In the Matter of THE HANDLING OF PUBLIC ISSUES UNDER THE FAIRNESS DOCTRINE AND THE PUBLIC INTEREST STANDARDS OF THE COMMUNICATIONS ACT
Docket No. 19260
FEDERAL COMMUNICATIONS COMMISSION
36 F.C.C.2d 40
RELEASE-NUMBER: FCC 72-534
June 22, 1972 Released
Adopted June 16, 1972
BY THE COMMISSION: COMMISSIONER JOHNSON DISSENTING AND ISSUING A STATEMENT; COMMISSIONER H. REX LEE CONCURRING IN THE RESULT; COMMISSIONER WILEY ISSUING A SEPARATE STATEMENT.
[*40] I. INTRODUCTION
1. This first report deals with Part V of our Notice -- the fairness doctrine as it relates to political broadcasts. We would ordinarily consider this aspect in the context of the revisions made in the general fairness area, including possible public interest decisions as to access. However, we are operating under time constraints here that we must take into account -- namely, the appropriateness of disposing of this aspect well before the commencement of the general election period. See DNC v. FCC, U.S. App. D.C. , FCC 2d , Case No. 71-1738 (D.C. Cir. Feb. 22, 1972), (slip op. at 7). We therefore have expedited our consideration of this aspect and, if necessary, will re-examine this report in light of our later decisions in Parts II-IV.
2. While this was the last topic in this inquiry, it is not, of course, the one of least importance. Promotion of robust, wide-open debate in this field vitally serves the public interest.
3. In applying the fairness doctrine the Commission has traditionally required licensees to afford reasonable opportunity for the presentation of contrasting views following the presentation of one side of a controversial issue of public importance. The licensee has been given wide discretion in selecting the appropriate spokesman, format and time for the presentation of the opposing views on controversial issues, with two significant exceptions. Under § 315 of the Communications Act of 1934, as amended, licensees are required to afford equal time to legally qualified candidates; and under the Commission's political editorializing rules (§ 73.123(c), 73.300(c), 73.598(c), 73.679(c)) the [*41] licensee must afford a reasonable opportunity for a candidate or his spokesman to respond when the licensee has opposed him or supported his opponent in an editorial.
4. Under the ruling in Letter to Mr. Nicholas Zapple, 23 F.C.C. 2d 707 (1970) the Commission further limited the licensee's discretion. The Commission held in Zapple that when a licensee sells time to supporters or spokesmen of a candidate during an election campaign who urge the candidate's election, discuss the campaign issues, or criticize an opponent, then the licensee must afford comparable time to the spokesmen for an opponent. n1 Known as the quasi-equal opportunities or political party corollary to the fairness doctrine, the Zapple doctrine is based on the equal opportunity requirement of Section 315 of the Communications Act; accordingly, free time need not be afforded to respond to a paid program.
n1 In In Re Complaint of Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283 (1970), affirmed on reconsideration sub nom. Republican National Committee, 25 F.C.C. 2d 739 (1970), the Commission extended the Zapple ruling to a non-campaign period proffer of time to a political party chairman where the licensee did not specify the issue or issues to be discussed. This ruling was reversed in Columbia Broadcasting Co. v. F.C.C., 454 F. 2d 1018, (D.C. Cir. 1971).
5. Since some controversy has been generated as to the applicability or wisdom of this doctrine, the Commission asked for public comment on the following questions in its Notice of Public Inquiry in Docket No. 19260 (hereinafter, Fairness Inquiry).
"Should the quasi-equal opportunities approach be restricted or expanded and what is the feasibility and effect of any proposed revision on the underlying policies of the statute (see Section 315(a))?
" -- Should the Commission adopt a position that Zapple applies only to political campaigns and not to other times?
"Should Zapple be disassociated from the fairness doctrine and incorporated into Section 315?
" -- Should Zapple be limited by applying a 7-day deadline for requesting "quasi-equal opportunities"?
" -- Should Zapple continue to apply only to major parties (see Letter to Lawrence M. C. Smith, 25 R.R. 291 (1963)), or should it be extended to all parties or to some mathematically-defined category of "parties with substantial public support" (e.g., percentage of popular vote)? How should it apply to "new" parties?
" -- Should Zapple be extended to include spokesmen for ballot issues such as bond issues, amendments of state constitutions, etc.?"
6. One additional suggestion has been that the Zapple doctrine should be extended to include broadcast appearances of the President of the United States so that an automatic right to respond in comparable time, format, etc., would accrue to appropriate spokesman following a Presidential appearance. In Complaint of Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283, 294-298 (1970), the Commission declined to extend the Zapple quasi-equal opportunities concept generally to Presidential appearances, although it said that the fairness doctrine was applicable to Presidential appearances when dealing with controversial issues of public importance. Upon re-examination in Republican National Committee, 25 F.C.C. 2d 739, 744 (1970), the Commission again explained that Presidential [*42] broadcasts made in a non-election period do not come within the Zapple corollary but are included under the general fairness doctrine to the extent that controversial issues of importance are discussed. The question was raised once again and ruled on by the Commission in Democratic National Committee, 31 F.C.C. 2d 708 (1971), aff'd Democratic National Committee v F.C.C., U.S. App. D.C. . F.2d , Case No. 71-1738 (D.C. Cir. Feb. 22, 1972). However, we solicited the comments of the public on the questions raised in these cases in this inquiry.
III. SUMMARY OF COMMENTS
7. Extensive comments and reply comments addressing these questions were received in response to the Fairness Inquiry from fourteen parties. In addition, the Commission conducted panel discussions and heard oral argument for a full week in March 1972, during which these issues were exhaustively discussed. (A list of all participants is included in Appendix A). A variety of ideas, proposals, and criticisms were presented, a brief summary of which follows.
8. Storer Broadcasting Company observes that since the fairness doctrine, unlike Section 315, gives no particular person a right to reply to previously broadcast material, the extension of the fairness doctrine to a quasi-equal opportunities doctrine in Zapple is a contradiction of the fairness doctrine. As presently constituted, Zapple and its progeny provide insufficient direction to licensees as to when comparable responses to non-campaign appearances of public officials are required, as to which party spokesman is entitled to reply when different factions within a party wish to respond, and as to the rights of minority parties to comparable time. Storer recommends, therefore, that Zapple should be codified in Commission rules or be incorporated into Section 315 to remove it from the ambit of the fairness doctrine. Storer further suggests that the Commission adopt a political broadcast primer to specify licensee obligations and responsibilities in this area.
9. The National Association of Broadcasters (NAB), General Electric Broadcasting Co., American Broadcasting Co. (ABC), National Broadcasting Co. (NBC), the Evening News Association, Lee Enterprises, Inc., Time Life Broadcasting, Inc. and others support the principles of the Zapple doctrine so long as the Cullman n2 doctrine continues to be inapplicable, and licensees are not required to subsidize the campaigns of opposing candidates by affording free response time. Zapple is seen by those filing joint comments with the Evening News Association as an appropriate means to fulfill the purposes of Section 315, ensuring the equality of treatment of political candidates by broadcast licensees. Consequently, they would impose obligations on licensees only when a campaign is in progress in which the broadcaster has afforded time and relinquished content control to a spokesman for a candidate to support that candidate or to oppose rival candidates.
n2 Cullman Broadcasting Co. Inc., 40 F.C.C. 576, 577 (1963) held that "... where the licensee has chosen to broadcast a sponsored program which for the first time presents one side of a controversial issue, has not presented (or does not plan to present) contrasting viewpoints in other programming, and has been unable to obtain paid sponsorship for the appropriate presentation of the opposing viewpoint or viewpoints, he cannot reject a presentation otherwise suitable to the licensee -- and thus leave the public uninformed -- on the ground that he cannot obtain paid sponsorship for that presentation."
[*43] 10. The NAB, ABC, NBC, and G.E. Broadcasting Co. argue that the Zapple doctrine should also apply to "political" broadcasts where a campaign issue (bond proposal, constitutional amendment, etc.) that is supported or opposed by a political spokesman has been placed on the ballot. It is argued that this situation is analogous to both Section 315 and Zapple, and, as is the case with the political spokesman doctrine, Cullman should not apply. NBC emphasizes that the quasi-equal opportunity approach of Zapple or its extension to ballot issues should apply only to paid presentations in campaign periods, since the equal opportunities approach involving free time inhibits the presentation of political programming and interferes with a licensee's editorial judgment.
11. Two commentators, Democratic National Committee (DNC) and American Civil Liberties Union (ACLU) suggest that the Commission extend the fairness doctrine or adopt a specific rule that would require licensees to broadcast the opposing views of appropriate spokesmen following an appearance of a public official. It is claimed that there is an overriding national concern in informing the public on both sides of issues dealt with by public officials, and accordingly, that licensee discretion in presenting opposing views and selecting appropriate spokesman should be more limited than at present.
12. DNC specifically urges the adoption of a rule that: (1) would establish a presumption that a Presidential broadcast appearance involves a controversial issue of public importance; (2) would require licensees to seek out appropriate spokesmen to present an opposing view and to afford them equal opportunities; and (3) would require licensees or networks to keep publicly available for three years a tape or transcript of every presidential appearance. DNC asserts that such a rule is necessitated by the public interest standard of the Communications Act and by the First Amendment, in view of the public's need to be fully informed on important public issues discussed by he President. The public is not presently receiving balanced information on such issues, DNC believes, because the President's control of the time, format, and content of his appearances maximizes their impact and effectiveness while, on the other hand, the difficulties encountered by DNC in buying time to discuss public issues or in securing free time to respond to Presidential appearances limits the effectiveness of the presentation of their viewpoint. DNC's views are currently presented, it maintains, through news and panel show presentations in which DNC representatives are merely responding to questions and have no opportunity, comparable to the President's, to develop a reasoned and uninterrupted presentation of the issues. DNC thus argues that the First Amendment goal of promoting robust, wide-open debate is being thwarted by its rejection as an entity responsible for defining options for the American people on major public issues and by denying it access, comparable to the President's, to respond to his appearances.
13. ACLU maintains that the responsibility of the licensee under the fairness doctrine should extend to making available comparable opportunities for opposing spokesmen to comment on the issues raised in the broadcast appearance of any public official, including the President. Because of the President's unquestioned power to command [*44] broadcasting time and to attract an audience, ACLU feels that comparable time can be afforded only if the contrasting viewpoint is presented immediately after each Presidential appearance. The President and other public officials should furnish copies of their statements sufficiently in advance of their broadcast to permit station licensees to fulfill these fairness obligations.
14. The proposals of DNC and ACLU were opposed by a number of parties. ABC and G.E. Broadcasting Co. argue that no justification for the proposed rule can be found in Section 315 of the Act, since under that Section, the recipient of an equal time opportunity to respond to a candidate's appearance must himself be a legally qualified opposing candidate and not just a representative of a political party or some other appropriate group. To extend a quasi-equal opportunities doctrine to non-election period Presidential appearances would require Congressional amendment of Section 315 because such extension would violate the intent of Section 315, and specifically, would negate the newscast, news documentary, and news interview exemptions to the equal time provisions contained in Section 315(a). Implementation of these proposals would also be a distortion of the fairness doctrine, it is argued, since the fairness doctrine focuses on issues, not individuals or candidates.
15. Those parties filing with the Evening News Association argue that the broadcast appearance of a public office holder should be treated as the appearance of a public official fulfilling the duties of his office, not as the appearance of a partisan spokesman presenting one side of a controversial issue absent some extrinsic evidence to the contrary. Otherwise, the public's right to be informed on important matters by its elected officials would be subordinated to the rights of a particular class (political candidates) to broadcast.
16. NBC believes that both DNC and ACLU have failed to show the necessity of their proposed policies or the present inadequacy of the fairness doctrine as a tool for informing the public on important public issues. Creation of an equal or quasi-equal time right to reply to all public official addresses would, as a practical matte, inhibit the appearance of public officials, NBC maintains. It would also ignore the difference in media use by different officials, as well as the fact that it is possible to distinguish the leadership appearances of an official from his political opinions. NBC also has argued that under present rules Presidential appearances during a campaign for his re-election are subject to the Section 315 equal time requirements, that Presidential appearances in a non-election period are subject to the fairness doctrine and the political party corollary, and that these doctrines are adequate to ensure that the electorate is informed.
17. WGN Broadcasting Co. (WGN) is also opposed to the DNC/ACLU proposals on the grounds that the standard proposed by DNC, that Presidential broadcasts that enhanced the political or personal image of the President would be subject to the rule and require the presentation of opposition programming, is too vague to be realistically applied by licensees; and that the FCC would be inexorably involved in politically sensitive adjudications which should be avoided.
18. Three parties argue that the Zapple doctrine should be repealed [*45] altogether. WGN maintains that Zapple exceeds the intent of Section 315, which grants equal opportunities only to opposing candidates and not to their supporters. That question, WGN maintains, was settled in Felix v. Westinghouse, 186 F. 2d 1 (3d Cir. 1950), where it was held that the supporters of a candidate were specifically excluded from Section 315.
19. The law firm of Haley Bader & Potts argues that the Zapple doctrine overlooks the fact that the informational needs of the public are of primary importance, and mistakenly confers rights on individual parties. The standards in Zapple are too vague for day-to-day application by the licensee, it maintains, and the resultant confusion will tend to inhibit licensee coverage of political matters. Moreover, it argues that Zapple unduly restricts licensee discretion in selecting spokesmen and regulating content.
20. The holding of Zapple would be acceptable to Public Broadcasting Service (PBS) as a fairness question if the Commission had limited itself to a discussion of the reasonableness of the balance of opposing views afforded by the licensee. PBS is opposed, however, to the extension of traditional fairness concepts of "reasonable balance" to a "comparable time" or "quasi-equal opportunity" doctrine because this restricts licensee discretion and creates artificial barriers to the discussion of controversial issues of public importance. Furthermore, PBS argues that Zapple cannot be limited to the two major parties nor to campaign periods only, but instead will engender a spiraling round robin of partisan responses. Several other parties also voiced this particular fear.
21. At the fairness panels, counsel for PBS further developed the foregoing argument by stating that the pricing mechanism and the economic realities of buying time on the commercial networks tend to discourage the broadcast appearances of minority candidates, but that no such economic barrier to access by minority parties exists in the Public Broadcasting Service. Counsel for PBS also argued that in extending quasi-equal opportunities to supporters of a candidate in Zapple, the Commission was doing what the Congress had decided not to do when it adopted Section 315 of the Communications Act.
22. Several parties submitted comments on the procedural methods or standards by which the Commission should enforce fairness concepts in the political broadcast area. As previously mentioned, Storer Broadcasting Co. urges the Commission to adopt political broadcasting rules or to develop a political broadcasting primer that would specifically define those situations in which licensees would be required to afford comparable time and which would specify guidelines for the selection of the appropriate opposing spokesmen in order to minimize the confusion that has resulted from the recent series of ad hoc adjudications (Zapple, RNC, etc.) modifying the traditional fairness doctrine.
23. Those filing with the Evening News Association argue that the FCC frequently oversteps its authority in judgment the "reasonableness" of licensee action in the political broadcasting area. The Commission should therefore adopt a "grossly unreasonable" test of licensee conduct, [*46] and impose penalties only when licensee conduct meets an "actual malice" test.
24. Two other general points raised by commentators were as follows:
A. The G.E. Broadcasting Company believes that the Commission's recent ruling in In re Rosenbush Advertising Agency, 31 F.C.C. 2d 782 (1971) n3 should be upheld since it affords discretion in making determination as to how a given licensee's facilities should be made effectively available to candidates or supporters of candidates. Section 315 itself permits a licensee to have discretion in scheduling and the Commission, it is contended, should not restrict this discretion any further in "quasi-315" situations.
n3 The Commission held in Rosenbush that a licensee's policy of accepting only paid political advertising of five minutes or longer during a primary campaign was consistent with Commission precedent where the licensee recognized its public interest obligation to make its facilities effectively available to candidates. The licensee had stated its intention to make free time available to candidates for major offices in the primary; planned a one-hour special program presenting the candidates for major; and had announced the candidacies for the top three city offices in its regular news programs.
B. During the panel discussions, former FCC Chairman Newton Minow discussed the recent study and recommendations of the bipartisan Twentieth Century Fund n4 on this subject. He recommended that the Commission support legislation that would enable the major party candidates in a Presidential campaign to obtain six one-half hour periods called "Voters' Time" in prime time for the simultaneous broadcast on all TV and radio stations of political presentations. Use of this time would be entirely within the candidates' discretion, and, since the beneficiary of these programs would be the American public who would thus receive information pertinent to the election of the President, public funds should be used to buy the time.
n4 Twentieth Century Fund, Voters' Time (1969).
A. The fairness doctrine with respect to appearances of the President or other public officials.
25. The Commission can appreciate why so much attention is focused on the question of the application of the fairness doctrine to Presidential appearances. As the Court noted in Democratic National Committee v. FCC, C.A.D.C., No. 71-1637, decided February 2, 1972, petition for writ of certiorari filed April 28, 1972, No. 71-1405, O.T. 1971, "... the President's status differs from that of other Americans and is of a superior nature," and calls for him to make use of broadcasting to report to the nation on important matters:
While political scientists and historians may argue about the institution of the Presidency and the obligations and role of the nation's chief executive officer it is clear that in this day and age it is obligatory for the President to inform the public on his program and its progress from time to time. By the very nature of his position, the President is a focal point of national life. The people of this country look to him in his numerous roles for guidance, understanding, perspective and information. No matter who the man living at 1600 Pennsylvania Avenue is he will be subject to greater coverage in the press and on the media than any other person in the free world. The President is obliged to keep the American people informed and... this obligation exists for the good of the nation... (Sl. Op. pp. 26-27)
[*47] Because of this use of the broadcasting by the nation's most powerful and most important public office, the argument has been made by DNC and by ACLU that there must be special provision for a response by the opposition party -- some specific corollary to the general fairness doctrine that ensures equal or comparable use of the broadcast media by an opposition party spokesman.
26. We make two preliminary observations. First, the issue is not whether the American people shall be reasonably informed concerning the contrasting viewpoints on controversial issues of public importance covered by Presidential reports. The fairness doctrine is in any event applicable to such reports -- as indeed it is to a report by any public official that deals with a controversial issue of public importance. See Section 315(a). Rather, the issue is whether something more -- something akin to equal time -- is to be required. The word "required" brings us to our second point. Because our goal is robust, wide-open debate, the Commission of course welcomes any and all programming efforts by licensees to present contrasting viewpoints on controversial issues covered by Presidential addresses. As we stated in our commendation of the CBS series, "The Loyal Opposition", Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 300 (1970); Republican National Committee, 25 FCC 2d 739, 745-46 (1970), the more debate on such issues, the better informed the electorate. But the issue is not what programming judgment the licensee makes in this area but, rather, whether there should be an FCC requirement. With this as background, we turn to the proposal that equal time be afforded to an opposition spokesman to respond to a Presidential report. n5
n5 We are not dealing here with Presidential appearances during election campaigns where equal opportunities or Zapple (see B, infra) would ordinarily be applicable.
27. First, there is a substantial issue whether any such Commission prescription might not run counter to the Congressional scheme. In Section 315(a), Congress has specified that equal opportunities shall be applicable to appearances of legally qualified candidates and that in other instances "fairness" be applicable -- that is, that there be afforded "... reasonable opportunity for the discussion of conflicting viewpoints on issues of public importance." While fairness may entail different things in particular circumstances (see par. 30, infra), there is a substantial question whether it is not a matter for Congress to take the discussion of public issues by the President out of the fairness area and place it within the equal opportunities requirement -- just as, for example, it was up to Congress in 1960 to take appearances by candidates for President out of equal opportunities and place them under fairness. There is a further troublesome issue here -- whether we could create a special fairness rule for Presidential reports but then hold that a report by Governor Reagan in California or Mayor Lindsay in New York, for example, would come only under the "reasonable opportunities" standard of Section 315(a), in the fact of arguments that such reports dealt with State or local issues of the greatest importance. Again we do not say that distinctions cannot be made here (compare Section 103(a)(2)(A) of the Federal Election Campaign Act of 1971, 86 Stat. 3 applicable only to Federal offices) but rather raise the issue whether such distinctions are not more appropriately the province of the Congress.
[*48] 28. But in any event, it would not be sound policy to adopt the DNC or ACLU proposals. From the time of the Editorializing Report, 13 FCC 1246 (1949), to the present, we have been urged to adopt ever more precise rules -- always in the cause of insuring robust debate (e.g., the argument, advanced in 1949 and now repeated by the ACLU, that fairness requires the contrasting viewpoint to follow immediately the presentation of the first viewpoint -- see par. 8, Report on Editorializing by Broadcast Licensees, supra, at pp. 1250-51). However, well intentioned these arguments are, we believe that increasingly detailed Commission regulation militates against robust, wide-open debate. The genius of the fairness doctrine has been precisely the leeway and discretion it affords the licensee to discharge his obligation to contribute to an informed electorate. Editorializing Report, par. 10, supra, at pp. 1251-52. Thus, the arguments for flexibility, rather than rigid mechanical rules, discussed in Committee for Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 292, (1970), remain persuasive. Applying those principles, we do not believe it appropriate to adopt equal time polices that might well inhibit reports to the electorate by elected officials. Rather, the geeral fairness approach of facilitating such reports and at the same time insuring that the public is reasonably informed concerning the contrasting viewpoints best serves the public interest. n6 See DNC v. FCC, supra, S1. Op. p. 27, ("... The President is obliged to keep the American people informed and as this obligation exists for the good of the nation, this court can find no reason to abridge the right of the public to be informed by creating an automatic right to respond reposed in the opposition party..."); Committee for Fair Broadcasting, supra, at pp. 296-98. The latter case demonstrates that fairness can and does operate to protect the public interest in this important area.
n6 For obvious reasons already developed, we strongly decline to make evaluations whether a report by an official is "partisan" or "political" and thus requires rebuttal by a spokesman for the other party, or the contending faction, or whatever. This would drag us into a wholly inadministratable quagmire. See e.g., In re Complaint of Democratic National Committee, 31 FCC 2d 708, 712-713 (1971).
29. In this connection, we note that the Commission believes that the public interest would be served by revision of the equal opportunities requirement so as to make it applicable only to major party candidates, with such candidates liberally defined to include any candidate with significant public support (see infra, par. 35); it has also supported, as a less desirable alternative, suspension or repeal of that requirement as to the offices of President and Vice President. n7 It would surely be anomalous for us to seek relaxation of the equal opportunities requirement as to candidates for the office of President, and at the same time to apply a new policy akin to the equal opportunities to Presidential broadcasts not coming within the present statutory equal opportunities requirement. We decline to do so.
n7 See Hearings Before the Senate Communications Subcommittee. 91st Cong., 1st Sess., on S. 2876, p. 50.
B. The Zapple ruling.
30. Our 1970 ruling, Letter to Nicholas Zapple, 23 FCC 2d 707 (1970), concerned campaign presentations that did not involve the appearance of the candidate. We pointed out that in some such presentations, [*49] the requirements of the fairness doctrine become in effect quasi-equal opportunities. There has been considerable comment on this ruling, but in large part the interest in it may stem from a misunderstanding of the ruling (e.g., that the ruling extends quasi-equal opportunities to all candidates or parties, even of a fringe nature). We can appreciate how such a misunderstanding could arise. The terms we used, fairness and quasi-equal opportunities, are terms of art and have accumulated their own baggate. Thus, quasi-equal opportunities conjures up a notion of all parties -- even those of a fringe nature -- being treated equally. And fairness carries with it concepts such as Cullman (free time if the public has not been informed of the contrasting viewpoint). See, also, In re Complaint of George F. Cooley, 15 FCC 2d 828, 829 (1967). But, Zapple was neither traditional fairness nor traditional equal opportunities. It was a particularization of what the public interest calls for in certain political broadcast situations in light of the Congressional policies set forth in Section 315(a). n8 with this as background, we turn to the ruling.
n8 Similarly, the personal attack and political editorializing rules are a particularization of what fairness requires in those situations. See, e.g., Report on Personal Attack and Political Editorializing Rules, 32 Fed. Reg. 10303 (1967); Editorializing Report, supra, at p. 1252.
31. What we were stating in Zapple was simply a common sense application of the statutory scheme. If the candidate himself appears to some significant extent (cf. gray Communications, Inc., 14 FCC 2d 766, 19 FCC 2d 532 (1968)), then the Congressional policy is clear: equal opportunities, which means no applicability of Cullman but rather mathematical precision of opportunity. Suppose neither the picture or voice of the candidate is used -- even briefly -- but rather a political message devised by him and his supporters is broadcast.
In those circumstances, a common sense view of the policy embodied in Section 315 would still call for the inapplicability of Cullman n9 and for some measure of treatment that, while not mathematically rigid, at least took on the appearance of rough comparability. If the DNC were sold time for a number of spots, it is difficult to conceive on what basis the licensee could then refuse to sell comparable time to the RNC. Or, if during a campaign the latter were given a half-hour of free time to advance its cause, could a licensee fairly reject the subsequent request of the DNC that it be given a comparable opportunity? n10 Clearly, these examples deal with exaggerated, hypothetical situations that would never arise. No licensee would try to act in such an arbitrary fashion. Thus, the Zapple ruling simply reflects the common sense of what the public interest, taking into account underlying Congressional policies in the political broadcast area, requires in campaign situations [*50] such as the above (and in view of its nature, the application of Zapple, for all practical purposes, is confined to campaign periods). Significantly, because it does take into account the policies of Section 315, the public interest here requires both more (comparable time) and less (no applicability of Cullman) than traditional fairness. n11
n9 In this respect, Zapple did not break new ground. In our Report and Order on the personal attack rules (32 Fed Reg. 10303, 10305), we noted the applicability of the Congressional standard in Section 315 to attacks involving candidates, their supporters, or authorized spokesmen, and accordingly made our rules -- which result, as a practical matter, in free time -- inapplicable to such attacks. See Section 73.123(b), 73.300(b), 73.598(b), 73.679(b).
n10 This example is stated as if the RNC program were the only matter to be considered. Of course in a particular factual situation this may well not be so. See CBS v. FCC, supra, n. 1, where the DNC program was presented by CBS to offset Presidential speech appearances, and the Court held that this was perfectly appropriate and reversed a Commission holding that to avoid coming within Zapple, CBS should have specified the issues to which the DNC was to address itself. This case is of course the law governing similar future factual situations. Thus, each case must be judged in its factual setting, with the licensee having considerable discretion to discharge fairness obligations.
n11 And for the foregoing reasons, we do not believe that we have acted contrary to the legislative history. We have, on the contrary, acted to carry out the Congressional scheme in Section 315.
Based on practical experience, we stress that in any event -- taking into account the sum total of political broadcasts and news-type programs -- the American people are reasonably informed on campaign issues, and thus that the basic public interest requirement is being met in this vital area. Green v. FCC, 447 F. 2d 323 (C.A.D.C.).
32. It follows that Zapple did not establish that in the political broadcast field there is now a quasi-equal opportunities approach applicable to all candidates and parties, including those of a fringe nature. This would clearly undermine any future suspension or repeal of the "equal opportunities" requirement, because it would mean that despite such suspension or repeal, the fairness doctrine would require that fringe party candidates be given comparable treatment with major party candidates. Further, it would negate the 1959 Amendments to the Communications Act. The purpose of these amendments was to permit presentation of candidates on, for example, a bona fide newscast, news interview, or news documentary, without the station having to present the fringe candidates. n12 We need that belabor the point further. The Zapple ruling did not overrule the holding in Letter to Lawrence M. C. Smith, 25 Pike & Fischer, R.R.291 (1963). n13
n12 In view of the 1959 Amendments, it follows that no quasi-equal opportunities doctrine is applicable when supporters or spokesmen for candidates are presented in bona fide newscasts; in this respect, the same general fairness principles that apply to the candidates are equally applicable to their supporters.
n13 We there held that as to fund raising announcements for political parties, fairness does not require equal or comparable treatment for the fring parties but rather that the licensee can make reasonable good faith judgments as to the significance of a particular party in the area.
33. The foregoing discussion -- and the general approach that we have adopted in the fairness area -- also dispose of the questions raised as to the desirability of extending Zapple, codifying it, or otherwise supplementing it with procedural and other trappings (e.g., a seven-day procedural requirement). Because Zapple reflects simply a common sense distillation of the public interest in certain political broadcast situations, there is no need to try to codify it or engraft new corollaries onto it. On the contrary, we have concluded that, generally, traditional fairness works better by setting out broad principles and permitting the licensee to exercise good faith reasonable discretion in applying those broad principles. We think that this is true here. Further, we doubt if we will be confronted with a host of ad hoc rulings in this field. Most problems should be disposed of at the licensee level by the application of rudimentary concepts of fairness and common sense. Significantly, Zapple itself was a ruling on hypothetical questions; there have been very few times when the issue has arisen on concrete cases. As to its extension beyond political broadcasts, the short answer is that it is based in substantial part on Congressional policies applicable to such broadcasts. n14
n14 Thus, we do not extend Zapple to the situation involving ballot issues.
[*51] C. Commission efforts to encourage the widest possible coverage of political campaigns.
34. We have considered most seriously what steps we can take in this respect. There would appear to be little we can do on an administrative agency basis. Let us take the most obvious suggestion: That the Commission by rule specify that a certain amount of time be set aside for presentation of political broadcasts on a sustaining basis. See Section 303(b). There are a number of difficult policy issues that would have to be resolved in any such undertaking. But there is, we believe, again an overriding consideration here -- namely, that this is truly a matter for Congressional resolution. Congress is aware of the high expense of running for political office, particularly in view of mounting broadcast costs. It has considered a number of worthwhile suggestions here -- for example the subsidy plan in the Presidential Campaign Fund Act of 1966 (the now inoperative Long Act) to supply Federal funds to the national party candidates for the Presidency; the Voters Time proposal (see Hearings Before the Senate Communications Subcommittee, on S. 2876, 91st Cong., 1st Sess; pp. 24-34). Its response to this problem has been the Federal Election Campaign Act of 1971 (Public Law 92-225), with its limitations on spending, and requirement for reasonable access for those running for Federal office and reduced rates for all political candidates. We do not see how we can sweep aside this scheme, and substitute our own. Indeed, we could not in any event be truly effective in any such agency action. Take the most important office -- the Presidency. Were we to require free time for that office, we would run afoul of the equal time provision; we would find that we had required the broadcaster to devote hours of prime time not just to the significant candidates but also to as many as 15 fringe party candidates (e.g., Socialist Labor, Socialist Worker, Vegetarian). n15 Our point is obvious: Reform here is needed, we believe, but it must come from the Congress because that is the only way it can be effectively accomplished.
n15 To give but one example, in 1960 when Congress acted to suspend the equal opportunities requirement for the President and Vice President races, there were on the ballots in the several States 14 different candidates for the office of President: C. Benton Coiner, Conservative Party of Virginia; Merrit Curtis, Constitution Party: Lar Daly, Tax Cut Party; Dr. R. L. Decker, Prohibition Party; Farrell Dobbs, Socialist Workers Party, Farmer Labor Party of Iowa, Socialist Workers and Farmers Party, Utah; Orval E. Faubus, National States Rights Party; symon Gould, American Vegetarian Party, Minnesota; Clennon King, Afro-American Unity Party; Henry Krajemski, American Third Party; J. Bracken Lee, Conservative Party of New Jersey; Whitely Slocomb, Greenback Party; William Lloyd Smith, American Beat Consensus; Charles Sullivan, Constitution Party of Texas. See H. Rept. No. 1928, 90th Cong., 2d Sess., p. 3. Query how effective any agency action in 1960 would have been.
35. Congress then can do much. We believe that consideration should again be given to the Voters Time concept or to some scheme akin to that used in Great Britain (i.e., blocs of free time to the major political parties). At the least, we propose again to urge Congress to adopt our proposed amendment to Section 315, limiting to major party candidates the applicability of the equal time provision in partisan general election campaigns. We described that legislation in the following terms (see Hearings Before the Communications Subcommittee on S. 2876, 91st Cong., 1st Sess., p. 48):
In any general election, other than non-partisan ones, the draft legislation would make the equal opportunities requirement, as to free time, applicable [*52] only to major party candidates, leaving fringe candidates coming under the general fairness requirement. It would define major candidates very liberally so as to include any significant candidates -- such as Henry Wallace as the candidate of the Progressive Party 1948, Strom Thurmond of the Dixiecrats 1948, or George Wallace in the last election. The figures in the draft legislation are set forth only as possible guidelines -- namely, that the candidate's party garnered 2% of the vote in the state in the last election or, if the candidate represents a new party, that petitions be submitted signed by a number of voters equalling 1% of the votes cast in the last election. To obtain time on the national networks as distinguished from individual stations in particular states, there would also be a requirement that the candidate be on the ballot in at least two-thirds of the states.
In short, section 315 in its present operational form is claimed and would appear to inhibit broadcasters from affording free time -- and does so, we urge, without any significant practical compensating benefits. The Socialist Labor or Vegetarian candidate does not get free time; rather, no one gets any free time for the political broadcast. Further, and most important, there would appear to be little, if any public benefits from insuring such equal treatment for candidates whose public support is wholly insignificant. We repeat that in defining the major party candidate, we would urge the selection of a numerical figure such as to insure equality to any candidate who did have some significant public support, regardless of what his chances of actually winning might be.
This, by itself, will make a marked contribution to facilitating broadcast presentation of important political candidates. n16
n16 Thus, in the above noted hearings, we stated (supra, at p. 50):
... when freed from the constraints of equal opportunities requirement, there has been no failure on the part of the broadcasters with respect to affording time for the Presidential candidates, and see that that time has been in substantial amounts, and free, not just reduced. Thus, in the one instance where the equal time requirement was suspended (1960), the TV networks afforded 39 hours and 22 minutes of free time, including the four hours for the Great Debates. Further, the audience for these debates totalled 280 million, or an average of 70 million viewers per broadcast. We believe that the networks thus effectively discharged their responsibility to inform the electorate in 1960. They have stated that they stand ready to do so in every Presidential election, if freed from the equal time requirement.
36. As an alternative, we propose an additional exemption to Section 315(a) to cover any joint or back-to-back appearances of candidates. Additionally, consideration should be given, we think, to the further exemption that we urged upon Congress in connection with our 1970 Advocates ruling, 23 FCC 2d 462. We suggested the addition of the following provision to Section 315(a): n17
n17 See Hearings Before the Subcommittee on Communications and Power of the House Interstate and Foreign Commerce Committee, on H.R. 8721 and S. 3637, 91st Cong., 2d Sess., p. 8.
(5) any other program of a news or journalistic character
(i) which is regularly scheduled; and
(ii) in which the content, format, and participants are determined by the licensee or network; and
(iii) which explores conflicting views on a current issue of public importance; and
(iv) which is not designed to serve the political advantage of any legally qualified candidate.
37. At the least, we had thought that we could make a contribution here by giving the 1959 exemptions a reasonable construction in line with the broad remedial purpose of Congress. Accordingly, we did so in the recent Chisholm ruling, FCC 72-486, decided June 2, 1972. The validity of this construction of Section 315(a) is, however, now in doubt in view of the action of the Court of Appeals in its interim relief Order of June 3, 1972. Until the matter is definitively settled, licensees cannot plan with any certainty, and the area remains confused. This is, [*53] we believe, unfortunate. We continue to believe that our construction of the exemption in Section 315(a)(2) is sound, meets the pertinent Congressional criteria, and markedly serves the public interest by allowing broadcasting to make a fuller and more effective contribution to an informed electorate. But unless and until that construction prevails upon appeal -- or is in any event affirmed by Congressional revisions along the above stated lines -- we cannot in good conscience urge licensees to act in this area as if there were no "equal opportunities" pitfalls. There clearly are.
D. Use in bona fide newscasts of film supplied by candidates.
38. One other political broadcast matter which has been brought to our attention merits comment here. Candidates, like many other news sources, have normally issued press releases to the news media containing statements of the candidates, advance copies of their speeches, their future speaking schedules, etc. Media news editors in turn made judgments whether and to what extent to use such material. Increasingly, candidates have been supplying radio and television broadcasters with audio recordings and film excerpts produced by the candidates, e.g., depicting their campaign efforts that day or containing statements of their positions on current issues. Obviously, these excerpts are designed to show the candidate in the best light and, if presented on a newscast, have the added advantage of increased impact or credibility over a paid political presentation. We do not hold that the station cannot exercise its good faith news judgment as to whether and to what extent it wishes to present these tape or film excerpts. If it believes that they are newsworthy, it can appropriately use them in newscasts. But the public should be informed that the tape or film was supplied by the candidate as an inducement to the broadcasting of it.
39. In fact, our rules require such disclosure in these circumstances; that is, "in the case of any political program or any program involving the discussion of public controversial issues for which any films, records, transcriptions, talent, scripts, or other material or services of any kind are furnished, either directly or indirectly, to a station as an inducement to the broadcast of such program..." n18 Disclosure of the furnishing of the tape or film is required to be made whether or not a candidate is involved in these types of programs. Accordingly, we take this opportunity to stress to all licensees their duty to comply with the rules and announce that the tape or film was supplied by the candidate in question. n19 If it was edited by the licensee, he may, of course, [*54] add a suitable phrase such as "and edited by the XXXX news department."
n18 Sections 73.119(d), 73.289(d) and 73.654(d), relating, respectively, to AM, FM and TV. See also Section 317(a)(2) of the Communications Act which specifically authorizes the Commission to require announcements disclosing that such matter was furnished.
n19 N order to avoid possible confusion in interpreting this rule in relation to one interpretative example in House Rept. 1800 (86th Cong., 2d Sess.) dealing with Section 317 of the Act and rules thereunder, we should add that we are not attempting to apply the above disclosure requirement to mere mimeographed news releases or typed advance copies of speeches. Example 11 of the House Report (see FCC Public Notice of May 6, 1963, FCC 63-409) states that no announcement is required when "news releases are furnished to a station by Government, business, labor and civic organizations, and private persons, with respect to their activities, and editorial comment therefrom is used on a program." We believe, however, that with respect to program material dealing with political or other controversial matters, the requirements of our rules must be followed strictly when audio tape or film is furnished.
40. Much remains to be done in the fairness area (Parts II -- IV). n20 We have acted here as best we could for the reasons stated in par. 1. The piecemeal approach is thus regrettable but necessary.
n20 GE supports the Resenbush ruling (see par. 24(A)). We have considered this issue generally in our recent Notice (Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 37 Fed. Reg. 5796, 5805; Sec. 8, Q. 8), and will reexamine the matter as we gain experience. We thus may clarify our policies here either in a particular case or in our further reports in this Docket.
As stated, we shall reconsider this most important aspect in light of the conclusions reached in overall proceedings. Our final message is one urging broadcasting to make the maximum possible contribution to the nation's political process. That process is the bedrock of the Republic, and broadcasting is clearly the acknowledged leading medium for communicating political ideas. No area is thus of greater importance "... to the public interest in the larger and more effective use of radio." (Section 303(g) of the Communications Act of 1934, as amended).
FEDERAL COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
SEPARATE STATEMENT OF COMMISSIONER RICHARD E. WILEY
Last month, the Commission issued a First Report in connection with its new broad-ranging inquiry into the Fairness Doctrine. This First Report dealt with political broadcasts and, at least in my judgment as the Commissioner assigned by Chairman Burch to oversee the entire inquiry, was the product of a sincere, conscientious and thorough analysis of the issues in question. The result, again in my opinion, comported with both the intent and objective of the Fairness Doctrine and manifestly was in the public interest. This judgment was apparently ratified by five other Commissioners who voted to adopt the Report. In characteristic fashion, only one Commissioner saw it differently and chose to issue a dissent, a dissent to which this separate statement is specifically and briefly directed.
In an already too familiar style, by innuendo if not direct accusation, Commissioner Johnson has injected unsupported allegations of politics and impropriety into this proceeding by characterizing the Commission's action as a "blatantly partisan gift to an incumbent President seeking re-election." The truth -- as Commissioner Johnson must know -- is that our effort has been completely devoid of partisan considerations or any other narrow appreciation of the goals of this highly important inquiry. The decision was prepared by a non-partisan staff committee whose membership from throughout the various bureaus and offices of the Commission represents widely disparate viewpoints and regulatory philosophies. It was adopted by a bi-partisan Commission which was in no way divided along party lines. The Commission sought with sincerity and honesty to set out a policy which would best serve the public interest over an extended period of time during which, given the normal vagaries of American politics, a number of Administrations -- representing in all likelihood both major political parties -- might come and go. The fact that only Commissioner Johnson perceived an improper purpose behind our action calls to mind the proverbial saying that, all too often in the company of man, it is he least free of suspicion who so easily questions the motives of this colleagues.
I also take strong issue with the dissenting Commissioner's denigration of the Commission's action as a "dodge", a "cop-out" a "punt on first down" and a Report "rushed into print". Again, the truth -- as Commissioner Johnson must know -- is that our decision was the result of an extensive treatment of every conceivable issue and point [*67] of view extent concerning the applicability of the Fairness Doctrine to political broadcasting.
The proposal that Commissioner Johnson apparently favors, that an automatic right to reply to Presidential appearances vests in the opposition party or some other presumably appropriate respondent, was discussed and debated over and over again, both in the context of specific prior requests to institute such a rule and again during the course of numerous meetings of the Fairness committee which prepared the First Report in this inquiry. Rightly or wrongly, the Commission chose not to adopt such a proposal. To suggest that it did so without full consideration of the merits, however, is simply and utterly fallacious.
The irony here is that Commissioner Johnson may be guilty of the very transgression which he attributes to the majority. Some of the proposals outlined in his dissent were never advanced before the Commission. Even if our Report could be accurately labeled as "a punt on first down", a matter which I strenuously dispute, such a maneuver is clearly preferable to abandoning the playing field for the sidelines, waiting until the game is over and then second-guessing the manner in which it was played. The predictable result of such a procedure can only be publicity, not progress nor improvement.
Little needs to be added with regard to the merits of Commissioner Johnson's statement that our decision somehow has missed the mark with respect to insuring that the Fairness Doctrine's goal of an informed electorate is attained. Reasonable men may surely differ as to the appropriate applicability of the Doctrine to political broadcasting. In my opinion, Commissioner Johnson's proposals are unworkable without Congressional revision of Section 315(a). In any event, I support the Commission's view that an intelligent application of fairness, rather than rigid rule requirements or arbitrary formulae, better serves our goal of robust, wide-open debate (see majority opinion, p. 11).
Finally, Commissioner Johnson's statement that we have failed to "give Congress the materials upon which it can act" (dissenting opinion, p. 9), ignores the Commission's extensive treatment of the subject (see majority opinion, pp. 15-18). Our recommendations with regard to repeal or amendment of Section 315, the Voters Time proposal, The Federal Election Campaign Act of 1971, additional exemptions to Section 315(a), etc., are a matter of record. No further "materials" were necessary for enactment of The Federal Election Campaign Act and none are needed with respect to other proposals involving Section 315. In any event, the decision of Congress not to institute changes which the Commission may support is no warrant for this agency to arrogate to itself the power and authority which properly reside with the elected representatives of the American public.
While, as set forth herein, I generally disagree with Commissioner Johnson's position in this area, he -- as an intelligent member of the Commission -- is certainly entitled to his own viewpoint. I think it is unfortunate, however, that in expressing this viewpoint Commissioner Johnson finds it necessary to impugn the motives of his peers [*68] and fellow Commission employees and to assail the integrity of Commission action -- especially when, as I have indicated, he really must know better. Sad to say, it is such conduct which, over the course of six long years, has done so much to diminish the credibility and effectiveness within the Commission which his abundant talents would otherwise command. It is my profound hope, vain thought it may be, that Commissioner Johnson will devote his remaining time at the FCC and his estimable abilities to help the rest of us realistically solve some of the monumental problems facing the Commission. It is only my view, but sincerely held nonetheless, that this would be a far more noble endeavor than reaping the barren harvest of publicity produced by double-spaced dissents.
DISSENTING OPINION OF COMMISSIONER NICHOLAS JOHNSON
I. PRELIMINARY DISSENTING OPINION
We are in the midst of a highly televised Presidential election year. The FCC has just concluded what it calls a "broad ranging inquiry into the efficacy of the fairness doctrine." It has rushed into print with that portion of its findings having to do with the political use of radio and television by the President. And what does it offer? A punt on first down.
Broadcasters are urged voluntarily "to make the maximum possible contribution" to the nation's political process -- without being told what that might be, or being required to do anything.
Congress is asked to lead the reform -- but is given no new suggestions by the agency ostensibly set up by it to regulate the area.
The FCC is taking the rest of the year off.
The fairness doctrine requires that broadcasters (1) cover controversial issues of public importance, and (2) that they do so fairly, presenting during the course of their total programming a full discussion of the points of view involved.
The political equal opportunity ("equal time") doctrine requires that a broadcaster who affords some time to a candidate for public [*56] office must give an equal opportunity to all other candidates for that office.
The use of television by a President who will probably stand for reelection, but is not yet a declared candidate, falls somewhere in between -- and is therefore covered by no doctrine.
All would agree that there will be occasions when the national interest requires that the President be permitted access to the American people by means of national television.
All would also agree, hopefully, that every President is a political animal, the leader of one of two major political parties, and a most persuasive propagandist for whatever point of view he wishes to espouse for whatever reason.
Anything the President says is, by definition, newsworthy, a "controversial issue of public importance." The permanent White House press corps covers his every public word. The President has available to him the ultimate in research capabilities, writers, and production advisors in public relations and television performance. He has a large staff including the Director of Communications and White House Press Office to serve newsmen and media owners in ways designed to encourage them to help him make the most favorable possible impression upon the American people. Techniques of advertising, propaganda and public relations are known, effective, and used -- by corporations and elected officials alike. The President is no exception.
In short, the President -- as politician, party leader, and head of the executive branch -- has an overpowering advantage going into the "marketplace of ideas." He has an advantage over his potential challengers to the Presidency. He has an advantage over the party out of power. And he has an advantage over the other branches of government: the Congress, the judiciary, and the administrative agencies.
The question before us is whether, in light of these disproportionate advantages, the fairness doctrine should take account of some opportunity for the American people to hear views other than those of a President seeking reelection. Since most of what the President says and does is, by definition, within the fairness doctrine (controversial issues of public importance), it also follows that there are generally opposing points of view.
Sometimes the President is engaged in an effort to reelect himself or other members of his own party. The opposing party would generally have a different approach to the issues he raises.
On other occasions the President is engaged in a struggle with Congress (or some other branch of government) in an effort to enact (or defeat) a piece of legislation, to take credit (or assign blame) for a national development, or to seize the public's attention away from Congressional criticism of the Administration.
It is fair to say that almost any President, almost all the time, is thinking of a great many things besides "informing the American people" when he takes to television. (This may include such things as relationships with foreign governments as well as domestic politics and Congressional relations.)
Given these realities, what should the fairness doctrine require when the President speaks? An automatic right of reply? By whom? When? [*57] If the President goes on all three networks, in prime time, for free, can something less than that constitute an adequate right of reply -- by someone who is decidedly disadvantaged anyway going into a verbal contest with the President of the United States?
Those are the questions this Commission set out to address. They are the kind of questions the Congress set up the Commission to deal with. They are the very questions we dodge -- and therefore resolve in favor of the incumbent President.
I dissent, and will have a fuller opinion to follow.
The Federal Communications Commission, after long inquiry, study and deep contemplation, has brought forth its long awaited clarifying statement on political broadcasting. For those who expected the Commission to take a great step forward, its policy statement can only be seen as an embarrassing stumble.
In essence the Commission says that the rules governing political broadcasts are not at all what they should be, but that any reform must come through voluntary action or from Congress.
Nearly a year ago, on June 9, 1971, the Commission issued its Notice of Inquiry regarding the fairness doctrine. At that time the Commission stated its intention to institute " a broad-ranging inquiry into the efficacy of the fairness doctrine." 30 F.C.C. 2d 26 (1971). The result is -- most generously put -- a very narrow response to that inquiry. In fact, the policy found in the Commission's statement does not involve fairness at all. It rather involves the characteristic failure of the Commission to resolve in one proceeding the broad policy questions before it. The majority's action is thus but one more example of the Commission's general tendency to react (in this case to the forthcoming elections) rather than plan.
The reasons given for this separate action with regard to political broadcasting are hardly compelling in light of the lack of action taken by the Commission. The Commission cites DNC v. FCC, F. 2d , 23 P & F Radio Reg. 2d 2165 (D.C. Cir. 1972) and the coming election as requiring this separate treatment of political broadcasting. My understanding of the opinion in DNC seems to be somewhat different from the Commission's. In DNC the Court stated, "by the end of May or early June -- we are assured that the Commission will have handed down new standards to apply to these difficult questions." F. 2d , 23 P & F Radio Reg. 2d 2165, 2170 (D.C. Cir. 1971). Search as one may, the Commission offers none of the promised new standards. Both the Court and those who will be involved in the upcoming campaign have a right to a clarified Commission policy. Without such a clarification there is simply no reason for separate action on political broadcasting. The failure to take any action is a decision to let present policy stand. However, allowing present policy to stand is simply a "cop-out," a failure to make good on our assurances to the Court, and a blatantly partisan gift to an incumbent President seeking reelection.
[*58] III. JURISDICTION AND ABDICATION
The power to regulate political broadcasts may be found in at least two separate parts of the Communications Act. Section 303(g) gives the Commission the authority to "encourage the larger and more effective use of radio in the public interest." Section 315 of the Act (the "equal time" requirements), so heavily relied upon by the majority as a limitation upon changes and clarifications of the fairness doctrine, expressly provides that it does not relieve licensees "from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." In upholding the validity of the Commission's personal attack rule the Supreme Court, quoting this portion of Section 315 stated, "This language makes it very plain that Congress, in 1959, announced that the phrase 'public interest' which had been in the Act since 1927, imposed a duty on broadcasters to discuss both sides of controversial issues. In other words the amendment vindicated the FCC's general view that the fairness doctrine inhered in the public interest standard." Red Lion Broadcasting v. FCC, 345 U.S. 367, 380 (1969).
From the foregoing it should be plain that nothing in the Communications Act prohibits the FCC from additional regulation in the area of political broadcast fairness. Red Lion upheld the Commission's authority to make political broadcast rules complimentary to Section 315. Section 315 not only does not inhibit the Commission from making fairness rules, it affirmatively requires that public issues be discussed. It is the duty of this Commission to make rules that encourage effective discussion on broadcast facilities. See Section 303(g).
By today's action the Commission seeks to have Congress do the very job Congress established the Commission to execute.
But abdication of functions is the history of the FCC. Our broad authority over communications began with the power to regulate maritime radio communications. The Coast Guard has today assumed most responsibility in that area. The FCC licenses air-to-ground communications; but the FAA has taken the leadership there -- including a budget for communications research that exceeds the FCC's entire operating budget. The FCC might have taken the lead in communications satellites policy and research. The Commission abdicated that responsibility to NASA and Comsat. Responsibility for leadership in educational broadcasting, once the frequencies were established, has fallen to the Department of Health, Education, and Welfare and the Public Broadcasting Corporation (PBC). The Commission has not even been able to recommend how public broadcasting should be funded. The Commission, by its inaction, has even abdicated its major responsibility for formulating communications policy to such groups as President Johnson's Communications Policy Task Force and the present Office of Telecommunications Policy. Today's action is yet another abdication -- this time to Congress.
Nor is this the first time we've tried to pass the buck back to Congress. It was Congress, not the Commission, that led the way to the Commission's present fees policy, the establishment of PBC, and the Commission's feeble progress in the whole area of land mobile radio.
[*59] In fact, it is rare for Congress to receive any thorough and constructive FCC analysis. If the Commission wants Congress to make its regulations for it, the Commission is at least obliged to provide the Congress with proper background reports and "white papers" upon which Congress can make such decisions. Today's statement doesn't even have that excuse. If anything like a white paper on communications gets to the Congress, it does not come from the FCC, but from private or industry groups. The Congress deserves better. The FCC should either live up to its responsibility and regulate broadcasting or admit its unwillingness and close down. And on those occasions when legislation is needed, as in this instance it is not, the Commission should at least give Congress the materials upon which it can act.
I agree with the majority that regulations for political broadcasting are of the utmost importance to the nation. Precisely because they are so important, it is tragic that the Commission is all precatory words and no action. The majority's final message is one urging "broadcasting to make the maximum possible contribution to the nation's political process," because "that process is the bedrock of the Republic, and broadcasting is clearly the acknowledged leading medium for communicating political ideas." But the very purpose of this proceeding was to adopt policies to insure that "maximum possible contribution." If the majority could point to a satisfactory past or present record by broadcasting in this area, it could rest on present policies. But it clearly cannot do so. It is up to the Commission to make that "maximum possible contribution." It chose instead to talk to voluntary efforts and reform by the Congress.
IV. PRESIDENTIAL REPORTS
The Commission leaves the President in undisputed control of the nation's broadcast resources. From Roosevelt's fireside chats to the reports of the present President, Presidents increasingly have made extensive use of broadcasting for reports to the nation.
Circuit Judge Skelly Wright has put it well:
Television has become, in recent years, a principal vehicle by which the President presents to the public his views on important issues of the day. Indeed, no single fact of our changing political life overrides the significance of the expansion of the President's ability to obtain immediate and direct access to the people through the communications media. For the words of the President, speaking as he does both in his constitutional roles of chief executive and commander-in-chief and in his extra-constitutional role as head of his party, carry an authority, a prestige and a visibility that have a counterpart in no other institution.
Moreover, there is an inherent newsworthiness in anything the President says. In addition to his huge direct audiences, in most cases over all nationwide commercial television and radio networks simultaneously, all of what he says is later reported somewhere and something of what he says is reported almost everywhere. In the case of the incumbent administration, these built-in advantages of the presidency in forging public opinion have been used to an unprecedented degree. In his first 18 months in office, President Nixon appeared on network prime time (7:00 to 11:00 p.m.) television as often as President Eisenhowever, Kennedy and Johnson combined in a comparable period during their administrations.
In their first 18 months in office, President Eisenhower appeared on prime time network television on 3 occasions, President Kennedy 4 times, President Johnson made 7 such appearances, and President Nixon 14. These figures exclude appearances [*60] on regularly scheduled news broadcasts, reports on foreign trips, charity appeals, convention and campaign appearances in the case of President Johnson, and, in that of President Nixon, his Apollo appearances. Remarks by Frank Stanton, President, Columbia Broadcasting System, Park City, Utah, July 10, 1970.
Columbia Broadcasting System v. FCC, 454 F. 2d 1018, 1020 (D.C. Cir. 1971) (text and n. 1).
Opposition spokesmen get nowhere near comparable time. They must rest content to present their views in snatches in newscasts, or as answers on news interview programs.
This brings me to the heart of the unfairness. The President can command all three networks simultaneously for a prime time speech. By so doing he is able to reach audiences of over 55% of the over sixty million television homes. (Significantly, when the President appeared in prime time on only one of the major networks he drew only 14% of the same audience.) Thus, by his ability to use all three networks the President not only increases dramatically his own audience, for any message he wishes to disseminate, but he also captures a viewing audience far larger than any of his opponents could ever hope for. Unless this factor is taken into consideration, fairness with regard to the President's use of broadcasting is a joke.
V. VOLUNTARY BROADCASTER ACTION
The majority urges voluntary action by the broadcaster to solve this problem. If it could point to any evidence that this might be successful, I might concur. But the track record negates any hope on that account. Only one of the networks, CBS, became concerned enough about the numerous Presidential reports to do something. It at least once scheduled the series, "The Loyal Opposition" -- although it has now apparently dropped the program. n1 I do not want to single out CBS for special criticism. It at least tried. But two points emerge. First, one cannot place reliance on the voluntary efforts of the industry; second, the problem lies in the President's command of all three networks simultaneously. Apparently only governmental action will be able to remedy the resulting unfairness.
n1 CBS points to an erroneous Commission ruling on the basis of its cancellation. 25 F.C.C. 2d 283 (1970). Frankly, I think that was just an excuse. In any event, whatever the merits of the Commission's ruling, it was easily circumvented -- by merely specifying ten or so issues and saying that the DNC could talk about any of them. In any event, the Court reversed, 454 F. 2d 1018 (1971), and still there is silence from CBS about rescheduling the program. The real clue lies in the 1971 testimony of Dr. Frank Stanton when, under questioning, he seemed to acknowledge the need to re-think the value of the program. Hearings on S.J. Res. 209 Before the Communications Subcommittee of the Senate Committee on Commerce, Ses. 91-74, pp. 64-67 (1970).
VI. CONGRESSIONAL ACTION
Well, says the majority, that's matter for the Congress. I would agree that it is most desirable (although not entirely necessary) for Congress to act in this area. We must recognize, however -- as I am confident the majority knows full well -- that it is difficult for it to do so. Congressional regulation of election ground rules necessarily gets bogged down in politics in an election year. Congress reflects the two party system. Every action affecting elections is gauged on both sides [*61] of the aisle against the vital standard, "Will it help or hurt the chances of our party?" And because Congress is made up of incumbents, the further question surfaces, "Am I voting for a principle that, if extended, will hurt me in my own campaign?" I do not think that I have to belabor the point. In 1964 the party urging that fairness required an answer to a Presidential broadcast was the Republican National Committee, See, e.g., Republican National Committee, 40 F.C.C. 625 (1964). The DNC -- now so active -- was silent. Today we get petition after petition from the DNC concerning the right to answer Presidential appearances. See, e.g., Democratic National Committee, 25 F.C.C. 2d 216 (1970).
But if Congress understandably has difficulties acting in this sensitive field, that makes it all the more important that the agency -- set up in part because of Congress' awareness of its limitations -- not abdicate its responsibilities at this hour. Yet that is what we have done.
I do not believe that Commission action would usurp Congressional prerogatives in any way. Any new policy we adopted as to fairness would not be effective as a practical matter for several months. The Congress, should it choose, would have ample opportunity to review that policy. Under the circumstances, I believe that action by the FCC, now, is the most appropriate and practicable way to promote the public interest.
Finally, our action would not have been inconsistent with the Court's ruling in DNC V. FCC, F. 2d , 23 P & F Radio Reg. 2135 (1972). The Court there expressly ruled that the birth of "a new corollary" was a matter for the agency or the Congress ("Those who advocate the adoption of new standards have, of course, access to both the Commission and the Congress." F.2d , 23 P & F Radio Reg. 2d 2135, 2165 (1972)). Further, that case did not address Fairness Doctrine requirements accompanying the simultaneous use of all three networks by the President in a series of reports.
The potential solutions are obvious. For example, we could require that whenever there have been two prime time appearances by the President on all three networks, the networks must schedule a prime time program, also to be presented simultaneously over the three networks, in which opposition spokesmen are given the opportunity to present contrasting viewpoints on the issues.
This would be eminently fair. It would give the President greater exposure than his opponents by a ratio of two to one, but it would still prevent the situation from getting totally out of hand, as it is today. It cures the basic defect -- that, unlike anyone else, the President dominates the airwaves by getting on all three networks at the same time. Such an approach would also force opposition spokesmen to be truly on their mettle, because they are given the privilege of reaching such an enormous audience. Finally, it would institutionalize a solution, removing this Commission and the Courts from difficult, and narrow ad hoc decisions, often made without the benefit of total perspective.
[*62] I do not understand the majority position that an opportunity for the other side to be heard will inhibit Presidential reports. Is the majority really arguing that if the American people are given a fair opportunity to hear contrasting viewpoints, the President will be deterred from using the airwaves, that his arguments are so lacking in strength that they cannot withstand healthy debate? That he will speak only if can dominate the situation? For people who profess to believe that the goal of the First Amendment is to promote robust, wide open debate, this surely is an untenable position.
As for the broadcasting industry, I should think that it would welcome the policy. A large number of broadcasters' fairness headaches have arisen because of the ever increasing use of broadcasting for Presidential reports. See, e.g., Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283 (1970). This would give them a sound base with which to plan their operations, and to answer critics. For example, they could undoubtedly include Congressional leaders, when they find them to be appropriate spokesmen for the contrasting viewpoint -- and thus largely meet the objections raised frequently by Senators and Congressmen that they receive quite unfair treatment in comparison to the President. n2
n2 In this connection, I believe the Congress could employ self-help -- by facilitating the televising of "great floor debates." See S. 4189 introduced by Senator Scott (116 Cong. Rec. 2388 (Aug. 5, 1970)) and described in Hearings on S. J. Res. 209. Before the Subcommittee on Communications of the Senate Commerce Committee, 91st Cong. 2d. Sess., 91-74, pp. 99-107 (Aug. 5, 1970). The federal government has two political branches, the President, and the Congress. The consistent manner in which the broadcast industry has ignored the Congress raises serious questions. Congress has a right to appeal for popular support. The people have a right to hear the divergent views of the Congress. Thus far the broadcast industry has completely ignored this important area of the public interest. My proposal would provide at least a partial remedy for this situation.
Such a procedure would cut into the networks' entertainment schedules somewhat. But last year, for example, it would have required half of what the networks gave the President. Surely an industry impressed with the public interest cannot be heard to complain that it is being called upon to make an undue contribution to an informed electorate on the most important issues confronting the nation.
I would in no way propose to limit the networks' wide discretion in selecting spokesmen. It may be that the opposition party would be a poor representative on some issue covered by the President -- or that a number of spokesmen rather than one would better illuminate the subject or subjects. Those all could be matters for the networks' judgment; the only restriction is that they must reach a consensus on how to proceed, but that is a restriction they have incurred from acting in concert to present the President.
Nor can it be argued that the Commission lacks the authority to take these specific actions. The statutory command in Section 315(a) is that "reasonable opportunity" be afforded. In a case where the President gives prime time reports on all three networks, "reasonable opportunity" requires that at least a contrasting viewpoint be similarly presented, and at no more than a two-to-one imbalance. Significantly, even the Commission recognized that "reasonable opportunity" calls for some response on one occasion when the President gave five speeches in a row on television. See Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283, 297 (1970). And it did so [*63] even though the main subject of these talks -- the Indochina War -- was being given wide coverage by the networks on news-type programs. See Green v. FCC, 447 F. 2d 323 (D.C. Cir. 1971). The same principle is applicable here. The only difference is that I would not permit the imbalance to go beyond two-to-one, and that I would face up to the critical issue of simultaneous use of all three networks.
The majority claims such a ruling would have to be extended to reports by all public officials. I fail to see why. First, I believe a distinction can be made on the basis of the importance to the nation of the issues covered in Presidential Reports. But even that is not the basis of my comments. The crux is that the President, with increasing frequency, commands all three networks for reports to the nation, and that any application of fairness must take that into account. No other public official, whether a Governor or Mayor, similarly dominates the airways in his state or city. Should that day arise, we will have time enough to consider extending the principle.
In the name of robust, wide open debate, the majority has simply turned its back on the problem -- the debate. I also strongly disagree with failure of the majority to require broadcasters to set aside a specified amount of time for political broadcasts by candidates for office. We again have the statutory authority to do so. See Sections 303(b) and 315. The statutory scheme calls for the application of time for candidates' use. Indeed, that is the thrust of a recent amendment to the Communications Act. It is now grounds for the revocation of a license if a broadcaster willfully or repeatedly fails to provide reasonable access for the use of his station's facilities to a candidate for federal office. See amended Section 312(a)(7). I commend broadcast journalists' efforts to cover the political process; but no one can denigrate the need also to let the candidate speak his piece, uncensored. See Section 315(a); 312(a)(7).
In this area as well, the Commission quickly tosses the hot potato back to Congress. Why? Congress has clearly set out the policy, and has given us all the broad rulemaking powers we need, both generally and specifically, to carry out Section 315. See Sections 4(1), 303(r), 315(d); NBC v. U.S., 319 U.S. 190 (1943); FCC v. Southwestern Cable Company, 392 U.S. 157 (1968); FCC v. Midwest Video, U.S. , 40 U.S.L.W. 4626 (June 6, 1972). Our action would be fully in accord with the Congressional scheme -- especially as highlighted by the recent amendment. But, even if not, once again Congress could, if it wished, review the matter.
The Commission cannot and does not assert that there is no need for improved performance. There clearly is, as shown by the legislative history of the 1971 Act and by our figures.
In 1968 in 25 Congressional election contests in which only two candidates were involved, 34% of the area broadcast stations gave some free time to the candidates. In the same year, in 78 races where three or more candidates were running, 45% of the area stations gave free time. In twelve state races with only two gubernatorial candidates, 35% of the stations gave some free time. Yet in nine states in which three or more candidates sought the governorship 48% of the stations allotted some free time to the candidates. (For similar 1960 figures [*64] see, Hearings on Section 315, before the Senate Subcommittee on Communications, 88th Cong., 1st Ses., pp. 70-73, 28-81 (1963)).
Two conclusions are warranted. There is an appalling reluctance on the part of broadcasters to make free time available to candidates under any circumstances. To the extent they do so, however, they tend to give more time, not less, when more than two candidates are running. There is, thus, no evidence that repeal of Section 315 would increase free political time -- if anything the contrary.
In the instances where data is available, access to the air has not been thwarted by the presence of third party candidates. The requirements of Section 315(a) do not seem to inhibit broadcasters as much as the majority seems to have feared. The real question is why more stations haven't given free time. The answer does not lie in licensee fear of the application of Section 315, but rather in the fact that commercial programming is more in the licensee's economic interest than is exposing political candidates to the public. And yet in light of this the majority relies on voluntary efforts toward reform!
The Commission suggests that Congress should have acted long ago to revise the equal opportunities requirement of Section 315. Perhaps. But the Commission's reliance on this allegation as a grounds for no action is simply embarrassing in its irony. It is the very same ground that the Commission has used to criticize broadcasters.
The latter assert they would be willing to give free time if only Section 315 were repealed. While it may be true of the networks in a Presidential race, the record simply does not bear out the argument. Analysis shows that the broadcasters have simply used Section 315(a) as a shield to avoid giving free time.
And that is what the Commission is doing here, to avoid taking a needed action. We can act now in an effective way. Many important races do not have fringe party candidates. Even where there are so many candidates as to deter free time to the major party candidates, the public could still be informed by presenting the leading spokesmen for the major candidates. Yet the Commission declines to take any action at all in this area.
I would issue a notice of proposed rulemaking to determine what amount of free time should be afforded in the even-numbered Federal election years, and for off-year elections. After a study of the comments I would adopt a rule that did serve the "public interest on the larger and more effective use of radio" -- a standard the majority cites and then ignores.
VIII. OLD POLICIES
The Commission stands by its decision in Letter to Nicholas Zapple, 23 F.C.C.2d 707 (1970), and by its rule which requires film supplied by a candidate, even if used in a bona fide newscast, be identified as to its source. While this failure to retreat further is perhaps laudable, it is not a substitute for a policy on political broadcasting. The discussion of Zapple offers little that is new to an already clear ruling. The film source rule is simply given additional publicity. As supplements to a broad policy statement it might be a worthwhile discussion. In the Commission's document it is simply out of place.
[*65] As long as we are in the reaffirmation business, however, I believe that the Commission should not issue a statement on political broadcasts without reaffirming the position it took in Cullman Broadcasting Co., Inc., 40 F.C.C. 576 (1963). At least with regard to ballot issues, if the licensee presents a sponsored program presenting one position on that issue, and sponsorship cannot be found for contrasting viewpoints, the contrasting viewpoints must be presented at the licensee's expense. Nor should a licensee be allowed to reject a political program simply because he would be required to present both sides, possibly one side at his own expense. See Capital Broadcasting, 40 F.C.C. 563, 615 (1963).
I find myself nearly a year after the Notice of Inquiry with the same fears that I expressed at that time. Namely, "(1) There is no reason whatsoever to believe that the majority is likely to change a position that has been so forcefully stated in such extreme cases. (2) I am fearful that this 'Inquiry' may well have serious national consequences -- whether intended or not -- of leaving the law in its current state of uncertainty and inequity through the 1972 Presidential election. (3) Those who now have cases on appeal, or who may be coming before the Commission in the near future, are entitled to the prompt rendition of justice on their complaints." 30 F.C.C. 2d 26, 35.
I have no desire to play "I told you so." I had fervently hoped my predictions would be proved wrong. But, as it turns out, the Commission indeed leaves past inequities untouched, and does nothing to aid the prompt rendition of justice for either present or future complaints. The Commission has failed in its obligation to regulate this important aspect of broadcasting. Having shirked its responsibilities, it seeks to have Congress do the very work Congress established the FCC to do. It neither clarifies old policies nor establishes new ones. It leaves the incumbent President as politician in an unchallenged superior position to all his opponents. In short the Commission has taken forty paragraphs to state what it could have said in one sentence, "In the area of fairness in political broadcasting, the policy of the Commission is to do nothing."
* Since the preparation of this opinion I have waited to exchange views with Commissioner Wiley. Now that his opinion is available, I am disappointed there is almost nothing in his collection of ad hominem attacks to which I choose, or need, to respond. His flailing defense of the favorable political implications of the majority's decision is, to put it most graciously, a bit strained. But it is a role in which he seemingly feels comfortable. He believes I, too, would be more effective if only I would consent to play Faust. No doubt that is true -- measured by his standards of what is effective use of a man's life. We happen to disagree on that issue as well as the substance before us.
Commissioner Wiley's one meager effort at a substantive defense fails once the facts are known. He suggests the Commission has provided "extensive" aid to Congress in dealing with these issues. In fact, virtually none of the Commission's Congressional appearances, directed mainly to a review of Section 315 in the context of a political campaign, have anything to do with the issues the majority avoids in [*66] this decision. I would be delighted if Commissioner Wiley would tell me what recommendations the majority has given to Congress to deal with the problems it says Congress should now solve. Changing equal time during political campaigns is not the problem here. Commissioner Wiley's high-sounding phrases about deference to elected officials have not stood in the Commission's way to prevent it from acting on matters like cable television, despite our unsuccessful requests for Congressional action. I see no reason why we should ignore our responsibilities in this area either.
I. Comments on the applicability of the fairness doctrine to political broadcasts were received from the following parties:
American Broadcasting Company
Columbia Broadcasting Company
Democratic National Committee
Evening News Association, et al.
Haley, Bader & Potts
McKenna & Wilkinson
National Association of Broadcasters
National Broadcasting Company
Public Broadcasting Service
Republican National Committee
United Church of Christ
WGN Continental Broadcasting Company
II. The following parties participated in panel discussion on the applicability of the fairness doctrine to political broadcasts held, before the Commission, on March 29, 1972:
Roger E. Ailes, President, Roger Ailes & Associates, Inc.
Charles A. Wilson, Jr., for the Democratic National Committee James J. Freeman, Associate Special Counsel, Republican National Committee
Reed J. Irvine, Chairman of the Board, Accuracy in Media, Inc.
Newton N. Minow; Leibman, Williams, Bennett, Baird & Minow, Chicago, Illinois
Harry M. Plotkin, Counsel, Public Broadcasting Service
Paul A. Porter; Arnold & Porter, Washington, D.C.
Allen U. Schwartz, Counsel, Communications Media Committee, ACLU
Rosel Hyde; Wilkinson, Cragun & Barker, Washington, D.C.
III. Oral arguments on all aspects of the fairness proceeding in Docket No. 19260 were made by the following parties on March 30 and 31, 1972:
Michael Valder, on ehalf of Urban Law Institute
Bernard Segal, on behalf of National Broadcasting Company
Sam Love, on behalf of Environmental Action
Malin Perkins, on behalf of the American Association of Advertising Agencies
Geoffrey Cowan, on behalf of Friends of the Earth, et al.
Theodore Pierson, on behalf of Combined Communications Corporation, et al.
Joseph A. Califano, Jr., on behalf of the Democratic National Committee James J. Freeman, on behalf of the Republican National Committee
Edgar F. Czarra, Jr., on behalf of the Corinthian Stations and the Orion Stations
Tracy Weston, on behalf of National Citizens Committee for Broadcasting
J. Roger Wollenberg, on behalf of Columbia Broadcasting System, Inc.
Robert A. Woods, on behalf of National Assn. of Educational Broadcasters
David Lichenstein, on behalf of Accuracy in Media, Inc.
Mrs. Cara Siller, on behalf of Women for the Unborn
Rev. Paul G. Driscoll, Human Life Coordinator of the Rockville Centre (New York) Archdiocese
James A. McKenna, Jr., on behalf of American Broadcasting Companies, Inc.
Ben C. Fisher, on behalf of Commission on Population Growth and the American Future, and Population Education, Inc.
Miles David, on behalf of Radio Advertising Bureau
Absalom Jordan, on behalf of the Black United Front
Peter W. Allport, on behalf of Association of National Advertisers
Dr. Blue Carstenson, on behalf of National Consumer Organizations Ad Hoc Advisory Committee to Virginia Knauer
Leo Perlis, on behalf of Radio and TV Subcommittee of the Ad Hoc National Voluntary Organizations Advisory Committee on Consumer Interests
Warren Zwicky, on behalf of Storer Broadcasting Company
Madalyn Murray O'Hair, on behalf of Society of Separationists
John Summers, on behalf of National Association of Broadcasters Beverly Moore, on behalf of Corporate Accountability Research Group Allen J. Potkin, on behalf of Concerned Citizens of West Virginia
Daniel W. Toohey, on behalf of Basic Communications, Inc.
Domingo Nick Reyes, on behalf of National Mexican American Anti-Defamation Committee
Stewart Feldstein, on behalf of National Cable Television Assn.