The doctrine has also been applied to discussions of the nuclear test ban treaty.19

The licensee has been held to have an affirmative duty to encourage the presentations of contrasting views; he may not merely make time available upon request.20 The licensee's duty to observe the Fairness Doctrine is not affected by the positions on public questions which may be taken by other media.21 The licensee may not seek to avoid Fairness Doctrine problems altogether by refusing to carry programs dealing with controversial issues.22

C. COMMISSION RULES

The FCC has not promulgated any general rule or regulation on the Fairness Doctrine.23 The Commission has decided Fairness Doctrine questions on an ad hoc basis.24

On July 5, and August 2, 1967, the FCC adopted rules covering the special cases of personal attacks and political endorsements. These rules, however, are applicable only in the specialized fact situations to which they are addressed.25

The reasons for the formal promulgation of these rules were stated by the Commission as follows:

The purpose of embodying the procedural aspects of the Commission's longadhered-to personal attack principle and political editorial policy in its rules is twofold. It will clarify and make more precise the obligations of broadcast licensees where they have aired personal attacks and editorials regarding political candidates. Further, in the event of failure to comply with these rules, the Commission will be in a position to impose appropriate forfeitures (503(b) of the Act) in cases of clear violations by licensees which would not warrant designating their applications for hearings at renewal time or instituting revocation proceedings but on the other hand do warrant more than a mere letter of reprimand.

26

This raises by negative inference the question of whether violations of the Fairness Doctrine which do not involve personal attacks or political endosements might be immune from fine under section 503 (b) of the Act.27

This in turn bears upon the question of whether the Fairness Doctrine is a statutory requirement or merely an administrative policy. If

19 Cullman Broadcasting Co., Inc., 25 R.R. 895 (1963).

20 Fairness Primer, paragraph 9. see also John J. Dempsey, 6 R.R. 615 (1950).

21 Letter to WSOC Broadcasting Co. 17 R.R. 548 (1958.)

29 See United Broadcasting Co., 10 FCC 515 (1945).

23 A fact noted by the FCC in its Fourth Report and Order on Subscription TV. 10 R.R. 2d 1623, at page 1719 (note 48).

24 On September 5, 1963, Chairman Harris of the House Commerce Committee addressed a letter to the FCC taking issue with the ad hoc approach to regulation under the Fairness Doctrine: "If the Commission in an attempt to achieve fairness seeks to apply its Fairness Doctrine to the content of individual programs involving the discussion of issues of public importance then, contrary to the policy of the Act, the Commission inevitably will inject itself into programing on a day-to-day basis."

The Commission defended its approach to Fairness Doctrine questions in its reply dated September 20, 1963. Letter to Oren Harris, 3 R.R. 2d 163 (1963).'

25 See note 2, above.

20 Fairness Doctrine Rules, 10 R.R. 2d 1901 (1967), at 1904.

27 The section reads, in part, as follows:

"Any licensee or permittee of a broadcast station who—

(A) willfully or repeatedly fails to operate such station substantially as set forth in his license or permit,

(B) willfully or repeatedly fails to observe any of the provisions of this Act or of any rule or regulation of the Commission prescribed under authority of this Act or under authority of any treaty ratified by the United States,

(C) fails to observe any anal cease and desist order issued by the Commission, (D) violates section 317 (c) or section 509(a) (4) of this Act, or

(E) violates section 1304, 1343, or 1464 of title 18 of the United States Code, shall forfeit to the United States a sum not to exceed $1,000. Each day during which such violation occurs shall constitute a separate offense. Such forfeiture shall be in addition to any other penalty provided by this Act. * *

the doctrine is actually embodied in the law, violations thereof would seem to be subject to fines on the same basis as other violations of the Act, even in the absence of an administrative rule on the subject.

The position of the FCC is that the doctrine is an integral part of the Communications Act:

[J]ust as there is a specific statutory obligation upon the licensee to afford "equal opportunities" to legally qualified candidates, so also there is one "to afford reasonable opportunity for the discussion of conflicting views on issues of public importance to be fair in treating controversial issues." "

It is not clear whether the Commission in its notice of July 5, 1967, quoted above, actually intended to take the position that violations of the Fairness Doctrine which do not come under the purview of its "personal attack" rules are immune from fine, although such seems to be a permissible inference from its above-quoted language.

II. SECTION 315 OF THE COMMUNICATIONS ACT OF 1934

The language of the Communications Act of 1934 which seems to refer to the Fairness Doctrine appears in section 315 which is entitled "Facilities for Candidates for Public Office." Subsection (a) thereof provides that any broadcaster who permits a legally qualified candidate to use his facilities must afford equal opportunities to all other such candidates for the same office. The subsection then goes on to exclude appearances by a candidate on certain news programs from being classified as a "use" of the station such as would entitle his opponents to equal time.

The subsection concludes as follows:

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

The last two sentences in subsection 315 (a) are still the subject of debate as to their effect and the legislative intent behind them. The language was added as part of the Communications Amendments of

1959.

The words "the obligation imposed upon them under this Act" seemingly contemplate some statutory provision located elsewhere in the Communications Act. No such specific provision exists, however. The words "reasonable opportunity for the discussion of conflicting views on issues of public importance," which seemingly paraphrase the Fairness Doctrine, are found nowhere else in the Communications Act. The position of the Federal Communications Commission on the statutory mandate for the doctrine seems to be that the policy is a necessary corollary of the requirements in the Act that licensees operate in the "public interest convenience or necessity", and that radio is to be preserved as a medium of freedom of speech (see 1949 Editorializing Report). The enactment of the 1959 amendments is regarded by the FCC as a congressional ratification of the doctrine:

Congress recognized this policy [i.e., the Fairness Doctrine] in 1959. In amending section 315 so as to exempt appearances by legally qualified candidates on

28 Letter to Hon. Oren Harris, 3 R.R. 2d 163, at 165 (1963).

certain news-type programs from the "equal opportunities" provision, it was stated in the statute that such action should not be construed as relieving broadcasters "*** from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance." * * The legislative history establishes that this provision "is a restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under the Communications Act of 1934" (H. Rept. No. 1069, 86th Cong., first sess., p. 5)."

Similarly, in a memorandum submitted during the hearings on political broadcasts and equal time held before the Subcommittee on Communications and Power of the House Commerce Committee, the FCC stated:

The legislative history of the 1959 amendment [to Sec. 315] establishes that Congress, by such amendment, was in effect codifying the basic principle of the Commission's Report on Editorializing by Broadcast Licensees."

The following FCC statement refers to the Fairness Doctrine as having been an administrative policy prior to the 1959 Amendments to the Communications Act:

Formerly by reason of administrative policy, and since September 14, 1959, by necessary implication from the amended language of section 315 of the Communications Act, the Commission has had the responsibility for determining whether licensees "afford reasonable opportunity for the discussion of conflicting views on issues of public importance."

99 31

With respect to the FCC interpretation, it is observed that the legislative history of the 1959 amendments does not contain any unequivocal expression of congressional intent to codify the Fairness Doctrine.32 It has also been questioned whether a comprehensive codification of the Fairness Doctrine, which encompasses the whole gamut of "controversial issues of public importance" was intended by Congress inasmuch as the section under consideration, section 315, relates specifically to candidates for office. These considerations will be taken up in more detail below.

Certain alternative hypotheses may be advanced in construing the legislative intent and proper construction to be attached to section 315(a) in connection with the Fairness Doctrine:

1. The Fairness Doctrine is inherent in the Communications Act of 1934 and its predecessor, the Radio Act of 1927. It therefore exists independently of section 315(a) whose language merely restates a preexisting legal requirement.

2. The congressional intent behind the 1959 amendments to section 315 (a) was to incorporate the Fairness Doctrine, which until then was merely an FCC policy, formally into the Act.

3. Congress intended the new language added to section 315(a) by the 1959 amendments, to apply to political matters, and especially to the treatment of candidates for public office on news programs, and did not intend an overall ratification of the FCC's Fairness Doctrine in all of its applications.

20 Fairness Doctrine, 2 R.R. 2d 1901, at 1903 (1964).

30 Political Broadcasts-Equal Time, Hearings before a Subcommittee of the Committee on Interstate and Foreign Commerce, House of Representatives, 88th Cong., first sess., on H.J. Res. 247. at page 87 (1963).

31 Commission Policy on Programing. 25 Fed. Reg. 7291, 20 R.R. 1901 (1960), at 1910. 32 This is in contrast to the amendment of section 317 (a) (2) of the Act, which was a part of the 1960 Communications Act Amendments, wherein it was expressly stated that one of the purposes of the amendment was to provide specific statutory authority for a pre-existing FCC policy. See House Rept. No. 1800, 86th Cong., second sess. (1960).

These hypotheses are offered primarily as a device for clarifying the issues. It is also observed, however, that hypothesis 3, above, seems to be the one most compatible with the legislative history.

As already stated, this memorandum will be limited to an exposition of the legislative history which is relevant to the Fairness Doctrine. In effect, this involves a review of the history of section 315 since that section is the only apparent specific statutory mandate for the doctrine. Section 315 had its inception in section 18 of the Radio Act of 1927 (44 Stat. 1170).

III. SECTION 18 OF THE RADIO ACT OF 1927

The Radio Act of 1927 was passed by the 69th Congress. Section 18 of this Act, the forerunner of section 315 of the present Communications Act, read, in pertinent part:

If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station

It is noted that this section makes no requirement for fairness in the discussion of controversial or public issues. The legislative history indicates that this omission was intentional.

A. COMMITTEE REPORT AND DEBATES-HOUSE

The Radio Act derived from H.R. 9971 of the 69th Congress. The bill, as passed by the House, did not contain any comparable provision to section 18 of the Radio Act. This fact was noted in the minority views (signed by only one member) contained in the committee report on H.R. 9971:

The broadcasting field holds untold potentialities in a political and propaganda way; its future use in this respect will undoubtedly be extensive and effective. There is nothing in this bill [H.R. 9971] to prevent a broadcasting station from permitting one party or one candidate or the advocate of a measure or a program or the opponent thereof, to employ its service and refusing to accord the same right to the opposing side; the broadcasting station might even contract to permit one candidate or one side of a controversy to broadcast exclusively upon the agreement that the opposing side should not be accorded a like privilege. When the bill was debated in the House some concern was expressed regarding freedom of speech over the radio:

Mr. LAGUARDIA. The gentleman stated the recommendations, among which was a guarantee of free speech over the radio. What provision does the bill make to carry that out?

Mr. WHITE of Maine. It does not touch that matter specifically. Personally, I felt that we could go no further than the Federal Constitution goes in that respect. The pending bill gives the Secretary no power of interfering with freedom of speech in any degree.

Mr. LAGUARDIA. It is the belief of the gentleman and the intent of Congress in passing this bill not to give the Secretary any power whatever in that respect in considering a license or the revocation of a license.

83 House Rept. No. 464, 69th Cong., first sess. (1926); Minority views of Representative Davis. p. 16.

24 67 Cong. Rec. 5480 (1926).

Concern also was expressed by some members over the possibility of private, as opposed to Government, censorship, and discrimination.35 An amendment was offered to provide that "equal facilities and rates, without discrimination shall be accorded to all political parties and all candidates for office, and to both the proponents and opponents of all political questions or issues." 36 This amendment, insofar as it would have prohibited unequal treatment of partisans of political questions, was similar in effect to the present Fairness Doctrine. This amendment was not put to a vote as it was ruled not germane to the section to which it was offered 37 and was not subsequently reoffered.

Another amendment was offered which would have made it a criminal offense to broadcast any personal attack into a State wherein such language would constitute libel or slander under the law of that State. This amendment was ultimately rejected by the House 287 to 57.38

The radio bill, H.R. 9971, was passed by the House 218 to 123, and sent to the Senate.39

Summary of House action

Any conclusions drawn from the House debates on the original Radio Act with respect to the Fairness Doctrine must be drawn by negative inference. H.R. 9971 did not attempt to impose any requirement of "fairness" on broadcasters. This omission was pointed out both in the minority views contained in the committee report on the bill, and during the floor debates. The amendment which would have prohibited discrimination among the proponents and opponents of "political questions or issues" was not adopted. Nor was an amendment making it a crime to broadcast personal attacks which constituted libel or slander.

The significance of the failure of the House to adopt either of these two amendments is debatable. The personal attack amendment aroused objections because of its provision for criminal penalties. The amendment prohibiting discrimination among proponents and opponents on political questions did not come to a vote since it was ruled not germane when offered, and was not subsequently reoffered.

B. COMMITTEE REPORT AND DEBATES-SENATE

In the Senate the bill was referred to the Committee on Interstate Commerce where it was enlarged considerably. HR 9971, as passed by the House, did not contain any "fairness" requirements, either as to political candidates or public issues. A substitute was reported by the Senate committee,40 section 4 of which provided in pertinent part:

If any licensee shall permit a broadcasting station to be used as aforesaid, or by a candidate or candidates for public office, or for the discusison of any question affecting the public, he shall make no discrimination as to the use of such broadcasting station, and with respect to said matters the licensee shall be deemed a common carrier in Interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast. [Italics supplied.]

This provision was the subject of extensive debate on the Senate floor, and was subsequently amended to eliminate the references to common

2567 Cong. Rec. 5483, 5489, 5491, 5501 (1926).

86 67 Cong. Rec. 5560 (1926).