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In the Matter of CECIL (CEC) HEFTEL, PRESIDENT, PACIFIC BROADCASTING CO., HONOLULU AND HILO, HAWAII Request for Declaratory Ruling Concerning Broadcast Appearances by Candidates for Public Office

 

FEDERAL COMMUNICATIONS COMMISSION

 

32 F.C.C.2d 263

 

RELEASE-NUMBER: FCC 71-1127

 

November 1, 1971 Released

 

 Adopted October 28, 1971

 

 


JUDGES:

BY THE COMMISSION: COMMISSIONER JOHNSON CONCURRING AND ISSUING ASTATEMENT; COMMISSIONER REID NOT PARTICIPATING.


OPINION:

 [*263]  1.  The Commission has before it a request for declaratory ruling filed by Pacific Broadcasting Company (Pacific) on June 28, 1971.  Pacific, licensee of stations KGMB-TV, Honolulu, and KPUA-TV, Hilo, Hawaii, seeks a ruling that a plan it has devised for making time available to candidates for public office in the 1972 election campaigns is in accord with Section 315 of the Communications Act of 1934, as amended, 47 U.S.C.   315, and the licensee's general responsibilities to operate in the public interest.  The essence of the plan is to provide specified amounts of free time to candidates in certain races in lieu of the sale of any time in such races.  Time would be provided free in both the primary and general elections.  Some program segments would be made available for appearances by the candidate or a spokesman and other time periods would be available for use either for questions by independent newsmen or for debates with questions also posed by newsmen.  These latter time periods would be lost by any candidate who did not accept the station's proposed format.  One-minute spot announcement time would also be available without charge for the candidate or a designated spokesman "to speak to the issues in the campaign or to the qualifications of the candidate."

2.  The proposal before us is supported by way of background by a statement by Cecil Heftel, president of the licensee, explaining that his concern with the high cost of political campaigning, and particularly the significant portion of that cost accounted for by television, led him to seek a way in which qualified candidates without great financial backing could bring their campaigns to the public.  In the absence of remedial legislation in this area, the first step for him as a broadcaster appeared to be to work within the restrictions of Section 315 of the Act to make time available to candidates without charge as a public service, and it was in this spirit that the proposal was formulated.   [*264]  The pleading further details both the significance and high cost of television in present day political campaigns, and the consequent reliance of candidates upon large campaign contributors who may have special interests to advance.  We nden not further set forth these details here; they have for some time been a matter of deep public concern, see e.g., Voters' Time, Report of the Twentieth Century Fund Commission on Campaign Costs in the Electronic Era (1969), and various legislative remedies have been under active consideration.  We do note, however, that the Pacific proposal is directed not merely at the financial problem but also at Pacific's concern that television can be used -- through programs and spot announcements -- to persuade the public without enlightening it concerning the merits of the candidate or the issues.  An "essential ingredient" of the Pacific plan "is to ensure that political broadcasting on its stations is conducted on a level which will serve -- not deceive -- the public." Pacific believes that its plan fully accords with the public interest, n1 but recognizes that it is not clearly free from pitfalls under Section 315 and accordingly seeks a Commission ruling. 

 

n1 Pacific also believes that its proposal may be adaptable by other broadcasters to fit their local situations and campaigns.

3.  In 1972 the voters of Hawaii will elect candidates to all offices except Governor, the United States Senate, the State Senate and the City Council of the City and County of Honolulu.  In addition, they will of course vote for candidates for President and Vice President of the United States.  There will be both primary (not Presidential) and general elections.  The local campaigns, therefore, are: United States House of Representatives, State House of Representatives, Mayors of four counties, and the County Councils of three counties.  No television time will be sold for the two Congressional races, the Mayor of the County (and City) of Honolulu, and the Mayor of Hawaii County.  n2 Free time will be made available on the appropriate Pacific station for these four offices on the following basis: During the six weeks prior to the October 7, 1972 primary, each race will receive thirty half-hour segments (eight in evening hours, fourteen between 11:00 p.m. and 8:00 a.m., and eight between 8:00 a.m. and 6:00 p.m.), fifteen of which would be allocated for use by the candidates or their spokesmen "to speak on behalf of their candidacies or to the issues in the campaigns," and fifteen of which are for "either participation in a question and answer period with independent newsmen selected jointly by the candidates and Pacific or for debates between or among opposing candidates with questions also posed by a panel of independent newsmen selected jointly by the candidates and Pacific." [footnote emitted].  n3 In addition, a total of two hundred twenty-four one-minute spot announcements would be made available in various time periods.  Pacific has allocated times which appear to it to be adequate, but it cannot of course predict the number of candidates and it expects to be flexible if more time is required. 

 

n2 The licensee has advised us orally that time will be sold for the other local offices.

n3 An unopposed candidate in a primary would receive time proportionate to that made available to competing primary candidates.

 [*265]  4.  Between the date of the primary and the general election on November 7, 1972 (a period of about four weeks), time will be made available free for the same offices upon the same conditions in the following amounts for each race: six half-hour segments in the evening, ten half-hour segments between 11:00 p.m. and 8:00 a.m., and six such segments between 8:00 a.m. and 6:00 p.m., in addition to one hundred forty-nine one-minute spot announcements spread over similar periods of the day.

5.  Pacific further states that it will give extensive coverage to important State campaigns through its regular news programs, including news interviews and news documentaries.  It would also give free time to candidates in any particularly significant and newsworthy campaigns.  With respect to the Presidential and Vice Presidential races, Pacific states that no political broadcasts were ordered for Hawaii in 1968, either on a network or local basis, and that the voters were informed through the news media rather than through political advertising.  It expects to carry any political programs and announcements which it receives from the network (these are apparently on a one-week delayed basis); in addition, if any Presidential candidate or supporter of a candidate desires to purchase time, Pacific will give to that candidate and the opposing candidate reasonable amounts of free time subject to the limitations outlined.  n4

 

n4 The purport of this last provision is not entirely clear.  However, we need not further consider it in the context of this decision.

6.  Pacific recognizes that its proposal may be thought to work to the disadvantage of lesser-known candidates, but believes this is more desirable than permitting an election to be won on the basis of financial resources.  It has concluded that its proposal will provide "sufficient exposure of the candidates and their views that the voters will be able to judge the relative merits of the competing candidates irrespective of their comparative degrees of recognition by the public at the outset of the campaign." Pacific requests a specific ruling that the plan is in conformity with Commission policies (including Section 315 of the Act) and will provide to a much greater extent than is presently possible extensive, fair and free exposure of candidates seeking public office.  n5 We agree that Pacific has taken a highly commendable approach to the solution of a most pressing problem.  Whether the precise amounts of time allocated for the candidates' free use are adequate is a matter within the licesee's informed discretion, and Pacific recognizes that it is not possible to make a definitive commitment without knowledge of the number of candidates and the nature of any particular campaign.  Therefore, we see no occasion at this time to make any judgment on that aspect of its proposal.  n6 The question presented by the request for a ruling is the conformity of the proposal with Section 315 of the Act, for Pacific does intend to place certain restrictions on  [*266]  the use of the time which, however well intentioned, raise serious questions. 

 

n5 Pacific estimates the amount of time allocated to be worth $134,633, contrasting with $124,417 spent on its television facilities in 1970 and $140,579 spent in the 1968 campaign.

n6 While the Commission has stated that reasonable attention to significant political campaigns is an element of the public interest to be served by a licensee, the statute of course does not require the sale of time to any candidate, and Pacific's proposal, to the extent that it involves a decision not to sell time for four races, does not raise a problem.

7.  Thus, one half of the program segments are for appearances by the candidates or their spokesmen "to speak on behalf of their candidacies or to the issues in the campaigns," and the other segments are for use in formats involving questioning by independent newsmen and, perhaps, debates.  Other persons would not be permitted to appear.  These restrictions on the use of time by a candidate n7 are said to be premised on the view that every candidate is entitled to substantial blocks of free time to advocate his candidacy to the public.  We can accept this premise, but it does not follow that the proposed restrictions are in conformity with the statute.  Section 315(a) provides that the "licensee shall have no power of censorship over the material broadcast under the provisions of this section." This has been held to mean that the candidate must have "the freedom to use facilities as he sees fit," that is, "the basic objective of Section 315 [is] to permit a candidate to present himself to the electorate in a manner wholly unfettered by licensee judgment as to the propriety or content of that presentation." Gray Communications Systems, Inc., 19 FCC 2d 532, 534-535 (1969). In that case, the Commission found a "use" under Section 315 although substantial portions of the program were occupied by those other than the candidate and it ruled that the station could not reject the broadcast because of such appearances by other persons.  See also, Socialist Labor Party, 40 FCC 241 (1952), holding that the licensee could not require a candidate to relate his broadcasts to the office for which election was sought.  While, as Pacific notes, the Gray ruling "focused on the non-censorship aspects of Section 315," it is precisely those aspects which are pertinent here.  It is not relevant that the licensee may be offering equal opportunities in the sense of putting the same restrictions upon all candidates.  Thus, in Letter to Senate Committee on Commerce, 40 FCC 357 (1962), where a station offered the opposing candidates free time on a series of joint interview programs, stating that if only one candidate accepted the invitation the full half-hour would be devoted to him, the Commission ruled that the proposed series would fully comply with all requirements of Section 315 if all candidates were in agreement as to the format, but that a candidate who did not accept the offer would be entitled to full equal opportunity rights.  The Commission stated that the attempt to impose an interview format would constitute prohibited censorship.  n8 Although the Commission found that proposal to be a substantial and commendable effort to comply with the licensee's public interest obligations, it could not, under Section 315, approve the licensee's terms.  It stated (40 FCC at 359):

 

n7 While the proposal contemplates that the candidate may use a spokesman for the segments not involving questions and answers with newsmen, it is not clear whether a spokesman may also be used in the other segments.  We assume not, since there would be little point in such a presentation and the pleading states that the candidates need not make use of these question and answer periods if they do not wish to do so, i.e., they then lose the time.

n8 This decision and the others cited in the text must be considered as overruling Letter to Bob Wilson, 40 FCC 300 (1958), to the extent that decision holds that a licensee requiring a candidate to accept a debate format is in compliance with Section 315.

In short, it is our view that a licensee should consult with the candidate and reach agreement if possible.  If complete agreement cannot be effected with  [*267]  all candidates, the licensee may implement his plans as to candidates who have agreed thereto and, as to any who have not agreed, make available, upon request, opportunities comparable to those accorded his opponents in the program, in accordance with the literal language of Section 315.

8.  Therefore, while Pacific states that time is not being offered on a take-it-or-leave-it basis, it is our understanding of its proposal that a candidate who does not accept the question and answer format proposed for half of the program segments will indeed lose that time, and we believe the precedents cited above preclude this approach.  Similar censorship problems are also presented by the restrictions on context proposed for the other program segments and the spot announcements, and we find them to be similarly in conflict with Section 315.  This is not to say that we are unsympathetic to Pacific's attempt to insure that the public will be informed rather than used.  However, in view of the basic purpose of Section 315 to assure the candidate an opportunity to use broadcast facilities unfettered by licensee judgments as to the manner of use, Farmers Union v. WDAY, 360 U.S. 525 (1959), a purpose which serves important public interest values, we see no basis for a departure from our past holdings.  We note in this connection an expressed willingness by Pacific to modify its proposal in the event that we do not find it to be in conformity with Section 315.  We express the hope that it will see fit to do so, in view of the value to candidates and the public of free time for political discussion.  n9

 

n9 Pacific also asks us to rule that a half-hour or five-minute program presentation does not give rise to an obligation on the part of the broadcaster to make spot announcement time available to another candidate.  We decline to issue a ruling absent the facts of a particular case.  We have stated that matters such as these "can be only resolved by good faith negotiations between the parties," and that "determination of equal opportunities must be governed by a rule of reason." See In re Complaint by Bella S. Abzug, 25 FCC 2d 117, 120-121 (1970). In the Abzug case, the complaining candidate sought a ruling that Section 315 would require a station to give her 45 one-minute spot announcements per day to balance a single 45-minute daily appearance on the station by the other candidate.  We found that in such a situation "it would be unreasonable for a licensee to be required to afford an opposing candidate only short time segments such as 60-second announcements when the first use consisted of program length segments." [Emphasis added]

 

FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.


CONCURBY: JOHNSON

 

CONCUR:

CONCURRING OPINION OF COMMISSIONER NICHOLAS JOHNSON

Cecil Heftel, President of KGMB-TV, Honolulu, and KPUA-TV, Hilo, seeks our permission for an innovative solution to the high costs-of-political-television-time problem.

We grant it in part and deny it in part.

I would grant both more, and less, than the majority, and therefore concur.

I would grant more in that I would permit the licensee to carry out his scheme.  In my judgment it was conceived in good faith, is going to cost him considerable, and is the kind of good citizenship that ought to be encouraged.

I would grant less in that I would limit the opinion to this case only, as an experimental undertaking.  We should gather some data on how it works out in fact, and get the reactions of the candidates, Mr. Heftel, and the public in Hawaii.  Out of this experience might  [*268]  very well come suggestions from the FCC for new legislation or changes in our regulations, or industry-wide proposals, very much worth considering.

To permit a licensee to control a candidate's television format is, of course, a violation of the present law and policy.  But there are also some concerns about a total ban on purchased time.  So long as the amounts of free time made available are so limited as to be within the bounds of possible purchase by the average challenger anyway, the policy gives an incumbent a decided advantage over a relatively unknown new-comer who is thereby precluded from one of the most effective name-recognition-programs available.

Accordingly, I concur.


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