FEDERAL ELECTIONS ACT OF 1955

TUESDAY, APRIL 19, 1955

UNITED STATES SENATE,

SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS OF THE

COMMITTEE ON RULES AND ADMINISTRATION,

Washington, D. C.

The subcommittee met, pursuant to adjournment, at 9:45 a. m., in room 104-B, Senate Office Building, Senator Thomas C. Hennings (chairman of the subcommittee) presiding.

Present: Senators Hennings, Gore, and Curtis.

Also present: Senator Dirksen; James H. Duffy, counsel to the subcommittee; and John Dempsey, political science specialist to the subcommittee.

Senator HENNINGS. The subcommittee will please come to order. Our first witness today is Dr. Harold Fellows.

Mr. Fellows, we are glad to have you here this morning. I appreciate your coming here to make a contribution to this work that we are undertaking.

TESTIMONY OF HAROLD E. FELLOWS, PRESIDENT, NATIONAL ASSOCIATION OF RADIO AND TELEVISION BROADCASTERS; ACCOMPANIED BY VINCENT T. WASILEWSKI, COUNSEL, NATIONAL ASSOCIATION OF RADIO AND TELEVISION BROADCASTERS

Mr. FELLOWS. I am glad to be here, Mr. Chairman.

Senator HENNINGS. We will be glad to have you proceed in any way you like. You may read from your prepared text if you wish.

Mr. FELLOWS. I would prefer to read this into the record and introduce our chief attorney, Vincent Wasilewski.

You might like to ask us some questions.

Mr. Chairman and members of the subcommittee, my name is Harold E. Fellows. I am president of the National Association of Radio and Television Broadcasters. Our association is comprised of the majority of the licensees of the Nation's radio and television broadcasting stations. In addition, the national broadcasting networks are members.

It would perhaps be useful to the subcommittee if I took just a moment to qualify myself as a witness in this proceeding.

I have been the chief executive officer of the NARTB for 4 years. Prior to that, I was the general manager of station WEEI in Boston, a position I had held for 15 years. All in all, I have been in broadcasting and related areas of service for more than 26 years.

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Both in my capacity as an active station manager, and as executive of the National Association of Radio and Television Broadcasters, I have been constantly in touch with matters pertaining to the use of broadcasting facilities by candidates for public office.

Let me first comment directly on the bill which is the subject of this hearing, S. 636. The only direct reference to radio and television in the bill occurs in title II, section 202, subparagraphs (b) (1) and (2). The specific language is as follows:

(b) (1) Each item of expenditures shall be described in sufficient detail to accuratedly identify it, including, in the case of printed cards, pamphlets, circu- . lars, posters, dodgers, booklets, or other advertisements, writings, or other statements (such as reprints from periodicals, books, newspapers, or other publications), the title and number of each; in the case of newspaper advertisements, the names of the newspapers; and in the case of radio and television time, the names of the stations. In the case of expenditures made on behalf of more than one candidate for printing and advertising, for radio time, and for television time, the statement shall indicate the candidates in whose behalf the expenditure was made and the amount allocable to each, such amount to be determined by dividing the total expenditure by the number of candidates on whose behalf it is made.

(b) (2) Each expenditure shall also be described by general category, including (1) personal services and reimbursed expenses, (salaries, commissions, fees, traveling, and subsistence), (II) printing and advertising other than radio and television, (III) radio, (IV) television, (V) office overhead, (VI) subvention or transfer to other political committee or candidate, (VII) miscellaneous, and the total expenditure for each such category shall be listed.

We can see no objection to the inclusion of provisions of this kind in basic election legislation, although there is cause to doubt how accurately the proportional allocation formula cited in paragraph (b) (1) of S. 636 would reflect the true beneficial use obtained by individual candidates from group advertisements or programs in printed or

electronic media.

It is presumed that the framers of this legislation arrived at this on somewhat of a compromise basis, but it should be pointed out that this is an inherent weakness and cannot be relied upon to give a true picture. With respect to the balance of S. 636, I cannot claim any special knowledge or expertness which would commend my comments to the attention of this subcommittee. From the layman citizen's point of view, and from direct contact with the actual election procedures now employed, it is patent that the election laws do need overhauling. It would seem realistic to include primary elections, caucuses, and conventions in the scope of the laws, and certainly the contribution expenditure limits which present election laws impose on candidates are unrealistic in view of the greatly increased costs in all areas relating to campaign expenses.

There are some vital matters, however, which have been developed in the examination of witnesses and statements by members of this and other committees of the Congress to which I wish to refer. These have a direct bearing on radio and television, and hence are of real interest to our membership. Since they involve the electing of our public servants, they are of real importance to the people at large.

Fundamentally, the issues to which I refer can be summed up in three points:

1. Faced with the high costs of campaigning today, should radio and television time be made available to candidates for public office on a completely no-cost basis?

2. How is equal treatment being afforded to opposing political candidates who use radio and television?

3. What is the broadcaster's role under the laws and regulations governing use of radio and television facilities by qualified candidates for public office?

I will respond to these three questions in the order in which I have just listed them.

On question 1 (the matter of the high cost of campaigning with the presently available facilities for reaching the people), some have suggested that the remedy for this high cost is to require radio and television stations to provide campaign time free of charge to all candidates. I have noted that I am not alone in protesting that this is not a meritorious solution to the problem.

There are a number of persuasive reasons for the maintenance of the present system of the candidates paying for the time they use on radio and television. Let me cite three which are germane to our consideration here.

First, it puts all of the mass media on a relatively equal footing as regards public election affairs. It would be manifestly discriminatory to have two fully competitive instruments of communications operating with different ground rules where candidates for public office are concerned. This is in nowise altered by the fact that radio and television are licensed by the Federal Government, whereas the press is not.

Senator HENNINGS. Mr. Fellows, the two competing media you are referring to are what?

Mr. FELLOWs. Radio and television.

Senator HENNINGS. I thought that was what you meant.

Mr. FELLOWS. In the case of the broadcast media and the press alike, the items of overhead, production costs and-above all-establishing and, if possible, expanding circulation, are clearly comparable.

Second, the problems of administering so-called free-time grants to all candidates for all public offices would impose an almost insuperable task on radio and television station management, and would be vastly more disruptive of established program services to loyal audi

ences.

Any substantial breakdown in program service, which is now carefully regulated and controlled by the broadcaster could result in adverse audience reactions which may reflect negatively on the candidates themselves.

Third, the candidates for public office under the present system of paid time on radio and television, share with other established users of broadcast facilities the costs of maintaining diversified program service to the listeners and viewers of America. This includes as a major item the very substantial costs of operating news and public affairs broadcasts.

Quite aside from the personal use candidates may or may not make of radio and television facilities, their public utterances and their known positions on major issues of the day are fully reported to the people through established and special news and current events broad

casts.

I think it is broadly recognized that no people in the world are better informed on election issues and personalities than are the citizens of the United States of America.

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In his handling of political broadcasts, the licensee of a radio or television station is controlled by a special section in the Communications Act of 1934, as amended, which instrument established our current regulatory system. This section 315, as amended in 1952, reads as follows:

(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 broadcasting station: 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.

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

(C) The Commission (the Federal Communications Commission) shall prescribe appropriate rules and regulations to carry out the provisions of this section.

The Federal Communications Commission Rules and Regulations implementing section 315 are identical for radio and television stations and read as follows:

BROADCASTS BY CANDIDATES FOR PUBLIC OFFICE

(a) Legally qualified candidate.-A "legally qualified candidate" means any person who has publicly announced that he is a candidate for nomination by a convention of a political party or for nomination or election in a primary, special, or general election, municipal, county, State or National, and who meets the qualifications prescribed by the applicable laws to hold the office for which he is a candidate, so that he may be voted for by the electorate directly or by means of delegates or electors, and who:

(1) Has qualified for a place on the ballot, or

(2) Is eligible under the applicable law to be voted for by sticker, by writing in his name on the ballot, or other method, and (i) has been duly nominated by a political party which is commonly known and regarded as such, or (ii) makes a substantial showing that he is a bona fide candidate for nomination or office, as the case may be.

(b) General requirements.—No station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other such candidates for that office to use such facilities; provided, that such licensee shall have no power of censorship over the material broadcast by any such candidate.

(c) Rates and practices.—(1) The rates, if any, charged all such candidates for the same office shall be uniform and shall not be rebated by any means direct or indirect. A candidate shall, in each case, be charged no more than the rate the station would charge if the candidate were a commercial advertiser whose advertising was directed to promoting its business within the same area as that encompassed by the particular office for which such person is a candidate. All discount privileges otherwise offered by a station to commercial advertisers shall be available upon equal terms to all candidates for public office.

(2) In making time available to candidates for public office no licensee shall make any discrimination between candidates in charges, practices, regulations, facilities, or services for or in connection with the service rendered pursuant to this part, or make or give any preference to any candidate for public office or subject any such candidate to any prejudice or disadvantage; nor shall any licensee make any contract or other agreement which shall have the effect of permitting any legally qualified candidate for any public office to broadcast to the exclusion of other legally qualified candidates for the same public office. (d) Records; inspection.—Every licensee shall keep and permit public inspection of a complete record of all requests for broadcast time made by or on behalf of candidates for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if request is granted.

It is clear from the material which I have just read to you that the broadcaster's role with respect to political broadcasting is fairly completely spelled out by law and regulation. He has relatively little latitude, and once he elects to permit a qualified candidate to use his facilities, his course is substantially determined.

Broadcasters are indeed proud of the great service their facilities have provided for the people of our country. They have seen and continue to see many signs of an increasing awareness of the need for vital citizen participation in the affairs of government. We think it is true that as they heighten their participation, and develop their discernment, the whole political system will benefit. This is the essenceof democracy.

I am sure I speak for them in saying that they are desirous of continuing and increasing that service, and that they believe it can best be done by following the established lines of the free competitive enterprise development and operation of all of the mass media.

I believe that I also speak for the industry as a whole when I state my belief that any suggestion that the broadcasting industry should underwrite certain political campaign costs is not only discriminatory,. but unrealistic and unworkable.

Senator HENNINGS. Mr. Fellows, thank you very much for a painstakingly prepared statement and for your presenting to us as well as you have many of these matters not in controversy-that is probably not the right expression, but at least matters which have been subject to various discussions and speculations.

Mr. Fellows, as we know, has been asked to appear primarily because of the suggestions made by Mr. Paul Butler and such various organizations as the New York Times and Washington Post and Times Herald as well as many individuals who have submitted statements to the committee that the Federal Government might well require television and radio stations to donate free time to candidates for elective Federal office or that the Federal Government underwrite, so to speak, the cost of such time.

We know that there is no provision in the bill that relates to that. Senator Curtis, I am now undertaking to read by way of interrogation of Mr. Fellows certain questions which have been prepared by counsel and I ask your indulgence and then, of course, we would like to have you examine Mr. Fellows if you so desire.

Mr. Fellows is the president of the National Association of Radio and Television Broadcasters and therefore is in a good position to express the feeling of the industry and most particularly of the individual stations.

Representatives of the major networks will appear later to explain the attitude of these networks.

The following questions are intended to develop your theme as expressed here this morning, Mr. Fellows.

The first question is this: The subcommittee has received recommendations that the National Government by law either require networks or individual stations to make free time available for candidates for Federal office.

As an alternative it has been suggested that the Federal Government. might undertake to underwrite such time from Federal funds.