The point of these two cases is that the use of candidates, or candidates to be, on programs which are nonpolitical is a matter of some concern to producers of programs.

To conclude, I would say that the equal-time provision undoubtedly puts restraints on stations, restraints which probably deter abuses, but which also can hinder nonpolitical programing.

I thank the committee very much for this opportunity to discuss some of the workday realities involved in the Fairness Doctrine and the equal-time provision.

Dean BARROW. Thank you, Mr. Furber.

We now invite discussion on these papers. Inasmuch as both Mr. Harley and Mr. Furber have been in agreement on the effect of section 315 on educational broadcasting, and the fairness doctrine on educational broadcasting, we would invite first any contrary views which the panel may have.

Can it be, Mr. Chairman, that we have found one area of agreement? Mr. Chairman, would members of the subcommittee care to present questions on these papers at this time?

The CHAIRMAN. Are there any questions from members of the subcommittee?

I just might make a comment that we just passed this law last year, and all these gentlemen had an opportunity to come here and give their views, as well as everyone else, at that time.

Dean BARROW. Mr. Chairman, the restrictive provisions in the law came about because of the feeling that use of Federal funds in support of educational television could have an effect on the programing.

I have the privilege of serving as a member of the board of trustees of WCET, which is the educational broadcasting station in Cincinnati, Ohio, and as such, have had an opportunity to appreciate its financial problems, as all educational broadcasting stations have.

Educational stations have to beg from everyone for financial assistance. Federal funds are only a part of the total. I think it is doubtful that this Federal support will have the impact on programing which was feared at the time the statute was passed.

In any event, I feel that although this act has been on the books for such a short time, it would bear reexamination.

The CHAIRMAN. I am sure that it will be reexamined at the proper time. But this would not have been law if these provisions had not been put into this act. I can assure the gentleman of that. There would have been no public broadcasting in the Nation.

We have to make a start, however. If there are inequities or things that need correcting, we can remedy that. The Congress may not be the same men, but there will be a Congress, we hope, for a good while. Dean BARROW. Mr. Harley?

Mr. HARLEY. The chairman has made my speech. I do not think that the position I have expressed this morning is inconsistent with that which I maintained during the hearings, because we were trying to get a Public Broadcasting Act passed. One of the major concerns was whether the educational stations, using Federal money, would indulge in editorializing.

The thrust of my remarks was that we did not editorialize; that we weren't interested; and, therefore, they shouldn't be concerned. But we didn't anticipate that they would put in a specific prohibition into the law, which is quite a different thing.

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We think it is unfair or at least highly unnecessary to proscribe educational broadcasters from enjoying the same privilege that commercial broadcasters have. Furthermore, it is almost redundant and superfluous because the fairness doctrine plus our tax exempt status prevents us from getting very far off base if we did have the opportunity to editorialize.

We just think, along with Professor Siepmann, that all broadcasters, including educational broadcasters, should have maximum scope within which to exercise their initiative and creativity in the program area.

The CHAIRMAN. I might say in response to that, again, that we would not have had a Public Broadcasting Act if this had not been in there. I don't believe that you or any other member here believes that we are going to change that with Federal funds.

There were those on the committee who felt that if the Government put money into Public Broadcasting, it could control it. It was felt better not to have the money in there in the first place, if the Government could influence positions on questions affecting the life of the Nation. I think everyone attending the hearings knew that.

Mr. SIEPMANN. Mr. Chairman, I think it would be a sorry business if the record showed we were in total agreement on anything in these debates. Therefore, to avoid such a situation, I think I should be on the record as repeating what I said yesterday: that with reference to the right to editorialize, I would dissent from Mr. Harley's views. Whether they be educational or commercial broadcasters, it is my considered judgment that they should not have the privilege of personally editorializing as a privilege of the licensee.

The CHAIRMAN. I might add that there are millions of people in this land who feel the same way.

Dean BARROW. Mr. Chairman, the remainder of the papers on the program have to do with one subject-the continued or increased use of the Fairness Doctrine, implications of technological changes such as cable TV, the increased number of broadcasters, suggested improvements in or alternatives to the doctrine, and related Federal Communications Commission policies.

Our first paper on this subject will be presented by Mr. Vincent T. Wasilewski, president of the National Association of Broadcasters. PAPER NO. 6-VINCENT T. WASILEWSKI: THE EFFECT OF THE FAIRNESS DOCTRINE ON THE BROADCASTING OF PUBLIC CONTROVERSY

Mr. WASILEWSKI. I would like to say that I agree with the principle espoused by Mr. Harley that educational broadcasters should not be prohibited from editorializing.

The Fairness Doctrine is a statement of policy by the Federal Communications Commission that a broadcast licensee has an affirmative obligation to afford reasonable opportunities for the presentation of contrasting viewpoints on any controversial issue which he chooses to

cover.

Until as late as 1959, the only statutory basis asserted for the Commission's doctrine was the "public interest" standard of the act. The Commission took the position that fairness requirements are "inherent in the conception of the public interest ***" In 1959, Congress amended the equal opportunities provision of section 315 to exempt news broadcasts and, in so doing, provided:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, new documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

The Commission now also relies upon the language of the 1959 amendment as authorization for its fairness doctrine.

I am convinced that most broadcasters feel that the doctrine is (a) legally unsupportable and (b), in operation, impractical.

At the outset it should be noted that broadcasting, like other media, is protected by the first amendment. Thus, in United States v. Paramount Pictures (1948), the Supreme Court said:

We have no doubt that moving pictures like newspapers and radio are included in the press whose freedom is guaranteed by the First Amendment.

Freedom of the press has been consistently interpreted by the Supreme Court to mean that the press has a vital role to perform in assessing the activities of public figures and taking positions on public issues, and that it shall in no way be hampered in its performance in this role by governmental intrusion.

The Fairness Doctrine constitutes an abridgment of the right of free speech. The first amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press.

The word "abridgement" means a diminution, lessening, or reduction. In other words, neither Congress nor its creature, the FCC, may diminish, lessen, or reduce the right of free communication.

This is precisely the net result of the Fairness Doctrine. It discourages the use of broadcasting for the expression of opinion, and thus abridges the broadcaster's right of free speech.

Historically, there are several limitations on speech that have been held not to violate the first amendment. These are situations in which speech defames, is offensive to the basic mores of society, is injurious to the public health, or presents a clear and present danger to the Nation.

While conceivably a single program or editorial might fall within one of these categories, broadcasting as a whole obviously does not. Other arguments are advanced to justify the abridgment of freedom of speech by radio and television.

Some suggest that, because broadcasting is licensed, different considerations apply. For example, in the recent case of Red Lion Broadcasting v. FCC (1967), Judge Tamm, speaking for the Court of Appeals for the District of Columbia, gave voice to this concept by stating that since radio is inherently not available to all, "the compulsory granting of free time may, and probably does, impose a burden on the licensees" but not an unreasonable one.

This rationale, however, will not withstand close analysis. Since the early days of radio, when the concept of scarcity was first voiced, the development of broadcast technology has created more than 5,000 channels of broadcasting communications. During that same period, the number of daily newspapers has decreased from over 2,000 to slightly more than 1,700. Thus, broadcasting is more multivoiced than the daily newspapers-by a margin of about four to one-the comparable and competitive medium for the dissemination of current news and information.

Apart from this, however, there is nothing in the first amendment which says that it is proper to abridge freedom of speech because of scarcity, whether it be a scarcity of public halls, of soapboxes, or churches, or printing presses, or newsprint. As a matter of fact, we are warned by conservationists that the supply of timber is being rapidly exhausted and we may have an acute shortage of newsprint in the nottoo-distant future. Will this justify a Fairness Doctrine for newspapers?

Finally, it is argued that the people own the airwaves and broadcasters operate in the public domain. Therefore, since private persons can be prohibited from using the spectrum, their privilege to use it can be conditioned in any way that the Congress or the FCC, in their own discretion, deem desirable.

It is axiomatic that the power of government to grant or withhold a privilege does not carry with it power to bargain with a citizen for the surrender of his constitutional rights.

It is clear that, even though it be said that Congress merely extends a privilege which it is free to withhold-access to a microphone in the public domain-it nevertheless may not exact for that privilege the surrender of the right of freedom of speech. Assuming that the Constitution no more guarantees the private use of a microphone than it guarantees the private use of Government buildings, once that use is permitted, the constitutional rights attach to and govern it.

Indeed, if anything, the assumption that the Government has absolute discretion to refuse the private use of a means of comunication makes it more than ever necessary that the constitutional rights be given the broadest reach.

In sum, the facts are: that none of the judicially acceptable limits on freedom of speech apply to broadcasting per se, that broadcasting is an important part of the press, that the available channels for broadcasting are not only abundant but far more numerous than those of the daily newspaper and no constitutional distinction can legitimately be drawn between the two, and that the Government may not compel a broadcaster to surrender his constitutional rights in exchange for the privilege of using the spectrum.

The doctrine, conceived originally as a policy of a very general nature designed to bring out a balanced presentation on matters or public controversy, has been repeatedly extended and broadened. These raise additional serious questions. It now contains specific rules relating to personal attacks and political editorializing, and has even been applied to product advertising.

Under this extension of the doctrine, the Commission actually compels licensees to broadcast particular programs or to offer time to particular spokesman. Failure to comply subjects licensees to fine, forfeiture, or immediate revocation-of-license proceedings. This is in contrast to the general requirement of fairness in other areas which are reviewable, along with other items of station operation, at renewal time.

In many ways, the burdens imposed upon the broadcasters by the personal attack rules are, if anything, more severe than the burdens of damages for defamation that have been held unconstitutional as applied to even false, nonmalicious statements in printed media.

The Commission's personal attack doctrine imposes governmental sanctions on licensees for statements that might reflect adversely upon the character of individuals or groups, even though those statements are made in the context of a discussion of an issue of public importance. Instead of imposing civil damage liability, however, which obviously it may not do, the Commission compels the broadcaster to carry the reply of the person attacked.

To the extent that the sanction is to be imposed, even if the statement involved is entirely true or, if false, is made without malice, this right of reply goes much further than the remedy struck down by the Supreme Court. Thus, the "personal attack" rules impose burdens as onerous as many that have been held unconstitutional on the ground that they encroach on constitutionally protected rights of speech or press.

I would like to turn now from legal questions to the practical application of the Fairness Doctrine.

The purpose of the doctrine is to stimulate discussion of important issues and to insure that all views are heard. In its application to broadcasting, however, it operates in just the reverse.

The application of the doctrine requires the FCC to make subjective judgments involved in determining what is controversial and what is not, in determining who and how many have the standing to reply to a controversial issue, in determining what is "fair" and what is not. The regulatory process operates as follows: The FCC examines any suspect broadcasts. First, it must determine whether the broadcast is of a controversial nature-no easy task. Then it tests the program content, examining the substance, to determine whether the correct degree of fairness was present. Finally, it tells the licensee whether he was right or whether he was wrong. Any errors are entered on his record to be considered at renewal time.

Thus, the basic problem with the Fairness Doctrine is that it has the effect of discouraging the use of broadcasting for the expression of opinion. There is a basic inconsistency in a policy that purports to encourage the voicing of controversy on the air while at the same time closely supervising and policing its execution and punishing mistakes. The mere idea of this policing will discourage some broadcasters. The complex thicket of rules which necessarily grow out of such a policy will discourage many more. The penalty for being wrong will discourage more. And if that isn't enough, the inevitable harassment from various groups who feel that they are entitled to free time will just about discourage the rest.

This bears emphasis. Other media of expression and entertainment--for example, the newspaper or the theater-can be vigorously independent of the views of Government as to what is good for the people. But the broadcaster, faced with Government's power to decree life or death for his enterprise at a maximum of every 3 years, with judicial review a gamble against longest odds, does not have the same independence. The views-even the hinted views of the FCC can prevail to such a degree that its power, practically speaking, has become known as the power to regulate by the lifted eyebrow.

Few would disagree with the objectives of the Fairness Doctrine. Fairness is, indeed, a quality desired by all. But it is a quality that can rarely be defined or measured to the satisfaction of all. When a