FEDERAL COMMUNICATIONS COMMISSION, FAIRNESS DOCTRINE AND PUBLIC INTEREST STANDARDS, HANDLING OF PUBLIC ISSUES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP05C01629R000701560004-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 22, 2016
• Document Release Date: August 16, 2011
• Sequence Number: 4
• Publication Date: July 18, 1974
• Content Type: REPORT

Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05C01629R000701560004-5
THURSDAY, JULY 18, 1974
WASHINGTON, D.C.
Volume 39 Q Number 139
PART III
FEDERAL
COMMUNICATIONS
COMMISSION
FAIRNESS DOCTRINE
AND PUBLIC INTEREST
STANDARDS
Handling of Public Ism"
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05C01629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
2072
FEDERAL COMMUNICATIONS
COMMISSION
R Docket No. 19260: FCC 74-7021
FAIRNESS IN ER S`T STANDARDS PUBUC
Fairness Report Regarding Handling of
PuN(c Issues
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.
I. Introduction. 1. By notice issued
June 11, 1971 (Docket No. 19260. 30 FCC
2d 26), we instituted a broad-ranging in-
quiry into the efficacy of the fairness
doctrine and related public interest poli-
cies. Observing that almost 22 years had
passed since we last gave comprehensive
consideration to the fairness doctrine.1
we stated that the time had come for a
tion of b" c
ifi
ca
reassessment and clar
e leyret -
policy. While we noted that in view of terested individuals and organt:s01atelats. ; tha
sections 3i5(a) and 3(h) of the Com- Finally, Iii March 1972, we c!w-A-'I A m t in of
munications Act, the Commission could week to panel discussiasa and otN or, a- piece of Ideas by prae'lgdi?ig
not "aban'' on the fairness doctrine or meats on the issues raised in tbt" iaaulfy. MW irthrosfent, $nwwvRr. Rit++ es+i.etlRU-
treat broadcasters as common carriers Some fltty perMns participated in the InS anrolafrsop of ts'e fta?'dia of fortes
who must accept all material offered by panel dWivI Ions and about thirty a4011- oovsl}ses+iae-W'+:?a--i+.+t p~b+ U7
any and all comers," we did emphsire tional persers pre.wt ors! srgussasit esl'1 in tome of t'e "f+stsetfl ew con
that these statutory standards were to the Commission. While this Report tm --tics 1#4 tr*41W17 to "- d"rent
broad in nature and that therefore does not specifically addr w ever, rug- ,.h to t)',, "arse Ausrednsr't %, This
"there can and mast be considerable lee- ge (inn which has been raised In the Me- apnea le--'-u affi***"'tt'"e otter--t'?''tog-
way in both policy formulation and ap- feeding, we have given them all cartbil ni s N.w ee'wstwlitp of Rat in
plication in specific cases." In this regard. consideration In resethinf; the oencluglaw IDs,.'basrti>g ?u'd aftiafteing a syatetas of
we asked that interested parties formu- and policy judgments set forth herein. fr!'e'ef9sn of a mr..a'na. Be, mil' T.
late their specific comments in light of II. The /airness doctriist 0 t Emorman. -filet M^sasn of leraMoea of
two general but fundamental consider'(- A. Broadcasting and free speed(, mlee.itson." diaPRer 2;>rlt (197!)).
Lions of Commission policy. First, in believe that it is appropriate to beep esi is, In the 1cq "F"toeert an Sditterbalh-
view of the profound, unquestioned na- evaluation of the fairness doctrine with hyq'" tt+.t Cvwamirinn expe?el.ied the vies)
tional commitment embodied In the First a consideration of the underlying purr. that a, r,?sitti+wa?e +t zbaa Dt arerda"!st ii-
+?'s Ciar'ti' e VIOR an
Amendment, our goal in this area must poses of the doctrine and ire( relationship c~"'1'!'e(i paa
be to foster' .uninhibited, robust, wide- to freedom of speech. In 1949, we set public i++......As "e*Wslan both the spirit
open" debate on public issues. "New forth the basic prernirw of the doctrine >eeraltre ft-
Secondly, we also stressed that any pro- sion has consequently recognlU5 the ne?ss- p?le'y at the 1Pt!*e Amares4saM'sit'
motion of this objective must be com- sitfor i ensue devote eft a ' it R, f ~sa.a iww?v If the
patible with the public interest In "the percentage ir bum to no 14 lift straeft
y eyK saeaaees far fre.saw at %be soiw ada1?if patRe larger and more effective use of radio." presentation of news and pmgnises
plooon, e+ ft of ti's Relsri .en'aMSaoms
47 U.S.G. section 303 (g) . Noting that ahtrntd be red #4 '- e'r?"twa'e obese. *??e eteJ?-
" . ? ' W a major extent, ours Is a corn.. Y The Commisdon's First Beporw-R^X4Ung ernsepus was ?eW%a e$ """ Is mercially-based broadcast system and was W?ed o 36 PCC Ild 64
Ise
that t A_ a LWAtspairressaa
94 and d.yt 12h), 5?
ncM main ea as
that this system renders a vital service the Issues raised in Part V oT the 1"u". A e.. %%^ etas'".- A*, b"?% t1e-'~4e1e e1?'e'4W
to the nation," we emphasized that copy of this First Baaort Is attaebad bewM reo"~'a to teM co'an+ry. Z7sas ne'"'e?t
"(a lny policies adopted by this Commis- as Appendix A. We expedited ooisddise'.tba rem" ea te'e ?esaaaasslsa tteaa the "wises nea-
sion ? ? ? should be consistent with the of this portion of the inquiry in =4w to sildta & sesss?"assa it the fnte'eanast"w trees
clarify( and treat the melee queatiaas pr's- dire sad eatapr''-Ite seers.m to eerattst
maintenan^e and growth of that system rented therein prior to tie 1972gesecal to the v&iere of the public, that a free ow -
kip and should, among other appropriate, ey r t that it is del r+tis in the t _contntt of a n'end that thee"emempmet It elf clean coom
standards, be so measured." These basic ic this renrrt to supplement our treetvewt of not halide t?.* fe-? no- of io"' d+?a not,
sd d Aar '".oral comblumtso + a ref-
-
' The Coll, fiisaion?s first general statement
on fatness doctrine principles was set forth
in tiie Report on Editorializing by Broadcast
Li.'-iisees, 13 FCC 1246 (1949). Briefly stated,
'.the doctrine imposes two affirmative respon-
slhil.tles on the broacb_aster: coverage of Is-
sues n: public importance must be adequate
slid must feirla reflect differing viewpol%it$."
Columbia Broadcasting Sv:?trrn, Inc. v. Demo-
crittle National Committee, 412 U.S. 94, 111
11973) thereinafter cited as BMA).
policy considerations have led the Com-
mission to Initiate this inquiry and have
continued to guide us IA the review and
reformulation of the fairness doctrine
sat forth In this report.
2. To facilitate consideration of the
many complex problems involved, we di-
vided the inquiry into four parts, en-
titled: II. The Fairness Doctrine Gen-
erally; III, Application of the Fairness
Doctrine to the Broadcaat of Paid An-
nouncements; IV. Access Generally to
the Broadcast Media for the DLlcuaMfln
of Public Issues; and V. Aonlicatton el
the Fairness Doctrine to P,olttteel Broad-
casts! Interested parties were invited to
comment on any issue or aspect at three
subjects. We have received and re?le'u d
the written comments of numerous par-
ties renresenting the advertising en-d
broadcasting industries. labor union%
public interest, environmental and OOW
ues
-
the political fairness Issues W vwe , - --
First Report. 4* if they iateew reatre!ets unen that con-
e A list of major contributors can be found stit'nbsiWy gwtesnfaM tie'4Oen- ate 'U.S.
In Appendix B. Borne submitting comments at 40.
after filing deadlines may not be included
ts .,ndi I. In the field of broadcasting. the
filed commen
therein. Over 20 parties or replies in Part II: over 40 peruse fled to principal leanMieeittt to free expression
Part III (an additional 71 comments '"P" arteea riot from any astu-co0npetitive
received In response to the statnmeat of the p cktees, but front the phvale'tl char-
Federal Trade Commission In Part lit) ; lawn actarlitirA of the (trm itself. Procttcal
than 30 comments were filed In Part IV: '"A rience In the ea ly Years of radio
approximately 15 comments in Part V. eXp+
FEDERAL REGISTER, VOL. 39, NO. 139-THUS AY, JULY 1*. 1"/"
to the f>nfLli4erT+`i^-i 1J.-" Ay ''sates of nablie
Ia-u?e of intf-"t In te community pa'e7M1
by two partteular - -k''n. And we bawl rise,.
n i ea d , with tsw^-at to wee propwas. VAS
paramount rtel?t of the public in a free
son etty to be mr'--"^'e and to aaw pre-"nWd
to It fear sm'vty -? o- rep et eel the oifa.?nt
attit i4?e and -t?-?sr+i^*+ eosor'aiu the e
vital and often onner.?.e?etel lance whisk see
held by the wort-24 Rrauns which was. up
this oommunttj. it a tr.'s !i/%t d the p'salts
to be Latooeated, r..twer t121A MAT sighs as the
" of the fs- -wn'ent, any brosiiwt IL-
0111 or any )e.w.-1A1.et swabs of the pub-
La to baer"et A1a o+?'t perticuiar view as
any matter, w`-'.'fn %a 5ne fonreattoa ones cc
the Anw?E?ae .,"rem of breedoeatis& papers
on 1bdMuelelaatt, 1s P= 13". 0 (1110).
4. At ;li vt eons sww' t. tilts s ras'Uve
ties of gov morel power to expataW
SMJdaag tiiu 4ou, for tre ~ises of s i.sch
has tr Aktuaesily implied an alleesee of
iron le'parriefon Or control.
T4restyv.ertt nv'ri of our history. the
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
made it obvious that a complete laissez-
faire policy on the part of the govern-
ment would lead to the drAtruction of
effective radio communication and thus
to a frustration of the ba+tic goals of
the First Amendment. For a brief period
during the nineteen twenties, govern-
ment regulation of broadcasting 'was
virtually non-existent, and broadcasters
had the same freedom of action tradi-
tionally afforded the publishers of news-
papers or magazines. The underlying
policy was -that "anyone who will may
transmit." 67 Cong. Rec. 5479 (1926) (re-
marks of Congressman White). The re-
sults of this system were disastrous both
for the broadcasting Industry and for the
listening public:
From July 1926, to February 23, 1927, when
Congress enacted the Radio Act of 1927
alinoet 200 new radio stations went on the
air. These new stations used any frequency
they desired, regardless of the interference
thereby caused to others. Existing stations
changed to other frequencies and increased
their power and hours of operation at will.
The result was confusion and chaos. with
everybody on the air, nobody could be heard.
FCC Office of Network Study, Second Interim
Report on Television Network Procurement,
65-66 (1965).
7. In 1927. Congress acted to end the
crisis by establishing an effective system
of government licensing. It would have
been unthinkable, of course, for the gov-
ernment to have been in the business of
deciding who could publish newspapers
and magazines and who could not. In
purely' practical terms, however, It was
obvious that licensing was essential to
the development of an effective system of
broadcasting. In the case of "National
Broadcasting Co. v. United States," 319
U.S. 190 (1943). the Supreme Court con-
cluded that, because of the scarcity of
available frequencies, the licensing sys-
tem established by Congress did not vio-
late the First Amendment. In an opinion
written by Justice Frankfurter, the Court
found that the freedom of speech did not
include "the right to use the facilities of
radio without a license." Id. at 227. It
made it clear, furthermore, that the
Commission was not limited to the role
of a "traffic officer, policing the wave
lengths to prevent stations from inter-
fering with each other." Id. at 215.
"[T)he Act," the Court held, "does not
restrict the Commission merely to super-
vision of the traffic. It puts upon the
Commission the burden of determining
the composition of that traffic." Id. at
215-16. But, while the NBC case did
establish an expansive view of Commis-
sion powers. it still left a great many
First Amendment questions unanswered.
8 Some twenty-six years later, in the
landmark decision in "Red Lion Broad-
casting Co. v. FCC", 395 U.S. 367 (19691,
the Court set forth a comprehensive First
Amendment theory which vindicated
both the licensing system and the Com-
mission's fairness doctrine. Justice
White, writing for a unanimous Court,
reaffirmed Justice Frankfurther's thesis
that because of the scarcity factor, li-
ceasing was permtsible.' The First
Amendment, in the Court's opinion, did
not corder upon anyone the right tr
operate a radio station:
[Ili there is to be any effective communi-
cation by radio, only a few can be licen?+d
and the rest must be barred from the air-
ways. It would be strenge if V- ' Piret A,,"eott-
ment:, aimed at protecting and furthering
communications, prevented the government
from making radio communication possible
by requiring licenses to broadcast and by
limiting the number of licenses so as not
to overcrowd the spectrum Id. at 389.
It was thus concluded that the basic
purposes of the First Amendment would
be undermined if there were "an ttn-
abridgeable First Amendment right to
broadcast contparsble to the right of
every individual to speak, write, or pub-
lish." Id. at 388.
9. While the licensing system was thus
designed to further First Amendment in-
terests in the broadcast medium, it was
neeaaaaty to define those interests and
identify their foelu and means of imple-
mentation.' Should the license's chosen
by the government he accorded an abso-
lute and unrestricted right to advance
their own views to the exclusion of those
of their less privileged fellow citizens?
Or should there be some provision made
to insure the recognition of the First
Amendment interests of those citizens
who are of necessity demfad the oppor-
tunity to operate a broadcasting station?
In langunaie strikingly close to that found
in our earlier "Report on Editorializing",
the Red Lion Court stated that "lilt
is the right of the viewers and listeners,
not the right of the broadcasters, which
is paramount." Id. at 300. While private
businessmen were licensed to operate
radio stations, "[tlhe people as a whole
retain their interest In free speech by
radio and their collective right to have
the medium function consistently with
the ends and purpose of the First Amend-
ment." Ibid. (emphasis supplied). That
Amendment, as it has long been recog-
nized, "rests on the assumption that the
widest possible dissemination of Infor-
mation from diverse and antagonistic
'This scarcity principle Is not predicated
upon a comparison between the number of
broadcast stations and the number of daily
newspapers to a given market. The eau trea-
sure of scarcity Is In terms of the number
of persons who wish to broadcast and, in
Justice White's language, there are still "sub-
stantially more Individuals whq want to
broadcast than there are frequencies to allo-
cate" 305, U.B. at 3M.
Professor Emerson has outlined this prob-
lem in the following terms: "(o[nce it Is
assumed that s scarcity of broadeaeting facil-
itve exists the next question becomes, what
follows from that? ? ? ? In purely common-
senee terms It would seem to follow that,
if the government must choose among appli-
cants for the same facilities, it should choose
on some sensible biels. The only sensible
basis Is the one that east prosrotes the sys-
tem of freedom of exp?eesion." T. U rnereon.
The System of Freedom of Expression 863
(1970).
aourres Is etuential to the welfare of the
public ? ? ?," Associated Press v. United
states, ,326 U.B. 1, 20 (1945). In this
respect- -the purpose of the First Amend-
ment is not simply to protect the speech
of particular indivkh>aala, but rather to
preserve and promote this informed pub-
Pc opinion which Is necessary for the
continued vitality of our democratic
society and institutions. As the Supreme
Court has elsewhere stated, "speech con-
cerning public affairs is more than self-
expression; It Is the essence of self-
government," "Garrison V. Louisiana,"
379 U.B. 84, 74-5 (1984), and "Itlhose
guarantees (of the First Amendment)
are not for the benefit of the press so
much as for the benefit of all of us,"
"Time, Inc., Y. Hill," 385 U.S. 374, 329
(1966).
10. In light of this fundamental pur-
pose of the First Amendment and the
paramount right of the public to have
that purpose Implemented 'In the broad.
cost medium, it became clear that the
license granted by the government to a
chosen few could not be considered as
a privilege to "ignore the problems which
beset the people or ' ? ? exclude from
the airways anything but thex own views
of fundAtnental questinns." 3a5 US. at
3114. As the Red Lie. Court :.tinted, "the
First Amendment centers no right on
licensees to prevent others from broad-
casting on 'their' frequencies and no
right to an unconditional monopoly of
a scarce resource which the Government
had denied others the right to use." 395
U.B. at 391. Rather, the constitutional
status of the broadcast l+rensee was
identified in the following terms:
(A[s far as the First Amendment is con-
cerned those who are Bees wi stead no bet-
ter than those to whom Licenses are refused.
A license permits broadcasting, but the It-
censse has no constituttxtal right to be the
one who boleis the licems or to monopolize a
radio frequency to the eselueton of this fel-
low citizens. There is nothing in the First
Amendment which preweta the Oovsrnment
from requiring a license to share his ire.
gency with others and to conduct bintvelf
as a proxy or Sduelssy with chlpptlona to
present those vle+s and voices which are
representAtive of his commnnity and which
would otherwise, by neeasetty. be barred fruit
the airwaves. Id. at 380.
11. Thus, in the context of the scarcity
of broadcast frequencies and the result-
ing necessity for government licensing.
the Fi*?t Amendment impells, rather
than prohibits, gov!ramentai promotion
of a system which will ensure that the
public will be informed of the important
Issues which confront it and of the coin -
peting viewpoints on those issues which
may differ from the views held by a par-
ticular licensee. The purpose and foun-
dation of the fairness doctrine is there-
fare that of the First Amendment itself:
"to preserve an uninhibited marketplace
of ideas in which truth will ultimately
prevail, rother than to countenance mo-
nopolization of that market, whether it
be by the Government itself or a private
licensee." 395 U.S. at 390. In accordance
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
26374 NATJ C!S
with this view and theory, the Court in mental interference in the pr'oomsees of
PA A Lion held that broadcast Journalism, and the ccr oodl-
It does net violate the First Amendment to tart db!r11nutbn of the brosdc~a
treat iloeusses given the privilege of using and the public's legitimate I Mm Amend-
scarce rsdlo frequencies as proxies for the ment Intersts. It 1s with a real sestsitiv-
entire community, obligated to give suitable sty to this potential danger and an equal
time and attentlon to matters of great public wars of our resoonMbllitles to pro..
concern. To condition the granting or re- mote the ends and purpomee of the First
iww?al of licen*ee no a WWllingaees to prevent Amendment that we have confronted the
representative community views on contra- task of restating and reformulating our
versua issues is consistent with the ends
and approach to the fairness doctrine seed
and purposes of thcw* constitutional provi-
sions forbidding the abridgment of freedom the br'ortdcsaters' obligations there-
of speech and freedom of the press. 396 A.8. under.'
at 344. B. Vines the fairness doctrine fnhibif
12 That the government should act broadcast fournaiumt 14. A number of
affirmatively to preserve and promote cornritators have argued thst, la spits
the greater listening and viewing pub- of its worthy purposes, the actual effect
lic's First Amendment interests In broad- of the fairness doctrine can only be to
casting is a concept which some quarters restrict and Inhibit broadcast Journal-
still find difficult to accept. But while Ism. Far from inhibiting debate' how-
arguments have been and will continue ever, we believe that the doctrine has
to be made as to the wisdom of the fair- done much to expend and enrich it.
ness doctrine and its application in par- 15. We have already noted that,
rt' nd stripped to its barest essentials, the fair-.
a
t
first response to thi, amument is that 1.
represents "t at~i.4lds which is 'oot^_-
plstely bi. 'nistent with the b nn4c..st-
er'a rots as a p' blic uses,::,'
17. Th 81,n,~s Oo?trt In Fed Lim:
considered the po.elbIltry that fairmee e,
prinelplas miRitt ba'e a "bhf1 lq wefo't"
on broadest loumalt i, and frntnd that
this .
pot utility is at best esaculetlve, Tice cnm-
muntortirms tndw-tay. e"d JA particular tb?:
n twnrb, ).'-i t/ken pains to prevent oon-
trvrseviwl I-" s W the east, a14 e- nn now
they do not weaves that Rasp Intend to than-
d-v% their sCoete in this eweard. It wnuid be
b-t~ter it the 1^+e'e en.??r it al+nrnt www never
nsoee y to W41" ts. bs~o?4oaMeee to rrwt
tbaer ranestaibtuty. , e4 It exn+*~anw with
the adminlsarem ,. thaw doctrines in-
dtoates trews this bays this nest.Rsat of rKduc-
ing rasstor Rhea e,Rhaaeiae the volume ane
gueusy of oe+w+see. gears w 4U i s U-^ .aougt
to reaaasidar the Rwrtebwtlomal tmpueetious.
The fs4r ass dear in the past ben bad no
Mau overaU leiet. gas fl1e. at WO.
ory sum
r cases, its statu
news doctrine Involves a two-fold duty: In the yeas dress Bad Lion was decider;.
constitutionality are firmly ta
constitutionality established, (1) The broadcaster must devote a roe- we have awn no credible evidence that
BEM, 412 U S. 94 (1973) ; ed Lion sonable percentage of this broadcast esir po&le1M have in fact bad "the net.
Broadcasting Co. V. FCC," 395"RU.B. 367 time to the coverage at public lenses; el-.,ek of reducing rather than enhancing
(1969). and (2) his coverage of tames Issues the volume and quality of onverage."
13, Although the legality of the fair- must be fair in the sense that it provides it. In evt,ttinf this possible inhibf-
ness doctrine is thus well District had, an opportunity for the presentation of Cory edteet of the fairness doetrtne, it 1.
Chief Judge Bazelon of the D District of contrasting points of view. It Is impos- appieprute to e"nsidsr the specifics cf
Columbia Circuit has suggested that the Bible to believe, that the first of these the doetririe said the uroeaeures emnloyed
time has come for "the Commission to obligations could hamper broadcast news by the Cow=jesiya In Imolementtng it.
draw back and consider whether time and commentary in any way. While such When a liosstiee pnewts one aloe nt a
and technology have so eroded the ne-
cessity a requirement might be viewed as a re- controversial lessee he is not required to
for governmental imposition of striction on the broadcaster as a buss- provide a toeum for opposing views (Jr.
fairness obligations that the doctrine nensman, there Is no doubt that "it is a that same prow* u or serI of Aroerarns.
his come to defeat its purposes in a va- positive stimulus to broadcast journal- He is simply eepeased to make te provisMn
riety of circumstances ? ?: "Brandy- is
wine-Main Line Radio, Inc. V. FCC," m." Wood, Electronic Journalism 127 for the opposing via.e in his ar..ail or*.
(1967).
473 F. 2d 16, 80 (D.C. Cir. 1972) 16. We do not believe that the sec- meat tthh~ preewdj weal balance
:voting opinion). We believe, however, , and part of the fairness doctrine should of view be achieves, saved an mattwrs
that the problem of scarcity is still very inhibit broadcast Jottrnallsm achy snore ppbMrnins this partlsntar otitv+sirtq
much with us, and that despite recent than the first. It has iregU Dtly been tins to be presseaed and the enpro-
advances in technology, there are still suggested, however, that many bread- pri is spokwee and foras"t for the't
substantially more individuals who want casters will avoid the coverage of con- prosemt ."en are loft to the licensee's
to broadcast than there are frequencies to trov.mial issues It they are required to diseretiva swb~ad o.ly ve is standard cf
allocate." "Red Lion Broadcasting Co. V. present contrasting views. These bread- rewm&bhmess paid goal faith,
FCC," 395 U.S. at 388. The effective de- casters, it Is argued, will find the ac- 19. be a matter Of gssnrul procedure,
velopment of an electronic medium with posing viewpoint i too offensive, or th--rlr we do not aaeaa"sr breaiw4 for oossil,l
an abundance of channels (through the presentation too disruptive to their violateena, bust set on the basis of Cow -
use of cable, or otherwise) is still very broadcast schedules, too expensive (aye? p)slny reseeded lashes 1.Mew*Mt citiaens.
much a thing of the future. For. the suming they are unable to find sponsor- Thsee oose,"-b *AM D" ferwerdsd to
present, we do not believe that it would ship for the presentation at contrasting the Bessie:: for h+s Ooltamesv unless
be appropriate-or even permissible-
for simply too much trouble. Our they P1 11111! 9 toga of a
a government nment agency charged charged with views), or ~athn. AU en C. Pl edge, 21 FCC 2d 12
the allocation of the channels now avsdl-
able to ignore the legitimate First I Judge Skelly Wright of the District of (1949). Thus' bge"aes are not b ? '
Amendment interests of the general nub- oolumbte Ci suit has made the following ob- dined with the taelr' of answering idle
lie. We recognize, however, that there s.rvattoos with rre"rd w the dtseultls in-
exists within the framework of fairness hereat in roue tof fig era:
..The probtes sos of figuring out the right
doctrine administration and enforce- thing to do in this area.-the eye am that
ment the potential for undue govern- will best serve the publics met Am"adm+at
t t---an vaeemous In Bosse areas of.tb*
i
- From the earliest days of radio regulation.
it was recognized that a standard of fair-
ness was an essential element of regulation
in the "public interest." Great Lakes Broad-
re_.ting Co.. 3 F.R.C. Ann. Rep. 32, 33 (1929),
rev?d on other grounds, 69 App. D.C. 197,
37 F. 2d 993, teat dismissed. 281 U.S. 708
(1930 1. In 1959, Congress specifically amended
the Communications Act so as to vindicate
the Commission's view that fairness Inhered
in the general public Interest standard of
the Act. 47 U.S.C. section 315(a): as. Red
Lion Broadcasting Co. v FCC. 395 U S. at
380 81,
n rem
law, constitutional values are clearly dh,-
cernible, as where one Is required to bal-
ance some right protected by the Conmtitu-
tion against an aseetted countervailing gov-
ernmental tnteremt ? ? ?. (I)n sorom are" of
the law it is easy to tell the good guys from
the bad guys. In the current debate over
the broadcast media and the First Amend-
ment, however, each debater claims to be-the
real protector of the Feret Amendment, and
the analytical problems are much more d12-
cult than in ordinary oonstitutlonal adjudi-
cation." Commencement address, National
Law Center, George Washington Univsvity,
Washington, D.C.; June 3. 1973.
? We censer with the views esseresae3 cn
this mabiset by forest OeMiaMeiaur Cox
several years ease:
"gals a trustee for the public, a brxO.-
caetar. must use his fncilttlee to enllghtr.
tie public shout the ertueai Issues wh4c it
faces. sad this obviously requires wbstaatlai
effort and may museum prsentine some vie w-
points with -%left the Ucaas a totally di:
agrees. But so wag as he is parttuttct .n
express his own view editorially with rte;'.
to the mattes discussed and is allowed to
choose the formats to be employed and the
spokesmen for the reaneatty po6itio05. he
cannot, It seems to me, claim that his fre_
doers to report ,ad analyze the news bias barn
impaired." Cox. The 1'11C and the "aturo
of Broadcast Journalism in Survey of Bre.o-
cast Journalism loss-1970 at 115.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
or capricious complaints. By way of illus-
tration, the Commission received some
2,400 fairness complaints in fiscal 1973,
only 94 of which were forwarded to
licensees for their comments.
20. While there may be occasional ex-
ceptions, we find it difficult to believe that
these policies add significantly to the
overall administrative burdens involved
in operatng a broadcast station. It is
obvious that any form of governmental
regulation will impose certain costs or
burdens of administration on the in-
dustry affected. The point is not whether
some burden is involved, but rather
whether that burden is justified by the
public interest objective embodied in the
regulation. Broadcasters are licensed to
act as trustees for a valuable public re-
source and, in view of the public's para-
mount right to be informed, some admin-
istrative burdens must be imposed on
the licensee in this area. These burdens
simply "run with the territory." Further-
more, any licensee who might be dis-
couraged by such a burden will have to
take into account this Commission's re-
quirement that he must provide a forum
for the discussion of public issues. The
Supreme Court has made it clear and it
should be reemphasized here that "if
present licensees should suddenly prove
timorous, the Commission is not power-
less to insist that they give adequate and
fair attention to public issues. "Red Lion
Broadcasting Co. v. FCC," 395 U.S. at
393.
C. The specifics of the fairness doc-
trine. 21. In developing and implementing
the fairness doctrine it has never been
our intention to force licensees to con-
form to any single, preconceived notion
of what constitutes the "ideal" in broad-
cast journalism. Our purpose has merely
been to establish general guidelines con-
cerning minimal standards of fairness.
We firmly believe that the public's need
to be informed can best be served
through a system in which the individual
broadcasters exercise wide journalistic
discretion, and in which government's
role is limited to a determination of
whether the licensee has acted reason-
ably and in good faith. Fairness Doctrine
Primer 40 FCC 598, 599 (1964). In this
regard, we are still convinced that
them can be no one all embracing formula
which licensees can hope to apply to insure
the fair and balanced presentation of all pub-
lic Issues. Different Issues Will Inevitably re-
quire different techniques of presentation
and production. The licensee will in each In-
stance be called upon to exercise his best
judgment and good son" in determining
what subjects should be considered. the par-
ticular format of the programs to be devoted
to each subject, the different shades of opin-
ion to be presented, and the spokesmen for
each point of view. Report on Editorializing.
13 FCC 1244, 1281 (1949).
22. it is obvious that under this method
of handling fairness, many questionable
decisions by broadcast editors may go
uncorrected. But, in our judgment, this
approach represents the most appropri-
ate way to achieve "robust, wide open
debate" on the one hand, while avoiding
"the dangers of censorship and pervasive
supervision" by the government on the
other. "Banzhaf v. FCC?" 405 F. 2d 1082,
1095 (D.C. Cir. 1068), cert, denied sub
nom. "Tobacco Institute v, FCC," 396
U.S. 842 (1969). In this respect, we are
not unmindful of the dangers alluded to
by the Court in BEM:
Congress appears to have concluded ? ? ?
that of these,two choices-private or official
censorship--Government censorship would
be the most pervasive, the most self-serving,
the most difficult to restrain and hen" the
one most to be avoided. 412 U.S. 94 at 105.
We therefore recognize that reaching
a determination as to what particular
policies will best serve the public's right
to be informed is a task of "great deli-
cacy and difficulty," and that the Com-
mission must continually walk a "tight-
rope" between saying too much and say-
ing too little. Id. at 102, 117. However, we
also believe that this Commission has a
clear responsibility and obligation to as-
sume this task.
1. Adequate time for the discussion of
public issues. 23. The first, and most
basic, requirement of the fairness doc-
trine is that it establishes an "affirma-
tive responsibility on the part of broad-
cast licensees to provide a - reasonable
amount of time for the presentation over
their facilities of programs devoted to
the discussion and consideration of pub-
lic issues ? ' ?" "Report on Editorializ-
ing," 13 FCC at 1249. Determining what
constitutes a "reasonable amount of
time" is-like so many other program-
ming questions-a responsibility of the
individual broadcast licensee. It is the
individual broadcaster who, after evalu-
ating the needs of his particular commu-
nity, "must determine what percentage
of the limited broadcast day should ap-
propriately be devoted to news and dis-
cussion or consideration of public Issues,
rather than to other legitimate services
of radio broadcasting ' ? ? " Id. at 1247.
24. In reviewing the adequacy of the
amount of a licensee's public issue pro-
gramming, we will, of course, limit our
inquiry to a determination of its reason-
ableness. We wish to make it plain, how-
ever, that we have allocated a very large
share of the electromagnetic spectrum
to broadcasting chiefly because of our
belief that this medium can make a great
contribution to an informed public
opinion. See "Democratic National Com-
mittee," 25 FCC 2d 216, 222 (1970). We
are not prepared to allow this purpose to
be frustrated by broadcasters who con-
sistently ignore their public interest re-
sponsibilities. Indeed, "we regard strict
adherence to the fairness doctrine"-In-
cluding the atrirmative obligation to pro-
vide coverage of issues of public impor-
tance-"as the single most important
requirement of operation in the public in-
terest-the 'sine qua non' for grant of a
renewal of license." "Committee for the
Fair Broadcasting of Controversial Is-
sues," 25 FCC 2d 283, 292 (1970).
25. The individual broadcaster is also
the person "who must select or be respon-
sible for the selection of the partlcu'a_
news items to be reported or the pa-tic-
ulai' local. State, national or interna-
tional Issues or questions of public inter-
est to be considered e ? ?," .,Report on
Editorializing," 13 FCC at 1247.' We have.
in the past, indicated that some Issues are
so critical or of such great public im-
portance that it would be unreasonable
for a licensee to ignore them completely.
See Gary Soucie (Friends of the Earth).
24 FCC 2d 743, 750-51 (1070). But such
statements on our part are the rare ex-
ception, not the rule, and we have no in-
tention of becoming involved in the selec-
tion of issues to be discussed. nor do we
expect a broadcaster to cover each and
every important issue which may arise in
his community.
26. We wish to emphasize that the re-
sponsibility for the selection of prograr'
material is that of the individual licensee.
That responsibility "can neither be dele-
gated by the licensee to any network or
other person or group, or be unduly fet-
tered by contractual arrangements re-
stricting the licensee in his free exercise
of his independent judgments." "Report
on Editorializing," 13 FCC at 1248. We
believe that stations, in carrying out this
responsibility, should be alert to the op-
portunity to complement network offer-
ings with local programming on these is-
sues, or with syndicated programming.
2. A reasonable opportunity for oppos-
ing viewpoints. 27. The usual fairness
complaint does not involve an allegation
that the licensee has not devoted sue-
cient time to the discussion of public is-
sues. Rather, it concerns a claim that the
licensee has presented one viewpoint on a
"controversial issue of public impor-
tance" and has fail" to afford a "reason-
able opportunity for the presentation of
contrasting viewpoints."
28. It has frequently been suggested
that individual stations should not be
expected to present opposing points of
view and that it should be su@cient for
the licensee to demonstrate that the
opposing viewpoint has been adequately
presented on another station in the mar-
ket or in the print media, Sae WBOC
Broadcasting Co., 17 P s F Radio Ref[.
548, 350 (1951). Whip we recognize that
citizens receive information on public
issues from a variety of sources, other
considerations require the rejection of
this suggestion. First, In amending set -
tion 315(a) of the Cbnriaunications Act
in 1959. Congress gave statutory ap-
proval to the fairness doctrine, Including
the requirement that broadcasters them -
selves provide an opportunity for oppos-
ing viewpoints. See BEM, 412 U.S. at 110,
? Ordinarily, the problems which are lien-i-
fied by a station's ascertainment of Its com-
munity's seeds and Interests would be fe.-
tured prominently in the list of public Issues
selected by the station for program coven.ge.
See generally. Primer on Aa:ertalar cat o:
Community Problems by Broadcast Appli-
cants. 20 FCC 2d 650 (1972).
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
note 8.10 Second, it would be an admin-
istrative nightmare for this Commission
to attempt to review the overall coverage
of an issue in all of the broadcast sta-
tions and publications in a given market.
Third, and perhaps most importantly,
we believe that the' requirement that
each station provide for contrasting
views greatly increases the likelihood
that individual members of the public
will be exposed to varying points of view.
The fairness doctrine will not Insure per-
fect balance in debate and each station
is not required to provide an "equal"
opportunity for opposing views. Further-
more. since the fairness doctrine does
not require balance in individual pro-
grams or series of programs, but only in
a station's overall programming, there is
no- assurance that a listener who hears
an initial presentation will also hear a
rebuttal. Compare 47 U.S.C. 396(g) (1)
(A). However, if all stations presenting
programming relating to a controversial
issue ,.f public importance make an
effort to round out their coverage with
contrasting viewpoints, these various
points of view will receive a much wider
public dissemination. This requirement,
of course, in no way prevents'a station
from presenting its own opinions in the
strongest terms possible.
a. What is a "controversial issue of
public importance"?. 29. It has fre-
quently been suggested that the Com-
mission set forth comprehensive guide-
lines to aid Interested parties in
recognizing whether an issue is "con-
troversial" and of "public -importance."
However, given the limitless number of
potential controversial Issues and the
varying circumstances in which they
might arise. we have not been able to
develop detailed criteria which would be
appropriate in all cases. For this very
practical reason, and for the reason that
our role must and should be limited to
one of review, we will continue to rely
heavily on the reasonable. good faith
judgments of our licensees in this area
30. Some general observations how-
ever, are in order. First of all, it Is
obvious that an issue is not necessarily
a matter of significant "Public impor-
tance" merely because It has received
broadcast or newspaper coverage. "Our
daily papers and television broadcasts
ulike are filled with news items which
good journalistic judgment would
classify as newsworthy, but which the
same editors would not characterize as
containing important controversial
public issues." Healey v. FCC, 460 F.2d
917, 922 (D.C. Cir. 1972). Nevertheless,
p, One United States Senator has proposed
mat it might be desirable to apply the fair-
ness doctrine only where less than four
broadcast signals are received in a given
area. See 119 Cong. Rec. 82036$-02 (Novem.
bpr 14. 1973) (remarks of Senator Ervin). We
believe that such a proposal is clearly beyond
our statutory authority. However, it may be
appropriate at some future, date to examine
the possibility of a different application of
the fairness doctrine to new technologies of
electronic communication or of a different
application in broadcast markets of varying
size.
the degree of media coverage is one port one side or the other on'that ulti-
factor which clearly should be taken Into mate issue. This problem may be illus-
account in determining sa Issue's lm- traced by reference to a hypothetical
portance. It is also appropriate to con- broadcast which. takes place during the
alder the degree of attention the Issue course of a heated community debate
has received from government of iclais over a school bond Issue. The broadcast
and other community leaders. The grin- presents a spokesasan who foratulty as-
cipal test of public importance, however, sorts that new school construction Is
Is not the extent of media or governmen- urgently needed and that there Is also a
tel attention, but rather a subjective used for substantial increases In teech-
evaluation of the Impact that the issue is era' salaries, both prlnoipal asgtssseata
likely to have on the community at advanced by prop'ea of the bead
large" If the issue involves a social or Issue. The spokesman however, does not
political choice, the licensee might well explicitly mention or advocate pesea"e at
ask himself whether the outcome of that the bond issue. In this ase, the licensee
choice will have a significant knpact on would be faced with a need to deteemlae
society or Its Institutions. It appears to whether the spokeeaaaa had raised the
us that these judgments can be made issue of whether the wheel bowls should
only on a case-by-case basis. be authorised (which Is coukre+rersW), or
31. The question of whether an Issue whether he had merely raised the 490-
Is "controversial" .may be determined In Lion of whether present school faciUttcs
a somewhat more objective manner, and teacher salaries are adequate (which
Here, It is highly relevant to measure the might not be at all controversisi) .
degree of attention paid to an Issue by 34. In answering this question, we
government officials, community leaders, would expect a licensee to exercise his
and the media. The licensee should be good faith judgment as to whether the
able to tell. with a reasonable degree of spokesman bas in an obvious and mean-
objectivity, whether an lame Is the sub- Ingful fashion pzeeented a poMtieo on
jest of vigorous debate with substantial the ultimate controrasW Resin of
elements of the community In opposition whether the school bond hew should
to one another. It is possible, of course, be - aponrwd." Tbo licensee's inquiry
that "programs Initiated with no should focuus not on wbetbb er the Mats-
thought on the part of the licensee of meat bats some tengentlal releraoee
their possible controversial nature will to the school bead gWwtoa, but rather
subsequently arouse controversy and op- on whether that staer,eent, In the
position of a substantial Decors which contort of the onaong community
will merit presentation of opposing debate. Is so obvlowly and sabatan-
views." Report on Editorialising, 13 FCC tlus#ly related to the school bond le-
st 1251. In such circumstances, it would sue as to amount to advoo*c' of a PeM-
be appropriate to make provision for Lion on that question. It, for esemyle,
opposing views when the opposition be- the arguments acid views expressed over
comes manifest. the air closely parallel the major ersu-
b. What specific issue has bee% raised? ments advanced tty ?artisans on one side
32. One of the most dlDlcult problems or the'otlta of the public debate It might
involved in the administration of the be r o-a!ble to conclude that there nod
fairness doctrine Is the determination been a presentation on one aide of the
of the specific Issue or issues raised by a ultimate issue. I.e.. authorisation of the
particular program. This would seem to school bonds. Obviously. licensees in
be a simple task, but in many cases It apecific'cas'sa may differ In thaw atlawets
is not. Frequently, resolution of this to this inquiry. If a license's debermine-
problem can be of decisional Importance. tion is seaaoealaM and arrived at in gaud
See, e.g.. David C. Careen, 24 FCC 3d faith, however, we will not Oil i It It. Cf..
171 (1970) ; WCBS -TV, 0 FCC 2d 9111, Media ACeras P1 (Cleaegia Power),
938 (2967). 44 FCC 2d 754 (1973).
33. This determination is complicated 35. Before leaving this aiaWIet, we
by the fact that it Is frequently tmado wish to make It dew that a fairaaaa re-
without the benefit of a transcript or spouse is not raWAlrsd as a result of off-
tape of the program giving rise to the hand or Insubetentisl MatesomMs. As we
complaint. Hence. it is necessary In such have stated is the paet, "($1 piney of
cases to rely on the recollections of ate- requiring fairness. statement by Mate-
tion employee and listeners. While the meat or Infeeanee by tsltoroitea, with sea-
availability of an accurate transcript stant Costume lei Inserrantioa to try
would facilitate the determination of this to implement the puMsy. would siwgir be
issue or issues raised, it would not ? in inert with the pa"ciOMd nattesd
many cases clearly point UP those liana& commitment to the principle that asbate
This is true because, a broadcast may on public issues should be hmtlnhlbitoi
avoid explicit mention of the ultimate robust, wide-open' (Now York Times Co.
matter in controversy and focus instead v. Sullivan. 37 U.S. 254. 270)." Natioasl
on assertions or arguments which sup- Broadcasting Co. MOM complaint). 28
FCC 2d 733. 7316-37 (197).
? In this regard, we note that the fairness
aoctriue was not designed for the purpose of
providing a forum for the dlscuaxion of lsret'.
private disputes of rue coxaequenee to the
It& purpose is to in-
Rather
eneral pubic
.
.
g
sure fast the Public will be adequately tn- 310 See discussion of the applieatle0i of Me
form.+d on matters of importance to rpajor standard to "editorial" advertising In Part
se,;n,ents cf the Ai, infra.
e. What is a "reasonable opfeortenlty"
for contrasting vistepoiis? 36. As noted
above, the Commission's Ant task In
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
handling a typical fairness complaint is
to review the licensee's determination as
to whether the issue specified in the com-
plaint or the Commission's inquiry has
actually been raised in the licensee's pro-
gramming. Secondly, we must review the
licensee's determination of whether that
Issue is "con troversial" and of "public
importance." If these questions are
answered in the affirmative, either by
admission of the licensee or by our deter-
mination upon t'eview,~we must then de-
termine whether the license has afford-
ed a "reasonable opportunity" in his
overall programming for the presenta-
tion of contrasting points of view.
37. The first point to be made with
regard to the obligation to present con-
trasting views is that it cannot be met
"merely through the adoption of a gen-
eral policy of not refusing to broadcast
opposing views where a demand Is made
of the station for broadcast time." Re-
port on Editorializing," 13 FCC at 1251.
The licensee has a duty to play a con-
scious and positive role in encouraging
the presentation of opposing viewpoints."
We do not believe, however, that it Is
necessary for the Commission to estab-
lish a formula for all broadcasters to fol-
low in their-efforts to find a spokesman
for an opposing viewpoint. As we stated
in "Mid-Florida Television Corp.," 40
FCC 620 (1964) :
The mechanics of achieving fairness will
necessarily vary with the circumstances, and
It is within'the discretion of each licensee,
acting in good faith, to choose an appropriate
method of Implementing the policy to aid
and encourage expression of contrasting
viewpoints. Our experience indicates that li-
censees have chosen a variety of methods,
and often combinations of various methods.
Thus, some licensees, where they know or
have reason to believe that a responsible in-
dividual or group within the community
holds a contrasting viewpoint with respect to
a controversial issue presented or to be pre-
sented, communicate to such an Individual
or group a specific offer of the use of their
facilities for the expression of contrasting
opinion, and send a copy or summary of
material broadcast on the issue. Other IIcens-
n This duty Includes the obligation defined
in Cullman Broadcasting Co., 40 FCC 576. 577
(1963):
"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 program-
ming, and has been unable to obtain paid
sponsorship for the appropriate presentation
of the opposing viewpoint or viewpoints, be
cannot reject a presentation otherwise suita-
ble to the licensee-and thus leave the public
uninformed-on the ground that he cannot
obtain paid sponsorship for that presenta-
tion." (emphasis In original).
We do not believe that the passage of time
since Cullman was decided has in any way
diminished the Importance and necessity of
this principle. If the public's right to be in-
formed of-the contrasting views on contro-
versial Issues Is to be truly honored, broad-
casters must provide the forum for the ex-
presalon of those viewpoints at their own
expense If paid sponsorship Is unavailable.
ees cunsult with community lenders as to who
might be an appropriate Individual or group
for such a purpose. Still others announce at
the beginning or ending (or both) of pro-
grams presenting opinions on controversial
Issues that opportunity will be made avail-
able for the expression of contrasting views
upon request by responsible representatives
of such views. Id. at 621.
If a licensee fails to present an opposing
viewpoint on the ground that no appro-
priate spokesman Is available, he should
be prepareed to demonstrate that he has
made a diligent, good-faith effort to
communicate to. such potential spokes-
men his willingness to present their
views on the issue or issues presented.
Columbia Broadcasting System, Inc., 34
FCC 2d 773 (1972). There may well be
occasions, particularly In cases involv-
ing major issues discussed In depth,
where such a showing should include
specific offers of response time to appro .
priate individuals In addition to general
over-the-air announcements"
38. In making provision for the airing
of contrasting viewpoints, the broad-
caster should be alert to the possibility
that a particular Issue may involve more
than two opposing viewpoints Indeed,
there may be several important view-
points or shades of opinion which war-
rant broadcast coverage."
39. In deciding which viewpoints or
shades of opinion are to be presented,
licensees should employ a standard simi-
lar to that used to decide which political
parties or candidates represent a view-
point of sufscfent Importance to deserve
coverage. As we stated in Lawrence M. C.
Smith, 40 FCC 549 (1963), the broad-
caster (in programs not covered by the
"equal time" requirement of 47 U.S.C.
section 315) is not expected to present
the views of all political parties no mat-
-in a notice of Inquiry and notice of pro-
pond rulemaking In Docket No. 18859, 23
FCC 24 27, we proposed the adoption of
speeds procedures to be followed under cer-
tain circumstances In w-king an opposition
spokes arm. We believe, however, that the
policy set forth above adequately covers all
situations, and consequently that It Is now
appropriate to terminate that proceeding.
"One student commentator has outlined
this problem In the following terms:
"A principal ourpwe of the fairness doc-
trine is to educate the public on the major
aiternetives (vailable to it in making social
choices ? ? ?. Acknowledging that there is
a 'spectrum' of opinion on many issues, It
is nonetheless true that there are often
clearly definable 'colors' in the spectrum,
even though the points at which they blend
Into one another may be unclear. The con-
troversy concerning American policy in
Indochina to Ulustrative. The alternatives
(prior to America's withdrawal from the war)
includeld) Increasing military activity,
maintaining the (then) present level of com-
mitment, a phased withdrawal and an im-
mediate withdrawal. It might be argued that
any liwneee who does not present some cov-
erage of at leret these views has failed to
educate the public about the major policy
alternatives available." Note. The FCC Fair.
ness Doctrine and Informed Social Choice. 6
Harv. J. Legis 313 351-52 (1971).
ter how small or Insignificant. but
rather:
the'liceusee would be called upon to make
a good faith judgment as to whether there
can reasonably be said to be a seared or inter-
est in the community calling for some pro-
vision of announcement time to these other
parties or candidates and, if so. to determine
the extent of that interest or need and the
appropriate way to most it." 40 FCC at 550.
In evaluating a "spectrum" of contrast-
ing viewpoints on an issue, the licensee
should make a good faith effort to Iden-
tify the major viewpoints and shades of
opinion being debated in the community,
and to make a provision for their pre-
sentation. In many, or perhaps most,
cases it may be possible to find that only
two viewpoints are significant enough to
warrant broadcast coverage.' However.
other issues may involve a range of
markedly different and important policy
alternatives. In such circumstances, the
broadcaster must make a determination
as to which shade, of opinion are of suM-
cient public importance to warrant cov-
erage, and also the extent and nature of
that coverage.
40. The question of the reasonableness
of the opportunity for opposing view-
points goes considerably deeper, however,
than a more finding that some provision
has been made for the opposing view-
points..Indeed, It has frequently b'.cn
suggested that the wide diaeret'.on at-
forded the licenses In selecting a reply
spokesman and format may undermine
any possibility that treatment of the op-
position view will be either reasonable
or fair. Accordingly, it has been argued
that the Commission should promulgate
regulations estebtishing standards for
the selection of an appropriate reply
spokesman and format. We believe, how-
ever, that it should be adequate to remind
licensees that they have a duty not "'to
stack the cards' by a deliberate selection
of spokesman for cg 'ositis psissts of view
to favor one viewpoWt at the expean of
the other e e ?" " Veport as -
lng." 1$ FCC at 125$ In the and sep-
ala, fairs must be achieved, "not by
the esclusis of psatieuiar vies becene.
Of e e ? the foewtutasus with which
the view is "Pressed, but bus mamas the
microphone asatlahs, ter the pe~ssants-
tion of contrary views wttl~wt deftest,
restrictions desisned to iulpsfs equally
forceful pres,ntsi3on." Id, at 1253-54.
(emphasis sunpiied) : we she t -
wine-Main Line Radio, Inc., 24 FCC 2d
18, 23-24 (1070).
41. In providing for the coverage of
opposing points of view. we believe that
the licensee must make a reasonable al-
lowance for presentations by geniune
partisans who actually bedew in what
they are saying. The fairness doctrine
does not permit the broadcaster "to pre-
'? Thiss is not to say that a broadcaster is
barred from presenting the views of small
minorities, but only that the government
will not require the coverage of every possible
viewpoint or shade of opinion regardless of
its significance.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
side over a 'paternalistic' regime," BEM,
412 U.S. at 130. and it would clearly not
be acceptable for the licensee to adopt
a "policy of excluding partisan voices and
always itself presenting viewe in a bland,
inoffensive manner ? ? ?." "Democratic
National Committee," 25 FCC 2d 218, 222
(1970). Indeed, this point has received
considerable emphasis from the Supreme
court.
I n f or is it enough that *he should bear the
erg uments of adversaries from his own teech-
era, presented as they state them, and aocorn-
pai,ted by what they over as refutations,
That is not the way to do justice to the argu-
menta, or bring them into real contact with
his own mind. He must be able to hear them
from persons who actually believe them; who
defeud them In earnest, and do their very
utnw..t for them. Red Lion Broadcasting
Co. v. P"CC, 396 U.S. at 392. a. 18, quoting J. 8.
Mill, On Liberty 32 (R. McCallum ed. 1947).
42. This does not mean, however, that
the Commission Intends to dictate the
selection of a particular spokesman or
a particular format, or indeed that par-
tisan spokesmen must be presented in
every instance. We do not believe that
it is either appropriate or feasible for
a governmental agency to make dect-
s1ons as to what In desirable in each
sttupation. In cases involving oral
atlac_ks and political campaigns, the na~t-
ural opposing spokesmen are relatively
easy to Identify. This is not the case,
however. with the majority of public
controversies. Ordinarily, there are a
variety of spokesmen and formats which
could reasonably be deemed to be ap-
propriate. We believe that the-public is
best served by a system which allows
individual broadcasters considerable
discretion In selecting the manner of
coverage, the appropriate spokesmen,
and the techniques of production and
presentation.
43. Frequently, the question of the
reasonableness of the opportunity pro-
vided for contrasting viewpoints comes
down to weighing the time allocated to
each side: Aside from the field of politi-
cal broadcasting, the licensee is not re-
quired to provide equal time for the
various opposing points of view. Indeed,
we have long felt that the basic goal
of creating an informed citizenry would
be frustrated if for every controversial
item or presentation on a newscast or
other broadcast the licensee had to offer
equal time to the other side. Our reasons
for granting the licensee broad discre-
tion with respect to the amount or
nature of time to be afforded, can be
summarized as follows:
In our judgment, based on decades of
experience in this field, this Is the only
sound way to proceed as a general policy.
A contrary approach of equal opportunities,
applying to controversial Issues generally
the speclac equal opportunities requirements
for political candidates would in practice not
be workable. It yould Inhibit, rather than
promote, the discussion and presentation of
controversial Issues in the various broadcast
program formats (e.g., newscasts, Interviews,
documentaries). For it is just not practicable
to require equality with respect to the large
number of issues dealt with in a great
variety of programs on a daily and contiuu-
Ing buts. Further, it would Involve this
Commission much too deeply in broadeut
journatt.un we would indeed become virtu.
&W a part of the broadcasting "fourth
estate" overseeing thousands of oamplsinte
that some Issue had not been given "squat
treatment." We do not believe that the pro-
found national commitment to the prin-
ciple that debate on public Issues should
be "uninhibited, robust, wide-open" (New
York Times V. Sullivan, $70 U.S. 244, 270)
would be promoted by a general policy of
requiring equal treatment on all such Is-
sues, with govlrnmental Intervention to In-
sure such mathematical equality. Committee
For the Fair Broadcasting of Controversial
Issues, 25 FCC 2d 203. 202 (1870).
Similarly, we do not believe that it would
be appropriate for this Commission to
establish any other mathematical ratio,
such as 3 to l or 5 to 1, to be applied in
all cases. We believe that such an ap-
proach is much too mecbaaical in nature
and that in many cases our Are-oonnelved
ratios would prove to be far from reason-
able. In the case of a 10-second personal
attack, for example. fairness may dic-
tate that more time be afforded to answer
the attack than was given the attack
Itself. Moreover, were we to. adopt a
ratio for fairness programo Ong, the
"floor"thereby established might well be-
come the "ceiling" for the treatment of
issues by many stations, and such a ratio
might also lead to preoccupation with a
mathematical formula to the detriment
of the substance of the debate. It appears
to us, therefore. that no precise mathe-
matical formula would be appropriate for
all cases, and the licensee must exercise
good faith and reasonableness in con-
sidering the particular facts and circurm-
stances of each case.
44. While the road to predicting Com-
mission decisions in this area Is not fully
and completely marked, there are, never-
theless, a number of signposts which
should be recognlrable to all concerned
parties. We have made it clear, for ex-
ample, that "it Is patently unreasonable
for a licensee consistently to present one
side in prime time and to relegate the
contrasting viewpoint to periods outside
prime time. Similarly. then can be en
imbalance from the sheer weight on one
side as against the other." Camasittee for
the Pair Broadcasting of Controversial
Issues, 25 FCC 2d at 253. This imbeheess
might be a reflection of the total anseelait
of time afforded to each side, of the fre-
quency with?which.each side is presented,
of the size of the listening audience dur-
ing the various broadcasts. or of a cos-
binatlon of factors. It is Incumbent epee
a complainant to bring to the Conmlle-
sion's attention any -specific factses
which he believes point to a finding that
fairness has not been achieved. Prom the
standpoint of the licensee, however, the
most important protection against ar-
bitrary Commission rulings Is the fact
that we will not substitute our Judgment
for his. Our rulings are not based on
a determination of whether we believe
that the licensee has acted wisely or
whether we would have proceeded as he
did. Rather, we limit our inquiry to a
determination of whether, In the light of
all of the facts and circumstances pre-
sented4 it is apparent that the licensee
has acted bi An arbitrary or unreason-
ablefathioo.
45. The danger of an unwise Crirn-
mission decision in this area to conatrier-
ably reduced by the fact that no sanction
is imposed on the broadcaster for isolated
fairness violations during the course of
the license term. That licenses is simply
asked to make an additional proNnfnn
for the opposing point of view, and this is
certainly n0% too much to ask of a U-
censee who has been found to be negll-
gent In meeting his fairness obligations.
Indeed, it is to the benefit of bath the
licensee and his 110--ins audience if
broadcasters are faformed of their fair-
ness duties 804 given an opportunity to
fulfill them on a timely basis.
D. The cwnplais* peeeedsre. 46. It has
sometimes been suggested that fairness
complaints should not be considered at
the time they are presented to the Com-
mislon, but with few exceptions should
simoly-be placed In the station's license
file to be reviewed in connection witn its
renewal application, This review would
focus on the station's overall perform-
app for the license period, and not on
the specific facts of Individual fairness
violattans. Some have argued that this
approach would have two major advan-
tages over present procedures. First, It
might considerably reduce the Comxnls-
sian's administ:wthe workload, since
complaints would not be given any con-
Adoration unless there were a number of
cotwlatnts against a single station
which indicated a serious pates'a.ot vio-
lations. Sepondly. It has been suggested
that by avoiding a detall d review of In-
diaduel ooe gdetnte the Commission
would be able to Insure that it did not
become too deeply tnu+dved In the day-
to-day operatimaa of broadcast journal-
13M
47. After giving euedU considsvAlon
to this proposal, we bmew that our pres-
eat procedure of revteedag colull"i Its
on an ongemag blade is pacerabs" First.
we do not bdWm ft amid be possible to
make an "osemlr assesassent of licensee
perfornmaoe at renewal time without
considering the apeellioe of individual
complaints. It simpy would not be possi-
ble to look at the enta ees1Dlatats on ills
and make asp lmewht 's aseresoent
of licensee perfcranmea Seeond ly, we
view conaidsesbs of fairness oompli-
ance only at renewal time as an 106de-
quste "defused at the paA me's para-
mount tight to be informed and believe
that we should continue our ongoing ef-
fort (through the complaint process) to
advance the public's interests in receiv-
ing timely information on public imies.
This, we believe, will provide an, op-
portunity to remedy violations before a
?'Some have argued that "(t)he practical
effect of this approach (review at time of re.
newel ( to fairness L that the doctrine would
have been abandoned." Barrow, The Equal
Opportunities and Fairness Doctrine In
Broadcasting, 37 Cia. L. Rev. 447, 493 (104101.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
STAT
flagrant pattern of abuse develops. In ad- act. Rather, we expect the complainant
dition to the benefits which now to-the to state his reasons for concluding that
listening public, this procedure aids the in Its other programming the station has
broadcaster by helping to head of! prac- not presented contrasting views on the
tices which could (if left uncorrected) issue.
place his license In Jeopardy. For this 32. This does not require, as some ap-
reason, we believe that most licensees pear to believe, that the complainant
welcome the opportunity to receive guid- constantly monitor the station. Although
ance on specific fairness matters on a some
a controversial avi gsa particular la a interest
timely basis.
48. Finally, a review only at renewal presentation of It have monitored such
time would remove a major incentive for a station for periods of time and thus
interested citizens to file fairness com- been able to offer conclusive evidence
plaints-that is, the chance to have an that contrasting views were not pre-
opposing view aired over the station be- sented, the Commission realizes that
fore the issue has become stale with the such a requirement for every individual
passage of time. At present, citizen com- complainant would be an unduly bur-
plaints provide the principal means of densome one. While the complainant
insuring compliance with the fairness must state the basis for this claim that
doctrine. If we were to remove the pos- the station has not presented contrasting
sibility that these complaints might re- views, that claim might be based on
sult in broadcast time for a neglected an assertion that the complainant is
point of view, we might well have to rely a regular listener or viewer; that Is,
on government monitoring to carry out a person who consistently or as a
our investigative role. Such monitoring, matter of routine listens to the news.
of course, would represent an unfortu- public affairs and other non-entertain-
nate step in the direction of deeper gov- ment programs carried by the station
ernment involvement in the day-to-day involved. This does not require that the
operation of broadcast journalism. complainant listen to or view the station
49. There appears to be a misunder- 24 hours a day. seven days a week. One
standing on the part of some persons as example of a "regular" television viewer
to the manner in which the Commission would be a person who routinely (but
administers the complaint process. On not necessarily every day) watches the
the one hand, some complainants have evening news and a significant portion of
asserted that the Commission's proce- the public affairs programs of a given
dures impose too great a burden on the station. In the case of radio, a regular
complainant; on the other, some li- listener would include a person who, as a
censees and networks have claimed that matter of routine, listens to major repre-
our application of the doctrine may im- sentative segments of the station's news
pose such a heavy burden on them as to and public affairs programming. Also,
discourage presentation of subjects which the assumption that a station has failed
may be found to involve controversial Is- to present an opposing viewpoint would
be strengthened if several regular viewers
unless it believes it is necessary to do so
in order to establish its compliance with
the fairness doctrine with respect to the
issue involved The complaint must spec-
sues of public importance. or listeners join together in a statement
50. We believe a brief explanation and they have not heard a presentation
As we restatement stated of in our our "proceduresFairnesss Is in order. Doctrine . that of that viewpoint. Complainants should
Primer," 40 FCC 598 (1964) ? '. specify the nature and extent of their
viewing or listening habits, and should
Where complaint Is made to the Commis- indicate the period of time during which
Mon the ubmit CoainmWlnf l aspects co ca complainant
(1) they have been regular members of the
the par- station's audience. We do not believe
the to s s particular station in involved; n (2) 4) Indicating
e
ticular Issue of a controversial nature dis- this requirement to be unduly burden-
cussed over the air; (3) the data and time some. as contrasted to the heavy burden
when the program was carried; (4) the basis we would place on all stations if we re-
for the claim that the station has presented quired them to provide evidence of Cofn-
only one side of the question; and (5) pliance with the fairness doctrine based
whether the station bad afforded, or has plans on complaints which assert merely that
t afford, opportunity for the proo.ncs- one program has presented only one side
fi op of contrasting na viewpoints. points. Id. at 600. of an issue.
51. The Commission requires that a 53. The fact that regular viewers or
complainant state that "basis for the listeners have not .been exposed to an
one side of the question" because the elusive evidence that the viewpoint fins
fairness doctrine does not require that not been presented, but it does indicate
each program present contrasting views that there is a reasonable basis for the
on an issue; only that a licensee in its viewer's conclusion that such is the case.
overall programming afford reasonable See Alan C. Phelps, 21 FCC 2d 12 11969).
opportunity for presentation of contrast- Accordingly, we believe that it is a suffi-
ing views. Thus, when a complainant dent basis for a Commission inquiry to
states that he heard or viewed a program the station.
which presented only one side of an 54. In responding to such an inquiry,
issue, he. has not, on the basis of this a station is not required to research
statement alone. made a fairness com- everything It has broadcast on the sub-
plaint upon which the Commission can ject over a considerable period of time,
"Because of the many developments which
have taken place since 1964. we plan to issue
a new fairness "Princes" in the near future.
ify the date and time of the particu;t
program or programs which presented
one side of the issue. If the complain:
specifies only a single program, it would
be suilicient for the licensee to furnlsi
evidence of having broadcast another
program which did afford a reasonably
opportunity for contrasting views. Thus.
the licensee is not expected to make a
showing as to his overall programming,
but merely that he has provided con-
trasting viewpoints an opportunity to be
heard which is reasonable when consid-
ered in relation to the specific programs
complained of."" In this regard, it should
be kept in mind that the fairness doctrine
does not require exact equality in the
time provided for contrasting points of
view, but only that a reasonable oppo: -
tunity be afforded for their presentatrc.
55. After a complaint has been filed.
some licensees have found it to be some-
thing of a burden to go back throuit
their flies and to question their news staff
so as to construct a record of the pro-
gramming they have carried or. a given
issue. For this reason, some licensees now
keep a record of their public issue pro-
gramming throughout the period of the
license term. It should be a relatively
simple matter for these stations to re-
spond to a citizen complaint or to a Com -
mission inquiry. Also, the keeping of sucl,
records should make it much easier for
a licensee to satisfy himself that his sta-
tion has achieved fairness on the various
issues presented. While this Commission
does not require the maintenance of a
fairness log or diary, we expect that li-
censees will be cognizant of the program-
ming which has been presented on their
stations, for it is difficult to see how a
broadcaster who is ignorant of such clat-
ters could possibly be making a conscious
and positive effort to meet his fairness
obligations.
56. The fifth requirement set forth in
the above excerpt from our Public No-
tice-relating to "whether the station
has afforded or has plans to afford. an
opportunity for the presentation of con-
trasting viewpoints..-also may require
explanation. We have found in many
cases that if the complainant first ad-
drenes his coaspa&nt to the station, the
licensee is able to provide an explanation
satisfactory to the complainant of what
steps it has taken to beaatlcast contrast-
ing views, or what atom it plans to take
to achieve this end. It is for this reason
that we ask comp nts first to go tt,
here is the one which we will follow In the
ordinary case. It is possible, however, that In
some circumstances the Commission may And
It necessary to Inquire Into a station's total
programming effort'on an Issue or at least
a significant portion of that programming.
Also. in cases where a message on one aide of
an issue has obviously been repeated many
times (as In "editorial" advertising Lam-
palgn), the complainant could not be ex-
pected to provide a fist showing the time
and date of each presentation. This Informa-
tion would have to be provided by the lt-
censee in his response to a Commission
Inquiry
STAT
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
STAT
station or network falls to answer the
complaint at all, or to provide what com-
plainant considers to be a satisfactory
answer, then the complainant should ad-
dress the complaint to the Commission.
enclosing a copy of the .complaint he sent
to the station and a copy of its reply-
or, if no response has been received after
a reasonable period of time, so stating.
57. One further matter with respect to
complaints and licensee responses there-
to deserves some discussion. It would be
a great assistance to the Commission,
mina would greatly expedite the handling
of complaints, if all parties would be as
specific as possible in defining the con-
troversial public issue involved in the
programs complained of. Also, it would
save everyone concerned a great deal of
time if, in listing those presentations on
each side of an issue, parties would In-
clude only those programs which are
truly germane to that specific Issue"
E. Fairness and accurate news report-
ing. 58. In our 1949 Report on Editor-
ializing, we alluded to a licensee's obliga-
tion to present the news in an accurate
manner:
It must be recognized, however. that the
licensee's opportunity to express his own
views . ' ' does not Justify or empower
any licensee to exercise his authority over
the selection of program material to distort
or suppress the basic factual Information
upon which any truly fair and free discus-
sion of public Issues must necessarily de-
pend ? ? ? . A licensee would be abusing
his position as public trustee of these Im-
portant means of mass communication were
he to withhold from expression over his
facilities relevant news or facts concerning a
controversy or to slant or distort the pres-
entation of such news. No discussion of
the Issues Involved In any controversy can be
fair or In the public Interest where such
discussion must take place in a climate of
false or misleading Information concerning
the basic facts of the controversy. 13 FCC at
1254-55.
It is a matter of critical importance to
the public that the basic facts or ele-
ments of a controversy should not be
deliberately suppressed or misstated by a
licensee. But, we must recognize that
such distortions are "so continually done
not considered ignorant or in- siesta should be recognized for west they Wilderness Society, si FCC gel 720, W.
competent, that it Is rarely possible, on are-editorials paid for by the sponsor. recortaideratfen denied 32 PCC 3d 714
adequate grounds, conscientiously to We can see no reason why the fairness (19711.
stamp the-misrepresentations as morally doctrine should not apply to these 64. In the face of such di cultiei.
culpable ? ? 0." J. S. Mill, "On Liberty" "editorial advertisements" in the same what guidance can the CommiNion give
31 (People's ed. 1921). Accordingly, we manner that it applies to the cornmen- to its licensees and to the public? Probes-
- tart' of a station announcer. At present. sot Louis Jaffe has otered the following
reflect deliberate distortion. See "The
Selling of the Pentagon," 30 FCC 3d 150
(1971).
III. Application of the lairnrxas doc-
trine to the broadcast of paid anfiouece-
ments. 59. We turn now to the fairness
doctrine. problems which stem from the
broadcast of paid announcements. For
the purpose of this discussion, we will
consider three general categories of such
announcements: (1) A.ivertisements
which may properly be clasetCed as "edi-
torial" in nature: (2) advertisements for
commercial products or services; and (3)
advertisements included in the Federal
Trade Commission's so-called "counter-
commercial" prop.
TLe role of advertising in broadcasting
and Its relationship to the licensee's
responsibility to broadcast in the public
interest was considered by the Federal
Radio Commission In 1929.3 F.R.C. Ann.
Rep. 32 (1929). It seems to us that the
Commission at that time placed adver-
tising in its proper context and perspec-
tive. It first noted that broadcasters are
licensed to serve the public and not the
private or selfish interests of individuals
or groups. The Commission than akted
that "itlhe only exception that can be
made to this rule has to do with adver-
tising; the exception, however, is only
apparent because advertising furnishes
the economic support for the service and
thus makes it possible." Id. "The Com-
mission ? ? e must recognize that. with-
out advertising, broadcasting would not
exist, and must confine Itself to limit-
ing this advertising In amount and in
character so as to preserve the largest
possible amount of service for the pub-
lic." Id. at 35. Accordingly, we believe
that any consideration of the applicabe-?
sty of the fairness doctrine to broadcast
advertising must proceed with caution e0
as to ensure that the policies and stand-
ards which are formulated In this area
will serve the genuine purposes of the
doctrine without undermining the eco-
nomic base of the system.
A. Editorial advertising. 80. Some
"commericials" actually consist of direct
meaningful contribution to the public
debate, and we believe that the fairness
doctrine should be fully applicable to
them.
82. Eriitorla+l advertisements may be
difficult to Identify if they are sponsored
by groups which are not normally cion-
sidared to be engaged In debate on con-
troverniai issues. This problem Is most
likely to arise in the context of promo-
tional or institutional advertising; that
Is, sdveietising designed to present a
favorable public image of , particular
corporation or industry rather than to
sell a p wit. Such advertising is, of
course, a legitimate coausrer(dal practice
and ordinarily d" not involve debate
on public Issue. Pea. e.g.. "Anthony R.
Martin-Trigona," 19 FCC 3d 630 (1999) .
In some cases. however, the advertiser
may seek to play an obvious and mean-
ingful role In public debate. In such in-
stances, the fairnw doctrinw-Including
the obligation to provide free time in the
circumstances described In the "Cull-
man" decision-apnUes.
63. In the past. we have wrestled with
the application of the fairness doctrine
to institutional advertisements which ap-
peared to have discussed public Issues,
but which did not exalteltly address the
ultimate matter in controversy. An ex-
ample of this problem may be found in
the so-called "ESAO" case. "National
Broadcasting Co. " 30 FCC 3d 04$ (1971).
Here, the Commission found that certain
commercials for Standard Oil Company
constituted a discussion of .one side of a
controveiraial Issue involving eaastruction
of the Alaskan pipeline. Tutu advertise-
ments did not explicitly mention that
pipeline, but they did present what could
be termed arguments In support of Its
construction. Specifically. we found that
the advertisements argued that the na-
tion's urgent need for oil noeselsitated a
rapid development of reserves on Alaska's
North Slope. Id. at 843. The oomseedals
also referred to the ability of an MOW
a.mlii-te to build a pipeline In the far
north. and yet "preserve the ecology."
Ibid. As we noted on rebsort g, the prob-
lem involved ben "is Indeed a ditllsu1t
and substantial commentary on Impor-
tant public issues. For the purpose of
eanfortal aaverrismg reprcxmw UW a suggestion:
useful or appropriate for us to invest!- small percentage of total commercial
gate charges of news misrepresentations time, and we cannot believe that an ap- flit to not easy to formulate a fully antra.
in the absence of substantial extrinsic placation of fairness here would have any factory rule for appIytns the fairness doo-
aerious effect on station, revenues. trine to advertising. Its appllnLon is most
evidence or documents that on their face obvious where the edvertieement is explicitly
e. One station. In responding to a com-
plaint concerning the issue of gasoline and
air pollution, provided the Commission with
a list of programs which included the follow-
Iug: "The Great Red Apes." "Turtle of the
Sulu Sea," "The Night of the Squid," and
"Return of the Sea Elephants." While such
programming obviously would provide in-
formation on a part of the world's environ-
ment, It may not be germane to any specific
iu:ue concerning gasoline and air pollution.
61. An example of an overt editorial controversial. But the 14veewer assay avoid
advertisement would be a thirty or sixty the explicit precisely to forestalls a claim of
second announcement prepared and rebuttal. or because he believes the sub-
osed liminal is more effective. It should suffice
..
i,-ti
..
g n
on
pp
sponsred by an o
ainendnient to override a decision of the j j!-acknowledged coat:we sy, Sat.. The
Supreme Court legwiizing abortion under Editorial Responsibility of the Broadcaster:
certain cIrt:am..tai,ces. While the brev- P-eflecttons on Fairness and Access, 88 Han.
ity of such announcements might make l- Rev. 768.777-78 (IM).
it difficult to develop the issue in great We believe that this suggestion comes
detail, they could. iicvertheaess, make a close to the mark, but what we are really
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
NOTICiS 26381
troublesome If not have
It had
concerned with is an obviou3 tion in public debate and not a subjective issue, thercommercials could io not realistI- been particularly precedent
judgment as to the advertiser's actual tally be viewed as part of a public debate. been limited to cigarette advertising as
Intentions. Accordingly. we expect our 9 FCC 2d at 938. We rejeeted this argu- the Commission originally Intended .93 In
licensees to do nothing more than to meat and insisted that the issue should 1971, however, the D.C. Circuit ruled
make a reasonable, common sense be defined in terms of the desirability of that the cigarette precedent could not
judgment as to whether the "advertise- smoking, Id. With the Issue defined in logically be limited to cigarette adver-
ment" presents a meaningful statement this fashion, It was a simple mechanical Using alone. "Friends of the Earth v.
which obviously addresses, and advocates procedure to "trigger" the fairness doc- FCC," 449 F. 2d 1164 (D.C. Cir. 1971).
a point of view on; a controversial issue trine and treat all cigarette advertise- In this decision, it was suggested that
of public importance. This determine- ments-regardless of what they actually high-powered cars pollute the atmos-
tiun cannot be made in a vacuum; In said-as being presentations on one side
addition to his review of the text of the of a controversial issue. It seemed to be
ad, the licensee must take into account clear enough that all cigarette advertise- stations were hou to broadcast t nt sinokin
his general knowledge of the issues and ments suggested that the use of the prod- without incurring any obligation
on a favor in of Commission smoking. This
based te in
arguments In the ongoing public debate. uct was desirable. to holding Carry arguments
Indeed, this relationship of the ad to the 67. In retrospect, we believe that this holdinoa that the issue was no singer con-
veretal, cigarette Advertising and Anti-
debate being carried on In the commu- mechanical approach the fairness doc- trominati
nity is critical. If the ad bears only a trine represented a serious departure Smoking presentation, 27 FCC 2d 453 (1970),
tenuous relationship to that debate, or from the doctrine's central purpose aff'd sub now. Larus k Brother Co. v. FCC.
one drawn by unnecessary inference, the which, of course, is to facilitate "the 474 F. 2d 870 (4th Cit. 1971).
drawn by unnecessary inference, the development of an informed public opin- u In the conclusion to our tried second to make opinion
it
fairness doctrine would clearly not be ion." "Report on Editorializing," 13 FCC in holding wet based more it
applicable. 1246, 1249 (1949) (emphasis supplied). clear the public that at oev health choldi g wss than on 'con
65. The situation would be different, We believe that standard product tom- specifics of the Fairness Doctrine." WCBSs-
however, If that relationship could be mercials, such as the old cigarette ads. TV, 9 FCC 2d 921. 949 (1967). We recognized
shown to be both substantial and obvi- make no meaningful contribution to- that, in view of the overwhelming evidence of
ous. For example, if the arguments and ward Informing the public on any side danger to the public health, the question
-how the
views expressed in the ad closely paral- of any Issue. Indeed, as the D.C. Circuit presented comma commercials is consistent with
lel the major arguments advanced by Court of Appeals succinctly stated: the riage or such obligation o operate in the public inter.
with
part188ns On OIIC side or the other of a FronwUng the was of a product L not est." Id. We felt, however, that the queetU".,
public debate, it might be reasonable to ordinarily associated with any of the in- of removing these commercials from the sir
conclude that one side of the issue in- terests the First Amendment seeks to pro- was one Congress had reserved to itself, and
volved had been presented thereby rats- test. As a rule, it does not affect the political that the only remedy we were free to intple-
Ing fairness doctrine obligations. Bee, process. does not contribute to the exchange ment was one along the lines suggested by
e g.. Media Access Project (Georgia of ideas, does not provide information on the fairness doctrine. The fairness doctrine,
Power), 44 FCC 2d 755, 761 (1973). We matters of public importance, and Is not, therefore, served "chiefly to put cash on
except perhaps for the ad-men, a form of these policy bones by providing a familiar
fully appreciate that, in many ca6e8, this individual self-expression ? * Accordingly, mold to define the general contours of the
judgment may prove to be a dl cult one eve, it haute) commercials are pro- mold ttoa Imposed." general c v. FCC. the Banzhaf 405
and individual licensees may well reach tected speech, we think they are at best a F. 2d at 1093. Subsequent to oar action in obliga differing conclusions concerning the same negligible part of any exposition of idea the Cigarette caw, the Congress developed a
advertisement. We will, of course, re- and an of ? ? ? slight social value as a more complete remedy of its own by ban.
view these judgments only to determine step to truth ? ? ?. Banzhaf v. FCC. 406 F. Wing the broadcast of cigarette ads entirely
their rem oriablenesd and good faith un- 2d 1082, 1101-02 (D.C. Ctr. 1961), quoting in the Public Health Cigarette Smoking Act
der the particular facts and circum- 672 (1942)nsky v. New Hampshire. 315 US. 668, of 1909 a" generally Capital Broadcasting
stances presented and will not rule 572 (1' Co. V. Mitchell. 333 F. Supp. 582 iDD.C.
against the licensee unless the facts are In this light, it seems to us to make lit- 1971), aff'd mom. sub note. Capital Broad-
so clear that the only reasonable con- tle practical sense to view advertise- casting Co. v. Kteindienst. 405 U.B. 1000
clusion would be to view the "advertise- meats such as these as presenting a with a. cafwi si the future we we to tba presenteaf by the
went" as a presentation on one side of meaningful discussion of a controversial cigarette controversy. it may be more appro.
a specific public Issue. issue of public importance. priate to refer the mutter to Congress for
B. Advertisements for commercial 68. In our view, an application of the resolution. For Congress is in a far better
products or services. 68. Many advertise- fairness doctrine to normal product position than this Commission to develop
meats which do not look or sound like commercials would, at best, provide the expert information on whether particular
editorials are, nevertheless, the subject public with only one side of a public broadcast advertising Is dangerous to health
of fairness complaints because the busi- controversy. In the cigarette case, for or otherwise detrimental to the public tnter-
mess, product, or service advertised is it- example, the ads Tun by the Industry est. Furth?rmice?, it to questionable whether
this Commlas6on has a mandate so broad as
self controversial. This may be true even did not provide the glistening public with to permit it -to scan the airwaves for otfen-
though the advertisement does not men- any information or arguments relevant sire material with no more discriminating
tion any aspect of a controversy. Com- to the underlying iss(le of smoking and a lens than the 'public interest' or even the
mercial announcensents of precisely this health. At the time of our ruling, Cam- 'public health.'" Baaahat T. FCC, 406 P. 2d
type led to the current debate over fair- missioner Loevinger suggested that we at 1000.
ness and advertising. This debate began were not really encouraging a balanced ' At the time, cigarettes were thought to
In 1987 with our decision to extend the debate but, rather, were simply hnpoe- be a unique product because their ''normal
use has been found by congrswlonal and
fairness doctrine to advertisements for ing our view that discouraging amoldni other Governmental action to pose ? ? ? a
cigarettes. WCAS-TV, 8 FCC 2d 381, stay Wes in the plc, interest. 9 FCC 2d at serious threat to general public health ? ' ?.
and reconsideration denied 9 FCC 2d 921 953.%L While such an approach may have 9 FCC 2d at 943. In a concurring opinion.
(1967). These advertisements, like many represented good policy from the stand- Commissioner Johnson expreawa the view
others, addressed themselves solely to the point of the public health, the precedent that "Ib(y drawing the 1100 at cigarette ad.
desirability of the product. They tended is not at all in keeping with the basic vertising we have framed s ,distinction fully
to portray "the use of the particular purposes of the fairness doctrine.' as bound and durable as those in thousands
cigarette as attractive and enjoyable of other rules laid down by courts every day
? ? ?," but avoided any mention of the since the common law system began." Id. at
then rasing smoking-health contro- ? Following the Congressional ban on 958. In alarming our ruling, the D.C. Circuit
cigarette advertising, the Commission was agreed that cigarettes were. In tact. ''unique."
veray. 8 FCC 2d at 362. At the time, criticized even more strongly for taking aides Banzhaf v. FCC, 403 F. 2d 1082, 1097 n. 63
broadcasters argued that. In the absence on this Issue. At that time, we ruled that ID.C. Cir. 190$).
$LDERAL REGISTER, VOL. 39, NO. 139-THURSDAY, JULY 18, 1974
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
phere more than low-powered cars.' It
was then determined that the fairness
doctrine was triggered by the advertise-
ments there involved because they ex-
tolled the virtues of high-powered cars
and thus glorified product attributes ag-
gravating an existing health hazard,
namely air pollution. The commercials,
of course, made no attempt at all to dis-
cuss the product in the context of the
air pollution controversy. If these ad-
vertisements presented one point of view
on the issue, then, by the same reasoning,
the "contrasting" viewpoint must have
been similarly presented In ads for low-
powered cars. The problem with this
kind of logic Is that it engages both
broadcasters and the Commission in the
trivial task of "balancing" two. sets of
commercials which contribute nothing
to public understanding of the under-
lying issue of how to deal with the prob-
lem of air pollution."
70. We do not believe that the under-
lying purposes of the fairness doctrine
would be well served by permitting the
cigarette case to stand as a fairness doc-
trine precedent. In the absence of some
meaningful or substantive discussion,
such as that found in the "editorial ad-
vertisements" referred to above, we do
not believe that the usual product com-
mercial can realistically be said to in-
form the public on any side of a contro-
versial issue of public importance. It
would be a great mistake to consider
standard advertisements, such as those
involved in the "Banzhaf" and "Friends
of the Earth," as though they made a
meaningful contribution to public debate.
It is a mistake, furthermore, which tends
only to divert the attention of broadcast-
ers from their public trustee responsi-
bilities in aiding the development of an
informed public opinion. Accordingly, in
the future, we will apply the fairness doc-
trine only to those "commercials" which
are devoted in an obvious and meaning-
Iul way to the discussion of public issues.
C. The Federal Trade Commission
proposal. 71. The Federal Trade Com-
mission has filed a statement in this in-
quiry which proposes the creation of a
right of access to respond to four cate-
The case also Considered a comparison of
high-test and "regular" gasoline.
The Court has further suggested that the
cigarette precedent might logically have to
be extended out of the health area entirely
to cover some labor-management disputes.
Retall Store Employees Union v. FCC. 438
P. 2d 248 (D.C. Cir. 1970). The Court. how-
ever, questioned whether such an application
would truly serve the underlying purposes of
the fairness doctrine:
"Stripped to Its essentials, this dispute
is one facet of the economic warfare that
is it recognized part of labor management
relations ? ? ?. Part of the Union's campaign
was publicity for Its boycott; part of manage-
ment's arsenal was 'advertising to persuade
the public to patronize its stores. If viewed
in this light, it could well be argued that the
traditional purposes of the fairness doctrine
are not substantially served by presentation
of advertisements Intended to less inform
than serve merely as a weapon In a labor-
management dispute." Id. at 259.
gorier of commercial announcements.
Very generally. these categories are as
follows: (a) Those advertisements that
explicitly raise controversial issues; (b)
those that raise such Issues implicitly;
(c) those that make claims based on
scientific premises that alit in dispute;
and (d) those that are silent about nega-
tive aspects of the advertised products.
72. We have already discussed the first
two categories and the applicability of
the fairness doctrine with respect thereto.
One of our maJor difficulties with the
FTC's categories Is-that they seem to
include virtually all existing advertising.
As one commentator has stated, "it is
hard to imagine a product commercial
so pure that it would not be viewed as
Implicitly raising some controversial is-
sue or resting upon some disputed scien-
tific premise or remaining silent about
negative aspects of the product." Putt,
"Fairness and Commercial Advertising:
A Review and a Proposal," 6 U.SF.L. Rev.
215, 248 (1972). We believe that the adop-
tion of the FTC proposal-wholly apart
from a predictable adverse economic ef-
fect on broadcasting-might seriously
divert the attention and resources of
broadcasters from the traditional pur-
poses of the fairness doctrine. We are
therefore not persuaded that the adop-
tion of these proposals would further "the
larger and more effective use of radio
in the public Interest a ? ?" 47 U.S.C.
Section 303(g), or contribute in any wny
to the promotion of genuine debate on
public issues.
73. We do not believe that our policy
will leave the public uninformed on im-
portant matters of Interest to consumers.
Certainly, we expect that consumer is-
sues will rank high on the agenda of
many, if not most, broadcasters since
their importance to the public Is sell-
evident. But our point is that the de-
cision to cover these and other matters
of similar public concern appropriately
lies with individual licensees in the ful-
fillment of their public trustee respon-
sibilities, and should not grow out of a
tortured or distorted application of fair-
ness doctrine principles to announce-
ments in which public issues are not
discussed.
74. A matter which relates directly to
the FTC proposal was considered in the
so-called "Chevron" case. Alan F. Neek-
ritz, 29 FCC 2d 807 (1971). reconsidera-
tion denied 37 FCC 2d 528 (1972). This
case involved a claim made by Chevron
that Its P-310 additive would reduce ex-
haust emissions and contribute to Cleaner
air. Chevron did not claim that its prod-
uct would solve the air pollution problem
caused by automobiles, but did extol the
product's virtues in reducing pollution.
Complainants argued that the claim was
controversial within the meaning of the
fairness doctrine. They supported this
argument by pointing to a pending FTC
complaint which alleged that the claims
made on behalf of F-310 were false and
misleading. 29 FCC 2d at 818. While the
F-310 claim obviously did relate to a
matter of public concern, we do not be-
lieve that the ads engaged in an obvious
and meaningful discussion of a contro-
versial Issue of public importance. As we
stated in "Chevron,"
making a claim foe a product Is not the same
thing as arguing a position on a oontrorer-
atal Maus, of public importance. That the
claim is alleged to be untrue or partially
d? eptiv does not change Its nature ? ? ?.
It would ill suit the purposes of the fairness
doctrine, designed to illumine significant
controversial issues, to apply it to claims of
a product's edicacy or social utility. The
merits of any one gasoline, weight reducer.
breakfast cereal or headache remedy-4o
name but a few examples that come readily
to mind-do not rise to the Jewel of a etg-
nificant public issue ? ? A. We think this
conclusion is required not only as a matter
of reason, but also of practical necessity if
fairness is to work for the public and not to
its detriment. Alan P. Neckrita, 29 FCC 2d at
812.
75. We do not believe that the fairness
doctrine provides an appropriate vehicle
for the correction of false and mislead-
ing advertising. The fairness doctrine is
only one aspect of the public interest.
A Congressionally-mandated remedy for
deceptive advertising already exists in
the form of various FTC sanctions.` If
an advertisement is found to be false or
misleading, we believe that the proper
course is to ban it altogether rather than
to make its claims a subJect of broad-
cast debate. We believe that the ap-
proach to advertising outlined here will
do much to reduce the confusion which
has existed in this area. Under the gen-
eral fairness doctrine, broadcasters-as
trustees for their communities--are re-
quired to make a positive effort.to im-
plement a meaningful discussion of ma-
Jor public issues and in practical effect
consumer issues will receive a significant
amount of coverage. But at the same
time, we do not believe that it is in the
public interest to stretch the fairness
doctrine in an artificial way by applying
it to commercials which play no mean-
ingful or significant role in the debate of
controversial issues.
76. In the separate but related area
of deceptive advertising, we believe that
the public interest can be best served
through the existing. Coss u.sioaially-
mandated scheme of regulation, and by a
conscientious effort on the pest of broad-
casters to meet their obligation in this
area.'"
IV. Access generally to the broadcast
media for the discussion of public issues.
77. Various parties to this proceeding
have argued that, quite sside from the
traditional fairness doctrine, there
should be a system of mandated access.
either free or paid, for persons or groups
wishing to express a viewpoint on a con-
troversial public issue. In the "BEM"
w The problem may be further alleviated
by the FTC's new17 developed ad substantia-
tion program. Bee 36 PR 12038 (1971) ; and
generally. Note, The FTC Ad Substantiation
Program, 81 Goo. LJ. 1427 (1973).
wiles Licensee Besponalbtltty with Respect
to the Broadcast of False. Misleading or De-
ceptive Advertising. 32 FCC 26 39e (1071):
Consumer Aaeoclation of District of Colum-
bia, 32 FCC 2d 400 (1971).
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
case," the Supreme Court made it clear
that such access is not a matter of either
constitutional or statutory right. The
Court noted, however, that Congress has
left the Commission with "the flexibility
to experiment with new ideas as chang-
ing conditions require." Id. at 122. It was
further stated that "at some future date
Congress or the Cbmmission-or the
broadcasters-may devise some kind of
limited right of access that is both prac-
ticable and desirable." Id. at 131.
78. Our studies during 'the course of
this inquiry have not disclosed any
scheme of government-dictated access
which we consider "both practicable and
desirable." We believe, to the contrary,
that the public's interest In free ex-
pression through broadcasting will best
be served and promoted through con-
tinued reliance on the fairness doctrine
which leaves questions of access and the
specific handling of public issues to the
licensee's journalistic discretion. This
system is far from perfect. However, in
our judgment. It does represent the most
appropriate accommodation of the var-
ious First Amendment Interests involved,
and provides for maximum public en-
lightenment on issues of significance
with a minimum of governmental intru-
sion into the journalistic process.
79. In our opinion, this Commission
would not be justified in dictating the
establishment of a system of access to
particular spokesmen on either a free or
paid basis. If the access were free, the
government would inevitably be drawn
into the role of deciding who should be
allowed on the air and when." This gov-
ernmental involvement in the day-to-
day processes of broadcast journalism
would, we believe, be antithetical to this
country's tradition of uninhibited dis-
semination of ideas. With regard to the
suggestion that we establish a system of
paid access, we believe that "the public
interest in providing access to the mar-
ketplace of 'ideas and experiences' would
scarcely be &erved by a system so heavily
weighted In favor of the financially af-
fluent, or those with access to wealth,"
BEM, 412 U.S. at 123, or wherein "money
alone determines what issues are to be
aired, and In what format," "Business
'Executives' Move for Vietnam Peace v.
FCC." 450 P. 2d 842, 666 (D.C. Cir. 1971)
(McGowan, J? dissenting). This problem
would in no way be alleviated by the ap-
plication of the fairness doctrine, in-
. Columbia Broadcasting System, Inc. v.
Democratic National Committee, 412 U.S. 94
(1973).
a The only alternative to governmental In-
volvement of this type would appear to be
access on a riot-come-first-served basis (or
by lot or drawing). This system would, how-
ever, give no assurance that the most im-
portant Issues would be discussed on a timely
basis. Moreover, as the Supreme Court ob-
served in BED[, "itlhe public Interest would
no longer be 'paramount' but rather sub-
prdinats to private whim especially
since ? ? ? a broadcaster would be largely
precluded from rejecting editorial advertise-
ments that dealt with matters trivial or in-
elgaificaut or already fairly covered by the
brosdoaeter." 412 U.S. at 124.
eluding the Cullman corollary, to edi-
torial advertising, since the agenda for'
public debate would be set solely by those
financially able to take advantage of the
right to purchase time In the first in-
stance. Furthermore, there would be ele-
ments of unfairness in applying the Cull-
man principle In this situation, for it
would require the licensee to correct an
imbalance-at its own expense-which It
had not created. On the other hand, if
Cullman were suspended in the case of
editorial advertisements, the public
would be left in many if not most in-
stances with one-sided presentations of
those issues which the financially able
chose to discuss,
80. We have given serious thought to
the suggestion that broadcasters be re-
quired to maintain a policy of examin-
ing and considering-but not necessarily
accepting-editorial advertisements ten-
dered for broadcast. While this sugges-
tion has some surface appeal, we believe
that such a requirement would, in our
judgment, inevitably draw this Commis-
sion into deciding a broadcaster's good
faith in accepting, or rejecting proffered,
material and into adjudicating compet-
ing claims to buy limited time on the
basis of criteria that would necessarily
favor one person's speech over another's.
This is precisely the sort of governmen-
tal intrusion which we have sought to
avoid in developing and administering
the fairness doctrine, and why we believe
that our present policy of leaving such
decisions initially to the editorial discre-
tion of the licensee, though Imperfectt
must be maintained. As Chief Justice
Burger stated for the Court in BEM:
For better or worse, editing is what editors
are for; and editing Is selection and choice
of material. That editors-newspaper or
brosdo et--can and do abuse this power is
beyond doubt, but that is no reason to deny
the discretion Congress provided. Calculated
risks of abuse are taken in order to preserve
higher values. 412 V.B. at 124-125.
81. While we have rejected the sug-
gestion that the Commission should es-
tablish a system of mandated access
(either free or paid), we certainly do
not mean to suggest any disapproval of
efforts by broadcasters to provide for ac-
cess to their stations. Indeed, the fairness
doctrine itself insures that many citizens
will be afforded a type of access, for the
licensee
I. required to "present representative coin-
munity views and voices on controversial is-
sues which are of Importance to (its) lis-
teners," and it is prohibited from "excluding
partisan voices and always itself presenting
views in a bland, inoffensive manner." 26 FCC
2d at 222. A broadcaster neglects that obliga-
tion only at the risk of losing his license.
BEM, supra at 131.
Under this system, many representative
community spokesmen do express their
views in newscasts, Interviews, call-in
programs, editorial replies, and through
various other formats. Thus, while no
particular individual has a guaranteed
right of access to the broadcast micro-
phone for his own self-expression, the
public as a whole does retain Its "para-
mount" right "to receive suitable
access to social, political, estht.ic,
moral, and other Ideas and exner:-
ences ? ? ? " "Red Lion Biuao-
casting Co. v. FCC," 395 U.S. at 3J-O
(emphasis supplied). In a real s(iise.
therefore, there is a "right of access."
in broadcasting, that right being guaran-
teed the listening and viewing public.
However, in order to secure this right
to the people, and to avoid unwarranted
governmental supervision, Congress has
delegated the primary responsibility for
the selection of particular spokesmen and
specific program material to private
licensees who are required to serve as
trustees for the public. As the Suprea?:c
Court stated in its BEM decision.
This policy (of concentrating the al!nrr-
tion of journalistic priorities in the licensee,
gives the public some assurance that the
broadcaster will be answerable It he falls ?.o
meet Its legitimate needs. No such acco'.iuu.-
blllty attaches to the private individual,
whose only qualifications for using the broad-
cast facility may be abundant funds ane e
point of view. To agree that debate on pubi Lc
issues should be "robust and wide-open" does
not mean that we should exchange "public
trustee" broadcasting, with all its 1Irn ra-
tions, for a system of self-appointed editor i,:t
commentators. 412 V.S. at 125.
82. We do not mean to suggest that
broadcasters are in any way required to
maintain "tight editorial control" over
the spokesmen who appear on their sta-
tions. Much to the contrary, we wish to
give every encouragement to broadcast-
ers to experiment with new ways of pro-
viding for wide-open debate of public
Issues. Our point here is that while
genuine partisan debate should be en-
couraged, we cannot, at this time, justify
or support its particularized imposition
by Commission fiat.
83. Although we have here reaffirmed
the present system of licensee respon-
sibility and discretion and rejected re-
quests for the creation of a direct "right"
of access, we wish to emphasize that this
system is predicated entirely upon the
assumption that licensees will in face
make a reasonable, good faith effort to
meet their public obligations. Licenser
discretion Is but a means to a greater
end, and not an end in and of itself. and
only insofar as It is exercised in genuine
conformity with the paramount right of
the listening and viewing public to be
Informed of the competing vi4w7loints on
public issues can such discretion be con-
sidered an adequate means of maintain-
ing and enhancing First Amendment in-
terests in the broadcast medium. For the
present, we remain convinced that the
general rubric of the fairness doctrine.
with Its emphasis on licensee respon-
sibility and discretion, provides the most
desirable and practical means to that
end. However, should future experience
indicate that the doctrine is inadequate,
either in its expectations or in its result:..
the Commission will have the opportu-
nity-and the responsibility-for such
further reassessment and action a.
would be mandated by the public interest
and the First Amendment.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
V. Application of the fairness doctrine
to political broadcasts--ballot proposi-
tions. 84. The First Report on Part V. of
the Fairness Doctrine Inquiry, 36 FCC
2d 40 (1972), dealt almost exclusively
with appearances by the President and
other public officials and with questions
of the application of the Zapple d"e-
trine " to such appearances. However,
Part V of our Notice of Inquiry phrased
the Zapple question in broader terms:
we request comment on such relevant
questions as the following: whether the
quusl-equal opportunities approach should
be restricted, expanded, or left alone, with a
specific description of the fesaibility and
effect of any proposed revision on the under-
lyuig policies of the statute (see section 315
(a)). 30 FCC 2d 26, 34 11971).
We now address ourselves specifically to
application of the fairness doctrine to
ballot propositions such as referenda, ini-
tiative or recall propositions, bond pro-
posals and constitutional amendments.
85. S )me comments filed in this In-
quiry have urged that Zapple rather than
the Cullman doctrine be applied to bal-
lot propositions on the ground that such
situations are analogous to those cov-
ered by the "equal opportunities" re-
quirement of Section 315 and the "politi-
cal supporters" policy in Zapple. One
party has suggested that not only should
Cullman apply but that when one side
buys spots, the licensee should be re-
quired to present opposing announce-
ments in the same format (i.e., spots),
and also to afford proponents of all sides
opportunity for extended discussion of
the issues. In this regard, the Commis-
sion also has received informal com-
plaints that application of the Cullman
doctrine to ballot propositions is unfair
on the ground that it enables proponents
of one side to spend their money on news-
paper, billboard and direct mail adver-
tisinl;-where there is no Cullman re-
quirement--and then to rely on Cullman
to obtain free broadcast exposure of their
views because the other side has spent
its money in that medium,
86. After considering all comments, we
find no substantial reason to alter our
previous application of the fairness doc-
trine to ballot propositions. The Zapple
doctrine, which some urge that we apply
to this area, was adopted solely because
it was analogous to the situation for
which Congress itself had provided for
"equal opportunities." As we explained in
our First Report, Zapple was simply a
common-sense application of the statu-
tory scheme relating to appearances by
political candidates, and we made clear
the fact that we did not intend to extend
its application further. While ballot
prepositions are similar to political can-
didacies in the sense tint both are subject
to popular vote, they are more closely
analogous to ordinary public issues such
as a bill peadix,g in Congress or a state
legislature. We are unable to perceiv:a
why such issues should be treated dirfer-
ently merely because they are subject to
4ee Nicholas Zapple, 5.) FCC :ti 7,71
(1970).
popular vote. In a case involving political
candidacies, the natural opposing spokes-
men are readily identifiable (i.e., the
candidates themselves or their chosen
representatives). In the case of a ballot
pr'opoeltion, however, there is generally
no-specific individual or group which is
entitled to equal or comparable time.
Furthermore. Congress has shown no in-
tent to alter the Commission's traditional
application of the fairness doctrine, in-
cluding the Cullman corollary, to ballot
propositions.
87. It has been argued that in the clos-
ing days of an election campaign, li-
censees may he ova 'whelmed by orders
for large quantities of spot announce-
mernts favoring or opposing a proposi-
tion, and could be hard put to comply
with the requirements of the fairness
doctrine if only one side buys time. No
licensee, however, is required to sell all
the time that an advocate of a proposi-
tion (or even a legally qualified candi-
date) may wish to buy" Indeed, some li-
censees in the past have discovered to
their dismay that an employee has sold
an inordinate amount of time In the clos-
ing days of campaign to one candidate-
only to be confronted by a demand from
the opposing candidate to buy an equal
amount. It is the responsibility of the
licensee do such situations to look ahead
and commit himself to no more time
for Candidate A than he is prepared to
sell to Candidate B. Similarly, no licensee
is required by statute or Commission rule
or policy to yield his facilities to one
side of a ballot proposition for a so-called
"blitz." His clear obligation in fairness
situations Is, again, to plan his program-
ming in advance so that he is prepared to
afford reasonable opportunity for pros,
entation of contrasting views on the
issue, whether or not presented in paid
time.-
01 However, stations are required to either
give or sell reasonable amounts of time to
candidates for federal elective once, 47 V.S.C.
section 312(a) (7) ; See also Use of Broad-
cast and Cablecast Facilities by Candidate.
for Public Office, 34 FCC 2d 510 (1972). WAU*
we do not dictate how much time should be
devoted to the various Lamm being debated
in a community,' ballot propositions and
other election matters will frequently rseNve
considerable coverage on the basis of their
Importance-to the community. In this regard,
we recognize that
"The existence of an issue on which the
community to asked to vote must be pre-
sumed to be a controvenlal issue of public
importance, absent unusual circumstances
? - - It In precisely within the context of an
election that the failoses doctrine can be
best utilized to Inform the public of the ex-
istence of and basis tar contrasting view-
points on an issue about which there must
be a public resolution through the election
process." King Broadcasting Co., 23 FCC 2d
41, 43 (1970) (staff ruling).
a In our pub) le notice of lfarch 1e, 1972. 34
FCC 2d 510, setting forth our Interpretation
of the Federal Election Campaign Act of 1971,
we stated that Congress. in :mending section
3, 21 a) of the Corninunicatloi:- Act to require
llceueees to allow rea:onable access to or
to permit purch:.se of reasonable amounts of
tires 1?v candidntes for federal elective omee.
'?:c.: ,; dl?i nn* intend, to inks the extreme
8II.'71rlally, it Is argued that some bal-
lot issue advocates tats advantage of the
Cullman principle by spending their
available money an non-broadcast media,
then waiting for the other aids to buy
time on the air, and finally denoaadins
that their own. views on the proposition
be given free broadcast espoeure, thus
obtaining a broadcast "subsidy" for their
views. To the extent that this could
occur, the same criticism can be voiced
against any application of Cullman. We
believe, however, it is more important in
as democracy that the public have an op-
portunity to receive contrasting views on
controversial issues of public import-
ance--that "robust, wide-ppen debate"
take place--than that the Cullman prin-
ciple be abandoned because of the possi-
ble practices of a few parties. Moreover,
the fairness doctrine does not require
equality of exposure of contrasting views,
and those who rely solely on Cullman
have no assurance of obtaining equality
by such means.
89. Thus, we shall continuo to deal
with ballot proposition Issues as we do
with other controversial public issues.
As In all fairness doctrine matters, the
licensee is reouired to use his own discre-
tion regarding Isilues to be presented, the
amount of time to be devoted to each,
parties to present contrasting views, and
the formats to be employed. Upon receipt
of a complaint, we shall as in the past
review the licensee's actions only for
reasonableness and goad faith.
VI. Conclusion. 90. It l's hoped that
this Inquiry and. rcoort will provide, a
needed restatement and clarification of
the essential princioies and policies of
the fairness doctrine-both In terms of
its theoretical foundations and Its prac-
tical applicatioa. While we have here re-
aff(rmed the basic validity and soundness
of these principles and policies in en-
suring that the medium of broadcasting
will continue to foliation consistently
with the ends and purposes of the Post
Amendment and the public interest, the
Commission fully reeogrsisse that their
specific application in particular cases
can involve gitaatts ass de erastnattpti of
considsrabie cosr+pieldty and difficulty.
For this reason, the advilhitistristion of the
doctrine must proceed. wit in the frame-
work of general policies set forth herein,
on a case-by-case basis according to the
particular facts and circumstances pre-
sented. We do wish to emphasise that in
the final analysis, the fairness doctrine
can fulfill its purpose and function only
case. the t during the closing days of a cam-
palgn. saitinas should be required to accom-
modate requests for political time to the
exclusion of all or moot otber types of pro-
gramming or advertising. Important as an
Informed electorate 4 In our eoelety, there
are other element. In the public interest
standard, and the public is entitled to other
kinds of programming than political. It was
not lnte.ided that all or mess' time be pre-
empted for political broadcasts - ? ?." (Ques-
tion and Answer 3. section VIII). The same
principle would, of course, apply to ballot
propositions.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
to the extent that all the parties in-
volved-the broadcasters, the Commis-
sion, and individual members of the pub-
lic-participate with a sense of reason-
ableness and good faith.
91. Accordingly, the proceedings in
Docket 19260 are terminated.
Adopted: June 27, 1974.
Released: July 12, 1974.
MERAt COMMUNICATIONS
COMMISSION 'o
(SEAT.] VINCSNT J. MU LUCS. Secretary.
NOTICES
an opponent, then the licensee must afford III. Summary o/ comments. 7. Extensive
comparable time to the spokesmen for an corpmer.ts and repay comments addressing
opponent? Known as the quasi-equal oppor- these questions were received In response to
tunities or political party corollary to the the Fairness Inquiry from fourteen parties.
fairness doctrine. the "Zapple" doctrine is In addition, the Commission conducted panel
based on the equal opportunity requirement discussions and heard oral argument for a
of section 315 of the Communications Act; full week In March 1972, during which these
accordingly, free time need not be afforded Issues were exhaustively discussed; (A list of
to respond to a paid program. all participants Is Included In Appendix A
5. Since some controversy has been gee- below.) A variety of ideas, proposals. and
orated as to the applicability or wisdom of criticisms were presented, a brief summary
this doctrine, the Commission asked for pub- of which follows.
lie' comment, on the following questions In 8. Storer Broadcasting Company observes
Its Notice of Public Inquiry in Docket No. that since the fairness doctrine. unlace 8ec-
ht
19280 (hereinafter, Fairness inquiry). tlon 315, gives no particular person a rig
"Should the quest-equal opportunities to reply to previously broadcast material.
approach be restricted or expanded and what the extension of the fairness doctrine to a
Is the feasibility and effect of any proposed quasi-equal opportunities doctrine In Zap-
revision on the underlying policies of the sta- pie is a contradiction of the fairness doctrine.
tute (see section 315(a))? As presently constituted. Zapple and Its
"Should the Commission adopt a position progeny provide insutaclent direction to II-
that Zapple applies only to political cam- censees as to when comparable responses to
ials
ffi
APPrNOnt A
(Docket No. 19260; FCC 72-534; 795051
ILIST REPORT REGASDINO BANDLING Or
POLITICAL BROADCAST
In the matter of the handling of public
issues under the Fairness Doctrine and the
Public Interest Standards of the Commtinl-
cations Act.
1. introduction. 1. The first report deals
with Part V of our Notice-the fairness doc-
trine 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. How-
ever, 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 T.
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-
xV.
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.
U. Background. 3. In applying the fairness
doctrine the Commission has traditionally re-
quired licensees to afford reasonable oppor-
tunlty 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. for-
mat and time for the presentation of the
opposing views on controversial issues, with
two significant exceptions. Under 1315 of the
Communications Act of 1934, Be amended,
licensees are required to afford equal time
to legally qualified candidates; and under
the Commission's political editorializing rules
(1573.123(c), 73.800(C), 73.598(c), 73.679
(c)) the licensee must afford a reasonable
opportunity for a candidate or his spokes-
man to respond when the licensee has op-
posed him or supported his opponent in an
editorial.
4. Under the ruling in "Letter to Mr. Ni-
cholas Zapple," 23 F.C.C. 2d 707(1970) the
Commission further limited the licensee's dis-
cretion. The Commission held In "Zapple"
that when a licensee sells time to supporters
or spokesmen of a candidate during an elec-
tion campaign who urge the candidate's elec-
tion. discuss the campaign Issues, or criticize
pslgns and not to other times?
"Should Zapple be disassociated from the
fairness doctrine and incorporated into Sec-
tion 8157
"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 If. C.
Smith, 25 RR. 291 (1983)), or should It be
extended to all parties or to some mathe-
matically-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 is-
sues; amendments of state constitutions,
etc.?"
8. One additional suggestion has been that
the Zapple doctrine should be extended to
include broadcast appearances of the Presi-
dent of the United States so that an auto-
matic right to respond in comparable time,
format, etc., would accrue to appropriate
Spokesmen following a Presidential appear-
c
noncampaign appearances of public o
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 Broadcast-
ers (NAB), General Electric Broadcasting M..
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 ao long as
the Cullman 2 doctrine continues to be Irn-
appllgble, and licenses are not required to
subsidize the campaigns of opposing candi-
dates by affording free response time. Zapple
is seen by those filing joint comments with
the Evening News Association as an appropri-
ance. In "Complaint of Committee for the ate means to fulfill the purposes of section
Fair Broadcasting of Controversial Issues." 315, ensuring the equality of treatment of
25 F.C.C. 3d 283. 294-298 (1970), the Com- political candidates by broadcast licensees.
mission declined to extend the "Zapple" Consequently, they would impose Obligations
quasi-equal opportunities concept generally progress in which the broadcaster has al-
to Presidential appearances, although it said forded time and relinquished content con-
that the fairness doctrine was applicable to trot to a spokesman for a candidate to
Presidential appearance when dealing with support that candidate or to oppose rival
controversial Issues of public Importance. candidates.
Upon re-examination In "Republican Na- 10, The NAB. ABC. NBC. and G.E. Broad-
tional Committee," 25 F.C.C. 2d 739, 744 casting Co. argue that the Zapple doctrine
(1970), the commission again explained that should also apply to "political" broadcasts
Presidential broadcasts made In a non-else- where a campaign Issue (bond proposal, con-
tion period do not come within the "Zappla" stltutional amendment, etc.) that is aup-
corollary but are Included under the general ported or opposed by a political spokesman
fairness doctrine to the extent that contra- has been placed on the ballot. It is argued
verslal Issues of Importance are discussed. that this situation is analogous to both Sec.
The question was raised once again and ruled tion 315 and ZappIs, wad, as Is the Cam with
on by the Commission In "Democratic Na- the political spokesman doctrine. Cullman
ttonal Committee, " 31' F.C.C. 2d 708 (1971). should not apply. NBC emphasises that the
alf'd "Democratic Natonal Committee V. quasi-equal opportunity approach of Zapple
F.C.C.: ' - U.S. App. D.C. F. 2d -
. or its extension to ballot issue should apply
can No. 71-1738 (D.C. Cir. Feb. 22, 1972).
However, we solicited the comments of the only to paid presentations In campaign
public on the questions raised In these cases
& in Re Complaint of Committee for the
Fair Broadcasting of Controversial Issues. 26
F.C.C. 2d 283 (1970), af8rmnd on reconsidera-
tion sub nom. Republican National Commit-
tee, 25 P.C.C. 2d 739 (1970). the Commission
extended the "Zapple" ruling to a non-cam-
paign 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 Broad-
casting Co. v. F.C.C., 454 F. 2d 1018. (D.C.
Cir. 1971).
w Commissioner Hooks concurring in part
and dissenting In part and Issuing a separate
statement. Commissioner Quello concurring
and Issuing a separate statement. State-
ments of Commissioners Books and Quello
tied as part of the original document.
t Cullman Broadcasting Co. Inc., 40 F.C.C.
576. 677 (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 pre-
sented (or does not plan to present) contrast-
ing viewpoints In other programming, and
has been unable to obtain paid sponsorship
for the appropriate presentation of the op-
posing viewpoint or viewpoints. be cannot
reject a presentation otherwise suitable to
the licensee-and thus leave the public un-
informed-on the ground that he cannot ob-
tain paid sponsorship for that presentation."
._ Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
periods; since the equal opportunities ap- grassional amendment of section 313 because equal opportunity" doctrine because this
proach involving free time Inhibits the pres- such ectanason would violate the intent of restricts licensee dlacretton and testes arti-
eutatlon of political prograsaming and Inter- section 814, and specl&aily. would negate flciW 6arrtsrs to the dtaceselon of con-
feree with a licensee's editorial judgment. the newscast, news documentary, and news t eversial Issues of public importance. Fur-
11. Two commentators, Democratic Na- interview exemptions?to the equal time pro- tbearmore, PM argues that apple cannot be
tional Committee (DNC) and American Civil visions eontelned in section 815(a). Imple limited to the two. major parties oar tic cam-
Ltbertlas Union (ACLU) suggest that the mantation of the" ptwpossls would also be patgn-periods only. but instoad will engender
Cnrumtsaton extend the fairness doctrine or a distortion of the fairness doctrine. It is aspirsling round iu in of partisan resgotisef.
adopt a specific rule that would require II- argued, since the fairness doctrine focus" on Several other parties also voiced this pars
ceasees to broadcast the opposing views of lasu", not Individuals, or candidates. titular fear.
appropriate spokesmen following an appear- 15. Those parties filing with the Evening 21. At the fairness panels. counsel for
ance of a public of ictal. It is claimed that News Aseoclatlod argue that the broadcast ?B8 further developed the foregoing argu-
there is an overriding national concern In appearance of a public office holder should be meat by stating that the pricing mecbantem
Informing the public on both sides of issues treated as the appearance of a public ofRcisl and the economic realltiss of buying time
dealt with by public officials, and accordingly, fulfilling the duties of his once, not as the oa the commercial network.. tend to #21 Ur-
that licensee discretion in presenting oppos- appearance of a partisan spokesman present- age the broadcast appearances of minority
ing views and selecting appropriate spokes- ing one aide of a controversial Issue absent candidates, but that no such economic bar-
man should be more limited than at present. some extrinsic evidence to the contrary. rier to access by minority parties exists to
12. DNC specifically urges the adoption of Otherwise, the public's right to be informed the Public Broadcasting Service. Counsel for
a rule that: (1) Would establish a presump- on Important matters by Its elected oESctais PBS also argued that In eiltending quasl-
tion that a Presidential broadcast appearance would be subordinated to the rights of a par- equal opportunities to supporters of a can-
involves a controversial Issue of public Im- titular class (political candidates) to broed~ didats in Zapple, the Commission was doing
portance; (2) would require licensees to seek cast. what the Congress had decided not to do
out appropriate spokesmen to present an op- 16. NBC believes that both DNC and ACLU when It ions section 315 of the Com-
posing view and to afford them equal oppor- have failed to show the necessity of their when Itioie Act
tunities; and (3) would require licensees Or proposed policies or the present inadequacy municat.
8s~ra1 parties submitted comments 22. networks to keep publicly available for three of the fairness doctrine as a tool for inform- on the procedural methods of standards by
years a tape or transcript of every Presiden- Ing the public on important public Issues . which the Cshould enforce fair-
tial appearance. DNC asserts that such a rule Creation of an equal or quasi-equal time n con the Commission
In the political shou enforce falr
Is necessitated by the public interest stand- right to reply to all public officlal addresses previously n the dceet area.
to adopt Broadcas t-
s.rd of the Communications Act and by the would, as a practical matter, Inhibit the As A* pre iousl the Commid mentioned, Storer
First Amendment. In view of the public's appearance of public officials, NBC main- Ing Co. Coles or to develop t iiti-
need to be fully informed on Important pub- tarns. It would also ignore the difference in cal broadcasting that would "a poi po-
lie issues discussed by the President. The media use by different officials, as well as the cacal lly ded~ broadcasting those primer situations In which
public is not presently receiving balanced fact that It is possible to distinguish c
ould be uttons to affnrd com-
ees
information on such issues, DNC believes, leadership appearances of an official from his licens
and be required would specify guide-
format, the President's control of the time, political opinions. NBC also has argued that parable time and which of the
format, and content of his appearances maxi- under present rules Presidential appearances lines for the appropriate op-
mtzes their impact and effectiveness while, on during a campaign for his re-election are poettig spokesman in order to minimize the
the other hand, the difficulties encountered subject to the Section 31b equal time requtns- confusion that bas resulted from the recent
by ANC in buying time to discuss public ments, that Presidential appearance in a eart" Of ad hoc adjudications (Zapple, RNC,
issues or in securing free time to respond to non-election period are subject to the fair- etc,) modifying the traditional fairness
Presidential appearances limits the effective- nee& doctrine and the political party ooroi- doctrine.
ness of the presentation of their viewpoint. lary, and that these doctrines are adequate M. Thos filing with the Evening News As-
DNC's views are currently presented, It main- to ensure that the electorate is Informed. soelation argue that the FCC frequently
tales, through news and panel show presen- 17. WON Broadcasting Co. (WON) is also o'.ersteps Its authority in judging the "rea-
tations in which DNC representatives are opposed to the DNC/ACLU proposals on the sonablansss" of licensee action to the poltti-
rierely responding to questions and have no grounds that the standard proposed by DNC, cal broadcasting area. The Commission
opportunity. comparable to the President's. that Presidential broadcast$ that enhanced should therefore adopt a "grossly unre"'son-
to develop a reasoned and uninterrupted the political or personal image of the Press- able" test of licenses conduct, and Impose
presentation of the Issues. DNC thus argues dent would be subject to the rule and require penalties only when licenses conduct meets
that the First Amendment goal of promoting the presentation of opposition programming. an "actual malice" test.
robust, wide-open debate Is being thwarted is too vague to be realistically applied by 24. Two other general points raised by
by its rejection as an entity responsible for licensees; and that the FCC would be inex- commentators were as follows:
defining options for the American people on orably involved In politically sensitive ad- A. The 0X Broadcasting Company be-
major public issues and by denying it access, judicetions which should be avoided. lieves that the Commissions recent ruling in
comparable to the President's, to respond to 18. Three parties argue that the Zapple In re Roeenbush Advertising Agency. 31
his appearances. doctrine should be repealed altogether. WON P.C.C. 9d 784 (1971)' should be upheld
13. ACLU maintains that the responsibility maintains that Zapple exceeds the intent since It aftordY discretion In making dater.
of the licensee under the fairness doctrine of section 315, which grants equal opportu- urination as to how a given licensee's frail'
should extend to making available compar- pities only to opposing caadkiatoo and not itt's should be made effectively avWable to
able opportunities for opposing spokesman to their supporters. That question, WON candidates or supporters of wmdid u Sec-
to comment on the issues raised In the broad- maintains, was settled in Felix Y. Westing- tion 815 Itself peewits a lice sae to be" dis-
czat appearance of any public official, Includ- house. 186 P. 2d 1 (3d Mr. 1960). where It was cre'ion In scheduling and the Codmteston,
ing the President. Because of the President's held that the supporters of a candidate were It Is contended. should not restrict this dts-
unquestioned power to command broadcast- specifically excluded from section 315. oration any further in "quasi-813" situ-
Ing time and to attract an audience, ACLU 19. The law firm of Haley Bader & Potts atlons.
feels that comparable time can be afforded argues that the Zappia doctrine overlooks B. During the panel discussions,, former
only if the contrasting viewpoint is presented the fact that the informational needs of the FCC Chairman Newton Miaow discussed the
Immediately after each Presidential appear- public are of primary Importsnce. and mfs- recent study and recommendations of the
ante. The President and other public officials tskenly confers rights on Individual partim bipartisan Twentieth Century lands on this
should furnish copies of their statements The standards In Zappls are too vague for
sufficiently in advance of their broadcast to day-to-day application by the licensee. It
permit station licensees to fulfill these fair- maintains, and the resultant confusion will
Hess obligations. tend to Inhibit licensee coverage of political
14. The proposals of DNC and ACLU were matters. Moreover, it argues that Zappie un-
opposed by a number of parties. ABC and duly restricts licensee discretion In selecting
O.E. Broadcasting Co. argue that no justlfics- spokesmen and regulating content.
tion for the proposed rule can be found in 20. The holding of Zapple would be ac-
section 315 of the Act, since under that Sec- cepteble to Public Broadcasting Service
Lion, the recipient of an equal time oppor- (PBS) as a fairness question if the Com-
munity to respond to a candidate's appear-
ante must himself be a legally qualified mission bad limited Itself to a discussion
opposing candidate and not just a represents- of the reasonableness of the balance of op-
tive of a political party or some other appro- posing views afforded by the licensee. PBS
prlatr, group. To extend a quasi-equal oppor- is opposed, however, to the extension of
tunities doctrine to non-election period traditional fairness concepts of "reasonable
Presidential appearances would require Con- balance" to a "comparable time" or "quasi-
s The Commission held in Bosenbush that
a licensee's policy of accepting only paid po-
litical advertising of five minutes or longer
during is primary campaign was consistent
with Comm lesion precedent where the li-
censee recognized its public Interest obli-
gation to make Its facilities effectively avail-
able 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 present-
ing the candidates for mayor; and had an-
nounced the candidacies for the top three
city offices In Its regular news progruns.
s Twentieth Century Fund, Voters' Time
(1969).
FEDERAL REGISTER, VOL 39, NO. 139-T) URSDAY, JULY 18, 1974
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
subject. He recommended that the Commis-
.ion support legislation that would enable
the major patty 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 can-
didates' 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.
IV. Discussion-A. The fairness doctrine
with respect to apperanees 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 ap-
pearances. As the Court noted In Democratic
National Committee v. FCC, O.A.D.C., No. 71-
1837, decided February 2, 1972, petition for
writ of certiorari filed April 28, 127' .1. No. 71-
1405. O.T. 1971. "0 ? ? 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 Pres-
idency 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 Free-
irlent 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 in-
formed and ? ? ? this obligation exists for
the good of the nation ? ?." (St. Op. pp.
26-27)
Because of this use of broadcasting by the
nation's most powerful and most important
public ofilce, 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 com-
parable use of the broadcast media by an
opposition party spokesman.
28. We make two preliminary observations.
First, the issue is not whether the American
people shall be reasonably informed concern-
ing the contrasting viewpoints on contro-
versial Issues of public importance covered by
Presidential reports. The fairness doctrine
is In any event applicable to such reports--aa
indeed It Is to a report by any public official
that deals with a controversial Issue of pub-
lic Importance. See section 315(a). Rather.
the Issue Is whether something more-some-
thing akin to equal time-is to be required.
The word "required" brings us to our second
point. Because our goal L robust. wide-open
debate, the Commission of course welcomes
any and all programming efforts by licensees
to present contrasting viewpoints on contro-
versial Issues covered by Presidential ad-
dresses. As we stated in our commendation
of the CBS series, "The Loyal Opposition",
Oommtttee for the Fair Broadcasting of Con-
troversial Issues, 25 FCC 2d 283, 300 (1970) ;
Republican National Committee, 25 FCC 2d
739, 745-48 (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.
opposition spokesman to respond to a Presi-
dential report.'
27. First, there L a substantial issue
whether any such Commission prescription
might not run counter to the Congressional
scheme. In section 815(a), Congress has spec-
ified that equal opportunities shall be ap-
plicable to appearances of legally qualiAed
candidates and that in other instance. "lair-
new" be applImble--that is, that there be
afforded "? ? ? reasonable opportunity for
the discussion of conflicting viewpoints on is-
sues of public Importance." While fairness
may entail different things in particular air-
oumstancas (see par. 30. tn/re), there t3 a
substantial question whether it Is not a mat-
ter for Congress to take the discussion of
public Issues by the President out of the fair-
ness area and place it within the equal op-
portunities requirement-just as, for ex-
ample, It was up to Congress in 1960 to take
appearances by candidates for President out
of equal opportunities and place tbam under
fairness. There Is a further troublesome issue
here-whether we could create a special fair-
ness rule for Presidential reports but then
hold that a report by Governor Reagan in
California or Mayor Lindsay in New York, for
example, would cone only under the "re4eon-
able opportunities" standard of section
315(a), in the fees 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) (3) (A) of the Federal Elsc-
tion Campaign Act of 1971, 88 Stat. 3 ap-
plicable only to Federal otflces) but rather
raise the issue whether such d4tinctions a',
not more appropriately the province of the
Congress.
Rs. But in any event, It would not be
sound policy to adopt the DNC or ACLU pro-
posals. 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 insur-
ing robust debate (e.g.. the argument, ad-
vanced in 1949 and now repeated by the
ACLU, that fairness requires the contrasting
viewpoint to follow immediately the presen-
tation of the first viewpoint-see par. 8,
Report on Editorializing by Broadcast Li-
censees, supra, at pp. 1250-51.). However well
Intentioned these arguments are, we believe
that increasingly detailed Commission reg-
ulation 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 obli-
gation to contribute to an informed elec-
torate. Editorializing Report. per. 10, supra,
at pp. 1281-52. Thus, the arguments for flex-
ibility, 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 policies that might well
Inhibit reports to the electorate by elected
officials. Rather, the general fairness approach
of facilitating such report; and at the same
time insuring that the public Is reasonably
Informed concerning the contrasting view-
points beat serves the public interest! See
awe are not dealing here with Presidential
appearances during election campaigns where
equal opportunities or Zapple (see B, infra)
would ordinarily be applicable.
?For obvious reasons already developed.
we strongly decline to make evaluations
whether a report by an oMctal is "partisan"
or "political" and thus requires rebuttal by
a spokesman for the other party, or the con-
tending faction, or whatAver. This would
us into a wholly lnadministratable
drag
whether there should be an FCC requirement,
quagmire. See, e.g., In to Complaint of limo.
With this as background, we turn to tbe"Fcratlc National Committee, 31 FCC 2d 708,
proposal that equal time be afforded to an 712-713 (1971).
DNC V. FCC. supra. S1. Op. p. 27 ( ' ' '1 t-
President is obliged to keep tie h:ner a::
people Informed and as this obligatic?:' t, u's
;for the good of the nation, this cnuri (ar;
find no reason to abridge the right of .,he
public to be Informed by creating an Lu?.o-
matic right to respond reposed in the opgcst'
Lion party ? ? 0"); Committee for 1'r.?:
Broadcasting, supra, at pp. 296-98. The It tter
can demonstrates that fairness can and does
operate to protect the public interest In this
Important area.
29. In this connection, we note that the
Commission believes that the public tr,t.e.es:
would be served by revision of the equal
opportunities requirement so as to me .e I.
applicable only to major party caadld?:.ea,
with such candidates liberally defined to i a-
elude any candidate with significant puUm
support (see infra. par. 35); it has also sut?-
ported, as a less desirable alternative. eJs-
pension or repeal of that requirement c:_ '
the offices of President and Vice Presto: t
It would surely be anomalous for us t: se:
relaxation of the equal opportunities requ'_r?
went as to candidates for the office o' .- -c:.-
dent, and at the same time to apply a ncc
policy akin to the equal opportunities t
Presidential broadcasts not coming w!.:..*..
the present statutory equal opporturit.tt
quirement. We decline to do so.
B. The Zapple ruling. 30. Our 1970 r'.itn~,
Letter to Nicholas Zapple. 23 FCC 2d 1,)-,
(1970), concerned campaign presentations
that did not involve the appearance of the
candidate. We pointed out that in sonic
such presentations, the requirements of tt.e
fairness doctrine become in effect qus.i-
equal opportunities. There has been con-
siderable comment on this ruling b::t Jr,
large part. the Interest In It may stem frr i
a misunderstanding of the ruling (e.g.. tint
the ruling extends quasi-equal opportunities
to all candidates or parties. even of s fringe
nature). We can appreciate how such a mis-
understanding could arise. The terms we
used, fairness and quasi-equal oppor tun. i.:e'.
are terms of art and have accumulated their
own baggage. Thus, quasi-equal opportan:-
ties conjures up a notion of all parties-
even those of a fringe nature--being treat"d
equally. And fairness carries with it co.
isepta Such as Cullman (free time if the puh-
Ile has not been informed of the contrastt is
viewpoint). Be*, also, In re Cortplalm t cf
Oeorge P. Cooley, 15 FCC 2d 828. 822 f 190? i .
But, Zapple was neither traditional fatrne
nor traditional equal opportunities. It w,_.
a psrticulartsstion of what the public it,-
tsrest calls for In certain political broad-: - :
situations in light of the Congressional. pc''-
eles set forth in section 315(a) .' With ti,'s
as background, we turn to the ruling.
31.. What we were stating in Zapple v.e.s
simply a common sense application of tl.c
statutory echome. If the candidate himself
appears to some significant extent ;cf. C.r.iy
Communications. Inc.. 14 FCC 2d 7t If,
FCC 2d 532 (1986)). then the Congress:.: n:
policy in clear: Equal opportunities. wh'rh
means no applicability of Cullman but cause:
mathematical precision of opportunity. bul?-
pose neither the picture or voice of the ca.
dldate Is used-even briefly-but rather a
political message devised by hlin and l..s
supporters Is broadcast.
?SeeHearings Before the Senate Comnn i.l?
cations Subcommittee, 91st Coca.. lit St... ,
on S. 2878. p. 50.
'Similarly, the personal attack an.: p'
litical editorializing rules are a particu:n '-
zation of what fairness requires In t,&, -
situations. See. e.g., Report on Personal c,.
tack and Political Editorializing rule. 3?
FR 10303 (1267); Editorializing Repo:'
prta. at p. 1252.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
In those circumstances, a common sends
view of the policy embodied In section 316
would still all for the lnapplicebtlaty of
Cullman * and for soma measure of treatment
that, while not mathematically rigid, at 1e.,st
took on the appearance of rough compare-
bWty. It the DNC were sold time for a num-
ber of spots, It is difleult to conceive on
what basis the llcenmee could then refuse to
sell comparable time to the RNC. Or, if dur-
ing a campaign toe latter were given a halt-
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? 10 Clearly, tb-se examales 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 cam-
paign situations such as the above (and In
view of its nature, the application of Zapple,
for all practical purposes, to confined to cam-
paign periods). Significantly, because it does
take into account the policies of section 316,
the public interest here requires both more
(comparable time) and lass (no applicability
of Cullman) than traditional fairness?5
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 rea-
sonably informed on campaign issues, and
thus that the basic public Interest require-
ment 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 estab-
lish that in the political broadcast field
there is now a quasi-equal opportunities ap-
proAch applicable to all candidates and par-
ties, Including those of a fringe nature. This
would clearly undermine any future suspen-
sion or repeal of the "equal opportunities"
requirement, because it would mean that de-
spite a'ich suspension or repeal, the fairness
docs,rine would require that fringe party can-
didates be given comparable treatment with
major party candidates. Further, it would
negate the 1959 Amendments to the Commu-
nications Act. The purpose of these amend-
ments was to permit presentation of candi-
dates on. for example, a bona fide newscast,
*In this respect. Zapple did not break new
ground. In our Report and Order on the
personal attack rules (32 PR 10603, 10305),
we noted the applicability of the Congres-
elonal standard in Section 315 to attacks
Involving candidates, their supporters, or au-
thorized spokesmen, and accordingly made
our rules-which result, as a practical matter,
In free time--Inapplicable to such attacks.
See 1173.133(b), 73.300(b), 73.508(b), 73.479
(b).
10 This example is stated as If the BNC pro-
gram were the only matter to be considered.
Of course in a particular factual situation
this may well not be so. See CM T. POO.
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 P.
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 discre-
tion to discharge fairness obligations,
u 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 316.
news Interview, or news documentary. With-
out the station having to present the fringe
candldataalt We used not belabor the point
further. The Zapple ruling did not overrule
the bottling In' Letter tq Lswrsnce M, Cr
Smith, 26 Pike & Flacbme, R.R. 221 (1083).'s
33. The foregoing discussion--and the gene
oral approach that we have adopted In the
fairness erelso dispo-e of to. questions
raised as to the desirabIlity of erisr-dlag Zap-
ple, codifying I? or otbarrlae supplarnenting
it with procedure! and other trappings (e.g.,
a seven-day procedural requirement). Be-
cause Zapple reflects simply a common sane
distillation of the public interest in eaft4in
political broadcast situation, there Is no
need to try to codify it or engraft new
corollaries onto it, On the contrary, we have
concluded that, generally, tr'adittorsal fair-
ness works better bq setting out broad prin-
ciples and permitting tba licensee to eser-
cise good faith reasonable discretion In
applying thaw broad principles. We think
that this. Is true here. Further. we doubt if
we will be confronted with a ho-%t of ad hoc
rulings in this field. Most problems should
be disposed of at the-Manses level by the
application of rudimentary concepts of felr-
nees and common sins.. SlgnlAcantly. Zap-
pie itself was a ruling on hypothetical ques-
tions; than have been very f-w times when
the Issue has arisen on concrete cases. As
to its extension beyond political broN4aaets.
the short answer Is that It In bused in . ub-
stantial part on Congressional policies aapll-
cable to such broadesa4.L
C. Commission efforts to encourage the
widest possible coverage of pnl4ttcaf cam-
paigns. 34. We have considered meat seriously
what steps we can take In this respect.
There would appear to be little we can do
on an administrative agency basks. Let us
take the most obvious suggestion: That the
Commission by rule specify that a certain
amount of time be set snide for presentation
of political broedcaste on a sustaining basis.
flee section 303(b). There are a number of
difficult policy issues that would have to be
resolved in any such undertaking. Dist there
is. we believe, again an overriding considera-
tion here-namely, that this Is truly a mat-
ter for Congressional resolution. Congress Is
aware of the high expense of running for
political once, particularly is view of mount-
ing broadcast costs. It has considered a num-
ber of worthwhile suggestions beer--dot ex-
ample the subsidy plan in to. Piealdentlal
Campaign Fund Act of 1908 (the now loop-
erattve Long Act) to supply Pest-al funds to
the notional party andi aa,s for the Pred-
dency; the Votem Time prop.-el (rise Hee -
ings Before the leant. Communleatisne sluls-
committee, on S. 2274. 91st Coag.. 1st Boss..
pp. 24-84). Its response to this pesblam has
been the Federal Sl.WM Casspolgn Act of
1971 (Pub. I. 92-236). with its limitatiotrs of
spending, and reoulreraeat for resmoaabie
access for those running for Federal o s.
and reduced rata sew all psiitic l esadidates,
n in view of the 19x9 As esdaseats. it fol-
lows
that q he* sear op*1M -
wine tain to applicable
men for candidates, are presented in bona
fide aewesaats; in this raapeot, the some
general fairness prdnalpiee that apply to the
candidates are equally applicable to their
supporters.
is We there hold that as to fund raising
announcements for political parties. fairness
does not require equal or oompsrable trast-
meut for the fringe gentian but r ithet that
the licensee can make reasonable good faith
judgments as to the significance of a per-
t1cular party in. the area
11 Thus. we do not eatand Zapple to the
&Ituatiou involving ballot iseuse.
We 61Q net we how we can sweep asiAe this
schojns, and substitute out own, Indeed. we
could riot In any event be Duly effective In
any such spanc= aetloa. Take the most Im-
portawt office--the Presidency. Were we to
require free time for that Mae. we would
run afoul of the equal. time proviaton; we
would flog that we had' required th- bread-
cast to down to bourn of prune rhea not just
to the sdgntAsyent cendtd.fes but also to an
many as-vs frines, party eandtdatae (e.g.,
Socialist Labor, Socialist Worker, Vegetar-
ian) 1* Our point Is obvious: i3Ara'rn bare is
needed, we believe, but It, waist coma flora
the Congress because that Is the only way It
can be efeettvaty oneompWibed_
35. Congress then can do much, We bol love
that consideration should again be Riven to
the Voters Time concept or to some scheme
akin to that used to Great 9ritain (La., blocs
of free time to Wamajor potltleM parties). At
the least, we propose again to urge Coaxes-
to adopt our pranarwd arnsndmeat to section
315, limiting to -nsslor party candidates the
apolicability of the equal time provision in
partisan general election campaigns. We de-
scribed that legislation in the following terms
(a.e Hearings B-enee the Communication
Suhconsmltvre on a, 2'rr, 9IAt Cong., let
"In any general olactian, other than non-
partisan ones, the draft legislation would
make the equal opportunities regdhemeat, as
to free time, applicable only to major party
candidates. leaving fringe candidates com-
fag under the general fairness r'egpirement.
It would define major candidates very liber-
ally so as to Include any significant candi-
dates-such as Henry Wallace as the candle
date of the Progressive Party 1949, Stance
Thurmond of the D2:rtecrats 1948. or George
Wallace in the last election. The figures In
the draft legislation an met forth only as
possible guidelines--namely, that the candl-
date's party garnered 2 percent of the vote in
the state in the last election or. If 'the candi-
date ,'scrum a new party. that petitions be
submitted algned by a number of voters
equalling 1 percent of the votes cast In the
lent Neettasi. To obtain time on the natlasal
netwvwbs as dlettsiguiabed frpma lndtvrdual
stWoos In particular states. there would
also be a requirewrrt that Use oaisdid fie be
on the ballet In at least two-thlxd of the
states.
"In short, asetlen 3.10 In IN peeasat osreea-
tionai farm Is claims* and wuM sppwr to
inhibit broedco4ftm beam now" free
time-end done M. on page, witfenst any $ig-
niAmt praettaaa esswoosirsmMSg boo erte. The
Socialist Loaner or Veessrebaa sasrUdab less
not get free time. rat oor, no MW tees any free
time for the political broltreset. Tartbsr. sad
Y To give but one e . plc, In 1fW wb n
Congress eater to swore the es aahl opper-
tumitfao regsalsaseNO 8,, the PresirsM and
Vim Pr4otseat rases, etseme wen as the bale
lots in the-esvesoio ertas 1* Glows" oasedl-
dated 1W the erase a4 PRSmisremel C. Bestsa
Coiner, Coaesevwuvo Porto e! Vtsstata; lievrit
Curtis. Ooastiestlen.Ptim" Lar Day, Teas Cut
Pasty: or. P. I. Dealers; Poombiu n Pasty,
Parsed Dobbs. Intsiist Weriteee Pasty,
Peruser Labor Pasty ce Io~ soda" Week-
d" and P sense Past), Vtmh: Orral P. Pru-
bus, National ltbtas Ptiggffsts Party: lymon
Could; Am.rieso? Vsprsattaa 10aety, Hln-
nesata: Ctennon Pirhg, Zft'o-Aanrieen Unity
Party: Henry Frw$asaski. Aanelsan Third
Party: J. Haawkea Lee. Couservasise Party of
New J-nry; Wilber Slooanb, Greenback
Party: Wtlllam Lloyd linens. Am dews Dan$
Consensus: Chertos Sulilvan, Cesstltutlea
Party of Tess,. In Li Pept, Na. 1998, 99th
Cow.. 24 seas.. P. S. go" how sea wove any
agency action In 1904 v1ea18, base Deer,
FEDERAL SEGISTEs, VOL. 39, NO 13'i-ltiU,SDAY, JN.1 ii, 1914
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
 Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5
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 donning the major party can-
didate, we would urge the selection of a nu-
merical 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 contri-
bution to facilitating broadcast presentation
of important political candidatesN
36. As an alternative. we propose an addi-
tional exemption to section 318(a) to cover
any joint or back-to-beck appearances of
candidates. Additionally, consideration
should be given, we think, to the further ex-
emption that we urged upon Congress In
connection with our 1970 Advocates ruling,
23 FCC 2d 482. We suggested the addition of
the following provision to section 315(a): "
"(6) Any other program of a news or jour-
nalistic character-
"(I) Which is regularly scheduled; and
"(it) In which the content, format, and
participants are determined by the licensee
or network; and
"(ill) 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 construc-
tion 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 construc-
tion 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 1s definitely settled,
licensees cannot plan with any certainty, and
the area remains confused. This is, we be-
lieve, unfortunate. We continue to believe
that our construction of the exemption in
section 816(a) (2) Is sound, meets the perti-
nent Congressional criteria, and markedly
serves the public Interest by allowing broad-
casting 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 It there were
"Thus, in the above noted hearings. we
stated (supra, at p. 60) :
"? ? ? when freed from the constraints of
equal opportunities requirement, there has
been no failure on the part of the broad-
casted with respect to affording time for the
Presidential candidates, and use that that
time has been in substantial amounts, and
free, not just reduced, Thus, in the one in-
stance where the equal time requirement was
suspended (1980), the TV networks afforded
39 hours and 22 minutes of free time, includ-
ing the four hours for the Great Debates.
Further, the audience for these debates
totalled 280 million, or an average of 70 mil-
lion 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."
rT See Hearings Before the Subcommittee
on Communications and Power of the House
Interstate and Foreign Commerce Commit-
tee, on H.R. 8721 and S. 3637, 91st Cong., 2d
Sees., p. 8.
no "equal opportunities" pitfalls. There
clearly are.
D. Use in bona fide newscasts of )IIm sup-
plied by candidates. 38. One other political
broadcast matter which has been brought to
our attention merits comment here. Candi-
dates, like many other news sources, have
normally issued press releases to the news
media containing statements of the candi-
dates, 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 supply-
ing radio and television broadcasters with
audio recordings and film excerpts produced
by the candidates, e.g., depicting their cam-
psign efforts that day or containing state-
ments 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 sup-
plied by the candidate as an Inducement to
the broadcasting of it.
39. In fact, our rules require such dis-
closure 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, script., 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 ? ? ?"" 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. Accord-
ingly, 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"
If It was edited by the licensee, he may, of
course, add a suitable phrase such as "end
edited by the XXXX news department."
"Sections 73.119(d), 73.260(d) and 78.664
M. relating, respectively, to Am. FM and
TV. See also section 817(a) (2) of the Com-
munications Act which specifically auth r-
izes the Commission to require announce-
ments disclosing that such matter was
furnished.
"In order to avoid possible confusion in
Interpreting this rule In relation to one In-
terpretative example in House Rapt. lace
(86th Cong., 2d Sass.) '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
IV. Conclusion. 40. Much remains to be
done in the fairness area (Parts U-IV) a, We
have acted here as best we could for the rea-
sons stated to par. 1. The piecemeal approach
is thus regrettable but necessary.
As stated, we shall reconsider this most im-
portant aspect in light of the conclusions
reached in overall proceedings. Our final mes-
sage is one urging broadcasting to make the
maximum possible contribution to the na-
tion's political process. That process to the
bedrock of the Republic, and broadcasting to
clearly the acknowledged leading medium for
oommunloating political ideas. No area is
thus of greater importance "? ? ? to the
public Interest in the larger and more effec-
tive use of radio." (section 303(g) of the
Communications Act of 1934, as amended).
FIDCUAL COMMU RCATIONS
Cosomslor,a
(SCALI BCI, F. WAPL=,
Secretary,
Adopted: June 16, 1972.
Released: June 22, 1972.
ATTACHMENT To APPxwDs A
I. Comments on the applicability of the
fairness doctrine to political broadcast. were
received from the following parties:
ACLU
American Broadcasting Company
Columbia Broadcasting Company
Democratic National Committee
Rvening News Association, at ai.
Haley, Bader & Potts
McKenna & Wilkinson
National Association of Broadcasters
National Broadcasting Company
Public Broadcasting service
Republican National Committee
Storer Broadcasting
United Church of Christ
WON Continental Broadcasting Company
II. The following parties participated in
panel discussion on the applicability of the
fairness doctrine to political broadcasts howd,
before the Commission, on March 29, 1972.
Roger S Attars, President Roger Alice a Asos-
ciates, Inc.
Charles A. Wilson. Jr.. for the Deseocsstic Na-
tional Committee
James J. Freeman, Associate epeeist counsel.
Republican Nation" Coeuaittoe
Read J. Irvine, ChMrmart of the Board, Ac-
curacy in Media, Inc.
Newton N. Mtnow; Laibmao, W111sess, Ben-
nett, Baird A Minow, Chleo ,, IIii rte
Harry M. Plotkin, Counsel, Pubis Broadcast.
lag Service
Paul A. Ports Arnold Jr Perber, Waohlagtoa,
D.C.
Allen U. Schwartz Counsel, Comenunlawtloao
Media Committee. ACLU
Roost Hyde: Wilkinson. Cragttn are Barker,
Washington, D.C.
advance copies of speeches. Example it of "OR supports the Rosenbush ruling (sae
the House Report (ace FCC Public Notice per. 24(A)). We hew consider" this lassie
of May 6, 1963, FCC 63-409) states that no generally In our recent Notice (Use of Bread-
announcement is required when "news re- cast and Cablecaet Facilities by Candidates
lessee are furnished to a station by Govern- for Public Office. 37 Fit 5796, 5606: sec. & Q.
ment, business, labor and civic organizations, 6), and will reexamine the matter as we gain
and private persons, with respect to their experience. We thus may clarify our policies
activities, and editorial comment therefrom here either In a'arttcular case or In our fur-
ls used on a program." We believe. however, . ther reports in this Docket.
that with respect to program material deal- n Commissioner Johnson dissenting and is-
ing with political or other controversial mat- suing a statement; Coesmtasloner H. Rex Lee
ten. the requirements of our rules must be concurring in the result, Statements of Cor-
followed strictly when audio tape or film to mtasloner Johnson and Lee filed as part of
furnished. the original document.
Sanitized Copy Approved for Release 2011/08/17: CIA-RDP05CO1629R000701560004-5