does the Commission's decision, "You may speak but only on the prospective conditions that are laid down in our report." For my part, I would merely say to the licensee, "You may speak."'

Since the 1949 Report, the policy of the FCC has been not only to permit, but to encourage, station editorializing. In the 1960 Commission En Banc Programing Enquiry" editorializing by licensees is listed as one of the "major elements usually necessary to meet the public interest needs and desires."

78

In effect, the 1949 Editorializing Report is a vindication of the views expressed by Senator Howell as he argued against Senator Dill's amendment which removed the statutory ban on discrimination in the discussion of "questions affecting the public." Indeed, some of the language in the Editorializing Report is quite similar to that used by Senator Howell. While these statements of position are mutually consistent, it is worthy of note that Senator Howell's views were not actually embodied in the original legislation.

VIII. COMMUNICATIONS ACT AMENDMENTS OF 1959

The 1959 amendments added the last two sentences presently appearing in section 315 (a). The first of these sentences excludes appearance by candidates on certain news programs from being considered a "use" of broadcast facilities such as would entitle competing candidates to equal time:

Appearance by a legally qualified candidate on any

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be a use of a broadcasting station within the meaning of this subsection.

The second sentence added to section 315 (a) reads 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.

The proper construction to be placed on this last quoted language is still a matter of controversy. The effect of the two sentences added by the 1959 amendments is to commingle the separate concepts of equal time for candidates and fair treatment in discussing public issues.

A. EVENTS LEADING UP TO THE 1959 AMENDMENTS TO SECTION 315

The 1959 amendments were in response to the action of the FCC in the famous Lar Daly case." Lar Daly, a colorful and perennial candidate for elective office in the State of Illinois, complained to the FCC that Station WBBM-TV in Chicago had allowed Chicago Mayor

76 Id., p. 1918-19.

720 R.R. 1901 (1960).

18 See pp. 11-12, this memorandum.

79 18 R.R. 238 (1959).

Richard Daley to use its facilities without affording him equal time. Both Mayor Daley and Lar Daly were legally qualified candidates for the Democratic party's nomination for Mayor of Chicago. One of the alleged uses of the station by Mayor Daley was a newsreel showing him greeting the President of Argentina at the Chicago airport. This, the Commission decided was a "use" of the broadcast facilities as contemplated by Section 315, and required the station to afford Lar Daly equal time.

This interpretation of the law surprised many who recalled that two years previously in the 1957 case of Allen H. Blondy 80 the Commission held that news coverage by a television station of a ceremony in which a number of judges were sworn into office, one of them being a candidate, was held not to constitute a "use" of the station such as to require the licensee to extend equal time to other candidates.

The consequences of the Lar Daly decision, if not neutralized by legislative action, could have been a serious impairment of the ability of the broadcast industry to present the news. The ability of the networks to cover the national Democratic and Republican conventions seemed in doubt.

Hearings on amendments to 315 began 3 days after the decision was released.81

B. SENATE ACTION: S. 2424

To resolve the difficulties created by the Lar Daly decision, the Senate Commerce Committee reported S. 2424 82 which would have amended Section 315 (a) by inserting the following language at the end thereof:

Appearance by a legally qualified candidate on any newscast, news interview, news documentary, on-the-spot coverage of news events or panel discussion, shall not be deemed to be use of a broadcasting station within the meaning of this subsection.

In its report, the committee stated the purpose of the bill as follows: This bill is designed to amend the Communications Act of 1934 so as to provide that the appearance by a legally qualified candidate on any news, news interview, news documentary, on-the-spot coverage of news events, or panel discussion shall not be deemed to be use of a broadcast station within the meaning of Section 315(a). In other words, it would exempt any news, news interview, news documentary, on-the-spot coverage of news events, or panel discussion from the equal opportunity provisions of section 315 (a).83

Despite this statement of a limited purpose, much of the debate in the Senate, and later in the House as well, may be read to assume sub silentio that the Communications Act, as it then read, already imposed a standard of impartiality, or fair treatment, for the discussion of all public issues.

The following excerpts indicate the development of the final Senate version of the 1959 amendments to section 315. This version was later subject to modification in conference (see below).

The manager of the bill, Senator Pastore, stated:

Fear has also been expressed that the adoption of legislation creating special categories of exemptions from section 315 would tend to weaken the present re

80 14 R.R. 1199 (1957).

81 Hearings on Political Broadcasting Before the Communications Subcommittee of the Senate Committee on Interstate and Foreign Commerce, 86th Cong., first sess. (1959). 82 Rept. No. 562 86th Cong., 1st sess. (1959).

83 Id., p. 2.

quirements of fair treatment of public issues. The committee desires to make it crystal clear that the discretion provided by this legislation shall not exempt licensees who broadcast such news, news interviews, news documentaries, on-thespot coverage of news events, or panel discussion programs from objective presentations thereof in the public interest.

In recommending this legislation, the committee does not diminish or affect in any way Federal Communications Commission policy or existing law which holds that a licensee's statutory obligation to serve the public interest is to include the broad encompassing duty of providing a fair cross-section of opinion in the station's coverage of public affairs and matters of public controversy. This standard of fairness applies to political broadcasts not coming within the coverage of section 315 such as speeches by spokesmen for candidates as distinguished from the candidates themselves.

Under existing law and policy it is absolutely mandatory that [licensees] shall serve the public interest because these media are in the public domain, and therefore they should be fair in their treatment in all events.

On the floor of the Senate the words "or panel discussion," which appeared in S. 2424 as reported (see above), were stricken, and the following language was added: 86

* but nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this Act, which recognizes that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, all sides of public controversies shall be given as fair an opportunity to be heard as is practically possible.

This amendment was offered by Senator Proxmire and was discussed in the following colloquy:

Mr. PASTORE. I think I know the intent of the amendment of the Senator from Wisconsin. He is merely reiterating what we are trying to do by section 2 and also what we have done in the report, namely, that we abide by the philosophy, so far as standard of fairness is concerned.

But I do not like the use of the words "as equal an opportunity" in the last part of the Senator's amendment. I am afraid that that might be considered a repudiation of what we are trying to do by the exemptions. If the Senator will change the wording to "as fair an opportunity," with a clear understanding that this does not substantially defeat the purpose of the exemption, but merely expresses the philosophy that the media of radio and television are in the public domain and that they must render under the law public service and that wherever it is practical and possible the situations must bring to light all sides of a controversy in the public interest, I will accept the Senator's amendment and take it to conference.

In my opinion, the amendment is surplusage. I think we have already accomplished the purpose of the Senator's amendment. We have expressed it in the report. But if it will make the Senator happy to have the language in the bill, I will accept the amendment and take it to conference.

Mr. PROXMIRE. I appreciate the Senator's support in saying that he will accept the amendment under the circumstances. I am trying to protect all viewpoints in public controversies by providing them an equal opportunity.

Mr. PASTORE. A fair opportunity."

In response to a question from Senator Hartke, Senator Proximire further explained the purpose behind his amendment to S. 2424:

The whole purpose of the bill is aimed at the situation which arose with the case of Lar Daly. If lines 5 to 9 in the bill have any meaning at all, they mean that a broadcaster is not required to give an opportunity to each legally qualified candidate. What the broadcaster should do is to consider all sides

84 105 Cong. Rec. 14439-41 (1959).

55 Id., pp. 14450, 14453.

8 Id., p. 14462.

7 Id., p. 14457.

of public controversies, and make certain that not only the conservative, or not only the liberal viewpoints or ideas are expressed, but that the public has a chance to hear both sides, in fact all sides, and to be more specific so that this bill cannot be construed in any way to limit the responsibility of broadcasters to present all viewpoints, including the responsibility upon the appearances of qualified candidates on TV or radio.

The Proxmire amendment was agreed to and appeared in the final version of S. 2424 passed by the Senate.

C. HOUSE ACTION: H.R. 7985

The House of Representatives substituted the provisions of H.R. 7985, 86th Congress, for those of S. 2424. As reported by the House Committee on Interstate and Foreign Commerce, and passed by the House, this bill added the following new sentence at the end of section 315(a):

Appearance by a legally qualified candidate on any bona fide newscast (including news interviews) or on any on-the-spot coverage of news events (including but not limited to political conventions and activities incidental thereto), where the appearance of the candidate on such newscast, interview, or in connection with such coverage is incidental to the presentation of news, shall not be deemed to be use of a broadcasting station within the meaning of this subsection.

The purpose of the change as stated in the House report, was this: It seems to the committee that the principle of substantial (as distinguished from absolute) equality of opportunity for qualified political candidates, with respect to appearances on radio and television broadcasts, is a sound principle bearing in mind (1) the importance of radio and television in connection with our political processes and (2) the fact that broadcasting facilities, and particularly television broadcasting facilities, are limited in number and subject to Government licensing. Therefore, in the opinion of this committee, an outright repeal of section 315 would not be in the public interest.

However, the committee recognizes that there is another principle which is important to the proper functioning of our political processes, namely, that the public interest is served if the people of our country are well informed with respect to political events and public issues, particularly in order to make an informed choice among competing political candidates."

During the House debate on the bill, Chairman Harris,of the House Commerce Committee presented the following views: 91

I believe most of the Members are generally familiar with the background of this legislation. On June 15, 1959, the Federal Communications Commission adopted an "interpretive opinion" in the so-called Lar Daly case * to the effect that the appearance by a legally qualified candidate in the course of a newscast must be considered use of a broadcasting station within the meaning of section 315 entitling other legally qualified candidates for the same office to equal time.

[After referring to the Blondy decision, described above] The Blondy decision confirmed the traditional concept held by broadcasters throughout the country and candidates alike of considering the equal time requirement inapplicable to appearances of candidates on newscasts. The Lar Daly decision abandoned this traditional concept and it is the primary purpose-listen to me-it is the primary purpose of this legislation to write back into section 315 this traditional exemp tion from the equal time requirement and to deal with other things that always have been thought to be exempted from the equal time requirement.

88 Thid.

89 H. Rept. No. 802, 86th Cong., first sess. (1959).

Id., n. 4.

91 105 Cong. Rec. 16229-30 (1959).

Mr. Chairman, in bringing this legislation to the floor of the House, I would like it clearly understood that the committee was almost unanimous in rejecting proposals to repeal section 315 outright. The legislation reported by our committee and the action of the other body on substantially similar legislation amount to a reaffirmation of the principle of equal time; and it is my sincere hope that broadcasters as well as the Commission will make diligent efforts to observe this provision of law the way Congress intends it to be observed.

As I see it, both proposals exempt appearances of candidates on newscasts (including news interviews) and on-the-spot coverage of news events. That is the crucial thing in this legislation-to overrule the Lar Daly decision and to make it clear that important news events involving the appearance of a candidate may be covered on-the-spot without giving the right of equal time to other candidates.

The ensuing discussion on the floor of the House indicates the great majority of the Members thought of the proposed legislation solely as a measure relating to appearance by political candidates. The House voted down an amendment which would have expanded section 315 (a) by requiring equal opportunities for opposing "representatives of any political or legislative philosophy" as well as for opposing candidates.92

D. CONFERENCE COMMITTEE REPORT AND DEBATES

The present language of the statute was recommended by the Conference Committee.93 The House and Senate versions of the amendment differed in several technical respects which have no special relevance to the Fairness Doctrine. The Senate bill, however, contained what has been described above as the Proxmire amendment. This language read as follows:

*but nothing in this sentence shall be construed as changing the basic intent of Congress with respect to the provisions of this Act, which recognize that television and radio frequencies are in the public domain, that the license to operate in such frequencies requires operation in the public interest, and that in newscasts, news interviews, news documentaries, on-the-spot coverage of news events, all sides of public controversies shall be given as fair an opportunity to be heard as is practically possible.

The House substitute contained no similar language. The conference report states:

With certain modifications this language has been included in the conference substitute as a sentence reading 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."

The conferees feel that there is nothing in this language which is inconsistent with the House substitute. It is a restatement of the basic policy of the "standard of fairness" which is imposed on broadcasters under the Communication Act of 1934.

94

There are significant differences in the language of the Proxmire amendment and the revised language which is presently part of Section 315(a). The former refers to the "basic intent of Congress" whereas the present statutory language refers to "the obligations imposed