In the Matter of AVAILABILITY OF
NETWORK PROGRAMING TIME TO MEMBERS OF THE CONGRESS
FEDERAL COMMUNICATIONS COMMISSION
40 F.C.C.2d 238
February 6, 1973 Released
Adopted December 20, 1972
JUDGES:
BY THE COMMISSION: COMMISSIONERS JOHNSON AND HOOKS DISSENTING AND ISSUING
STATEMENTS; COMMISSIONER H. REX LEE CONCURRING IN THE RESULT.
OPINION:
[*238] 1. We have
before us a complaint filed on June 13, 1972 by fourteen members of Congress n1 against the three national television networks (NBC,
ABC, CBS) for allegedly refusing to sell complainants one-half hour of prime
network time to "inform the public about and seek the public's guidance
with respect to contemplated Congressional action concerning American
involvement in the Indochina War" and thereby "present a contrasting
viewpoint to that of the Administration on the global crisis caused by the
mining of Haiphong harbor and other recent acts to escalate and extend the war."
Complainants stated that prior to the adjournment of Congress a number of
authorization and appropriation bills or amendments thereto would be considered
that would establish dates to end United States military activities in South
Viet Nam or to remove American forces. Complainants alleged that the
American people had heard little about these measures from members of Congress
who require the guidance of the electorate in deciding how to vote on them, and
that it was therefore necessary that the networks sell complainant members of
Congress broadcast time to address the public on these issues.
n1 The Honorable Harold E. Hughes,
Senator, Iowa; Alan Cranston, Senator, California; Fred E. Harris, Senator,
Oklahoma; Philip A. Hart, Senator, Michigan; Vance Hartke, Senator, Indiana;
Mike Gravel, Senator, Alaska; Daniel K. Inouye, Senator, Hawaii; Herman
Badillo, Representative, New York; John Conyers, Jr., Representative, Michigan;
Donald M. Fraser, Representative, Minnesota; Henry Helstoski, Representative,
New Jersey; Abner J. Mikva, Representative, Illinois; Donald W. Riegle, Jr.,
Representative, Michigan; and John F. Seiberling, Representative, Ohio.
2. Complainants stated that
Senator Harold E. Hughes, as spokesman for complainants, telephoned Dr. Frank
Stanton, Vice-Chairman of the Board of CBS, on May 15, 1972, Mr. Iarricci of
NBC on May 16, 1972, and Mr. James Shaw of ABC on May 16, 1972, to request the
purchase of time. Their request was allegedly rejected by CBS on May 15,
1972 on the grounds that CBS had fulfilled its fairness doctrine obligations in
presenting views contrasting with the President's and that CBS does not sell
time to individuals for the presentation of [*239] views on
controversial issues. n2 NBC allegedly
never answered Senator Hughes' request, although it promised to do so by May
23, 1972, and ABC allegedly rejected the request on May 16, 1972 for reasons
similar to those advanced by CBS.
n2 Complainants have attached a
letter dated May 23, 1972, from CBS to Senator Hughes indicating that CBS
rejected the Senator's request because CBS believed that (a) the sale of time
to individuals for the discussion of controversial issues would be an
inappropriate abdication of licensee journalistic discretion and would put a
premium on the ability of particular spokesmen to buy time; and (b) CBS had
fulfilled its fairness obligations in presenting views in opposition to the
President's views on the administration's policy in Indochina, including the
mining of Haiphong Harbor.
3. Petitioners' complaint
requested the following relief: (1) that the Commission issue a declaratory
ruling to the effect that the networks are required to sell or otherwise make
available a reasonable amount of time to members of Congress who represent the
views of a substantial number of the members, so that they may present
information to, and seek the guidance of, the American electorate regarding
prospective congressional action on matters of overriding national importance,
unless the networks are prepared to demonstrate that a reasonable amount of
time has been devoted to these purposes; (2) that the Commission order the
networks to sell, or otherwise make available, a reasonable amount of time to
complainants in this case for the purposes described in (1), since the networks
have not and cannot show that they have made available to members of Congress a
reasonable amount of time for discussion of pending anti-war congressional
measures which are of national importance; (3) that the Commission expedite the
processing of this complaint and request by requiring the respondent networks
to file their responses to this pleading by June 19, 1972; by granting
complainants leave to file a reply by June 20, 1972; and by ruling by June 21,
1972; and (4) in the alternative, that the Commission grant complainants
interim relief by ordering the networks to sell or otherwise make available to
complainants a reasonable amount of time for the purposes described
above. The Commission denied complainants' request for expedited
consideration and interim relief on June 16, 1972. See In the Matter of
Availability of Network Programming Time to Members of the Congress, 35 F.C.C.
2d 531 (1972), motion for summary reversal or interim relief denied sub
nom. Harold E. Hughes, et al., v. F.C.C., Case No. 72-1560, C.A., D.C.,
June 21, 1972. The merits of the complaint of course remained before us.
4. The petitioners offered
three principal arguments in support of their complaint: (1) that the
Constitutional doctrine of checks and balances requires that members of
Congress have some access to the television medium; (2) that the First
Amendment precludes the networks from denying to Congress, through its
membership, some access to the airwaves; and (3) that the public interest
standard of the Communications Act requires the networks to sell or otherwise
make available some broadcast time to members of Congress. In support of
the first of these positions, it is urged that the governmental powers of
making and executing the laws were apportioned between the Congress and the
presidency in order to protect the governed from a concentration of potentially
tyrannical power. It is said that the separation of powers concept was
not envisioned as self-executing, and that the balance between the branches of
government was to be preserved, inter alia, by [*240] the
requirement that each branch communicate its activities to an appropriate
constituency or body. Thus, complainants argue, Article I, Section V,
Clause 3, of the Constitution requires Congress to keep a "journal"
of its proceedings by which the people can be informed of congressional
activities, while Article II, Section III, of the Constitution, on the other
hand, requires the President to give the Congress information on the state of
the union from time to time. At no point does the Constitution explicitly
refer to direct communications from the President to the people, complainants
assert. Citing several of the Federalist papers, complainants further
argue that the President's direct contact with the electorate was to be
limited, but that the founders intended that the Congress should provide and
receive information from the public in properly fulfilling its constitutional
responsibilities. Complainants believe that network policies of never
refusing a Presidential request for air time to address the public have given
the President a great and improper advantage over the Congress in communicating
with the American people. n3
Since television is the most powerful mass communication device known and the
most important source of information for most people it should be politically
neutral, complainants argue. Otherwise the balance of powers created by
Articles I and II of the Constitution will be destroyed, with the advantage of
access to the airways concentrated in the executive branch and denied to the
Congress.
n3 This change from the situation
allegedly contemplated by the Constitution is illustrated, complainants argue,
by the State of the Union Address. What was originally a constitutional
obligation of Presidential communication with Congress has become, through
television, a vehicle for the President to communicate simultaneously and
directly with the electorate, thus putting the Congress on the defensive in
responding to Presidential initiative. The Congressional response,
however, unlike the Presidential address, is not broadcast live, in prime time,
simultaneously on all networks, but is instead covered in news broadcasts or on
panel shows where members of Congress have no control over format, backdrop,
time, etc.
5. With particular reference
to the Indochina war issue, complainants assert that Congress has a role in
checking Presidential excesses in committing troops and resources to that
conflict, if such excesses exist, but that for the last several years,
"... the American people have heard only half a debate on the Indochina
war -- the President's view of the Executive's role in the conduct of the
war," because the President has had significant access to the people
through television to discuss the war while members of Congress have not had
comparable opportunities. While complainants recognize that it is
desirable that the President keep the public fully informed on the war issue,
they maintain that this direct interaction between the President and the public
has altered the relation between the branches of government and between the
branches of government and the people. n4 While complainants recognize that members of Congress and spokesmen for
the Democratic National Committee have presented views in opposition to the
President's on the war, it is said that none of those appearances presented the
viewpoint of members of Congress relating to the exercise of Presidential power
or the issue of what, if anything, the Congress should do to check the exercise
of such power. The appearances [*241] were partisan and
therefore inadequate to preserve the integrity of Congress as an independent
branch of government or to maintain the system of checks and balances.
Moreover, in an era denoted by a bipartisan foreign policy, partisanship is an
insufficient guarantee of the public's right to hear dissenting congressional
views or to assure the functioning of the system of checks and balances.
Complainants assert, therefore, that while there may have been debate on the
merits of the President's war policies, there have been few or no affirmative
presentations of congressional alternatives, and little or no time allowed for
congressional appeals for public support of increased congressional control of
the war.
n4 The complaint thus referred to
pending major resolutions relating to the termination of all military
activities in Vietnam by particular dates, asserting that the public had heard
little about these particular measures from Members of Congress who require the
guidance of the electorate in deciding how to vote on them.
6. Complainants also argue
that the public interest standard of the Communications Act of 1934 requires
that the networks make available the broadcast time requested.
Complainants maintain that the public interest standard requires licensees to
cover controversial issues, and to devote considerable time to coverage of
political affairs because it contributes to an informed public.
Complainants observe that the Commission, on this ground, has endorsed the
network practice of affording time for Presidential addresses, see Committee
for Fair Broadcasting, 25 F.C.C. 2d 283 (1970), and that this public interest
is equally applicable to members of Congress, so that the Commission must
consequently grant the relief requested.
7. In response, the networks
argue that the declaratory ruling sought by complainants is not required by the
alleged necessity of preserving the constitutional system of checks and
balances. Respondents argue that complainants have failed to cite any
authority in support of that argument. Moreover, NBC argues, the
complainants have suggested an extraordinary remedy for the problem they
perceive: the appropriation and use of privately owned broadcast facilities to
remedy an alleged imbalance in the structure of government. CBS observes
that nowhere in the Constitution is a duty imposed upon the press to maintain
the balance of power between the governmental branches, nor is any power
granted to the Federal government in the Constitution to compel private
institutions to cooperate in correcting an alleged imbalance in such
powers. NBC also argues that if the framers had intended to require the
press to provide equal access to the branches of government, the Constitution
would have so specified. Instead, it was intended that the press be free
of all governmental control or interferences and not be required to turn over
blocks of time or space to a branch of government for its particular use.
8. Complainants' reliance on
the Constitutional requirement that Congress maintain a "journal" as
evidence that the framers intended that members of Congress be able to
communicate with their constituencies is said to be misplaced, because the
journal fulfills a recording function and operates after the fact to provide
information on Congressional actions, and not, as complainants suggest, to
communicate an interchange of views between members of Congress and their
constituencies prior to a vote on pending legislation. It is also
maintained that contact between members of Congress and their constituencies
was established through the election process and not through press
communications. Complainants are also said to misconstrue the
[*242] roles of the branches of government, since individual members of
Congress have a need to communicate with their respective constituencies, but
not necessarily with all the people on all national issues. Respondents
observe in this connection that complainants represent only 14 of the 535
discrete constituencies represented in Congress, while the President, as one of
the only two nationally elected officers, is responsible to, and must
communicate with, the whole electorate.
9. The respondent networks do
not explicitly answer complainants' public interest argument, but do address
themselves to the public interest implications of the checks and balances
argument. First, the networks disagree with complainants' initial premise
that there has been any imbalance in use of the television medium between the
President and members of Congress which could be said to alter the system of
checks and balances. They also insist that their public interest
obligations have been fulfilled in that access has been afforded to members of
Congress, the public has not been left uninformed about the war or
Congressional views thereon, there has been no violation of the Fairness
Doctrine, and current Commission policy does not mandate the relief complainants
seek. The networks argue that no showing has been made by complainants
under the Fairness Doctrine or otherwise that there has been any imbalance in
the actual appearance of members of Congress and the President, or that members
of Congress have not been afforded access to address their
constituencies. CBS claims that it regularly presents members of Congress
in free time, on news and public affairs programs, that in 1971, for example,
there were 687 appearances by members of Congress in CBS Television Network
news and documentary broadcasts, and that in the 36 days between the
President's announcement of the mining of Haiphong Harbor and the filing of the
instant complaint, there was 19 appearances by members of Congress on regular
CBS news programs to express views critical of the Administration, in addition
to other appearances by members of Congress in special news programs, interview
programs, etc. CBS correspondents also covered the introduction and
discussion of Congressional bills to end the war or cut off war funds.
NBC claims that complainants' assertion that the American people have heard
only half a debate on the Indochina war -- i.e., the President's view of the
Executive's role in the conduct of the war, or that members of Congress have
been denied access, is insupportable.
10. NBC views the issues
raised in this complaint, i.e., the propriety of the President's exercise of
power in conducting the war and the consideration of pending Congressional
action to limit the President's powers, as sub issues of the broader Vietnam
War issue, an issue it has covered extensively. NBC states in its brief,
and by exhibits reviewing its public affairs and special news programming, that
it has afforded adequate coverage to members of Congress on the Indochina war
issue. NBC also notes that to the extent members of Congress seek to
communicate with their own constituencies, they do not require national
exposure, and that NBC's owned and operated stations have afforded access to
members of Congress in their service areas. NBC also states that it has
no policy precluding the sale of time to members of Congress for the discussion
of controversial issues, that in May, 1970 it [*243] sold such time
to a group of Senators, including Senator Hughes, a complainant herein, that it
considers such requests as one means of informing the public on significant
issues, and that upon receipt of complainants' request to buy time, NBC
informed complainants it would attempt to clear one hour of prime time (9:30
P.M. EDST) on May 23, 1972 for complainants' use. After the filing of
this complaint, NBC offered 15 minutes of prime time (8:00 P.M. EDST) on June
26, 1972, which offer complainants allegedly rejected because of insufficient
funds. NBC also states that a review of its public affairs programming
for sample periods (April, May 1970, 1971 and 1972) shows between 41 and 70
appearances by members of Congress on the NBC television network in regularly
scheduled public affairs or special news programs alone.
11. ABC construes the
complaint as raising only one issue under existing law, i.e., whether the ABC
television network has given adequate and fair opportunity for the public to be
informed about the various facets of the Vietnam war, including the views of
members of Congress about the war and the appropriate roles of the Congress and
the President in attempting to end it. With respect to the complaint that
members of Congress are denied access to the television medium comparable to
that afforded the President ABC states that Congressional spokesmen appeared on
ABC to discuss the Vietnam war 47 times since the beginning of the Nixon
Administration. ABC outlined its record in affording access to members of
Congress in its special news and public programming, showing that there were 50
appearances by members of Congress between January 1, 1971 and February 15,
1972 over the ABC television network.
12. Respondents further argue
that complainants have no viable claim under the Fairness Doctrine, since the
Fairness Doctrine is issue oriented and provides no right of access for
particular individuals or groups except in the personal attack or political
editorializing situations. Recognizing that the Fairness Doctrine is
applicable to Presidential speeches dealing with controversial issues of public
importance, they observe that the Commission and courts have refused to require
that equal time or other right of response be granted to any particular
group. Respondents assert that the scheduling of Presidential broadcast appearances
is part of the journalistic process and depends upon the licensee's
determination of the newsworthiness of the appearance. No other
individual has powers similar to those of the President or makes decisions of
comparable magnitude. Consequently, equal or comparable treatment of the
views of other persons, even members of Congress is not compelled by
journalistic considerations. Complainants' proposals would require that
time be afforded without regard to the newsworthiness of the subject. To
require such treatment would undermine the trustee role of the licensee and
would substitute government control for the editorial independence of the
television medium, according to ABC and NBC, a result inconsistent with the
regulatory scheme adopted by Congress and expressed by the Commission in the
Fairness Doctrine.
13. In reply, complainants
state that the networks have distorted the nature of their claim. They
say that this is not a Fairness Doctrine [*244] case, and that
complainants are not seeking merely to present a "congressional point of
view" or to obtain an automatic right of response to Presidential
addresses, but rather a ruling that the networks have some obligation to allow
some members to buy or otherwise obtain broadcast time to seek the guidance of
the electorate on matters pending in Congress, pursuant to recognizable
standards administered by licensees, and that a flat ban on the sale of time
for such discussion of important national issues is unreasonable,
unconstitutional and violative of the Communications Act of 1934. Since
this complaint is not grounded in the Fairness Doctrine, complainants argue,
the networks' showing that they have afforded the public access to contrasting
views on the war is unresponsive and does not demonstrate that the public has
been informed of the specific measures pending in Congress or that Congress has
been able to secure public guidance on those issues. Similarly, the
showing that particular members of Congress have made broadcast appearances
fails to show that such appearances were related to the specific legislation
complainants wish to discuss. Complainants reassert that the network
practice of discriminating in favor of Presidential speech and against
Congressional speech by consistently granting Presidential requests for time is
violative of both the First Amendment and the public interest. Network
responses that the President's role is unique among governmental officials and
therefore warrants public access, and that members of Congress are permitted to
make broadcast appearances by licensees, do not refute complainants' contention
of unlawful discrimination in access to the media in favor of the
President. The Congress is a coordinate branch of government,
complainants argue, and has specific and unique powers as important as those of
the President. Consequently, members of Congress have as great a need to
communicate with the public on matters of national importance as does the
President. Members of Congress are national officials, complainants
assert, dealing with issues of national importance. The requested access
is needed to inform the entire electorate of pending legislation and to seek
guidance for the entire Congress.
14. To a considerable extent,
the complaint before us in this proceeding raises questions already decided
adversely to the complainants' position. Thus, we have previously decided
that the First Amendment does not confer a right of access to broadcast
facilities, n5 and that neither the public
interest nor any Congressional enactment requires licensees to sell time to
particular groups for the discussion of public controversial issues. In
Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283,
294-296 (1970), n6 we rejected the contention that "the
Commission should require networks to provide time to any substantial group of
senators opposing the President's views on a controversial issue of national
importance wherever the issue is one in [*245] which the Senate has
a role to perform in seeking resolution of the issue, and the President has
initiated debate via nationwide television." We refused to single out any
group of senators as being entitled to time to respond, pointing out that
"members of the House, Governors, and other public or private officials
would be just as appropriate spokesmen." We are now engaged in a broad
review of the Fairness Doctrine in an Inquiry instituted by a notice released
on June 11, 1971, Docket No. 19260, 30 F.C.C. 2d 26. This Inquiry includes the
question of access to the broadcast media for the discussion of public issues,
and we would normally leave the questions presented by the present complaint
for resolution in the wider ranging proceeding. However, in view of
complainants' request for expedited action and the relatively narrow scope of
their complaint, we will consider it separately.
n5 Democratic National Committee, 25
F.C.C. 2d 216 (1970), reversed sub. nom. Business Executives' Move for
Vietnam Peace v. Federal Communications Commission, 450 F. 2d 642 (D.C. Cir.
1971), cert. granted and mandate stayed, 405 U.S. 953 (1972). In view of the
fact that the issue of a First Amendment right of access is now pending before
the Supreme Court, we will not reexamine that question here. See also, In
the Matter of the Handling of Public Issues under the Fairness Doctrine &
the Public Interest Standards of the Communications Act, 33 FCC 2d 800, 804
(1972).
n6 On another issue decided in this same
opinion, the Commission was reversed in Columbia Broadcasting System, Inc. v.
F.C.C., 454 F. 2d 1018 (1971).
15. The basic question is
whether complainants' new contentions take this case out of our general policy
against requiring licensees to depart from ordinary Fairness Doctrine concepts
by making time available to particular persons or groups. As our
extensive summary of the pleadings makes clear, the primary new consideration
put before us is the claim that the Constitutional separation of powers
mandates special treatment of members of Congress seeking to communicate with
the public on issues to be considered by Congress. Complainants do not
contend here that the networks have failed to fulfill their responsibilities
under the Fairness Doctrine, but that a right of access to broadcast facilities
exists for members of Congress under the stated conditions, over and beyond the
requirements of the Fairness Doctrine. We cannot agree. We see
nothing in the arguments before us to warrant a change in our established
policy. The concept of a separation of powers among the branches of the
Federal government is deeply rooted in the Constitution and well
understood. And there can be no dispute over the importance in this
scheme of the legislative powers conferred upon the public's representatives
assembled in Congress. But recognition of these basis facts of
governmental life does not take us to the next step -- that either the
Constitution or the public interest standard of the Communications Act mandates
special access, enforced by the Commission, for Congressional groups. Our
earlier decisions cited above make clear our view that the Act does not confer
the claimed right, and the Constitution says nothing on this subject, save for
the requirement that a journal be kept. We do not read that requirement
as having the consequences complainants attach to it, and while we recognize
that the Constitution would not be expected to take specific account of radio
and television, we also see no necessary nexus between the execution of
congressional functions and an allocation of nationwide television or radio
time to members of Congress. It may well be that particular members
believe that the use of network facilities is important, or even essential, to proper
communication with the public. But the Constitution does not command such
communication, and the Constitutional prerogatives and powers of Congress
remain intact without it. We do not find warrant in anything put before
us for such a novel reading of the Constitution. We note in this
connection the language of the Court of Appeals in an opinion rejecting the
claim of the Democratic National Committee to equal time to respond to
Presidential addresses [*246] ( Democratic National Committee v.
F.C.C., 460 F. 2d 891, 905 (D.C. Cir. 1972):
One of the problems faced by DNC is
the coverage given the President by the media and it is obviously because of
this wide exposure they seek our creation of a new corollary. We are not
unsympathetic to the plight of the party out of the White House but sympathy
cannot be allowed to deter the public from the maximum information it can
obtain. One of the primary sources for public information concerning the
nation and its welfare is from the Presidential broadcast. While
political scientists and historians may argue about the institution of the
Presidency 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 President 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 informed and
as this obligation exists for the good of the nation this court can find no
reason to abridge the right of the public to be informed by creating an
automatic right to respond reposed in the opposition party. In matters
which are non-political the President's status differs from that of other
Americans and is of a superior nature.
16. Turning from the
contention based upon the Constitution, to the more general area of the public
interest, we cannot be insensitive to the ramifications of departing from our
prior holdings to the extent urged here. We have been furnished no
reasonable guide, and see none, for determining the makeup of the various
Congressional groups to which the asserted right would accrue. In view of
the number of Congressmen who could be expected to seek access, the divergences
in views that could be expected on any particular issue because of partisan,
political, philosophical, regional, or other differences and interests and
because of the nature of the Congressional system, it is extremely doubtful
that either licensees or the Commission could consistently implement any
objective and impartial system of access. Nor do we believe that the
ruling requested here could be logically limited to members of Congress seeking
national access and denied to local representative leaders seeking local access
to address their constituencies. See Complaint of the Senate of the
Commonwealth of Puerto Rico, released October 13, 1972, FCC 72-922. Our
experience with the Fairness Doctrine indicates that it would be exceedingly difficult,
if not impossible, to draw a reasonable and logical line as to which particular
persons or groups would have the right to access and which would not.
Adoption of the rule requested here would go far toward making licensees act as
common carriers, contrary to the congressional scheme. See Section 3(h)
of the Communications Act of 1934, as amended, 47 U.S.C. 153(h).
17. The networks have
presented extensive evidence indicating that members of Congress have been
offered substantial access to the media to discuss the war and other important
congressional matters. Complainants, therefore, have not supported their
assertions that "... the American people have heard only half a debate on
the Indochina war..." or that members of Congress are denied access to the
television media. In this situation, and certainly in advance of
completing our overall review in Docket 19260, we are not convinced that it
would serve the public interest to attempt to create any category of
group [*247] or individual access. Nor do we believe that the
public interest standard requires the adoption of such rigid and inflexible
rules to achieve the goal of an informed public. The history of the
Fairness Doctrine dictates otherwise. As we said in our most recent
discussion of the handling of political broadcasts under the Fairness Doctrine
in Docket 19260, 36 F.C.C. 2d 40, (1972): "The genius of the Fairness
Doctrine has been precisely the leeway and discretion it affords the licensee
to discharge his obligation to contribute to an informed electorate...
Thus, the arguments for flexibility, rather than mechanical rules,... remain
persuasive." The adoption of complainants' proposals, contrary to our long
recognized policy, in order to remedy an alleged frustration of congressional
responsibility, would constitute a rigidifying step which Congress itself has
not chosen to take. n7 Congress is
certainly not without power to amend the Communications Act in order to create
some formal right of congressional access if it considers such a step necessary
to the fulfillment of its functions or preservation of its powers vis-a-vis the
President. n8 However, no congressional action of
any nature has been taken, and we are of the view that the action urged upon us
would not serve the public interest. We believe it preferable to continue
to rely upon the constraints of the Fairness Doctrine and the journalistic
discretion of licensees to insure that the public is adequately informed on
issues of national importance and the views of our elected officials on such
issues.
n7 We note that the one recent
congressignal proposal to require congressional access by amendment to the
Communications Act, S.J. Res. 209. 91st Cong., 2d Sess., expired in the Senate
Subcommittee on Communications upon adjournment of the 91st Congress.
n8 In one recent amendment to the
Communications Act, Congress authorized the Commission to revoke a station's
license or construction permit "for willful or repeated failure to allow
reasonable access to or to permit purchase of reasonable amounts of time for
the use of a broadcasting station by a legally qualified candidate for Federal
Elective office on behalf of his candidacy." 86 Stat. 3, 47 U.S.C.
312(a)(7).
18. Accordingly, IT IS ORDERED,
That the petition for a declaratory ruling filed June 13, 1972 by fourteen
members of Congress is DENIED.
FEDERAL
COMMUNICATIONS COMMISSION, BEN F. WAPLE, Secretary.
DISSENT:
DISSENTING STATEMENT OF COMMISSIONER
BENJAMIN L. HOOKS
Although the circumstances are not
entirely parallel, most of the reasons for my dissent are enunciated more fully
in a comparison opinion relating to the request of the Black Congressional
Caucus n1 for television time and I will not
repeat them here. Moreover, I am aware that the Supreme Court will soon
depose on the entire area of Congressional access n2 when it reviews the Commission's decision (decided
previous to my appointment) in Democratic National Committee. n3
n1 See my opinion in the matter of
Complaint of the Black Caucus of the United States House of
Representatives, F.C.C. 2d
(1973).
n2 Id., fn. 12.
n3 25 F.C.C. 2d (1970).
My point is simply that I believe
that Congress should be afforded time to address the public on their views on
urgent national issues, and I think that broadcasters, acting in the public
interest, should [*248] make time available. As a matter of
procedure, and to avoid an insurmountable burden on broadcasters, I believe
that the appropriate choice of spokesmen should be left to Congress.
Perhaps the majority and minority leaderships of the House and Senate could
select spokesmen on a rotating basis or utilize some other equitable method of
apportioning the privilege.
In this period when people are talking
about its possible loss of effect, Congress should not have to plead or sue for
media time to talk to its electorate. It's role is far too important in
our American political system.