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There are two existing provisions of law which concern political broadcasts by subversive organizations. Section 789 of the Internal Security Act of 1950 provides that any broadcast sponsored by an organization registered with the Attorney General pursuant to that act must be identified by an announcement that it is being sponsored by a Communist organization. However, that act does not affect the rights of any organization or individual under the equal time provisions of section 315.

Under section 3 of the Communist Control Act of 1954, the Communist Party and any successors of that party are denied all “rights, privileges, or immunities attendant upon legal bodies created under the laws of the United States." This provision would appear to affect the legal capacity of the Communist Party, or any of its representatives, to contract for broadcasting time. However, it is important to note that the Communist Control Act does not take away from individual Communists the privilege afforded by section 315, if they are candidates for public office but are not running as candidates of the Communist Party or of a successor organization.

The present bill would therefore serve to deprive various classes of organizations and individuals of privileges under section 315 which they now enjoy. But while the proposal does affect broadcast privileges extended by the Communications Act, it is clear that this amendment is concerned primarily with a question of policy relating to internal security. For that reason the Commission does not believe it would be appropriate for it to express any opinion either as to the necessity or the advisability of enacting such legislation.

However, the Commission is of the opinion that the legislation, if enacted, would be constitutional. In the first place, the amendment would not prohibit anyone from using broadcasting facilities. Rather it relieves the licensees of broadcast stations of the statutory duty under section 315 to permit their facilities to be used by the classes of persons enumerated in the proposed amendment.

In the second place, it does not appear that the legislation would constitute Federal interference with matters within the jurisdiction of the several States, since the privilege which would be modified is clearly a Federal privilege. State or local election laws would not be modified in any way by the legislation.

While the Commission feels there are no constitutional obstacles to this legislation, we do believe that it would raise procedural problems. The legislation is completely silent with respect to who will decide whether a person falls within the category of persons listed in the bill. Clearly the station licensee would have to make the initial determination. But the real question is who will review the determination of the station licensee?

There would not appear to be much problem with decisions concerning whether or not the person applying for broadcast time had been convicted of one of the crimes specified in the proposed legislation. That would seem to be a relatively simple question of fact. But determining whether the person in question is a member of one of the categories of organizations listed may be a much more difficult and complicated task. If this Commission is to be the Government agency charged with reviewing the licensees' determinations, delay will be inevitable, since it will be necessary to gather all the facts at the place where the election is taking place and then present them to the Commission in Washington. And, as you well know, time is often of the essence in deciding these matters when an election is taking place.

Therefore, the Commission wishes to suggest that Congress should give consideration to enacting a provision which would permit a person who has been refused time pursuant to section 315 to apply to the Federal district court for the district in which the broadcast station in question is located for an immediate determination of his rights. This would provide a speedy review of the station licensee's determination in a competent forum at the place where the election campaign is taking place and where the parties to the dispute are located.

The Commission also believes that this right to apply to the Federal district court for review should apply with respect to all determinations as to the rights of persons to obtain broadcast time under the provisions of section 315. For the problem of securing expeditious review of all of the various determinations which must be made under the existing provisions of section 315 has posed diffculties for the Commission for some time. In our opinion, the local Federal district court is the most appropriate forum for securing the necessary prompt and effective review of these questions. Possible language to achieve this objective is attached to the copies of this statement.

Proposed Section 315 (d) of the Communications Act of 1934:

“(d) The Federal district courts shall have jurisdiction to hear and determine actions brought by any person claiming that they have been improperly denied the use of broadcasting facilities to which they are entitled pursuant to the provisions of this section and the Commission's rules and regulations adopted hereunder. Such actions shall be brought in the court for the district in which the station whose facilities have been denied is located, and if upon consideration of the matter the court determines that the use of the broadcasting facilities was unlawfully denied, it shall be authorized to issue such injunctive or other orders as may be necessary to afford such person the relief to which he is entitled, which orders shall be directed to the licensee of the station."

COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON H. R. 3789, A BILL

TO AMEND SECTION 315 (a) OF THE COMMUNICATIONS ACT TO WITHDRAW FROM INDIVIDUALS CONVICTED OF SUBVERSIVE ACTIVITIES AND MEMBERS OF CERTAIN SUBVERSIVE ORGANIZATIONS THE RIGHT OF EQUAL OPPORTUNITY FOR THE USE OF BROADCASTING FACILITIES IN POLITICAL CAMPAIGNS

The purpose of H. R. 3789 is to amend section 315 (a) of the Communications Act to withdraw from individuals convicted of subversive activities and members of certain subversive organizations the right of equal opportunity in the use of broadcasting facilities in political campaigns. Section 315 (a) now provides that, whereas licensees have no obligation to permit the use of their stations by candidates for public office, any licensee who does permit the use of his station by any legally qualified candidate for public office, is obligated to afford equal opportunities to all other such candidates for that office in the use of such broadcasting station. H. R. 3789 would amend section 315 (a) of the Communications Act to provide that no station licensee would be required to afford equal broadcasting opportunities to any individual who—

“(1) Has been convicted of any offense punishable under chapters 37, 105, or 115 of title 18 of the United States Code; or

“(2) Is a member of any organization which is proscribed by section 3 of the Communist Control Act of 1954, or which, under the Subversive Activities Control Act of 1950, is registered as, or has been finally determined to be, a Communist-action organization, a Communuist-front organization, or a Communist-infiltrated organization." Chapter 37 of title 18 relates to espionage; chapter 105 to sabotage; and chapter 115 to treason, sedition and subversive activities. All of these chapters make certain specified activities crimes punishable by fines and imprisonment. The proposed amendment would have the effect of imposing an additional sanction upon the commission of such crimes—the withdrawal of privileges given to candidates for public office under section 315 of the Communications Act. The Internal Security Act of 1950, 50 U. S. C. 789 (64 Stat. 996), does not presently affect the basic obligation imposed upon broadcast licensees by section 315 of the Communications Act. It merely requires that material sponsored by organizations registered with the Attorney General pursuant to that Act be identified at the time of the broadcast as "sponsored by

a Communist organization” (sec. 789). The Communist Control Act of 1954 (68 Stat. 775), which denies to the Communist Party all "rights, privileges or immunities attendant upon legal bodies created under the laws of the United States * * *” (sec. 3), presumably affects the legal capacity of the Communist Party, or representatives thereof, to contract for broadcasting time, but does not contain any prohibition with respect to individual Communists or persons convicted of subversive activities, who may be candidates for public office but who are not running for office as candidates of the Communist Party.

The question of whether the individuals who would be comprehended within the language proposed to be added should be deprived of privileges to which they might otherwise be entitled involves considerations of policy relating to the internal security of the country rather than primarily to communications matters. The Commission, therefore, does not believe it appropriate for it to express any opinion as to the necessity or advisability of any such action. The proposed legislation, however, does not appear to us to raise any serious constitutional questions in view of the fact that the right of free speech would not, apparently, be abridged by a statutory provision such as this one, which does not prohibit the use of broadcasting facilities by particular classes of persons, but instead removes a requirement that licensees permit the use of such facilities, under certain circumstances, by such persons. Moreover, since the privilege which the

proposed legislation would modify is a Federal privilege, it would appear that so long as the classification is reasonable, no amendment problem arises with respect to Federal Government interference with matters within the jurisdiction of the several States. The proposed legislation clearly modifies a Federal privilege with respect to broadcasting, and does not in any way modify State or local election laws.

The proposed amendment, however, does appear to us to raise certain procedural problems which require further consideration. For it does not indicate who is to be charged with making the factual determinations as to whether the applicant for radio time in fact falls within 1 of the 2 classes of persons who would be excluded from the existing privileges. Determining whether a person “has been convicted” of any offense punishable under chapters 37, 105, or 115 of title 18 of the United States Code would appear to be relatively simple; on the other hand, determining whether a person "is a member” of the listed categories of organizations is, in the absence of an admission thereof, a more difficult task, particularly in view of the fact that not more than a few days may elapse between the date on which the privilege must either be exercised or foregone.

It seems clear that the initial determination of these facts will have to be made by the station licensees, just as such licensees presently are required to determine whether particular individuals are legally qualified candidates for public office under the laws of the several States relating to the office in question, and the rules of this Commission. But the diffiffcult problem involved in such a determination highlights a question to which the Commission has given careful consideration in recent years, namely, the best method of providing for a speedy review of such a determination by competent governmental authority. If this Commission is to assume this responsibility, as it has done in the past in the absence of any other clearly established procedure, delay is inherent because of the necessity of marshaling the facts relevant to the determination and presenting them to the Commission in Washington. Moreover, at best the Commission is not in as good position to determine relevant questions of fact and law as would be the case if the determination were made in the jurisdiction in which the particular election campaign is taking place, and the parties to the dispute as to the rights of a particular claimant for radio or TV time are located. The Commission believes, therefore, that careful consideration should be given by the Congress to the possibility of a further amendment of section 315 of the Communications Act to provide that persons, who have claimed the right to radio time pursuant to the provisions of section 315 of the Communications Act but have been refused such opportunities by any station, could seek and secure an immediate determination of such rights in the Federal district court for the district in which the broadcast station in question is located. We believe that such an amendment should apply not only to the additional determinations which would have to be made if the proposed bill were to be adopted, but to those determinations as to the rights of individuals to secure air time which must be made under the existing language of the act. The possible language to achieve this objective is set forth as a proposed section 315 (d) below :

“(d) The Federal district courts shall have jurisdiction to hear and determine actions brought by any person claiming that they have been improperly denied the use of broadcasting facilities to which they are entitled pursuant to the provisions of this section and the Commission's rules and regulations adopted hereunder. Such actions shall be brought in the court for the district in which the station whose facilities have been denied is located, and if upon consideration of the matter the court determines that the use of the broadcasting facilities was unlawfully denied, it shall be authorized to issue such injunctive or other orders as may be necessary to afford such person the relief to which he is entitled, which orders shall be directed to the licensee of the station."

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET,

Washington D. C., July 11, 1955. Hon. J. PERCY PRIEST, Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington D. C. MY DEAR MR. CHAIRMAN : This is in reply to your letter of February 11, 1955, requesting the views of this Office with respect to H, R. 3789, a bill to amend sec

tion 315 (a) of the Communications Act of 1934 to withdraw from individuals convicted of subversive activities and members of certain subversive organizations the right of equal opportunity for the use of broadcasting facilities in political campaigns.

The Attorney General, in his report to your committee on this bill, does not take a position as to whether this legislation should be enacted. He points out, however, several matters that should receive the committee's attention in consideration of the proposed legislation.

The Bureau of the Budget concurs with the Justice Department and agrees that the cominittee should consider the several matters set out in the report. Sincerely yours,

PERCY RAPPAPORT, Assistant Director.

(H. R. 4814, 84th Cong., 1st sess.)

A BILL To amend section 315 of the Communications Act of 1934 so as to prohibit liability

from being imposed upon a licensee because of defamatory statements made in a broadcast by a political candidate unless such licensee participates in such broadcast with intent to defame

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section 315 of the Communications Act of 1934, as amended (47 U. S. C. 315), is amended

(a) by redesignating subsection (c) to be subsection (d); and

(b) by inserting after subsection (b) a new subsection as follows: "(c) No licensee, or agent or employee of a licensee, shall be liable in any civil action in any court because of any defamatory statement made by a legally qualified candidate for public office in a broadcast made under the provisions of this section, or under rules and regulations of the Commission prescribed under this section, unless such licensee, or such agent or employee, participates in such broadcast willfully, knowingly, and with intent to defame."

FEDERAL COMMUNICATIONS COMMISSION,

Washington, D. C., May 19, 1955. Hon. J. PERCY PRIEST, Chairman, Committee on Interstate and Foreign Commerce,

House of Representatives, Washington, D. C. DEAR CONGRESSMAN PRIEST: This is in reply to your committee's request for the Commission's comments on H. R. 4814, a bill to amend section 315 of the Communications Act of 1934, as amended.

Enclosed are copies of the Commission's comments concerning this bill. The Commission will be pleased to furnish any additional information or comments which your committee may desire. The Bureau of the Budget has informed us that it has no objection to the submissions of these comments to your committee. Sincerely yours,

GEORGE C. McCONNAUGHEY, Chairman.

STATEMENT OF GEORGE C. McCONNAUGHEY, CHAIRMAN OF THE FEDERAL COMMUNI

CATIONS COMMISSION, ON H. R. 4814, A BILL TO AMEND SECTION 315 OF THE COMMUNICATIONS ACT OF 1934

H. R. 4814 is designed to relieve licensees of radio broadcast stations, as well as their agents or employees, of any civil liability for defamatory statements made by legally qualified candidates for public office in broadcasts made under the provisions of section 315 of the Communications Act of 1934. The only exception to this freedom from liability would be in cases where the licensee or his agent or employee participated willfully, knowingly, and with intent to defame in the broadcast.

The existing provisions of section 315, specifically prohibit broadcast station licensees from censoring in any manner broadcasts made under that section. In view of this absolute prohibition against censorship, it was the Commission's view, as espressed in the Port Huron Broadcasting Company case (12 F. C. C. 1069), that licensees now have complete immunity from liability for defamatory statements broadcast under section 315. But there has never been any final determination by the Supreme Court with respect to a broadcaster's liability for

defamatory statements in political broadcasts governed by section 315. The question, therefore, cannot be considered to be settled.

Some progress has been made through State legislation to give immunity to broadcasters. However, the existing State legislation is not, in the Commission's opinion, adequate. In the first place, several States do not have such legislation, and, secondly, such State statutes as have been enacted are not consistent in their provisions. This inconsistency in the existing State legislation is particularly unfortunate where a station's programs are heard or seen in several States.

The Commission believes, therefore, that Federal legislation, such as the bill now under consideration, should be enacted, in order to settle the question. Moreover, we have no doubt as to the authority of Congress, having forbidden censorship, to grant immunity from civil liability to broadcasters in State and local, as well as Federal courts.

We are also in agreement that the ammunity from liability should be extended to include agents and employees of the station licensee. The considerations applicable to licensee would appear to be equally applicable to such employees and agents.

Finally, the majority of the Commission approves of the provision in H. R. 4814 which would make the licensee or his agents or employees liable for defamatory statements in broadcasts under section 315 if they "willfully, knowingly, and with intent to defame” participate in such a broadcast. A licensee or his employees always participate in broadcasts, but if that participation is willful, knowing, and with intent to defame, and consists of something more than complying with the statutory duty to allow the broadcast to take place, we think it clear that the immunity provisions should not be applicable to them.

Commissioner Doerfer is of the opinion that the licensee or his employees should also be held accountable if they wantonly participate in a political broadcast containing defamatory statements. He would not relieve licensees or their employees of liability if they failed to exercise at least the slight degree of care to warn candidates in advance concerning the consequences of uttering statements that are clearly libelous or slanderous.

COMMENTS OF THE FEDERAL COMMUNICATIONS COMMISSION ON H. R. 4814, A BILL

To AMEND SECTION 315 OF THE COMMUNICATIONS ACT SO AS TO PROHIBIT LIABILITY FROM BEING IMPOSED UPON A LICENSEE BECAUSE OF DEFAMATORY STATEMENTS MADE IN A BROADCAST BY A POLITICAL CANDIDATE UNLESS SUCH LICENSEE PARTICIPATES IN Such BROADCASTS WITH INTENT TO DEFAME

The purpose of H. R. 4814 is to amend section 315 of the Communications Act by adding thereto a new subsection providing that no licensee, or agent, or employee of a licensee, shall be liable in any civil action in any court because of any defamatory statement made by a legally qualified candidate for public office in a broadcast made under the provisions of section 315 unless the licensee, or its agent, or employee, participates in such broadcast willfully, knowingly, and with intent to defame.

The Commission has long been in favor of enacting such a provision and has commented favorably on several similar proposals over the past few years; for example, H. R. 6949 (81st Cong.) and H. R. 5470 and H. R. 7062 (82d Cong. ).

For some time there has existed considerable uncertainty as to whether, in the light of the prohibition against any licensee censorship of broadcasts coming under section 315, a licensee is immune from liability for any libelous or slanderous statements made over his station in the course of such a broadcast. In the case of Port Huron Broadcasting Company (12 F. C. C. 1069), a majority of the Commission concluded that the absolute prohibition against censorship does have the effect of providing licensees with complete immunity with respect to material broadcast under section 315. However, the Commission fully recognizes that the Port Huron decision represents only the opinion of the Commission on this matter and that no definitive determination of the legal questions involved has been made by the Supreme Court.

While a number of States have adopted legislation on their own initiative affording a greater or lesser degree of immunity to licensees in such circumstances, the inconsistency of the provisions of some of these laws as well as the absence of any adequate legislation in some States, has led to confusion and uncertainty. This is particularly true where a station's broadcasts are heard

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