DEFINING PUBLIC DISCOURSE:
THE FAIRNESS DOCTRINE AND EQUAL TIME IN AMERICAN BROADCASTING
by
Hugh Carter Donahue
B.A. University of Massachusetts at Amherst
(1972)
M.A. Brandeis University
(1975)
Submitted to the Department of
Urban Studies and Planning
in Partial Fulfillment of the
Requirements of the
Degree of
DOCTORATE IN PHILOSOPHY
at the
MASSACHUSETTS INSTITUTE OF TECHNOLOGY
MAY 1985
G
Hugh Carter Donahue 1985
The author hereby grants to M.I.T. permissio
o reproduce and
distribute
copies of this thesis doc tment in wh
or in part.
Signature of Authort
Depart
ent of Urban Studies And Planning
May 1985
Certified by:
Thesis Supervisor
Certified by:
_
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riotcth
DEFINING
PUBLIC
DISCOURSE:
THE FAIRNESS DOCTRINE
AND EQUAL TIME IN AMERICAN BROADCASTING
by
HUGH CARTER DONAHUE
Submitted
to
the
Department
of
Urban
Studies
and
Planning
on May 22,
1985 in partial fulfillment of the
requirements
for the Degree of Doctorate in
Philosophy
in Communications and Planning
ABSTRACT
This study examines the evolution of federal
regulation
of
news,
political and public affairs programming over
radio
and
television.
It focuses principally
on
the
Fairness
Doctrine,
which
regulates
news
and
public
affairs programming,
and on
the Equal Time law,
which
governs political programming.
First,
the
study analyzes the statutes
as
regulatory
mechanisms,
which
were
enacted
in
response
to
the
introduction
of
radio
and
television
in
American
culture.
It
explores the hypothesis that Congress
and
the
FCC
enacted
the Equal Time law and
the
Fairness
Doctrine
owing to fears that an
unregulated
broadcast
industry
might
exert
an excessive
influence
over
American public opinion and political institutions.
Second,
it
examines
debates between supporters
and
critics of both statutes,
and places their arguments in
the broader. context of first amendment law.
Third, it analyzes the validity of the spectrum scarcity
rationale
for the Fairness Doctrine and the Equal
Time
law,
particularly
in
light
of
the
such
emerging
communications
technologies
as
cable
television
and
satellites.
By
looking at the origin and
historical development of
the
Fairness
Doctrine and the Equal Time
law
and
by
evaluating
both
statute's
effectiveness,
the
study
questions their value, force and necessity in the modern
media marketplace.
Thesis Supervisor: Alan Brinkley, Ph.D.
Title: Associate Professor of History,
Harvard University
2
TABLE OF CONTENTS
Abstract .-
-.....................................
.2
Acknowledgments...............................
.4
Introduction
.6
.-------------..................
Chapter One:
The Emergence of Equal Time......
Chapter Two:
The Articulation of The Fairness
Doctrine.........................
15
....
71
Equal Time in 1959.............
...
117
Chapter Four:
The Great Debates...............
...
135
Chapter Five:
The Cresting Tide of the Fairnes
...
148
Chapter Three:
Doctrine........................
Chapter Six:
The Aspen Decision and the FCC's
1983 Ruling on Candidates Debates. ....
Chapter Seven:
180
The Ebbing Tide of the Fairness
Doctrine ...... .................... ....
223
Endnotes ...........-- ........................... ....
261
Bibliography ...........-....................... ....
301
3
ACKNOWLEDGMENTS
Several
for
people
deserve acknowledgment and
their help in writing this
Brinkley
study.
provided superb guidance,
and
perceptive criticism.
was
constantly
introduced
me
journalism,
to
the
and
Professor
enabling
Professor W.
encouraging.
stimulated
direction
Edwin
issues
my
Alan
Russell Neuman
Professor
saliant
thanks
in
Diamond
broadcast
thinking
on
the
implications of this research. Professor Robert Fogelson
gave
invaluable,
course
work
pragmatic
help.
with Professor
Ithiel
I
benefitted
deSola
from
Pool,
who
advised me on the conceptualization of this study.
Thanks also go to a number of friends,
and MIT undergraduates.
draft,
secretaries
Professor Milton Cantor read
a
and helped me think through necessary revisions.
Professor Stephen B.
Oates gave valuable help on writing
and research methods. Fellow students Elizabeth DeMille,
Jacques Gordon,
read
and
Jackie
Rozellen Gerstein,
commented
and
Beatrice Lewis
on various drafts of
the
LeBlanc and Meg Gross provided word
Research assistants Eric D.
thesis.
processing.
Asel, Hamilton Moy III, and
Andrew Plump did yeomen service with library searches.
I am also grateful
to Mr.
Timothy Dyk,
read and commented on a draft of the final
4
Esq.,
chapter.
who
Several organizations provided financial
They
support.
included the Josephine deKarman Fellowship
Trust,
the National Association of Broadcasters and the Poynter
Fund.
My
brother,
Bourneuf, provided
John,
and my great aunt,
constant encouragement.
5
Lottie M.
INTRODUCTION
6
ago,
Years
that
warned
guard
are
can
laws
well-intended
"Experience
pernicious.
most
the
be
should teach us to be most
on
to protect liberty when the government's purposes
1
wrote.
Brandeis
beneficient...,"
Enacted in
intended for beneficient purposes.
were
which
regulation,
This study examines a law and a
an
each attempted
earlier time under different conditions,
to
Brandeis
Court Justice Louis
Supreme
enhance the average citizen's knowledge of the world
But as
he lived in and the issues that affect his life.
the utility of the laws has
time and tide have changed,
touted
were
What
increasingly into question.
come
suspect,
positive effects became more
as
initially
more
partial, more inhibiting, more troubling.
The
specific
focus
of
the
television
is
study
news
federal
political
and
regulation
of
programming.
It explains the evolution of Equal Time, a
law
regulating
Fairness
and
Doctrine,
public
of
the
a regulation which governs tv
news
political
programming,
affairs programming.
7
Equal
and
Time
requires
broadcasters to provide political candidates with access
to
the airwaves on equal terms.
imposes
two
Fairness
obligations on
Doctrine
controversial
Second,
it
and
requires
opportunities
to
broadcasters.
requires
news
The Fairness
broadcasters
public
to
First,
to
affairs
broadcasters
Doctrine
the
provide
programming.
provide
issue-oriented citizens
or
access
interest
groups in response to broadcasters' editorial views.
The
study argues that
Equal Time and the Fairness
Doctrine define public discourse over American radio and
television
by
imposing
broadcasters
and
by requirements to
news.
It
shows
that
access
Equal
became less able to effect
results,
namely
to
broadcasting
became
expanded
more
of a
novelty in American culture.
the
on
balanced
Fairness
their well-intended
the average citizen,
channels
and
political
of
as the number
dramatically
and
fixture and less
as
of
While the main purpose
a
of
study is to explain the arguments of proponents and
opponents
that
and
a greater flow of news
broadcasting
the
present
Time
Doctrine
information
obligations
each
of
Equal Time and the Fairness
will be more intelligible,
Doctrine
study
also
advocates that their timeliness is exhausted,
and
that
both
would
broadcast
journalists
and the
the
so
public
better served by robust public discourse.
8
be
in terms of two competing positions on
understood
I
which
first amendment,
the
and
speech
best
Time and the Fairness Doctrine can
Equal
be
free
the
call
majoritarian and libertarian positions.
The majoritarian position is the dominant tradition
in
It has
the American system of broadcasting.
Equal
and
Time
the
and
Frankfurter
Felix
Court
Supreme
Herbert Hoover and Franklin D.Roosevelt,
Justices
Presidents
Doctrine.
Fairness
shaped
Byron
and
White,
virtually
all
Federal Communications Commissioners once
advocated
or
still assert a majoritarian
and
news
broadcast
majoritarian
position
position
The
programming.
political
holds that the
widest
possible
flow of information to the public is the meaning of
first
It
amendment.
instruments
of
radio
views
and
mass communication to
in
television
the
as
this
accomplish
dissemination, and sees Equal Time and Fairness Doctrine
as
useful policy instruments to assure that the
is
informed.
subordinates
exerting
the
In
doing so,the
majoritarian
public
position
the free speech rights of broadcasters
sovereignty of listeners to the
by
airwaves
I call this policy listener
over those of broadcasters.
sovereignty.
9
As
the
position,
listener
legal
Equal
expressions
Time
of
the
majoritarian
and the Fairness Doctrine
sovereignty above the free speech
broadcasters.
constitute
Equal
historic
Time
and
the
reversals of
place
rights
Fairness
the first
of
Doctrine
amendment.
They turn the first amendment on its head by saying that
the
rights
priority
of
people
over
to
receive
information
take
those of the speaker to speak his
mind.
This is a novel meaning of the first amendment,
was
expressed
and
it
initially as federal law in 1927 due
to
the scarcity of radio frequencies.
Spectrum
scarcity is the technological
basis
for
listener sovereignty. Spectrum scarcity derives its name
from
the
spectrum
physical limitations of
Commission
airwaves,
uphold
on
In
ruling
the Courts and the Federal Communications
the
which
responsibilities
order
electromagnetic
for radio and television channels.
after ruling,
Doctrine
the
the
Equal
Time
and
the
grounds that broadcasters
are a scarce resource,
so
Fairness
are
using
they
to share their channel with others
have
in
that the public may be informed.
As policy instruments,
Doctrine
Equal Time and the Fairness
regard the individual broadcaster as the
by which the flow of a diversity of news,
10
unit
political and
affairs
public
measured. After all,
it
to the
programming
monopoly
therefore he should be
over a scarce radio frequencies,
first
its use.
for
This
balance
the
on
and
programming,
disproportionate
individual
an
within
affairs
public
political,and
news,
broadcaster's
causes
implementation
places
It
amendment problems.
emphasis
minimizes the diversity of
broadcast
political and public affairs programming that
news,
be
from the majoritarian point of view
is the individual broadcaster who enjoys a
responsible
to
is
public
is
available in a mass media marketplace.
position
libertarian
first
of
in
mostly
found
are
less
the
Proponents
differently.
contends
amendment,
on
no less saliant position
but
dominant
a
position on free speech,
libertarian
The
the
the
broadcasting industry. Supreme Court Justices William 0.
Douglas
of
and Hugo
argues
any law,
prohibits
imposing
to
strictly
the
that
which denies
libertarian
The
free speech rights.
unabridgeable
position
proponents
Black were also prominent
amendment
first
freedom of speech.
obligations on broadcasters to provide
controversial
issues,
advocates
of
access
interested
political candidates and to citizens
the
By
in
libertarian
the
Fairness
Doctrine violate broadcasters' first amendment
freedoms
assert
position
that
Equal
Time
and
of speech.
In
a
libertarian
scheme,
11
sovereignty
resides
unequivocally
with the broadcaster,
Libertarians
to
libertarian
credo,
unfettered
assert
freedom
Regulations,
diversity
of
which
of
programming
his
the
to
views.
public
require
better
for
and
of
the
to
the
served
by
broadcasters.
broadcasters
political
the public,
According
is
expression
news,
listener.
advance the rights
unambiguously
broadcaster
not the
to provide
public
a
affairs
stifle the flow
of
political and public affairs programming to the
news,
public.
Such policies as the Fairness Doctrine, according to the
libertarian view,
Doctrine
in
exert a perverse effect.
particular
chills
The Fairness
than
rather
promotes
controversial news and public affairs programming due to
its
that
insistence
individual
balance
broadcasters
their programming and provide access opportunities.
The
libertarian
rationale
scarcity
position dismisses
for
Equal Time
and
the
spectrum
the
Fairness
Doctrine. When Equal Time and the Fairness Doctrine were
advocates
promulgated,
argued
both
individual
position
were
market place,
the
wrong-headed
broadcaster.
argued
of
the
libertarian
by
Advocates of
position
focussing
the
number of channels in
on
the
libertarian
the
media
not the individual broadcast station, was
12
the
appropriate unit by which to measure the flow of
the emergence
with
recently,
More
public.
and increased uses of
television
satellites
the
to
programming
and political
news
of
diversity
of
a
cable
expanding
the number of channels, libertarians argue that spectrum
is
scarcity
of
problem
a
the
and
past,
the
that
increased number of channels in a media marketplace make
Equal Time and the Fairness Doctrine obsolete.
situating Equal Time and the Fairness
By
within these competing first amendment
study
to
attempts
strives
It
intelligible.
make
both
to
help
Doctrine
this
traditions,
more
regulations
to
the
explain
contiuning role each plays in shaping the flow of
news,
political and public affairs programming to the American
public
today,
market
place
and their resonance in the modern
despite giant leaps in broadcasting
the past sixty years.
important
news,
over
Such a perspective is especially
today due to the dramatic growth in television
political
and public affairs programming due
expanded news programming on broadcast channels and
emergence
media
of
cable
and
satellites.
13
to
the
The
study explores the Equal Time and the
Doctrine historically.
emergence
of
Commission's
Fairness
An initial chapter explains
Equal Time.
articulation
The
Federal
the
Communications
of the Fairness Doctrine
is
discused in the second chapter. A third chapter explains
the
first major changes in Equal Time and the
Doctrine
waiving
debates
of
in
1959.
A fourth chapter looks
Equal Time for the
in 1960.
A
Kennedy-Nixon
of Equal
closely
at
presidential
fifth chapter explains the expansion
the Fairness Doctrine in the 1960's.
analyzes
Fairness
A sixth chapter
Federal Communications Commission redefinition
Time. A seventh chapter explores current
in the Fairness Doctrine.
14
issues
CHAPTER ONE
THE EMERGENCE OF EQUAL TIME
15
LaGuardia stood up.
Fiorello
wanted
to know that
Congressman
LaGuardia
before
House guaranteed free
the
degree,"
freedom of
with
exercise.. .any
considering
a
the Radio
speech
LaGuardia pressed,
White replied.
power
any
in
is the
"It
of Congress not
the intent
belief of the gentleman and
to
radio.
over
of
bill
"The pending bill gives.. .no power
said it did.
interferring
of
Side,
the
speech
Representative Wallace H. White, architect
Bill,
feet
polyglot East
New York's
and representing
tall
Just 5
whatever in that
respect
in
license."
license or the revocation of a
1
White assured him, "no power at all."
Again,
like
LaGuardia,
In 1926,
concern.
develop
on
Radio had
Charleston,
the
By 1926,
there
twenty million radios in American homes,
in 1921.
for
of
come
the
and the wide popular
of movies,
brio
automobiles.
of
energy
scene with all the
national
had cause
the United States was struggling to
a national policy for radio.
the
appeal
many others,
were
over
up from 50,000
So popular was radio and growing so like topsy
each
2
other's signals or drowned out those with weaker power.
that
radio
stations
routinely
16
interfered
with
Congress
had
radio
policy
national
phenomenally
not
little choice but
in
place.
and chaotically.
develop
radio
communications
as
without
a
industry could not develop on its own.
the
Sherman
Antitrust
growing
of
mass
which the
radio
The Clayton
prohibited
Acts
the
and
sort
that would have been necessary for
cartelization
some
industry could
technology
ground rules,
put
was
Radio
The radio
new
to
of
radio
companies to regulate the airwaves on their own. Federal
was
regulation
a
chaotic new industry of mass
unlike
the
to
massive
which resulted from unbridled competition
interference,
in
due
necessary
Britain
and
communications.
European
other
nations,
But
which
broadcasting
national
controlled
radio
through
corporations
or the
national post office,
the United
States was relying on antiquated statutes to regulate an
immensely
popular
mass
statutes
dated back to
serviced
shipping
and
communication.
In
America,
primarily
3
ship-to-shore communication.
1912,
17
when
radio
Majoritarian
and
libertarian
concepts
of
freedom of speech contended with one another as Congress
to
struggled
public
create new law
on
news,
programming
to
cope
affairs
protect the rights of the majority of
political and public affairs
receive news,
over
their
radios
the
with
new
Congress had to enact law, which
technology of radio.
would
and
political
unjustly
without
citizens to
programming
discriminating
against the free speech rights of broadcast stations.
This
posed
White:
to
accomplish
the
was
how
question that
was the
federal
government
both contradictory goals of a radio
Based on a majoritarian position of
had
LaGuardia
system.
the first amendment,
the federal government should exert strong authority
assure
flow of news,
a
programming
position of
station
to
the
political and
public.
on
public
a
to
affairs
libertarian
the first amendment, the rights of broadcast
operators to express their views should receive
and the federal
first amendment protection,
should
Based
to
government
exert correspondingly less authority over
news, political, and public affairs programming.
18
radio
2
In
the
mid-twenties,
Congress
considered
legislation on radio news,
political and public affairs
programming
different
systems:
among
(1)
three
a nationalized system,
system of common carriers, or
licensed
broadcasters.
different
kinds
of
(2)
commerical
a
radio
(3) a commercial system of
Each
would
effects on radio news,
have
had
quite
political and
public
affairs programming.
As
enacted
a first alternative,
statute,
which
would have made radio
national broadcasting system,
British
Broadcasting
Congress
had
Congress could
comparable,
Corporation.
into
a
say,
to the
by
1926,
But,
excluded the possibility of a
owned and controlled radio system.
have
nationally
The idea smacked too
much of government control and censorship of radio news,
political
and
public
affairs
programming.
exceptions
of
frequencies
from
extend
control over radio in peace
its
the
the
Navy,
which
held
First World War
With
on
and
to
the
some
wanted
time,
and
to
an
errant,
liberal commentator in The Century Magazine, few
4
advocated
government control of radio.
In
addition,
huge
corporations in the United States had invested
radio, and they resisted efforts to nationalize radio.
19
in
5
The
required
travelled,
mutually
Congress
carriers.
common
to
and the one
between
choose
broadcasting systems.
exclusive
of
system
commercial course for radio,
The
two
was
One
a
other
was
that
of
for
the
flow
of
licensed broadcasters.
Majoritarian
requirements
and public affairs programming to
the
public were stringent in the common carrier system.
In
political
news,
the
resembled
common carrier system most closely
a
theory,
American ideal of equal opportunity based on
to pay.
ability
The common carrier system would enable
political, public
anyone to purchase air time for news,
or
affairs
entertainment
Broadcasters
produce.
much
politicians,
would have had no discretion
complained
Policy
commentators
radio
about
programming within a common carrier
in
practice,
radio
producers
But,
and
that broadcasting companies
discussions
news
censored
and
system,
them.
political
therefore,
and
6
censorship.
and
expression as price discrimination
focussed
mostly
on
such
barriers to
20
to
they would be required to
as public utilities.
radio
to
wished
he
programming
accept or reject programming:
behave
one's
access
to
Majoritarian concerns about
political
were
and
the flow of
public affair programming to the
no less insistent in a licensed
means
of
effecting
different.
Unlike
broadcasters
system,
majoritarian rules
the
would
programming,
news,
common
have
were
carrier
had
no
public
but
the
entirely
system,
where
discretion
broadcaster discretion played a much
in
more
substantial role in a licensed system. The discretion of
the
broadcaster as a trustee of public airwaves was the
crucial distinction, which distinguished a licensed from
a common carrier system in matters of federal policy for
radio news, political and public affairs programming.
A
system
of
licensing
raised
perplexing
questions about radio news, political and public affairs
programming.
LaGuardia
with
libertarian
concerns
.feared that by granting licenses the
government
discourse
Those
would exert its authority to
in radio news,
programming.
Those
define
political and public
broadcasters would monopolize
deny
all others freedom of expression without
law
the
public
affairs
airwaves,
assuring the flow of news,
information to the public.
21
and
specific
political
7
public affairs
federal
with majoritarian concerns worried
that
federal
like
and
system
A
greatest
Both amateur and commerical radio broadcasters
support.
favored licensing.
to
enjoyed
licensing
of
reach
Republicans and Democrats were able
a consensus on licensing as long as
Congress
political and public
enacted legislation on radio news,
affairs programming that prohibited price discrimination
and broadcasters' censorship.
the
In
odd workings
carrier
common
of
American
system received support
opposite
from
Republicans favored a common carrier system
minded
the
Democrats and reform-
of the political spectrum.
ends
politics,
for
radio due to their concerns about broadcaster censorship
and price discrimination by "the radio monopoly,"
a code
And,
until
Telegraph.
name for American Telephone and
1926,
American Telephone and
nemesis,
reasons
foes.
supported
do
Until
1926,
ATT
AT&T
pushed
but
carrier system
for a
political
their
common
had
political
or
public
pioneered radio in
the
It had developed an extensive network of
broadcasting.
for
carrier
for business reasons that had nothing
with radio news,
programming.
States.
common
quite different from those of
system, and did so
to
a
Telegraph, the reformers'
affairs
United
"toll"
In the toll system, radio programmers and
22
waves
the radio
fee or toll for use of
a
paid AT&T
producers
in much the same way one would pay the
telephone
long
distance
company
carrier
common
a
as
a
for
telephone call. But, as radio grew into a medium of mass
one-to-one
communication,
by
time
to
buyers,
and
profits
greater
reaped
radio
than
rather
communication
selling
advertisers to reach potential markets and
in
reversed
management
AT&T's strategy to
decided that the company's
broadcasting,
telecommunications,
and
RCA's
in
future lay
Radio
radio stations to the
million
of America in exchange for several
and
dollars
radio
develop
took AT&T out of broadcasting.
AT&T sold its eighteen (18)
Corporation
AT&T
therefore,
In 1926,
telecommunications strategy.
AT&T
into
less
and
less
fit
so
doing
for
wires
AT&T's
to use
promise
8
interconnecting RCA's radio network.
The
when
systemic issue was resolved in 1927
Radio
Congress passed and President Coolidge signed the
Act.
The
licensees
in
which
affairs
to
programming
assure
that
to
broadcasters were charged
political
and
by acting in the public
the
public
of
system
Act established a national
discretion in radio news,
their
And
Radio
received
use
public
interest.
poilitical
programming, Congress inserted language in the Radio Act
which
required
broadcasters to provide Equal
Time
candidates during elections. Due to this majoritarian
23
to
requirying
language
programming,
Equal
for
Time
certain common carrier stipulations shaped
Radio news and
the Equal Time section of the Radio Act.
public
political
affairs
programming
received
no
comparable
protection in the Radio Act.
therefore,in analyzing the
It is appropriate,
evolution
of
congressional
speech,
Equal
Time
to
deliberations
monopoly,
look
of
the
censorship and of
more
closely
issues
of
at
free
common carrier or
licensing systems to explain the emergence of Equal Time
in radio political programming.
24
3
The federal statute for
Equal Time is:
person
any licensee shall permit any
If
public
any
legally qualified candidate for
a
is
who
afford
he shall
to use a broadcasting station,
office
for
to all other such candidates
opportunities
equal
station,
office in the use of such a broadcasting
that
and
rules
make
shall
licensing authority
the
and
effect:
into
carry this provision
to
regulations
of
power
licensee shall have no
such
that
Provided,
provision
over material broadcast under the
censorship
of this paragraph. No obligation is hereby imposed upon
any licensee to allow the use of its station by any such
candidate.11
Equal Time remains in effect to this day,
Congress enacted Equal Time as Section 18
In 1927,
Radio
the
programming
with
1976, and 1983.
revisions in 1959,
of
but
over
struck
radio
Political
reasons.
several
for
Act
politicians
directly.
Their ability to mount electoral campaigns over radio, a
new mass communications medium, were at stake.
American
notions
that
an
Long and
informed
fervently
held
electorate
reached political decisions by voting on the
that
the
of
basis
information supported
politicians enjoy access to radio during
campaigns.
to
arguments
election
Ideological and sectional politics came into
suspicious
Western congressmen,
play.
due
fullest
fights with
railroads
25
and
of
monopolies
utilities,
and
southern
congressmen,
sectional
differences
of
westerners
use
make
Dill
(D-Washington)
to
"equal opportunities" for politicians
during
radio
of
southern
appease
provisions
limited
only
election
and
congressmen
western
for
Time
electoral
politicians
campaigns
to
through the
conference
the
became the first
favoring
programming.
Equal Time
through Senate-House
and
Senate
Equal
to
This
campaigns.
political
for
manuevered
skillfully
Dill
airwaves
federal
that
so
during
statute
guaranteed politicians' access to voters through a
that
mass communications medium. Section 18 of
1927 became
in
the
The Radio Act
Section 315 of The Communication Act of
Both acts are
1934.
law
introduced
Dill
sufficiently vague to mollify Republicans
and
of
for
the
Time
of equal opportunities was at once sufficiently
concept
meaty
industry,
radio
Equal
Time.
concept of Equal
the
Time as
Equal
C.
Clarence
Senator
advanced
of
guarantees
fearful as the
as
radio bill to pass.
1927
omnibus
equally
eastern-dominated
an
minimal
demanded
and
for
consideration
demanding
United
political programming.
the cornerstones of communications
is
Section
So skillful,
in fact,
States
26
as
315
for
was Dill
that a
journalist would later remark,
thing
day
that
in
this
stranglehold
on
his job.
field so
new,
and
age
"He did the
gives
a
man
one
a
He became a specialist in a
so complicated,
of speech and
9
none to dispute him."
technicalities
27
and so interwoven with
function that there
were
4
The Republicans and Egual Time
Time
was
radio.
The
position favored broadcaster discretion
for
system.
The
parcel
and
part
Republican
vision
larger
of
licensed
within a
believed that broadcasters should behave as
Republicans
trustees in return for receiving a
public
the
of a
programming
political
position on Equal
Republican
The
but
sovereignty,
touted
They
government.
would
a
of
policy
have preferred
from
license
to
listener
left
have
political programming decisions with broadcasters.
Time
fully
grasp
To
it
is necesary
industry
as
Republicans
a
whole.
Equal
hand to place them in the
before
policy
Republican
of
context
Republican arguments about
As
proponents
favored a nationally
the
toward
of
regulated
radio
licensing,
system
of
commercially financed radio stations and networks, which
would be under the control of the Secretary of Commerce,
along
aside
for
advanced
the
licensing and Commerce Department control
due
with
and
government
policy of
a portion of radio channels set
uses.
non-profit
They
to their primary concerns about ordering a chaotic radio
marketplace.
28
Secretary
As
licensing.
of
policy
radio
Hoover
Commerce,
regulatory
federal
the
of
authority
with
Radio policy was under the authority of the
government.
of
Secretary
at
growth
economy
a market-driven
to function in
Commerce until
the
1927 when
established the Federal Radio Commission,
a
Act
Radio
five member
the
was the precusor of
10
Federal Communications Commission.
commission,
bipartisan
issues
Policy
system
a
setting
the
agenda
and
how
to
for
from 1922
Hoover was able
policy
amateur and
government and military.
by
legislation
to
goals
commercial
among the competing departments
29
other
To that end, Hoover
consent and shape consensus on
broadcasters
an
sources,
Radio conferences
for a system of licensing among
the federal
on
At these conferences,
1925.
aggregate
revenues.
four National
convening
to
that depended
control
on
than
medium
mass
for
than advertisers,
began
which
turned more on how to
advertiser-supported
develop
a
rapidly-changing,
a
technologically-complex
minimal
the
of
power
his
Through
rationalized
wildly-popular,
industry
mid-twenties,
the
in
played the key role as architect
Hoover
Herbert
Commerce
of
of
Importantly
and
conferences
through lobbying for
articulated
Hoover
At
system.
At
we
a
the
Hoover called
National Radio Conference in 1922,
regret
for regulation so that "there may be no national
that
and
example,
for
the outset,
interest in radio.
Hoover acknowledged a public
first
of
principles of a licensed system
in dealing with Democratic proponents of
carrier
common
Act,
Radio
the
which would gird Republican senators
broadcasters,
congressmen
these
at
both
Equal Time,
for
into
asset
have parted with a great national
11
Radio
National
Hoover continued the same theme
of
sovereignty and a public interest in radio
by
Conference in 1925,
listener
the fourth
At
hands."
uncontrolled
"for
calling radio "a public medium" to be used
benefit....
The dominant element in the radio field
always
12
public."
will be,
broadcsters
at
and
public
Despite
the great body of the
the fourth National
radio was "too
said
news,
entertainment, education
purposes to be
drowned
commercial
Radio
Conference,
important
Hoover
and
listening
of
domination
the
service,
for
vital
commercial
advertising chatter
in
or for
that can quite well be served
13
communication."
of
other means
commercial
purposes
30
is,
by
Hoover
radio
news,
based
on
programming
affairs
political and public
listener sovereignty and
over speaker
listener
of
sovereignty
continued,
Hoover
are two parties
there
freedom
is
speech
out,
"...
and
to
the
and
speaker
He has much less option upon what
listener.
for
reject,
the other fellow is
broadcast
every person or corporation who
name or
his
listener's
deprivation of
set.
and
wares,
one
No
can
than
14
in his purposes."
31
wishes
to
thus
monopolize
raise
a
free speech if he is compelled
there is something more
selfishness
his
occupying
Freedom cannot mean the
his right to use his receiver.
to
he
The listener's only option is to abandon
receiving set.
that
the
a
in
Certainly in radio I believe in freedom for
listener.
license
a
make
to freedom of the air,
speech.... There
of
speaker,
freedom
Hoover pointed
I like it or not."
whether
any
into my sitting room to
come
to
right
there
"nor is
and
time,"
to listener sovereignty over
quickly
jumping
freedom
much
of speech if fifty people speak at the same
the
the
radio
to
due
interference. Hoover said, "We do not get
can
scarcity.
spectrum
argued that scarcity of channels supported
Hoover
the
of
concept
a majoritarian
advanced
naked
cry
to
of
prove
commercial
Despite the stridency of Hoover's rhetoric on
more
at
licenses
religious,
educational,
Hoover,
were
broadcasters
greater
a
providing
For
view
because in his
such a policy made sense,
commercial
broadcasters.
labor
or
smaller
to
preference
in
large
to
frequencies
powerful
broadcasters
commerical
more
in practice Hoover granted
sovereignty,
listener
diversity of programming to the public than broadcasters
in one special area.
of
principles
deliberations
with
listener
(R-Maine),
Radio
Bill,
consideration
corporations
held
like
Representative Wallace H.
granting
public
the
acknowledged that
for
Like
Republican floor leader
the
system
discretion.
considerable broadcaster
White
licensed
within a
Secretary of Commerce Hoover,
congressional
in
sovereignty
of Equal Time
Hoover's
advanced
Republicans
Senate
and
House
licenses
to exploit
to
natural
a
on
the
warranted
privatelyresource
airwaves. In congressional debate, therefore,
the
[radio]
to
public
the
of
right
"the
advanced
15
succint
in Representatives White's
service,"
phrase,
as
Republicans
use
radio."
"superior to the right of any individual to
Such
a
position
32
is
significant
not
only
because
it inverted
from speaker to
provide
listener,
Republicans
agreement
first
but
with
congressional
minimal
supported
rationale
it
to
deliberations,
which
regulation,
trustees. Representative
to
Senator
Equal Time.
Republicans
guaranteed
cautioned
White
a
as
public
his
fellow
system in which broadcasters acted
licensed
would
come
and Progressives on
Dill's compromise position on
In
also because
a
with Democrats
amendment privileges
that "we are here dealing with a new means
16
communication."
He said,
incorrectly,
radio was
congressmen
of
competing
and
cable.
new
anti-monopoly
radio.The
He
said
were sufficient.
from
competition
corporations,
he
(exists] whether
White
reassured
the
were
"A
communications
reasonable
rules
more drastic
House
are
that
these
33
narrow,
the
17
to."
anti-monopoly
sufficient
meet Democratic concerns about censorship and
"Laws,
this
than
subjected
in the pending legislation were
discrimination.
doubt
are justified in applying to
and
in
The public would benefit
contended.
we
Acts
competing
of communication
forms
to
among
different
other
telegraphs,
the public interest required no
Clayton and Sherman Antitrust
and
provisions
telephones,
statutes be enacted specifically for
force,
industry
with
for markets
price
restrictive,
We
destructive to a new industry serve no public good.
18
So
that minimal
he
said.
them,"
avoid
should
Common carrier stipulations that the
programming.
of
regulation
supplemental
discretion
the
limiting
flow
required
public
the
to
information
and
news
fit
affairs
public
and
political
news,
radio
for
a whole was also
the industry as
for
legislation
of
broadcasters did not carry sufficient weight with White.
Instead,
White
agencies,
the
held
of
two
Commerce Commission and
the
up the regulatory powers
Interstate
Trade Commission --
Federal
had
neither of which
ever
indicated its capacity to regulate political speech over
radio.
Like Republican floor leader White, Representative
Arthur
M.
minimal
(R-California) supported only
Free
regulation -of broadcasting. Free worried that burdensome
regulation
would
Federal
Trade
restraint
of
retard
an
trade
fixing,
police
monopoly
programming
regulatory
question
were
in
practices,
and
with its focus
on
authority
to
federal
sufficient
abuses
and
radio
by radio broadcasters,
requirements would
you
on
and monopolistic
the Interstate Commerce Commission,
price
focus
its
with
Commission
gentlemen
have
34
be
The
industry.
infant
in
political
Free said.
Further
burdensome.
got to
consider,"
"The
as
Free
put
you
it
are
baby
to
his colleagues,
"is
whether or not
going to apply special rules to
industry
industry
that
in
the
you
a
do not
apply
19
States."
United
new
to
any
Only
and
other
American
Telephone and Telegraph's eighteen radio stations out of
536
radio stations in the country
according to Republican figures.
competing
3,000
firms
manufactured
manufactured
radio
were
Two
to
interest
parts
were
Bill,
political
standards"
sufficient
and
and
affairs
over
and accessories. Free
coupled with the
that suffused
to assure
public
three hundred
receivers,
believed that these industry dynamics,
"public
cross-licensed
the
flow
the
Radio
of
news,
programming
to
the
20
public.
In
.
the
Senate,
Republicans
argued
that
broadcasters themselves should retain maximum discretion
on
political
Connecticut)
Vice
programming.
introduced
President
Senator Hiram Bingham
a letter
from
for Broadcasting for
Insurance Company,
W.G.
the
Cowles,
Traveller's
owner of a Hartford radio
supporting maximum broadcaster discretion.
knowledgeable
station,
Cowles was a
he had drafted a report
broadcaster:
radio news and political programming for Hoover for
Fourth National Radio Conference. Cowles
(R-
on
the
wrote that the
radio industry supported regulation for technical issues
like
wavelengths and frequencies.
radio political programming,
that
decision-making
When it
to
however, Cowles maintained
appropriately resided
35
came
with
the
be
would
that broadcasters
Cowles asserted
broadcasters.
as
willing to provide Equal Time for politicians
matter of public service,
but that
required to do so by federal
leave
as we refuse,
it
is well to
the privilege of
refusing,
matter,
religious,
be
be
"It
all controversial
whether
nature,
statute.
the broadcaster
with
they should not
a
whatever
its
political
or
anything which is in the nature of controversy... "Cowles
"If
wrote.
our
broadcasting
political
of
we should extend to you the privilege
on an
station
discussion was existing,
occasion
that
when
is no
some
reason
why we should be forced as common carriers to accept the
reply
which
to distinguish
might make without any
anybody
between
reply and one who is
of making
21
unworthy, he wrote."
a speaker
totally
36
privilege
worthy
a
Democrats and Equal Time
Democrats
and
LaGuardia)
(excluding
Republicans
reform-minded
on
insisted
carrier
common
They
stipulations for political programming over radio.
broadcaster censorship and price
feared
discrimination
over
limit the diversity of political viewpoints
would
radio.
did not share the blithe assurance of
They
of
responsibilities
assure
public
political and
flow of news,
a
to
sufficient
were
broadcasters
trustee
public
of the aisle that the
side
Republican
the
affairs
programming to the public.
House
debates
to
programming
affairs
monopoly,"
the
common
using
flow of news,
to assure of
stipulations
greater
about
capture
Bill
the Radio
concerns
majoritarian
public
of
H.
"could
asked his House colleagues,
carrier
and
political
"What
public.
the
Luther
these
(D-Texas)
Johnson
exist than where
a
radio company could give the free use of its line to one
for
candidate
other
of
then
and
theory,
side
office,
one contender of some
deny such...to those who are on the
the question?"
of
".
... If the strong
monopoly
the law does not prevent
make
economic
ownership,
arm
and
[price] discrimination by such stations illegal,"
Johnson
warned,
politics
will
operate
these
"American
thought
and
be largely at the mercy of
stations.
For publicity
37
is
American
those
who
the
most
powerful weapon that can be wielded in a
and
republic,
when such a weapon is placed in the hands of one,
single
selfish group is permitted to either tacitly
acquire
otherwise
ownership
stations
broadcasting
dominate
and
the
throughout
to
of
the
"it
only
will
stations
citizens.. .and
every
nearly
bring
home
Johnson
few
before
be a
years
will.. .reach half
the
messages
fireside
in
to
America."
the
American
-remedy broadcaster discrimination,
an Equal Time amendment for
He
and issues.
proposed
that
"equal
facilities and rates,
shall
be
candidates
opponents
accorded
for office,
of
to
all
and to
both
in
the
Johnson
candidates
Congress require that
without
discrimination,
parties
and
proponents
and
24
political
both
all political questions
38
"they
opinion:
mold and crystalize sentiment as no agency
23
past has been able to do."
of
would
Broadcasters
can
advanced
in
American society,
use this immense power to shape public
To
the
innovations
rapid technolgical
radio and its diffusion into
broadcasting
It will
compete
on
Remarking
continued,
then
country,
with
them in reaching
22
American people."
impossible
ears
or
these
woe be to those who dare to differ with them.
be
or a
and
issues."
Representative
the
Equal Time amendment
Johnson's
rights of expression were subordinate
broadcasters'
broadcasters
to
and
well
as
of electoral
discussion
for
individuals
a
organizations
politicians,
to
access
and
essence
in
is
carrier stipulation to require
common
grant
discrimination"
without
to
issue-oriented
and
"Equal facilities
organizations.
and
individuals
rates,
candidates
political
of
public
In Johnson's amendment,
affairs programming over radio.
those
and
political
carrier concept of news,
common
articulated
it
Bill is significant because
Radio
to
as
public issues.
Democrats supported Johnson by
House
preferential
radio
rates for
broadcasters censorship.
"$10.00
during
air
He told
American Telephone
and operated station in New York,
owned
short
an
WEAF,
candidates
and
Representative Emmanual Cellar
(D-NY) put the matter bluntly.
that
favored
citing
his
and
colleagues
Telegraph
charged
him
radio
for every minute [he] desired to use the
25
stopped
Although Cellar
the last election."
of
time,
saying his Republican opponent received
he
said,
have
"I
no
knowledge
candidates of the opposing party were asked to pay
26
use."
same
the
for
amount
same
39
free
that
the
Davis
Ewin
the
took
(D-Tenn)
Representative
charge,
censorship
the
On
cited
He
floor.
and
testimony by a vice president of American Telephone
a
Harkness,
applications
grounds
its
broadcast
that ATT radio stations were
facilities
any publication.
any material presented
reject
you care
anything
edit.
the
right
editor
to
him.
to accept or
We
cannot
You
to
a newspaper office and get them
into
walk
He has
publish
to present.. .We do not censor --
feel if the matter
is unfair
on
newspapers.
like
take the same position that is taken by the
"We
of
use
to
that ATT routinely -rejected
said
had
Mr.
President,
ATT Vice
congressional committee,
W.E.
testimony before
In
programming.
news and political
radio
business censored
big
that
to argue
Telegraph
or
we
contains
we may
matter which the public would not care to hear,
27
At the time, AT&T owned 18 stations and
it..."
reject
interconnected
many more through its
lines,
telephone
reaching nearly eighty percent of the public.
Davis decried this position of broadcaster freedom
of
speech.
Like
Representatives Cellar
and
Johnson,
such
Congressman Davis called for stringent regulation,
as
Equal
politicians
Time for politicians and issues,
to
and politically active citizens from
discrimination
and censorship.
LaGuardia's concern about
price
Responding directly
government censorship,
40
protect
to
Davis
his
told
over
is nothing
citizens.....there
American
other
to
may broadcast
citizens
American
what
House
am even more opposed to private censorship
"I
chamber,
the
of
to the applause
colleagues,
in the
present
bill which even pretends to prevent it or to protect the
28
public against it."
Democratic
on
insistence
the
Congress
1922,
authorized
had
FTC
The
monopolistic
corporations
study
practices.
--
the
had
documented
It
showed
of
Electric,
American Telephone and
Western
Electric,
Westinghouse,
United Fruit
Company,
Wireless
Specialty
competition
manufacture,
transmitters
and
Apparatus
and
purchase
America,
Telegraph,
and
Company,
a monopoly in
created
and
eight
International
Company
and receivers as well
sale
as
in
flagrant
that
General
Telegraph
dating
practices
Corporation
Radio
In
a Federal Trade
investigation of monopolistic
Commission
radio.
foundation.
legislation,
protracted fight over radio
from
individuals'
issue-oriented
and
assure
to
stipulations
the airwaves was not without
to
access
common carrier
candidates
political
and reform-minded politicians'
--
Radio
the
restrained
the
domestic
of
radio
in
domestic
international radio communication and broadcasting.
"There
is
not any question
Davis said but that
whatever,"
Representative
"the radio monopoly... is one of the
41
in
monopolies
most effective
the
one of
most powerful,
whose
the capital stock
the country.. .a monopoly,
$2.5
for
exchanges
on the stock
quoted
29
An infant industry, indeed.
billion dollars."
is
members
Due to their insistence on political candidates and
inserted
Democrats
House
House
citizens' access to the airwaves,
issue-oriented
of
18
into Section
language
considered as a
bill that radio would be
the
"common
carrier in interstate commerce" for political and public
In other words,
affairs programming.
Democrats
for both candidates
legislated Equal Time
successfully
House
and issues out of the House and as far as the conference
that
inserting language
By
of Congress.
committee
radio was to be a common carrier on political and public
issues,
law,
access
of
defined
rights as prior
If
broadcasters.
conference,
grant
clearly
which
public's
rights
Democrats were at the edge of
House
Equal
broadcasters
Time
for
politicians'
to
the
Section
free
18
creating
and
speech
survived
would have no choice but
both
election and citizens discussing
issues.
42
politicians
controversial,
the
to
seeking
public
As
Time
limit the
power
both candidates and issues and to
for
of
a second instrument to assure Equal
House Democrats
radio monopoly,"
"the
members,
federal
the
They contended that
authority for radio.
licensing
than the
for candidates and issues
regarded licensing as a violation
nor
progressives
the
broadcasters' free
reasonable
as a
commission
balancing
the
listener.
Senator Dill remarked,
rights
broadcasters
party may be in power,
the
hands
of
30
Government."
Federal
Radio
an
in
of
the
bipartisan
a
need not be "under the
when the
control
is
placed in
the
of
branch
commission
would
become
in
1934,
the
Commission and,
Communications Commission.
43
fear
which
regardless of
administrative
This
for
for example, that in
they must necessarily feel,
which
vehicle
and
of the speaker
authority
licensing
of
speech. Rather, they regarded a
bipartisan
commission,
Democrats
neither
Interestingly,
freedom of speech.
placing
of
of
suppression
government
for
potential
the
Secretary
through its bipartisan quality would
Commerce, and that
limit
a
Equal
bipartisan commission would be more responsive to
Time
from
chosen
as
country,
the
of
sections
various
five
of
commission
bipartisan
a
proposed
the
Federal
In
the Senate,
Democrats and
politicians pushed Equal Time
for
and
through
issue-oriented
Commerce
citizens
significant
assigned
because
common
the
carrier
politicians
and
Again,
in the House
as
prominantly
in
political candidates
Their
Committee.
part
by
California)
Wisconsin)
Senator
Interstate
accomplishment
bill
for
status
the
to
debates,
senate bill.
is
Radio
radio
Act
both
for
public
issues.
censorship
figured
The
Foreign Commerce committee bill was
in
the
for the discussion of
the
reform-minded
Interstate
prompted
at
and
least
progressive senators Hiram Johnson's
and
Robert
negative
LaFollette's
LaFollette's
experiences
broadcasts
(R/Progressive-
with
in
(R-
radio.
Des
One
Moines
of
and
another in Detroit by Senator Johnson had been relegated
a
so that they reached only
31
The bill
fraction of their potential radio audiences.
to
also
low power frequencies,
put
Republicans
for
Secretary of Commerce Hoover and
on notice of strong
a bipartisan commission as
authority.
44
support
the
the
Senate
in the Senate
federal
licensing
5
Senator
Clarence
Equal
proposed
Time
C.
for
access
pushing for broadcaster
licensed system,
candidates
political
On July 1, 1926, Dill
citizens.
the
a
who
and Democrats
common carrier stipulations, which guaranteed
advocated
to
(D-Washington)
candidates as
for political
compromise between Republicans,
discretion within a
Dill
which
Bill,
Radio
for
opportunities
legally
issue-oriented
and
introduced an amendment
equal
for
provided
candidates,
qualified
political
stipulated that broadcasters could not censor
comments, and relieved broadcasters of any liability for
remarks which
derogatory
their
Dill
frequency.
an
replace
offered
earlier draft of Equal
broadcasters
designated
might make
politicians
as
this
amendment
Time,
which
common
political and public affairs programming
politicians
and
Senators
that
problems
issue-oriented
carriers
(that
and
to
had
in
is,
for
to
the
citizens) due
LaFollette
over
Johnson
had
experienced with political speeches over radio.
Republicans
amendment
Senator
would
for
Simeon
trigger
Equal
D.
criticized Dill's
Time on
Fess
requests
interpretative
compromise
grounds.
(R-Ohio) feared Equal
from
45
politicians'
Time
opponents
anytime
his concerns,
Sentor
bona fide news
events,
on
rulings
Equal
anticipated the problem of
Fess
which also would recur in FCC's
which exempted "bona
Fess that the Equal Time included a provision that
told
was
it
that
more
Equal Time. He
efficacious
and
better
"It seemed to me
the commission to
to allow
implied
precise
defer
to
language on such a provocative issue.
be
and
rules
make
shall
commission
32
with
deal
to
regulations"
"the
to
Dill
requirements.
Time
news events from Equal
fide"
an
in
finally
culminating
Time,
to Equal Time in 1959,
amendments
expressing
In
issues.
public
about current
speak
not
did
he
a politician got airtime even if
regulation governing such questions as
rules
make
the Senator
has raised rather than to attempt to go into the
33
in the bill."
matter
worried that
Equal
One
-Time
Texas)
too
challenged
proponents
radio.
wording
for
of
affairs
programming
over
Mayfield
worried
dissenters.
Equal Time
was
of Bolshevism might qualify
"If
(D-
Dill that the amendment would enable
public
much
the
Senator Earle Mayfield
too expansive.
was
radio,particularly
that
Senator
Democratic
the Senator's
46
amendment
so
for
vague
access
that
to
is adopted and
becomes
law
lecture
on
and
desired
a lecturer
Bolshevism
or
to
Communism,
deliver
a
would
be
he
34
entitled
Dill
to
do
pointed out
politicians
excluded
that Equal
discussion
that
--
senators,
solely
and specifically
public
issues.
the
version of Equal
Time
affairs
--
the
and
version
Johnson's
"The
Mayfield withdrew his objection.
it
to
on
LaFollette's
denying
from
controverisal
public
original draft had in
operator
applied
office,
Committee
following
difficulties
other
he had based his remarks
and
candidates
Time
for
of
Commerce
Interstate
adopted
As with the
campaigning
Acknowledging
for
so."
language which prevented
the
radio
to
the
of
use
the
35
Mayfield
anyone,"
"That
is
true,"
offered
"and that is the reason I have
36
to political
Time
Equal
limiting
draft"
replied,
Dill
the
acknowledged.
new
candidates.-"
Senate progressives criticized Equal Time
candidates
political
palliative,
carrier
effort
narrow,
status
to
keep
restrictive,
as
anemic.
They
confusing,
advocated
for radio political programming
the provisions on Equal Time
discussion of public affairs in the Radio Act.
47
for
common
in
for
an
the
Senator
Albert
B.
Cummins
a
(R-Iowa),
Republican with a career of progressive political reform
railroad
the
against
a
He told Senator Dill that
clarification.
question of
raised
Iowa,
in
interests
the Equal Time amendment would lead
The
confusion.
to
language was vague, Cummins told Dill. Cummins said that
effect of Dill's Equal Time amendment would be that
the
would
radio
while
not
be designated
carrier in political programming,
common
a
as
the language of equal
opportunities would nonetheless require broadcasters
to
as though they were common carriers in political
behave
programming.
Dill
required
only
station
one
permits
listener
must allow all candidates for that public office to
it
This,
so...."
designating
would
of
"that if a radio
amendment
for a public office to address the
candidate
do
responded that the Equal Time
broadcasters as
require
the
common
from
different
Dill said was far
carriers,
them to "take anybody who came in
person presenting himself and be
which
order
compelled
to
hour's time speeches of any kind they
37
wanted to broadcast."
broadcast
for an
48
provided
amendment
Time
legally
qualified
time to
one
"if
that
required only that
candidates if they had
candidate.
regulate
to
air
granted
reads
after all,
Section 18,
all
to
opportunities
equal
provide
broadcasters
18
Section
programming.
political
broadcasters
It allowed
stations.
their
of
use
concerning politicians'
discretion
of
amount
significant
a
broadcasters
Equal
the
stated that
explicitly
Dill
any licensee shall permit any person who is
a
legally qualified candidate for any public office to use
a
he
station,
broadcasting
equal
afford
shall
38
opportunities
is a noteworthy
F.C.C.
to
allow
allows
right;
to
fellow
Senators,
"a station may refuse
candidates for governor must
but it
broadcast.
succinctly,
is
not required
Or,
"a
as
Senator
station
39
cannot discriminate."
49
can
in
"In other words,"
to broadcast;
candidate
any
would recur
it
one candidate for governor to
the
all
distinction because
cases concerning Equal Time.
Dill told his
This
to all other such candidates...."
but
if
it
broadcast,
then
an
equal
have
to allow any candidate
Dill
put
regulate,
more
it
but
it
distinguishing broadcaster regulation from
By
programming
political
and assured minimal guarantees of access to
candidates. Such a balancing act made sense to
Listeners
voluntarily.
service
beyond
nature
of
the
radio
to
provide
carrier
..
.It
was
seemed
unwise,"
under
thing
build
to
he
The
encouraged
own
Due to these real
burdensome.
and
said,
accept
common
felt
Dill
"to
of
put
being
the
a
anything
and
as
the
was offered to him as long
50
for
their
up
the hampering control
and compelled to
that
40
price was paid."
every
sets.
opportunities
equal
both gratuitous
status
radio
marketplace
and constraints,
incentives
carrier
radio
their listeners.
among
broadcaster
common
order
in
politicians
the
for
nothing
paid
the cost of their
broadcasters
reputations
entered the radio industry
Broadcasters
Senator Dill.
world
that
political
in
discretion
some
broadcasters
provided
tough
law
creating
in
succeeded
He
act.
balancing
Dill accomplished a
discrimination,
broadcaster
Senator
time
Robert B. Howell
progressive
and advocate of public
for
that
Howell
radio,
Commerce
know
fellow
his
reminded
issues
the
if
Of all congressmen and senators,
democracy was to work.
articulated
to
had
voters
was
political
for
policy
legislating
In
grant
as
Interstate
in the House and Senate
41
Committee version of Equal Time.
stipulated
Howell
to
citizens access to the airwaves
issue-oriented
senators
of
to
objections
required
be
broadcasters
that
programming
ownership
Time only to political candidates. Howell
limiting Equal
demanded
principled
raised
utilities,
public
(R-Nebraska), a long
view
most clearly the majoritarian
that freedom of speech meant the flow of news, political
and public affairs programming to the
Laying
public.
his ground work carefully, Howell refuted radio industry
agruments
editors
that
as
broadcasters
well
should
as
discretion
Howell said that radio
commercial
invested
purposes,
in
radio
Howell
51
for
reminded
in
differed
channels.
newspapers due to the scarcity of radio
Broadcasters
that
arguments
Republican
enjoy considerable
political programming.
from
newspaper
radio broadcasters were like
exclusively
his
Senate
He
license.
a broadcasting
of
sale
high prices
the
noting
colleagues,
demanded
for
countered
the
Republican argument in favor of discretion by holding up
required a constant flow
democracy
that
infromation to the
to flourish,
were
policies
"We
candidates
are
major in political
a
the reach of all
within
concerned,"
said,
Howell
for
all
within the reach of
he said.
subsidiary,"
trying merely to place the
not
questions
merely
are
and
principles
as
are
they
are concerned,
broadcasting
is
public
it would be marred
"As far
broadcasters.
radio
life;
and that
and
institutions
democratic
if
news
of
to entrust so important a task to the discretion
policy
of
public
in effect,
saying,
goal of an educated citizenry,
the
"... we
privilege
of
cost
so far as
to place it
want
the discussion of
public
when one side or the other is allowed to
42
be
presented."
Expressing
Dill said Equal Time could not
programming,
specifically
extend to public affairs
to access rights for
oriented citizens. Industry opposition was
Dill confessed.
to
having
we thought
position,
sympathy with Howell's
"The
broadcasters
were
too
strong,
so
opposed
themselves designated
as
common
it unwise at this state
in
the
52
issue-
carriers
development
of the art to do it"....There is probably no question of
any interest whatsoever that could be discussed but that
the other side
of it
demand
could
radio
station would be placed
[it]
would have to give all
Dill told Howell
could
question
public
kind
that
for
setting federal policy
that
be
affairs programming and access rights for issue-
public
citizens
oriented
the
position... that
time to
[its]
no
or
discussion,
43
discussed."
of
the
in
and thus a
time,
Federal
now,
what mattered,
books
was
bill
through
Congress
the Radio Act on the
getting
and
with
by
was
Act
Radio Commission once the Radio
Right
enacted.
up
be taken
should reasonably
could
he
a
get the
not
that
stipulation
required to act as common carriers for
44
political or public affairs programming.
broadcasters
be
remained
Howell
already become evident," Howell countered.
need
to wait to find out about these abuses...we
these
future
great
stations of
this
more
and more
and that,
45
country;
the future of broadcasting."
53
ought
which in
change,
it will be very difficult to
interests,
not
"We do
to meet these abuses now, and not enact a bill
the
have
"Abuses
unimpressed.
control
apparently,
when
the
is
Senator
came
Edwin
to Dill's aid.
carrier
status
S.
Broussard
(D-Louisiana)
Broussard told Howell that
did
not
apply
to
radio
common
because
broadcasters did not make direct charges to listeners as
railroads
did
to
customers
Secondly,
Broussard
said
have
incentive
to
no
that
go
shipping
freight.
would
broadcasters
the
into
broadcasting
be
if broadcasting time was required to
46
for discussions of public affairs.
business
responded to Broussard by acknowledging
Howell
while still
that
in its infancy radio was nonetheless a
powerful
industry.
hand.
".
..we
The time for enacting policy was at
discussing
are
Howell said.
publicity,"
used
".
a
supervehicle
of
exercise
..Unless we now
some day to find that
we
The time
to
infancy
47
development of this great vehicle of publicity."
of
foresight
we
created
have
abuses
check
will
a
wake
up
Frankenstein monster...
is at the beginning,
in the
Howell offered methods of enabling broadcasters
to
all
carry
of
discussions
which had
issues,
of controversial public
been rejected earlier in the
Interstate Commerce Committee on the
would be burdensome to broadcasters.
54
grounds
Senate
that they
Howell proposed
limiting Equal Time for discussion of public affairs
He said that if
one affirmative or negative rejoinder.
a
either
they could
number of people requested time,
if
agree upon a representative among themselves or,
a
with
In
in
the end,
18
Section
to
49
commission
for
Howell had to settle
"it
that
adopt
duty
the
be
shall
a clause
the
of
and
rules
promulgate
and
Senate
the
decision-making
regulatory
48
commission.
bipartisan
with Dill to place
agreed
on Equal Time for candidates.
regulations"
the
As with Congressman Johnson's warnings on
House
Senator
floor,
extraordinarly,
Howell feared that radio was
powerful medium of mass
to
be.
manipulation
about
indicates just how powerful Howell thought
Frankenstein
radio
communication,
rhetoric
Howell's
programming.
The
potential
of
public
dangers
opinion
of
broadcaster
the
assaulted
progressives' identification of good government with
informed
indepedent
an
political and public
requirying stringent laws on news,
affairs
no
draw lots.
could
proposal,
this
accepting
of
Instead
they
reached,
be
could
agreement
to
electorate,
political
which
was
decisions
55
capable
after
of
an
making
digesting
news,
public affairs
and
political
Therefore,
information.
Howell insisted on placing the rights or radio listeners
to
ahead
information
political
news,
receive
of those of
and
radio
affairs
public
broadcasters
to
express their opinions. Hence, his insistence along with
Senators
of
that
LaFollette, Jr.
common
in radio news,
programming,
for political
It
Robert
and
Johnson
that radio broadcasters be designated as
carriers
affairs
Hiram
political
political
candidates as anemic and palliative.
is important to note as well that Howell's
public affairs
and
quite different from that,
Secretary
Time
and his opposition to Equal
of common carrier designation for radio
position
public
and
programming
is
news,
really
say, of Congressman White or
Hoover's position on listener sovereignty "in
the public interest."
difference
The
within
a
policy
stipulations
common
on
turns
of licensing or
within a licensed
carrier
broadcaster
stipulations,
of
system.
which
discretion
carrier
common
Howell
would
wanted
guarantee
access to radio for the discussion of public issues.
supported common carrier stipulations within a
56
He
licensed
system
as a means to the goal of sustaining an informed
for
White,
by contrast,
within
a
trusted in broadcaster
monopolies as public trustees of
and
and
discretion
was
their
abusing
to prevent broadcasters from
sufficient
Hoover
government
federal
the
of
power
the
White and Hoover argued that
licensed system.
licensing
to
information
rejection.
acceptance or
its
public
the
a flow of
by effecting
electorate
limited radio channels,
"the
thus licensing was a resaonable protection of
public
interest."
abuses
broadcasters'
From
their
could
best
after
curbed
be
view,
of
point
the
in
had violated "the public interest"
broadcaster
a
quality of his radio service or in the partiality of his
news and political programming. To impose common carrier
responsibilities
needlessly
broadcasters
on
burdened
broadcasters, White and Hoover maintained.
It
is noteworthy,
common carrier or a
position
Democrats
between
differences
in
political
and
Hoover's
in
commercially
favor
based
and
Republicans
licensing system that both
affairs
of
programming
broadcaster
system of
licensees
the
a
Howell's
abrogated
on
and
news
discretion
free speech rights of radio broadcasters.
57
on
stipulations
of common carrier
public
favor
that for all
too,
in
a
the
LaGuardia had
tried
impossibly to protect the free speech
rights
of
the speaker to express his opinion. But neither Howell's
nor
construction
this
positions accommodated
Hoover's
the First Amendment in
of
libertarian
shaping
radio
policy for political programming.
emerged
Dill
for Equal Time for
amendment
Dill's
triumphant
into conference substantially
Section 18 of the Radio Act.
only
broadcasters
if
Broadcasters
which
were
opportunities
broadcasters'
empowered
a
Commission,
Equal
deal
in
discuss
to
Time
Equal
airtime
to
office.
not liable for derogatory
remarks,
and which broadcasters would have no
than
to
same
for
politicians might make during
Rather
extended
Equal Time
had granted or sold
candidates
qualified
legally
unchanged, and emerged as
Politicians could command
issues.
public
went
politicians
to issue-oriented citizesn
but
candidates
debate.
Senate
in
with the
the
right
more
responsibilities,
bipartisan commission,
censor.
to
ambiguities
an effort to define
legal
addresses,
radio
equal
of
narrowly
Congress
the Federal
Radio
to make rules and regulations to implement
Time.
58
Several
enacted
for
features
stand
out.
statute only for legally
public
office.
guaranteeing
First,
qualified
Section 18 had
no
Congress
candidates
stipulations,
issue-oriented citizens any access
rights
to the airwaves.
Second,
retained
broadcasters
amount of discretion.
a
considerable
They reserved the right to
grant
Congress required only
access to political candidates.
a broadcaster provide Equal Time solely if he
that
broadcaster
50
became
discriminate"
that
compromise
but.. .not
a
Broadcasters
land.
political
legal
programming
political
"regulate,
could
the
of
law
the
reserved significant power over
under Equal Time,
To
programming.
and
be sure,
it
might
be
be
number
sound business sense to allow access
the
broadcasters accepted
access
to
of politicians to indicate evenhandedness
public issues to a listening audienece.
the
won
larger
self-regulation on political
free
to
with
only
modest
any
about
In any case, if
intrusion
59
opposed,
victory
of
programming.
exploit radio's
were
a
the quid-pro-quo of allowing
to a candidate one of them
nonetheless
in
Or it
negative power to deny access to all candidates.
might
the
had
discretion
considerable
exercise
to
right
Dill's
In other words,
use of his facility.
allowed
had
they
had
significant
Broadcasters
commercial
of politicians.
potential
Third,
Congress
established
a
bipartisan
commission and invested it with considerable
in
discretion
charting the regulatory course for Equal Time.
matter
of
regulatory discretion is as crucial
evolution of Equal Time as broadcaster
Federal
to
the
discretion.
The
Radio Commission and its successor the
Communications
Commission
legislation
evidence
as
would
of
cite
This
this
congressional
Federal
enabling
delegated
authority to support subsequent interpretations of Equal
Time. And the issue of FCC discretion to make rulings on
Equal
Time would become enmired in legal arguments
and
political fights as to whether the FCC was acting within
its congressionally delegated authority or exceeding it.
In
Dill
commission,
in
commission
Secretary
would
negotiations
final
the
mollified
favor
-of Commerce.
temporary,
be
of
bipartisan
who
opposed
authority
Dill said that the
in
the
commission
functioning for only a year
its work
a
and
was done. At that
the Secretary of Commerce would assume regulatory
authority
for radio,
Dill promised.
remark later that he knew that a
was a
White,
vesting
then from year to year until
time,
the
for
ruse.
"I knew if
But,
"temporary"
Dill
would
commission
we ever
got
a commission,
51
Dill remarked.
would never get rid of it,"
60
we
These three outcomes, taken separately or together,
assured
Time
Equal
confusion.
assured
broadcaster
common-carrier-like
it provided minimal
discretion
yet
guarantees
for
political
commission
was
to be empowered to cope with
intent
to
manipulate
decisions.
Although
provisions,
its
the
public
obligations
the
that
that
regulatory
commission's
broadcasters
far
is
precise
"Equal Time,"
very name,
had
exceeded
responsibilities as licensees.
61
would
partisans
congressional
Time
Equal
difficult
of
interpretations
differing
champion
Time
Equal
tasks.
interpretative
regulatory
A
candidates.
in
its
suggested to
common
carrier
their
precise
6
Equal Time
extend
Hoover
President,
As
to
vetoed
stymie
provisions
for procedural changes
for
people
political
and
for
to speak for and
office,
or against
to
he
and
greater
the FRC, which he wished to
Section
broadened
law
Hoover used a pocket veto to
administrative authority for
limit. The
a
public affairs when in 1932
H.R. 7716.
pocket
blocked
18
included
against
Equal Time
candidates
for
against referendum issues,
52
public issues.
for
and
62
7
In 1933,
of
Franklin Delano Roosevelt became Prsident
and so cowered broadcasters that
the United States,
issues of Equal Time paled quite literally when compared
radio
FDR's
with broadcaster fears of nationalization.
policy was unambiguously majoritarian, particularly when
it
New
came to informing the average citizen about the
Deal.
In
to
He said that
federal government must exert extraordinary
emergency.
cope with the
cooperated
with
nationalization
Roosevelt
attempt.
hostile to the New Deal.
dynamic
the
Roosevelt spoke of
Depression as a national emergency.
Great
the
his inaugural address,
Broadcasters
immediately
fend
to
powers
any
off
was
Some cut commentary that
William S.
Paley,
the young,
System,
president of the Columbia Broadcasting
support
V~rd theyPresident his willingness to lend CBS
53
"President Roosevelt if
cogingwith the emergeny.
f
he
.the
chose to do so might have comandeered the radio
government
as
though the
nation
were
observed the radio trade journal Broadcasting,
-immediate
cooperation
extended by radio
suggestion that such a need would arise."
63
at
"
for
war,"
but the
obviated
54
any
as well powerful
were
There
which
the universities,
and
New
prominent
Such
farmers,
including labor,
New Deal,
welfare reformers
nationalization.
favored
Interior
of
Dealers as Secretary
and
Perkins,
Secretary of Labor Frances
Harold Ickes,
the
factions within
Agriculture Secretary all favored nationalization.
manipulated
Roosevelt
the
administration
proponents of nationalization within his
to
Howe,
Marvin
Louis
the help of White House insiders
With
programs.
Deal
New
his
maximum radio coverage for
the
get
against
broadcasters
muscled
FDR
McIntyre and Stephen Early,
broadcasters to broadcast pro-New Deal programming,
to
him a clear national signal
give
chats
fireside
his
for
and
by forcing the radio networks to interconnect his
broadcasts
Coughlin nor Huey Long could do even with their
55
broadcasts.
1934,
In
again.
Democrat
And
again,
progressives
Robert
Wagner
of
(R-West Virginia) --
Hatfield
public
affairs
Their
expanded
resembled
those
Time
originally
York
64
and
political
(Section
Liberal
Henry
D.
315)
candidates.
proposal
proposed by Southern
and
called
for
twenties:
Western progressives in the
now
Time
pushed for Equal Time for
for
as well as
Equal
New
--
popular
Equal
confronted
Congress
FDR
Father
something neither
a national audience,
reached
so that
with independent braodcasters,
it
be
shall
"it
election issues, and
candidates,
proposal
The
questions.
referendum
that
discuss
to
citizens
the
in
issue-oriented
for
access
for
opportunities"
"equal
contended
also
for
interest"
public
equal opportunity for.. .public
"to permit
broadcasters
56
Equal Time omitted
for
The 1934 proposal
questions."
any
reference to broadcasters
programming although
news, political and public affairs
organizations
the
Communications Act of
their side,
Radio
censorship.
to
Act
of
1927.
broadcasters wanted
stiffer
uttered
by
Due the anti-censorship statutes of
the
Communications
Act
(Section
political
1934 emerged as identical
defamatory
or
29)
and
broadcasters
326),
(Section
in
for
libelous
Act
opposed
They wanted to be held harmless
on libel.
politicians.
public
Time
Radio
the
of
18
On
any
non-
Section 315 on Equal
measure so that the
wording
for
A pragmatist like Dill
the
Section
also
in an effort to stimulate
programming.
affairs
amendment
one-quarter of the radio channels
designated
profit
Wagner-Hatfield
The
effect.
that
intended
"equal opportunities" clearly
of
its wording
of
common carriers
as
statements
without
1932,
In
remarks
the
could
not
triggering
review
charges
the Nebraska Supreme Court
of
had
a
involving
case
broadcaster in a
57
Referring to the anti-censorship
political broadcast.
ruled
against
provisions
ruled
"the
a
of the Radio Act,
prohibition
of
65
Court
the Nebraska
censorship
of
had
material
censoring
the
words as to their political and partisan trends...,
and
broadcast.. .prevents
give
a
the
licensee from
join
to
licensee any privilege
and
does
not
assist
immunity
nor grant any
58
ruling
Such a
the consequences of such action."
from
libel,
in publishing a
if they
placed broadcasters in an impossible position:
they were open
demanded to review politicians' remarks,
to
then
remarks,
broadcasters
problem,
risked
they
for libel in the new
to reserve a quarter of
amendment
Senators
non-profits,
Dill
liability
for
spectrum
the
and
this
Wagner-Hatfield
the
of
review
remedy
To
suit.
requested relief from
59
version of Equal Time.
deliberation
In
not
but if they did
charges of censorship,
(formerly
White
Representative White) argued against reserving a quarter
of
the spectrum for non-commercial
were totally majoritarian.
arguments
broadcasters with specific interests
against
They
also
worried about government
licenses to some educational
would discriminate
stations
commercial
that
would
programming costs for
view.
in
religious, labor
others.
full time
force the non-profits to
broadcasters themselves.
of
discrimination
cooperative organizations but not to
predicted
Their
They feared that
those who did not share their points
assigning
and
licensees.
They
radio
become
like
They noted
that
programming
commercial broadcasters devoted significant
60
to
religious and
educational programming.
66
In
short,
Dill and White said the commercially
produced
licensees
for
programming
political
news,
"balanced"
of
greater quantities
"general
model of
dominant
Since
and public affairs programming.
the commerical system of
as
well
public service" as
adequate
licensees provided an
flow of programming to the majority of the public,
they
argued that Senators Hatfield and Wagner would limit the
by assigning licensees to more narrowly interested
flow
broadcasters.
radio
The
industry stated its opposition
to
the Wagner-Hatfield amendment by asserting that existing
despite minor defects,
that,
the Radio Act of
and sound basis
1927, and
have established a solid,
the court decisions under it,
workable
recognizes
one
every
"Almost
fine.
were
statutes
for government regulation
of
61
radio,"
an industry spokesman told a Senate
language,
comparable
In
Hafiel4I
amendment
~16i
.Ainterest
Assoeition
Association
the National
representative argued against the
Broadcasters
of
it
grounds that
on the
programming.
Broadcasters,"
hearing.
"The
he told
the
of
Wagneradvanced
National
Senators,
fully agrees that the facilities of broadcasting should
be made available in the fullest possible
t
maintains
they are now,
67
measure,
as
of
all
and either free
charge or at the lowest possible cost,
of education,
in the
service
or other activities for human
religion,
but it insists that these facilities should
62
be those of stations serving the public as a whole."
betterment,
the end,
In
They
the
FCC
to
a study on reserving a fixed percentage of
the
Communications
Act,
called upon
which
no
report,
to
standing
FRC
interests
the FCC agreed with
would
"It
the
the
that
appear
by the use of existing facilities,
access to costly
than by
audiences,
organizations
non-profit
and
to
the establishment
of
broadcasters
the
is
FCC
In order
in
required."
arrogated to
function.
68
by
faith
good
63
In
itself
making
the
for
service
to gain the maximum
cooperation
possible,
giving
thus
and efficient equipment
stations for their peculiar needs.
assertion
fullest
the
obtain
to
non-
the
assist
of the non-profit organizations may be better
established
new
"to
policy
position.
Dill-White
them
While
for expression,"
opportunities
long-
reaffirmed
than non-profits.
better
organizations
profit
The FCC
1935.
served
Commission
expressing
the
policy that commercial stations
interest
the public
surprise,
one's
307
Section
a compromise,
spectrum for non-profits by February 1,
served
relented.
Hatfield
of
on
settled
deliver
Wagner and
this
policing
8
Summary/Conclusion
the dominant dynamic for Equal Time
1934,
By
was in place. Congress enacted a majoritarian policy for
Equal Time functioned
political programming over radio.
within
private
of
system
commercially based radio
a
commission,
to
provide mass communications to the American public.
To
regulated
licensees,
won their
Democrats had
that extent.
to
broadcasters
sovereignty
listener
Time
Equal
political
it
on
established
programming:
placed the rights of the listener
18
Section
in radio
that
stipulation
common-carrier-like
a
the
protected
free speech rights to the extent
majoritarian
imposed
Time
Equal
candidates.
political
if
qualified
legally
to
only
applied
Time
Equal
Equal Time even
on
point
Southern
and
progressives
western
extent,
some
by a bipartisan
hear
to
information above those of the broadcaster to
political
articulate his views.
At the same time,
of
a national
public
Radio
system
interest,"
took
the
entertainment,
also
of licensees
vision
with his
Hoover,
regulated "in
emerged as a
commercial direction,
partial
the
victor.
providing
mass
which Hoover and later the Federal Radio
69
and
Federal
with
licensing policies that favored larger, commercial
Communications
Radio
broadcasters.
Commission
supported
also
broadcasters
retained
considerable discretion in political programming because
they
had
rather
criteria
obligations.
FCC's
meet only
to
While
"public
burdensome
articulated
than
than
by
the
FCC's
more
"public
common
stringent
hardly a libertarian
some of the common
Democrats and
the
less
much
carrier
political
carrier
policy,
were
criteria
interest"
interest"
proposals
reformers
in
congressional debate over radio policy.
Like
many compromises,
its own controversies.
Equal
Time
for
issue-oriented
Equal Time produced
The progressive insistence
public affairs and access
rights
citizens was not the least among
70
on
for
them.
CHAPTER TWO
THE ARTICULATION OF FAIRNESS
71
1
Fairness Doctrine (1949) is to news and public
The
affairs
programming.
news
in
as
programming
Fairness Doctrine
The
to
political
defines
broadcast
is
Time
Equal
and public affairs in the a way comparable to that
over
which Equal Time defines political programming
radio and television.
Fairness Doctrine defines public discourse for
The
broadcast news and public affair programming by imposing
two
obligations on broadcasters.
First,
Doctrine requires broadcasters to provide
news and public affairs
Fairness
the
controversial
listeners
programming for their
and viewers. Second, the Fairness Doctrine requires that
broadcasters extend access to issue-oriented citizens to
Neither obligation
discuss controversial public issues.
of
required
was
broadcasters
them
before
1949.
only to satisfy the
had
1949,
Until
general
interest" standards of the Communications Act
"public
in matters
of news and public affairs programming.
Fairness
The
instrument.
public
is a
majoritarian
policy
Its intent is to assure a flow of news
and
of
the
affairs
citizens.
Doctrine
programming
As with Equal Time,
72
to
the
majority
spectrum scarcity is the
the
for
rationale
technological
Doctrine:
Fairness
because there are more people who wish to broadcast than
licensees
those with broadcast
frequencies,
available
not.
"public trustee" obligations to those who do
have
There
corridors.
and
de
emerged
hardly
were many precedents
affairs
public
grey
bureaucracy's
from
novo
Doctrine
Fairness
the
so many regulations,
Like
to
news
impose
upon
obligations
programming
broadcasters, dating from failed efforts to extend Equal
Time
to public affairs programming in
Radio
Act and the Communications Act.
Radio
Commission
Communications
rights
asserted
the
possible
news
mid-forties,
of
public
the
to
fullest
the
In
and public affairs programming.
the
Court
Supreme
upheld
they
which
had made a number of rulings in
Commission
the
Both the Federal
Federal
the
and
legislating
the
Federal
the
Communications Commission's licensing authority. Writing
in expansive majoritarian language,
ruled
over
Justice Frankfurter
that the FCC could properly exert
content
(referred to as
its
authority
"traffic" in the decision)
as a legitimate function of its licensing authority.
In
the latter half of the forties, the FCC made a number of
regulatory
rulings,
which
controversial news programming.
specifically
Then,
in 1949,
FCC majority articulated the Fairness Doctrine.
73
promoted
a thin
Acting on its discretion, the FCC issued "A Report
of
Commission In the Matter of
the
Editorializing
by
Broadcast Licensees," which became known as the Fairness
1
Fairness
Congress had not legislated the
Doctrine.
Neither the Radio Act nor the
Doctrine.
Act
Communications
addressed news and public affairs issues aside from
requirements that broadcasters behave
general
the
then, is another aspect of
Here,
public interest."
"in
into
defining
broadcast news and public affairs programming.
Rather
broadcaster
than
is
a
matter
of
"make
to
discretion
2
to assure a flow of
rules and regulations"
appropriate
public
and
it
discretion,
discretion.
regulatory
news
importantly
figures
which
discretion,
affairs
FCC
programming
to
the
public
enabled the FCC to issue the Fairness Doctrine.
a
From
Doctrine
placed
libertarian point of
was doubly
the
abhorent.
the
view,
First,
it
Fairness
clearly
rights of the majority to receive news
public affairs programming above the free speech
and
rights
of broadcasters. By imposing obligations on broadcasters
to
balance stories and provide access opportunities
74
to
issue-oriented
Fairness
the
issues,
affairs
and
newspapers,
of
and chilled
programming.
As
view,
broadcast
saw
libertarians
Fairness Doctrine would have a perverse effect.
such
news
and
it,
the
It would
hoped.
the opposite of what the FCC had
accomplish
public
and
From the libertarian
stiffled
obligations
on
duties
imposed
other printed forms of news
information.
political
Doctrine
far beyond those expected
broadcasters
magazines
citizens to discuss controversial public
By
imposing obligations on broadcasters to balance news and
to
provide
access
broadcast
prophesized
libertarians
opportunities,
stations
would
avoid
covering
controversial issues rather than endure a host of access
requests.
Second,
from the libertarian view, it was improper
that FCC enjoyed the authority to define the content
news
and
broadcast
public
licenses. They feared
broadcasters'
licensing
against
affairs programming and
free
to
of
dispense
grave consequences for
speech rights, for
here
authority defining program content
which broadcasters' licenses would be
was
the
standards
measured
for FCC abuses
3
authority.
licensing
due to its power as the national
for renewal. There was a serious potential
75
2
reform.
regulatory
Fairness Doctrine was originally a
The
The Fairness Doctrine abolished a total ban
on
which the FCC had put in place in
4
In articulating the
1941 in the "Mayflower Decision."
broadcast editorials,
increase
to
intended
FCC
the
Doctrine,
Fairness
freedoms of expression for broadcasters and
libertarian
issue-oriented
citizens
majoritarian goal of assuring a
promote
to
and
alike,
the
public
flow of news and
affairs programming to the public.
narrow.
The
licensees to
issues.
black-out
Doctrine's
Fairness
The
It
broadcast
enabled
Doctrine
assert
editorial views on controverial
at lifting the Mayflower
broadcast
editorials by
Decision's
licensees.
Fairness Doctrine dealt only with editorial comments
the
broadcast licensee or a spokesman,
who
himself as representing a licensee's views.
formally
was
Fairness
aimed
on
reform
intended
cover
commentators
broadcast
The
by
identified
It did not
although
as
employees of broadcast licensee's it would seem unlikely
serious
differences
characterized
relations
between
individual licensees and the commentators they chose
hire.
76
to
practice,
In
are
which
in
discussed
detail
which they did not
obligations,
These
before the Fairness Doctrine.
have
It
programming.
redefined broadcast news and political
imposed obligations on broadcasters,
Doctrine
Fairness
the
however,
an
effected
below,
majoritarian policy in news and public affairs
expanded
programming.
The FCC's total ban in 1941 on broadcast editorials
in
the Mayflower Decision grew out of a case
Boston
in
in the late-thirties concerning a license renewal for the
Yankee
a radio station
WAAB,
Network to operate
public
had broadcast strongly opinionated editorials on
issues during its news casts.
Mayflower
case
because
a
This case is known as the
competing
Mayflower
Broadcasting Company,
Network's
license for
partiality
their
station's
WAAB
the
company,
Yankee
challenged the
on the grounds that due to
editorials
WAAB's
that
the
violated
"public interest" obligations.
The
editorial policy in question concerned personal
specific
attacks
on political candidates.
In
the
Communications
Network
could
ruled
Commission
keep
the
Decision,
Mayflower
that
its license for WAAB
77
the
as
Federal
Yankee
long
as
Yankee
on
Network management did not broadcast
public
issues
and political candidates over
In its affidavits,
that
editorials
Yankee Network management
WAAB.
promised
since September 1938 "no attempt has ever been
will
or
ever be made to color or editorialize the
news."
The
Yankee Network's attorney told the FCC that
"there
are
absolutely
reservations
reference
what
no reservations
of
any sort,
whatsoever,
character,
those affidavits.
to
they say in
the
fullest
They
possible
that the Commission wants to give them."
the Yankee Network's
"
the
station has
Beyond
the
Mayflower
the
resistance
and
without
or kind
mean
exactly
amplification
In issuing
specifics of a Boston
the
Decision
illustrated
radio
station,
the
stubborn
to resolving the tension between
public
with
license renewal, the FCC noted that
5
no editorial policies."
majoritarian broadcast policy,
news
or mental
affairs
shaping
a
which effected a flow of
programming
to
the
public
trammeling broadcasters' freedom of expression.
In an effort to assure a
flow of news and public affairs
information to the public,
the FCC ended-up stiffling a
broadcaster's right to editorialize.
Spectrum
scarcity was the technological basis
the Mayflower Decision. Bandwidth
78
on
the spectrum
for
was
too precious to allow broadcasters to use radio channels
to express their editorial views,
to
the
in
inherent
in frequencies
limitations
"the
Due
the FCC ruled.
nature of radio, the public interest can never be served
broadcast facility to support of
by a dedication of any
own
[broadcasters']
not the private --
--
interest
public
"The
ends."
partisan
"A truly
is paramount."
the
free radio cannot be used to advocate the causes of
licensee,"
the FCC wrote.
"It cannot be used to support
It cannot be devoted to
the candidacies of his friends.
support
the
principles
In
most favorably.
regard
[the broadcaster]
the
brief,
happens
to
broadcaster
10
cannot be an advocate."
Spectrum
scarcity reasoning was hardly novel.
and court precedents
the
flow
a
of broadcasters.
The
policy as early as 1929 in
Commission's
policy
that a scarcity of channels placed
the
information to the public above
rights
speech
such
of
FCC
reiterated longstanding
Mayflower Decision
The
FCC had
the
Federal
free
stated
Radio
Broadcasting
decision in the Great Lakes
Corporation and as recently as its 1940 Annual Report in
noting
that
"stations
rather
7
questions."
rounded
are required to
furnish
than one-sided discussions
79
of
wellpublic
It went beyond customary
preempted editorials entirely.
FCC
It
reach of the Mayflower Decision was novel.
The
in
practice of policing public affairs programming
the
Instead,
occurred.
case by case basis after they had
abuses on a
editorials
Decision denied
Mayflower
any
reviewing
of
and
renewals,
license
considering
a
priori.
Like the Fairness Doctrine, which was to follow it,
the
editorial
of
Rights
programming.
affairs
public
and
editorials
Decision mixed together
Mayflower
expression henceforth became attached to news and public
programming.
affairs
must
radio
of speech on the
full
provide
to
enough
broad
be
"Freedom
equal
and
opportunity
all
sides
can
the public of
for the presentation to
8
"Radio
the FCC ruled.
of public issues,"
serve as an instrument of democracy only when devoted to
the
and
freely
information
of
communication
9
a
on
editorials
Network
public,
his
the
rebuttal,
and hence was derelict as
the
a
license,
a
public
the FCC ruled,
obligation for presenting
public
10
without bias."
important
as
such
providing
Yankee
had neither fully nor objectively informed
By accepting
"assumed
without
candidate
news
counterbalancing
broadcasting opinionated
By
objectively communicated."
fairly,
issues,
80
the
trustee.
broadcasters
all
sides
objectively
of
and
But,
the Fairness Doctrine which exerts
unlike
a
significant influence over policy for broadcast news and
public affairs programming, the Mayflower Decision had a
mostly formal
Yankee
impact.
from
Network
from
licensees,
applied
to
speaking
for
remark
on
politicians,
editorializing
radio
a
deny
strictly
It forbade licensees
did
not
employed
by
but it
commentators,
editorializing on
such as the
public
issues.
commentators only if -they stated they
Commentators
the licensee.
the
doing
not as advocates
public
news,
continued
affairs
so as individual commentators
of the licensees.
81
It
were
to
and
and
3
A number of court decisions and FCC rulings created
a
basis for the FCC to modify the
Decision.
Mayflower
The Supreme Court's decision in the Network case
the
Blue Book
FCCs
(1946),
three
and
(1943),
rulings
FCC
1946)each in its own way contributed to the
(1945,1946,
of
articulation
All
1949.
"fairness" as a doctrine in
advanced the majoritarian position that the flow of news
free
and information to the public had priority over the
speech rights of broadcasters. Each applied majoritarian
on freedom of expression to a number of
rulings
of
the radio industry.
Cumulatively,
facets
decisions
these
its
FCC policy that its enabling legislation,
affirmed
own body of regulatory precedents,
Court
and a Supreme
ruling--upholding its licensing authority--all supported
FCC
rule
making on editorial expression
and
public
affairs programming.
the
In
constitutionality
affirmed
the
authority
in expansive majoritarian
Court
set
imprimatur
Felix
Justice
Network case,
of
Frankfurter
FCC
language.
licensing
Supreme
on FCC licensing authority helped
the stage for a more active regulatory role by
82
to
the
FCC
in
programming content.
to
spectrum
scarcity.
"unique
radio's
channels
of
scarcity
the
called
Frankfurter
a
licensing
radio system was unworkable without
national
due
Frankfurter ruled that
11
by all,
had been established to
of
the
the
of
efficiency
granting
licenses,
He ruled, accordingly, that the FCC
Frankfurter wrote.
was
effect maximum
by
spectrum
radio
The
denied."
some who wish to use it must be
FCC
used
be
cannot
"Because [radio]
characteristic."
correctly applying
its
National Broadcasting Company as
12
commerce."
over
power
its
Frankfurter's
over
licensing authority
majoritarian
"a proper exercise
supported
language
later FCC's policy statements, particularly the Fairness
which
Doctrine,
they
_
that
arguments
that
were licensees.
breaking-up
denying
He
freedoms of expression.
the free speech
denying
rejected NBC
its networks constituted a violation of
F irst Amendment
-by
forcefully reminded broadcasters
of NBC
and/or
its
The FCC was not
affiliates
its
a station or in this case an
entire
radio
network licenses to broadcast. Rather, Frankfurter wrote
the FCC was exercising its authority
13
interest."
the airwaves "in the public
that
83
to
regulate
the FCC put itself
Following the Second World War,
on
by asserting that public
record forcefully
affairs
programming constituted the public interest, and that it
in
programming
consider "balance" in public affairs
would
the FCC published
In 1946,
licenses.
issuing
Public Service Responsibility of Broadcast Licensees,
the
a
known in the trade as the
book of standards that became
14
in
Book
the Blue
published
The FCC
Blue Book.
anticipation of more AM and FM
commercial
emergence of
stations
radio
There is also
television.
following
leadership
encouraged
War
the Second World
a
international
that the emergence of United States
hint
and the
Blue Book writers that the flow of diverse, high quality
the
constituted
public
to
public affairs programming
and
news
the
public interest
due
American
to
international responsibilities.
Blue
the
In
championed
the FCC
Book,
its
recommendation for public affairs programming under
the
of
banners
news,
affiliates
went
on
to
routinely
affairs
document
rejected
operas
soap
affairs and classical
public
Blue Book
public
of
the preponderance
deplored
excellence.
and
diversity
music
entertainment for more serious news,
15
affiars and cultural programming.
84
network
network-produced
shows by substituting
light
over
The
music.
that
It
and
public
new
The writers of the Blue Book also saw a variant of
"private" censorship, which had worried
some members
of Congress in the twenties. Blue Book writers worried
that
the
broadcasters' dependencies
and the advertisers' insistence
no
offend
that radio
that
on advertising,
radio programming
segment of any potential market combined
did
so
not serve the "public interest" as
its promise. Hence, their call for more public
16
They quoted
music.
affairs programming and classical
fully as
Norman
Rosten,
a
recognized writer,
that
"the
sponsor and the advertising agency have taken over radio
17
writing."
of
matter
the
in
quietly
Three FCC rulings on license renewals contributed
to setting the agenda for the Fairness Doctrine. In the
rulings, the FCC identified the flow of news and
information to the public through controversial public
affairs programming with broadcasters' public interest
responsibilities as trustees of the airwaves. It
asserted
that
broadcasters
had affirmative
obligations to provide controversial public affairs
programming in order to keep their licenses. And, as in
the Network case and the Blue Book, the FCC upheld its
18
authority to force broadcasters meet these standards.
85
4
A petition from the Cornell
Mayflower Decision in 1947.
to
provided an occasion for the
editorialize,
reconsider
"urging
candidates
for
or
It
first amendment issues of
issues
on
obligation
to
controversial
and
rights
to
the
express
broadcasters'
one
public
testimony
freedom of
testimony specifically on
broadcasters'
between
in
questions
requested
FCC
The
called for
views
various
on
another
19
or supporting
office
on
various
of
election
the
political
controversy
difficult
to
Federal
comment
requested
Commission
editorials
the
hearings,
for
call
Communications
side
FCC
the Mayflower Decision.
its
In
the right
requesting
WHCU,
University radio station,
the
reassess
its decision to
announced
FCC
The
on
speech.
relation
their
"affirmative
of
sides
fair and to represent all
20
affairs
issues"
in
news
and
pubic
be
programming.
This construction on regulatory policy
indicates the tight-rope that the FCC apparently
86
public
the
to
news and information
of
fullest
flow
without
triggering charges either of granting too
of
or
broadcasters
to
power
the
encourage
it had to walk in its efforts to
sensed
censoring
much
broadcasters
inordinately.
making
In
for hearings, FCC Commissioner
the call
Denney observed that the radio industry
newspapers
They
issues.
wished
and
the revenues
for
impartiality.
that
many
radio
from
reputation
its
demanded the
FCC Commissioner
Denney
noted
through
remarked
that
after
also
He
commentators.
on
constraints
channels had abated,
the
number
radio
of
noting that there were 1,200 radio
World War II up from the 600
odd
in
and the FCC
its editorials
21
fact finding for the Network case.
1938 when WAAB had broadcast
did its
reputation
radio stations broadcast editorials
technological
stations
than
partisan
avoided
to preserve radio's
flowed
believed
They
Other broadcasters
to editorialize.
right
that
broadcasters
because
the
acceptance
public
higher
enjoyed
radio
favored
editorials.
Decision ban of
Mayflower
over
broadcasters
Some
editorials.
radio
was split
87
5
The Mayflower hearings capture issues comparable to
those
in 1926 when
discussed
Congress
had
initially
In
wrestled radio news and public affairs programming.
news
the
initial
licensing
devising
FRC,
its
the repsonsibility
for
Congress had assigned
Act,
authority,
and regulations for the
rules
the
discussion
of
1948,
as
In the spring of
public issues over radio.
pass
In order to
and public affairs programming.
Radio
radio
was unable to reach a policy for
Congress
1926,
successor to the FRC, the FCC engaged this precise duty,
and in doing so,
provoked wholesale reconsideration of
freedom of expression over radio.
The
though
channels,
constituted
and
to
the
than
pressing
less
technical
basis
labor
policy.
for
rights
progressives
championed unrestricted
groups,
and
to the
heirs
Democrats
worried about media power.
88
about
concerns
media
of
1926,
in
editorial
22
first amendment rights of the press.
Broadcasters
due
The scarcity
issues are not unfamiliar.
Farm
of
the
monopoly,
The
Mayflower
hearings,
witnesses
dozen
right
amendment
editorialize.
National
Broadcasters,
of
Association
of
this
comprised
journalism
of witnesses,
majority
to
and
a radio preacher,
Broadcasters representatives,
professor
licensees
broadcast
for
first
unqualified
an
advocated
a
The
group.
favored the Mayflower
however,
Trade
Decision's prohibition on broadcaster editorials.
farm groups, radio writers and directors, and a
unions,
former
a
Roughly
brought out over fifty witnesses.
1948,
April
held in March and
Mayflower Decision
certain
provisos such as
the
of
time
the
smaller
A
group.
comprised this
witnesses
of
number
at
commissioner
FCC
with
editorializing
advocated
rights
editorial
extending
to licensees but not to networks or assuring a right
broadcsters and a college
23
group.
this
constituted
reply.
Individual
Broadcasters advanced first amendment
lifting
the
unqualified
asserted
interest,"
Mayflower
ban and
editorial rights.
that broadcast
because
they
professor
for
claims
granting
them
President
Woods
for
ABC
to
editorials were "in the public
would increase
the
flow
of
information to the public. Woods rejected the attachment
89
of any provisios such as access opportunities for issue-
maintained
broadcasters
mass
the
believed
sufficient
means
CBS
views. In a word,
provided
public
and
flow of news
one
"Radio... is only
of
expression
the
means... for
the
Frank Stanton told
President
radio
1948,
communities
their
said.
he
be as
should
"radio
reject
marketplace
media
to assure a
effective
many
24
ideas,"
to
free
those
affairs information to citizens.
of
Woods
feel
should
devoted sufficient publicity to
Woods
editorials.
if other media in
requests
access
to
respond
to
citizens
oriented
free
as the press,"
was "only half free."
that
FCC
that
but
in
Stanton argued that
pointing
spectrum scarcity was a problem of the past by
out that radio stations outnumbered newspapers by two to
He added that
25
unsound."
"constitutionally
were
access opportunities
one (3,690 stations to 1,792 newspapers).
The
National
amendment
first
specifically
326)
of
the
the
of
Association
rights and FCC
anti-censorship
Communications
Act
Broadcasters
enabling
legislation,
(Section
provisions
of
1934,
to
unqualified editorial rights for broadcasters.
Miller,
Director
of
the
NAB
90
argued
cited
that
claim
Justin
the
forbade government censorship.
first amendment
on radio
policy
extension of
were
editorializing constituted an improper
FCC
authority,
Miller
to
respond to
broadcasters'
opportunities
an unconstitutional
said.
Miller
Any
FCC
policy
public
on
free
speech,
editorializing,
be
Time would
to,
editorials
similarly
diversity
of
testified
what
Willard
intended.
had
FCC
opposite
the
accomplished
thus
the
controversial
on
of view
of points
and
issues,
effect
expression
the Mayflower ban stifled the
that
argued
a
on
Access
Willard, Executive Vice President for the NAB,
A.D.
of
asserted.
intrusion
Equal
26
faulty in Miller's view.
say
comparable,
Any FCC
that eitorializing was a
responsibility that
rested
properly with broadcasters and should be
there,
not
with
the
FCC.
He
claimed
placed
under
that
the broadcasters' microphone was accessible
27
to everyone but the broadcasters.
Mayflower,
Fred
the
Seibert,
University
of
Mayflower Decision
Professor of Journalism
Illinois,
violated
argued
the
that
at
the
first
amendment and the FCC's anti-censorship regulation.
He
would
prefer
occasional
91
abuses
with
controversial
of
discussion
regulatory prohibition on
28
FCC.
the
told
a
temporizing effect
Waldrop,
Frank C.
Seibert
editorializing,
that
as the broadcasters' markets,
listening audience,
exerted
a
to
due
proponents of editorials pointed out
Several
the
issues
no
than
air
on the
programming
controversial
Herald
reminded
afford
to
on
excesses.
editorial
a reporter for the Washington Timesthe
could
FCC that broadcasters
offend their listeners
not
endangering
without
He suggested that market-driven factors
their revenues.
played an important role in predisposing broadcasters to
balance news and public affairs programming.
He
added
that broadcasters editorialized to a considerable degree
in
their
writing,
Seibert
with
programming due
news
and
placing
pointed
interest
communities,
out
of
news
broadcasters
that
a
30
selection,
Professor
to
had
live
in
their
sanction on editorial
abuses
and
groups
implying
their
29
stories.
to
within the marketplace.
92
listeners
lift
play"
in
cases
days
early
amendment
the commissioners
reminded
He
grounds.
news
"fair
that
in
political programming
and
the FRC
of
administrative
and
Mayflower on first amendment
to
FCC
the
urged
the Federal Radio Commission,
for
the
former general counsel
Caldwell,
Louis F.
Mr.
had
posed
first
thorny
issues. He said that as general counsel he had
written FRC rulings for and against
different
on
broadcastes
license renewals for
of
the basis
substantially
similar evidence concering their news and public affairs
programming.
warned the commissioners that
Caldwell
be
a
placing
expression
condition
if
on
restrictions
priori
of
freedom
it stipulated access opportunities as
ban.
for lifting the Mayflower
such a policy,
the FCC would
By
a
creating
the FCC would not only violate the first
said
that it would
Caldwell
impossible
administrative burdens for itself.
would
said he feared that the FCC
policing
of
untenable
position
standard,
such
"fairness,"
when it could
as
only
Caldwell
place itself in
a
general
proscriptive
a
create
also
amendment,
review
standard
deal effectively
the
of
with
specific cases of abuse of the public trust after it had
30
occurred.
93
Proponents
power.
testified that broadcasters' discretion in
public
public
protection
was not sufficient
programming
affairs
"the
the past, and
Granting editorial
should not be trusted in the future.
broadcasters
rights to
would endanger the free flow of
ideas and opinions to the public,
Mayflower
of
that
testified
Several
interest."
broadcasters had made partisan attacks in
rule,
editorials
too much
asserted that broadcasters already had
They
on
ban
the Mayflower
of
believed that
proponents
As a
they contended.
first
the
amendment entitled broadcasters to broadcast news and to
hire
commentators.
Lawrence
James
the
of
time
FCC commissioner at
broadcasters.
rights
Fly said that the NAB's Justin Miller
ground" in presenting his case
"pathetic
stood on
broadcasters'
argument
amounted
to
regulatory
Fly charged
freedom of expression.
Miller's
in behalf of
private
policy
the
the
provided
Mayflower Decision,
testimony against granting editorial
strongest
to
a
Fly,
censorship.
might
which
94
be
that
editorials
broadcast
He
for
warned
based
any
FCC
on
Miller's brief
the
"turn[ed] the right of exclusion over
He
licensee..."
worried that such a ruling would
to
free
31
Fly
democracy is secure,"
"With a thousand tongues
free speech.
chill
the government,
criticize
to
said.
Fly
suppress
to
willing
the
speech
free
He
was
rights
of
view.
majoritarian
the
articulated
broadcasters
due to his confiction that their rights to
editorialize
would hamper the flow of news
position
had
the majority of
to
affairs
about
debates
congressional
that
acknowledged
the
a
limiting
who
the
the
over
in
censorship
broadcaster
Fly
Act.
Radio
technological
before the Second
grounds
World
War.
of
However,
great deal of duplication among
radio networks.
provided
Fly's
citizens.
of channels were not as pressing as had
case
observed
public
essentially that of the progressives,
is
worried
scarcity
American
and
been
Fly
major
He said this duplication of programming
further
rather
the
a
evidence
than
that
the
FCC
expanding the flow of
information to the public if
95
it
would
be
news
and
were to grant editorial
public
American
the
that
noting
well,
industry
radio
served
editorials
ban on
Mayflower
the
the
asserting
by
concluded
Fly
to broadcasters.
rights
32
respected radio more than newspapers.
ruled
first
was the libertarian
His
comments.
because
meaning
of
Proponents
media
or
primary
a
to
were
monopoly
concern
with
that
and unwillingness
the
representing
as
controversy
avoided,
the Congress of
at
a
worst
leprosy,
form of
to
be
96
handled
not
in
the
public
Organization,
treated
"radio
at
did
Fleisher,
C.
Industrial
historically
that
FCC
the
broadcasters
Henry
from
coming
to produce controversial
programming.
affairs
ban,
privileges due partiality
editorial
deserve
Mayflower
the
claimed
labor,
organized
told
radio
of expression.
freedom
past
suggest
with
properly
33
Miller,
To
first amendment?"
the
of
secondary
clearly
to
it not come,
does
about media power
concerns
mean
Fly
it,
restrain
of the powerful influence of
broadcasting,
the
to
grounds
no
"Does Mr.
Miller argued.
that
to
Radio's
issues.
public
editorials on
constituted
power
the
position:
protected broadcasters' right
amendment
broadcast
editorial
over
jurisdiction
FCC
any
out
Act
Communications
the
that
replied
Miller
Fly.
to
rejoinder
a
made
Miller
best
under
to
be
carefully
prescribed
broadcasters
He charged that
conditions."
so
"place[d] controversy in carefully sterilized cells"
'contaminated' by the
of
expression
National Farmers
in favor of the Mayflower ban
testified
that
grounds
criticized
cooperatives.
dependency
the
Breine,
argued
that
revenues
advertising
on
editorial
reasonable"
and
"fair
A.
Joseph
on
mid-west
the
the Communications Workers,
broadcasters'
prevented
in
commentator
radio
a
farmers'
of
president
As an
ideas."
example of broadcaster partiality, the
Union
be
may
possible
as
listeners
few
"as
that
34
policies.
Eric
Guild,
supported
grounds
similar
Briene
President
Barnouw,
of the
Radio
the Mayflower ban on editorials
Barnouw
audiences
would
broadcasting
advertising
feared that mass marketing
He
feared
that
to
over
exert increasing influence
industry.
on
President
to those articulated by CWA
about broadcasters' dependencies on
revenues.
Writers
mass
the
independent
themselves
35
in the midst of huge entertainment corporations.
editorial voices
Their
testimony
would
is
be unable to assert
instructive,
97
because
neither
the Mayflower ban on radio editorials on
supported
the
basis that radio networks or broadcasters were adherents
to
a
Rather,
institutional
constraints
on news and
affairs
public
frustrated
Briene also felt that
Certainly,
editorial expression.
or
the
that
corporations
radio
within
programming
liberalism
contended
each
conservatism.
as
such
ideology
particular
broadcasters had an anti-labor ideology.
Other
the
were stifling liberal
broadcasters
grounds that
had
commentators
author
of
Mayflower
were
not
commentators.
editorials
Decision
balancing
Saul
New Republic,
conservative
air. Charles A.
the
left
than
the Blue Book, "reluctantly"
commentators.
the
liberal
more
Siepmann,
supported
Carson,
expressed
and
conservative
radio
concern
the
networks
because he felt the radio
liberal
feared
they
Voice of Freedom Committee opposed news
on the
urged
Decision
to keep the ban in place because
FCC
that
The
proponents of the Mayflower
columnist
that
news
of
radio
broadcasters would dominate public opinion if allowed to
broadcast news editorials.
should
be
strengthened
He testified that
lest
the
Mayflower
broadcasters
gain
even more power over the flow of news and public affairs
36
to the public.
98
military
and
legal aid
religious,
of
number
A
groups urged the FCC to prohibit broadcaster editorials.
racial
bigotry
views.
The
should be penalized by having
revoked.
American
The
Veterans
that
testified
and
their
licenses
Committee added that
and necessary extension
59
speech.
free
of
the constitutional guarantees
Mayflower
was
a "logical
emerged
editorials
as
middle
a
position
libertarian
broadcasters'
reply
to
opportunities
Access
that
Mayflower
the
not comply with
and
editorial
was not censorship,
did
who
some
animosities
Guild
National Lawyers
broadcasters
that
concern
if freed to articulate their
Mayflower Decision
Decision
its
provoke religious
would
broadcasters
the
expressed
AJC
The
semitism.
anti-
about
worried
it
because
Mayflower
retain
to
FCC
the
urged
Congress
Jewish
American
The
to
of
broadcaster
ground
between
they
that
be
allowed to make news editorials without any quid pro quo
and
the Mayflower
that
the
the
public
editorials.
championed
pragmatic
free
proponents'
flow
required
In
of
FCC
information
prohibition
position
and opinion
of
radio
to
news
much the same way that Senator Dill had
Equal Time for
middle
majoritarian
political candidates as
ground between the
99
radio
the
industry,
1949
too,
so
programming,
and
Democrats
and
insisted
on
common
carrier
news
and
public
affairs
for
radio
for
designation
had
who
progressives,
the
and
programming,
political
news
its
on
restrictions
no
wanted
which
access opportunities emerged
public
and
a middle ground on broadcast news
as
in
affairs programming.
Several
to
reply
broadcaster
editorials
as
of Cornell University,
whose radio
to
worthy
the
FCC had prompted
came
proposals
with
right
broadcasters'
addressing
to
ignored the technological issue of
Cushman
but
newspaper,
but - not
-Id7
useful as
as
station's
editorialize,
a
Decision
looked to newspapers
Cushman continued,
informed
opinion and advice because the public
the
limited
Radio was "useful," he
37
The
[it] could be."
-publ c,
that
citizen.
Cushman recommended
make
To
access
radio
opportunities.
100
more
for
assumed
newspapers had greater access to information
average
of
In
hand.
due to the Mayflower
page.
radio lcked an editorial
E.
Cushman said that radio was
of radio channels.
a
Robert
reconsideration
in
to
pragmatic
a
Professor
Mayflower,
number
opportunities
ideal.
petition
like
urged access
and
compromise
Cushman
witnesses
than
useful,
if access
of broadcasters to editorialize
radio, advocated equal
to
reply
broadcaster
editorials for
labeled
rebuttal
editorials
stations
to
them
editorials.
Straus
as
long
from
the
public
letters
read
All
Straus testified.
and affirmative
Mayflower
of
licensees,
by absentee owners,
WSAY
for
Gordon P.
in
those
save
should enjoy
Morris Novick
as long
as
the
of
FCC
responsibility on broadcasters
seek out people critical
manager
day,
granted
editorial rights,
reply time.
programmed
stations
end,
controlled
favored
supported
at the beginning and
and
editorial rights,
imposed
for the public to
editorials.
following
owner of WMCA
more than fifteen minutes each
no
time,
opportunities
opportunities
as
rights
editorial
WNYC
Nathan Straus,
reply were assured.
for
right
independent broadcasters supported the
Some
of editorials and
Brown,
Rochester,
owner and general
urged
individual licensees,
provide
abolition
but told the
the ban on editorials should still apply to networks.
101
of
FCC
38
6
In
issuing
Communications
among
the
the
Commission
proposals,
Mayflower hearings.
rights
Fairness
Doctrine,
took
which
the
a middle
were
course
suggested
broadcast
expression
at
the
of
access
for issue-oriented citizens to respond to
editorials.
"fairness."
from
The FCC ruled in favor of editorial
for broadcast licnesees and in favor
opportunities
Federal
This
is
the
root
meaning
of
Fairness carries the meaning of freedom
of
through broadcast editorials
combined
with
the two fold duty to seek controversial public issues as
part
of
news
opportunities
programming
and
to
for a variety of views
39
provide
on
access
controversial
public issues.
The
Fairness
Doctrine
changed
the
rules
on
programming
by
attaching an affirmative duty or obligation to seek
out
broadcast
and
news
and
public
affairs
present controversial programming as a function
broadcasters'
discretionary
construction
of
construction
Congress
broadcaster
had
102
powers.
This
of
FCC
discretion
altered
the
originally
placed
on
discretion in 1926 and again in 1934.
won
Broadcasters
the fight to classify themselves as licensees and not as
common
carriers
issues
to
decide
so they could
present
cover and what news to
what
within,
of
interest"
strictures of the FCC's "public
the
course,
precisely
standard.
the FCC replaced
programming,
affirmative
affairs
public
controversial
provide
to
duty
an
that broadcasters had
ruling
In
an a posteriori standard
of public affairs programming with an a priori standard.
It imposed the duty of presenting
public
controversial
affairs programming on broadcasters as a prior condition
for maintaining their licenses. Here,
radio
to
questions"
"public
on the urgency of presenting
remarks
Howell's
long after Senator
listeners,
stood
a
regulatory
decision requiring broadcasters to behave as Howell
had
fruitlessly recommended to an unwilling Congress.
The
to
shift
FCC tried to diffuse some of the problems this
a priori
from a posteriori
posed for broadcasters.
was
no
that
as
should rely on their
a
rule,
standards
there
The FCC ackowledged that
formula for measuring fairness.
broadcasters
and
review
good
103
"good
judgement
that
40
judgement,"
It noted
would
foster
programming
FCC
on all shades of opinion.
In the end,
decisions on licenses could turn not
said
formula for achieving fairness,
mechanical
any
but on
the
the
41
"responsible"
to
access
providing
of
and organizations to address
individuals
on
of broadcasters' actions to achieve
reasonableness
practice
the
controversial
public issues.
The
Doctrine
FCC
would
it
said
implement
affairs
public
terms of overall news and
in
Fairness
the
and not on a case by case basis. It warned
programming,
editorialize
not
could
they
that
broadcasters
that
specific issues and subsequently report to the FCC
sides
42
programming.
opposing
Implementation
[a]
station's
standards
might
of
during
covered
were
fairness,"
and
not
the FCC
on
ruled.
The
FCC
held
American
standard" well
43
way
By
law.
reminded
broadcasters
"flexible
up
Broadcasters
the
reasonableness
within the canon
of
that
104
example,
of
absolute
"any
well err in their editorial judgements,
observed.
news
routine
turned on "the reasonableness
actions"
on
as
FCC
a
of
Anglo-
the
FCC
considerations
of
thought-police.
opportunities did not set up the FCC as
really had little to do with whether or
editorials
a
What mattered,
them.
the FCC wrote in reference to
the licensee
hypothetical
legislation,
was "if
only
advocates of
the bill's
permitted
appraisal
at
any
its
of
the
public
however,
45
by
cards"
The FCC said it drew the line,
broadcaster
favoring
of
the
serve
obligations... to
and
duties
44
interest."
to
miscontrued
reach a determination that the licensee had
its
had
the Commission would be required to
by
merits
bill's
independent
"No
opponents."
enactment
exclusion
the
to
facilities
its
utilize
not
respond
broadcasters opened their studios to people to
to
their
of
that the content
opined
FCC
the
Indeed,
access
granting
of
terms
in
reasonableness
one
side
effort to "stack the
over others
in
public
covering
controversy. It also asserted that no reason existed why
broadcasters
should
opportunity
for
the
able to
be
not
presentation
fair
"a
afford
contrary
of
46
The FCC noted that if broadcasters felt
positions."
the
FCC
arbitrary
or
that
"procedural
Act
and
enforced standards
capricious
47
safeguards"
of
they
manner,
under
fairness
the
if they so opposed a FCC
105
could
an
use
Communications
Administrative Procedure Act and in
resort to the courts
in
the
end
decision.
FCC
The
imposing
amounted
an
to
and journalists and academics
48
fairness"
of
standard
"a basic
the NAB,
broadcasters,
that
a priori
of speech.
freedom
ideas.
of
broadcasters'
on
restraint
The FCC cited the Associated
Press
the
free
The AP case had found that the
first
and
information
case on diverse sources of
flow
of
arguments
the libertarian
rejected
amendment did not "afford non-governmental combinations"
constitutionally
In
freedom" of
guaranteed
that was
print
about
language
[the]
49
expression.
upon
restraints
"impose
to
rights
any
the
to
analagous
that
the AP case continued
limited number of channels,
publish means freedom for all and not
for
by
the
"freedom
to
some.
Freedom
to
publish
guaranteed
is
publishing
but freedom to combine to keep others from
50
of
freedom
of
This standard
not."
is
expression
was
Constitution
Conferences
1926
about
listener
constraints
Fly's
to
back
dating
virtually identical
discussion
at
the
arguments,
the
to
debates
in
in favor
of
and the original congressional
freedom of speech over radio,
sovereignty
of
argument
due
to
the
a scarce radio spectrum.
about
broadcaster
106
Radio
National
technological
It
censorship
was
also
against
With such a precedent
Miller in the Mayflower hearings.
as
its
beacon,
the FCC rejected
the
that
restraint
on their freedom
rebutted Justin Miller,
speech
of
freedom
Frank
Stanton
to
contrary,
hearing
varying
facing
the
and
persuaded"
actually
opinion.
FCC
"the
government
any
American
FCC's
of
public
of
of opinions
We
that a requirement
that
the
on
opinions
letter
broadcasters
interest."
the
disagreement.
in
manner in which the listening public may
broadcaster
language
in
their franchises
utilise
licensees
The
prior
et al.,
the expression
exclude
the
on
broadcast
spirit
In
against
protected
with which they are
ideas
believe,
speech.
government licensees or means
to
communications
and
a
was
by the First Amendment does not extend
abridgement
privilege
of
broadcasters'
the Associated Press decision,
to
comparable
Doctrine
Fairness
arguments
the
be assured
the
is
the
within
language extending editorial rights
was remarkably limp.
The FCC
of
issues
paramount
both
51
First Amendment."
people
a
to
that
ruled
editorials were "not contrary to the public
The
Commission
noted
that
it
broadcasters' editorials "may
52
informed
in
promoting
helpful"
that
Nowhere
"not
was
not
public
in the Fairness Doctrine did the
renounce the Mayflower Decision.
107
be
FCC
Finally, the
a
Two
FCC's articulation of "fairness" as
doctrine was hardly auspicious
commissioners
unequivocably;
opposed
it;
Commissioners'
supported
or firmly
the
two supported it with
two
vote
abstained
from
supported.
Fairness Doctrine
reservations;
voting.
on "fairness" was four
The
to
one
FCC
one,
but considering the two qualified opinions, the Fairness
Doctrine
was off to a shaky start at best.
108
7
noteworthy
additional
regarding
commissioners
Fairness
the
of
FCC
Doctrine
are
opinions
the
because they point out the can of worms
opened by requirying on broadcasters to be fair and
FCC
to
and
separate
The
E.M.
Commissioner
opportunities.
access
provide
Webster criticized the Fairness Doctrine as an "academic
of
treatise"
legal
in
broadcasters
to
radio news
day-to-day
the
determining
use
little
editorial
and
management. He wrote that no individuals, except legally
candidates during elections,
qualified
rights.
enjoyed
access
In practice the Fairness Doctrine required only
evidence of a
reasonable effort toward providing
opportunities
53
said.
for public affairs
Commissioner
concurrence
in
administrative
implementing
Robert
his
F.
programming,
Jones wrote a
"separate views."
problems,
He
anticipated
which would beset the FCC
the Fairness Doctrine.
despite
the
Webster
blistering
He noted that
broadcasting industry had carried on editorials
commentators
equal
Mayflower
109
Decision,
in
the
through
and
criticized the Fairness Doctrine for dealing exclusively
licnesees.
with
than
Rather
an
impose
priori
a
Jones recommended that the
54
abuses.
broadcast
for
FCC revoke licenses
obligation on broadcasters,
"prospective
developing
rights.
editorial
Doctrine
Fairness
the
criticized
Jones
conditions"
on
for
broadcasters'
conditions were
He wrote that these
as ambiguous as they were unenforceable.
of the Mayflower Decisions.
recision
unambiguous
and
the Mayflower Decision,
equivocal
an
He advocated
assertion
unequivocal
of
editorial
In making a tacit recision
rights and responsibilities.
of
its
reprimanded the majority for
Jones
Jones charged the
majority
with not having the courage to repudiate a past error on
the
perpetuating
55
negative effect of the Mayflower Decision.
censorship
and
for
temerity
by
Jones contended that the Fairness Doctrine violated
the
first
setting
litnus
its
amendment,
and complained that the FCC
was
as
the
own standards of "reasonableness"
of broadcasters' freedom of expression.
Such
a
policy, Jones wrote, was contrary to the anti-censorship
provisions of Section 326 of the Communications Act.
110
Jones complained the vagueness in defining fairness
It
the Fairness Doctrine unenforceable.
made
one
was
matter to enforce a specific decision, after the fact of
an
abuse than to hold up a standard of fairness,
which
would be difficult to apply to daily news operations.
found
Jones
a
the majority position on
flexible
similarly
untenable.
He
labelled it as another attempt at prior
restraint,
and
reasonableness
of
standard
argued that "problems with editorialization can only and
be determined a posteriori
56
with specific situations."
only
should
The
in
procedures
regulatory
Congress
correct
failed to follow
FCC
issuing
memorandum,
the
Fairness
Jones charged.
in
connection
administrative
Doctrine
as
a
that
He wrote
the
had charged agencies such as the FCC with
responsiblity of publishing policy statements, rules and
regulations in codified form in the Federal Register. As
a result, Jones feared the Fariness Doctrine's standing,
if
contested
in courts of law,
and the
confusion
in broadcasters' minds due to
57
status as a regulatory memorandum.
could
create
111
its
it
vague
criticized
"news"
the
"Neither
Jones
shortcomings,
Fairness Doctrine
the
with
these
to
addition
In
for
conflating
"editorialization."
"comment"
with
general
policy
created
the
not
qualifications on the right to editoralize are made
clear
in
blisterd.
free
terms
policy,
58
"Background,
Jones
ambiguity,"
from
example,
qualification are commingled."
There
was
dissent.
one
Commissioner
Freida
Hennock wrote that the Fairness Doctrine was beyond
enforcemnt
of
powers
the FCC.
59
the Mayflower ban.
112
She ruled
to
P.
the
sustain
8
Broadcasting industry response to the Fairness
Doctrine was cautious.
of
the
Mayflower
After pushing for abolition
Decision,
now
broadcasters
wondered if the Fairness Doctrine might become some
sort
of
"Frankenstein"
Broadcasting
would
foster
programming
worried
more
due
turning
that the
them.
Fairness Doctrine
conformity in
to the vague
against
public
requirement
affairs
to
be
could inhibit braodcaster from taking
60
partisan stands on controversial issues.
fair,
which
113
9
conclusion,
In
one can observe that the
Fairness
Doctrine put a majoritarian policy in place for news and
Spectrum scarcity
affair programming.
public
rationale
technological
partisans
Although
Fairness
the
for
the
on each side of
channels and the emergence of television,
and
opportunities
access
that
to
balance
programming
affairs
broadcaster
individual
the
responsible
to
arguments,
contending
marketplace,
could
free
speech
radio
if
free
as
the flow of
held
which
from
a
news
The FCC ruled
that
supplemental
was
licensee
and
news
listeners.
his
the FCC ruled
controversial
programming were required of broadcasters.
that
Doctrine.
acknowledged an increase in the number of
debate
the
was
It
public
dismissed
the
media
obligations,
and
and would assure a more diverse flow of news
public
affairs
thorny
problems
validity
programming.
of
It
ignored
implementation.
It
warnings
denied
of arguments that the Fairness Doctrine
of
the
would
stifle rather than enhance controversial news and public
affairs programming.
114
the case in the twenties and would be
was
As
advocates for broadcast
through the mid-eighties,
case
feared the power of the media
regulation
and
policy
opinion.
public
constituted
opportunities
to provide access
mechanisms
and
influence
to
imposed requirements to balance
federally
Accordingly,
news
institutions
political
American
the
to sustain the rights
regulatory
In the forties,
over those of broadcasters.
listeners
of
advocates included such groups as labor and farm groups,
religious
Liberties
and the American Civil
organizations,
Union among others.
Opponents
of
argued
regulation
down-played the power of the media to
They
different.
influence American
political institutions and public opinion. Instead, they
advanced strict first amendment grounds for broadcasters
free
speech
influential-,
rights.
broadcasters
if
Even
of
opponents
regulation
might
be
argued
unsuccessfully that they were entitled to the same first
amendment rights as their print confreres.
regulations,
access
requiring
opportunities,
productive,
them
were
they said.
Supplemental
to be fair or to
intrusive
and
provide
counter-
By and in large, broadcasters
were members of this group.
115
the late forties,
By
direction of
public
In
Equal
movement was
in
the
increased regulatory oversight for news and
affairs
Doctrine,
then,
programming.
In issuing
the
Fairness
the FCC had made that clear.
the
fifties,
Time regulations
Congress would cut
some
of
the
because literal applications of
Equal Time rules stifled rather than increased the
of political programming to the public.
116
flow
CHAPTER THREE
EQUAL TIME IN
117
'59
Snow hit Mayor Daley's face.
city
officials
and
Together with other
executives
from
International
Harvester, Chicago Mayor Richard Daley had braved a snow
storm to welcome Argentine President Frondizi to Chicago
at
the windy city's Midway Airport
Television
cameras
from
Chicago
filmed the event for newscasts.
to
the
storm:
time
to
say
limousines,
"How
the
do
February,
television
1959.
stations
The story was brief due
a few handshakes,
Frondizi waved to a crowd,
in
President
and
Mayor Daley had only
you
do?,"dignitaries
Mrs.
enough
enterred
departing limousines went on their way
1
to the Drake Hotel.
Lar "America First" Daly,
many
a perennial candidate for
political offices and an opponent of Mayor Richard
Daley in Chicago's upcoming Democratic primary,
did not
like what he saw on television that night. Lar Daly felt
television treated him poorly not just
Chicago
because
while
they covered the Mayor performing official duties
denying
failed
Daly
to
equal
broadcast
a
they
but also because
news
stories
on
Democratic
and
Republican
had
Daly's
Lar
in
filing as a mayoralty candidate
unprecedented
the
time,
both
Television
primaries.
stations had broadcast stories of Mayor Daley filing his
for
petitions
Congressmen
the
Timothy
Democratic
P.
Sheehan
2
Republican.
118
primary
filing
and
his
former
for
the
Chicago television stations.
and
time from several of
Daly requested equal
Lar
refused.
WNBQ
Communications
WBBM,
affiliate,
the
petitioned
Daly
Commission
the CBS
to require the
him time equal to that the stations had
Mayor
Daley
where
opponents
in the Democratic and
but
had
instances
his
his
primaries,
these
others,
Among
candidacy.
ignored his
their
covered
Republican
stories on each candidate recieving
included
interviews
party organization's nomination,
and the Democratic Cook
Sheehan
in
Lar Daly cited other
television newscasts had
instances
to
provided
former Congressman Sheehan
In making his request,
newscasts.
Federal
stations
grant
and
the
with
Chairman,
County
and
3
Mayor Daley's annual report on the city.
Lar
Interestingly,
Daly did not include news coverage of Mayor Daley's
greeting
of
President
of
Mayor's
the
a story on the March of Dimes in
in
participation
or
Frondizi
his
Daly was more upset with segments
complaint to the FCC.
of the Mayor as a campaigning incumbent politician in tv
newscasts
strictly
"Lar
news
than
those
depicting Mayor
ceremonial activites.
Daly,"
However,
the FCC addressed the issue
coverage
of
ceremonial
as
well
in
Daley
in ruling
of
in
television
more
political activities of campaigning incumbents.
119
more
clearly
The Federal Communications Commission ruled in
and ordered WBBM and WNBQ each to provide
favor,
Daly's
roughly ten minutes of air time.
Daly
WBBM
Lar
refused,
4
decision.
and
CBS
WNBQ
asked the FCC
to
complied;
review
its
The Federal Communications Commission's decision in
the
Just two years
Daly" came as a surprise.
"Lar
FCC
had
ruled that television
news
before,
of
coverage
such
did not fall under Equal Time because
politicians
coverage
on-the-spot
broadcaster's
was
appropriately
judgement in covering
part
newsworthy
of
a
events
and because the politician in question had not initiated
5
the FCC had restated
In October,1958,
coverage.
the
this position exempting newscast coverage of politicians
performing
official
in
6
handbook on political uses of television.
ceremonial
duties
from Equal
Time
an
To
be sure, the FCC had qualified this ruling by stating it
would review television newscast coverage of politicians
on
a
seemed
"case by case" basis,
to
exclude
but precedent and
newscasts
requirements.
120
from
Equal
practice
Time
newscast
Interestingly,
"use"
based its ruling on
FCC
the
"unequivocal" language in Section 315.
Congress's
interpretative
Time.
thereby falling under Equal
"use" of television,
ruling,
a
political
a
an election constituted
during
on
that a politician's appearance
ruled
Commission
Communications
Federal
the
Daly,"
"Lar
In
on
In its
for example, the FCC did not pay
attention to the compromises Congress struck in enacting
Equal Time originally in 1927 as Section 18 of the Radio
Act
or in re-enacting Equal Time as Section 315 of
Communications
"use" on the basis of a
its interpretation of
supported
majority
the FCC
Rather,
Act in 1934.
incomplete and partial reading of congressional
significant
persuasive
history,
in
of television.
power
its sense
and
precedents,
court
the
In
regulators
governing
newscast
remarks
of
duties.
that
responsibilities
It
also
had
public
inform the public
121
use
1926
rules
performing
Senator
cited
in
make
coverage of politicians
broadcasters
to
to
authority
with
the
legislative
the colloquy between Senators Dill and Fess
ceremonial
intent,
the FCC found the basis for its ruling on
investing
the
fully.
Howell's
interest
Of
the
the FCC found standing for its ruling
court precedents,
on "use"
the Supreme Court's ruling in the Associted
in
to
information
always
remote
indispensable to political
not
"While
possibilities.
politician's electoral
of
coverage
equal
candidates on newscasts no matter how
political
any
warrented
television
of
powers
and
news
flow
of
maximum
7
persuasive
the
Finally,
the public.
supporting
case,
Press
success... television
may enjoy a unique superiority in selling a candidate to
the
that
in
public
of
impression
an
it may create
immediacy and intimate presence, it shows a candidate
in
for reaching
large
of
some
and
8
audiences."
it affords a potential
politicians,
broadcast journalists put these candidates
action,
By
news
witholding
coverage
at a disadvantage due to television's
widespread
audiences
to
and
"ability to
an
create
reach
illusion
of
as it were,
initmate presence by placing the candidate,
9
in the home of the viewer."
C.
John
Communications
commissioners
against
such
television
Chairman
Doerfer,
Commission,
ruling
on
disagreed with
"use"in Lar
a literal application of
newscasts.
Doerfer
122
Federal
the
of
He
Daly.
Equal
wrote that
fellow
his
his
voted
Time
to
fellow
standard
impossible
in
television
news
Doerfer contended. By
the
so literally,
"use"
and
Broadcaster discretion was the
backbone of the licensing system,
construing
concept
idealized
of fairness
of polticians.
coverage
an
to
information
receive
to
right
subordinated the public's
had
commissioners
was
FCC
denying
their rights to make judgements about the
broadcasters
public
of
newsworthiness
Such
events.
a
literal
interpretation of Equal Time was a giant step backwards,
Doerfer
argued,
requirements
on
because
it
broadcasters,
Congress since 1927.
common
imposed
a
"A broadcaster should be given some
This is either
or
nauseam
of political programming ad
plethora
by
rejected
course
discretion other than a Hobson's choice.
a
carrier
a
10
lay
course
Doerfer
blackout,"
complete
arugued.
in repealing Eqaul Time
all
together
the FCC's public interest standard to
11
renewals, Doerfer recommended.
applying
In
his
minority
position on "use,"
closer to the mark in reading congressional
the FCC majority.
In 1927,
better
The
and
license
Doerfer
intent
was
than
Congress enacted Equal Time
to cover political programming initiated by politicians.
News
programming
interest standards.
fell
under the
Radio
Act's
public
Equal Time was a compromise between
123
a
broadcasters
would be at the mercy of anyone who wished
and a licensing system
to comment on public issues,
the
of
subject
standards
set
the
by
In 1927, Congress found a solution to these
government.
by
programming
for
"use"
of
constructions
competing
required
interest
public
to
programming
political
channels for news and
their
on
control the "use"
where broadcasters would
other,
where
hand,
one
the
on
model
carrier
common
political
enacting Equal Time as a statute
which
opportunities
broadcasters to grant equal
to
air time if and only if broadcasters had exercised their
judgement
or discretion by allowing a legally qualified
candidate the "use"
was
the
of their broadcast facilities.
of
meaning
Senator
assertion
Dill's
This
that
discriminate in
12
Doerfer
providing air time for political programming.
broadcasters
could
regulate
but not
grasped this meaning while his fellow commissioners
not.
had
In other words, Equal Time ruled that broadcasters
discretion
expressly
the use of their
over
political
programming
selling or granting air time.
or
did
sold
air time to a
up to
the
point
for
of
But once they had granted
politician,
124
facilities
broadcasters
were
legally
to
obliged to grant or sell time at the same
rate
the
same
did
office.
It
Senator
Dill
Congress
to
only
for
qualified candidates
legally
other
not cover
news
that
clarify
to
came out of retirment
never intended "use" to apply to newscasts but
where politicians
executives
Network
decision
would
coverage
of
cause a black-out
of
news
television
the 1960 Republican and Democratic National
presidential election
Conventions
and
impossible
television
news
coverage
time on newscasts
making
besides
incumbent
of
There was
politicians performing their official duties.
enough
Daly"
"Lar
that the
warned
were
or
bought
13
for political programming.
occasions
granted air time
not
Indeed,
programming.
to accommodate
the
all
politicians, who were legally entitled under the ruling,
14
time
By requiring broadcasters to provide
said
_.they
t
ny
ne -
-- -in
-continued,"Lar
portedly
candidates if
qualified
legally
-all
a
news
Daly"
cast,
spokesmen
industry
accomplished the reverse
ameliorative
intent.
Such
shown
they had
a
of
requirement
created "unequal opportunities" by requiring equal
or -all
legally qualified candidates
their seriousness.
its
irrespective
time
of
Further, the networks contended, the
125
FCC
meant
to
""use
programming,
These
newscasts.
metier. Indeed, RCA
and
for
were
properly
Chairman
routine
to
did not apply
broadcasters'
the
told
Sarnoff
Robert
Congress that for all the politicians' complaints
the
when
occasions
to
initiated radio or television coverage
politicians
political
solely
apply
Congress
"use."
the meaning of
misconstrued
had
reporting of news and politics,
about
politicians should
really
take some comfort in journalists' discretion
making
judgements
events.
Commerce
He
warned
Committee
of
about the newsworthiness
that the public may
well
were
15
politicians.
all
for
time
provide
to
required
major
party
politicians
if
television
public
Foreign
and
the Senate Interstate
in
tire
of
to
be
The FCC's "Lar Daly" ruling drew intense criticism.
16
"rediculous."
Eisenhower called the ruling
President
The national press joined their television confreres and
decried the ruling as a violation of the
rights
amend
of television journalists.
first amendment
A raft of
bills
Section 315 were quickly filed in the Senate
17
House.
126
to
and
in
documentaries
to the story,
incidental
"bona
fide"
defined
scheduled
or special news casts.
that
broadcasters
news
events,
their
news judgement.
definition
to
interviews,
be
the
assumed
relevant
and documentaries as part of
Significantly,
the "bona
called "media events" staged by
broadcaster
Its meaning was much
simpler,
initiated "use" by purchasing airtime
initiated a politician's "use" by
for expressly political programming,
fell
programming
journalists
issue
media,
to
only with whether a politician or a broadcaster
politician
event,
come
politicians
initiated the "use" of air time during a newscast.
airtime
fide"
did not engage the issue of what would
gain broadcast coverage.
dealing
regularly
"Bona fide"
initiated coverage of
of
Time.
Equal
either
as
18
was
coverage
and on-the-spot
Congress
to
appearance
conventions from
including
events,
news
"use"
interviews,
events,
a candidates'
which
since
Time
Congress redefined
news
fide"
"bona
exclude
1927.
in
enactment
Congress
decision,
the first major change in Equal
authorized
its
"Lar Daly"
a result of the
As
under
Equal
Time.
If
or
a
granting
then
the
broadcast
initiated "use" in deciding to cover a news
Time.
The
the politicians or
the
the "use" was then exempt from Equal
of who manipulated whom,
was
If a
a
conundrum
left
amendments.
127
unsolved
by
the
1959
first
Television journalists had won a substantial
Congress recognized their discretion
amendment victory.
to
the
determine
and
broadcasters had claimed all along that
Equal
newscasts,
they
nonetheless
came
recognition
of
determining
how
cover
to
intended
never
was
Time
news
the
of
information reaching more and more Americans.
political
Although
newsworthiness
discretion
their
statutory
with
away from this fight
in
judgement
and
in
they covered politics
news
their
programming.
ground
on
Fairness Doctrine aspects of their news programming.
In
But
"reasonable
was
importance."
initially
to
proposed
by
Section
315,
the
Fairness
to
langauge
in Section 315,
Fairness
315
Senator
Congress
Doctrine.
provide
issues
gave
Until
an
as
Proxmire
of
which
language,
statutory
new
this
which was inserted in Section
Doctrine had the hazy status
regulatory memorandum.
Section
conflicting
By inserting this
approval
the
for
opportunities
amendement
315,
lost
public interest responsibilities to
had
public
also
Equal Time, Congress warned broadcasters they
rewording
still
journalists
broadcast
of
a
Henceforth, this 1959 wording of
would be cited as elevating
128
the
Fairness
Doctrine to the status of U.S.
Congress
than
rather
the
that
which meant
Code,
say
final
FCC had the
in
or
dumping
keeping
the Fairness Doctrine on the books
19
a control
In retaining control over news casts,
it.
they claimed was rightly theirs all along and improperly
wrenched
lost
had
broadcasters
FCC,
overzealous
them by a literal and
from
fighting
in
legal ground
the
Fairness Doctrine.
Perhaps
in
winners
broadcast
the
biggest
1959 amendments to Equal Time.
Because
major
the
party politicians were
journalists judged major party politicians
to
be newsworthy by virtue of the number of votes they got,
major
party politicians received the bulk of
time during newscasts.
proposition:
newsworthiness
self-interest
at
It seemed a perfectly reasonable
votes
the
indicated
legitimated coverage.
the
dynamic
worked
least from the major parties,
television newscasts,
their
fare
audiences,
broadcast
newsworthiness,
in terms of
And,
well:
politicians,
reached voters
and broadcast
through
journalists reached
providing the audience with political
well within the mainstream of
129
American
politics.
The
newsmen
gained
a
recognition of
statutory
politicians
of
measure
autonomy
party
major
their judgement;
themselves
for
won access to the airwaves
through
without an appearance of heavy-handedness by placing the
making
decision
to cover minor party politicians
with
to
find
journalists,
broadcast
who had little reason
newscasts
fringe parties newsworthy in producing
these
for mass audiences.
The
amendements
1959
came out of the
public's
same.
relative position stayed about the
the dynamics of an industry
Within
like
to
loser.
Time neither as a big winner nor as a big
Equal
The
public
broadcasting,
which is sensitive to public pressure and dependent upon
caution
the good will of its audience for its revenues,
the
dictated
that
would be produced.
exercising
news
political
programming
So it is unsurprising that
a great deal.
And
given
the
in
their
discretion broadcasters did not alter
coverage
support
not
kinds of news and
majority
for the Democratic and Republican parties it is
puzzling either that the activies
of
politicians
from these parties were "bona fide" news events.
It
the
might be pertinent to mention briefly
of
details of the bills before Congress to amend Equal
Time in order to place this larger issue of the
and
some
loser of
the 1959 amendments into context.
130
winners
Of
the
bills before Congress, four proposed exempting newscasts
news
and
bills
Five
Time.
Equal
from
commentaries
proposed exempting newscasts, interviews, documentaries,
Of these bills, the Hartke
programming from Equal Time.
S.
bill,
1585,
"substantial"
for determining
also specified grounds
setting a
by
candidates
type"
"similar
and
debates
discussions,
panel
percentage
on
votes in previous elections or 200,000 or one-percent of
The Hartke bill also
voters' signatures for candidates.
exempted broadcasters from any liability for libelous or
defamatory remarks politicians might make in the
course
broadcasters could not
censor
of
campaigning--remarks
due
the
(section 326) of
to anti-censorship provisions
Communications Act.
various
In congressional hearings on these bills,
groups
interest
bill,
bills
better
the
Hartke
CBS supported
the public interest.
served
which
as to
testified
giving most discretion to broadcsters, because CBS
President
comprehensive
solution
Sarnoff and ABC's John Daly
beyond
reversing
Daly,"
provided
a
problems.
NBC's
recommended
going
to Equal Time
General
"Lar
it
said,
Stanton
Frank
their
indicated
but
20
networks
could
live
Radio
and Television News Directors
total
abolition
of
it.
The
Association
urged
American
Civil
with a law reversing
Equal
Time.
131
The
Liberties Union argued that newscasts, documentaries and
that
each
and
not.
The
Republican Parties differed in how
far
Time:
the
exemption
of
discussion
were
urging
expansive
more
newscasts,
news documentaries,
newsworhty
events,
on-the-spot coverage of
discussions
panel
political
and
while the Republicans urged exemption only for
debates,
and
newscasts
special
Among
conventions.
Thomas
Norman
should
in urging amendments to Equal
would go
Democrats
but
and panel
debates
Democratic
Time,
be excluded from Equal
should
commentaries
to
broadcasters
the
events
news
minority and
recommended
that
political
like
fringe
parties,
Congress
require
of
make time available for discussion
The
election issues five to six weeks before elections.
Socialist
Daly."
Labor Party came out for keeping "Lar
Speaking on behalf of New York's Liberal Party,
Senator
Kenneth Keating urged that debates and panel discussions
remain under Equal Time requirements. Lar Daly testified
that
ruling
FCC
should retain unchanged the
Congress
news
bearing his name on the grounds that broadcasters'
judgement
news,
which
broadcast
Senator
Commerce
a "subjective determination"
constituted
journalists.
Pastore
Amidst
of the Senate
Committee,
the
power
tyrannical
said placed
Daly
all
committee
and
Foreign
responsible
drafting legislation to cope with "Lar Daly,"
132
with
testimony,
this
Interstate
of
for
complained
to
and
Hartke that his bill was too expansive
Senator
opened a pandora's box of election law technicalities by
a
imposing
statute
federal
how
determined
customarily
on
state
many
votes
which
law,
or
petition
constituted legally qualified or substantial
21
signatures
candidates.
In conclusion,
reporting
Without
work.
majoritarian,
regulatory
the perverse effect of
broadcast
enabled
still
amendments
these
policy,
communications
which had
to
journalists only the freedom
uneasy
about
Congress
In 1959,
the
They
programming.
limiting news
jobs as news reporters.
quite
with
tampering fundamentally
literal applications of Equal Time,
remedied
and
as part of their routine news gathering
candidates
their
covering
the limites of broadcaster discretion
defined
Time
the 1959 amendements to Equal
power
of
a
do
was
mass
technology like tv to influence American
political institutions and to shape public
opinion.
An
irony, of course, is that broadcast journalists paid the
price
of
Doctrine
congressional codification
to
win
so modest a measure
discretion and freedom of speech.
of
of
the
Fairness
journalistic
Despite congressional
anxiety about
the power of television news
programming,
broadcasters
won
a victory for televised
presidential
debates the following year.
133
134
CHAPTER FOUR
THE GREAT DEBATES
135
Senator John F.
Florida,
for
swing
through
Kennedy stepped on stage of Chicago's
WBBM-TV
Cod
Cape
from
back
Kennedy looked great. Tanned, just
the first of
campaign
after a
four nationally broadcast presidential
debates with Vice President Richard M.
acting
Nixon's phlebitis was
looked pallid.
President
The Vice
Nixon.
up. When stepping out of his car to enter the tv studio,
Nixon
hit his knee,
pain.
Earlier
unenthusiastic
causing his face to
Mr.
in the day,
audience at a
with
contort
Nixon had addressed an
United
convention of the
Brotherhood of Carpentars and Joiners.
his
He had kept
own counsel on this first ever television debate between
presidential candidates,
and accepted only a phone call
Lodge
his running mate Henry Cabot Lodge in which
from
reportedly
image."
Nixon to erase his "assassin
urged
advisors only during the car ride
Nixon met with tv
to
the studio.
Senator Kennedy had the first say. Kennedy told the
television
satisfied
lowest
audience America could do better.
when
rate
industrialized
the United States had
of
economic
society.... I'm
growth
last
of
not satisfied
"I'm
year
any
when
not
the
major
the
Soviet Union is turning out twice as many scientists and
engineers as we are. I'm not satisfied when
136
many of our
teachers are
inadequately paid.
I see men like Jimmy Hoffa
baby is born....,
I'm not satisfied when
.... still free...
If a Negro
he has about one-half as much
to get through high school as a white baby.
third
as
much
chance
to
get
chance
He has one-
through
college,
[and]....four
times as much chance that he'll be out
work
life as the white baby."
in
his
Kennedy tied
of
the
idea of a bustling America and an America of equality to
effective national government,
saying that an
active,
effective
was
and
world's
federal
best
Roosevelt's
government
guarantee
1933
of
freedom.
He
quoted
inaugural that an earlier
had a rendezvous with destiny,
has
America's
the
same rendezvous."
1
moving again."
the
from
generation
and said "our generation
"It's time
America
started
Nixon agreed with his Democratic rival on America's
potential, but told the audience of some 80 million that
he
and the Massachusetts senator differed on the
toward
achieving national
greatness.
Nixon
Americans they prospered under Eisenhower.
tv
means
reminded
He told the
audience their wages had gone up five times as
much
under Eisenhower than under Truman while the prices they
137
paid
for goods had gone up five times more under Truman
than under Eisenhower. The average person had more money
his pocket thanks to Eisenhower.
2
said.
still,"Nixon
standing
Administration
Eisenhower
The
hospitals,
had also built more schools,
highways and hydroelectric
not
that's
"Now,
in
power plants than any other,
Nixon called Kennedy's proposals "retreads" of
he said.
and,
said they cost too much,
Truman
programs,
remark
that brought a look of perplexity
face,
warned
they
to
would stifle "creative
in
a
Kennedy's
energies."
Nixon said he agreed with Kennedy on the need to promote
equality and to provide medical care for the
for America,
difference
reaching
these goals.
disagreement
only
these
about
deeply
about
debater,
is
the
Nixon
was the means
Nixon said,
had
The
of
"I know Senator Kennedy feels as
problems
as
I
not about the goals for
means
aged.
to reach those
successfully
do,
but
our
but
America
3
a
As
goals."
rebutted
Kennedy's
assertions, and as a campaigner he had failed utterly to
address a television audience.
138
September 26,
on
And so,
for
say
later
Kennedy would
American vote.
the
of
first
Kennedy and Nixon squared-off
television debates,
four
in the
1960,
the
television debates made all the difference in energizing
his
becalmed presidential campaign.
the
debates'
Nixon acknowledged
but qualified his
importance,
assessment
other
about how crucial a role the debates played among
4
variables.
dubbed
televised presidential debates,
These
the
"Great Debates,"provided Americans with an unprecedented
see
to
opportunity
the
Republican
and
Democratic
and to
presidential candidates discuss campaign issues,
their
measure
Sam Lubell's observation
argue over the effects.
later
in
was the most important variable
that
religion
1960
presidential
election
would
scientists
Political
candidate.
seems
most
the
the
telling.
Lubell observed that Kennedy's sharper vision of America
and
his concise answers convinced enough voters to
put
about
the
momentarily
aside
their negative
feelings
suitability of a Roman Catholic to serve as president.
the
If
debates
failed
to
meet
a
political
scientist's hope of a dispassionate discussion of
for the enlightment of voters,
quite
as
valuable.
they did something
They provided an
139
issues
opportunity
else
for
in
and,
measure their candidates under stress,
to
voters
Theodore White's words
voters
"let the
by
decide,
which pattern of behavior under
5
Significantly,
stress they preferred in their leader."
and emotion,
instinct
they consolidated and accelerated a trend toward Kennedy
Kennedy's crowds had
in the 1960 presidential election.
television
first
the
before
Kennedy's
And
and frantically afterward.
presentation
in the first debate had been
forceful
so
and at worst hostile to Kennedy,
wired him
a
regional
support
6
conference they were attending.
and
congratulations
their
More
best
at
ten Democratic governors from the South,
indifferent
grew
They
debate.
phenomonally
that
week
a
numbers and enthusiasm fully
in
growing
been
the
importantly,
from
Great Debates changed
the
chemistry of electing an American president. Performance
on
became
television
something
enthusiastic
Nixon,
movie
a
of
star.
Beyond
debate
as
wildly
with
example showed other candidates
that
following his
first
with opponents guaranteed public attention.
an all
F.
the
speaking directly to voters in an adversarial
politicians'
John
variable.
debate
crowds
Kennedy's
crucial
from this first television
emerged
Kennedy
a
situation
Henceforth,
abilities to project on television
became
important considertion in presidential elections.
140
In
Richard
Lyndon Johnson and
and 1972,
1968,
1964,
Nixon refused to debate their opponents over television,
they
because
doing
from
incumbents.
appear
as
he
of
equals
the
In 1984, televised debates showed again that
could
incumbent's
strong
put a chink in a
American
the
challenger spoke convincingly to
a
people
to
challengers
enabled
when
gain
believed they had more to lose than
7
debates
1980,televised
and
In 1976
so.
armor. Following his defeat, Walter Mondale acknowledged
that
commanding
he had failed to repeat
when
lead
Reagan's
President
he felt he could not overtake
the
in
second of two televised debates the same performance
8
had deliverd in the first.
In 1960,
The
Equal
August
the
this
presidential debates were hardly a given.
Time law
to
permission
23rd,
he
interferred.
Congress
authorized
waive Equal Time just a month before
and President Eisenhower had only
joint resolution into law on August
congressional
waiver,
25th.
there could have
on
signed
Without
been
no
Time,
Under
Equal
include
all
legally
qualified candidates for an office in televised
debates
televised
presidential
broadcasters
if
they
Congress
were
provided
waived
debates.
required
time
to
Equal Time
141
to
major
party
candidates.
only for presidential
and
in
debates
presidential
vice
the
1960, the
Following Election Day,
election.
1960
law would
Equal Time
go back on the books.
Broadcasters would be required to
to provide time to all
legally qualified candidates,
matter
their
insignificant
how
they
if
following,
no
In this moment
provided time to major party candidates.
squarred
9
off. That November, more people voted than ever before.
of
Kennedy and Nixon
congressional reprieve,
Negotiations
been
for the presidental debates had
The television networks wanted to host debates
intense.
and
Democratic
the
between
presidential
Republican
candidates in order to counter their sagging reputations
10
The networks
shows.
quiz
tv
to scandals involving
due
were willing to offer
retained
"free time" only if they
over
the
debates
proposed
by
editorial
control
scheduling
them on expanded versions of such news shows
as "Meet the Press."
Events happened quickly.
offered
eight
version
of
to
candidates
quickly
1960,
Robert
Chairman of the National Broadcasting Company,
Sarnoff,
Press"
In April,
hours
of
an
expanded
Saturday
the popular public affairs show
"Meet
night
the
presidential
Republican
11
ABC
CBS and
for questioning by reporters.
the Democratic and
followed.
congressional
CBS's
Frank
repeal of Equal Time for
142
Stanton
the
urged
Republican
and
Democratic
presidential
He said CBS would be
1960 election.
for the
candidates
presidential
vice
and
willing to provide an hour a week for eight weeks
prior
major
party
but
candidates,
would not participate in
with
broadcasts
the
by
joint use
for
election
the
to
NBC and ABC.
simultaneous
from
questioning
Under
South Carolina's Strom Thurmond, the Dixiecrat candidate
for
president
time for
equitable
newscasts.
rotate
the
an
substantial third party candidates,
as
evening
of
part
ABC's David C. Adams suggested that networks
preceding
hour each week for the nine weeks
for debates between
election
the
In
presidential
May,
Adlai
the
Stevenson went before
each
way
candidates,
Interstate and Foreign Commerce Committee
the
and
Republican
that
12
network would produce three hours of time.
Democratic
provide
Stanton said CBS would
candidacies
their
cover
and
in 1948,
Senate
to argue that
television networks should be compelled to
airtime --for the Democratic and Republican
provide
presidential
momnees-Stevenson proposed that Congress require
the
major television networks to make an hour available free
of charge during prime time evenings for the eight weeks
election
preceding
divided
equally
candidates,
should
and
day.
He
said each hour
between the major
party
be
presidential
that the vice presidential
be able to use two of the eight hours.
143
could
candidates
He
said
of
proposal
Sarnoff's
format
was wanting,
issues
to
be
the
because a panel would control
discussed.
Debates
better.
far
were
government
federal
did acknowledge that the
Stevenson
Press"
the
"Meet
an expanded
might pay for the time, but added the networks' donation
of
so
13
the time in the public interest "would hardly be
as
expensive
be
to
beyond
endurance."
the[ir]
said his proposal would reduce the
Stevenson
influence
campaign contributions and enable voters to "make a
14
hundred-fifty
One
comparison" of candidates.
direct
of
people crowded into the committee room.
15
standing ovation.
Television
party
presidential
disagreed
with
and all offered time to the
major
network
Stevenson,
Governor
They gave him a
executives
nominees.
NBC's
Sarnoff
Robert
Stevenson's proposal as "the wrong way to go
16
He stuck to his original
thing."
about doing the right
criticized
offer
of eight hour length shows of
claimed
Sarnoff
S.3171,
the
the
bill
withdrawn after his offer of
17
"Meet the Press."
supported,
hours of
that
"Meet
was
144
Press."
Stevenson
8 expanded
Republicans did not like Stevenson's idea. They had
the
than
money to spend on political commercials
18
Vice President Nixon and former New York
Democrats.
more
Former President Hoover criticized the
"expropriatory."
candidates like the Republicans,
18
candidates should buy television time.
minority
In
July,
nominated
Kennedy
on
all
Nixon
to
debates
rights
violating the first amendment
for
proposal
proposal
the
called
Dewey
Thomas
Governor
and
the Republican
by
after
Kennedy
and
they
time
had
for
been
parties.
Democratic
accepted quickly so that the burden was
Nixon to accept the offer.
that
adding
offered
networks
three
of
placed
Nixon accepted through a
spokesman within a day.
Both the politicians and the broadcasters
willingly
put aside any reservations they might have had about the
free speech rights of minor party candidates in order to
enable
televised presidential debates between the major
party
candidates
executives,
who
speech rights,
candidates as
to
take
place.
The
network
were so insistentent on their own free
held up the prospect of such minor party
as Lar Daly of the Tax Cut Party or Orval
145
the National States Rights Party or Whitney
E. Faubus of
Slocomb
Harp
Smith of
the Greenback Party or
Lloyd
William
the American Beat Consensus debating with
and
Kennedy
Fitzgerald
basis
of
Richard Milhous Nixon
John
the
as
for insisting on a waiver of Equal Time.
For all this,
greater
the Great Debates were a step toward
freedom of expression for broadcasters
besides
being a benefit to the public. Where one could assert in
the
case of
public came out
just about where it was all along, here,
with the Great Debates,
to
see
and
candidates.
the
the 1959 amendments to Equal Time that
the public won the
to measure the
major
party
Had Congress not waived Equal
opportunity
presidential
Time,
there
would have been no televised presidential debates. Equal
Time
would
have had the perverse effect of
denying
a
flow of political programming to the public.
The
stubborn
waiver
constitutes
resistance
of
another example
majoritarian
and
of
the
libertarian
standards of free speech for television. The free speech
rights of minor party candidates were sacrificed so that
broadcasters could exercise their free speech rights
put
the major party candidates on tv.
to
By winning their
free speech rights, broadcasters had effect majoritarian
goals of informing the public.
146
another
election.
presidential
anxious
electoral
they
After
shaping
and
law
mass
of
means
of
was only for the 1960
Kennedy-Nixon
the fourth
Equal Time law returned to the status quo ante.
The brevity of
so
after all,
The waiver,
policy.
making
in
tv
like
communications
major
a
with
cope
to
effort
the
namely
this study,
in
theme
politicians
debate,
limited scope of the waiver suggests
the
Finally,
were
the waiver suggests that politicians were
about
outcomes
willing
to
grant
to broadcasters.
activitist
FCC
that
speech
the
most
During
the
sixties,
further
rights in news
affairs programming.
147
minimal
only
and Supreme Court would
free
shape
to
television
by influencing public opinion
discretion
broadcasters'
of
the power
and
and
limit
public
CHAPTER FIVE
THE CRESTING TIDE OF THE FAIRNESS DOCTRINE
148
chronicles the cresting tide of
chapter
This
It
Doctrine.
Fairness
to
culture
known
more
still
victories
sixties.
the
Doctrine and the Supreme Court recognized
its
them as a
regulation.
were
radio and television
Although
policy and law
in the culture by the sixties,
regarded
special
our
amplified
constitutionality.
fixtures
the
as
extended and
the FCC
During this time,
Fairness
popularly known
in
period
the
late
the
from
roughly
early seventies,
the
fifties
runs
the
technology,
Broadcasters
during this period.
which
won no
Indeed,
free
speech
the current
entirely that of a cresting majoritarian tide.
149
required
is
1
industry.
programming came from within the broadcasting
In
urged tv management to televise more news and
reporter,
public
news
distinguished
the
Murrow,
R.
Edward
1958,
the
affair
for high quality news and public
salvo
initial
sixties,
early
the late fifties and
During
affairs due to a dual sense of enlightened self-
interest and public service.
eloquent
advocated
and
public
scrutiny.
influential
Murrow
1958,
news
tv
and
Murrow
Essentially,
than
Murrow correctly foresaw that
programming
affairs
were
essential
government
He made no mention of the Fairness
Doctrine,
one reference to the Communications Act,
FCC.
and
Radio
He did not advocate increased
corporations.
the
the
in successfully managing huge entertainment
ingredients
only
to
enlighten
He argued for no more
self-regulation.
intelligent management.
news
of
plea for high quality
programming.
affairs
public
that
News Directors Association in
Television
an
address
his
In
libertarianism.
made
was
argument
Murrow's
as
spoke
He
who
insider,
recommendations
a
thoughtful,
was
'going
had fallen on
that
1
television management.
150
deaf
two
of
intelligent,
public'
ears
with
within
Murrow's
long
and
broadcast journalist,
reports
such
from
as
his
McCarthy,
distinguished
carreer
as
dating back to his wartime
London and including major news
"See It Now" broadcast on
radio
specials
Senator
added credibilty to his criticisms.
a
Joseph
Despite
the quality of Murrow's work,
CBS had
"See It Now" series in 1958.
TV had grown so immensely
profitable
as a medium of mass entertainment
that
CBS
sell the "See It Now" time slot
far
profitably for entertainment programming than
for
management
more
could
news and public affairs.
of
discontinued his
offending
CBS management was also
potential
viewers
by
wary
televising
controversial
news
programming
of
the
sort
Murrow
2
produced.
It was at this point
in Murrow's career that
he
addressed
the Radio and Television
New
Director's
Association in October, 1958.
Murrow's broadside was impelling. Murrow complained
that
broadcasting
business,
was an "incompatible"
advertising,
and
journalism.
mix
of
He criticized
broadcast management for timorousness in acquiescing
the government,
particularly a "fiat"
show
to
from Secretary of
State Dulles banning American journalists from Communist
China.
He
complained that corporate
151
interest routinely
dominated
about
by
the
public
interest,
remarking
critically
CBS's and NBC's delayed broadcasts of an
President
between
China"
Eisenhower
on
"the
probablity
this nation and the Soviet Union and
in
order
to
avoid
address
disrupting
of
war
Communist
entertainment
programming. He stated flatly that many broadcasters had
"welshed
on
[their]
promises" to
televise
3
public affairs programming due to greed.
Murrow
of
broadcast
late
journalism
complacent.
reflect
to inform
We
the
have
fat,
about
comfortable
currently a built-in
or disturbing information.
this.
public
Murrow noted that the United States
fifties was "wealthy,
unpleasant
and
spoke as a man who believed in the capacity
serious issues.
the
news
allergy
Our mass
But unless we get off our fat
in
and
to
media
surpluses
and recongnize that television in the main is being used
to
distract,
delude,
amuse
and
television and those who finance it,
insulate
us,
those who look
then
at
it and those who work in it, may see a totally different
4
picture
too
late,"
Murrow
warned.
To avoid
such
a
fate,Murrow urged something be
framework"
that "redound[ed]
"done within the existing
to the credit of
5
finance and produce" television programming.
152
those who
Murrow
devote
news
a
and
networks
proposed
that
the
major
tv
advertisers
share of their advertising money
public affairs
absorb
the
programming,
production costs.
to
quality
and
that
the
By
doing
so,
Murrow asserted, both advertisers and the networks would
come
out
ahead in terms of the
important to
existing
them.
broadcasting
of
either
image"
so
Murrow offered a solution within the
framework,
profitability
"corporate
which
the
would
not
corporations
as advertisers
or
threaten
engaged
as
the
in
producers.
Eventually the television networks would follow Murrow's
advice
but
only
after
scandals
had
rocked
their
He also said the public would come out ahead.
6
It would be better informed.
industry.
153
2
In
the
the early sixties,
the federal government
and
courts articulated a majoritarian view of news
and
political programming. During the sixties, this view was
clearly
dominant.
seemed necessary.
mired
To
many
people,
stiff
In the late fifties,
regulation
broadcasing was
in scandal surrounding the rigging of
television
7
shows.
Two
FCC
Commissioners,
including
the
quiz
Chairman, were forced to resign due to improper dealings
8
with
the
broadcasters they were charged to
Murrow's argument fell on deaf ears.
nation
elected
espoused
a
vigorous,
And,
optimistic
the positive role of government
regulate.
in 1960, the
president,who
in
directing
the nation's future.
Three
sixties
Doctrine.
FCC
programming
pushed
the
statements
cresting
tide
of
the
the
entertainment
early
Fairness
Two addressed tv programming generally:
upheld the flow of a diversity of news,
and
in
both
public affairs,
programming to the public
over
the
broadcasters' own programming preferences. Each tried to
contend with the banality of most prime time
television
programming by asserting the regulatory authority of the
FCC.
The
third
dealt
explicitly
Doctrine.
154
with
the
Fairness
In
which
1960,
it
the
called
censorship
FCC issued a policy
for
more
restrictions
prohibited
the
diverse
of
the
statement
programming.
The
Communications
FCC from involving itself
in
Act
directly
in
programming content so the policy statement did not have
much
bite.
But
the
FCC
did
specify
a
programming formats, which, it contended,
public
interest.
editorials,
Among others,
public affairs,
number
did serve the
these formats included
educational,
political and
news programs. The statement also designated
minority
as
"service to
group" along with these other program
consistent
with
of
broadcasters'
public
formats
interest
9
responsiblities.
A
second
Minnow's
"Vast
statement,
FCC
Wasteland"
Commissioner
address
to
the
Newton
National
Association of Broadcasters in 1961,
had a more dramatic
impact.
Frontier.
Minnow
broadcasters
to
decisions... ,[to]
future."
He
spoke
for the New
"help prepare a generation
help
a
great
nation
urged broadcasters "to
put
He
for
told
great
fulfill
the
its
people's
airwaves
to the service of the people and the cause
of
10
freedom."
He warned broadcasters that license renewals
would become rigorous, and that the FCC would view local
programming
and
programming
as
said
that
high quality news and
important parts of tv
he intended to chair an
guided by serving the public
affairs
programming.
activist
interest.
155
public
FCC,
He
one
Minnow's
activist rhetoric was a clear
broadcasters
tone
along
glance,
signal
that at the least the FCC had changed
with
the
Minnow's
incoming
administration.
majoritarian position differs
to
its
At
a
little
from those dating back to Hoover's statements advocating
listener sovereignty.
But the freshness and
insistence
of Minnow's statement put broadcasters on notice. It was
much
more directed.
between
last
It signaled the difference in tone
an acquiescent and ineffective FCC
during
quarter of the Eisenhower administration,
insistence
provide
under
Kennedy
that
and the
broadcasters
more variety and content in their
the
had
to
programming.
In the New Frontier, the FCC asserted unambiguously that
news
and
public affairs programming would
be
crucial
factors in determining their license renewals.
The
third
FCC
statement
of
explictly with the Fairness Doctrine.
published
the
broadcasters.
this
period
In 1964,
the FCC
Fairness Primer, and distributed
The Primer compiled a number of
dealt
it
to
'typical'
cases, and provided broadcasters with information on FCC
decision
making on Fairness Doctrine complaints. It was
further
evidence
broadcasters
about
of
FCC
seriousness
in
reminding
the Fairness Doctrine and news
11
public affair programming.
156
and
These
set
the
FCC three statements from the early
basis for FCC administrative expansion of
Fairness Doctrine.
All upheld the majoritarian view
news and public affairs programming.
remember
sixties
the
dominance of the
the
on
It is important to
majoritarian
position,
because the FCC based the following decisions, expanding
the Fairness Doctrine,
on the validity of
its authority
to assure that broadcasters provide a flow of
news and political information to tv watchers.
157
'balanced'
3
FCC
carried
actions,
forward
public's right
broadcasters
following
expanding
the
the
Fairness
Doctrine,
majoritarian
position
that
the
to diverse information preceeded those of
to
express
decisions,
themselves.
the
FCC
In each
extended
Doctrine beyond its original bounds.
the
of
the
Fairness
It is important to
note that the decisions do not violate the spirit of the
original
Fairness Doctrine.
intended
subsequent FCC's to modify it as
interest" required.
this
period
It's authors,
after
"the
all,
public
What's telling is that the FCC's of
expanded
the
Fairness
Doctrine
as
an
instrument of the public interest.
In
1963,
Harris,
the
in
FCC
the
Letter to
the
Honorable
changed fourteen years
of
Oren
Fairness
Doctrine administration. The FCC announced that it would
consider Fairness Doctrine complaints individually on
case
would
by case basis.
consider
In the future,
the FCC wrote,
fairness complaints as
specific issues and stories.
they
arose
a
it
on
It would no longer withold
decisions
on
complaints
until license renewals were issued nor would
it
evaluate
news
the
and
public
Fairness
affairs
Doctrine
programming
obligations
broadcasters on the basis of his overall programming
it had done from 1949 to 1963.
158
of
as
The FCC contended such a policy was fairer to
broadcaster
and
seek
relief
legal
public alike.
contest a specific
a
course,
Broadcasters
in the courts
if
could
they
wanted
to
FCC Fairness Doctrine decision. Such
the FCC wrote,
was better for
broadcasters
than potentially losing their licenses. The public would
benefit
cases,
of
disposition
of
Fairness
Doctrine
the FCC wrote.
The
about
timely
in
Harris.
FCC's
change
response
in administrative
to a query
from
policy
came
Congressman
Oren
Harris wanted the FCC to clarify when it
would
reach Fairness Doctrine decisions on complaints. The FCC
defended
the policy change by writing Harris that
by
review
case
inquiries
would
focussed
broadcaster's
not
only
be
on the
intrusive
case
since
reasonableness
FCC
of
a
discretion in providing contrasting views
on controversial
issues and not on the substance of
the
issues themselves.
Substantive
Due
to
involved
problems
case-by-case
arose directly for the
review,
the
FCC
found
directly in the content of controversial
programming.
While the the FCC had written
159
FCC.
itself
news
Congressman
Harris that case-by-case review would require the FCC to
deal
only
efforts
with the reasonableness of
to
practice
The
deciding
broadcaster's
assure a balance of conflicting
this policy created a myriad
problems.
FCC
what
placed
constituted
of
in
bureaucratic
position
of
a
balance
of
reasonable
topics. For example, the
had to determine the appropriate ratio of time
proponents
for
and opponents of conflicting points of view.
This this meant the FCC had to do its own
of
views,
itself in the
conflicting views on individual
FCC
a
documentation
time alloted to controversial issues as well as
balance of
the
conflicting views within those presentations.
The
FCC
then
had
content
of
neutral
on the issue?
to reach a
the programming:
was it
decision
for,
on
the
against
The use of stop watches
or
became
necessary to reach these determinations.
The
timing
and
conflicting
views
considered.
For
frequency of
on controversial
example,
how
the
scheduling
issues
had
to
much weight could
of
be
and
should the FCC place on a complainant's direct access to
a
relatively
morning
talk
small audience by appearing on
show when an "unbalanced"
a
program
Sunday
might
well have reached a significantly larger audience during
a
prime
time
broadcast.
And,
160
should
a
broadcaster
subject
to a complaint suddenly start
balanced
programming
duing
televising
FCC
review,
12
constituted the basis for an FCC decision?
In
well for
the
practice,
what
then
case-by-case review did not work
so
tv viewers. In making this rule, the FCC placed
procedural
broadcaster's
broadcasters
complainants.
Doctrine
more
burden
on
unfairness,
complainants
but
it
unfairness.
did
show
not
Individuals
or
groups
in
order
to
with
through
prove
a
require
to release any programming information
complaints then to go
documentation
to
to
Fairness
time-consuming
a
broadcaster's
Despite these procedural problems,
the FCC
received more Fairness Doctrine complaints after
making
its case-by-case review decision.
In
Fairness
the
the
Cullman corollary,
the FCC
Doctrine to ballot issues.
extended
The FCC ruled that
Fairness Doctrine required broadcasters to
reply time,
free if necessary,
the
provide
to spokesmen on
ballot
issues.
The
elements
Cullman
of
corollary comprised two
Fairness
Doctrine
policy.
majoritarian in its first amendment logic
of
the
public to information clearly
161
significant
It
was
that the right
took
precedence
over
the rights of broadcasters to express their views.
Secondly,
it
considerable
The
good
FCC
broadcasters
discretion in public affairs
retained
programming.
specifically told Cullman that "if it is
faith
judgement
opportunity
would
acknowledged that
that
the
public
has
your
had
the
fairly to hear contrasting views... then
appear.. .that
it
you
obligation
pursuant
to
the
13
fairness doctine has been met."
The ruling contained
a number of mollifiers for broadcasters.
broadcasters
would
be
required
to
The FCC
provide
ruled
time
to
spokesmen
only if they had previously aired programming
that
clearly
was
providing
partial.
The
responsibility
time free-of-charge depended entirely on
broadcaster's judgement.
for
the
The Cullman corollary impelled
broadcasters to provide free time only if he were unable
to find someone capable of paying,
.articulate
s station.
who was competent to
a view opposing that which already aired
on
Broadcasters retained discretion under the
Cullman decision about the format in which these parties
14
or
individuals would appear.
The dangers of the
subsidizing
partisans
Broadcasters
worried
Cullman corollary were those of
and
inhibiting
that the
162
broadcasters.
Cullman decision opened
them up to manipulation by interest groups.
not
incorrectly
corollary
funds
that
interest groups
They feared
would
to demand free tv time and then
for
other
purposes,
organizational help,
formally
etc. In fact,
reconsidered
twenty-two
years
announced,
public
amendment
virtues
chilling
such
the
after
as
spend
the
their
newspaper
ads,
in 1985 when the FCC
Fairness
the
use
Doctrine,
Cullman
fully
corollary
was
interest groups championed its first
effect
while
and
broadcasters
the
burdens
derided
of
its
subsidizing
referenda campaigns due to the regulation.
The
Cullman corollary came about when the
Broadcasting
Company asked the FCC to
Cullman
clarify
whether
Fairness Doctrine obligations applied to local spokesmen
of
national
Doctrine
issues.
issues.
Cullman maintained
only
applied
to local
the
spokesmen
Fairness
for
local
A citizen's group, the Citizens Committee for a
Nuclear
management
Test
Ban
with
programming,
Treaty,
had
approached
a request for air time to
Cullman
respond
to
which they felt was biased against passage
of the treaty.
163
In
the
Fairness
Zapple
Doctrine
candidates
during
Nicholas Zapple,
for
decision,
to
the
spokesmen
campaigns.
concern
provide equal
had
for
the
political
such
spokesman,
that
(Section 315).
broadcasters
be
It
was
required
to
time for one candidate's spokesmen if they
provided
(Section
One
extended
had asked for equal time for spokesmen
candidates under Equal Time
Zapple's
the FCC
315)
time
for
applies
another's.
Since
solely
candidates
to
Equal
Time
during
political campaigns, and does not cover their spokesmen,
Zapple
asked
Doctrine
might
the
FCC to
rule
whether
the
enable candidate's spokesmen
Fairness
to
equal
time.
In the Zapple decision, the FCC ruled only on paid
time. The FCC responded that broadcasters must sell time
to one candidate's spokesmen if they already had sold it
to
the
another's.
The FCC made a clear distinction between
Cullman corollary,
which dealt with ballot
issues
and the Zapple decision. In the Zapple decision, the FCC
expressly ruled out any requirement to provide free time
to a candidate's spokesman.
be
an
"Any such requirement would
unwarranted and inappropriate intrusion
164
of
the
fairness
doctrine
contrast,
the
into
the
the
area
of
political
15
campaign financing,"
the FCC reasoned.
In Cullman, by
FCC
felt
the public's
right
to
information on ballot issues overrided potential
hear
abuses
of the corollary by partisans.
In 1967,
the FCC extended the Fairness Doctrine to
commercials,
specifically cigarettes.
broadcasters
to
The FCC required
provide "a significant amount of
time
16
the other viewpoint"
if they televised
cigarette
for
commercials. Controversey surrounding the health hazards
of smoking warranted extension of the Fairness
to product advertising, the FCC argued.
Doctrine
The Commission
also noted that it would not apply the Fairness Doctrine
to
other products because,
it said,
cigarettes were a
"unique" product.
A
dizzying
series of
congressional
acts,
court
decisions and FCC rulings then followed. Congress banned
cigarette
effective
Washington,
other
advertising
January
D.
products
pollution,
the use of
in
C.
2,
over
1971.
radio
and
television
The Court of
Appeals
in
upheld the rule and extended it
to
deemed
to
be hazardous
or
to
cause
this latter case super-powered cars
high-test gasoline.
165
Then,
in 1974,
and
the FCC
backed
off
its initial 1967 decision,
commercials
by
ruling
that
did not "inform the public on any side of a
controversial
issue
of public importance" or
make
"a
17
meaningful contribution to public debate."
Thereafter,
the
Fairness
commercial
raised
Doctrine
advertising
controversial
became
in
applicable
which
issues
sponsors
and
no
only
to
explicitly
longer
included
ordinary commerical advertising.
The substantive problem confronting the FCC was the
the Fairness Doctrine.
of
reach
In keeping
the
with
original status of the Fairness Doctrine as a regulatory
commercial
product.
wanted.
advertising
more.
No
In
Fairness
precisely
1949,
Doctrine
on
a
of
clearly
FCC
cigarette
aggrieved,
It was as the original authors
had
rationale for articulating
the
the
as
a regulatory
the notion that
advertising
succeeding
over radio and
this case,
broadcasters
companies took their complaints
rested
memorandum
could
FCC's
And, in 1967,
decided the pubic interest required a
in
to
controversial
apply it as the public interest required.
the
it
the FCC extended
subject to change,
memorandum
ban
television.
and
to the courts,
on
The
cigarette
again as
the original Fairness Doctrine indicated was proper, and
had an opportunity,
which they lost,
overrule the FCC.
166
for the court to
Nevertheless,
FCC.
The
only
that
policy
it
the policy proved unworkable for the
the
could
FCC found itself involved
not
maintain.
sustained the original policy,
Fairness
FCC
too
Congress
proved
ruling and the subsequent backing-off
involved
And,
had legislated a ban on cigarette
167
Courts
the FCC extension of the
programming.
over radio and television.
creating
the
Although
Doctrine to product commercials
directly in tv
in
by
the
1974,
advertising
4
court
Two
in
participation
Doctrine,
crested
decision
is
Fairness
the
in
majoritarian
citizen
enabling
and
renewals,
license
Fairness
Each
wave.
Doctrine
its
other,
the
the
of
constitutionality
the
upholding
one
decisions,
Amendment
First
arguments.
in
Appeals
Washington,
C.
D.
ordinary citizens to participate
The
opened
decision
participation
door
of
upheld the right
in the FCC's licensing.
public
greater
to
in licensing renewals.
trustee role of
public
the
of
Court
The United Church of Christ case, the
In
It sanctioned the
the
broadcasters as
yardstick
against which the FCC measured license renewals.
The United Church of Christ contended that WLBT in
Jackson,
Mississippi
was broadcasting racist news
public affairs programming, and that the FCC
irresponsibly
in renewing WLBT's license.
had
The FCC
and
acted
had
granted provisional license renewal to WLBT on condition
that WLBT management change it ways.
FCC
required
the. .. fairness
WLBT
Specifically,
"comply
to
doctrine,....to
168
observe
strictly
strictly
the
with
its
to
representations
the Commission in
have discussions with community
area,.....[to]
including those active in the civil
to
its programming
whether
[fairness]
this
leaders,
rights movement.. .as
is fully meeting the
needs
cease
]
to
[and
18
The Court found
discriminatory programming patterns."
and
interests
this
wanting,
and
instructed the FCC to consider
FCC
during
The
frequency.
station
integrated group
a non-profit,
by
residents
area,
its
WLBT's
for
applicants
operated
of
hearings
comparative
of
for
new
was
local
the
license.
The
the
Doctrine
Fairness
remedies,
defamation,
group
United Church of Christ decision showed
to
therefore
rather
than
the
other
that
legal
such as bringing suits for libel, slander, or
was an effective tool for a public interest
wrest
a
license
from
a
broadcaster.
broadcasters on notice in
put
no
It
uncertain
terms that their licenses could be challenged not merely
by other businessmen competing for the same license, but
by
groups
of
entrepreneurs
proponents as well.
169
and
public
interest
Fairness
for
victory
big
the
constituted
the
of
tide
cresting
the
in
Red Lion decision was the high water mark
The
Doctrine.
It
of
the
proponents
The Court
held
that the FCC had broad policing powers to assure a
flow
of
on free speech.
position
majoritarian
news programming to
diverse
listeners.
Court
The
that the FCC had not exceeded its congressionally
ruled
authority
delegated
rules
making
in
required
that
broadcasters
provide direct access to the airwaves
individuals
who
It
commentary.
had
attacked
been
for
broadcast
in
acknowledged congressional codification
of the Fairness Doctrine in the 1959 amendments to Equal
Time.
The
or
they
attacked
issues.
persons
broadcasters to provide reply time to
The
in editorials
FCC
character
integrity or
whose honesty,
individuals
on
controversial
required broadcasters to
or it with a transcript,
opportunity"
station.
for
response
and offer a
over
the
the
provide
"reasonable
broadcaster's
The personal attack rule extended to political
a broadcaster's editorial
editorials,
which dealt with
endorsement
or opposition to political
such
public
notify
person or group of the editorial within a week,
him
in
rule
attack
personal
The
commentaries.
broadcast
required
attacks
Red Lion case dealt with personal
a case,
candidates.
the rule required broadcasters to
170
In
notify
all candidates of their editorial opionion, provide each
a
offer each or his spokesman
or transcript,
tape
exempted
specifically
It
station.
broadcaster's
the
over
respond
to
opportunity"
reasonable
"a
it
did
apply to editorials a broadcaster might make on his
own
that
commentaries
but
were within newscasts,
following a newscast.
personal attack rule did not violate the
rights
protect
Court
private censorship
by
The
broadcasters.
the personal
observed that the chilling effect of
speculative."
rule on broadcasters was "at best
attack
remained
The Court held that the first amendment does
paramount.
not
first amendment
Listener sovereignty
of broadcasters.
the
that
number of reasons the Court held
a
For
problem,
It held that spectrum scarcity was still a
so
that broadcasters could not legitimately assert that the
channels
of
number
broadcasters
as
for response.
provide
In the
broadcasters held licenses to scarce
public
trustees,
reply
provide
editorial views.
that
individual
relieved
their responsibilities to
opportunity"
reasonable
opinion,
of
market
in a
the
and as such,
Court's
airwaves
obligated
were
"a
to
expressing
controversial
For all these reasons,
the Court held
time
personal
for
attacks
rule
amendment rather than undermined it.
171
upheld
the
first
The logic behind Red Lion was entirely that of
majoritarian
Justice
view.
Writing
for
a
Byron White ruled that "it
unanimous
is
prevents
licensee to share
with others an to conduct himself as a
frequency
of
crucial
White wrote
"there is nothing in the first amendment which
from requiring a
the
political,
esthetic,
moral
and
other
ideas
which
19
here."
Like Frankfurter in the NBC case,
government
court,
is the right of
public to receive suitable access to social,
the
the
his
proxy
fiduciary with obligation to present thouse views and
which are representative of his
voices
community
and
the
be barred from
would otherwiseby necessity,
20
White saw
the AP ruling,
And,
like
airwaves."
which
in the first amendment for unlimited
sanctuary
censorship
And,
operating in a medium not open to
again,
confers
no
broadcasting
"as
right
we
have said,
the
first
on licensees to prevent
private
21
all."
amendment
others
from
on 'their' frequencies and no right to
of a scarce resource which
22
government has denied other the right to use."
unconditional
"no
monopoly
White cited FRC and FCC regulatory policies,
effected a majoritarian policy in broadcasting.
Great
Lakes case of 1929,
ruled
"the public
an
the
which
In the
the Federal Radio Commission
interest requires ample play for
172
the
free
belives that the principle applies
commission
discussions
The
views,
and fair competition of opposing
the
of issues of importance to
and
the
...
to all
23
public."
Court noted that in the thirties the FCC had denied
permits
or refused construction
renewals
license
for
broadcasters, which wanted to broadcast special interest
programming,
due
broadcasters
carry
Noting
people.
regulatory
to
insistence
diversity
of
the Mayflower decision in passing,
the
and
its
for
programming
a
jumped quickly to the Fairness Doctrine
Court
component parts -and b)
issues,
-court
~akif
these
a consistency between
and
earlier
rulings
regulatory
the
on
FCC's
news
according to the Court.
programming,
ii
All
issues.
rule
attacks
personal
The
the presentation of conflicting views on
indicated
precedents
fair coverage of public
a) adequate,
public
pertinent,
that
it
then trained
authority.
dCto ke rules,
eye on statute
and
FCC
It found broad authority for the
such as the personal attack rule, in
-the original Communications Act.
It found in the
final
24
version
of Proxmire amendment
amendments
a
to the 1959 Equal
link between the public
173
Time
interest standards
of
original Radio Act and the
the
amendment vindicated the FCC's general
"The
the
standard,"
by
interest
And again, "thirty years of
the Court wrote.
consistent
that
view
public
doctrine inhered in the
fairness
Doctrine.
Fairness
administrative construction left undisturbed
Congress
until
1959,
when
that
construction
was
expressly accepted, reinforce the natural conclusin that
public interest language of
the
Commission
to
require licensees to use their
discussion of public issues,
for
stations
and that the
FCC
implement this requirement by reasonable
25
and regulations...."
to
free
From
attack
it
rule itself.
promulgated
fell,
there,
was a short leap to the
The Court noted that the
the personal attack rule in 1967.
therefore,
within
the
delegated authority to make rules.
on its own discretion.
rule
FCC's
is
rules
personal
FCC
had
The rule
congressional
The FCC had made the
Congress had not passed
a
nor instructed the FCC to implement precise aspects
law
of the law.
FCC's
own
because
the
rule making capacities and the scope of
FCC
This distinction was crucial,
authority were being tested. And, again, the Court
no
the
the Act authorized
inconsistency between the personal attack
174
rule
found
and
26
the
fairness
considerations
"Elementary
Fairness Doctrine.
and
specifically Equal Time
FCC regulations,
earlier
may dictate that time be allocated to a person
the
group which has been specifically attacked over
27
the Court quoted the Fairness Doctrine.
station,"
or
an important aspect of the Red
In
White
Justice
decision,
Lion
constitutionality
the
upheld
Fairness Doctrine.
the
of
He wrote that FCC rules requirying a
who
broadcaster to provide reply time to an individual,
Equal
version
his
with congressional
consistent
Fairness
over
attacked
been
had
of
Doctrine
Time.
of
as
intent in
part of the
1959
the
codifying
amendments
Placing placed great weight on
the Proxmire amendment,
were
station,
radio
White
the
noted
to
final
that
Senator Joseph Pastore, the majority manager on the 1959
amendments, and
Senator Hugh Scott, minority manager of
the
1959 amendments,
of
assuring
a
flow
importance
28
The
public.
asserted the paramount
of
news
to
the
importance both Pastore and Scott attached to Proxmire's
amendment proved to White that Congress wanted to impose
Fairness Doctrine responsiblities on broadcasters.
175
Lion was thus a double blow to
Red
the
First,
Court
broadcasters.
upheld the constitutionality of
the
Fairness Doctrine on the time-tried majoritarian view of
the
first amendment that a flow of news and information
to the public took precedence over their first amendment
freedoms
that
of expression.
Congress
had
Second,
the Court
given statutory
recognized
authority
Fairness Doctrine by inserting the watered-down
of
the Proxmire amendment,
provide
"a
the
version
requirying broadcasters
to
reasonable opportunity for the discussion of
views on issues of public
29
1959 amendments to Equal Time.
conflicting
the
to
176
importance,"
to
5
a prominent communications attorney
Henry Geller,
on the Fairness Doctrine,
expert
and
managing
an
expanded
expert
provided
Doctrine.
Fairness
advice
on
Geller
wrote a Rand Corporation report on the
Fairness
Ford Foundation underwrote the
project.
The
Doctrine.
The report was intended for use by the FCC as part of an
30
In order to be of
inquiry into the Fairness Doctrine.
most use to the FCC, Geller confined his recommendations
to
rules and regulations that the FCC could make on its
own
having
without
Congress
to
be
implemented
31
Geller noted.
can
which
go
for
existing law,"
by
the
further
pragmatic
"The report's suggestions are
authorization.
ones,
to
FCC
within
Geller's recommendations were straight-forward.
FCC to dump the case-by-case
the
told
had adopted in 1963.
it
which
return
to
review
method,
FCC
to
standard
of
He advised the
the original Fairness Doctrine
He
evaluating overall programming only at license renewals.
would get the FCC out
of
single issues and daily news operations.
At
Such a course,
evaluating
the
same time,
assure
Geller wrote,
overall review a license renewal
sufficient
scrutiny
177
to
determine
would
whether
trustee
public
their
fulfilled
broadcasters
responsibilities, Geller said. To make this policy work,
Geller
"show
urged
a
in
reasonable
the FCC only to require
general fashion" that
opportunities
broadcasters
had
they
to
afforded
for contrasting views
to
be
heard. He also suggested that broadcasters submit a list
of
ten
issues,
nationally
and
locally,
covered most extensively the previous year.
"time
percentage
guidelines"
rather than the case-by-case,
might be a
single issue
a more efficient complaint
32
less burdensome to complainants.
recommended
178
which
He
they
thought
useful
method.
procedure,
tool
He
one
6
The sixties produced a remarkable expansion of the
The
Court
Supreme
canon.
all within the majoritarian
Doctrine,
Fairness
held
the
that
Doctrine
Fairness
effected
the first amendment rather than undermined it.
The
successfully
FCC
expanded
its
applications
to
partisans for ballot issues and spokesmen for candidates
as
issues.
well as to the FCC's own review of specific
Issue-oriented citizens
FCC
broadcaster's
proponents
of
slowly
would
about
a
to
complaints
follows
an
incoming
fairness.
tide
ebbing
An
in
due
decisions
licensing
won standing as participants
a libertarian policy,
and
wash
minimally
the
signaled
reversals
the
in
shifting
areas
of
tides.
political
By
the
For
ebbing
tide
of
the
Courts.
FCC
some
away
majoritarian policies of earlier FCC's and
policy
one.
programming
mid-seventies,
pressure for televised presidential debates prompted the
FCC
to
amend Equal Time so that
again.
179
debates
could
occur
CHAPTER SIX
THE
ASPEN
DECISION AND THE FCC'S 1983
ON CANDIDATES DEBATES
180
RULING
1
the
loomed over
into the following year. On May Day, 1975,
Republic well
troops
Vietnamese
North
Watergate
after-effects of
the
1974,
August,
in
President Nixon had resigned
Although
To
Saigon.
into
rolled
thoughtful people, the Watergate scandal and the victory
of
Vietnamese
North
the
In the
ultimate conclusions of the Imperial Presidency.
Pentagon
the
press,
both
And despite
remoteness and veniality of the Presidency.
the bad news,
all
press
for
Many believed the
press
had
True to
nation from calamity.
the
rescued
one could only thank the
so well.
job
its
doing
imperial
savage,
the
had
tapes
Nixon
Papers and the
exposed
and
revealed
and
shortcomings
the disasterous
signaled
Vietnamese
South
US-backed
the
over
a
of the founders,
free
first
the
press
had
amendment
vision
reported,
and public opinion had finally rid the nation
of
irresponsible chief executive and
an
But something more had to be done to return
chief.
Presidency to the people,
with
commander-in-
to
voters,
make
the
to bring it back into contact
it more
responsive
to
public
opinion.
The
the
problem troubled Douglass Cater,
Aspen
Society.
directed
Institute
Program
Director
Communications
on
of
and
Cater was a former journalist, and in 1975, he
the
Aspen
Institute,
181
a
think
tank
on
communications issues.
televised
Throughout
1975, Cater advocated
debates between presidential candidates as an
important way to enable voters to assess
who would be elected in 1976.
the
president,
In April 1975, at Cater's
instigation the Brookings Institute had recommended that
the
FCC
re-evaluate
candidates'
Democratic
appear
of
debates
Later
in
presented
Equal
so
that
Time
television without
Time requests from fringe
April,
the Aspen
regulations
on
between
the
debates
and Republican presidential
on national
Equal
its
nominess
could
triggering a host
party
Institute
candidates.
and
CBS,
Inc.
petitions to the FCC to alter its Equal
Time
regulations on candidates' debates and news conferences.
Aspen
petitioned
the
FCC
to
lift
requirement on presidential debates,
the
FCC
to
lift
its
Equal
Time
its
Equal
Time
and CBS petitioned
requirement
on
candidates' news conferences.
In
the Watergate era,
both petitions made sense.
They opened up the presidency to scrutiny.
the
face
They enabled
people to see the major candidates debate
and
to
hear how an incumbent
face
president
to
handled
questions from journalists. They enabled the press to do
its
job,
free
of
government
liberalizing proposals.
animated
Both
And both ran squarely into
FCC's regulations on Equal Time,
themselves
regulation.
the
regulations which were
by a liberal vision to assure
182
were
the
fullest
flow of news and political programming
to
the
American public.
in September, 1975, the FCC gave television a
hand
in
covering
conferences.
became
In
candidates'
debates
and
freer
press
a significant Equal Time decision that
known as the Aspen decision,
the FCC
announced
that both candidates' debates and news conferences
"bona
fide news events" and,
as such,
were
exempt from FCC
1
Equal
Time
requirements.
requirying
broadcasters
Gone
were
the
old
to provide Equal Time
candidate if they broadcast a debate or news
of
any one or two candidates,
place
by
decision,
the
the
86th
rules
to
any
conference
rules originally put
Congress in
1959.
In
the FCC swept these rules away,
the
and
in
Aspen
assumed
power to redefine the Equal Time rules Congress had
set for political programming.
But the FCC gave broadcasters a
freer hand only
up
to a point. Even at the moment in the mid-seventies when
journalism
broadcasters
themselves
enjoyed
wrested
substantial
only
a
public
partial
support,
victory
and found they still had one hand
bound
for
by
debates.
A
pattern set in 1959 seemed to be emerging once again:
a
new
rules,
particularly
on
candidates'
limited victory on one programming format,
press conferences,
in this case,
accompanied by only a modest gain in
another, candidates' debates.
183
The
FCC majority ruled in Aspen that
broadcasters
could cover candidates' debates only if the broadcasters
themselves
other
neither
words,
initiated nor controlled
broadcasters could not stage
them.
In
candidates'
debates nor could they determine who would and would not
be invited.
much
Such control,
power to tv.
the FCC felt, would give too
The more expedient course lay
in
a
third party, such as the League of Women Voters, hosting
debates
between
television
their
studio,
news
entirety as
skirted
simply
kinds
candidates
judgement
broadcasters
to cover the
outside
then
a
exercising
debates
in
their
"bona fide" news events. Such a construction
troublesome
included
of
and
somewhere
control
and use issues.
candidates' debates along
The
with
"bona fide" news exempted from Equal
FCC
other
Time
in
the broadcasters' victory was limited,
it
1959.
Although
was by no means hollow.
broadcasters
were the big winners.
scandal-tainted
perhaps
In 1959 and 1960,
industry
increased
congressional
from
regulatory
as
They rescued
public
oversight
their
disfavor
by
approval for greater broadcaster
over news and political programming.
FCC's
television
winning
control
Many regarded
literal interpretation of Equal Time in Lar
extreme.
discretion
and
the
Daly
Congress had provided broadcasters greater
in their news programming by
184
holding
that
appearances
candidates'
in a newscast,
news interview,
Time.
documentary and news events did not require Equal
In 1960,
initiate and
broadcasters had won the right to
stage televised debates between Nixon and Kennedy thanks
in the
to a Joint Resolution of Congress. Then, in 1975,
broadcasters won again. But this time, they won
tapes,
a
and the Nixon
Watergate,
of the Pentagon papers,
wake
on
discretion
broadcasters attained total
Aspen decision,
the
In
limited but nonetheless significant victory.
limited
televising candidates' news conferences and
discretion on televising candidates' debates.
candidates were
Incumbent
They
decision.
cases
than
directly
before it.
conferences
big winners in the Aspen
had a better chance of
pressing
their
after
Aspen
to voters over television
news
Incumbent politicians could hold
whenever
for whatever purposes they wished
fear
they wished, particularly during elections, without
opponents would receive Equal Time for press conferences
of
Time
their own.
Any petition to the FCC requesting Equal
now
rebutting press conferences were
for
press conferences were news events and,
from
the Equal Time rule.
from
Aspen
due
to
their
moot:
as such, exempt
Incumbents also got a
newsworthiness
as
boost
office
holders.
It was far more likely that broadcasters would
exercise
their
newly gained discretion in the area
press conferences by making a news
185
judgment to
of
televise
or
rebuttal
opponents
an incumbent
televise
to
not
but
would
provide
in
time only as news stories
news
casts.
The League of Women Voters gained considerably from
the
Aspen decision.
prestige
The League won increased
hosting
and public esteem for the role it would play in
candidates' debates. The League assumed the role of host
The Aspen Decision did not assign host
for the debates.
responsibilities to the League.
the
Among
losers were challengers
whether they were major party candidates or not.
office
Chisholm,
Shirley
a prominent black Congresswoman
mounted a presidential bid
had
in the Democratic
carried the banner for
in 1972,
argued
electoral
for
challengers.
National
Democratic
Committee
Party
Chisholm
Time.
against exempting debates from Equal
who
The
exempting
opposed
presidential news conferences from Equal Time, but later
issue
would
A
conference
from appeals to Aspen on the press
withdrew
Aspen
2
jeopardize the Ford-Carter presidential debates.
when
closer
the 86th
included
In
ruling
against
the Aspen decision shows how
look at
expanded
majority
rules.
it appeared a court
Aspen,
congressional intent on
the
Equal
FCC
Time
the FCC majority wrote that in 1959
Congress had originally intended debates to be
with
documentaries as
news
shows,
news
"bona fide" news events,
exempt from Equal Time.
186
interviews,news
and, as such,
After
expanding congressional intent in the
decision, the FCC majority admitted past
errors
in
debates.
two
FCC
The
FCC
Goodwill
Stations,
Company,
which
requirying
Goodwill,
debate
rulings
on
renounced
Inc.
and
implemented
Equal
the
Time
1962
political
rulings,
National
the 1959
for
interpretative
televised
two
Aspen
The
Broadcasting
Equal
Time
law
candidates'debates.
In
FCC had ruled that radio broadcast of
between
then
Governor
of
Michigan,
John
a
B.
Swainson
and
required
the radio station to provide Equal Time to the
Socialist
his Republican challenger
Labor Party candidate for
George
governor
Romney
although
the Socialist Labor Partry received only 1,500 votes out
of
3.2
million
Broadcasting
in the
Company,
1960
the
elections.
FCC ruled
In
that
National
television
broadcast of a debate between then Governor Pat Brown of
California and Richard Nixon, his Republican challenger,
required Equal Time for the Prohibitionist candidate. In
Goodwill,
the FCC recognized that radio and tv coverage
of
the debates were "on the spot coverage of bona
fide
3
news events"
and,
as such, seemingly exempt from Equal
Time.
However,
fide"
status
grounds
the
as
FCC ruled that the debate's
a news
event
was
not
"bona
sufficient
to enable radio and tv to cover it live without
providing Equal Time to other candidates. To do so would
place
and
too much control on the news judgement
tv reporters and news directors.
187
of
radio
Congress intended
no
such discretion when it came to
political
debates,
the FCC had ruled in the sixties.
in laying bare its sins of commission in these
But
two
Equal Time cases,
the FCC also found
in
them
the
necessary precedents to acknowledge new-found virtue.
re-examining the legislative history of the 1959
its
consideration
of
the
Aspen
petition,
law for
FCC
the
asserted it had found that the grounds
majority
In
for its
1962 rulings had been erroneous. The real issue, the FCC
wrote
Aspen,
in
appearance
in
political
event.
debate
"bona
was
on
fide" news
candidate's
event
such
or was not "incidental
the FCC had based those rulings
the
candidates appearances were
as
to"
a
the
on the grounds
central
to
the
Such rulings were
so Equal Time was required.
debates,
hardly inconsistent with the 1959 law,
had
a
whether
This goes back to the 1959 law and 1962 rulings.
In 1962,
that
a
turned
because Congress
required that candidates' appearances could only be
"incidental"
would
to news
trigger
Equal
events.
Time.
Otherwise,
But
in
tv
coverage
re-examining
the
legislative history, the FCC now found that Congress had
meant
all along that a candidate's appearance could
central
to
a news event,
triggering
Equal
intepretation
floor about
news casts,
debates.
on
such as
Time.
It
a
debate,
supported
the basis of arguments on
without
this
the
be
reHouse
language in the conference report concerning
news interviews,
To get around this,
188
and news events,
but not
the FCC reasoned that the
debates,
such
as
those
between Nixon and
Brown
and
Romney and Swainson were news events,
hence Equal
Time
4
should not apply to debates.
The 1962 rulings,
the FCC
claimed in self-defense of its recision,
cited a
bill
1959
that
had mistakenly
House Report of a version of an Equal Time
had
never
passed
for
the
previous
now
erroneous interpretation.
On candidates' news conferences,
reversed
an
earlier
Broadcasting
following
Equal
Time
System (1964),
the FCC
decision,
requiring
candidates' press conferences.
Columbia
Equal
the
and
as
from Equal Time. The FCC agreed, but not on
grounds CBS had pressed.
press
CBS
conferences
"bona fide news events and news interviews,"
such, exempt
Time
In 1975,
urged the FCC to classify presidential news
as
majority
conferences
CBS wrote that control of
rested with the
journalists
questions rather than the candidate responding.
disagreed, -and
asking
The FCC
wrote that candidates controlled
press
conferences by deciding whether or not to hold them. CBS
argued
that
candidates
exempt
from
Equal
routine news.
normal
press
Time,
because
By routine, CBS meant
that
that,
they
should
were
Nation."
The FCC rejected
Congress meant
and
had
really
"regularly
"Meet the Press" and "Face
this
argument,
writing
"regularly scheduled" to mean
not
contemplated
189
be
"recurrent in the
and usual course of events" like such
scheduled" news interviews as
the
conferences
including
just
press
with
conferences
to distinguish between press conferences "called by
FCC
an
the
calling on
Another CBS argument,
Time exemptions.
Equal
1959
weekly news shows in the
called in furtherance of his candidacy" opened
those
shut. Then, the FCC ruled that its
no
and
held,
longer
news
candidates'
from
exempt
"bona fide" news events
were
conferences
1964 objection in CBS
that
ruled
a
keep
to
on content that the FCC wanted
worms
of
can
and
capacity
official
candidate in his
incumbent
Equal Time.
FCC
The
minority
in the Aspen decision.
majority
worried
commissioners
candidates
party
minority
the
public
in
two
The
would
the
with
vehemently disagreed
dissenting
see
never
political
televised
and feared incumbent politicians, particularly
debates,
would further exploit press conferences for
presidents,
their own partisan,
political goals due to the
relaxed
regulations.
In meeting fresh constructions of Equal Time in the
Aspen decision,
vainly
the dissenting FCC commissioners argued
for the existing,
position.
unworkable,
Commissioner Benjamin Hooks warned that Equal
was being struck "a severe
Time
blow."
majoritarian 1962
and,
He chastised the majority for making
mistake."
Hooks
mortal
perhaps,
a
"tragic
contended that political debates
were
and should appropriately be covered
as
saw danger
in
granting broadcasters a fuller measure of discretion
in
not
news
hard news,
stories on news telecasts.
190
Hooks
debates
broadcasting
he
discretion,
television
of
hands
that
argued
He
journalists.
and that
manipulated press conferences,
candidates
the
too much power in
put
cautioned,
Such
conferences.
press
and
it
further latitude.
was mistaken to allow politicians any
In a word, Hooks argued the FCC majority had interpreted
5
the
"If newsworthiness is
Time into "oblivion."
Equal
then
test,
operative
all
drafted
the other carefully
exemptions and protections are useless
315a [Equal Time]
6
and unnecessary."
.
Even the ghost of Lar Daly appeared
in Hooks's dissenting opinion as Hooks worried about
the
7
tv
newsmen.
Hooks
finally complained that the FCC had not
followed
judgment"
newsworthiness
"subjective
The decision on debates and
correct procedure in Aspen.
conferences really was Congress's not the
press
and
of
the
the
had
it
FCC majority was wrong to assume
FCC's,
Commissioner Robert E.
power on such a political issue.
Lee echoed Hooks' positions in his dissent.
In
ruling
in Aspen,
conferences
of
tv.
The
legislation
whether
political
a
on
the FCC redefined
policy question,
radio
in
the
candidate
or
a
on
"use" of broadcast
and
debates
candidates'
political uses
to
dating back
twenties,
broadcaster
time
when
press
initial
centered
initiated
on
a
broadcasting
use
meant the
purchase
or gift of air time to campaign for
election:
Congress
was more concerned about price
political programming.
In the twenties,
191
discrimination
against
with radio's minimal news programming,
than
time
candidates going on the radio at election
so in 1927
assure
enacted Section 18 of the Radio Act to
Congress
that candidates purchasing or receiving radio time would
be
treated equally.
programming
news
television
coverage
candidates
stories.
as
documentaries,
TV,
after all, was presenting news
appeared in the news along
tv's
coverage
Argentine President Frondizi,
1975,
political
with
other
Candidates did not initiate the coverage, such
Chicago
require
and
and on-the-spot
of "bona fide" news events were not
uses of television.
and
Congress
account.
broadcaster-initiated
in
activities
interviews,
newscasts,
into
incumbent politicians
decided that news reports on
candidate's
took
By the late fifties,Congress
of
Mayor
Daley
greeting
so it was not sensible to
Equal Time for routine tv news programming.
In
the FCC changed the legal meaning of political use
by ruling on its own discretion that candidate's debates
and politician's news conferences were "bona fide"
events.
192
news
of course, is why
The important issue in all this,
rules
Time
Equal
warrant attention.
Television was held in higher esteem
The Watergate hearings, televised
in 1975 than in 1959.
by
major
the
had
FCC,
its
beginning
and
abounded,
the
restrictions
'59
was
news
and
sentiment
returning government to
to
sensible
seemed
doubtless
FCC
its job informing people by lifting
do
television
the
Anti-Washington
in the spirit of
it
people,
political
of
toward deregulation of
swing
programming.
political
so
large radio markets,
in
programming
candidates
on
a
Commissioner of
deregulation
for
pushed
of
had rid the government
networks,
cloven hoofed president. Richard Wiley,
the
factors
Several
1975.
in
changed
the
press
and
debates
let
conferences.
and
plays
Power
particularly due
of the Aspen decision,
implementation
initial
marked
confusion
to the new-found role of the League of Women Voters. The
networks,
get
all
President
jealous that the League of Women Voters would
the
Gerald
transmitters,
networks
Ford
complained
televised
Debates
for
arranging
and
presidential
Democratic
presidential debates since
hosted
to
about several aspects of
between Kennedy and Nixon.
had
between
debates
Carter while they were reduced
Jimmy
nominee
first
credit
those
193
Back in
debates
the
1960,
without
mere
the
Great
the
any
be
may
short
those
of
news
television
network
particularly those of Richard Salant at CBS
executives,
and Reuven Frank at NBC,
News
while tv memories
such as the League. And
intermediary,
be
proved to
Ford-
was lots of wrangling about control of the
there
so
long,
Carter debates.
First,
the
excluded
the
Control issues surfaced about details.
the
and
League
presidential candidates
Then, the League
networks from initial planning stages.
and
the candidates worked-up a list of
over
list
which the candidates had
the
candidates
television
cameras would focus exclusively on the candidates:
were to be no reaction shots from the audience.
the networks of the last bit of control,
candidates agreed to a pool
8
networks cameras of their own.
To
being
Salant
Robbing
the League and
camera,
thus
denying
was
a lowly
transmitter.
wasn't the tail waging the dog in this case?
Aspen Decision had enabled television
presidential
group
there
it seemed as though tv
reduced to a mere conduit,
After all,
The
and Frank,
and
The League
also reached agreement that
the
who
power,
veto
would pose questions to the candidates.
a
journalists,
debates
coverage
as long as they were hosted by
other than broadcasters,
and took place
of
a
outside
televison studios, and were broadcast in their entirety.
The League had stepped in,
show.
But
television
what
and had taken control of
was the League compared to
networks?
How could the League
194
the
the
great
pretend
to
event
an
host
debate in sixteen years anywhere nearly as
presidential
their
as the networks with all
competently
politics?
covering
national
"control"
the debate?
League
Could the
really
As if to corroborate the
of the television executives,
fears
experience
Its dealings with Ford and Carter
certainly suggested otherwise.
worst
televised
first
the
so significant as
the
League
surrenderd the few prerogatives the networks had won
1960
the
presidential
debates
the
to
in
candidates,
including the selection of journalists.
In the planning meetings where the networks finally
did
participate,
Salant grew heated.
He chastised the
League for accommodating Ford and Carter so
public was going to get cheated,
control
over
That,
sin.
the selection of journalists was the worst
Salant said,
veto-rights
unwittingly
words
that
The
he charged. Surrending
was tantamount to allowing the
candidates to choose their own questioners.
on
fully.
over the journalists,
granted
the candidates
would reach the public.
the
In agreeing
League
had
over
the
control
Then,
in
denying
reaction shots of the audience, the League had given the
candidates
de facto control over the images that
reach the American public,
would
too. How could television do
195
its
under
job
of a Friday meeting,
walked
and Salant
representatives stuck to their guns,
out
League
conditions?
restrictive
such
the
raising the spectre over
first Ford-Carter debate that CBS
9
it entirely.
weekend preceeding the
might boycott
the
But
networks
debate
presidential
23rd,
September
evening,
Democratic
the stage of
in
presidential
did
not
On
years.
sixteen
Thursday
and
Ford
Gerald
President
first
the
boycott
candidate Jimmy Carter met
on
the Chestnut Street Theatre in Philadelphia
to debate before a tightly-packed theatre audience and a
10
people.
television audience of 80 million
national
The
consensus
both
among pundits was that
heavily
on
candidates
neither
statistics,
economic
relied
too
proved
able to articulate a convincing vision of
he
wanted
support
to
lead the
and
country,
both
where
firmed-up
among their constituencies with 2 polls
giving
11
President Ford a slight edge for his performance.
Then,
well over an hour into the droning rhetoric,
befell the two
silence
disturbing and unexpected,
seeking
the presidency of the United States.
Carter
people,"
belabored
"a
breakdown
in
trust
As
among
men
Jimmy
our
debate moderator Edwin Neuman interrupeted him,
196
"Excuse me, Governor. I regret to have to tell
12
And,
that we have no sound going out on the air."
and said,
you
said
debate,
because
audience,
word to each other
a
Neither
the
his
Each stood at
stopped talking.
men
both
sound
continued
nor
was out
for
the
After twenty-seven minutes,
too.
podium.
to
theatre
sound
was
capacitor
had
restored, and the debate concluded.
twenty-five
A
cent
electrolytic
broken in one of the twenty-four amplifiers ABC-TV
News
was
using to transmit sound to seventeen sources fed by
the
pool
cameras.
power
supply
for
cameras.
the pool
And,
one broken capacitor.
people are highly competent,
27
minutes
not
in
sound
because
phone
pool
camera
conclude.
network
a
was
transmitted
CBS
which then sent the sound
lines to the seventeen sources fed
so
The
news
it took ABC personnel only
to arrange for the sound to be
in New York,
AT&T
solved
Once
a CBS-TV News sound line to the
through
center
was
the buzz and hum were not audibly worse due to
restored
the
in itself,
job was to cut the hum and buzz
It's
important.
The capicator,
the debate could
resume
and
broadcast
through
by
the
finally
technical people from the networks
had
13
the technical problem quickly and efficiently.
197
But
where
problem
sound
the
and
matter
did
Aspen Decision,
eventually did surface was in the FCC's
defining candidates' debates as "bona fide news events."
Minority
independent,
Independent
Workers candidate,
fide
Socialist
the
truly
For had the debate been a
news event,"
have
the candidates would not
talking due to a technical problem with
stopped
They
Camejo,
complained that the debate was not a
"bona fide news event."
"bona
Peter
and
Party,
an
American
on the
running
Maddox,
Lester
as
running
McCarthy,
Eugene
candidates
sound.
demanded Equal Time on the grounds the debate
was
political programming, not news. John Armour, McCarthy's
contended
lawyer,
that neither the Superbowl
Olympics nor a President delivering a State of
had
Address
Camejo's
ever
attorney
stopped due to
out
pointed
totally staged for television,
fide."
And,
asserting
tv
that
sound
the
nor
the
the Union
problems.
debate
was
so it could not be "bona
the American Independent Party filed papers
that
the
sound
problem
showed
that
the
networks and the League were colluding, thus commingling
14
roles of sponsor and broadcaster.
198
The FCC responded to these complaints by citing the
"bona fide news event,"
was a
debate
the
The FCC told the challengers that
Decision.
Aspen
Equal
exempt from
so they could not receive equal time
Time requirements,
for their minor party candidacies.
persisted.
Maddox
and
McCarthy
the
second and third presidential debates.
the
courts
arguments.
rejected his
a D.C.
overturn
In
Appeals Court decision,
Burger ruled
E.
Warren
the
presidential
1976
covered
warrant
Chief Justice
the sole case in
concerned
Ford.
television
October
22nd
Television
news
an
news conference as an important
the
newscasts,
election
by President
conference
press
but
story
in
as
to
so intrinsically important
not
uninterrupted
to
views
not to broadcast
decision
networks'
declining
their
to
candidates press conferences,
On
The FCC and
Maddox
opportunities
"reasonable
in
that both McCarthy and
have
15
presented in contexts outside debates."
had
places
Fairness Doctrine arguments to win
employed
next
McCarthy
air
time of
its
own.
Network
executives cited Equal Time as well as news judgement as
the basis for their decisions.
CBS,
pointed
out
William Small,
then
that President Ford had held a
199
at
news
14th.
Small
out that since Ford's October 22nd
press
conference only the week before on October
pointed
also
would
networks
other
from
pressure
under
put
be
effect,
political
its
for
staged
seemed
conference
candidates for Equal Time.
As
the
to the remaining debates in the 1976
election,
in
Carter's
in
on
Early
success.
figured
debate
second
prominently
the
articulated a winning theme.
Carter
debate,
second
Carter immediately started
presidential
"inadequate
with a broadside against
16
come
Four years later this theme would
leadership."
off
'76.
it sold in
back to haunt him with a vengeance, but
In response to a foreign policy question,
Ford bumbled.
Ford replied stupidly, "there is no Soviet domination of
Eastern
Europe"
himself
further
immediately,
harm
which
on
that.
by failing
to
correct
provided Carter further
did
Ford
pounced
Carter
himself
ammunition
for his bumbling president theme.
Carter had enterred the second debate with concerns
about no theme,
moderates
traditional
about
his
as
loss of support among
he
tried
Democrats,
judgment
to
and
pitch
independents and
his
with persistent
for agreeing to
an
to
campaign
questions
interview
in
Playboy and then making incautious remarks about his own
sex
drive,
former president Lyndon Johnson
and
other
topics. Ford enterred the second debate partially bouyed
200
by
remarks
Earl
the end,
In
of
tide
Carter stemmed the
lead
that had been eroding his considerable
defections
in
Agriculture
of his recently fired Secretary of
Butts.
racist
by
beclouded by embarrased
but
debate,
first
the
in
his somewhat better then expected appearance
The third debate
the polls up to the second debate.
was uneventful.
Both Ford and Carter spent approximately $8 million
17
Television
commercials.
television
on
each
dollars
news
voter
spent millions of its own on election night
projections made all
projections,
the more difficult by
the volatility of the electorate.
'76 election
expert opinion of the
The
that
was
the public was gravely disappointed. Walter Dean Burnham
that voters were better informed and thus more
observed
voters no
among
expectations
Marshall
McLuhan
command.
In
pointed
politician
out that
created
news
tv
could
meet.
had
taken
images
environment,"
a "simultaneous information
and promises win more votes
images
attractive
saturation
television's
campaign
the
of
presentation
that in
noted
He
skeptical.
than
a
goals,
McLuhan
observed. Candidates' debates mattered only as
elements
in
statement
articulated
clearly
complained
Margaret
Mead
tv presented so much information
that
dimension
news
this
that
of
of
politics.
the audience saw it all as advertising.
bored,
said,
she
repetition
of
what
by
the
should be
201
The public
"continuous,
fresh
was
relentless
experiences
for
groups
different
of
the
called
Roger Mudd
trust
He blamed Carter for making
issueless.
campaign
voters."
for
integrity into campaign issues and chided Ford
and
going along with Carter's agenda-setting.
Aspen
the
elections,
presidential
1980
the
In
decision worked to the advantage of the incumbent, Jimmy
during
Carter,
primaries,
the
general
the
in
and
election to the advantage of third party candidate, John
Anderson, running on a National Unity ticket.
Time
Equal
cases
presidential
1980
the
during
conferences,
election focused on debates and press
the
kinds of political programming exempted from Equal
very
Time obligations by the Aspen decision.
The FCC and the Courts ruled against Senator Edward
Carter's
Kennedy's complaint about one of President
M.
news
conferences.
Kennedy
was
presidential
campaign against Carter for the Democratic
nomination.
portions
of
charged
Kennedy
had
Carter
that
uphill
an
running
a White House news conference
on
used
Febrary
13th, 1980 not to respond to reporters' questions but as
a
campaign
forum to press his own
for
candidacy
nomination safely away from a Kennedy response.
first went to the tv networks,
news
conferences
grounds
that
events,
and
provide
him reply time.
which
as
newsmen,
they
Kennedy
which refused him on the
were
had no
bona
fide
obligation
Kennedy next went to the
supported the networks,
202
re-
ruling that Kennedy
news
to
FCC,
had
"failed to offer evidence that the broadcasters were not
judgement in choosing to
exercising their bona fide news
18
broadcast the press conference."
Although Kennedy was playing for much higher stakes
in
debates
for
than
a regulatory ruling on Equal Time
June,
1980, the persistence with which Kennedy advocated
a
with President Carter at that time
debate
to this FCC
connection
some
In
ruling.
have
may
1980,
June,
had enough votes to command the nomination,
Carter
but
Kennedy had enough to make Carter's renomination limited
In early June, Kennedy offered to release
and partisan.
his
delegates
if Carter would debate him.
Both he
Carter cited Carter's refusal to debate campaign
considerable disagreement among the
was
issues
and at that time,
as the biggest issue separating them,
there
and
two
on
such issues as wage and price controls and health care.
television networks turned down a request
The
Equal
September
from
from
Time
the
to the FCC.
complaint
four
with
opened
Administration
to
The Reagan campaign never made a
In the news
five
conference,
minutes
of
reporters'
Carter
remarks
accomplishments in domestic and
taking
a
again broadcast
18th Carter press conference,
the White House.
following
campaign
Reagan
for
questions.
on
foreign
William
policy
before
Casey,
currently director of the CIA and at that time a
high
level
networks
advisor to Governor
provide
the Republican
Reagan,
demanded
presidential
the
nominee
atleast four to five minutes of Equal Time to respond to
203
from
the
political
19
The
time."
"could not have been a more
remarks]
opening
partisan
conference.... [Carter's
the press
from
pressseparate
questions
to
responsive
not
announcement,
obvious
"an
Carter for
President
chastised
Casey
Carter's "political commercial."
he called
what
he
paid
had
the
for
commercial
if
television
networks cited Aspen in rejecting the Reagan
the equal time provision,"
20
at that time with NBC.
under
Time
Equal
of
effect
to
a
figured
election.
the Aspen decision was to provide
the League
Here,
the
discretion
of
Women
on the selection of candidates to be invited to
nationally
of course.
the incumbent president,
contentious
sometimes
Ronald Reagan.
in
The League did
televised political debates.
not act in a vacuum,
opinion
candidates'
on
importantly
women's civic association,
Voters,
if
remarked William Small
in the 1980 presidential
debates
basis
"I don't think there's any legal
camp's request.
It had to contend with
Carter, and a highly organized
team
campaign
And it had to contend,
offering
invitations,
too, with public
for if
showed too much partiality toward any of the
its own stature would be diminished.
204
surrounding
the
League
candidates
League
The
Anderson's
wanted
its
full
hands
in
John
1980.
independent candidacy threw a monkey
wrench
and
Reagan
two-party process.
the
into
had
Carter
Both
to manipulate the League invitations to Anderson
in such ways that would benefit their own campaigns. For
Reagan
meant a one-on-one
this
himself and Anderson and,
and
confrontation
between
between
himself
eventually,
but no three-way debate among all of them.
Carter,
it meant a one-on-one with Reagan,
For Carter,
no one-
and a begrudging acceptance of
21
three-way debate, which Reagan then ruled out.
on-one with Anderson,
League
The
tried to use its discretion under
Aspen decision cautiously,
powerful forces.
Democratic
the
but it was caught up in very
First was the problem of handling
the
there
was
Republican nominees.
and
a
Then,
Anderson. Faced with the Anderson candidacy, a candidacy
enjoying
measurably
more public
support
than
former
Minnesota Senator Eugene McCarthy's independent bid four
years before,
as
the
the League turned to public opinion polls
criterion
eligibility for
League
announced
for
determining
invitations.
a
In early Ausgust, 1980 the
that candidates enjoying
205
candidate's
a
national
figure
This
sponsored
invited to League
of 15% would be
popularity
22
debates.
was
to
enough
low
independent
to qualify but too high for other
Anderson
Barry
candidate
Citizen's Party
as
such
candidates,
enable
Commoner, to make the list of invited debaters.
League's
The
criticism.
public opinions polls drew
by
requirements
eligibility
set
to
decision
Andrew Kohut, head of Gallup, complained that the League
was
the
"into"
results
public opinion poll
bringing
political process in using poll results as the basis for
23
experts
opinion
public
Other
invitations.
debate
technical problems
about
worried
findings
sample
in
error
and
the
of
that
likelihood
would have been screened out of
nonvoters
margin
the
like
the polls
on
which the League was relying, thus skewing the sample to
the politically active and informed and not providing an
arranging
were
ability
to be applied in a fairly
others,
Roper
to
defended
looking for something that
"we
simple
responsible
She said of the of the 15%
figure,
understand,
objective
the NBC-AP poll,
Angeles Times poll.
206
the
cut-off
had
the
way,
24
was
and was non partisan."
the League relied on the Harris/ABC
and Gallup polls,
Ruth
standings.
the presidential debates,
decision.
League's
candidates'
person at the League most
the
Hinnerfeld,
for
of
reading
accurate
Among
poll,
the
and the
Los
the
end,
the
In
in televised presidential
participate
15%
that Anderson met the
debates
wrested
criteria in September, in time
but did not
for a one-on-one debate with Ronald Reagan,
late
the
criterion
in
including
President
Carter.
meet
to
invitations
The League determined
the League of Women Voters.
with
on
decision
for
October
debate
a
Everybody got mad at
the
insistence
25
Anderson.
with
debate
three-way
a
do
not
that he would
and accused it of bowing to Carter's
League
But the League only acted as
earlier on in September,
1980,
deadline for meeting the 15%
to
August
it said it
would.
Indeed,
the League extended its
requirement from the end of
help
September 10 precisely in an effort to
Anderson, whose popularity had waned a bit in the summer
heat, to make the list of invitees.
Anderson
failing
21st
had
no
one to
but
blame
to make more of his candidacy
himself
in the September
Carter was
debate against Ronald Reagan.
for
absent,
but Anderson did not sufficiently clarify his message to
keep any momentum running toward him.
a
His wry line from
debate with Reagan for the Iowa caucuses that
could
only
balance the budget and spend
defense
by using mirrors was now
nothing
to
tired.
Reagan
trillions
Anderson
reinvigorate a campaign that had reached
207
on
did
a
in Massachusetts a half year before.
high point
the
was
Reagan
more
among
concern
deflecting
successful,
and
26
by
points
winning
moderates
Indeed,
in
women,
particular, that he was too bellicose.
By
some in the Reagan camp began
mid-October,
to
worry if
the Governor might lose the election, and their
concern
caused
participating
Carter.
in
reverse
a one-on-one
President
with
debate
on
position
his
At that time, Reagan's lead was stable, but not
advisors
Reagan's
growing.
running
to
Reagan
in
wanted
the Governor 's direction,
momentum
keep
to
decided
and
a
debate with Carter would be less harmful than no debate.
They
feared
hostages
Carter
shortly
presidential
release
might engineer a
before election day,
of
the
thought
and
a
debate would minimize the effect of such a
release. Finally, Reagan's advisors wanted him to put to
he
that
as best he could repeated public concern
27
advisors'
Given his
into a war.
the U.S.
get
would
rest
concerns
Reagan
position
of
reporters'
stepped
sequential
questions
back
from
one-on-one
about
his
round-robin
debates,
his own criticism
skirted
of
League as recently as September 19 for proposing a
debate between himself and Carter that
29
28
Carter.
to
debate
agreed
and
Anderson,
on-one
208
the
one-
excluded
the debate
Carter won the formalities of
President
one-
He and Governor Reagan debated each other
battle.
on-one over the major networks.
But
Reagan had a
televised on October 28th,
and left a
incumbent underdog,
a
as
a
debate
"Hemmorhaging"
corpse.
the term Carter pollster Patrick Caddell would
use
he reviewed poll results the weekend preceeding
the
Reagan won all but five states and
the
was
as
debate,
lead but not
the
enterred
Carter
one.
commanding
the
Until
lost the debate.
Carter
When
election.
District
of
results
the
debate,
after
the
presidential
were painfully
in.
Some
a week
Columbia
Carter
supporters, at least partially as a result of his debate
performance, abandoned him for Reagan or Anderson.
to
As
the formalities of the debate,
to the wishes of the the major party
bowed
League
the
candidates.
format
Carter and Reagan both wanted a more debate-like
than
six
the
debate.
Carter's
between
rebuttals
acceded,
for
question format of
in
aides,
the two
Anderson-Reagan
the
particular,
candidates.
pushed
moving
the
debate
as close to
election
The League facilitated the contending
30
negotiations.
possible.
209
side
Reagan's
agreeing to a number of rebuttals in
for
exchange
day
as
camp's
In this phase of the general election, Anderson was
the
and
Network,
and
Carter
Anderson
His
monitor.
immediately
a half-hour of tv time
major
the
the Carter-Reagan debate to rebut
nominees.
percent,
tv
whom he watched on a
Reagan,
News
between
to responding to debate comments
purchased
following
party
Cable
the
He was consigned to
loser.
big
standing in the polls was 8 to
9
well below the 15 percent minimum requirement.
Without a dramatic debate confrontation to highlight his
differences
significant
campaign
gesture
the
outside
other
no
Carter and Reagan and with
from
debate,
Anderson's attractiveness and credibility as a candidate
waned.
Nevertheless,
one should not over-hastily conclude
candidates'
League discretion on participation in
that
debates, due the Aspen Decision, meant that Anderson was
shabbily,
treated
exclusion
from
the
or that voters were disserved by his
Carter-Reagan
debate.
Anderson
carried his candidacy quite far in 1980, and he received
ample coverage by broadcast journalists.
an
opportunity
major
to measure an independent
The public had
against
party candidates by following his campaign.
210
the
And,
because
precisely
opportunity
an
also had
major party candidates against each
the
measure
public
the
importantly,
League
the
had
to
other
over
discretion
invitations as a result of the Aspen Decision.
the
In
presidential
1980
the
helped
Decision
major
election,
the
Aspen
and
candidates,
party
accommodated significant third party candidates with
among
following
said
it would.
cut
It enabled the public to see
fringe candidates out of
televised
both
televised
debates among the major party candidates
political
it
decision
detractors
way its advocates and its
the
worked
The Aspen
the middle class.
a
and
candidates
debates unless the candidates were substantial. Benjamin
Hooks's concern that Aspen interpreted Equal Time
"into
seems quite right if one wishes to sustain an
oblivion"
egalitarian position on political discourse. But, such a
position meant no debates.
In the hurly-burly of politics,
put
a lot of power in the hands of
Voters.
The
presidents,
the Aspen Decision
the League of
League then had to wrestle with
major
party
presidential
public opinion.
211
Women
incumbent
nominees,
and
Political
importantly
advertisements
in
Equal
presidential election.
Washington
that
or
Time
tv
rulings
The U.
S.
spots
for
figured
the
Court of Appeals
rejected arguments from the Carter
political
commercials,
1980
sponsored by
in
campaign
independent
political groups supporting Reagan but separate from his
campaign,
and
violated Equal Time,
the
the Fairness
FCC's personal attacks
law.
The
Doctrine,
commercials
featured pictures of Carter and used his voice.
The FCC
had
ruled Carter was not eligible for Equal Time due to
the
commercials.
decision
The
(Buckley v.
FCC cited a 1976
time
Court
Valeo), which held that as part of
campaign contributions,
commerical
Supreme
they
independent groups buy all
wanted to
advance
a
the
candidate
31
without
triggering
Equal
Time.
The
Appeals
Court
upheld the FCC ruling.
In July,
surpress
letter
1980,
Carter had tried unsuccessfully to
the commercials.
to
The Carter campaign
700 television stations warning
sent
them
possible
violations of the Equal Time law and
Doctrine
if they broadcast the ads.
a
about
Fairness
As in their briefs
all the way up to the Appeals Court, the Carter Campaign
wrote
really
station managers that the independent
not independent of Reagan,
Equal Time.
212
group
was
so Carter should get
Appeals' Court decision that
C.
The D.
significant of all
the Equal Time decisions in the
1980
supporters
went
was
Time
spent an estimated
to
The
advertising.
camp
Reagan
$60
amount
in his behalf,and a considerable
million dollars
it
most
Reagan's
election.
of
the
Equal
outside
fell
commercials
political
was
meticulous to keep independent groups independent of the
contributions
as
enabling
decision
Court
there
was
Supreme
political
unlimited
by individuals and organizations as
no coordiation between
organization
and/or
1976
comply with a
so as to
campaign
actual
and
the
campaign
the
long
individuals
receiving
the
32
money.
Equal
Had
commericals,
the
Time
attached
to
political
effect would have been to repressive:
there would not have been as many.
213
2
The
next
major change in Equal Time
the FCC responded to a petition to
At that time,
1983.
alter Equal Time,
Geller,
Esq.,
an
which had been submitted by Mr. Henry
interest
expert on the FCC's public
responsibilities,
and
by the National
Association
and
the
Radio Televison
News
Broadcasters
Association.
Geller
broadcasters
to
without
with
candidates
host
University's
FCC
the
petitioned
triggering Equal Time.
Duke
in
occurred
Directors
enable
to
debates
themselves
was
associated
Geller
Center for
of
Public
in
Policy
Washington, and had just completed a study, which showed
that
in many state elections broadcasters were the best
parties to host candidates'debates.
long
time advocates of
The NAB and
RTNDA,
increased broadcaster discretion
in political programming, supported Geller's petition.
The
FCC issued a Notice of
the Geller's petition,
broadcaster-sponsored
Inquiry in response
to
which requested FCC approval for
candidates'
debates.
The
FCC
received
comments from interest groups on both sides of
the Equal
Time issue, including, among others, the three
the League of Women Voters, John Anderson and
33
the United Church of Christ.
networks,
214
The
formal
fight
broadcaster-sponsored
in this FCC
decision
candidates'
debates
differing conceptions of FCC authority.
to
allow
rested
Did Congress or
the FCC have the authority to change the Equal Time
on
so
important
a
candidates
debates?
television
industry
the
political
Geller,
programming
the NAB
RTNDA,
and
as
a
authority
to
make specific alterations in Equal
such
as
the
petitioners'
with
request
debates.
as
the
charged
FCC
body
law
issue
argued that Congress had
regulatory
on
discretionary
for
Time,
broadcaster-
Opponents of the
1983
sponsored
candidates'
decision,
including John Anderson and the United Church
of Christ,
contended otherwise, asserting that Congress
broadcasters
had to pass a new Equal Time law to enable
to sponsor candidates' debates. They said the Equal Time
law
specifically excluded broadcaster-sponsored debates
due
concern
to
the
maintained
about
FCC
political
had
no
They
favoritism.
to
authority
exempt
broadcaster-sponsored debates from Equal Time.
This
proponets
successful
Congress
before
legerdemain
by the part of
Geller
the
of broadcaster-sponsored debates is worthy of
While it is certainly
politics.
had
true
always intended that the FCC and the
it to have considerable
communications
law,
it
latitude
in
that
FRC
enforcing
is equally as true that Congress
did not intend to exempt candidates' debates
Time.
and
from
On the precise issue of candidates' debates,
215
Equal
the
League,
Anderson
and the United Church of Christ
were
right,
technically. But, metaphorically and politicaly,
Geller
et. al. won the day with expansive arguments
FCC authority and
There
were
congressional risk-taking in 1959.
can be no doubt the petitioners'
expansive.
Inquiry,
In
proponents
repeatedly
authority
debates.
response
of
to the FCC's
rule in
Aspen,
Decision
enable
favor
of
The
due
FCC
broadcaster-sponsored
it is true, was closer to the original
had
'59 exemptions.
made a hash of
"use" in
order
The
to
the
Aspen Decision had come under criticism by
to the artificiality of
candidates'
candidates
of
debates
third-party debates like those sponsored by
League.
1983
Notice
broadcaster-sponsored
1929 version of Equal Time than the
Aspen
argruments
cited the Aspen Decision as grounds for
to
on
debates,
the
particularly
League
hosting
presidential
where major party candidates in fact
called
the shots. Yet, the Aspen Decision carried the day.
By
citing
Aspen
so
expansively,
the
broadcast
industry promoted the regulatory authority of the FCC in
order
to insulate itself from congressional scrutiny on
the candidates' debate issue. As long as decision-making
on candidates' debates took place inside the FCC and not
in
Congressional
hearing rooms,
the
industry
had
a
better chance of gaining control over the sponsorship of
216
concerns about the impacts of
congressional
with
deal
to
having
without
debates
candidates'
television
34
news and political programming on elections.
The
and
enlarged
with Geller et. al.
agreed
FCC
The
debates.
candidates
fide news events,"
No
because
broadcaster-
such as the League,
organizations,
requirements
on
bona
of
rebroadcasts
third
with
to broadcast
Time
Equal
FCC also lifted
The
debates.
candidates
of
exempt from Equal Time.
and as such,
would broadcasters have to work
longer
party
broadcasters
were "on the spot coverage
debates
sponsored
on
that
FCC ruled
could sponsor debates themselves,
FCC
discretion
broadcasters'
extended
The
debates,
candidates
reversing itself on two earlier rulings.
FCC employed a number of arguments to
The
broadcaster-sponsored candidates' debates.
of
First,
the
asserted Congress had given the FCC power all along
FCC
to
favor
in
rule
to
authority
legitimate
its
support
risk
on
broadcasters'
exemptions
exemptions,
news
to Equal Time.
the
FCC
Second,
judgement
by
FCC
the
Congress had decided to
that in 1959
asserted
one.
this
like
decisions
make
take
creating
Congress authorized the 1959
on
wrote,
the
that
conviction
broadcasters would use their newly gained discretion
produce
a
to
more news and political programming even if the
exemptions
opened
certain candidates.
the door for broadcasters
Third,
to
favor
the FCC maintained Congress
217
had exempted candidates' debates from Equal Time
if
the
either
FCC chose to classify
candidates'
in 1959
debates
"bona fide news interview" or as "on the
a
of bona fide news events."
coverage
as
spot
The FCC cited
the
legislative history of Equal Time to support these three
FCC
positions.
Fourth,
the
including
rulings
that
to
challenge
the
Aspen
cited
rejected
court
precedents,
Shirley
Chisholm's
which
supported
Decision,
in political programming
36
FCC latitude in rule-making on Equal Time.
and
of
the
discretion
broadcasters'
By
1983,
freedom
regulation had denied them.
a
measure
greater
which
information,
political
presenting
some
finally won
broadcasters
Ironically, broadcasters won
liberties
of their free speech
by
promoting the regulatory authority of the agency charged
with policing them.
Public
partisan
interest
advocates
emerged
though somewhat less manipulatively
and the broadcasters.
equally
as
adept
as
Anderson believed he
Mr.
Geller
had
more of a chance of reaching voters with
decision-
making resting with the League. The League had a greater
chance of
extending its influence and promoting its
fundraising
with
candidates'
218
debates
in
its
own
metier
rather outside its domain.
of the League in 1983,
Mrs.
Dorothy Ridings, head
let everybody know her
feelings
about the decision. "The FCC has left the American voter
even
more vulnerable to the influence of
the television
networks on campaigns and elections. Putting the debates
in
the hands of the broadcasters
corporations,
enviornment,to
allows
profit-making
competitive
37
The
D.C.
make as well as cover news."
which
operate
in extremely
Appeals Court upheld the FCC's ruling against challenges
38
from the League in 1984.
219
3
Equal
FCC
the
expanded on law,
courts
the
and
both
In
Time rules without consulting Congress.
decisions,
alter
to
its own discretionary authority
boosted
FCC
the
First,
several themes emerge.
In conclusion,
supported the FCC's interpretations. In the odd workings
of
broadcasters won a free speech
regulation,
victory
through supporting FCC's discretionary authority.
the
Second,
on
FCC moved toward a libertarian policy
political
broadcast
policy.
majoritarian
programming and
away
from
These rulings signal the
a
ebbing
tide of majoritarian broadcast policy within the FCC. At
time
same
the
the FCC promoted
freedom
greater
for
broadcasters, it also began to claim more discretion, or
"independence"
for itself. While this independent course
did not excessively irritate Congress in the
would
this
not be the case in the eighties
market-oriented
seventies,
even
with
Republicans seizing the White House and
controlling the Senate.
Third, the FCC showed reticence as late as the midseventies
jobs.
to
to enable television journalists to do
By requirying a third party,
host
candidates' debates,
220
the
their
such as the League,
FCC
exhibited
the
abiding
concern,
the twenties,
and
tv
and
recently
same
disproportionately
shape
as 1983
of
enjoyed
Fourth
is
regulation.
public
opinion.
It
the
The
hosting candidates'
election
was
only
as
the
debates
that
historically.
perverse
public
deregulatory actions.
and
influence
that the FCC granted broadcasters
priveleges
newspapers
since
that mass communications media like radio
would
results
which shaped regulatory policy
effect
of
majoritarian
benefitted
from
these
By excluding candidates'
news conferences from Equal Time
debates
obligations,
the
FCC enabled more people to hear and to see more poltical
programming.
Fifth
is
limitiations
networks
difficult
inherent
anachronisitic
marketplace
the
and
in
question
Equal
unworkable
in
Time
the
whether
make
the
modern
media
have chipped away at Equal Time so
Dill
first
candidates in 1927.
Equal
Time
1927,
1933 and 1959.
proposed equal
the
thoroughly
technology and
media marketplace have changed fantastically
Senator
law
or whether major party politicians and
that it has become eviscerated. Broadcast
the
of
since
opportunities
for
The spectrum scarcity rationale for
was much weaker by 1975 and
On these grounds,
1983
than
in
it would seem
that limitations inherent in Equal Time suggest that the
221
law be retired.
But,
it is also true that the
amendments and the
'75 and
of
political
congressional
'83 FCC rulings on Equal Time
had their own perverse effect.
flow
1959
While they increased the
programming
to
the
majority
of
Americans by granting broadcasters their first amendment
rights,
they
also
limited the free speech
minor party candidates.
rights
of
The minor party candidates lost
standing for
their
free speech rights while major party
politicians
assured
broadcasters
won public esteem for their political
themselves
tv
exposure
and
and
public affairs programming.
In sum,
in the seventies,
to ebb on Equal Time.
would
attempt
majoritarian tide began
In the eighties, this ebbing tide
to carry away the Fairness
well.
222
Doctrine
as
CHAPTER SEVEN
THE EBBING TIDE OF FAIRNESS
0
223
A deregulatory tide pulled at the Fairness Doctrine
by the mid-eighties. A libertarian position on broadcast
news and public affairs programming won more credence as
of deregulation and competition in
proponets
the
mass
media marketplace became the majority on the the Federal
Communications Commission. By 1985,
on
the FCC was launched
Doctrine,
wholesale inquiry into the Fairness
a
by
initiated
review
Mark
Fowler,
the
of
Chairman
a
Commission.
In
February,
Fowler looked out on a
group
the
the FCC's Hearing Room to testify on
in
assembled
1985,
Fairness Doctrine. For Fowler, the panels were something
of an accomplishment.
Through his efforts the burden of
away
on broadcast news programming was shifting
debate
from proponents of content regulation. Discussion of the
Fairness Doctrine focussed more on why government should
impose
the Fairness Doctrine on broadcasters
toward
a
government
airwaves.
To
proponents
had
for
inviting
adversaries
written
be
a
role in fostering access
sure,
certain
less
and
to
the
Doctrine
Fairness
circularized a memo criticizing
Fowler
of
their
disproportionate
to the panels.
number
They noted the majority
comments supported the Fairness
224
Doctrine,
of
and
fate. Phyllis
opposed the FCC's ongoing Inquiry into its
Schlafly,
proponent,
Doctrine
Fairness
and
would shortly tell Fowler two days
were
hearings
of
time Reagan supporter
long
a
"a
deck
stacked
designed
for
on
the
1
and
Doctrine was shifting,
Fairness
momentum
the
But
results."
predetermined
it was
moving
in
Fowler's direction. Things had begun a year before.
a
The
Doctrine.
in
posture
FCC's
cautious as it was provocative and
the
on a note of caution,
the
Fairness
the
Inquiry into the future of
of
Notice
issued
riding a deregulatory wave, the FCC
In 1984,
was
Notice
as
First,
predictable.
FCC noted that it was merely
inquirying into the possibility of altering the Fairness
The FCC explicitly stated it would not repeal
Doctrine.
the
Fairness Doctrine on the basis of responses to
Notice.
itself
Second,
clearly
Doctrine
taking a provocative tack, the Notice
leaned
posing
by
the
the
toward repeal of
queries
that
Fairness
indicated
FCC
with
the
terms
of
participated fully in
the
current deregulatory policies dating back to
2
seventies. It fit the general drift
the
willingness
to
controversial
predictability,
consider favorably disposing
Third,
regulation.
the
Notice
FCC's
225
in
Notice is worthy in
The
requested comments on the role of
in
the
Doctrine
serves its
its
as
formal
critics
and actually represses the flow
recurrently allege,
to
whether
and
avowed
whether it does not work,
or
FCC
This is straight-forward enough.
and news.
Fairness
purpose
access
public's
It
Doctrine
FCC was doing no more than querying
the
Here,
The
the Fairness
inhibiting the
or
promoting
controversy
particulars.
major issues facing regulators.
the
reflects
several
of
news and information to the public.
The FCC inquired if technological innovations in tv
the
on
channels
the
specifically
programming,
news
diversity
public,
made
of
news
the
impact
and
of
new
information
Doctrine
Fairness
reaching
the
obsolete.
Did these new channels undermine the spectrum
queried
whether
electronic
the
It
rationale for the Fairness Doctrine?
scarcity
the coming convergence
of
print
media with videotext and teletext
possibility
of
Fairness Doctrine rulings
also
and
portended
on
new
forms of electronic print.
The
FCC queried whether
jurisprudence
supported
the
current
Fairness
first
Doctrine.
wanted to hear whether first amendment law had
226
amendment
It
changed
so significantly since the mid to late forties, when the
Fairness
to
Doctrine was originally promulgated,
make
current enforcment a violation of first amendment rights
3
of broadcasters.
Lastly, the FCC inquired about
had
was
query
In many ways,
authority to do so.
the
most
telling.
Congress
or whether only
the Fairness Doctrine,
alter
its own authority to
signaled
It
the
final
over
conflict
whether the Fairness Doctrine was a law or a regulation.
If
the Fairness Doctrine were a
as the responsible executive agency, could do with
FCC,
it
the
then
regulation,
as
it pleased.
almost
certain repeal.
instead a law,
were
Such agency discretion
But,
if the Fairness
certain
Doctrine
then only Congress could authorize
any change in the controversial statute.
almost
mean
would
retention
was
assured.
In that
The
case,
House
Democrats were solidly behind the Fairness Doctrine, and
as recently as 1984,
the Republican Senate had rejected
any substantive alteration in the Fairness Doctrine.
So,
Aspen
the
issue
Decision
was engaged.
enabling
In a reprise of
the
broadcaster-sponsored
candidates' debates, proponents of the Fairness Doctrine
would argue that only congress could define the Fairness
Doctrine, and that the FCC could only properly implement
227
pluralistic
included
as
public interest groups,
organizations,
Motors,
as
culture
the
big
like
business
as
were
Proponents
will.
congress'
some right wing advocates,
a
diverse
Proponents
whole.
labor
and
and
religious
and
General
the NAACP,
and the
Mobil
American Civil Liberties Union. Opponents would say that
the
FCC had the authority.
television
major
Opponents would include the
networks,
news
professional
organizations, and newspaper publishers. First Amendment
lawyers and scholars argued both sides.
A
closer
look
at
the
comments
responses, generated by the Notice, shows
and
written
the complexity
of issues surrounding the Fairness Doctrine today.
228
Does
the Fairness Doctrine accomplish its
intended
purpose?
The
query,
first
or
whether
not
the
Fairness
Doctrine actually provides the public with controversial
news
and
reasonable opportunities
programming,
turned
and
to
news
prompted vehement disagreement. Contention
on
Doctrine;
to respond
the
"chilling
effect"
of
the
Fairness
whether the doctrine discouraged tv
that is,
radio newsmen from covering stories and
developing
editorial views as fully as print journalists.
Radio and tv journalists and news managers said the
Fairness
They
Doctrine limited controversial news
claimed
chilling
the
too
In
effect.
news
organizations,
that
Fairness Doctrine
the
case
has
a
of
large
contended
businesses,
Fairness
money
that
most radio operators
burdensome.
were
Due to the
Doctrine complaints.
the
Fairness
coverage of controversial issues.
was the message.
229
time
news managers
Doctrine
small
responding
and could not afford to cost of
said
to
Smaller radio broadcasters claimed
involved handling complaints,
reporters
news
complained
managers and reporters
that the Fairness Doctrine was economically
to
pervasive
much management time was taken responding
Fairness complaints.
They
coverage.
or
and
discouraged
Once burnt, twice shy
the
silver
the
regulators,
Referring to FCC
government."
of
"a weapon on the backpocket
Doctrine
Fairness
called
Sevareid
CBS news commentator Eric
Former
haired former network commentator warned that "people in
interest than the press.
public
"The press doesn't draft
you or imprison you or execute you,"
well
commanding,
the
prophesized,
and
the
to
a greater danger
were
disposition"
officious
voice.
Sevareid said in
Someday,
Sevareid
FCC would drop the Fairness
Doctrine
modulated
"the
a new generat ion of reporters would be free of
their
cancerous bit of awareness in the back of
little
a
heads" concerning government oversight.
Fairness
advocates denied
Doc trine
chilled
radio
advanced
several
arguments.
Charles
attorney
more
They
was
economic.
and
the
representing the Democratic National Committee
asserted media economics were
at the panel discussions,
far
The first
Fairness
news.
former FCC Commissioner
the
Ferris,
television
and
Doctrine
the
controversial
limiting
in
important
issues.
As
an
the
industry
coverage
of
dependent
on
advertising revenues, Ferris said broadcasting presented
is
material
that
largest
possible
designed to be
audience.
230
unoffensive
Broadcasters
to
the
shunned
Fairness Doctrine,
scholar
Ferris said. A
supplemented
concentration
to
protect their revenues not due
to
controversy
the
first amendment legal
this argument.
He said
economic
in the media threatened the diversity
of
the news and information the public received.
Reed Irvine, a conservative critic of
head
of
Accuracy in Media,
award-winning
NBC
which
documentary
grounds,
supported these views.
such
"oligopoly,"
an
public received only
would
degenerate
had
on
the media and
challenged
Fairness
Doctrine
Broadcasting media
according to
an
Irvine,
that
is
the
"liberal" news. Television stations
into "political
tools"
without
the
doctrine, Irvine said, echoing a position that Mobil had
advanced in its written comments.
A
was
second argument supporting the Fairness Doctrine
the
that
operative,
Fairness
Doctrine
only minimally intrusive.
a
referendum
campaign,
who
An attorney,
desposits
had represented advocates for beverage bottle
in
co-
remedial,
was
asserted
bottle bill advocates
Fairness
the
to
get
media
Doctrine
enabled
coverage
they could not have acquired otherwise due
saturation
advertising
against the referendum
by
to
the
beverage
industry. Phyllis Schlafly a promiment opponent
of
Equal Rights Amendment and the Supreme
the
Court's
decision on abortion, said the Fairness Doctrine enabled
her
to negotiate news coverage on these
231
issues,
which,
she asserted,
point
"liberal"
ERA,
was
the broadcasters routinely covered from a
"Of all the coverage on
of view.
95% of it on tv was pro-ERA and only 5% of it
over
against
Fairness
the
If it weren't for
the ERA.
we couldn't have gotten even that measly five
Doctrine,
percent,"Shafley
said.
A B'Nai B'rith attorney
called
diminishing
racism
the
Fairness Doctrine important in
and
anti-Semitism.
especially
said the Fairness Doctrine
was
important in small towns with few radio
and
He
The Fairness Doctine also
often no television stations.
enabled
the
B'Nai B'rith to speak with the
major
networks
about news coverage of the Israeli-Lebanon war, he said.
Charles
unintrusive
out
and others pointed
Ferris
aspects
of
the
remedial,
Doctrine.
Fairness
The
former FCC Commissioners remarked that the Doctrine only
required
broadcasters to do stories over or to
provide
to
interest groups in their communities.
Of
time
the
11,000 broadcasters in the country, only 25 had received
Fairness
Doctrine
complaints in
the
early
eighties,
according to the public interest advocates' figures. How
could broadcasters possibly call the doctrine "chilling"
with so few cases? And, on a
ACLU
final note, David Rubin, an
attorney pointed out that journalists' own ethical
standards
demanded
more
of
Doctrine.
232
them
than
the
Fairness
They
arguments.
the
that
denied
squarely
these
rebutted
opponents
Doctrine
Fairness
Fairness
Floyd
Doctrine was minimally intrusive or co-operative.
bottle bill
representing
attorney,
that
complained
bottle
interest
the public
blasted
attorney,
NBC's
Abrams,
Abrams
advocates.
had
bill advocates
used
the
Fairness Doctrine to respond to advertisements, not news
coverage or broadcast editorials.
for
FCC to force broadcasters
the
bill
bottle
Nixon
silence
sixties
a-e
casts.
Abrams
in their news
a
Kennedy
He cited examples of efforts in the
to manipulate
Administrations
the. FCC
and
to
the
early-
to intimidate the Washington Post
during
right-wing radio broadcaster in
He noted a
failed effort by
984 and 1985 to use the Fairness
Doctrine
According to
Abrams,
Doctrine gave a license to interest groups
harass broadcast journalists.
233
the
to
CIA plot to
ABC news coverage of an alledged
aS9nate,- a former agent.
Falrness
to
already
e~Watergate scandal.
'CA~-An
time
to provide
the commissioners that the doctrine was highly
intrusive.
and
wrong
proponents when broadcasters were
covering the ballot issue
reminded
He said it was
Doug Ginsburg,
the
to
a Harvard
Law
attorney
for
enabled
B'Nai
news
on
broadcasters
of
Lebanon.
to
coverage
with
Isreali
1982
showed
he asserted,
This,
Doctrine
deals"
the
of
of
B'rith
B'Nai
"private
make
Office
Fairness
the
that
testifying
B'rith
the
at
leave
ripped into the
and Budget,
Management
invasion
on
professor
School
how
intrusive the doctrine was in practice.
his
overplaying
Perhaps
broadcast
Quello challenged Ferris on whether
James H.
are
economics
Quello
becoming a FCC Commissioner,
radio news manager. Quello said
an
advocate
fluoridation
news
the cause of non-controverial
public affairs programming.
before
Commissioner
FCC
hand,
remarked that years
he had worked as a
he had granted an antito
opportunity
his
rebut
editorials advocating floridation.
station's
Criticism
Quello
and confusion were the short term results. First,
said he received a sheath of criticism from medical
dental
experts for confusing the public.
he
admitted
public
issue.
by
thought
Finally,
editorializing
the station
was
editorials on both
carrying
he
entirely
said,
and
the
and
Quello
Then,
misleading
the
of
the
sides
station
to avoid controversey
dropped
in
the
future. In a word, Quello said the Fairness Doctrine and
not the broadcasting economics limited editorials.
234
Fairness
the
made
innovation
technological
Has
Doctrine obsolete?
FCC
for
rationale
sustaining
authority
licensing
At the
and for its Fairness Doctrine policy.
generally
and
force
driving
the
is
scarcity
Spectrum
1985 Fairness Doctrine hearings and in written
comments
of
Inquiry,
response
submitted
in
partisans
engaged
technological
the
innovation
Notice
the
to
issue
on
spectrum
scarcity
opponents asserted America is an
others,
Among
include
technologies
technologies.
television
communications
stations as well as to newer
technologies.
"information
to the number of radio and
in part,
rich society" due,
television
along
As a rule, broadcasters and Fairness
predictable lines.
Doctrine
of
impact
the
of
cable,
these news communications
and
satellite
microwave
Due to the increased number of radio
and all
the new communications
technologies,
asserted original spectrum scarcity rationale
4
the Fairness Doctrine was now anachronistic.
they
On the other side of the issue,
other
groups
interests,
to
ideologies
ranging
enthusiasts
a wide variety
from single
for
issue
distasteful
for
of
interest
right
to such major corporations as Mobil Oil
235
and
wing
and
liberal organizations as the American Civil
established
innovations did not weaken
technological
Broadcasters
Doctrine.
The
said.
they
power,
much
too
have
spectrum
the
Fairness
the
for
rationale
scarcity
that
asserted
They
disagreed.
Union
Liberties
Fairness Doctrine is still needed to provide a flow of a
diversity of points of view to the American public.
is
What
these partisans,
That
these
about
of
positions,
assertions
not so much the predictable
is
course,
interesting
of
ideologues, and attorneys.
advocates,
is all quite well rehearsed.
What
the
is more to
is the way contending camps approach the spectrum
point
issue
scarcity
technology
whether
of
Fairness Doctrine obsolete.
has
Fairness Doctrine opponents
look
at the flow of news and information to the
from
the
point
of
view
of
media
the
public
marketplace.
Doctrine proponents tend to look at the
Fairness
the
made
issue
with a view to the monopoly individual broadcasters have
over scarce licenses.
Fairness Doctrine opponents argued an abundance
radio
broadcast
Fairness
and
television
Doctrine anachronistic.
newer
alphabet
(LPTV,
MDS,
soup
of
channels
Quite aside from
communications
SMATV, DBS, VCR, etc.),
236
made
of
the
the
technologies
there are far more
and television stations than there were
radio
Doctrine became FCC
Fairness
the
when
in
1949
In
policy.
a
competitive media marketplace, with these stations vying
for listeners,
innumerable
has
public
the
Fairness Doctrine opponents claimed
opportunities
to
news,
hear
information and a diveristy of points of view.
for
rationale
show
alone
Numbers
that
the
spectrum
scarcity
There
the Fairness Doctrine is outdated.
and
are nearly twelve times as many television stations
as many radio stations in 1983
four
times
were
in 1950,
adopted.
By
there
than
the year after the Fairness Doctrine was
the average American could
1983,
receive
atleast five or more channels on his television set, and
5
two-thirds of the country could receive nine or more.
The
following
tables show the
increase
in
number of broadcast channels.
Table 1--Number or Radio Stations
Total
Standard (AM)
AM Commercial
AM Educational
FM
FM Commercial
Educational
FM
Source:
Notice of
1950
1970
1983
2,867
2,086
6,889
4,292
4,276
25
2,597
2,184
413
9,283
4,723
4,679
44
4,559
3,458
1,101
*
*
781
733
48
Inquiry, p.
237
20323
the
Table 2--Number of Television Station
Total
Commercial VHF
Commerical UHF
Educational VHF
Educational UHF
Source:
Notice of
98
98
862
501
176
80
105
1983
1,140
536
321
112
171
20324
Inquiry, p.
scarcity rationale for the Fairness
spectrum
addition
the 10,000 odd
to
radio
the
Doctrine.
television
and
in 1983 there were in the United States, 6,400
stations,
cable
1970
new communications technologies undermine
The
In
1950
systems,
television
serving 29 million homes.
(STV)was in place
Subscription
in seventeen markets.
five cities had microwave
hundred
and
serving
a half million subscribers.
service,
(MDS)
Due to a
One
1983
FCC
ruling permitting MDS operators to operate multi-channel
systems
(multichannel
twenty-eight
Direct
satellites
(DBS)
could provide as many
Master Antenna Systems
apartment
anywhere
from
eight
more channels are available to MDS
broadcast
channels,and
MDS),
(SMATV),
buildings and hotels,
as
provide
128.
to
users.
five
Satellite
primarily serving large
enjoyed nearly 300,000
subscribers in 1984. There were 12 million videocassette
recorders in American homes by the mid-eighties.
238
one adds print sources to
If
and the new communications technologies,
information
cable
broadcasting,
the amount
and
There are 1,701 daily
is staggering.
of
the
and 10,809 periodicals in
weekly newspapers
6
In
other words and quite aside from the
United States
6,784
new media, there are roughly six times as many radio and
television stations as there are daily newspapers.
Many
of those newspapers depend on one dominant wire service,
Associated
the
service,
Press,
wire
and one financially-shaky
Neither of
United Press International.
these
wire services is under any Fairness Doctrine obligation.
Comparison of radio and television with
in
selected
cities
is instructive in
spectrum scarcity issue.
newspapers
approaching the
It is invariably the case, for
example, that communities have more television and radio
stations than newspapers.
For example, Los Angeles, the
second largest broadcast market in the country, supports
95
radio and television stations and 3 daily newspapers.
Pittsburgh,
sustains
daily
the
twelfth
its
television
newspapers.
Sixty-seven
radio
and
two
television
the twenty-second tv market,
news as does one daily paper.
Austin,
news and information from 51 radio
stations
market,
82 radio and television stations and only
stations provide Hartford,
with
largest
and from one daily newspaper.
and
Texas gets
television
Austin is
eight-second television market in the United States.
239
the
News
programming also increased with the explosion
Regularly scheduled network
in the number of channels.
television news accounted for
of network tv programming per week in 1983.
and
hours
sixty and one-half
a half times as much news as the
This is two
twenty-four hours
of network news programmed in 1981 and nearly four times
the
sixteen hours programmed in the late
sixties.
For
example,
CBS, the dominant network, telecast nearly two
thousand
hours of regularly scheduled news in 1983,
from
1969.
approximately 550 hours in 1980 and 400 hours
television
Local
boosted
stations
their
programming,but not as dramatically as the networks.
1982,
there
were,
on average,
ten hours
of
up
in
news
By
locally
produced
news programming per week compared with eight
in 1971.
Independent television stations also came
on
line in the seventies and early eighties, providing more
local news.
hours
7
1974.
8
By the early eighties,
a week to local news,
Ownership
of
independents devoted
up from three hours
broadcasting is another factor
in
that
requires attention in discussing spectrum scarcity. Even
if more channels, more video recording paraphernalia, and
the extensiveness of news programming have increased, it
240
does not necessarily follow that the sources of news and
opinion have expanded correspondingly. However, there
sufficient diversity of ownership to enable the
citizen
to
to see or hear
average
viewpoints.
owned television stations
independently
example,
different
is
For
have
8
expanded
considerably.
Of
UHF television stations,
and
half are managed by individual
It is true, of course,
licensees.
networks
the eleven hundred VHF
that the three major
(ABC, CBS, NBC) still reach a dominant share of
the television audience. ABC, CBS, and NBC each own five
stations,
hundred
all in major cities.
television
9
than broadcasting.
affiliates.
concentrated
Each has more than
Proponents
of
Cable
the Fairness
is less
Doctrine
spectrum scarcity is still a problem,
two
argue
that
because there are
more applicants for broadcast frequencies than there are
available.
to
broadcasting,
necessary,
the
Due to this limitation, which is sui generis
they say.
individual
the
Fairness
Again,
licensee,
Doctrine
is
still
the unit of measurment is
not the media marketplace and
the broadcast news available to the public.
241
speaking of the media
When
proponents say that the continuing
Doctrine
of
of
broadcasting,
three
the
Fairness
marketplace,
major
domination
networks
Doctrine
Fairness
sustaining
in
particular,
require
regulations.
Andrew Schwartzman, representing the Media
Access
pointed out
Schwartzman
broadcasting
that
of
source
that the continuing success
will
television
continue to
be
to
the
Henry Geller, an
American public for some time to come.
this
supported
on television news programming,
expert
dominant
the
programming
radio
and
of
capital indicated
in attracting investment
broadcasting
issue.
remarked most cogently on this
Project,
view in his written remarks. Geller pointed out that the
indicated
high prices commanded for television stations
scarcity.
Cable
under
attack.
puncture
other
television
came
technologies
The National Rifle Association tried
cable
the argument about a
conservative
advocated
the new
and
critics
of
the
Like
cornucopia.
the
media,
to
NRA
assure
retention of the Fairness Doctrine to
its representatives and members could request reply time
if
broadcasters covered the NRA's issue,
bear arms,
The
NRA
American
the right
to
in their news programming and/or editorials.
pointed
homes
out that broadcasters
reach
while cable reaches at best
98%
just
of
more
than a third. To make matters worse, the NRA, noted that
242
the
is only
because it
population,
greatest
the
in
news,
program
does
cable
were
cases
recently
television.
that major cities are being wired for cable
And,
with
penetration was highest in the areas
broadcasting
specifically C-SPAN and Ted Turner's Cable News Network,
the
on national issues rather than local
much
pointed
most
that
out
wanted
Mobil
show
channels
not news and public
affairs.
that the
newer
increased
number
in
and channels hardly meant an increase
systems
and
to
affairs
public
technologies,
are
applications
to
As
programming.
Fairness
Mobil
ones.
cable
of the
programmed entertainment,
too
focussed
complained that the programming
NRA
of
news
newer
the
proponents argued their use and
untested,
in
future,
the
best
at
10
speculative.
wrinkle in the spectrum scarcity
The
both technological and
is
it
that
argument
On
economic.
is
the
economic grounds,the issues of oligopoly and barriers to
and so forth,
entry
stations.
broadcast
what
animate
money determines the scarcity
of
These concerns about oligopoly are
ideologues like Reed Irvine
Phyllis
and
Schlafly to condemn the "liberal" media,or in Schlafly's
phrase,
"The
Big
Three TV
"exercise
Networks,"which
monopoly control over news and information so vast
are
a
Fourth
thoughtful
Branch
of Government."
and articulate level,
And
this is
on
a
they
more
concern
the
that informs Schwartzman's and Geller's remarks that the
high
prices
commanded by television stations
243
in
major
markets indicate the scarcity
television
frequencies
more
If
outlets.
broadcast
of
the
on
were available
spectrum, presumably these television stations would not
11
command such steep prices.
and
economic
of
mix
This
illustrate the problems confronting the FCC
clearly
the
administrating
Fairness
Doctrine.
economics of broadcast television,
an
issues
technological
Brenner,
Administrative
the FCC is placed in
During the
policy position.
odd
the
to
Due
in
hearings,
Daniel
Fowler,
Assistant to Chairman
articulated this problem. He pointed out that if the FCC
Fairness Doctrine in
television
smaller
enforces
the
markets,
those are exaclty the markets where
are
frequencies
broadcast
but no one comes
available,
forth
to
apply for them because stations in those communities are
not profitable.
scarcity,
of
So,
in technological terms of spectrum
those are the communities where an
frequencies actually exist physically.
hand,
in
scarcity
licenses.
television
the
of
larger television markets,
channels due to the demand
However,
stations
abundance
On the other
there
for
is
lucrative
intense competition among
the
these
in
larger
a
the
communities
guarantees plenty of opportunities for the public to see
and hear controversial news.
FCC
In cases of this sort,
is reluctant to make a Fairness ruling because
to the highly competitive local television market.
244
the
due
on
Finally,
worried
the newer
that
might
teletext
issue,
technologies of
newspaper
and
videotext
If
a
hence
daily
editorial were to come into one's home over a
televison screen,
carrier
space?
broadcasters
be construed as broadcasting and
under Fairness Doctrine obligations.
come
the
the convergence
or
Fairness
for example,
would the newspaper
both be required to
proponents
exaggerated.
245
said
provide
these
or
response
worries
were
3.)
First Amendment Jurisprudence
In
the thirty-seven odd years since
has taken more of a
jurisprudence
amendment
first
hearings,
Doctrine
Fairness
original
the
libertarian position.
the
Several court decisions provide greater freedom for
originally
than was the case when the FCC
now
speaker
articulated the Fairness Doctrine in the late forties.
Increased freedom for the speaker goes to the heart
of
the Fairness Doctrine.
Due to spectrum scarcity, the
principle
Fairness Doctrine is premised on the opposite
of
listener sovereignty.
passages in the Associated Press and
Frankfurter's
Network
cases that the flow of news and information
the public takes priority over the rights of
to
from
extensively
and
approvingly
quotes
all,
after
The Fairness Doctrine,
articulate
his
thoughts due
broadcast frequencies.
to
the
the
to
the speaker
scarcity
of
Frankfurter had referred to this
technological problem as radio's "unique characteristic"
and
for licensing.
basis
response
Justice
to
the
of
1985 Notice
Frankfurter,
sovereignty
At the Fairness hearings
dominated
his
but
panel
comments.
246
Inquiry,
thinking
discussions
few
in
quoted
on
listener
and
written
First amendment attorneys,
broadcasters, partisans
reached
back to a more recent
precedent,
Court's
Red
in
surprise,
Lion,
Fairness
and
approvingly
amendment
decision
To
1969.
Supreme
the
no
one's
Doctrine proponents cited Red
persistently
jurisprudence
to
argue
required the FCC
that
to
Lion
first
continue
of the Fairness Doctrine and to drop the
implementation
current inquiry.
In Red Lion, Justice White articulated the listener
sovereignty rationale for a unanimaous court.
White had
and his fellow justices had agreed that "it
written
is
the right of the viewers and listeners, not the right of
the
broadcasters,
which is paramount."
that the First Amendment was
ruled
Court
The
government
due
the
also
unabridgeable.
that
scarcity
could impose content regulation in order
"There
public.
that
not
to
diverse flow of news and information
a
assure
maintained
The Court
to
the
is nothing in the first amendment which
government from requiring a
licensee
to
prevents
the
share his
frequency with other and to conduct himself as
a
proxy or fiduciary with obligations to present
and
views
voices
which
are
representative
of
those
his
be
by necessity,
and which would otherwise,
12
other,
more
Certainly,
from the
airwaves."
community
barred
recent cases were cited by Fairness Doctrine proponents,
Lion
13
rationales.
but
Red
comprised the backbone
247
of
these
other
Fairness Doctrine opponents looked to fresher court
to the Court's ruling on libel
rulings,
In
journalist
found a standard that print
they
Sullivan,
in 1974.
and to the Miami Herald case
(1964),
Case
in the Sullivan
had to willfully, intentionally misrepresent information
different,
How
charges.
an
for
order
malice--in
individual
Fairness
actual
called
Court
public figure--what the
a
about
to
libel
bring
opponents
Doctrine
argued, was this standard compared with responsibilities
on
imposed
broadcasters
reply
to provide time to
story
a
editorial views or to be impelled to do
their
to
over.
In the Miami Herald case, Fairness opponents had an
unequivocal
the
assertion that government cannot tamper
editorial
decisions
of the press.
the
was
This
in
proper standard for broadcasting, they contended. Other,
recent
court rulings from the mid-seventies
speakers'
or
persuasiveness,
wealth,
identity,
that
held
right
to do with his
14
speak. The right to speak was unabridgeable.
had
distastefulness
Best of all,
decision
nothing
however, was a historic Supreme Court
out content requirments in broadcasting.
Court
Justice
Brennan
Doctrine
invited
in FCC v.
248
Court
first time the
in 1984 in which for the
threw
Fairness
to
a
test
League of
case
Women
Supreme
of
the
Voters.
door
Brennan noted that the Red Lion Court had left the
to
open
future reconsideration of the Fairness Doctrine
when spectrum scarcity was less
the
changes
And,
noting
Brennan
wrote
pressing.
in the number of channels,
that reconsideration of the Fairness Doctrine may now be
15
appropriate.
A
view highlights the
historical
differences
amendment jurisprudence between the
first
and the mid-eighties.
1943 in the NBC case.
late-forties
The Court initially sustained the
authority over broadcast
regulatory
FCC's
in
content
in
It also reaffirmed in the AP case
a private monopoly cannot control the flow of news
that
and information to the public. As commerical enterprises
involved in the
entertatinment,
dissemination of news,
print
the
information and
broadcast
and
media
equally as subject to social and economic regulation
any
Frankfurter ruled,
other business,
businesses were those of ideas,
and
the popular arts.
opinions,
So sweeping
was
were
as
even if their
information,
Frankfurter's
language that both cases became precedents for the FCC's
direct
regulation
of
news and public affairs
Fairness Doctrine. All of this was
the Communications Act.
249
the
far beyond the public
interest responsibilities imposed on the FCC in
315 of
in
Section
in
jurisprudence
placed
In 1927,
speakers.
California, the Court
in Whitney v.
articulated
the
that
the
ruled
from
articles
protect
the
US,
it
enable
not
did
amendment
first
danger"
World War I that were
participation in the war. In 1918, the
critical of U.S.
newspapers
not
and in Abrams v.
publications during the course of
Court
New York, the
present
and
"clear
the
standard on freedom of speech,
convictions
contempt
protect
not
did
amendment
first
publishing
for
critical of the legal arguments during pending
In
cases.
allegations
true,
from
In 1919, in the Schenk decision,
seditious speech.
ruled
in Gitlow v.
that the first amendment did
ruled
Court
In 1925,
of
rights
pubic order above the
a California statute forbidding communists
recruiting members.
court
amendment
first
twenties,
the
broadcasting
Court
of
From the beginning of federal regulation
precedent.
upheld
existing
followed
views
Frankfurter's
Justice
of
the Court ruled that
1907,
official's
a public
even
if
were
malfeseance
the speaker could still be penalized if the court
deemed
the
were
assertions
detrimental
welfare.
And, as far back as 1877,
Congress
could
16
immoral,
from the mails.
250
public
the Court ruled that
publications,
exclude
to
thought
to
be
Add to this the development early-on of radio as an
medium
entertainment
and
Frankfurter's
expert
on
pervasiveness
public
days
not
communications
broadcasting.
In
remarked
standards,
radio
came
to
analogized
viewed
journalists:
the
world
as
rather
certainly
were not
in
justified
early
opinion
a
box
magic
themselves
responsible
than
The
'newsmen.'
these
upon
imposing
would
a series of obligations to insure they
17
'responsibly' in the public interest."
neophytes
act
in
FCC, Bazelon noted
as entertainers
they
the
the
the telegraph... Broadcasters
felt
Commission
into
on
upholding
during
v.
for
Judge Bazelon,
his dissenting
Inc.
media
news
reationale
law,
of first amendment
Brandywine-Main Line Radio,
were
a
favoring
opinion
order over speaker's rights,
of
"that
as
regulation is quite plausible.
content
an
and
How different these decisions are from Sullivan or
Miami
the
Herald.
Cases
broadcasting, specifically CBS v.
political
involving
DNC, and FEC v.
NCPAC/
FCM also supported increased discretion for broadcasters
and
greater
freedom of speakers,
grounds for the Fairness Doctrine.
Brennan's
Doctrine,
to
the
invitation
to
eroding further
Coupled with Justice
the
reconsider
first amendment grounds shifted
advantage
of
the broadcaster
forties.
251
the
Fairness
dramatically
since
the
mid
the FCC have authority to repeal
Does
4.
Fairness
the
Doctrine?
FCC authority to repeal the Fairness Doctrine
turf battle with
this
In
a
is
a
hostile
judgement
call.
Congress,
FCC Chairman Mark Fowler, himself a proponent
will only say, "I think there are very
of deregulation,
arguments
good
Doctrine]
Fairness
is
but there are other arguments that suggest it
codified,
is
[the
it
that
I haven't had a chance to parse
not.
all
18
through
that to make a final determination in my own mind."
in
As
Congress or
whether
the argument turns
on
the FCC has authority to repeal
or
the Aspen Decision,
substantively alter the
1975,
Fairness Doctrine.
interest groups much divided along the same lines.
public interest groups,
The
Mobil
as in
And,
and General Motors,
the big corporations
like
wingers
like
and the right
Irvine and Schlafly assert that the Fairness Doctrine is
codified,
CBS,
so only Congress can alter it.
NBC and
broadcasting trade groups assert that as the responsible
regulatory
authority the FCC does have authority to
ABC offered a
as it pleases with the Fairness Doctrine.
qualified
it
pleases
opinion,
with
do
asserting that the FCC should do as
the
congressional approval
Fairness
Doctrine,
for its actions.
252
and
seek
First amendment
took
scholars
either
Clearly
broadcast
the
with
wants the FCC to claim authority to deal
industry
Fairness Doctrine,
the
side.
because broadcasters would
get
more freedom under the deregulation-minded FCC than from
Congress.
The day before FCC panel discussions on the
of
Notice
Inquiry, Representative John Dingell, Chairman of
Commerce
House
with
along
other
Fairness
Doctrine
"radical" and "ideological."
as
inquiry as a
conference
to
proponents
Dingell blasted the
challenge FCC regulatory authority.
FCC
press
called a
Committee,
the
He
dismissed
the
fool's errand. "This Commission should have
recognized long ago that it is an independent
regulatory
agency accountable to the Congress, and, as such, it may
what it thinks is a legal loophole can
19
Prospects for a repeal of
its own noose."
that
find
become
fast
the
Fairness Doctrine hardly looked promising on the Hill.
just as clearly, big business, public interest
And,
special interest groups,
groups,
religious groups, the
Democratic Party each wanted Congress to keep
break or alter the Fairness Doctrine.
to make,
authority
Many of
these groups believed they could exert greater influence
on
the Hill and receive more protection
than from the FCC.
"first
As recently as 1983,
from
Congress
efforts to win
amendment parity" for broadcasters had failed in
Congress.
253
sides
Both
issue.
affair
public
and
was
programming.
political
ideologues and attorneys engaged
advocates,
Partisans,
for
than
rather
programming
the
time for news
this
only
engaged
the issue of FCC discretion
again,
once
So,
the
that
fiercely
argued
history and the law allowed only their view
legislative
to prevail.
The precise issue of this regulatory fight was
the
1959 amendments to Section 315 of the Communications Act
and
Justice
news
from
events
Section
amended
Time.
Equal
But
news
newscasts,
a candidate) and on-the-spot
of
1959
The
Lion.
(with
documentaries
news
interviews,
fide"
"bona
exempted
amendments
coverage
language in Red
White's
incidential
coverage
Congress
of
further
315 with a watered-down version of
an
amendment origially offered by Wisconsin Senator William
Proxmire
-that
these
exemptions
did
not
from obligations to operate in the
broadcasters
interest.
Congress inserted language from the
Doctrine,
"'to
discussion
importance"
of
in
in
Red
public
Fairness
afford reasonable opportunity' for
the
public
of
views on issues
20
the
on
Based
new Section 315.
conflicting
the
legislative history of this sentence,
ruled
relieve
Lion
that
Congress
254
Justice White had
had
codified
the
Fairness
Doctrine as part of the amendments to
315a in 1959.
In other words,
Fairness Doctrine in 1959,
Section
Congress had codified the
so only Congress could change
it now.
A
1959
close
look at the legislative history
amendments
to
Equal Time devolves
competing arguments about the intent,
of
the
quickly
into
content, and fate
of the Proxmire Amendment. In 1959, Senator Proxmire had
offered
an amendment to Equal Time,
codified
But,
the
the
which
would
have
Fairness Doctrine as part of Equal
Time.
amendment never passed.
The Senate passed
version of
it.
Senator Pastore, the
Chairman
of
Committee,
occasion
The House did not.
the
called
and
Interstate
and
the amendments
hailed
it
Foreign
Commerice
"surplusage"
as
a
at
sustaining
one
listener
21
sovereignty
the
at others.
above
And,
Congress finally
quoted sentence calling on
passed
broadcasters
obey long standing public interest responsibilities
to
and
to provide controversial news programming.
Both camps fell into line.
Doctrine
proponents
legislative
argued
Predictably,
the
and
panels
overreaching.
arguments
candidates
and
the
history behind it proved that Congress
codified the Fairness Doctrine,
Inquiry
sentence
Fairness
that
so the FCC's Notice
were as gratuitous
Fairness
as
they
had
of
were
Doctrine opponents made counter
Congress was far
more
concerned
than with news programming and access
255
with
issues
as
Congress
thrown
elections.
a
into
had
decision
before
tizzy just
1960
the
Congressmen and senators wanted to make sure
qualified candidates
legally
on
The Lar Daly
it amended Section 315.
get
like themselves could
the television news without triggering
Time.
Equal
pointed out correctly that the legislative history
They
Fairness
no specific reference to the
makes
Doctrine,
and they concluded that the language of the sentence was
generally
not
responsibilities,
about public interest
about the Fairness Doctrine.
And on the FCC's discretionary authority, that is,
on
the FCC's right to substantively alter or repeal the
Fairness Doctrine vs.
a more narrow regulatory scope of
implementing Congress'
laws,
predictably.
the
the FCC's
charged
with
technologies,
that
The proponents argued, like Dingell,
Congress.
is an instrument of
FCC
noting
the sides again broke down
long history as a
making
the
contend
opponents
agency,
regulatory
for
policy
The
rapidly
FCC's leadership
changing
role
on
communications regulation enabled it to do as it pleased
with
the
Fairness
Doctrine.
previous FCC commissions that
Fairness
Doctrine,
22
did
However,
256
by
Congress had codified the
little
arguments.
assertions
to
strenghten
their
5. Tentative Solutions
Given
contention
alter
substantively
about
FCC
Fairness
the
authority
to
several
Doctrine,
courses of action were suggested.
Henry
Geller,
recommended
attorney,
Doctrine
prominent
that
the FCC make the
applicable on overall
programming
case by case) at license renewals on
clearly
proposal
because
prejudice
gives
the
under
(i.e.
not
under some sort of
without angering Congress too
powers
Fairness
Such a policy might well be within the
Sullivan rubric.
FCC's
communications
the
to
The
broadcasters,
broadcasters
guidelines,
Sullivan
much.
would have to have behaved egregiously for a claimant to
wrest
the
their license.
Geller proposal,
Still, broadcasters do not support
because the threat of
a
license
is more serious than the current case-by-case
challenge
Fairness Doctrine sanctions of modifying their news
and
public affairs programming.
A
second
Shooshan,
been
cheif
a
advanced
solution,
by
Harry
"Chip"
Washington communications attorney who had
counsel
of
the
257
House
Telecommunications
subcommittee in the late seventies, and Doug Ginsburg, a
Budget,
of
Management
consistent
However,
of
of
the
This would seem to
invitation.
Brennan's
Justice
with
Office
suspension
suggests
Fairness Doctrine in big tv markets.
be
the
with
leave
on
profesor
Law
Harvard
if the FCC were to take this course of action,
it would put a double standard of fairness in place, one
for big tv markets and one for small.
This course would
the FCC and, no
pose serious implementation problems for
litigation when a broadcaster or a
new rounds of
doubt,
complainant wished to challenge the rule.
the
proposal is its litigenousness,
reconsideration of
force judicial
The virtue of
the Fairness Doctrine.
for repeal
third solution, advanced by ABC, calls
A
of some Fairness Doctrine appendages.
personal
These include the
which enables direct access to a
attack rule,
editorials
television station by an individual to rebut
that
are critical of him or her.
which
articulate
because
it
their
placed
broadcasters
groups.
interest
requirying
broadcasters
candidates
on
the
seemed
position
subsidizing
same
The Cullman decision,
to receive free
interest groups
enables
would
it
because
in
The
dangerous
the
time
to
position
Zapple
as
they
ABC
of
ruling,
to sell time to spokesmen
basis
to
would
for
for
candidates also was more of a nuisance than a value from
258
ABC's point of view.
one might observe that the world of
In conclusion,
fifty-
the
communications has changed considerably over
1927.
eight years since Congress passed the Radio Act of
has exploded,
Technology
The
Post
Washington
irresponsibly.
political
Arguments that television news,
advertiser-dependent,
are
industry
entertainment
similarly
discussing the Fairness Doctrine.
the
Post
networks
and public affairs programming is chilled
location in an
advertising
supplemental
revenues,
but
market
mass
wanting
dependencies
in
such as the
on
endure
neither has also to
federal regulation,
by
Perhaps the Times and
their
be "chilled" by
may
the
television
and
or the Gannett papers
there is little evidence to say the
stations,
its
major
such as the New York Times or
organizations,
behaved
be
networks may have over that of other national
broadcast
news
to
the
influence
whatever
seriously.For
taken
Fairness
the
that
is used to silence them have
and
can
Doctrine
journalists
the
of
remarks
providing many more channels.
Fairness
Doctrine.
At this point, the wiser course lays in recognizing
the limits of both Equal Time and the Fairness
to
accomplish
their
avowed
results.
Doctrine
Rather
than
stimulating a flow of news, political and public affairs
259
programming
The
to the public,
historical
both laws enervate it.
focus of this study
Equal Time when there were approximately
enact
to
It was entirely one matter
show that conditions change.
to
attempts
six
hundred radio stations in the country, and is quite another
to apply it today.
than
it
was
Fairness
Television is very different in 1985
when the
in 1949,
Doctrine.
A
FCC
change
sea
articulated
the
underway
in
is
communications. Broadcast journalists deserve
first amendment rights as print
the same
journalists so that
citizens can reach decisions on American political
instituions
through
-
robust
Beneficently intended laws,
public
discourse.
framed for an earlier time,
disserve the public now.
260
ENDNOTES FOR INTRODUCTION
1. Olmstead v. US
277 US 279
261
(1928)
ENDNOTES FOR CHAPTER ONE
1.
67 Congressional Record 5480
2.
Edward
F.
Sarno,
Conferences,"Journal
1969).
3.
Ithiel
(Cambridge,
1983),
4.
deSola
Jr.,
of
"The
National
Broadcasting
Pool,
Massachusetts:
XIII
(Spring
of
Freedom
Technologies
Harvard
Radio
University
Press,
chapter 6.
Writing
in
The
Century
Magazine,
Bruce
Bliven
contended that "radio broadcasting should be declared
public
utility
authorities;
under strict regulation by the
and
it
may
be
necessary
to
government condemn and buy the whole industry
it
either
post
is
Remaking Our World,"
1924),
5.
have
the
operating
the
"How
Radio
The Century Magazine 108
(June
149.
E.
Pendelton
Regulation,"
1935),167-178;
Years
Federal
nationally or locally on the analogy of
office and the public school system."
a
Harvard
Herring,
Business
"Politics
Review
John Brooks, Telephone:
(New York:
XII
and
Radio
(January
The First Hundred
Harper and Row, 1975); Joseph McKerns,
"Industy Skeptics and the Radio Act of
262
1927,"
Journalism
History 3
Freedom,
6.
(1976-1977),
128-131;
Pool,
Technologies of
chapter 6.
See especially Representative Davis' comments in
67
Congressional Record 5480-5485.
7.
Radio
thorny
licensing as a system also raised
questions:
for
example,
which
additional
of
the
many
competing
radio broadcasting corporations would receive
licenses
to
regulatory
licenses,
broadcast,
official
or
what
criteria
a
federal
agency would use
in
granting
and what guid pro quo the federal
government
would exact in return for granting lucrative licenses to
private
corporations for use of a public good like
the
airwaves.
8.
67 Congressional Record-House 5478-5504 for comments
by progressives on common carrier legislation for radio;
Congressional Record-Senate,
Brooks
July 1,
1926, 12497-12505;
and Pool are useful for information on AT&T
and
common carrier legislation.
9.
10.
United States News and World Report, May 21,
Hoover
rationalizing
of Commerce,
to
articulated an administrative solution
radio.
empowered
public
interest.
was the best suited
to issue and revoke licenses
Disagreements with
making as federal
the
in
D.C.,
the
Secretary's
licensing authority were
be adjudicable in the Washington,
Hoover proposed.
for
Hoover argued that the Secretary
the position he held,
be
decision
1943.
to
Federal Court,
Hoover pressed such an administrative
263
component in his overall radio policy,
of
because a series
court decisions and an advisory opinion from
Attorney
General
William
J.
Donovan had
Acting
denied
the
Secretary of Commerce sufficient regulatory authority to
effectively
administer radio.
Under the Radio Act
of
Secretary of Commerce had been empowered
to
1912,
the
grant
licenses
requested one.
to broadcast over radio to
differed
But,
from
one-to-one
decided in Hoover v.
communications
in
that
In 1923,
April
Intercity Radio, that the Secretary
Corporation,
in
United
for
a
licenses
designated
clarification
that
administrative
was
Radio
channels.
In
Hoover asked Acting Attorney General
duties.
maintaining
Hoover
Zenith
the Court stripped Hoover of any power to
regulate channels.
Commerce's
v.
Then,
licensee to broadcast only at
times and only on
words,
Donovan
States
no
a federal district court ruled that Hoover
was powerless to require a
other
and had
authority to issue or deny licenses.
1926,
specified
had
the courts
Commerce could only assign wavelengths,
regulatory
who
mass communications of the twenties
characterized radio in the teens.
of
anyone
Donovan
the
the
Secretary
agreed with
Secretary
of
the
Donovan
Commerce
wrote,
held
radio:
to
request and denied by law to assert
control over wavelengths.
of
courts,
but no regulatory authority over
obliged by law,
upon
of
issue
any
In other words, once some one
held a license, he was entitled to broadcast on whatever
wavelength
he
wanted,
and
264
no
matter
how
much
interference might be caused through these actions,
Secretary
of
Commerce,
as
authority, could do nothing.
11.
the
federal
Chaos ensued.
Congressional Record-House,
in Daniel E.
responsible
the
March 12,
1926, cited
Garvey, "Secretary Hoover and the Quest for
Broadcast Regulation,"
Journalism History 3
(1976-1977),
128-131.
12.
Proceesdings
of
the
Fourth
National
Conference, Government Printing Office,
Hearings on S.
Congress,
1 and
1st
Session,
Ibid.,
assertion
6-8.
of
the
in full.
and
Hoover's
with
on
that
be
is
noteworthy
Supreme Court
for
Hoover's
sovereignty
decisions
speech.
radio
political speech,
that
listener
present" danger in free
recommendations
decisions
assert
It
of listener priority or
co-incidental
"clear
may
where the proceedings
Ibid.
14.
is
See also
S.1754, United States Senate, 69th
conference are set out
13.
1926.
Radio
and
In
the
Hoover and
the
the First Amendment rights of the
justifiably
regulated to
achieve
on
the
both
Court's
Court
speaker
public
interest.
15.
Congressional Record-House, March 12,
16. Ibid.,
5480.
17.
Ibid.,
5488.
18.
Ibid.
19.
Ibid.
265
a
1926, 5479.
20.
Ibid.
It is noteworthy that atleast one Democrat,
Representative Otis T. Wingo (D-Arkansas) shared some of
the
Republicans' concerns about
Wingo
burdensom
regulation.
agreed that the Secretary of Commerce shold
control
over radio because he feared that a
commission,
such
bipartisan
as that proposed by his southern
western colleagues,
corrective
have
and
would cause too much red tape. As a
to this potential problem,
Wingo
supported
full licensing authority for the Secretary of
Commerce.
He
also agreed that Washington's Second District
was the best place of appeal.
For Wingo's comments, see
Congressional Record-House, March 13,
Not
either,
all
as
of
the
Court
above
were
1926, 5568.
small
they included Atwater-Kent,
concerns,
Crosley,
and
Bosch Magneto among others.
Representative Arthur M. Free (R-Calif.) carried
White's
position
further.
radio
-Free
on broadcaster
reminded
one
step
pointed out that American domination in
resulted from imposing no
antitrust
discretion
law,
on
large
radio
regulation,
not
even
manufacturers.
He
his colleagues that the federal government had
made agreements with large electronics manufacturers not
to
prosecute
licensing
World
them
pooling
as part of U.S.
War.
In
1914,
rights to a device,
facilitated
British
for
and
cross-
defense efforts in the First
General Electric
owned
patent
the Alexanderson alternator,
transoceanic
controlled
patents
radio
Marconi
266
transmissions.
Company
had
wanted
which
The
to
the
purchase
States
government
control
but
Alexanderson alternator,
the
United
wanted an American based company
the new technology.
Admiral
W.H.G.
to
Bullard,
Director of U.S. Naval Communications and Commander S.C.
Hooper
of
the
Bureau
of
Steam
Engineering
both
approached General Electric, urging G.E. not to sell
patent
for the Alexanderson alternator to the
controlled company.
General
Electric
Telephone,
Telegraph
Radio
the
British-
Instead of selling to the British,
worked
with American
Telegraph
American Marconi Company,
Company,
the
and United Fruit to
Corporation of America.
the
and
Federal
establish
the
General Electric did so
after receiving assurance from the Wilson Administration
that
the Justice Department would not prosecute RCA
its
parent corporations.
Partriotism,
Representitive
Free asserted, had guided General Electric.
of
and
As a result
the "limited" cross licenses that comprised the Radio
Corporation
radio
at
Britain
of
America,
the United
the end of the First World
remained
dominate
in
the
States
dominated
War
while
older
and
Great
slower
technology of cable transmission.
Rather
than monopolizing radio,
Free
that RCA and its parent companies competed in
areas
of
communication.
Free used this
asserted
different
argument
mollify Representitive Davis and other Democrats and
267
to
progressives,
oligopoly.
for
who
viewed
RCA not incorrectly
making and selling transmitters and receivers.
and
He acknowledged
reserved the rights to telephone patents.
that
said
lines
their
to
On
their
the
basis of these
and specialities,
concerns
different
about
monopoly
the
the
product
quell
attendant
discrimination.
67 Congressional Record-Senate,
22.
Ibid.
23.
Ibid.
24.
Ibid.
25.
67 Congressional Record-House, 5483.
26.
Ibid.
27.
Ibid.,
28.
Ibid.
12498-12500.
5484.
Ibid.
corporations
The
FTC
report
showed
that
the
major
(1) agreed to pool patents among themselves
both wired and wireless telephone and telegraph and
for radio until
its
of
different
21.
to
patents
lines
and
ATT
"Each one of
Free asked Democrats to
problems of censorship and price
for
that
Free has "to get the use of those
pertained
industry."
He
and Westinghouse sold capital equipment
assembly parts to RCA.
them,"
an
He pointed out that RCA dominated the market
noted that G.E.
29.
as
1945,
(2) granted RCA exclusive
sell radio apparatus,
supplies
from
and required RCA to
other members of
268
the
rights
purchase
cartel,
(3)
restricted
competition
within certain fields
so
each company was assured of no competition from
in
its
designated
specialty,
(4)
that
another
controlled
international communication between the U.S. and abroad,
(5) and provided preferential contracts for transoceanic
communication among members of
30.
the cartel.
Congressional Record-Senate,
House
Democrats
broadcaster
also
made a
discretion
failed
worried that
campaign
day
libelous,
1926, 12356.
effort
over political
raising questions about libel,
They
July 1,
campaign
slanderous and
defamatory
before
libel,
election
candidates
Due to the instantaneous effect of
broadcasts,
slander
House
and
by
slander, and defamation.
addresses over radio shortly
radio.
limit
programming
could skew election returns in favor of
using
to
Democrats
defamation
said
laws
such
that
the
applying
to
newspapers had become antiquated, and more stringent law
was required for radio.
In addition,
challenged existing law:
in a word, radio crossed state
radio's ubiquity
lines.
Representative
raised the libel issue.
law
on
libel
distinguished
remarks:
and
was
Blanton
(D-Texas)
He remarked on differing state
slander.
between
print
Thomas L.
printed
subject
He
and
to
noted
that
spoken
civil
and
Texas
derogatory
criminal
charges of libel while spoken remarks were classified as
slander
and
then only when expressed about
269
women.
A
derogatory expression about a man broke no law in Texas,
Blanton said.
"The night before election some
fellow,
who might be favored by the Radio Corporation, could get
up in a congressman's district,
to
the
radio,
ruin
any man
and with favored access
running
for
Congress."
Clearly,
Blanton
political
effects of slander than in the more
express
greater
interest
in
the
pressing
issue of where responsibility appropriately resides
uttering slanderous assertions:
uttering
them.
with the politician for
them or with the broadcaster for
In
the
end,
the
for
Radio Act
transmitting
held
politicians
responsible under existing civil and criminal law on the
grounds
that Congress would be promoting censorship
holding the broadcasters responsible.
argued
they
politicians'
besmirched
Blanton's
Broadcasters had
would
then
have
to
censor
or
remarks
for
fear
of
being
sued
candidates.
proposal
to
The
make
immediate
offenses in
however,
it
the Republican
leader,
for
Representative White,
replied
Blanton's
and LaGuardia remarked
rights are still in existence."
31. New York Times, May 7,
1926.
32. 67 Congressional Record-Senate, 12503.
270
to
the
was to vote
that common law was sufficient
worries,
by
language
states where they were broadcast,
down.
edit
response
derogatory
transmitted by radio criminal and civil
by
floor
remedy
"civil
33.
Ibid.
34.
Ibid.,
35.
Ibid.
36.
Ibid.
37.
Ibid.
38.
Section 18,
39.
Congressional Record- Senate, July 1,
40.
Ibid.
41.
Ibid.,
42.
Ibid.
43.
Ibid.
44.
Ibid.
12502.
Radio Act of 1927.
1926, 12502.
12503-12504.
45. Ibid.
46. Ibid.
47.
Ibid.,
12505.
48.
Ibid.
49.
Radio Act of 1927,
Section 18.
50. Congressional Record-Senate, July 1,
51.
1926, 12505.
Cited in Garvey
52. H.R. Report Number 2106, 72nd Congress, 2d sess.,
53.
Charles Curtis, Jr.,
Commonwealth
of
"Franklin D.
Broadcasting"
(B.A.
Roosevelt and the
thesis,
Harvard
College, 1978).
54. Broadcasting, March 19,
55. Charles Curtis, Jr.,
1933,
3.
"Roosevelt and Broadcasting."
271
4.
56.
Hearings
on S.
2910,
Senate Interstate
Commerce
Committee, 73rd Congress, 2nd Session, 19.
57.
Cited
in Committee on
Interstate
Senate, 73rd Congress, 2d sess.,
1934,
58.
Ibid.
59.
Ibid.
60.
78 Congressional Record 8843, S.
61.
Interstate Commerce Committee,
Commerce,
U.S.
66.
2910.
73rd Congress, H.R.
8301.
62.
63.
Ibid.,
Report
117.
Of The Federal Communications Commission To
Congress On Section 307(c) Of The Communications Act
1934, 5-6,9-10.
272
Of
ENDNOTES FOR CHAPTER TWO
1.
13 FCC Reports
"In
the Matter
Broadcast Licensees,"
of
by
Editorializing
(Here and after
1246-1270.
referenced as The Fairness Doctrine.)
1934,
Section 315.
2.
The Communication Act of
3.
See Pool, Technologies of Freedom.
4.
8 FCC Reports 333,
January
16,
Mayflower Broadcasting Company,
(Here and after referenced as
1941.
the Mayflower Decision.)
5.
8 FCC Reports 340.
6.
Ibid.
7.
3
FRC
32
Great
Third Annual Report
Lakes
(1929).
8.
8 FCC 340 Mayflower Decision.
9.
Ibid.
10.
Ibid.
11.
319 US 190,
v.
the
12.
Ibid.
13.
Ibid.
14.
11
FCC
National Broadcasting Company et.
United States,
May 10,
Reports Public Service
Broadcast Licencees,
March 7,
15.
Ibid.
16.
Ibid.
17.
Ibid.
18.
10 FCC 515 United Broadcasting.
FCC
197
Company,
Broadcasting
Sam Morris,
(1946);
273
al.
1943.
Responsibility
of
1946.
(WHKC),
11
FCC
(1946);
372
11
Robert
Harold Scott
noteworthy
Doctrine
news
(1946).
for
the articulation of
because
and
public
broadcasters'
FCC
the
Fairness
the FCC indentified the
information
controversial
trustees
The rulings are particularly
to
the
affairs
flow
public
through
programming
with
public interest responsibilities
of the airwaves.
asserted
that
In these rulings,
broadcasters
had
of
as
the
affirmative
obligations to provide controversial public affairs
programming in order to keep their licenses.
as in the Network case and the Blue Book,
And,
the
FCC
upheld the sovereignty of listeners to receive news
and
information
broadcasters
over
to
the free speech
determine
the
rights
content
of
of
the
programs they broadcast.
In the United Broadcasting Case
the
FCC
ruled
that overall
(June, 1945),
program
scheduling,
including controversial public affairs programming,
constituted
a
criterion for renewing
Radio station WHKC
sell
a
in Colubmus, Ohio had refused to
time to Local 927 of the AFL-CIO
labor,
racial
license.
to
discuss
and political issues and to solicit
memberships.
WHKC also censored scripts, a routine
practice
radio broadcasting
When
in
Local 927
license
management
with
in
the
forties.
filed a complaint to revoke
the
struck
FCC,
a
United
compromise
274
with
WHKC's
Broadcasting
the
union
local.
WHKC
requests
It
management agreed to review
individually and without
agreed
to
controversial
purpose
WHKC
of
devote
subjects
"a well
management
agreed
to
programs.
agreed
It
to
discrimination.
program
time
advance
balanced
organizations
grounds
some
the
broader
schedule."
allow
non-profit
memberships
to
to
program
to
solicit
program
state
in
on
radio
writing
its
for refusing any controversial programming.
Finally,
United
Broadcasting
management
pledged
that controversial programming would be "considered
on an over-all basis,
among
the
locally
various
points of
fair balance
"
view
and
among
and network produced shows and between the
commercial
and
network.
The
Broadcasting
news
maintain[ing] a
sustaining shows provided
FCC
ruled
that
by
since
the
United
management had agreed to balance
its
and public affairs programming and had ceased
censoring scripts that the station was operating in
the
that
public interest.
The FCC
ruled,
therefore,
the United Broadcasting Company could
retain
its license for WHKC.
In the Sam Morris case (March, 1946),
reasserted
that
controverial
criteria for
local
the
overall
public
affairs
license renewal.
temperance activist
FCC
to
programming,
revoke Dallas
275
including
programming,
Mr.
in Dallas,
radio
the FCC
was
a
Sam Morris,
a
Texas
station
asked
KRLD's
Morris claimed that radio advertising for
license.
and he objected
alcoholic beverages was offensive,
to
management's refusal to sell time
KRLD
The FCC ruled
organizations promoting temperance.
Morris, saying that it would not grant
against Mr.
A single issue, such as
standing to his petition.
ruled.
the FCC
a special FCC action,
warrant
the FCC would review KRLD's license on the
Rather,
of
basis
grounds
did not constitute sufficient
temperance,
to
and
individuals
to
hours
listening
peak
during
routinely
it
its overall programming as
would.
The
Sam
Morris decision also
of
the
FCC authority over
scope
The
FCC
their public affairs
on
advertising
had
brief
and
advertising
review
the
indeed
a
propaganda.
CBS
The
between
distinction
a
drawn
that
CBS argued
a
of KRLD advertising was beyond the scope of
programming
because
in
Sam
concerning
Morris
that
The FCC
"advertising... is
a special kind of propaganda."
276
public
complaint
Morris'
The FCC differed.
concerned advertising.
observed
programming.
its KRLD affiliate.
FCC's regulatory authority
affairs
their
of
nomenclature"
rejected as "handy
brief filed in support of
CBS
that
ruling
impact
the
consider
broadcasters
affairs
public
FCC's
the
to
due
programming
the
expanded
It went
on
to
importance."
Given
the
public
of
issues
substantial
"raise
could
beverages
alcoholic
that advertising for
say
controversy
surrounding
temperance, the FCC ruled that KRLD had to consider
advertising promoting the consumption of alcohol as
and make reasonable efforts
controversial,
public
time for
provided
KRLD
to
It also
public issues.
controversial
that
schedule
programming
affairs
the
in
its
address
recognized
of
discussion
temperance issues during local option elections.
(July,
In Robert Harold Scott
ruled
broadcasters had
the
that
1946),
an
affirmative
affairs
obligation to present controversial public
Again,
programming.
the
that
asserted
FCC
the FCC
it
considered controversial public affairs programming
an
important part of a station's program schedule.
It
made
ideas
information
and
effective
functioning
government
and
"Immunity
from
without
that
therefore,
required
to
of
of
ways
is
to
the
forms
of
essential
the
life,"
the
"The free flow
democratic
criticism" was
public interest because
flourish
flow
to
information
news and
affairs
public
public served the public interest.
of
affairs
public
on the majoritarian grounds that
programming
of
about
assertions
these
FCC
dangerous
ruled.
to
the
"unsound institutions could
criticism."
while
The
broadcasters
grant time to all who
277
FCC
reasoned,
were
requested
not
it,
free
constitutional
United
As
ruled.
from
protected
by
the
particular
in
discretion
FCC
Morris,
Sam
Broadcasting and
increased
asserted
of access while the FCC
cases
criterion
speech guarantees,"
retained
broadcasters
view
a
of
expression
the
of
medium
removing radio wholly as a
precludes
degree
high
interest
public
"The
unpopularity."
a
the
for
time
grant
"with
ideas
of
discussion
to
had
nonetheless
they
authority over public affairs programming including
controversial public affairs programming within its
review criteria for license renewal.
specifics of Robert Harold Scott were as
The
The FCC rejected a petition by Mr. Robert
follows.
Harold
station KPO and KFPC in San Franciso.
radio
to
renewals
to deny license
Scott
At the same
time, the FCC lectured KPO and KFPO to provide more
air
for
time
programs
on
public
controversial
issues.
Scott had claimed that management at both
stations
has stifled controversial public
by
programming
atheism,
interest
airwaves.
Scott's
advocating
and
denying
him time to
affairs
speak
public
by doing so had breached its
responsibilities
as
trustees
about
of
the
In a word, the FCC denied Robert Harold
individual
atheism,
petition
and
278
upheld
for
programming
standards
that
properly
programming
public affairs
contoversial
belong within a station's news programming.
19.
Broadcasting,
20.
Ibid.
21.
Ibid.
1947.
September 5,
to broadcasters and an
extension of editoral rights
certain
advocated
expressed
Denney
standards
with
directly
ruling
which
would
evaluate
He
position
a
up
editorial
renewals.
of
don't
"I
on editorial content.
know that's a good thing,"
22.
coming
reticence at the FCC
want to put the FCC into
not
Commissioner
however,
issues,
as part of FCC licensing
positions
did
broadcasters
If
editorials.
broadcasters'
to
reply
to
public
the
for
opportunity
the
both
favored
Denney
Commissioner
he said.
The National Association of Broadcasters, the trade
group
for
the
broadcasting
advocated licensee editorials.
staunchly
Throughout the late
National
Director of the
Justin Miller,
forties,
industry,
had placed revocation
Association of Broadcasters,
of the Mayflower Decision among his top priorities.
Miller
called
the Mayflower Decision "one of
most serious abridgements of free speech...
philosophy
contradictory
to
the
...
the
a
Constitution"
Broadcasting magazine, the unofficial trade journal
of the radio industry,
advocated
echoed Miller's
the right and privilege of
to editorialize,
view.
It
broadcasters
but also asserted a broadcaster's
279
issues should
sidestep controversial
to
right
he
wish to.
23.
Ibid.
24.
Ibid.
25.
Ibid. April 26,
26.
Ibid.
April 26,
radio
speech
to
editorials
by
contending
and
were free speech,
radio in the
public
interest.
limiting broadcasters' freedom to
violated
issues
(Section
326)
the
of the
as
free
Any
advocate
provision
anti-censorship
Communications
that
authority
fell outside the FCC's statutory
regulate
policy
argument
Broadcasters,
of
Association
Miller's
supported
Dan Petty, general counsel
1948.
National
the
for
1948.
Act,
Petty
continued.
27.
Ibid.
28.
Ibid.
29.
Ibid.
30.
Ibid.,
March 8,
31.
Ibid.,
April
32.
Ibid.
33.
Ibid.
34.
Ibid.
35.
Ibid.
that
on
1948.
26,
1945.
To support his contention, Barnouw testified
writers enjoyed greater
freedom of expression
sustaining shows than on commerical
sustaining shows,
writers were not under
280
ones.
On
pressure
materials
write
to
audiences
As a
which
as was the case with
applealed
to
commerical
mass
shows.
rule, networks sponsored sustaining shows, and
they dealt with news and public affairs.
36.
Ibid.
37.
Ibid.,
38.
Ibid.
39.
Ibid.,
The Fairness Doctrine.
40.
Ibid.,
p.1251.
41.
Ibid.,
p.1251.
42.
Ibid.,
p.1253-54.
43.
Ibid.,
p.1256.
44.
Ibid.
45.
Ibid.,
p.1253.
46.
Ibid.,
p.1253.
47.
Ibid.
48.
Ibid.
49.
Ibid.
50.
Ibid.,
v.
March 8,
1948.
p.1257,
326 US Reports 20 Associated Press
United States.
51.
Ibid. p.1257.
52.
Ibid.,
p.1253.
53.
Ibid.,
p.1258-9.
54.
Ibid.,
p.1259-70.
55.
Ibid.,
p.
56.
Ibid.
57.
Ibid.,
p.1266.
58.
Ibid.,
p.1267
1264-5.
281
59.
Ibid.,
p.1270.
60.
Broadcasting, January 6,1949.
282
ENDNOTES FOR CHAPTER THREE
1.
In
Matter
The
Of
Petitions
Broadcasting System, Inc.,
Of
Columbia
The
And National Broadcasting Co.
Reconsideration And Motions For Declaratory Rulings
For
Or
Orders Relating To The Applicability Of Section
Of
The
Communications Act
adopted June
cite
15,
1959, 26 FCC 715
will
be
referred
As
1934,
Amended,
To
Interpretive Opinion
By Broadcast Licensees,
Newscasts
this
Of
315
(1959).
to
as
(Here and after
"Interpretive
Opinion.")
2.
Ibid.
3.
Ibid.
4.
Ibid.
5.
Letter To Allen H. Blondy, 14 Revenue Ruling
1957.
Feb. 6,
6.
1199,
Use Of Broadcast Facilities By Candidates For Public
Office, FCC 58-936--Public Notice 63585,
question number 12.
Oct.
1,
1958,
Cited in House Report 802, Aug. 6,
1959.
7.
Interpretive Opinion, 728-740.
8.
Ibid.,
9.
Hearings
726.
before the Interstate and Foreign Commerce
Committee, 86th Congress, 1st sess.,
283
1959,
67.
10.
Subcommittee
Communications
of the
Committee
86th Congress, 1st
Interstate and Foreign Commerce,
sess.,
1959,
1585,
Repts.
S.
Political Broadcasting, 80.
on
1858, and 1929,
1604,
(Hereafter referred to as
"Hearings on Political Broadcasting").
11.
Ibid.
12.
Congressional Record-Senate, 12502,
1926.
13. Hearings on Political Broadcasting, 111.
14.
Ibid.
15.
Ibid.,
comments
Subcommittee;
Great
Indiana:
16.
Robert
Debates,
(722),
CBS
before
(723)
Westinghouse
The
by NBC
W.
Sarnoff,
ed.
Sidney
Indiana University Press,
and
(719-21),
the
Communications
"An NBC
Kraus
View,"
(Bloomington,
1962),56-63.
Cited in Hearings on Political Broadcasting.
17. Hearings on Political Broadcasting.
18.
Ibid.
19. Public Law 677,
86th Congress, Title 47, Sec.
US Code 1959-61, p.
11675.
20. Hearings on Political Broadcasting.
21.
Ibid.
284
in
315,
ENDNOTES FOR CHAPTER FOUR
1.
Sen. John F.
Kennedy
first presidential
Mass.),
(D.,
in
Great Debatesf ed.
The
2.
Ibid.,
(Bloomington,
Sidney Kraus
1962),
Indiana University Press,
Indiana:
1960,
26,
Sept.
candidate debate with President Nixon,
349-350.
President Richard Nixon's opening statement,
352.
352-353.
3.
Ibid.,
4.
Cited in Kraus, The Great Debates.
5.
Theodore H.
(London: Jonathan Cape, 1962),
6.
Ibid.,
7.
Austin
293.
Basic Books,
(New York:
1983).
New York Times, Nov. 9,
9.
In
196-0,
candidates
there
1984.
were fourteen
other
besides Kennedy and Nixon.
Making of the President 1960, 281,
The Making of the President
Godfrey Hodgson,
York:
of
Impact
The
Channels of Power:
Ranney,
8.
10. White,
1960
291.
Television on American Politics
Inc.,
the President
White, The Making of
The Great Debates,,
11.
Kraus, ed.,
12.
New York Times, May 18,
13.
Ibid.,
14.
Ibid.
May 17,
See
1960, 281,
285
The
and
(Garden City, New
1976),
Chapter 7.
56-64.
1960, and Aug. 1,
1960.
White,
for this list.
America in Our Time
Doubleday and Company, Inc.,
presidential
1960.
15. To
support
After
his
testimony,
one of his commercials
in the
an irate viewer had telegrammed:
the
Committee
Presidential
16.
dead."
Drop
2nd sess.,
on
"I
and
Subcommittee
Foreign
Campaign Broadcasting Act,
1960,
S. Rept.
W.
Sarnoff,
86th
Debates, ed. Kraus, 59.
18. New York Times, May 18,
1960.
Ibid.
286
in
The
of
Commerce,
Congress,
3171.
"An NBC View,"
show,
like Ike and I love
Communications
Interstate
had
campaign
Ibid.
17. Robert
19.
1956
five minutes of a popular television
interrupted
Lucy.
cautioned
Stevenson
Great
ENDNOTES FOR CHAPTER FIVE
1.
Little,
Murrow (Boston:
R.
3rd ed.
3.
Prentice-Hall,
"See It Now vs. McCarthyism:
of
1974);
diss.,
(Ph.D.
Persuasion"
Documentary
University of Missouri,
387;
Broadcasting,
American
251-261.
Michael Dennis Murray,
Dimensions
1969);
& Company,
New Jersey:
(Englewood Cliffs,
1978),
Inc.,
The Life of Edward
Brown,
of
Documents
Kahn,
J.
Frank
2.
Prime Time:
Alexander Kendrick,
Kendrick,
Time,
Prime
Kahn, Documents of American Broadcasting, 252.
Edward R.
Murrow, "Wires and Lights in the Box,"
to
(Address
Directors
News
Television
Radio
the
Association, Chicago, Illinois, Oct. 15,
1958),
cited in
Kahn, Documents in American Broadcasting, 251-261.
4.
Ibid.
5.
Ibid.
6.
Ibid.
7.
David Halberstram,
A.
Knopf, 1979).
Times, Oct.
11,
Powers That Be
For quiz show
17,
18,
23,
29,
(New York:
Alfred
scandals, see New York
1959, and Nov. 3,
5,
1959.
8.
Kahn, Documents of American Broadcasting, 281.
9.
"Report
and Statement of Policy re:
banc Programming Inquiry,"
FCC
2303,
cited
in
287
en
25 Federal Register 7291;
Kahn,
Broadcasting, 262-278.
Commission
Documents
of
44
American
10.
Newton N.
the
Minow, "The
National Association of
D.C.,
May 9,
1961),
Broadcasting_
11.
'Vast Wasteland'"
(Address to
Broadcasters,
Washington,
cited in Kahn, Documents of American
281-291.
Fairness Doctrine Primer, 29 Federal Register 10415,
1964.
"The
Geller,
12. Henry
Fairness
Problems
Broadcasting:
Action,"
R-1412-FF,
Harris
In
Reference
To
Implementation, FCC 63-851,
13.
Suggested
and
1973;
Doctrine
Walker
County
The
(1973).
Doctrine"
"Fairness
40 FCC 582
Broadcasting
(1963).
Inc.,
Co.,
And To
In
Inc.,
Responsibility Under The Fairness Doctrine,
40 FCC 576
of
Courses
Letter To The Honorable Oren
Letter To The Cullman Broadcasting Co.,
The
In
Re
FCC 63-849,
(Here and after this will be
cited
as "Cullman.")
14.
The FCC noted that only persons or groups subject to
personal attacks by broadcasters had a
"right" to direct
access to a station's viewers.
15.
Letter- To
Nicholas
Commerce,
315
Mr.
Zapple,
For
Fairness
(1970).
Nicholas Zapple
In Re
Request
Communications Counsel,
Committee On
Interpretive Ruling Concerning
Doctrine,
FCC
70-598,
By
23 FCC
Section
2d
707
(Here and after this will be referred to as
"Zapple.")
288
16.
Letter
From Federal Communications
Commission
Television Station WCBS-TV, 8 FCC 2d 381
17.
48 FCC 2d 261
18.
Office
of Communications of the United
Christ
v.
994
19.
Red Lion Broadcasting Co.,
Inc.,
(Here and after referred to as
20.
Ibid.,
389.
21.
Ibid.,
392.
22.
Ibid.,
391.
23.
Ibid.,
377.
24.
See supra, Chapter 3.
25.
Red Lion, 382.
Ibid.,
28. White
Church
Federal Communications Commission,
Communications Commission et al.,
27.
(1967).
(1974).
(D.C. Circuit Court of Appeals
26. Ibid.,
of
395 F.2d
1966).
et al.
v.
Federal
396 US 390
(1969).
"Red Lion.")
-391.
366.
quotes
"We
Pastore:
insisted
that
provision [referring to Proxmire's amendment]
the bill,
the
To
the
remain
in
to be a continuing reminder and admonition to
Federal
Communications
289
Commission
and
to
the
broadcasters
alike,
that
philosophy that gave birth to Section 315,
in giving the
the right to have a full and complete disclosure
people
of
conflicting views on news of
of
the country."
said
Penn.)
(R-
Senator Hugh Scott
In addition,
the provision was
people
interest to the
"intended
encompass
to
are
which
legitimate areas of public importance
all
the
abandoning
we were not
controversial."
29.
There is a twist in all this.
glossed
the
over
A sleeper.
hard question
of
whether
did codify the Fairness Doctrine.
really
The Court
Congress
is
Red lion
open to interpretation on this precise point, as well as
on
that
the spectrum scarcity rationale.
The
noted
Court
Senator Proxmire's original amendment had
imposed
statutory Fairness Doctrine obligations on broadcasters,
but that a conference committee altered the amendment to
"the
merely approving language."
present
(395 US
384)
And later, the Court described the Fairness Doctrine and
the
personal
rule
attack
as
to
"complementary"
statutorily imposed responsibilities like Equal Time.
These
expressions
Proxmire
assertions
are
inconsistent
with
elsewhere in Red Lion that the watered down
amendment "vindicated the FCC's
290
general
view
that
the
interest
latched
in
inhered
(395 US
onto
380)
these
the
Fairness
public
Doctrine
inconsistencies.
They
Doctrine
codified and that the Court's
approval
limited
solely
to
political editorial
the
personal
19260.
31.
Fairness Doctrine in
"The
attacks
and
rules.
30. FCC Docket No.
Geller,
in
the mid eighties that the Fairness
had never been
was
Doctrine
standard."
opponents
argued
Fairness
Broadcasting,"
iii.
32.
Geller
also
attacks
its
and political editorial rules,
making
timely
personal
those
told the FCC to revise
decisions on a
attacks
cases
and to continue
case-by-case
and political
where Cullman,
editorials,
Zapple,
basis
for
that
is,
or Red Lion
pertinent until it had made newer rules.
291
personal
were
ENDNOTES FOR CHAPTER SIX
1.
Aspen
The
Of
Petitions
Program
Institute
Communications And Society And CBS,
Inc.,
On
For Revision
Or Clarification Of Commission Rulings Under Section 315
FCC 75-1090, 55 FCC 2d 697(1975).
(a)(2) And 315(a)(4),
2.
Ibid.,
Chisholm v.
and
Circuit Court of Appeals,
3.
Ibid.,
700.
4.
Ibid.,
704.
5.
Ibid.,
713.
6.
Ibid.,
716.
7.
Ibid.,
715.
8.
New
York
Oct.
3,1976.
Times,
Sept.
9.
Ibid.
10.
Ibid.,
Sept. 24,
28,
1976.
11.
Ibid.,
Sept. 26,
28,
1976.
12.
Ibid.,
Sept. 24,
1976.
13.
Ibid.,
Sept. 25,
1976.
14.
Ibid.,
Sept. 28,
1976.
15.
Ibid.,
Oct. 23,
16.
Ibid.,
Oct. 8,
17.
Ibid.,
Oct.
15,
1976.
18.
Ibid.,
Feb. 16,
1980.
1976.
1976.
292
838 F.2d 349
FCC,
(D.C.
1976).
20,
21,
22,
1976,
and
19.
Ibid.,
20.
Ibid.
21.
Ibid.,
Oct.
19,
Sept.
20,
Sept.
16,
1980.
23,
24,
25,
27,
1980, and
29,
1980.
18,
1980.
22.
Ibid.,
Aug. 10,
23.
Ibid.,
Sept.
23,
1980.
24.
Ibid.,
Sept.
14,
1980.
25.
Dorothy Ridings, Remarks at a Conferece held at the
cited
1982,
Television
in
F.
School
Kennedy
January
Massachusetts,
Cambridge,
Goverment,
John
Politics,
of
Institute
andd
of
29-31,
Presidential
the
Self Interest and the Public Interest, edited
Election:
Lexington,
by Martin Linsky,
Massachusetts:
Lexington
Books, 1983.
did
26. Anderson
which
Election
Anderson
could
Commission
performance.
issued
a
ruling
The
that
against
his
but that banks could not use the
FEC
seek bank
legally
election subsidy,
problems,
financial
probably had an impact on his
Federal
ruling
from
suffer
loans
to support the legality of such loans if anybody
challenged the legality of the loans in court.
27.
New York Times, Oct.
28.
Ibid.,
Sept.
29.
Ibid.,
Oct.
20,
18,
18,
1980.
1980.
1980.
293
30.
Ibid.,
Oct. 22,
31.
Ibid.,
Oct.
32.
Ibid.,
Nov. 30,
33.
For full
list of respondents,
82-564,
Report and Order, adopted Nov. 8,
4,
1980.
1980.
1980.
released Nov. 16,
Broadcasting, Feb. 1,
35.
The
1985.
FCC also declined the petitioners' request
exempt
documentaries
instead
to
Number
Nov. 9,
1983.
the
creating
a
requirements
political
Equal
it
Time;
political
preferred
Number
D.C.
ruled
Appeals Court had
exemption
to
the
News,
82-564,
"in
equal
in order to facilitate broadcast
news,
about
See FCC
17750 concerning Docket
broad
to
complaints
on a case-by-case basis.
Report
part,
from
decide
documentaries
of
1983 and
1983.
34.
36. In
see BC Docket Number
time
coverage
Congress knowingly faced risks
of
political favoritism by broadcasters, and opted in favor
of
broadcaster
coverage
and
increased broadcaster
discretion.
Rather than enumerate specific exempt
non-exempt
uses,'
legislative
to
366,
Congress
generality,
the Commission.
in
favor
of
preferring to assign the task
See Chisolm
(D. C. Circuit 1976).
37. Wall Street Journal, Nov. 9,
38. Broadcasting, Feb. 27,
opted
and
1984.
294
1983.
v.
FCC, 538 F.2d
ENDNOTES FOR CHAPTER SEVEN
1.
Statement
of
In the
Phyllis Schlafly,
Matter
Into Section 72.1910 Of The Commission's
Inquiry
of
Rules
And Regulations Concerning The General Fairness Doctrine
Docket No.
Obligations Of Broadcast Licensees,
before
the
D.C.,
Washington,
Commission,
Communications
Federal
7,
Feb.
84-282,
(Here and after this
1984.
will be referred to as "Schafly Comments.")
2.
Federal Register, vol.
84-140,"
FCC
84-282;
No.
May 14,
(Here and after cited as "Notice of
3.
Among
other cases,
which
held
of speech,
freedom
speaker,
Inquiry".)
decisions
Court
granted
amendment
robust
irrespective of the identity of the
(First National Bank v.
Linmark
735(1978),
Willingboro,
Associates,
431 US 85(1977)).
Inc.
435
US
Township
of
Belotti,
v.
The FCC also noted that
recent Court ruling held that the first amendment was
fundamental,
absolute,
any
individuals'
enhance another's
a
word,
freedom
and
unabridgeable,
importantly for the Fairness Doctrine,
In
20317-20344.
1984,
or the persuasiveness of social undesirability
of his speech
a
the FCC cited
the first
that
"General Docket
no. 94,
49,
forbade limiting
of expression
(Buckley v.
Valeo,
in
424 US
the Court currently ruled that
not distributive.
amendment
is absolute,
apparent
first amendment
295
that,
order
to
1(1976)).
the
first
It also noted
incompatibility of two Supreme
Court decisions, one
(Miami Herald Publishing Co.,
Division of Knight Newspapers,
Us
241(1973))
v.
Inc.,
Tornillo, 418
denying ordinary citizens access
rights
to
newspapers on the first amendment grounds of
freedom
of
the press and another
al.
v.
FCC et al.,
speech,
that
broadcasters
For
of
(Notice of
Inquiry
citizens'
are
citing freedom of
access
rights
on
the following comments
Charles Ferris,
Floyd Abrams,
here
et
Inquiry).
purposes of simplicity,
Rubin,
Quello
395 US 367(1968)),
imposed
Eric Sevaried,
David
(Red Lion Broadcasting Co.,
Esq.,
Reed
Doug Ginsby,
and James H.
cited as comments In the
Into Section 73.910 Of The
Irvine,
Matter
Commission's
of
Rules
And Regulations Concerning The General Fairness Doctrine
Obligations Of Broadcast Licensees,
before
the
Washington,
these
D.C.,
Feb.
"Ferris
etc.,
respectively.)
These
newer
cable
Communications
7-8,
comments will be
Comments,"
4.
Federal
Comments,"
(DBS),
System
(SMATV),
(Here
low
direct
videocassette recorders
teletext.
296
as
"Irvine
technologies
multipoint distribution service
Antenna
1984.
84-282,
Commission,
referred to
communications
distribution,
Docket No.
and after
"Sevaried
Comments,"
include
power
television
(MDS),
Satellite Master
broadcast
(VCR),
(LPTV),
satellites
and videotext and
5.
and
Comments of Columbia Broadcasting Service, Inc.,
In
Inc.,
comments of Columbia Broadcasting Service,
reply
Matter of Inquiry Into Section 73.910 Of The
the
Commission's Rules And Regulations Concerning The
Fairness Doctrine Obligations Of Broadcast Licensees,
Docket
Commission, Washington, D.C.,
1984,
6.
referred
to
Comments,"
respectively.)
In
Broadcasters,
73.910
The
Of
National
the
of
6,
Comments"
"CBS
as
Sept.
Reply
of
Association
Into
Section
Regulations
And
Rules
Commission's
be
will
"CBS
and
Matter of Inquiry
the
Nov. 8,
1984 and
and after these
(Here
respectively.
Comments
Communications
84-282, submitted to the Federal
No.
Concerning The General Fairness Doctrine Obligations
Docket No.
Broadcast Licensees,
the
D.C.,
Federal
Sept.
to as "NAB
referred
11
submitted to
Committee,
Communications
6, 1984,
84-282,
Of
Washington,
(Here and after this will be
comments");
Comments,
CBS
48-50;
Notice of Inquiry, 20324.
7.
CBS Reply Comments, 27.
8.
Two
hundred
television
twenty-seven
stations
independently
existed in 1983,
owned
up from
77
1970, and 30 in 1960.
9.
Broadcasting/Cablecasting Yearbook,
cited in CBS Comments.
297
F-31-49,
1984,
in
In the
10. Comments of the National Rifle Association,
Matter
Inquiry
of
Rules
Commission's
Section
Into
And
Of
The
Concerning
The
73.1910
Regulations
Broadcast
Fairness Doctrine Obligations Of The
General
Licensees, Docket No. 84-282, submitted to the Federal
1984.
Sept. 6,
D.C.,
Washington,
Communications Commission,
(Here and after this will be referred to as "NRA
referred
as
to
Comments
Lampert,
The
of
Doctrine
"Geller
Comments"),
The
Comments of
the
Doctrine
Fairness
Inquiry (here and after referred to as
be
of
Notice
after these will be
and
(here
will
after
Geller
Henry
Fairness
Inquiry
Project,
and
Fairness Doctrine
The
Inquiry).
here
INQUIRY
(The
comments."),
Donna
and
Notice
of
referenced
as
Media
Access
of
Notice
"MAP Comments"),
Schlafly Comments.
11.
Schlafly Comments, Geller Comments, Irvine Comments,
Media Access Project Comments.
12.
Cited
in
conference,
Lion
Statement
February
Broadcasting
of
2,
Erwin
1985.
Company,
Communications Commission,
298
press
Griswold,
For Red Lion,
Inc.
395 US 367.
v.
see Red
Federal
13. Justice
did
Douglas
decisions on political
subsequent
argued
passionately
regulation, e.g.,
National
this
in
arguments.
he had not heard the
because
decision,
participate
not
Douglas
programming,
against
government
content
Columbia Broadcasting System v.
Committee,
412 US 94
(1973).
In
Democratic
Justice Fortas
did not participate in the decision.
14.
First
National
(1978),
Linmark
Willingboro,
1 (1976),
15.
Bank v.
Bellotti,
Associates,
431 US 85
(1977),
of
Gitlow
California,
New
v.
Paterson
v.
Jackson,
96 US 727
17.
Brandywine
735
Township
of
Valeo, 424 US
205
(1877),
United States,
Commission, 473 F.
Line
the
(1925),
247 US 402
US 454
(1907),
Schenk v.
250 US
v.
616
Federal
71-72,
Broadcasting, February 18,
19.
Statement of the Honorable John D.
1985.
(1918),
Ex
Parte
United States, 249
(1927),
(1919).
Communications
(D. C.
1985, p.
18.
299
United
Toledo
California, 274 US 357
2nd 17,
conference, February 6,
of
1984.
United States,
Whitney v.
Main
League of Women
Court
268 US 652
Colorado,
(1919),
Abrams v.
v.
Buckley v.
Supreme
York,
Newspaper Company v.
US 47
US
CBS Comments, NRA Comments.
States, No 82-912, July 2,
16.
Inc.
Federal Communications Commission v.
Voters
435
Circuit,
1972).
41.
Dingell,
press
20.
Section 315 of the Communications Act of
amended September 14,
21.
Cited
in
Geller
1934,
as
1959, Public Law 86-274.
Comments,
MAP
Comments,
CBS
Comments, NAB Comments.
22.
Letter To The Honorable Oren Harris In Reference To
The "Fairness Doctrine" Implementation,
FCC 576
(1973).
300
FCC 63-849,
40
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Comments of Columbia Broadcasting
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Comments of National Broadcasting Company, Inc.
Comments of National Broadcasting Company,
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Comments of American Broadcasting Companies, Inc.
Comments of Mobil Oil Inc.
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