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"A. Yes. The appearance of candidates on the above types of programs constitutes a 'use of the licensee's facilities by legally qualified candidates and, therefore, other candidates for the same office are entitled to “equal opportunities.' (Letter to Harold Oliver, dated October 31, 1952; letter to Julius F. Brauner, dated October 31, 1952.)
“9. Q. Are acceptance speeches by successful candidates for nomination for the candidacy of a particular party for a given office, a use by a legally qualified candidate for election to that office?
“A. Yes. Where the successful candidate for nomination becomes legally qualified as a candidate for election as a result of the nomination. (Progressive Party, 7 R. R. 1300.)”.
IV. Who is a legally qualified candidate?
“A. The determination as to who is a legally qualified candidate for a particular public office within the meaning of section 315 and the Commission's rules must be determined by reference to the law of the state in which the election is being held. In general, a candidate is legally qualified if he can be voted for in the state or district in which the election is being held, and, if elected, is eligible to serve in the office in question.
“11. Q. Need a candidate be on the ballot to be legally qualified ?
“A. Not always. The term 'legally qualified candidate' is not restricted to persons whose names appear on the printed ballot; the term may embrace persons not listed on the ballot if such persons are making a bona fide race for the office involved and the names of such persons, or their electors can, under applicable law, be written in by voters so as to result in their valid election. The Commission recognizes, however, that the mere fact that any name may be written in does not entitle all persons who may publicly announce themselves as candidates to demand time under section 315 ; broadcast stations may make suitable and reasonable requirements with respect to proof of the bona fide nature of any candidacy on the part of applicants for the use of facilities under section 315. (Sections 3.190, 3.290, 3.657 ; Socialist Labor Party, 7 R. R. 766 ; Columbia Broad(asting System, Inc., 7 R. R. 1189; press release of November 26, 1941 (Mimeo 55732).)
“12. Q. May a station deny a candidate 'equal opportunity' because it believes that the candidate has no possibility of being elected or nominated ?
“A. No. Section 315 does not permit any such subjective determination by the station with respect to a candidate's chances of nomination or election, (Columbia Broadcasting System, Inc., 7 R. R. 1189.)
"13. Q. May a persan be considered to be a legallly qualified candidate where he has made only a public announcement of his candidacy and has not yet filed the required forms or paid the required fees for securing a place on the ballot in either the primary or general elections ?
"A. The answer depends on applicable state law. In some states persons may be voted for by electorate whether or not they have gone through the procedures required for getting their names placed on the ballot itself. In such a state, the announcement of a person's candidacy—if determined to be bona fideis sufficient to bring him within the purview of section 315. In other states, however, candidates may not be 'legally qualified' until they have fulfilled certain prescribed procedures. The applicable state laws and the particular facts surrounding the announcement of the candidacy are determinatives. (Letter to Senator Earle C. Clements, dated February 2, 1954.)
"14. Q. Must a station make time available upon demand to a candidate of the Communist Party, or a candidate who is a member of the Communist Party, if it has afforded time to that candidate's opponents for the office in question?
“A. If the person involved is a legally qualified candidate for the office he is seeking, section 315 requires that equal opportunities' be afforded him. It will be recognized that who is a legally qualified candidate is dependent upon federal, state, and local law pertaining to the elective process and is not based upon provision of the Communications Act or the Rules of the Commission.
“The question of the specific applicability of these principles, in the light of the enactment of the Communist Control Act of 1954, to candidates of the Communist Party or who are members of the Communist Party has not yet been determined.
"15. Q. When is a person a legally qualified candidate for nomination as the candidate of a party for President or Vice President of the United States ?
"A. In view of the fact that a person may be nominated for these offices by the conventions of his party without having appeared on the ballot of any state
having présidential primary elections, or having any pledged votes prior to the convention, or even announcing his willingness to be a candidate, no fixed rule can be promulgated in answer to this question. Whether a person so claiming is in fact a bona fide candidate will depend on the particular facts of each situation, including consideration of what efforts, if any, he has taken to secure delegates or preferential votes in state primaries. It cannot, however, turn on the licensee's evaluation of the claimant's chances for success. (Letter of May 28, 1952 to Julius F. Brauner.)"
V. When are candidates opposing candidates?
"A. Under the Commission's rules, section 315 is applicable to both primary and general elections, and public offices include all offices filed by special or general election on a municipal, county, state or national level as well as the nomination by any recognized party as a candidate for such an office.
"17. Q. May the station under section 315 make time available to all candidates for one office and refuse all candidates for another office?
“A. Yes. The 'equal opportunity requirement of section 315 is limited to all legally qualified candidates for the same office.
"18. Q. If the station makes time available to candidates seeking the nomination of one party for a particular office, does section 315 require that it make equal time available to the candidates seeking the nomination of other parties for the same office?
"A. No, the Commission has held that while both primary elections or nominating conventions and general elections are comprehended within the terms of section 315, the primary elections or conventions held by one party are to be con. sidered separately from the primary elections or conventions of other parties, and therefore, insofar as section 315 is concerned, 'equal opportunities' need only be afforded legally qualified candidates for nomination for the same office at the same party's primary or nominating convention. (KWFT, Inc., 4 R. R. 885 ; letter to Arnold Petersen, May 13, 1952; letter to WCDL, April 3, 1953.)
"19. Q. If the station makes time available to all candidates of one party for nomination for a particular office, including the successful candidate, may candidates of other parties in the general election demand an equal amount of time under section 315 ?
“A. No. For the reason given above. (KWFT, Inc., 4 R. R. 885)."
"A. Under section 315 and $$ 3.190, 3.290, and 3.657 of the Commission's rules, no licensee shall make any discrimination in charges, practices, regulations, facilities, or services rendered to candidates for a particular office.
“21. Q. Is a licensee required or allowed to give time free to one candidate where it had sold time to an opposing candidate.
"A. The licensee is not permitted to discriminate between the candidates in any way. With respect to any particular election it may adopt a policy of selling time, or of giving time to the candidates free of charge, or of giving them some time and selling them additional time. But whatever policy it adopts it must treat all candidates for the same office alike with respect to the time they may secure free and that for which they must pay.
“22. Q. Is a station's obligation under section 315 met if it offers a candidate the same amount of time an opposing candidate has received, where the time of the day or week afforded the first candidate is superior to that offered his opponent?
"A. No. The station in providing equal opportunities must consider the desirability of the time segment allotted as well as its length. And while there is no requirement that a station afford candidate B exactly the same time of day on exactly the same day of the week as candidate A, the time segments offered must be comparable as to desirability.
“23. Q. Is it necessary for a station to advise a candidate or a political party that time has been sold to other candidates?
"A. No. The law does not require that this be done. If a candidate inquires, however, the facts must be given him. It should be noted here that a station is required to keep a public record of all requests for time by or on behalf of political candidates, together with a record of the disposition and the charges made, if any, for each broadcast. (Sections 3.190 (d), 3.290 (d), 3.657 (d).)
“24. Q. If one political candidate buys station facilities more heavily than another, is a station required to call a halt to such sales because of the resulting unbalance?
"A. No. Section 315 requires only that all candidates be afforded an equal opportunity to use the facilities of the station. (Letter to Mrs. M. R. Oliver, dated October 23, 1952.)
"25. Q. If the candidate has received free time for a period of time and subsequently a second candidate announces his candidacy, is the second candidate entitled to equal facilities retroactive to the date when the first candidate announced his candidacy?
"A. Normally, yes. Once the station has made time available to one qualified candidate, its obligation to provide equal facilities to future candidates begins. A candidate cannot, however, delay his request for time and expect to use the ‘equal opportunities' provision to force a station to turn over most of the last few pre-election days to him in order to 'saturate' pre-election broadcast time. (Letter to Congressman Hunter, dated May 28, 1952; letter to Congressman Frelinghuysen, dated March 2, 1954.)
"26. Q. If a station has a policy of confining political broadcasts to sustaining time, but has so many requests for political time that it cannot handle them all within its sustaining schedule, may it refuse time to a candidate whose opponent has already been granted time, on the basis of its established policy of not cancelling commercial programs in favor of political broadcasts?
“A. No. The station cannot rely upon its policy if the latter conflicts with the 'equal opportunity' requirement of section 315. (Stephens Bctg. Co., 3 R. R. 1.)
"27. Q. If one candidate has been nominated by Parties A, B, and C, while a second candidate for the same office is nominated only by Party D, how should time be allocated as between the two candidates ?
"A. Section 315 has reference only to the use of facilities by persons who are candidates for public office and not to the political parties which may have nominated such candidates. Accordingly, if broadcast time is made available for the use of a candidate for public office, the provisions of section 315 require that equal opportunity be afforded each person who is a candidate for the same office, without regard to the number of nominations that any particular candidate may have. (Letter to Thomas W. Wilson, dated October 31, 1946.)
“28. Q. If a station broadcasts a program sponsored by a commercial advertiser which includes one or more qualified candidates as speakers or guests, what are its obligations with respect to affording equal opportunities to other candidates for the same office?
“A. If candidates are permitted to appear, without cost to themselves, on programs sponsored by commercial advertisers, opposing candidates are entitled to receive comparable time, also at no cost. (Letter to Senator Monroney, dated October 9, 1952.)
“29. Q. Where a candidate for office in a state or local election appears on a national network program, is an opposing candidate for the same office entitled to equal facilities over stations which carried the original program and serve the area in which the election campaign is occurring?
“A. Yes. Under such circumstances an opposing candidate would be entitled to time on such stations. (Letter to Senator Monroney, dated October 9, 1952.)
“30. Q. Where a candidate appears on a particular program—such as a regular series of forum programs, are opposing candidates entitled on demand to appear on the same program?
“A. Not necessarily. The mechanics of the problem of 'equal opportunities' must be left to resolution of the parties. And while factors such as the size of the potential audience because of the appearance of the first candidate on an established or popular program might very well be a matter for consideration by the parties, it cannot be said, in the abstract, that equal opportunities could only be provided by giving opposing parties time on the same program. (Letter to Harold Oliver, dated October 31, 1952; letter to Julius F. Brauner, dated October 31, 1952.)”
VII. What limitations can be put on the use of facilities by a candidate?
“31. Q. May a station delete material in a broadcast under section 315 because it believes the material contained therein is or may be libelous?
"A. No. Any such action would entail censorship which is expressly prohibited by section 315 of the Communications Act. (Port Huron Betg. Co., 4 R. R. 1; WSSU Bctg. Co., 7 R. R. 769.)
"32. Q. If a legally qualified candidate does make libelous or slanderous remarks is the station liable therefor?
"A. The Commission has expressed its opinion in Port Huron Betg. Co., 4 R. R. 1, that licensees not directly participating in the libel might be absolved from any liability they might otherwise have under state law, because of the operation of Section 315 which precludes them from preventing its utterance. But this is a matter which in the absence of any amendment to the law will have to be definitively decided by the courts. So far there have been no clear judicial holdings on this matter, but only dicta or lower court opinions supporting both positions. It should be noted, however, that many states have passed laws which wholly or partially exempt licensees from liability under these circumstances.
“33. Q. If a candidate secures time under section 315, must he talk about a subject directly related to his candidacy?
"A. No. The candidate may use the time as he deems best. To deny a person time on the ground that he was not using it in furtherance of his candidacy would be an exercise of censorship prohibited by section 315 (WMCA, Inc., 7 R. R. 1132).
“34. Q. If a station makes time available to an officeholder who is also a legally qualified candidate for reelection and the officeholder limits his talks to nonpartisan and informative material, may other legally qualified candidates who obtain time be limited to the same subjects or the same type of broadcast?
"A. No. Other qualified candidates may use the facilities as they deem best in their own interest. (Letter to Congressman Allen Oakley Hunter, May 28, 1952.)
"35. Q. May a station require an advance script of a candidate's speech?
“A. Yes, provided that the practice is uniformly applied to all candidates for the same office using the station's facilities, and the station does not undertake to censor the candidate's talk. (Letter of July 9, 1952, to H. A. Rosenberg, Louisville, Ky.)
"36. Q. May a station have a practice of requiring a candidate to record his proposed broadcast at his own expense?
“A. Yes. Provided again that the procedures adopted are applied without discrimination as between candidates for the same office and no censorship is attempted._(Letter of July 9, 1952, to H. A. Rosenberg, Louisville, Ky.)”
VIII. What rates can be charged candidates for programs under section 315? "37. Q. May a station charge premium rates for political broadcasts? “A. No. Section 315, as amended, provides that the charges made for the use of a station by a candidate 'shall not exceed the charges made for comparable use of such stations for other purposes.'
“38. Q. May a station with both 'national and 'local' rates charge a candidate for local office its 'national' rate?
"A. No. Under $8 3.190, 3.290 and 3.657 of the Commission's Rules a station may not charge a candidate more than the rate the station would charge if the candidate were a commercial advertiser whose advertising was directed to promoting its business within the same area as that within which persons may vote for the particular office for which such person is a candidate.
"39. Q. Is a political candidate entitled to receive discounts?
“A. Yes. Under $$ 3.190, 3.290 and 3.657 of the Commission's Rules political candidates are entitled to the same discounts that would be accorded persons other than candidates for public office under the conditions specified, as well as to such special discounts for programs coming within section 315 as the station may choose to give on a nondiscriminatory basis.
“40. Q. If candidate A purchases ten time segments over a station which offers a discount rate for purchase of that amount of time, is candidate B entitled to the discount rate if he purchases less time than the minimum to which discounts are applicable ?
“A. No. A station is under such circumstances only required to make available the discount privileges to each legally qualified candidate on the same basis.
“41. Q. If a station has a 'spot rate of two dollars per 'spot' announcement, with a rate reduction to one dollar if 100 or more such 'spots' are purchased on a bulk time sales contract, and if one candidate arranges with an advertiser hav. ing such a bulk time contract to utilize five of these spots at the one dollar rate, is the station obligated to sell the candidates of other parties for the same office time at the same one dollar rate?
“A. Yes. Other legally qualified candidates are entitled to take advantage of the same reduced rate. (Letter to Senator Monroney, dated October 16, 1952.)
“42. Q. Where a group of candidates for different offices pool their resources to purchase a block of time at a discount, and an individual candidate opposing one of the group seeks time on the station, to what rate is he entitled ?
"A. He is entitled to be charged the same rate as his opponent, since the provisions of section 315 run to the candidates themselves and they are entitled to be treated equally with their individual opponents. (Report and Order, Docket 11092.)”
Mr. HARRIS. We have utilized enough time, I think, on this subject for this morning.
Do you have a statement on some of the other bills?
Mr. Chairman, Commissioner Doerfer said he would like to say a few words before we leave H. R. 6810.
Mr. HARRIS. I think it would be appropriate at this time, if you wish.
Mr. DOERFER. I will try to be brief. I have no prepared statement. I assume that when Congress asks the Federal Communications Commission for comment on a bill, our primary object is to tell you how it affects us in the administration of that act, both in terms of manpower and cost. We have indicated that, and I think that the suggestion in our comments is that is may be substantial if the law is changed.
Now we get into the field with respect to the merits. I have contended that the more we get into that field, the more it is a question for Congress, and eventually the people, rather than the individual Commissioners.
I do have some apprehensions which I share with my colleagues with respect to the change of the law. It has been pointed out to me that it has worked for a number of years, that it has been on the books since the early 1930's. However, I do also have some apprehensions with the present law. Contacts and some experience which may not be sufficient nonetheless raises to me a warning:
The other side of the coin is how much and to what extent are people denied the opportunity under the present law to view or to hear those who aspire for public office. If the broadcaster through an abundance of caution will refuse to put any candidate on the air because he may be involved in interminable demands by other candidates, you have to that extent deprived the people of the opportunity to see those who aspire for public office.
That is not academic. I know of a case. I might mention the place, Milwaukee, Wis. Because of a constitutional provision, a change in the office of sheriff is mandatory. To some people that may not be an important office, but nonethelesss after a certain period of time the incumbent cannot succeed himself. As a result, numerous candidates sought the office recently, to the extent of 72. Obviously, the broadcasting stations in Milwaukee apparently through their ability to see ahead with respect to the trouble they might get into, or perhaps through pure accident, none of the candidates got on until after the primary, which reduced it to 2 or perhaps 3.
Just think what will happen if a broadcaster opened the door just a little too soon, as in those cases where there are no primaries.
Certainly the outstanding illustration is that for the Office of President.
It seems to me that this committee and Congress should give some very careful consideration to the possibility of the administration of this act drifting into a situation where the people will be denied the opportunity to see those who aspire for the highest office in this land.
am not quite as fearful as some of my colleagues about the rule of reason or the rule of fairness. I feel perhaps that this Congress will some time have to face up
to an experiment. It will have to try out the rule of reason. If not