PAGENO="0001" DøC~ FAIRNESS DOCTRINE ~O~IT19 HEARINGS BEFORE THE SPECIAL SUBCOMMITTEE ON INVESTIL&TIONS OP THE COMMITTEE ON INTERSTATE AND FOREIGN COMMERCE HOUSE OF REPRESENTATIVES NINETIETH CONGRESS SECOND SESSION PANEL DISCUSSION ON THE FAIRNESS DOCTRINE AND RELATED SUBJECT$ ~AR~II ~, 4~D 6, 196~ Serial No. 90-33 Printed for the use of the Conunittee on Inter$tate and Foreign Commerce ) ~j 4 118. GOVERNMENT PRINTING OFFICE 92-602 WASHINGTON : 1968 PAGENO="0002" SAMUEL N. FRIEDEL, Maryland TORBERT H. MACDONALD, Massachusetts JOHN JARMAN, Oklahoma JOHN E, MOSS, California JOHN D. DINGELL, Michigan PAUL G, ROGERS, Florida HORACE H. KORNEGAY, North Carolina LIONEL VAN DEERLIN, California J. J. PICKLE, Texas FRED B. ROONEY, Pennsylvania JOHN hi. MURPHY, New York DAVID B. SATTERFIELD III, Virginia DANIEL J. ~IONAN, Illinois BROCK ADAMS, Washington RICHARD L. OTTINGER, New York RAY BLANTON, Tennessee W. S. (BILL) STUCKEY, Ja., Georgia PETER N. KYROS, Maine A~rDREw STEvENsoN JAMES M. MENOER, Jr. JOHN E. MOSS, California JOHN D. DINGELL, Michigan PAUL G. ROGERS, Florida LIONEL VAN DEERLIN, California J. J. PICKLE, Texas BROCK ADAMS, Washington WILLIAM L. SPRINGER, Illinois SAMUEL L. DEVINE, Ohio ANCHER NELSEN, Minnesota HASTINGS KEITH, Massachusetts GLFk~N CUNNINGHAM, Nebraska JAMES T. BROYHILL, North Carolina JAMES HARVEY, Michigan ALBERT ~V. WATSON, South Carolina TIM LEE CARTER, Kentucky G. ROBERT WATKINS, Pennsylvania DONALD G. EROTZMAN, Colorado CLARENCE J. BROWN, Ja., Ohio DAN KUYKE~DALL, Tennessee JOE SKUBITZ, Kansas WILLIAM J. DIxoN ROBEkE F. Guvnain HASTINGS KEITH, Massachusetts GLENN CUNNINGHAM, Nebraska JAMES HARVEY, Michigan DONALD G. BROTZMAN, Colorado CLARENCE J. BROWN, Ja., Ohio flonan~r W. LISEMAN, Chief dounsei JAMES H. CONNOII, 4S~pecial Assistant WILLIAM T. DItIJIIAN, special Consult ant THOMAS D. HAWr, Legislative Assistant DANIEL J. MANELLI, Attorney ZELIG ROBINSON, Attorney S. ARNOLD SMrnI, Attorney TEaav TURNER; kpecial Assistant JAMES P. E:ELL; Chief Investigator WILLIAM D. KANE, Investigator 1 Mr. Springer is an ex officio member ~f the subcommittee with voting privileges. COMMITTEE ON INTERSThTE AND 1~OREIGN COMMERCE HARLEY 0. STAGGERS, West Virginia, Chairman W. Fl. WILLIAMSON~ Clerk KENNETH J. PAINTER, Assistant Clerk Professional S~taff SPECIAL SUBCOMMITTEE ON INVESTIGATIONS1 HARLEY O sTA'Gc41~lRs; West Virginia, Chairman (II) PAGENO="0003" CONTENTS Hearings held on~ Page March 5 1968 March 6, 1968 101 Statement of- Alexander, Herbert E., director, Citizens Research Foundation, comment on paper No. 2 27 Barrow, Roscoe L., Wald professor of law, College of Law, University of Cincinnati - 14 Bell, Howard H., president, American Advertising Federation, com- ment on paper No. 8 169 Crouse, Jay, president, Radio TV News Directors Association present~ ing paper No. 7-The fairness doctrine: Its use and implications - - - 145 Frank, Reuven, executive vice president, NBC News,presentjng paper No. 4-The effect of the fairness doctrine on broadcast news Operations Furber, Lincoln M., public affairs director, WETA-TV channel 26, Washington, D.C., comment on paper No. 5 106 Harley, William G., president, National Association ç,f Educationaj Broadcasters, Presenting paper No. S-The effect of section 315 and the fairness doctrine on educational broadcasting 102 Hyde, Rosel H., Chairman, Federal Communications Commission - 64 Jaffe, Louis L., Byrne professor of law, Harvard University Presenting paper No. 8-The fairness doctrine, equal time, reply to personal attacks, and the local service obligation; implications of technological change 162 Lower, Elmer W., president ABC News, Presenting paper No. 1-Tbe role and influence of radio and television in the formation of public Opinion: Comparison with newspapers, magazines, and specialized journai~ of opinion Lyons, Louis M., news commentator WGBH, Boston, Mass.~ com- ment on paper No. 1 Orme, Frank, executive director, National Association for Better Broadcasting, comment on paper No. 6 115 Pilpel, Mrs. Harriet F., radio_television committee chairman, American Civil Liberties Union, comment on paper No. 4. 85 Porter, Paul, attorney, comment o1~ paper No. 7 152 Robinson, Glen 0., associate professor of law, University of Minne- sota Law School, Presenting paper No. 3-The fairness doctrine, the law, and policy in its present application 53 Siepmann, Charles A. professor emeritus, New York University, Comment on paper 3 60 Stanton, Dr. Frank, president, Columbia Broadcasting System, pre- senting paper No. 2-The equal time requirem~~~5 of sectioxi 315 of the Communications Act of 1934 21 Wasilewskj, Vincent P., president, National Association of ]3roadcasters Presenting paper No. 6-The effect of the fairness doctrine on the broadcasting of public controversy 110 Biographica' sketches of panel members 7..14 (III) PAGENO="0004" Iv Papers presented and comments thereon- Paper No. 1-The role and influence of radio and television in the formation of public opinion: Comparison with newspapers, maga- Page zines, and specialized journals of opinion 34 Comment 39 Paper No. 2-The equal time requirements of section 315 of the Com- munications Act of 1934 21 Comment 27 Paper No. 3-The fairness do~e÷ the law, and policy in its present application 53 Comment Paper No. 4-The effect of the fairness doctrine on broadcast news operations 77 Comment 85 Paper No. `5-The effect of section 315 and the fairness doctrine on educational broadcasting 102 Comment 106 Paper No. 6-The effect of the fairness doctrine on the broadcasting of publid controversy 110 Comment 115 Paper No. 7-The fairness doctrine: Its use and application 145 Comment 152 Paper No. 8-The fairness doctrine, equal time, reply to personal attacks, and the local service obligation; implications of technological ehange~ 162 Commer~t 169 Additional material submitted for the record by- Columbia, J3roaacasting System memorandux~i regarding advice given by the law department to aBS News concerning proposed docu- mentary on George Wallace 50 Federal Communications Commission: Correspondence concerning compliance of fairness doctrine and section 315, statement on 121 Handling of fairness doctrine as distinguished from personal attac~c complaints FCC statement regarding 162 Eing Broadnasting ~!Jo., FCC rulin~ regarding fairness doctrine - 125 Lctthr from Donald F. Turner, Assistant Attorney General, Anti- trust Division, Department of Justice, re Coluntbia Broadcisting ~System, Inc., v. U.~S. & F.C.C. (7th Circuit No. 16498); National Broadcasting Co. v. U.S. & F.C.C. (7th CircuIt No. 16499); Radio Television News Directors Assn. v. U.S. & F.C.C. (7th Circuit No. 16369) and copy of the motion 65 National I3roadcasting Company, News Division: Broadcasting stations and daily newspapers in the five largest metropolitan areas in the United States 85 Commercial broaddast stations on the air, and daily and Sunday newspapers, `in the United States, by States, as of 1965 84 Appendixes: Appendix A-Legislative history of the fairness doctrine, a special sub- committed staff study, February 1968 183 Appendix B-Applicability of'the fairness doctrine to cigarette adver- `tising, memorandum opinion and order of the Federal Communica- tions Commission (FCC 67-1029) 219 Appendix C-Letter dated February 28,' 1968 from Howard Stalnaker, vIce p'r~side~it-general manager, `MereditbW'OW, Inc., Omaha, Nebr., including së~teral recent resolutions re l?airnes5 Doctrine adopted by the Nebraska Broadcasters Association 243 PAGENO="0005" FAIRNESS DOCTRINE TUESDAY, MARCH 5, 1968 HousE o~ REPRESENPATIVES, SPECIAL SVBCOMMITT~E ON INVESTIGATIONS, COMMITTEE ON INTERSTATE AND Fom~IGN COM1~tERcE, Wa8hington J~.C. The special subcommittee met at 9:30 a.m,, pursuant to notice, in room 2123, Rayburn House Office Building, Hon. Harley 0. Staggers (chairman) presiding. The CHAIRMAN. The committee will come to order. I would hke to make a brief announcement before we get started. Mr. Don MeGannon of Westinghouse will not be with us because of a death in the family. We are very sorry for him. Also, I will have to leave soon, as I have to go to the Rules Committee in a few moments. I will return as soon as possible, however. We welcome each of you here this morning. It is certainly a distinguished panel. The business of this subcommittee for the next 2 days will be a consideration of some of the most significant issues in broadcast regulation: The fairness doctrine, the equal time requirements of section 815 of the Communications Act, broadcast editorializing, and the question of personal attacks carried over the airwaves. * The House Committee on Interstate and Foreign Commerce has the duty and responsibility under section 1.6 of the Reorganizatio~i Act of 1946 to exercise legislative oversight or continuous watchfulness of the execution by the administrative agencies of any laws, the subject mat- ter of which is within the jurisdiction of the committee. Coinmunica- tions is one of such subject matters. House Resolution 168, 90th Con- gress, authorizes this special subcommittee to make investigations and studies concerning communications and the Federal Communications Act of 1934, as amended. We are well aware that some of the panelists represent parties in various matters before the courts. I want to emphasize at the outset that our purpose here is not to focus on individual court actions or FCC decisions, except insofar as they bear on the larger issues before us. The format of our exploration of these issues will be that of a panel discussion. I would like to say more about both the issues and our for- mat in a few minutes; but, first, it gives me great pleasure to welcome our distinguished moderator, Dean Barrow, and the panel members who are with us today. In a few minutes, I will ask Dean Barrow to introduce each of the participants to the subcommittee, We have prepared and distributed to the subcommittee a series of biographical briefs of the participants. This will also be inserted into the record of these proceedings. (See pp. 7-14.) (1) PAGENO="0006" 2 To observe that we have a "blue ribbon" panel present here today is merely to state the obvious. I want the panel to know that we on this subcommittee are deeply grateful for the contribution you are making-in many cases involving considerable personal inconveni- ence-toward the better understanding of these issues. Your presence here today is further proof, if any were actually needed, of the time- liness and importance of these discussion~. We want to make a special welcome to Chairman Hyde, of the Fed- eral Communications Commission. Mr. Chairman, we look forward to your participation in these proceedings and are grateful for it. A few minutes ago, in alluding to the issues to be discussed in these proceedings, IL mentioned four "Equal Time," the "Fairness Doctrine," "Broadcast Editorializing," and "Personal Attacks" It does seem to me, however, that we may actually be referring to only two issues. "Equal Time" is one of these. This is the require- ment-which has been in the. law since the Radio Act of 1927-that when a station allows a* legally qualified candidate for public office to make use of its facilities, it must afford equal opportuities for all other such candidates competing for the satne office. There is certainly no need to point out the great significance this requirement takes on during an election year. It has been urged that the strict "equal time" requirement fails to take proper account of the realities of our national political system. It ~s stated, for `exam- pie, that broadcasters are reluctant to extend free time to candidates of the major parties for fear of being required to extend equal amounts of valuable air time to candidates from obscure or splinter parties in whom the public may have little interest. Against this, however, we must weigh the fact that the so-called splinter party of today may. become the majority-or at least a sig- nificant-party of tomorrow. The views of the so-called obscure can- didates may ultimately prove to be of great value to the electorate. For these reasons, we want to proceed very carefully in considering modifications in the present equal time requirement. The si~bject is vital in a free society, and we are looking forward to the panel's consideration of this topic this morning. As we all recall, the equal time requirements of section 315 were suspended during the 1960 Presidential campaign. The results of that suspension are still being discussed, and I am sure will be dis- cussed further today. The other principal issue before us, and in many ways the more difficult of the two, is the "Fairness Doctrine." The fairness doctrine received its definitive statement in the FCC's 1949 report on "Editorializing by Broadcast Licensees." The doctrine provides that when a licensee presents one side of a controversial is- sue of public importance, reasonable opportunity must be afforded for the presentation of contrasting views. This goes to the heart of broadcasting, and the fairness doctrine has received much critical comment from the broadcast industry. It is said that the asserting of a legal, as opposed to a moral, obliga- tion of fairness violates the first amendment of the Constitution, and also section $26 of the Communications Act, which expressly pro- hibits censorship On the part of the FCO. PAGENO="0007" 3 These, of course, are legal considerations. But practical objections have also been raised that the existence of the doctrine inhibits broad- casters from venturing into controversial subjects. This issue is not easily resolved. The fairness doctrine represents an attempt_-certainly not beyond improvement-_to insure that the Amer- ican public has the opportunity of hearing contrasting viewpoints o~ the vital issues of the day. Recent studies by respected polling orga- nizations have confirmed what might have been suspected without any polls-that the majority of our citizens consider broadcasting tele- vision in particular, to be its primary and most reliable source ot news ~ind information. Broadcasting regulation has-fro'm its inception_-been based on the premise that the airwaves belong to the people, licensed to be used in the public interest, convenience, or necessity. The public should hear from the responsible voices that are raised in the discussion of public issues. The marketplace of ideas should not be foreclosed to some and monopolized by others. I think all of us will agree to these general principles. But that still leaves us with the question of whether the fairness doctrine is the best. way to insure that responsible voices will be heard in the dis- cussion of public issues. We are looking forward to the panel's delibera- tions on this subject, and will be especially interested in suggestions for improvement in the doctrine itself, or in its administration. The other two issues I mentioned earlier-personal attacks and edi- tori~alizing-seern to be really subheadings under the general concept of the fairness doctrine. Last year, the FCC promulgated administra- tive rules specifying the duties of licensees in the cases of personal at- tacks or political endorsements. These rules required the licensee to provide the victim of the attack, whether it be an individual or a group, with notice of the attack, a transcript or summary of the attack, and an offer of reply time. This was to be performed within a week of the time the attack was broadcast. These rules were challenged in court by various parties representing the broadcast industry. As if to underline the importance and time- liness of our proceedings here today, we have just learned that the FCC has asked the U.S. Circuit Court of Appeals in Chicago to with- hold consideration of the personal attack rules pending further Com- mission consideration, and perhaps revision, of these rules. I think we should be striving for a bit more certainty and clarity in the law in this area, and your deliberations here will contribute toward the achieve- ment of this goal. As to editorializing, this issue, too, it seems to me, properly falls under the general heading of the fairness doctrine. To me-and others may disagree with this definition-an editorial is simply an expression of the licensee's views on a particular subject which is clearly labeled as such. The expression of opinion may be on a contro- versial subject, or it may not. If it is on a controversial subject, the fair- ness doctrine applies and the licensee must afford reasonable opportu- nity for the presentation of contrasting views. But 1 do not want to anticipate the discussions which are to follow. However, it is necessary to say a few words about the. format we will be using here, PAGENO="0008" 4 This will be a paxiel discussion. We have asked ~eight of the panelists to prepare statements in advance of these proceedings. These state- ments have been reproduced and made available to the subcomimttee and the press. Two of these papers will be presented this morning, and two this afternoon. We have also asked other panelists to review these papers and prepare commentaries on them. Unfortunately, time has not per- mitted us to duplicate these commentary statements, except for two which we received last week. We are hoping to obtain many points of view in the next 2 days. The panelists who are visiting us are knowledgeable and concerned. We do not expect them to be in agreement on all of the issues. We are looking forward to an open and uninhibited expression of differing viewpoints. We are operating on a tight schedule, and many of the panehsts have only a brief time to be with us. We know, for example, that Dr. Stanton has only a limited time to spare for his participation and must return to New York City for a board of directors meeting. We know that Mrs. Pilpel must leave shortly after her presentation this after- noon. Mrs. Pilpel's husband is opening a play tonight on Broadway. She has our besl wishes. In view of these time limitations, I would like to ask that the mem- bers of the subcommittee hold their qtiestions until tomorrow after- noon when our sèhédule is a little less crowded. This will give us more of a chance to take advantage of the combined expertise ptesent here in our panel. In the event that this arrangement results in some member having questions which have not been put to the panelists, additional questions may be filed for direction to the panelists. We would ask that these questions be flied within 3 days of the close of onr sessions here. We also invite the submission' of additional information, both from panehsts and anyone else who wishes to express a viewpoint. These should be submitted within 2 weeks after the close `of the hearings. At this time, I would like to present to you the distinguished mod erator of our hearings, Dean Roscoe L. Barrow. Dean Barrow, who retired last year as dean at the University of Cincinnati Law School, now is Wald professor of law at the univer- sity. He has done intensive research in broadcasting and was director of the broadcast network study for the Federal Communications Com- mission which culminated in the publication of "Network Broadcast- ing, 1957," which has come to be known as the Barrow report. We are particularly pleased to have his aid and assistance today. Dean Barrow will present an introductory statement and introduce the panelists to the subcommittee. He, will moderate our discussions during the next 2 days. I would ask that any particiT ant or member of the subcornmitt~e who wishes to raise a question or offer a comment so signify to Dean Barrow and irait to be recognized ~ him. This type of orderly pro- cedure is essential if we are to proeeed expeditiously and make the `best use of the hmited'time, and'the impressive experience and kñowb edge of the panel. As I mentioned before, I do ask that the members hold their qües~ tions, if at all possible, until tomorrow afternoon. Clarifying ques- PAGENO="0009" 5 tions, of course, are always in order, and we do not want to completely foreclose the members from offering comments or questions. This wit! be a matter for our own judgment. We will have to bear in mind that these 2 days will go by very quickly and we have a great deal of ground to cover. Before turning the discussion over to Dean Barrow and the panel- ists, I would like to ask our ranking minority member, Mr. Keith of Massachusetts, to say a few words. Dean Barrow, we are happy to have you with us. Mr. Keith, have you any statement to make? Mr. KEITH. Thank you, Mr. Chairman. I would like to join with you in welcoming the participants in this roundtable discussion. We are aware that all of you are extremely busy, and we thank you for taking the time to attend these meetings. I would also like to ex- tend my congratulations to the members of the subcommittee staff who have overcome many difficult problems in scheduling these meetings. Regarding the issues before us, it appears that there are three goals that we should seek to achieve in these sessions. We should seek to determine exactly what the various rules and doctrines are, especially the fairness doctrine; and to what extent their application is called for. We should also seek to determine how these rules and doctrjnes~ are enforced by the FC:C and how this might be improved. Finally, we should seek to determine what action by the Congress is called for. The issues involved are very complicated and confusing, and the considerations affecting many of the decisions that have to be made are closely balanced. It appears that we are confronted by a dilemma that may not be possible to solve by broad, general rules. On the one hand, there is the right of free speech which the first amendment is designed to protect. On the other, there is the public ownership of a very limited number of radio and television frequencies which are, in effect, leased to private individuals on the condition that they operate in the public interest. One of the basic considerations of serving the public interest is that this public be given the opportunity to hear both sides of an issue. How is it possible to insure one right, that of free speech, without seriously damaging the other right to hear both sides of the question? In any event, I am certain that each of the members of the panel has his own opinions on how best to resolve this problem. I am also certain that all of their opinions do not coincide. I hope that the panel mem- bers' discussions will expose the issues that must be resolved and that the confrontation of opihions will also furnish us with some considera- tions necessary to guide us. As a Congressman, I regret the loss of an opportunity to present de- taIled questions to the panel members during the discussions. It is my understanding, however, that many of you will return at a later date when we are considering this matter again. By then, these sessions will have provided excellent material for framing our questions in those later sessions. Thank you, Mr. Chairman. The CHAIRMAN. Thank you, Mr. Keith. Dean Barrow? PAGENO="0010" 6 Dean BARROW. Thank you, Mr. Chairman and honorable members of the Special Subcommittee on Investigations. The members of the panel appreciate deeply the opportunity to par- ticipate in your inquiry into the operation of the equal opportunities and fairness doctrines. Each member of the panel is sensitive to the high responsibility to the subcommittee and to the public which was as- ~umed in accepting the subcommittee's invitation. The members of the panel will practice the fairness doctrine and it is hoped that the sessions of the next 2 days may be of value to the sub- committee in its deliberations. To introduce the members of the panel is as easy as it is pleasant, b~cau~e they Pare distinguished and a mention of their names serves t& identify their contribution to the broadcasting industry, Government, and Other areas of service: PANEL MEMBERS PRESENT1 ROSCOE L. BARROW (MODERATOR), HEREERT E~ ALEXANDER, HOWARD H. BELL, JOHN R. CORPORON, JAY CROUSE, REUVEN PRANK, LINCOLN M.PtJRBER, HYMAN H. GOLDIN, ROSE1L H. HYDE, LOUIS L. JAPPE, ELMER W. LOWER, LOUIS M. LYONS, PRANK ORM~E, MRS. HARRIET PILPEL, GLEN O~ ROBINSON, CHARLES. A. SIEPMANN, PRANK STANTON, VINCENT T. WASILEWSKI Dean BARROW. First, I am pleased to introduce one known to all, the Honorable Rosel H. Hyde, Chairman of the FCC. Mr. Hyde has served the FCC and its predecessor since 1928 and his expertise will contribute greatly to these sessions. The other members of the panel are arranged with those on my right presenting position papers and those on my left presenting comments on the position papers, and in the order in which they will present those papers. First, Dr. Frank Stanton, who has served as president of the Co- lumbia Broadcasting System since 1946 and is recognized as one of the outstanding network executives in the history of broadcasting. Mr. Louis Lyons, news commentator for WGBH, Boston, and prior to that curator of the Nieman program of fellowships in journalism at Harvard TJniversity under which 300 or more newspapermen re- ceived a year of training. Mr. Elmer W. Lower is president of ABC News and is a veteran of news reporting and news program production with newspapers and the three major networks. Mr. Herbert E. Alexander is director of Citizens' Research Founda- tion and writes on financial and political matters. He is well known for his service as Executive Director of the President's Commission on Campaign Costs. Mr. Glen 0. Robinson, professor of law, University of Minnesota, who prior to entering teaching practiced here, is engaged in research and publication in the field of broadcasting. 1 See pp. 7-14 for biographical data. PAGENO="0011" 7 Prof. Charles A. Siepmann until recently was chairman of the De- partment of Communications, New York University. Prior to 1937, he served the British Broadcasting Corp. He has published extensively on broadcasting. Mr. Reuvon Frank is executive vice president, NBC News. From 1956 to 1962 he produced the "Huntley-Brinkley Report" and has won various awards for excellence in news broadcasting. Mr. Jay Crouse is president of the Radio-TV News Association and has won awards for distinguished reporting. Mr. Frank Orme is executive director of the National Association for Better Broadcasting and has, for more than 40 years, served broad- casting as critic and producer. Mrs. Harriet Pilpel is chairman, Radio-Television Committee, American Civil Liberties Union. She is an author and an attorney. Dr. Hyman Goldin is professor of communications, Boston Univer~. sity. He was executive secretary to the Carnegie Commission on Edu- cational Television and prior to that served the FCC for 22 years, being Chief of Economics and Research. Mr. Vincent Wasilewski, president of the National Association of Broadcasters. Mr. Lincoln M. Furber, director of public affairs, Station WETA- TV in Washington. And Mr. Howard H. Bell, who is now president of American Advertising Federation and prior to that for 16 years an executive on the staff of~AB and in charge of its code of good practice. (Biographical sketches of the panelists follow:) RosCoE L. BARROW (MODERATOR), DEAN EMERITUS, UNIVERSITY 01' CINCINNATI LAW SCHOOL Dean Roscoe L. Barrow is well known in broadcasting circles as the author of "Network Broadcasting, 1957," prepared during a 2-year assignment as director of broadcast network study for the Federal Communications Commission. The book is also known as "The Barrow Report." A native of La Grange, N.C., Dean Barrow was graduated from the Illinois Institute of Technology, Chicago, and received his law degree from Northwestern University. He worked with the National Labor Relations Board in 19139-40; the Depart- ment of Agriculture in 1940-42, the Office of Price Administration in 1942, and the Department of Justice, becoming special assistant to the Attorney General of the United States. From 1942 to ~L945, he served with the U.S. Navy. Dean Barrow became acting dean of the University of Cincinnati Law School in 1952 and was named dean in 1953, retiring in 1967 to become Wald professor of Law. He served as consultant to Federal agencies and has been an FCC consultant since 194~1. He served as visiting professor of law at the University of North Carolina in the summer of 1962, and at the University of Virginia in academic year 1965-66. HERBERT E. ALEXANDER, DIRECTOR, CITIZENS RESEARCH FOUNDATION Herbert E. Alexander, director of the Citizens' Research Foundation since 1958, has written extensively on matters relating to money in politics. The Foundation, located in Princeton, N.J., specializes in the study of political Campaign spend. ing and on means to reduce such expenditures. Dr. Alexander is the ai,ithor of "Money, Politics and Public Reporting," "Tax Incentives for Political Contributions ?", "Financing the 1960 Election," "Financ- ing the 19~4 Election," "Responsibility in Party Finance," and other publications. He received his B.A. from the University of North Carolin'a, M.A. from the University of Connecticut, and Ph. P. in political science from Yale University. PAGENO="0012" 8 In 1954-55, he was with the Institute of Research and Social Science, University of North Carolina. I~e taught in the Department of Politics, Princeton Ur~iver- sity, In 1956-58, and subsequently has been a visiting lecturer at Princeton (1965- 68) and at the University of Pennsylvania (1967-6~). Dr. Alexander was Executive Director of the President's Commission on Cam- paign ~sts during 1981-62, was a consultant to the PresMent of the United States during 1962-64, and has been consultant to the Department of the Treasury and tbe House Administration Committee. HOWARD H. BELL, PRESIDENT, AMERICAN ADVERTISING FEDERATION A journalism school graduate who majored in advertising at the University of Missouri, Howard H. Bell entered the advertising field via broadcasting. He was sales promotion manager of WMAL-AM-FM-TV in Washington, D.C., for 4 years and then began a 16-year association with the National Association of Broadcasters before resigning In January 1968, to accept the post as president of the American Advertising Federation. In his new job, Mr. Bell heads an organization with almost 40,000 individual members in 173 affiliated local advertising clubs, more than 700 company mem- bers, and 25 affiliated national organizations. At the National Association of Broadcasters, Mr. Bell was in charge of the organization's code authority program, being responsible for the administration, interpretation and enforcement of the radio code and the television code. His activities Included progran~s to acquaint the public, industry, and government with the accomplishments and goals of self-regulation within the broadcast industry. Mr. Bell obtained a law degree from Catholic University Law School and is a member of the bar of the State of Maryland. He is a member of the American Bar Association and its standing committee on public relations, and of the Federal Communications Bar Associatirni. Other activities include the Washington Advertising Club, Alpha Delta Sigma advertising fraternity, past chairman of the Radio-TV Committee of the Presi- dent's Committee for Employment of the Handicapped, former executive secretary of the Association for Professional Broadcasting Education, and currently on the Board of the University of Missouri Freedom of Information Center. JOHN H. CoRroRox, Vxcz PRESIDENT-NEWS, METROMEDIA TV As vice president in charge of news for Metromedia TV, John Ii. Cerpron oversees the news coverage of Metromedia, Inc., television stations in Washington, New York, Kansas City, and Los Angeles. Mr. Corporon was given the post in ~L968 after a year as news director for Metromedia's New York City station, WNEW-TV. After graduating from the University of Kansas with degrees In journalism and political science, Mr. Corporon worked briefily as a newspaper i~eporter before going to Louisiana as a reporter and news bureau manager for United Press International. In 1958, he became the Washington correspondent for WDSU-TV, New Orleans, returning to the station in 1960 to become political reporter, chief editorialist and news director. Seven years later, he left the New Orleans $tations to accept a position with Metromedia, Inc. JAY CROrSE, PRESIDENT, RADIO TV NEWS DIRECTORS AssoCIATIoN Jay Crouse joined WUAS News, Louisville, Ky., in 1952 and has been news director since 1962. He is a graduate of the university of Missouri's School of Journalism and worked for 2 years on the Cincinnati Post. Mr. Crouse twice has been president of the Louisville Professional Chapter, Sigma Delta Chi, and has been president of RTNDA since September 1967. In 1964, WHAS won the association's national award for reporting of a community problem for "WHAS Reports: The Ravaged Mountains," a three-part PAGENO="0013" 9 documentary on the soil erosion, floods, etc., caused by poor control of strip and auger mining in eastern Kentucky. Mr. Crouse twice served in the U.S. Navy, seeing combat duty in World War II and the Korean conflict. REUVEN FRANK, ExECUTIvE VIcE PREsIDENT, NBC NEws A native of Montreal, Canada, Reuven Frank moved to the United States at the age of 20, becoming a naturalized citizen. After obtaining a degree in social sciences from the City College of New York and a master's degree in journalism from Columbia, Mr. Frank worked 3 years with the Newark Evening News, where he was night city editor. lIe joined NBC in 1950, worked on the Camel News Caravan program for sev- eral years and, in 1956, was a producer of th~ network's political convention coverage. Mr. Frank has been the producer or executive producer of the network's con- vention and election coverage since then. He produced the Huntley-Brinkley Report from 1956 to 1962 and was executive producer of the newscasts in 1963-65. In addition, Mr. Frank has produced numerous documentaries for NBC and also has operated in executive administrativ~ capacities With the network. Among the awards he has won are eight "Emmy" prizes from the National Academy of Television Arts and Sciences. Mr. Frank is a member of the academy and of the Writers Guild of America, the American Newspaper Guild, and the Radio & Television Correspondents Association. LINCOLN M. FURBER, PUBLIc AFFAIRS DIRECTOR, WETA-TV, CHANNRL 26, WASHINGTON, D.C. Lincoln Furber had a 10-year career in commercial broadcasting before becom- ing director of public affairs for the noncommercial educational WETA-TV in September 1967. A graduate of Middlebury College, Vermont, and Columbia University Graduate School of Journalism, Mr. Furber's first assignment was with WBZ-TV, Boston, Mass. in 1958, he became a newscaster with WCAX-TV, Burlington, Vt., and in 1962, began a 3-year stint as a newscaster and producer for NBC and CBS stations in Chicago, Ill. Mr. Furber came to Washington in June 1965 as a correspondent with the Washington News Bureau, CBS owned-and-operated television stations. His reports were designed for audiences on the five TV stations owned by CBS in New York City, Chicago, Los Angeles, St. Louis, and Philadelphia. He is a member of the National Press Club, the Radio-Television Correspond- ents Association, the National Academy of Television Arts and Sciences, and the American Federation of Television & Radio Artiats. HYMAN H. GOLDIN, ASSOCIATE PROFESSOR OF COMMUNICATIONS, BOSTON UNIVERSITY Hyman H. Goldin, associate professor of communications at Boston University, has spent recent months in intensive research on noncommercial educational television. As executive secretary to the Carnegie Commission OB Educational Television, Prof. Goldin was one of the architects of the commission's report, "Public Tele- vission: A Program for Action." The report was used extensively in the prepara- tion of legislation which led to the Public Broadcasting Act of 1967. Prof. Goldin was graduated from Harvard College and received his Ph. D. de- gree in 1951 from Harvard University. lie was a staff member of the Federal Communications Commission from 1943 to 1965, serving as Chief of the Economics and Research Divisj~~ and as Assistant Chief of the Broadcast Bureau. He currently is a consultant to the Carnegie Corp. of New York. PAGENO="0014" 10 WILLIAM 0. HARLEY, P SIDRNP, NATIONAL ASsOCIATIoN or EDUCATIONAL BROADCASTERS William 0. Harley has been president of the National Association of Educa- tional Broadcasters since September 1960. Previously, he was professor of radio-television education at the University of Wisconsin, and program director of the Wisconsin State Broadcasting Service. In 1954, he put the Nation's fourth noncommercial educational television station (WHA-TV) on the air and was in charge of its operation until coming to Washington. Mr. Harley currently is on the board of directors, Joint Council of Educational Telecommunications. He is on the board of the United States-Japan Television Program Exchange Center and is immediate past president of the National Industry Advisory Committee of the Federal Communications Commission, and the U.S. National Commission for UNESCO. As an expert in educational broadcasting, he has attended conferences and consulted on special projects throughout the world. In 1961, he was sent by the State Department to investigate educational broadcasting potentialities in Co- lombia. He was a member of the NAEB team which planned the use of educa- tional television in the American Samoa school system. In addition, he has visited Uganda, Kenya, and other developing nations to provide consultation for the establishment of radio and television systems for education. Mr. Harley is a graduate of the University of Wisconsin, with degrees in Journalism and speech. ROSEL H. HYDE, CHAIRMAN, FEDERAL COMMUNICATIONS COMMISSION A career Government service employee, Rosel H. Hyde has been associated with the Federal Communications Commission since 1928. Mr. Hyde, a native of Idaho, came to Washington after attending Utah Agri- cultural College and then studied law at George Washington University. He entered Government service while still a student, working on the staff of the Civil Service Commission in 1924-25 and the staff of the Office of Public Buildings and Parks from 1925-28. After his admission to the bar in 1928, he joined the Federal Radio Commission, which later became the Federal Com- munications Commission. Mr. Hyde was an attorney, examiper, and general counsel at the Commission until 1946, when be was appointed a Commissioner. He was Chairman briefly in 1953-54 and then, in 19fl6, was named Chairman to fill a vacancy caused b~ his predecessor's resignation. His appointment will expire in 1969. Louis Ti. JAFFE, BYRNE PRoFEssoR or LAW, HARVARD UNIVERSITY A native of Seattle, Wash., Louis L. Jaffe was graduated from Johns Hopkins and received his doctor of juristic science degree from Harvard. In the early 1930's, he served as a law clerk with Justice Brandeis, worked on the legal staff of the Agricultural Adjustment Administration and the National Labor Relations Board. In 1936, he became a professor law at the University of Buffalo, later being named dean of the law school. He has been Byrne professor of administrative law at Harvard since 1950. Dr. Jaffe contributes law review articles and is the author of "Cases and Materials on Administrative Law," among other works. ELMER W. LOWER, PRESIDENT, ABC Nnws Elmer W. Lower, a veteran of news work in the print media and at all three large commercial networks, has been president of ABC News since 1963. Before joining ABC News, Mr. Lower had spent 4 years with NBC News, where he rose from chief of the Washin.gton News Bureau to general manager-vice presi- dent of NBC News, New York. From 1953 to 1959, Mr. Lower worked with CBS News, both in Washington and New York. PAGENO="0015" 11 Previously, Mr. Lower had been associated with Life magazine (1945-51) as a foreign correspondent. Between news assignments, Mr. Lower served with two U.S. information agen- cies. From 1942 to 1945, he organized a Europe-Africa radiophoto network for the Office of War Information; from 1951 to 1953 be Was Chief of the Information Division, Office of the High Commissioner for Germany. Mr. Lower is a 1933 graduate from the University of MiSsouri's School of Jour- nalism, which honored him in 1959 with an award for Distinguished Service to Journalism. After graduation, he worked as a reporter and editor with various newspapers and wire services located in Kentucky, Michigan, Missouri, Ohio, illinois, New York, and Europe. He holds an MA. degree in public law and gov- ernnient from Columbia University. Louis M. LYONS, NEws COMMENTATOR, WGBH, BOSTON, MAss. Louis M. Lyons, after retiring in 1964 as curator of the Nieman fellowships for journalism at Harvard University, continued his activities as a news analyst and commentator for the Boston noncommercial educational broadcasting station, WGBH. His nightly news and comments over the radio station have been heard since 1946 through most of New England and in New York and have won for him the Peabody Award and the Du Pont award for excellent in broadcasting. Mr. Lyons was born in Boston in 1897 and was educated at the Massachusetts Agricultural College (now the University of Massachusetts). From 1923 to 1946, be was a reporter for the Boston Globe, It was while he was a reporter that be studied at Harvard in 1938-39 with the first group of Nienian fellows. He then became curator of the Nieman fellowships, continuing part time on the staff of the newspaper. Under his guidance, more than 300 American newsmen studied at Harvard, each devoting a year to academic subjects useful as background for future jour- nalism career. Mr. Lyons has been awarded honorary degtues from Harvard, the University of Massachusetts, Colby College, Marlborough College, Rhode Island College of Education, and New England College. He is a fellow of the American Academy of Arts and Sciences and of the Aca- demy of New England Journalists. He is an honorary member of Phi Beta Kappa. DONALD H. MCGANNON, CHAIRMAN, WESTINGHOUSE BROADCASTING Co. After a 3-year term in the private practice of law, Donald H. MeGannon entered broadcasting in 1951 as assistant to the director of broadcasting for the DuMont Television Network. He later became general manager and then, in 1955, was named vice president and general executive of Westinghouse Broadcasting Co. He soon was named president and, since 1963, has been chairman of the board. Mr. McGannon, a native of New York City, has received degrees from Fordhani University and the University of Scranton. He is a member of the Democratic State Central CommIttee of Connecticut and is a trustee for Ithaca College, Fordham University and Sacred Heart Universit~. Mr. McGanuon is a member of the advisory council for NoIre Dame and George- town University. He Is a member of the Connecticut Bar Association and the National Associa- tion of Broadcasters, which presented him with an achievement award in 1964 FRANK ORME, EXECUTIVE DIRECTOR, NATIONAL AssocIAtIoN ron BETTER BROADCASTING Frank Orme, executive director of the National Association for Better Broad casting since April 194E~4,, has been involved in broadcasting-either as critic o~ producer-for almost 40 years. 0 PAGENO="0016" 12 A native of Ontario, Canada, Mr. Orme, a naturalized American citizen, first entered the broadcast field in 1929, when be became radio critic for nine daily southern Californi~L newspapers. After a short term as a writer for a Los Angeles radio station in 1931, be became a freelance writer for the next 17 years, produced half-hour radio plays, produced a 39-episode radio serial for juveniles, and published a number of chil- dren's short stories and plays. From 1949 to 1956, Mv. Orme continued his freelance writing activities and also worked in editorial capacities for such magazines as Television, TV magazine, and Film World. After ~ year as staff writer and research director for, Parthenon Pictures, which produced industrial and documentary motion pictures, Mr. Orme became educational director for a nonprofit organization specializing in dental post- graduate education but continued his' independent interest in radio and television. After several special research and writing projects for the National Association for Better Broadcasting, he was named executive director. Mr. Orme is the author of several studies and surveys of crime programs on Los ,&ngeles television and has written annual televisiob program evaluations for Parents' magazine during the last 4 years. Mas. HAREIET PILPEL, RADIo-TELEVIsIoN CtM~ITTEE CHAIRMAN, AMERICAN CIvIL LIBERTIEs UNIoN An author and attorney, Mra Harriett Pilpel is a member of the national board ~f directors for the American Civil Liberties Union as well as being chairman of the Union's radio-television committee. A native of New York City, she studied at Vassar College and earned degrees in international relations and public law at Columbia University. Mrs. Pilpel has practiced law in New York City since 1936 and is a member of the Ureenbatim, Wolff & Ernst law firm. She is the author of a monthly column in Publishers Weekly, "But Can You Do That?" Mrs. Pilpel, wife of Robert Cecil Pilpel and the mother of two children, is on the board of directors for the Home Advisory & Service Council of New York City, Sex Information & Education Council of the U.S., and Association for the Study of Abortion. Her memberships include also the New York Ethical Culture Society, American Association of Marriage Oounselors, Copyright Society, Authors League of America, Phi Beta Kappa, and New York City, American, and Federal Bar Associations. _______ PAUL A. Ponrun, ATTORNEY, WAsHINGToN, D.C. Paul A. Porter, a partner in the Washington, D.C., law firm of Arneld & Porter, bad a lengthy career in public service before going into private practice. He is a former Chairman of the Federal Communications Oommission, former Administrator of the Office of Price Administration, and was Chief of the American Economic Mission to Greece In 1946, with the rank of Ambassador. Mr. Porter, a native of Joplin, Mo., worked on newspapers in Kentucky and Georgia after studying at Kentucky Wesleyan College and the University of ~entueky Law College. He came to Washingtor~, D.C., as special counsel `to the Department of Agri- culture In 1932. Mr. Porter was with the Agriculture Department 5 years, was Washington counsel for the Columbia Broadcasting System from 1936 to 1942, and `served during the early 1940's with the Office of Price Administration, the War Food Administration, and the Office of Economic Stabilization. Mr. Porter was campaign publicity director for the Democratic National Com- mittee in 1944. That year be was named to the Federal Commn~micatiofl5 Com- mission, as Chairman. In 1946, he Was apPOinted as Administrator of OPA and later that year was named Chief of the Economic Mission to Greece. Mr. Porter served, with the rank of Ambassador, as U,~. representative on the Palestine ConciliatiOn Commission in 1949 and Was a member of the President's Commission on Campaign Costs in 1941-62. PAGENO="0017" 13 GLEN 0. ROBINSON, ASSOCIATE PROFESSOR OF LAW, UNIvERSITy OF MINNESOTA LAW SCHOOL Processor Robinson was born 1936 in Salt Lake City, Utah, and educated in the public `schools of Ogden, Utah. He received an A,B. degree from Harvard College in 1958, graquating magna cum laucle, and an LL.B. degree from Stanford Law School in 1961. From 1961 to 1967, with the exception of 2 years of active military service in the U.s. 4rmor Corps, Prof. Robinson was associated with the law firm of Coy- ington & Burling, Washington, D.C. In 1967, be was appointed associate professor of law, University of Minnesota Law School, and currently teaches courses in regulated industries, administrative law and torts. lie has done extensive research in communications law and is the author of a recent article on the Federal Communications Commission's regulation of communications. CHARLES A. SIEPMANN, PROFESSOR EMEEITIJS, NEW YORK UNIvERSITY Charles A. Siepmann, a graduate of Oxford University, ~erved for 12 years with the British Broadcasting Corp., where he organized its school broadcasting and adult education general talks. lie was Vice President of the, British Broadcasting Corporation, Successively director `o'f adult education, director of talks, director of program planning (1927-1939). He was university lecturer and adviser to the President, Harvard University (1939-1942). From 1942-1946 he served wit'h the Office of War Information `and latterly deputy director of i'ts San Francisco Office responsible for broadcast propaganda to Japan, to China and to Japanese occupied territories. From 1946 to 1967 he was Ohairman, Department of Communications In Edu- cation, New York University. He was Consultant at various times to the Federal Communications Commis- sion (part author of its "Bluebook" entitled Public ~ervi~ce Ilesponsibilities of Broadcast Licensees) ; consultant to the U.S. Army; consultant to the West German Broadcasters' Association; author of the study and report on Broadcast- ing in C'anada embod'ied in the report of the Canadian Royal Commission on National Developments in the Arts, Letters and Sciences; presently consultant to the Ford Foundation. lie is the author of Radio's seCond Chance; Radio, Television a~id society; Television a,~d Education in the United Btates (a UN~SOO publication); TV and Our ~ichool Crisis. He was the recipient for this last publication o'f the first ~rank Stanton Award for meritorious research in the Communications field. FRANK STANTON, PRESIDENT, COL1JMBIA BROADCASTING SYSTEM Frank Stanton was born in Muskegon, Mich,, and received his Pb. t~. from Ohio State University. He has been president of CBS since 1946 and is serving his second term as Chairman of the U.S. Advisory Commission on Information, appointed by Presi- dent Johnson. Dr. Stanton is a trustee and former chairman of the Center for Advanced Study in the Behavioral Sc'iences, a member of The New York State Council on The Arts and The Business Council, a trustee of The Rockefeller Foundation, Carnegie Institution of Washington and Washington University, and a director of Lincoln Center for the Performing Arts, New York Life Insurance Company and Pan American World Airways. He is a fellow of the American Academy of Arts and Sciences and The American Psychological Associatioa. Stanton served as a trustee of the RAND Corporation from i956-1~67; he was chairman from 1961 to the completion of his statutory term as trustee. In 1961, for his sustained effort to bring about the "Great Debates," he received the George Fos'ter Peabody Award `and the commendation of Preside~it Renn~dy who said, "his role in making it possible for last year~s TV debate's to take place was a significant advance in American politics . . *" 92-602-68-2 PAGENO="0018" 14 VINCENT P. WAsILEwSKI, PRESIDENT, NATIONAL AssoCIATiON OF BR0ADCASTEES Vincent T. Wasilewski's professional career has been spent with the National Association of Broadcasters, which be joined shortly after being graduated from the UniverSity of Illinois with degrees in political science and law. Mr. Wasilewski was employed by NAB in 1949, became vice president for Government affairs in 1960, was named executive vice president In 1961, and was selected as president in 1965. A veteran of the U.S. Army Air Force (1942-45), be won the DistInguished Flying Cross and the Mr Medal. He was a member of the U.S. National Commission for UNESCO, 1956-60, and currently is a member of the AmeriCan Bar Association, American Judicature Society, the Federal Communications Bar Association, and the International Radio and TV Society. STATEMENT OP ROSCOL L~ BARROW, WALD' PROFESSOR OP LAW, COLLEGE OF LAW, UNIVERSTT? OF CINCThThTATI Dean BARROW. The procedure of the panel discussions will be as fol- lows: A position paper will he read. A comment on that paper will be read. Then the panel will discuss the subject matter. This procedure will be repeated throughout the series of eight papers during the ensu- ing 2 days. Mr. Chairman and members of the subcommittee, I wish to com- mend your rather novel use of the panel sessions as a phase of your inquiry into the equal opportunities and fairness doctrines. It is recog- nized by administrative agencies that their work is facilitated by utilizing written presentations and following this with oral hearings on the controlling issues which are unresolved by the writings. Also, our courts, through pretrial conference and similar devices, are achieving more efficient administration and saving of time. Your panel sessions should serve a similar purpose of economy of time in laying a substantial part of the factual base for your inquiry. If it is unsuccessful, your moderator must assume the responsibility because your able staff has done all that possibly could be done to make these hearings successful, and I know tile panelists have done their home- work. My assignment includes an introductory substantive paper, which is as follows: The equal opportunities and fairness doctrines, which facilitate the political process and dialog on the issues of our time, are of great im- portance in a free society. It is fitting that, in this period of great need for dialog on vital issues, the `subcommittee should inquire into the effectiveness of the operation of the fairness doctrine. I appreciate greatly the opportunity to participate in the inquiry and am sensitive to the responsibility to the subcommittee and to the public which I assumed in accepting your invitation. It is difficult to analyze the equal opportunities and fairness doc- trines without taking into account related problems in broadcasting. Ohange in the present operation of these doctrines may have an impact in other areas `of broadcasting. Accordingly, it is appropriate to review briefly the place of the equal `opportunities and fairness doctrines in the regulation `of broadcasting under the public interest standard. The physical limitations of the spectrum cannot accommodate all who desire to broadcast. A license is granted to that applicant who is best qualified to `serve the public interest. Other applicants who could have served the public interest are denied the privilege. PAGENO="0019" 15 The broadcaster is granted the use of the publicly owned spectrum without cost and is permitted to broadcast for his own profit. In re- turn for this valuable privilege, the licensee assume a duty to serve the public interest. The Federal Radio Commission, and its successor the Federal Communications Commission, have protected the charac- ter of broadcasting stations as local institutions having `a grassroots interest in providing the programing needs of the community served. Thus, early in the history of broadcasting, the Chain broadcasting rules were adopted to free the broadcaster from practices which limited the licensee's freedom to choose programing fulfilling local needs. Recently, the policy of protecting local broadcasting stations was evi- denced by the caution exercised in authorizing pay-TV and the limita- tions upon cable-TV. It is anticipated that direct satellite-to-home broadcasting may not be `authorized in order that the ability of the local broadcaster to serve community needs may be protected. The primary interest to be served under the Communications Act is the interest of the public in the larger and more effective use of broadcast facilities. Early in the history of broadcasting, the Com- mission, in the Great Lalce$ case, interpreted the public interest in broadcasting to require balanced programing, stating: The tastes, needs, and desires of all substantial groups among the listening public should be met, in some fair proportion, by a well-rounded program, in which entertainment consisting of music of both classical and lighter grades religion, education and instruction, important public events, discussion of pub- lie questons, weather, market reports, and news, and matters of interest to all members of the family find a place. In its statement of policy on programing of July 29, 1960, the Com- mission reiterated the categories of programing which usually are necessary to meet the needs of the community but emphasized the broadcaster's duty to make an effort in good faith to ascertain and ful- fill the needs of the community served. The Commission stated: The confines of the licensee's duty are set by the general standard `the public interest, convenience, or necessity' . . . The principal Ingredient of such obligation consists of a diligent, positive and continuing effort by the licensee to discover and fulfill the tastes, needs and desires of his service area. If he has accomplished this, he has met his responsibility. It should be noted that the Commission's determination that the public interest requires that the broadcaster serve the needs of the community was not foisted upon unwilling broadcasters. From the beginning of the regulation of broadcasting, this policy had the con- currence of the broadcasting industry. Thus, the chairman of the Legis- lative Committee of the National Association of Broadcasters, Henry A. Bellows, testified before this committee, a~ it was constituted in 1934: It is the manifest duty of the licensing authority. . . to determine whether or not the applicant is rendertug or can render an adequate public service. Such service necessarily includes the broadcasting of a considerable proportion of programs devoted to education, religion, labor, agriculture, and similar activi- ties concerned with human betterment. From the beginnipg of broadcasting there has been wise concerti that centralized control of broadcast matter might endanger the free society. Thus, Herbert Hoover, addressing the Third Annual Radio Conference in 1924, stated: PAGENO="0020" th It would be unfortunate, indee4, if stt~h an important function as the distri- bution of information should ever fall into the hands of the Government. It would be still more unfortunate if its control should come under the arbitrary power of any person or group of persons. It is inconceivable that such a situation could be allowed to exist. Much of the regulation of broadcasting in the public interest is in- tended to prevent undue concentration of control in broadcasting. The diver$iflcation doctrine, limiting the number of stations which may be owned by the same interest, serves this purpose. So does the duopoly rule, preventing ownership of two broadcasting stations of the same type in the same community. The Commission has sought to maximize service and program view- points and, thus, to prevent any person or group from exerting dis- proportionate influence upon public opinon through broadcasting. Commission policies encouraging entry of new program sources, net- works, stations, and systems of program service, and competition between all components of the industry have the same purpose. Re~ quiring all-channel receivers was for these purposes. The concerA over undte influence upon public opinion via broad- casting was recognized by the Congress when it provided that the licensed broadcaster could acquire no property interest in the channel and that property in the channels was reserved to the public. This concern for potential control of J?u~blic opinion, by a few was recognized by the Congress when in section 18 of the Federal Radio Act of 1927, it adopted the policy of equal opportunities in use of broadcast facilities by candidates for publk~ office. The Congress ap- preciated that radio is a powerful instrument of communication and that misuse of it in political campaigns could cause serious harm in a free society. Two years later in the Great Lakee case, the Commission extended this concept of fairness in political campaigns to broadcasts dealing with controversial issues of public importance. Explaining this ex- tension of the fairness doctrine, the Commission stated: Again the emphasis is on the listening public~ not on the seuder of the niessage. It would not be fair, indeed it would not be good servic~ to the public, to allow a one-sided presentation of the political Issues of a campaign. Insofar as a program consists of discussion of public questions, public interest requires ample play for the free and fair competition of opposing views, and the Com- mission believes that the principle applies not only to addresses by political candidates but to all discusSicils of issue~ of importance to the public. The Commission's extension of the statutory doctrine of fairness hi use of broadcasting facilities by candidates for public office to fair- ness in. the presentation of controversial issues of public importance is. sound in theory and, I believe, in practice. A poltical campaign worthy of the name revolves about a core of vital issues which have been considered by the people in the available forums, including broadcasting. The relationship of the political campaion to the consideration of controversial issues of publiô importance ~bears analogy to the ice- berg. The campaign speeches are to the small portion of the iceberg above water as the consideration of issues of public impqrtance i~ to the mass of ice beneath the waves. If it is important to accord candidates for public office equal opportunities via broadcasting~ a fortiori, it is important to provide the people an adequate forum via PAGENO="0021" 17 broadcasting to become informed upon controversial issues so that the people and the candidates may learn which issues are worthy of attention in the campaign. Any inquiry into the equal opportunities and fairness doctrines must take into account the importance in the free society of the opportunity for dialog on the issues of our time. In a free society, sound decision- making depends upon an informed public. If broadcasters are free to present one-sided broadcasts on vital issues, or to avoid broadcasts on vital issues, or to promote the candidacy of one office seeker while deny- ing access to his opponent, the people may well be misinformed-rather than informed-and the purpose of political elections could be frustrated. The principal distinction between totalitarianism and the free society is that in the free society the person has an opportunity to participate in making the vital decisions of his time. We need more dialog-not less. The lack of timely adequate forums for dialog on the issues of the day was a significant factor iu the race riots of the past three summers and in the protest movements on the university campuses. Broadcasting has had an impact upon newspapers, many of the large newspapers in our great cities having dissolved. Today society is not as fully served by newspapers as a forum for vital issues as it was in the prebroadcasting days. More reliance has been placed on broadcasters to provide this service. The problems of society grow ever more complex and the time for de- cision shortens. There is a dire need in our country today for forums which hold quite regular sessions on the issues of public concern and which encourage concerned people to bring significant public prob- ~1ems to the forum for fruitful dialog. The equal opportunities and fair- ness doctrines have been developed to facilitate dialog and effective political process. For the present, broadcasting is the best forum which we have for dialog on controversial issues of public importance. Earlier in these comments, it was noted that the equal opportunities and fairness doctrines are related to other major policy decisions in applying the public interest standard to broadcasting, and that a change in these doctrines relating to political campaigns and contro- versial issues might well impair other important doctrines adopted by the Commission to protect the public interest in broadcasting. Solely for the purpose of discussion, let us assume that the Supreme Court in the Red Lion case and the Radio Television News Directors Association case holds that the fairness doctrine is unconstitutional, or that the Congress, in implementation of possible recommendations of this subcommittee, declares the fairness doctrine beyond the scope of the public interest standard. What would be the effect upon other~regu- lations adopted by the Commission to implement the public interest standard? If the fairness doctrine, a cornerstone of the public interest standard, should be removed, would a substantial part of the public interest structure collapse? If broadcasters should be `relieved of the duty to practice fairness in broadcasts of programing on controversial issues or of the duty to pro- vide equal opportunities to political candidates, would it be reasonable thereafter to require broadcasters to make a good-faith efFort to ascer- tain and fulfill le~s important programing needs of the community? PAGENO="0022" 18 Articulate voices contend that to require the broadcaster to provide balanced programing, serving audiences in our pluralistic society, or to review, in the licensing context, the extent to which the broadcaster has ascertained and fulfilled programing needs of the community, is unconstitutional as an infringement of free speech or press. Some of these spokesmen would reduce the role of the Commission to one of preventing interference between broadcast signals. They would leave a license free to broadcast "the Old Grey Mare" all day long, or to broadcast solely his views, or to propagandize as the broad- caster might choose, not that a responsible broadcaster would do that. If the fairness doctrine should be abandoned, it may be anticipated that soon thereafter these spokesmen would seek an exception of pro- graming from the public interest standard. If the available broad- casting channels were unlimited, or even bountiful, and if the under- privileged as well as the wealthy were able to own a station or stations, complete freedom of the broadcaster to serve his own interest rather than that of the public might be feasible. However, even under that imaginary situation, there would be a need to prevent the broadcast of obscenity, fradulent schemes, quack medical remedies, and the like. But that imaginary abundance of chan- nels does not exist and will not exist in the foreseeable future. The needs for spectrum space by mobile carriers, industry, ships at sea, the mili- tary, government, education, and the like, grows faster than the tech- nology can develop equipment capable of broadcasting over the electro- magnetic waves in the highest frequencies. If the fairness doctrine were abandoned and this were followed by abandonment of the public interest standard as applied to broadcast of programing in general, would it longer be reasonable to retain the diversification doctrine, limiting concentration of control of broadcast- ing facilities? Would it longer be reasonable to limit the control of networks over their affiliates? Would there longer be good reason for protecting the character of local broadcasting stations as local institutions by preventing cable-TV, pay-TV, direct broadcast from satellite to the home, and other tech- nological developments from impairing the economic position of the local broadcaster? In deliberating upon the ecjual opportunities and fairness doctrines, the caution lamp should be lit because these doctrines are close to the heartbeat of the free society. Following a substantial period of regulation through the equal op. portunities and fairness doctrines, it may be anticipated that, even if the doctrines were abandoned, responsible broadcasters would con- tinue to serve for some time at the same high level of ser~rice which they are rendering today. However, it may be anticipated that, absent the statutory provision and regulation, some broadcasters would not con- tinue to serve adequately the political and public affairs needs of the community. Moreover, in time, competition between irresponsible and responsih'e broadcasters might prompt responsible broadcasters to decrease their service in providing equal political opportunities and in broadcasting contrasting viewpoints on controversial issues of public importance. The `starting point in analyzing most problems in broadcasting- PAGENO="0023" 19 and certainly the problem of the equal opportunities and fairness doctrines-is the armchair before the `broadcasting set in the Amer- ican `home. The `overriding consideration must be service to the 200 million Americans. Of course, it is appropriate to take into account the convenience and profit of broadcasters and all other components of the broadcast- ing industry. But the line should be drawn nit the point where serving the convenience and profit of the industry impairs service in the public interest. As the Commission expressed this thought in General Order No. 32: While ut is true `that broadcastin.g stations in this country ~re for the most part supported . . . by advertisers, broadcasting stations are not given these great privileges . . . for the primary benefit of advertisers. Such benefit as is derived by advertisers must be incidental and entirely secondary to the in- terest o~ the public. Thus, even though the equal opportunities and fairness doctrines may occupy time on the broadcasting `stations which the `several com- ponents of broadcasting might prefer to allocate to regularly sched- uled entertainment supported by advertising, the time should be al- located to political `and civic purposes to the extent that `the greater public interest i's served thereby. During the panel session, discussion will be conducted on wheather the equal opportunities doctrine should be abandoned, modified~ or retained without change. The equal opportunities do'ctrine is set forth in section 315, and the Commission's public notice of April 27, 196~ on use of broadcast facilities by candidates for public office, provides guidelines which enable broadcasters to apply the doctrine. Moreover, if one political party in a community should seek to buy a disproportionate amount of the `available time for political broad- cast, the broadcaster has `a `helpful refuge in section 315. As section 31~ stands, a `broadcaster `is not required to sell time on the station to a political candidate. The broadcaster is required merely to grant to opposing political candidates equal time on `the same terms `that are given to a `candidate permitted to broadcast over the station. Some spokesmen say that many broadcasters do not grant access to political candidates to the extent that they would if they were not required to give equal time to opposin~ candidates. But a policy of preferring one candidate would be detrimental to the public interest in a sound political pro'cess. It is suggested that, during the panel sessions, discussion might well be h'ad on whether a broadcaster, rather than being relieved of the duty to provide equal time to' opposing candidates, should be required to allocate a reasonable amount of time for the conduct of election campaigns. It `should be noted that the most popular use of broadcast facilities by candidates for public `off ce were the Kennedy-Nixon debates, which were conducted while section 315 was suspended as to the presidential and vice presidential candidates. It may be anticipated that in na- tional campaigns, absent section 315, appropriate exposure would be given to the opposing candidates of the two major parties. However, this does uot solve the problem of the presidential and vice-presidential candidates of a potential third party. There is danger in a political process which would deprive any new party of a reason- able opportunity to contest a national election with the two major PAGENO="0024" 20 political parties. It is doubtful that this problem will be solved unless we retain an equal opportunities doctrine. Moreover, the State and local political contests pose problems the solution of which is facilitated by the equal opportunities doctrine. Also, during the panel sessions, discussion will be held on whether the fairness doctrine should be abandoned, modified, or retained un- changed. Unquestionably, practine of the fairness doctrine requires more judgment by the broadcaster than does the equal opportunities doctrine. Nevertheless, responsible broadcasters say that, with experi- ence, one develops a sense of judgment in the application of the doc- trine. It appears that more difficulty is experienced by the small broad- caster who lacks sufficient personnel to permit one of the staff to de- velop expertise in applying the doctrine. While the Congress recognized the fairness doctrine in the 1959 amendments to section 315, the statute does not define the fairness doctrine with the particularity given to the equal opportunities doc- trine. Probably an amendment relating to the fairness doctrine would be helpful in the administration of the doctrine. At least this would clear the air on whether the Congress in the 1959 amendments to section 315, adopted the Commission's application to the fairness doctrine under the public interest standard of the statute. Of course, the Supreme Court may well decide that issue in. the Red Lion and RTNDA cases. The Commission's Fairness Primer gives helpful guidance to broad- casters. Understandably, the Commission has been reluctant to regu- late under the fairness doctrine more than necessary, because it is the responsibility of the broadcaster to make programing judgments in the public interest. Nevertheless, the panel may wish to consider whether more definite criteria might not be established by the Com- mission under the fairness doctrine. In considering the fairness doctrine, the primary concern should be the impact of abandonment of the doctrine upon the process of inform- ing the public concerning the vital issues of the day and so enabling them to participate in decisionmaking in the free society. Obviously, the practice of the fairness doctrine may reduce the revenue of net- works and stations. However, financial considerations should not over- ride the public interest in being informed on controversial issues of public importance. The inquiry into the fairness doctrine should con- cern ways in which broadcasting may serve better the informing of the public on controversial issues of public importance. In closing, permit me to quote a few words from the Report of the President's Commission on National Goals regarding the communi- cations function of broadcasting: Sooner or later we (must) face up to the harsh fact that the democratic dialogue is in real danger of being smothered . . . Plainly the mass media offer us a splendid opportunity, which we will lose at the peril of losing democracy Mr. Chairman, that concludes my prepared opening statement. I suppose it is more catalyst than moderator in character, but I believe there will be opportunities for those who might differ with anything said to introduce this at an appropriate time during the discussion of the several topics. Mr. Chairman, the program at this time calls for paper No. 1 by Mr. Elmer Lower. However, due to certain problems of schedule and PAGENO="0025" 21 time, it has been decided~ agreeably to all concerned, that Dr. Frank Stanton will present the first position paper. His subject is "The Equal Time Requirements of Section 315 of the Communications Act of 1934." Mr. SPRINGER. Mr. Chairman- The CHAIRMAN. Mr. Springer? Mr. SPRINGER. I take it you had intended that the questions would start tomorrow afternoon? The CHAIRMAN. Yes, unless we need some clarification. Then after getting Dean Barrow's attention, you would direct the question for clarification. Mr. SPRINGER. Mr. Chairman, I think the questioning probably will be rather extensive in some instances. Are all of these panelists goin to be present tomorrow afternoon at the time of the questioning? think that is very important. The CHAIRMAN. We hope they will be. Mr. SPRINGER. Will Dr. Stah~ton be here, may I ask? Dean BARROW. Dr. Stanton will not be here, and Mr. Lower will not be here. Mr. SPRINGER. Is there going to be a chance to ask these people questions who will not be here tomorrow? I think that is very impor- tant. I think muth more will be brought out in questioning than will be brought out in statements. The `CHAIRMAN. I might say that for so many days you can file any questioh you want to and we will ask any of the members of the panel to give us answers. I i~ill say when there is a specific q~uestion to ask Dr. Stanton after he delivers his paper, we might pern~it that. Other- wise, we just would not get through the panel if we interrupted it with questions. I think we can take down the questions as we go along and get the answers supplied for the record. PAPER NO. 2-D~. PRANK STANTON: THE EQUAL TIME REQUIRE- 1~ENTS O~' SECTION 315 OP THE COMMUNICATIONS ACT OP 1934 Dr. STANTON. Mr. Chairman, members of the subcommittee, Mr. Moderator, and fellow panel members, we owe a debt to Congressman Staggers, as chairman, and the other members of this subcommittee, for their foresight and ëoncern in initiating ahd conducting this inquiry. There has been no sóarcity of literature on the general subject of equal time. It has been the thorniest and most persistent problem in broadcasting since World War II. It has been the subject of repeated hearings, and of no less than 66 bills in one or both sessions of 11 successive Congresses. Much of this has generated more heat than light, however, because it was created in an atmosphere of crisis', com- plaint, or criticism. An exploratory session like this, giving us an opportunity to take a clear look at where we are, where `we have been, and where we might go, with a view toward making the broadcast media more effectwe in~trumeñts in the democratic process, can, be enormously helpful in the definition and construction of public policy. No step in self-government is more vital than elections. They are the very `cpre qf ~lemocraey. Although we are a society governed by laws and not by men, it `is necessarily men who enact the laws, who administer them, and who interpret them. And sooner or later, ac- PAGENO="0026" 22 countability for who they are, and for what they do, is traceable to the voter in the act of making his choice in the voting booth. There is no civil act more central to democracy, more determining of political behavior, and more charged with social responsibility. In attempting to arrive at a sound public policy on how broadcasting might serve the American people in election campaigns, the approach of the Congress historically has been one calculated not to con~truot an affirmative policy leading to the wisest use of the broadcast media to equip the voter better to exercise his franchise, but to prevent con- ceivable abuses that might operate to the advantage of one candidate or party over another. Although this was not an inappropriate object of legislation-per- haps, in the face of the unknown, it was the only plausible one at the time-it resulted in essentially negative and repressive measures. Broadcasting first achieved significant dimensions in American political life in 1924 during the interminable but dramatic Democratic Convention in Madison Square Garden that took 103 ballots to deter- mine the nominee but in the process captivated the public attention. In the subsequent campaign, radio was seen as providing candidates, for the first time, with direct and immediate access to the millions and was, therefore, regarded as a means primarily to enlarge audiences for rallies. There consequently sprang into being the hired-hall concept of campaign broadcasting. Section 18 of the Federal Radio Act of 1927, in effect, merely set the ground rules for broadci~sters to follow in renting the hall by requiring that equal time be given to all candi- dates if given to any. It virtually eliminated any more imaginative use of the medium; because, if a broadcaster gave time to the candi- dates of significant parties, he would have to give it to those of all parties, however numerous and however trivial. The old section 18 was the prototype of section 315 of the Federal Communications Act of 1934, which, with the amendments of 1959 ex- empting certain categories of news broadcasts from its reaeh,~ remains the single legislati~te statement on the role of broadcasting in elec- tion campaigns. It is essentially negative and repressive. Its equal- time restrictions effectively limit the broadcast media to a time-selling function and to such reporting as is permitted by section 315. The question recurring over the years-and still persisting-is not whether these restrictions on the use of radio and television to convey information, to stimulate interest and to promote discussion during election campaigns are in the best interests of broadcasters or of the candidates. The question is whether they are in the best. interests of the 120 million Americans of voting age and, indeed, of the total popu- lation. 1The Communications Act of i934~ as amended: Sec. 515. (a) * * * Appearance by a legally qualified candidate on any- (1) bona dde newscast, (2) bona dde news interview, (3) bona dde news documentary (if the appearance of the candidate is incidental to the presentation of the subject or eubjects covered by the news documentary) or (4) on-the-spot coverage of bona fidn news events (Including but not limited to political conventions and activities incidental thereto), ~bali not be deemed to be use of a bro$dcastit~g s~atien within the mea~n1ug of this ~ubsee- tion. Nothing in the foregoin~ sentence shall be construed as relieving broadcasters, in connection with the presentation of newscastS, news interviews, news documelataries, and on-the-spot coverage of news events, from tha obligation imposed upon them under tbi~ chapter to operate In the public interest and to afford reasonable oj~portunity for the ~liscussion of couflicting views on issues e( public importance. PAGENO="0027" 23 If the impact of the equal-time restrictions of se9tion 315 on the material interests of the broadcasters were the sole criterion, the best answer would be to let the law stand as it is. By the standard of where the public interest lies, however, all the available evidence that we have from the 1960 presidential campaign__the only case history of an election campaign without equal-time restrictions__demonstrates that we ought to strike down those restrictions once and for all and depend upon principles of fairness and `the accountability of the broad- caster as a licensee to prevent abuses, I say this on the general grounds that any useful election campaign ought to be a continuing dialog and not merely a collection of com- petitive set presentations that avoid more issues than they meet, raise more questions than they answer, and sloganize more policie~ than they explore. When he buys time or space, of course, any candidate is en- titled to put his ease in the manner most favorable to his prospects. For this purpose, all the traditional forms of campaigning are available, as are many forms of modern advertising. Nobody wants to eliminate all this. But in the best working democracy, legitimate efforts at per- suasion should be conducted in a context of in-depth. irnowlecige, not of superficiality and ignorance, and of awakened interest, not merely of suggestibility. There seem to me to be three useful criteria by which we can measure the effectiveness of election campaigns. First of all, it is essential to the idea of self-government that the voter be genuinely interested in the process of self-governing. Second, quantitatively, it is obviously important that as many people as possible be directly exposed to the candidates. Third, it is highly desirable, if they are to vote responsibly, that they be exposed to both sides of the issues and to candidates taking opposing views. Applying these criteria to the 1960 presidential election campaign, we must conclude that we were far better off with- out the equal-time restrictions than we would have been with them. There is no disagreement that an apathetic electorate is a social and political evil in a democracy and that any apathy ought to be remedied. A variety of factors unquestionably influence the degree of interest in a campaign. One is the tendency of a candidate simpJy to say what everyone knew he was going to say and to say it very much the same way that he hassaid it before. For the most part, only the party faithful listen to it, and they sel- dom need to be converted. The substance of all history, political as well as military, on the other hand, is conflict: actions or ideas in conten- tion. Popular interest centers in the advancement and ultimate resolu- tion of the conflict, as the issues are sharpened and t)ie contenders are drawn out by confrontations, even on subjects they might avoid in uni- lateral talks. Yet traditional campaign methods, far from depending upon the presentation of conflicting opinions, rely almost entirely on the one-sided presentation of views already known, It was this element of conffict~ I am quite sure, that accounted for the significant increase in interest during the 1960 campaign after the confrontations of the candidates on television and radio as compared to that during the last campaign preceding it. In 1956 and in 1960, go- ing into September of each year, those "very much interested" in the campaign were about the saxne-46 percent in 1956 and 45 percent in PAGENO="0028" 24 1960. According to reliable public opinion polls,2 in 1956 those "very much interested" rose in October to 47 percent-an increase of 1 per- centage point. But in 1960, in October, after the debates, those "very much interested" rose to 57 percent-an impressive improvement of 12 points. Besides this considerable increase in direct interest, the confronta- tions of the two candidates on televi~ion and radio in 1960 generated an enormous amount of material bearing upon the issues and personalities of the election in other media. They were the occasion for front-page stories in the newspapers. They were topics for featured treatment in the magazines. They were the subject of discusion, conversation and comment on the national and on the regional and local levels. In short, they breathed life into the campaign and interest into the electorate. In any event, it should be the purpose of all of us to stimulate a shar- ing in the governmental process by as many of our citizens as possible. Fundamental as they are, elections are only a first step in the continu- ing civic responsibility of the people in a democracy If they commit themselves in the election, they are much more likely to have a clearer sense of responsibility for the subsequent polities and actions of their candidates, thereby considerably broadening the base of national dis- cussion and of the national consensus between elections. Quantitatively, there is convincing evidence that more people are attracted to a meaningful confrontation of candidates than to the traditional paid political brOadcast, with ah oratorical set price or staged question and answer formula with the answer carefully writ ten before the question ostensibly elicitingit is asked. Statistical data indicate that as a rule, when a paidpolitical broad- cast replaces a regularly scheduled entertainment program, some 30 percent of the audience `drops ~way. But the confrontation b'ro~dcasts in the presidential campaign of 1960' drew an audience that n~t only did not fall off from that of the program replaced, `but was actually, on the `average, 20 percent larger than that of the entertainment pro- grams they preempted. Looked at another way, the paid political broadcast in 1960, gen- erally speaking, drew an `audience less than a third in size of that drawn by the presidential debates. Moreover, the tuneout that is customary in the course of long and serious programs did not occur in the case of the presidential debates. To a remarkable degree, the audiences stayed with the broadcasts to the conelusion. The holding power'of the debates was 88 peruent, compared toll percent' fdi' entertainment programs ir~ sumlar time periods. ` Even more significantly, the people ~ho tuned in to see the candidate they preferred, or toward whom they leaned, were also given occasion to see and hear the opposition. The importance of this cannot be over- estimated. People tend to go to the `rallies, read the words, and listen to the speeches of the man whom `they `ali~ady favor or wl~o represents the party to which they already belong Any restrictions on radio and television that help to preserve this political immobility and inbreeding sap the vitality of the election process They are simply helping to perpetuate a behavioral pattern' th~t atrophies `independent thiiikiñg and stagnates voting behavior 2 "ElectIon Studies II and III, Concerning Issues and Candidates," October and No'crem. her 1960, Elmo Roper & Associates, lii West 50th Street, New York, N.Y. PAGENO="0029" 25 The equal-time restrictions of section 315 seem to me to offer no safe- guards in any way comparable to the advantages to the el~ctorath that their elimination would brino~ about. Objections t~ such a course gen- erally revolve around fears t~at minority parties would not get a fair shake or that broadcasters uninhibited by the equal-time restrictions, would indulge in irresponsible political favoritisi~rt. Both fears seem to me unjustified. The equaL-time pro~trisions, so far as third parties are concerned, have become no-time provisions, becat~s~ for all practical purposes they restrict the granting pf time to those who have the funci~ to pay for it. The reason for this, of course, is that no broadcaster can afford to offer free time to the presidential candi- dates of 20 or so parties,~ and no broadcasting schedule could accom- modate such demanc1~ and still have an audience left for the major candidates. Far from protecting sigmiicant third parties, section 315 penalizes them, by lumping them together indiscriminately with the msignifi- cant. Some parties, such as this year's American Independent Party of George Wallace, can develop into meaningful forces in a campaign. Broadcasters ought to )~e free to treat them as such. Under section 315, they are not. As a matter `of fact, lai~t `week I received a f~aemorandu~i from my colleague who is i~i charge of GB'S news~ In it he said: We have been working for son~e time on a docum~ntary on (george Wallace. Obviously, he is newsworthy and can significantly affect the outcome of the 19C8 election. We had scheduled It for March or April. Now that lie has for~na1ly announced his candidacy, the lawyers have informally ruled ~that such a docu- mentary is not exempt from section 315 since It does not treat Wallace inciden- tally. Hence, we wouM be required, to provide equal opportunities for the minor party candid~'tes who have already announced aud who have no op~ositiQn. Accordingly, we have to abandon the documentary. This is a pretty stunning example of how `SectIon 315 cuts across our jou~na1istic obligations to the Amen- can people. At the very time ~when. Wallace is in `the news and becomes particu- larly significant, we are hamstrung b~ section 315. Third parties generally `are of three categories: those with `an his- toric background `of thoughtful criticism of the major parti~s. but whose significance varies widely over the years; those concerned with `~ single current issue on which `in a .gi~ien campaign they part 2Politleal parties: ` 1960 presi~entiai campaign: 1964 presidential campaign: ` Democratic. Democtatie. Republican. Republican. American Beet Consensus. Conservative (C. Benton Coiner for American TI~bird, President). Amerioaj~ vegetarian. Conservative (J~ Bracken Lee for Presi., Church of God. dent) Conseivative (C. Benton Coiner for Pres- Constitution (Merritt B. Curtis for blent. President). Conservative (3'. bracken Lee for Presi~ Constitution (Joseph B. Lightburn for dent). President). Constitution (Merritt B. Curtis for Constitution (Charles L. Sullivan for E~resideat). President). Con~titutjon (Charles L. Sullivan for Freedom Now, President). Freedom'Sociaiist. ` Far~ncr La~ior Party of Iowa. Independent. Greenback. Independent Afro-American Unity. Independent Afro-American Unity. Industrial Governwent Independent American. Liberal. Industrial Government. National Civil Rights. Liberal. National States Rights. National States Rights. Prohibition. ProbThition, Socialist Labor. Socialist Labor. Socialist Workers. Socialist Workers. Tax Cut. Socialist Workers and Farnier~, Universal. Tax Cut, Theocratic. Unpiedged Democrats for Harry Byrd. PAGENO="0030" 26 company with the major parties; and those made up of chronic mal- contents, panacea peddlers, or personality cultists. By a common treatment of all third parties, without regard to their political or civic significance, the equal-time restrictions impose as the sole determinant of whether they get air time, the cash `resources they have to buy it. Broadcasters, unable to give time to all third parties, significant or trivial, generally give it to none. And the useful purposes that respon- sible and relevant third parties can serve in a largely bipartisan sys- tern-reducing lethargy or `timidity in the major parties, sharpening really critical issues, and advancing bold and new approaches, for example-fall `by `the wayside, so far as air time goes. Because, except in the news categories exempt from section 315, and in the absence of third parties normally having financial resources comparable to the major `parties, the broadcasters' hands are tied. As for the possible biases of broadcasters, I have nodoubt that, like all citizens, they have their loyalties and preferences as individuals. But to indulge these personal attitudes in the conduct of the public service function of their stations would be a very risky business. A broadcasting franchise is a very precious thing. Nobody knows this better than a broadcaster. That the general devotion of the American people to the principles of fair play apply to the way broadcasters exercise their franchise has been made amply clear. No' broadcaster worth his salt would risk amassing a record of biased treatment of candidates Or parties. The Ame~iean people have had four decades of experience now with `broadcasting. During the intervals between election campaigns, when no' equal-time requirements are applicable, there is no evidence that broadcasters have favored one political party over another-even though partisan disputes `became major public issues. Coniplaints have been extremely sparse. It has. been no accident that the public trusts the fairness of broadcasters. The record shows that they have earned that trust.' In the longrun, the judgment of the people can be far better relied upon to insure fairness than any mathematical formula or any rigid regulation. The equal-time restrictions of section 315 provide nothing more than a mechanical formula that precludes broadcasters both from exercis- ing their judgment and from carrying out their responsibility. It is easy, and it is safe. Carrying out responsibility is hard, on the other hand, and making judgments is risky, But in this-as in all areas of the democratic experience-efforts and risks make for progress and improvement, while ease and safety make for reversion and stagnation. It is time for broadcasting to be freed of the section 315 restrictions. `There is no evidence that this would result in weakening the electoral process. There is command- ing evidence that it would strengthen that process. This committee could make an historic contribution in that direc- tion if, as a result of these proceedings, there could come a joint resolu- tion, modeled after but enlarging upon the provisions of Senate Joint Resolution 207, which was passed by the 86th Congress and signed by President Eisenhower on August 24, 1960, and which made the Ken- nedy-Nixon debates `possible. Senate Joint Resolution 207, you will recall, suspended the equal-time requirements of section 315, with regard to nominees for the offices of President and Vice President for the period of the 1960 campaigns. PAGENO="0031" 27 The test of experh~nce proved that suspension a success. A joint res- olution now calling for a 6-year suspension, inclñding nominees for all offices, would provide a test of further experience that wotild em- brace two general elections, an off-year election, and State and local elections at all levels. Results could be observed and reported back to the Congress not in a single isolated instance, but over a comprehen- sive series of elections. If any abuses arose, ways of dealing with theiii could be considered in the light of the facts rather than on the basis of fears and speculations. And a substantial advance will have been made in the resolution of a problem that has haunted and preoccupied us all too long and that has its roots in a legal anachronism that has long since defeated its own purpose. Dean BARROW. Thank you, Dr. Stanton, for your excellent contribu- tion to `the panel. Since the panel was introduced, Mr. Chairman, we have been joined by Prof. Louis Jaffe, Byrne professor of administrative law at liar- yard University. The comment on Dr. Stanton's paper will be read `by Mr. Her- bert'E. Alexander. It has not been duplicated in advance, so you will not find it among the papers before you. COMMENT ON PAPER NO. 2, BY HERBERT E. ALEXANDER Mr. ALEXANDER. Mr. Chairman, I appreciate the opportunity to appear on this panel before `this distinguished subcommittee. Dr. Stanton deserves praise for putting problems of political broad- casting in the context and perspective of democratic theory, and for relating broadcasting to the quality of American politics. But posing such questions can also lead one to conclusions at var- iance with his, and not necessarily as optimistic. Political broadcasting presents perhaps a classic case of conflict between the democratic theory of public dialog in free elections, and the economic freedom of the marketplace. The campaign interests of candidates do not `always coincide with the interests of the electorate iii full discussion; nor do they often square with the interests of the broad- caster in format design or time availability. It seems to me that elimination of section 315 will not, by itself, d'o very much to get very many candidate's the time they want in the form they want, on the stations they want. Section 315 may be con- sidered negative, as Dr. Stanton says, but it is so purposely, to protect candidates from discriminati'on. Section 315 may be repressive, as he says, but it is so purposely, to deter broadcasters from exercising favoritism and, by the `way, 315 protects broadcasters as well as candidates. In my judgment, for other than' presidential elections, the fairness doctrine is not an adequate substitute for the protection that section 315 affords to candidates, for fairness is only a debatable standard ad- rni'tting of after-the-fact administrative procedures. There can be no equity for a candidate once an election is lost. The question is whether it is in the best interests of the American people to turn over all decision's of free candidate access to a private industry. No matter how well intentioned some broadcasters may be, some candidates are going to get hurt. Scores of complaints and court PAGENO="0032" 28 cases `ai~e, ample testimony to the varying in1x~rprethtions of `both equal opportunity and fairness, andthe industry record in providing sustain- ing time leaves real doubts. Sihee section 315 is no hiiidrance when there are not more than two candidates~ as is most often th~ case in general. elections, how much free time does theindustry give when there are oniy two candidates? In senatorial campaigns in 196~, an FCC survey4 showed that tele- ~vision broadcasters did not provide significantly more sustaining time when only two candidates were running. There ~vere t~o senatorial candidates each in 28 State contests and there were more than two in eight States. Proportionately, as many TV stations in the eight States provided sustaining time for senatorial candidates as in the 28 States. A like analysis for radio and `television in 1966 showed that the aver- age time for major party candidates was about the same whethe~ or not there was a third party candidate. In 1966, of 133 television sta- tions reporting charges of more than $50,000 for paid~pølitioai broad- casts, 35 percent made no free time available.5 While broadcast costs increased, the ~tatis'tics suggest that the ratio of paid to free program time has been declining, and probably for the same reason-it is more costly to give free time just as it is to buy it. Of course, statistics may mislead in both directions. On the one hand, some free time that is now provided is not donated in prime-time pe- riods. On the other hand, some free time is offered arid is refused by candidates who do not like the formats offered Or do not want op- ponents to get equal exposure. These are reasons why I wonder how much more time would be utilized if 315 were repealed. Understandably, broadcasters are con~~ cerned `about format, but should they be in a position to dictate cam- paign strategy by putting offers of free time on a take-it-or-leave-it ba+sis? Many candidates would like more exposure than is provided through debates and interviews. Many candidates would like opportunities to speak for themselves on their own terms, even if they attract smaller audiences. Dr. Stanton says they could buy that time, but what if they don't have the money `available or, as likely, the stations don't want to sell them program time? Some stations woift sell program time for th~ same reason they won't give it free-fear of losing audiences. Thus1 broadcasters often are, in effect, in a position to substitute their judg- ment for that of the candidates. Dr. Stanton idealizes confrontation politics. Well, it can be excit- ing for the public, and it probably can bring increased public inter- est, but to put it bluntly, many candidates are simply not willing to confront either an opponent or an issue, even to get free time. The cost `of political broadcasting is high and rising, and the end is not in sight. There are potential CATV costs as both cities and rural areas get wired and candidates c~n be sure to reach only their constituents. Color TV will bring higher time and production costs, Yet increasingly, the bulk of money spent on political broadcasting, 4Federal Communications commission "Survey of Political Broadcasting, Primary and General Election Campaigns of 19d2' (Washington, D.C.; USOPO, 1963), pp. v-viii. 5Federal Communications Commission, "Survey of Political Broadcasting, Primary and General Election Campaigns of 1966" (Washington, D.C., USGPO, 1967), pp. ~ PAGENO="0033" 29 about two-thircis~of it in~recent years, goes for spot aunoun~ewe~ts, not p~ograw, time, Both stations and candidates way. prefer spots as a matter of strategy and convenience, the statious because they fear losing audiences to others runniug popular e tertahunent, and e~ndi~ dates because they know the attention span of the average listener i~ short, and because the viewer hasn't time to change the dial. If section 315 were e'liininated, or alternatively, as some have ad- vocated, if stations were required to give `a certain amount of free time as a conditionof licensing, I would like to pose several questions: Would either alternative get around the problem that the time given would presumably be program time, so might not the candidate spend as much as before to buy the spots he wants? Thus, one purpose would not necessarily be carried out, to help reduce campaign costs for candi- dates. One doubts that a prohibition of spot announcements is either good public policy `or constitutional. `On the other hand, is there justification to give free spot announce- ments which the candidate probably wants but which are hardly likely to be ~difying or to contribute to the public dialog? Would either alternative get to the problem of who is to decide who is to get the free time? Would the Congress decide that only Federal candidates should get it,. or would the stations decide, as they do now, or the political parties, or would the FCC apportion the time? We are dealing with limited time availability for unlimited num- bers of candidates. There are more than 500,000 public offices filled in elections in this country, and campaigns are even more numerous because of the open nomination systems. `Obviously, most candidates for most offices never get near a microphone or television camera with either paid o'r free time, so the problem immediately is reduced. But if 315 were simply abolished, wouldn't those stations willing to give time all seek the most popular or visible contests? The most ap- pealing candidates usually attract funds as well, `but w~h'at a'bout other candidates in less visible contests or in one-sided contests where one candidate has excessive funds available for broadcasts? Too, the air waves cross `political boundaries. T'here are, forexample, 40 or more congressional districts in the New York metropolitan area, some in `Connecticut and New Jersey, reached by New York stations. if the several `stations in New York agreed to divide up the districts and each take a share, would it be collusion on the part of the broad- casters, subject to antitru~~ action? What stations would get the color- Eul candidates in the silk stocking or reform challenged districts and what stations would get the one-party dominant districts in which there is hardly a contest or a modicum of interest? For `another example, there are no VHF commercial television sta- tic~s. in New Jersey. A candidate seeking time on New York or Penn- sylvania stations finds his message reaching mostly out-of-staters who do not vote in New Jersey. The few statewide candidates from New Jersey who do buy such time know th~y are throwing away 75 cents of every d~liar before the broadcast begins. Would these `stations be willing to give double time to serve these needs `in adjoining States, or could they be required to do so ~ Given these kinds of considerations, the need, it seems to me, is to weigh the question of whether for the fe~ candidates who might bene- fit from abolition of equal-opportunity provisions, it is worth abolish- ing the protection that section 315 now affords for all candidate.~. 92-602-68-3 PAGENO="0034" 30 On the other hand, there is no need to sit still. Traditionally, section 315 has worked least well in presidential elections where invariably there are a dozen or more candidates. The suspension of 315 in 1960 was useful in permitting the so-called great debates, and I think it is use- ful to treat presidential campaigns differently than others by periodic suspensions of 315, subject to close congressional review. A possible approach to the minor candidate problem would be to devise a policy of "differential equality of access," a doctrine that would recognize our predominant two-party system while giving all contenders some chance to be heard. "Differential equality of access" need not entail a complex rating system according to the size of the vote, the size of membership or the size of petition. It could simply state that major candidates get equal time, that minor candidates get equal time, but that the two categories do not get time equal to each other. Broadcasters are correct in saying that the industry already bears a relatively large share of political program costs, and it would not be equitable if the industry were asked to assume the entire financial burden Therefore, I agree with a proposal of former FCC Chairman E. William Henry, who suggested, that the Internal Revenue Code be amended tO give incentive to broadcasters to program free political time by permitting them to deduct from their taxable income not only out-of-pocket expenses of free `broadcasts as they do now, but also to deduct at least a portion of the revenue lost.6 In this way, responsible broadcasters would benefit by serving the public at election time, and some of the burden would be distributed to the taxpayer. One other proposal I would make would be to broaden the definition of a news program to include any joint or simultaneous appearances of major presidential candidates. This would give broadcasters the wider scope they seek to present such figures on the same program, including program series for the duration of a campaign. Recognition would thus be given to the special news quality of such appearances. Min~'r candidates would not have to get equal treatment unless broad- casters decided their appearance was equally newsworthy.. This formula would have to be watched closely and if it worked suc- cessfully at the presidential level, it could be tried for other contests, but under controlled circumstances. P~rha~ps radio and television `have the p~tential to raise the level of political education and participation, as Dr. Stanton says; but so far the evidence is conflicting. Studies of the Survey Research `Ceuter at the University of Michigan `show citizen interest in political involve- ment fluctuating during recent decades, while there was a tremendous increase in television coverage. Turnouts in presidential elections in 1952 to 1960 were higher than in 1944 and 1948, but not proportionately higher than in 1936 and 1940. The voter turnout in 1956, deep in the television era, was less than 1 percentage point higher than in 1940. Moreover, there has been no significant increase in off-year congressional elections during the tele- vision era. 0 Address of E. William Henry before the Commonwealth Club of California San Francisco, Jan. 15, 1965. Press Release, p. 14. 7 Campbell, "Has Television Reahaped Politics ?" Columbia Journalism Review. I (1962), pp. 1O-i~. , PAGENO="0035" 31 It is time to begin a serious dialog on the problems of political com- munications. I commend the beginning this subcommittee in making. The continued strength of our democratic institutions may d~pend `on finding the answers. Dean BARROW. Thank you, Mr. Alexander. We are now at the point of a discussion of these two papers. I am sure I need not point out to the members of the panel that our reporter will have his problems in identifying statements with each spokesman, so if you will, let me identify you and perhaps that will be helpful to him. I will follow the procedure of asking the person who gave the posi- tion paper to give the first brief reply to the comments upon the paper. Dr. Stanton? Dr. STANTON. Having heard of Mr. Alexander's remarks for the first time this morning, I am not able to make this as tight a comment as I would like to make it. It seems to me, in the first place, that the survey of what has hap- pened in the past in the two-contest situations and the three or more contest situations isn't the real test because it seems to me that if you ~t'arted giving time under 315 to the two~candidate situations that in time you would encourage third, fourth, and fifth candidates to appear. This has certainly been the history in the presidential campaigns where we, as you pointed out, have had a groat deal of difficulty under section 315. I am not suggesting that what I `am proposing this morn- ing is the answer to this problem for all time. I do suggest, however, that `an extended test is the best way, it seems to me, to see just ho'w well this might work. We did it in 1960, and I think the evidence is pretty good. You talked about one of the difficulties with the candidate and the station having to do with the question of a take-it~or-leave-it attitude. I believe that the history of the campaign of 1960 in the presi~dential debates would deny that we went at that on a tal~e-it-or-leave-it basis. That format wasn't developed in the office and then taken to the candidates with "Here it is. Take it or leave it." We sat down with the candidates' representatives and worked out what appeared `to all sides `to be a fair and equitable use of the medium. This has certainly been `the case in individual debates that have been held by individual stations in other campaigns. So I think it is unfair `to say that the broadcaster has taken a take- it-or-leave-it attitude. Moreover, I think that it is improper to say that there are stations who will not sell time because they don't want the political broadcast in the schedule because of the effect it might have on ratings. I think we are way beyond `that situation in this country. This is talking pre-Worid War II kinds of talk, it seems tome. Radio and television in this country have become so important to the fabric of o'ur political life, and news broadcasts have become so important in the schedules of the stations because they are important to the people. So I think even in the quote that was read by Dean Barrow this morning in his opening remarks, and again I wish I had had a copy of it before I made my direct statement, in reading from the testimony in the Great Lalee$ case, if yOU look at that description of a well-rounded program schedule, the very last thing that is listed is news, and yet news today is the most important single program type in the program schedule. PAGENO="0036" 32 Back in the early days, news had a much less important position in the schedule. So I think the management of broadcasting stations today do not look upon the political broadcast or the news broadcast as something that they want to avoid. This is the way to be in the main- stream of your community. You went on to say that perhaps one way to accommodate the situa- tion would be to put these debates in news broadcasts. Unless you are going to suggest that news broadcasts be expanded in time, I don't see how to accommodate them, and I don't think it is proper to deny the public its regular flow of news during the political campaigns, to force the news dowti to a minimum in order to accommodate the debate. This seems to me to be an unwise approach to follow. You raised some points about the costs of broadcasting. There is no question about that. That cost is a cost for the user as well as it is for the broadcaster. But I do believe that more time would be given, and there would be more dialog and more confrontation, and the public would be better off, if we tried to lift 315. You mentioned in your final remarks, as I recall, some statistics having to do with the lack of turnout or the fact that there wasn't a sig- nifidant increase in turnout in elections since there has been .a high use of television by the public and by the politicians. I am not sure that you can make that correlation as clearly as I think you presented it. It seems to me that there are many other factors that have to do with the turnout problem. These include our antiquated registra- tion techniques, the fact that people are much more mobile today and, therefore, *disenfram~hised in many places; the voting hours are still very restrictive in terms of taking care of the voter; the whole subui~ban traffic problem in getting to voting booths and so forth-4hese are all problems that have a bearing on that. I am not saying that they are exclusively the problems, but these a~e things that also bear on that. So I think we have t~ look at that statistic with a jaundiced ey~, if you will, because I don't think that correlation is the final answer. At any rate, as I said at the outset, I don't think I have all the an- swers here. All I am suggesting is that I think we can advance the whole cause and have another look if we were to take the approach of a 6-year test. Dean BARROW. Do you want to respond immediately to this? Mr. ALEXANDER. I would respond very briefly to two Or three points. With respect to the format of the Great D~bate~ in 1960, I am not denying that the candidates had a good deal to say about the format, but I am saying that the format was one of confrontation, and that the networks would not willingly have given the same time a~ailthle for set speeches hack-to-back if the candidates had preferred th~iJt procedure. That is the point I was making a~bout broadcasters putting the time availability on a take-it-or-leave-it basis. With respect to news and documentary broadcasts, I think there are many opportunities for the major candidates to appear. Because these broadcasts are newsworthy, I think they should be treated in a, different way. Every time a public person goes on "Face the Nation" or "Meet the Press," it becomes an object of newsworthiness. The next morning what he says 1~ m the newspapers~ It is,in effect, manu- PAGENO="0037" ~33 factured news, not hard news, growing out of the fact that he was interviewed and he made some statements. So I think there should be in campaigns these same opportunities and they, in a sense, would give more exposure to the major candi- datms for public office, because they have bigger audiences than would necessarily straight political broadcasts. Dean BARROW. Mr. Stanton. Dr. STANTON. There is no question that you are right that the ap~ pearance of candidates in a debate would be picked up in the news bro'a~dcasts. Go hack to history in 1960 and that was exactly the case. But that is taking a brief mention out of the context of the full broadcast. That isn't the way to have a confrontation. in my opinion, to use brief takeouts in a news broadcast. This happens every Monday, and every Sunday night, as you `say, on "Meet, the Press" `and "Face the Nation." But that isn't manufactured news. I take exception to that. These men are not manufacturing news. They are making news. But I would make the distinction that it is not a synthetic manufac~ tured affair. Back to one other thing. On November 21, 19~33, and if yo'u will remember the d'ate, that was the eve of the terrible tragedy in Dallas, I wrote John Bailey and at that time the Honorable William E. Miller, then chairman of th~e Republican National Committee, a letter hoping to get ready for the plans for the 1964 campaign with the two major presidential candi- dates, in which I was offering them the facilities not for fixed, debates, but for an opening statement, then 6 weeks of some type of confronta- tion that could be worked out, and then `a closing broadcast which would be completely under the control of the candidate so that he opened the 8 weeks between, let's say, Labor Day and the election with an opening statement as he saw the campaign. Then we had the confrontations, still to be worked out in format, and then a closing hour on the Sunday night before the election in which they could summarize the campaign in their own fashion. I only introduce this here to indicate the willingness on the part of the broadcaster to try to be flexible in working out these things, and it js not a `take-it-or-leave-it situation. Dean BARROW. May I point out that we have allocated 4~ minutes in this morning's session to Paper No. 1, which we passed over. If we stick to the schedule, there are about 12 minutes left for discussion of this one, even if we do not take the usual break. Is it the pleasure, Mr. Chairman, to continue straigl4 through with- out a break in the morning session? The ChAIRMAN. Might I say this: that we have decided that the sub- committee just doesn't have the time to question D~. Stanton. We are interested in what you gentleman have to say. We will forgo our ques- tioning. If we have any questions, .we will put them in writing to Dr. Stanton or Mr. Alexander. Would it be possible for you to return tomorrow, Dr. Stanton? Dr. STANTON. Tomorrow aftç~rnoon? The CJIAIRMAN. Yes. Dr. STANTON. I have a very critical meeting tomorrow. PAGENO="0038" 34 The CHAIRMAN. Very well. We will try to go ahead until you are finished with the next paper. Dean BARROW. Then we will continue the discussion with the panel for another 10 minutes or so on this paper. Mr. LYONS. Both Mr. Lower, whose paper comes next, and mine, which discusses his, go into this question. It would save the time of the panel if we withheld our comments and perhaps it would save some duplication. I can make my statement in this 1~-minute discussion or withhold it, as you like. Dean BARROW. Mr. Lyons has made a valuable suggestion, I believe, so we will go, then, into Paper No. 1 by Mr. Elmer Lower, entitled "The Role and Influence of Radio and Television in the Formation of Public Opinion: Comparison with Newspapers, Magazines, and Spe- cialized Journals of Opinion." PAPER NO. 1-~ELMER W. LOWER: THE ROLE AND INFLUENCE OF RADIO AND ~ELLVISION IN THE FORMATION OF PUBLIC OPINION: COMPARISON WITH NEWSPAPERS, MAGAZINES, AND SPECIALIZED JOURNALS OP OPINION Mr. LOWER. Thank you, Mr. Chairman. My name is Elmer W. Lower, vice president of the American Broad- casting Co., and president of ABC news department. The topic on which I have been invited to speak is the impact and influence of radio and television in forming public opinion as com- pared with that of newspapers, magazinOs, and specialized journals of opinion. I especially want to make this comparison within the context of our theme for this panel discussion-the fairness doctrine and related subjects. Let me begin with the obvious. In this complex, interdependent world of today people-now as never before-need to know what is going on. They want to be able to find out easily, and they want to be able to find out fast. These factors, I think, account for the growing importance of all the information media-and especially of broadcast journalism which presents the news quickly, concisely, and in a manner that is easily understood. I wish there were some exact measuring rod that could enable us to determine with precision the comparative impact of the media. Since there isii't, what I am going to try to do is to draw on what statistical and survey information is available and draw as well on my 35 years of experience in both broadcasting and print in order to reach what I think are valid conclusions and also raise some useful questions. First off, let's look at what the polls tell us. They tell us that over the last few years, the broadcast media have replaced print as the public's principal source of news and information. More specifically, the polls reveal that since 1963, television has been the most popular news medium-the one Americans turn to for most of their news. They tell us further that television is the medium that people consider the most reliable, the one they would be most inclined to believe in the face of conflicting reports. PAGENO="0039" 35 If we take together the cpmbined influence of television and radio, the public's reliance on broadcasting is shown to be even greater-far greater than the reliance on all other media combined. The polls-a series of five of them-were conducted by Roper Re- search Associates for the Television Information Office of the Na- tional Association of Broadcasters, between 1959 and 1967. Each one used a sample of about 2,000 people-representing a nationwide cross section of the adult population. In the first poii, in 1959, ~television ranked second to newspapers as a source of information. In 1963, TV took the lead for the first time, and increased that lead in last year's poll. On the second point-which medium to believe if there were con- flicting reports, television has rated highest in each of the last four polls. Last year it was considered most reliable by almost twice as high a percentage as the runner-up-newspapers. There is a great deal more evidence, some of which I will take up later, that makes clear beyond question the enormous influence of broadcasting as a news medium. But there is one crucial legal difference between broadcast and print news that I think we ought to keep in mind from the outset. The newspaper or magazine journalist is influenced in reporting the news primarily by the traditional canons of American journalism: mainly, the stress on truth, accuracy, and objectivity. Of course, the broadcast journalist also keeps these uppermost in mind. But he must also keep in mind that he is working in a medium that, unlike print, operates under Federal regulation that has an im- pact upon what is disseminated. The most influential of these Federal regulations, of course, is the fairness doctrine. I want to consider its effects more fully later on-after we have looked at some of the other differences between the impact of the broadcast news media-with special reference to television-and that of newspapers and magazines. Television's greatest advantage, of course, is that it can give the viewer a closer approximation of concrete reality than any other medium. It makes direct use of two of the five senses-sight and sound. Our object in the news business is to tell it like it is and television can do this by actually showing things as they are-or at least as they look and sound. Live television can convey these impressions instantane- ously-at the very moment they are going on. There is no need to wait for the next edition. Russell Lynes, the Harper's magazine editor and critic, recently wrote of television: It reports ably after the fact, but It is when It Is a substitute for one's own eyes, watching action as it happens, that it is more miraculous, Who will ever forget the sun reflected in the eyes of Robert Frost so he could not read his poem at President Kennedy's inauguration? Who will forget the McCarthy bearings, the moment when Ruby shot Oswald, the smoke billowing from burning Detroit last summer? Television Is the most remarkable transmitter of news ever devised because it is the first to be instantaneous. Lynes might have mentioned radio here, too. It has been providing instantaneous coverage for many more years than television, although only in sound. Television-especially live television-has another important characteristic. Uniquely among the media, it. affords people PAGENO="0040" 36 a sense of participation in great events. The most striking example of this came after President Kennedy's assassination. Much has been said about the way television reported the events of those four terrible days. It has been called TV's finest hour. I think it was. But not enough, I think, has been said about the way television united the Nation in those dark hours. For the first time, all Americans, from border to border and ~bast to coast, were taking part in and sharing the same experience. Tele- visiOn brought all of us closer together a~ shared experiences always do. And it provided this vital service at a time when national unity was especially essential. No other medium could possibly have done that. I think that the unmatched outpouring of grief at President Ken- nedy's death was itself-U-in some part-a reflection of the influence of television. Through that medium, millions had gotten to know him as no generation of Americans has ever known a President before. Most of us saw and heard him almost every day-~-and became familiar with his lovely wife and his children. Television made John F. Kennedy, as it had Dwight Eisenhower before him, real to us to an unprece- dented extent. Television has added a whole new dimension to coverage of the Viet- nam war. Some, like critic Martin Maloney, have even gone so far as to call it the TV war. Never before has the agony of war been brought with such brutal and ~rnremitting force into our own homes, intruding daily into our lives. No wonder ~o many people are upset by what they see on television. It is something they have never seen before-ra~ stuff, to say the least, that burns itself into the mind. It is more reality than many people want. But to give people less than the truth ~voiild be the violation of a public trust. This applies as well to the continuing racial story, of which the broadcast media have alsO provided unique and sometimes disquiet- ing coverage. As men in politics, I need not give you a detailed evalua- tion of how ~television has influenced tour profession. Suffi~e it to say it has created no less than a revolution, vitally affecting everything from campaign styles to the kinds of candidates who enter the races and the color of the shirts they wear. In 1968, politics is television's biggest story, as it is in every presi- dential el~ction year-~and it is a story TV is uniquely equipped to tell.. Through television, the whole Nation has already begun taking part in the campaign-looking over the candidates, examining their reéords and evaluating them as people-~each voter in the privacy of his living room. From the same vantage point, every American will be able to follow develppm~n~ts at the conventions better than many of the dele- gates. I remember in 1~64' seeing many delegates clustering around television sets in the convention halls to get a better idea of what was going on. Aad on election night, of course, television, serves as the speedy, de- pendable herald of the Nation's decisions at the polls. How. has. the. growth of television affected the other news media ~ How, especially, has it affecte4 the role of the newspaper? Some of my chauvinistic colleagues in television suggest that our emergence has provided one vital new role for the newspaper-that of providing TV listings. More seriously, I don't know that tele- PAGENO="0041" 37 vision news has seriously impaired the role of the newspaper. Certainly broadcasting has taken the edge off the impact that newspapers once had as the only daily news medium. Now both radio and TV give us our news before the newspaper and often present it more graphically. And now the James Restons and Joseph Alsops have to compete as pudits with the Eric Sevareids and Howard K. Smiths. But I think the newspaper continues to remain indispensable. We can complement it, but never replace it. That is a lesson those of us in broadcasting learned very, well during several long newspaper strikes. For example, on many television stories, the kind of coverage we can give is limited by the medium. Where we don't have film or other visual materials to illustrate a story, we can rarely have our anchorman tell it for more than about 45 seconds-about 100 words. Front page newspaper stories fre- quently run more than 500 words. So the newspapers often do a more thorough job. I hasten to add that this is not always the case. The advent of the half-hour television news program has brought with it more complete coverage of daily stories, and what we call extended reports. These are in depth treatments of matters of news importance that can run any- where from 3 to 10 minutes. Many do as good a job of depth reporting as does any newspaper. So do television documentaries. How many newspapers provided as much coverage of the Warren report as did CBS news, with its four exhaustively researched hour-long programs? How many have pro- vided coverage of the Vietnam war as penetrating as ABC Scope which, in the course of 107 weekly half-hour documentaries devoted solely to various aspects of the war, examined just about every con- ceivable aspect of it? In the main, however, there is no question that newspapers still give more complete coverage of far more stories than we do. There is no question, either, that the papers aild wire services, with their much larger reporting staffs, do a far more complete job of gathering the news than we in broadcasting do. And if television often has a more dramatic impact on its audience, that of the newspaper is usually more permanent. On radio or tele- vision, a story once told literally disappears into thin air. A viewer can- not go back and cheek a fact, ponder something he doesn't understand, or look up what he may have missed. Nor can he cut out an item and file it away for future reference. Incidentally, I would like to see us do something about this. There is enough good, original reportage on radio and television today that it deserves a permanent record-and the attention of people who just didn't happen to be tuned in to the ABC evening neyvs at 7:18 last Mqnday night. Perhaps someday we could put out a weekly journal to include at least the verbal record of exclusive stories of importance. Many of the points about newspapers apply ~s well to magazines. In addition, magazine editors have more time to prepare their mate- rial and more space in which to present it in greater depth. Some of the most distinguished reporting and commentary in the magazine field appears in the smaller, more specialized journals of low circula- tion. PAGENO="0042" 38 But television can bring the same kind of material to the attention of the mass audience. The respected quarterly, Foreign Affairs, has a circulation of about 60,000. So an article on Africa appearing in it can attract only a limited audience. While some in that audience doubtless watched ABC's 4-hour docu- mentary on Africa last September, millions of others who do not read Foreign Affairs had the opportunity for an in-depth exposure on this subject. ABC's "Africa" had an audience of 40 million people. Having made all these comparisons between broadcasting and the other media, I would now like to look more closely at the crucial one I mentioned earlier-Broadcasting alone operates under the FCC fair- ness doctrine which requires the presentation in flews and documentary programs of varying points of view on controversial public issues. While ABC has never advocated the entire withdrawal of the fair- ness doctrine, I do think we ought to recognize that the existence of the doctrine raises a number of interesting questions. I would simply like to pinpoint some of those questions as food for thought without at- tempting to answer them in this statement. I thin1~ this committee will and should go into these questions much more fully i~ the course of its panel discussions. The first question-and I think the most important-is whether the doctrine violates the first amendment to the Constitution. There is no question that it imposes on broadcast journalists a lim- itation that does not apply to their colleagues in the print media-the requirement that broadcasters present points of view that they might otherwise choose not to on journalistic grounds. Is this an abridge- ment of freedom of the press? Or, on the other hand, is it a vital, legiti- mate way Of assuring that the broadcaster will not use his control over one of the limited number of public airways to promote private~ parti- san policies I Secondly, since broadcast content in this sense is now regulated by the Government, may this not raise in some broadcasters-rightly or wrongly-the fear that if they present material unsympathetic to whatever administration is in power they may face the threat of re- prisal from their regulator? Thirdly, does the requirement for an overall treatment of controver- sial issues make for a wishy-washy, on-the-fence quality in broadcast journalism that stifles its ability for hard-hitting investigatory report- rng? The fourth question I raise deals with the subject of comment and opinion. Traditionally, the print media provide opportunity for the most forthright expression of all kinds of opinions. Journals such as the New Republic on the left, and National Review on the right are devoted to the development of particular points of view. Local stations, like magazines and newspapers, can present their opinions. But broadcast editorials, unlike those in print, must by regulation allow for the presentation of responsible opposing view- points. And there is the separate consideration that no opinions are expressed by the national networks. Does this situation also detract from broadcast journalism's role in contributing to the discussion of vital issues? Finally, what about the limitations imposed on broadcasters by sec- tion 315 of the Communications Act? Does its existence discourage op~ PAGENO="0043" 39 portunities for discussion by major political candidates because of the requirement that all official candidates-serious or not-must be given equal time? Here the difference in approach between broadcast and print jour- nalism is most graphically illustrated. While section 315 was suspended in the 1960 presidential elections, it has been in force ever since. And it is going to cause us many prob- lems in this election year as it has in the past. ABC's position-as pre- viously expressed-is that section 315 should be suspended on a trial basis for all candidates for public office-National, State, and local- until after the coming election. It is our feeling that this temporary suspension as to all candidates would give everyone concerned a valid basis to judge whether a per- manent suspension as to some or all of these offices would be desir- able. In the alternative, we favor a proposal which would permanently exempt presidential and vice presidential candidates from the require- ments of section 315. I think my comparison of the broadcast and print media-with respect to the unique qualities of each, and the Federal regulation of one and not the other-makes one thing clear: Each has its own unique kind of impact and influence on the public. No one of the news media has a better claim on informing the public than any of the others. Each complements the others. Complete news coverage comes from a combination of all of them. Perhaps competi- tion among the media is the greatest protection in that it helps the people to determine for themselves where the truth actually lies. Taken together, the news media best accomplish what each one strives for individually-a better informed America that more fully understands its problems as the first giant step toward overcoming them. Thank you. Dean BARROW. Thank you, Mr. Lower, for an excellent contribution. Mr. Louis Lyons will comment on paper No. 1. COMMENT ON PAPER NO. 1, BY LOUIS M. LYONS Mr. LYONS. Thank you. Elmer Lower's statement is characteristically fair, informed, and covers the waterfront. I find little to dispute. My own experience for two-thirds of my working life was with the newspaper and the last 17 years in broadcasting news and public affairs over an educational or noncommercial television station. This is not quite the same thing as the commercial bi~'oadcasting that Mr. Lower has discussed-much short of it in resources and in audience reach. I do not have to train myself in split-second timing to weave the news around the commercials. But I do know the limitations of TV time to do a satisfactory news report in 15 minutes. You just can't do it. At best you cover the front page news, almost nothing of what's inside the paper. I reach for the New York Times next morning to check whether their front page has anything, other than local to New York, that I missed at 7 o'clock last night. This is because the Times undertakes to put its front page in perspective. PAGENO="0044" 40 Eut I find a close reading of such a paper, and of the *hole range of peibiodicals, indispensable to doing an informed news report. Without that, my. report, if just from the agency wire, would lack the back- ground to give such meaning, depth, and continuity a~ justifies an educational station having any news program at all. One of the contributions of television has been to force the news- paper to go into more depth in background of the news. For TV gets the news first. The newspaper must try to supplement this, to give more dimensions.to the news. The TV report catéhes the headline reader and probably satisfies him with as much as he wants to know about most things most of the time. It catches even people who can't read at all or wouldn't bother to. Thus, it certainly extends the number of. people exposed to informa- tion that they would not acquire by reading. It unquestionably incites many to turn, at times any~ray, to more information from a newspaper. I have no doubt that TV gradually develops newspaper readers and the newspapers in turn develop readers for magazines and books. But television cannot or does not do much of what makes certain essential reader servicOs of the newspaper. It does not list the votes of Congressmen on civil rights It does not cover the city council or the school cOmmittee or keep tabs on the, regulation of utility rates. It cannOt provide the needed text of the riots commission, or the cables on the Tonkrn incident, or a Presidential message on housing, or the farm program that needs to be read in detail to have meaning. It does little or nothing in the whole area of criticism-books, theater, music,. art, that affects public taste, although TV certainly ha.s a total effeç~t on publictaste greater than all other media. What TV does do incomparably is live coverage of events that can be scheduled, to get the cameras set up and the commentators mobi- lized-the national convention, inauguration, election, Presidential press conference. It is magnificent in covering sports events. It drives home with indelible impact the condition of migrant workers, the. race conflict, the Vietnam war, a space launching. It gives us a sense of considerable acquaintance with the public men who seek our votes. It can, when it chooses, as Edward B. Murrow show~cl, explore the great issues and give them an immediacy and reality that the printed word cannot match. It stretches the imagination to comprehend the importance of things that had hardly reached our consciousness by reading. I would not limit the influence of television to what we call news and public affairs. Its influence is pervasive, often subtle. The cracks of the Smothers brothers about politicians and institutions and our mores are not to be discounted. Or, in another direction, the frequent infiltration of the military into big football games must be more appreciated by Secretary Rusk than by Senator McCarthy. People are probably influenced more when they are caught off balance. Broadcast music and plays bring them to people who never would have them. And it may well be that such an infrequent event as a 4- hour African program is more instructive to many than day-to-day news reports from Africa. PAGENO="0045" 41 The intimacy of the broadcast is a dimension beyond ~the printed word. Mr Lower spoke about this, I thought, very effectively People feel acquainted with the personality of the broadcaster whose voice and features are familiar night after night. I know that even on a small educational station, my broadcasts bring me more mail than IL or any of my colleagues e~perienocd when I was covering top stories on a newspaper of several times the circu- lation of our station. This intimacy is a real factor in the confidence of viewers that Elmer Lower mentioned. As one who has worked both sides of the street, I do not fully accept these statements of greater confidence in broadcast news. The newspaper has more time to make its report accurate and ade- quate. The newspaper reader has. a better chance to detect error. I think the broadcaster gets off more easily if he smiles and looks pretty. And many people can't remember what they heard~ If they come in at the middle of a broadcast and get a confused notion, they are apt to assume that the part they missed would have cleared it up. Then I think there is a feeling about newspaper headlines, that ~they look sensational. The broadcaster escapes that, although some try to pitch their voices up to overcome this deficiency. Then we have, I think, some hangovers from the days of intensely competitive yellow journalism That is just newspaper talk W~ haven't yet developed an equivalent cliche about broadcasting. We have been considering mostly television performance in terms of what the great networks produce. As Mr. Lower says, though, if you don't happen to be at home at that particular time, you can't turn back and pick up the TV program you missed. Our educational station lii Boston repeats on weekends the most important programs of the week. This is a very appreciated service. But in very many areas, the network programing is not typical TV fare The local news broadcasts, outside a few metropolitan centers-- .such as parts of New England-are parochial to trivial, and the rest of the fare in prime time is more to be compared with what the local movie theater dispenses than with the content of a good newspaper. The local station does not compete at all with the newspaper in adequate reporting staff, nor will it give time for adequate treatment of public affairs. It is primarily an entertainment medium. The journalistic side of broadcasting, even in the networks, is incidental to entertainment, and even the talent sought in the news broadcaster is more as performer than analyst of news. Eric Sevareid is unique. The pace of change and the urgency of our public affairs have made information of contemporary events increasingly important. The need of the citizen is to be informed. TV on one side and the magazines on the other, have become increasingly journalistic. They have moved into what used to be the province of the newspaper. Television has not yet developed this side of its programing to do the full job. The magazines can dolt in more depth than the news- paper, with more time for consideration. Look at the March issues of PAGENO="0046" 42 the Atlantic Monthly and Harper's. Each is entirely given over to a single report in depth. This is, to be sure, unusual. The Atlantic had Dan Wakefield exploring for 4 months the mood of America in relation to its two wars, in Vietnam and in our cities, for this one article. Harper's has Mailer's personal report of his participation in the march on the Pentagon. Two very different approaches to what's going on. Paperback books on a great event can be brought out almost as fust as the Sunday newspaper to join the media of journalism. I would have little question that the impact and influence of TV is greater than that of the newspaper and all other print media, but that TV does not fully compete in journalistic performance with the printed media. Of course, with either TV or the newspaper, the quality of service *depends on who is running it. But the differences in structure, purpose and tradition are signifidant. The newspaper is almost equally dependent on advertising revenue. But it had a couple of hundred years to develop certain minimum standards before the day of mass advertising. It has its own autonomy. Its articles and departments are not prdduced for advertisers or tailored to the prescriptions of advertisers. It does not determine `whether to have an editorial page or a sports department or a politi- cal column by the question of whether it can find a sponsor. Its sponsors are the whole range of advertisers who accept the total function of a newspaper as a productive channel to reach the public with their ads. But the newspaper sdp'arates news from ads and keeps ads off the front page and the editorial page. The newspaper has a character of its own-I mean a good news- paper. it is not the personality of a hroa~icaster. It includes many personalities but the whole of it is more than that. It is an `institution in its community whose readers' expect it to' serve a certain role- information, entertainment-and also as a civic force in their public affairs. In this full sense `of what journalism is, TV still has to develop its journalistic role, `and its primary energies are directed otherwise. I will not take time for any separate consideration of radio. My own broadcasts are simuica~ts because for its first 5 years WG-BH was only in FM radio. I know many commuters habitually listen to the news report on their car radios ~ho used to read a newspaper on a train. I am homesick for the more relaxed time of radio-time for an easy conversation. We put many fine lectures and panel discussions, cham- ber music, poetry, on radio that wouldn't get a show on the 10 times as expensive television. My programs are repeated at the end of the evening on radio, not on TV. As to the faiirness doctrine, I will settle `for Elmer Lower's statement, and I `found Dr. `Stanton very persuasive. In 17 years of broadcasting, often stating vigorous views and inter- viewing on controversial issues, and having complete independence of any news policy or supervision, I have had no real problem. On the rare occasions when we have had to give eq~ual time, it has been accidental. We didn't know there was any other side to exploring some situation that seemed of general concern. PAGENO="0047" 43 Or if we have asked a legislative leader to explain some proposed structural change in government, it would turn out, not that there was opposition to the issue, but that he had an opponent for his seat who expected equal exposure. This has wasted a little time. We have wasted more time and bored more ~eople when I have had to moderate a candidate's night, to which we give all the eveñiug, per- haps in cooperation with the League of Women Voters, and we have had to present the Prohibition candidates and the Socialist-Labor can- didates and so on for every State office, so that we couldn't go into the congressional contests in any conceivable timespan. I do feel strongly that, in presidential years at least, the rules should clear the decks for the great debate, not make it so cluttered or ham- pered as to be unmanageable. Let me add that I think the Prohibitionists et aL should be given an inning, at least on an educational station, as part of the total Amer- ican scene. But not that we should be obliged to include them, at a moment when it is totally irrelevant to 99.9 percent of the public, so as to make it impracticable to perform the essential service to present the alterna- tives the electorate faces election day. Dean BARROW. Thank you, Mr. Lyons. Mr. Dn~oELL (presiding). Dean Barrow, the staff advises me it would be appropriate to request at this point that the legislative history of the fairness doctrine be inserted into the record of the hearings. Without objection, that will be done. (The document referred to appears onp. 183.) Dean BARROW. May I take this opportunity to commend Mr. Daniel J. Manelli, of the ~ staff, for the excellent work he has done in the compilation of the legislative history. Mr. DINGELL. Thank you. I am sure those words will be most pleas- ing to him. Dean BARROW. Mr. Lower in his paper pointed out the different treatment which is given under the fairness doctrine of broadcasting and to the news media. As I happen to have before me what I consider to be the best judicial statement of the reason for that, and it is very brief, I think 1 would like to read it into the record. This is from Office of Communication of United Church of Christ versus FCC, which appears in 359 Federal 2d 994. This was handed down in 1966. This brief quotation is frOm page 1,003. A broadcaster has much in common with a newspaper publisher, but he Is riot in the same category in terms of public obligations imposed by law. A broadcaster seeks and is granted the free and exclusive use of a limited and valu- able part Of the public domain; when he accepts that franchise, it is burdened by enforceable public obligations A newspaper can be operated at the whim or caprice of its owners; \a broadcast station cannot, After nearly five decades of operation the broadcasting industry does not seem to have grasped the simple fact that a broadcast license is a public trust subject to termination for breach of duty. Of course, that last sentence was made in respect of the particular broadcast handling in that case. I thought that might be pertinent to the pi~nel discussion which would follow upon these two papers, and that it was good to place it into the record at this point. PAGENO="0048" 44 We are now open for panel discussion. In accordance with the pro- cedure adopted, I woubi turn first to Mr. Lower fOr such couiment~s as he might `have upon the cotn'enlts. S Mr. LOWER. Thank you, Mr. Chairman. Louis Lyon~ and I don't. strike `too many sparks because `we see `things fairly much alike. ,Iwouid make a couple oc~ notes, though, which apply to his' evaluation of broadcasting's absence of invading certain fields of interest and also what he had to say about local television stations. S , I really feel that as far as the national and the local pictures are concerned, I often look back tO when I first went into broadcasting 15 years ago after 20 years in the printing business. S I believe Dr. Stanton referred to this in his statement. We have so much more on the air on a network level today than we had thei~ that I `hardly recognize I am in the same business. : There is more programing, `the staffs are larger, a more thorough job is done, and certainly all th~ national organizations and the. various groups of stations are spending a `lot more money on their news 4epart- ments than they were at that time. S I think the record is clear on this and I don't think I need to go further `into it. `~ S I thought Mr Lyons slightly deprecated the local stations I think this criticism may have been true a number of years ago, and it may be true today in certain areas of New England to which he referred, with which I am not familiar. I. can only illustrate it by saying that when 10 years ago I searched for personnel, I looked for people com- ing from newspapers because I didn't think there wore enough radio and television stations around the country which were giving them the proper experience. S I think at NBC one time there was a rule that a man had to have 5 years of newspaper experience before they would even let him walk In the, door for an interview; `. I don't beli~ve,'that is the case today, and I know' it is not at ABC. I think the local stations are becoming much stronger, and we are using them niore as a recruiting ground. I merely cite that as evidence that there are more good shops around the country than Mr. Lyons would indicate in his statement. One Of them is repre~ented on our panel today by Jay Crouse, %vho, ~side from his title as h~ad~ofthe Radio and Television News Directors Association, is also the news director of WHAS-TV and radio in Louisville, which happens to be one of `those `stations which has ex- panded its news department and which does a very creditable job. We would like to steal a man from Jay Orouse any day simply be- cause he runs ~ good, solid news station. There is' another thing about broad~asting and' perhaps it applies to the fairness doctrine. I don't want to invade Reuven Frank's field because he is on the program this afternoon. But having been a print journalist for 20 years and a broadcast journalist for 15, one of the personal differences I notice in broadcasting is I feel like I am operat- `ing in a goldfish bowl that I never felt like when I was working for newspapers, magazines, or press associations. You wake up every morning and the newspapers are criticizing what you did the day before. It `is `pretty hard to make a mistake and not PAGENO="0049" 45 have the public know of it. That plus the intense competition among three networks, I think is as good a safeguard as the fairness doctrine. Dean BARROW. Dr. Goldin. Dr GOLDIN I am somewhat of a unique position on this panel be~ cause I have neither a paper nor a formal position to discuss. So I will take this opportunity to try to discuss each of the major questions which Mr. Lower has raised in his paper and~ which seem to me go to the heart of this whole panel discussion. Obviously, these are only opening comments because these will come back over and over again~ in the course of our discussion. The first question that you raised is whether the doctrine violates the first amendment to the Constitution because it imposes on broad- cast journalists a limitation that does not apply to their colleagues in the print media. My own view, and I am not speaking as a lawyer but as someone who has worked in the Commission, it seems to ~ne that the funda- mental point which has already been raised by Dean Barrow is the fact that you are dealing with a medium, broadcasting, which has been judged by .the Congress as a licensed medium to operate in the public interest. Frequencies may be used for different purposes and a determination as to the amount of frequency space allocated for broadcasting flows from a determination that a broadcast service is important in the public interest. From this flows a requirement as to regulating the type of tervice provided. This is a fundamental difference from the print media. I think it is quite as simple as that. This is a public national policy decision which the Congress made, and which has been confirmed by the courts in their discussion of the differences. Dean Barrow read from one court decision. There are many other court decisions on the same point. It seems to me th~t the choice that is faced here as a natjpnal policy is do you ~iant to convert, is it prac- ticable at this stage to convert, the broadcast medium into a private medium? Professor Coase at the University of Chicago has suggested that there are means of doing so in terms of converting public rights into private rights. He suggests that it is perhaps too late in terms of the history of broadcasting, and I quite agree with it. But this is a conscious policy decision that the Congress has made, that broadcasting is en- dowed with the public interest. From this fact, it seems to me, there are many consequences which flow, and that there are, therefore, differences in the treatment of broadcasting as compared with the print medium. This does not su~gest that there are no limitations on the degree of control or restraint exercised on the broadcast medium. There are certainly very severe ones. However, it also means that there may not be identity in terms of the rights exercised by these two media. I think the one that comes ob- viously to mind, which has been subscribed to by most of the broad- casters, is that broadcasting cannot be used for the private views of the broadcaster exclusively. This is a fundamental difference from the newspaper, where the newspaper has no legal obligation to use his medium for other than his private purposes, if he so chooses. 92-602--68-----4 PAGENO="0050" 46 There is no government agency, or any other body, to tell him that he may not do so. There is a long subject, and I hope we. will approach it from many different aspects. But I think this is very fundamentAL The second question that he raised is since broadcast content in this sense is now regulated by the Government, may this not raise in some broadcasters the fear that if they present material unsympa- thetic to whatever administration is in power they may face the threat of reprisal from their regulator? I have the contrary view. I have the view that the fairness doctrine is a protection to the broadcaster rather than a threat to the broad- caster; because if there is undue pressure from one agency of the gov- ernment, as for example the White House or Congress or the city hall, the broadcaster may tell that candidate or politician that there is a doctrine for which he is responsible, the doctrine of fairness in the treatment, and that he cannot, in exercise of his public responsibility, treat only one side of the issue. I would also urge that in terms of the history of the doctrine of fairness there has never been, in my understanding, any charge by broadcasters or others that this doctrine has been administered in any way which suggests that the broadcaster is required to present a view favorable to the administration. It seems to me that what is confusing here is to regard the Govern- ment as being a monolithic body with monolithic interests. There are many different agencies of the Government which approach problems from many different points of view. Certainly the Commission, in my opinion, has never been the handmaid of a monolithic government designed to oppress or abuse the power which it has. Third, does the requirement for an overall treatment of contro- versial issues make for wishy-washy, on-the-fence quality in broad- cast journalism? I would suggest the broadcasters should not demean themselves because I think they have done magnificently in covering of two of the most controversial issues faced, the Vietnam war and the race relations. Certainly this doctrine has not hampered them in their treatment of these issues. In terms of the fourth question, on the subject of comment and opin- ion, the fact that broadcasters have to allow for the presentation of responsible opposing viewpoints and the fact that the networks don't editorialize, I think their decision as to whether they editorialize or not is something obviously that the networks themselves should com- ment on. As far as the fact that there is a requirement for the presentation of responsible viewpoints on the other side of editorials, I think this has in no way harmed the function of the broadcaster or limited his freedom in any way. Broadcasters do editorialize and they do permit conflicting views because the interest which they serve is the interest of the public to hear the other side. The public may judge the two sides quite differently. When a broad- caster presents an editorial, it is under the auspices of that institution and, if the broadcaster occupies a prominent part in the community, PAGENO="0051" 47 the editorial obviously has greater weight in the community than per- haps another group which opposes that point of view. But, nevertheless, I don't see that any harm has come or any limita tion on the freedom of the broadcaster. Finally, the question of 315 which was raised by Mr. Stanton and Mr. Alexander and Mr. Lower. I think my own view is that the case has been made most strongly for the presidential election in the gen- eral campaign, and I think I quite agree with Dr. Stanton that this certainly is an area in which section 315 should be waived. However, I think he has raised two other problems which should be discussed, and one which Mr. Alexander has already raised. It struck me as it did Mr. Alexander that what Mr. Stanton said in effect was that, if you want to use the medium effectively for broadcast purposes in campaigns, it should be done in a way in which there is confronta- tion, either in terms of back to back, oi~ some method which would be, as I understood Mr. Stanton's point of view, essentially to prevent the broadcaster going directly on the air and making a set speech. At least, `that was the whole tenor of what I heard, that the canth- date should be governed by what the broadcaster believes will `stimulate the greatest interest in the community. The second problem, and I think it is `a more difficult problem, is the problem of ~ hat you do `in primaries I think a real distinction can be made between general elections and primaries, Mr. Stanton sug- gested that you could have fairness, but I would like to have him `ad- dress himself to the question of what `are `the principles `of fairness in a race for Oono~ressman, `a primary race, where there are eight or 10 candidates, w~iere you don't have the criterion of party. The only criterion you have would be `the established candidate, the candidate who has occupied the office. I think there are very thorny problems in the area of primaries, Thank you. Dean BARROW. I think we `should hear some reply from those who might take issue with what Dr. Goldin has just said. Mr. WASILEWSKI. I find this rather intriguing because I find I don't disagree so much with `the panelists who have been on as I do with the moderator's opening `statement, `and Mr. Goldin's `statement. For example, I think Mr. Goldin said `the fairness doctrine is a protector to the broadcaster, `and I think that most broadcasters would find this a rather unique benefit that has not been referred to before, and would `tend `to say, "Don~t do me any favors, please." The point is `that as Dr. Stan'ton pointed out, section 315 ~ not for the benefit of the broadcaster, nor necessarily for the benefit `of `the candidate. The question `should be whether it is `or is not in the best interests of the public. The point that 1 would respond to in Dr. Goldin's state- ment would be this, that the same consideration should apply as far as `the fairness doctrine `is concerned. I happen to believe `that suspension of section 315 in the presidential race would be highly beneficial to the public `at `this, time. I `really believe that section 315~s repeal in the long run would be beneficial. And I `also believe the `fairness doctrine could be done away with as a practical matter and the public would benefit thereby `as well. PAGENO="0052" 48 Dean B~.aRow. Mr. Wasilewski, would it be a fair question to ask of you, as presL dex~t of the National Association of Broadcasters, whether you have made an objective survey of what broadcasting ~vtititu'des really are? That i~s, have you ~enit a questionnaire to each of the station's `and obtained their views? Mr. WASILRwSKI. We did conduct a survey on that, I `think in 1967. In that survey, `as I' recall some 60 percent of those responding mdi- cwted thwt ithey th1óu~ht tbiat they would be better `able to serve the public without the fairnes~'dootrine. Dean BARROW. I asked that because I follow the practice, as I hap- pen to meet broadcasters, of asking, questions regarding broadcast- ing. I have found considerable sentiment forthe view that broadcasters like 315 because it is a haven from rather strong interests who want them to support one pOlitical party Or take a position on one side of a controversial issue, and it was rather helpful to `be able to say that they, under the Jaw, had to give contrasting views and equal oppor- tUnities. Mr. WA~ILEWSKI. I would agree with tha't, that there are a number' of broadcasters who are quite pleased with 315 because it does pro- vide an easy way out to their journalistic resp~nsibilities. But th'at,doesn't necessarily mean that that is either serving the best interests of the public or being in fairness to the public. Mr. ROE~N~ON. I would like to address myself to a couple of points~ if I may. The statement has been made here that somehow broadcast- ers are a diffCrent animal from the newspapers because, a~ ~ve all know, they ar~ regulated, 1~hey are licensed.,' ~ Eut it seems tome that this notion that they can be regulated sim- ply because they are iicen~ed, and we Can tell them how they shall condnd~ `their broadcasting operations bècaus~ they are licensed, begs. the questipn as to the degree to which the licensing~authority may use that as `a f$t~eMxt for interfering *ith, Or restraining, or imposing obligatipns `which the first ,amendment says shall not be imposed. We talk about public ownership of the airwaves by way of abstract generalization.' I really don't `know what this means. Presumably the Government o~v~ns Lafayette Park, but I don't think anybody would suppose that the Government,' by virtue of its' ownership `of Lafayette ~Park, could tell the public or t~ll any persons what the~i can, or can- not say in that park. I would have ~upposed that if the first amendment said anything, `it said just this': that you cannot use the notion of privilege as an excuse or as a pretext `for suspending fundamental rights' under the. Constitution. Dean BAmiow. Are there further comments? Dr. Go'ldin? Dr. G0LDIN. I wanted to make first a comment to what Mr. Wasi- lewski sai'd. I wanted to make clear when I said that the rights of the broadcasters would be protected, and I regarded that as a virtuous thing, I didn't mean that that was because his private rights were pro- tected, but that there was a public interest in maintaining the integ- rity of the broadcasting serVice because of its value to the general community. It is in that context that I felt `that the fairness had a very important role. PAGENO="0053" 49 With respect to what Mr. Robinson has said, I think the record should be clear that every time ~he court has addressed itself to the question of the rights of the Commission in dealing with th~ program- ing of the industry, it has almost i~tniformily upheld the Commission's right. This has been done in various circuit courts and in the Supreme Court. It suggests to me that the courts have recognized that without under- mining the first amendment right of the broadcasters, that there is ~ degree, if you will, of restraint that is compatible with the first amencl~ ment which inures not in the public ownership of the frequency-and I think you misunderstand that-but is in the fact that the broadcaster is licensed to serve the public interest. This is fundamentally different from the newspaper. Dean BARRow. The major case on the authority of the FCC relative to regulation of programing to which Dr. Goldin referred, was the NBC case. In that case the Supreme Court held that regulations which relate to the program matter of broadcasts do not contravene freedom of speech or press. Of course, we are getting into an area in which the Supreme Court may give us fresher opinion in the relatively future. Mr. ROBINSON. I would like to make a comment on the NBC case just so that it is not misunderstood. The NBC case did not deal with pro- gram regulation at all. The Court's remarks, insofar as they were taken to apply a broad regulatory authority, over programing are pure obUer. They had no bearing on the regulations which were in issue be- fore the Court at that time. These regulations were, of course, the chain broadcasting regulations, which involved the much different question of the scope of the Commission's authority to regulate the economic dealings of the industry, and which did not at all go to the question of the FCC's authority to enter directly into program regulation via the fairness doctrine or equal-time opportunities doctrine, or any other theory of direct or indirect programing regulation. Mr. SPRINGER. Are you talking nOw with reference to the Red Lion Broadcasting case? Dean BARROW. This is the National Broadcasting~ Company case, an early U.S. Supreme Court case which held that the chain broadcast- ln,g rules did not violate the first amendment either as to freedom of speech or press. Mr. SPRINGER. What case was that? I am trying to get it clarified. Dean BARROW. Nc~tional Broadcasting Company ~. the F.C.C. Mr. RoBfl~soN. I have the citation. It is 319 U.S. 190,1943. Dean BARROW. On the point that is under disctission about the case, it is pertinent to note that one of the major chain broadcasting rules involved had to do with the extent to which the networks would pre-. empt the time of stations for exhibition of network programs. Anyone who is considering the legality of a rule of that kind must look `at it, it seems to me, not solely in terms of economics, but in terms of programing. The point was whether networks could control stations to such an extent that they were n~t free to select that programing which ful- filled the needs of their community as th~y saw them, and they were the licensed broadcasters and had the trustee's duty to perform that function. PAGENO="0054" 50 So while there are people who hold Professor Robinson's view, and I respect his opinion and that of others, I do think we should realize that what we were dealing with was a i~ule which prevented an outside com- ponent of the industry from controlling the licensed broadcaster in the kind of programing which he could select. This has a very strong effect upon the type of programing which is presented. The Court realized that program regulation was quite heavily in~o1ved in the ease. Judge Hand stated in his opinion for the lower court that the regulation indirectly controlled programing. 47 Fed. Sup. 940,946. Dr. G0LrnN. I think Congressman Springer's remark is very appro- priate because the circuit court has spoken very directly and very immediately on the question that Mr. Robinson was addressing himself to and said that the broadcasting service can be treated differently, in effect, from the printed media. So there is a very recent decision on this. There are other decisions by the court, the circuit court and the Supreme Court, in which the rules of the FCC or policies of the FCC have been upheld, although they have been in the programing area, and they have resulted in restraints on broadcasting, if you will, which are significantly different from those of the printed media. Dean BARROW. Mr. Alexander. Mr. ALEXANOER. I am not a lawyer, but I would like to ask Mr. Stan- ton the basis on which his legal staff decided that CBS could not present a program on Governor Wallace's candidacy for nomination of the American Independent Party. As I read section 315, it says that if a candidate for one office is given time, other candidates for that same office must be given equal time. I don't know of any others who were vying for the position of nominee of the American Independent Party. Dr. STANTON. Mr. Alexander, I have learned long ago not to try to make like a lawyer, so I won't try to give you the answer that the Ia'cv department prepared for the head of our news department on this point. If the moderator or the chairman would care to, we will be glad to submit a memorandum on that particular item, (The following themorandum was received by the committee:) CBS MEMORANDVM From: Richard W. Jencks (LAW). To: Dr. Stanton. Date: March 13, 19138. You have asked for an account of the advice given by the Law Department to CBS News in connection with a proposed documentary concerning the candidacy and campaign of George Wallace. CBS News `asked the CBS Law Department at the end of February for an opinion concerning the "equal opportunities" obli- gations, If any, CBS would face as a result of a proposed half-hour broadcast on former Governor George Wallace for carriage over the CBS Television Net- work in June of 1968. CBS News sought in this' proposed broadcast to utifize the documentary format for a close-up study of former Governor Wallace, in- cluding his vieWs on the major political issues of the day. Based on the Law Department's review of Section 315 of the Communications Act and the applicable FCC Rules `and interpretive decisions, `as well as the information we had regard- ing the status of Mr. Wallace's candidacy, we advised C~3S News that in our opinion it was likely that the broadcast as proposed would give rise to valid "equal time" requests from at least three and perhaps several additional Presi- dential candidates. In these circumstances, CBS News dropped its plans to produce the broadcast In question. PAGENO="0055" 51 DISCUSSION (i) The e~vempt status of the proposed broadcast under section 315 of the Corn- municaflons Act Section 315 provides that an appearance by a legally qualified candidate shall not constitute a "use" i~ the appearance occurs on a "(3) bona tide news documentary (if the appearance of the candidate is inci- dental to the presentation of the subject or subjects covered by the news documentary) ,". The Law Department advised CBS News that while the broadcast would clearly constitute a documentary, it did not believe that a documentary whose subject was solely concerned with the political candidacy of a single Presidential candi- date-in this case, former Governor Wallace-would qualify as an exempt docu- mentary. It was the Law Departthent's view that Wallace's appearance on this proposed broadcast was not merely "incidental" to the presentation of the sub- ject of the documentary-it was the subject of the documentary. (II) Candidates for the Presidency as of June 1.968 In connection with the Law Department's consideration of the proposed Wal- lace documentary, we learned from the CBS News Fllection Unit, that based on the information then available to it, the Prohibition Party and the Socialist Workers Party bad already nominated their ea~udidate5 for the Presidency and the Socialist Labor Party would do so prior to June. It also appeared quite likely that b~ June additional candidates for the Presidency would be selected by other political parties. If at the time of the proposed June broadcast, Mr. Wallace was- merely a candidate for the American Independent Party's Presidential nomina- tion, it was clear that a non-exempt broadcast would not give rise to valid "equal time" requests from candidates nominated by other political parties. See FCC Public Noth~e, Use of Broadcast Facilities by Caiuiidates for Public Office, April 27, 19~36, Secion V, Questions 8 and 4. Since we were not aware of any other candidates for the Presidential nomination of the American Independent Party, we did not believe the "equal time" risks of such a broadcast to be great, Based, however, on the information avalilable to it regarding Mr. Wallace's candidacy, the Law Department concluded that at least in some states Mr. Wal- lace was not merely a candidate for the nomination of a Party, but was currently a candidate for the Presidency. Due to the nature of the campaign being con- ducted on Mr. Wallace's behalf, as well as the varying state requirements regard- ing third party candidacies in general, it was quite difficult for the Election Unit to collect information with regard to Mr. Wallace's electoral status. It did appear clear, however, that while in some states Mr. Wallace may well be merely a candi- date for the nomination of the American Independent Party, in at least two states-Virginia and Pennsylvania-Mr. Wallace was a candidate for the Presi- dency, and he is likely to be a candidate for the Presidency in Nebraska by March 15 and South Carolina by March 30. While there may well be a number of other states in which Wallace will be a Presidential candidate by June, our lnforn~ation to date is limited to the abo'~e four states CONCLUSION In these circumstances, we advised CBS News that in the opinion of t~e Law Department the proposed half-hour Wallace broadcast in June over the CBS Television Network could well result in vulid "equal time" requests from the Presidential candidates of the Socialist Workers, Socialist Labor and Prohibition Parties-and possiby from other Presidential candidates nominated prior to the broadcast. Dr. STANTON. Let me just say this: that in treating with a candidate who is self-declared and may or may not have to have a convention, it is pretty difficult to know when he is a candidate and when he isn't a candidate. If he says h~ is a candidate and he doesn't have to go through the same convention procedures that the Republican or Democratic Convention candidates have to go through, then it be- comes a little more troublesome. As I understand the situation further, if this has been a regular program series devoted to and treating with candidates for public PAGENO="0056" 52 office and had been an established series for that purpose, I suppose we would not have been in trouble on this pa$iclllar br~d~oast. But this was incidentai treatment, and I believe qnoidental is the ~test word, This was not an incidental treatment of WaIia~e's ca~ndi- dacy but, rather, an examination Of the `ihan and hi~ candidacy and the whole hour was to be devoted to it. This lifted hurt out of the mainstream where we could treat with him as a candidate, Mr. WAsmEwsicl. On that point, I would like to point out that Mr. Wallace is undoubtedly an avowed candidate announced for the No- vember election, and there are other avowed candidates of minor parties, even though the Democratic Party and Republican Party do not have nominees yet. But the fact they do not have nominees does not mean, nevertheless, that Mr. Wallace is not a candidate for the November election at the present time. Dr. STANTON. Mr. Moderator and Mr. Wasilewski, I think there are six or seven candidates already. There is the Peace and Freedom Party, the Prohibition Party, the Socialist Labor Party and the Socialist Workers Party. These are parties ~who have nominated candidates where we would be in some problem if we were Lo go ahead with this Wallace broadcast, as I mentioned earlier. Dr. GOLDIN. One point ought to be clarified on a technical matter: that the broadcaster has absolute freedom in terms of which race he will clioo~e to broadcast. I think there has been some confusion on that point. He can choose any particular race to put on his station. If he puts on the local city elections, he is not required to go through the whole process of putting on all other political races. Under Lotus Lyons' comment, the broadcasters could have started with the congressional races and stopped there, which they chose to do. There is no require~ ment on the broadcasters to deal with all the races. Mr. RoBINsoN. I would just like to make one point on what Mr. Goldin says. It may be perfectly true that the broadcaster is free to refrain from speaking out on particular candidacies or a particular race. However, the Commission has made it clear that they regard political broadcasting, in the broad sense of `the word, as being an element of the public interest. Thus, while there is no specific re- quirement to broadcast for or against the candidacy of any particular candidate, I would presume that the Commission would look with a )aundiced eye upon a local station that completely turned its back on a local election campaign of some importance. So I am not so sure that we can simply assume that the broadcaster isn't under some amorphous if you will, duty to speak on these matters. Dr. GOLDIN. I am glad Mr. Robinson said "amorphous" because when I was with the Commission, one of my responsibilities was to conduct the surveys of political broadcasting, and one of the things that we learned in statistical form, which we knew in other form, was that there are a number of broadcasters who do not participate in any particular election campaign and do not arouse the ire of the Commission or have their renewals in any way threatened. Mr. RoI3INsoN. But if I am correct, the Commission did, in its equal time primer, or in one of its policy statements, state something to PAGENO="0057" 53 the effect that a repeated refusal to deal with these matters might be considered at renewal time. Dr. G0LmN. I think if you put in all the ifs, ands, and buts, that is a fair statement; that it is one of the elements to be considered in the public interest obligations of the broadcaster. But there is so much latitude in this area that many broadcasters have the option of opting out of a particular race, and particularly of a particular candidacy in particular race, or even of not being in that particular election cam- paign at all. They may, however, often discharge the responsibility by having a forum or some other discussion which doesn't come under section 315. Dean BARROW. Mr. Chairman, I believe we have about reached the point where we could terminate our scheduled program for the morning if it is your desire. Mr. VAN DEEJuaN (presiding). Thank you, Dean Barrow. Since one or two of the panelists have referred to submitting written statements, Chairman Staggers has asked that I make it clear that the record of the panel will be open until March 21 for that purpose. It is anticipated that we will have unanimous consent to resume the hearing at 2 o'clock this afternoon. We will expect to see almost all of you back. The committee will be in recess until 2 o'clock this afternoon. (Whereupon, at 12:13 p.m. the special subcommittee recessed, to reconvene at 2 p.m. the same day.) AFTER RECESS (The special subcommittee reconvened at 2 p.m., Hon. Lionel Van Deerlin presiding.) Mr. VAN DEERLIN. The subcommittee will come to order, please. You may proceed. Dean BARROW. Mr. Chairman, our afternoon session opens with a paper by Prof. Glen 0. Robinson on the subject, "The Fairness Doc- trine, the Law and Policy in Its Present Application." PAPER NO. 3-GLEN 0. ROBINSON: THE ~AIRNES~ DOCTRINZ, THE LAW AND POLICY IN ITS PRESENT APPLICATION Mr. ROJ~fl~SON. It is a great privileg~ and pleasure to participate in these panel discussions on what nTust be regarded as one of the most controversial and troublesome problems in the field of radio and television, the fairness doctrine. The history of the fairness doctrine is rather uncertain since it depends on how one defines what now passes for a "doctrine." The Commission maintains that the fairness doctrine has, in essence, been in effect from the first days of regulation by the Federal Radio Com- mission. This seems `to me to be a gloss on its early decisions, but I will not quarrel with this conclusion. In any event the basic expression of the doctrine as it is currently implemented is the Commission's report on "Editorializing by Broadcast Licensees",8 released in 1949, 8 P. & F. Radio Regulations 91 :201 (1949). PAGENO="0058" 54 in which the Commission reversed its earlier ban on editorializing and dealt generally with the licensee's overall duty of fairness in treating controversial issues. It set forth a twofold affirmative obligation: first, to speak out on controversial public issues~ although not necessarily in the format of station editorials; and, second, to ascertain and seek out all responsible viewpoints on controversial issues and afford the opportunity for such contrasting viewpoints to be heard. Con~ress recognized the fairness doctrine in its 1959 amendments to section 315. Amended section 315, after establishing the exemption for bona fide news broadcasts, provides: Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news docu- mentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under `this chapter to operate in `the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance. Although the Commission has read `this provision as a ratification of the fairness doctrine, there is no evidence that Congress, in amend- ing section 315, actually intended to give specific statutory sanction to the doctrine. More probably, the intent was neither to approve nor disapprove of it, bu't merely to ins~ire that section 315 would not in'- terfere with it. It is important at the outset to distinguish `the fa~irness doctrine from the equal time i~equirements, with which it is often confused. Unlike the equal time requirements the fairness doctrine puts an affirmative duty on the broadcaster to encourage and `implement the broadcast of all sides of eontroversiai issues. Unlike the equal time requirements the fairness doctrine does not necessarily require a sta- tion to grant equal time to `all opposing viewpoints. A 10-minute commentary by the station on `one side of `a controversial school bond issue, for example, does not necessarily require that the station grant 10 minutes to all other sides. This flows from the fact that the obliga~ tion is, in theory, to insure fair treatment of the `issue, not necessarily precisely equal time to the various sides. Unlike the equal time re- quirements the fairness doctrine does not in all cases require the sta- tion to offer time to outside person, group, or agency. If the scheduled programing `is such that fairness is accorded to `all sides over a reason- able period of time, then the station's obligations are, at least theoret- ically, met.9 However, 1 might note that where a station editorializes many licensees do not rely on this apparent flexibility but routinely seek out persons or groups having contrasting views and offer them an opportunity to express those views. Even where outside groups are sought out to insure fairness, however, the station has discretion in selecting who the spokesmen must be to give the contrasting views.'0 An exception to this broad test of overall fairness, `however, are the so-called personal attack rules which require that, w~here a station makes an attack upon the h'onesty, character, integrity, or like per- sonal qualities of an individual or group, or takes `a partisan position with respect to candidates and issues in a political campaign, it must provide the individual or group attacked wi'th a script or tape of the broadcast prior to or at the time of the broadcast with a specific offer of a reasonable opportuuity to respond over the station's facilities. The `E.g., Blair Clark, 12 P. & P. Radio Regulation 2i 106 (1968). bEg., Cuilman Broadcasting Co., 25 p. & F. Radio Regulation 895 (1963). PAGENO="0059" 55 personal attack rules, which are being challenged as unconstitutional in the Red Lion ~ pending in the Supreme Court, heve now been codified into specific regulations which require opportunity to reply to personal attacks and also require the station to otter rebuttal time in the case of editorial endorsements of, or opposition to, qualified political candidates. These regulations have also been challenged in the Court of Appeals for the Seventh Circuit.12 I might note that the Supreme Court has agreed, to defer considera- tion of the Red Lion case pending a decision in the seventh circuit on this appeal from the regulations themselves. The Commission's enforcement of the fairness doctrine is substan- tially similar to its enforcement of the equal time requirements. Upon complaint that a licensee has not accorded fair coverage to a contro- ver~ial public issue, the Commission forwards the complaint to the licensee and demands a reply. If the reply does not satisfy the Com- mission, it informs the station of the error of its ways, indicating perhaps that the matter may be considered at renewal time. In addi- tion, it may demand from the licensee a statement of how it will comply with the doctrine in the future. A notification to the applicant that the matter will be considered at renewal time is the kind `of "lifted eyebrow"-to use the words of a former FCC Commissiøner-technique which the Commission has employed in other aspects of broadcast regulation-usually with nota- ble success. Generally, it is not so much the possible loss of a station's license as the threat of being forced through the ordeal of a hearing which makes the informal procedure effective. To reinforce this in- formal procedure, the Commission has in one recent case issued a 1- year renewal `where a station's presentation of controversial public issues had been of questionable fairness.'3 I might `add it has also set another renewal application down for hearing for inquiry into its compliance with the fairness `doctrine. If the fairness doctrine has been incorporated into section 315, then enforcement methods such as cease and desist c~rders and fines would presumably be available although the Commission has not resorted to such methods. A major reason f~r "codifying" its new personal attack rules into regulations, was to make clear the availability of such methods to enforce policies. The requirements of the fairness doctrine are elusive. The Com- mission has attempted to furnish guidance in its so-called fairness primer,'4 which is chiefly a collection of various past rulings. Time does not permit a detailed review and analysis of these rulings. They are in any event a very uncertain guide. They tell us, for example, that civil rights,'5 racial integration,'6 the banning of nuclear testing,~~ "kre- biozen," 18 and pay TV 19 are controversial issues of public importance, 11 Red Lion Broadcasting Co. v. FCC, 381 F. 2d 908 (D.C. Cir, L967), cert. granted, 36 U.S. Law Week 3226 (Dec. 4, 1967). 12 Radio Te~euision News Director Association v. United States, seventh circuit No. 16369. 1~ Lamar Life Broadcasting Co., 5 P. & F. Radio Regulation, 2d 205 (1965), reviewed on question of standing and whether license should be renewed at all., sub nom., Office of Communication of the United Church of Christ V. FCC, 359 F. 2d 994 (D.C. Cir. 1966). 14 Fairness Doctrine, 2 P. & F. Radio Regulation 2d 1901 (1964). ~ New Broadcasting Co. (WLIB), 6 P. & F, Radio Regulation 258 (1950). ~ Lamar Life Ins. Co., 18 P. & F. Radio Regulation 683 (1959). 17Cullman Broadcasting Co., 25 P. & F. Radio Regulation 895 (1963). 18 Report on "Living Should Be Fun" InquIry, 23 P. & F. Radio Regulation 1599 (1962). 19W50C Broadcasting Co., 17 P. & F. Radio Regulation 548 (1958). PAGENO="0060" 56 as to which the expression of views gives rise to the obligation to "fairly" tre~tt contrasting views. This seems to me to be nOt much enlightenment, either for the broadcaster or the public. But, beyond this, it is hazardous to predict how the doctrine will be applied by the FCC. Consider, for example, the Commission's rulings on religious pro- graming. It has said that merely carrying religious programing does not constitute the presentation of a controversial viewpoint and thus does not obligate a station to present the viewpoint of the atheist, the agnostic ~r the "freethinker." 20 At the same time it has intimated that for a religious group to express its religious, social, political views without affording opportunity for contrasting viewpoints may violate the fairness loctrine.21 The line of distinction seems a thin one, if not an entirely arbitrary one as Commissioner Loevinger has charged.22 Perhaps the distinction is between implicit and explicit raising of controversial issues, as suggested by the Commission in its recent cigarette ruling.23 But such a distinction seems to me to be little more than an excuse for weaseling away from the logical implications of its doctrine. In any event if such a distinction is to be drawn would it not be reasonable to expect it to be drawn uniformly, with respect to all controversial issues? But such is not the case. In the cigarette ruling the Commission expressly rejected the distinction as to health issues even though it noted its pertinence in cases involving religious issues. This does indeed demonstrate some very fa~t footwork in dancing around troublesome problems. The C~mmission's cigarette ruling offerst an example of the potenti- ally vast sweep of the fairness doctrine and illustrates some of its far- reaching implications. The Commission has ruled that a station which presents cigarette advertising "has the duty of informing it~ audience of the other side of this controversial issue of public importance-that however enjoyable, ~i1ch smoking may be a hazard to the smoker's health." The ruling, which is b~ing challenged in the Court of Appeals for the District of Columbia on a number of grounds, more particularly on the grounds of conflict *ith the Cigarette Labeling and Advertising Act of 1965,24 is a surprisingly bold challenge to what we would all regard, I suppose, as very substantially, intereSts. I will not attempt to consider here the very difficult problem whether the ruling is consistent with the Cigarette Labeling Act, or more ap- proprmtely an exercise of the FCC power, to leap into an area where the is already committed. Far more troublesome to me are the implications which such an ap- plication of the doctrine raises outside the context of the cigarette con- troversy. For example, does the advertising of automobiles give rise to an obligation to permit Ralph Nader to present his views on automo- tive safety? The Cdmmission rejected such implications of its ruling, emphasizing that here the decisive criteria were the "governmental and private reports and congressional action" stressing the health hazards 20Madalyn Murray, 5 P~ & F. Radio Rcgulatioi~ 2d 263 (1965). ~ See Brandywine-Main Line Radio Inc., 4 P. & F. Radio Regulation 2d 697, 700 and 705 (1965) (panting application for transfer of license), 9 P. & F. Radio Regulation 2d 126, 128 (196~) (renewal application designated for bearing). 22 5 P. & F. Radio Regulation 2d at 269. 22WCBSTV, ii P. & F. Radio Regulation 2d 1921 1925 n. 21 (1967). 2479 Stat. 282 (1965), 15 U.S.C. §~ 1331-39 (1967 Supp.). PAGENO="0061" 0I of smoking and urging persons to cease. But the distinction seems paper thin, particularly since nothing in the way the fairness doctrine has been applied in other contexts suggests that the presence or ab- sence of governmental action or the element of public health or welfare is of decisive importance. And even if it is, the ruling still has endless ramifications considering the almost limitless range of issues with which the Government is concerned. For example does the advertising of vitamin supplements require a station to give. ait~ time tO Dr. God- dard to present the FDA's views on the questionable need for such supplements? I might add another example. Does the advertising of beer in States where the sale of beer is forbidden to minors~-and I take it that it is in all States-constitute a controversial public issue as to which fair re- buttal time must be given, on the theory that the broadcast station has not discriminated between those who can and those who cannot legally buy beer in putting its advertising message on the air? The cigarette ruling `also presents the interesting question whether a station which carries antismoking public service announcements, or other antismoking programing of any kind, do~s not then have to pre- sent the prosmoking side. The Commission has indicated that if the station carries cigarette advertising the prosmoking side of the "issue" is sufficiently presented. However, if the station does not carry such advertising, the Commission has stated that this is "governed by the same principles as are applicable generally under the `fairness doc- trine.' "25 Which, I interpret to mean that the station could not present antismoking health' announcements without also pFesenting the pro- smoking side of the "issue." This has the dubious virtue of logical con- sistency, but it seems to me only to demonstrate the ultimate artifici- ality of the fairness doctrine, as it is being currently applied. Unlike the sweeping scope of the general fairness doctrine a's applied to controversial issues, the personal attack rules are somewhat more limited in scope, even if more rigid in their requirements. But even here there are difficulties in knowing when and how far the concept of personal `attack e*tends. There `are ~probably not a few people who considered that President Johnson's characterization of Senator McCarthy's candidacy as a "Kennedy-McCarthy movement" and his query as to "the effect upon the American people of these maneuverings" as an attack upon the "honesty, chkraeter, ~n~d integ- rity" of Senator McCarthy. But the Commission ~thought not.26 Evidently' something more strongly critical is required. We are told, for example, that accusing the John Birch Society of resorting to "physical abuse and violence" and "local terror caflapaigns against opposition figures" among other things, qualifies `as a personal attack.27 But would it be nn attack simply to name someone as a mem- ber of the John Birch Society? The `Conirni~sion has ruled that a charge that a group is Communist j~*28 But where should we look for standards?' We could look to the law of defamation. Many if not most of the attacks on which the Commis- sion has ruled thus far would probably qualify as 1ibelou~. ~ See Tobacco Institute, Inc., ii P.& F. Radio Regulation 2d 987 (1967). ~° Blair Clark, i2 P. & F. Radio Regunlatlon 2d 106 (1968). ~ University of Houston, 12 P. & F. Radio Regulation 2d 179 (1968). 28 Storer Broadcasting, 12 P. & F. Radio Regulation 2d 179 (1968). PAGENO="0062" 58 However, I doubt whether resort to the arcane subtleties of libel law we~tid really advance the cause. And I doubt in any event that the Commission itself will look in this direction for guidance. It has, for example, recently ruled that the right to reply to personal attack exists whether ot not the personal attack is true.29 If truth is not a defense presumably none of the other defenses or privileges of the law o~ defamation apply here. I think it would not be fruitful at this point to attempt to explore further the reach of the fairness doctrine. I think that we have not yet begun to see its fullest potential. I would, however, like to turn to some of the legal problems which are raised-most especially the free speech issues which are now being thrashed out in the courts. Without intending to preempt the discussion of our next panelists who will tell us more about the impact of the fairness doctrine, I would just note preliminarily that it seems difficult to deny that the fairness doctrine does constitute a restraint on broadcaster free speech-a restraint sufficient to raise serious constitutional problems, and one which is no less real by virtue of the fact that it does not directly seek to inliibit free speech but merely place burdens or re- strictions upon its exercise. The restraining effect of the fairness doctrine is compounded for the broadcaster by its vague and indefinite standards. The vagueness and uncertainty is inherent, first in the definition of what constitutes a controversial public issue and second as to what "fairness" requires the licensee to do in the particular circumstances. Uncertainty as to the elements of the doctrine and what it requires must inevitably cause a greater restraint on broadcaster discretion than would otherwise be the case. It is just such vague and indefinite restraints on conduct, and particuarly speech, which the Supreme Court has condemned as unconstitutional,3° particularly where, as here, the iragueness of the restraint is compounded by unrestricted administrative discretion.31 Mr. VAN DEERLIN. In the interest of maintaining a perfect attend~ ance record for the committee members on the House floor, we will have to recess for about 15 minutes. (Brief recess.) Mr. VAN Di~isiir.IN. The subcommittee will be in order, please. Mr. Robinson, do you wish to proceed? Mr. RoBINsoN. Mr. Chairman, I wonder if I might clarify a state- ment on the basis of some information I have just received. I mentioned in passing that the Radio-Tele'vision News Directors Association case was pending in the seventh circuit and the Supreme Court had held the Red Lion case in abeyance. I have a motion whigh was filed by the FCC in the seventh circuit case, to hold the case in abeyance. In effect, the FCC is asking the seventh circuit not to nile pending further rulemaking proceedings, either to clarify or augment or revise their personal attack regulations. I would like at this time, if I may, to ask that it be inserted in the record for such clarification as it adds. 29 Ibid. 30E.g., Herudon V. Lowry, 301 U.S. 242 (1987~. 31 E.g., Hague V. 0.1.0., 307 U.S. 496, 516 (1939). PAGENO="0063" 59 Mr. VAN DEEnuN. Would you rather do that at the end of your formal statement? Mr. ROBINSON. Yes. I will save it until the end of my paper. (The material referred to appears on p. 66.) The constitutional implications of the fairness doctrine have come to the forefront in connection with recent court challenges to the "personal attack" rules. While the personal attack rules have called down far more criticism than the general fairness doctrine as applied to editorializing and expression on controversial issues, in some respects, at least, these rules are arguably more defensible than the general fairness doctrine itself. A case might be made for the right to reply to a personal attack, at least where the attack is defamatory, on the ground stated by Pro- fessor Chafee that, in such cases, a legislative requirement imposing a duty to permit a reply to such statements may be preferable to punishing or inhibiting defamation through libel suits.82 It must be conceded, however, that things have changed since Chafee wrote. In fact the very kinship between the personal attack rules and the law of libel may he its ultimate undoing considering what appears to be the clear trend of constitutional law as set forth in the New York Times,33 Butts,34 and Hi11~5 cases. This vulnerability of the personal attack rules to constitutional challenge is made more critical by the fact that, whereas in libel suits truth is a defense, the Commission has ruled that truth or falsity is irrelevant to the duty of a licensee under the personal attack rule. But this entire issue is one which the Supreme Court is being asked to decide in the Red Lio% case and one can only speculate how it will rule. I think it should be emphasized, however, that even if the constitu- tionality of the personal attack rules be sustained, on grounds similar to those advanced, or other grounds, this would not necessarily vindi- cate the fairness doctrine as it is applied generally to controversial issues. If one might find that the right to reply to personal attacks is justi- fied by analogy to the long tradition of remedying libel (whidh within the limits set by New York Times and its progeny, I take to be still a constitutionally permissible tradition), no such tradition affords a right to reply to the expression of opinion on a controversial issue: no such tradition compels one always to give all sides of the story. In the end analysis it seems clear in fact that, outside the field of broadcasting, neither the courts nor the public would long stand for the kind of interference with free speech that inheres in the fairness doctrine. Attempts to tell newspapers, for example, that they have to treat all controversial issues "fairly"-as judged by a Government agency-and there would be a hue and cry which would fairly rock the foundations of Capitol Hill. But, it will be asserted that whatever may be, the rules for news- papers, radio, and television are "unique" and such restraints, includ- ing but not limited to, the obligation to be "fair," are justified in these unique media. Precisely what is meant by "unique" has never been made very clear. There are various explanations which have had a place ~° 1~ Chafee, Government and Mass Communications Media, 172, 184-90 (1947). ~` New York Times Co. v. Sullivan, 376 U.S. 254 (1964). ~` Curtis Publishing Co. v. Butts, 388 V.5. 130 (1967). ~ Time, Inc. v. Hill, 385 U.S. 374 (1967). PAGENO="0064" 60 in the ideology of program regulation. However, the one to which all ultimately return is that of "spectrum scarcity." As Justice Frank- furter stated in the NBC case,'6 "Unlike other modes of expression, radio inherently is not available to all * * * and that is why, unlike other modes of expression, it ic subject to goi~ernhiental re~'ulation." The most obvious shortcoming of this logic is that, notwithstanding conceded physical limitations on frequency availability and the cor- responding limitation on th~ number of broadcast facilities which can be operated, the fact remains that radio and television stations are more numerous than any of the other competing mass communications media which exists today. If radio is not "available to all" neither is any other significant mass communications medium. It is impossible, therefore, to distinguish radio and television from newspapers, movie theaters, or magazine and book publishers on this basis. If barriers to entry and limitations on access to the use of mass communications media are to be relied on as a basis for imposing regulation of free speech, such regulation should not discriminate against radio and tele- vision but should extend to all commimications media. Indeed one scholar has argued that true fidelity to the spirit of `the first amendment requires just that and has proposed that newspapers should also be subject to some kind of general editorial regulation, similar to the fairness doctrine, to insure that a diversity of viewpoints is presented to the public.'7 But, I suggest that to invoke the aim of diversity to support govern- ment control of speech is purest sophisti~y. It is just such a philosophy of "benevolent" Government interference for the "good of the public" which has fed the most blatant and obnoxious foiins of censorship. It has been suggested that if the Government does not place some di- rect editorial control on mass communications media, it is allowing them to be censors. In short, we are told to replace the private censor with a Government censor. Frankly, if private censorship is `an ill to be cured, I `think this cure is worse than the illness. Some have expressed a distrust of the judgment and responsibility of broadcasters. It seems to me that this distrust stems more from a belief in the "original sin" of broadcasters thati any tangible evidence of misconduct. However, even ~f we a.re skeptical about broadcaster re- sponsibility, is there any more reason to have an abiding faith in the judgment of the FCC or any other governmental agency in these matters? I think a reappraisal of the role of the FCC in such matters is clearly called for. Thank you. Dean B~ow. A comment will now be made by Prof. Charles A. Siepmann. COMMENT Oi~l PAPER NO~ 3, BY CHARLES A. SLEPMANN Mr. SIEPMAJ~N. Given 10 minutes I think all I can do is identify the true thrust of £he argument before us. As we do so, it appears clear to me that Mr. Robinson's potshots at the doctrine constitute a mere diversionary pioy. `°Nationaj Broadcasting Oo. v. United ~S~ta~~es, 319 U.S. 190, 226 (1943) (1967)' Access to the Presn-A NeW First Amendment RIght, 80 flhrv. L. Rev. 1641 PAGENO="0065" 61 The real purpose of his paper is more ambitio~is. What he is saying is that, as we win this round of argument we can anticipate the final knockout blow which floors not just the ftdrness doctrine but the F'CQ's entire concern, a~ a regulatory agency, with programing of any sort. The veil is drawn aside in his concluding paragraph and more particularly in his last sentence. "I think a reappraisal of the role of the FCC in such matters is clearly called for." Albeit obliquely, a whole philosophy of life is bespoken in this clos- ing paragraph. All men, it suggests, are scoundrels, but some are more scouncirelly than others, notably men in government. This ha~tchet job (on the FCC) was better (because more frankly) done nearly 20 years ago, and curiously at hearings before the FCC on a matter intimately related to the subject we're discussing now~-the revised Mayflower decision hearings. In his testimony before the Commission, Mr. Theodore Pierson then argued, a~d brilliantly, for rescinding the Mayflower decision and, with it, all FCC concern with programing as incompatible with the provisions of the first amendment. His was a devastating case, its logic remorseless and irrefutable-given his premise. His premise Was that the Founding Fathers were literate men, usin.g the English lan- gua~e to say what they meant, and that consequently "no law" meant, precisely and unequivocally, "no law" Without ifs, anUs, o~ buts. This is a view that I respect and with which, historically, I agree. By historically I mean as having reference t~ the circumstances o~ the time ~ind, more specifically, as having reference to the pre~s~ as it then was. l~or to publish a paper then was within the means of every members of the electorate. Thus freedom of the press, as the mere extension of the reach and range of the spoken word, was synonymous with individual freedom of speech and, as such, included in the language of the first amendment. What I disagree about is that such absolute interpretation of the first `amendment applies today-g~yen the radical change in the nature and function of the modern press and the motivation of those at its control. But irrespective of my views on this subjeot, Mr. Pierson's (like Mr. Robinson's) position would seeth to `be' hndørmined by the distinctive nature and role of broadcasting as defined in the `C~mmuni- cations Act. FQr, unlike other media, brOadcasting is not a form `of free enterprise. Broadcasters do not own or have free acce~s~ to the air- waves. Broadcasters have `temporary, conditional and privileged access to a public domain. The FCC allocates frequencies and prescribes the n~ttire `of their use (see section 303 of the Communications Act). Like a building con- tractor, the prospective licensee bids, and `aga~inst compcti'tors~ fer execution of a prespecified design. NO one has tO bid;'but if `he does, he is under `obligation to meet the s~pecifications o~ the contract. The first amendment protects him in `the way he goes `about the job, but not in determin'ati~on `of what the job~hall be. The rationale, moreover, of the Comm'un'ioatiôn~ Act derives (as becon~es clear `from reading the congressional ~lebates preceding its p'a~s~ge), not, as' Mr. Robinson suggests, frOm the incideh'ta~l s~o'rtag~ of `ftequencie~, to WhicjrMr. Justice Frankfurter's often-quoted dictum refers, but from the conception `of broadcasting `as a `service in the 92-602-63-5 PAGENO="0066" 62 ~pub1ic interest as the paramount consideration, with profitmaking subordinate thereto. Unspecified in the act is the extent of supervisory regulation of such 5ervic~ by the FOC. It is my judgment that any such regulation has been hampered, if not negated, by the consistent refusal of the Con- gress, since passage of the act in 1934, to provide (through adequate appropriations) the wher~withai of manpower to the Commission to monitor and scrutinize programs broadcast. An aggravating factor has been the reludtanee, other than on rare oQcasi9ns of phe Commission itself to articulate the broad programing requirements of the licensee and to enforce their ob~ervance, IL differ again with Mr. Robinson in his citing of the revised May- flower deci~ion in 1949 as the fons et origo of the principles articulated in the fairness doctrine. They were implicit in the act and it,~ inter- pretation, as far back as the days of the F~c1er~l Radio Commission. They were in large measure made explicit in the FCC~s report on ?ub~ lie Service Responsibilities of Broadcast Licensees, in 1946. Whatever, the report said, service in the public interest, convenience or necessity might be held to mean, it included as paramount components, regular provision for the reflection of local life and talent, regular many sided d~seussion of controversial ques;tions, and regular provision for the varied interests of cultural minorities. If the FCC had stuck to its guns, and~ enforced honest observance of the spirit of these broad provisions, I doubt if we should be in conference here today. For to attempt much more than this by way of regulation is, as I believe, both impracticable and improper. I have always believed that, in any realistic sense, the function of the FCC, in an imperfect world is to conduct a rearguard action against flagrant and irresponsible abuse pf the public interest. Both as a former broadcasting executive, knowing the excitement and perplexities attaching to decisioiimaking, and as a theorist, I favor maximum scope for the exercise by licensees of imagination, leader- ship and initiative. Given the lure of the fantastic profits that broad- casters have earned, one can't be sanguine that many of them will subordinate their avarice to the pride and satisfaction of true public service rewarded with modest profits. But no power on earth, and perhaps least of all an agency of Government, can force men to virtue. Flagrant abuse or nonobservance of broad principles of public service is preventable. I regard this, however sadly, as the practicable limit of the FCC's function as guardian of the public interest. It is the FCC's failure, in this sense, to stick to its guns and honor its obligation to the public that finds us where we are-discussing a problem not soluble by specific regulations. In this whole matter of the fairness doctrine, it would seem to me that the FCC has got itself up to the armpits in waters that it should never have attempted to breast. For to prescribe "fairness" in broadcasting is analogous to the dispute of medieval theologians over how many angels can stand on the head of a pin. In this maitter, as in specific interpretation of the provisions of the Blue Book, I prefer the risk and uncertainty (and no honest broad- caster need, in fact, fear either) of Mr. Robinson's regulation by lifted eyebrow to rigid and specific rules and regulations. PAGENO="0067" 63 Let the licensee assume the burden of determining what fairness is. Let the FCC act as judge of the propriety of complaints brought against licensees. Their judgment, after all, is subject to review and the redress of grievances by the courts. As regards certain aspects of the fairness doctrine and related is- sues touched on by Mr. Robinson, I would suggest that we can avoid much of the contentious trouble we are in if the following principles were observed. (In self-defense let me say that shortage of time pre- cludes elaboration or-though I hope not-clarification of my views.) 1. RELIGIOUS BROADCASTING The Supreme Court has ruled (Everson v. Board of Education 1947) that "the establishment of religion clause of the First Ame~id- ment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid on~ religion, aid aU reZigions (emphasis supplied), or prefer one religion to another." From this I draw three conclusions: (a) The FCC may not prescribe religion (as this favors all reli- gions) as a required component of program services. (14 Religious groups stand on an equal footing with others as ap- plicants for a license. (c) A religious group which is granted a license may choose to ex- clude all religious programs, but if it includes any one, like provi- sion must be made for other religious groups in the community on an equitable basis. 2. EDITORIALIZING I stand by my testimony before the Commission at the revised May- flower hearings. I think the Mayflower decision should have been left standing. I see no reason why the recipient of a license (often at the expense of competing applicants) should enjoy the uniçjue privilege of foisting his personal views and/or prejudicies on listeners over publicly owned frequencies. Entailed in his doing so are all the deriva- tive complications of decision in which we have becomeS involved as related to who and/or how many others (there are rarely just two sides to a question) shall be conceded equal time on re- quest or sought out mandatorily. to reply. As related to the public interest the matter of editorials, as such, is immaterial. Imperative, as the Blue Book insists, is regular, many sided discussion of con- troversial questions. The method of airing such discussion (whether by commentators of varying outlook, by rouudtable discussion, in- terviews or what not) should be at the discretion of the licensee. 3. EQUAL TIME The right of reply to personal attacks has the superficial air of fair play. It does not bear scrutiny. Certainly "equal" time is not the answer. One sentence of irresponsible abuse may require a hundred sentences to set the record straight. More basic is the question whether personal. abuse co~tributes in any way to the benefits we derive from the free ma&etplace of thought. The free circulation of ideas and opinions is paramount to ~he democratic way of life. Argumentum ad hominem contributes PAGENO="0068" 64 nothing useful or relevant thereto. Call it censorship if you will. In my view the ban~ning of personal abuse over the ~ub'iic airwaves protects the true purpose of the first amendment, which is enlighten- ment and the pursuit of truth. We should be through with trouble on this front if we re~tored `to the airwaves the good manners of communic~ation of a civilized society. Thank you, sir. Dean BAnEOW. Thank you, Professor Siepmann, for those excel- lent comments. Mr. Chairman, during Professor Robinson's paper, a reference was made to a motion in the seventh circuit by the Federal Comunications Commission. `Chairman ~Iyde states that if the committee desires, he will be happy to Introduce it into the i'ecord. The CHAIRMAN It is up to your judgment and his Dean EARROW. Would you care to comment on that, Mr. Chairman, and any other matters which have been raised in the presentation of these two papers? STATEMENT `OP ROSEL H. HYDE, CHAIRMAN, PLD~RAL COMMUNICATIONS COMMISSION Mr. Hrm~. Chairman Staggers, I think it might be helpful to the study of the subjects under examination, if I would supply for you the motion which the United States has filed in the seventh circuit. I think I ought to explain why it seemed appropriate to filO the motion. I will do so at this time if it meets the pleasure of the committee. The essential features of the rules, and I am refernng to the per- sonal attack rules, are that where a personal attack occurs in the con- text of a controversial issue of public importance~ it is the responsibility of the licensee to notify the person attacked, send `him a copy of the script or a simimary, and offer him a reasonable opportunity to respond in person. The basic purpose `is to make available to the public the opportunity to hear both sides of important questions, including the personal char- acter of persons advocating a viewpoint when their character is put in issue. The personai attack rules are thus a part of the general fairness doctrine The new rules, including editorializm~ rules adopted at the same time, were challenged by NBC, CBS and, in a third case, by the Radio Television News Directors Association, and a group of heencees The United States is a respondent in these cases, together with the Commission. , In discussing the defense of the cases, the Department of Justice, and the Ooi~mi~ston~ reviewed in detail the question of ~whetherthe' present form of the ruled is the best `that could be devised `to aehie~e the Com- mission's objective. ` In connection with this review, the Assistant Attorney `Ge~nerai in charge of' the `Antitrust Divi~ion~ wrote to the Commission on Febru- try 29, 1968, `expressing the Department's full suport of the Commis- sion on the constitutional and statutory suport for the fairness doctrine, PAGENO="0069" 65 and the adoption Qf a special rule dealing with the personal attack aspect of fairness. The letter suggested, howê~ver, tha~t the rules as drafted i~aised pbs- sible problems that might be minimized by some revis1o~i of the rules. After further cànsidcration, the parties have filed a motion in the Seventh Circuit asking that the cases be held in abeyance so that the Commission might hold expeditiou~ rulemaking proceedings, look- ing toward revisiou oi~ the personal attack portio~is of the rules. Since these cases are still pending and no ruling on the motion has been made by the court, it wouid not be appropriate to go further into the merits of the litigation. It is relevant, however, to note that a case called Red Lion Broad- casing Co. v. Federa~ ComQnnnlcations Commission, deahng with a specific Commission ruling in a personal att~ck situation prior to the adoption of the rules, is now pending in the Supreme Court. The Supreme Court has postponed oral argument in the Red Lion case pending further proceedings in the Seventh Circuit eases. The further process of the Red Lion case ~will, pf eOu~se, have to be determined in the light of the present circumstances. All that can be said now is that the nature of any revision of the rules might affect that question. Since the Solicitor General will determine our position here, and since this is also a matter pendino~ in court, further speculation on the nature of any pleadings to be ~led in the Supreme Court in Red Lion would not be appropriate. The Commission has considered the nature of revision of the per- sonal attacl~ rules to he proposed if the Seventh C4~euit holds the cases there in abeyance to permit further proceedings by the Commission. The essential purpose of revision would be to retain the principle of maximum opportunity for the public to be informed on public issues, with a minimum of any possible effect upon the initial pres- entation of any form of personal attack. In short, our purpose, as always, is to maximize debate. I wouid supply for the record a copy of the letter which we received from Mr. Turner, Assistant Attorney General, and a copy of the motion itself. (The documents referred to follow:) DErARTMENF OF Jusricu, Washington, February 29, 1968. Re Columbia Broadcasting System, Inc. v. U.S. & F1IC. (7th Circuit, No. 16498); National Broadcasting Co. V. U.S. & F.C.C. (7th CircuIt, No. 16499); Radio Television News Directors Assn. v. U.S. & F.C.C. (7th CircuIt, No. 16369) Hon. RosuL H. HYDE, Chairman, Federal Communications Commission, Washington, D.C. DEAR MR. CHAIRMAN: In our consideration as a party respondeut of the Issues raised by petitioners in the above-entitled matters, we are fully prepared to support the Commission's position that the "fairness doctrine" is constitutional and within the Commission's statutory powers, and that, as a general proposi- tion, some special rule with regard to personal attack Is a valid facet of that doctrine. However, we have some concern that the rule, as drafted, raises possible problems that might be minimized by appropriate revisions In the rule without materially Interfering with the public interest objectives that the rule is Intended to serve. In discussions with members of your staff some possibilities along this line have been considered. PAGENO="0070" 66 We therefore respectfully suggest that the Commission might wish to weigh the possibility of considering the revisions of the rule before proceeding further with the cases i~ow before the Seventh Circuit. Sincerely yours, DONALD F. TURNER, Assistant Attorney GeneraZ, Antitrust Division. FEDERAL COMMUNICATIONS COMMISSION LEGAL ACTIVITIE5 The United States and the Federal Communications Commission have filed with the United States Court `of Appeals for the Seventh Circuit, a motion to bold in abeyance action on 0B~ v. U.~S. and P.0.0., NBC v. 17.2. and F.C.C and Radio and Television News Directors Association v. 17.2. and P.0.0. in order to permit the F.C.C. to conduct an oxpeditious rtLle making proceeding for revision of the Commission's personal attack rflles. The motion advises the Court that the filing was in light of further consideration of the rules by the Commission and consultation with the Department of Justice, Commissioner Bartley ab- stained, CQmn~issionor Cox concurred and Commissioner Loevinger dissented from the ~ommissjou's instruction to seek this relief. Confluissioners Cox and Loevinger i~sued statements. IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Case No. 16,369 RADIO TELEVISION NEws DIRECTORS AssoCIATIoN, BEDFORD BROADCASTING Con- PORATION, CENTRAL BROADCASTING CoRPoRATIoN, THE EVENING NEWS AssoCIA- TION, MARION RADIO CORPORATION, REO GENERAL, INC., ROYAL STREET Con- PORATION, ROYWoOt~ CORPORATION, TIME-LIFE BROADCAST, 1x07., PETITIONERS, `V. UNITED STATES or AMERICA AND FEDERAL COMMUNOIATIONS COMMISSION, RESPONDENTS. Case No. 16,498 COLUMBIA BROADCASTING SYsTEM, INC., PETITIONER, V. UNITED STATES OF AMERICA AND FEDERAL COMMUNICATIONS COMMISSION, RESPONDENTS. Case No. 16,499 N4TIONAL BROADCASTING COMPANY, INC., PETITIONER, UNITED STATES OF AMERICA AND FEDERAL COMMUNICATIONS COMMIssIoN, RESPONDENTS. MOTION TO HOLD CASES IN ABEYANCE AND TO AUTHORISE FURTHER I'ROCEEDINGS The United States of America and the Federal Communications Commission, respondeith in the abcye~entitled cases, hereby move that these cases be hel4 in abeyance and that the Federal Communications Commission be authorized to conduct further ~`ule maldug proceedings. The `ground of this motion `is that the Commission, upo~i further consideration and consultation with the Department of Justice, b~s determined, Commis~ioner Bartley a~~taining and Commissioner Lo~vinger 4issenting to set aside thQse parts of the rttles at issue dealing with personal att~cks (subpart (a) a~d (b)), and to conduct an expeditiou rule making proceeting looking toward their revision. PAGENO="0071" 67 It Is therefore respectfully' requested that the eases be held in abeyance and that the Commission be authorized to conduct further proceedings upon an ex- pedited basis for the purpose of reconsidering subparts (a) and (b) of the rules. Respectfully submitted. HENRY GELLER, General Counsel, Federal Communications Commission. DONALD P. TURNER, Assistant Attorney General, Department of Justice. By: DANIEL R. OHLBAMM, Deputy General Counsel, Federal Communications Commission. March 1, 1968. CERTIFICATE OF Sunvicn I, Robert D. Hadl, hereby certify that the foregoing "Motion To Hold Cases In 4~beyance And To Authorize Further Proceedings" was served this 1st day of March, 1968, by mailing true copies thereof, postage prepaid to the following persons at the addresses shown below: W. Theodore Pierson, Esq. Roger Wollenbrg,Esq. Vernon C. Kolhaas, Esq. Wilmer, Cutler & Pickering Harold David Cohen, Esq. 900 17th Street N.W: Robert M. Liebtman, Esq. Washington, D.C. 20006 Pienson, Ball & Dowd Thomas D. Barr, Esq. 1000 Ring Building Cravath, Swaine & Moore Washington, D.C. 20036 One Chase Manhattan Plaza *Maurice Rosenfield, Esq. New York, New York 10005 Harry Kalven, Jr., Esq. Herbert Weebsier, Esq. 208 S. LaSalle Street 435 W. 116th Street Chicago, Illinois 60604 New York, New York 10027 Lawrence J. McKay, Esq. *Newton N. Minow, Esq, Cahill, Gordon, Sonnett Reindel & Ohl Leibman, Williams, Bennett, Baird & 80 Pine Street Minow New York, New York 10005 208 South LaSalle Street Chicago, IllInois 60604 ROBERT D. HADL. *Ajr Mail. CONCURRING STATEMENT OF CoMMIsSIoNER KENNI~TIi A. Cox As is often the ease, I find the opinion of Commissioner Loevinger in this matter a truly remarkable document. He imputes motives to those who disagree with him which simply do riot exist. It is true that the C9pamission has Invited litigation l~o test the validity of our fairness doctrine, and I have done so personally. It is not accurate to say that we have not been true to our promise to litigate the jssue, that we are considering changes in our ru1e~ for mere cosmetic effect, tl~at we are servin.g only our own intere~t as a litigant and no public purpose at all, or that our aCtion falls short of any standards of diligence, promptness and candor which we demand of our liceriseesr-'or which would generally be regarded as reasonable in a situation such 1 as this. Commissioner Loevinger is perfectly entitled to believe that we should not have taken this step-indeed I was initially of that view, though for entirely different reasons that he advances, but u~Itimately joined the rest of my colleagues, in di' rooting our General Counsel to move the Court of Appealsfor the Seventh Circuit to hold the ~porsonal attack cases in abeyance and to authorize us to take further proceedings looking toward partial revision of the rules. However, I do not think he should be allowed to distort the record without challenge-particularly since the statements he now makes are not, for the most part, the ones he advanced while we were considering the matter. The opposition filed by the Solicitor General to the petition of Red Lion Broad- casting Company for Supreme Court review of the decision of the Court of Ap- reals for the District of Columbia sustaining the Fairness Doctrine and our PAGENO="0072" 68 application of i1~ to Red Lion was n~t designed to delay authoritative decision of this queM4on. The C mts~ion arn~ the Solicitor General believed the Ccrnrt of Appeal~ dèeis~en ~ya~s ~un~L and urged the Supreme Court that further review was not warranted. however, the supreme Court decided to bear the case, and we welcome its review. The Soli~itor General and the Commission have opposed delay in it~ resolution of the matter, and are ready to proceed as soon as possible. similarly, the Solicitor General's opposition to the petition of the Radio-TC1e- vision News Directors Association asking the Supreme Court to grant certiorari in its case prier to decision by. the Court of Appeals for the Seventh Circuit was not intended to.delay resolution of the fundamental issues in this area. The Red Lion ease was already before the Supreme Court and constituted an appropriate vehicle for deciding many of the basic questions concerning the Fairness Doe- trine~ The proposal of RTNDA. to by-pa!ss the Court of Appeals was unusual in the extreme and did not seem to us at all necessary, since the collateral question of the validity of the personal attack rules we have adopted to implement this poition of the Fairness Doctrine could be decided in ordinary course, quite apart from the Red Lion case. The Supreme Court apparently concluded that it would prefer to consider both aspectS of th~ matter at one time, but wanted lower court decisions in each case. It therefore ordered argument in the fled Lion case post- poned until the RTNDA case is before it In due courseL If Commissioner Loe- vinger must assess blame for delay in concluding the pending litigation, I would suggest that he look in this direction-j-though I wish to make it clear that I have no objection to the course followed by RTNDA and think the Oourt's disposition of the matter is entirely appropriate and may conduce, in the long run, to the earliest practicable tinal decision of this important litigation. But, again, we and the Solicitor General were net seeking delay. Indeed, the course we urged would have produced a Supreme Cburt ruling on the basic constitutional challenge to the Fairness Doctrine and the personal attack principle more quickly than any other method proposed. I think Cbmmissloner Loevinger's charges of intentional delay cast an unwarranted aspersion not only on the CommissIon but also the Solicitor General of the United States, who controls our litigation in the Supreme Court and filed the pleadingsi In question. It is true that the step we are not taking-if the Court concurs-will involve delay in resolving the question of our authority to adopt rules) dealing with the personal attack problem, though the issue of our basic policy In this area, out of which the rules evolved, Is still before the Supreme Court in. the Red Lion ease. The latter case can either be adjudicated in the near future, or can be deferred until we have revised the rules and they can be challenged again if their new form is still regarded as objectionable by the parties to the present case, or anyone else. Certainly nothing we do by way of amendment of a portion of the rules will prevent any interested party from challenging our authority to act in this area, nor will the Supreme Court be asked "to concede the power and invite the prob- ability of adoption of rules at least as onerous as the ones now in effect." It may hold the Red Lion case until a new challenge to our revised rules i~ before it, In which case it will know precisely what ruleS we would propose to apply in this area before it makes any ruling on the basic issues of the Fairness Doctrine and the personal attack principles-as distinguished from the rules-which we have developed in a series of decided eases. But even If it declde~ the Red Lion case in the near future, It will be ruling, as did the Court of Appekis, on the application of our policies to a specific factual situation fully disclosed on the record In that proceeding. If It were to affirm our action in Red Lion, that Would not In any way commit it to affirmance of the rules we would be in the process of revising. Those could be challenged in. advance of their appllcatlbn to anyone, just as wa~ done with respect to the rules we are now asking permission to reconsider In pl~rt. There is no need for us to give the Courts any "assurance" as to the revised form of the rules we may adopt because the exact form of the revised rules Will be 1~efore the CoUrts if and when they are asked to pass on our authority to make and enforce rifles In this field. We are not prtpositig to change our rules "to make a better showing In pend- ing litigation" or "to present a better face to court." `We are trying to adopt a PAGENO="0073" 69 better rtae1 for the, regulation of this impQrtant aspect of broadcasting. If we are successful in foi~mulating a rule which' will promOte what' we concel~re to be tb~ public interest j~ the presentation of b9th s1de~ of controversial lssues-~and which at the same time will avoid results which the' j2artles fear would result from the present language of the rule and which they contend are legally `oi' con- stitutlønally inv~alid-that will certainly serve a pubUc purpose, and not slm~p1y constitute a ploy in the maneuvering of counsel concerned only with' victory or loss in court. If we have the authority and responsibility to act in this field, as we believe we dO~ then we should act as wisely and fairly as we can. i~ by re~l~ slon of the language of the role we can achieve what we consider to' be valid goals without causing alleged 1mpajrmen~ of the interests of the parties and the Public In free broadcast journalism, then certainly we should be permitted to try to do so without being accused of lack of diligence and candor. This charge Is all the more Incomprehensible since we are acting, in part, at the urging of Assistant Attorney General Donald F. Turner, who forni~lly represents the United States in these cases. (See his letter to Chairman hyde dated February 29, 1968). We are not sugge~t1ng that the Courts will be "Influenced" by this action. Instead, they will be asked to pass on our authority to adopt a revised ~ul~ which we have reason to `believe will be more In the public interest than the one now on appeal. Certainly the Courts, the parties, and the public may sCrutinl~e our entire course in this matter-indeed, they are asked to do `so. If there are Inferences to be drawn from what we have done I believe they should be far different from those Commissioner Loevinger suggests. DISsENTING STATEMENT OF COMMISSIONER LEE LOEvINGER (Re motiOn to remand personal attack rules) The issue of the existence and extent of Commission authority to supervise or regulate the content of `broadcast programming has been disputed and debated for years, particularly with respect to the expression of opinions and the report- ing of news. The issue has not been tested or decided in the courts, until current litigation, because licensees have generally deemed It more prudent not to hazard their licenses or antagonize the bureaucracy which had such great discretionayy power over their business. However, the Commission and Oommissioners lu?se often stated that they invited litigation to test the legality of Com~mlsm~on action in this area. Ostensibly the C'ommis~ion has sought and seeks the enl~g~t- enmen and guidance of court decisions. Qi~ Jt~y 5, 1967, the C'omniissicni promi~lgatecj certain rules relating tç~ "personal attacks" and "political editorials". FCC 67-795. The stated j~urpose of the~e rules was to "clarify and make more precise the obligations of bro~ca~t li~ censees" under the general "Fairness Doctrine" with respect to tbe~e matt~u~s, and to authorize the Commission to "impose appropriate, forfeitures" in. cases of violations of such obligations. Commissioner Bar~ley, dissented. I concur~e~l on the grounc~ that "the right of reply" was a Sound principle, but stated that the rules were not well drafted. ` On August 2, 1967, the Commission sua sponje amended the persona~ attack rules, with Commissioners Bartley, Loevinger and Wadsworth ab~ent, and Oon~- missioner Cox concurring in the result. FCc~ 674~8. The stated ground çZ the amendment was the neecssity of further "clarification", In the meantime, Red Lion Broadcasting Co. ~ppe~led `a ruhing of the ~Jom- ~iissjon under the general "~ajrness Doctrine" tQ the, Court of 4ppeal~ ~ the District of Columbia. The, decision of that court, sustaining the, e~onstitijt~o~~tjjty of the doctrine and the r~hi~g of the Co~injs~jo~ was entered June 13, J~967, Red Lion Broadcasting Co. v. F. C. C., F2d (1967),,Eed ~4on applIe~1 to the U.S. Supreme Court for certiorari and th~ Commission opposed. The ~u- prOme Court granted the petition on December' 4, 1967, and the case is `now pending in that Court. 1 Commissioner Loev~nger is quite right in saying that we have not decided what re- `vision of the rules we will make. lIe ~uggssts, based on our prelinmina~.w discussions, "that the proposed mvisions will involve no improvement ip i~h~ `rules hut merely ançther step away from clarity and nrecision." Since we haven't adoi~ted a new rule, I would siniply invite him to bend his eI!orts toward avoiding the result lie fears. He is~ free t~ make any suggestions h~ likes a~ to the language of the rule, although I don't recall ani~ Specific suggestions be made for revision of the ptesent rule. lIe sivtzply expressed the opinion that the rule "would better achieve its purpose [which he approved in principle] if it were drafted with a clearer delineation of scope and practical operation." PAGENO="0074" 70 While the Red Lion case was on its way to the Supreme Oourt~the Radio Tele- vision New's Directors Association appealed the validity of the "personal attack" rules to the Court of Appeals for the Seventh Circuit. RTNDA petitioned the Supreme Court to grant certiorari before judgment in the Court of Appeals in o~,der to consolidate both, cases in the' Supreme' Court and bring several aspects of the legal issue before the Supreme Court for decision at one time. The Com- mission opposed this motion. On January 29, 1968, the Supreme Court denied the RTNDA petition to bring up the Seventh Circuit case immediately, I~ut ordered the arugment of the Red Lion case postponed until the RT'NDA ease had been decided by the Seventh Cii~c'uit and was ripe for Supreme Court review. Now the Commission decides that, it will petition the Seventh Circuit Court of Appeals to' return the "personal attack" rules' to' the Commission ~or further revision and clarification,. While the Commission has not decided what revision in the rules it will make, the general nature of the proposed revi~io'ns have been proposed to the Commission by its counsel. Though it is possible to' express only tentative views on tentative proposals, it seeems to me that the proposed revi- sions will ~involve no improvement in the rules but merely another step away from clarity and precision. In any event, this epdless `tinkering with the language of the rules cannot affect the governing legal principles, and can amount to no wore than an attempt to buttress legal arguments on the Commission's behalf. The inferences' which the courts, the parties and the public are entitled to' draw from the Commission's wavering course are obvious and justified, But there is a more important consideration for me. At long last the Com- mission is in court with competent opposing counsel testing the existence and ex- tent of Commission authority to supervise and regulate speech by broadcast licensees and those using broadcasting facilities. The Commission is not true to its promise to litigate or to its avowed desire to secure authoritative decision of the issues when it opposes every attempt to bring these Issues before the Supreme Court and then employs such tactics as the present ones, involving Inevitable and indefinite delay and confusion of the issues. The important issues here are not the cleverness, or imskillfnlness, of Com- mission lawy!ers in drafting rules. Since these rules were issued, Serious doubt ,has been cast on their constitutional validity by authoritative publications. See Harry Kalvan, Jr., Broadcasting, Public Policy and the First Amendment, 10 J. Law & Econ. 15 (1967); Glen 0. Robinson, The FCC and the `First Amendment, 52 Minn. Law Rev. 67 (1967); Legislative History of the Fairness Doctrine, Staff Study for House' Committee on Interstate and Foreign Commerèe, 90th Cong. 2nd sesa (Feb. 1968). Regardless' of any changes the Commission may now make in its rules, it will be apparent to the courts that sustaining the constitutional power of the Commission to act in this area will be to concede the power and invite the probability of adoption `of rules at least as onerous as the ones now in effect. The OommiSsion may now change its rules in an effort to make a better showing in pending litigation, but it cannot expunge the record of having adopted the `rifles now under attack. Neither Commission counsel nor the entire Commission can give the courts ttny assurance that the Commission will not `adopt rules just like its present rules, o'r more burdensome, as soon as litigation is concluded if the courts find that the Commission has the power to act at all in this area. For the Commission tO' `rewrite its rules now is obviously merely a `cosmetic effort to present a better face in court. It is not complimentary to' the courts to suggest that they will be influenced by this. Certainly the basic legal issues raised in this litigation deserve the mo'st prompt consideration and determination that adequate judicial process will permit. The action of the Commission will simply postpone Indefinitely the determination matter `serves only its own Interest as a litigant, has no public purpose, and falls considerably short of the diligence, promptness and candor which the Commission demands of its own licensees. Consequently I am forced to dissent. Mr. HYDE. I was asked if I have any other comment on matters un- der discussion. I would like to state that I believe the Commission's position on all the matters that have beeti discussed here, particularly in the docu- mont of Professor Robinson, are adequately and fully dealt with in the `Commi~si'on's rulings in promulgating the ~`airness Doctrine, in the ~Jommission's rulemaking in promulgating the regulations ~ppli- PAGENO="0075" 71. caible to personal attack situations, ai~d in the Commission's decision applying the fairness doctrine to the cigarette advertising You will find in those documents a legal analysis of the constitu- tional question, the legal authority of the Commission. And you will also find the Commission's study of the legislative history of the 1959 amendments, and, in fact, the legislative history of the statutes under consideration. I would recommend those documents for the attention of the committee. The CHAIRMAN. They will be printed in the record at the proper place. (The material referred to appears on p. 219.) Dean BARROW. Mr. Robinson, would you have comments at this time on the comments made by Professor Siepmann? Mr. ROBINSON. Yes, I would like to comment, if I may, on Professor Siepmanri's analysis. Let me state first of all that since Mr. Siepmann does not believe that I have been candid about my ultimate motivation here, I will say in all candor that I don't think the Commission has any business in pro- graming, and if there was anything surreptitious in my paper, it was not intended to be surreptitious, it was only intended to be directed at this particular application of program regulation with~ which I understood the committee was primarily concerned. But I would not draw back from applying these principles across the board. I would not be adverse to saying to the Commission "You may not dictate the content of programs or you may not dictate spe- cifically the conditions under which they will be broadcast." I am not suggesting that the Commission is to be shorn of all its powers to regulate broadcasting. I would certainly suppose that there are no grave first amendment implications with respect to most of what the FCC does. I would think that most of its general regulatory oversight on. economic matters or technical supervision, and generally the public responsibility of the broadcaster, can still be accomplished consistent with the first amendment. But let me suggest that in this particular application of the FCC's regulatory powers, I think there is grist for any critic's mill. More specifically, on Mr. Siepmann's main points: He says that he does not believe that the NBC rationale controls here, but that the true rationale for the Fairness Doctrine, as for other incidents of general program oversight by the FCC, is the fact that broadcasters have temporary conditional and privileged access to the public domain. That is a statement that is replete with a great many concepts, but let me repeat i~ hat I said this morning, that I don't see how it resolves the problem simply by talking about public domain. The issue remains, what can the FCC do, assuming that stations licensed to use "public property" in any sense of the word. The fact of licensing, or the fact of an obligation of public service, is not questioned here. But this does not end the problem; it merely poses it. We still have to inquire, it seems to me, what follows from these fcacts.~ I think Prof. Harry Kalven put it very succinctly when he said in a recent article: S S PAGENO="0076" 7,2 The traditions of the First kmendment do not evaporate because there Is li- censing. We have been beginning, so~to-speak, in the wrong corner. The cjtLestio~ is not what dOe~ the need for ljcei1str~g pernilt the Comalission to do hi th&p~iblic interest. Itath~~, it is what does the mandate of th~ First Amerithnent Inhibit the Ooininission from doing even though it is to license, It seems to me that in that succinct statement, Professor Kaliren has p6inted the way to a more fruitful discussion than engaging in abstract inquiries as to the nature of the "public domain,'~ or the "ownership 9f the airwaves," whatever those terms may mean, or the nature of broadcasting as a "public service." (And, by the way, I doi~it under- stand any broadcaster to claim that it is not a public service. But by th~ same token, I think you would find precious fe~ riewsp~per editors who would confess to hating only the profit mothe: That is not the most profit-making, business to be iti these days. Most newspapermen are just as dedicated to the public interest aS any of the broadcasters.) Mr. Siepmann goes on to outline a series of points as to how this issue can be more profitably discussed, and I think he has put the i~sues very well indeed. lie states, first of all, on religious broadcasting, a principle or conclu- sion which to me is quite interesting, lie says that a religious group which is granted a license may choose to exèlude all religions pro- grams, but if it includes any one, `like pro~rision must be made for other religipus groups in the community on an equitable basis. That may be Mr. Siepmann's reading of the Fairness Doctrine, but it apparently is not that of the Commission. How else could we explain its~ Uecisii~n in the M~'idaZyn Murray casey I may be misinterpreting that decision, but it seems to me it squarely holds that the mere programing of religious broadcasting does not invoke the Fairness Doctrine. Second, Mr. Siepmann argues provocatively for a return to the Mayflower decisidn, which was a complete ban on all editoi~ializing. By this I suppose he does not mean-I think he makes clear that he does not mean-that broadcasters should not discuss controversial pub- lic issues, only that they should not editorialize. But just What is an editorial? If a broadcaster inserts a statement of opinion in course of a public discussion, is t1~iat an editori~l? What difference is it whether it is labeled "editorial" or not? The critical question is, Can you really adequately, meaningfully, discuss contro- versial issues in the vacuum of ha$ing or expressing rio opinion? I think that a return to the Mayflower concept of faii~ness would, return us 28 years~, to an age which, God help uë, I hope `has passed.. It was an age in which'bla~nc1ness was 1~he rule (many"would' s~ay it still pre~rails-en'èOurage~d by the Fairness Doctrinie) and ,whkth I frankly would hate to see broadcasting return to. Mr~ Siepffiann closes with ~ renikrk that we Ought to restore to the airwaves the good manners o~ communications of a civi1~zed. society.' `This would seem difficult to take issue with, except for the fa~t that it seems to be holding up bfboadca~ters to something mOre than mortal standards of conduct. It seenis to `me Mr. Siepuiann'~ remark harks back to some golden era when all argument was genteel and courtly but also never really came frankly to grips with the critical isSues of the times. ` If there evnr w~s such an age when all criticism w'a~ so rethied and genteel I think we are well rid of it. In this vein, I would like to elo~e PAGENO="0077" 73 b~i quoting from an opinion of Justice Brennan in the New Yo~* 7 imes V. Sullivan case, where he said, ~ ~ ~ ~ This Co~itry b~s a prc~foupd nat~ona1 ~onnmit~iei~t ~e the prin~ple that 4pbate on public issues should be uninhibited robust and ~lçie open Sand tb~it it may well include relevant caustic and sometimes unpleasabt sharp. attack. Dean BAmiow. Is there further discussion on this series of papers? Mr. JAT?FE. I agree almost entirely. with Mr. ~qbinso~. I ~ind, Mr. Siepmann's position very sti ange and almost inexplicable E[e seems to set aside-because of the mechanics involved in getting into the industry, the fact that there are problems, technical problems, of making broadcasting effective-he seems to set aside the whole area of broadcasting as a communications device as something highly spe- cial, highly distinct, a sort of virgin in the lists of public communica- tion, which is to have a very special rules, which rules he is prepared to provide. That is, no editorials, no religion but if you have religion then you have to have something else, and sp on, ~. whole series of spe- cial rules which argue for broadca~tii~g as a completely distinct medi- um, apart from all the other mediums of communicatio~ii. The position I am going to take tomorrow is not necessarily the position that the broadcasters take, I am going to t~ke the position that it has never been demonstrated that broadcasting is that different, that distinct, and that autonomous. On the contrary, it is part of the whole complex of communicating devices. The position of broadcasting as a distinct medium has been, if not exaggerated, at leastnever proven. It has never been proved by the FCC which always starts out with how distinct it is, and how glorious it is. The broadcasters think it is that distinct and that it is entirely different from everything else. And so, you need very special rules about what goes on in order to protect the public from getting one- sided positions. I think there are certain fields where broadcasting is distinctive, particularly in the field of political candidates and speeches. But I tliiink in the field of the right to reply and the fairness doctrine, they are just part of the whole totality of communications devices. What I am going to try to do tomorrow issi~ply raise the question whether these doctrines serve any partic~lar function They may not be so bad as made out, they may not be so inhibiting. It see~nsto me the first question, quite apart from ~tjie cqnstitutional question, is whether they really serve any appropriate function and whether you need them, and just where w~ stand on this complex of doctrines, of which I identify four, namely, the political doctrine, the right of reply doctrine, the fairness doctrine, and the local service doctrine, whether each of these doctrines serve any particular, spe- cial need. I have more or less come out with the conclusion that the political candidate doctrine and the local service doctrine have a greater valid- ity than the other two. But my whole quarrel with the kind of argument that Mr. Siep- mann makes, and with the assumptions on which other arguments are based, is that broadcasting is .a world all unto ~t~elf, and the, peo- ple who communicate and listen in this world are really isolated from the rest of the world; that it is the only thing they ever hear, that is PAGENO="0078" 74 ~the only thing they listen to, and that you have to have, special rules to protect these people living in this isolated world. Dean BARROW. Are there additional comments? Dr GoLDIN I was interested, Mr Jaffe, in your comment that you thought that puiiticai broadoa~ting' was different, and that it probably was constitutional. Did I understand that correctly? Mr. JAFFE. Yes. Dr. Goldin, I wasn't attempting very much, either here or tomorrow, to deal with constitutional issues. I think they have been very, very thoroughly dealt with in many different places. I think they are going to be dealt with by the Supreme Court shortly in a very authoritative way. I don't mean that keeps us from talking about them. But I would prefer in the thinking I have done about the matter to examine the initial premise that you are in a field here `that is rather special, where you need a special set of rules for communicating that you don't have In the other fields of communication. I think if you need a doctrine of this sort, the greatest need is in the field of political discussion I don't know that you even need a rule there, because~ it may be that sei'f-iiiterest would keep the broadcast~rs in line. I don't know. Assuming that you might need it there, whether that would demon- strate whether it is constitutional or not, I don't know. I would be pre- pared to make an argument for its constitutionality. In a sense, one might say the Supreme Court has never, I think, faced ver~ squarely the constitutionality of controls of this sort. They have, however, as we know in the case coming from Minnesota dealing with the libel law, proceeded as if section 315 were constitutional and have gone on to make decisions as to what consequences of 315 were on the law of: defamation. I suppose it never occurred to anyone at the time to question the constitutionality of 315. Dr. GOLDIN. In. that connection, may I read one sentence from that decision? "The thrust of section 315 is to facilitate public debate over radio and television," said Justice Black, and they went on to uphold the section. Mr TAPFE I am sure they assumed it was constitutional, and I wouldn't be at all surprised if they hold all the other things constitutional. Dr. G0LDIN. If they held it' to be constitutional on raido and tele- vision, what about the print media? Is it constitutional in print media? Mr. JAFFE. My feeling as to section 315 functions is based on the tremendous importance of the impact of the pers9nality of the candi- date as a distinctive characteristic of the medium, a characteristic which I don't think is at all so significant with respect to the personal attack or the so-called Fairness Doctrine in discussion of ideas. Dr. G0LDIN. Are you bringing back, then, the unique characteristic of radio and television? Mr. JAFFE. I think that with respect to political campaigns it is unique as a medium. Whether the uniqueness of the medium allows von to get by the p~rdbieths of the first amendment, I don't ,know. Dr GOLDIN I think for the record also, this might be helpful There was a question raisedby Profe~sor Robinson about congressional intent in respect to fairness. I think the record ought to be complete by having PAGENO="0079" 75 inserted in the record, a section of the Communications Act which was passed in Octob~r 1967, which is section 896(g) (1) (A), which refers in that co~itext to educational broadcasting, but where the Congress imposed an obligation on the corporation for public television to insure that the programs which it distributed to the stations should be with strict adherence to objectivity and balance in all programs or series of programs of a controversial nature. Dean BARROW. Mr.Robinson. Mr. ROBINSON. In my paper I hadn't really focused on that par- ticular amendment, but it does seem to me to be anomaly to talk about congressional ratification of a doctrine as far reaching as this one is (and as troublesome apparently to this committee-witness these hearings) by attempting to grab hold of bits and pieces of amendments passed without any reflection on the Fairness Doctrine as it is applied generally-with all its implications. To construct out of these bits and pieces some kind of statutory ratification of the doctrine seems to me to be a very bad way to make statutory law. If, however, Congress did ratify the doctrine in this way, I would urge strongly that it ought to be reconsidered, notwithstanding that it has been incorporated into the Communications Act. Dean BARROW. Mrs. Pilpel. Mrs. PILPEL. Mr. Jaffe said he did not think there was such a great distinction between the print media and the broadcast media, and he seems to deduce from that that you should not be able to regulate the broadcast media because you can't regulate the print media. I would venture to suggest one could make exactly the opposite argu- ment, namely that the kind of doctrine which has evolved in the Fairness Doctrine is the kind of doctrine which may now be urgently needed in one form or another in connection with the print media, and that a right of access, for example, or a right of many sided presen- tation would not only not violate the first amendment when involved in broadcasting, but would also not violate the first amendment when involved in the print media,~ Notwithstanding the various ways the first amendment has been referred to, it does not prohibit Congress from making laws regulating freedom of speech and of the press. It prohibits Congress from making laws abridging freedom of speech and of the press. Actually, we have U.S. Supreme Court decisions in many cases to substantiate the fact that Congress may indeed make laws in aid of freedom of the press. I don't want to take the time of the committee at this time to refer to more than one, the Associated Press case, where the court said "It would be strange indeed, however, if the grave concern for freedom of the press" land this had to do with the press not with the broadcast media] "which prompted the adoption of the first amendment should be read as a command that the Government i~ without power to protect that freedom. That amendment rests upon the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfai e of the public, that a free press is a condition of a free society." I would submit that the Federal Communications Commission h'~s done a great public service in promulgating the Fairness Doctrine and that this cornn'iittee might at some point wish to consider whether PAGENO="0080" 76 some such doctrine~thigbtiiot' well be applied in those situatibn~ where there is no realistic access to print media in the community Mr JAFFE I just want to correct the statement that I was thakthg an argument about something I tried to refrain from making any argu ments about the constitutionality I was not distinguishing between the press and broadt~asting with respect to coiistitutioxlaiity. I was raising the question whether the broadcasting is so apart frOm all other organs of communication that some kind of special rules are ne~Ssary in communicating in that medium. I would be prepared to make arguments, but I wasn't making any I wasn't saying that there is no distinction upon which you could justify a regulation of one and not the regulation of another. :oean BARROW. We are going to take these que~tions, but in doing So may I point out that we were to have started with paper ~ 4 at 3:10, and we are running a little behind.' Mr. Alexander. Mr. AI~xANnER. It seems to me there may be an internal incon- sistency in what Professor Jaffe says, if he tries to divorce discussion of issues from political discussions, or in effect divorce fairness from equal time. It seems to me if you admit the necessity of regulating political broadcasts, it flows fi~om that that you have to be concerned about f'urness in the voicing of the issues, which politics is all about Mr. ~JAFri. I haven't read my paper yet. I am going to try to demonstrate that I think there is a distinction. Dean BARROW. I trust we will get more comment on this subject when Professor Jaffe presents his paper. Mr. WASILEwSKI. I would hesitate to get into a discussion between and among Professor Jaffe and the other professors at the table, but it occurred to me the big distinction between Professors Siepmann and Robinson is that, although they both would accord óonstitutional principles to broadcasting, Professor Siepmann takes the position that once you apply for a license you make a contract with the Government and, therefore, waive certain constitutional protections you other- wise would have. That seems to me the logical sequence he takes in the religious situation. The Government does not require religion, but if you put on religion, then the Government could require religion. There- fore, you do waive constitutional rights. To pursue Mrs. Pilpel's logic, I think her logic is unassailable, though I think it should be applied in reverse, namely, that the constitutional principles, she says, that are applied to broadcasting and the Fairness Doctrine as applied to broadcasting could legally be applied to newspapers. I would say if they can be legally applied to broadcasting, they could probably be legally applied to newspapers. However, I don't think it can legally be applied to newspapers and, therefore, it should not belegally applied to broadcasting. Mr. SIEPMANN. In support of Mrs. Pilpel's view, we might remem- ber a report from the Luce Commission, respecting the whole issue of the freedom of the press. One sentence takes us to the heart of this whole rn~atter of responsi- bility and answerabnlity to the public at large It said, referring to the press in the broad sense but spec~flcally in terms of the newspapers, PAGENO="0081" 77 that without the assumption of moral responsibilities there are no moral rights. I think that is a pregnant sentence which focuses on the point of difference between some of us in our present discussion. Mr. WAsII~ws1~I. 1 would quote Justice Brandeis to the effect that it is more necessary to be on our guard to protect liberty ivhere the purposes of Government are beneficient. Dean BARROW. There were two matters in Professor Robinson's paper which have not been commented on, and perhaps others should, if they are worthy of taking issue with. He has considerable to say about the vagueness of the doctrine, and I think we might recognize that actually most of the regulations under the Communications Act have been under the standard public interest, convenience or neces- sity which I think certainly is no less vague, and perhaps it shouldn't have been as vague as it was. But somehow we have developed a broadcasting industry and a regulatory policy larg~ely around that standard. The adequacy of it has been tested in a number of decisions, and, of course, has al~ ways been upheld or we would not be operating under it today. Also, he shows consideçrable concei~n about the danger to individual broadcasters in attempting to apply the Fairness Doctrine. F know of no instance-perhaps the others would~-in which anyone has lost a station or has been under the real threat of losing a station with regard to the application of the Fairness Doctrine. If I am wrong about that, I would like to be corrected on iL I would even wonder if in the cases now before the court involving the Fair- ness Doctrine If the broadcasters should lose their case if it would raise any problem of that kind. Mr. Hyde, would you have any comment to make on that, or is it inappropriate for you to comment on that? Mr. HYDE. I would not comment on any pending case or any case in court. Up to the moment, no license has been revoked, no renewal has been refused, no fines have been assessed, on the basis of fairness rulings by the Commission. Dean BARROW. Mr. Chairman, we have a coffee break scheduled at some point this afternoon. I would raise with you whether this would seem to be the appropriate time to do it or whether we should go ahead with the next paper, which is the final paper of the day. What is your pleasure, please? Mr. VA~ DEERLIN (presiding). The consensus of the committee seems to be that coffee is an anytime thing, and we just might be called back to the House floor. We have such a great collection of talents here we would like to stay with it. Dean BARROW. Our next paper is to be submitted by Mr. Reuven Frank, with the title "Effect of the Fairness Doctrine on Broadcast News Operations." PAPER NO. 4-REtIVEN F'RA}~K: THE EP1~ECT OP TflE PAIRNESS DOCT1tIi~E ON BROA1X~AST NZWS OPERATIONS Mr. FRANK. Thank you. My name is Reuven Frank. I am the executive vice president of the NBC News Division, and am in charge of its day-to-day operations. 92-602-68-6 PAGENO="0082" 78 The NBC News Division develops, supervises, and presents all of NBC's news programs-regularly scheduled hard news i~eports and analysis, `special event `and political coverage, news interview pro- grams, and documentaries. ` This totals a massive amount of varied programing, on tlie air many times a day on NBC-owned stations, and on our radio and tele- vision networks. It represents almost 25 percent of the NBC' Televi- sion Network's total schedule and calls for a staff of more than 900 people. I myself have worked in the news business for over 20 years as a reporter, writer, editor, producer, and administrator. I started with a newspaper and since 1950 I have been with NBC News. I have been asked to discuss the theory and application of the Fair- ness Doctrine from the point of view of a working newsman. It is one of the limitations of language that anyone questioning the Fairness Doctrine or how it is administered sounds as though he is against fairness. No doubt `a different impression would be created if we called it the "Government Interference Doctrine" or the "News Regulation Doctrine," and perhaps this' discussion `would move `better `if we used a term like "Doctrine X," that did not prejudge the matter by its name. We could then consider whether "Doctrine X" was a good idea to start with, whether it is being producthrely followed, and what are its prospects. It was first enunciated to insure fairness in a public medium of great reach and influence. Has it? That's a hard question. Even before we reach the details we get hung up on the wisdom or `desirability of taking judgment of journal- istic standards in the treatment of controversial issues away from trained journalists, and giving the supervision of such judgment to a Federal agency. Government is a community. Journalism is a community. The community of American journalism-~an'd this may be its most important function-is charged with keeping an eye on government. There is a logical flaw in having `a part of government judging how it performs this function. In my view, increasing Federal enforcement of a Fairness Doctrine in broadcasting will create more serious problems than leaving these judgments to the broadcast news organizations and to the reactions of the public they `seek to serve. I reach this conclusion on several considerations. First is the fact that the judgments involved are intricate and com- plex, calling more for the skilis and sensitivities ~of the professional journalist than those of the Federal regulator, who must regulate in terms of rules, definitions, and precedents. This consideration is `fortified by the tendency for regulation to start out on a broad and generalized basis and then to `get more and more detailed, rigid and restrictive. This has been true of. the admin- istration of the Fairness Doctrine. Second is the diversity of the broadcasting medium. `There are far more separate voices in radio and televisiOn than in the newspaper or wire service fields, nationally and in individual communities. Broad- casters do not speak with one voice, and the competition and variety in ideas and presentations in broadcasting are certainly no less than in any other news medium. ` , PAGENO="0083" 79 Furthermore, every broadcaster must satisfy a diverse audience. He is wholly dependent on great numbers of voluntary choices made hour `by hour by viewers and listeners, who have a strong personal identification with the medium, and who will be alienated `by obvious bias and distortion. Few Americans would admit they themselves need the protection of a Federal agency calling the shots on journalistic fairness. Finally-and this is wholly a judgment factor-it seems to me that the public is endangered less by the possibility of a few irresponsible broadcasters in a responsible industry than by an increasing Govern- ment penetration into the operation and content ~f a news medium. Such Government intervention has the most serious implications, and can contribute to an irreversible trend. I am not a lawyer and cannot speak as an expert on the legal de- velopment of the Fairness Doctrine. I understand that the doctrine started as a statement of general principle applicabie primarily to broadcast editorials. Now, only a few years later, it is `already at the point of a set of detailed and restrictive rules of uncertain interpretation. The matter started in 1949, when the Federal Communications Com- mission reversed its earlier decision holding that broadcasters might not editorialize. In reversing this ruling, the Commission declared that if a station presented views on one side of a controversial public issue, it should make time available for the opposing side, emphasizing that the particulars were for decision by the broadcaster, exercising "his best judgment and good sense." By 1964-that is 15 years later-the Commission had applied this doctrine to a variety of presentations, not confined to broadcast edi- torials, but `the standard it outlined was still a broad and general one, stated in these terms: The licenlsee, in applying the Fairness Doctrine, is called upon to make rca- sonable'juigments in good faith on the facts of each situation * * * In passing on any ~omp1aint in this area, the Cotmmi~scion's role is not to substitute its judgment ~or `that of the 1iccnJsee * * * but rather to determine whether the licensee can be said to have acted reasonably and in good faith. only 3 years later, this general statement of principle had been ex- panded to an ever-growing code of practice, specifying procedures to govern various aspects of the Fairness Doctrine. To illustrate how rigid and difficult these restrictions have rapidly become, I'd like to mention a recent application of the so-called personal attack rule, one of several byproducts of the Fairness Doctrine. A few months ago, a radio station broadcast a brief announcement containing a quotation from J. Edgar Hoover and a statement referring to the DuBois C1u~bs of America as a "new Marxist youth organization-founded at a special meeting in California dominated and controlled by American Communists." When chailenged to give the DuBois Clubs broadcast time to respond, the station objected, citing a variety of findings by the Attorney Genera1~ the FBI, ~n'd two congressional `committees confirming the accuracy of the statement. The Commission overruled the obje~tion, declaring that the truth of a "personal attack" was not a defense `to the obligation th provide time to answer. PAGENO="0084" 80 To reach this ruling, the Commission had to flnd~that the comment was in fact a "personal attack," which it had previously defined as "an abtaøk-upon the honesty, ~character, integrity, or like personal quali- ties of an identifl~d person ~or group.". It had to disregard the truth ~of the statement. It had to find that the licensee was acting unreason- ably and in bad faith when~ the~ station judged that i~he statement did not involve a genuinely "controversial issue of public importance." And if there was really a controversial issue, it had to disregard the possibility that the station may have previously presented the op- posing sides of that issue. Having done all this~ the Commission required the station to present a broadcast by the DuBois Clubs. I do not mention these factors to dwell on the merits of a particular regulatory decision. But I offer it as a striking and current example of how deeply Federal intervention into news programing can go, once it starts down the road of regulation, no matter how benevdlent its purpose seems. If we consider how this ruling embraced a series of involved inter- pretations-on any one of which reasonable men could certainly differ-we can recognize the increasing strain the Fairness Doctrine can place on a vigorous news operation. And if we multiply this instance by the hundreds of occasions in which a direct or implied criticism of a person or organization can develop, in an interview program or an investigative report or a docu- mentary, we can see the enormous difficulties which could arise from a strict application of the "personal attack" rules. It seems t~ me that this kind of regulatory constraint must inevit- ably have a progressive flattening effect on news presentation, par- ticularly in their most vital and sensitive and socially useful areas- the treatment of controversy. The worst thing that can happen in news is for so~ne editor, some producer, or some reporter to shy away from any subject `because it isn't worth the trouble. Not the trouble his professional activity will put him to, but the trouble which might result. Such trouble could range in magnitude from a flood of angry letters which need answering to `appearing in court to respond to a nuisance suit. There are enough inhibiting factors now without adding to the list the spector of detailed day-to-clay second guessing by the FCC. Such prospects cause self-censorship, and if the situation gets bad enough it can restrict broadcast journalism to a mixture of the dull and the frivolous. In fairness, I do not have a catalog of horrible examples showing how the Fairness Doctrine has prevented NBC News from `exercising its responsibilities. For one thing, many of the Commission's earlier ruiin~s on fair- ness related to broadcast editorials; and we do not editorlhze, believ- ing that we can do a more enlightening job through news reporting, analysis, and interpretation than through brief statements of advo- cacy. Furthermore, until recently, the Fairness Doctrine was also a statement of general principle with latitude to the broadcaster in its application, rather than a detailed code of behavior. PAGENO="0085" 81 I should add that under this general principle, complaints have~been field against NBC News, but in no case has the Commission foui~d that we violated the principle. On this basis you may feel that we are protesting before we have been hurt. I believe, however, that we have a cause for concern., Tele- vision journalism is only about 20 years old, and is still changing its~ techniques and revising its forms. NEC News is seeking more and more to go beyond the television picture o~. an event to explain its background and implications. We are readying an ambitious new project-a 2-hour prime-time news program to be called "First Tuesday"-which will aim at bringing a greater awareness of issues and events to the audience. So, we are concerned that just as television news programing seeks more and more to come to grips with vital i~sues, the Fairness Doctrine~ will continue its recent trend toward greater and greater restriction and regimentation. Our conc~tn is, therefore, more with the future than the past. If there is to be a Fairness Doctrine at all,88 we believe that it should not go beyond the broad and flexible standards set forth in the FCC's 1~64~ statement. This statement, as I said earlier, left the initiative to the broadcaster "to make reasonable judgments in good faith on the facts of each situation." It declared that "the Commission's role is not to substitute its judgment for that of the lieensee-~but rather to determine whether the licensee can be said to have acted reasonably and in good faith." But that is quite a different standard from the one now being fol- lowed by the Commission. I suggest we would all agree that it would be unthinkable to im- pose anything like a Fairness Doctrine on newspapers or magazines, or would have agreed to that ~ip to about a half hour ago. We would consider jt unc2nstitutional for a Federal agency to a~ alyze newspaper interviews, reports, and editorials, and, on complaint, to require the publication of additional material to treat further.a~pects of controversial issues. It is usually argued that broadcasting is different because it is ii- *censed, but this is arg~iing in a circle. A~ Federal license to use fre- quencies in the public interest does not suspend the freedom of the press of which broadcasting is a part. It is nlso argued that broadcasting facilities are so scarce and new entry into the field is so limited, that special limitations Qfl Lroadcast expressionare justified, while the diversity of newspapers makes such limitation urniecessary in that field, But any basis for that argument disapp~ared long. ago~ When the Constitution and the first amendment were. adopted, there were very severe technological limits on the production of newspapers in this country. It. has been, estimated that at the end of the Revolu- tionary War, there were only 4~ newspapers in all the Staes~89~ ~ ~BC o~,poses in principle the concept that a rederal agency should establish and enforce rules directly applicable to the content of news and discussion prcgra~fis. It li participating Ia two cases now in the courts s~e1Ung to having th~ faitness doctrine d~. dared invalid because of a conflict with the first amendment. ~` Chenery, "Freedom of the Pregs~" ~. 14~2 ~i~55)c PAGENO="0086" 82 Yet despite this scarcity, an absolute constitutional prohibition was adopted against abridging the freedom of the press. In the early stages of broadcasting, facilities were indeed limited.. Since that time, however, the number of stations has multiplied enor- mously. By 1965, there were over 5,000 radio stations ai~d more than 500 television stations, while the numberof daily newspapers had de- dlinedto 1,751.~° Moreover, within any given locality, there are generally fewer daily newspapers than broadcasting stations. So far as new entry is con- cerned, economic realities greatly restrict new entries into the news- paper business, and newspaper terminations and mergers have pro- gressively shrunk the total. Some of the statistics on these points are assembled in an appendix to my statement and I will not detail them here. They show a large~ and increasing number of competing "voices" in broadcasting, and a smaller and declining number in the newspa~per field. If an argument can be made from these trends, it is not that scarcity of facilities justifies singling out broadcast news for regulation Rather it suggests the importance of free expression in broadcasting as an offset to the decline in the diversity of print journalism. The Supreme Court has said: A free press stands as one of the great interpreters between the Government and the people. To allow it to be fettered Is to fetter ourselves.~' I cannot accept that this applies less to news as broadcast than to news as printed. Nor is there anyreason to assume that Federal regulation is needed to prevent broadcasters from misleading the public through bias and distortion in dealing with controversial issues. That danger is precluded by the very diversity of outlets and the intense competition in the field. It is precluded even more by the con- trol a vocal, responsive, and reacting audience exerts on broadcast expression, especially when it deals with controver~tial issues. By definition, a controversial issue involves strongly opposing pub- lic views, and these opposing views are reflected in each station's audience. Viewers and listeners who have strong convictions on one side of a controversial issue will resent a biased treatment favoring the other~ side. If a broadcaster keeps up such biased treatment, the resentment will mount, and the offended viewers or listeners will turn away to another station. This is only one example of the interaction between broadcasting and its audience-which goes on all the time-and which is a more effective, more democratic, and less hazardous influence on responsi- bility in dealing with controversial issues than the processes of Fed- eral regulation which are necessarily so clumsy. Before closing, I should like to spend a few moments on section 315 This section, designed to provide equality between the candidates, actually works to prevent broadcasters from providing the public~ 4° U.S. Bureau of the Census, Statistical Abstract of the United States, 1966; pp. 519, 523; (87th edItion). ~` Grosjean v. American Press Co., 297 U.S. 283, at25O (1936). PAGENO="0087" 83 with maximum information on election campaigns, as was pointed out so well this morning. The so-called Lar Daly amendments did give us some welcome free- dom. But section 315 continues to prevent us from giving the broad coverage which was possible in 1960 when Congress suspended the equ'L1 time requfrement for presidential and vice presidential can- didi~tes. Everyone remembers the debates between Senator John F. Kennedy and Vice President Nixon, but many other informative programs were also given life by the suspension. One good example was the NBC News special series, "The Cam- paign and the Candidates," a weekly 1-hour program in evenihg time, which presented the principal presidential and vice-presidential can- didates discussing the issues. In 1964, when the "equal time "rule was reinstated, "The Campaign and the Candidates" lost a good deal of its value because it could not present the candidates themselves, and through no fault of ours it became less of a~ service to the public. There is a public need for such programs in addition to the coverage of the campaign on news and news interview programs. Broadcasters should also be permitted to cover along with all other news media, the legitimate news conferences of the candidates. But the FCC has ruled that such coverage requires equal time to be given to all that candidate's opponents. NBC favors repeal, or suspension for the 1968 campaign, of section 315, or, at the very least, the enlargement of the present exemptions to include all debates, bona fide news conferences, and all bona fide news documentary programs. (The attached appendix follows:) PAGENO="0088" 00 ~ C) 0)~~aq ~C) ~ 0) ~ DO A)'< ~cD3~~oo 0) ~g e - C) 0 0 0 $ 0 3 ~$ 0) 0 - 0 -~ 0$ 0 0 0 0 $ 0) 00 C) 00 0 0$ 0 0 (0 CO F 0 0$ 0 0 CO 0$ (0 * 0 ) $ 0 0 00$ 6 0 0) 0 0 0 $~ $~ *~$ (000 0 0 0 ~I0 0 0 :~ :~ C) $ 0 0 0 0 0 0 0 $ $0 ~ -~ - . . $ 0 -$0 0 0 0 >~ ~ 0 0 0- 0 0 - 0) $ 0 0$: -~ ~ 3 $ $ 0 $ $ -0 0 0 0 0 0 0 - Ii; ~ E PAGENO="0089" 85 II. BROADCASTING STAT$ONS AND DAILY NEWSPAPERS IN THE 5 LARGEST METROPOLITAN AREAS IN THE UNITED STATES' 1960 Daily Broad- popula- news- casting AM FM TV tion p~ipers stations New York 10,694,632 21 79 35 35 9 Cl~icggo - 6,220,913 13 79 32 39 8 Lo~ Angeles-Long Beach 6, 038, 771 21 76 32 35 9 Philadelphia 4, 34~, 897 17 52 23 22 7 Detroit 3,7~2,36O 5 41 12 23 6 I In etch instance the area referred to is the appropriate standard reetropolitan statistical area (SMSA) as defined b the Bureau of the Census. The figures are cdtnpiled from U.S. Bureau of the Cent~s, County and City Yearbook, 196 table 3; Editor and Publisher Yearbook, 1966; Broadctsting Yearbook, 1966; and Television Ftct Book, 1966. Mr. VAN DEERLIN. The committee will have to recess for a few min- utes at this time to answer a call to the floor. (A brief recess was taken.) Mr. ADAMS (presiding). The subcommittee ~will be in order. I under- stand that Mrs. Pilpel does have some other things to do. So in order to accommodate her, and with the permission of the rest of the panel, I thought we might proced and then as the other members arrive, we will take their questions. Dean BARROW. I understand Mrs. Pilpel wishes to give an oral com- ment on Mr. Frank's paper, which was her assignment and then to offer for the record a longer prepared statement, if permissible. Mr. ADAMS. Mrs. Pilpel, you want to just have your prepared state- ment entered into the record ~ Mrs. PILPEL. Yes. Mr. ADAMS. If you wish to do that, we will have your comment and without objection the statement will be entered into the record imme- diately following your remarks at this point. COMIVIENT O~M PAPER NO. 4, BY HAR1~tET P. PILPEL Mrs. Pir2ri~r.. Thank you, Mr. Chairman. The reason for this oral presentation is that I did n~t receive Mr. Frank's paper until it was too late to change my paper which I found was not r~ally an answer to what he sa~id. I will now orally direct my attention to the points he made. Ever since the AmeHcan Civil Liberties Union was founded in 1920, it has been committed to the defense, support, and expansion of the first amendment's guarantee of free speech. Because this guarantee ismade meaningful only when citizens enjoy access to the fttll range of information and opinion, the ACLU is vitally concerned with the realization of diversity of expression, and believes that the Fairness Doctrine serves that end. I was pleased to note that Mr. Frank has not actually experienced any of the dire consequences which he fears might flow from the Fair~ ness Doctrine but be thinks nonetheless that we had better be very super carefttl to avoid any of them coming into existence. He points out that 25 percent of NBC's time is spent on news reports, analyses, special events, political coverage, news interview programs, and documentaries, which does seem to me an enormous amount, and he acknowledges nothing has happened to canse ~erious concern on his PAGENO="0090" part, since, as he said, the Fairness Doctrine has in no way impeded or interfered with the NBC operation. He does, however, refer to the Fairness Doctrine as possibly being more accurately described ~s the government interference doctrine or the news regulatory doctrine, or doctrine X. I think that these descriptions of the Fairness Doctrine misconceive the nature of the doctrine entirely, It is certainly not news regulatory. It says nothing whatever about what the broadcasters shall treat of in their broadcasts. As to Government interference, certainly Government interference, if we want to call it that, in the direction of insuring diversity of pres- entation and balance of points of view, is not interference. The failure of the Government to do anything to prevent broad- casters from presenting only a single point of view would, I thmk, be far more of an infringement on freedom of expression than the Govern- ment's acting as it do~s through the Fairness Doctrine as a means of insuring that a diverse number of points of view will be represented. Mr. Frank goes on to say, in what I think is a rather hopeful man- ner, that the community of American journalism is charged with keep- ing its eye on the Government. I had not realized that. He then deduces that there is a logical flaw in having a part of the Government judging how the professional journalistic community per- forms its fuhction. However, the FCC does not judge whether the broadcasters are satisfactorily keeping an eye on Government, nor has it asked them to do so. The FCC's job is to determine whether broadcasters are fairly deal- ing with public issues, and whether private individuals are given a right to defend themselves. Surely the people of this country are entitled to that much protection with reference to the functioning of public franchises, which in the final analysis belong to them. There is an article in the Harvard Review of some years ago, which I am sure many of you will be interested in reviewing again, called Regulation of Program Content by the FCC, which makes clear that we really need checks and balances in the broadcasting arena, that the only safeguard against the big government which the broadcasters so fear is, of course, big business, and vice versa, that the only real pro- tection against the broadcasters must be the Government. I submit it is better to have two big daddies than one, and that the kind of equilibrium which can be arrived at by the Government watching the broadcasters and the broadcasters watching the Govern- ment is probably the best we can hope for in the forum of fred expression. However, Mr. Frank says that we should leave all judgments to the broadcast news organizations and to the reactions of the public which they seek to serve. I can't help but ask why. Why should federally licen~ed corporations not be subject to even a minimum regulation such as the Fairness Doctrine? The argument that Mr. Frank makes proceeds on a basic misconcep- tion, it seems to me, namely that the first amendment exists~for the freedom of the broadcasters, and that nobody else's free speech or free press is involved. PAGENO="0091" 87 Tt hardly seems necessary to state that recent decisions of the ~Supreme Court and other courts have established that freedom of cxpression is also the right of the public and of the audience, and not primarily, certainly not solely, the right of the broadcasters. I doubt that Mr. Frank would oppose the recent antitrust proceed- ings in the newspaper field which are designed to prevent further concentration of ownership or control with respect to the relatively few remaining newspapers. Diversity is the watchword there and i-here is no danger to freedom of the press. Diversity is also the watchword of the Fairness Doctrine. Mr. Frank states a number of reasons for opposing the Fairness Doctrine. First he says that we need the intricate skills of the professional journalist rather than the Federal regulators. No one disputes this. The point is that if the broadcasters fail to do their job in the direction of fairness and diversity, surely the audience, ~the people of the United States, are entitled to some mechanism to insure that their freedom of expression can be respected and that they ~can get a balanced presentation. But, says Mr. Frank, there is diversity in the broadcasting field, no less, anyway, than in any other news media, and audiences will be alienated, he says, by obvious bias and distortion. In many communities, particularly as to television, the audience does not have much choice. There is a scarcity of channels. Moreover, as with problems of democracy, generally, the test should not only be whether a majority is served. The genius of our Constitution is its protection of minority rights and viewpoints, and the Fairness Doctrine may be essential in this regard because the directional attitude and reaction of audiences is likely to reflect majority views, but not necessarily minority views. Mr. Frank, however, fears "the increasing Government penetration into the operation and content of the news media." Surely, this is absurd. Just to read Mr. Frank's own formulation of the doctrine makes clear that it involves no Government penetration, but simply, as he puts it, that if a station presents views on one side of a controversial issue, it should make time available for the opposing side, or sides. That does not sound like Government's penetration or Government imposing its point of view. Even the example Mr. Frank gives in regard to the DuBois Clubs proves the opposite of his point. He refers to the "accuracy tf the statements made about the DuBois Club" as being "confirmed" by the Attorney General, the FBI and two congressional committees. But surely Mr. Frank knows that such sources do not and cannot "confirm the truth of the statement." In this country everyone, even i-he DuBois Club, is innocent until found guilty by a court, not by a prosecuting agency like the FBI or a legislative committee, and surely the DuBois Club should be given a right of reply, which is apparently all that they were asking for in the situation he referred to. Mr. Frank then states that if the Fairness Doctrine goes on, there is a danger that it can restrict broadcast journalism to a mixture of the dull and the frivolous. I assume he does not think that is a good description of the present content of television. However, I find the statement rather shocking. PAGENO="0092" 88 Broadcasters are licensees. They are franchised to operate public air waves which are loaned to them in the public interest, coiwenienee and necessity. The Federal C~mmunications' Act, which gives the broad- casters their licenses, so provides, and if what they broadcast be- ëomes only ~a "mixture of `the `dull and the frivolous," they ai'e surely notentitled to any special consideration to have their licenses renewed. Perhaps other broadcasters would be able to find something other than the "dull and frivolous~" So long as the number of avthlable fre- quencies is limited, surely' it is the duty of the ómmission to impose at least such minimal ;safeguard~ on freedom of speech `dve~ the years as the Fairness Doctrine represents. I suggest that we would all agree, Mr. Frank `says, that it would be unthinkable to impose anything like a Fairness Doctrir~e on newspa- pers or magazines, lie has ~cknowledged that he no longer thinks it is unthinkable, at least by other people, since I suggested to the commit- tee before that a Fairness Doctrine in certain situations in the press might be an excellent idea. So I will not repeat that. And finally~ Mr. Frank says that when the Constitution and first amendment were adopted, there were only 43 newspapers in all the States. I hardly need remind Mr. Frank that at the time of the adoption of the amendment, the number of States was 13, and the total popula- tion, most of it illiterate, a few million. And although Mr. Frank says that there is a large and increasing number of competing voices in broadcasting he does not mention the fact that increasingly new~papers and broadcasters are coming to- gether in one ownership, a threat to diversity with which we, I presume, are not here concerned today, but a' thi~eat nevertheless. Moreover by and large, newspapers have more editorial content than television stations anyway. It may well be that a Fairness Doctrine should apply to print media, as I said~ but just addressing myself to broadcasting, and to Mr. Frank's conclusion that we should rely on the interaction between broadcasting and its audience rather than on Fed- eral regulation, I would submit to the committee that every case in which th&Fairncss Doctrine was held violated reveals the necessity for its existence. If Mr. Frank were right, that audience reaction would do the neces- sary, even to the protection of minority and unpopular views, then at worst, the Fairness Doctrine would be surplusage. On the other hand if as seems to be the case violations take place then Mr. Frank should not object to the Fairness Doctrine as an avail- able corrective. While we do not agree that FCC regulation under the Fairness Doctrine is clumsy (the way be describes `it) we do have a suggestion which isset forth in the written statement which I am filing, which might make for a simpler and more effective way of enforcing the Fairness Doctrine. Because of the lateness of the hour, I will not go into our suggestion except to say that what it is, is that we might adapt the system em- ployed in hearing complaints of election frauds to hearing complaints of violations of the fairness doctrine. In other words, you might have local citizens' committees of three `members `throughout the tTnited States in each community and five member citizens' regional advisory committees covering the same PAGENO="0093" 89 geographical areas, as for example, the courts of t~ppeal, which would investigate and pass upon fairness comtlaints. The final decision Wotdd be ~made by £he Commission, but this pro- posal would have the advantage, it seems to us, of stimulating local interest, of giving people in the community the possibility of register- ing their own views, and making it possible for the FCC not to become unduly involved in the day to day operation of stations in terms of finding out whether a Fairness Doctrine complaint is justified or not. As you said, Mr. Chairman, the rest of what I have to say as to why the Civil Liberties Union feels that the Fairness Doctrine is a vital cog if we are to preserve free speech on the air iBset forth in my pre- pared statement. Thank you very much. (The statement referred to follows:) STATEMENT OF Mus. HARRIET PILPEL, CHAIRMAN OF COMMITTEE ON COMMUNICATION MEDIA, AM1~RICAN CIVIL LIEERTIES UNION Ever since the American Civil Liberties Union was founded in 1920, it has been committeed to the dqfense, support and expansion of the First Amendment's guarantee of free speech. Because this guarantee is made meaningful only when citizenry enjoys access to the full range of information and opinior~ so essential to the democratic process, the ACLU is vitally concerned with the realizatioi~ of 4iversity of expression. Inherent in the Union's concern with diversity is its conviction that contro~ versy on public issues must be presented with the greatest possible diversity of viewpoint especially where decisions will be made that directly and intensely affect people's lives. All sjde~ of the issues should be represented so that in taking positions the public is aware of whatever choices or alternatives are involved. One significant route to broadcasting diversity which the Union has endorsed repeatedly is the fairness doctrine, which we believe has the potentiality to expand the scope of controversy on the air, thus expanding the marketplace of `ideas to which the public is exposed. Our interpretation of the dOctrine is that if broadcasters are to operate their publicly~granted licenses in the "public interest, convenience and necessity" they must present vartous sides of impor- taut public issues. The doctrineS expresses the broadcaster's responsibility as a public licensee to acquaint his audience with a variety of points of view, and. when individuals and organizations are under specific attack to grant them a right to be heard. The fairness doctrine. refiect~ three distinct sources: the First, Amendment, which has meaning only if. all kinds of ideas can freely circulate; the ~A~merica~i tradition of fair play, which calls upon us all to be receptive to all sides of the story; and the public nature of the airwaves, which obligates the licensee to perform in the best interests of listeners and viewers~ The ACLU's vigorous support for the fairness doctrine is in no way Incon- sistent with its constant awareness of the danger of censorship which may in~ here in government regulation including the fairness doctrine, which touches so closo~y on programming4 MoreQver, while aimed at encouraging controversy on' the air, the doctrlne must be c~~efully applied ~eRt the licensee avoid contro- versy in programming rather than risk in,velvement. with a government ~gency over interpretation ~f what is coptroversy. For example, an interviewer might avoid asking his guest certaIn provocative que~tlons for fear that the responses would be. interpreted by tile FCC as `an attack on an absent individual, to whom the station would then have to give re~ly .time~ However, on balance the ~Juion beileves that thefairuess doctrine Is a stimulator and not an inhibitor of diversity. Each FQQ step toward actually in~re~sing div~rsity-r-~witheut interfer~ug with progran~. content-deserves the backing of civil .libertaFians egge~ to have in- formed discussion 1~eom diverse sources' as a background against which public Issues are considered and resolved by the American people, The P00 standards .cornprisi~g the fairness doctrine are threefold: 1. Wl~ere a licensee permits the uae, of his facilities for a personal attack upon an individual or o~gan~zatioii, the ljeensee is required to give tb~.person or gtoup attacked, time from an adequat~ response4 This policy, set forth In. 1964, was further clariJ~ed by tile Commission in the summer of 196~. Ueensees'are required PAGENO="0094" 90 to send a tape, transcript or summary of the attack to the attacked person or group within a reasonable time and in no event later than one week alter the attack. Exempted from this requirement are "bona fide newscasts" and "on-the- spot coverage of a bona fide news event." 2. Where a licensee permits the use of his facilities for any person other than a candidate for political office to take a partisan position on the isCueC involved in an election or to attack one candidate, the licensee must accord the candidate concerned a "comparable" opportunity to answer. 3. Where a licensee permits the use of his facilities for the presentation of views regarding issues of current importance, there must be similar opportunity for the expression of contrasting views accorded to other responsible groups within the community. We shall consider each of these separately. 1. The personal attack principle.-This issue is complicated by the dual needq of the attacked parties and of the licensee. Any standard of fairness and equity must recognize that an individual being attacked on the public airwaves should be given an opportunity to vindicate himself, especially a private individual ~bo does not have the resources or recourses to respond to the attack in any other way-unlike public figures whose views stations may frequently solicit but who also have other arenas in which to rebut attacks. Not only is the public nature of the media involved but also the inherent nature of radio and television as electronic media is that they may leave no record behind in the absence of tape. transcript or summary for an attacked person who would be unable to reply- because he wouldn't know what to reply to. On the other hand, any requirement' obliging the licensee to seek out the attacked party and send him a tape, a transcript or summary does impose an~ adnfinistrative burden on the licensee. This burden has been said to threaten diversity by discouraging the programing of material which might set off the personal attack mechanism. It is feared that the number of complaints registere& might be very large and that the licensee would have to locate all of the attacked persons, no matter where or how many they might be. The actual scheduling of rebuttals, particularly if they are numerous, might be extremely difficult since time Is limited on the air. Program shifting might be involved. To carry out these tasks a station would need proper personnel, possibly having to hire special people. If the station operated on a tight budget, this might prove a financial' strain that could force the station to relinquish its license or cut down on Its' public setvice programs and staff. In order to meet the needs of both the licensee and `the attacked party, and in order to achieve broadcasting diversity, the Union's position is that stgtions should be required to give time `to reply to attacks If it is requested, but should~ not be required to seek out each attacked party and send him a tape, transcript' or summary. In other words, in order to make the principle wOrkable, we should place the burden of asking for the righ't to reply on the attacked party. 2. "Bona fide newscasts and on the spot news coverage."-Often both the li-- censee and the attacked party are seeking the same end-diversity--but recon- ciliation of their interests may be difficult. This is especially so with reference to the special exemption which excludes bona fide newscasts and on-the-spot news coverage from the personal attack principle~ Probably, the reason for the exemp- tion is a fear that the obligation to seek out, etc. a person `attacked might inhibit- news reporting. Query whether if an individual is attacked on a news program, the harm done to him is in anyway different or less damaging than it would be if be bad been attacked on a non-news program? It could be argued that news-- casts are of a different breed. that their substance is primarily spontaneous re- actions to the news of the day and therefore special care must be taken so as not to spoil their specialized function. But it is precisely because newscast coverage deals with public events, often involving political controversy where attacks are so frequent, that fairness dictates that people who have been attacked should have a right of reply if they request it. Moreover, because political controversy- is an area in which the public needs as muèh enlightenment as possible, the pub- lic interest as well as the other side's interest Is served by giving the other side an opportunity to be heard. Therefore, the Union favors the same approach in the case of newscasts and' on-the-spot news cswerage as it uses toward all other a'ttack situations. We most emphatically support the ri~htto reply here, but we are opposed t~ a requirement that the station takr tbe~ lni'tlatlv~ In Informing the Individuals and groups of the attack. If the a~ttacked party requests a reply opportunity,we think the station should honor the request. PAGENO="0095" 91 3. Spokesmen for political candidates who make attacfcs and the right of the offended candidate to rebut.-it seems clear that if a partisan position in ex- pressed in a political campaign, fairness dictates that the other side be heard, This is particularly important since the electorate needs all the information possible in order to use the vote most intelligently. Th~ fact that little complaint has been heard on this part of the fairness doctrine indicates the merit and need for this section. 4. A similar opportunity for presentation of contrasting vie~s.-The Union regards this part of the fairness doctrine, known as the "affirmative obligation" section, as a vital measure for the encouragement of diversity on the air. The current debate over the doctrine has not focussed 012 this area, perhaps again because its value is self-evident. If fairuess has any meaning it is that one-sided presentations of any issue muSt be balanced by the expression of other and differ- ent views. This section does not deal with the perplexities of the personal attack- rebuttal principle. It means simply that if a station decides, on its own, to air a controversial social issue, the citizens living in the area reached by the station are entitled to hear different approaches to the same ~ssue. An in~forrned citizenry is a prerequisite to meaniugfu.J exercise of the right of free speech, and to have an informed citizenry, not just a single position on a current issue but a variety of positions should be aired.. Only then can the members of the audience draw their own conclusions. At the present time, this section of the fairness doctrine is the one most subject to ambiguities of interpretation. It is felt by some that the "affirmative obliga- tion" provision is an intrusion by the FCC into the area of program content. Others feel that a simple requirement to make oppQrtunities available in no way tells broadcasters bow they must fulfill the obligation vis-a-vis content. The AOLU shares this latter point of view. The Union has called on the FCC to clarify the meaning of the "affirmative obligation" section because we regard vigorous action by tb~ Commission as the sine qua non for the success of the fairness doctrine. In a letter to the FCC on November 10, 1960 asking that the original grant of a renewal license for station KPYM (Inglewood, California) be reviewed, we said: However, we feel that the Commission's decision in granting the renewal ap- plication did not take into account the full thrust and scope of the Fairness Doctrine, which provides both that attacks on individuals and groups will be answered and that the licensee has an affirmative obligation to air contrasting viewpoints when he allows his facilities to be used for the presentation of a controversial issue. Court decisions upholding the Commission's regulatory authority as well as many rulings by the Commission, make it clear that the Fairness Doctrine was promulgated to insure that a station licensee suppjy the listening public with a balance of viewpoints relating to contrQversial issues. The undisputed facts in the instant case make clear that Station ETYM broadcast programs which were anti- Sematic and Qtherwise offensive to certain minority groups. Nowhere is there any evidence that this Station licensee has fulfilled its obligations under t~me Fairness Doctrine, in seeking out and broadcasting other viewpoints on this subject. Surely the Fairness Doctrine is, and always has been, broader in Its scope and application than the application by the Comraission in the instant case would indicate. It does require and should require more than (a) the trans~ mission of a transcript of an intended broadcast to a named person attacked in that broadcast and an offer of time for that person to reply,' and (b) an offer of time to a group whose views may be opposed to those broadcast. Rather, In a case such as this, where the attacks were flagrant and continuing, in our opinion, the Fairness Doctrine requires that the station licensee more than merely offering time, must take affirmative steps to carry opposing viewpoints, in order that the public may be served a balanced diet and thereby may be better able to evaluate the issues broadcast. The principle of diyersity is served not only by aggrieved individuals ai~d organizations being given time to rebut atta~ks but in exposing the community at large to a variety of views on a particular issue. The Commission's June 17 decision apparently makes some reference to this function of the Fairness Doctrine when, in the fifth paragraph of letter, it as- serts: "Your obligation to afford a reas'Q'nable opportunity for the discussion of viewpoints that conflict with those of Mr. Cotten is a continuing one, The state~ ments which you have filed with the Commi's~ion indicate that you understand PAGENO="0096" 92 this and~wi11 provide time for the presentation of such conflicting viewpoiuts." However it appears that this statement treats the rebuttal section of the Fairness DGetrlne rather than the section requIring balanced and fair presentation of controversial issues. En view of the intrinsic importance of implementing the second section of the Fairiless Doctrine, we believe that a hearing on this phase in the Station KPYM ease would be desirable. such clarification is doubly im- portant because the owner of KTYM now has pending before the Commission an applicatioi~ to purchase television station KAIL-TV in Fres'no, California. The question of whether he has operated his radio station in accord with the Fairness Doctrine's full meaning seems au essential fact for the Commission to know. The Union Is aware of the burdens which a hearing places upon a station 11- censee or applicant. Often such a hearing, if extensive, may effectively prevent the station from proceeding with its renewal application. However, even our brief survey o~f the station's programming tends to show such a glaring disregard of the Fairness Doctrine that a hearing should be held in order to determine the nature and extent of programming, if any, which has been broadcast by the station to balance the views expressed on the anti-Semitic programs. It is only after such a hearing, we submit, that the Commission can most accurately determine whether the license Should be renewed. Another recent elaboration of the fairness doctrine which has been noted by the Union is the ruling last June that the fairness doctrine applies to cigarette advertising. While the ACLU Board of Directors has not yet taken action on the matter, its Communications Media Committee has considered the question. The Committee endorsed the FCC action in the interest of balanced programming. The Committee agreed with the Commission's staement: "Governmental and pri- vate reports and Congressional action asSert that normal use of this product can be a hazard to the health of millions of persons. The athrertisements in ques- tion clearly promote the use of a particular cigarette as attractive and en~oyable. Indeed, they understandably `have no other purpose. WO believe that a station which presents such advertisements has the dnt~~ of informing itS audience of the other side of this controversial issue of lublie importance-that however enjoy- able, such smoking piay be a hazard to the Smoker's health." In light of the public health danger involved in cigarette smoking and in light of the one-sidedness of the material broadcast on it, the right to reply to the advertising in this instance is fully consistent with the principle of the fairness doctrine. Procedures for impZenientin9 the doct~'ine.-The problem of wh~t principles to apply is not the only question thatneeds clarification. Assuming one agrees on the principles, how do we make the fairness doctrine work? This, In turn, brings to the fore some of the ei~inentary~uesftiOfts conteriiing FCC OperiLtions. Over the yeats the Union ha~ taken the potition that a statiOn niust'be judged on th~ tOtality of' Its programming Orer its three~year license periOd~-~-criticisnis of individual programs are netand' sh Jdnot be the basiS for sanctions against a station~ Howover, more recentl~ we aiid dtherorgan1~ations have pointed to the fairneSs doctrine `aS the ~e~ontse for `obtaining in specific cases (a) fairer treatment, and