June 25, 1970
Page 21381
TELEVISION AND RADIO FAIRNESS DOCTRINE
Mr. MUSKIE. Mr. President, on Monday, June 22, the Democratic National Committee filed with the Federal Communications Commission its comments on a proposed rule that would expand and make more precise the obligations of television and radio licensees under the fairness doctrine.
The national committee argues that virtually every time the President addresses the Nation or appears at a press conference he expresses his self-interested viewpoint on controversial issues of current public interest. Therefore, the broadcaster has an affirmative obligation – so the DNC argues – to secure responsible spokesmen with contrasting positions and to give them reasonable opportunities to inform the American people whenever they air a Presidential presentation.
We clearly are at a time of considerable reevaluation of the basic ground rules governing political broadcasting by the television industry, the FCC, Congress, and other interested persons.
This reevaluation is long overdue. As chairman of a committee of the Democratic Policy Committee concerned with this question, I have been meeting with my Democratic colleagues in the Senate and with Chairman Lawrence O'Brien of the Democratic National Committee to examine this issue from the viewpoint of the loyal opposition to the President.
The comments of the Democratic National Committee in this brief are a most useful contribution to this reevaluation. I urge all Senators of both parties to consider these arguments, not so much from a partisan position but from one of concern for improving political broadcasting as a tool in maintaining and strengthening our democratic system.
I ask unanimous consent that the national committee's brief be printed in the RECORD.
There being no objection, the brief was orderedto be printed in the RECORD, as follows:
COMMENTS BY THE DEMOCRATIC NATIONAL COMMITTEE BEFORE THE FEDERAL COMMUNICATIONS COMMISSION,
WASHINGTON, D.C.
In the Matter of Obligations of Broadcast Licensees under the Fairness Doctrine, Docket No. 18859.
The Democratic National Committee (DNC); by its counsel, pursuant to the Commission's invitation in its "Notice of Inquiry and Notice of Proposed Rule Making" (Notice), in the above-referenced Docket number, dated May 18, 1970, hereby submits its comments on the proposed rules.
I. SUMMARY OF POSITION
The DNC endorses the Commission's efforts to expand and bolster the fairness doctrine and to promote and enhance the "First Amendment goal of providing an informed electorate capable of conducting its own affairs" in keeping with the letter and spirit of the Supreme Court's recent landmark constitutional decision, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 392 (1969).
In particular, the DNC supports the Commission's proposed rules which provide that a licensee must take affirmative action to solicit appropriate spokesmen to present contrasting viewpoints when a licensee (1) presents or permits to be presented only one side of a controversial issue on a matter of public importance in a series of broadcasts within a relatively short period of time or (2) presents an editorial expressing the licensee's viewpoints on a given issue. In its notice, the Commission states that its "proposal is a modest further step in promoting access to the broadcast media" and invites "interested persons ... to make other suggestions on this general subject issue." Notice, pp. 6, 8.
We concur in the judgment that in most cases a licensee must be afforded latitude and flexibility in fulfilling its affirmative obligations. However, we believe there is at least one situation of such overriding national concern that the Commission should adopt a uniform, national policy clearly expressed and vigorously enforced by the Commission.
We refer to a broadcaster's obligation after it has aired a presentation (or a series of presentations) by the President of the United States of his viewpoint on controversial issues of public importance. We submit that virtually every time the President addresses the nation or appears at a press conference – whether speaking as Chief Executive on legitimate or economic matters, Commander-in-Chief on military operations or new weapons systems or the head of his party on issues or candidates in a forthcoming election – he expresses his self-interested viewpoint on controversial issues of current public interest. Therefore, the principles underlying the Commission's proposed rules place upon a broadcaster an affirmative obligation to secure responsible spokesmen with contrasting positions and to accord them reasonable opportunities, comparable in duration and scheduling, to inform the American electorate whenever they air a Presidential presentation.
Accordingly, the DNC proposes that in addition to the rules contained in its Notice, the Commission adopt the following rule:
(a) When a network or licensee broadcasts a presentation by the President of the United States of a viewpoint on a controversial issue of public importance, that network or licensee has an affirmative obligation to seek out responsible persons or entities with significant contrasting viewpoints on the controversial issue and afford them equal opportunities to present their views.
(b) In the case of any broadcast of a Presidential address or press conference, it shall be presumed that the President has presented a viewpoint on a controversial issue of public importance; and in the event of any complaint of non-compliance filed with the Commission, the burden shall be upon the network or licensee to establish compliance with this rule.
(c) Each network and licensee shall be required for a period of not less than three years to maintain a complete tape and transcript of every presentation by the President which it broadcasts and to maintain records detailing all actions taken by it to fulfill its affirmative obligations under this rule. Such records shall be available for inspection and copying at any reasonable time upon the request of any person.
(NOTE.– The term "equal opportunities", as used in paragraph (a) hereof, shall have the same meaning and effect that it has under Section 315(a) of the Communications Act of 1934, 47 U.S.C. § 315(a) (1964)).
II. THE DNC HAS A VITAL INTEREST IN OBTAINING FAIR MEDIA TREATMENT
The DNC is an agency of the Democratic National Party, established at each national convention, which has the obligation and authority to promote the principles and programs of the Democratic Party. As the representative of one of the two major political parties, the DNC is vitally interested in the preservation and strengthening of the nation's political processes. An informed and educated electorate is essential to the proper functioning of our democratic form of government.
Thus, we are gravely concerned about what we perceive as a developing imbalance in access to the communications media with the resulting inability of the American people to hear and consider more than one point of view.
The DNC has no desire to limit the President’s ability to communicate with, and thereby to lead and govern, the nation. We do not propose any restriction on the President’s right to be accorded the broadcast time which he believes essential to the implementation of his programs and policies. In a nation of 200 million people scattered beyond a continent, communication through broadcast media is a critical tool of government. At the same time, communication of opposing points of view is essential to the healthy development of a society and our democratic form of government.
It is becoming increasingly difficult for the fair and effective presentation of opposing points of view. For example, as fully set forth in its Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations, now pending before the Commission, the DNC has recently been the victim of artificial and arbitrary barriers to access to television facilities. The CBS television network flatly rejected a request by the DNC to purchase one half-hour of prime time for a program presenting viable alternatives to the policies of the incumbent Administration. Other networks and stations have raised similar obstacles, impairing the ability of the DNC to present its views. To perform its functions adequately – to inform a diverse national audience of the aspirations and recommendations of the Democratic Party – the DNC must have an opportunity to be heard.
The general rule which the DNC herein proposes would affect a variety of responsible persons and entities which hold and desire to communicate views which contrast with the President's on controversial issues of public importance.
III. THE ENORMOUS IMPACT OF A TELEVISED PRESIDENTIAL PRESENTATION PLACES SPECIAL OBLIGATION ON THE BROADCASTER
The combination of the President of the United States – the most powerful individual in the free world – and television – undoubtedly the most effective communications medium ever devised by man – has an impact on public opinion that is difficult to exaggerate.
The Presidency, as Theodore Roosevelt observed, is indeed a "bully pulpit." The office is shrouded in majestic dignity. A statement by the President of the United States, simply by the force of his office, commands instant attention, respect and belief. As Woodrow Wilson noted about the President's force and impact as a national spokesman:
"His is the only national voice in affairs. No other single force can withstand him, no combination of forces will easily overpower him. His position takes the imagination of the country.... If he rightly interprets the national thought and boldly insists upon it, he is irresistible; and the country never feels the zest for action so much as when its President is of such insight and caliber." Quoted in C. Rossiter, The American Presidency, p. 21 (1965).
The accuracy of this observation is even more compelling in this present age of television than it was in Wilson's pre-radio era. As one distinguished commentator has written:
"Television has put the President himself in control of what image he will project to the country and enabled him to project it farther and more favorably than was ever possible before, with less competition from Capitol Hill and less interference from the press." R. MacNeil, The People Machine: The Influence of Television on American Politics, p. 292 (1968).
A. Television-age Presidents are increasingly exploiting the medium.
After the hesitant start in the Truman-Eisenhower era, the White House has moved more and more boldly to exploit the use of television so that the medium is now an integral part of the Chief Executive's power. The White House has come to realize that "In a highly communicative world, access to communications broadcast resource is partially equivalent to political power." Baran, The New Communications and Social Values, 34 Law and Contemp. Probs., 244, 249 (1969).
Although refusing to permit live broadcasts of his press conferences, President Eisenhower made 49 live television appearances during his tenure in the White House. His appearances came at crucial junctures for his Administration: the veto of the Farm Bill in 1956, the decision to send troops to Little Rock in 1957, the passage of the Labor Reform (Landrum-Griffith) Bill in 1959, as well as foreign policy positions with respect to the Middle East, Latin America, NATO and the United States.
President Kennedy used television even more imaginatively and effectively. Six days after his inauguration, he held the first press conference to be broadcast live. The conference was held in the evening to attract a large national audience and, indeed, it captured 33.8% of the eligible television audience. On March 23, 1961, President Kennedy graphically demonstrated his views of the nation's vital interest in Laos, illustrating his points by frequent references to three maps of Southeast Asia. Continuing his innovative use of television, President Kennedy undertook to evaluate, explain and define his Administration's policies in 1962 when he appeared in a broadcast from his study with one representative from each of the major networks.
President Johnson continued the expansion of the President's use of television. In his tenure of five years and two months in office, President Johnson made nearly 100 live television appearances; he averaged more than one appearance for each month in office. President Johnson delivered State of the Union messages to Congress in the evening to attract the largest possible audience. His televised reports to the nation covered such controversial topics as civil rights and tax legislation as well as the nation's foreign involvement in the Dominican Republic and Southeast Asia.
President Nixon has extended the Presidential use of television to seek support from the American public for his position on many controversial matters of public importance. In his 17 months in office, President Nixon has addressed the nation over network television 12 times and in, addition has held 10 televised press conferences, for a total of 22 nationwide presentations.
He has requested and received prime time from all the networks to advocate at any length he desired his viewpoint on such controversial public issues as (1) his veto of the $20 billion appropriations bill for the Departments of Labor and Health, Education and Welfare, (2) his proposed changes in the nation's welfare legislation, (3) his decision to send in the National Guard to replace striking Post Office workers, (4) his views on the economy, and (5) his position on our involvement in Southeast Asia.
At his ten televised conferences (five of them during the evening hours), the President has responded to 215 questions, and virtually every one of the responses contained a statement on a controversial issue of public importance. For example, the subjects included his views on the invasion of Cambodia, the antiballistics missile system, the economy, crime, education, desegregation, and pollution.
In its proposed rules, the Commission suggests that where there is a series of broadcasts within a period of six to nine months presenting only one viewpoint on a controversial issue, a licensee has special affirmative obligations .
In the last eight months, President Nixon has appeared on television during prime hours no less than six times to advance his position on America's role in the war in Southeast Asia. Indeed, the President has made special television presentations five times in the last eight weeks and has promised another in the next two or three weeks. Three of these five presentations were devoted exclusively to Vietnam and Cambodia; one – a prime-time press conference – dealt almost entirely with the war in Southeast Asia and its domestic implications; and the fifth, while essentially an economic message, included several references to the war in Southeast Asia and dealt extensively with the relationship of that war to our nation's current economic situation.
These were the President's television appearances in the last eight months:
On November 3, 1969, on the eve of an election day in many parts of the country and twelve days before a scheduled mass protest on Vietnam, the President appeared on prime-time television to delineate in detail his plan on "Vietnamization."
On December15, 1969, the President presented a prime-time "progress report," indicating that his plan was proceeding on schedule.
On April 20, 1970, the President delivered another televised "progress report," expressing approval of the operation of his "Vietnamization" plan and announcing his six-month plan for troop withdrawals.
On April 30, 1970, the President announced the invasion of Cambodia which he deemed necessary to the success of his "Vietnamization" program.
On May 8, 1970, a hastily arranged Presidential press conference was televised during prime evening hours, concentrating almost entirely on the Cambodian invasion and its domestic implications.
On June 3, 1970, the President again went on television to proclaim the Cambodian invasion "the most successful operation of the war," dramatizing his views with film clips of captured food, arms and equipment.
On June 17, 1970, the President presented his televised analysis of the nation's present economic state and his prescription for curing its economic problems.
B. The President has absolute control over the timing, format and content of his television presentation
In each presentation of his views on controverial issues of public importance, the President has had instant access to tens of millions of Americans. On each occasion, the three major commercial networks have agreed to provide to the President his choice of time, sometimes on very short notice. Indeed, the networks have rarely, if ever, refused a specific request for television time to the President. See, R. MacNeill op. cit., pp. 301.-07.
As the Chairman of the Senate Foreign Relations Committee recently observed:
"The President can command a national television audience to hear his views on controversial matters at prime time, on short notice, at whatever length he chooses, and at no expense to the Federal Government or his party."
Invariably, the President's speeches, if he so requests, are broadcast live simultaneously over the three major commercial networks. Thus, virtually everyone watching television at that time has little choice but to watch the President. Non-affiliated stations often repeat in its entirety a Presidential speech at other hours of the day. For example, after President Nixon's June 17, 1970, speech on the economy was broadcast at noon on all three networks, two local stations in New York re-broadcast the speech in its entirety later in the day, once at 4:00 p.m. and once at 11:00 p.m. See Television. Listings, New York Times, June 17, 1970, at p. 95, Col. 5. While a President's speech is being telecast live on all three networks, it is also simultaneously being broadcast on several radio networks, reaching untold additional millions of Americans. And, whatever the President has said is the subject of wide news coverage including extensive use of film clips of the appearance.
As a result, the President is able to augment the prestige of his office and the effectiveness of a television presentation with a guaranteed national audience of great magnitude. For example, President Nixon's well-publicized press conference on May 8, 1970 received a rating of 48.5%, which indicates that approximately 49,600,000 Americans listened and watched the President respond to questions about his views on such controversial issues as the war in Southeast Asia, student unrest on campus, the conduct of the police and National Guard, the sale of jets to Israel and unemployment.
Moreover, the President is able to choose what he deems to be propitious times and occasions for his addresses to the nation, thereby adding immediate political impact to his words. For example, the President chose to deliver his speech on the economy at noon, when the stock market was still open; his May 8 prime-time press conference was held on the eve of a scheduled mass protest against his policies near the White House.
The President is also entirely free to choose his format and devices he desires to accentuate the effectiveness of his speech. In addition to using maps, President Nixon was the first President to include film clips in his live presentation to support visually his assertions.
C. The networks have failed to accord fair treatment to the President's opponents
Against this powerful array of forces, the networks have not sought out, much less permitted, any effective rebuttal. The networks have not faced squarely the three basic questions which arise in considering the appropriate response to a Presidential presentation:
(1) Who are the appropriate spokesmen to respond?
(2) When should the response be broadcast?
(3) What should the format of the response be?
The networks rarely secure or permit persons who hold opposing views to respond to or analyze the President's statement. Generally, the networks have their own correspondents "comment" briefly on the President's speech immediately after his address. This commentary, of course, does not purport to be and does not often have the effect of a presentation of a point of view on the subject which contrasts with the President's. Such sessions are directed primarily to summarizing, paraphrasing and in some cases noting the significance of the President's remarks. As Commissioner Cox recently stated concerning the network commentators' treatment of one of President Nixon's speeches on Cambodia: "All they did was reiterate what the President said." The Evening Star, June 19, 1970, at p. A4, Col. 4. Moreover, the commentary is invariably brief.
As former television correspondent Robert MacNeil points out:
"Resumption of the full commercial schedule has a higher priority than analytic comments by reporters after the President has finished speaking. The usual network practice is to ‘fill’ until the normal time slot is expired.... Knowing this, an astute President will time his appearance so as to fill all or virtually all the time allotted to him." R. MacNeil, supra, at pp. 304-05.
Frequently, a network will carry on the next day's news program a very brief quote from a Senator or Congressman. Whatever the effectiveness such comments – which generally do not exceed one or two sentences – might otherwise have is diluted because they are frequently juxtaposed with another Congressman's statements in support of the President's presentation or a film clip of the presentation itself. Moreover, the difference in advance publicity, viewing time and format between the President's speech and any such opposition statement eliminates the latter's effectiveness.
A third approach – which also fails to give a full and balanced response to the President's statements – has recently been given sporadic application by the national networks. For example, after President Nixon's latest address on the Cambodian situation, NBC presented a special Thursday night edition of "Meet the Press" which had representatives who supported the President's views as well as those who opposed them. The next night CBS presented an hour-long "debate" between the supporters of Mr. Nixon's policies and the opponents of those policies. In both, the effectiveness of the opposition was substantially diluted by the difference in format between the "debate-type" program and the President's wholly self-controlled presentation.
To equate a President's unfettered presentation during prime time to a brief off-the-cuff reply carried during a newscast or a tightly controlled debate is like equating Neil Armstrong's first moonstep from the Apollo XI spaceship to a Shirley Temple two-step on the Good Ship Lollipop.
In each of his televised addresses, President Nixon, like his predecessors, has been permitted to take all the time he wanted, to use any device (including, for example, maps and films) and to proceed uninterrupted in his presentation. Even at a Presidential news conference, a reporter is not permitted to ask follow-up questions. In marked contrast, the speakers in opposition to the President's presentation have their format and time dictated by the networks. Most importantly, under the present approach, opposition speakers are severely circumscribed in the presentation by questions and comments from reporters and opposing speakers who agree with the President's position.
As expert observers recognize, the manner of presentation often determines the effect and impact of a televised message. See generally M. McLuhan, Understanding Media 268-94 (1964). To make a point with maximum effectiveness, a President, a producer of documentaries, or even a commercial advertiser must have freedom within confined time limits to package and project his message. As Professor Miller points out in his book, The Process of Persuasion, we are all "creatures of conditioned reflex," and–
"[T]he crux of all persuasion jobs, whether selling soft drinks or political philosophy, is to develop these conditioned reflexes by flashing on trigger words, symbols or acts." V. Packard, The Hidden Persuaders 18 (1957). See also H. Burtt, Psychology of Advertising (1938).
During the 1968 Presidential campaign, Ray Price, an advisor to Mr. Nixon, wrote:
"We have to be very clear on this point: that the response is to the image, not to the man.... It's not what's there that counts, it's what's projected – and carrying it one step further, it's not what he projects but rather what the voter receives." J. McGinnis, The Selling of the President, p. 37. As Alexander and Myers wrote in "A Financial Landslide for GOP," Fortune, March, 1970:
"From early 1967 until just before the election, Richard Nixon turned down all invitations to be interviewed on “free” programs like Meet the Press and Face the Nation. He preferred to pay for his time so that he could control content and format in his television appearances.”
To counter the tremendous impact of a President's unfettered televised presentstions, those who hold differing views on controversial issues of public importance must be free to project a coherent and complete response, which will at least begin to approximate in the minds of the viewers the impact of the President's position.
The Commission has already recognized that political spokesmen should have substantial freedom in choosing the manner and format for presenting their views to the public. King Broadcasting Co., 15 F.C.C. 2d 829 (1967). To afford the American electorate a balanced presentation of views on controversial issues, the networks must permit those who hold opposing views from the President's reasonable opportunities comparable in duration, scheduling and freedom of format, to present their views.
IV. THE FAIRNESS DOCTRINE REQUIRES THE RULE WHICH THE DNC PROPOSES
The Rule we propose promotes the Commission's well-established and judicially endorsed fairness doctrine, which requires broadcasters to act fairly in permitting a reasonable opportunity for reply in specific circumstances affecting the public interest. As codified by statute, 47 U.S.C. §315 (a) (1964) the fairness doctrine requires a broadcast licensee to afford "reasonable opportunity for the discussion of conflicting views on issues of public importance." As interpreted by the Supreme Court, this statute imposes an obligation on the broadcasters "to discuss both sides of controversial public issues." Red Lion Broadcasting Co. v. FCC, 395 U.S. at 380 (emphasis supplied). Yet, as we have demonstrated, insofar as Presidential presentations are concerned, the networks have provided no reasonable or fair opportunity for reply.
A. The President's television presentations pose a special problem under the fairness doctrine .
Under the fairness doctrine, what is “fair" in any one situation depends upon all of the surrounding circumstances. See, e.g., King Broadcasting Co., 15 F.C.C. 2d 829 (1967). Given the enormous impact of a Presidential television presentation and the President's instant access to tens of millions of Americans, fairness requires at the very least that the President's opponents be given an opportunity which is in every feasible manner equal to the President's.
The networks have been patently unfair to the President's opponents and have thereby violated their public trust for the American people whose interest they are required by law to serve. As the Supreme Court emphasized in Red Lion:
"It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 395 U.S. at 390.
The networks have failed in their "obligation of presenting important public questions fairly and without bias" and they have failed in their "fiduciary ... obligations to present those views and voices which are representative of [the] community." Red Lion Broadcasting Company, 395 U.S. at 389.
This is particularly unfair and unfortunate because of the enormous impact on public opinion which a Presidential presentation is likely to have.
Obviously, the President addresses on national television only the most critical questions of the day – questions on which there will likely be several contrasting opinions. It is precisely those questions which require the complete and unfettered discussion that our system contemplates to inform our citizens and thus enable them to participate intelligently in the democratic process. See Red Lion Broadcasting Co., at 390. If the President of the United States considers a matter of such importance that he requests national television time and if the network believes the matter is of such importance that it provides such time to the President, then the matter is obviously important enough to impose an affirmative responsibility on the broadcaster to secure and present appropriate spokesmen with contrasting viewpoints.
Presidential pronouncements are, of course, subject to the terms of the fairness doctrine. See, e.g., Republican National Committee, 3 R.R.2d 767, 769 (1964) Sen. Eugene J. McCarthy, 11 F.C.C. 2d 511 (1968). Indeed, in the 1964 proceeding, initiated by the then-Republican National Chairman, Dean Burch, the Commission held that in response to a Presidential speech broadcast simultaneously on the three national networks, the networks were obligated under the fairness doctrine to provide a reasonable opportunity to opposition speakers to insure that their viewpoints were effectively presented to the public.
The DNC believes that this situation requires that the Commission promulgate a rule to delineate the networks’ obligations. A specific rule, like the one proposed herein, will make crystal clear to the networks their responsibilities in fully presenting contrasting viewpoints on important controversial issues and will permit them to operate confidently under the fairness doctrine in the particular area of Presidential broadcasts. See, e.g., In the Matter of Amendment of Part 73 of the Rules To Provide Procedures in the Event of a personal Attack or Where a Station Editorializes as to Political Candidates, 8 F.C.C. 2d 721,724 (1967) ("A major purpose of the rules is to clarify and make more precise the procedures which licensees are required to follow....)
Moreover, a carefully constructed, specific rule is not only easier for the Commission to administer than a case-by-case approach but a duly promulgated rule will also permit the Commission to use, when necessary, all of the enforcement powers provided it under the Communications Act. Id., at 722-24.
B. The networks have an affirmative obligation to present contrasting views
Because we are addressing the adequacy of a response to a Presidential presentation broadcast simultaneously over three national networks, the DNC believes that the rule it proposes must be adopted on a uniform, national basis. The obligations therefore must be placed on the network which originated the Presidential address, as well as any individual licensee.
The DNC's proposed rule places an affirmstive obligation on the networks and licensees to solicit and present viewpoints which contrast with the President's. It has long been the policy of the Commission to enforce the "affirmative duty [of the licensee] to encourage and implement the broadcast of controversial public issues." In the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949). Given the impact of a Presidential speech, an obligation on the licensee to provide comparable time to opposing viewpoints will best provide a way for the broadcaster to satisfy its obligation to help produce an informed populace.
The rule would also recognize that, as we have demonstrated, virtually every Presidential broadcast presentation contains his viewpoint on controversial issues of the day. That presumption would be written into the rule in order to insure timely responses to the Presidential point of view and to eliminate the need which might otherwise exist for this agency to become enmeshed in disputes between the broadcasters and responsible spokesmen eager to respond.
Nevertheless, there will inevitably be disputes in this area, perhaps regarding whether a controversial view was espoused and surely whether a broadcaster has met his affirmative obligation to seek out responsible spokesmen. In order to facilitate the resolution of such dispute, the DNC proposes that broadcasters be required to maintain records – open for public inspection, and copying – detailing their efforts in this area.
The affirmative obligations the DNC proposes here follow logically from the rules which the Commission now proposes. The Commission's proposed rules place an affirmative obligation on a broadcaster to seek out a proponent of a contrasting viewpoint after a television editorial or a series of broadcasts on a controversial issue. The rationale for the Commission’s proposed rule is to afford prompt and full discussion of a controversial issue by the advocates of a variety of contrasting opinions. We support this concept.
The Commission has recognized that where a licensee editorializes or broadcasts a series of programs presenting only one side of an issue, he cannot passively rely on general over-the-air invitations to present the other side. The Commission states that if "the licensee has adjudged the subject matter of such importance to his community as to warrant an editorial," he must "make every reasonable effort to encourage presentation of views in opposition to his editorial." Notice, p. 6. Even though the licensee has presumably weighed all of the aspects of an issue and presents in an editorial a reasoned, unbiased conclusion, he must still select suitable persons with contrasting views, notify them of the issue and assist them in all appropriate ways to present their views.
If there is an obligation to find responsible opposition spokesmen where a presumably objective broadcaster editorializes on a given issue, how much greater should his obligation be when a President of the United States, the leader of a political party and a partisan of particular policies, presents his views on controversial matters of public importance? Moreover, when one compares the probable impact of a Presidential statement with that of a broadcaster's editorial, it becomes all the more important that the broadcaster assume an affirmative role in presenting views which contrast with the President's.
C. The networks and licensees must solicit appropriate opposing spokesmen
Under the DNC's proposed rule, the affirmative obligation by the networks and licensees would be to notify and secure appropriate, responsible spokesmen who hold opposing views from those which the President has expressed on a controversial issue of public importance, and who are prepared to state them in prompt rebuttal to the President's presentation. Both the Supreme Court and the Commission have recognized that a contrasting point of view is generally not adequately presented when provided by the licensee himself in an attempt to balance the record. In proposing the rules under advisement, the Commission noted that "requiring the licensee to present the contrasting viewpoint might inhibit the robust debate sought." Notice, p. 7, n.8: (Emphasis added.). See also Radio Albany, Inc., 4 R.R. 2d 277 (1965). The Commission has recognized that a presentation by a licensee will not have the same impact as a presentation by an interested party. "'[I]ntonation, speech pattern and inflection are incomparably related to verbal expressions of opinion.' " Id. at 278. As the Supreme Court recently observed, quoting John Stuart Mill: "'[It is not ] enough that [one] should hear the arguments of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. That is not the way to do justice to the arguments, or bring them into real contact with his own mind. He must be able to hear them from persons who actually believe them, who defend them in earnest, and do their very utmost for them.' J.S. Mill, On Liberty, 32 (R. McCallum ed. 1947)." Red Lion, supra, at p. 392, n.18.
In direct contrast to this policy, Richard W. Jencks, President of the CBS Broadcast Group, recently stated that the CBS "news organization can give a fairer presentation" of controversial issues than truly partisan spokesmen. N.Y. Times; March 22, 1970, p. 39,; col. 1. Opposition spokesmen should not have to contend with positions such as this when seeking to make a reasoned response under the fairness doctrine.
Under the rule that DNC proposes, a television network may have to present more than one opposition viewpoint. On some issues, there maybe several significantly different opinions. The DNC's rule would require that each significant responsible view be given an equal opportunity to be heard. The Commission has clearly stated that "to accord one organization or group favored treatment beyond that accorded to other responsible organizations," would be to violate the fairness doctrine. Lloyd C. Sigmon, 8 F.C.C.2d 987 (1967). Of course, the broadcaster is under no obligation to present highly extreme or irresponsible positions. See Tri-State Broadcast, 3 R.R.2d 175,,(1962). However, it is the obligation of the networks to present fully all responsible opinions. To do less is to defeat the interest of the public in receiving "suitable access to social, political, esthetic, moral, and other ideas and experiences." Red Lion Broadcasting Co. v. FCC, 395. U.S. at 390. In the final analysis, of course, as the Commission notes in its proposed rules, the broadcaster would still have discretion to choose in good faith the appropriate spokesman who would be notified and given a full opportunity to respond.
D. The opposing spokesmen must be given equal opportunity to respond
To begin to counterbalance the enormous impact of a Presidential presentation, the DNC's rule incorporates the "equal opportunities" standard of § 315(a) of the Communications Act. We submit that nothing less than a truly equal opportunity for opposing spokesmen to articulate and rally support for their opposition will begin to allow for a fair presentation of contrasting viewpoints. If the public is not to adopt uncritically all Presidential suggestions without hearing contrasting viewpoints, substantial and effective offsetting measures are required. Only an appearance by an opposition spokesman comparable in duration, scheduling and freedom of format can hope to provide the necessary balance to a Presidential presentation.
In delineating the obligations of the equal opportunities doctrine the Commission has noted that while "perfect equality is not practicable ... a licensee must see to it that the time segments offered ...are substantially equal in duration, quality and desirability of hours." Station KTTV, 14 R.R. 1227 (1957).
We submit that the spokesmen opposing the President's views must not be restricted in presenting their viewpoints by inappropriate program formats or inadequate scheduling offers. See King Broadcasting Co., 45 F.C.C. 2d 829 (1967). In a fairness doctrine context, the Commission has recognized that a comparable opportunity for presentation by opposing spokesmen is necessary to the effective presentation of their viewpoint. In adopting the personal attack and political editorializing rules, the Commission said:
"The phrase ‘reasonable opportunity’ to respond is used here and in the personal attack subsection because such opportunity may vary with the circumstances. In many instances a comparable opportunity in time and scheduling will be clearly appropriate; in others such as when the endorsement of a candidate is one of many and involves more than a few seconds, a reasonable opportunity may require more than a few seconds if there is to be a meaningful reply." 8 F.C.C. 2d at 727. [Emphasis added.]
Moreover, as the Commission as well as psychologists, political scientists and advertising executives, among others, has recognized, control over the format of the presentation is essential to success in affecting public opinion. In the case of personal attacks, the Commission has noted that the victim "might conclude that a panel or round-table discussion does not afford a comparable opportunity to reply", when the offending remarks were made on a program of a different nature. John Birch Society, 11 F.C.C. 2d 790, 791 (1968). An uninterrupted Presidential appearance requires a similarly unfettered opposition presentation, if contrasting viewpoints are to be forcefully put forth.
To permit less of an opportunity for a contrasting presentation is to defeat the "paramount ... right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences." Red Lion Broadcasting Co. v. F.C.C., 395 U.S. at 390.
The DNC's proposed rule will serve to insure that the American public is exposed to contrasting sides of a controversial issue of public importance. To countenance less than a full presentation by a network or licensee is to favor one idea over another. Such a result is the antithesis of free discussion. It maximizes the power of the President and the networks over public opinion and makes less likely the ability of new or contrasting ideas to gain currency. As the Supreme Court said in Red Lion, "There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all." 395 U.S. at 392.
CONCLUSION
For the foregoing reasons, the Commission is hereby respectfully urged to promulgate a rule providing that:
(a) When a network or licensee broadcasts a presentation by the President of the United States of a viewpoint on a controversial issue of public importance, that network or licensee has an affirmative obligation to seek out responsible persons or entities with significant contrasting viewpoints on the controversial issue and afford them equal opportunities to present their views.
(b) In the case of any broadcast of a Presidential address or press conference, it shall be presumed that the President has presented a viewpoint on a controversial issue of public importance; and in. the event of any complaint of non-compliance filed with the Commission, the burden shall be upon the network or licensee to establish compliance with this rule.
(c) Each network and licensee shall be required for a period of not less than three years to maintain a complete tape and transcript of every presentation by the President which it broadcasts and to maintain records detailing all actions taken by it to fulfill its affirmative obligations under this rule. Such records shall be available for inspection and copying at any reasonable time upon the request of any person.
(NOTE. – The term "equal opportunities", as used in paragraph (a) hereof, shall have the same meaning and effect that it has under Section 315(a) of the Communications Act of 1934, 47 U.S.C. § 315 (a) (1964).)
Respectfully submitted,
DEMOCRATIC NATIONAL COMMITTEE, JOSEPH A. CALIFANO, Jr.,
General Counsel.