est and types of appropriate service may, of course, differ from community to community, and from time to time. However, the Commission does expect its broadcast licensees to take the necessary steps to inform themselves of the real needs and interests of the areas they serve and to provide programing which in fact constitutes a diligent effort, in good faith, to provide for those needs and interests.

The major elements usually necessary to meet the public interest, needs, and desires of the community in which the station is located as developed by the industry, and recognized by the Commission, have included: (1) Opportunity for local self-expression. (2) the development and use of local talent, (3) programs for children, (4) religious programs, (5) educational programs, (6) public affairs programs, (7) editorialization by licensees, (8) political broadcasts, (9) agricultural programs, (10) news programs, (11) weather and market reports, (12) sports programs, (13) service to minority groups, (14) entertainment programing. (Emphasis supplied.)

In the eyes of the Commission, editorials had reached full stature. Forbidden as inimical to the public interest in "Mayflower," they were merely tolerated by the 1949 report. But, by 1960, the Commission's attitude had swung a full 180 degrees from "Mayflower." Editorials attained the status of a most favored form of programing. The fact that a licensee broadcast them was evidence that he, indeed, was operating in the public interest.

On June 14, 1960, Senate Resolution 305 was adopted authorizing the Freedom of Communications Subcommittee of the Subcommittee on Communications of the Senate Commerce Committee "to examine, investigate, and make a complete study of any and all matters pertaining to

(1) Federal policy on uses of Government licensed media for the dissemination of political opinions, news, and advertising, and the presentation of political candidates; and

(2) a review and examination of information and complaints concerning the dissemination of news by such media.

The final report of that subcommittee was filed on April 17, 1962, including recommendations pertinent to the "fairness doctrine" and editorializing. Although the report was neither adopted nor rejected by the full committee, a historical examination of the "fairness doctrine"

necessitates a review of its recommendations.

A summary of those recommendations, relevant to this study, follows:

1. The "fairness doctrine" should be codified and adopted by FCC as a rule, a violation of which would be cause for license revocation. 2. The FCC should act promptly upon complaints, affording an immediate review rather than deferring action thereon until renewal time.

3. Ground rules governing licensee editorializing on behalf of political parties or candidates should be adopted by FCC, including

(a) Licensees should be required to retain on file and available. for inspection for a period of not less than 1 week, radio scripts and television films or tapes of editorials on behalf of or in opposition to a party or candidate.

(b) Advance notice to the affected party or candidate should be required before such editorials are aired to permit monitoring.

(c) A candidate or party opposed by such editorials should be afforded an equal opportunity to use the station's facility for

answer.

(d) Selection of the spokesman to present such answer should be afforded the candidate or party opposed as a matter of right. (e) Such editorials should be prohibited during a reasonable period (at least 48 hours) before the polls open.

(f) Licensee promotion of an editorial, spot announcements, and other advertising should also be qualified for the opposing viewpoint to such editorial.

(g) Where a licensee editorializes on behalf of a slate of candidates in one time segment (say, 5 minutes) but the time spent on any one candidate is minimal-a few seconds for the mentioning of his name the opposing candidate or candidates should in fairness be allowed sufficient time for his representative to present adequately the opposing position (say 22 minutes).

4. FCC should forbid licensees requiring advance scripts of candidate broadcast speeches if the candidate orders a tape recording of his speech, paying in advance, and leaving the recording on file at the sta tion available for audition or reproduction by interested parties.

5. FCC should prohibit any licensee, who has determined in advance not to make time available for candidates in a particular race, from thereafter changing such determination without the acquiescence of all candidates in that race.

6. FCC should prohibit arbitrary cutoff dates for the sale of political time prior to elections.

7. FCC should study controversial issue broadcasting in depth and establish guidelines governing same, including

(a) a requirement that licensees initiate efforts to schedule opposing views, before presenting licensee editorials, to the end that the listeners could be advised at the time of the original broadcast when the opposing views would be heard.

(b) and, perhaps, require commercial advertisers, who utilize broadcasts sponsored by them for presentation of views on controversial issues, to make equitable time available on such programs for the presentation of opposing views.

8. FCC should view repeated refusal by a licensee to sell time, for discussion of controversial issues, to such organizations as political parties, labor unions, citizens committees, or business groups as a failure to act in the public interest.

9. The FCC should reform its internal procedures for handling and processing fairness and section 315 complaints to the end that the time lag be cut to a minimum. Action to ascertain all necessary facts for resolution of complaints should commence no later than 24 hours after receipt by the Commission.

10. Licensees should be required by FCC to respond to Commission inquiries on complaints with dispatch and in the event of arbitrary delay, an immediate hearing should be called.

11. FCC should consider establishing a field hearing system, staffed by competent hearing examiners, for prompt evidenciary hearings of fairness and section 315 complaints.

12. Based upon its past experience, FCC should advise Congress exactly what is needed by way of legislation and personnel to preserve the public freedom to hear and to see on the public air waves.

All of the foregoing were addressed by the subcommittee to FCC for

implementation through its own initiative. Only one recommendation for Congressional action was included. It reads as follows:

Section 326 of the Communications Act should be amended to provide additionally:

"Nothing in this act or the foregoing sentence shall prevent the Federal Communications Commission, acting upon a complaint in an 'editorial fairness' case, to direct a licensee to make time available and present the opposing position or a particular person in order that the paramount right of the public to be informed on all sides of public issues be preserved." Section 326 forbids censorship by FCC. As yet, Congress has not adopted the subcommittee recommendation. As a practical matter, its adoption would be of little import. It merely attempts to restate the "fairness doctrine" principle which FCC has followed.

To what extent FCC was persuaded by the report can only be subEjected to speculation. At least in one instance, a spokesman for the Commission acknowledged that its policy was affected by the report. Testifying before the House Subcommittee on Communications and Power on July 16, 1963, Chairman E. William Henry referred to that portion of the report represented by item 3 (g) of the foregoing summary. Acknowledging approval of the recommendation, he stated that it had, in substance, become Commission policy. The result was, in instances where several political candidates are mentioned in an editorial, fairness dictates that each be afforded more time for response than was devoted to them in the original editorial. Equal time in some instances would not be fair. Enough time must be afforded to reasonably accommodate an adequate response. The requirement is also referred to in a recent FCC opinion and order adopting the personal attack feature as a rule of the Commission.

Three Commission actions in 1962 are particularly relevant to the "personal attack" feature of the "fairness doctrine." Before turning to them, however, we should recall a reference from the 1949 editorializing report. There the Commission said:

*** elementary considerations of fairness may dictate that time be allocated to a person or group which has been specifically attacked over the station, where otherwise no such obligation would exist.

The 1949 report offered no guidelines for the handling of personal attack situations. It was not until 1962 that those guidelines began to

emerge.

On May 9, 1962, the Commission adopted a memorandum opinion and order renewing the license of station WEBY, Milton, Fla.28 A petition opposing renewal had been filed alleging that licensee, in a series of editorial broadcasts, had attacked various individuals in the community. While renewing the license, the Commission discussed licensee responsibility associated with "personal attack." Referring to the language of the 1949 report dealing with "personal attack," the Commission wrote:

Our singling out this area of the problem of fairness for specific treatment reflected not only our concern but our decision that a licensee must act with an especially high degree of responsibility where his broadcast facilities are used to attack a person or group. In appropriate recognition of the serious nature of such attacks, we pointed out that fairness may dictate that "time be allocated" to the person or group attacked. Where, as here, the attacks are of a highly personal nature which impugn the character and honesty of named individuals,

29 23 P. & F. RR. 586.

the licensee has an affirmative duty to take all appropriate steps to see to it that the persons attacked are afforded the fullest opportunity to respond.

The decision, popularly known as the Maypoles case, offers the first Commission definition of "personal attack." It is an attack "of a highly personal nature which impugns the character and honesty of named individuals." It also defines licensee responsibility more explicitly. He "has an affirmative duty to take all appropriate steps to see to it that the persons attacked are afforded the fullest opportunity to respond."

Two months later, on July 13, 1962, the Commission disposed of a complaint against station KBMY, Billings, Mont. Clyde T. Ellis, general manager of the National Rural Electric Cooperative Association was attacked in several editorials emanating from the station. The attacks occurred before and during a visit by Mr. Ellis to Billings while attending a Western States Water and Power Conference. Upon learning of the attacks after his arrival, Ellis attempted to secure copies of the editorials from KBMY and complained to the station about the nature of the editorials. The station offered him an opportunity to respond in an interview format with its news director. Ellis refused, objecting to the format. Subsequently, on the day of his departure, the station offered to broadcast tapes to be supplied by Ellis after his return to Washington. It does not appear that copies of the offending broadcasts were ever tendered.

In a letter addressed to the licensee, Billings Broadcasting Co., the station was advised of its responsibilities with this language:

29

The Commission is of the view that where, as here, a station's editorials attack an individual by name, the fairness doctrine requires that a copy of the specific editorial or editorials shall be communicated to the person attacked either prior to or at the time of the broadcast of such editorials so that a reasonable opportunity is afforded that person to reply. This duty on the part of the station is greater where, as here, interest in the editorials was consciously built up by the station over a period of days and the time within which the person attacked would have an opportunity to reply was known to be so limited. We note that you have not complied with your stated policy of apprising interested parties of your editorials. We conclude that in failing to supply copies of the editorials promptly to Mr. Ellis and delaying in affording him the opportunity to reply to them, you have not fully met the requirements of the Commission's fairness doctrine. It is hoped that this will serve to make clear the Commission's policy in situations of this kind.

Thus, the Billings case provided a new guideline. In instances of "personal attack," the licensee was required to furnish a copy of the offending broadcast to the person attacked, either prior to or at the time of the attacking broadcast.

Still later in 1962, additional "fairness" guidelines emerged. A bitterly contested campaign between Gov. Pat Brown and former Vice President Richard Nixon was underway in California. Over a period of days, two commentators on the staff of station RTTV, Los Angeles, offered numerous comments upon the campaign in their broadcasts. Both supported Nixon and leveled attacks upon Brown, Democratic organizations, and others identified with the Brown camp. The California State Democratic Committee complained to FCC. In a telegram addressed to Times-Mirror Broadcasting Co.,30 licensee, the Commis

20 23 P. & F. RR. 951. 80 24 U. & F. RR. 404.

sion discussed the complaint and KTTV's responsibility arising therefrom. Here is a passage from that telegram:

** fairness requires that when a broadcast station permits, over its facilities, a commentator or any person other than a candidate, to take a partisan position on the issues involved in a race for political office and/or to attack one candidate or support another by direct or indirect identification, then it should send a transcript of the pertinent continuity on each such program to the appropriate candidate immediately and should offer a comparable opportunity for an appropriate spokesman to answer the broadcast.

Responding to the telegram, KTTV, asked for clarification of the words: "appropriate spokesman." Speculating that Governor Brown might consider himself the appropriate spokesman for response, the station wondered if such an appearance, under the "fairness doctrine" would obligate the station to afford Mr. Nixon equal time under section 315. The Commission replied that section 315 would indeed be invoked if the candidate himself appeared for response. Because of 315 complications, it was held the licensee would not be obligated to permit candidate response, but could insist upon some other appropriate spokesman. In a subsequent telegram dated October 26, 1962,31 the the Commission used this language:

** the selection of a spokesman must be reasonable in terms of the points of view or the issues to be discussed. Where a political candidate has been personally attacked, he should, of course, be given a substantial voice in the selection of a spokesman to respond to such attack. Both the candidate and station concerned should be aware, however, that if the candidate were to speak for himself this would give rise to a right to equal opportunity for all other candidates for the same office.

Times-Mirror added a new dimension to the "fairness doctrine" peculiar to political campaigns. Until then, a licensee was required to furnish copies of broadcasts only in instances of "personal attack." That principle was logically extended to attacks upon candidates. But, Times-Mirror went further. It applies to any broadcast, exclusive of candidate appearances, where, by direct or indirect identification, a candidate is endorsed, a candidate is opposed, and/or a candidate is attacked.

In each of those instances the licensee is obligated to furnish a copy of the broadcast and afford a reasonable opportunity for response by an appropriate spokesman. In the first instance, it is the candidate not endorsed who must be so favored. In the latter two, it is the candidate who is opposed or attacked. In neither instance, because of section 315 complications, is the station obligated to permit the candidate himself to respond. Following all other "personal attacks" the offended individual or group has the absolute right to respond. But the candidate must reply with an appropriate spokesman. And he does not have the absolute right to select that spokesman, though the station should give him "a substantial voice in the selection of a spokesman.'

On July 26, 1963, the Commission issued a public notice entitled "Broadcast Licensees Advised Concerning Stations' Responsibilities Under the Fairness Doctrine as to Controversial Issue Programing." The text of that notice is reproduced here in its entirety:

Several recent incidents suggest the desirability of calling the attention of broadcast licensees to the necessity for observance of the fairness doctrine stated by the Commission in its opinion of June 1, 1949, in docket No. 8516. The Com

31 24 P. & F. RR. 407.