basic character. For example, if the tobacco industry undertook a series of broadcast commercials stressing the idea that smoking is not inimical to health, then a substantial issue of public importance would Ibe raised. The basic distinction seems to be between a commercial which seeks to sell a particular competitive product or service and one which seeks support for an idea or position upon a public question. Obviously, the fairness doctrine should apply to the latter, while the former is merchandising, not debate.

Admittedly, the distinction between a commercial which seeks to sell a particular brand of product (as opposed to other brands of the same product) and one which encourages consumption of all brands of the product generally, is sometimes not easily observed. Clearly, a commercial which encourages cigarette smoking generally begs an important public question. To smoke or not to smoke? While, on the other hand, the commercial which seeks to convert "Kent" smokers to "True", if successful, merely provokes a private dilemma. To switch or not to switch?

Therefore, if the fairness doctrine is incorporated by statute, the following additional language might be considered:

In connection with a licensee's responsibility to afford a reasonable opportunity for discussion of all responsible points of view, the following program types shall be presumed not to deal with important public issues:

(1) Fictional dramatic presentations;

(2) Musical presentations;

(3) Broadcast descriptions and portrayals of sporting events;

(4) Locally originated broadcasts of worship services, conducted by an organized religious group, when no position is taken therein upon matters to be decided by pending public elections;

(5) Broadcast advertisements primarily soliciting or encouraging the purchase or use of a lawful specific product or service; and

(6) All other programs offered primarily for entertainment purposes. An appealing argument has also been advanced that hard news broadcasts should be exempt from the fairness doctrine. It is supported by the rationale that professional journalism is inherently fair-that the mission of news gathering is to ferret out the various positions incident to newsworthy issues and events. Professional journalism, the argument continues, will be balanced over the long haul without any enforced requirement to be fair. FCC recently adopted this rationale in a limited way when it exempted news broadcasts from application of its personal attack rule.

While the argument is persuasive, its very nature tends to be selfdefeating. If news programing is inherently fair, then it will not be impinged upon by any specific requirement to be fair. On the other hand, if minimum professional standards are adopted for broadcast journalism, there seems to be little possibility for abuse in exempting hard news, as distinguished from commentary, from application of the fairness doctrine.

However, there are problems, apart from the fairness doctrine, associated with news broadcasts which should be addressed in any revision of the law. While hard news reporting is not likely to create fairness problems, its first cousin, commentary upon the news by broadcast professionals, has a potential for creating many. While the newspaper format has established a traditional identification of and separation between news stories and professional commentary upon the news,

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broadcast journalism has frequently melded the two. If news reporting is to be exempted from the fairness doctrine, then a requirement that professional commentary be separated from news reporting seems desirable. A further requirement that commentary be identified as such might also be indicated.

Another problem associated with news broadcasting, as revealed by complaints at FCC, is alleged slanting of the news. Slanting is not an easy practice to define. A statutory provision forbidding it would be difficult, if not impossible, to draft with any reasonable certainty.

A recommendation, applicable to all broadcast content, which seeks to minimize false, misleading, or defamatory broadcast materials will immediately follow. That recommendation addresses itself to news slanting in as much detail as is felt practicable. But, related to news slanting, is the possibility of requiring identification of originating sources of news and commentary broadcasts. The newspaper format has a tradition of explicitly identifying those sources. The tradition does not consistently prevail in broadcasting. Supporting the tradition is a presumption that the originator of published materials will be more circumspect in authorship if his identity is disclosed.

A large volume of fairness complaints received at FCC allege broadcast content to be false, misleading, or defamatory. Classical cases in this category are Shuler and KTYM. There seems to be little justification for utilizing any public resource as a vehicle for deliberate falsehood, fraud, or defamation. Such conduct in a National Park or Federal building would be quickly curtailed. The nature of broadcasting is such, however, that it is neither feasible nor desirable that false, misleading, or defamatory content be absolutely forbidden. Inadvertent or good-faith inclusion of such materials is inevitable from time to time if a licensee undertakes any sort of information programing. Verification of programs developed and supplied by another is always difficult and sometimes impossible. And, apart from operational problems, such a ban would pose serious First amendment questions.

However, a strong argument can be made for amending the Communications Act to forbid the broadcast publication of false, misleading, or defamatory materials when done with knowledge or reckless disregard of the false, misleading, or defamatory character of the broadcast.

The First amendment affords no protection to publications of that sort. Still, in such a case, licensees would be faced with the same operational problems if they are to remain primarily responsible for their broadcast content. Then, if such materials are proscribed, each licensee should be permitted to rely in good faith upon the source of broadcast materials, over which he exercises no production control, for compliance with the law.

The following statutory language might be considered in this

connection:

The broadcast of any false, misleading, or defamatory materials willfully obtained by one with knowledge that such materials are false, misleading, or defamatory, or with reckless disregard of whether or not such materials are false, misleading, or defamatory, is not in the public interest, convenience, or necessity, and such broadcasts are hereby forbidden. However, any licensee who, in good faith, permits the broadcast of such materials over his facility, prepared by others than those under his direct supervision and control, shall not, for that reason, be considered to have operated his facility in a manner inimical to the public interest, convenience, or necessity.

The statute should then provide for both administrative and criminal sanctions, fixing the legal responsibility for publication upon those who prepared, obtained, or permitted the proscribed broadcast, knowing the same to be false, misleading, or defamatory or with reckless disregard of whether or not it was false, misleading, or defamatory. Enactment and enforcement of such a prohibition would eliminate many problems associated with the fairness doctrine. In such a case, the personal attack feature might also be carefully reexamined. Perhaps, apart from its Times-Mirror consequences, there would no longer be a need for it. While the broad objective of the fairness doctrine is to insure full public discussion of important issues, the personal attack feature is essentially a private remedy. If a personal attack, as defined by the Commission, is false, it is essentially defamatory in character. Yet, if true, it is not. Whether true or false, if it is made in connection. with an issue of public importance, the person attacked has the same remedy. Technically, the remedy would extend to a convicted felon whose crime is described on any broadcast (other than hard news or description of a newsworthy event).

On the other hand, where the attack is not associated with an important public issue, no remedy is available, despite its truth or falsity. Viewed as a private remedy, if the attack is false, what is the justification for distinguishing between attacks associated with public issues and those which are not? If there is a public interest incentive for affording individuals opportunity to defend themselves against broadcast defamation, why permit the privilege to one defamed person and deny it to another?

In lieu of the personal attack rule as currently promulgated, consideration might be given a stautory remedy requiring notification, script submission, and offers of reply time to persons who have been defamed in broadcasts. To protect licensees in doubtful cases, the law should provide that the fact of any such notice, tender, and offer shall not be competent, as evidence in Federal courts, as an admission by the involved licensee that the broadcast was indeed defamatory. On the other hand, when an aggrieved person makes demand upon a licensee for time to reply to alleged defamation, the licensee should be permitted to establish the truth of the involved broadcast as a defense. Such a determination would necessitate evidentiary hearing and require complaint procedures not now available. Suggestions for revision of enforcement and complaint procedures will be covered later. The Times-Mirror consequences of the personal attack feature are not consistent with a remedy for defamation. Instead, the incentive is primarily to insure full debate upon the merits of political candidates. Hence, this aspect is, in reality, a regulatory extension of section 315. If it is to be retained, logically it could be incorporated explicitly in section 315. Taking this approach, it should be remembered that the Times-Mirror feature of the new personal attack rule is more limited in application than the precedent which established it. While the rule applies this feature only to station editorials, the older precedent applies to all broadcasts. If there is a public interest basis for existence of Times-Mirror then there is logic for the broader application. A licensee who has an ax to grind needs little creativity to design a format, other than editorials, to achieve his end. In fact, Times-Mirror

did not involve station editorials, but rather, commentary programs of two of the licensee's employees.

In the context of modifying section 315, other suggestions arise. In its present form, section 315 applies only to elections in which candidates are involved. Obviously, the incentive for public discussion of issues to be resolved by initiative or referendum elections is equally as strong as in the selection of public officials. If equal time between candidates is in the public interest, then equal time for each side of a ballot measure is no less in the public interest. Adopting this argument, application of section 315 should be extended to include recognized spokesmen for opposing sides upon issues to be resolved by ballot. Heretofore, the only available remedy has been the fairness doctrine. Directly related to licensee responsibility to deal with all issues of importance to responsible elements of their service community is a responsibility to afford a reasonable amount of time for political broadcasts. FCC studies consistently reveal that some licensee afford no time at all for this purpose. If it is in the public interest that licensees assume such a responsibility, then it should be clearly defined in the law along with appropriate standards; at least for quantity and quality of time availabilities. Such standards are analogous to and perhaps could be incorporated with standards applicable to public affairs programing generally.

Incidental to a requirement that licensees afford time for political broadcasts is a problem unique to noncommercial licensees. Many of these, who operate with tax-exempt status, do not carry political broadcasts for fear their tax exemption might be jeopardized. A revision of the law will clarify this point. It should expressly state that taxexempt, nonprofit licensees may provide time for political broadcasts. consistent with section 315, without thereby being engaged in political activity under the provisions of the Internal Revenue Act.

Another problem related to section 315 was revealed by responses to the licensee questionnaire. In section 315, broadcasters are confronted with a species of the Hatch Act unique to their profession. As a practical matter, if a broadcast professional seeks public office he must abandon his livelihood during his candidacy. After his qualification to run, every broadcast appearance he makes, whether as a professional or a candidate, generates equal time privileges for his opponents. It is arguable that an exception to section 315 be devised obviating this difficulty. Professional appearances by the broadcaster-candidate, where he is not readily identifiable as a personality, might reasonably be permitted. It is hard to perceive how his reading of commercial announcements or station identifications will redound against his opponents. On the other hand, programs including him as a distinct personality are quite another matter.

All of the suggestions mentioned previously have assumed the desirability of regulating broadcast content. For the most part, they have been substantive in nature. But, if the substantive law is to have any meaning, adequate procedures for enforcement must be available. Under existing law, FCC has the primary responsibility for policing broadcasting and enforcing the law and its requirements. It has largely delegated that responsibility to the public in the area of programing standards. The only policing of programing routinely undertaken by the Commission is connected with the renewal process. This system

simply has not worked. The history of jurisprudence has adequately proven it to be far better not to adopt needed legal restraints than to adopt them and fail to enforce them. Ensuing suggesions are offered for improved law enforcement in a scheme that comprehends regulation of broadcast content. More particularly, they are directed to problems experienced in fairness and section 315 enforcement.

As a programing standards policing device, the classical periodic license renewal should be abolished. At best, it is a nuisance to broadcasters and a sedative to the public. Only in the event of serious complaint will an application be given more than cursory examination. Even in the face of powerful opposition in a few instances, FCC has never failed to renew a license for programing deficiences.

In lieu of periodic renewal, it is recommended that the law be amended to provide for licensing of broadcast stations for an indefinite period. Each station would continue its broadcast privilege for so long as it operates in the public interest, convenience or necessity; until the license is surrendered; or until the privilege might be granted to another competing applicant. If the licensee fails to operate in the public interest, convenience, or necessity, revocation proceedings are available to the Commission.

This licensing procedure is somewhat analogous to the issuance of charters to National banks. That analogy also suggests a policing procedure which should prove far more effective than existing methods. Periodically, field examinations of National banks are conducted. While bank examinations are not complete fiscal audits, detailed review of banking practices and policies are undertaken to insure that each is complying with the law and the standards and regulations of the Comptroller of Currency. Unquestionably such an approach could be adapted to broadcasting. The practice is presently followed in a limited way by FCC. Periodic field examination to insure compliance with technical operating standards have been conducted for some time.

Obviously, this approach will require more funds and more personnel for the field examination force. In addition to engineers, the new approach would require examiners from other disciplines. With the renewal procedure abandoned, more frequent field examinations than is the current practice should be undertaken. (Banks must be examined at least twice each 18 months.) Out of the banking analogy, a suggestion for meeting increased costs arises. Upon each examination, a national bank pays an examination fee. The amount is computed as a percentage of gross assets of the bank. There is a direct relation between gross assets and the amount of time required for examination. Likewise, there is a relationship between gross assets and the bank's ability to pay. A similar approach might be adopted for broadcasters which would yield examination fees substantially offsetting the cost of examination. Perhaps a percentage of gross revenues would be most equitable.

While renewal applications, for the most part, are limited to a description of licensee policies, an expanded field examination would afford a vehicle for comprehensive examination of practices as well. But, this approach again raises the problem of a lack of specific regulatory standards governing broadcasting. Without standards, field examination would be largely impractical.