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Mr. HARRIS. I was going to ask you about that.
Mr. HEALD. We did not realize that the committee would be prepared to accept testimony on that bill this morning. Therefore, if there are further hearings, which I understand there may be, I would like the opportunity of preparing a statement on that and either I or some other member of the organization appear to address ourselves to that subject.
Mr. HARRIS. There will be some further hearings on it because other witnesses will be invited to testify. That includes the Air Coordinating Committee.
The Air Coordinating Committee will be called on to give certain information. In fact, they said last October, I believe, that within 60 days they would have a further report. It has been much longer than that now and we have not received the report yet. It will be our purpose to try to get that information.
You could file a statement for the record if you like at this time along with your own statement, or if you do prefer to come back, we will try to make arrangements. We do not want to continue these hearings indefinitely on these matters.
We tried to give sufficient and ample time to make a good record on all these proposals that have been brought to our attention.
Mr. HEALD. I understand your difficulty, Mr. Chairman. We would like the opportunity to appear. If you find there is not time we will then file a statement.
Mr. HARRIS. Very well.
have any comment to make on another phase of section 315, the political broadcast section, which has been discussed at length here, regarding equal time for candidates?
Mr. HEALD. Are you referring to H. R. 6810?
Mr. HEALD. The association, Mr. Chairman, has considered this bill and the board of directors felt that we should not take a position on this because of the possibility or the feeling that there may be differences among members of the broadcasting industry on that. I am sure you can understand we only normally testify on matters that affect the entire industry. Therefore, I am not authorized and have no statement to make on behalf of the association.
Mr. HARRIS. Very well. Do you have any comment on any other proposals before the committee?
Mr. HEALD. No, sir; I do not. (Discussion off the record.) Mr. HARRIS. Mr. Hale.
Mr. HALE. Mr. Heald, does the Federal Communications Commission ever grant a license subject to the condition that the station should given a certain amount of free time per week or per month or something like that?
Mr. HEALD. No, they do not; if you mean by a specific or expressed condition in the license: No, they do not; but under their interpretation of the principle that a station must serve the public interest, convenience, and necessity, they have interpreted that to mean that a station must devote a certain amount of its time to what we call sustaining programs-free programs—and at the time its license comes up for renewal, which is every 3 years, the Commission will examine the past record of a station and there have been instances when a station has
been overcommercialized, the Commission has called it to their attention and demanded an explanation and even on occasions set the renewal for hearing to determine whether the overcommercialization proved it was not operating in the public interest.
Mr. HALE. In other words, it is an implied condition of a license if not an express condition that the station has public responsibilities which obligates it to give a certain amount of free time?
Mr. HEALD. That is correct.
Mr. HEALD. That is correct. That also includes the affirmative duty of presenting controversial issues. That is distinguished from political broadcasts. It has an affirmative duty to make free time available to proponents and opponents.
The Commission does, for instance, look into the past record to see whether or not the station has devoted time to discussion programs of a free nature. Their renewal is scrutinized for that purpose. So a station has a definite affirmative obligation to give free time for the worthwhile categories.
Mr. HALE. That is all.
Mr. FLYNT. Mr. Chairman, I would like to thank Mr. Heald for this appearance before us and for the information which he has given to us in a very clear, concise, and poistive manner on this subject.
Mr. HARRIS. I am sure the other members of this committee share that feeling
I wanted to inquire about one further point in connection with political broadcasts.
Using as an example this program Meet the Press, it is a commercial program sponsored by Johns-Manville and Pan American, I believe. Now, as I understand it, if, as an example, Mr. Stevenson, a candidate for President of the United States, appears on the program, as he did recently, then Mr. Kefauver or anyone else who is an announced candidate may request and obtain equal time?
Mr. HEALD. You have a technical problem there, Mr. Chairman. There is a question as to when a man in a primary becomes a legally qualified candidate.
Mr. HARRIS. That has already been decided by the Federal Communications Commission.
Mr. HEALD. As in this case where they have each probably filed in State primaries, they become legally qualified candidates, and at that point that is so.
Mr. HARRIS. However, that is unimportant to the point that I want to bring to your attention, to see if you care to give any expression on it.
If it is a commercial program such as we have here, do you feel that since it is a paid broadcast the station then should be required to give free time to other candidates ?
Mr. HEALD. Under the present law they are required to do so.
Mr. HARRIS. I know they are. Do you feel that is a provision that should be maintained as a policy?
Mr. HEALD. I would be glad to give you my personal opinion on it. I cannot speak for the association because we have not considered that.
Mr. HARRIS. I appreciate that.
Mr. HEALD. I feel personally that if you are going to maintain the equality of time that a station should be required to give free time if they allow another candidate to appear on a commercial program.
Mr. HARRIS. Would that not be the same thing as a candidate then going and purchasing some time for himself, as a paid political broadcast? Do you have to give time to the other candidate?
Mr. HEALD. No sir. Under the law you are required to treat each candidate equally. If you offer the time to a candidae solely on the ground that he pay a certain amount himself, then you can offer it to the other candidate for the same terms. If somebody else pays for the time the Commission has construed the time that as far as the station and the candidate is concerned, it is free time. The mere fact that the commercial sponsor on the side pays for it is a different matter.
Mr. HARRIS. It is difficult for me to understand that.
Mr. ROGERS. After these discussions yesterday, the thought came into my mind, being a very slow thinker, that if you create a situation of not requiring equal time to be given because the broadcast is paid for by a sponsor, you are opening the door to a commercial sponsor, using up all the time and preferring candidates and controlling elections, which might be the very thing that the television people are after in 6810.
What they have done is ask for a whole lot more because they did not think they could get it all anyway. I want to withdraw my commitment to that right here and now before I get my foot into a trap I can't get it out of.
Mr. HEALD. I am sure you will permit me to rise to the defense of the television industry. I am sure I can speak for CBS that there is no feeling that this is their purpose. I am sure that they are presenting this for the purpose of allowing the public to hear more political programing. I think the best illustration of the problem–I do not know the solution—is the conventions. When you give time to one convention and you give it to the other major party, if the other 18 parties had a 4-day convention with 3 people present, do you have to give them equal time, too?
Mr. HARRIS. Thank you very much, Mr. Heald.
Mr. ROGERS. May I ask him to do one thing, Mr. Chairman, first! Could you briefly point out here the news, news documentary, and the format and the panel. In other words, if you could furnish us a brief definition of each one of those. You do not have to do it now; it could be furnished for the record. I think the record ought to show it because there are no definitions.
Mr. HARRIS. Is there such information available ?
Mr. HEALD. It is strictly a matter of interpretation. I would be glad to do it briefly if you care to take a moment.
When you speak of a format you are talking about the makeup of the program. That is not a type. You may have any kind of format. The basic type program is the forum program in which you allow various candidates to appear in the same time with a moderator. That is understood as the forum-type program in the trade.
Then you have the news program where a news commentator appears and he may interview a candidate.
Then the final type of program involved would be the so-called question and answer program, which may move into forum. For instance, you may start out with a forum and then allow someone to ask questions.
Mr. HARRIS. What is the forum?
Mr. HEALD. The forum is basically the program of the old highschool debates, where you have both sides represented with a moderator and both sides talk on the same program.
Mr. HARRIS. What do you call a question and answer program?
Mr. HEALD. That would be one person appearing. For instance, Meet the Press, one man would appear and you have a panel of experts who question him.
Mr. HARRIS. Is that the kind you refer to as a news broadcast or type of news broadcast?
Mr. HEALD. I would call that the so-called quiz program or meet the expert program as distinguished from the forum type which entails two people with a moderator.
Mr. HARRIS. Is that sufficient, Mr. Rogers?
Mr. HEALD. There is no formal definition. It is more or less a trade custom.
Mr. HARRIS. Thank you very much.
We will all join in the high compliment paid to you by Mr. Flynt a moment ago.
Mr. HEALD. Thank you, Mr. Chairman.
Mr. HARRIS. We have a request from the National Broadcasting Co., 1625 K Street, for permission to file a statement. Without objection, their statement will be received and inserted at this point in the record. (The statement referred to is as follows:)
NATIONAL BROADCASTING CO., INC.,
New York, N. Y., February 14, 1956. Hon. OREN HARRIS, Chairman, Subcommittee on Transportation and Communications,
Committee on Interstate and Foreign Commerce,
House of Representatives, Washington, D. C. DEAR CHAIRMAN HARRIS: The National Broadcasting Co. appreciates this opportunity to present its views on the pending bills and resolutions before the subcommittee which affect the broadcasting industry.
It may be helpful at the outset to state our position on the matters in which we are interested before discussing each in detail. NBC favors in principle the pending bills which propose to amend section 315 of the Communications Act relating to broadcasts by legally qualified candidates for public office: H. R. 3789, H. R. 4814, H. R. 6810.
NBC is opposed to the resolutions relating to antenna towers: House Joint Resolution 138, House Joint Resolution 139.
With respect to other legislation to amend the Communications Act before the subcommittee at this time, NBC expresses no opinion except that we believe the principle contained in H. R. 6968 and H. R. 6977 is a sound one. In performing its licensing function, we believe that the Commission uld
inate against newspapers or any other lawful business solely because of the nature of the enterprise.
BROADCASTS BY "LEGALLY QUALIFIED CANDIDATES" H, R. 3789
At present section 315 (a) requires equal opportunity be afforded all "legally qualified candidates.”
H. R. 3789 would exclude from the ambit of this section a "legally qualified candidate" who
(1) is convicted of any offense punishable under chapters 37 (espionage), 105 (sabotage), or 115 (treason, sedition, and subversion), of title 18, United States Code; or (2) "is a member" of
(a) any organization proscribed by section 3 of the Communist Control Act of 1954 (i. e., the Communist Party or its successors) ; or
(b) any organization registered under the Subversive Activities Control Act of 1950 as a Communist action, front, or infiltrated organization or finally determined to be a Communist action, front, or infiltrated
organization. The substance of the proposed amendment is consistent with national policy and would be beneficial.
The bill in its present form, however, requires the broadcaster to be investigator, judge, and jury—and these functions must be performed during the heated and limited time of the campaign season. It is apparent from the nature of his business that the broadcaster is not equipped to discharge this heavy and responsible burden without assistance. We, therefore, suggest that an amendment be added which requires an applicant for time under section 315 to furnish (1) the Secretary of the Federal Communications Commission, (2) the United States attorney in the district where he resides, and (3) the broadcaster to whom application is made for time with identical statements under oath in a form satisfactory to all that he is a “legally qualified candidate” for the public office involved and that he is not within the classes proscribed by H. R. 3789.
In the event that a false statement is filed, it would appear to fall within the penal sanctions of the Criminal Code (18 U. S. C. A, 1621). The subcommittee may also want to consider incorporating a specific penal provision in section 315 of the Communications Act or in the provisions of that act relating to penalties which commence with section 501.
NBC also recommends that a provision be added exempting a broadcast licensee from liability in the event he refuses a candidate time on the ground that such candidate falls within the proscribed classes specified in H. R. 3789 and he has reasonable cause for the refusal. H. R. 4814
Section 315 provides that a broadcaster shall have "no power of censorship" over broadcasts by legally qualified candidates for public office pursuant to that section. The Federal Communications Commission has construed the present law to prohibit a broadcaster's rejection or censorship of defamatory material in a political broadcast (Port Huron Broadcasting Company, 4 Pike and Fischer R. R. 1 (1948)). In its decision the Commission warned that a broadcaster who violated section 315 by deleting defamatory material might lose his license. The Commission made clear that in its opinion the licensee is relieved of liability under State law for the broadcast of defamation in political speeches.
This latter opinion, however, is cold comfort to the broadcaster confronted with decisions of State courts holding to the contrary and to the effect that it is no defense in a defamation action for a broadcaster to plead that the demafation occurred in a political speech (Sorenson v. Wood, 123 Neb. 384, 243 N. W. 82 (1932), appeal dismissed, 290 U. S. 599 (1933), Daniell v. Voice of New Hampshire, Inc., 10 Pike and Fischer R. R. 2045 (1954)).
Thus, the broadcaster is confronted with a dilemma. On the one hand, under the Communications Act he is powerless to delete defamatory material without placing his broadcasting authorization in jeopardy. On the other hand, if he fails to censor the defamatory material he may be held liable for the resulting defamation.
We, at NBC, have no quarrel with a congressional policy which denies a broadcaster censorship power over political brodacasts but we feel that the Congress should expressly exempt from liability the same broadcaster it has rendered powerless. For this reason we believe that H. R. 4814 is basically sound and NBC favors the bill.
1 Although approximately two-thirds of the States have enacted legislation which in some degree lessens the liability of a broadcaster for material broadcast over his facilities which he is powerless to prevent, much of this legislation is inadequate. There are 12 States in which there is no statutory protection. In any event, it would appear that the Federal Government has occupied the field and the legislative exemption should come from the Congress which imposed the restriction.