casting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any news, news interview, news documentary, panel discussion, debate, or similar type program where the format and production of the program and the participants therein are determined by the broadcasting station, or by the network in the case of a network program, shall not be deemed to be use of a broadcasting station within the meaning of this subsection." Hon. J. PERCY PRIEST, FEDERAL COMMUNICATIONS COMMISSION, Chairman, Committee on Interstate and Foreign Commerce, House of Representatives, Washington, D. C. DEAR CONGRESSMAN PRIEST: This is in reply to your committee's request for the Commission's comments on H. R. 6810, a bill to amend the Communications Act of 1934 with respect to facilities for candidates for public office. Enclosed are copies of the Commission's comments concerning this proposal. The Commission will be pleased to furnish any additional information or comments which your committee may desire. The Bureau of the Budget has informed us that it has no objection to the submission of these comments to your committee. Sincerely yours, ROSEL H. HYDE, Acting Chairman. STATEMENT OF GEORGE C. MCCONNAUGHEY, CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION, ON H. R. 6810, A BILL TO AMEND SECTION 315 OF THE COMMUNICATIONS ACT OF 1934 H. R. 6810 is a proposal to amend section 315 (a) of the Communications Act of 1934, which concerns the vital field of political broadcasts. As you know, the section now provides that if the licensee of a radio broadcasting station permits a legally qualified candidate for a public office to use his station, he must afford all other legally qualified candidates for the same office equal opportunity to use his station. Moreover, a station licensee is prohibited from exercising any power of censorship over material which is broadcast pursuant to the section. The section does not, however, impose any obligation upon any licensee to permit his station to be used by any candidate. These provisions of section 315 have been in effect since the enactment of the Radio Act of 1927, despite numerous attempts to amend or eliminate them. The present proposal would significantly alter the existing statute. It would exempt entirely from the provisions of section 315 (a) any appearance by a legally qualified candidate on the following types of programs: news, news interview, news documentary, panel discussion, debate or similar type program, if the format and production of the program and the participants therein are determined by the broadcasting station, or by the network, if it is a network program. The proposal is aparently intended to permit broadcasters to provide more complete coverage of the election campaigns of major party presidential candidates. Proponents of the legislation point out that in 1952 there were 18 legally qualified candidates for the Presidency. This fact served to inhibit stations and networks from giving free time to major party candidates, since, if they did, they automatically incurred the statutory obligations to give equal time to the 16 minor party candidates. Under the provisions of H. R. 6810, however, free time on one of the types of programs enumerated could be given to major party candidates without having any duty to provide equal time to the many minor party candidates. The Commission firmly believes that it is in the public interest for broadcast stations to provide the widest possible coverage of election campaigns. However, we also consider it of great importance that broadcast coverage of elections be free from discrimination between candidates and between political parties. We believe the present proposal might result in more free time being granted to the major party presidential candidates. However, it would also permit discrimina tion between candidates and parties to an extent not possible under the existing law. If H. R. 6810 were enacted into law, the relatively clear and precise standards now present in section 315 (a) would be entirely inapplicable to the types of programs enumerated in the bill both with respect to minor party candidates and also the candidates of the major parties. Instead of having to comply with the existing equal-time requirements, broadcasters would have only to meet a vague standard of overall fairness in handling the exempt types of programs—a fairness imposed upon licensees by their general responsibility to operate their stations in the public interest. This overall standard of fairness would have to be enforced by the Commission. But the question inevitably arises: what sort of treatment, short of equal treatment is nevertheless fair? Is it fair for a station or network to give time to candidate X to debate a spokesman for candidate Y, but refuse to permit candidate Y to speak for himself? And how prominent or powerful must a third party be before fairness will require that its candidates be provided with some free time? These are merely examples of the countless variety of questions which the Commission would be called upon to decide should this bill become law. And let me assure you there will be an avalanche of such questions, too, for our experience has shown that numerous disputes arise even under the relatively precise terms of the existing law. We further believe that such questions will be difficult, and perhaps even impossible, to decide. Another factor which must be considered is time. It does a candidate no good to be told the day after an election that he should have been given an opportunity to speak on a station. Under the existing statute the Commission can require a station to comply immediately with the equal-time requirement. However, it must be recognized that fairness has been held to be an aspect of a station's overall programing. This overall programing is considered by the Commission at the time when a station's license comes up for renewal. Under such circumstances it seems doubtful that the fairness standard would be of much use in the practical context of an election campaign. Then there is the matter of censorship. Complaints in that regard would also arise, since the types of programs enumerated in the proposal would be exempt from all of the provisions of section 315 (a), including the existing bar against censorship. In this connection, it should be noted that since broadcasters would not be barred from censoring under the proposed law, they would have no protection against liability for libel or slander committed on the exempted programs. This would be true even if a bill such as H. R. 4814, which is expressly designed to protect them from such liability, were enacted into law. As I have noted, the purpose of the proposed law is ostensibly to permit stations to give more free time to the candidates of the major parties in presidential elections. However, the bill makes no distinction between paid time and free time, although paid time would not appear to constitute any particular problem to stations, since few, if any, minor parties have the funds necessary to purchase more than a very small amount of radio or television time. Similarly, the bill is not limited to presidential elections. It would be applicable to all elections, primary or general, for all offices, whether National, State, or local. The Commission therefore believes that any limited benefits which might result from this legislation would be more than outweighed by the dangers of discrimination to candidates and by the administrative difficulties in enforcement. COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON H. R. 6810 AND S. 2306, BILLS TO AMEND THE COMMUNICATIONS ACT OF 1934 WITH RESPECT TO FACILITIES FOR CANDIDATES FOR PUBLIC OFFICE H. R. 6810 and S. 2306 are identical bills which would amend section 315 of the Communications Act of 1934, which concerns the use of radio broadcast facilities by legally qualified candidates for public office. Section 315 now requires that if a radio broadcasting station licensee permits a legally qualified candidate for public office to use the facilities of the station, he must afford equal opportunity to use the station to all other legally qualified candidates for the same office; deny a station licensee any power of censorship over the material broadcast under the provisions of section 315; and provide that the section does not impose any obligation upon any licensee to permit his station to be used by any legally qualified candidate. The proposals would exempt from the existing provisions of section 315 (a), appearances by legally qualified candidates on any news, news interview, news documentary, panel discussion, debate, or similar type program where the format and production of the program and the participants therein are determined by the broadcasting station, or by the network in the case of a network program. The exception would be applicable to all elections, primary as well as general, and to all offices, whether nationwide in scope or limited to a particular State or district. It is the Commission's understanding that the purpose of the amendment is to give the broadcasters partial freedom from the equal-time provisions of section 315 and thereby permit them to provide more complete coverage of the election campaigns of the major party candidates. Thus, it has been stated that during the last presidential campaign in 1952 there were 18 candidates for the Presidency. In view of that fact, it has been maintained that broadcasters were inhibited from providing as much free time for the major candidates as the stations might have wished, since stations would have been obligated to provide equal opportunity to each of the 16 minor party candidates. If the types of programs enumerated in the proposal were exempt from the equal-time requirement, it is claimed that stations would be in a position to provide considerable more free time to the major party candidates, and a "Lincoln-Douglas" series of debates between the major candidates has been envisaged. Initially, it seems clear that the multiplicity of presidential candidates, coupled with the equal time requirement of section 315, does constitute a deterrent to stations providing any appreciable amount of free time to the candidates in presidential elections. However, while the bill makes no such distinction, there would appear to be no similar problem with respect to time paid for by the parties in view of the fact that few, if any, of the minor parties could afford to purchase more than a very small amount of radio or television time. Passage of the bill might well make possible the granting of some additional free time to the candidates of the major parties in presidential election campaigns. On the other hand, however effective the instant proposal might be in achieving its avowed objectives, it would also result in opening the door to possible discrimination in the political broadcast field to an extent not now possible. The bill would remove entirely the definite existing standards of section 315 insotar as the types of programs enumerated in the bill are concerned. In place of the definite existing standards would be left the more vague, overall standard of "fairness," which would eliminate any statutory requirement for stations to provide equal opportunities, even to candidates of the major parties. The Commission would be called upon to decide, for example, whether it was fair for a network or station: (1) To have candidate X debate a spokesman for candidate Y and not give time to candidate Y himself. (2) To have Senator A, a candidate for reelection in a close and pivotal race, debate Senator B of the other major party, who might not be up for reelection or whose election might be assured, and not give time to Senator A's opponent. (3) To give one of the exempt types of program time to C, a candidate for the congressional nomination of one party, and not give time to D, his opponent for the same party's nomination. It should also be noted that problems and complaints concerning censorship would also arise, since the proposal would exempt the type of programs listed from the prohibition against censorship of political broadcasts as well as from the other provisions of section 315. It appears almost certain that complaints of abuse of fair treatment under the relaxed standards from candidates of major parties as well as from minor candidates would be frequently filed with the Commission. It is clearly not the purpose of the relaxed provisions propsed in the bills to permit any partisan discrimination by the station licensees or networks; on the contrary, the Commission's continuing authority under the general public interest standards to insure fairness has been cited as evidence that the proposed new discretion given licensees would not be abused. But absent the fixed and relatively clear standards for treatment of candidates presently provided by section 315, and the interpretations thereof, which have been worked out and published by the Commission over a period of years, it will be difficult if not impossible for the Commission to determine, in particular cases, what sort of treatment short of equal treatment is nevertheless "fair.” There is, moreover, a serious question as to how effective, from a practical standpoint, any Commission action could be in protecting candidates against discrimination in the particular election in which they are running. For while the Commission can require a station to comply with the existing definite standards of section 315 immediately, it is doubtful whether under the general fairness principle, it can do more than raise an inquiry for eventual resolution when the station license comes up for renewal. Since "fairness" has been held to be an aspect of overall programing to be considered as part of the Commission's regular licensing processes, it would be difficult to make any preliminary determination of such overall fairness on the basis of an individual complaint of lack of fairness in a campaign or a few programs therein. It should be noted that while the proposed amendment has been advanced, in large part, as a cure for the problems arising from the presence of a multiplicity of legally qualified candidates of minor parties in presidential elections, it is in fact much broader in its scope and would, to a significant degree, repeal section 315 for all elections, and with respect to all candidates, major or minor. It is not believed that there is a problem with respect to multiplicity of minor party candidates in nonpresidential elections comparable to that obtaining in presidential elections, and therefore it does not appear that the proposed changes in section 315 would normally be necessary in order to permit stations to give free time to candidates in such nonpresidential elections. In nonpresidential elections the proposal would raise the possibility of discrimination between candidates without achieving any discernible benefits. For the foregoing reasons the Commission believes that any benefits from this proposal would be limited in scope, and that its enactment would result in raising serious legal and administrative problems that might jeopardize the rights of political candiates to receive equal treatment in the use of radio and television facilities. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Hon. J. PERCY PRIEST, House of Representatives, Washington, D. C. DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice concerning the bill (H. R. 6810) to amend the Communications Act of 1934 with respect to facilities for candidates for public office. Section 315 (a) of the Federal Communications Act (47 U. S. C. 315 (a)) now provides that if any licensee shall permit the use of a broadcasting station by a legally qualified candidate for public office such licensee shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station. This bill would amend the section so as to make this "equal opportunities" provision inapplicable when candidates appear on "any news, news interview, news documentary, panel discussion, debate, or similar type program where the format and production of the program and the participants therein are determined by the broadcasting station, or by the network in the case of a network program. **** Whether or not this bill should be enacted constitutes a question of legislative policy concerning which the Department of Justice prefers to make no recommendation. The Bureau of the Budget has advised that there is no objection to the submission of this report. Sincerely, WILLIAM P. ROGERS, Deputy Attorney General. EXECUTIVE OFFICE OF THE PRESIDENT, Hon. J. PERCY PRIEST, Chairman, Committee on Interstate and Foreign Commerce, House of Representatives, Washington, D. C. MY DEAR MR. CHAIRMAN: This is in reply to your letter of June 16, 1955, requesting the views of this office with respect to H. R. 6810, a bill to amend the Communications Act of 1934 with respect to facilities for candidates for public office. The Chairman of the Federal Communications Commission in the report he is making to your committee on this bill recommends against enactment of H. R. 6810 for several reasons set out therein. The Bureau of the Budget concurs with the views contained in this report and recommends against enactment. Sincerely yours, PERCY RAPPAPORT, Assistant Director. [H. R. 6968, 84th Cong., 1st sess.] A BILL To amend the Communications Act of 1934 with respect to the application of that Act to persons connected with any medium primarily engaged in the gathering and dissemination of information Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 308 of the Communications Act of 1934 is amended by adding at the end thereof the following new subsection: "(d) The Commission shall not make or promulgate any rule or regulation, of substance or procedure, the purpose or result of which is to effect a discrimination between persons based upon interest in, association with, or ownership of any medium primarily engaged in the gathering and dissemination of information and no application for a construction permit or station license, or for the renewal, modification, or transfer of such a permit or license, shall be denied by the Commission solely because of any such interest, association, or ownership." [H. R. 6977, 84th Cong., 1st sess.] A BILL To amend the Communications Act of 1934 with respect to the application of that Act to persons connected with any medium primarily engaged in the gathering and dissemination of information Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 308 of the Communications Act of 1934 is amended by adding at the end thereof the following new subsection: “(d) The Commission shall not make or promulgate any rule or regulations, of substance or procedure, the purpose or result of which is to effect a discrimination between persons based upon interest in, association with, or ownership of any medium primarily engaged in the gathering and dissemination of information and no application for a construction permit or station license, or for the renewal, modification, or transfer of such a permit or license, shall be denied by the Commission solely because of any such interest, association, or ownership." Hon. J. PERCY PRIEST, DEPARTMENT OF JUSTICE, Chairman, Committee on Interstate and Foreign Commerce, DEAR MR. CHAIRMAN: This is in response to your request for the views of the Department of Justice concerning the bills (H. R. 6968 and H. R. 6977) "to amend the Communications Act of 1934 with respect to the application of that act to persons connected with any medium primarily engaged in the gathering and dissemination of information." The bills, which are identical, would amend section 308 of the Communications Act of 1934 by adding a provision to the effect that the Commission shall not make or promulgate any rule or regulation, the purpose or result of which is to effect a discrimination between persons based upon interest in, association with, or ownership of, any medium primarily engaged in the gathering and dissemination of information and no application for a construction permit or station license, or for the renewal, modification, or transfer of such a permit or license shall be denied by the Commission solely because of any such interest, association, or ownership. |