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act must be identified by an announcement that it is being sponsored by a Communist organization. However, that act does not affect the rights of any organization or individual under the equal time provisions of section 315. Under section 3 of the Communist Control Act of 1954, the Communist Party and any successors of that party are denied all rights, privileges, or immunities attendant on legal bodies created under the laws of the United States. This provision would appear to affect the legal capacity of the Communist Party or any of its representatives to contract for broadcasting time. However, it is important to note that the Communist Control Act does not take away from individual Communists the privilege afforded by section 315, if they are candidates for public office, but are not running as candidates of the Communist Party, or of a successor organization.
The present bill would therefore serve to deprive various classes of organizations and individuals of privileges under section 315 which they now have, but while the proposal does affect broadcast privileges extended by the Communist Act, it is clear that this amendment is concerned primarily with the question of policy relating to internal security.
For that reason, the Commission does not believe that it would be appropriate for it to express any opinion either as to the necessity or the advisability of enacting such legislation.
However, the Commission is of the opinion that the legislation, if enacted, would be constitutional. In the first place, the amendment wold not prohibit anyone from using broadcast facilities. Rather it relieves the licensees of broadcast stations of the statutory duty under section 315 to permit their facilities to be used by the classes of persons enumerated in the proposed amendment.
In the second place, it does not appear that the legislation would constitute Federal interference with matters within the jurisdiction of the several States, since the privilege which would be modified is clearly a Federal privilege. State or local laws would not be modified in any way, by the provision.
While the Commission feels there are no constitutional obstacles to this legislation, we do believe that it would raise procedural problems. The legislation is completely silent with respect to who will decide whether a person falls within the category of persons listed in the bill. Clearly the station licensees would have to make the initial determination. But the real question and the real crux of the problem is who will review the determination of the station licensee.
This would not appear to be much problem with decisions concerning whether or not the person applying for broadcast time had been convicted of one of the crimes specified in the proposed legislation. That would seem to be a relatively simple question of fact. But in determining whether the person in question is a member of one of the categories of organizations listed may be a much more difficult and complicated task. If this Commission is to be the Government agency charged with reviewing the licensee determinations, delay will be inevitable, since it will be necessary to gather all the facts at the place where the election is taking place, and then present them to the Commission in Washington.
As you well know, time is often of the essence in deciding these vital matters when an election is taking place. Therefore, the Commission wishes to suggest that Congress should give consideration to enacting a provision would would permit a person who has been refused time pursuant to section 315 to apply to the Federal district court for the district in which the broadcast station in question is located for an immediate determination of his rights. This would provide a speedy review of the station licensee's determination in a competent forum at the place where the election campaign is taking place, and where the parties to the dispute are located.
The Commission also believes that the right to apply to the Federal district court for review should apply with respect to all determinations as to the rights of persons to obtain broadcast time under the provisions of section 315. For the problem of securing expeditious review of all of the various determinations which must be made under the existing provisions of section 315 has posed difficulties for the Commission for some time. In our opinion, the local Federal district court is the most appropriate forum for securing the necessary prompt and effective review of these questions. Possible language to achieve this objective is attached to the copies of this statement.
Thank you, sir.
Do I understand the proposed amendment would be an amendment to the bill, H. R. 3789 ?
Mr. McCONNAUGHEY. Yes, sir.
Mr. HARRIS. You are proposing the amendment in case the provisions of this bill were to be adopted ?
Mr. McCONNAUGHEY. Yes, sir.
Mr. HARRIS. But as to the bill itself, you do not feel that the Commission would want to make any recommendation one way or another?
Mr. McCONNAUGHEY. No, sir. We believe it is a question of policy relating to internal security.
Mr. HARRIS. You think it would be appropriate or desirable if we obtained the recommendation from the Department of Justice in that respect.
Mr. McCONNAUGHEY. Yes, sir, that is our feeling.
Mr. HARRIS. Are there any questions? If not, you have another bill.
Mr. McCONNAUGHEY. Yes, sir. H. R. 4814 is designed to relieve licensees of radio broadcast stations, as well as their agents or employees, of any civil liability for defamatory statements made by legally qualified candidates for public office in broadcasts made under the provisions of section 315 of the Communications Act of 1934.
The only exception to this freedom from liability would be in cases where the licensee or his agent or his employee participated willfully, knowingly, and with intent to defame in the broadcast. The existing provisions of section 315 specifically prohibit broadcast station licensees from censoring in any manner broadcasts made under that section.
In view of this absolute prohibition against censorship, it was the Commission's view, as expressed in the Port Huron Broadcasting Company case, 12 Federal Communications Commission 1069, that licensees now have complete immunity from liability for defamatory statements broadcast under section 315. But there has never been any final determination by the Supreme Court with respect to a broadcaster's liability for defamatory statements in political broadcasts governed by section 315. The question therefore cannot be considered to be settled.
Some progress has been made through State legislation to give immunity to broadcasters. I thing some 33 or 35 States have passed legislation.
However, the existing State legislation is not in the Commission's opinion adequate. In the first place, several States do not have such legislation, and secondly, such State statutes as have been enacted are not consistent in their provisions. This inconsistency in the existing State legislation is particularly unfortunate where a station's programs are heard or seen in several Štates, as is quite frequently the case.
The Commission believes, therefore, that Federal legislation such as the bill now under consideration should be enacted in order to settle the question. However, we have no doubt as to the authority of Congress having forbidden censorship, to grant immunity from civil liability to broadcasters in State and local as well as Federal courts.
We are also in agreement that immunity from liability should be extended to include agents and employees of the station licensee. The considerations applicable to licensees would appear to be equally applicable to such employees and agents.
Finally, the majority of the Commission approves the provisions in H. R. 4814 which would make the licensee or his agents or employees liable for defamatory statements in broadcasts under section 315, if they, and I will quote it, “willfully, knowingly, and with intent to defame" participate in such a broadcast.
A licensee or his employees always “participate” in broadcasts, but if that participation is willful, knowing, and with intent to defame, and consists of something more than complying with the statutory duty to allow the broadcast to take place, we think it clear that the immunity provisions should not be applicable to them.
Commissioner Doerfer is of the opinion that the licensee or his employees should also be held accountable if they "wantonly” participate in a political broadcast containing defamatory statements. He would not relieve licensees or their employees of liability if they fail to exercise at least the slight degree of care to warn candidates in advance concerning the consequences of uttering statements that are clearly libelous or slanderous.
Mr. HARRIS. I observe that you have with each of these statements comments of the Federal Communications Commission on the bill.
Mr. MCCONNAUGHEY. Yes, sir.
Mr. HARRIS. Without objection, those comments will be included in the record along with the statements on the various bills.
(The documents referred to were inserted with the reports of the Federal Communications Commission on each of the bills.)
Mr. HARRIS. I believe you have another one.
Mr. McCONNAUGHEY. Yes, sir; I have another one. Two bills, H. R. 6968 and H. R. 6977 are identical. Each would add a new subsection to section 308 of the Communications Act, providing that the Commission could not adopt any rule which would discriminate against persons because of their interests in any medium primarily engaged in the gathering and dissemination of information. The bills would also prohibit the Commission from denying any application solely because of any such interest.
The question of newspaper ownership of radio facilities has been frequently considered by Congress, the Commission, and the courts. In fact, the conference committee considering the Communications Act amendment of 1952, deleted from that legislation the identical provision now proposed in H. R. 6968 and H. Ř. 6977.
In rejecting this provision, the conference committee stated that it was unnecessary for the reasons that the Commission did not have the authority to promulgate any rule discriminating against newspapers or to arbitrarily deny an application solely because of such interest. We fully agree with this opinion of the conference committee.
What exactly are the Commission's policies with respect to applicants who have newspaper interests? In noncomparative proceedings, the fact of a newspaper ownership is irrelevant, except insofar as it may indicate that a grant of the application would be contrary to the public interest, because it would result in an undue concentration of control of the media of mass communication. Moreover, the Commission has never denied an application in an uncontested case solely because the applicant had newspaper interests. The only instance in which the Commission has denied an application in a noncomparative case because of circumstances surrounding the applicant's newspaper interest was the Mansfield Journal case.
There the record clearly demonstrated that the applicant had used its monopoly newspaper position in an attempt to force a radio station out of business through coercive pressures on advertisers. Incidentally, in that case the coercive practices were subsequently held by the courts to be in violation of the antitrust laws.
In cases involving mutually exclusive applications, the Commission must determine on a comparative basis which of two or more applicants, who usually possess the minimum qualifications, would best serve the public interest. In such comparative proceedings, the Commission must, in accordance with the rulings of the courts, consider and evaluate all of the factors which the parties advance as indicating differences between them. One of these factors is the interests which the parties already possess in the media of mass communication. These media include radio and television stations, newspapers and motion picture theaters. Where this issue with respect to the media of news communication has been raised, the Commission has followed a consistent policy. It has always evaluated the various mass media interests of the applicants and has recognized the relative benefits to be derived by diversification of those media. These benefits are:
The encouragement of competition between the various media, the avoidance of concentration of control over the avenues of communication of fact and opinions to the public and making available to the public a more varied approach to questions of interest. This policy of encouraging diversification has been specifically approved by the courts.
I must emphasize one fact. While the Commission has maintained a consistent policy with respect to diversification, that factor is merely one of numerous factors which the Commission must evaluate in any comparative proceeding, and diversification is not necessarily the controlling factor. It may or may not be, depending on the facts in the particular case. A preference awarded for diversification may be slight or it may be substantial. A newspaper may prevail despite the diversification factor, because of its superiority with respect to pro
gram plans, integration of ownership and management, local ownership, or past broadcast experience.
The Commission's recent grants to newpaper applicants in Tampa, Fla., and Miami, Fla., are merely illustrative of the fact that such applicants, because of superiority in other factors, can win out over nonnewspaper opponents. In fact, newspaper ownership may constitute an asset to an applicant. The fact that an applicant has operated a newspaper in the community in question may demonstrate its ability to perform outstanding public service in that community, as well as its ability to respond to the community's particular needs.
The Commission is of the opinion that if this proposal becomes law, it might have unfortunate results. It might preclude the Commission from considering local newspaper ownership even as merely one of the many factors that the Commission would have to evaluate. Actually, it is difficult to say exactly what this legislation would or would not do since some of its terms are so ambiguous. No definition is included of the term "discrimination,” nor are we able to tell the precise meaning of the clause prohibiting the Commission from denying an application “solely” because of an applicant's interest in any medium primarily engaged in the gathering and dissemination of information.
Would this legislation prevent the diversification factor from being used against newspaper applicants but permit its use against those controlling other mass media? If so, this would be discrimination in favor of newspapers. If it is meant to preclude consideration of all mass media interests, it would mean the Commission could not even take into consideration the number of other radio or television interests of an applicant. It might prohibit the Commission from considering the fact that an applicant was publishing a scratch sheet, or operating a racing wire network in aid of illegal gambling.
In summary, we believe that legislation such as this which in our opinion might prohibit consideration of the diversification principle in comparative licensing proceedings would not serve the public interest, and would be contrary to the many Federal laws concerned with fostering competition.
Moreover, we do not think legislation is necessary to protect newspapers om discrimination. The fact that newspapers have an interest in approximately 30 percent of the television stations in this country is eloquent testimony to the lack of any such need.
Mr. HARRIS. Thank you, Mr. Chairman. There are several other bills.
Mr. McCONNAUGHEY. Yes, sir.
Mr. HARRIS. The bells have rung on an automatic rollcall for a vote. It went over from yesterday. So the committee as you can see, must go to the House. Would it be convenient for you to come back in the morning at 10 o'clock?
Mr. McCONNAUGHEY. Certainly, sir. Commissioner Webster is going to testify on the balance of these bills. They are mostly technical. We have our Commission agenda tomorrow, on which we have deadlines on certain items. If Commissioner Webster could come up and the General Counsel, would you permit the Commission to go ahead with its regular hearing?