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In Re DEMOCRATIC NATIONAL COMMITTEE, WASHINGTON, D.C. Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations

 

FEDERAL COMMUNICATIONS COMMISSION

 

25 F.C.C.2d 216

 

RELEASE-NUMBER: FCC 70-861

 

August 12, 1970 Released

 

Adopted August 5, 1970

 


 

JUDGES:

BY THE COMMISSION: COMMISSIONER COX CONCURRING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT.

 


 

OPINION:

[*216] BACKGROUND -- REQUEST AND PLEADINGS

1. On May 19, 1970, the Democratic National Committee (DNC) filed with the Commission a request that the Commission issue a declaratory ruling that

"A broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as DNC, for the solicitation of funds and for comment on public issues." n1

n1 Comments with respect thereto were filed by the American Broadcasting Company (ABC) on June 11, 1970 and by the Columbia Broadcasting System (CBS) on June 22, 1970 and a statement by the National Broadcasting Company (NBC) was filed on June 22, 1970.

2. DNC seeks a declaratory ruling on these matters because of its desire to purchase time on individual broadcast stations and networks for the purpose of presenting programs and spot announcements of varying duration some of which would be devoted to the solicitation of funds while others may contain comment on various controversial issues of public importance. The campaign envisioned will, according to DNC, require the expenditure of "thousands of dollars" and thus it seeks assurance that it will be able "to obtain the access to the broadcast media which implementation of the plan demands." It appears that in the latter part of March, 1970, CBS rejected a request by DNC to purchase one-half hour of prime time for the presentation of an issue -- oriented program which would have included an appeal for contributions to the Democratic Party. It is said that CBS' position at that time was that it would sell time for political purposes only during election campaigns. DNC also approached NBC and was told that that network would make available prime time for purchase by the Committee for a program presenting the views of the party on [*217] important public issues and including a solicitation of funds for the party. It is not clear that DNC approached the ABC network in view of the latter's alleged general policy against solicitation of funds other than for charity and with network approval. By reason of the foregoing and the alleged common policy of individual broadcast stations to decline to sell time for spot announcements or programs for the broadcast of views on controversial issues of public importance or for the solicitation of funds, DNC states that its problem -- access to broadcast licensees for the presentation of its programs -- can be resolved only through the issuance of the blanket declaratory ruling described in paragraph 1, supra.

3. We believe that the policy matters raised by DNC are, to a substantial extent, appropriate for consideration and that a full statement of our views will provide helpful general guidance for the public and Commission licensees. We however, do not believe that all of the various matters raised by DNC are susceptible to the declaratory order sought and we cannot at this juncture rule upon every conceivable factual situation which may arise.

4. In support of its request, DNC has set forth some pertinent financial considerations of present-day political campaigning and the development of a narrow rather than a broad-based financial support of political parties. n2 DNC contends that access to mass media, particularly radio and television, is necessary to attract the attention and seek the support of potential small political contributors. It is only in this way, DNC contends, that a healthy political system can function. DNC urges that its proposed broadcast campaign should not be precluded by a variety of differing station and network policies and that the question of access to broadcast media for responsible groups should be subject to a uniform national policy. The arguments advanced by DNC are based upon constitutional, statutory and public policy grounds.

n2 For example, in 1968, $90 million was expended on political use of radio and television (equaling about 1/3 of the total expenditure on political campaigning for the year). See Alexander and Myers, A Financial Landslide for the GOP, Fortune, March 1970, pp. 104, 189. Another indicative statistic is the fact that in 1956, only 40% of the contributions to the Democratic Party exceeded $500 whereas the figure had increased to almost 80% in 1968. According to DNC the narrowing of the political contribution base can result in a dangerous concentration of the sources of revenue in special interest groups which, in turn, threatens the entire democratic process.

5. The constitutional argument advanced by DNC is essentially that the Supreme Court's decision in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969) reaffirmed the public's First Amendment right to hear contrasting views on issues of public importance and "employed language that would extend to members of the public the right of access to broadcast facilities." DNC argues that the network policies of ABC and CBS represent arbitrary barriers to broadcast facilities contrary to the law as expressed in Red Lion, supra. DNC suggests that under the Red Lion standard reasonable restrictions by broadcasters are permissible -- e.g., limitation of use of broadcast facilities to responsible spokesmen and protection against use of facilities for libelous presentations or those in bad "taste."

6. According to petitioner, the overriding public policy consideration requiring the declaratory ruling is that the public airwaves -- the most powerful communications medium in our society -- which are used [*218] to solicit funds for "soaps, brassieres, deodorants and mouthwashes" should be utilized to solicit funds to enhance the exchange of ideas. DNC contends that regardless of whether the Commission issues the declaratory ruling requested, the refusal of a broadcaster to sell time to DNC should be evaluated adversely to such broadcaster at time of renewal. The reason for this, DNC urges, is the importance of the broadcast media to political expression ( Farmers Ed. and Coop Union v. WDAY, 360 U.S. 525, 529-30 (1959)); the public interest consideration inherent in broadcasters making time available for political broadcasts (Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 20 RR 1901 (1960)); the Commission's prior holding that an arbitrary limitation of coverage of an election campaign prior to the campaign was contrary to the public interest (Citing Homer R. Rainey, 3 RR 737 (1947); City of Jacksonville, 12 RR 113, 180j (1959); and Loyola University, 12 RR 1017, 1099 (1956)) and that the Commission's ruling in Women's Strike for Peace (letter of November 22, 1965) predates Red Lion and, to the extent it conflicts with that decision, is no longer controlling. Finally, DNC notes that it is seeking not a ruling which would require a broadcaster to accept particular programs or announcements, but only that broadcasters may not establish arbitrary barriers to access by responsible groups, such as DNC, contrary to the First Amendment and Red Lion, supra, or that the establishment of such barriers is contrary to the public interest.

7. Response of the Networks: In response to the DNC request, American Broadcasting Companies, Inc. (ABC) submitted portions of its "standards and policies" (The complete version has been filed in BAL-5733, Exhibit I-B, Attachment B, Section III). ABC recites its standards relating to solicitation connected with appeals for charity (no solicitation without specific permission of ABC) and appeals related to religious broadcasts (solicitation permitted in prescribed manner not here relevant), but states that its policy is not to sell time for solicitation of funds in other situations, absent special public interest considerations. It is ABC's judgment that DNC's request is concerned with "the continued strength and viability of our two party system" and is thus a "special public interest consideration" justifying an exception to its normal policy of not selling time for solicitation purposes.

8. ABC states that with respect to controversial issues of public importance, there are "dozens" of "responsible entities" who would wish to purchase time to present their views "were we to open the door." ABC contends that it would be "reasonable to anticipate a flood of such requests." Thus, ABC states, it will adhere to its general policy against the sale of time for controversial issue programs and announcements. However, ABC under its "special public interest consideration" standard would "... be prepared, consistent with its other obligations, to accept such orders for time from major political parties as can be accommodated on a reasonable basis."

a. CBS' lengthy response to the DNC complaint advances three major arguments: (1) that DNC has misunderstood CBS' policies relating to presentation of controversial issues and that CBS' policies [*219] insure full and fair presentation of such issues; (2) that a regulatory policy which imposes common carrier obligations on broadcasters would be contrary to the public interest; (3) that there is no constitutional or statutory right to compel broadcasters to carry the DNC programs; and, (4) that such obligation would be contrary to the Communications Act and Commission precedent.

9. With respect to the first major argument, CBS argues that DNC has not alleged violation of the fairness doctrine but rather seeks to take presentations of controversial issues away from the control and supervision of the licensee. CBS states that if licensees were required to permit the purchase of air time for the presentation of views on controversial public issues, the nature of broadcasting would be radically altered to the detriment of fair, objective and balanced information available to the listening public. n3 CBS has followed a policy of refusing the sale of broadcast time for presentations of controversial issues in favor of providing "significant opportunities" for such discussions without charge to proponents of various viewpoints through news and information broadcasts. To sell time for presentations on public issues, argues CBS, would result in the preemption of the limited broadcast frequencies by those with strong financial resources which would "necessarily distort the manner in which issues were presented" to the public. CBS asserts that under its present policies, it provides a "high proportion of direct presentations of views" by "the actors in the events of the day" and thus, aside from fully informing the public of differing viewpoints on controversial issues, also provides on opportunity for those holding differing viewpoints to present their own views. These direct presentations, CBS notes, are part of its overall effort to inform the public fully and fairly and are not permitted to become an instrument of "partisan advocacy." The First Amendment, CBS argues, is primarily concerned with the right of the public to be informed -- as opposed to the right of the public to speak or to be heard.

n3 CBS asserts that it has served the public by presenting issues and viewpoints within a balanced program schedule utilizing newsworthiness as the sole criterion. CBS emphasizes the growth of public affairs and news presentations during 1968-69 v. 1956-57 -- e.g., total hours of news and public affairs broadcasting -- 1,354 v. 675; prime presentations -- 192 v. 34; regularly scheduled hard news 6:00 p.m. -- 11:00 p.m., 338 v. 130; and total hours of news documentaries 100 v. 37. In addition, CBS also presents a comprehensive exhibit to demonstrate the coverage given one of the major issues of the day by CBS and WCBS-TV -- the Indochina War and domestic reaction to it. This Indochina exhibit includes a minute and second analysis of CBS' total coverage of this issue and runs over 100 pages.

10. CBS' policy against sale of time for the presentation of views on controversial issues does not apply to broadcasts on behalf of political candidates or ballot propositions. This exclusion is based upon CBS' belief that the intent of Section 315 is to facilitate the discussion of political issues by legally qualified candidates; such political broadcasts may include a direct appeal for funds so long as CBS is not involved in the collection or handling of such funds. CBS also states its intention to permit the purchase of a special category of spot announcement (up to one minute in length) for the purpose of political fund raising which need not be on behalf of political candidates or ballot propositions.

11. With respect to the common carrier argument, CBS states that such a policy would be contrary to the public interest because [*220] partisan presentations would diminish the time available for other news, sports and entertainment programs and would result in an "auction" to the highest bidder to determine what issues will be discussed and how such discussion will be conducted. Moreover, CBS queries, would the broadcaster then be responsible for restoring the balance? How would a network choose among competing bidders if not enough time were available for all? What standard is to be used to determine "responsible entities?" CBS argues that DNC's proposal would divest the licensee of responsibility for controversial issue programming and would ultimately require the Commission to make judgments as to the specific programs which are presented or rejected.

12. The legal arguments which CBS advances -- i.e., that DNC's request is without constitutional or statutory basis, that Commission compulsion to carry DNC's programs is barred by the Communications Act, and that the action which DNC requests of the Commission is contrary to the Commission's own policy and precendent -- are based primarily upon the assertion that no particular person or group has the right to speak over broadcast facilities and that to assert such a right would ultimately require the Commission to assume the role of a censor or arbitor of specific programs, contrary to its long-established policy of avoiding such governmental involvement. CBS asserts that the McIntire case n4 stands for the proposition that "broadcasters, though licensed by the Commission and subject to its valid regulations, are not publicly owned facilities, and there is no First Amendment right to purchase time on radio or television stations." CBS further asserts that nothing in Red Lion n5 indicates that McIntire is no longer good law or that, apart from Section 315, there is any legal obligation for broadcast licensees to sell time. Rather, CBS says, Red Lion merely sustained long-standing Commission policies which are wholly inconsistent with DNC's request.

n4 McIntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597 (3rd Cir 1945) cert. den. 327 U.S. 779 (1946).

n5 Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969).

13. To accede to DNC's request, CBS argues, would violate Sections 3(h) and 326 of the Communications Act, which taken together establish that the licensee -- not the Commission -- is to exercise the power of program selection. The right of personal reply to material previously selected for broadcast is limited to equal opportunity for political candidates, replies to personal attacks and replies to station political endorsements. CBS contends that the legislative history of the Communications Act supports its assertion that the statutory scheme envisions a system in which the broadcaster is left with the initiative of assuring that programs presented are in the public interest.

14. Finally, CBS asserts, DNC's request is "fundamentally inconsistent" with the concept of licensee responsibilities and specifically, contrary to the Commission's prior holdings that "the Commission has no power to require a broadcaster to carry or refrain from carrying any particular program, or to prescribe the content of any program presented over the air." Letter to Women's Strike for Peace, November 22, 1965. n6 Nothing in the Red Lion decision, supra, states CBS, indicates [*221] that the Court contemplated the abandonment of "traditional FCC fairness policies" and the adoption by the FCC of a common carrier theory as set forth in the DNC request.

n6 To support this proposition, CBS also cites McIntire v. Wm. Penn Broadcasting Co., supra; 1949 Editorilizing Report, 13 FCC 1246; 1960 Report and Statement of Policy in the En Banc Programming Inquiry, 25 Fed. Reg. 7291 (August 3, 1960); and letter to Judy Collins, March 24, 1970.

15. NBC has no policy which would prevent the purchase of program time envisioned by DNC or the solicitation of funds for the party during such a program. DNC states that it is not clear whether NBC would permit short spot announcements designed for the solicitation of funds for a party, but this simply points up the desirability of a concrete factual situation -- namely, of DNC making a specific request, instead of the general, more vague approach which it has taken here.

DISCUSSION

Part I. The right of responsible entities to purchase time for comment on public issues

16. The DNC petition raises two separate questions: (i) the asserted right of political parties to purchase broadcast time to solicit funds, and (ii) the asserted right of responsible entities to purchase time for comment on public issues. In this Part I, we deal with the second question.

17. that question goes to the heart of the system of broadcasting which has developed in this country -- i.e., the licensing of private entities under the public interest standard. While the issues raised by the DNC petition are fundamental, they are not open. They have long been settled adversely to the DNC position, by the statute, by the Commission, and by the Courts. We shall discuss the present system and its statutory support, the relevant precedents, and the policy considerations.

18. The system which Congress has evolved has been described in full in the landmark decisions in this field -- NBC v. U.S., 319 U.S. 190 (1943), and Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367 (1969). We shall not repeat that discussion here. It is sufficient to note that it is based upon the unique nature of radio -- that "unlike other modes of expression, radio inherently is not available to all. Because it cannot be used by all, some who wish to use it must be denied." (NBC v. U.S., supra, at 226.) n7 To resolve the chaotic situation which had resulted, Congress decreed a system of licensing private entities for short terms, upon the condition that their operations serve the public interest. It is thus incumbent upon these public trustees to fashion schedules which do meet the needs and interests of the public. To do so, the broadcaster must allocate programming among the several categories (e.g., entertainment, instruction, news, public affairs) and, within those categories, must choose among the many competing requests for air time. See Report on Editorializing, 13 FCC 1246, 1247-48 (1949). However, there is one special obligation which the Commission has stressed -- that broadcasters must "... devote a reasonable percentage of their broadcast time to the presentation of [*222] news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station" ( id. at p. 1249). Indeed, the Commission has stressed that it has allocated so much spectrum space to broadcasting, basically because of the great contribution which broadcasting can make to an informed public opinion on the vital public issues of the day. Ibid., Storer Broadcasting Co., 11 FCC 2d 678. It follows that the Commission can and must require the achievement of that allocation purpose by its broadcast licensees. See Section 303(b); Red Lion Broadcasting Co. Inc. v. F.C.C., supra at p. 394. In short, as stated by the Court in Red Lion, supra, at p. 394, the licensee is "... given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern."

n7 The Court recently reaffirmed this vital distinction in Red Lion (supra, at 388): "Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write or publish."

19. The Commission has consistently made clear that with some exceptions not here pertinent, the licensee has discretion in discharging that obligation. Thus, in its basic Editorializing Report, the Commission stated:

It should be recognized that there can be no one all-embracing formula which licensees can hope to apply to insure the fair and balanced presentation of all public issues. Different issues will inevitably require different techniques of presentation and production. The licensee will in each instance be called upon to exercise his best judgment and good sense in determining what subjects should be considered, the particular format of the programs to be devoted to each subject, the different shades of opinion to be presented, and the spokesmen for each point of view. In determining whether to honor specific requests for time, the station will inevitably be confronted with such questions as whether the subject is worth considering, whether the viewpoint of the requesting party has already received a sufficient amount of broadcast time, or whether there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request...

This same policy is set out in the Commission's 1964 Fairness Primer, 29 Fed. Reg. 10415, 10416; cf. also 1960 Programming Statement, 25 Fed. Reg. 7291 (1960). In line with these general precepts, we have consistently held, in case after case, that with certain exceptions not here involved, no individual has a right to express his particular views by means of a broadcast facility. n8

n8 Dowie A. Crittenden, 18 FCC 2d 499 (1969); Mrs. Margaret Z. Scherbina, 21 FCC 2d 141 (1969); Democratic State Central Committee of California, 19 FCC 2d 833 (1968); Boalt Hall Student Association, 20 FCC 2d 612 (1969); Mrs. Madalyn Murray, 40 FCC 647 (1965).

20. While the licensee thus has considerable discretion in discharging "the twofold duty" stated in Red Lion, supra, at 377 -- to devote a reasonable amount of time to public issues and to do so fairly -- that discretion must be exercised consistent with the public interest standard. The most basic consideration in this respect is that the licensee cannot rule off the air coverage of important issues or views because of his private ends or beliefs. As a public trustee, he must present representative community views and voices on controversial issues which are of importance to his listeners ( Red Lion, supra, at 389, 390, 394). This means also that some of the voices must be partisan. A licensee policy of excluding partisan voices and always itself presenting views in a bland, inoffensive manner would run counter to the "profound national commitment that debate on public issues should be uninhibited, [*223] robust, and wide-open." New York Lines Co. v. Sullivan, 376 U.S. 254, 270 (1964); see also Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. 367, 392 (n. 18) (1969); Storer Broadcasting Co., 11 FCC 2d 678 (1968); Anti-Defamation League of B'nai B'rith, 9 FCC 2d 190, 191 (1966), affirmed Anti-Defamation League v. F.C.C., 403 F. 2d 169, 170 (1968) (C.A.D.C.), cert. den. 394 U.S. 930 (1969). In sum, as stressed in the Editorializing Report, supra, at p. 1249:

It is this right of the public to be informed, rather than any right on the part of the government, any broadcast licensee or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting.

See Red Lion Broadcasting Co. Inc. v. F.C.C., supra, at p. 390:

It is the right of the public to receive suitable access to social, political, esthetic, moral and other ideas and experiences which is crucial here.

21. With this as background, we turn to the DNC petition. that petition seeks to overrule the above policy and to require licensees to sell time to any responsible entity to comment on a public issue. Using the CBS response as an example, we note that it would require a holding that CBS' policy in this area is inconsistent with the public interest, because although it recognizes its obligation to devote a reasonable amount of time to controversial issues of public importance (and has submitted a showing of its increasing efforts in this respect, including during prime time hours), and to do so fairly by providing "... significant opportunities for such [broadcast] discussion without charge to partisans of various viewpoints in [its] news and information broadcasts" (p. 3, CBS Response), CBS will not sell time for the expression of viewpoints on public issues (with the exception of political broadcasts). It is important to bear in mind that Dnc/ has not alleged that CBS or any other licensee has failed to discharge the above-noted obligations of the fairness doctrine. Thus, what is involved in the DNC request is a question whether there is a right of access to broadcast facilities by "responsible entities" over and beyond the fairness doctrine right of the public to be informed.

22. The DNC position -- that the licensee, upon request, must sell time to any responsible entity for comment on public issues -- runs counter to the statutory language and the legislative history. That history shows that Congress specifically debated and rejected the idea of the licensee being required to act as a common carrier with respect to transmission of comment on public issues. See Sen. Rep. No. 772, 69th Cong., 1st Sess., p. 4; 67 Cong. Rec. 5560-5561, 12501-12504. The Act reflects this. Section 3(h) states that a broadcaster shall not be deemed a common carrier. Section 315(a) sets out the pertinent statutory standard -- that the licensee must operate in the public interest and must afford reasonable opportunity for the discussion of conflicting viewpoints on controversial issues of public importance. This language cannot be squared with the DNC position; had Congress adopted such a position, the statutory prescription would have been entirely different (e.g.,... "including the sale upon request of time to responsible entities for presentation of a viewpoint on controversial issues of public importance"). The legislative history makes clear that the language [*224] of Section 315(a) is a "restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under the Communications Act of 1934" (H. Rep. No. 1069, 86th Cong., 1st Sess., p. 5 (1958) -- that is, as the legislative history shows, the principles set forth in the basic Editoridalizing Report. That this is the statutory scheme is further shown by the consideration of the second sentence of Section 315(a) -- that "no obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate." The purpose of this provision is to make clear that the broadcaster is not a common carrier as to political broadcasts -- that he may exercise discretion as to the time to be afforded broadcasts by candidates. See Memorandum of F.C.C., Hearings before the House Subcommittee of the Interstate and Foreign Commerce Committee, 88th Cong., 1st Sess. on H.J. Res. 247, pp. 84-90 (1963) (to the effect that while the licensee has discretion, he cannot adopt a policy of not devoting a reasonable amount of time to political broadcasts). It would make no sense to hold that the licensee has discretion whether or not to sell time for the most important controversial issue programming of all -- the political broadcast by the candidate (see discussion within as to the preferred position of such programming), but has no such discretion as to other controversial issue programs (e.g., by a candidate's supporters; by partisans of a particular viewpoint on some public issue).

23. The administrative and judicial precedents reflects the statutory scheme. The Commission's pronouncements are long established and consistent. See, e.g., Report on Editorializing, 13 F.C.C. 1246, 1249 (1949); 1960 Programming Statement; Women's Strike for Peace, November 22, 1965. The court cases are to the same effect. McIntire v. William Penn Broadcasting Co., 151 F. 2d 597, 600-601 (C.A. 3), cert. den. 327 U.S. 779; Massachusetts Universalist Convention v. Hildreth and Rogis Co., 183 F. 2d 497, 501 (C.A. 1). DNC argues that these cases are no longer relevant in light of the Court's decision in Red Lion, and that that decision establishes the correctness of its position. We do not so read Red Lion. The Government's brief pointed up the nature of the licensee's responsibility under the Editorializing Report, supra, at pp. 14-17, 31-32, and the Court recognized the report "as the principal summary of [the Commission's] ratio decidendi in cases in this area" (p. 1251). The Court at the outset noted "the twofold duty" imposed by the Editorializing Report and the manner in which the obligations under the general fairness request differed from those under the personal attack corollary (pp. 371-379). n9 The Court's decision is based, we believe, on this foundation. The thrust of that decision is not that the broadcast licensee is a common carrier, required to sell time to all comers on public issues, but rather that he is a public trustee -- a proxy -- who must present representative community views and voices on controversial issues. The Court's decision thus stresses the right of [*225] the public to be informed -- not the right of the broadcaster or any individual or group to speak over broadcast facilities. The private censorship by broadcasters which the Court rules out is that which would prevent the presentation of representative community views or voices.

n9 Thus, the Court stated: "These personal attack and political editorializing obligations differ from the general fairness requirement that issues be presented, and presented with coverage of competing views, in that the broadcaster does not have the option of presenting the attached party's side himself or choosing a third party to represent that side. But insofar as there is an obligation of the broadcaster to see that both sides are presented, and insofar as that is an affirmative obligation, the personal attack doctrine and regulations do not differ from preceding fairness doctrine." Red Lion Broadcasting Co. Inc. v. F.C.C., 395 U.S. at 378.

24. There are strong policy arguments in support of the Congressional scheme. We have noted that broadcasting is inherently not open to all (paragraph 18, supra). That is true equally with respect to the common carrier access approach urged by DNC. The result could well be a return to the chaotic situation of radio's early days. Since the broadcast medium is a limited one, the amount of time to be devoted to public affairs -- as against the other needs and interests of listeners -- is also limited. This balance between the categories could be drastically skewed by a requirement that the broadcaster must make available time slots for the discussion of a controversial issue. Further, the public's agenda for discussion of public issues would then be set substantively and increasingly by the affluent -- by the person or group which "... has the financial resources and interest to purchase sustained access to the mass communications media..." ( Banzhaf v. F.C.C., 405 F. 2d 1082 (C.A.D.C. 1968), cert. den., 396 U.S. 842). Since the amount of broadcast time for discussion of controversial issues is limited and since the licensee must afford reasonable opportunity for discussion of both sides, the purchase of substantial blocks of time for a campaign by, say, the oil industry to discuss the issue of the oil depletion allowance would impose the burden to present reasonably the other viewpoint, and in turn would inevitably cut down on the amount of time for discussion of other issues. But we believe that such allocations of limited time are to be made on the basis of the public interest -- not that of any private group, however powerful or affluent. Further, the public trustee would lose control over the important aspect of the manner in which the public is to be informed. We recognize that in some instances short spot announcements may serve a useful purpose in this area (see infra, p. 17). But we have also pointed up the limitations as to many issues of this manner of informing the public. See e.g., Hearings before the Senate Commerce Committee, H.R. 6543 (1969), pp. 142-143; Voters Time Rept., p. 15. A licensee which reasonably made the judgment that an issue was too complex to be discussed in a 30-second commercial -- that "hawking" the issue like a soap did not serve the public interest -- would find that judgment frustrated by the DNC policy; it would be required to sell the spots and ordered to make time available to opponents on a similar basis. See Cullman Broadcasting Co., 40 FCC 516 (1963); KING Broadcasting Co., 10 FCC 2d 968, 970 (1967).

25. This last point -- the application of Cullman -- merits further discussion. The Cullman principle was developed to deal with the situation where the broadcaster has sold time to one side to present its views, has not presented or made plans to present the contrasting viewpoints, and rejects programming which he deems suitable to present those viewpoints, unless the party offering such programming will pay for its presentation. We held that the licensee could not properly insist upon payment in such circumstances. The paramount public interest, we stressed, is the right of the public to be informed. The [*226] licensee has adjudged that an issue is of importance to its area by presenting the first viewpoint; that being so, the public's right to hear the other side cannot turn on whether the licensee received money. n10 This approach perfectly fits the public trustee concept. It does not fit a common carrier approach. For under the latter system, the licensee has to sell the time, no matter the amount, and then finds himself having to afford free time to the proponents of the contrasting viewpoint, again no matter what the effect on his ability to serve the public interest. Further, under a common carrier approach, each side is usually relegated to purchase, with no "Cullman" rights. We believe that Cullman is a correct and sound doctrine which ties in with the public trustee concept and best serves "the public interest in the larger and more effective use of radio" (Section 303(g)).

n10 For the different application of Cullman to the political broadcast field, see Letter to Nicholas Zapple, FCC 70-598 (1970).

26. In connection with the above discussion, we should note that there is of course no Commission policy thwarting sale of time to comment on public issues. Licensees are free to do so, with the caveat that the fairness doctrine, including the Cullman aspect, must be observed. The critical issue is whether the licensee, to discharge either of "the twofold duties" noted at the outset -- to devote a reasonable amount of time to issues of public importance and to do so fairly -- must sell some time to comment on public issues. The foregoing discussion makes clear that the licensee need not do so. If, for example, CBS chooses not to sell time but rather to fulfill its obligation on a sustaining basis in the manner disclosed in paragraph 9, supra (e.g., to provide significant free opportunity for partisan presentations), that choice is within its discretion. What is crucial is that the licensee does meet its obligation "to operate in the public interest and afford reasonable opportunity for the discussion of conflicting views on issues of public importance" (Section 315(a).)

27. Finally, we point out that the Commission does recognize the importance of fostering "a multitude of voices" in the discussion of public issues. Thus, it sought to promote the growth of FM radio, UHF television, and noncommercial educational broadcasting, and is seeking to promote a new technology which can make a most significant contribution in this respect -- cable television. Because of the potentially great number of channels, cable opens up the possibility of common carrier channels, public access channels, etc. See Notices of Proposed Rule Making In Dockets Nos. 18397A and 18874, 23 F.C.C. 2d , released July 1, 1970. But the policy in the broadcast field is shaped by the inherent characteristics of that field. As we have shown, that policy is based on the right of the electorate to be informed, and is an issue-oriented "right of access," not the right of any individual to access.

28. At the risk of some repetition (see particularly pars. 24, 25), we believe it appropriate to take up the position set forth in the dissent of Commissioner Johnson. n11 We cannot accept the position of the dissent that the course we are taking conflicts with the First Amendment. [*227] As we understand it, the dissenting opinion of Commissioner Johnson urges that the operation of a broadcast station is analogous to the administration of a public facility, such as a park or a municipal bus (whether publicly or privately owned), and that once the facility is appropriately opened for the expression of views on public issues or commercial advertisements, it is a denial of First Amendment rights to reject or censor a preferred announcement constituting constitutionally protected speech by one willing to pay the customary rate, if there is ordinarily a charge. While we need not disagree with the premise that the Commission's regulation of broadcast stations under the Communications Act must meet First Amendment standards, we think that the dissent -- because it ignores established First Amendment policy in this area -- posits a non-existent individual right of access to broadcast facilities.

n11 That dissent is addressed also to the Commission's decision in the BEM case, F.C.C. 70 , issued this day. Our discussion here is of course equally applicable to the BEM case, and we so stated in that opinion.

29. First of all, to the extent that the dissenting opinion urges a near-absolute right of any person who has the money to buy time, it would create a common carrier situation which Congress after due deliberation specifically rejected in Section 3(h) of the Communications Act, 47 U.S.C. 153(h). Apparently recognizing this collision with the statute, the dissent states (page 25) that Congress and the Commission have permitted a form of private censorship which is inconsistent with the First Amendment. We must note in this connection that it is beyond the power of an administrative agency to declare its governing statute to be unconstitutional. Central Nebraska Pub. P. & I. Dist. v. Federal Power Commission, 160 F. 2d 782, 783 (C.A. 8, 1947). However, if that infirmity did not exist, we would have no constitutional qualms about our present decision.

30. In its assertion of the unconditional (except for suggested reasonable limitations on time, place and manner) n12 right to buy time, the dissenting opinion takes no account of the basic, constitutionally valid policy of the Communications Act that because radio is "inherently not available to all," National Broadcasting Co. v. United States, 319 U.S. 190, 226, there is a public duty adhering to the acceptance of a license to give adequate coverage to public issues which reflects opposing viewpoints, if necessary at the broadcaster's own expense. Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367. See also 47 U.S.C. 315(a). As Red Lion makes clear, the licensee is a fiduciary with obligations to present views and voices which are representative of his community. It is through this basic approach that the paramount right and interest of the public to be fully informed is protected. The operator of a public park or transit system has no such obligation; if the analogy offered by the dissent were valid, a broadcaster would be free to present only one side of every public issue so long a he did not reject any one who chose to speak. There would be no obligation to present the other side, let alone the obligation imposed by Cullman Broadcasting Co., 25 R.R. 895 (1963) to put on an opposing view without charge. It is clear, therefore, that the analogy to other types of facilities that carry speech to the public, or furnish a place for speech, is fatally faulty.

n12 The dissent also mentions quality standards, an exception which is hardly consistent with its argument.

[*228] 31. Furthermore, the dissent fails to be adequately specific in detailing the types of limitation which it would permit as inroads to the general principle of an absolute right of access. Presumably, the licensee would not have to turn over all of its time on a first come, first served basis, for this would mean that the issues discussed and the persons speaking would be governed entirely by money. But even if the dissent would permit the licensee to specify amounts of time and issues, the suggested system would appear to be unsound. First of all, the individual right upon which the whole dissent is premised would largely disappear. No person would have the right to discuss an issue of his choosing, at the time of his choosing, and for a duration of his choosing. How could the licensee validly determine that a particular speaker could effectively make his argument in 10 minutes, 5 minutes or a 30-second spot? Yet such determinations would be required. We have said that a licensee may reasonably determine that a position on a complex issue should not be peddled like soap in a few seconds. The dissent would presumably upset that ruling -- to what purpose? Beyond these questions is the more important difficulty that depriving the licensee of the discretion to choose representative spokesmen on controversial public issues n13 would lead us to a first come, first served platform dominated by financial considerations -- the very result the dissent seeks to avoid and something the Supreme Court has already stated to be undesirable in Red Lion.

n13 There could be a case where the licensee's policy in this area would be arbitrary (e.g., where he covers the issue, and in announcements of a few seconds duration, and then refuses to let others discuss the issue on this basis). No such case is or has been before us. We have ruled on the assertions of DNC and BEM of general entitlement to time to discuss public issues. Our holding is in that context.

32. In short, we think the present system of regarding licensees as trustees, McIntire v. William Penn Broadcasting Co., 151 F. 2d 597 (C.A. 3, 1945), cert. den. 327 U.S. 779, with a duty to present contrasting viewpoints through representative spokesmen, is constitutionally sound and of greater public benefit than the concept of an individual right of access, which as we have shown has great drawbacks in the broadcast field.

Part II. The right of political parties to purchase broadcast time to solicit funds n14

n14 While the DNC petition is couched in terms of selling time to "responsible entities" to solicit funds, the petition before us is that of a political party and our discussion here is confined to purchase of time by such parties for colicitation of funds.

33. In view of the positions now taken by the three major networks (the only parties whose policies were singled out by DNC were CBS and ABC), no extended discussion is called for in this Part.

34. NBC has stated that it has no policy against the sale of time to a major national political party, to be used for the solicitation of funds for the party, including during non-campaign periods. CBS initially rejected the DNC request since it occurred outside an election campaign, but has now revised its policy to permit the purchase during any period by a political party of spot announcements (not to exceed one minute in length) designed to solicit funds for the party. ABC set forth its policy that "absent special public interest considerations, ABC will not sell time for comment on controversial issues or [*229] for solicitation of funds" (p. 3, ABC of June 10, 1970, to William B. Ray), but then stated:

The continued strength and viability of our two party system are of vital importance. ABC has emphasized in recent Congressional hearings the importance of a wider base for political contributions -- small sums from millions of Americans rather than large contributions from a few.

* * *

Because the strength and viability of the major political parties are vitally important, ABC would be prepared, consistent with its other obligations, to accept such orders for time from major political parties as can be accommodated on a reasonable basis. At the same time, we proposed to continue our general policy against the sale of time for controversial issue programs and announcements and solicitations for funds, absent special public interest considerations.

ABC then invited the Commission to address itself to its proposed treatment of the case.

35. We concur in that treatment. We note that Congress has singled out the presentation of the political broadcast as a particularly important aspect of the licensee's public interest obligation. See Section 315 (a), Farmer's Union v. WDAY, 360 U.S. 525 (1958) (citing F.C.C. cases); F.C.C. Memorandum on Second Sentence of Section 315(a), Hearing before Subcommittee of Interstate and Foreign Commerce Committee, 88th Cong., 1st Sess., on H.J. Res. 247, pp. 84-90. It also requires no discussion to establish that political parties are an integral part of our democratic process and that it serves the public interest to promote the widest possible support by citizens of the party of their choice. See Voters Time Rept., The Twentieth Century Fund (1969), pp. 45-47.

36. In a 1963 ruling, Letter to Lawrence M. C. Smith, 40 F.C.C. 549, we sought to encourage the presentation of free broadcast time for this purpose stating:

First, we recognize that the announcements described by you constitute an effort to achieve the worthwhile and commendable goal of broadening the base of political contributions. The importance of this effort was recently emphasized when, on May 29, 1962. President Kennedy transmitted to the President of the Senate and the Speaker of the House of Representatives legislation designed to carry out five of the important recommendations contained in the "Report on the President's Commission on Campaign Costs." In his letter of transmittal, the President stated, among other things:

"In these days when the public interest demands basic decision so essential to our security and survival, public policy should enable presidential candidates to free themselves of dependence on large contributions of those with special interest. Accordingly, it is essential to broaden the base of financial support for candidates and parties. To accomplish this, improvement of public understanding of campaign finance, coupled with a system of incentives for solicitation and giving, is necessary."

Furthermore, your proposal has an objective, in common with the broad policy underlying the "fairness doctrine" -- the right of the public in a free society to be fully informed as to controversial issues of public importance, including those involving political parties and candidates. See paragraph 6 of enclosed Editorializing Report.

Second, the question whether to present such announcements is one for the licensee, who is faced with many competing requests to allocate time for public service announcements. The Commission of course expresses no opinion as to how that time should be allocated. But the announcements in question should not be rejected upon the sole ground that the licensee would have to be fair in their presentation. Lawrence M. C. Smith, 25 Pike and Fischer Radio Reg. 291, at 293 (1963).

[*230] 37. Whether such time is afforded on a free basis is a matter for the judgment of the licensee. The issue here is whether the licensee may adopt or follow arbitrary policies with respect to the sale of broadcast time to significant political parties for the solicitation of funds. Thus, the prior CBS policy of confining such sales of time to election periods would appear arbitrary, since the need for the widest possible financial support for political parties is not confined to such periods; and indeed we note that CBS offered no reason for such a distinction.

38. In this connection, we note that affording time for such solicitations does not raise any offsetting considerations, because of the combined force of a number of factors:

(i) This area can be appropriately singled out, since Congress has singled it out for special attention by broadcast licensees;

(ii) This would appear particularly to be an area where the relatively short announcement, limited very largely to fund solicitations, is both effective and appropriate. n15

(iii) There is no problem under Cullman. For, in this regard the principles set forth in Letter to Nicholas Zapple, FCC 70-598 (1970), would govern.

n15 Of course, the licensee may exercise judgment as to how to present these solicitations for funds, and can afford more extensive programming time, if he so chooses. Indeed, we stress again the considerable discretion of the licensee, consistent with the obligations of the fairness doctrine, as to the various facets such as number, placement, length, etc. Cf. Lawrence M. C. Smith, 40 FCC 549.

CONCLUSION

39. In view of the foregoing, the request of the DNC and ABC for a declaratory ruling IS GRANTED to the extent reflected in Part II and in all other respects, IS DENIED.

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.

 


 

CONCURBY: COX

 

CONCUR:

CONCURRING STATEMENT OF COMMISSIONER KENNETH A. Cox

I concur. The essence of the holding as to sale of time for the discussion of controversial issues -- as of the Red Lion and Cullman cases -- is that a broadcaster must devote substantial time to the presentation of news and public affairs programming dealing with the principal issues of his area. He can sell time for this purpose -- subject to Cullman -- but we will not require him to do so against his wishes. Or he can -- and this is generally to be preferred -- give time for both sides. I assume here that the networks have given, or will give, adequate time for discussion of the key partisan political issues of our time. If not, then we must hold them to that obligation.

I therefore concur generally in this action, except for the matter contained in Paragraph 27.

 


 

DISSENTBY: JOHNSON

 

DISSENT:

DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON

[AN OPENING PARABLE]

[Once upon a time there was a nation as great in ideals as industrialization. It had business everywhere -- and unsurpassed military [*231] might to protect it. And yet its greatest strength was its foundation. For this nation professed to be governed by the consent of its citizens. To insure the successful functioning of this unusual government, free education, libraries, and full information were provided in order that its 200 million governors, through wide-open debate, might govern wisely. As the years slipped by the people spent more and more time in their air conditioned homes watching television, and less and less time listening to speakers in the public parks and reading handbills on the streets. And yet the great issues, and the need for informed governors, continued. And thus it was that the great debate about the great debate began.

Everyone had his own theory how to get the democratic dialogue back to the people (who were all home watching their television sets). Some advocated letters, petitions, press conferences, and picketing, but they didn't seem to be successful. Attention shifted to those who advocated bombing, burning, shooting and looting, because before and after the showing of such activities it was usually possible to present a short message on television (however distorted) about the merits of the issue at hand. Then a third group came along. It said, "Let us simply go to the broadcasters peacefully, and ask them for the time to present our concerns -- and even pay them." They were jeered by the crowd, but not deterred. The broadcasters politely explained that there was no longer any room at their inn for the discussion of public issues -- like war, and life, and politics -- because the time all had to be used for programs and announcements necessary to the very difficult but essential task of manipulating consumers to buy useless and harmful products. And yet these patient and patriotic students, businessmen, and Senators still did not give up. They continued to preach the doctrine of "working within the system." "The government," they said, "will treat us fairly. There is reason and justice in our land. Surely a democratic people need not be violent to be heard." And so it was that they came to the FCC....]

The Democratic National Committee (DNC) has asked the Commission for a declaratory ruling requiring broadcasters to supply two types of "access" to their radio and television facilities: first, the right to purchase, at current commercial rates, short "spot announcements" to solicit funds for political purposes; second, the right to purchase longer segments of airtime for presentation of political programming on important national issues. The majority, so far as I can determine, has equivocated on the first request, and denied the second. I dissent.

I

We should start with a few fundamentals. The great concept of our Constitution, embodied in the First Amendment, was that our democratic government would endure only so long as its citizens and their elected representatives had the leisure to think, the right to speak, and the freedom to criticize their government. As Supreme Court Justices Holmes and Brandeis understood, "the best test of truth is the power of the thought to get itself accepted in the competition of the market," and that in a government of free men, "the [*232] deliberative forces should prevail over the arbitrary." See Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting); Whitney v. California, 274 U.S. 357 (1927) (Brandeis, J., concurring).

The issues we grapple with today, therefore, pose a crucial question. How can we create a free and open "marketplace of ideas" over the radio and television medium in which citizens, and their elected representatives, can discuss the great issues that weigh upon our nation?

The second fundamental is equally important. For speech to be free, there must be both a forum for communication -- whether it be a public park, school, town hall meeting, soap box, leaflet, newspaper, magazine, or radio or television frequency -- as well as procedural rules to keep order, to make it possible for all (or most) to speak in turn, and be heard, in that forum. Perhaps the greatest legal distinction to be drawn in political and free speech theory is that between restrictions on the content of speech (which the First Amendment flatly prohibits), and regulations for the manner of speech (which the First Amendment not only permits but requires). As this nation's concept of speech derives principally from the model of the town meeting, I quote Professor Alexander Meiklejohn, one of the greatest champions of First Amendment freedoms, as he describes the town meeting:

In the town meeting the people of a community assemble to discuss and to act upon matters of public interest -- roads, schools, poor houses, health, external defense, and the like... The basic principle is that the freedom of speech shall be unabridged. And yet the meeting cannot even be opened unless, by common consent, speech is abridged. A chairman or moderator is, or has been, chosen. He "calls the meeting to order," And the hush which follows that call is a clear indication that restrictions upon speech have been set up... [No] one shall speak unless "recognized by the chair." Also, debaters must confine their remarks to "the question before the house."... The town meeting, as it seeks for freedom of public discussion, would be wholly ineffectual unless speech were thus abridged...

Meiklejohn, The First Amendment Is An Absolute, 1961 Supreme Court Review 245.

Although the First Amendment would clearly ban governmental censorship of speech content, government must be concerned about the procedural rules that control the public forums for discussion. If someone -- a moderator, or radio-television licensee -- applies rules that give one speaker, or viewpoint, less time (or none at all) to present a position, then a censorship exists as invidious as outright thought control. There is little doubt in my mind that for any given forum of speech the First Amendment Demands rules permitting as many to speak and be heard as possible. And if this Commission does not enact them, then the courts must require them.

The analogy to broadcasting should be clear. Yet, we have permitted a system of broadcasting to develop in this country in which private licensees serve, not only as "moderators" for the electronic forums of communication, but as all the "speakers" as well. As the majority states, our limited frequencies require someone to serve as "public trustees." No one would deny this need for a "trustee" system. But that is not the issue. The issue is whether that "trustee" must control all the available time, or whether policy and the First Amendment require [*233] him, in a manner consistent with his other duties, to turn over reasonable portions of that time directly to the people.

In many ways, broadcasters have resolved this issue themselves. For they have created a system in which immediate access is granted to one, privileged class of applicants: the commercial peddler of goods and services. As the system now operates, any person wishing to sell products -- toothpaste or "feminine deodorant spray," for example -- has direct, personal and instant access to television. He can present his message, in the form he wishes -- not in terms of "issues" (the general benefits of toothpaste or deodorant), but in terms of individual products. He is not forced to rely upon a "trustee" to argue the cause of his product for him under some principle of the fairness doctrine -- an occasional mention on the evening news, or a Sunday afternoon talk show. He does it personally and directly.

No, our Rules of Order for radio and television are fantastically skewed. We have an individual right of access, all right, but only for hucksters of industrial garbage. Anyone wishing to discuss war, peace, mental health, or the suffering of the poor, must seek out a corporate "trustee," appointed by the government, to speak for him. But the corporations that have largely contributed to these social ills can defend their wares directly. With the help of Congress and the FCC, the broadcasting industry in this country has built perhaps the most beautiful, efficient, and effective "marketplace of ideas" ever conceived and executed. The industry finds it most profitable, however, to use that marketplace only for the sale of products -- not the robust, wide open debate of a free society. And the FCC finds this in "the public interest"!

II

The majority has addressed the first issue -- the right to solicit funds via short announcements -- in ambiguous fashion. Stating that the three networks have grudgingly announced their willingness to accept such announcements, the majority responds: "We concur in that treatment" (Par. 30.) But how does this "concurrence" rule on the request before us -- namely, that broadcasters be required to adopt such policies? The majority hints that a denial of such time to political parties outside normal election periods would appear "arbitrary," but does not explain why, nor detail the consequences of such arbitrariness. Because, however, the majority states that solicitation announcements are "appropriate" in this area, I conclude that they make the networks' recently adopted policies binding on them.

In a companion case to this decision, Business Executives Move for Vietnam Peace (BEM), FCC 70-860, Aug. 6, 1970, I have stated in detail my position that a broadcaster cannot accept commercial advertisements, yet reject advertisements which are political in nature. I believe the principles there stated are directly applicable to advertisements soliciting funds for political parties. I will not repeat them here, but merely incorporate them by reference. For reasons detailed in that opinion, I concur in the majority's decision to require licensees to accept advertisements by political parties soliciting funds.

[*234] I dissent, however, to the majority's position that broadcasters should not be required to offer time for short announcements to all persons for any purpose. As I have argued in my Business Executives opinion, once a licensee opens his forum to the presentation of commercial views, he cannot then close it in a discriminatory fashion -- accepting some commercial views and political solicitations, but rejecting all others. I point out only that the Commission's partial waiver for the DNC to permit it to purchase fund-raising spot announcements only increases the arbitrariness and discrimination involved in denials of access to political parties for short announcements on current issues, or announcements by groups or individuals either soliciting funds or stating positions on national problems.

In Wirta v. Alameda-Contra Costa Tranist District, 434 P. 2d 982 (Cal. 1967), for example, a public transit company sold advertising space in its buses for commercial products, but refused to accept an advertisement by Women for Peace, which simply stated:

"Mankind must put an end to war, or War will put an end to mankind." -- President John F. Kennedy...

Stating that the political "advertisement" was clearly protected by the First Amendment, the court flatly ordered the company to accept the advertisements for display.

[Advertising] is an acceptable and effective means of communication. A regulation which permits those who offer goods and services for sale... access to such forum, while denying it to those who desire to express other ideas and beliefs, protected by the First Amendment, cannot be upheld.

Wirta, supra, at 990. The "vice" of censorship lay in "choosing between classes of ideas," accepting commercial ones and banning all others. Every other court faced with the same issue has followed this position. See, e.g., Hillside Community Church, Inc. v. City of Tacoma, 455 P. 2d 350 (Wash. 1969); Zucker v. Panitz, 299 F. Supp., 102 (S.D.N.Y. 1969); Kissinger v. New York City Transit Authority, 274 F. Supp. 328 (S.D.N.Y. 1967). The application of this arm of the law to broadcasting is relatively new and as yet undeveloped and unapplied. But see United Broadcasting Co. (WHKC), 10 F.C.C. 515 (1945). I have attempted to show that these cases clearly apply to broadcasting in my Business Executives opinion.

The lesson of these cases is clear. The Government could not, for example, allow persons selling products to speak freely in public parks, but bar those opposing the war or require them to "speak" through an interpreter or "trustee" appointed by the Government. No court in the land would tolerate such blatant discrimination. Yet the majority permits this sort of discrimination to occur every day in our nation's electronic "public parks." Although we do not have the question before us, a broadcaster might not have to open his forum to advertising at all. But once he does, he must open it in an even-handed manner -- absent some compelling showing of detriment or disruption to his normal programming services. No such evidence on this issue has been supplied to us.

I believe this Commission (perhaps for a two-year trial period) should require broadcasters to accept, up to recognized limits on numbers [*235] of commercials, all advertisements, whether commercial or political, from any person, for broadcast at rates determined by the licensee, on a first-come, first-served basis. If ghetto residents or our major cities wish to purchase announcements decrying the rat-infested, disease-ridden slums in which they are forced to live, they must be given their say. If the Daughters of the American Revolution wish to announce their support for the Vietnam War, they must be given their say. I short, I would open the broadcast spectrum to short announcements from all comers on a first-come, first-served basis. There will be time later to assess and evaluate -- to consider, for example, whether the views of the rich predominate -- at least, to a greater extent than they now predominate in mass media advertising. I would not expect any fairness doctrine problems. Few licensees would argue that they were unwilling to accept an advertisement because it might force them to present all views on an issue of controversy and public importance. This obligation is already incumbent upon them. And should the fairness doctrine prove unworkable in this field, it could be suspended for this type of programming.

III

The Commission also denies the DNC the right to purchase, at the going rates, half-hour or full-hour programming to discuss issues of national concern. I disagree. If broadcasters are to permit a General Motors or a Ford Motor Company, in effect, to purchase a full hour of "I Love Lucy" as a vehicle upon which to display their commercials, then I do not see how, consistent with the principles enunciated in Wirta and other cases, the broadcasters can refuse to permit the leading representatives of our legislative branch of government to purchase the equivalent hour to display their ideologies and concerns. I would require licensees to accept programming of a political nature, if offered, in an amount up to 5% of their prime time evening schedule on a first-come, first-served basis. Assuming four hours of prime time every evening (from 7:00 p.m. to 11:00 p.m.), and calculating 30 days per month, that would release six hours per months to "pure access" by politicians and citizens groups alike. The individual licensee would, of course, still retain the right to reject programming for inadequate technical and production quality, or violation of federal law (lotteries, obscenity, etc.). But I would assume that programming purchased by the national political parties would, almost per se, meet any pre-established quality standards. Licensee profits would remain at their present high level. And there will be time later to assess this scheme and determine the extent to which fairness doctrine obligations apply. The fairness doctrine could be suspended in this limited area, on the assumption that persons wishing to respond could purchase the necessary reply time. Obviously this 5% figure is only an initial, approximate determination, and obviously any other reasonable percentage determined by the licensee would also be approximate. But the point is that licensees could not reject all programming.

The majority essentially raises several objections to such a procedure. First, they argue that this would permit those with "strong financial [*236] resources" to pre-empt time and distort the presentation of issues. And they maintain that the views of the wealthy would dictate the agenda of national debate. I disagree. The short answer is that the wealthy already set the agenda for national debate, and a partial "access-for-purchase" procedure would only open a closed system to partial dissent. A longer answer, however, is simply that I have more faith in the theoretical "marketplace of ideas" than does the majority. I am not aware that opening the pages of newspapers or magazines, or the wall space of buses, train stations or subway platforms, have resulted in a preponderance of "wealthy" views. And I do know that the "Political advertising" that appears in daily newspapers -- urging, for example, citizens to write the President in support or opposition of the Vietnam war -- is more stimulating and thought-provoking than those of department stores and food chains. All in all, I do not see any imbalance in that system of "print" access. Why should we expect it in radio and television?

But more importantly the dissemination even of "false" or one-sided political ideas often serves a socially useful purpose. False commercial ideas (such as the notion that modern cars are "safe," or do not pollute the air) are unlikely to generate opposing claims; at best, they merely goad competing manufacturers into more and more extravagant claims. On the other hand, expressions of political opinion in this country usually lead to argument and debate, not silent acquiescence; to vigorous opposition, not passive acceptance. And debate and dissent is always healthy. John Stuart Mill saw this over 100 years ago, and I do no believe the passing century has proven him wrong:

The peculiar evil of silencing the expression of opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

 

J. S. Mill, On Liberty, quoted in Buckley v. Meng, 230 N.Y.S. 2d 924, 932 (Sup. Ct. 1962). Given a system in which the small citizen and the man of moderate means are totally cut out from a system of communication, therefore, I believe a partial access system might move a small way toward righting the present imbalance.

The majority's second justification for its position is that we have a limited number of frequencies, and that some "trustee" must necessarily exercise control over broadcasting time. Any other system would result in chaos. Again, this begs the question. Merely because a "trustee" or "gatekeeper" must control some of the time, I see no compelling reason why he must control all of it. Broadcasters have essentially abdicated this "trustee" authority to commercial advertisers, gobbling up sponsors as rapidly as they approach, and limiting themselves only by the commercial maximums suggested for radio and television. They have also, on occasion, sold entire hours to sponsors such as Xerox or National Geographic to present their own programming. The question before us, therefore, is whether the present system of broadcasting could function with a partial system of access, leaving the vast bulk of programming still under the control of the networks and individual [*237] licensees. Nothing the majority has said convinces me that this is impossible.

The third reason given by the majority is that Section 3(h) of the 1934 Communications Act prevents licensees from being treated as a "common carrier." There are many defects in this position, some of which I have dealt with in my dissenting opinion in Business Executives, FCC 70-860, Aug. 6, 1970. Some are as follows.

First, the legislative history of this provision suggests that the drafters of the 1934 Act were concerned only that Title II of the Act, "Common Carriers," and its rather complicated system of regulation, not be imposed on radio. No one would argue that a partial access system would have this result.

Second, Congress wrote into the 1934 Act the concept that broadcast licensees must serve the "public interest, convenience, and necessity." And it goes without saying that the basic principles of the First Amendment are also incorporated implicitly into the Act. We do not have to declare unconstitutional Section 3(h) of the Act to say that broadcasters must treat persons wishing to do business with it equally. We have ruled in our Letter to Nicholas Zapple, FCC 70-598 (1970), for example, that even apart from Section 315(a) considerations, there may be only one appropriate person or spokesman that can satisfy the fairness doctrine obligation imposed upon broadcasters in certain situations. Does this violate Section 3(h) of the Act, by taking from the licensee choice over the person that uses his facilities? Of course not. A limited system of access for purchase is perfectly consistent with Section 3(h) of the Act, the "public interest," and the First Amendment. Indeed, the First Amendment may require such a system or some reasonable facsimile.

Third, a reasonable system of access does not make broadcasters into common carriers. A doctrine preventing broadcasters from rejecting all persons wishing to submit political advertising or other programming does not force licensees to accept everyone. Obviously broadcasters can establish reasonable limitations on the amount of time he will offer other persons. See United Broadcasting Co. (WHKC), 10 F.C.C. 515 (1945). The First Amendment does not establish any particular proportion on percentage figure; it does require, however, that broadcasters devote some "reasonable" portion of their time to "access" programming.

IV

The matters before us go far beyond freedom of speech. For in the last analysis, we are confronted with one of the most serious challenges to the system of "checks and balances," the separation of the legislative and executive powers of government, that our country has ever faced. If, for example, through some bizarre turn of events the President, but not the Congress, was granted access to the computer, the telephone, the telegraph, the typewriter, the printing press, and the Xerox machine, we would also see a constitutional quandry of the proportions that face us now. The President has immediate, direct and vivid access to all the minds of the prime-time television viewers in America. Can our tri-partite scheme of government survive if the Congress receives substantially less?

[*238] Unlike the fairness doctrine, which often imposes a burden on broadcasters due to the importance of the issue to the public, principles of pure "access" pay their own way. The broadcasting industry is out-of-pocket nothing. The great mass of news, documentary and entertainment programming will be unaffected. And the forums of the air will be opened to the breeze of dissent, controversy, and thought.

Unlike the fairness doctrine, an "access" system is self-enforcing. No governmental agency is called upon to decide which issues are controversial and of public importance. Issues reach the public immediately, without the years of delay required to push a fairness doctrine controversy through the Commission and the courts.

And, unlike the present system, the views that reach the people will not be dominated by the consensus committees of the corporate television establishment. There are some who fear that the agenda of debate will be set by the rich. But who, after all, sets that agenda now? The great mass of television programming consists of format entertainment series, carefully designed as supportive and palatable packaging for the commercial content supplied by the merchandisers of our land. To the extent a network seeks to provide programming which is "offensive" to some corporate interest, then pressures for censorship are brought to bear -- as Coca Cola is alleged to have pressured NBC over its recent documentary on migrant workers. All we can hope for is a system of access in which at least a small percentage of the time and views will originate directly from the people -- of all views, persuasions, and walks of life. That even that modest participation is anathema to the broadcasters is testimony to their dangerous arrogance and unrestrained power. Accordingly, I dissent to today's Commission action.


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