MEMORANDUM OPINION AND ORDER

(Adopted August 5, 1970; Released August 12, 1970)

BY THE COMMISSION: COMMISSIONER COX CONCURRING AND ISSUING A STATEMENT; COMMISSIONER JOHNSON DISSENTING AND ISSUING A

STATEMENT.

BACKGROUND-REQUEST AND PLEADINGS

1. On May 19, 1970, the Democratic National Committee (DNC) filed with the Commission a request that the Commission issue a declaratory ruling that

"A broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as DNC, for the solicitation of funds and for comment on public issues." 1

2. DNC seeks a declaratory ruling on these matters because of its desire to purchase time on individual broadcast stations and networks for the purpose of presenting programs and spot announcements of varying duration, some of which would be devoted to the solicitation of funds while others may contain comment on various controversial issues of public importance. The campaign envisioned will, according to DNC, require the expenditure of "thousands of dollars" and thus it seeks assurance that it will be able "to obtain the access to the broadcast media which implementation of the plan demands." It appears that in the latter part of March, 1970, CBS rejected a request by DNC to purchase one-half hour of prime time for the presentation of an issue-oriented program which would have included an appeal for contributions to the Democratic Party. It is said that CBS' position at that time was that it would sell time for political purposes only during election campaigns. DNC also approached NBC and was told that that network would make available prime time for purchase by the Committee for a program presenting the views of the party on

1 Comments with respect thereto were filed by the American Broadcasting Company (ABC) on June 11, 1970 and by the Columbia Broadcasting System (CBS) on June 22, 1970 and a statement by the National Broadcasting Company (NBC) was filed on June 22, 1970.

important public issues and including a solicitation of funds for the party. It is not clear that DNC approached the ABC network in view of the latter's alleged general policy against solicitation of funds other than for charity and with network approval. By reason of the foregoing and the alleged common policy of individual broadcast stations to decline to sell time for spot announcements or programs for the broadcast of views on controversial issues of public importance or for the solicitation of funds, DNC states that its problem-access to broadcast licensees for the presentation of its programs-can be resolved only through the issuance of the blanket declaratory ruling described in paragraph 1, supra.

3. We believe that the policy matters raised by DNC are, to a substantial extent, appropriate for consideration and that a full statement of our views will provide helpful general guidance for the public and Commission licensees. We, however, do not believe that all of the various matters raised by DNC are susceptible to the declaratory order sought and we cannot at this juncture rule upon every conceivable factual situation which may arise.

4. In support of its request, DNC has set forth some pertinent financial considerations of present-day political campaigning and the development of a narrow rather than a broad-based financial support of political parties. DNC contends that access to mass media, particularly radio and television, is necessary to attract the attention and seek the support of potential small political contributors. It is only in this way, DNC contends, that a healthy political system can function. DNC urges that its proposed broadcast campaign should not be precluded by a variety of differing station and network policies and that the question of access to broadcast media for responsible groups should be subject to a uniform national policy. The arguments advanced by DNC are based upon constitutional, statutory and public policy grounds.

5. The constitutional argument advanced by DNC is essentially that the Supreme Court's decision in Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969) reaffirmed the public's First Amendment right to hear contrasting views on issues of public importance and "employed language that would extend to members of the public the right of access to broadcast facilities." DNC argues that the network policies of ABC and CBS represent arbitrary barriers to broadcast facilities contrary to the law as expressed in Red Lion, supra. DNC suggests that under the Red Lion standard reasonable restrictions by broadcasters are permissible-e.g., limitation of use of broadcast facilities to responsible spokesmen and protection against use of facilities for libelous presentations or those in bad "taste."

6. According to petitioner, the overriding public policy consideration requiring the declaratory ruling is that the public airwaves-the most powerful communications medium in our society-which are used

2 For example, in 1968, $90 million was expended on political use of radio and television (equaling about of the total expenditure on political campaigning for the year). See Alexander and Myers, A Financial Landslide for the GOP, Fortune, March 1970. pp. 104, 189. Another indicative statistic is the fact that in 1956, only 40% of the contributions to the Democratic Party exceeded $500 whereas the figure had increased to almost 80% in 1968. According to DNC the narrowing of the political contribution base can result in a dangerous concentration of the sources of revenue in special interest groups which, in turn, threatens the entire democratic process.

to solicit funds for "soaps, brassieres, deodorants and mouthwashes" should be utilized to solicit funds to enhance the exchange of ideas. DNC contends that regardless of whether the Commission issues the declaratory ruling requested, the refusal of a broadcaster to sell time to DNC should be evaluated adversely to such broadcaster at time of renewal. The reason for this, DNC urges, is the importance of the broadcast media to political expression (Farmers Ed. and Coop Union v. WDAY, 360 T.S. 525, 529–30 (1959)) ; the public interest consideration inherent in broadcasters making time available for political broadcasts (Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 20 RR 1901 (1960)); the Commission's prior holding that an arbitrary limitation of coverage of an election campaign prior to the campaign was contrary to the public interest (Citing Homer R. Rainey, 3 RR 737 (1947); City of Jacksonville, 12 RR 113, 180j (1959); and Loyola University, 12 RR 1017, 1099 (1956)) and that the Commission's ruling in Women's Strike for Peace (letter of November 22, 1965) predates Red Lion and, to the extent it conflicts. with that decision, is no longer controlling. Finally, DNC notes that it is seeking not a ruling which would require a broadcaster to accept particular programs or announcements, but only that broadcasters may not establish arbitrary barriers to access by responsible groups, such as DNC, contrary to the First Amendment and Red Lion, supra, or that the establishment of such barriers is contrary to the public interest.

7. Response of the Networks: In response to the DNC request, American Broadcasting Companies, Inc. (ABC) submitted portions of its "standards and policies" (The complete version has been filed in BAL-5733, Exhibit I-B, Attachment B. Section III). ABC recites its standards relating to solicitation connected with appeals for charity (no solicitation without specific permission of ABC) and appeals related to religious broadcasts (solicitation permitted in prescribed manner not here relevant), but states that its policy is not to sell time for solicitation of funds in other situations, absent special public interest considerations. It is ABC's judgment that DNC's request is concerned with "the continued strength and viability of our two party system" and is thus a "special public interest consideration" justifying an exception to its normal policy of not selling time for solicitation purposes.

8. ABC states that with respect to controversial issues of public importance, there are "dozens" of "responsible entities" who would wish to purchase time to present their views "were we to open the door." ABC contends that it would be "reasonable to anticipate a flood of such requests." Thus, ABC states, it will adhere to its general policy against the sale of time for controversial issue programs and announcements. However, ABC under its "special public interest consideration" standard would ". . . be prepared, consistent with its other obligations, to accept such orders for time from major political parties as can be accommodated on a reasonable basis."

a. CBS' lengthy response to the DNC complaint advances three major arguments: (1) that DNC has misunderstood CBS' policies relating to presentation of controversial issues and that CBS' policies

insure full and fair presentation of such issues; (2) that a regulatory policy which imposes common carrier obligations on broadcasters would be contrary to the public interest; (3) that there is no constitutional or statutory right to compel broadcasters to carry the DNC programs; and, (4) that such obligation would be contrary to the Communications Act and Commission precedent.

9. With respect to the first major argument, CBS argues that DNC has not alleged violation of the fairness doctrine but rather seeks to take presentations of controversial issues away from the control and supervision of the licensee. CBS states that if licensees were required to permit the purchase of air time for the presentation of views on controversial public issues, the nature of broadcasting would be radically altered to the detriment of fair, objective and balanced information available to the listening public. CBS has followed a policy of refusing the sale of broadcast time for presentations of controversial issues in favor of providing "significant opportunities" for such discussions without charge to proponents of various viewpoints through news and information broadcasts. To sell time for presentations on public issues, argues CBS, would result in the preemption of the limited broadcast frequencies by those with strong financial resources which would "necessarily distort the manner in which issues were presented" to the public. CBS asserts that under its present policies, it provides a "high proportion of direct presentations of views" by "the actors in the events of the day" and thus, aside from fully informing the public of differing viewpoints on controversial issues, also provides an opportunity for those holding differing viewpoints to present their own views. These direct presentations, CBS notes, are part of its overall effort to inform the public fully and fairly and are not permitted to become an instrument of "partisan advocacy." The First Amendment, CBS argues, is primarily concerned with the right of the public to be informed as opposed to the right of the public to speak or to be

heard.

10. CBS' policy against sale of time for the presentation of views on controversial issues does not apply to broadcasts on behalf of political candidates or ballot propositions. This exclusion is based upon CBS' belief that the intent of Section 315 is to facilitate the discussion of political issues by legally qualified candidates; such political broadcasts may include a direct appeal for funds so long as CBS is not involved in the collection or handling of such funds. CBS also states its intention to permit the purchase of a special category of spot announcement (up to one minute in length) for the purpose of political fund raising which need not be on behalf of political candidates or ballot propositions.

11. With respect to the common carrier argument, CBS states that such a policy would be contrary to the public interest because

3 CBS asserts that it has served the public by presenting issues and viewpoints within a balanced program schedule utilizing newsworthiness as the sole criterion. CBS emphasizes the growth of public affairs and news presentations during 1968-69 v. 1956-57-e.g., total hours of news and public affairs broadcasting-1.354 v. 675; prime presentations192 v. 34; regularly scheduled hard news 6:00 p.m.-11:00 p.m., 338 v. 130; and total hours of news documentaries 100 v. 37. In addition, CBS also presents a comprehensive exhibit to demonstrate the coverage given one of the major issues of the day by CBS and WCBS-TV-the Indochina War and domestic reaction to it. This Indochina exhibit includes a minute and second analysis of CBS' total coverage of this issue and runs over 100 pages.

partisan presentations would diminish the time available for other news, sports and entertainment programs and would result in an "auction" to the highest bidder to determine what issues will be discussed and how such discussion will be conducted. Moreover, CBS queries, would the broadcaster then be responsible for restoring the balance? How would a net work choose among competing bidders if not enough time were available for all? What standard is to be used to determine "responsible entities?" CBS argues that DNC's proposal would divest the licensee of responsibility for controversial issue programming and would ultimately require the Commission to make judgments as to the specific programs which are presented or rejected. 12. The legal arguments which CBS advances-i.e., that DNC'S request is without constitutional or statutory basis, that Commission compulsion to carry DNC's programs is barred by the Communications. Act, and that the action which DNC requests of the Commission is contrary to the Commission's own policy and precedent-are based primarily upon the assertion that no particular person or group has the right to speak over broadcast facilities and that to assert such a right would ultimately require the Commission to assume the role of a censor or arbitor of specific programs, contrary to its long-established policy of avoiding such governmental involvement. CBS asserts that the McIntire case stands for the proposition that "broadcasters. though licensed by the Commission and subject to its valid regulations, are not publicly owned facilities, and there is no First Amendment right to purchase time on radio or television stations." CBS further asserts that nothing in Red Lion indicates that McIntire is no longer good law or that, apart from Section 315, there is any legal obligation for broadcast licensees to sell time. Rather, CBS says, Red Lion merely sustained long-standing Commission policies which are wholly inconsistent with DNC's request.

4

13. To accede to DNC's request, CBS argues, would violate Sections 3(h) and 226 of the Communications Act, which taken together establish that the licensee-not the Commission-is to exercise the power of program selection. The right of personal reply to material previously selected for broadcast is limited to equal opportunity for political candidates, replies to personal attacks and replies to station political endorsements. CBS contends that the legislative history of the Communications Act supports its assertion that the statutory scheme envisions a system in which the broadcaster is left with the initiative of assuring that programs presented are in the public interest. 14. Finally, CBS asserts, DNC's request is "fundamentally inconsistent" with the concept of licensee responsibilities and specifically, contrary to the Commission's prior holdings that "the Commission has no power to require a broadcaster to carry or refrain from carrying any particular program, or to prescribe the content of any program presented over the air." Letter to Women's Strike for Peace, November 22, 1965. Nothing in the Red Lion decision, supra, states CBS, indicates

4 McIntire v. Wm. Penn Broadcasting Co., 151 F. 24 597 (3rd Cir 1945) cert. den. 327 U.S. 779 (1946).

Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367 (1969).

To support this proposition. CBS also cites McIntire v. Wm. Penn Broadcasting Co., supra; 1949 Editorilizing Report, 13 FCC 1246; 1960 Report and Statement of Policy in the En Banc Programming Inquiry, 25 Fed. Reg. 7291 (August 3, 1960); and letter to Judy Collins, March 24, 1970.