In Re Request by NICHOLAS ZAPPLE,
COMMUNICATIONS COUNSEL, COMMITTEE ON COMMERCE For Interpretative Ruling
Concerning Section 315 Fairness Doctrine
FEDERAL COMMUNICATIONS COMMISSION
23 F.C.C.2d 707
RELEASE-NUMBER: FCC 70-598
JUNE
3, 1970
OPINIONBY: BURCH
OPINION:
[*707]
Mr. NICHOLAS ZAPPLE, Communications Counsel, Committee on Commerce, U.S.
Senate, Washington, D.C. 20510.
DEAR MR. ZAPPLE:
This is in response to your letter of May 6, 1970, requesting an interpretative
ruling on two questions involving the applicability of the fairness doctrine to
situations where supporters of a political candidate purchase broadcast time.
Specifically,
your first question concerns the station licensees' obligation to authorized
spokesmen or supporters of a political candidate in the following
circumstances:
(a) A broadcast
station sells time to candidate A, his authorized spokesman, an individual, a
group, or an organization supporting him to urge his election. Candidate A does not appear personally on
any of these broadcasts; however, issues in the campaign and/or the candidate
are discussed. An authorized spokesman,
an individual, a group, or an organization supporting candidate B requests
fairness time under the FCC's existing policies.
First, we hold that the fairness doctrine is plainly
applicable in the circumstances you outline, and that the critical question is
the nature of its application. The
Commission has consistently held that the fairness doctrine is applicable to
programs on which supporters of a candidate discuss the candidates or the
issues. See also, section 315(a), where
Congress specifically recognized the applicability of the fairness doctrine to
those news-type appearances of the candidates themselves which were exempted
from the equal opportunities provisions by the 1959 amendments to section
315(a).
As you know, the
fairness doctrine requires that when a licensee presents one side of a
controversial issue of public importance, he must afford a reasonable
opportunity for the presentation of contrasting views. Unlike the precise equal opportunity
standard of section 315, the licensee's obligation under fairness must be
determined in light of all the relevant facts of a particular case. Initially it is for the licensee to make
good faith judgments on a number of questions, such as whether a controversial
issue of public importance is involved, what are the contrasting views which
should be presented, who are appropriate spokesmen, what format should be
employed, etc. Thus, while it is not
possible to give a definitive answer to your question [*708] absent the full
facts concerning a particular case, we nevertheless believe we can set forth
some of the principles which would govern the type of situation you have outlined.
With this as
background, we turn now to the critical issue of the nature of the
applicability of the fairness doctrine to your first question (a). Where a spokesman for, or a supporter of
candidate A, buys time and broadcasts a discussion of the candidates or the
campaign issues, there has clearly been the presentation of one side of a
controversial issue of public importance.
It is equally clear that spokesmen for or supporters of opposing
candidate B are not only appropriate, but the logical spokesmen for presenting
contrasting views. Therefore, barring
unusual circumstances, it would not be reasonable for a licensee to refuse to
sell time to spokesmen for or supporters of candidate B comparable to that
previously bought on behalf of candidate A.
A further issue
raised by your question is whether a licensee must provide free time to
candidate B's spokesmen or supporters.
As a general proposition the Commission has held that the public's right
to know cannot be defeated by the licensee's inability to obtain paid
sponsorship for presentation of a contrasting viewpoint even where the initial
presentation was made under paid sponsorship.
Cullman Broadcasting Co., 40 F.C.C. 576 (1963). While we continue our
firm support for this general proposition, we believe it should not have
applicability in the direct political arena.
When spokesmen or supporters of candidate A have purchased time, it is
our view that it would be inappropriate to require licensees to in effect
subsidize the campaign of an opposing candidate by providing candidate B's
spokesmen or supporters with free time (e.g., the chairman of the national
committee of a major party purchases time to urge the election of his
candidate, and his counterpart then requests free time for a program on behalf
of his candidate). Any such requirement
would be an unwarranted and inappropriate intrusion of the fairness doctrine
into the area of political campaign financing.
n1 To implement this view, we would
carve out the same area as in the case of our personal attack rules, n2 i.e., there would be no obligation to provide free
time to authorized spokesmen of or those associated with legally qualified
candidate B in a situation such as your point where candidate A, his authorized
spokesmen or those associated with him, have purchased time.
n1 As you know, the Commission,
along with many others, has been greatly concerned with the growing costs of
broadcasting in political campaigns; we have thus supported pending legislative
proposals to provide relief in this area.
See hearings S. 2876, Communications Subcommittee, Senate Committee on
Commerce 91st Cong. 1st sess., pp. 67-81.
We have also submitted a proposal for amendment of section 315 to the
Congress designed to facilitate the furnishing of free time to candidates. We have stressed the obligation of licensees
to provide time for coverage of issues of importance to their communities,
which include, of course, important political campaigns. The essential point is that these efforts
are directed to providing free time for coverage of political campaigns and the
opposing candidates, not to providing free time to one side where the other
side has purchased time.
n2 See, e.g., sections 73.123(b),
73.300(b), 73.598(b) and 73.679(b); "Memorandum Opinion and Order"
(docket No. 16574), 8 F.C.C. 2d 721, 726.
Your second
question concerns the obligation of the station licensee to authorized
spokesmen for or supporters of a political candidate in the following
circumstances:
(b) A broadcast
station sells time to an individual, a group or organization supporting
candidate A and such broadcast time is used to criticize candidate [*709]
B or his position on the issues of the campaign. An authorized spokesman, an individual, a
group or an organization supporting candidate B requests fairness time under
the FCC's existing policies.
We believe the
answer to your second question is governed by essentially the same principles,
as the answer to the first, i.e., that the fairness doctrine is applicable (see
discussion on p. 2 for its applicability) but that the licensee would not be
obligated to provide free time to authorized spokesmen for candidate B or to
those associated with him in the campaign if authorized spokesmen of candidate
A or those associated with him in the campaign had used paid time on the
licensee's station to criticize candidate B or his position on the campaign
issues. Here, of course, there is a
closer analogy to the personal attack situation, although mere criticism would
not constitute a personal attack within the meaning of our rules.
We hope the
foregoing is helpful to the Congress in consideration of the important
legislative matters before it. We
stress again that our response is limited to the situations described in your
questions, and that definitive rulings can only be made in the context of
specific factual cases.
This letter was
adopted by the Commission at its meeting of June 3, 1970.
BY DIRECTION OF THE COMMISSION, DEAN BURCH, Chairman.
CONCUR:
CONCURRING
OPINION OF COMMISSIONER NICHOLAS JOHNSON
The problems
posed by the use of radio and television time by political candidates and their
spokesmen and supporters are extremely difficult -- but of vital importance to
our political system. Money buys
television time; and television time can "buy" political office. This simple equation seriously challenges
the continuation of our self-governing Nation.
I concur
generally in the Commission's response to Mr. Zapple's letter. I believe, however, that we could have dealt
more fully with the complicated issues involved in the questions he has
raised. I would like, therefore, to set
forth my own understanding of the majority's position, and add a few
observations of my own.
Section 315(a)
of the 1934 Communications Act provides that licensees, who permit legally
qualified candidates for public office to use their broadcasting facilities,
must afford "equal opportunities" to all other legal candidates for
the use of their broadcast facilities.
Section 315(a) does not, however, make any reference to
"spokesmen" or "supporters" of political candidates. n1
And this Commission has ruled that section 315(a) applies only to legally
qualified "candidates," not to persons (such as "spokesmen"
for or "supporters" of legally qualified candidates) who speak for or
against candidates or issues involved in current political campaigns. "Use of Broadcast Facilities by
Candidates for Public Office" (F.C.C. "Public Notice," April 27,
1966), 31 Federal Register 6660, 6662 (May 4, 1966). Accordingly, when a spokesman for or supporter of a legally
qualified political candidate
[*710] appears on radio or
television and either discusses the issues or criticizes the opposition
candidate or his position on the issues, the station is apparently under no
obligation to provide "equal opportunities" for rebuttal to
supporters or spokesmen for the opposing candidate under section 315(a). n2
n1 Contrast, however, our personal
attack rules, e.g., 47 CFR sec. 73.123(b).
n2 What the majority does in today's
letter is, in effect, to bring in "supporters" of or
"spokesmen" for candidates through the back door of the fairness
doctrine. I see no legal reason why the
Commission could not rule that sec. 315(a) encompasses spokesmen for or
supporters of political candidates as a logical extension of congressional
intent. Instead, the majority has
brought supporters and spokesmen in under the fairness doctrine, and then
excluded them from its free time aspect established in Cullman Broadcasting
Co., Inc., 25 P. & F.R.R. 895 (F.C.C. 63-849, Sept. 18, 1963) -- a move
which would seem indistinguishable from a sec. 315(a) ruling expanding the
concept of candidates to include spokesmen and supporters. Thus, the Commission is apparently unwilling
to enlarge sec. 315(a), but willing to narrow the Cullman interpretation of the
fairness doctrine. There may well be
policy reasons for this approach; if so, I would have preferred that they
appear in the majority's letter.
Mr. Zapple has
inquired whether -- and the extent to which -- the fairness doctrine applies to
this situation. We have answered: (1)
The fairness doctrine applies -- imposing on licensees the obligation to
present all views on the issues involved; (2) that the presentation of spokesmen
or supporters of the opposing candidates are probably (but not necessarily) an
appropriate way to comply with a licensee's fairness doctrine obligations; and
(3) that unlike the situation in Cullman Broadcasting Co., 25 P. & F. Radio
Regulation 895 (F.C.C. 63-849, Sept. 18, 1963), the licensee does not have to
offer free time to such opposing spokesmen or supporters.
I would like to
add several observations. First, the
Commission has not discussed the question whether a licensee must seek out and
present the views of an opposition candidate who does not come forward to
purchase rebuttal time. Presumably, if
the fairness doctrine is invoked by the supporters of or spokesmen for one
candidate, the licensee has an affirmative obligation to present the other side
of the controversy. In most large
electoral races, e.g., presidential, senatorial, congressional, etc., news
coverage of the campaign may, under a few limited circumstances, satisfy this
obligation. The opposition candidate
(or his spokesmen or supporters) might, for example, hold a press conference to
rebut the charges, and this conference might receive normal news coverage. n3
n3 Several problems remain. The quantity of news coverage (in terms of
seconds or minutes), for example, may be dwarfed by hours and hours of paid
political time from the opposing side.
In such a case, the licensee would presumably not be providing a
"significant," see National Broadcasting Co., Inc. (WNBC-TV), 16 F.C.C.
2d 956 (1969), amount of fairness doctrine rebuttal time by news coverage
alone, and other steps might be required.
Further, the quality of presentation (e.g., a slickly-packaged
commercial presentation lasting 15 minutes might carry far greater impact than
an isolated 30-second clip of a press conference on a local news program) might
vary substantially, having some impact on the question whether significant
rebuttal time had been offered.
In smaller
races, however, e.g., State assemblymen, local school board, etc., there may be
no news reporting of the opposition candidate's views in the normal course of
campaign coverage. Under such
circumstances, if the fairness doctrine truly applies, I would assume that the
licensee would be required to present the opposition candidate's views in some
manner. If that candidate himself is
the only person qualified to speak on his position, and if he does not step
forward because he cannot afford to pay the going rate, how is the licensee to
avoid putting him on -- free? The
alternative would seem [*711] to be an "uninformed public." n4 I do not believe the majority letter has resolved
this question. I would at least have
preferred some explicit discussion -- or even acknowledgement -- of this
problem.
n4 See Cullman Broadcasting Co.,
Inc., 25 P. & F.R.R. 895, 896-97 (F.C.C. 63-849, Sept. 18, 1963), in which
we stated:
[It] is clear that the public's
paramount right to hear contrasting views on controversial issues of public
importance cannot be nullified * * * by the inability of the licensee to obtain
paid sponsorship of time for the broadcast of a view contrary to one already
presented in a sponsored program * * *.
In short, where the licensee * * * has been unable to obtain paid
sponsorship for the appropriate presentation of the contrasting viewpoint or viewpoints,
he cannot reject a presentation otherwise suitable to the licensee -- and thus
leave the public uninformed -- on the ground that he cannot obtain paid
sponsorship for that presentation.
[Emphasis in original.]
Second, I do not
believe the Commission has made it clear that the free time requirements of
Cullman are not abolished altogether in the area of political campaigns. As the majority correctly states, it is, at
least initially, a matter for the licensee to make good faith judgments as to which
person might be an appropriate spokesman to rebut the charges of a candidate's
spokesman or supporters. If this is
true, the majority has left open the possibility that the licensee might
legitifairly and reasonably conclude that the opposition's views can be
presented by someone who is not a candidate, or the supporter or spokesman for
a candidate, and proceed in such a manner.
If so, he must presumably offer the time free.
Third, I am
uncertain whether the Commission believes it cannot (legally) n5 provide free rebuttal time under the fairness
doctrine and Cullman to opposition spokesmen or supporters; or whether it feels
it is merely inadvisable (in terms of policy) to do so. As a matter of legal construction, the
phrase, "equal opportunities," in section 315(a), appears broad
enough to accommodate a doctrine which would enable a political candidate to
obtain free rebuttal time upon some convincing showing that he was unable to
raise the necessary money to buy time.
n6 Therefore, this argument is even stronger for "supporters"
of or "spokesmen" for political candidates -- persons not expressly
covered by the language of section 315(a).
If the majority has made a policy determination in this area, I would
have preferred some recitation of those policies -- ideally a briefing by
interested parties as well. I would
find merit in a proposal to review all these problems in one coherent document,
following the submission of pleadings from interested persons, permitting us to
consider the views of candidates for political office, licensees, and members
of the public.
n5 For example, the legislative
history to sec. 315 might indicate that Congress did not wish the FCC to permit
political candidates, under any circumstances, to obtain free time for rebuttal
to political opponents. On the other
hand, there is at least a doubt whether such an imputed intent would be
constitutional in light of the first amendment and the "one man, one
vote" requirement in Baker v. Carr, 369 U.S. 186 (1962).
n6 After all, an analogous doctrine
has been invoked many times by the Supreme Court in other, equally important
areas of the law. See, e.g., Griffin v.
Illinois, 351 U.S. 12 (1956), holding that the "Equal Protection" clause
of the 14th amendment required that all indigent criminal defendants be
furnished a transcript of their trial to facilitate appellate review.