sample="supplemental" bates="TIMN0249833" isource="ti" decade="1970" class="ue" date="19720616" APPENDIX A Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 FCC 72-534 79505 In the Matter of The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act Docket No. 192620 FIRST REPORT (Handling of Political Broadcast) Adopted: June 16, 1972 ; Released: June 22, 1972 By the Commission: Commissioner Johnson dissenting and issuing a statement Commissioner H. Rex Lee concurring in the result. I. Introduction 1. This first report deals with Part V of our Notice--the fairness doctrine as it relates to political broadcasts. We would ordinarily consider this aspect in the context of the revision made in the general fairness area, including possible public interest decisions as to access. However, we are operating under time constraints here that we must take into account-namely, the appropriateness of disposing of this aspect well before the commencement of the general election period. See DNC v FCC, _U.S. App. D.C._, _FCC 2d _, Case No. 71-1738 (D.C. Cir. Feb 22, 1972), (slip op. at 7). We therefore have expedited our consideration of this aspect and, if necessary, will re-examine this report in light of our later decisions in Parts II - IV. 2. While this was the last topic in this inquiry, it is not, of course, the one of least importance. Promotion of robust, wide-open debate in this field vitally serves the public interest. II. Background 3. In applying the fairness doctrines the Commission has traditionally required licensees to afford reasonable opportunity for the presentation of contrasting views following the presentation of one side of a controversial issue of public importance. The licensee has been given wide discretion in selecting the appropriate spokesman, format and time for the presentation of the opposing views on controversial issues, with two significant exceptions. Under § 315 of the Communications Act of 1934, as amended, licences are required to afford equal time to legally qualified candidates; and under the Commission's political editorializing rules (§ 73.123(c), 73.300(c), 73.769(c)) the licensee must afford a reasonable opportunity for a candidate or his spokesman to respond when the licensee has opposed him or supported his opponent in an editorial. 4. Under the ruling in Letter to Mr. Nicholas Zapple, 23 F.C.C. 2d 707(1970) the Commission further limited the licensee's discretion. The Commission held in Zapple that when a licensee sells time to supporters or spokesman of a candidate during an election campaign who urge the candidate's election, discuss the campaign issues, or criticize an opponent, then the licensee must afford comparable time to the spokesman for an opponent. Known as the quasi-equal opportunities or political party corollary to the fairness doctrine, the Zapple doctrine is based on the equal opportunity requirement of Section 315 of the Communications Act; accordingly, free time need not be afforded to respond to a paid program. 5. Since some controversy has been generated as to the applicability or wisdom of this doctrine, the Commission asked for public comment on the following questions in its Notice of Public Inquiry in Docket No. 19260 (hereinafter, Fairness Inquiry). "Should the quasi-equal opportunities approach be restricted or expanded and what is the feasibility and effect of any proposed revision on the underlying policies of the statute (see Section 315(a))? "--Should the Commission adopt a position that Zapple applies only to political campaigns and not to other times? "--Should Zapple be disassociated from the fairness doctrine and incorporated into Section 315? "--Should Zapple be limited by applying a 7-day deadline for requesting "quasi-equal opportunities"? 1/ In In Re Complaint of Committee for the Fair Broadcasting of Controversial Issues, 25 F.C.C. 2d 283 (1970), affirmed on reconsideration sub nom. Republican National Committee, 25 F.C.C. 2d 739 (1970), the Commission extended the Zapple ruling to a non-campaign period proffer of time to a political party chairman where the licensee did not specify the issue or issues to be discussed. This ruling was reversed in Columbia Broadcasting Co. v. F.C.C., 454 F. 2d 1018, (D.C. Cir. 1971). "--Should Zapple continue to apply only to major parties (see Letter to Lawrence M. C. Smith, 25 R.R. 291 (1963)), or should it be extended to all parties or to some mathematically-defined category of "parties with substantial public support" (e.g., percentage of popular vote)? How should it apply to "new" parties? 26. We make two preliminary observations. First, the issue is not whether the American people shall be reasonably informed concerning the contrasting viewpoints on controversial issues of public importance covered by Presidential reports. The fairness doctrine is in any event applicable to such reports. -- as indeed it is to a report by any public officials that deals with a controversial issue of public importance. See Section 315(a). Rather, the issues is whether something more -- something akin to equal time -- is to be required. The word "required" brings us to our second point. Because our goal is robust, wide-open debate, the Commission of course welcomes any and all programming efforts by licensees to present contrasting viewpoints on controversial issues covered by Presidential addresses. As we stated in our commendation of the CBS series, "The Loyal Opposition", Committee for the Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 300 (1970): Republican National Committee, 25 FCC 2d 739, 745-46 (1970, the more debate on such issues, the better informed the electorate. But the issue is not what programming judgement the licensee makes in this area, but, rather, whether there should be an FCC requirement. With this as background, we turn to the proposal that equal time be afforded to an opposition spokesman to respond to a Presidential report. 27. First, there is a substantial issue whether any such Commission prescription might not run counter to the Congressional scheme. In Section 315(a), Congress has specified that equal opportunities shall be applicable to appearances of legally qualified candidates and that in other instances "fairness" be applicable -- that is, that there be afforded "...reasonable opportunity for the discussion of conflicting viewpoints on issues of public importance." While fairness may entail different things in particular circumstances (see par. 30, infra), there is a substantial question whether it is not a matter for Congress to take the discussion of public issues by the President out of the fairness area and place it within the equal opportunities requirement -- just as, for example, it was up to Congress in 1960 to take appearances by candidates for President out of equal opportunities and place them under fairness. There is a further troublesome issue here -- whether we could create a special fairness rule for Presidential reports but then hold that a report by Governor Reagan in California or Mayor Lindsay in New York, for example, would come only under the "reasonable opportunities" standard of Section 315(a), in the face of arguments that such reports dealt with State or local issues of the greatest importance. Again we do not say that distinctions cannot be made here (compare Section 103(a) (2) (A) of the Federal Election Campaign Act of 1971, 86 Stat. 3 applicable only to Federal offices) but rather raise the issue whether such distinctions are not more appropriately the province of the Congress We are not dealing here with Presidential appearances during election campaigns where equal opportunity or Zapple (see B, infra) would ordinarily be applicable 28. But in any event, it would not be sound policy to adopt the DNC or ACLU proposals. From the time of the Editorializing Report, 13 FCC 1246 (1949), to the present, we have been urged to adopt ever more precise rules -- always in the cause of insuring robust debate (e.g., the argument, advanced in 1949 and now repeated by the ACLU, that fairness requires the contrasting viewpoint to follow immediately the presentation of the first viewpoint -- see par. 8, Report on Editorializing by Broadcast Licensees, supra, at pp. 1250-51). However well intentioned these arguments are, we believe that increasingly detailed Commission regulation militates against robust, wide-open debate. 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. Editorializing Report, par. 10, supra, at pp. 1251-52. Thus, the arguments for flexibility, rather than rigid mechanical rules, discussed in Committee for Fair Broadcasting of Controversial Issues, 25 FCC 2d 283, 292, (1970), remain persuasive. Applying those principles, we do not believe it appropriate to adopt equal time policies that might well inhibit reports to the electorate by elected officials. Rather, the general fairness approach of facilitating such reports and at the same time insuring that the public is reasonably informed concerning the contrasting viewpoints best serves the public interest. See DNC v FCC< supra, S1. Op. P. 27 ("...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..."); Committee for Fair Broadcasting, supra, at pp. 296-98. The latter case demonstrates that fairness can and does operate to protect the public interest in this important area. 38. One other political broadcast matter which ha been brought to our attention merits comment here. Candidates, like many other news sources, have normally issued press releases to the news media containing statements of the candidates, advance copies of their speeches, their future speaking schedules, etc. Media news editors in turn made judgements whether and to what extent to use such material. Increasingly, candidates have been supplying radio and television broadcasters with audio recordings and film excerpts produced by the candidates, e.g., depicting their campaign efforts that day or containing statements of their positions on current issues. Obviously, these excerpts are designed to show the candidate in the best light and, if presented on a newscast, have the added advantage of increased impact or credibility over a paid political presentation. We do not hold that the station cannot exercise its good faith news judgement as to whether and to what extent it wishes to present these tape or film excerpts. If it believes that they are newsworthy, it can appropriately use them in newscasts. But the public should be informed that the tape or film was supplied by the candidate as an inducement to the broadcasting of it 39. In fact, our rules require such disclosure in these circumstances; that is, "in the case of any political program or any program involving the discussion of public controversial issues for which any films, records, transcriptions, talent, scripts, or other material or services of any kind are furnished, either directly or indirectly, to a station as an inducement to the broadcast of such program..." Disclosure of the furnishing of the tape or film is required to be made whether or not a candidate is involved in these types of programs. Accordingly, we take this opportunity to stress to all licensees their duty to comply with the rules and announce that the tape or film was supplied by the candidate in question. If it was edited by the licensee, he may, of course, add a suitable phrase such as "edited by the XXXX news department." IV. Conclusion 40. Much remains to be done in the fairness area (Parts II -- IV). We have acted here as best we could for the reasons stated in par. 1. The piecemeal approach is thus regrettable but necessary. Sections 73.119(d), 73.289(d) and 73.645(d), relating, respectively, to Am, FM and T.V. See also Section 317(a)(2) of the Communications Act which specifically authorizes the Commission to require announcements disclosing that such matter was furnished. In order to avoid possible confusion in interpreting this rule in relation to one interpretative example in House Rept. 1800 (86th ong., 2nd Sess.) dealing with Section 317 of the Act and rules thereunder, we should add that we are not attempting to apply the above disclosure requirement to mere mimeographed news releases or typed advance copies of speeches. Example 11 of the House Report (see FCC Public Notice of May 6, 1963, FCC 63-409) states that no announcement is required when "news releases are furnished to a station by Government, business, labor and civic organizations, and private persons, with respect to their activities, and editorial comment therefrom is used on a program." We believe, however, that with respect to program material dealing with political or other controversial matters, the requirements of our rules must be followed strictly when audio tape or film is furnished. GE supports the Rosenbush ruling (see par. 24(A)). We have considered this issue generally in our recent Notice (Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 37 Fed. Reg. 5796, 5805; Sec. 8, Q. 8), and will reexamine the matter as we gain experience. We thus may clarify our policies here either in a particular case or in our further reports in this Docket. As stated, we shall reconsider this most important aspect in light of the conclusions reached in overall proceedings. Our final message is one urging broadcasting to make the maximum possible contribution to the nation's political process. That process is the bedrock of the Republic, and broadcasting is clearly the acknowledged leading medium for communicating political ideas. No area is thus of greater importance "...to the public interest in the larger and more effective use of radio." (Section 303(g) of the Communications Act of 1934, as amended). FEDERAL COMMUNICATIONS COMMISSION * Ben F. Waple Secretary Attachment: Appendix A *See attached statement of Commissioner Johnson APPENDIX A I. Comments on the applicability of the fairness doctrine to political broadcasts were received from the following parties: ACLU American Broadcasting Company Columbia Broadcasting Company Democratic National Committee Evening News Association, et al. Haley, Bader & Potts McKenna & Wilkinson National Association of Broadcasters National Broadcasting Company Public Broadcasting Service Republican National Committee Storer Broadcasting United Church of Christ WGN Continental Broadcasting Company II. The following parties participated in a panel discussion on the applicability of the fairness doctrine to political broadcasts held, before the Commission, on March 29, 1972. Roger E. Ailes, President, Roger Ailes & Associates, Inc. Charles A. Wilson, Jr., for the Democratic National Committee James J. Freeman, Associate Special Counsel, Republican National Committee Reed J. Irvine, Chairman of the Board, Accuracy in Media, Inc. Newton N. Minow; Leibman, WIlliams, Bennett, Baird & Minnow, Chicago, Illinois Harry M. Plotkin, Counsel, Public Broadcasting Service Paul A. Porter; Arnold & Porter, Washington, D.C. Allen U. Schwartz, Counsel, Communications Media Committee, ACLU Rosel Hyde; Wilkinson, Cragun & Barker, Washington, D.C. III. Oral arguments on all aspects of fairness proceeding in Docket No. 19260 were made by the following parties on March 30 and 31, 1972: Michael Valder, on behalf of Urban Law Institute Bernard Segal, on behalf of National Broadcasting Company Sam Love, on behalf of Environmental Action Malin Perkins, on behalf of the American Association of Advertising Agencies Geoffrey Cowan, on behalf of Friends of the Earth, et al. Theodore Pierson, on behalf of Combined Communications Corporation, et al. Joseph A. Califano, Jr., on behalf of the Republican National Committee Edgar F. Czarra, Jr., on behalf of the Corinthian Stations and the Orion Stations Tracy Weston, on behalf of National Citizens Committee for Broadcasting J. Roger Wollenberg, on behalf of Columbia Broadcasting System, Inc. Robert A. Woods, on behalf of National Assn. of Educational Broadcasters David Lichestein, on behalf of Accuracy in Media, Inc. Mrs. Cara Siller, on behalf of Women for the Unborn Rev. Paul G. Driscoll, Human Life Coordinator of the Rockville Centre (New York) Archdiocese James A. McKenna, Jr., on behalf of American Broadcasting Companies, Inc. Ben C. Fisher, on behalf of Commission on Population Growth and the American Future, and Population Education, Inc. Miles David, on behalf of Radio Advertising Bureau Absalom Jordan, on behalf of the Black United Front Peter W. Allport, on behalf of Association of National Advertisers Dr. Blue Carstenson, on behalf of National Consumer Organizations Ad Hoc Advisory Committee to Virginia Knauer Leo Perlis, on behalf of Radio and TV Subcommittee of the Ad Hoc National Voluntary Organizations Advisory Committee on Consumer Interests Warren Zwicky, on behalf of Storer Broadcasting Company Madalyn Murray O'Hair, on behalf of Society of Separationists John Summers, on behalf of National Association of Broadcasters Beverly Moore, on behalf of Corporate Accountability Research Group Allen J. Potkin, on behalf of Concerned Citizens of West Virginia Daniel W. Toohey, on behalf of Basic Communications, Inc. Domingo Nick Reyes, on behalf of National Mexican American Anti-Defamation Committee Stewart Feldstein, on behalf of National Cable Television Assn.