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STAFF REPORT ON THE FAIRNESS DOCTRINE

(Prepared by Robert Lowe, Special Counsel)

INTRODUCTION

The study which this report culminates began on November 18, 1965, under authority of Senate Resolution No. 76, first session of the 89th Congress. It continued and was concluded under authority of Senate Resolution No. 213, second session, 89th Congress, and Senate Resolution No. 72, first session, 90th Congress.

Primarily the study was concerned with the "fairness doctrine," a regulatory principle applicable to broadcasting. Secondarily, section 315 of the Communications Act was also reviewed.

The principal and full-time responsibility for the study was assigned to one member of the Senate Commerce Committee staff, Robert M. Lowe, staff counsel. Substantial part-time assistance was afforded Mr. Lowe by Daniel A. O'Neal, staff counsel. Nicholas Zapple, communications counsel, maintained overall supervisory responsibility by direction of Senator John O. Pastore, chairman of the Communications Subcommittee.

At the outset, a review of the law, congressional hearings and reports, and selected, but comprehensive, literature upon the subject was undertaken.

Next, initial contact was made with key elements of the Federal Communications Commission staff for briefing upon Commission policy, procedure, and actions. A substantial number of "fairness doctrine" complaints in FCC files, predating 1965, were then examined and studied for information and orientation purposes.

Contacts were initiated with each of the major radio and television networks. Their policies, procedures, practices, and past complaints were examined and their views elicited. To like effect, liaison was established with representatives of the National Association of Broadcasters and the National Association of Educational Broadcasters. Views of nonindustry individuals and organizations were received and considered where interest was evinced, along with the volunteered comments of individual licensees and program originators.

The preliminary review of FCC complaint files revealed a substantially large volume of complaints associated with syndicated program series. These programs are carried by more than one station but are not distributed by a network. Attempts were made to identify programs of this type which deal with issues of public importance. No directory source was located which sufficed for this purpose. So, a questionnaire was prepared and mailed to all program syndicators listed in available trade directory sources to ascertain which programs deal with controversial issues.

In addition, the preliminary complaint survey reflected a substantial number of complaints associated with locally originated broad

cast editorials and locally originated "open mike" programs. The latter format is used to broadcast the opinions of the public, depending largely upon spontaneous phone calls from individuals.

To evaluate practices and policies of individual licensees and to elicit their views and suggestions, a comprehensive questionnaire was prepared and addressed to the licensee of each operating broadcast station subject to FCC jurisdiction. Valuable assistance in designing the questionnaire was obtained from the Bureau of Census of the Department of Commerce. FCC's file of operating stations was used as a mailing list and the Commission's facilities were used to address the mailing. Particular emphasis was placed upon editorials, open-mike programs, syndicated programs, and network programs in the questionnaire. A copy of the questionnaire is included here as appendix D. In the meantime, a comprehensive review of all "fairness doctrine" complaints and associated files, received by FCC during the period from January 1, 1965, through June 30, 1966, was commenced. Particular attention was given Commission practices, policies, and procedures for handling complaints and enforcing the doctrine.

As licensees responded to their questionnaires, additional staffing was required to encode individual responses in computer language where those responses were not automatically preencoded on the face of the turned questionnaire. In this connection, six professionals were loaned and four accountants.

These individuals were trained by the committee staff and performed the bulk of editorial encoding required by the responses. To insure the accuracy of their work, each document encoded by them was checked and validated by either Mr. O'Neal or Mr. Lowe. A total of 5,643 responses were received, encoded, and verified.

The committee, with the approval of the Committee on Rules and Administration, contracted with Service Bureau Corp., a nationally known data processing firm, to convert the data reported upon the face of each questionnaire into data processing punchcards and to verify each such card. Except for some 300 questionnaires received after the final delivery of documents to Service Bureau Corp., that firm keypunched and key-verified all the data generated by the licensee questionnaire. The remaining 300 documents were keypunched and key verified by the National Bureau of Standards following the same procedures and instructions which guided the commercial firm.

Upon the request of this committee, approved by the Committee on Rules and Administration, the National Bureau of Standards provided the programing capability and computer facilities for statistical analysis of data elicited from the licensee questionnaire.

Included within this report will be compilations and tabulations of data generated by the licensee questionnaire. Certain of this data is broken down on a State-by-State basis and included here as appendix A. The report also includes a statistical analysis of FCC complaints for the period given comprehensive scrutiny.

The report also includes a historical survey of the origin and development of the "fairness doctrine" and concludes with editorial observations and recommendations. The editorial conclusions and the recommendations included here are those of Robert M. Lowe and not necessarily those of other staff members or of any member of the committee

or the Senate. Submitted August 30, 1967, with footnote revision through September 8, 1967.

I. THE FAIRNESS DOCTRINE

A. THE PUBLIC INTEREST, CONVENIENCE, OR NECESSITY

From its beginning as a federally regulated industry, broadcasting was expected to operate in the public interest, convenience, or necessity. Those words of art, ordinarily applied to a public utility, describe the principal obligation of a broadcast licensee if he is to retain privileged use of the electronic frequncy over which he broadcasts. Yet, unlike other public utilities, he is not expected to be a common carrier.

As radio broadcasting burgeoned before any serious regulation was undertaken, problems of interference became widespread. When two or more operators arbitrarily elected to broadcast over the same radiofrequency, the result was chaos. The early broadcaster could expect no viable future unless exclusive use of a particular frequency, free from encroachment by other operators, could be insured for him. The infant industry saw the need for Federal control of broadcast communication long before radio could be described as a mass media. Practitioners of the art were in the vanguard of those who sought legislation in the field. Enactment of the Federal Radio Act of 1927 and establishment of the Federal Radio Commission resulted.

As the new Commission undertook its first major chore, allocating frequencies, its yardstick was the public interest, convenience, or necessity. Congress made it clear that no part of the radio spectrum was subject to ownership as private property. The airwaves belonged to the public and those who used them could do so only at sufferance of the sovereign and in the public trust. Thereafter, the concept that the individual broadcaster was a "trustee" of the public interest has not been a subject of serious debate.

The only questions which remained for the fledgling Commission, its successor, the Congress, the public (represented by critics, academicians, writers, etc., of every persuasion and stripe), and the industry (represented by its phalanx of lawyers now swollen to thousands), evolved from interpretation of that magical, elusive, all-encompassing, six-word phrase: "the public interest, convenience, or necessity."

The advent of radio broadcasting excited the hopes and imagination of those dedicated to preservation and extension of the democratic processes of a free, pluralistic society. Foremost was this new medium's potential for dramatic expansion of the cherished democratic idealfree speech. The soapbox orator could be freed from the geography of his park and his utterances, magnified a thousandfold, extended far beyond the decibel limits of his own voice mechanism. His ideas, however, profound or mundane, popular or radical, well-reasoned or unfounded, relevant or frivolous, could enter a vastly expanded dialog upon public issues.

The first amendment objective; "*** the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public ***" 1 found a new medium for expression and, from the beginning, the broadcast licensee was charged, in "the

1 Associated Press v. United States, 326 U.S. 1, at p. 20.

public interest, convenience, or necessity," with the affirmative obligation of informing Americans on all sides of public questions.

In its report, "Editorializing by Broadcast Licensees," adopted by the Federal Communications Commission in 1949, the Commission described that obligation most cogently:

It is axiomatic that one of the most vital questions of mass communication in a democracy is the development of an informed public opinion through the public dissemination of news and ideas concerning the vital public issues of the day * Unquestionably, then, the standard of public interest, convenience, and necessity as applied to radio broadcasting must be interpreted in the light of this basic purpose. The Commission has consequently recognized the necessity for licensees to devote a reasonable percentage of their broadcast time to the presentation of news and programs devoted to the consideration and discussion of public issues of interest in the community served by the particular station. And we have recognized, with respect to such programs, the paramount right of the public in a free society to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning those vital and often controversial issues which are held by the various groups which make up the community. It is the right of the public to be informed, rather than any right on the part of the Government, any broadcast licensee, or any individual member of the public to broadcast his own particular views on any matter, which is the foundation stone of the American system of broadcasting.

Hence, the public interest, convenience, and necessity, requires each broadcast licensee to devote a reasonable percentage of his broadcast time to presentation of programs dealing with public issues of interest in the community served by the particular station. In doing so, the public interest requires him to operate on a basis of overall fairness, making his facilities available for the expression of contrasting views of all responsible elements in the community on various issues which arise. In short, he is obliged to afford a broadcast forum for all issues of public importance arising in his community and while doing so, provide an opportunity for expression of various views held thereon by responsible elements of the community.

It is from this basic licensee responsibility to broadcast programs dealing with the "various issues which arise" in his community that every reference to the "fairness doctrine" must be framed. If the licensee were permitted to avoid all issues of public importance about which contrasting views are held in his community, and he elected to do so, nothing controversial would ever be broadcast from his facility and no "fairness doctrine" problems would ever arise.

B. ITS CONTENT

1. What it's not

The fact that many people, including some broadcast licensees, confuse the "fairness doctrine" with section 315 of the Communications Act of 1934 may indicate widespread misunderstanding or ignorance of the doctrine's existence. Confusion does persist and, for that reason, it is felt some space should be devoted to explaining what the "fairness doctrine is not; namely, section 315.

Section 315 is a congressional enactment and the "fairness doctrine," although a qualifying reference to it appears in section 315, is not. Section 315 applies to use of a broadcasting station by a "legally qualified candidate for any public office" and the "fairness doctrine" applies to all broadcast content excepting as will be seen later, personal attacks upon foreign leaders (it will also be observed later that there

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