carrier status and to "question affecting the public." Some of the discussion on this provision follows:

Mr. DILL. I have consulted with members of the committee regarding that provision [i.e., above quoted language], and I think I am entitled to say that at least most of the committee are agreed that lines 10 to 17 should be stricken out and an amendment inserted. ***

I may say that this is a provision that has caused more objection to the bill than probably all the other provisions combined. It is a provision to which the committee gave more consideration and on which the committee spent more time, than on probably any other provision. We finally agreed to it in order, I think, to get the bill out of the committee. After we got it out we realized that the "common carrier" phrase was an unwise phrase, to say the least, at this time.

So that we [will] take out the objectionable feature.

Mr. WILLIS. I think that remedies one serious objection I had in mind, as to line 12, particularly, which is proposed to be stricken out, where it says "or for the discussion of any question affecting the public."

Mr. DILL. That is a rather broad statement.

Mr. WILLIS. Yes."

The amendment proposed as a substitute for the language of the reported bill read as follows:

If any licensee shall permit a broadcasting station to be used by a candidate or candidates for any public office, he shall afford equal opportunities to all candidates for such public office in the use of such broadcasting station: Provided, That such licensee shall have no power to censor the material broadcast under the provisions of this paragraph and shall not be liable to criminal or civil action by reason of any uncensored utterances thus broadcast.

As can be seen, this amendment differed from the original language in three major respects:

(1) It deleted the provision making broadcasters common carriers with respect to political broadcasts and public issues,

(2) It deleted the ban on discrimination with respect to discussing "any question affecting the public," and

(3) It added the stipulation that the licensee should not be liable to civil or criminal action by reason of any uncensored utterances broadcast pursuant to this section.

Senator Howell argued against this amendment. Excerpts from his remarks are set forth below. It is noted that they express essentially the same views as were later contained in the FCC's 1949 Editorializing Report: 43

Mr. HOWELL. Mr. President, radio affords such a unique facility of publicity that one has to think very carefully lest he go astray, thinking of newspapers and reasoning by analogy. *** We have tens of thousands of newspapers, magazines, and other publications, but there is now from necessity, and will be hereafter, only a limited number of radio stations. As the Senator from Washington stated yesterday, the total number of stations that are now authorized for broadcasting is about 500 *** and there are certain great interests in this country that have radio stations which practically cover the United States.

We are all familiar with the results of propaganda, its dangers and its advantages; and the question which we are called upon to settle now is how the public may enjoy the advantages of broadcasting and avoid the dangers that may result therefrom. It must be recognized that, so far as principles and policies are concerned, they are major in political life; candidates are merely subsidiary. We recognized that fact when this bill was formulated and provided that if a

4167 Cong. Rec. 12502, 12505 (1926).

42 Id., p. 12358.

Editorializing by Broadcast Licensees, 25 R.R. 1901 (1949).

radio station allowed the discussion of a public question it must afford, if requested, an opportunity to present the other side.

I think it was the view of the committee that if any subject was to be presented to the public by any of the limited number of stations, the other side should have the right to use the same forum; and if such privilege were not to be granted, then there should be no such forum whatever. * * *

Mr. President, to perpetuate in the hands of a comparatively few interests the opportunity of reaching the public by radio and allowing them alone to determine what the public shall and shall not hear is a tremendously dangerous course for Congress to pursue. * * * Are we to consent to the building up of a great publicity vehicle and allow it to be controlled by a few men, and empower those few men to determine what the public shall hear?

It may be urged that we do that with the newspapers. Yes, that is true; but anyone is at liberty to start a newspaper and reply. Not so with a broadcasting station. However, there are only about 500 who are allowed the privilege of conducting broadacsting stations, and there are not as many broadcasting stations as there are fingers on one of my hands-not more than that-that have the privilege of covering the entire United States. ***

The Senator from Washington has left in the bill a provision respecting candidates. It is important, but it has not anything like the importance of the provision he has stricken out-the discussion of public questions."

Senator Dill, the sponsor of the radio bill and the proponent of the amendment to delete the reference to discussions of public questions, replied as follows:

Mr. DILL. I sympathize with a great deal of what the Senator is saying, but I want to remind the Senator of the danger of having the words "public questions" in the bill.

That is such a general term that there is probably no question of any interest whatsoever that could be discussed but that the other side of it could demand time and thus a radio station would be placed in the position that the Senator from Iowa mentions about candidates, namely, that they would have to give all their time to that kind of discussion, or no public question could be discussed. As I say, I sympathize with the Senator's position; but the opposition to that was so strong in the minds of many that it seemed to me wise not to put it in the bill at this time, but to await developments, and get this organization to functioning, and the bill can be amended in the future.

I just wanted to leave that idea with the Senator as to my reasons for taking the view I do.45

46

As stated above, the amendment was adopted. The amended bill passed the Senate, and conferees were appointed.47

Summary of Senate action

The substitute version of H.R. 9971 which was reported by the Senate Interstate Commerce Committee enlarged the House version of the bill by incorporating two prohibitions against discrimination in the area of political broadcasting: (a) with respect to candidates, and (b) with respect to "any question affecting the public." As related above, the latter prohibition was eliminated by Senator Dill's amendment on the floor of the Senate.

C. HOUSE-SENATE CONFERENCE

In conference, the radio bill was rewritten to read as follows; this is the wording enacted as section 18 of the Radio Act of 1927:

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, and the Commission shall make rules and regulations to carry this provision into effect; Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate. The conference report summarized, but did not explain the section.48

D. SUMMARY OF CONGRESSIONAL ACTION ON THE RADIO ACT OF 1927 Since section 18 of the Radio Act was later carried forward verbatim as section 315 of the Communications Act of 1934," its legislative history is relevant to an analysis of the present law. As enacted by the 69th Congress, the Radio Act contained no provision similar to the Fairness Doctrine. This omission seems to have been specifically intended. As indicated above, the question of whether licensees ought to be under a legal obligation to be nondiscriminatory in their discussion of public questions was taken up during the consideration of the Radio Act. Moves to incorporate such a requirement into the law were rejected in both the House and Senate. This rejection was much more sharply defined in the Senate debates than in the House.

These legislative events would appear to cast serious doubt on the proposition that the Fairness Doctrine, at least in substance, is a necessary corollary of the "public interest" standard contained in the Radio Act, and carried forward into the 1934 Communications Act. Had this been the intention or understanding of the members of the 69th Congress the debate between Senators Dill and Howell, summarized above, would have been moot, since the language which Senator Howell sought to preserve would have been essentially surplusage. There is no suggestion in the legislative history that this was the

case.

IV. ACTION IN THE 72ND CONGRESS TO AMEND THE RADIO ACT

H.R. 7716, introduced during the first session of the 72nd Congress, was the most important transitional step between the 1927 Radio Act and the 1934 Communications Act. The bill sought to amend 12 different sections of the Radio Act. Section 14 of H.R. 7716 sought to strike out section 18 of the Radio Act with respect to the treatment of political candidates, and substitute an amended section. The purpose of the amendment, among other things, was to extend the requirements of equality of treatment of political candidates to supporters and opponents of candidates, and to "public questions" before the people, à legislature, or city council for a vote.50

This bill passed both Houses of Congress, but was subjected to a pocket veto by President Hoover.51 The same "fairness" type provision was reintroduced in the Senate during the 73d Congress (S. 3285) for incorporation into the 1934 Communications Act, but was not adopted (see below).

50 H. Rept. 2106, 72d Cong., 2d sess. (conference report), at p. 6.

51 See generally, McMahon, "Regulation of Broadcasting Half a Century of Government Regulation of Broadcasting and the Need for Further Legislative Action." A study for the House Committee on Interstate and Foreign Commerce, 85th Cong., second sess. (1958), pp. 21-39.

V. THE COMMUNICATIONS ACT OF 1934

Section 18 of the Radio Act was carried forward as section 315 of the Communications Act of 1934. The bill passed by the Senate, S. 3285, sought to enlarge the requirements of section 18, imposing a fairness standard on the discussion of public questions to be voted upon at an election:

SEC. 315. (a) 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 station; and if any licensee shall permit any person to use a broadcasting station in support of or in opposition to any candidate for public office, or in the presentation of views on a public question to be voted upon at an election, he shall afford equal opportunity to an equal number of other persons to use such station in support of an opposing candidate for such public office, or to reply to a person who has used such broadcasting station in support of or in opposition to a candidate, or for the presentation of opposite views on such public questions. Furthermore, it shall be considered in the public interest for a licensee, so far as possible, to permit equal opportunity for the presentation of both sides of public questions.

(b) The Commission shall make rules and regulations to carry this provision into effect. No such licensee shall exercise censorship over any material broadcast in accordance with the provisions of this section. No obligation is imposed upon any licensee to allow the use of his station by any candidate, or in support of or in opposition to any candidate, or for the presentation of views on any side of a public question.

(c) The rates charged for the use of any station for any of the purposes set forth in this section shall not exceed the regular rates charged for the use of said station to advertisers furnishing regular programs, and shall not be discriminatory as between persons using the station for such purposes.

This section was described as follows in the report of the Senate Committee on Interstate Commerce: 52

Section 315 on facilities for candidates for public office is a considerable enlargement of section 18 of the Radio Act. It is identical with a provision in H.R. 7716, 72d Congress, which was passed by both Houses.

This section extends the requirement of equality of treatment of political candidates to supporters and opponents of candidates, and public questions before the people for a vote. It also prohibits any increased charge for political speeches. No station owner is required to permit the use of his station for any of these purposes but if a station permits one candidate or the supporters or opponents of a candidate, or of a public question upon which the people are to vote, to use its facilities, then there is the requirement of equality of treatment and that no higher rates than ordinary advertising rates shall be charged.

The House Committee on Interstate and Foreign Commerce reported a substitute bill which omitted the above provisions concerning fairness in the discussion of public questions.53

The Conference Committee incorporated section 18 verbatim as section 315 of the Communications Act of 1934.54 The enactment of the Communications Act in the 73d Congress provided another instance wherein language similar to the present Fairness Doctrine was unsuccessfully proposed for incorporation into the law.

It might appropriately be noted at this point that the Fairness Doctrine as presently enunciated by the Federal Communications Commission applies to all "controversial issues of public importance." The Communications Act of 1934 as originally enacted contained no such provision. The 73d Congress, which voted the Communications

62 S. Rept. No. 781, 73d Cong., 2d sess. (1934), at p. 8.

68 H. Rept. No. 1850, 73d Cong. (1934).

54 H. Rept. No. 1918, 73d Cong. (1934), p. 49.

Act into law, rejected a much more limited version of the Fairness Doctrine in that it eliminated from the bill as passed by the Senate a provision that would have applied only to a "public question to be voted upon at an election." It should also be noted, however, that in its requirement for "equal opportunity" the rejected language was more rigorous than the present doctrine which asserts a standard of reasonableness rather than strict equality.

The wording of section 315 remained unchanged until amended by the Communications Act Amendments of 1952. These amendments, as discussed below, did not change the language of section 315 with respect to its Fairness Doctrine implications.

VI. 1952 AMENDMENTS TO THE COMMUNICATIONS Aor

The 1952 amendments to section 315 added a new subsection (b) the purpose of which was to prevent licensees from charging more for political time than was charged for other types of programs. It derived from subsection (d) of an amendment offered on the floor of the House to S. 658, 82d Congress,55 which read:

SEC. 11. That section 315 of the Communications Act of 1934 (47 U.S.C. 315) is amended to read as follows:

"FACILITIES FOR CANDIDATES FOR PUBLIC OFFICE

"SEC. 315 (a) If any licensee shall permit any legally qualified candidate for any public office in a primary, general, or other election, or any person authorized in writing by such candidate to speak on his behalf, to use a broadcasting station, such licensee shall afford equal opportunities in the use of such broadcasting station to all other such candidates for that office or to persons authorized in writing by such other candidates to speak on their behalf.

"(b) The licensee shall have no power to censor the material broadcast by any person who is permitted to use its station in any of the cases enumerated in subsection (a) or who uses such station by reason of any requirement specified in such subsection; and the licensee shall not be liable in any civil or criminal action in any local, State, or Federal court because of any material in such broadcast, except in case said licensee shall willfully, knowingly, and with intent to defame participate in such broadcast.

"(c) Except to the extent expressly provided in subsection (a), nothing in this section shall impose upon any licensee any obligation to allow the use of its broadcasting station by any person.

"(d) The changes made for the use of any broadcasting station for any of the purposes set forth in this section shall not exceed the minimum charges made for comparable use of such station for other purposes.

"(e) The Commission shall prescribe appropriate rules and regulations to carry out the provisions of this section."

It is noted that, had this amendment to section 315 been enacted, it would have enlarged the "equal opportunity" provisions to include statements made by authorized spokesmen of candidates. The conference report recommended an amendment in the nature of a substitute which added the present subsection (b).56 The report discussed this change as follows:

Section 11 of the House amendment would have amended section 315 of the Communications Act which relates to the utilization of broadcasting facilities by candidates for public office. The Senate bill did not propose to amend section 315.

55 98 Cong. Rec. 7415 (1952).

"H. Rept. No. 2426, 82d Cong. (1952).