familiar to members of the Commission, as 3they had been to the general public for some time.35 It ‘ 33Federal Radio Commission, Second Annual Report ,8), pp. 159- 161 (In re: WRAK). T“3”Ibid. 35Ib1d-, pp. 152—153- ,M' emission's~right to assign frequencies and the times of 28 '»'w 9 Commission saw it, was whether every "school of 1,?iyqught" should have its own station, or whether it must ‘lfi;fgn§ time on an already existing station to voice its {ziyiews. The question which ultimately went to the courts Ings Whether the Commission exceeded the authority it had been granted by Congress in making the frequency and time assignments which it ultimately decided upon. The . ?[ courts supported the Commission's action. Fundamentally, :,however, the Commission's decision was based upon the nebulous question of "public interest" and what consti- tutes this public interest which the Commission had been [Li charged by Congress with protecting. The response of the Commission is similar in tone to Hoover's earlier remarks to the series of radio conferences, for it said _that: Again the emphasis is on the listening public, not on the sender of the message. It would not be fair, indeed, it would not be good service to the public to allow a one-sided presentation of the political issues of a campaign. In so far as h‘: ‘a ro ram consists of discussion of public ques- ' tIons,,public interest requires ample play for . 1— V"” 37Great Lakes Broadcasting Company, FCC Docket No. ; Agricultural Broadcasting Company, Docket No. 4902; I'ur»G1en Voliva, Docket No. #901. See also note 38 29 the free and fair competition of opposing views, 533 the Commission believes that the principle applies not only to addresses by political can- didates but to all discussions of issues of im— portagge to thg,public.3° (Emphasis supplied). This clear statement of what was later to become the essence of the fairness doctrine is clearly not based ,upon the notion of equal time, but upon the construction of the term "public interest, convenience, and necessity." The Commission explicitly made this clear—~that the above— quoted doctrine was to be the policy of the Commission and that it was based upon public-interest considera- tions-—when it said, in the same report to Congress: Broadcasting stations are licensed to serve the public and not for the purpose of further- ing the private or selfish interests of indi- viduals or groups of individuals. The standard of public interest, convenience, or necessity means nothing if it does not mean this. The only exception to this rule has to do with advertising; the exception however, is only apparent because advertising furnishes the economic support for the service, and thus makes it possible. . . . The commission believes that . . . the emphasi should be on the receiving of service and the standard of public interest, convenience, 8g necessity should be construed accordingly. Thus, the Great Lakes Broadcasting case formed the basis for a standard of fairness based on the concept that the listener's interest and the public interest are synonomous, and that the public interest is paramount. It would seem that much of the controversy over the fair— ness doctrine has resulted from a questioning of the 38Federal Radio Commission, Third Annual Report (1929), P- 33- 391bid., pp. 32-33. .3, .1: . 30 flbmmission's basic assumptions, particularly the equation W‘f.the listener's interest with the public interest. Placing the Great Lakes case in perspective is some- ‘that difficult, for there are several regulatory concepts ‘zinvolved. Because it based its decision in this case on ‘ fijlthe public interest clause of the law, the Commission was fl?fl able to promulgate a very basic policy which would later serve in-cases concerning the Commission's licensing I authority, fairness problems, and, most immediately, pub- lic interest-private interest controversies. The fair- ness doctrine is linked directly to such famous cases as NO the KFKB-Brinkley litigation and the Shulerul Trinity Methodist Church case. These cases, in turn, are directly related to a dogmatic statement of the Commission in sup- port of its decision in the Great Lakes and similar cases: In such a scheme [as the American system of broadcasting] there is no room for the opera— tion of broadcasting stations exclusively by or in the private interests of individuals or groups so far as the nature of the programs is concerned. There is not room in the broadcast band for every school of thought, religious, political, social, and economic, each to have its separate broadcasting station, its mouth- piece in the ether. If franchises are extended to some it gives them an unfair advantage over “OKFKB Broadcasting Association v. Federal Radio CommisSion (June 13, 1930), affirmed 6O App. D.C. 79, A? d 70 (1931). To be discussed subsequently in this dissertation. ulTrinity Methodist Church South v. Federal Radio Commission, 61 App. D.C. 311, 62 F(2d) 850 (1932). To . be subsequently discussed in this dissertation. 31 others, and results in a corresponding cutting down of general public service stations. It favors the interests and desires of a portion of the listening public at the expense of the rest. Propaganda stations (a term which is here used for the sake of convenience, and not in a derogatory sense) are-not consistent with the most beneficial sort of discussion of public— guestions. As a general rule, postulated on the laws of nature as well as on the standard of public interest, convenience, or necessity, par— ticular doctrines, creeds, and beliefs must find their way into the market of ideas by the exist- ing public service stations, and if they are of sufficient importance to the listening public the microphone will undoubtedly be available. If it is not, a well-founded complaint will re— ceive the careful consideration of the commission in its future action with reference to the sta- tion complained of. The contention may be made that propaganda stations are as well able as other stations to accompany their messages with entertainment and other program features of interest to the pub- lic. Even if this were true, the fact remains that the station is used for what is essentially a private purpose for a substantial portion of the time, and in addition, is constantly subject to the very human temptation not to be fair to opposing schools of thought and their representa- tives.”‘ (Emphasis is supplied). If there could be any doubt that the commission had promulgated a policy of fairness, the commission, in dis- cussing possible defects in this argument, says explicitly: A defect, if there is any, however, would not be remedied by a one-sided presentation of a controversial subject, no matter how serious.”3 uzFederal Radio Commission, Third Annual Report (1929), p. 34. Note that the Commission herein established the procedure to be followed in fairness cases. Note also that the commission used many of the words and phrases which were later used in more formal promulgation of the fairness doctrine. Disregarding the emphasized passages, it is not difficult to ascertain the relationship between this statement and more recent cases such as those in Red Lion and Media, Penn. (which are subsequently discussed). “31b1d., p. 35. 32 fiasainst charges of censorship. The group states that its VBtandards do not transgress the provisions of section 29 for the radio act of 1927 (prohibiting censorship by the ”Commission), and adds: It [the Commission] does not, either by rule, regulation, or order, forbid or curtail the full scope of the free excmange of ideas on all mag: ters of importance to the public; it simply is applying the standard of public interest, con- venigmge, or necessity which, under the statute, .must control its every action. It desires to Eliminate matters of private interest only to make room for the already excessive demand of the public interest. It is not imposing any prior restriction on utterance (the usual con- cept of censorship), but is reserving the right to take into account a station's past conduct, measuredufiy the legal standard, in its future actions. (Emphasis supplied). Thus the fairness doctrine was born, to be ampli- fied by later decisions of the Commission and the courts, to be praised and to be damned, and to be the subject of extensive litigation. The Policy is Tested The Policy of the Commission had no sooner been pub- 'lished than several licensees came before the group (pri- ,.mar11y in license renewal cases), only to discover that Aqubid. 33 ‘ héfily~stated policy would mean denial of their fifiéfises. Three of these cases are sufficiently signifi- ant to merit detailed consideration herein: KFKB-Dr. Lthe Commission' 3 policies. In point of fact, all ele- Hments of the policies of the Commission were not reviewed :by the courts, but the effect of these decisions was to approve the actions by which these policies were carried out administratively. Although the distinction is a fine one, it is important to note that the fairness policies 'Tm per se were not reviewed; the courts simply found no error ”Erin the actions which carried these policies into practice. " The KFKB case (more properly, KFKB Broadcasting . Association) is one of the most interesting pieces of- litigation in the history of broadcast regulation-~and, indeed, in the history of medical regulation.)46 KFKB usThere are other cases which, although interesting and significant, do not appear to have had such broad implications. See particularly Chicago Federation of Labor v. Federal Radio Commission Third Annual Re ort (I929), affirmed, El F(2d) H22 (1930). See also Federal y Radio Commission v. Nelson Bros. Bond and Mortgage 00., 'e5. aI., 289 U.S. 266, 53 S. Ct. 627 (1933). ,W 1‘6KFKB Broadcastin Association v. Federal Radio ,Gommission, d (1931). An interesting book 3 about Dr. Brinkley and 7his whole career is Gerald Carson's F(The Ro uish World of Dr. Brinkley (New York: Holt, Rine- Hart, 5 Winston, 1960). 3” First, Kansas Best) was owned by one Dr. John R. 'table businesses-~the Brinkley Hospital, the Brinkley V;ceutical Co., and even the Brinkley Methodist Church pflfcal talks by Dr. Brinkley. Dr. Brinkley soon discovered that he could make a :great deal of money by prescribing by mail. He answered “:1etters on the radio, and prescribed his own numbered ijrescriptions for castor oil, Epsom salts, aspirin, and “:other'common remedies; the prescriptions were sent out from his own drug company upon receipt of the fee required: Here's one from Sunflower State, from Dresden, Kansas. Probably he has gall stones. No, I don't mean that, I mean Kidney stones. My advice to you is to put him on prescription No. 80 and 50 for men, also 6“. I think that he will be“? whole lot better. Also drink a lot of water. Soon, after protests from local pharmacists, Dr. ‘Brinkley signed up more than 1,500 druggists from coast to coast, each of whom sent one dollar for each Brinkley 59prescription filled: , 7 ‘Now here is a letter from a dear mother—-a dear .Vj ‘mother who holds to her breast a babe of nine , 7*;;menths. She should take No. 2 and No. 16, and %.yes--No. 17, and she will be helped. Brinkley's 3‘2, 16, and 17. If her druggist hasn't got them, 35 she should write and order them from the Mil~ ford Drug Co., and they will be sent to you, Mother, collect. May the Lord guard and pro— U8 tect you, Mother. The postage will be prepaid. Brinkley netted more than $728,000 each year from the sale of his nostrums, and angered the American Medical As- sociation, which was only one of the many groups complain- ing to the Commission to rid the airwaves of Dr. Brinkley. In 1931 the Commission denied Brinkley renewal of the KFKB license on the grounds that he used the station to further his own business, rather than to serve the public, and that he had prescribed over the air for patients he had never seen, thus endangering the public health, which is not in the public interest.“9 In any event, the basis for the Commission's decision was the public interest clause of the radio act. In appeal, Brinkley charged that the Commission had exceeded its authority in considering program content, and that it was, in effect, exercising the power of censor- ship. Upholding the Commission, Judge Robb, writing for the court, held that it was prOper for the Commission to declare that broadcasting was public in character. He concluded his opinion with the statement (somewhat ana- thema to the fairness doctrine, it would seem) that, "obviously, there is no room in the broadcast band for "50 every business or school of thought. In light of his decision, however, we must assume that he meant to 48 “9 Ibid. Ibid. Ibid. 36 uphold the Commission's position that although all schools of thought might not be denied access to the microphone, they might not all own their own broadcasting stations. In the Schaffer Broadcasting case, KVEP (Portland, Oregon) was denied renewal because of what the Commis- sion called "the nature of the broadcasts which have been emanating from this station."51 The broadcasts referred to were made by one Robert G. Duncan, an unsuc- cessful political candidate, who denounced bitterly over the air those whom he believed to be responsible for his defeat. These personal attacks were phrased in highly abusive language. To the dismay of the station licensee, the Commission held that: Although the licensee . . . did not actually participate in these broadcasts, they were ren- dered with his knowledge under a contract pre- viously made with the aforementioned Robert G. Duncan. The claim that he [the licensee] dis- approved much of the language used is not sus- tained by the evidence since, as proprietor of the station, he hadSEull authority over all programs broadcast. With that, the renewal was denied, and it was established that the licensee is responsible for not only what he personally says, but for the entire program content of the station. By extension, the licensee is also respon- sible for what is not broadcast. 51Schaeffer Radio Co. v. Federal Radio Commission, Dockgt No. 5228 (June, 1930), and FRC Fourth Annual Report, p. A . 52Ibid. See also Duncan v. U. 8-, ”8 F(2d) 129' 37 The Trinity Methodist Church South case is almost as famous as the Brinkley case. In Trinity, the station licensee, the Reverend Dr. Shuler, was denied renewal because he had attacked Jews, Catholics, the courts, pub- lic officials, and private individuals. In some cases, he stated that he had certain damaging facts about a famous person in Los Angeles, and that unless this per- son indicated repentance for his sins by sending a dona- tion, Dr. Shuler would disclose these indescretions. He received donations from more than one person who was sure he was the person referred to. The courts upheld the Commission when the case came to appeal. Said the Court, in a particularly eloquent (if syntactically obfuscating) statement: If it be considered that one in possession of a permit to broadcast in interstate commerce may, without let or hindrance from any source, use these facilities, reaching out, as they do, from one corner of the country to the other, to obstruct the administration of Justice, offend the religious susceptibilities of thousands, inspire political distrust and civic discord, or offend youth and innocense by the use of words suggestive of sexual immorality, and be unanswerable for slander only at the instance of the one offended, then this great science, instead of a boon, will become a scourge, and the nation a theatre for the display of indi- dividual passions and the collision of personal interests. This is neither censorship nor pre- vious restraint, nor is it a whittling away of the rights guaranteed by the First Amendment, or an impairment of their free exercise . . .5 53Trinity Methodist Church South v. Federal Radio Commission, Docket No. 5561, 61 App. D.C. 311, 62 F(2d) 850 (1932) (cert. denied) 28A U.S. 685, 288 U.S. 599. 38 With these court decisions, we find the fairness doctrine already rather well developed. The Commission held, in discussing the Great Lakes Case, that public interest would be the controlling factor in future deci- sions, and furthermore, that fairness demanded oppor- tunity for all schools of thought to have an opportunity to present their views on controversial public issues, although not necessarily over stations to be used exclu- sively for this purpose. Secondly, it was established that the Commission would entertain complaints against stations which did not follow this construction of the public interest provision. In addition, the courts held that broadcasting is to be public in character, rather than private, and that the Commission has the right to consider past performance in determining its future action toward a station. Furthermore, it was held that the Commission does not violate the censor- ship proscriptions by causing the broadcaster to live up to its standards of public interest. Clearly, then, after less than five years of radio regulation and court action, the administrative and Judicial basis for the fairness doctrine was already evident. Congress Tackles the Fairness Problem At approximately the same time as the Judicial tests of the Commission's policies--the period from l929-l932--Congress began to take note of the fairness 39 problem. Those individuals and groups which desired to promulgate their views by means of radio had discovered that they could not obtain frequencies for operation of their own stations, and they could not readily arrange for use of existing "public service" stations. Claiming discrimination, some of these groups took their plight to the halls of Congress. Undoubtedly it also occurred to several legislators that they might themselves be denied use of a station at campaign time, or even for an informative broadcast to their constituants.5u Thus arose several proposals for new legislation which would write the fairness doctrine into the law. Although the pressure for such a bill was not extreme in the earlier period, it was certainly felt by Congress. In 1929 and 1930, a group of so-called "Progressives"--Republicans revolting against the policies of the Hoover administra— tion--openly proposed fairness legislation. It has been said that the Progressives feared that the broadcasters might favor the Hoover administration to the disadvantage of the more liberal wing of the party.55 Finally, in the 72nd. Congress (1931-32), the fair- ness doctrine became an important issue, and a bill was passed by both houses which amended section 18 of the 5”Elmer Smead, Freedom of Speech by Radio gpd Tele- vision, Public Affairs Press, Washington, D.C. (19597: p. 53. 55Ibid. See also Schmidt, op. cit., p. 20. MO Radio Act of 1927. The amended section, as approved in conference and passed by both houses, said: Section 18 (a). If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting sta- tion, 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 in sup- port of or in opposition to any candidate for public office, or in the presentation of views on a public question to be voted upon at any elec- tion, or by a government agency, he shall afford equal opportunity to an equal number of other per- sons to use such station in support of an opposing candidate for an opposing candidate for such pub- lic office, or in reply to a person who has used such broadcasting station in support of or in Opposition to a candidate, or for the presenta- tion of opposite views on such public question. (Emphasis supplied). (b). The Commission shall make rules and regu- lations to carry this paragraph into effect. No such licensee shall exercise censorship over any material broadcast in accordance with the provi- sions of this Section. No obligation is imposed upon any licensee to allow the use of his station by any candidate, or in support of or in opposi- tion to any candidate, or for the presentation of views on any side of the "public question." (c). The rates charged for the use of any sta— tion 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 furnish- ing regular programs, and shall not be discrimina- tory as begween persons using the station for such purposes.5 Perhaps because the bill was largely the work of tweriegade members of his own party, President Hoover exer- Cidsed a pocket veto, and the bill failed to become law. EDI: the fairness issue was not dead, as the Congress soon discovered. 5676 Cong. Rec. 3768. Al The National Broadcasting Company had, after a ser- ies of undesirable experiences, denied the use of its facilities to the Jehovah's Witnesses sect. The group had attacked other religious groups with great fervor. Following NBC's action, the sect complained to the Fed- eral Radio Commission, but did not receive satisfaction. Thereupon, the Witnesses appealed to Congress for legis- lative action to ameliorate their misfortune, and a bill was introduced in the House which added educational and religious speeches to the equal-opportunities section of the radio act.57 An even broader bill was introduced at the same session (in the Senate) which would have forced loroadcasters to give equal Opportunities for the presenta- tzion of all points of View on all subJects "so far as possible."58 Neither of these provisions was made law. By this time (193“), the Congress had grown aware ()1? the increasing complexity of the communications industry 2111. the United States and the need for increased watchful- rleesss on the part of government to safeguard the public erltzerest. This new awareness, together with some public pressure, led to the consideration of an entirely new act Which would encompass the entire spectrum of communications, fiduczluding not only radio, but all interstate and interna- tiOnal telecommunications. Again the fairness issue came * 57H. R. 7986, 73rd Congress, 2nd Session (193“). 588. 2910, 73rd Congress, 2nd Session (193“). H2 to the attention of the Congress as hearings began on the proposed new Communications Act of 1934. There was some strong feeling for enlarging the provisions of the old radio act to include a section on fairness. After lengthy hearings, the Senate Committee on Interstate Commerce recommended a Section 315 (of the Communications Act of 1934) which was substantially iden- tical to the bill which had been previously passed by both houses, only to be the victim of Hoover's pocket veto.59 Indeed, the bill was passed by the Senate in substantially this form. When the bill was sent to a conference, however, the new Section 315 was subJected to the knife, and finally emerged as an exact duplicate of Section 18 of the old Radio Act. Thus, the Communica- tions Act of l93A--the act which still controls electronic (communications in this land--was passed and signed into Llaw without a fairness provision, despite the best efforts cxf Congress and many individuals.60 But the attempt to get a fairness law on the books was not over. In 1935, Congressman Byron Scott introduced an ill-fated bill which MHDLlld have required a period of uncensored discussion on each station at a desirable time of the day, provided by trier licensee on a non-profit basis, and offering equal _ 59Senate Report No. 781, 73rd Congress, 2nd Ses- sion (1934), p. 8. 60MB Stat. 106A, June 19, 193A. c. . .8Mfiggil'am‘ i ...- . “3 facilities to at least one advocate of each of the opposing viewpoints.61 The bill could not muster the required sup- port, and failed to become law. Thus, amid a tumult of opinion concerning the fair- ness doctrine, The Federal Communications Commission was born, and charged with the regulation of broadcasting in the public interest, convenience, or necessity. Significant Cases Much of the Commission's earliest work involved the consolidation of its efforts in facing the newly expanded work before it. With regard to the fairness doctrine, however, the Commission was to issue no maJor new policy until six years later, when the Mayflower case presented itself. During this six—year period, however, there were seweral cases whose significance is magnified by the later <10ntroversy over the fairness doctrine. Several of these (Lases did not involve radio regulation directly, but rather turned on constitutional issues (primarily free— cicun of speech and press) and the predictable tests of the Commission's authority. In some cases, it is obvious tlléit the full import of the litigation was not felt in true; field of radio regulation until almost our own times, when these forgotten cases have been dredged up to sup- POI’t pleadings attacking and defending the fairness doc- trfiirieu —_.__ 61H. R. 9230, 74th Congress, lst Session (1935). nu Although it is both unnecessary and unprofitable to review in detail all the fairness-related cases of the 193U-19A0 period, some brief comments will adequately serve as a point of reference for later discussion; cer- tain cases in the period before 193A will also be con- sidered chronologically. It has often been said that the Commission does not have specific statutory authority for the adoption of the fairness doctrine. This argument is frequently supported by reference to Milwaukee Publishing Co. v. Burleson,62 where the court says, in a dissenting opinion, that the power to regulate First Amendment freedoms cannot be founded in imprecisely worded statutes. The thrust of this argument is that there is no specifically stated intent of Congress in the statute to allow the Commission ‘to abridge (if, indeed, it does) the rights of free speech (1f licensees by burdening them with the fairness doctrine. In 1924, in the case of Commonwealth v. Boston {Piranscript Co.,63 the court pointed out that although freedom of the press and freedom of speech are constitu— txiconally guaranteed, it is not the province of govern- Uuarit to secure for every individual or group of individuals _* 62Milwaukee Publishing Co. v. Burleson, 255 U.S. u07, 437 (1921). 63Commonwealth v. Boston Transcript Co., 249 Mass. “77, 11111 N.E. l100 (192A). 45 free and equal access to the press. Those who wish the fairness doctrine struck down point out that in effect, the Commission, as an agency of government, is attempting to guarantee free and equal access to the broadcast media, which are considered to be a part of the press.614 The case of Whitney v. California,65 a criminal syndicalism prosecution, is interesting in that it can be used to both support and attack the Commission's ac- tions with regard to fairness. Mr. Justice Brandeis, who, with Mr. Justice Holmes wrote the concurring opin- ion, said, with his customary eloquence, [The men who won our independence believed] that public discussion is a political duty; and that this should be a fundamental principle of the American government. Believing in the power of reason as applied through public dis- cussion, they eschewed silence coerced by law-- the argument of force in its worst form. 6 Those who use the case to attack the fairness doc- ‘trine say that the doctrine stifles public discussion taecause it burdens the broadcaster, thus preventing the txroadcaster from living up to his "political duty." On ‘tlie other hand, supporters of the doctrine point out that :itzs purpose is to encourage fair presentation of all Ilsssues, which is the essence of public discussion--thus 56b helps the broadcaster to do his "political duty." —_.__ 6L'This latter contention is supported by Lovell v. Sfiltiy'of Griffin, note 73 infra, and several other cases. 65Whitney v. California, 27A U.S. 357, 375-6 (1927). Sees also Thornhill v. Alabama, 310 U.S. 88,95, where Mr. Juistice Frankfurter says much the same thing. 66Ibid. A6 The case of Near v. Minnesota,67 cited in many sub- sequent actions, provides one of the best bases for attack of the fairness doctrine, and has been widely used for this purpose. In this 1931 case, the court held that the right of a menber of the press to present its views on public issues cannot be made dependent on his publishing some other matter: It does not matter that the newspaper or peri- odical is found to be 'largely' or 'chiefly' devoted to the publication of such derelictions [defamation]. If the publisher has a right, without previous restraint, to publish them his right cannot be deemed to be dependent upon his publishing something else, more or 18828 with the matter to which objection is made. One of the most widely quoted and obviously import- ant cases to emerge from the pre-Mayflower period is a freedom of the press case, GrosJean v. American Press £22.69' This 1936 litigation was brought to a conclusion tvith the statement of the Court that, It is impossible to concede that by the words 'freedom of the press' the framers of the amend- ment intended to adopt merely the narrow View then reflected by the law of England that such freedom consisted only in immunity from previous censorship; for this abuse had then permanently disappeared from English practice.7O 3Tb should be noted that the usual notion of censorship iriczludes the examination of material by a censor prior ¥ 67Near v. Minnesota, 283 U.S. 697 (1931). See also Etuarunull.v. Alabama, 310 U.S. 88,95. 68Ibid., at 720. 69GrosJean v. American Press Co., 397 U.S. 233 (1936). 7OIbid., at 2A8. “7 to broadcast; it is Just this narrow interpretation that opponents of the fairness doctrine seek to prove improper in citing GrosJean. It is then said that fear of Commis- sion action constitutes censorship by threat. In~a case which is cited surprisingly often (in this writer's opinion, for it is a case that appears to say much less than one might be led to believe by attor- neys seeking to overthrow the fairness doctrine) the Pulitzer Publishing Co. entered into litigation with the Federal Communications Commission.71 The gist of the court's decision was that radio is not a utility, con- trary to the urgings of Pulitzer's counsel. The court added that: The licensee of a radio station chooses its own advertisers and its own program, and generally speaking, the only requirement for the renewal of its license is that it has not failed and will not fail to function in the public interest.72 IBut as had been previously pointed out in this disser- 1:ation, the Commission has consistently based fairness (fleecisions on the failure of the station to operate in ‘tlie'public interest by reason of its having ignored the tenets of the doctrine. By 1938 there had, of course, been considerable Idiisigation on freedom of the press, and a considerable ¥ 71Pulitzer Publishing Co. v. FCC, 68 App. D.C. : 9“ F(2d7‘2u9 (1937)- 72Ibid., at 251. 1224 A8 body of case law had thereby been developed. Thus, in Lovell v. City of Griffin,73 it is not surprising to see the statement by the court that "the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."7u While this case has been used to support the notion that radio falls within the protection of freedom of the press, it is also noteworthy that the court used the word "publica- tion," although at that time radio was an active force in news gathering and reporting. In an important case, which came before the Com- mission in 1938, the principles previously pointed out in Great Lakes and Chicago Federation of Labor, and ampli- fied in Trinity and KFKB, were reiterated. With reference to Young People's Association for the Propagation of the (Eospel, the Commission said, Where the facilities of a station are devoted primarily to one purpose and the station serves as the mouthpiece for a definite group or organi- zation, it cannot be said to be serving the gen- eral public. That being the case, if one group or organization is entitled to a station facility for the dissemination of its principles, then other associations of equal magnitude would be entitled to licenses on the same grounds. Obviously, there are not a sufficient number of broadcasting channels to give each group a sta- tion license. The Commission has accordingly considered that the interests of the listening public are paramount to the interests of the 73Lovell v. City of Griffin, 303 U.S. AAA (1938). 7“Ibid., at A52. “9 individual applicant in determining whether pub- lic interest would best be served by granting an application. ‘75 (Emphasis supplied). The pre-Mayflower era came to a close with the Com- mission becoming involved in extensive litigation concerning the Pottsville Broadcasting Company. While the case did not directly concern the fairness issue, the decision of Mr. Justice Frankfurter has been widely quoted, inasmuch as it points out two important facts: that the Commission correctly bases its decisions on the public interest clause of the law, and that the procedure the Commission uses to determine the public interest in a given case is entirely up) to the Commission, so long as it recognizes the fact tkuat both public and private interests are involved: In granting or witholding permits for the con- struction of stations, and in granting, denying, modifying, or revoking licenses for the opera- tion of stations, "public convenience, interest, or necessity" [sic] was the touchstone for the exercise of the Commission's authority. While this criterion is as concrete as the complicated factors for Judgment in such a field of delegated authority permit, it serves as a supple instru- ment for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy. Necessarily, therefore, the subordinate questions of procedure in ascertain- ing the public interest, when the Commission's licensing authority is invoked . . . were explicitly left to the Commission's own devising, so long, of course, as it observes the basic requirements designed for the progection of pri- vate as well as public interest.7 \ tr; 75Young People's Association for the Propagation of -.£? Gospel, 6 FCC 178, 181 (1938). 13 76FCC v. Pottsville Broadcasting Co., 309 U.S- l3“, 7, (19A0). ' 50 It is more than a little surprising that the broad- casters of the 1930's were not greatly concerned about i the Commission's actions, particularly in light of the decisions of the courts and the changing intellectual climate of the time. Indeed, it is evident that the wave of liberalism which would crest with the New Deal and the policies thereof was already gathering force, and the decisions of the courts frequently upheld rather liberal constructions of the constitutional liberties. ;But it is also a fact that broadcasters were not greatly txroubled by the earlier Trinity decision, KFKB Broad- cnasting Association, Chicago Federation of Labor, and otdiers. Great Lakes caused hardly a ripple of protest.77 To the distant observer, the threads of fairness wkuiczh began in the chaos of the early 1920's and in the inadequate legislation of the Act of 1912 are not impos- SiJDZLy tangled. Moreover, the development of the doctrine tfrrwough Hoover's urgings of the primacy of public interest as a criterion and the legislation of 1927 and the poli- cies of the Federal Radio Commission with their legacy tc’ ‘bhe Federal Communications Commission--all this devel- opment is clearly a part of the same fabric of thought, baged as it is on the mandate to serve the public interest. IT1€> Mayflower decision of 19AO is a disturbing and myste- IELlic service, stations are required to furnish well— tFDL-‘lnded rather than one-sided discussions of public ques- lens." 6 FCC Annual Reports 55 (19140). 55 silent ones, for they may not use the voice of the licen— see's own radio station. In fact, this is exactly what the Commission had in mind, for it continued in its land- mark decision, saying, The material in the record has been carefully considered and compels the conclusion that this licensee during the period in question, has revealed a serious misconception of its duties and functions under the law. Under the Ameri— can system of broadcasting it is clear that responsibility for the conduct of a broadcast station must'rest initially with the broad- caster. It is equally clear that with the limi- tations in frequencies inherrent in the nature of radio, the public interest can never be served by a dedication of any broadcast facility to the support of his own partisan ends. Radio can serve as an instrument of democracy only when devoted to the communication of information and ideas fairly and objectively presented. A truly free radio cannot be used to advocate the causes of the licensee. It cannot be used to support the candidacies of his friends. It cannot be devoted to the support of principles he hap- pens to regard most favorably. In brief, the broadcaster cannot be an advocate. (Emphasis Supplied).5I With this, the Commission clearly prohibited edi- tC>J:":'Lalizing by broadcast licensees. But, excepting the Iriégklt of a licensee to advocate one side of an issue, the COl‘l'n'nission went on to state a fairness policy: Freedom of speech on the radio must be broad enough to provide full and equal opportunity for the presentation to the public of all sides of public issues. Indeed, as one licensed to oper- EEG in a public domain the licensee has assumed the obligation of presenting all sides of important public questions fairly, objectively and withoUt bias. The public interest--not the private--is paramount.5 (Emphasis supplied). \ uIbid., at 339-3uo. 5Ibid. 56 The Yankee Network cried mea culpa, and filed affidavits stating that it had not recently editorialized, and that it would not do so in the future. Said counsel for Yankee, "There are absolutely no reservations whatsoever, or men- tal reservations of any sort, character, or kind with reference to those affidavits."6 With the licensee prop- erly penitent, the Commission granted the application for renewal, warning Yankee that it would not soon forget this case, particularly if the station should come to the Com— Inission's attention in the future.7 Thus, in January, L1941, the so-called Mayflower case came to an end. The Mayflower decision had far-reaching effects. Aliihough it did not substantially alter the already- esdsablished fairness doctrine--the fairness doctrine, it: Inust be remembered, evolved from the Great Lakes case hereinbefore cited—~it had the dramatic effect of banning eClixtorialization. It should be noted that the Commis- 314311 did not state that the broadcaster might editorialize if‘ <3thers were given the right to reply; the broadcaster, Séiixi the Commission, cannot be an advocate--under any cir- clilinistances. Furthermore, since the Commission's position “€155 given in an order which granted the renewal sought by trlei licensee, it was not subject to court review. Had tIIEE Commission denied WAAB's license, the licensee might hii"e*petitioned for a court review of the Commission's .____~_¥ . 61bid. 71bid., at 3M1. 57 actions; since the license was granted, there was no cause for action. There are certain important differences between the Mayflower case and the Brinkley-KFKB Broadcasting Associa- tion case which are worthy of comment. In the KFKB case, Brinkley devoted his station almost exclusively to the promotion of his own enterprises, and later, to his own candidacy for the office of governor of Kansas. In other cases decided at about the same time--Chicago Federation (of Labor, for example--the Commission and the courts were nnzch concerned that a station would become the mouthpiece of‘ its owners. In Mayflower, however, there is little to suggest that more than a very small amount of the program time was devoted to the views of the licensee, a fact ‘whuiczh the Commission's decision appears to overlook, for it: :speaks of "the dedication" of a broadcast facility to the support of the partisan ends of the licensee. The decision is further open to criticism on the ground that tile! Commission failed to establish that it is inherently a-8a:!.nst the public interest for the broadcaster to be an advocate under any conditions. In any event, it is clear tklélt the Commission failed to distinguish between the br'Oadcaster who used his station to air his own views, ar1c1 the broadcaster who aired his own views but denied 58 others the right to use his facility for the same pur- pose. The Chain Broadcasting Regulations The Mayflower case, perhaps more clearly than any case before it, raised the issue of the Commission's interference with the rights of free speech of the licen— sees. But, as was heretofore pointed out, this decision was not subject to review, so the authority of the Com- mission in this case went unchallenged. By May of 19u1, however, a new storm had begun. After a long series of hearings and a full scale inquiry, the Commission came to the conclusion that certain practices of the networks were not in the public interest, particularly those prac— tices relating to contractual arrangements between the networks and their affiliated stations. Therefore, on May 2, 19u1, the Commission promulgated certain regula- tions to curtail these practices.8 Predictably, the networks protested these regulations, and carried their case to the federal courts, and ultimately to the Supreme Court. The case was fought on the issues of the authority of the Commission to interfere with the business practices of licensees, and upon the abridgment of First Amendment freedoms. On May 10, 1943, Mr. Justice Felix Frankfurter (delivered his opinion which examined the basis of the F 8FCC Report on Chain Broadcastipg, Commission Order No. 37, FCC Docket No. 5060, May, 19711. 59 Commission's authority, and which would later be cited in many fairness cases: In the context of the developing problems to which it was directed, the Act [the Communica- tions Act of 193“] gave the Commission not nig- gardly but expansive powers. While Congress did not give the Commission unfettered discretion to regulate all phases of the radio industry, it did not frustrate the purposes for which the Communications Act of 1934 was brought into being by attempting an itemized catalogue of the specific manifesta- tions of the general problems for the solution of which it was establiShing a regulatory agency. That would have stereotyped the powers of the Commission to specific details in regula— ting a field of entertainment the dominant characteristic of which was the rapid pace of its unfolding.9 Thus, it was clear that the Commission might enjoy the support of its authority in the courts on a broad basis, without rigid adherence to specific detail, so long as the intentions of the act were carried out in an orderly and legal fashion. Mr. Frankfurter went on to discuss the First Amendment problems specifically: We come, finally, to an appeal to the First Amendment. The Regulations, even if valid in all other respects, must fall because they abridge, say the appellants, their right of free speech. If that be so, it would follow that every person whose application for a license to operate a sta- tion is denied by the Commission is thereby denied his constitutional right of free speech. Freedom of utterance is abridged to many who wish to use the limited facilities of radio. Unlike other modes of expression, radio inherently is not avail- able to all. 'That is its unique charaCteristic, and that is why, unlike other modes of expression, it is subject to governmental regulation. Because it cannot be used by all, some who wish to use it 9N.B.C. v. United States, 319 U.S. 190, 219. 60 must be denied. But Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis. The question here is simply whether the Commission, by announcing that it will refuse licenses to per- sons who engage in specified network practices (a basis for choice which we hold is comprehended within the statutory criterion of "public inter— est"), is thereby denying such persons the con- stitutional right of free speech. The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exer— cise of its power over commerce. The standard it provided for the licensing of stations was the "public interest, convenience, or necessity." Denial of a station license on that ground, if valid unger the Act, is not a denial of free speech. (Emphasis supplied). It was here established, then that so long as the Commission properly based its denial of a license on the public interest provision of the act, it would not be abridging the First Amendment right of free speech. That left only the problem of properly establishing what is in the public interest, and the more specific problem of determining whether editorializing is in the public inter— est (the Commission held that it was not), and whether it were in the public interest to require a licensee to make available time for the expression of opposing points of View. But Mr. Justice Frankfurter's decision was not the opinion of all members of the court. Two justices took .no part in the case, and two others, Justice Murphy and _ lOIbid., at 226. 61 Justice Roberts, dissented. Wrote Justice Murphy, The construction of the instant statute should be approached with more than ordinary restraint and caution, to avoid an interpretation that is not clearly justified by the conditions that brought about its enactment, or that would give the Commission greater powers than the Congress intended to confer. Here Mr. Murphy correctly points out that in understanding a law, one must consider the legislative background of the law, as well as the changing circumstances in which it is being interpreted. If there was dissent in the courts concerning the network regulations, there was almost an equal amount within the Commission itself. Commissioner Tunis Augustus MacDon— ough Craven, then in his first term as a member of the Com- mission, wrote a nineteen page dissent to the adoption of these regulations~-a dissent in which he was joined by Com- missioner Norman Case. Said Craven, The type of regulation specified by Congress for broadcasting clearly envisioned that the Communications Commission should not regulate the programs, the business practicesi or business policies of broadcast licensees. The network regulations caused a severe storm in Congress, and many bitter complaints were heard against the FCC, many of them coming from networks and from dis- gruntled ‘businessmen who had failed to secure approval lllbid. 12Report on Chain Broadcasting, op. cit., p. 117. of their applications for radio licenses. There was a Congressional movement afoot to investigate the FCC, but that was not new—-in the first seven years of the Commis- sion's life, eleven resolutions were introduced in Con- gress to investigate it.13 In 19U3, Congress attempted to amend Section 326 of the Communications Act of 193U—-the section which pro- hibits censorship. The new amendment said, in part, that the Commission would have no control over the business 1U practices of licensees. The hearings on this bill were long and bitter, and, as had happened before, the contro— versial chairman of the Commission, James Lawrence Fly, was warmly grilled by the congressmen. When he was asked about the Mayflower decision, which was unpopular among many members of Congress, Fly said that any station which was used only for the promulgation of the views of the licensee-—to the exclusion of other views-—should be put off the air: I would assume that any station that is set up just to promote the ideas of the owner to the exclusion of other viewpoints, would not be Oper— ated in the public interest. And that would mean that it would be the Commission's duty to put it off the air; and I myselg would be in favor of putting it off the air. l3Emery, op. cit., p. 296, Specific resolutions are cited on p. 302, note 11. luS. 81“, 78th Congress, 1st Session (19u3). 15Hearings before the Senate Committee on Interstate Ese who claimed that a station had been unfair Often K 1See the discussion of the 1959 amendments contained :irj t:he previous chapter. r1 2Testimony of FCC Chairman Rosel Hyde at the "Fair- 635353 Panel" hearings before the House Interstate and For— The record of Eign Commerce Committee, (March, 1968). 1'lesse hearings had not been printed as of this writing. 128 disliked the delay and the fact that the Commission seldom took any positive action save asking the broadcaster to "comment" on the complaint and review his previous deci— sions.3 The 1960 Suspension of Equal-Time Requirements With the prospect of a hotly contested election and a campaign of great interest to many Americans, there was ggeneral agreement between many broadcasters, candidates, aind scholars that the equal time requirements of Section 3315 should be suspended for the 1960 Presidential and Vfiice-Presidential elections. One major purpose of this Sllspension was to allow the now—famous Kennedy—Nixon diabetes to be broadcast without obligating the broad- casters to give equal time to the twenty-two minority parties which had nominated candidates for the Offices 4 (DIP IPresident and Vice—President of the United States. The bill authorizing suspension of Section 315 (a) InaiCiez its way through Congress with considerable speed. *1 3See the discussion of this point in the thesis Of IQElI?I?y D. Schmidt, op. cit. “Aside from the Republican and Democratic parties, tzrle? following parties also offered candidates in the 1960 IDI‘Eéssidential election: American Beat Consensus, American %‘hird, American Vegetarian, Church of God, Conservative Ilcz" .Benton Coiner for President), Conservative (J. Bracken IP63€3 for President), Constitution (Merritt B. Curtis for <117€Essident), Constitution (Charles L. Sullivan for Presi— 1\:31113), Farmer Labor Party of Iowa, Greenback, Independent EBIFIFCD—American Unity, Independent American, Industrial Gov— ESCDrlnnent, Liberal, National States Rights, Prohibition, I? c31alist Labor, Socialist Workers, Socialist Workers and €133Tners, Tax Cut, Theocratic, Unpledged Democrats for Harry Byrd . 129 It said, in part: That part of Section 315 (a) of the Communications Act of 1934, as amended, which requires any licen- see of a broadcast station who permits any person who is a legally qualified candidate for any pub- lic 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 campaigns with respect to nominees for the offices of President and Vice-President of the United States. Nothing in the foregoing shall be construed as relieving broadcasters from the obligations imposed upon them under this Act to operate in the publiE‘ interest. (Emphasis supplied). The Federal Communications Commission shall make a report to the Congress, not later than March 1, 1961, with respect to the effect of the provisions of this joint resolution and any recom- mendations the Commission may have for amendments to the Communications Act of 1934 as a result of experience under the provision of this joint reso— lution.5 It was understood that the emphasized clause was a restatement of the warning to this same effect provided by the 1959 amendment to Section 315, and indeed, as an affirmation of the fairness doctrine.6 Many broadcasters who had argued for the permanent repeal of Section 315 saw the 1960 campaign as an oppor- tunity to demonstrate their ability to operate with fair- ness in the absence of any specific regulation requiring equal time. Indeed, they had been warned by Congress (in 574 Stat. 554, Public Law 86-677, (August 24, 1960). 6This fact is particularly clear in the context of the report on the bill, although much of the report must be read to gain an insight regarding the consensus to this effect. See Senate Report No. 1539, 86th Congress, 2nd Session (1960), particularly pp. 5-6. 13O —/ the Opinion of the FCC'S outspoken chairman, Newton Minow) that they were obligated to "provide full——and scrupulously fair—-coverage of political candidates, even without a rigid equal Opportunities requirement in the law,"7 To determine how well they met that Obligation, the Senate created a three—man Subcommittee on Freedom of Communica— tions to oversee the new amendments.8 Again showing that the line between the "equal time" provisions of Section 315 and the notion of "fairness" had been blurred, the Congress noted (in establishing the new subcommittee) that it had "established a national policy of fairness and impartiality in the use by political candidates of communications media operating under government license."9 Members of the subcommittee were Senators Gale McGee Of Wyoming, Hugh EScott of Pennsylvania, and Ralph Yarborough of Texas as Chairman.10 Immediately letters were written to all con- ggressional candidates, to all candidates for state offices, said to all broadcasting stations throughout the country. (handidates were asked to report to the Subcommittee any arcts of unfairness by broadcasters, and broadcasters were 7Senate Report No. 994, 87th Congress, 1st Session, Peru: V (January 9, 1962), pp. 6-7. 8Senate Resolution NO. 305, 86th Congress, 2nd Ses- Siorl (1960). 91bid. lOSenator Yarborough was the only dissenter from the EPVHnittee Report which urged temporary suspension of equal 1”“3 provisions of Section 315. t__l U) H told to report within twenty—four hours any complaint that was made directly to them. This applied not only to the endorsement of candidates by stations, but to complaints resulting from "the handling of political Opinions, news, advertising and the presentation of political candidates" which occurred during the final three weeks of the cam- paign. In addition to keeping attuned to the situation by these direct communications lines, the Subcommittee received daily reports Of complaints and inquiries about political broadcasting handled by the FCC. To round out the record, the Subcommittee held three days Of hearings in March, 1961, to review representative fairness cases which had been brought to their attention in the preceding campaign. The report Of the Subcommittee was a six-volume compendium which is probably the most complete study Of ‘the matter ever to be undertaken. It included the speeches c>f both candidates, reports of press conferences and inci— cumc1.tarles, and or-thc-spot cow-rage of news event. from the obligation mere-ed upon them un- der this chapter to Opel. :r: in the publ'c fr.- tcrest and to afford reasonable Opportunity for the dfscucsfcn of conflicting Views on Issues of public importance." ‘Sco AppendixB. 264 NOTE LIES tabiishes that this pl'C'."'Ef"‘I". “is a restate- ment of the basic policy of the ‘standard of fairness' which is; izzzposed on broad- casters under the Coznnnuncanons Act of 1934” ( of. Rept. ~10. 1003, 86:11 Cong., lst Sess.. p. 5). While Section 315 thus embodies both the “equal Opportunities" requirement and the fairness doczrine, they apply to different situations and in different. ways. The “equal opportunities” requirement relates solely to use of broadcast facili- ties by candidates for public office. With certain exceptions involving specified news-type programs. the law provides that if a licensee permits a person who is a legally qualified candidate for public office to use a broadcast station, he shell afford equal opportunities to all other such candidates for that office in the use of the station. The Commission's Public Notice on Use of Broadcast Fa- cilities by Candidates for Public Office, 27 Fed. Reg. 10063 (October 12, 1962), should be consulted with respect to “equal opportunities" questions involv- ing political candidates. The fairness doctrine deals with the broader question of affording reasonable opportunity for the presentation of con- trasting viewpoints on controversial is- sues of public importance. Generally speaking, it does not apply with the precision of the “equal opportunities" requirement. Rather, the licensee. in applying the fairness doctrine. is called upon to make reasonable judgments in good faith on the facts of each situa- tion—as to whetner a. controversial is- sue of public importance is involved. as to what. viewpoints have been or should be presented. as to the format and spokesmen to present the viewpoints. and all the other facets of such programming. See par. 9. Editorializing Report. passing on any complaint in this area. the Commission's role is not to substi- tute its judgment for that. of the licens- ee as to any of the above programming decisions. but rather to determine whether the licensee can be said to have acted reasonably and in good faith. There is thus room for considerably more discretion on the part of the licensee un- der the fairness doctrine than under the “equal opportunities” requirement. —l D INTERPRETAIIVE R ULIX GS—COI‘ PROCEDURE We set forth below a digest of the Commission's rulings on the fairness doctrine. References, with citations. to the Commission's decisions or rulings are made so that the researcher may, if he desires, review the complete text of the Commission's ruling. Copies of rulings may be found in a "Fairness Doctrine" folder kept in the Commission's Refer- ence Room. In an area such as th fairness doc- trine. the Conmiis.=::on‘s rulings are nec- essarily based upon the facts of the particular case DIOSJHLC-‘l and. thus a ar‘ation in facts might call for a differ- ent or revised ruling. We therefore urge that interested persons. in Sf‘ldjfing‘ the rulings for guidance. 1002: not only to the lanruege of the ruhn: but ”rho specific factual context in which it was .nade. It. is our hope. as stated, that thi Notice ”All reduce sigzufican‘ly the num- MISSION ' the air: In . b:r of fairness Cai-T‘JDI'JFHL” had.) to the Commission. it'll-um cornpizuit AS nude to the Commission, the Commm'fon cx- pccts a con‘nplnfnant to submit sprcifxe in- formation indicazing (I; the particuiar stat: :1 involved; (2) the particular 1.9.1: of a controversial nature discussed over ('3) the date and time when the program was carried; (a; the basis for the Icim that the station has presented only one ride of the question; and (5) whether the station had afforded, or has plans to afford, an opportunity for the presentation of contrasting viewpoint-sf (Lar Daly. 19 RR. 1104, March 24, 1930; cf. Cullman Bctg. Co., FCC 63-849, Sept. 18,1953.) If the Commission determines that. the complaint sets forth sufficient facts to warrant further consideration, it Will promptly advise the licensee of the com- plaint and request the licensee’s com- ments on the matter. Full opportunity is given to the licensee to set out all pro- grams which he has presented. or plans to present, with respect to the issue in "question during an appropriate time period. Unless additional information is sought from either the complainant or the licensee. the marker is then usually disposed of by Commission action. (Letter of September 18. 1063 to Honor- able Oren Harris. FCC 63-351.) Finally. we repeat what. we stated in our 1949 Report: ' ‘ ‘ It is this right of the public to be informed. rather than any right on the part of the Government. any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter. which Is the foundation stone of the American system of broadcasting. PART II—Cozumsszox RULINGS A. Controversial Issue of Public Importance. 1. Civil rights as controversial issue. In response to a Commission inquiry, a station advised the Commission. in a letter dated March 6, 1350. that it had broadcast editorial programs in support of a National Fair Employment Practices Commission on January 15-17. 1950, and that it had taken no affirmative steps to encourage and implement the presenta- tion of points of View with respect to these matters which differed from the point of view expressed by the station. Ruling. The establishment of a 1‘1.- tional Fair Employment Practices Cor.- mlssien constitutes a controversial question of public importance so as to impose upon the licensee the affirmative duty to aid nd encourage the broadens: of opposing views. I: is a matter of common knowledge that the establish- ment of a National Fair Employment Practices Commission is a subject tha'.‘ has been actively contravened by mem- bers of the public and by members of the Congress of the United States and that in the course of that controversy numerous differing views have been espoused. The broadcast by the static of a relatively large number of program: relating to this matter over a DC on 0' three days indicates an awarenes of it. A v A ,a ’3 CIA l A S 3 The complainant. can usually obtain "11;: information by communicating wrh the station. x - ‘L1 N.‘ .J ~0t- n.- I» \ r-g'a- 0741 one .»v¢A ~~ Gilt- import? cc 1111111111021 that at least s of the broadcasts was to public opinion In our report ' Ii. :he Matter of Editorializing by Broadcast Licens cos. we stated that: ' ' ' ' In appraising the record of a 51.: tion in presenting programs concerning a con- troversial bill pend...g before the Congress of the United States. if the record (1:. cle'cd that the licensee had per mitted onlJ advo- cates of the bill's enactment to u‘ 1117.e its facilities to the exclusion of its on .onents. it is clear that no independent :1 )2.‘1IS.iI of the bill's mcri s by the Co: :.mission would be required to reach a determination that the licensee had in. sconstrued its duties and obligations as a person licensed to sex". c the public interest. In light of the foregoing the conduct of the licensee was not in accord with the principles set forth in the report. (New Broadcasting Co. (\VLIB), 6 RR. 258, April 12, 1950.) 2. Political spot announcements. In an election on atter .1pt we made to pro- mote campaign contribustions to the candidates of through the use of- spot announcements on broadcast stations. Certain broad- cast stations raised the qi stion whether the airing of such anno.i..cemcnts im- posed an obligation under Section 315 of the Act and ’or the fairen ss doctrine to broadcast such special announcements for all candidates running for a par ticu- lar office in a given election. . Ruling. The “equal opp ortunities” provision of Section 315. applies only to uses by candidates and not to those speaking in behalf of or against can.. 1- dates. Since the abo' e announcements did not contempla to the appearance of a candidate, the “equal opportunities" provision of Section 315 would not be applicable. The fairness doctrine is. however. applicable (Letter to‘ Law- renceM. C. Smith, FCC 83-353, 25 RR 291, April 17, 1963.) cc Ruling No. 13. 3. “Reports to the People". The com- plaint of the Chairman of the Demo- cratic State Committee of New You: al- leged that an addr ess by Governor Dewey over the facilities of the stations affili- ated with the CBS network on May 2. 1949. entitled “A Report to the People of New York State," was political in na«' ture and contained statements of a con- troversial nature. The CBS reply stated, in substance. that it was necessary to distinguish be tween the reports made by holders of office to the people whom they represented and the partisan political activities of the individuals holding office. Ruling. The Commission recognizes that public officials may be permitted to utilize radio facilities to report on their stewardship to the people and that “the mere claim that the subject is political does not automatically require that the 'opposite political party be given equal facilities for a reply." 011 the ether hand. it is apparent in at so-callcd re- ports to the people may constitute at- tacks on the Opposite political party or may be a discussion of a public con- troversial issue. Cons: .zent with the views expressed by the Com..." arsion in the ’ “M l:...«. the two major parties, 265 LRE h.‘ FEDERA o..oii.1..~ing Pcpazt. it is cice r that the ci‘.a1r-1.ctcr fixation of a partieuler 1110151 am so a rcpo.t to ti 3 1: cop‘: dscs not neces- arilz'c ste'ol’. sh such a program as non- conuoxeis iii in nature so as to ..void the requirement of f.lT(;i‘dll.fii ti.-.c for the pmcuon of opposing views. In that Report, .ve st ate”. “‘ ’ ' that there can be no on e all em iliracing formula which licensees can hope to apply to insure the fair and balanced presentation of all public issues " ‘ ‘. The licensee will in each instance be call ed upon to exercise his best judg...ent and good sens c in de- termining what s..bjects should be con- sider.ed the particular forma tof the pro- giarns to be do voted to one h subject, the different shades of 01.111. on to be p1e- sent,ed and the spa .{csm en for each point of view." Tne duty of the licensee to make time available for the expression of differing views is invoked where the facts and circumstances in each on se in- dicate an area of con roversy a .1d differ- ences of opinion where the subject mat- ter is of public importance. In the light of the foregoing. the Commission con- cludes that "it does not appear that there has been the abuse of judgment on the part of [CBSI such as to warrant hold- ing a hearing on its applications for renewal of license." (Paul E. Fitzpat- rick. 6 RR. 543, July 21, 1949; (see also, California Democratic State Central Committee, Public Notice 95873. 20 RR. 867.369, October 31. 1960.)) 4. Controversial issue within scr vice area. A stat ion broadcast a ste tement by the President of C33 capes-ing. pay TV; t'"o newcasts cor “tuning the views of a Senatorc oppose... 10 pay TV; one newscast reporting the introduction by a Congressman of an anti-pay TV bill; a half-hour network program on pay TV in which both sides were 1epresenied, followed by a ton-minute film clip of a Senator opposing pay TV: a half-hour program 1.1 'JJICZ? 3. crown Opponent of. pay TV was interviewed by interroga- tors whose questions in some instances indicated an opir ion by the questioner favorable to pay TV. In a. hearing upon the station's application for modification of its construction permit. an issue was raised whether the station had complied with the requirements of the fairness doctrine. The licensee stated that while nationally pay TV was “ce. tainly" a con- troversial issue. it regarded pay TV as a local con rover-sial issue only to a veiy limited extent in its service area, and therefore it was under no obligation to take the initiative to present the views of advocates of pay TV. Ruling. The station‘s han ling of the pay TV question was improper. It could be inferred that the station's sympathies with the oppositi n to pay TV made it less than a vigor ous searcher for advo- cates of subscription tel- vision. The sta- tion evidently thought the subject of suf- fici out be n..1al interest (beyond‘its own concern in the matter) to devote broad- cast time to it. and even to preempt part of a local program to present tlie‘views of the Senator in opposition to pay TV immediately after the balanced nctw 01k discussion program, with the apparent design of neutralizing any possible pub- \ 10117 ality for pay '1"! .vhich miffi; cfn mm the pric cdin‘: new: or 'n. The anti-pry TV ad: v.35. 10.:- cnted to a greater extent on t‘m; sta- ien than tne other. though it cannot. be "t he station (31107-311 oil’ the C}:- pres::ion of all views 1111;11ical to its in- tu‘cst. A licensee cannot excuse a one- sided presentation on the basis that the subject traitor was not controversial in its service area, for it is only through a fair presentation of all facts and argu- ments on a particular question that pub- lic opinion can properly develop. (In re The Spar tan Radiocasting Co., 33 F. C. C1. .. 765. 771. 791-795. 802- 803, November" .1 1962.) 5. Substance of broadcast. A number of ste t. 025 hi cadcaSt a program entitled “Living Should Be Fun”. featuring a nu- tritionist givi. " comn. at and advice on diet and health. Complaint was made that the program presented only one Side of controversial issues of public impor- ta .100. Several licensees contended that aprogram dealing with the desirabilit' of good health and nutritious diet she: not be placed in the catc gory of discus- sion of controversial issues. Ruling. The Commission cannot a that the program consisted merely of the discussion of the dos i1..bility of good health and n itiitious dict. Anyone who listened to the program regularly—and station licensees have the obligation to know what is being broadcast over their facilities—should have been aware that. at times controversial issues of public importance were discussed. In discus- sing such subjects as the fluoridation of water the value of‘krcbiozen .n tne tr eat— ment of cancer ,the nu .ritive qualities of white bread, and the use of high potency vitamins without medical advice. the nu- tritionist emphasized the fact that his viev s were opposed to many autholities in these neids, and on occasions on the air, he invited those with opposing view- points to p1 csent such viewpoints on his program. A licensee who did not rec- ognize the applicability of the fairness doctrine failed in the performance of his obligations to the public. (Report on “Living Should be Fun" Inquiry. 33 F.C.C. 101. 107. 23 RR. 1599, 1606. July 18,1962.) 6. Substance of broadcast. A station broadcast a program entitled “Commu- nist is. ‘ncirclement" in which the follow- ing ma tters. among others, were d1-- cussed: socialist forms of government were viewed as a transi cry form of gov- ernment leading eventually to commun- ism; it was asserted that this countiy's continuing foreign policy in the Far“ 2.0.33 and Latin Americ.., the alleged izu‘iltra- tion of our government by communists, and the alleged moial \1 ealzeni'v in 0.11 ho .nes. schools and chuiches ha'°e all contributed to the advance of intei "1a- tional communism. In response to com- plaints alleging one-sided presentation of these issues. the licensee stated that since it, did not know of the existence of an ' . \J H r r- ,1 (a U) c“ Q 9 .. :l LY Fit- . A .3 C) ’1 ... - 0 ”'fi g; Cc ,comi’aunist organi: ations O‘.’ commun' at 2 in its community. it ix: 5 unable to .1.loui opportunity to those \sIlO might wish to present opposing view Ruling. In situations ct this hind. .t was not and is not the Commission's i..- 10418 tentio 11 to require licensees to 1111.‘.-:..- t". .e available to cora1111u11is‘15 or 1.111 com 1111- nist 'ier'11oint. But he matte s li11ed above mi se 0011.1'011'er1'ia‘11'ssues 31‘ pub. ie in: port. 11cc on w hieh pe1sons 01' her than ('01 ninunisis hold 0011. rastin': views. The1e are responsrbl e contrastingr vi ew- points on the most o..ectiye 1111' .. 1101:.- 01 eomhatting count-main. 1 and communist infiltration. Broadcast of proposals sup- porting only one method raises the ques- tion whether reasonable opportunity has been afforded for the expression of con- trusting viewpoints. (Letter to Tri-State Broadcasting Comps .,ny Inc.. April 26, 1962 (stall letter).) 7. Substance of boa/Ir 111‘. In 1957. a station broadcast a r-anel d'seussior'. entitled "The Little Rock Crisis" in which several public omcials appeared. and whose purpose. a complainant stated. was to stress the maintenance of segregation and to oxp1ess an opinion as to whattheN gro wants or does 1'. otwant. A request 10r time to present contrasting viewpoints was refused by the licensee who stated that the program was nost helpful in preventirg trouble by urging people to keep cal. "11 and look to their elected 1'eprese11tati1.'es for leadership. that it was a report by elected official 5 to the people. and that therefore no reply was necessary 01' advisable e. Ruling. If the matters discussed in- volved no more than urging people to remain calm. it can be urged that no question exist: as to air present..tion. However, ift ets at: .1111 permitted the use of its facilitin for the pze eiozitati on 01 one side of the c01'1'11'over.;al issue 01 racial integration. the station incurred an obligation to afford a rea sonable op- portunity for the exprossi on of contrast- ing views. '1‘ 1e fact that the proponents of one particular pomtion were elected officials did not in any way alter the na- ture of the program 01' remove the ap- plicability of the faiiness doctrine. See Ruling No. 3. (Lamar Life Insurance Co.. FCC 59—651, 18 RR. 633, July 1, 1959.) 8. National controversial issues. Sta.- tions broadcast a daily commentary pro- gram six days a week. in three of which views were expressed critical of the pro- posed nuclear weapons test ban treaty. On one of the stations the program was sponsored six days a week and on the other one day a week. A national com- mittee in favor of the proposed tr aty re- quested that the stations afford free time to present a tape 01’ a program contain- ing viewpoints opposed to those in the sponsored commentary program. The stations indicated. among other things, that it was their opinion that the fair- ness doctrine is applicable only to local issues. Ruling. The keystone of the fairness doctrine and 01' the public interest is the right of the public to be informed—to have presented to it the "conflicting View: 0: issues or public i111; ortanco." v‘Nhoi'e a licensee permits the use of its facilities for the expression 01‘ views on controversial local or national issues of public importance such as the nuclear weapons test ban treaty, he must afford reasonable opportunities for t‘.'r.- presen tation of contrasting views by spokes- 266 NOTlCES men for 01.2 11'e1 responsible groups. (1.1e':~ ter to Cullma; T .si'.0'.'ic.'..<'.i:'.;: Co., In . FCC 63‘3.‘J. 53131.3.11'391‘ 10, 1.153.) Rulings No.18 a1: '1 ‘17 101' other as. 01' the Cullman 1C1:2.1c B. [rear-.1123chinctim to afford rea- sonabl: o '1): or'11'1‘z/ for the presentation of contrasting: "etrpoinis. 0.A1-‘Er:1:alirc (1‘11" 1y to encourage. In response to 111.1101 113 cornpl-aints alleging that a station had be “one-si d"ed its presentations on c011t11'0'1'e1'11ial issues of public importance. the licensee con- cerned rested upon its polio" 01'. making time available. upon request. for "the other side. ” Ruling The license e's obligations to arts the uubli c in teiest cannot be met m1re'1y through the adept ion of a general policy 01' not refusing to broadcast 0'1)- posing views wherea de mand is made of the station for broadcast time As th Commission pointed out in theE dit01 'ial- izing Report (par. 9): ' ' ' If. as we believe to be the case, the public interest is best served in a democracy through the ability 0: the peeple to hear expositions 01' the various positions taken by responsible groups and individuals on particular topics and to e". ocse between them. it is e"ident t'.‘ .at bror dsast licensees have an affirmative duty generally to encour- age and implement the broadcast of all sides of controversial public issues over their 1’1".- c1liti es. over and beyond their obligation to m' .l:e a': allable on clean? 1d 0 ppor unities 10r the exp: :sion 01 opposing news. It is c.ear that any approximation 0: fairness in the presentation of any contro'e. :sy will be dil- flcult i: not impossible 01:11e111 c1' erncnt un- less the licensee plays a 00 5.11011 and posi- tive role in bringing about balanced presen- tion of the opposing viewpoints. . (John J. Dempsey. 6 12.22. 615. August 16. 1950; Editorializing Report. par. 9.) (See also Metropolitan Berg. crp.. Public Notice 82386, 19 RR. 602. 604. Dec: be: 29. 1953.) 10. Non-delegable duty. mately 50 radio stations 'er gram entitled “Living featuring a nut11t1011151. gi and advice on diet an gram was syndic ted and tap ed for p: '03-- entation, twenty-f. "o minu es 3. day, fiv days a week. M any of the programs discussed controversial issues of public impotence. In response to complaints - Approxi- adcast a pro- 'ing comment health. The pro- .that the stations failed 0 observe tl' 1e1 'e- quirements of the f..irr1ess d0etr1ne.sozae of the licensees r '-lied upon (i) the nu- tritionist’s own invitation to those with opposing viewpoints to appear on his pro- gram 0'1' (ii) upon the assurances of the nutritionist or the sponsor that the pro- gram fairly represented all responsible contrasting viewpoints on the issues with which it dealt, as an adequate discharge of their obligations under the fairness doctrine. Ruling. Those licensees who relic-1. solely upon the assumed built- in far.- ness of the program itself. or upon the nutritionist‘s invite .tio on to those 1:: ith Opposing viewnoint1. cannot be said to have '11ope11y d15011111gcd their responsi- bilities. Neither alternative is likely to produce the fairness which the public interest demands. There could be many valid reasons why the advocate of an 0;)- posing viewpoint would be unvilling appear upon such a program. msh rt, Should Be Fun’m t 110 1100115 .1. may sponsibiiitios to 0:1 1110 1.111 1.; to an zeroes-to 0." one 11.1111. '1"'1.1' new- point. As. 2.11.: Cc1'111111issi'1'. aid “in or: Rerort in tie .‘.1'.. tter b"3r011<‘.'1'.st1 i:e1"It 1:. (111'... 1 that any ap 11':olc t' .. ‘ matters which were the subgiet of the lie"- ing. we have ..eemed 1t advis ...'e to set forth L'. (y i). .0 Q 1- 0‘ 10122 in detail and at some length our conclusions as to the basic considerations relevant to the expression of editorial opinion by broadcast licensees and the rei:tionsliip of any such expression to the general obligations of broadcast licensees With respect to the pres- entation of programs involving contro'.'ersi..l issues. 3. In approaching the issues upon which this proceeding has been held. we believe that the paramount and controlling consideration is the relationship between the American sys- tem of broadcasting carried on through a large number of private licensees upon whom devolves tne responsibility for the selection and prescntaticn of program material. and the Congressional mandate that this licensee responsibility is to be exercised in the in- terests of. and as a trustee for the public a: large which retains ultimate control over the channels of radio and television communica- tions. One important aspect of this re- lationship. we believe. results from the fact that the needs and interests of the general public with respect to programs devoted to news commentary and opinion can only be satisfied by making available to them for their consideration and acceptance or rejec- tion. of varying and conflicting views held by responsible elements of the community. And it is in the light of these basic concepts that the problems of insuring fairness in the presentation of news and opinion air-l the place in such a picture of any maples-.1 n o: the views of the station licensee as such must be considered. 4. It is apparent that our syr. :rn of broad- casting. under which private pc=sons an' organizations are licensed to provide broad- casting service to the various (Oll‘llli'.l‘.‘-l‘i'.-.‘3 and regions. imposes rcspons;b..‘:ty in the selection and presentation of radio program material upon such licensees. Congress has recognized that the requests .'or radio time may far exceed the amount of time reason.- ably available for distribution by broad— casters. It provided. therefore. in see-tion 3 (h) of the Communicati us Act that a person engaged in radio broadcasting shall not be deemed a common carrier. It is the licensee. therefore. who must determine what percent- age of the limited broadcast day should ap- propriately be devoted to news and discussion or consideration of public issues, rather than to the other legitimate services of radio broadcasting. and who must. select or be re- sponsible for the selection of the particular news items to be reported or the particular local. state. national or international. issues or questions of public interest to be con- sidered. as well as the person or persons to comment or analyze the news or to discuss or debate the issues chosen as topics fa: radio consideration. "The life of each com. unity involves a multitude of interests some domi- nant and all pervasive such as interest in public affairs. education and similar matter and some highly specialized and limited to few. The practical day-to-day problem wle‘. which every licensee is faced is one of str".:- ing a balance between these various interests to reflect them in a program so. do: which is useful to the community. and which will in some way fulfil the needs and interests of the many.” Capital Broadcasting Company. 4 Pike a; Fischer. RB. 21: no Northern Corpo- ration (WMEX). 4 Pilze 8.: Fisch or, 2:3. 333. 338. And both the Commission and the Courts have stressed that this respon:ibility devolves upon the individual licensees. and can neither be delegated by the licensee to any network or ozher person or group. or be unduly fettered by contracmal arrangements restricting the licensee in his free exercise of his independent judgments. National Broad- casting Company v. United States. 319 US. 190 (upholding the Commission’s hain Broadcasting Regulatirnr.. §2 3.1Ulo- 3.108. 3231-3233. 3.63l-3.638). Churchinll Tabernacle v. Federal Communications Cem- miulon. 160 F. 2d 244 (See. Rules and 303‘ . 270 NGTiCES lations. :33 3.109. .239. 3.01:2): Alle '1‘. Sim- ions v. Federal Coinraualriitlons Commis- sion. 16'.) F. 2d 67’). certiorari denied 335 U.S. 846. 5. But the inevitability that there must be some choosing between various claimants for access to a licensee's microphone. does not mean that the licensee is free to utilize lzis facilities as he sees particular interests as contrasted with tho ir..erc;:s of the general public. The Com- mun.cations Act of 1934. as amended. makes clear that licenses are to be issued only where the public interest. convenience or necessity would be served thereby. And we hinl; it is equally clear that one of the basic elements of any such opt-radon is the main- tenancc of radio and television as a medium of freedom of speech and freedom of expres- sion for the people of the nation as a wnole. Section 301 of the COmmunications Act pro- vides that it is the purpose of the Act to maintain the control of the United States over all channels of interstate and foreign commerce. Section 326 of the Act provides that this control of the United States shall no“. result in any impairment of the right of free speech by means of such radio com- munications. It would be inconsistent with these express provisions of the Act to assert that. while it is the purpose of the Act to maintain the control of the United States over radio channels. but free from any regu- le tion or condition which interferes with the right of free speech. TiCi'oil-llCICSS persons who are granted limited ,.its to be li- cnns ces (‘.' radio stati :18, upon a finding un— der Sections 307(a) anrl MS of the Act that the pub lc interest. convenience. or necessity would be served tier-«by, may themselves male radio unavailable 2'.". a medium of free speech The legislatne history of the Com- munications Act and its predecessor. the Radio Act of 1927 shows. on the contrary. that Congress intended that radio stations should not be used for the prixate interest. whims, or caprices of the particular persons who have been granted licenses. but in man- ner which will serve the community generally 1 X'i" an the various groups which make up the community! And the courts have consist- ently upheld Commission action giving rec- ognition to and fulfilling that intent of Congress. KFAB Broadcasting Association v. Federal Radio Commission. 47 F. 2d 670; Trinity Methodist Church. South v. Federal Radio Commission. 62 F. 2d 850, certiorari denied. 288 U.S. 599. 6. It is axiomatic that one of the most vital questions of mass communication in 3Thus in the Congressional debates lead- ing to the enactment of the Radio Act of 1927. Congressman (later Senator) White stated (67 Cong. Rec. 5479. March 12. 1926): We have r;-ched the definite conclusion that the right of all our people to enjoy this means of c mmunication can be preserved only by the repudiation of the idea underly- ing the 1912 law that anyone who will. may transmit and by the assertion in its stead of the doctrine that the right of the public to service is superior to the right of any indi- vidual to use the ether ' ' ' the recent r9. to conference met this issue squarely. It recognized that in the present State of .SCientific development there must be 9. lim- itation upon the number of broadcasting stations and it rccom. tended that licenses should be issued only to these stations whose operation would render a benefit to the pub- lic. are necessary in the public interest or would contribute to the development of the art. This principle was approved by every witness before your committee. ‘..'2 have written it into the bill. If enacted into law, the broadcasting privilege «Jill not be 6 right of selfishness. It will rest upon an fissur- ance of public interest to be served. {Em- phasis added.) :2: or in his own- a democracy is the development of an is- i'ozmcd public Opinion through the pHLilQ 'irsemlniitlou of news and ideas cone-:rl' i.., the vital public issuer. of the day. Barlmlij. it is in recognition of the great COlll-l‘li)327i('li '.vhich radio C.:n make in the a'.i'.':incezn.-nt “.' this purpose hat portions of Li: radio spectrum are allocated to that form of X'.l(.‘i'.a conununications known as radio-broaden. .- ing. Unque.~:tionr.bly. then. the standard of public interest. comcnicnce and r.ecv...~.it'/ as applied to radio-broadens?ing must be interpreted in the light of this braic purpo: The Commission has consequently recognizr-ri the necersity for licensees to devote a reason - able percentage of their broadcast time to the presentation of news and program; do. voted to the consideration and discussion of public issues of interest in the community served by the particular station. An '.'.‘E‘ have recognized. with re";>ect to such pro— grams. the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection. the different attitudes and vicu‘pointc con- cerning those vital and often controversial issues which are held by the various groups which malto up the community.a It is t;.;:; right of the public to be informed. rather than any right on the part of the govern- ment, any broadcast licensee or any indi- vidual member of the public to broadca't 221:. own particular views on any matter, which is the foundation stone of the AnlcriCan syr... tcm of broadcasting. And this view that the interest of til. listening public rather than the private interests of particular licensees was reen- phasized as recently as June 9. 1043 in a unanimous report of the Senate Comniitzee on Interstate and Foreign Commerce on S. 1333 (80th Cong.) which would '.'e amended the present Comnumieatiexls .'ie: .11 certain respects. See 8. Rep’t No. 15.7. 80th Cong., 2d Sess.. pp. 1415. 7. This aillrma ive respoosrbility on t‘..o past of broadcast licensees to provide a re;- sonnble amount of time for the presentation over their facilities of programs devoted 1. 3 the discussion and Consideration of public issues has been reaffirmed by this Comr.-.m- sion in along series of decisions. The Ur." zed Broadcasting Company (Willis case. 1') F.C.C. 675. emphasized that this duty in- cludes the making of reasonable pro: isioii .19: the discussion of controversial issues of pub- lic importance in the community served. me to make sufficient time available for full (..:. cussion thereof. The Scott case. 3 Pike 5.. Fischer. Radio Regulation 259. stated or: conclusions that this duty extends to all 52.1)- jects of substantial importance to the enra- munity coming within the sc0pe of free diz- cussion under the First Amendment walnut. regard to personal views and Opinions of the licensees on the matter. or any (infernzinatson by the licensee as to the possible unpopu- larity of the views to be expressed on ::.e subject matter to be discuascd anion; parts:- ular elements of the station's listening and;- ence. Cf.. National Broadcasting Ccatp;.;.;: v. United States. 319 U.S. 130; Alien '1‘. (2'.-.'.:- mons. 3 Pike 5: Fischer. 123. v.23, :..’.‘-.rr.:: 1: Simmons '7. Federal Cora. .unicacians Cr: :1- mission. 169 F. 2d 670. certiorari d-znr:.i. 3‘3 U.S. 846; Bay State Beacon. 3 P.1:e E.- Escher. RR. 1455. affirmed: Bay 'tate Smear. Fee.- cral Communications Commission. U S. App. D.C.. decided December 20, 1918: Petition 0: Sam Morris. 3 Pike 6.: ischer. RR. 132'. Thomas N. Beach, 3 Pilze 6.: Fischer 2’.. .. 17.“. 2. And the Commission has made cle..r that such presentation of news and corn-neat 3 public interest requires that the llCCL.3;(: must operate on a basis (2 overall 1a::::;. .-. making his facilities ave“'ble for the ..\‘ I ll 'Cf.. Thornhlll v. Alabama 310 U.S. ca. 33 102: Associated Press v. United States. b 5 U.S. 1. 20. Saturday, July 25’ 1951 pression of the contrasting views of all re- sponsible elements in the community on the various issues which arise. :layflow-cr road- casting CO.. 8 F.C.C. 838: United Broadcasting Co. (WHKC), 10 F.C.C. 515: Cf. WBNX Broadcasting [Co., Inc.. -2 Pilte 5.- I’ischer. H.R.. 244 (Memorandun Opinion). Only where the licensee's discretion in the choice Of th particular programs to be broadcast over his facilities is exercised so as to afford a rea- sonable Opportunity for the presentation of all responsible positions on matters of suf- ficient importance to be afforded radio time can radio be maintained as a medium of freedom of speech for the people as a whole. These concepts. of course. do restrict the li- censec‘s freedom to utilize his station in whatever manner he chooses but they do so in order to maize possible the maintenance of radio as a medium of freedom of speech for the general public. 8. It has been suggested in the course of the hearings that licensees have an affirma- tive obligation to insure fair presentation of all sides Of any controversial issue before any time may be allocated to the discussion or consideration of the matter. On the other hand. arguments have been advanced in sup- port of the proposition that the licensee’s sole obligation to the public is to refrain from mppressing or excluding any responsible point of view from access to the radio. We are of the Opinion. however. that any rigid requirement that licensees adhere to either of these extreme prcscrlp tions for proper sta- tion programming techniques would seri- ously limit the ability Of licensees to serve the public interest. Forums and round- table discussions, while Often excellent tech- niqucs of presenting a fair cross section of differing viewpoints on a givtn issue. are not the only appropriate devices for radio discus- sion. and in some circumstances may not be particularly appropriate or advantageous. Moreover. in many instances the primar ”controversy" will be whether or not the particular problem should be discussed at all; in such circumstances. where the licensee has determined that the subject is of sufficient import to receive broadcast attention. it would obviously not be in the public inter- est for spokesmen for one of the Opposing points of view to be able to exercise a veto power over the entire presentation by refus- ing to broadcast its position. Fairness, in such circumstances might require no more than that the licensee make a reasonable ' effort to secure responsible representation Of the particular position and. if it fails in this effort. to continue to make available its fa- cilities to the spokesmen for such position in the event that. after the original programs are broadcast. they then decide to avail themselves of a right to reply to present their contrary opinion. It should be re- membered, moreov r that discussion of pub- lic issues will not necessarily be confined to questions which are obviously controve sial in nature, and in many cases. programs ini- tiated with no thought on the part of the li- censee of their possz‘oly controversial nature will subsequently arouse controversy and Opposition of a substantial nature ..3' ich will merit presentation of opposing views. In such cases. however. fairness can be preserved without undue difficulty since the facilities of the station can be made available to the spokesmen for the groups wishing to state views in Opposition to those expressed in the original presentation when such opposi- tion becomes manifest. 9. We do not believe. however. that the licensee's obligations to sirve the public interest can be met merely through the adop- tion of a general policy of not refusing to broadcast opposing views where a. dem. ad is made Of the station for broadcast time. If. as we believe to be the care. the public interest is best served in a democracy through the ability of the people to hear NO. 145—4’ t. H—-—2 271 FEDERAL REGIS".’£. expositions of the various positions taken by responsible groups an individuals on articular iOplcs and to choose between them. it is evident that broadcast licensees have an affirmative duty generally to en- courage and implement the broadcast of all sides of controversial public issues over their facilities. over and be; nd their obligation to make available on demand Opportunities for the expression of Opposing views. It is clear that any approximation of fairness in the presentation of any controversy will be difficult if nOt impossible o.‘ achievement unless the licensee plays r. conscious and pos- itive role in bringing about balanced pres- entation of the Opposing viewpoints. . 10. It should be recognized that there can be no one all embracing formula which li- censees can hope to apply to insure the fair and balanced presentation of all public is- sues. Difl‘erent issues will inevitably require different techniques Of presentation art: pro- duction. The licensee will in (.'.‘;C'J ins-tance be called upon to cscrcise his bast judgmert and good sense in determining what subjects should be considered. the particular format of the programs to be devoted to each sub- Ject, the different shades of opinion to be presented. and the spokesmen for each point of view. In determining whether to honor specific requests for time. the station will inevitably be confronted with such questions as whether the subject is worth considering. whether the viewpoint of the requesting party has already received a sufficient amount Of broadcast ti no. or whether there may not be other available groups or individums who might be more appropriate spokesmen for the particular point of view than the person mat-ting the request. The latter's personal involvement in the controversy may also be a factor which must be considered. for elementary considerations Of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station. where Otherwise no such obligation would exist. Undoubtedly, over a period of time some licensees may make honest errors of judgment. But there can be no doubt that any licensee honestly de- siring to live up to its obligation to serve the public interest and making a. reason- able effort to do so. will be able to achieve a. fair and satisfactory resolution of these problems in the light of the specific facrs. ll. It is against this background that we must approach the question of “editorializa- tion"-—the use Of radio facilities by the licensees thereof for the expression of the Opinions and ideas Of the licensee on the various controversial and significant issues of interest to the members of the general public afforded radio (or television) service by the particular station. In considering this problem it must be kept in mind that such editorial expression may take any forms ranging from the overt statement of. posmon by the licensee in person or by his acknowledged spokesmen to the selection and presentation of news editors and com- mentators sharing the licensee's general Opinions or the making available of the licensee's facilities, either free of charge or for a fee to persons or organizations reflect- ing the licensee's viewpoint either generally or with respect to specific issues. It should also be clearly indicated that the question Of the relationship of broadcast editorializa- tion. as defined above. to Operation in the public interest, is not identical with the broader problem Of assuring “fairness" in the presentation of news. comment or opinion. but is rather one specific facet of this larger problem. ' 12. It is clear that the licensee's author- ity to determine the specific prog.'r.'ns to be broadcast over is station gives him an op- portunity. not available to other persons. to insure that his personal viewpoint on any particular issue is presented 11‘. his sze tion's broadcasts. whether or not these views are 10123 express.y identified with the licensee. And. in absence of govcrmnental restraint. he would. if he so chose. be able to utilize in: position as a broadcast licensee to weight the scales in line with. his perso. :vl News or ven directly or indirectly to propagandize in behalf Of his particular philosophy or views on the various public issues to the exclusion of any contrary opinions. Such action can be effective and persuasive whom. or or not it is accompanied by any editoz'Lal- izatlon in the narrow sense of overt state- ment of particular Opinions and views identi- fied as those of licensee. 13. The narrower question Of whether any overt cditorialimtion or advocacy by broad- cast licensees. identified as such is consonant with the Operation Of their stations in the public interest. resolves itself, primarily into the issue of whether such identification of comment or Opinion broadcast over a radio or television station with the licensee, as such, wou d inevitably or even probably re- sult in such over-emphasis on the side of any particular controversy which the licensee chooses to espouse .as to make impozsible any reasonably balanced presentation of all sides of such issues or to render ineffective the available safeguards of tint eyer-all fairness which is the essential tierr ent Of operation in thc public interest. We do not believe that any s:ic.1 consequence is either inevitable or probable. and we have therefore come to the conclusion that overt licensee editorializa- tion. within reasonable limits and subject to the general requirements Of fairness de. tailed above. is not contrary to the public interest. 14. The Commission has given careful con- sideration to contentions of those witnesses. at the hearing who stated their belief that any overt editorialization or advocacy by broadcast licensee is per se contrary to the public interest. The main arguments ad- vanced by these witnesses ore that overt editorialization by broadcast licensees would not be consistent with the attainment of balanced presentations since there was a. danger that the institutional good will and the production resources at the disposal of broadcast licensees would inevitably in- fluence public Opinion in favor of the posi- tions advocated in the name of the licensee and that. having taken an Open stand on be- half of one position in a given controversy. a licensee is not likely to give a fair break to the opposition. We believe. however, that these fears are largely isdlrected, and that they stem from a confusion of the question of overt advocacy in the name Of the licensee. with the broader issue of insuring that the station's broadcasts devoted to the consideration of public issues will provide the listening public with a fair and balanced presentation of differing viewpoints on such issues. without regard to the particular views which may be held or expressed by the licensee. Considered. as we believe they must be. as just one Of several types of pros- entation Of public issues. to be afforded their appropriate and non-exclusive place in the station's total schedule of programs de- vored to balanced discussion and consider— ation of public issues. we do not believe the: programs in which the licensee's personal Opinions are expressed are intrinsically more or less subject to abuse than any other pro- gram devoted tO public issues. If it be tru‘ that station good will and licensee prestige. where it exists. may give added weight to Opinion expressed by the licensee. it does not follow that such Opinion should be ex. cluded from the air any more than it should in the case Of any individual 0' instituti : ' which over a period of time has built up reservoir of good will or prestige in t.‘-o community. In any cor . titicn for pu \lic acceptance of ideas. the ék’l's and res-nun.» of the proponents and opponcnts will alway. have some measure of effect in producm‘: the results sought. But it would not be ,1 9 10.124 sugcesied that they should be denI-d ex- pression of their Opinions over the air by reason of their particular assets. What is against the public interest is for the licensee "to stack the cards" by a deliberate selec- tion of spoi-zesmen for opposing points of view to favor one vieWpolnt at the expense of the other. whether or not the views of those spokesmen are identified as the views of the licensee or of others. Assurance of fairness must in the final analysis be achieved. not by the exclusion of particular views because of the source of the views. or the forcefulness with which the view is 2):- presscd. but by making the micropho:.e available. for the presentation of con- trary views without deliberate restrictions designed to impede equally forceful presenta- tion. 15. Simil. rly. while licensees will in most instances have at their disposal production resources making possible graphic and per- suasive techinqucs for forceful presentation of ideas. their utilization for the promulgao tion of the licensee's personal viewpoints will not necessarily or automatically lead to un- fairness or lack of balance. While uncon- trolled utilization of such resources for the partisan ends of the licensee might conceiv- ably lead to serious abuses. such abuses could as well exist where the station‘s re- sources are used for the sole use of his per- sonal spokesmen. The prejudicial or unfair use of broadcast production resources would. in either case. be contrary to the public interest. . 16. The Commission is not persuaded that 'a station's willingness to stand up and be counted on these particular issues upon which the licensee has a definite position may not be actually'hclpful in providing and maintaining a climate of fairness and equa opportunity for the expression of contrary views. Certainly the public has less to fear from the open partisan than from the covert propagandist. On many issues, of sufficient importance to be allocated roadcast time, the station licensee may have no fixed Opinion or viewpoint which he wishes to state or advocate. But where the licensee. himself. believes strongly that one side of a controversial issue is correct and should pre- vail. prohibition of his expression of such position will not of itself insure fair pres- entation’ of that issue over his station's faculties. nor would open advocacy neces- sarily prevent an overall fair presentation of the subject. It is not a sufficient answer to state that a licensee should occupy the posi- tion of an impartial umpire. where the li- censee is in fact partial. In the absence of a duty to present all sides of controversial issues. overt editorialization by station li- censees could conceivably result in serious abuse. But where. as we believe to be the case under the Communications Act. such a responsibility for a fair and balanced pres- entation of controversial public issues exists. we cannot see how the open espousal of one point of view by the licensee should neces- sarily prevent him from affording a. fair op- portunity for the presentation of contrary positions or make more diflicult the enforce- ment of the statutory standard of fairness . upon any licens 3e. 17. It must be recognizzd. however. that the licensee‘s opportunity to express his own views as part of a general presentation of varying opinions on particular controversial issues. does not Justify or empower any li- censee to exercise his authority over the selection of program material to distort or ' suppress the basic factual information upon which any truly fair and free discussion of public issch must necessarily depend. The basis for any fair consideraticn of public issues. and particularly those of a contro- versial nature. is the presentation of news and information concerning the basic facts of the controversy in as complete and im- - . 272 NOTlCES partial a manner as poxllile. A licensee would be abusing his {D'Yii'mn as public trustee of these important means of mass communication new If: to '.':iziiliold from ex- pression over his I: :il.ti:~.-. :levant new; or facts concerning a controversy or to slant or distort the pres-:ntation of melt news. .\'0 discussion of the issues involved in any con- troversy can be fair or in the public interest wneie such discussion must take place in a. climate of false or halal-1:61.33 information concerning the basic facts of the controversy. 18. Dur‘ng the cour: c of the hearings. fears have been c‘lprt'sscd that any exort on the pr rt of tile i‘mnmlssion to enforce a reasonable Kandard of fairness and im- partiality would inevitably require the Com- mission to take a stand on the merits of the particular issues consiclerci in the programs broadcast by the several licensees. as well as exposing the licensees to the risk of loss of license because of “honest mistakes" which they may make in the exercise of their judg- ment with respect to the broadcasts of pro- r.uns of a controversial nature. We believe that these fears are wholly without justifica- tion. and are based on either an assump- tion of abuse of power by the Commission or a lack of proper understanding of the role of the Commission. under the Communica- tions Act, in considering the program service of broadcast licensees in passing upon appli- cations for renewal of license. While Commission and its predecessor. the Fed- eral Radio Commission. have. from the begin- ning of effective radio regulation in 1927. properly considered that a licensee's overall program service is one of the primary indicia of his ability to serve the public interest. actual consideration of such service has al- ways been limited to a determination as to whether the licensee's programznii 3, taken as a whole. demonstrates that the licensee is aware of his listening public and is willing and aole to maize an honest and reasonable effort to live up to such obligations. The action of the station in carrying r refusing to carry any particular program is of rele- vance only as the station's actions with re- spect to such programs fits into its overall pattern of broadcast service. and must be considered in the light of its other program activities. This does not mean. of course. that stations may. with impunity. engage in a partisan editorial campaign on a. par- ticular issue or series of issues provided only that the remainder of ts program sched- ule Conforms to the statutory norm of fair- :l ness: a licensee may not utilize the portion- of its broadcast service which conforms to the statutory requirements as a cover or shield for other programming which falls to meet the minimum standards of operation in the public interest. But it is clear that the standard of public interest is not so rigid that an honest mistake or error in judgment on the part of a licensee will be or should be condemned where his overall record demon- strates a reasonable effort to provide a bal— anced presentation of comment and opinion on such issues. The question is nosessarily one of the reasonableness of the station's actions. not whether any absolute standard of fairness has been achieved. It does not require any appraisal of the merits of the particular issue to determine whether rea- sonable efforts have bten made to present both sides of the question. Thus. in apprais- ing the record of a station in presenting programs concerning a controversial bill pending before the Congress of the United States. if the record disclosed that the li- ccnsce had permitted only advocates of the bill's enactment to utilize its facilities to the exclusion of its opponents, it is clear that no independent appraisal of the bill‘s merits by the Commission would be required to reach a determination that the licensee had misconstrued its duties and obligatinx s as: a person licensed to serve the public iniercst. this . The Commission has :lrervnl. in (‘Illl‘ld’lro in: this general problem that. "the duty to operate in the public interest l.- no eso- teric 33,-story. but is (‘.'T'QHLlliilY a duty to operate a radio station with good jtitigfniniit and good faith guided by a reasonable regard for the intervals oi :.l.c community to be served.” Norther: (“rir;~oi'atlon (WMEX), 4 Pilze 8.: Fischer. RR. 333. 330. Of course. some cases will be clearer than others. and the Commission in the exercise of its func- tion; may be called upon to weigh conflict- ing evidence to determine whether the li- censee has or has not made reasonable efforts to present a fair and well-rounded presenta- tion of particular public issues. Bu the standard of reasonableness and the reason. able approximation of a statutory norm is not an arbitrar standard incapable of ad- ministrative or Judicial determination. but. on the contrary. one of the basic standards of conduct in numerous fields of Anglo- Amcrican law. Like all 0 her flexible stand- ards of conduct. it is subject to abuse and arbitrary interpretation and application by the duly authorized reviewing authorities. But the possibility that a legizimate stand- ard of legal conduct might. be abused or arbitrarily applied by capricious govern- mental authority is not and cannot be a rea- son for abandoning the standard itself. And broadcast licensees are protected against any conceivable abuse of power by the Commis- sion in the exercising of its licensing author- ity by the procedural safeguards of the Com-- munications Act and the Administrative Pro- cedure Act. and by the right of appeal to the Courts from final action claimed to be ar- bitrary or capricious. 19. There remains for consideration the allegation made by a few of the witnesses in the hearing that any aetion by the Com- mission in this field enforcing a basic stand- ard of fairness upon br adcast licensees nec- essarily constitutes an “abridgement of the right of free speech" in violati n of the First Amendment of the United States COXlStit"r tion. We can see no sound basis for any such conclusion. The freedom of snecch protected against governmental abridgement by the First Amendment does not extend any privilege to government licensees of means of public communications to exclude the ex- pression of Opiniors and ideas with which they are in disagreement. We believe. on the contrary. that a requirement that broad» cast licensees utilize their franchises in a manner in which the listening public may be assured of hearing varying opinions on the paramount issues facing the American peo— ple is vr'thin bOth the spirit and letter of the First Amendment. As the Supreme Court of the United States has pointed out in the Associated Press monopoly case: It would be strange indeed. however. if the grave concern for freedom of the press v1; which prompted adoption of the .-.rst Amendment should be read as a command that the government was without power to protect that freedom. ' ' ‘ Thai. Amend- ment rests on the assumption that the Wid- est possible dissemination of information from diverse and antagonistic sources is es- sential to the welfare of the public. that a free press is a condition of free society. Surely a. command that the government it- self shall not impede the free ‘lozv or ideas does not afford nongovernmental combina- tions a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution. but free- dom' to combine to keep others from pub- lishing is not. (Associated Press v. United States. 326 U.S. 1 at p. 2C.) 20. We fully recognize " it fraction: of in: radio is included among .ite ir‘cdoms pro- tected against government 1: abridgement iv the I-‘irst Amendment. United States v. I‘; va- mount Pictures. Inc.. et al.. 133-.i U.S. 131. 1:55. Saturday, July 25. 196 ' But this does not mean that the freedom 0: the people as a whole to enjoy the mat:— imum possible utilization of this medium 01' mass communication may hes utorrtinated ‘o the freedom of any slug: 1:- p1“ .sO' .1 to exploit the medium for his 01111 111111.10 11t1teres. Indeed. it seems indisput1ble that full -ef- feet can only be given to the concept of free- dom of speech 011 the radio by giving prece- dence to the right of the American public to be informed on all sides of public ques- tions over any such individual 9. ploitation for private purposes. Any regulation of radio, especially a sys 1tcm 0. limited licensees. is in a real sense an abrigement of the in- herent freedom of persons to express them- selves by means of re dio comr 111111.113. tions. It is. however. a. neccsary 111.11 constitutional abridgement in order to prevent chaotic in- terference from destroying the great poten- tial of this medium for public enlie liteu- ment and entertainment. National Broad- casting Company v. United States. 319 us. 190. 296: of. Federal Radio Commission v. Nelson Brothers Bond dz Mortgage Co., 289 05. 256; Fisher's Blend Station. Inc. v. State Tax Commission. 277 U.S. Goo. Nothing in the Communications Act or its history sup- ports my conclusion that the people of the nation. scti as through Congress. have in- tended to surrender or diminish t1 .eir para- mount rlghts in the air waves. including cess to radio broadcasting facilities to a blira- lted number of private licensees to be used as such licensees see fit. without regard to the paramount interests of the people. The most signirxant meaning of freedom of the radio is the right of the American people to listen to this great medium of communi- cations frce from any governmental dicta- tion as to what they can or cannot hear sndfrec alike from similar restraints by private licensees. 21. To recapitulate. the. Commission be- lieves that under the American system of broadcasting the individual licensees of radio stations have the responsibility for deter- mining the specific pro 1111a material to be broadcast over their stations. This choice. however. must be exercised in a manner con- sistent with the basic policy of the Con- gress that radio be maintained as a medium of free speech for the general public as a whole rather than as an outlet for the purely personal or private interests of the licensee. This requires that licensees devote a rea- sonable percentage of their broadcasting time to the discussion of public issues of in- terest in the community served by their sta- tions and that such programs be designed so that the public has a reasonable Oppor- tunity to hear difl'erent opposing positions on the public issues of interest and impor- tance in the community. The particular for- that best suited for the presentation of such programs in a manner consistent with the public interest must he .11ermin ed by the licensee in the light of the fact: of each in- dividual situation. Such pres: tation may include the identified expression of the li- censee's personal vie. .'point as part of the more general presentation of vi e115 or com- ments on the various issues but the op- portunity of licensees to present 511:2: views as they may have on matters of controversy may not be utilized to achieve a partisan or one-sided presentation 01‘ issues. Licensee cdltorialtzation is but one aspec: of freedom 0! expression by means of radio. Only in- sofar as it is exercised in con1ormity with the paramount right of the public to hear a Msonably balanced presentation 0. ' ’1 re- syonsiblc viewpoints on particulrr i:'-.'.' ,. can such ed. tor.allzat.an be cc..s;1l-;;'111‘1 tc be. con- sistent with the licensee's duty to ope1ato in the public intereit For the licensee 1'. a trustee impressed a the dut; o. preserv- ing for the public gem-11111;; radio 11.1 a medi- um of free expression and fair preser. arms. 273 FEDERAL 1126157511 Appendix 8 [FCC C's-612 a; T111: Hrsroar or was Fara: A. Legislative History. The issues: doctrine was 11"")th pur suant to the publ.c interest st .ndr rds of the Federal Radio Act of 1927 and the Commu- nications Act of 108-1. and in light of the ex- pressions of Congress as set forth in legis- lative history. From the inception of commercial radio broadcastirg. Congress expr ssed its concern that the air waves be used as a vital means of communication, capable of making a major contribution to the development 0: an in.ormed public opi1 ion. It was to encour- age these capr .'o11ltics within the American institutional fram ewor ‘1: that Congress legis- lated in this fiel (1.1 Both the Federal Radio Act of 1927 and the Communications Act 01' 1934 established that the American system of broadcasting should be carried on throng. a large number of pri- vate licensees upon whom rested the sole respor sibility for determin ing the content and presentation of program material. But the Congress. in gre .ntiizg access to broadcast facilities to a limited number or private li- censees. made clear from the beginning that the responsibility which licensees held must be exercised in accordance with the par- amount public in terest.'1'nus. the legislative his: ry is clear that the Congress intended that radio should be maintained as a medi- um of free speech for the general public; rather than as an outlet for the views of a few. and that the responsibility held by roadcast licensees must be exercised in a manner which woul ' serve the community generally and the various groups. whether org anlzcd or not. which made up the com- munity. As early as 1926. in the Congr,1esslon:1l de- bates which led to the enactment of the Radio Act of 1927. Co gressman (later Sena- tor) White “ stated (67 Cong. Rec. 5479. March 12.1926): "We have reached the definit e conclusion that the right of all our people to en Joy this means of communication can be preserved only by repudiation of the idea underlying the 1912 law that anyone who will. may transmit and by the assertion in its stead of the doctrine that the right of public to service is superior to the right of any indi- vidual to use the ether. This is the first and most fundr... ental difference between the pending bill and ptesent law." "The recent radio conference met this issue squarely. It recognized that in the present state of scientific development there mus: be a limitation upon the number of broadcast- ing stations and it recognized that licenses should be issued only to those stations whose operation aould render a benefit to the pub- lic. are necessary in the public interest or would contribute to the development of the art. This principle was approved by every witness before your committee. We have written it into the bi‘ 1.1 If enacted into law. the broadcasting privile C1e 11111 not be the right of selfis huess. It aill rest upon an assurance of public interest to be ser1 ed. " Similarly. the viev. that the public interest is paramount to the private interest of par- ticula r licensees V138 emphasized again on June 91.19-28.111 a unanimous report of the Senate Committee on Interstate and Foreign Commeice on S. 1333. S. Rept. No. 1557. BOth Conga 2d Sess.. pp. 111—15: and. more re- cently. on April 17. 1361:. in S. Rept. No. 99111 (Part 6). 87th Cong. 2d Sess.. PF. l-t. with particular reference to tho Commission's fairness doctrine. in which theview was 255 Mo cram: ‘ ‘3. Rept. N . 904 (Part 6). 87th Cong, 2d Sess.. p. l. C lnt:re..i. l'.’:'i‘.:‘.i1:.. 0.‘ opinion 1): pre- -‘..'11': controversial 1'.-.- expressed that the ,3qu that :1 fair c1'0":-.'.." .1": annicu W111i .1. 'lcclc to sue 1.. (1.331;: ml 5'11 1'. as. of the personal views of the, .1cnsre. Mined. 1111.13; 10.30 the Communications Act hes affirmed the fairness doctrine with respect to the bro-sic. .2: licensee who per- mits the use of his lacilizies for the present..- tion of controversL. 1.2 public issues. In the 195’) Amendment to 5031.131 815 of the Act. Congrczs specifically harmed. the fairness doctrine by providing that: “Nothing in the. Iorrming sentence Vin. ., 'excmpt'oni’ rom equ.1l time requirements for no '15-'1'31: pros: 1111.11 shall be construed as relieving hrcewdcasters in connect. on 1.1121. the presentation of newscasts. news inter- views. news documentaries. and on-the-Spot co.cr..;c of news events. ‘.rom the obligation imposed upon them under this c... pt1. to operate in the public in'erest and to axiorci reasonable op oortunity for the discussion of conflicting me so on issues of public impor- tance." The legislative history of this amendment establishes that this provision “is a restate- ment of the basic policy 01‘ the ‘standard of fairness' which is impozcd on broadcrst .1r.. under the Commu: 1icat.ons Act 01 13..." (House Rept. No. 1011.). 33th 0011*. lst Sess.. August 27. 1959. p. 5). As shown by the use of the uord' ‘chapter" r. ther han "sec-.' on" and also by he 1e; siativc history (told. Sen. Rept. No. 562. Both Cong., lst Sess., pp. 13. 19: 105 Cong. Ilse. 16310. 1h3‘1r’17: 17778. 17830-31). C01gress made c.€'.t' that the obligation of .'airncss is applicable to a '. broadcasts dealing with contro .'ersial is:-;ue:. 01' public lmportauce.T‘.1u'.. just . '5 Section 315 prior to 1959 1111;) rated a sp2c1£c st itixtor, obligation upon the l; 11sec to a.1ord' 'ec 11:.1 opportuniti 15" to 113:.ily quali..e dcand' 111:.‘1-2 1 for public office. since 1.733 it also gives spe- cific statutory recogmi ion :0 ti. o doctrine that requires the lie; use: “to a..ord reason- able opportunity for the discussion of con- flicting views on issues of public impor- tance." i.e., to be fair in the broadcastinr or controv rsial issues. B. The History of the Within the CO’ntili3?'01l. The administrative history 0: the falrrte doctrine dates b.e}: to some of the {11.1 131-11f sions of the Federal Radio Commissron. op- erating under the autl or: ty of the Fed -1:1l Radio Act of 19273 and seek ing to imple- ment the public interest requirement c.' that Act. One of the first responsibilities of the ‘.‘.a- dio Commission was to assign the: requenci‘s and hours of Operat10u to the numerous moi.) stations hich had bcgun 0;. 1cratio. .'3 prior to the enactment of the Re .dio Act. 721-;- means through which the Radio Commission carried out this responsibility .as prinzarzly by the adogv' 1011 o; '1 gene-r sl .ea.loc:.-’.ion pro- gram which bee 1:1.1e elective on Noremtx l. 1028. and p 1rsu..1.t to which 1211-3».- quencies and hours of operat' ..n of e. e. ".' radio 512 ton in the country were 5:11:33 ’ .3 rol1c 511111., he adc') 3tion o: the Z ‘. location pia. the Radio Ccazmirricn re ceiv ed numerous . 3jrlications. czar. were mutual. y exc rijusive. for m eiiicaticn o. the licenses 11.11 .c.1 had?“ e111: issued pursue. to the plan. Mary of the'1 p 3'icat‘. 11:1 fiver-.1 from 01., ..ni rations v...c:1 had been 1:51:13 their facill1.es pranarlly .or the pro:1:ti .1'1 of their own vi1‘11pc...rt While 1‘. '1 Commis- 8.011 generally adop : c‘. t e. principle 1111'. as betacen two b. ‘.‘1011'11? .'.-s '11.; s.:i: ion: 1'.-1:. otherwise equal claims for rivilegcs. 1:11 tation 111th the longest record 01' 11.-3:13:11:- 0113 service would have the .511; eriur right z'or- Fairness Doctrine Pd.“ Ava 4&hos A.§ . ' o c-- . 1 a :0 ‘3: I‘:‘s.‘.t ’ 1‘ t ’44 Stat. 1162 (l9'37). 'Scc 2 F.RHC Ann. Rapt.lT—18. 27.1}— 214. 10426 a license. one exception to the principle of “priority" was made in the case of stations which served as outlets for the presentation of only one point of view. Thus. in Great Lakes Broadcasting Com- pany (reported in 3 F.R.C. Ann. Rep. 32) . the Commission denied an application for modi- fication of license of a station which broad- cast only one point~of view. stating that (at pp. 32. 33); ' Broadcasting stations are licensed to serve the public and not for the purpose of furthering the private or selfish interests of individuals or groups of individuals. The standard of public interest. convenience. or necessity means nothing if it does not mean ' this. . It would not be fair. indeed it would not be good service. to the public to allow a one-sided presentation Of the political issues of a campaign. Insofar as a program con- sists of discussion of public questions. public interest requires ample play for the free and fair competition of Opposing views. and the commission believes that the principle ap- plies not only to addresses by political can- didates but to all discussions of issues of importance to the public. The great ma- ]ority of broadcasting stations are. the corn- mission is glad to say. already tacitly recognizing a broader duty than the law im- poses upon them. ' In explanation of this view. the Radio Commission pointed out that in the com- mercial radio broadcasting scheme (Id. at p. 34) z ' ‘ ‘ ' there is no room for the operation of broadcasting stations exclusively by or in the private interests Of individuals or groups so far as the nature of programs is concerned. There is not room in the broadcast band for every school of thought. religious. political. social. and economic. each to have its sep- arate broadcasting station. its mouthpiece in the ether. If franchises are extended to some it gives them an unfair advantage over others. and results in a corresponding cut- ting-down ofgeneral public-service stations. It favors the interests and desires of a portion of the listening public at the expense of the rest. Propaganda stations (a term which is here used for the sake of convenience and not in a derogatory sense) are not consistent with the most bereficial sort Of discussion of public questions. As a general rule. postulated on the laws of nature as well as - on the standard of public interest. conven- ience. or necessity. particular doctrines. creeds and beliefs must find their way into the market of ideas by the existing public- service stations. and if they are of sufficient importance to the listening public the micro- phone will undoubtedly be available. If it is not. a well-founded complaint will receive the careful consideration of the Commission in its future action with reference to the station complained of.‘ _ And. in the Chicago Federation of Labor case (reported in 3 F.R.C. 35. affirmed. Chica- go Federation of Labor v. F.R.C.. «if F. 2d 422. the Commission again denied r. modifica- tion of license on the ground that: Since there is only a limited number of available frequencies for broadcasting. this commission was Of the opinion. and so found. that there is no place for a static-s catering to any group. but that all stations should Uilthough the Commission's decision was reversed on other grounds. Great Lakes Broadcasting Co. v. Federal Radio Commis- - sion. 37 F. 2d at 093. in discussing be above holding. the Court stated (37 F. 2d at 005): “It is our opinion that {the} application was rightly denied. This casein-non is based upon the comparatively limited public serv- ice rendered by the station ' ‘ i.” 'rcnder adml.ahle public service. . 271i NOTICES: cater to the general public and serve public interest as against group or class interest.‘ These principles received early and un- equivocal ahlrmatior. by the Federal Com- munications Commission operating under the authority of the Communications Act of 1934. Thus. in 1938. the Commission denied an application for a construcuon pcr- ‘ mit primarily because of the applicant's policy of refusing to permit the us: of its broadcast facilities by persons or organiza- tions wishing to present any viewpoint dif- ferent from that of the applicant.‘ Simi- larly. in 1940. in its Sixth Annual Report. the Commission stated (6 F.C.C. Ann. Rep. at 55) : “In carrying out the obligation to render a public service. stations are required to furnish well-rounded rather than one-sided discussion of public questions." Again. in 1941. in Mayflower Broadcasting Corp.. 8 FCC 333 at 340. the Commission stated: ' “Freedom of speech on the radio must be broad enough to provide full and equal Opportunity for the presentation to the pub- lic of all sides of public issues. Indeed. as one licensed to operate in the public domain the licensee has assumed the obligation Of presenting all sides Of important public ques- tions fairly. objectively and without bias. The public interest—not the private—is paramount." In that same case, however. it was also stated at p. 3-20: "In brief. the broadcaster cannot be an advocate.” This statement was widely accepted as an outright prohibi- tion of broadcast editorializing. and. in view of the reaction to such policy. the Commis- sion. on September 5. 1947. initiated a pro- cecdlng in Doc‘cct lilo. 8516 to study and re- examine the role of broadcast editorializing and the fairness doctrine. in general. This study culminated in the Report on Editori- alizing. supra. as will be set forth more fully below. Concurrently with its study in Docket NO. 8516. however. the Commission continued the process of defining and applying the fairness doctrine to the various problems which were presented to it. Thus. the Com- mission made clear its belief that not only did the public interest require broadcast licensees to affirmatively encourage the dis- cussion Of controverial issues. but that. in presenting such programs, every licensee had the responsibility to aflord reasonable Op- porttmity for the presentation of contrasting viewpoints. See e.g., United Broadcasting Co., 10 FCC 515 (1945): Johnston Broadcast- ing Co., 12 FCC 517 (19;?) . reversed on Other grounds. Johnston Broadcasting CO. v. F.C.C.. 175 ’r‘. 2d 351 (1949): Laurence W. It‘rrry. l3 FCC 23 .(1048): WBNX Broadcasting Co., 12 FCC 805. 837. In the WBNX case the Commission also stated (12 FCC at 841): “The fairness with which a licensee deals with particular racial or religious groups in its community. in the exercise of its power to determine who can broadens: what over its facilities. is clearly a substantial aspect of his operation in the public interest.” “In affirming the Commission's decision. the Court of Appeals found that the radio station wnich we no be adversely ailected by a great of the :a‘oor-organization's applica- tion ' has always rendered and continues to The stats tion has consistently furnished equal broad- casting facilities to all classes in its com- munity." Chicago Federati . of Labor 7. F.R.C.. 41 F. 2d at 423. 0 Young People's Association for the Propa- gation of the Gospel. 6 FCC 178. C. Tue Commission’s Report on Le‘iiorfal- isfng. The Report on Editorializing by Broadcast, Licensees. supra. which was issued by the Commission in 1013 in Docket No. 8516. sets forth most fully the basic requirements of the “fairness doctrine" and remains the keystone O'.‘ the Commission's fairness policy thay. The Report was the result of a two- ycar proceeding in which members of the public. the broadcasting industry, and the Commission participated. In essence. the Report established a two-fold obligation on the part of every licensee seeking to operate in the public interest: (1) that every li- censee devote a reasonable portion of broad- cast time tO the discussion and consideration of controversial issues of public importance: and (2) that in doing so. he be i‘airuthat is. that he affirmatively endeavor to make his facilities available for the expression 0: con. trast'mg viewpoints held by responsible ele- ments with respect to the controversial is- sues presented. While concerned with the basic considerations relevant to the expres- sion of editorial opinion by broadcast licen- sees. the Report also dealt with the rela- tionship of licensee editorial opinion to the general obligations Of licensees tor the pres- entation of programs involving controversial issues. and. accordingly. set forth in detail the general obligations of licensccs in this area. - First. the Report reaffirmed the basic re- sponsibility of broadcast licensees Operating in the public interest to provide a reason- able amount Of broadcast time for the pres- entation of programs devoted to the dis- cussion and consideration of controversial issues of public importance. Because of the vital role that broadcast facilities can play in the development of an informed public Opinion in our democracy. the Commission noted that it: “' ° ‘ has consequently recognized the necessity for licensees to devore a reason- able percentage Of their broadcast time to the presentation of news and programs de- voted to the consideration and discussion of public issues 2 interest in the community served by the particular station.“ The Commission further determined. how- ever. that the “paramount" right of the public in a free society to be informed could not truly be maintained by radio unless there was presented to the public "for ac- ceptance or rejection the different attitudes and viewpoints concerning these vital and often controversial issues which are held by the variou: groups which make up the community." Consequently. the Commission stated that: . "' ‘ ‘ the licensee's obligations to serve the public interest can[not] be met merely through the adoption of a general policy of not refusing to broadcast opposing views when a demand is made of the Station for broadcast time ‘ ‘ ' it is evident that broadcast licensees have an affirmative duty generally to encourage and implement the broadcast of all sides of controversial public issues over their facilities, over and beyond their obligation to maize available on demand opportunities for the expression of opposing views. It m clear that any approximation of fairness in the presentation of any con- troversy will be difficult if net impossible of achievement unless the licensee plays a con- scious and positive role in bringing about balanced presentation of the Opposing view- P‘ n it." . at the same time. the Report mule clear thct the precise means by which fairness woulo be achieved is a matter for the dis-- iPuagraph 6. Report on Edi orLalisfng. supra. ' Ruragrsph 9. Report on Editorialieii ; by , Broadcast Licensees. Saturday, .711. 1'95; cretlon or the licensee. Thus the Co: nm :3 sion rcgcctcd suggestions that licensee -.. be required to utilize (105an iornu‘a. and stated: “It should in recognired that 11.9 be no one all-embraczns :oxmuia \ “11‘ ccnsces can hope to a, pig: to insu: ctiie fair and balanced prenaation 0. all pu ubiic issues. Dillercnt iLSL I23 Will inevitably re- quire dizl’erent techniques of presentation and production. The licensee Will in each instance be called upon to exercise his best Judgment and good sense in determining what subjects should be considered. the par- ticular format of the programs to be devoted to each subject. the different shades of opinion to be presented. and the Spokesman ‘ tor each point or view." ' A limitation on this exercise of dircretion is where a personal atte c1: occurs in a pro- gram involv‘. ng controversial issues of pub- lic importance. Here the Commission stated: “‘ ‘ ‘ for elementary considerations may dictate that time be alioc ated to a person or group which h..s been specific..1ly attacked over the station, where otherwise no such obligation would exist ‘ ‘ ‘.” 1° In determining in an individual whether or not a licensee has complied the fairness doctrine. the Commission looks solely to whether. in the circumstances pre- 6380 'Paragraph 10. Report on Editorializing by Broadcast Licensees. ”Paragraph 10. Report on Editoriali zni g by Broadcast Lie nsecs 275 FED”‘«: “loo 1‘ 'i‘: ‘i‘" "7‘. o\-G‘~O ‘:.\ scatcd. the licenrcc ac t2". rc:~.:-nah'.;: and in gocd (1121‘. to pr 0:611: a fair cross-section of opinion on‘ ‘10 conch-.3211} .::i'.c p1e3':ntul. In nukings l' h c. m '-:-r..'.; ‘.fillfii izoxze .I‘; Elli. ‘ '.':n or ergor in go. “rum ‘.'.iii not' or: c m- (iciniicd, so ion; as th; i:(uli"1€ (1cm c. 2:. 1:”. es 9. rec. 0 table rad 1.0; u;t c ’10“; to pzoxicie a balanced prompt-”Lion c: the C011” '.ersial issue. Tnc question of. ".‘LiCL-ZlC‘. 11 e lic unsec- gencraliy is operating in the mini. c intern-t is deter: nined at. ihe time of renewal on an ovcz‘all‘ asis. Marcher. the above proccdi ."c doc-s not re- quire the Cornniiirion to consider the merits or the vie'. point pie sented. As stated in the RCPO‘CI... "The question is necessarily one of the reasonablcn 55 of the :.'.a tie 1‘s actions, not whether any absolute standard or f: ir ness h: . bcen schlcmd t do :5 not. equire any ap natal or the n. all .s of th 0 particui ar 15.51;; to determine whether reasonable: ii‘oris ham been made to present bozh sides of the question ‘ ‘ ‘."u It was agai. .s: this background that the Co”. mission .1.) reached the question of edit crialization,s -.:i.i n; “at: "Considered. as we believe they must be. as just one of sen-eral t;- pcs of presentation of public ir .sucs. to be. " .i‘orued their appro- priate and nonexclusive p-ace on the st: .‘t. on '8 total schedule of progr.ms devoted to bal- anced discussion and consideration or public issues. we do not believe that programs in which the licensee's personal opinions are nPm-agraph 18. Report on Editorializing by Broadcast Licensees. n v.»- -: lau‘ cxprcaiccl rr.‘ i:‘ r.u‘:ic~.'..; more or 1643 Iii?) - :C\ U [‘7 ))\1P ; C tho-'l ‘. “RIC (J:--a|l- y 1220033. - UL} I»: to pub. ic issues} u- T111137, t2.eC’mm1i.*iv.; concluded harms-.0 editorial 54.-.03 V3.23 not Contrary i.) the p':!:.ic mu: 3 t. the overriding quc Linn ‘..' in. LO’J."1.LLHC. a Ziamsce could present his own '.'icI;.'p:'.'iit. but whether in presenting any vie-.'.'pomt the licensee was fair. Finally. the Report set forth the basic "lain: ss" ccnsiderstio..3 in tho presentmim. of factual information concerning centro- versial issues. strung: "'i‘nc basis. for any fa!" consideration 01' public issues, and phrticiflariy t.‘.ore o.’ a controversial nature , i. ‘112 prerentation o.’ news and information co;.cer ring :..e bade facts of the contz‘ovI;i’sy in as con piete and. mpartiel a manner as :sfole. A licensee timid be abusing; his posmon as public truste} of these impoJan: . can: or communication were he to nirhlirld .rcai expression over his ac: lities relaxant new: or mots concerning a cont:o.crsy or to slant or distort presente.tio.. of such news. No iscuse ion of the issuer; 1r V013C1 in any car.- troversy can be fair or in the public inter- est where such discussion mus; take place in a climate of {also or misleading informa- tion concerning tho basic faces 01 the con- troversy." '3 (FR. Doc. 64—7327; Filed. July 24. 1964: 8:45 arm} a a- '. :v the . '32.. .c :11: .4 I ” Paragraph 14. Report on Editoria.izir.g by Broadcast Licensees. 8' Report, Par. 17. APPENDIX B LETTERS RE RED LION REPRODUCED FROM 381 F(2d) 908 275 A AM WGCB FM BOX 88 RED LION, PENNA. May 19, 1965 Mr. Ben Waple Secretary Federal Communications Commission Washington, D. C. In re: Complaint of Mr. Fred J. Cook; Your ref. #8425—A Dear Sir: Under the date of March 22, 1965, you wrote us in regard to a complaint from Mr. Fred J. Cook, Interlaken, New Jersey, alleging that he had been refused free broad— cast time on our station WGCB to rebut an alleged personal attack made upon him in late November over the Billy James Hargis Program. You have requested that we comment on this complaint. The Billy James Hargis Broadcast to which Mr. Cook apparently refers was carried on this station on November 27, 196“. We received a letter from Mr. Cook dated Decem- ber 19, 196“, to which we replied on December 28, 196“. A further letter dated December 31, 196“, was received from Mr. Cook to which we replied on January 7, 1965. Copies of these letters are attached. It has been our understanding that the Commission's fairness doctrine requires a broadcast licensee to give free time to reply to paid broadcasts only if sponsor- ship is not available for such reply broadcast. Our communications to Mr. Cook were designated to ascertain whether Mr. Cook was prepared to 'sponsor' or pay for his reply broadcast. Mr. Cook's communications to us, however, have not directly answered our inquiry. The Commission is hereby advised that WGCB will give Mr. Cook an appropriate amount of time to answer the alleged attack upon him in the Hargis program if he advises us that he is financially unable to 'sponsor' or pay for such broadcast. We are quite certain that it would be impossible for us to obtain other sponsor— ship of such a broadcast. If we are incorrect in our proposed method of disposition of this matter, we will be glad to have the Commission so advise us and we will follow such other procedure as the Commission may suggest. 276 277 A copy of this letter is being sent to Mr. Cook for any comment that he might care to make to us or to the Commission. Very truly yours, RED LION BROADCASTING COMPANY Rev. John M. Norris, President 278 FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D. C. 20554 In Reply Refer To: 8A27—A October 6, 1965 Reverend John M. Norris, President Red Lion Broadcasting Company, Inc. Radio Station WGCB Post Office Box 88 Red Lion, Pennsylvania Dear Sir: This letter refers to a complaint filed with the Commission by Mr. Fred J. Cook of Interlaken, New Jersey, concerning a Billy James Hargis program, 'Christian Cru- sade', which you broadcast in November, 1964. The program included a discussion of the 196A presidential election and of a book by Mr. Cook about the Republican campaign. Mr. Cook alleges the discussion included the following personal attack against him: Now who is Cook? Cook was fired from the New York World-Telegram after he made a false charge publicly on television against an unnamed offi— cial of the New York City goverment. New York publishers and Newsweek magazine for December 7, 1959, showed that Fred Cook and his pal Eugene Gleason had made up the whole story and this confession was made to District Attorney Frank Hogan. Mr. Cook asserts that you failed to notify him of the attack or to furnish him with a transcript of sum- mary either before or after the program was aired, and that you refused his request for free time to respond to the attack. In your reply to the Commission's inquiry, you said that your understanding of the requirements of the 'fair- ness doctrine' is that a licensee is not required to grant free time for a reply to a paid broadcast if paid sponsor- ship is available; and that your letters to Mr. Cook were designed to ascertain whether he was prepared to sponsor 279 or pay for his reply broadcast and, specifically, whether he was financially unable to do so. The licensee, with the exception of appearances of political candidates, is fully responsible for all matter which is broadcast over his station, including broadcasts containing a personal attack. The latter is defined in our recent fairness primer as an attack '* * * on an indi- vidual's or group's honesty, character, integrity, or like personal qualities * * *' in connection with a controver- sial issue of public importance. See part E, Personal Attack Principle, 'Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Impor- tance', 29 F.R. IOUIS, lOAZO—Bl. A copy of this document is enclosed. Where such an attack occurs, the licensee has an obligation to inform the person attacked of the attack, by sending a tape or transcript of the broadcast, or if these are unavailable, as accurate a summary as possible of the substance of the attack, and to offer him a com- parable opportunity to respond. Ibid. The licensee may not delegate his responsibilities in this respect to others. Report on 'Living Should Be Fun' Inquiry, 33 FCC 101, 107. In this case, the program in question contained a personal attack on Mr. Cook, since it asserted that he was fired from his newspaper Job because he made false charges against public officials. Your failure to notify Mr. Cook of the attack upon him by Mr. Hargis aired by your station and to offer him the opportunity to reply, was inconsistent with the foregoing procedural require— ments. In the case of a personal attack, the individual or group attacked has the right to appear. Cullman Broad— casting Co., FCC 63—8A9, Ruling 16, Fairness Primer. The licensee is, of course, perfectly free to inquire whether the individual is willing to pay to appear. Here Mr. Cook, in his letters of December 19 and 21, 1964, had stated that he was not. The licensee is also free to obtain a sponsor for the program in which the reply is broadcast, or to present the reply on the particular program series involved, if this is agreeable to the parties such as Mr. Cook and Reverend Hargis. But having presented a personal attack on an individual's integrity, honesty, or character, the licensee cannot bar the response--and thus leave the public uninformed as to his side and 'ele- mental fairness' not achieved as to the person attacked (Editorializing Report, Paragraph lO)-—simply because sponsorship is not forthcoming. Cf. Cullman Broadcasting Co., supra. 280 In short, the burden was upon you to find sponsor- ship, if you so desired, for Mr. Cook's reply; nor, in the circumstances, did Mr. Cook have to make any showing or representation that he is financially unable to sponsor or pay for his reply time. Accordingly, you are requested to advise the Commis— sion of your plans to comply with the 'fairness doctrine', applicable to the situation. BY DIRECTION OF THE COMMISSION BEN F. WAPLE Secretary Enclosure cc: Fred J. Cook 281 AM WGCB FM BOX 88 RED LION, PENNA. November 8, 1965 Mr. Ben Waple, Secretary Federal Communications Commission Washington, D. C. In re: Complaint of Fred J. Cook concerning alleged attack by Rev. Billy James Hargis on Station WGCB, Red Lion, Pennsylvania, Ref: 8A27-A. Dear Sir: This is in reference to the Commission's letter on the above matter, dated October 6, 1965, public notice of which was given on October 8, 1965, but the text of which has not been publicly released. The letter was postmarked October 8th and received by us on October 11, 1965. It is our understanding that by this letter the Com— mission has directed Red Lion Broadcasting Company to pro— vide Mr. Fred J. Cook with free broadcast time on Station WGCB to answer the alleged personal attack upon him in the Billy James Hargis program broadcast on Station WGCB in November, 196A. The Commission's directive, however, does not indicate by what date Station WGCB is required to put on the broadcast. The Commission has rejected our pro- posal, stated in our letter of May 19, 1965 to the Com- mission (c0py of which was sent to Mr. Cook and to which we have received no reply from Mr. Cook), making an offer of free time to Mr. Cook upon a simple statement by him that he is unable to pay for such a broadcast. We would appreciate being advised by the Commission as to the time period for complying with the Commission's directive. We respectfully urge, however, that the Commission reconsider its directive to us. We ask the Commission to refer to the mimeographed 'Statement of Red Lion Broad- casting Company, Inc. (Station WGCB AM-FM, Red Lion, Pa.) In Response to Complaint of Democratic National Committee' transmitted to the Commission under date of March 11 1965. It will be noted that, in that statement, reference was made to the fact that the Democratic National Committee in the summer of 1964, sent to Station WGCB a reprint of an article in The Nation, a nationwide publication, 282 entitled 'Radio Right: Hate Clubs of the Air' with a warning concerning our alleged obligation to give free time to answer broadcasts by such 'Hate Clubs'. The article was written by the same Mr. Fred J. Cook who complained about the alleged personal attack upon him in the Hargis program. Mr. Cook, in his article, attacked Billy James Hargis, his program, and his organization, Christian Crusade. It will also be noted that the Democratic National Committee was given thirty minutes of free time on the Twentieth Century Reforma- tion Hour (it had previously been given two fifteen minute segments on this hour) to broadcast a thirty minute taped discussion entitled 'Hate Clubs of the Air.‘ Nevertheless, WGCB has advised the Commission and Mr. Cook that it would give Mr. Cook free time to reply if he states that he is unable to pay for the time. Under the circumstances, we are at a loss to see the 'fairness' in the Commission's letter to us of October 6, 1965. The Commission has directed that we give Mr. Cook free time to answer an alleged attack upon him made in a paid broadcast by one who had pre- viously been the subject of a nationwide attack by Mr. Cook despite the fact we have offered Mr. Cook free time upon his statement that he is unable to pay. The Commission has given us no reason why the "Fair- ness Doctrine" requires an offer of free time to Mr. Cook to be made without condition as to his inability to pay. We sincerely request that, either by way of recon— sideration or clarification of the Commission's direc— tive, we be advised whether in good conscience and in 'fairness,‘ we should now be forced to give Mr. Cook free time to reply to an attack by one whom he has previously attacked. And, if Mr. Cook, in his reply, should personally attack Mr. Hargis and other 'Hate Clubs', as he calls them, would we then be required to give free time to Mr. Hargis and others whom Mr. Cook may again attack? Or, if Mr. Hargis should then reply to Mr. Cook in his paid broadcast, would we then be required to give Mr. Cook more free time for further reply? It has been stated in a brief filed in the U.S. District Court for the District of Columbia by the United States and the Federal Communications Commis- sion, in the case of Red Lion Broadcasting Co., Inc. v. Federal Communications Commission et al. (Civil action #2331—65) that the Commission's letter of October 6, 1965 with reference to this matter '* * * 283 constitutes a final order * * *'. This apparently indi— cates that we are presently under a mandate from the Com— mission which, if not complied with, may subject us to revocation, forfeitures and possibly other penalites. It is for this reason that we ask that the Commission recon- sider its October 6th ruling, or clarify at the earliest possible date, by way of declaratory ruling, the scope of its directive to us in its letter of October 6, 1965. In view of other statements in that brief, a ruling by the Commission on the constitutionality of the ‘Fair- ness Doctrine' as applied to the instant situation, is also requested. Respectfully submitted, RED LION BROADCASTING COMPANY, INC. By JOHN H. NORRIS John H. Norris, Vice President 28A FEDERAL COMMUNICATIONS COMMISSION WASHINGTON, D. C. 2055“ December 9, 1965 In Reply Refer To: 8A27—A 11-186 John H. Norris, Vice President Red Lion Broadcasting Company, Inc. Radio Station WGCB Box 88 Red Lion, Pannsylvania 17356 Dear Sir: This is in reference to your request that the Com— mission reconsider its ruling of October 8, 1965 on the complaint of Mr. Fred J. Cook. We have considered the contentions and adhere to our prior ruling for the reasons given below. 1. Your letter states that Mr. Cook in an article in The Nation, entitled 'Radio Right: Hate Clubs of the Air, attacked "Billy James Hargis, his program, and his organization * * *'; that your station gave the Democratic National Committee 30 minutes of free time on the Twen- tieth Century Reformation Hour to broadcast a discussion entitled 'Hate Clubs of the Air'; and that you advised Mr. Cook that you would give him free time to reply to the personal attack upon him 'if he states that he is unable to pay for the time.’ In the circumstances, you state that fairness does not require the station to 'give Mr. Cook free time to answer an alleged attack upon him made in a paid broadcast by one who had previously been the subject of a nationwide attack by Mr. Cook * * *.' We have held that 'the requirement of fairness, as set forth in the Editorializing Report, applies to a broadcast licensee irrespective of the position which may be taken by other media on the issue involved; and that the licensee's own performance in this respect, in and of itself, must demonstrate compliance with the fairness doctrine.’ Letter to WSOC Broadcast Co., FCC 58—686, Ruling No. 11, 'Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Impor— tance' (herein called Fairness Primer) 29 F.R. lOUlS, 10418—19). Thus, the requirement of the statute is that 285 the licensee 'afford reasonable opportunity for the dis- cussion of conflicting views on issues of public impor- tance' (Section 315 (a)). This requirement is not satis- fied by reference to what other media, such as newspapers or magazines, or indeed other stations have presented on a particular issue. It deals solely with the particular station and what it has broadcast on the controversial issue of public importance. It follows that Mr. Cook's article in The Nation does not constitute a ground for absolving the licensee of its responsibility to allow Mr. Cook comparable use of Station WGCB's facilities to reply to the personal attack which had been broadcast. Nor does the reference to the Democratic National Committee program constitute such a ground. Except for the use of its facilities by legally qualified candidates, the licensee is fully responsible for all matter which is broadcast over its station. Here the licensee, in its presentation of programming dealing with a controversial issue of public importance, has permitted its facilities to be used for a personal attack upon Mr. Cook. Elemen— tal fairness requires that Mr. Cook be notified of the attack and be given a comparable opportunity to reply. You do not claim that the Democratic National Committee program contained such a reply by Mr. Cook to the per— sonal attack made upon him, and therefore that program does not constitute compliance with the fairness doc- trine's requirements in the case of Mr. Cook. As to the contention that you will permit Mr. Cook to air a free response only if he is financially unable to pay, such a position is, we think, inconsistent with the public interest. The licensee has decided that it served the needs and interests of its area to have a personal attack aired over its station; the public inter- est requires that the public be given the opportunity to hear the other side. The licensee cannot properly make that opportunity contingent upon the payment of money by the person attacked (or the circumstance that he is financially unable to pay). The licensee may, of course, inquire whether the person attacked is willing to pay for airing his response, or take other appropriate steps to obtain sponsorship. See our prior ruling. But if these efforts fail, the person attacked must be pre- sented on a sustaining basis. We believe that this is a matter of both elemental fairness to the person involved and, more important, of affording the public the oppor- tunity to hear the other side of an issue which the licen— see has adjudged to be of importance to his listeners. See Cullman Broadcasting Co., FCC 63-8A9, Ruling No. 17, Fairness Primer. 286 There are other policy considerations supporting the foregoing conclusion. A contrary position would mean that in the case of a network or widely syndicated pro- gram containing a personal attack in discussion of a con- troversial issue of public importance, the person attacked might be required to deplete or substantially cut into his assets, if he wished to inform the public of his side of the matter; in such circumstances reasonable opportu- nity to present conflicting views would not, practically Speaking, be afforded. Indeed, it has been argued that under such a construction, personal attacks might even be resorted to as an opportunity to obtain additional revenues. For all the above considerations, we hold that the licensee may inquire about payment, but cannot insist upon either such payment or a showing of financial inability to pay in this personal attack situation. Here Mr. Cook, in his letters of December 19 and 21, 196A, stated that he was not willing to pay to appear. 2. You have raised the question of a continuing chain of personal attacks. This matter is discussed in the enclosed Letter to the Honorable Oren Harris, FCC 63-851, p. 5, pointing out that the licensee 'has dis- cretion (except in the case of an appearance of candi- dates) to review a proposed program, including the script, to insure that it does not go unreasonably far afield as to the issues.' In any event, there is no indication of such a hypothetical chain in the circumstances of this case, nor indeed have you raised any question concerning Mr. Cook's proposed reply except on the ground of payment. 3. You have referred to a statement in the brief filed in the case of Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, et al. (Civil Action No. 2331-65) that the Commission's letter of October 6, 1965 'constitutes a final order * * *', and seeks clari- fication as to the scope of the directive in that letter, and particularly 'by what date Station WGCB is required to put on the broadcast.’ The ruling is a 'final order', in the same sense as a ruling under Section 315 dealing with the 'equal opportunities' provision. As stated in the enclosed Letter to the Honorable Oren Harris, supra: '* * * the licensee should have the opportunity to contest the validity of any Commission "fairness" ruling. If the Commission rules at the time of complaint, the licensee can, if he believes the ruling incorrect, appeal to the court. Cf. Brigham v. F.C.C., 276 F.2d 828, 829 (C.A. 5); Fadell v. U.S., Case No. 1A,lA2, (C.A. 7); Frozen Foods 287 Express v. U.S., 337 U.S. A26, A32—AAO; Caples Co. v. U.S., [100 U.S. App. D.C. 126], 2A3 F.2d 232 (C.A.D.C.); if he wins, he need not comply, while if he loses, he will of course follow the ruling. * * *' The licensee thus has the choice of complying with the ruling or seeking review thereof. As to the time of com— pliance, this varies with the factual situation and is a matter to be worked out in good faith and on a reason— able basis by the licensee and the person involved. 4. Finally, you have requested a ruling by the Commission as to the constitutionality of the fairness doctrine, as applied to this situation. We discussed the constitutionality of the fairness doctrine generally in the Report on Editorializing, l3 F.C.C. 12A6-l270. We adhere fully to that discussion, and particularly the con— siderations set out in paragraphs 19 and 20 of the Report. We believe that the discussion in those paragraphs is equally applicable to our ruling in this case. The ruling does not involve any prior restraint. The licen- see is free to select what controversial issue should be covered, and whether coverage of that issue should include a personal attack. The ruling simply requires that if the licensee does choose to present a personal attack, the person attacked must be notified and given the oppor- tunity for comparable response. The ruling provides that if sponsorship is not forth- coming (see p. 2), the person attacked must be presented on a sustaining basis, because, in line with the above cited discussion in the Editorializing Report the para- mount public interest is that the public have the oppor- tunity of hearing the other side of the controversy, and elemental fairness establishes that the person attacked is the appropriate spokesman to present that other side. Since this personal attack situation is the only area under the fairness doctrine where the licensee does not have discretion as to the choice of spokesmen, the Com— mission has carefully limited the applicability of the personal attack principle to those situations where there is an attack upon a person's 'honesty, character,‘ integ- rity or like personal qualities." See Part E, Personal Attack Principle, Fairness Primer, 29 F.R. lOAlS, lOA20—2l. The principle is not applicable simply because an indi— vidual is named or referred to, or because vigorous excep— tion is taken to the views held by an individual or group. Ibid; see also letter to Pennsylvania Community Antenna Association enclosed. 288 A broadcaster has sought the license to a valuable public frequency, and has taken it, subject to the obli- gation to operate in the public interest. Valuable fre- quency space has been allocated to broadcasting in con— siderable part, so that it may contribute to an informed electorate. Report on Editorializing, 13 F.C.C. 12A6— 1270, par. 6. Viewed against these fundamental precepts, our ruling is, we believe, reasonably related to the public interest 'in the larger and more effective use of radio' (Section 303(g) of the Communications Act). Since that is so, it is a requirement fully consistent with the Constitution. NBC v. United States, 319 U.S. 109, [190] 227 [63 s. Ct. 997, 87 L. ED 13uu]. BY DIRECTION OF THE COMMISSION BEN F. WAPLE Secretary APPENDIX C CORRESPONDENCE BETWEEN HOUSE INTERSTATE AND FOREIGN COMMERCE COMMITTEE AND FEDERAL COMMUNICATIONS COMMISSION 289 CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES WASHINGTON, D. 0. August 15, 1967 Honorable Rosel H. Hyde Chairman Federal Communications Commission Washington, D. C. Dear Mr. Chairman: I have reviewed the Commission's recent amendment to its rules (order adopted July 5, 1967) providing pro- cedures to be followed when a station broadcasts a per- sonal attack, and the subsequently issued "clarification" (order adOpted August 2, 1967) exempting newscasts and on-the-spot news coverage from the personal attack prin- ciple. For reasons which are stated below, the conclu— sion seems inescapable to me that the Commission, under the terminology of "clarification," has not only repu- diated its long—standing policy on personal attacks, but has directly contravened the express language of Section 315 (a) of the Communications Act. Section 315 (a), as you know, exempts four types of news programs from the operation of the "equal oppor— tunities" requirement provided for in the first sentence of the section. This was done to permit political can— didates to appear on such programs without creating an obligation on the licensee to afford equal Opportunities to other legally qualified candidates. In making this exemption, however, the Congress made it clear that such programs must still be governed by the fairness doctrine: Sec. 315(a) . . . Nothing in the foregoing sentence Shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on—the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable oppor— tunity for the discussion of conflicting views on issues of public importance. Whatever else the fairness doctrine may embrace, therefore, it is perfectly clear that it applies to the 290 291 four types of news programs specifically enumerated in Section 315 (a); i.e., "newscasts, news interviews, news documentaries, and on-the-spot coverage of news events." The "clarification" released by the Commission on August 7 informs us that the Commission, in effect, now pro- poses to exempt two of these types of news programs (i.e., newscasts, and on-the-Spot coverage) from the fairness doctrine. Mr. Chairman, your Commission has no such authority. The Commission's original order of July 5, 1967 was a codification of the FCC'S "long adhered-to per— sonal attack principle," (paragraph 3 of the memorandum opinion). Under the principle it has always been the duty of a licensee to forward to a person or group attacked notification of the attack and an offer of an opportunity to respond, rather than to await a request or complaint from the person attacked. The notification requirement is of the utmost importance, since our experience indicates that otherwise the person or group attacked may be unaware of the attack, and thus the public may not have a meaningful opportunity to hear the other Side. This, of course, merely reaffirms the previously stated policy of the FCC in this area as set forth in the 196A Fairness Primer. The August 2 "clarification," however, purports to distinguish between the personal attack principle and the "general" fairness doctrine, (paragraph 2 of memorandum opinion of August 2, 1967). This contravenes the previous FCC holding that, in the area of personal attacks, the fairness doctrine requires adherence to the personal attack principle. The only exclusion heretofore enunciated by the Commission was the case of political candidates, and even in those cases the FCC did not deny the right to notice and time to reply, but merely stated that the candidate himself could not insist that he be the one to make the reply. The Commission has taken a drastic and unwarranted step in its August 2 order. If this order is allowed to remain in effect, attacks on individuals' or groups' integrity, character, or honesty may be indulged in with- out any effective recourse given to the victim of the attack to defend his reputation. Of at least equal importance, the public will be denied its right to be assured of hearing both sides of an important controversy. The licensee need only see to it that the attack is made during the course of a newscast. This requirement will present no serious challenge to the ingenuity of any 292 unscrupulous broadcaster. While such persons are, for- tunately, a very small minority of the broadcasting indus- try, I can see no reason for providing them with a sanc- tuary within which to launch with impunity assaults on the reputation of those who have incurred their displeasure. The stated reasons for such a serious departure, both from previous FCC precedent and statutory mandate, are singularly unconvincing. It is said, for example, that a notification to the victim of a personal attack is "impractical," (paragraph 2): To import the concept of notification within a week period, with a presentation of the person attacked on some later newscast when other news might normally bg_broadcast, is impractical and might impede the effective execution of the important news functions of licensees or net- works. (Paragraph 2, memorandum opinion of August 7, 1967, emphasis added). It is not clear from this just what it is that the Commission deems has become impractical. From the lan- guage underlined above, however, it appears that the rights of both the personal attack victim and the public are to be compromised because the licensee who has lent his facil- ities to the attack might wish to present other news on future programs, and not be bothered with the victim's response. This affords not the slightest basis for the Commission's order. The public interest and the rights of a personal attack victim cannot be subordinated to the convenience of the licensee. A further puzzling aspect of the August 2 order iS the distinction drawn between newscasts and on—the-spot news coverage, on the one hand, and editorials, documen— taries and the like, on the other. The reason for the distinction given by the FCC in its memorandum opinion only serves to heighten the mystery: (S)ince the licensee has chosen to present a per- sonal attack in his editorial, he Should not be the one to determine wholly what the public shall or shall not hear on the other side of a matter affecting the integrity, honesty, and like per- sonal qualities of the person attacked. Under elemental fairness, the person attacked should be afforded a comparable opportunity to give that side, subject to reasonable conditions set by the licensee . . . More important, the person attacked is the most appropriate spokesman to inform the public of the other side of the attack issue. (Paragraph 3). 293 The broadcasting of a personal attack in a newscast or on-the-spot news coverage, however, is no less a deci- sion of the licensee than an attack launched through an editorial; the licensee in both cases is responsible for the program content being broadcast over his facilities. This much was at one time conceded by the Commission: Under fundamental communications policy, the licen- see, with the exception of appearances of political candidates . . . is fully responsible for all mat- ter which is broadcast over his station. It follows that when a program contains a personal attack, the licensee must be fully aware of the contents of the program, whatever its source or his actual involvement in the broadcast. The crucial consideration, as the Commission stated in Ma oles is that "his broadcast facilities (have been) used to attack a person or group." (Fairness Primer, 196“, page 18, emphasis added). I believe that this language sets forth clearly the essential factors involved in personal attack situations. The deliberation of the licensee, or lack thereof, should not be used as the determining factor in affording reply time to the victim of a personal attack. The actual inability of a licensee to locate a vic- tim of a personal attack so as to provide him with trans— cript and an offer of reply time should, of course, relieve him of any censure by the FCC. But the fact that such situations may arise cannot, in my view, be a valid basis for a blanket across—the—board exemption such as the Com— mission has now issued. Likewise, as I have already indicated, the factor of premeditation or deliberation by the licensee prior to the broadcast of the attack cannot take precedence over the rights of the victim of that attack, or the rights of the public to hear both sides. The right to notice and reply time embodied in the personal attack principle was never intended as a punishment to the licensee from which he can be excused absent a showing of premeditation. Rather, it was recognized that this procedure is the only realistic and effective way in which to uphold individual rights and the public interest in personal attack situations. The Commission, in emphasizing this factor of deliberation as a rationale for exempting newscasts and on-the-spot cov— erage from the personal attack principle has apparently lost sight of the real reasons behind the personal attack principle. Finally, it appears inescapable to me that, in the area of personal attacks, the principle heretofore upheld 29A by the Commission is the only procedure compatible with essential fairness. The denial of a notice and reply opportunity to the victim of a personal attack cannot be reconciled with the express language of Section 315 (a) which specifically provides that the standard of fairness is to be applied to just those types of news programs which the FCC now has exempted from the standard. I am looking forward to your comments on the points raised above. With every good wish, Sincerely yours, John E. Moss, M.C. ‘ John D. Dingell, M.C. Richard L. Ottinger, M.C. Lionel Van Deerlin, M.C. Brock Adams, M.C. 295 FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 2055A October 2, 1967 In Reply Refer To: 3000 The Honorable John D. Dingell House of Representatives Washington, D. C. 20515 Dear Congressman Dingell: This is in reply to the letter of August 15, 1967, which you and four of your colleagues on the House Inter- state and Foreign Commerce Committee addressed to me questioning the Commission's action in exempting news- casts and on-the-spot news coverage from the recently adopted regulations on personal attacks. There is no question but that the fairness doctrine is applicable to the above programs. Indeed, we stressed its applicability both in our opinion (par. 2) and in our rule (see the note to subsection (iii)). The critical issue would thus appear to be whether in every situation the fairness doctrine requires that a person or group attacked be directly notified and given the opportunity to personally respond. While the Commis- sion believes that this is generally the case, it has also concluded that there are attack situations where applica— tion of the personal attack rule is inappropriate. Newscasts and on-the—spot coverage of bona fide news events are two areas where the Commission concluded that the broad requirements of the fairness doctrine, rather than the Specifics of the personal attack rule, are appro- priate. In reaching this conclusion, we took full account of the 1959 amendments to Section 315(a). Indeed, we believe that the same kind of policy consideration which led to that amendment is also applicable to the situation before us. As you know, the Commission's 1959 Lar Daly ruling, requiring equal opportunities whenever a candidate appeared on a newscast, was found by the Congress to 296 impose so rigid a requirement as to inhibit broadcast journalism in its coverage of election campaigns. In order to permit broadcast journalism to contribute more effectively to an informed electorate, the 1959 amend- ments were enacted. The personal attack rule, with its requirement of an offer of time to the person attacked for a personal response, works with a precision somewhat Similar to the equal opportunities provision. And, we concluded, it would have similar undesirable effects in the "hard" news area, which would be inconsistent with promotion of the important news function of broadcasting. This can best be pointed up by one, quite typical example. A newsworthy personal attack occurs, and the wire service (e.g., AP or UPI) sends its news story out (via news tickers) to almost all of the over 5,000 radio stations,who use such portion of it as they believe is appropriate in the context of the competing news stories. The wire services also cover the reply and send this addition to the story out as soon as it is available, with the licensee again exercising good faith, journal- istic judgment as to the portion to be presented. This manner of proceeding is designed to ensure that the American public hears as soon as possible what is adjudged in good faith as newsworthy on both sides of the issue. We do not believe that the personal attack pro— cedure, with its requirement of notification within a seven day period and an opportunity to respond person- ally at some time, can be appropriately engrafted upon the above hard news situation. It would mean that each time the wire services carry an attack (and such news— worthy attacks do occur with some frequency each year), thousands of licensees would have to dispatch letters to the person or group attacked, who in turn would have to respond to these thousands of offers, with thousands of proposed transcripts or tapes. Further, in the cir- cumstances, some substantial time period might lapse before the response material was received, which might also create problems in the context of this "hard" news area. The result of all this might well be a reluctance on the part of the licensee to present newsworthy stories concerning attacks and the response thereto--even though the wire services and other media were covering these stories. There are other similar examples which could be put forth in the network news field. We stress here that it is not any inconvenience to the licensee or network with which we are concerned, but rather the possible 297 adverse effect on the public interest in fair and rapid dissemination of hard news to the American public. In short, in this fast-breaking news field, both good journalism and, we think, fairness require that the network or licensee broadcast both sides of the story as soon as possible. The automatic application of the personal attack procedure might inhibit or impede net— works or licensees in the effective execution of their important news functions, whereas the application of the general doctrine does not do so, and still assures essen- tial fairness. While we believe that in this hard news area the manner and extent of presentation, both as to the attack and the response, are necessarily matters for the licen— see's good faith, reasonable journalistic judgment, as stated, the fairness doctrine is applicable to that judg— ment. This means that while the licensee has wide dis- cretion and latitude to make the above good faith judg- ments, there is a forum for corrective action where there is a disparity in treatment clearly going beyond any reasonable, good faith journalistic judgment. We should also like to stress that where a licensee does not act in good faith--where, to quote your letter, an "unscrup- ulous broadcaster" uses his newscast as a "sanctuary within which to launch with impunity assaults on the reputation of those who have incurred their displeasure", he is of course in violation of the fairness doctrine (see Report on Editorializing by Broadcast Licensees, l3 F.C.C. l2h6jil255 (1939)), but a far more serious ques- tion is presented as to his fitness to be a licensee under the Communications Act. See G. A. Richards, 5 Pike & Fischer, R.R. 1292. In the Senate Report accompanying the 1959 amend— ments, it was stated (S. Rept. No. 562, 86th Cong., lst Sess., p. 13): The Commission must be mindful at all times that broadcasting is an integral part of our society and the public has become dependent upon this media for information, views, and facts. Broad- cast journalism serves the public interest. It has made giant strides in the past 10 years through its distinctive capabilities to report directly and dramatically news of political campaigns to the people. This must be encouraged but care must be taken that the exemptions granted herein are not used as an umbrella of protection to heap abuse or favoritism on certain candidates. 298 We believe that this statement is equally applicable here. We think that just as in the case of the 1959 exemptions, which experience over the eight years has Shown to have accomplished their objective of promoting broadcast jour- nalism without abuses, so also this exemption will be consistent with that objective and will not result in abuse. We shall certainly take care, however, to be alert to any possible abuses, to review the situation period- ically, and to keep the Congress fully informed of any significant developments. We hope that the foregoing is helpful in explaining the reasons for the Commission's action in leaving the two areas in question to the operation of the fairness doc- trine generally rather than the personal attack rule. Our reasons for not exempting from the rule the news documen- tary, news interviews, or editorials or commentary (even if included in newscasts or on-the-spot coverage of bona fide news events), none of which involve the time and practical considerations discussed above in the case of fastbreaking, hard news, have been fully set out in para- graph 3 and note 1 of our opinion of August 2, 1967, and we have not therefore repeated them here. Sincerely yours, Rosel H. Hyde Chairman 299 CONGRESS OF THE UNITED STATES HOUSE OF REPRESENTATIVES WASHINGTON, D.C. 20554 November 2“, 1967 Rosel H. Hyde Chairman Federal Communications Commission Washington, D. C. 2055A Dear Mr. Chairman: Thank you for your letter of October 2, 1967, replying to our letter of August 15. In that letter we questioned both the legality and the propriety of the Commission's action in exempting newscasts and on-the- spot news coverage from the recently adopted regulations on personal attacks (FCC Memorandum and Orders of July 5 and August 2). After careful review of your comments, we regret to note that they do not satisfactorily explain the FCC action. Nor are your comments entirely respon- sive to the points raised in our letter. Like all regulatory agencies, Mr. Chairman, your Commission must operate within both the letter and the spirit of the law; we do not believe it has done so in this case. The elimination of the victim's right to reply to a given personal attack, based on the completely fortuitous circumstance that the attack is carried over a newscast, is an arbitrary action by the Commission that is incompatible with the public interest, and does vio- lence to private rights. Unfortunately, the confusion which has now been created with respect to personal attack situations is typical of the fairness doctrine generally. In his dis- senting statement to the FCC order of July 5, 1967, Com- missioner Bartley stated that codification of the per— sonal attack procedures by rule was premature since "the Fairness Doctrine is in the process of being perfected on a case by case basis." We would point out to you that the perfecting process seems to be taking a long time. Indeed, the present ad hgg approach of the Commission is a source of steadily rising confusion on the part of broadcasters and the public. There are no signs of any satisfactory rationale emerging to delineate with suit— able clarity the duties of the broadcaster to be "fair." 300 For the present, we are dealing with the personal attack situation, which, like the statutory provision for equal time to competing political candidates, involves more than the fairness doctrine. But the uncertainty surrounding the scope and operation of the fairness doc- trine is of considerable concern to us, and is undergoing serious study in our Committee. This matter should be of equal concern to your agency. Returning to your Orders of July 5 and August 2, and in the hope of reaching the real issues which require dis- cussion here, we again direct your attention to the fol— lowing. . BACKGROUND The Commission, by Order dated July 5, 1967, set up rules to cover the duties of licensees in instances of personal attacks or political editorial endorsements. With respect to personal attacks, the rule stated that no later than one week after the attack, the licensee must supply to the person or group attacked: (l) notice of the attack, (2) a summary, script, or tape, of the attack, and (3) an offer of reply time. Commissioner Bartley dissented from this action as being premature. Commis- sioner Loevinger concurred, stating that the promulgation of a rule "specifically providing for the right of reply" is correct in principle. He also indicated that the rule should be more clearly delineated than it was in the Com- mission order. Commissioner Wadsworth was absent. On August 2, the Commission issued a new order, described as a "clarification," which exempted newscasts and on-the-spot news coverage from the above require- ments. Commissioners Bartley, Loevinger and Wadsworth were absent. Commissioner Cox is listed as concurring in the result. Our previous letter informed you of our opinion that this "clarification" of the Commission effectively repudiated the FCC'S previous policy on personal attacks, and contravened the express language of Section 315 of the Communications Act. In View of the importance of the August 2 Order, it is indeed unfortunate that it did not receive the consideration of all of the Commissioners. The August 2 "clarification" seems clearly inconsistent with Commissioner Loevinger's concurring opinion in the initial Commission Order of July 5. In that statement, Commissioner Loevinger upheld the establishment of an FCC rule to provide for the right to reply. The August 2 Order, however, makes clear that the Official policy of the FCC is now that the individual has no such right. This will be discussed further below. 301 EFFECT OF NEW FCC RULE The effect of the new rule is to draw a distinction between newscasts and on—the—spot coverage on the one hand, and news interviews and documentaries on the other. If we understand the new rule correctly, the victim of a personal attack is entitled to notice, a summary of the attack, and reply time, if the attack occurs during a news interview or documentary, or any other program for that matter. But he is not entitled to these three things, or any of them, if he is attacked over a newscast or during on-the-Spot coverage of a news event. These latter types of news programs are referred to by the FCC as "hard" news. APPLICABILITY OF SECTION 315 As stated in our letter of August 15, Section 315 of the Communications Act applies with equal force to all news programs, specifically including newscasts and on-the- spot coverage. We also pointed out that, whatever else the fairness doctrine may embrace, it applies to these news programs. In your reply you readily concede this. In doing so, however, you fail to point to any statutory authority for the distinction which the Commission now proposed to draw between personal attacks occurring during "hard" news programs, and those occurring during what, we sup- pose, must now be referred to as "non—hard", or "soft", news programs (i.e., news interviews or documentaries). There is no such distinction in the law; Section 315 does not permit of one standard of fairness for "hard" news and another for "soft" news. Whatever value these con- cepts may have for the Commission, it is not at liberty to write them into the Communications Act. VICTIM'S RIGHT TO REPLY Prior to the Commission Order of August 2, it has been our understanding that the victim of a personal attack, as the FCC defines that term, had a right to reply. Indeed, this right was recently upheld by a court of law, at the instancy of your Commission (Red Lion Broadcasting Co. v. FCC F.2d (D.C. cir. 1967 . In our previous letter, therefore, we directed your attention to the incompatibility of the August 2 exemption for "hard" news with the victim's right to reply. Clearly, if the victim has such a right, the FCC cannot waive it for him. Your reply, while silent on this point, by negative infer- ence suggests that the victim has no sugh right, and that his reply is only a matter of administrative largesse on 302 the part of the Commission. As such, it may be granted or denied as the FCC sees fit, and may someday be elimi- nated altogether by further Commission rulemaking. We cannot accept this View. It seems appropriate to observe here that Commis- sioner Loevinger, who has been understood by many as advocating a philosophy of minimal governmental control over program content, seems to have upheld both the exist- ence of the right, and the duty of your agency to protect it: "It is submitted that law, logic and practically all support the principle that, subject to the strictly limited exceptions of 'illegal utterances' and the right to reply, government regulation of broadcasting should be completely content—neutral." ("The Issues in Program Regulation" by Lee Loevinger, Federal Communications Bar Journal, Vol. XX, No. l (1966), at page 15; emphasis supplied). The purpose in quoting the above passage is not to endorse it in its entirety, but rather to indicate that the protection of the right to reply is considered a fundamental element of broadcast regulation even in the view of an authority who adopts a philosophy of limited regulation. If the Commission has determined to adopt a more laissez—faire philosophy of regulation, this is not the place to begin. In order to clarify your agency's position, would you please inform us whether the Commission concedes the existence of a right to reply? If the answer is in the affirmative, how is the Commission order of August 2 compatible with such a right? If the Commission denies the existence of this right, how can this denial be reconciled with the result of the Red Lion case, above? RIGHT OF THE PUBLIC TO HEAR BOTH SIDES ,The broadcast medium has the unquestioned ability to destroy reputations. In the context of public issues, this can also be a technique for discrediting the views and associates of the victim. The public interest in hearing both sides in situations such as this is clear. When such an attack takes place, the victim hinself has become the subject matter; his reputation is the issue. If an effective response is to be made, he must make it. He may, it is true, designate a spokesman to reply for him, or waive his right to reply altogether, and rely on what the licensee may have presented to balance the picture. Moreover, his reply, however delivered, may be 303 inept or otherwise deficient, this appears unavoidable. In some cases there may really be nothing that can be said in the defense of the person or group attacked. But while the FCC cannot assure that an effective response will be made, it should not preclude such a response by rules such as those under discussion here. The FCC has taken the inconsistent position that reply by the victim is necessary to uphold the public interest when a personal attack is carried over a news interview, news documentary, or other program, but that it is not needed when the attack is carried over a news- cast Or coverage of on-the—spot news. Our previous let- ter on this subject quoted from a number of FCC statements which clearly stated that the licensee is responsible for the content of his programs regardless of their source or his actual involvement in the broadcast, and that a licen- see must give notice and make reply time available to victims of personal attacks. This previous position of your Commission was clear and unequivocal; no exemptions were asserted for "hard" news (see paragraph 23 of Fair— ness Primer, 196A). Your letter made no attempt to recon— cile these inconsistent positions. LICENSEE CONVENIENCE Your letter confirms our original contention that it is the convenience, actual or assumed, of the licensee which is being served by the Commission's action. In attempting to explain why the requirements of notice and reply time are being eliminated in some situations (i.e., "hard news"), your letter indicates that this is because of the large number of stations which may be involved: "It (i.e., notice requirement) would mean that each time the wire services carry an attack (and such newsworthy attacks do occur with some fre- quency each year), thousands of licensees would have to dispatch letters to the person or group attacked . . ." Obviously, neither the number of times an attack is repeated, nor the universality of the coverage given it, can serve as a basis on which to deny the victim his only effective avenue of vindication. It is a curious argument which excuses licensees from balancing a personal attack with the victim's reply by pointing out that a great many of the licensee's colleagues have also carried that same attack. It should also be pointed out that each individual licensee must give notice only once for each attack; he 30A is not prejudiced by the fact that other licensees have incurred the same obligation. If anyone is inconvenienced it is the victim since he is the one who must ascertain the damage done to his reputation, and attempt to repair it. ABSENCE OF PREMEDITATION As we also pointed out in our previous letter, the Commission order of August 2 seems to lose sight of the reasons behind the personal attack principle. In the FCC Memorandum which accompanied that order, your Commission adverted to the premeditation, or lack thereof, of the licensee in broadcasting the personal attack. It was suggested that, in those instances where the victim is still to be accorded his right to reply, it is based upon the fact that the licensee has "chosen" to present a per- sonal attack (see Paragraph 3 of Memorandum). As we pointed out previously, however, and your letter does not deny, the deliberation of the licensee, or lack thereof, cannot be used as the determining factor in affording reply time to the victim of a personal attack. Such an approach incorrectly presupposes that the victim's reply is intended as a form of penalty imposed upon a licensee who has shown bad faith. It is also incompatible with the FCC'S previously held position, mentioned above, that the licensee is fully responsible for all matter, including attacks, broadcast over his station, regardless of his actual involvement (see Fairness Primer, 196A, paragraph 23). SEVEN—DAY NOTICE REQUIREMENT Your letter, and the FCC Memorandum Opinion and Order of August 2, 1967, both stress the alleged unwieldiness of the seven-day notice requirement when applied to fast— breaking or "hard" news situations. Assuming arguendo that there are sufficient difficulties in such cases so as to make the seven-day notice impractical, the remedy, in our view, is to grant an appropriately longer period of time for the notification. The answer is not to throw out the baby with the bathwater by eliminating entirely the victim's right to reply. As to the confusion which you foresee arising from thousands of offers of reply time converging on the vic- tim, transmitting video tape and summaries, etc., surely the Commission can devise something to help in this situa- tion without silencing the victim. One possible procedure which comes readily to mind is to require that the licen- see carrying the personal attack notify the Commission directly. This notice, which need not be elaborate, would 305 identify the victim, and note the date and general sub- stance of the attack. The victim need not be deluged with identical scripts, video tapes, and the like. He need only be notified by the FCC that one or more licensees have reported the broadcast of an attack. If he chooses, the victim can then consult the FCC files on the matter, note the stations carrying the attack, and make orderly arrangements with them for such reply as he may wish to make. Such a procedure should not add materially to the Commission's workload. On the contrary, it would elemi- nate completely any future disputes between victim and licensee as to whether prOper notice was given. As you recall, your Commission was recently forced to devote much time and effort in attempting to ascertain the real fact situation in such a dispute (Station KTYM, 9RR 2d 271 (1967)). Finally, this procedure would serve to automatically call to the Commission's attention those licensees who regularly lend their facilities to hate-mongers of various stripes whose only recourse to support their views seems to be the techniques of smear and character assassination. The above, we repeat, is only one possible method of dealing with the notification difficulties predicated in your letter. Nevertheless, it seems clearly superior to the Draconian solution ordered by your Commission on August 2. TIMELINESS OF RESPONSE This brings us to the subject of the "timeliness" of the reply to a personal attack. Both the Commission's Memorandum of August 2, and your letter of October 2, call attention to the passing panorama of news events which is brought to the attention of the broadcast audience. The inference is invited, especially in the Commission's Memorandum of August 2, that by the time the victim has had a chance to marshall his facts and compose his reply, the parade may have passed him by. His story may have become stale, and no longer deserve the title of "hard" news. Under these circumstances, it seems to be sug- gested that the licensee may wish to go on to other matters and not be bothered with the victim's response. For example, your letter calls our attention to the fact that "some substantial time period might lapse before the response material was received, which might also create problems in the context of this "'hard' news area." Simi- larly, the August 2 Memorandum, in paragraph 2, states: 306 "To import the concept of notification within a week period, with a presention of the person attacked on some later newscast when other news might normally be broadcast, is impractical and might impede the effective execution of the important news functions of licensees or net- works." (emphasis added) Mr. Chairman, does a person's reputation go out of date? Cannot the American public be relied upon to recall recent assults on reputation, and weigh them, and perhaps their authors as well, against the victim's response? We think that the answers to these questions are self-evident. While some reasonable time limit for the victim's reply may be appropriate, it is clearly unjust to foreclose his reply entirely on the theory that it may not be prepared in time to satisfy the licensee. CONCLUSIONS The damage which the new FCC rule may accomplish is underlined by your statement that "newsworthy attacks do occur with some frequency each year." That statement, parenthetically, does much to discount the following state— ment from the FCC Memorandum of August 2: " . . . the number of personal attacks occuring in on-the-spot cov- erage of bona fide news events is unlikely to be large in number . . ." We are mindful that when the FCC talks of personal attack it refers to an assult made "upon the honesty, character, integrity, or like personal qualities of an identified person or group" in the context of a contro- versial issue of public importance. In view of the damage which such an attack may inflict upon the victim, and the public in the final analysis, we cannot agree with any Commission rule which deprives the victim of his right to reply. Serious personal attacks Should not be considered as merely routine events of the news day. Nor should we con- sider the personal attack as an essential part of the stock-in-trade of news-gatherers, and therefore seek to preserve its ready marketability at the expense of private rights and the public interest. The public interest will be better served by providing the disseminators of news with a motive for being discriminating when they are asked to transmit such material to the public. Fortunately, the relative number of broadcasters who need such motivation is small. Unfortunately, however, the damage that can be done by such broadcasters is very great. Many real examples of such damage could be set beside the fictional example which you presented in your letter. 307 Your letter seeks to draw a parallel between the action of the Congress in enacting the 1959 Amendments to the Communications Act, and the present action of the Commission which abolishes the right of reply for certain personal attacks. Unfortunately for this asserted paral- lel, it was just those amendments which imposed the standard of fairness on the news programs under discus— sion here. Why and on what statutory authority, has the FCC decided that "fairness" in the case of some personal attacks requires that the victim be given a forum in which to respond, while in other situations——situations where the substance of the attack, the damage to the victim, the effect on the public interest, and even the number of stations carrying the attack, may be identical--the victim is now said to have no such forum? We are still awaiting satisfactory answers to the above questions. With best personal regards. Sincerely, John Dingell House of Representatives Interstate and Foreign Commerce Committee 308 FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 2055A December 6, 1967 The Honorable John D. Dingell House of Representatives Washington, D. C. 20515 Dear Congressman Dingell: This is in reply to your letter of November 24, 1967, with further reference to the Commission's action of August 2, 1967, exempting newscasts and on-the-spot news coverage from recently adopted regulations on personal attack. First, as you know, the Communications Act "is not designed primarily as a new code for the adjustment of conflicting private rights through adjudication" (F.C.C. v. Pottsville Bctg. Co., 309 U.S. 13A, 138). Therefore, the paramount consideration here, as in other Situations, is "the public interest in the larger and more effective use of radio" (Section 303(g)); NBC v. U.S., 319 U.S. 190), and that in turn means the public's right to be informed fairly concerning controversial issues of public impor- tance, including personal attacks broadcast during the coverage of such issues. As to the basic question raised at the conclusion of your letter, we appreciate your concern on this impor— tant matter. You may be interested to know that our action has also raised concern on the other side, as evidenced by the petitions for review filed by the Radio Television News Directors Association, CBS, and others. See Radio Television News Directors Association, et. al. v. United States of America and Federal Communications Commission, Case Nos. 16,369, 16,398, l6,A9l, C.A. 7. (For your further information, I have enclosed copies of briefs just filed by the petitioners, and will send you copies of the Commission's brief, when filed). We can only state that we believe that we have properly balanced the considerations in this area and that for the reasons set forth in our opinion and amplified in our letter of October 2, l967--and particularly so as to not "impede the effective execution of the important news functions of licensees or networks" (par. 2, FCC 67-923)--our action, pursuant to Sections A(i), A(j), 307(a), 303(r), and 315(a) and (c) of the Communications Act, holding that the fairness doctrine generally rather than the personal 309 attack rule is applicable to newscasts and on-the-spot coverage of bona fide news events, best serves the public interest. We shall of course keep you and the interested Com- mittees informed of developments in this area. Sincerely yours, Rosel H. Hyde Chairman Enclosure APPENDIX D EXCERPT FROM BRIEF FOR PETITIONER COLUMBIA BROADCASTING SYSTEM, INCo, (PAGES 23-32 OF BRIEF) 310 In The UNITED STATES COURT OF APPEALS For The Seventh Circuit NO. 16,498 Columbia Broadcasting System, Inc., Petitioner, Petition for review of an order Y§° of the Federal United States of America, and Communications Federal Communcations Commission, Commission Respondents. BRIEF FOR PETITIONER COLUMBIA BROADCASTING SYSTEM, INC. Unlike a newspaper, which has few practical limita- tions on the number of pages and columns that it can pub— lish, a broadcaster is Sharply limited by the finite nature of broadcast time. Any program material presented during the broadcast day forecloses the broadcast of other program material. Under the Commission's new rules, the number and length of the replies that must legally be invited if "personal attacks" are broadcast, and the many difficult practical problems involved in arranging and clearing the necessary time, are so burdensome that broadcasters will as a practical matter find it necessary to regard the reply requirement like the threat of damages for libel-- a risk to be avoided even at the cost of abstaining from publications that engender the oppressive sanction. The burden may be illustrated by the way it bears on three of the most highly regarded CBS programs subject to the ruleS—-Eric Sevareid's commentaries in the CBS Evening News, the news interview program Face The Nation, and the CBS news documentary programs such as CBS Reports and CBS News Specials. In intrinsic quality and in the contribution they make to the level of public information, 311 312 these are among the most important programs broadcast by CBS. Mr. Sevareid's daily commentaries have achieved more than transient recognition. Collections of them have been published in book form and have received wide critical acclaim. The Face The Nation interviews, usually con- ducted by Martin Agronsky and a guest journalist, not only illuminate the news; they frequently make news as well. Fifty-eight of 85 weekly Face The Nation programs broad— cast from April 1966 to November 1967 resulted in news stories that appeared in the New York Times and/or the Washington Post the following day. Nineteen of these programs resulted in front-page stories in the Times or the Post or both. CBS Reports is the lineal descendent of Edward R. Murrow's See It Now series. CBS has also made journalistic history with many of its documentaries, a recent example being the four hour series on the Warren Commission Report. In the year ending October 12, 1967, CBS broadcast 13A of Eric Sevareid's commentaries. All were carried by the CBS Television Network; many were also carried by the CBS Radio Network. We have reprinted as part of the Exhi— bit the full text of 31 such commentaries containing statements that are at least arguably covered by the Com- mission's new rules. The 31 programs contain more than 50 such statements concerning identified individuals or groups. Similarly, in a high proportion of Face The Nation programs, Mr. Agronsky and his journalistic colleagues ask questions that either contain a statement defined as a personal attack under the new Commission rules, or may result in a reply containing such a statement. From March 1966 to October 1967, some 85 weekly Face The Nation programs were broadcast over the CBS television and radio networks. Thirty—four of these programs contained 75 or more statements collected in the Exhibit that at least arguably fall within the Commission's definition of per- sonal attack. Statements within the Commission's rules also occur with frequency in CBS documentary programs. We have reprinted in the Exhibit only a few typical examples of the many statements made on such programs that fall under the sweep of the Commission's broad personal attack defi- nition. From the titles of these programs alone ("Black Power—White Backlash," "Murder and the Right to Bear Arms," "The New Left," "The Warren Report," "Robert F. Kennedy," "Civil Rights: The View From the South"), it is apparent that programs on these subjects must necessarily contain numerous statements now defined as personal attacks. As the Commission itself has said broadcast journal— ists faced with an inflexible right of reply requirement 313 have essentially two "choices." First, they can delete particular items of "offending" program material. If broadcasters are induced to make this "choice", the rules are clearly unconstitutional as an indirect form of gov- ernment censorship. Second, the licensee can continue to broadcast "personal attacks" and seek to comply with the Commission's reply requirements. We believe that in many if not most cases the burdens imposed in trying to comply will require broadcast journalists to choose the first alternative. Given the appetite of persons involved in public controversy for personal radio and television exposure, a high proportion of those invited to reply may be expected to accept. But whether or not all invitations are accepted the problems are substantial. The Eric Sevareid commen- taries are an example. 0n the basis of the Exhibit on over 50 occasions per year--almost once for each two Sevareid programs broadcast--the CBS owned and operated stations and the MOO-odd CBS television and radio affiliates would be obliged under the new rules to find and notify the indi- vidual or group mentioned, furnish a tape, script or sum— mary of the attack, and, if the offer of reply time is accepted, displace some other scheduled program or program material to provide the necessary time. The average Sevareid commentary occupies approxi- mately two minutes of broadcast time. Any meaningful opportunity to reply would have to be considerably more than one or two minutes in length. Thus, by broadcasting 134 Sevareid commentaries in the course of a year, occupy— ing 268 broadcast minutes, CBS would have been required under the new rules to issue more than 50 invitations to identified individuals or groups, offering each of them time to reply. The amount of time that would have to be offered would be substantially greater than the time required to broadcast the 31 "offending" commentaries. If an offending statement is made by Mr. Sevareid or in a CBS news documentary, or by Mr. Agronsky in asking a question on Face The Nation or by Mr. Agronsky's guest in reply, a burdensome sequence of events will be set in motion. Mr. Sevareid, Mr. Agronsky, and the CBS News Division will have to decide whether the statement is sub- ject to the rules and may well have to consult with the CBS Law Department. If the decision is to offer time, the person or group attacked must be identified, located, given a tape, script or summary of the attack, and offered time to reply. The offer is likely to involve protracted negotiations as to the amount of time to be afforded, the format of the broadcast, limitations on subject matter, and a variety of other questions. Either CBS or the per- son or group affected may refer one or more of these ques- tions to the Commission, and extended pleadings, conferences, and delays may result. 314 The questions that must be resolved may be extra— ordinarily difficult. Mr. Sevareid has said that Governor Romney's views on Vietnam are obscure and (with some sym— pathy) that the Governor's "brainwashing" remark created a "one—man, do-it-yourself credibility gap." This remark could be said to reflect on the Governor's "honesty, char- acter, integrity or like personal qualities." If CBS must afford him time to reply, Governor Romney would undoubtedly feel he needed at least two minutes (the length of the original commentary), and probably much more, to state his views on Vietnam and on his "brainwashing" charge. Where would the reply be carried? If it is inserted in a sub- sequent CBS Evening News, it will necessarily displace either Mr. Sevareid's entire commentary on some more recent newsworthy subject, or some "hard news" portion of the program. If it is carried outside of CBS Evening News, CBS must displace some other program and must arrange separate additional clearances with some A00 television and radio stations, each of which will have differing scheduling problems of its own. The duties imposed under the rules fall on each of these affiliated stations. At present a number of CBS public affairs programs have a lower rate of clearance than other CBS series. If affiliates' program schedules were disrupted because they were compelled to carry reply programs as well, it seems likely that even fewer sta- tions would carry CBS public affairs programs. Finally, the rules will adversely affect the quality of public affairs programs such as the Sevareid commen- taries, Face The Nation and CBS Reports and make partici- pation in them unattractive to the best broadcast journal— ists. The men who write and edit these programs are men with high endowments of talent, intelligence and wit. But these attributes alone do not fully explain the great value of the programs. The quintessential added ingred— ient is the journalistic freedom these men possess. The manner in which they and other journalists exercise that freedom is what gains or loses them the public trust. And the public trust these particular programs enjoy is based on the public confidence that the men who prepare them will probe for the truth and report the whole truth as they see it. An attack upon a person's honesty, integrity or like personal qualities should not be assumed to be an unneces— sary injection of unwarranted personal considerations. The personal qualities of people, and particularly their hon- esty and integrity, are an important element in news report— ing. It is not an accident that simple honesty in a poli- tician has always been regarded as his most sought after quality in public life. A reputation for fair dealing and integrity is supposed to be the hallmark of American business 315 life. Thus, the responsible reporting and analysis by a journalist of a "personal attack" upon a person whose activities are in the public eye is not to be thought of as aberrational but rather as being entirely in the public interest. The publication of such attacks--when the pub- lishing medium believes them to be well founded--is always important. It is of critical importance when, as had happened on occasion during the history of this nation, publication occurs in an atmosphere of official suppres- sion or private fear that has inhibited some journalistic media. At present Mr. Sevareid is free to interpret the news as he sees it, subject only to the high standards of journalistic objectivity and integrity that he and the CBS News Division maintain. Since he adheres to these standards and his commentaries are limited to matters of public importance, he presently need have no serious con- cern that he may be subjecting himself or CBS to a damage judgment or any other form of punishment or sanction. If the Commission's new rules are upheld, however, Mr. Sevareid must then have a very serious concern about what he says in the future. When he selects his subject and chooses his words, he will have to bear in mind the Commission's admonition that "where he chooses to make such presentations [statements defined as personal attacks]" the stations carrying his commentary "must take appropriate notification steps and make an offer for reasonable opportunity for response. . . ." (July 5, 1967, Memorandum Opinion and Order, 5, R. 3A8). Whether or not CBS or any of the hundreds of sta- tions concerned express themselves to him on the matter, Mr. Sevareid is not likely to subject his network and the stations carrying his commentary to the burdens described above some 50 times a year. The inhibiting effect on Face the Nation would be equally damaging to the integrity and purpose of that program. The central idea of Face the Nation and simi— lar news interview programs is to question an important public figure about the important public issues in which he is currently involved. The essence of good inter- viewing is to ask provocative questions, questions that relate not merely to abstract issues of public policy, but also to the "honesty, character, integrity or like personal qualities" of individuals or groups which figure in such public issues. AS in the case of the Sevareid commentaries, the new rules would thus have an inhib- iting effect not only on CBS and its affiliated stations, but also on Mr. Agronsky and his colleagues. Their dil— emma would be even crueler than Mr. Sevareid's. They cannot judge whether the rules will be brought into play solely by what they themselves may say; before saying it, they must also take into account the many possible answers their questions may produce. 316 Equally serious problems would arise in writing, editing and producing CBS Reports and the Similar news documentaries broadcast as CBS News Specials. The writers and producers of CBS Reports and CBS News Spe- cials would have grave difficulties in maintaining their journalistic standards under the Commission's new rules—- difficulties different in nature but equally as burden— some as those that would be faced by Mr. Sevareid and the journalists who conduct interviews on Face the Nation. Each CBS Reports and CBS News Special Program consists of a carefully prepared distillation of what its authors believe to be the most significant aspects of the subject under discussion. In accordance with their own standards and those of the CBS News Division, they make every effort to present all sides of the controversial issue being examined. In so doing, they necessarily must be free to select from among several alternative methods and spokes— men to present each side. It would be extremely diffi- cult to include within each such program a reply to every statement on the same program falling within the defini- tion of "personal attack," particularly when the rules give the reply right to the individual or group attacked. Even greater difficulties in scheduling, continuity and clearance would be posed if the editors attempted to carry the reply in some later program. With these sub- stantial prospective burdens before them, and with numer- ous other items of filmed and recorded material to select from in editing the final product, the editors will be induced by the new rules to discard particular items of material which, no matter how fairly and objectively treated in the program itself, might create a duty to broadcast a later reply. There is strong reason to doubt that journalists with the qualities of Mr. Sevareid, Mr. Agronsky and the men who prepare CBS Reports will be able to "choose" between the alternatives posed by the rules. They will find that to continue broadcasting "personal attacks" is impracticable and that to "steer far wider of the unlawful zone" is unacceptable. Thus, under the new rules, news commentary, news interviews and news documentary programs as we now know them could not continue, and "only the wholly inoffensive, the bland, could gain access to the radio microphone or TV camera." Pacifica Foundation, 36 F.C.C. 1A7, 1A9 (196A). APPENDIX E A FAIRNESS DOCTRINE TIME—LINE 317 SmuuL all! IlIv c1 .. ‘ ~-»-»-—.4-1, - 1 H {L14 T. fLrL 1::... 1 1 6%ELEEL.LLLLL%LLLLLLL£LL1 L LLLL: . .... 1.1 1. , ELL.E11mfiwm1emam1fiw1 .11“... ..LfiLL LLLfiLHLLL..L.m.L. LLLLLLLLLLL..&HE@1LAL1 ,. L. H. 1. .L . . .1 LL 1. 1 .. .l n . ..L . L 1 1 1.:1P¢¢.}tLb3;1:;L.fi LELLnIHCB Lhzxikfilifgrz.flLLT.HL H1L1L1A .1 . ;.E.;riuA94HHV1 .1 .;11.;L.LL? um coarwen L La Hmc.mnfl ,NH‘L H1... Liv-191 flat: Ioj&LtA-t-.L..L .LrL LL.HLLL LLL._LLLLE1LLLLL.LLH L. ”1L.meLmv mew.3maLmewcflHfiMIWL-11t(..JLIPLM accumswa .wuwomLA «mummmwcmmmsm L1. ...1. LL... LL... .L.o,o.m-...-mumm_fi L .LL LLL. .LLLL. E wmm..1.o._ .L .. LLL... _ 1;. .. .1. . 12.1..rL. H.,. 2:27.... . :1,;.1. ..,... .. ... ..1 1.1.119: .1.-1.1.1.3111... .1 Lrggwé ”Haerm LWi» -1111.1 . HL.LLLrHL:L:L:L::LLLg :1;r.WLme%.m:OHmmoAc=EEOUL xL:.:M C5 Q . €Q33=>-LC.O. C . IIJLM.L?.L3 .-A 1;:LLiL G1LJL.. ML L3 L 1.1 m. 35.01% 9.: EL LL... HH...9.819151%.LLL1LL .LLLLLLLLLLL: ., LL L 1. .LLNHmH LmoL up... c m ... L.... ..LLL, c 1 1 ...11.:. .1.,L. L1LL11M...H. L1. H Hudnmxrmvfl L+L OMHQ.HLN- LL .L HLN1-HH.MHH_O..MHHPQHL1 - L..L LL ... LLLLL. ..L .L L. .LL L. UHHQHMFH - 1 H... -.W..h\.H.m.H3L 1.. 1 L-.._31 .LL.L.LL.L-LA-1..L-L-..+.11.fitL. L“... L; L :L H.. 1 Q1 .. . , LLL.;L # L .1.. . ; _. L., L. :. ;. . 1. 1:.%.flHOQ%m LL+TtLW:r XLR.LLLT:_ :wam:LW:.L1L.;L1;1:.it%iixz .... .Hv‘. “L. "ML ..<-. “1“ 1 .LL L_. HHL ijm.._. .1.- .H1L .Lur. .. 1.1.l , \1 .. ,r L .. 1. 0.”... 1. mafia AAHA_EE.EL:..1 1E.11.1.m1 ._;:.w..eswtmm-mwxmqs-mmuoukymw ...........1..L. 1L :.... LLLL H...-.LIT..-LI_..L..LLL. 11L..L..LL, UL._-. LILLLTLLLL ..L ,H.u.1w .1 .. L .....H.. L... 1 ,.1 .L LTLHZ “1 .4th L-..r.-...T.1L._..L,..L._L..., e1 fix. .LvL L. . 1 .. .1 _ . L.::LxLHLHLL1211;;m.w1r11.--_41 LL Li... 1. 1, ..L .712 .5 _ Jaw- L. a... . ..:....T-fis 1.x. was... m 1. L2H1111.1L...1 11mm1.1.+.m111p.;1 cdeAmnugmewE:_L.;g aluw _.i.mm3uhc. ..L.._L;Lw-m.1111. 1. . ,.;;mL 1;:x.u31212m.L1xLuLagaHLEU L.H,H.:H::L . ,, . 1 L.-L..L LL.L. L ..... P T. F; ... ..L LLJ .._.. ,W .1; . ‘. y,a _+V111...,,. ;. 11E .2.:LLELEL.L.;H LAwNm - ,va j .1 1. .21. TT. :0. merflm. ...L. ..1. LL..n.-1W...1 H. H..N..mJH.% Tm , _ _ :flL-fi-h10mLLL1H1wLLLLLHr.....Cm.H0MCOU Onnmummwd 7A.. mezoJmHmzLfitflLgmi L Ascorumz 9909.1a ;,Jfl1::H ;:i..:1:1: x:._L. . .1 .L .LL. .L. "L” .L.._L. LHLLLHML 3.... - L L . ..... . .1. 1.Hrmmdm.1mw1.a.1:.11111111L.1... . 1. . :_ r . . _1_ A, .3. a . 1 :. 1 .11. 1.., 1.1.1 1.1-.1..,-.11....L11..11.1..1.1. a... 9...... 1 ._ - m. 1..; L; :E :1 ,..;-..r::rrrt-r-4a LL: EvLLL : xhchmOOE Own 2; Hr; . mw-ln fi.nz.tiL”gthwatmv1WW.1.ULAWW,;_L