mission adheres to the views expressed in that opinion and continues to apply that policy: namely, that the licensee has an affirmative obligation to afford reasonable opportunity for the presentation of contrasting viewpoints on any controversial issue which he chooses to cover.

The Commission has undertaken a study to consider what actions, perhaps in the form of a primer or rules, might be appropriate better to define certain of the licensee's responsibilities in this area. Without undertaking at the present time to specify all, or the most important, applications of the policy, it is appr priate to call attention to the Commission's view of its application in three currently important situations:

(a) When a controversial program involves a personal attack upon an individual or organization, the licensee must transmit the text of the broadcast to the person or group attacked, wherever located, either prior to or at the time of the broadcast, with a specific offer of his station's facilities for an adequate response (Clayton W. Mapoles, 23 Pike & Fischer, R.R. 586, 591; Billings Broadcasting Company, 23 Pike & Fischer, R.R. 951, 953).

(b) When a licensee permits the use of his facilities by a commentator or any person other than a candidate to take a partisan position on the issues involved in a contest for political office or to attack one candidate or support another by direct or indirect identification, he must immediately send a transcript of the pertinent continuity in each such program to each candidate concerned and offer a comparable opportunity for an appropriate spokesman to answer the broadcast (Times-Mirror Broadcasting Co., 24 Pike & Fisher, R.R. 404, 405).

(c) When a licensee permits the use of his facilities for the presentation of views regarding an issue of current importance such as racial segregation, integration, or discrimination, or any other issue of public importance, he must offer spokesmen for other responsible groups within the community similar opportunities for the expression of the contrasting viewpoints of their respective groups. In particular, the views of the leaders of the Negro and other community groups as to the issue of racial segregation, integration, or discrimination, and of the leaders of appropriate groups in the community as to other issues of public importance, must obviously be considered and reflected, in order to insure that fairness is achieved with respect to programing dealing with such controversial issues (Editorializing Report, 1 (pt. 3) Pike & Fischer, R.R. 201, 204–206; cf. WBNX Betg. Co., Inc., 4 Pike & Fischer, R.R. 242, 248).

In determining compliance with the fairness doctrine the Commission looks to substance rather than to label or form. It is immaterial whether a particular program or viewpoint is presented under the label of “Americanism,” “anticommunism" or "States rights," or whether it is a paid announcement, official speech, editorial, or religious broadcast. Regardless of label or form, if one viewpoint of a controversial issue of public importance is presented, the licensee is obligated to make a reasonable effort to present the other opposing viewpoint or viewpoints.

The Commission does not seek to prevent the expression of any viewpoint by any licensee on any issue. It does seek to prevent the supression of other contrasting viewpoints by any licensee on any issue when licensed broadcast facilities have been used for the presentation of one view of the issue. This is required by the public interest standard of the law.

Just over a month later, Douglas A. Anello, general counsel for National Association of Broadcasters, wrote the Commission requesting the notice be rescinded "so as to remove any implication that there has been any change in the official Commission position as set forth in its 'Report on Editorializing of June 2, 1949" The Mapoles and Billings cases each involved station editorials which included personal attacks. Anello argued that script submission and specific offers to respond should be limited to instances where stations were personally involved in attacks. The extension of that requirement to all broadcast attacks was inconsistent with the "Editorializing Report of 1949," he reasoned.

Replying to this contention, by letter dated September 18, 1963, the Commission said:

The underlying premise of your letter-necessity for the station's personal involvement as a precondition to application of the principles stated in (a) and (b) is incorrect. The editorializing report in paragraph 10 does not so hold:

"**** the station will inevitably be confronted with such questions as whether *** there may not be other available groups or individuals who might be more appropriate spokesmen for the particular point of view than the person making the request. The latter's personal involvement in the controversy may also be a factor which must be considered, for 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. * * *" (Emphasis supplied.) As shown by the use of the word "latter" (referring to "person making the request"), the "personal involvement" doctrine is directed to the party or group attacked-not the station. See Clayton W. Mapoles, 23 Pike & Fischer, R.R. 586, 591. In short, while, as you state, in Mapoles and Billings there was "station involvement," these cases did not turn on that factor but rather the abovequoted, long-established principle in the editorializing report.

Under fundamental communications policy, the licensee is fully responsible for all matter which is broadcast over his station. It follows that when some program contains a personal attack, the licensee must be 'fully aware' of the contents of the program, whatever its source or his actual involvement in the broadcast. The crucial consideration, as we stated in Mapoles (at p. 591), is that 'his broadcast facilities [have been] used to attack a person or group.'

The Commission put to rest any idea that its personal attack requirements applied only to licensee editorials or programing in which the licensee was "personally involved." All broadcast content was affected. As a practical matter, this holding portended greater inconvenience. It is a simple matter to afford copies of editorials and other material directly produced by licensee. But it is far more difficult, sometimes impossible, for him to obtain copies of broadcasts produced by others and merely aired over his facility.

Another cogent and practical consideration remained for the licensee. His editorials are unsponsored. They are presented upon his time without revenue. He absolutely controls their content. So, it is not unreasonable to expect that he afford respondents free time as well. But what of commercially sponsored programs? Must he afford free time for response to those? The Cullman case would immediately answer these questions.

32

On September 18, 1963, the Commission addressed a joint letter to Cullman Broadcasting Co., Inc. (WKUL), and Walker County Broadcasting Co., Inc. (WARF), both situated in Alabama. The stations had solicited an advisory opinion detailing their responsibilities arising from the broadcast of a syndicated program series called "Life Line." The producer of the series was not associated with either station. The programs were recorded and supplied by the producer for broadcast upon a commercially sponsored basis.

For a period of time preceding inquiry, the "Life Line" series included an expression of views critical of the proposed nuclear weapons test ban treaty. The chairman of a group called Citizens Committee for a Nuclear Test Ban Treaty requested that both stations afford free time, pursuant to the fairness doctrine, for the broadcast of a tape presenting the other side of the issue. Apparently, no chapter or member of the committee existed in the service area of either broadcaster.

Expressing a tentative conclusion that the fairness doctrine applied only to local issues and the stations' responsibility extended only to a local group or its spokesman, the station invited Commission comment. On this point FCC replied:

32 FCC file No. 63-849.

The keystone of the fairness doctrine and of the public interest is the right of the public to be informed-to have presented to it the conflicting views on issues of public importance (sec. 315(a) of the Communications Act; Report on Editorializing by Broadcast Licensees, pars. 6, 7, 9, 14, 21). Where a licensee permits the use of its facilities for the expression of views on controversial local or national issues of public importance such as the nuclear weapons test ban treaty, he must afford reasonable opportunities for the presentation of contrasting views by spokesmen for other responsible groups. There is, of course, no single method by which this obligation is to be met. As the editorializing report makes clear, the licensee has considerable discretion as to the techniques or formats to be employed and the spokesmen for each point of view. In the good faith exercise of his best judgment, he may, in a particular case, decide upon a local rather than a regional or national spokesman-or upon a spokesman for a group, if there be one, which is willing to pay for the broadcast time. Thus, with the exception of the broadcast of personal attacks, there is no single group or person entitled as a matter of right to present a viewpoint differ ing from that previously expressed on the station.

The fairness doctrine was thus held not limited in its application to purely local issues. Selection of the spokesman is another matter. He is not required to be either local or foreign. His selection is completely in the discretion of each licensee. The important point is not who the spokesman shall be but that opposing points of view are presented.

Since "Life Line" was commercially sponsored and the tendered response was on condition that free time be provided, the stations wondered if they could deny a request for presentation of opposing views unless proponents of those views made the same commercial arrangements for their broadcast as the original program. The Commission answered in the negative with these words:

Where the licensee has achieved a fair presentation of contrasting views, either by affording time to a particular group or person of its own choice or through its own programing, the licensee's obligations under the fairness doc trine to inform the public-will have been met. But, it is clear that the public's paramount right to hear contrasting views on controversial issues of public importance cannot be nullified either by the inability of the licensee to obtain paid sponsorship of time for the broadcast of a view contrary to one already presented in a sponsored program or by the licensee's refusal to consider a request for time to present a contrasting viewpoint from an organization on the sole ground that the organization has no local chapter in the community where the station is located. In short, where the licensee has chosen to broadcast a sponsored program which for the first time presents one side of a controversial issue, has not presented (and does not plan to present) contrasting viewpoints in other programing, and has been unable to obtain paid sponsorship for the appropriate presentation of the contrasting viewpoint or viewpoints, he cannot reject a presentation otherwise suitable to the licensee-and thus leave the public uninformed on the ground that he cannot obtain paid sponsorship for that presentation.

In complying with the fairness doctrine, the licensee was left free to obtain sponsorship of programs presenting opposing views. Yet, if he is unable to arrange sponsorship, he cannot avoid his obligation to air opposing views simply because the original views are expressed in a commercially sponsored program.

The Cullman decision aroused widespread industry criticism which continues to this day. Following its issuance, legislation was introduced in Congress which would negate its impact on broadcasting. No action has ever been taken upon those measures and the policy still stands. The practical problem it presents for the broadcaster is apparent. If he is to offer any network, syndicate, or other broadcast material, not produced under his supervision, which deals with issues of public importance, he may be subjected to incalculable demands

upon his commercial schedule for free time to air opposing views. Thus, the commercial value of sponsored programs dealing with issues of public importance is reduced. Since he has no control over the production of many of them, he cannot control the number of complaints which might arise. He is not inclined to provide unlimited free time for response and therefore must consider sponsored public issue programs as prospectively a unique genre. Though they might have been an excellent source of revenue in the past, they could become an albatross in the future. The net result, in his view, and the view of some producers, is the suppression of commercially sponsored public issue programs. And, that, in the face of a regulatory policy which requires him to deal with issues of public importance.

33

On July 1, 1964, the Commission adopted its public notice entitled "Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance." Popularly titled "Fairness Primer," it was designed "to advise broadcast licensees and members of the public of the rights, obligations, and responsibilities of such licensees under the Commission's 'fairness doctrine..." Reaffirming the 1949 report, the "Fairness Primer" abstracted and reported significant Commission rulings on fairness, hoping "to keep the broadcaster and the public informed of pertinent Commission determinations on the fairness doctrine, and thus reduce the number of these cases required to be referred to the Commission for resolution."

A number of significant cases were reviewed, tracing the development of the doctrine after the 1949 report. Among them were cases covered in this discussion. But in addition to its review of previous actions, the primer served as a vehicle to announce, ironically in a footnote, a new limitation on the "personal attack" responsibility, a new definition of "personal attack" and a new exception to licensee duties in the event of personal attack. In footnote 6, the Commission stated:

As seen from the above rulings, the personal attack principle is applicable where there are statements, in connection with a controversial issue of public importance, attacking an individual's or group's integrity, character, or honesty or like personal qualities, and not when an individual or group is simply named or referred to. Thus, while a definitive Commission ruling must await a complaint involving specific facts-see introduction, page 3, the personal attack principle has not been applied where there is simply stated disagreement with the views of an individual or group concerning a controversial issue of public importance. Nor is it necessary to send a transcript or summary of the attack, with an offer of time for response, in the case of a personal attack upon a foreign leader, even assuming such an attack occurred in connection with a controversial issue of public importance.

What was the new limitation? The "personal attack" principle would apply only in instances of attack in connection with the discussion of a controversial issue of public importance. What was the new definition? An attack upon "an individual's or group's integrity, character, or honesty or like personal qualities, and not when an individual or group is simply named or referred to." The new exception? It is not "necessary to send a transcript or summary of the attack, with an offer of time for response, in the case of a personal attack upon a foreign leader..."

33 29 F.R. 10415.

In the meantime, licensees continued to experience problems arising from their affirmative fairness obligations. Although "KNOE" had eliminated the words "seek out," the phrase "aid and encourage" remained, bothering some for lack of a clear definition. At a minimum, what must a licensee do in his day-to-day operations to satisfy FCC he "aids and encourages" the presentation of opposing views? Although the primer dealt with that responsibility, it established no minimum standards for its fulfillment.

Just over 3 weeks after approval of the primer, FCC ruled favorably upon the renewal application of stations WRAL-AM, FM, and TV, located at Raleigh, N.C. In connection with those renewals, the Commission expressed dissatisfaction with licensee's past fairness policy in dealing with editorial broadcasts carried by the stations. Addressing itself to those policies in a letter dated July 29, 1964, the Commission described them as follows:

As to your efforts affirmatively to encourage and implement the broadcast of viewpoints contrasting with those presented in your editorials, you have relied. in large part, upon the following assertions: (i) that it is your judgment that the networks' offerings are generally in a direction away from a conservative point of view and therefore, the viewpoints expressed in your editorials tend to balance the network programs carried by your stations; (ii) that a public affairs program of local origin provided an outlet for contrasting viewpoints on controversial issues of public importance; and (iii) that you, at times, provided an appropriate opportunity to respond to editorials and always transmit texts of broadcasts which personally attack individuals or organizations to the persons or groups attacked, with a specific offer of the station's facilities for a response. (Emphasis supplied.)

Note that the words of art are no longer "aid and encourage" as in "KNOE." That phrase here reverts to the original language of the 1949 report, "encourage and implement."

Although FCC felt licensee's past policies were not "adequate to insure compliance with the fairness doctrine," it decided to renew the licenses for two reasons. First, it concluded that licensee, though violating the doctrine in the past, had acted in good faith. Second, it noted that licensee had recently changed its policy so as to broadcast an invitational announcement following each of its editorials which deal with controversial issues. The language of that announcement is as follows:

Viewpoint is the editorial expression of the Capitol Broadcasting Co., voiced by Jesse Helms, vice president of this company. Dissenting opinion is welcome. When writing, please state clearly your name and address, and indicate your willingness for your expression to be used on the air, along with your name.

In view of the policy change and relying upon licensee's assurance that the new policy would be followed in the future, FCC concluded that public interest would be served by renewal of the licenses.

Thus FCC supplied a minimum standard of compliance with the licensee duty "affirmatively to encourage and implement the broadcast" of opposing points of view. Although not required by law to do so, a licensee who follows each controversial issue broadcast with an invitational announcement and, inferentially, allows responsible parties to air opposing views upon demand, is considered to have complied with the affirmative duty to "encourage and implement" the presentation of opposing views. If he doesn't carry such an announcement, he must find other ways to "encourage and implement."