In Re Request by NICHOLAS ZAPPLE, COMMUNICATIONS COUNSEL, COMMITTEE ON COMMERCE For Interpretative Ruling Concerning Section 315 Fairness Doctrine
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 707
RELEASE-NUMBER: FCC 70-598
JUNE 3, 1970
[*707] Mr. NICHOLAS ZAPPLE, Communications Counsel, Committee on Commerce, U.S. Senate, Washington, D.C. 20510.
DEAR MR. ZAPPLE: This is in response to your letter of May 6, 1970, requesting an interpretative ruling on two questions involving the applicability of the fairness doctrine to situations where supporters of a political candidate purchase broadcast time.
Specifically, your first question concerns the station licensees' obligation to authorized spokesmen or supporters of a political candidate in the following circumstances:
(a) A broadcast station sells time to candidate A, his authorized spokesman, an individual, a group, or an organization supporting him to urge his election. Candidate A does not appear personally on any of these broadcasts; however, issues in the campaign and/or the candidate are discussed. An authorized spokesman, an individual, a group, or an organization supporting candidate B requests fairness time under the FCC's existing policies.
First, we hold that the fairness doctrine is plainly applicable in the circumstances you outline, and that the critical question is the nature of its application. The Commission has consistently held that the fairness doctrine is applicable to programs on which supporters of a candidate discuss the candidates or the issues. See also, section 315(a), where Congress specifically recognized the applicability of the fairness doctrine to those news-type appearances of the candidates themselves which were exempted from the equal opportunities provisions by the 1959 amendments to section 315(a).
As you know, the fairness doctrine requires that when a licensee presents one side of a controversial issue of public importance, he must afford a reasonable opportunity for the presentation of contrasting views. Unlike the precise equal opportunity standard of section 315, the licensee's obligation under fairness must be determined in light of all the relevant facts of a particular case. Initially it is for the licensee to make good faith judgments on a number of questions, such as whether a controversial issue of public importance is involved, what are the contrasting views which should be presented, who are appropriate spokesmen, what format should be employed, etc. Thus, while it is not possible to give a definitive answer to your question [*708] absent the full facts concerning a particular case, we nevertheless believe we can set forth some of the principles which would govern the type of situation you have outlined.
With this as background, we turn now to the critical issue of the nature of the applicability of the fairness doctrine to your first question (a). Where a spokesman for, or a supporter of candidate A, buys time and broadcasts a discussion of the candidates or the campaign issues, there has clearly been the presentation of one side of a controversial issue of public importance. It is equally clear that spokesmen for or supporters of opposing candidate B are not only appropriate, but the logical spokesmen for presenting contrasting views. Therefore, barring unusual circumstances, it would not be reasonable for a licensee to refuse to sell time to spokesmen for or supporters of candidate B comparable to that previously bought on behalf of candidate A.
A further issue raised by your question is whether a licensee must provide free time to candidate B's spokesmen or supporters. As a general proposition the Commission has held that the public's right to know cannot be defeated by the licensee's inability to obtain paid sponsorship for presentation of a contrasting viewpoint even where the initial presentation was made under paid sponsorship. Cullman Broadcasting Co., 40 F.C.C. 576 (1963). While we continue our firm support for this general proposition, we believe it should not have applicability in the direct political arena. When spokesmen or supporters of candidate A have purchased time, it is our view that it would be inappropriate to require licensees to in effect subsidize the campaign of an opposing candidate by providing candidate B's spokesmen or supporters with free time (e.g., the chairman of the national committee of a major party purchases time to urge the election of his candidate, and his counterpart then requests free time for a program on behalf of his candidate). Any such requirement would be an unwarranted and inappropriate intrusion of the fairness doctrine into the area of political campaign financing. n1 To implement this view, we would carve out the same area as in the case of our personal attack rules, n2 i.e., there would be no obligation to provide free time to authorized spokesmen of or those associated with legally qualified candidate B in a situation such as your point where candidate A, his authorized spokesmen or those associated with him, have purchased time.
n1 As you know, the Commission, along with many others, has been greatly concerned with the growing costs of broadcasting in political campaigns; we have thus supported pending legislative proposals to provide relief in this area. See hearings S. 2876, Communications Subcommittee, Senate Committee on Commerce 91st Cong. 1st sess., pp. 67-81. We have also submitted a proposal for amendment of section 315 to the Congress designed to facilitate the furnishing of free time to candidates. We have stressed the obligation of licensees to provide time for coverage of issues of importance to their communities, which include, of course, important political campaigns. The essential point is that these efforts are directed to providing free time for coverage of political campaigns and the opposing candidates, not to providing free time to one side where the other side has purchased time.
n2 See, e.g., sections 73.123(b), 73.300(b), 73.598(b) and 73.679(b); "Memorandum Opinion and Order" (docket No. 16574), 8 F.C.C. 2d 721, 726.
Your second question concerns the obligation of the station licensee to authorized spokesmen for or supporters of a political candidate in the following circumstances:
(b) A broadcast station sells time to an individual, a group or organization supporting candidate A and such broadcast time is used to criticize candidate [*709] B or his position on the issues of the campaign. An authorized spokesman, an individual, a group or an organization supporting candidate B requests fairness time under the FCC's existing policies.
We believe the answer to your second question is governed by essentially the same principles, as the answer to the first, i.e., that the fairness doctrine is applicable (see discussion on p. 2 for its applicability) but that the licensee would not be obligated to provide free time to authorized spokesmen for candidate B or to those associated with him in the campaign if authorized spokesmen of candidate A or those associated with him in the campaign had used paid time on the licensee's station to criticize candidate B or his position on the campaign issues. Here, of course, there is a closer analogy to the personal attack situation, although mere criticism would not constitute a personal attack within the meaning of our rules.
We hope the foregoing is helpful to the Congress in consideration of the important legislative matters before it. We stress again that our response is limited to the situations described in your questions, and that definitive rulings can only be made in the context of specific factual cases.
This letter was adopted by the Commission at its meeting of June 3, 1970.
BY DIRECTION OF THE COMMISSION, DEAN BURCH, Chairman.
CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON
The problems posed by the use of radio and television time by political candidates and their spokesmen and supporters are extremely difficult -- but of vital importance to our political system. Money buys television time; and television time can "buy" political office. This simple equation seriously challenges the continuation of our self-governing Nation.
I concur generally in the Commission's response to Mr. Zapple's letter. I believe, however, that we could have dealt more fully with the complicated issues involved in the questions he has raised. I would like, therefore, to set forth my own understanding of the majority's position, and add a few observations of my own.
Section 315(a) of the 1934 Communications Act provides that licensees, who permit legally qualified candidates for public office to use their broadcasting facilities, must afford "equal opportunities" to all other legal candidates for the use of their broadcast facilities. Section 315(a) does not, however, make any reference to "spokesmen" or "supporters" of political candidates. n1 And this Commission has ruled that section 315(a) applies only to legally qualified "candidates," not to persons (such as "spokesmen" for or "supporters" of legally qualified candidates) who speak for or against candidates or issues involved in current political campaigns. "Use of Broadcast Facilities by Candidates for Public Office" (F.C.C. "Public Notice," April 27, 1966), 31 Federal Register 6660, 6662 (May 4, 1966). Accordingly, when a spokesman for or supporter of a legally qualified political candidate [*710] appears on radio or television and either discusses the issues or criticizes the opposition candidate or his position on the issues, the station is apparently under no obligation to provide "equal opportunities" for rebuttal to supporters or spokesmen for the opposing candidate under section 315(a). n2
n1 Contrast, however, our personal attack rules, e.g., 47 CFR sec. 73.123(b).
n2 What the majority does in today's letter is, in effect, to bring in "supporters" of or "spokesmen" for candidates through the back door of the fairness doctrine. I see no legal reason why the Commission could not rule that sec. 315(a) encompasses spokesmen for or supporters of political candidates as a logical extension of congressional intent. Instead, the majority has brought supporters and spokesmen in under the fairness doctrine, and then excluded them from its free time aspect established in Cullman Broadcasting Co., Inc., 25 P. & F.R.R. 895 (F.C.C. 63-849, Sept. 18, 1963) -- a move which would seem indistinguishable from a sec. 315(a) ruling expanding the concept of candidates to include spokesmen and supporters. Thus, the Commission is apparently unwilling to enlarge sec. 315(a), but willing to narrow the Cullman interpretation of the fairness doctrine. There may well be policy reasons for this approach; if so, I would have preferred that they appear in the majority's letter.
Mr. Zapple has inquired whether -- and the extent to which -- the fairness doctrine applies to this situation. We have answered: (1) The fairness doctrine applies -- imposing on licensees the obligation to present all views on the issues involved; (2) that the presentation of spokesmen or supporters of the opposing candidates are probably (but not necessarily) an appropriate way to comply with a licensee's fairness doctrine obligations; and (3) that unlike the situation in Cullman Broadcasting Co., 25 P. & F. Radio Regulation 895 (F.C.C. 63-849, Sept. 18, 1963), the licensee does not have to offer free time to such opposing spokesmen or supporters.
I would like to add several observations. First, the Commission has not discussed the question whether a licensee must seek out and present the views of an opposition candidate who does not come forward to purchase rebuttal time. Presumably, if the fairness doctrine is invoked by the supporters of or spokesmen for one candidate, the licensee has an affirmative obligation to present the other side of the controversy. In most large electoral races, e.g., presidential, senatorial, congressional, etc., news coverage of the campaign may, under a few limited circumstances, satisfy this obligation. The opposition candidate (or his spokesmen or supporters) might, for example, hold a press conference to rebut the charges, and this conference might receive normal news coverage. n3
n3 Several problems remain. The quantity of news coverage (in terms of seconds or minutes), for example, may be dwarfed by hours and hours of paid political time from the opposing side. In such a case, the licensee would presumably not be providing a "significant," see National Broadcasting Co., Inc. (WNBC-TV), 16 F.C.C. 2d 956 (1969), amount of fairness doctrine rebuttal time by news coverage alone, and other steps might be required. Further, the quality of presentation (e.g., a slickly-packaged commercial presentation lasting 15 minutes might carry far greater impact than an isolated 30-second clip of a press conference on a local news program) might vary substantially, having some impact on the question whether significant rebuttal time had been offered.
In smaller races, however, e.g., State assemblymen, local school board, etc., there may be no news reporting of the opposition candidate's views in the normal course of campaign coverage. Under such circumstances, if the fairness doctrine truly applies, I would assume that the licensee would be required to present the opposition candidate's views in some manner. If that candidate himself is the only person qualified to speak on his position, and if he does not step forward because he cannot afford to pay the going rate, how is the licensee to avoid putting him on -- free? The alternative would seem [*711] to be an "uninformed public." n4 I do not believe the majority letter has resolved this question. I would at least have preferred some explicit discussion -- or even acknowledgement -- of this problem.
n4 See Cullman Broadcasting Co., Inc., 25 P. & F.R.R. 895, 896-97 (F.C.C. 63-849, Sept. 18, 1963), in which we stated:
[It] is clear that the public's paramount right to hear contrasting views on controversial issues of public importance cannot be nullified * * * by the inability of the licensee to obtain paid sponsorship of time for the broadcast of a view contrary to one already presented in a sponsored program * * *. In short, where the licensee * * * has been unable to obtain paid sponsorship for the appropriate presentation of the contrasting viewpoint or viewpoints, he cannot reject a presentation otherwise suitable to the licensee -- and thus leave the public uninformed -- on the ground that he cannot obtain paid sponsorship for that presentation. [Emphasis in original.]
Second, I do not believe the Commission has made it clear that the free time requirements of Cullman are not abolished altogether in the area of political campaigns. As the majority correctly states, it is, at least initially, a matter for the licensee to make good faith judgments as to which person might be an appropriate spokesman to rebut the charges of a candidate's spokesman or supporters. If this is true, the majority has left open the possibility that the licensee might legitifairly and reasonably conclude that the opposition's views can be presented by someone who is not a candidate, or the supporter or spokesman for a candidate, and proceed in such a manner. If so, he must presumably offer the time free.
Third, I am uncertain whether the Commission believes it cannot (legally) n5 provide free rebuttal time under the fairness doctrine and Cullman to opposition spokesmen or supporters; or whether it feels it is merely inadvisable (in terms of policy) to do so. As a matter of legal construction, the phrase, "equal opportunities," in section 315(a), appears broad enough to accommodate a doctrine which would enable a political candidate to obtain free rebuttal time upon some convincing showing that he was unable to raise the necessary money to buy time. n6 Therefore, this argument is even stronger for "supporters" of or "spokesmen" for political candidates -- persons not expressly covered by the language of section 315(a). If the majority has made a policy determination in this area, I would have preferred some recitation of those policies -- ideally a briefing by interested parties as well. I would find merit in a proposal to review all these problems in one coherent document, following the submission of pleadings from interested persons, permitting us to consider the views of candidates for political office, licensees, and members of the public.
n5 For example, the legislative history to sec. 315 might indicate that Congress did not wish the FCC to permit political candidates, under any circumstances, to obtain free time for rebuttal to political opponents. On the other hand, there is at least a doubt whether such an imputed intent would be constitutional in light of the first amendment and the "one man, one vote" requirement in Baker v. Carr, 369 U.S. 186 (1962).
n6 After all, an analogous doctrine has been invoked many times by the Supreme Court in other, equally important areas of the law. See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956), holding that the "Equal Protection" clause of the 14th amendment required that all indigent criminal defendants be furnished a transcript of their trial to facilitate appellate review.