# Appendix — Columbia Broadcasting System, Inc. v. Democratic National Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1973 - **Citation:** 412 U.S. 94 ## Text a id MPS ARI aa iO FE eee ee ae DATE FILINGS-PROCEEDINGS Aug. 1971 Feb. 16 il Response of FCC to motion concerning oral argu- ment Motion of FCC for leave to file motion to extend time to file brief to Feb. 22, 1971 Reply of CBS to FCC’s response to motion to set case for argument with related case Brief for CBS Brief for ABC Order granting FCC leave to file motion to extend time to file brief to Feb. 22, 1971 and extending time to file brief of FCC to Feb. 22, 1971 Order scheduling case for argument on the merits with related case Brief for FCC Motion of CBS for additional time for oral argu- ment Motion of DNC to accept reply brief not in con- formity with the court rules Order accepting reply brief of DNC not in con- formity with court rules Reply Brief for DNC Order denying CBS additional time for oral argu- ment Oral argument before Judges Wright, McGowan and Robinson Opinion of Court of Appeals by Judge Wright; dissenting opinion by Judge McGowan Judgment reversing and remanding to FCC Motion of FCC to extend time to file petition for rehearing to Aug. 31, 1971 Se oe ie ok oS aS ARELLANO ETS he Docket Entries 5 DATE FILINGS-PROCEEDINGS 1971 Aug. Sept. Oct. 16 Opposition of BEM to motion of FCC to extend time to file petition for rehearing Opposition of DNC to motion of FCC to extend time to file petition for rehearing Motion of ABC for leave to file petition for re- hearing Order extending time to file petition of FCC for rehearing to Aug. 31, 1971 Motion of ABC for leave to file petition for re- hearing and suggestion for rehearing en banc Consent of parties for NBC to file amicus curiae brief Motion of CBS for leave to file petition for re- hearing and suggestion for rehearing en banc Petition of FCC for rehearing and suggestion for rehearing en banc Order granting CBS leave to file petition for re- hearing and to file suggestion for rehearing en banc Petition of CBS for rehearing and suggestion for rehearing en banc Motion of NBC to file brief as amicus curiae Order directing Clerk to file brief of amicus curiae in support of the petition for rehearing Order denying petition for rehearing Brief for NBC Letter to counsel that no judge requested a vote on suggestion for rehearing en banc and that no action will be taken on said petition Docket Entries 6 DATE FILINGS-PROCEEDINGS Oct. Nov. 1971 12 Certified copy of opinion and judgment issued to the FCC Motion of FCC to recall mandate and for leave to file motion for stay of mandate Order directing FCC to return mandate issued on Oct. 12, 1971 and directing Clerk to stay reissuance until Oct. 22, 1971 Motion of FCC to further stay mandate to Nov. 22, 1971 Certified copy of mandate issued on Oct. 12, 1971 returned by FCC Certified index to record returned by FCC Order denying further motion of FCC for stay of mandate Answer of Post-Newsweek in support of motion for stay of mandate Certified copy of opinion and judgment reissued to the FCC Order denying the motion of FCC to further stay mandate until Nov. 22, 1971 Receipt dated Nov. 5, 1971 from the FCC for “Certified Index to the Record” i al ai alin Sal eT eee rad oe then jenna ar See I Docket Entries in the United States Court of Appeals (D.C. Cir.) in Business Executives’ Move for Vietnam Peace v. Federal Communications Commission, No. 24,492 (7) “ ag - — pets SF SRE EEE oe Be ES) ae eS i oe Docket Entries 9 DOCKET ENTRIES DATE FILINGS-PROCEEDINGS 1970 July 31 Aug. 8 Sept. 11 Petition of BEM for review of FCC inaction equivalent to an order denying relief Motion of BEM for temporary relief Motion of BEM to suspend rules and order immedi- ate hearing Certified copies of petition for review mailed to FCC and to Attorney General by certified mail Response of FCC to motion for temporary relief Certified mail receipt returned from Attorney General Certified mail receipt returned from FCC Motion of BEM to file amended petition for review Order directing Clerk to file amended petition of BEM for review and extending time for filing of responses to Sept. 21, 1970 Amended petition of BEM for review Opposition of FCC to motion for temporary relief Certified copy of amended petition for review mailed to FCC Certified copy of amended petition for review mailed to Attorney General by certified mail Motion of Post-Newsweek for leave to intervene Motion of Post-Newsweek for leave to file opposi- tion to request for temporary relief by Sept. 24, 1970 Order granting Post-Newsweek leave to intervene Docket Entries 10 FILINGS-PROCEEDINGS Nov. Order granting Post-Newsweek leave to file opposi- tion to request for temporary relief by Sept. 24, 1970 Objection of Post-Newsweek to request for tempo- rary stay Reply of BEM to objection to motion for tempo- rary relief Order denying motion of BEM for temporary re- lief and directing counsel to submit by Oct. 9, 1970 an agreement setting forth dates on which briefs and appendix will be filed Order directing time for filing briefs and allowing parties to proceed under Rule 30(c) Certified index to record Motion of BEM for leave to file motion to extend time to file brief Order granting motion of BEM for leave to file motion to extend time to file brief and extending time to Nov. 23, 1970 Brief for BEM Motion of BEM for leave to file amended brief Joint appendix to briefs Motion of FCC for leave to file for Post-Newsweek and FCC Order granting motion of FCC for leave to file motion to extend time to file brief and tending time to Dec. 30, 1970 Brief for Post-Newsweek Brief for FCC Ni SAOSIN LOE SOE RRA OIE IE Docket Entries 11 FILINGS-PROCEEDINGS Aug. 18 20 30 Order granting motion for leave to file amended. brief Brief for FCC Brief for Post-Newsweek Motion of BEM for leave to file reply brief Brief for FCC Order granting motion of BEM for leave to file reply briefs Reply brief for BEM Oral argument before Judges Wright, McGowan and Robinson Opinion of Court of Appeals by Judge Wright; dissenting opinion by Judge McGowan Judgment reversing and remanding to FCC Motion of FCC to extend time to file petition for rehearing to Aug. 31, 1971 Opposition of BEM to motion to extend time to file petition for rehearing Opposition of DNC to motion to extend time to file petition for rehearing Motion of Post-Newsweek for leave to file petition for rehearing Response of BEM in opposition to motion for leave to file petition for rehearing Motion of ABC for leave to file petition for re- hearing Order granting ABC leave to file petition for rehearing and to file suggestion for rehearing en banc and extending the time to file the petition for rehearing by the FCC to Aug. 31, 1971 Docket Entries 12 DATE FILINGS-PROCEEDINGS Oct. 1971 Aug. 30 Petition of Post-Newsweek for rehearing and sug: gestion for rehearing en banc Petition of ABC for rehearing Petition of FCC for rehearing and suggestion for rehearing en banc Order denying petitions of FCC, ABC and Post- Newsweek for rehearing Letter to counsel that no judge requested a vote on suggestion for rehearing en banc and that no action will be taken on said petition Certified copy of opinion and judgment issued to the FCC Motion of FCC to recall mandate and for leave to file motion for stay of mandate Order directing FCC to return mandate issued on Oct. 12, 1971 and directing Clerk to stay reissuance until Oct. 22, 1971 Motion of FCC to further stay mandate to Nov. 22, 1971 Certified copy of mandate issued on October 12, 1971 returned by FCC Certified index to record returned by FCC Order denying further motion of FCC for stay of mandate Answer of Post-Newsweek in support of motion for stay of mandate Certified copy of opinion and judgment reissued to the FCC Order denying the motion of FCC to further stay the mandate until Nov. 22, 1971 Receipt dated Nov. 12, 1971 from the FCC for the “Certified Index to the Record” FE PIAL OBOE IAIN NE III Relevant Pleadings Before and Orders of the Federal Communications Commission in Democratic National Committee, F.C.C. 70-861 (13) Bo ieran 4! _— PSY TIO CELT TIE __ — Request of DNC for Declaratory Ruling 15 Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 IN RE DEMOCRATIC NATIONAL COMMITTEE, Washington, D. C. Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations To: The Commission. REQUEST FOR DECLARATORY RULING The Democratic National Committee (hereinafter called the DNC), by its counsel, pursuant to Section 5(d) of the Administrative Procedure Act, 5 U.S.C. § 554(e), and Section 1.2 of the Commission’s regula- tions, requests that the Commission issue a declaratory ruling: That under the First Amendment to the Constitu- tion and the Communications Act, a broadcaster may not, as a general policy, refuse to sell time to respon- sible entities, such as the DNC, for the solicitation of funds and for comment on public issues. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). The DNC is willing to purchase time at regular com- mercial rates and is not at this time requesting a ruling that free time for the specified purposes must be made available to it. *On the other hand, the DNC believes that the networks and individual stations have a legal and moral responsibility to make significantly more free time available to responsible groups for public issue programming. In this connection it is important to note the enormous profitability of the broadcast industry, the un- precedented and unique impact of television on our society and the urgent problems of public policy that our nation now faces. Se Request of DNC for Declaratory Ruling 16 The DNC Requires Access to the Broadcast Media To Broaden Its Financial Base. The DNC seeks this ruling for two interrelated pur- poses, which it believes are essential to the continuation and improvement of the nation’s political system. In the words of the recently issued report of an expert and prestigious non-partisan Commission on campaign costs —the Voters’ Time report—the DNC hereby seeks: 1. “To guarantee that there is basic access to the broadcast media for all significant candidates . 3” and 2. “To stimulate effective citizen participation in the processes of democratic government by en- couraging small contributions to political cam- paigns.” Voters’ Time, Report of the Twentieth Century Fund, Commission on Campaign Costs in the Electronic Era, p. 17 (1969) .? The DNC incurred substantial financial obligations during the 1968 presidential campaign. The DNC has a pressing responsibility to eliminate this large indebt- edness. An essential part of this effort is a wide- spread radio and television campaign through which political contributions will be solicited on a nationwide basis. In 1970 America, this is the only way the DNC ean effectively reach large numbers of small contribu- tors to the extent necessary to satisfy its indebtedness and to promote adequately its candidates and causes. The DNC intends to request to purchase time on in- dividual radio and television stations and on national networks. It anticipates that time will be requested both for the broadcast of specific programs of varying 2 The members of the Commission were Newton N. Minow (who served as Chairman), Dean Burch, Thomas G. Corcoran, Alexander Heard and Robert Price. ty Request of DNC for Declaratory Ruling 17 durations and for spot announcements of varying dura- tions. Some presentations—both programs and an- nouncements—will be primarily (or solely) devoted to the solicitation of funds. Other presentations may con- tain comment on then-current controversial issues of public importance. For example, as part of this fund raising campaign, the DNC may wish to utilize broad- cast time to offer what it considers to be viable alterna- tives to the policies of the present Republican Adminis- tration. The dramatically soaring costs of conducting modern campaigns have dangerously increased the dependence of candidates and political parties upon large contribu- tors: —In 1956, a little over forty percent of all contribu- tions by individuals to the Democratic Party ex- ceeded $500. In 1968, almost eighty percent of all contributions by individuals to the Democratic Party exceeded $500.° —The Voters’ Time report points out that “between 1960 and 1964, the number of people who con- tributed $500 or more to national-level committees increased from about 4,000 to 6,700, and total re- ceipts of both parties from this source increased from $5.6 million to $8.3 million.” ¢ —The University of Michigan’s highly respected Sur- vey Research Center estimates that only six percent of the population made political contributions in 1968. The DNC, like its counterpart in the Republican Party, is profoundly concerned as national candidates 3 See Table 5, Voters’ Time, supra. 4Id. at 45. Request of DNC for Declaratory Ruling 18 become more and more dependent on fewer and fewer contributors to whom they are forced to turn for higher and higher percentages of continually increasing cam- paign costs. As Leonard Hall, former Chairman of the Republican National Committee, said: “All of us engaged in political activity agree that every effort should be made to interest more and more individuals in political campaigns, and, in particular, to increase the number who provide financial support through their contribution. Every political leader is desirous of broadening the base of financial support. _ ”” Voters’ Time, supra, pp. 43-44. A uniform conclusion of expert task forces and com-_ missions that look at this problem is: the concentration — of political contributions in relatively few hands pre- sents clear and present dangers to the integrity of our political system. See e.g., Financing Presidential Cam- paigns, Report of the President’s Commission on Cam- paign Costs, p. 11 (1962); Financing a Better Election System, Committee for Economic Development, p. 51 (1968) ; Voters’ Time, supra, Pp. 44 (1969). First, such concentration may make certain candi- dates unduly obligated to a few special interest groups. See Financing a Better Election System, p. 51. Second, as the report of President Kennedy’s Commission on Campaign Costs noted: “The heavy dependence of political parties in presi- dential campaigns upon substantial gifts from and expenditures by a relatively small number of indi- viduals and organizations lends itself to wide-spread misinterpretations.” At p. 11. Third, it has been suggested that the erroneous impres- sions derived from undue concentration of political con- tributions may lead to a cynicism that could ultimately destroy democracy. Voters’ Time, supra, at p. 44. —_— Request of DNC for Declaratory Ruling 19 Television and radio—whose expense has been the ma- jor cause of this dangerous political situation—may also be its cure. Access to broadcast facilities is the most expensive and the most critical feature in the conduct of a present-day political campaign. In 1968, the total cost for political advertising on television and radio was approximately $90 million—or almost one-third of all money spent in political campaigning that year. That $90 million is. almost three times the $34 million federal budget for the Bureau of Narcotics and Dangerous Drugs; eighteen times the $5 million budget for the civil rights enforcement activities in the Department of Justice; and almost four times the $24.9 million budget of the Fed- eral Communications Commission itself.° The astronom- ical expenditure of $90 million is a reflection of the reach and impact which political experts attribute to the broad- cast media. See MacNeil, The People Machine: The In- fluence of Television on American Politics (1968); J. F. Kennedy, A Force That Has Changed The Political scene, TV Guide, Nov. 14, 1959. A political organization seeking the attention and support of potential small contributors must have access to the broadcast media. Television, in particular, is unquestionably without peer in its ability to reach the nation. Television has brought the Vietnam war, racial strife and student disorder into every living room in America with consequences for our society we cannot yet fully perceive. It is only through this medium that an effective nationwide campaign such as the DNC pro- poses can be launched. The importance of access to television—and the ex- posure which such access brings—was recently under- 5 See Alexander and Myers, A Financial Landslide for the GOP, Fortune, March 1970, p. 104, 189. * The Budget of the United States Government, Fis@al Year 1971. ¥ Request of DNC for Declaratory Ruling 20 scored by the Senate Committee on Commerce during its evaluation of amendments to the political broadcast pro- visions of section 315 of the Communications Act when it noted: “Television has become the most accepted medium of mass communication in the United States. Nine- ty-five percent of all American homes have tele- vision sets. “The air waves, especially those used for television, now play @ dominant role in political campaigning. During the 1968 presidential election campaign a candidate could with a single message lasting one minute, presented within one program, on one tele- vision network, reach as many as 23 million view- ers of voting age—a number equal to almost a third of the votes cast in that election. Prior to television, with the most intensive campaign, a can- didate could have reached only a small fraction of that audience.” S. Rep. No. 91-751 To Accompany S. 3687, 91st Cong., 9d Sess., March 25, 1970, p. 5." (Emphasis supplied. ) The evidence demonstrates overwhelmingly that the use of the broadcast media is the most effective way to broaden the financial base of a political party. One television appeal by then National Republican Committee Chairman Dean Burch, on October 19, 1964, produced what one Republican official termed “the most phenomenal outpouring” of financial political support in the history of this country. See The Evening Star, October 23, 1964. Within three days after this tele eiiaennbnnies 7The subsequent deliberations on S. 3687 on the Senate Floor contain repeated references to the critical importance of television and radio to political campaigning and deep concern of the Senate with the expense involved in obtaining adequate exposure through the use of broadcast media. See, @.9- comments of Senator Pastore, 116 Cong. Rec. at $5634, April 13, 1970. PEST RPS RT SAAN EET IN — | a ——— Request of DNC for Declaratory Ruling 21 vision appeal, the Republican Party had received 70,000 letters and thirty-five hundred money orders. In all, it has been calculated that television appearances by Mr. Burch during the 1964 campaign harvested at least 100,000 contributions in amounts of less than $100. See Alexander and Myers, The Switch in Campaign Giving, Fortune, November 1965, p. 212. Similarly, a handful of network television solicita- tions during September and October 1968 produced al- most $800,000 in campaign funds for the Democratic nominee, Hubert H. Humphrey. These contributions, which were sent to a post office box number which was advertised only in those few television spots, averaged $10 apiece, and none exceeded $100.° Therefore, the DNC has concluded that, if it is to achieve the broad financial base which it, as well as many respected commissions, believes to be essential to the integrity of this nation’s political process, it must promptly launch a nationwide radio and television cam- paign of the type described.’ There is an Urgent Need for the Declaratory Ruling at an Early Time. The DNC has several million dollars of debts which are long overdue. It has an urgent responsibility to satisfy these debts as promptly as possible. To develop 8 We are informed that a recent television appeal by five United States Senators for funds to promote peace in Southeast Asia produced an estimated $100,000 in small contributions within the first two days after the telecast. ®° Even with this campaign, it is the belief of the DNC Chairman that in the 1972 Presidential campaign, the Republican Party will have $50 million to spend, while the Democratic Party is likely to have only one-fifth of that amount or $10 million. The New York Times, March 29, 1970, p. 1. Without the successful implementa- tion of the current campaign that disparity will only be increased. Request of DNC for Declaratory Ruling 22 and produce the materials to be used in the contemplated campaign will require the expenditure of thousands of dollars.” Indeed, the DNC is currently attempting to raise, independent of funds already dedicated, substan- tial sums to be used exclusively in the campaign. The DNC is most reluctant, particularly in view of its pres- ent financial condition, to undertake the expenditures necessary to the complete development of a successful campaign unless it can be certain that it will be able to obtain the access to the broadcast media which imple- mentation of the plan demands. On the other hand, once the Commission gives it the assurances sought by this request, the DNC will forthwith begin to purchase time to carry out its plan. The DNC, both over the years and in the preliminary planning of the present campaign, has had extensive dealings with broadcasters. The DNC’s experiences in this area make it clear that it will encounter consid- erable difficulty—if not total frustration of its efforts— in carrying out its plans in the event the Comission should decline to issue a ruling as requested. By way of examples: A. The “Election Campaign” Policy. The CBS television network quite recently flatly rejected a request by the DNC to purchase one-half hour of prime time. The DNC planned to present an issue- oriented program which would have included an In reporting on this incident, The New York Times on March 22, 1970, quoted Richard W. ee 10 The DNC obviously expects that the returns will justify the expense, otherwise it would not undertake the project at all. ee 2 - ea aT SRS SPELL SPE YT = . Re eS LYLE ASLO TENE ER s97 — Request of DNC for Declaratory Ruling 23 Jencks, President of the CBS Broadcast Group, as saying that CBS’ policies “do not permit the sale of time for presenting currently controversial points of view except during election campaigns.” ” B. The “Controversial Issue” Policy. A common policy of broadcast stations is to refuse to sell an- nouncement or program time for the broadcast of views on controversial issues of public importance. For example, the Post-Newsweek Stations in Wash- ington, D. C—WTOP-AM-FM-TV—have “long had a policy of not accepting spot announcements deal- ing with controversial issues, .. .” as reflected in a February 5, 1970 letter from Larry H. Israel, Chairman of the Board of the Stations, to William B. Ray of the Commission’s Complaints and Com- pliance Division."* Indeed, the CBS Network policy is to this effect, as indicatea above, although CBS may—it is not altogether clear—,eclax that policy during “election campaigns.” C. The “Fund. Solicitation” Policy. Numerous stations have enunciated policies that neither spot announcements nor program time will be made available where the proposed user of the time in- tends to solicit funds, as would the DNC in this campaign. For example, the ABC Network and its owned and operated stations have a “general pol- icy” against solicitations which can be, and is, 11 The Times went on to attribute to Mr. Jencks statements about other groups—i.e., supporters of the United Nations and opponents of ABM—which had recently been denied time on the basis of CBS’ arbitrary policy. 12The Commission currently has before it a complaint by a businessmen’s association against WTOP with respect to the sta- tion’s policy. The instant DNC request for ruling, of course, involves much wider and more fundamental public interest con- siderations. = Request of DNC for Declaratory Ruling 24 relaxed, with the company’s approval.” What any such policy means in practice is that a station will permit its facilities to be used for solicitation by certain groups in certain circumstances.” Thus, stations carry public service announcements for fa- vored groups as well as religious presentations which contain both direct and indirect appeals for funds. In fact, every commercial announcement, in the last analysis, is a solicitation for funds. There may be still other “general policies” which would have applicability to the campaign. Certainly, the num- ber of stations alone portends greater problems in this i area than have already been encountered. In addition to = the three national commercial networks, as of April 1, % 1970, there were, on the air, 509 commercial VHF tele- 4 vision stations, 180 commercial UHF stations, 4,280 | standard broadcast stations, and 2,111 commercial FM stations. While several of these stations have common owners, it does not necessarily follow that every station owned by an individual or group would follow the same policies. There are a variety of policies which any of these thousands of stations could follow to prevent the Demo- cratic National Committee from carrying out its proposed campaign. One station might ban the campaign because it involves a solicitation of funds. Another, which per- mits solicitation of funds, might ban the campaign on the 13 See, for example, WBKEB-TV, Chicago, Illinois, Renewal Appli- cation, File No. BRCT-21, dated August 30, 1967, Exhibit 5, § III, p. 2. 14 The stations appear to make their exceptions in an arbitrary and capricious manner without any rational standard. We do not question the limitation of access to “responsible” groups. We do submit that under the “responsible” group de jure theory, the stations are de facto discriminatory in an unreasonable and im- proper way. sn i a is al aa ll LDV ER RLS GE PE —¥ —— Request of DNC for Declaratory Ruling 25 grounds that the proposed spot contained controversial material on a major political issue of the day. Still others might justify a ban on the ground that there was no election campaign (or no national election campaign) in process. It is obvious that there must be a national, uniform communications policy with respect to the activities of a responsible group, such as the DNC, that would permit the kind of access through which funds could be solicited and the American people could be informed of divergent views on national issues. Without action by this Com- mission, there will be no such policy. The DNC Has a Constitutional and Statutory Right to the Media Access It Now Seeks. A broadcaster may not constitutionally adopt artificial and arbitrary barriers to access to its facilities by re sponsible groups. In its unanimous landmark decision, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Supreme Court emphasized that it is the public’s right to hear contrasting viewpoints which is protected by the First Amendment, not the broadcaster’s freedom to pre- sent only those viewpoints which accord with his own. In this respect, the Court said: “This is not to say that the First Amendment is irrelevant to public broadcasting. On the contrary, it has a major role to play as the Congress itself recognized in § 326, which forbids FCC interference with ‘the right of free speech by means of radio com- munication.’ Because of the scarcity of radio fre- quencies, the Government is permitted to put re- straints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and a eed a RET? _. Request of DNC for Declaratory Ruling 26 purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount. See FCC v. Sand- ers Bros. Radio Station, 309 U.S. 470, 475 (1940); FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 361-62 (1955); 2 Z. Chafee, Government and Mass Communications 546 (1947 ). It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee. Associated Press Vv. United States, 326 U.S. 1, 20 (1945); New York Times Co. v. Sullivan, 876 U.S. 254, 270 (1964) ; Abrams v. United States, 250 U.S. 616, 680 (1919) (Holmes, J., dissenting). ‘[S]peech concerning pub- lic affairs is more than self-expression; it is the es- sence of self-government.’ Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964). See Brannan, The Su- preme Court and the Meiklejohn Interpretation of the First Amendment, 79 Harv. L. Rev. 1 (1965). It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Con- gress or by the FCC.” 395 U.S. at 389-90 (emphasis supplied). The Court also employed language that would extend to members of the public the right of access to broadcast facilities. For example, the Court said: “By the same token, as far as the First Amend- ment is concerned those who are licensed stand no better than those to whom licenses are refused. license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Govern- EE SEALE LICL LE a PETE: PeIGTE ystaedr rset SGT SP EID a” Ts a —— Request of DNC for Declaratory Ruling 27 ment from requiring a licensee to share his fre- quency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.” 395 U.S. at 389. In a somewhat similar fashion, the Supreme Court added: “It does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to mat- ters of great public concern. To condition the grant- ing or renewal of licenses on a willingness to present representative community views on controversial is- sues is consistent with the ends and purposes of those constitutional provisions forbidding the abridg- ment of freedom of speech and freedom of the press. Congress need not stand idly by and permit those with licenses to ignore the problems which beset the people or to exclude from the airways anything but their own views of fundamental questions. The statute, long administrative practice, and cases are to this effect.” 395 U.S. at 394. This language of the Court should be contrasted with the assertion of Mr. Jencks—as reported in the March 22, 1970 edition of The New York Times—that CBS’ policy has roots in his company’s “belief that [its] news organization can give a fairer presentation” than others. As thus described by Mr. Jencks, the CBS policy ex- plicity violates the constitutional standards set down by the Court in Red Lion. The DNC submits that arbitrary barriers, contrary to the law as established in Red Lion, are erected to meaningful access when, for example, a national televis- ion network asserts that time for “political broadcasts” will be sold only during certain periods every other, or ats Request of DNC for Declaratory Ruling 28 every fourth, year. The DNC submits that arbitrary barriers, contrary to the law as established in Red Lion, are created when a local station pursues a policy of not selling spot or program time to responsible parties who wish to comment on controversial issues of public im- portance.” Finally, in this regard, the DNC submits that arbitrary and capricious barriers, contrary to the law as established in Red Lion, are created when a broadcaster proffers, as a reason for refusing to sell time to a re- sponsible group, a policy that it will not permit the so- licitation of funds over its facilities. These are, how- ever, precisely the types of policies which the DNC now faces in its effort to carry out a meaningful fund-raising campaign.” The DNC does not contend, and it need not contend, that broadcasters are precluded from establishing rea- sonable restrictions regarding the use by others of the facilities for which they hold licenses. Broadcasters can, for example, limit the use of facilities to presentations by responsible spokesmen. Similarly, even where re- sponsible spokesmen are to appear, broadcasters can adopt and implement whatever procedures may be needed to ensure that the use of facilities, for example, is in good taste or does not result in the presentation of slanderous material. 15 The DNC submits that this is so under Red Lion whether a station argues that it has literally adhered to the terms of the fairness doctrine either because of the “balance” which it has achieved or because of the innocuous nature of the material which the broadcaster permits to be transmitted over the facilities to which its license pertains. 16Qn May 15, 1970, the Commission gave notice of the institu- tion of proceedings looking to the adoption of rules, implementing Red Lion, which would require broadcasters, in certain situations to open up their stations to others. This is what the DNC here seeks, but in a broader context than that proceeding appears to SF WO SR oD a ely EERO | | Request of DNC for Declaratory Ruling 29 On the other hand, in considering what restrictions are reasonable in this area, the broadcaster and the Com- mission must remain mindful of the importance of broad- cast media to anyone desiring to make an effective na- tionwide presentation. And, of course, the pronounce- ments by the Supreme Court in Red Lion—based on the public’s rights under the First Amendment—would pre- clude the adoption of fixed and inviolate policies of the types with which the DNC is now faced. There is a critical question of public policy, as well as constitutional law, involved here: Are the public air- waves—the most powerful communications media in our democracy—to be used to solicit funds for soap, bras- sieres, deodorants and mouthwashes and not to solicit funds to enhance the exchange of ideas? The Commission is accordingly requested to rule—in order to remove a substantial uncertainty—that for a broadcaster to refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues, because of the broadcaster's “general policies” against selling time for such purposes, violates the First Amendment of the Constitution of the United States and the Communications Act. The “Public Interest” Standards of the Communications Act Are Violated by the “General Polices” Here Involved. Should the Commission decline to issue this ruling, a refusal of a broadcaster to sell time to the DNC should nevertheless be evaluated by the Commission in a manner adverse to the broadcaster in its consideration of the re- newal application. The Commission is, thus, alterna- tively, requested to so rule. _ Some of the public interest considerations surrounding | the present proposal of the DNC have been enumerated —__ Pe -. Request of DNC for Declaratory Ruling qi 30 above. The United States Supreme Court has had occa- sion to address itself to the importance of the broadcast media to political expression: “Recognizing radio’s potential importance aS @ me- dium of communication of political ideas, Congress sought to foster its broadest possible utilization by encouraging broadcasting stations to make their facilities available to candidates for office without discrimination, and by insuring that these candidates when broadcasting were not to be hampered by censorship of the issues they could discuss. Thus, expressly applying this country’s tradition of free expression to the field of radio broadcasting, Con- gress has from the first emphatically forbidden the Commission to exercise any power of censorship over radio communication. It is in line with this same tradition that the individual licensee has consistently been denied ‘power of censorship’ in the vital area of political broadcasts.” Farmers Ed. & Coop. Union vy. WDAY, 360 U.S. 525, 529-30 (1959). The Commission has frequently had occasion to com- ment upon the public interest considerations inherent in a broadcaster’s making time available for political broad- casts. Indeed, in the Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 20 P & F Radio Reg. 1901 (1960), the Commission included political broadcasts as among the “major elements neces- sary to meet the public interest, needs and desires” of a station’s community. The Commission has found, moreover, in situations where no violation of section 315 of the Communications Act had occurred, that the imposition of artificial restric- tions, in terms of allotted time, for the use of facilities by political candidates, was contrary to the public in- terest. The Commission expressed particular concern with judgments as to the amounts of time to be made Request of DNC for Declaratory Ruling 31 available which were “arbitrarily determined in advance” of an election and which bore no relationship to the importance of the election to which the arbitrary limita- tions applied. Homer P. Rainey, 3 P & F Radio Reg. 737 (1947). Also pertinent are the Commission’s determinations, in the context of comparative broadcast proceedings, that a licensee’s practice in refusing, inter alia, to carry po- litical broadcasts involving local and state political of- fices are indicative of a tendency to disregard local pro- gramming needs. City of Jacksonville, 12 P & F Radio Reg. 113, 180j (1956); see also Loyola University, 12 P & F Radio Reg. 1017, 1099 (1956). Instructive as well is the following discussion in the Commission’s ruling on the question of whether biparti- san spot announcements soliciting funds for political par- ties would be subject to the fairness doctrine: “In conclusion, we think two other observations are in order. First, we recognize that the announce- ments described by you constitute an effort to achieve the worthwhile and commendable goal of broadening the base of political contributions. The importance of this effort was recently emphasized when, on May 29, 1962, President Kennedy trans- ~ mitted to the President of the Senate and the Speak- er of the House of Representatives legislation de- signed to carry out five of the important recommen- dations contained in the ‘Report on the President's Commission on Campaign Costs.’ In his letter of transmittal, the President stated, among other things: ‘In these days when the public interest demands basic decision so essential to our security and survival, public policy should enable presidential candidates to free themselves of dependence on large contributions of those with special in- terests. Accordingly, it is essential to broaden Pi ep Request of DNC for Declaratory Ruling ‘ 82 the base of financial support for candidates and parties. To accomplish this, improvement of public understanding of campaign finance, coupled with a system of incentives for solici- tation and giving, is necessary.’ “Furthermore, your proposal has an objective, in common with the broad policy underlying the ‘fair- ness doctrine’—the right of the public in a free s0- ciety to be fully informed as to controversial is- sues of public importance, including those involving political parties and candidates. See paragraph 6 of enclosed Editorializing Report. “Second, the question whether to present such an- nouncements is one for the licensee, who is f with many competing requests to allocate time for public service announcements. The Commission course expresses no opinion as to how that time should be allocated. But the announcements in ques- tion should not be rejected upon the sole ground that the licensee would have tobe fair in their presenta- tion.” Lawrence M. C. Smith, 25 P & F Radio Reg. 991, at 298 (1963). The DNC is mindful of the provisions of sections 3(i)* and 326 of the Communications Act and of rulings, such as that issued by the Commission in its November 22, 1965 letter to the Women’s Washington Strike for Peace, to the effect that: “with respect to the refusal of the station to sell time for spot announcements, under the Communi- cations Act, the selection and presentation of broad- cast material are the responsibilities of the individ- —— 11 Section 3(i) is intended, we submit, simply to exempt broad- casters from the panoply of common carrier regulation provided for in Title II of the Communications Act. It should not be permitted as a defense to & challenge to & broadcaster that its policies re- stricting access to the licensed facilities by others are contrary to the public interest. — Request of DNC for Declaratory Ruling 33 ual station licensees, and Section 326 of the Act ex- pressly prohibits the exercise of censorship powers by the Commission. . . .” The response to those matters insofar as they pertain to this request is that they all predate the Red Lion de- cision. The Commission’s regulation of broadcast sta- tion programming has undergone rapid development over the past few years which culminated in the Red Lion decision. It is now clear that in the field of broadcasting it is principally the public and not the broadcaster which the First Amendment is designed to protect. Moreover, it is not necessary for the Commission to rule that a broadcaster must present programs or an- nouncements of any particular nature proffered by any particular concern. The Commission must rule, however, that to establish arbitrary barriers to access on the part of responsible groups, such as the DNC, is contrary to the First Amendment and to the Communications Act as construed in Red Lion, or, in the alternative, that such barriers—in the case of the DNC’s present campaign or in general—are, per se, contrary to the public interest. CONCLUSION To insure the basic access to the broadcast media guaranteed by the First Amendment to the Constitution and the Communications Act, and to enable the political parties of this country to broaden significantly their fi- nancial base, the Commission is hereby respectfully urged to issue as promptly as possible a declaratory ruling, pro- viding that: a. A broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues; or, alternatively, > “ a A RIERA TIN LINHA NT PS RIT 7% Request of DNC for Declaratory Ruling 84 b. Any such “general policy” will be taken into consideration—in a manner adverse to the broad- caster—by the Commission in evaluating whether the grant of a broadcaster’s renewal application ac- cords with the public interest. Respectfully submitted, DEMOCRATIC NATIONAL COMMITTEE By /s/ Joseph A. Califano, Jr. JosePH A. CALIFANO, JR. 1229 Nineteenth Street, N.W. Washington, D.C. 20036 General Counsel * Of Counsel: David H. Lloyd 1229 Nineteenth Street, N.W. Washington, D.C. 20036 May 19, 1970 (Certificate of Service Omitted in Printing] a ——— Letter of May 22, 1970 to ABC 35 FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 May 22, 1970 In Reply Refer to: 8330 C5-1344 American Broadcasting Company, Inc. 1330 Avenue of the Americas New York, New York 10019 Gentlemen: The Commission has received a “Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations” from the Democratic National Committee, a copy of which was served upon you by the Committee. The Committee requests that the Commission rule that “a broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public issues” or, alternatively, that such a general policy “will be taken into consideration—in a manner adverse to the broad- caster—by the Commission in evaluating whether the grant of a broadcaster’s renewal application accords with the public interest.” On page 13 of its Request, the Committee refers to the American Broadcasting Company’s policies in this area. In order that it may be more fully informed, the Com- mission requests that you submit your comments upon the particular reference to ABC, and any other comments which you may wish to submit regarding the Request for Declaratory Ruling. Biers Dea as Letter of May 22, 1970 36 Please submit your comment within twenty days of the date of this letter. Sincerely yours, /s/ William B. Ray WrLiAM B. Ray, Chief Complaints and Compliance Division for Chief, Broadcast Bureau ec: Robert Kaufman, Esq. Alfred Beckman, Esq. Joseph A. Califano, Jr., Esq. Letter of May 22, 1970 to CBS 37 FEDERAL COMMUNICATIONS COMMISSION Washington, D. C. 20554 May 22, 1970 In Reply Refer to:. 8330 C5-1344 Columbia Broadcasting System, Inc. 51 West 52nd Street New York, New York 10019 Gentlemen: The Commission has received a “Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations” from the Democratic National Committee, a copy of which was served upon you by the Committee. The Committee requests that the Commission rule that “a broadcaster may not, as a general policy, refuse to sell time to responsible entities, such as the DNC, for the solicitation of funds and for comment on public is- sues” or, alternatively, that such a general policy “will be taken into consideration—in a manner adverse to the broadcaster—by the Commission in evaluating whether the grant of a broadcaster’s renewal application accords with the interest.” On pages 11, 12 and 17 of its Request, the Committee refers to the Columbia Broadcasting System’s policies in this area. In order that it may be more fully informed, the Com- mission requests that you submit your comments upon the particular references to CBS and any other comments which you may wish to submit regarding the Request for Declaratory Ruling. — LEENA IIL LIN LLP LAL LEI OE TEEN 4 S ¢ Letter of May 22, 1970 38 Please submit your comments within twenty days of the date of this letter. Sincerely yours, /s/ William B. Ray WILLuaM B. Ray, Chief Complaints and Compliance Division for Chief, Broadcast Bureau ec: Joseph DeFranco, Esq. Joseph A. Califano, Jr., Esq. Letter of May 27, 1970 89 COMMUNICATIONS WORKERS OF AMERICA [CWA Emblem] (Affiliated with AFL-CIO) 1925 K Street, N.W. WASHINGTON, D. C. 20006 [Union Label] Telephone: FEderal 7-7711 JOSEPH A. BEIRNE, President May 27, 1970 The Honorable Dean Burch, Chairman Federal Communications Commission Washington, D. C. My dear Mr. Chairman: This is in support of the request for Declaratory Rul- ing, filed May 19, 1970, with the Commission by the Democratic National Committee through its General Coun- sel, Joseph A. Califano, Jr. It is a travesty that the broadcasting stations and networks have refused the reasonable request of the DNC for the purchase of broadcast time at standard rates. The wrong is compounded by the necessity for the DNC to pray to the Commission for relief. The broadcasters’ action to deny is contradictory to the precedents of the last six years. In 1964, the Re- publican National Committee purchased broadcast time to make a nationwide solicitation for political campaign funds. The Republican group did in fact receive money as a direct result of the solicitation. The broadcasters who accepted the Republican purchase of time would dis- tort reality were they to contend that they had no means ee Letter of May 27, 1970 40 of knowing that a funds solicitation was to be carried on the airwaves. In 1968, the Democratic National Committee used broadcast media for funds, again with the full knowledge of the broadcasters. The broadcasters’ contention that political proadcast- ing will be accepted only in “political campaign” periods is specious, inasmuch as the broadcasters themselves have in effect taken it upon themselves to determine the cam- paign period. The Party or candidate involved should be the one who determines when the campaign opens. Political campaigns have been in progress in every month of the year. The Communications Act and the Rules of the Com- mission which flow therefrom impose positive duties on broadcasters to serve their communities, one means of which is in the public affairs field. Political issues, by their very nature controversial, fall within the public affairs category- The broadcasters also are attempting to deny the use f the airwaves on the grounds that the DNC will enter i with the funds ionably true. However, the communities, the programs being zations are quite controversial. rticipation in the processes aging small contri- Earn ' } | i H } Letter of May 27, 1970 41 It would be entirely wrong for the Parties to become the chosen instruments of special interest donors of large amounts. I should hope that the Commission will act quickly to resolve the questions raised by the Democratic National Committee, and direct the broadcasters to make the broad- cast facilities available. Since there are sufficient recent precedents, this issue appears uncomplicated. The broad- casters must be informed once again that they do not own the airwaves, but merely are the fiduciaries, to whom certain duties pertain. Sincerely yours, /s/ J. A. Beirne JOSEPH A. BEIRNE President Comments of ABC. 42 AMERICAN BROADCASTING COMPANIES, INC. 1330 Avenue of the Americas @ New York, N. Y. 10019 LT 1-7777 EVERETT H. ERLICK Group Vice President and General Counsel June 10, 1970 Mr. William B. Ray, Chief Complaints and Compliance Division Federal Communications Commission Washington, D. C. 20554 Your Reference 8330 C5-1344 Dear Mr. Ray: By letter to American Broadcasting Companies, Inc. (“ABC”) dated May 22, 1970, you stated that the Com- mission had received a “Request for Declaratory Ruling Concerning Access to Time on Broadcast Stations” from the Democratic National Committee (“DNC”). In that pleading DNC requested a ruling that “a broadcaster may not, as a general policy, refuse to sell time to re- sponsible entities, such as the DNC, for the solicitation of funds and for comment on public issues.” You re quested ABC to comment in particular on an allegation in said pleading (p. 13) that the ABC network and its owned and operated stations have a “general policy” against solicitations, “which can be, and is, relaxed, with the company’s approval.” DNC’s citation is to a portion of ABC’s Standards and Policies, on file with the Commission (e.g. BAL-5733, Exhibit 1-3, Attachment B, Section III), dealing with “Appeals for Charity.” That provision, not here appli- cable, states (p. 2): . Comments of ABC 43 ABC reserves the right to determine which appeals (for charity) may be made over its facilities. No direct solicitation of funds may be made without specific permission of ABC. The client is required to consult with ABC before arranging to include appeals for charity in any program.’ ABC’s Standards elsewhere provide (p. 4): Discussion of political or controversial issues may not be included by sponsors in their regularly sched- uled programs advertising goods and services, except when, in the opinion of ABC, it does not contravene the public interest. Elsewhere ABC’s Standards restrict as follows the so- licitation of funds on religious broadcasts (p. 26): Solicitation of funds will be permitted on religious broadcasts to the extent that the following announce- ment may precede or follow the program proper: ‘You are invited to send your free will gifts and offerings for the support of this program to (name of program, box number, city and state).’ Religious sponsors may not ask the public to buy their publications. “ Equally pertinent to DNC’s pleading are the following provisions in ABC’s Standards dealing with “Political Programs” (pp. 27-28) : Effective with the opening of a local, state or na- tional campaign as determined on the basis of the appropriate election laws, ABC will sell time for political programs to legally qualified candidates, their duly authorized representatives, or their politi- cal organizations which show substantial evidence of 1 Emphasis supplied throughout this letter. = Comments of ABC 44 their activity in the campaign such as through public participation. .. - In addition, ABC will sell time for political pro- grams prior to the official opening of a campaign and starting on 4 date to be determined by the American Broadcasting Company, to individuals and organizations. ABC reserves the right to decide whether such individuals or organizations seeking to precampaign time for political programs are duly qualified to discuss and have a recogni interest in the forthcoming campaign. Also directly in point, with respect to DNC’s pleading of May 19, 1970, are the following excerpts from ABC’s current Standards and Policies dealing with “Controver- sial Issue Programming” : will continue to use its facilities for the presenta- tion of the views of responsible individuals and or- structure. Whenever ABC permits its facilities to be used for the presentation of one viewpoint on @ controversial issue of public importance, it will afford reasonable opportunity for the presentation of contrasting views. Balance need not be achieved on the same program, but when considered on an overall basis, ABC’s pro- ing will present the contrasting viewpoints on controversial public issues. Comments of ABC 45 ABC will determine what subjects are of such in- terest or importance as to warrant time for their presentation. ABC will also decide whether it will present a contrasting viewpoint itself, or if not, which individuals or organizations seeking time are best qualified to discuss a subject chosen for broad- cast treatment or are most representative of a view- point selected for presentation. Comment: on or discussion of current or proposed legislation or pending litigation will be permitted only on political, news, news commentary, discussion and controversial issue programs. Comment on or discussion of pending litigation must be within the bounds of fair comment in order not to prejudice the outcome. Absent special public interest considerations, ABC will not sell time for controversial issue programs or announcements or permit the solicitation of funds or the sale of publications on controversial issue broadcasts. In short, absent special public interest considerations, ABC will not sell time for comment on controversial is- sues or for solicitation of funds. ABC offers the following additional comments on the Request for Declaratory Ruling: The continued strength and viability of our two party system are of vital importance. ABC has emphasized in recent Congressional hearings the importance of a wider base for political contributions—small sums from millions of Americans rather than large contributions from a few. Of course, there are many controversial public issues and dozens of responsible organizations advocating all = Comments of ABC 46 shades of opinion on such issues. Were we to open the door entirely to any “responsible entity” who wished to purchase time for programs or announcements in which to espouse its point of view on controversial issues of public importance and/or to solicit funds, we think it reasonable to anticipate a flood of such requests. The obvious problems would be, in each instance, compliance with the “Fairness Doctrine” and where to draw the line. Because the strength and viability of the major politi- cal parties are vitally important, ABC would be prepared, consistent with its other obligations, to accept such orders for time from major political parties as can be accom- modated on a reasonable basis. At the same time, we propose to continue our general policy against the sale of time for controversial issue programs and announce- ments and solicitations for funds, absent special public interest considerations. As a licensee, and as a responsible member of the com- munity, ABC submits that the foregoing policies, so long as they are reasonably applied, are entirely appropriate. In its Declaratory Ruling, or by separate letter, the Com- mission may wish to address itself to ABC’s proposed treatment of the issue. Respectfully submitted, /s/ Everett H. Erlick EVERETT H. ERLICK NATIONAL BROADCASTING COMPANY, INC. 1725 K Street, N.W., Washington, D. C., EMerson 2-4000 Comments of NBC 47 June 22, 1970 Howard Monderer Washington Attorney Hilburt Slosberg, Esq. Office of General Counsel Federal Communications Commission Washington, D. C. 20554 Dear Mr. Slosberg: Pursuant to your request for a statement on the sub- ject, NBC has no policy which prevents it from accepting Several months ago, in discussions with a representa- Respectfully yours, /8/ Howard Monderer HOWARD MONDERER Comments of CBS 48 CBS Columbia Broadcasting System, Inc. 51 West 52 Street New York, New York 10010 (212) 7165-4821 Robert V. Evans Vice President and General Counsel June 22, 1970 Mr. William B. Ray, Chief Complaints and Compliance Division Federal Communications Commission 1919 “M” Street, N. W. Washington, D. ©. 20036 Re: Commission Reference 8330 C5-13844 Dear Mr. Ray: This is in response to your May 22 letter requesting the comments of the Columbia Broadcasting System, Inc. on the “Democratic National Committee Request for Declar- atory Ruling Concerning Access to Time on Broadcast Stations” (hereinafter “DNC Request”). The DNC asks the Commission to rule: a general policy will be taken into consideration— in a manner adverse to the proadecaster—by the Com- mission in evaluating whether the grant of a broad- caster’s renewal application accords with the inter- est.’ ” CBS welcomes this opportunity to comment on the DNC Request. The DNC Request poses 2 fundamental chal- Comments of CBS 49 lenge to the ability of a broadcast licensee to establish and follow general policies best articulated in the licen- see’s judgment to insure that controversial issues are cov- ered fully and fairly. The DNC Request also calls into question long standing FCC regulatory policy in this im- portant area. In essence, the DNC now requests, with- out any allegation or showing of inadequate coverage, that this Commission repudiate the regulatory philosophy it enunciated in adopting the Fairness Doctrine, Jn the Matter of Editorializing by Broadcast Licensees, and has since consistently reiterated: “It is apparent that our system of broadcasting, under which private persons and organizations are licensed to provide broadcasting service to the vari- ous communities and regions, imposes responsibility in the selection and presentation of radio program material upon such licensees. Congress has recog- nized that the requests for radio time may far ex- ceed the amount of time reasonably available for distribution by broadcasters. It provided, therefore, in §3(h) of the Communications Act that a person engaged in radio broadcasting shall not be deemed a common carrier. It is the licensee, therefore, who must determine what percentage of the limited broadcast day should appropriately be devoted to news and discussion or consideration of public is- sues, rather than to the other legitimate services of radio broadcasting, and who must select or be re- sponsible for the selection of the particular news items to be reported or the particular local, state, national or international issues or questions of public interest to be considered, as well as the person or persons to comment or analyze the news or to dis- cuss or debate the issues chosen as topics for radio consideration.” 13 F.C.C. 1246, 1247, 25 R.R. 1901, 1903 (1949). Comments of CBS 50 We endeavor in these comments to show that CBS’s pres- ent method of handling controversial issues serves the public interest in obtaining full, fair and informative discussion, and that there is no need for a new compul- sory carriage rule that would unbalance programming and have a host of other undesirable effects. We further demonstrate that there is no statutory or constitutional right to the relief requested by the DNC. To the con- trary, the rule would contravene the statutory policy set forth in Sections 3(h) and 326 of the Communications Act. I. The DNC Has Misunderstood CBS Policies Relat- ing To The Presentation Of Controversial Issues. CBS Policies Insure Full And Fair Presentation Of Controversial Issues. The DNC Request has incorrectly described CBS policies (pages 11, 12 and 17 of the DNC Request). We, there- fore, outline those policies and the reasons for their adoption. Central to CBS policies relating to the coverage of news and the expression of viewpoints on controversial issues is a fundamental commitment to objectivity in reporting the news and a recognition that the public can make in- formed judgments only if it is regularly exposed to the vigorous clash of viewpoints on the major issues of the day. CBS has consistently sought to maintain a fair and balanced treatment of these issues in its news and infor- mational broadcasts.’ In furtherance of these goals, CBS has long maintained policies which in general provide that broadcasts dealing with current controversial issues be produced under the supervision and control of CBS 1 Indeed, we do not understand the DNC Request to question CBS’ performance with respect to objective and fair coverage of issues. Comments of CBS 51 News or a CBS Owned station. Only by lodging these responsibilities with our own personnel can we effectively insure that objectivity and fairness will actually be achieved. This commitment to fairness is also the basis of the long standing CBS policy not to sell time for the expression of viewpoints on public issues (except for political broadcasts as discussed below), but rather to provide significant opportunities for such discussion with- out charge to partisans of various viewpoints in our news and information broadcasts. In adopting this policy we concluded that we could not provide coverage of sig- nificant issues with fairness and balance if partisans with strong financial resources could preempt our fa- cilities to present their viewpoints on issues they select. A policy of selling time to partisans would in our view necessarily distort the manner in which issues were pre- sented to the listening and viewing public. CBS has con- cluded that as a licensee in a medium with a finite amount of time to provide news, information and enter- tainment, we best serve the public by presenting issues and viewpoints within a balanced program schedule util- izing newsworthiness as the sole criterion” CBS has built one of the world’s great news organiza- tions, with a well-deserved reputation for fairness and objectivity. CBS News and the CBS Owned stations pro- vide regularly-scheduled hard news broadcasts. These broadcasts regularly include so-called “mini-documen- taries”, as well as investigative reports, sometimes in two, three or four-part series. In addition, CBS also provides regularly-scheduled weekly news interviews such as FACE THE NATION and WCBS-TV’s NEWS- ? The problem would be exacerbated by the so-called “prime time access” rule adopted by the Commission in Docket No. 12782 which would have the effect of limiting each network’s prime time (7-11 p.m.) schedule to three hours each evening with only a limited exemption for news and public affairs broadcasts. —— Comments of CBS ! 52 | MAKERS, numerous documentaries and special news broadcasts. Thus, for example, in the years” 1968 and ' 1969 there were 84 CBS News special broadcasts and 28 60 MINUTES proadcasts—all in prime time. Important subjects are also dealt with on the CBS News religious rograms, LOOK UP AND LIVE and LAMP UNTO MY FEET. In the past decade the CBS News operation has grown significantly. Consider the following comparisons be- tween the two-year period, 1968-1969, and the two-year period, 1956-1957: —Total hours of news and public affairs broadcasting: 1,354 vs. 675—more than twice as much. Total prime time hours of news and public affairs proadeasting: 192 vs. 34—about six times as much. _—Total hours of regularly-scheduled hard news broad- casts, 6 p.m.-11 p.m.-: 338 vs. 130—over two and one-half times as much. —Total hours of documentaries: 100 (all in prime time) vs. 37 (six in prime time). In quality as well as quantity, CBS has served the public increasingly well under its policy of professional respon- sibility for coverage of controversial issues. In 1968, CBS News special broadcasts dealt with the issues that were being debated by all Americans, including, for ex- ample, such broadcasts as Walter Cronkite’s “Report From Vietnam” ; Charles Collingswood’s on-the-scene “Re- port From Hanoi”; and “Cuba: Ten Years of Castro”. There was 2 documentary entitled “Marijuana”; one on the plight of the American Indian entitled “The For- gotten American”; and a report on civil disorders that asked “What Happened to the Riot Report?”. There was a broadcast on hucksterism in American politics, “Cam- Comments of CBS 53 paign American Style”; the hard-hitting report, “Hunger In America”, which led to public outery and Congres- sional investigation; and the now classic seven-part series, “Of Black America”. 1969 reports included documen- taries on coal-mining accidents and the struggle in the United Mineworkers Union, a three-part series on the generation gap, and a report on the college turmoil. There was “Triangle of Conflict: China, Russia and the U.S.” and a probing documentary on the ABM controversy. Viewers of 60 MINUTES during the years 1968 and 1969 heard Ramsey Clark discuss policemen, saw a two- part treatment of germ and gas warfare, saw a report on racial discrimination in Great Britain, a discussion of the Pope and the pill, a report on homosexual assaults in America’s prisons, a report on U.S. draft evaders in Canada, and parallel reports from both sides of the Biafran-Nigerian war, the Irish civil war and the Arab- Israeli conflict.® In addition, the CBS MORNING NEWS WITH JOSEPH BENTI regularly includes interviews with government *To demonstrate how fully and fairly issues are reported to the public by CBS News, we have prepared as an Exhibit to these comments a summary of that coverage on one major public issue of the day—the Indochina War and the domestic reaction to it. This exhibit examines one CBS News hard news broadcast series, THE CBS EVENING NEWS for a three-month period. We note, too, that similar coverage of the issues was presented by the CBS MORNING NEWS and other CBS hard news broadcasts. In addition, (for a period of approximately six months) it examines other CBS News television broadcasts such as documentaries, specials, and news-interview broadcasts. Each CBS Owned television station has, of course, supplemented the national coverage in its own local news broadcasts. Also, attached as an Exhibit is a summary of the WCBS-TV coverage of this issue, again including one local hard-news broadcast series, the WCBS-TV 6:00 O’CLOCK REPORT (for a period of three months), and other WCBS-TV news broadcasts as well as WCBS- TV Editorials and Replies to those Editorials (for a period of approximately six months). ain ite ae - —- - ‘ —— . eee eed or “ : y at Ay Comments of CBS 54 leaders and other important public figures. This discus- sion format in recent months has afforded such prominent Democrats as Senators Birch Bayh, Frank Church, J. William Fulbright, Gale McGee, George McGovern, Walter Mondale, and Edmund Muskie, and Congressmen George Mahon, Morris Udall, and Lester Wolff an opportunity to express their viewpoints on the controversial issues of the day. a high proportion of direct presentations of views by in- dividuals—both on our regular “hard” news programs and our news interview programs such as FACE THE NATION. Indeed, television news generally achieves pro- portionately more direct quotation from a news subject’s own lips, and less paraphrasing in the words of reporters, than any other news medium. CBS provides a very substantial degree of direct expo- sure for partisans on controversial issues—always, how- ever, through formats that are journalistically well-suited to provide a full and fair elucidation of the issues. After President Nixon’s April 30 address on Cambodia, CBS News broadcast on May 3 a special report, “Where We Stand In Cambodia”. In addition to news reports from Cambodia and analyses of developments by CBS News correspondents, this broadcast also presented the com- ments of such national leaders as Secretary of State Rogers, retired General Maxwell Taylor, retired General James Gavin, and Senators Hugh Scott, Fred Harris, John Stennis, George Aiken, William Fulbright and Mark Hatfield. On May 9, 1970 CBS News presented a special, “The Colleges, Cambodia, and the Confrontation in Wash- ington”, which included, among others, the views of Dr. Spock, Dr. Moos and Coretta King on the domestic reac- ih mae” ve: Comments of CBS 55 tion to the conflict in Cambodia. On June 5, 1970, two days after President Nixon’s most recent address on Cambodia, CBS News presented a live debate, “The Sen- ate and the War”, moderated by Eric Sevareid, on which six U.S. Senators debated the Indochina situation—three supporting the President and three opposing him. Still another format was utilized by CBS News on the May 10, 1970 broadcast, “Campuses in Crisis: Three Col- lege Presidents Speak”. In this news special CBS cor- respondent Harry Reasoner of CBS discussed unrest on college campuses, and its relationship to the war, with the presidents of the University of Michigan, Notre Dame University, and Yale University. Nonetheless, these direct appearances remain part of our own basic effort to inform fully and fairly; they are not permitted to become the instrument of partisan advocacy. The Report of The Twentieth Century Fund Commission on Campaign Costs in the Electronic Era, heavily relied on by the DNC, aptly describes the dangers in the politi- cal sphere of substituting partisan program control for professional news responsibility: “Advances in broadcasting technology have made it possible to present a candidate in the best possible light, with all inept answers to hard questions edited out of the tape, with false starts and all uncertain- ties and human failings eliminated, all warts and blemishes removed, a single smooth image alone re- maining. It is no criticism of television or radio to say that some day it may be possible to offer a wholly plausible and wholly false impression of a candidate. Broadcasting would become an impene- trable shield for a candidate, would not open a win- dow on him through which the public could see him clearly.” * * Twentieth Century Fund, Voters’ Time, p. 87 (New York; 1969). Comments of CBS 56 These admonitions apply as much to a political party as to a political candidate. In programs prepared by CBS News, the hard questions are pressed, not ducked, and human failings are exposed, not edited out. We agree that the First Amendment is concerned pri- marily with the right of the public to be informed—and it is our commitment to that ideal which has led us to adopt policies considered “arbitrary” by the DNC. Our fundamental conviction that the public can most effec- tively be informed through the journalistic judgments of the media was discussed by Richard W. Jencks, Presi- dent, CBS/Broadcast Group in an August 11, 1969 ad- dress before the American Bar Association on the role of the press today: “An organ of information does not exist to serve the unrestrained freedom of speech of individual mem- bers of its public, or even of its own editorial staff; still less does it exist to be a therapeutic outlet for the frustrated. The collection and dissemination of which make up the daily quota of happenings—some sensemaking whole. Learned Hand once described total recall, but a deliberate pruning of, and culling from, the flux of events. Were it possi- ble by some magic telepathy to reproduce an occasion in all its particularity, all reproductions would be interchangeable; the public could have no choice, provided that the process be gilt Comments of CBS 57 mechanically perfect. But there is no such magic; and if there were, its result would be immeasur- ably wearisome and utterly fatuous.’ “It is the function thus described that demands the intervention or professional journalists. between the event and the public; it is this function which mili- tates against the concept of news organizations as common carriers of other people’s views, with no control over content.” These comments cannot present a full-length portrait of the growth and accomplishments of CBS news operations. But even this sketch should demonstrate the basic wis- dom of this policy and the folly of replacing it, as the DNC Request would have this Commission do, with a governmentally imposed requirement to sell program time for discussion of issues to all comers (except, apparently, _ those in the vague and undefined category of the “irre- sponsible”) . While CBS policy provides that the presentation of con- troversial issues be undertaken in news and informational © broadcasts, the prohibition against the sale of time does not apply to broadcasts on behalf of political candidates or in connection with ballot propositions. In exempting the sale of time to political candidates from our general policies, we recognize that the basic purpose of Section 315 of the Communications Act was to facili- tate discussion of political issues by legally qualified candidates. CBS places no limitations (except with respect to defa- mation and obscenity in non-315 appearances) on the use of paid political broadcast time. Paid political broad- casts may present material on any current local or na- tional controversial issue—so long as the broadcast is on behalf of a candidate or a group of candidates, Because LIL AINE, Comments of CBS 58 ballot propositions are so involved in the electoral process and indeed in the campaigns of many candidates we made a similar exception for them in our policies. The CBS 1968 STATEMENT OF POLICY ON POLITI- CAL BROADCASTS (a copy of which was furnished to - both Democratic and Republican National Committees, as well as other state and local political committees in 1968) makes clear that: “A paid political broadcast may contain a direct appeal for funds provided it is clear that CBS is not to be involved in any way in the collection or handling of such funds.” (page 17) Indeed, the DNC Request specifically takes note of the fact that in both the 1964 and 1968 national campaigns, the major political parties made successful use of na- tional television in the solicitation of campaign funds. To a large extent, existing CBS policies recognize the needs expressed by the Democratic Request that: “A political organization seeking the attention and support of potential small contributors must have access to the broadcast media.” In this spirit, CBS/Broadecast Group President, Richard W. Jencks, recently testified in support of S. 3637, to repeal Section 315 (a) as to Presidential and Vice- Presidential candidates and to reduce the cost of political campaign broadcasts. ; Consistently with CBS’s long standing recognition of the importance of adequate public financial support of politi- cal parties, and with direct relevance to the matters raised by the DNC Request, CBS will permit the pur- chase by political parties of a special category of spot announcements (i.e. up to one minute in length) for the purpose of political fund-raising. These announcements need not be on behalf of candidates or ballot propositions. | . Comments of CBS 59 II. A Regulatory Policy Which Imposes Common Car- rier Obligations on Broadcasters Would Be Con- ty trary To The Public Interest. CBS news policies have (1) prevented the distortion that would occur if coverage of an issue were dependent upon its financial support rather than upon its news- 1 worthiness, (2) fostered the development of one of the Ve world’s great news organizations, and (3) provided the public with exterisive coverage of controversial issues of all kinds, including a very substantial degree of direct exposure for partisans on controversial issues, to a great- er extent than most other broadcast or print media. PONT Re ere ee If CBS were compelled to sell program time to partisans on the haphazard basis suggested by the DNC, the bal- ance in programming that CBS has assiduously main- tained would be jeopardized. The indulgence and interest of the viewing public are by no means unlimited. If broadcasters must sell program time to partisans, they will have correspondingly less time for other news, sports, and entertainment programs. And each broadcaster’s ability to provide a fair presentation of public issues in his overall broadcast schedule will be adversely affected. It is hard to think of a proposal more mischievous in its consequences to the public’s right to learn and know. Fair and balanced coverage of controversial issues could never emerge from an auction in which the highest bid- ders determined what issues to discuss and how they should be presented. Yet that is exactly the direction in which the DNC proposal would take us. If broadcasters were compelled to sell time to “responsible entities” wishing to comment on public issues, would the public be more fairly informed about the plight of the American Indian or racism in America, about gun con- trol or the ABM controversy, about coal-mining accidents Comments of CBS 60 or air pollution? Or would the disparate financial re- sources of the persons interested in issues like these ir- reparably unbalance and distort coverage? be There are significant production costs involved in creat- ing interesting, persuasive television broadcasts. Would it then be the responsibility of the broadcasters them- selves to produce and air the material that would restore the balance—and, if so, how are top-flight professional ' journalists to be~interested in devoting their careers to a journalism whose content is to be determined by the cur- rency of other people’s propaganda? If there are more bidders than time available, how would the networks choose among bidders, and could the Commission avoid the dangerous role of umpire reviewing the decisions made? We appreciate that political campaigns are costly and increasingly difficult to finance. We also recognize that there is a relation between dollars spent and success or failure in an election. However, the issue in this pro- ceeding is not a short-term problem of the DNC—its debt and the 1970 election. At stake is something more fundamental—the danger of replacing rational political discussion with one-sided presentations designed to per- suade rather than to inform. Indeed, Voters Time, ex- tensively cited by the DNC, cautions that: “ | the democratic process requires open forums for political ideas and the widest possible dissemina- tion of information. Letting ability to pay determine access to the great audience and fostering the de- velopment of commercial-like campaign spots rather than rational political discussions may in time sub- vert the democratic process.” We agree. If the concept were adopted, what limits, if any, could a licensee apply to those seeking to purchase time? The ccemeansl ha — Comments of CBS 61 DNC request would rule out “arbitrary barriers” to ac- cess on the part of “responsible” groups, such as the DNC. From the requests received to purchase time on various public issues, on what basis would the licensee de- termine the issues and the group to be afforded access? Must the licensee, for example, sell time in 1970 to a group opposing fluoridation of water, or is that issue too remote and unimportant today? Should it strive for balance in selling time to opposing viewpoints or should it simply sell available time to the highest bidder so long as he is “responsible’? What is the scope of the li- censee’s discretion in determining the indicia of “responsi- bility’? And what are the licensee’s obligations if the proponents of a question wish to buy time and the Oppos- ing groups wish time, but do not have, funds?* Is it likely that grappling with these unsolvable problems will result in the public being better informed than if broad- casters continue to have the non-delegable responsibility for full and fair coverage of controversial issues? 5 We can not conceive of any one desiring to purchase time who would admit to the label “irresponsible.” quested this FCC ruling .were conducting active advertising cam- Paigns in New York City newspapers voicing their opposition to the adoption of the new Constitution. a , Comments of CBS | 62 Ultimately, of course, even the DNC’s “common carrier” proposal requires that there be some gatekeeper to de- termine who will be heard, who is “responsible” and who is not, which responsible group should be sold a segment of time when not enough of this scarce resource is avail- able for all and how much time should be sold to other partisans in the light of other program needs? Will the gatekeeper continue to be the licensee, or does the DNC a contemplate that the Commission will fulfill that role through a continuing process of interpreting and elabor- ating the DNC rule? The DNC Request does not say, but it is obvious that the result will be to put the Commis- sion in the business of making specific programming de- cisions for which the licensee is now responsible. The DNC rule would significantly divest the licensee of responsibility for controversial issue programming and in so doing it would necessarily place that responsibility upon the Commission if a “chaotic” situation were to be avoided.' Our whole tradition of press freedom from undue governmental interference cries out against such a result. The DNC, concerned with its own present diffi- culties, has lost sight of the vital democratic principles underlying Professor Zechariah Chafee’s trenchant warn- ng: * “Whenever anybody is inclined to look to the govern- ment for help in making the mass media do what we desire of them, he had better ask himself one anti- septic question: ‘Am I envisaging myself as the of- ficial who is going to administer the policy which seems to me so good?’ Justice Holmes remarked that, when socialism came, he hoped he would be ‘on the committee.’ You and I are not going to be on the committee which is charged with making newspapers ™ FCC letter to Representative Ottinger, discussed in Section III below, 18 RR 2d 1031 (1970). Comments of CBS 63 or radio scripts better written and more accurate and impartial. It is very easy to assume that splendid fellows in our crowd will be exercising the large powers over the flow of facts and opinions which seem to us essential to save society, but that is an iridescent dream. We must be prepared to take our chances with the kind of politicians we particularly dislike, because that is what we may get.” Chafee, Government and Mass Communications Vol. II, p. 709. III. There Is No Constitutional Or Statutory Right To Compel Broadcasters To Carry The DNC’s Pro- grams. To The Contrary, The Communications Act Bars The Commission From ImposingAny Such Obligation. The Commission Has Consistently De- clared That There Is No Right Of Compulsory Carriage. The constitutional and statutory arguments of the DNC, like its policy arguments, are without merit. The DNC contention is not that CBS has failed to present adequate and fair coverage of public issues, but that “responsible entities” have a “right” to purchase time for the pur- pose of presenting programs of their own to express views and solicit funds for carrying out political or other objectives. It suggests—mistakenly—that the “right” it asserts derives from both the Constitution and the Com- munications Act. As we now show, the claim is sup- ported neither by the Constitution nor the statute, and as _ , the Commission has consistently recognized, it is specific- ally barred from creating such a right. A. There Is No Constitutional Right To Compel oe Carriage Of Programs On Broadcast Stations. The DNC’s suggestion that there is a First Amendment right purchase time is insupportable. _ Broadcasters, Comments of CBS ' 64 though licensed by the Commission and subject to its valid regulations, are not publicly-owned facilities, and there is no First Amendment right to purchase time on radio or television stations. This question has been set- tled ever since McIntire v. William Penn Broadcasting Co., 151 F. 2d 597 (8rd Cir. 1945), cert. denied, 327 U.S. 779 (1946). There clergymen and religious cor- porations brought suit to compel a radio station to sell time to them for the broadcast of certain programs. The court denied relief, holding that plaintiffs had no First Amendment right to purchase time on the station. It stated “there is no reason, the FCC permitting and no viola- tion of the anti-trust laws being involved, why the defendant may not sell time to whomever it pleases. As we have stated, Congress had confided the se- lection of program material to be broadcast to the taste and discrimination of the broadcasting stations. * * * * True, if a man is to speak or preach he must have some place from which to do it. This does not mean, however, that he may seize a particular radio station for his forum. . . . ‘Unlike other modes of expression radio inherently is not available to all.’ * * _ a “s radio broadcasting station is not a public utility in the sense that it must permit broadcasting by whoever comes to its microphones.” Id at 600-01. Accord, Massachusetts Universalist Convention v. Hil- dreth & Rogers Co., 183 F. 2d 497, 501 (1st Cir. 1950). Similarly, in Avins v. Rutgers, 385 F. 2d 151 (8rd Cir. 1967), cert. denied, 390 U.S. 920 (1968), the plaintiff brought suit against the State University of New Jersey, asserting that the State University law review had vio- lated the First Amendment by rejecting an article he Comments of CBS 65 had submitted, allegedly because of its “conservative” content. The court rejected this contention, relying on the McIntire case.* There is nothing in Red Lion Broad- casting Co. v. FCC 395 U.S. 367 (1969) that indicates that McIntire is not good law or suggests that, apart from Section 315, there is any legal obligation for broad- cast licensees to sell time. To the contrary, as we discuss below, Red Lion sustained long standing Commission poli- cies that are wholly inconsistent with the right asserted here by the DNC. Moreover, the rule proposed by the DNC would inevitably lead the Commission into the realm of censorship by re- quiring it to regulate broadcast access and to decide which groups were sufficiently “responsible” to merit ex- posure in this medium and which programs it should compel broadcasters to carry. Governmental “dictation as to what should go into particular programs” or what groups are to be heard is the very heart of censorship. Chafee, Government and Mass Communications, p. 641 (1965). See Cantwell v. Connecticut, 310 U.S. 296 (1940); Fowler v. Rhode Island, 345 U.S. 67 (1953); Niemotko v. Maryland, 340 U.S. 268 (1951). *The district court held: “It could not be contended reason- ably that the Editorial Board of Rutgers Law Review must accept for publication every treatise on law which is submitted to it. There must necessarily be a broad area for the exercise of discre- tion.” Quoted at 385 F. 2d at 152. The court of appeals affirmed, holding (p. 153-154): “The right to freedom of speech does not open every avenue to one who desires to use a particular outlet for expression. . . . [t]he acceptance or rejection of articles sub- mitted for publication in a law school law review necessarily in- volves the exercise of editorial judgment and this is no wise lessened by the fact that the law review is supported, at least in part by the State.” 7 Comments of CBS 66 B. There Is No Statutory Right To Compel Car- riage Of Programs On Broadcast Stations. A Commission Rule Compelling The Broadcast Of Any Program Supplied By A “Responsible Group” Would Violate The Communications Act. The DNC claims that as a “responsible entity” it also ‘ has a statutory right to purchase time on broadcast sta- tions. This claim has no better legal ground. Like the _ constitutional claim, it was explicitly rejected in the Massachusetts Universalist and McIntire cases.’ Moreover, for this Commission to compel carriage of the Democratic National Committee’s programs would plainly violate the Communications Act. Section 3(h), 47 U.S.C. Section 3(h), explicitly states that broadcasters are not common carriers, and it explicitly bars the Commission from imposing a common carrier obligation on broad- casters. This section, together with Section 326, 47 U.S.C. Section 326, establishes that the licensee—and not the Com- mission—is to exercise the power of program selection.” See 1960 Report and Statement of Policy Re: Commission En Banc Programming Inquiry, 25 Fed. Reg. 7291, 7294 (August 3, 1960). Nothing in the Act or the Commission’s rules is to the contrary. Proceeding from Section 315 are limited and carefully circumscribed personal rights of reply to material previously selected for broadcast by the licensee: (i) equal opportunities for political candidates; (ii) replies ® Thus, for example, in McIntire (p. 600) the court stated: “the plaintiffs have cited no specific provisions of the Federal Com- munications Act which has been violated by the defendant and we can find none. 10 Contrary to the assertion (p. 22 fn. 1) in the DNC request, as we show, Section 3(h) does far more than exempt broad- casters from Title II of the Communications Act. Se Pe Comments of CBS 67 to personal attacks; and (iii) replies to station political endorsements. If a licensee affords broadcast time to a political candi- date, the opponents of that candidate must be given equal opportunities. And under the Commission’s rules, if a station broadcasts a personal attack or makes a po- litical endorsement, a reply must be afforded. Except in these limited instances, the licensee has full responsibility as to source and content of his programs.” The Congress’ decision not to make the broacaster a com- mon carrier, and its decision to make the licensee respon- sible for program selection, were advertent and deliberate. As the legislative history of the Act-and its interpreta- tion by the courts and the Commission show, this Con- gressional policy is central to the regulatory scheme. In its consideration of the Radio Act of 1927, Congress faced and rejected the notion that broadcasters should be charged with a common carrier responsibility. The bill, as reported by the Senate committee, contained a common carrier provision.» This provision was ultimately re- | ™To be sure, the balanced programming required by the fair- ness doctrine requires stations to carry appropriate opposing views. But it leaves the licensee the widest discretion as to source and manner of presentation of the views. No person or group is given the right to compel carriage of its program. 12“Tf any licensee shall permit a broadcasting station to be used, . . . [to broadcast any matter for a valuable consideration], or by a candidate or candidates for any public office, or for the discussion of any question affecting the public, he shall make no discrimination as to the use of such broadcasting station, and with ‘respect to said matters the licensee shall be deemed a common carrier in interstate commerce: Provided, that such licensee shall have no power to censor the material broadcast.” S. Rep. No. 772, 69th Cong., Ist Sess. (1926), p. 4; 67 Cong. Rec. 12503 (1926). The “common carrier” language, the requirement of “non- discrimination” and the references to broadcasting matter for a valuable consideration and “the discussion of any question affecting Comments of CBS 68 vised (creating what became Section 315) so that in- stead of requiring broadcast access on a common carrier basis, it merely afforded reply opportunities limited to political candidates. Senator Dill reasoned that common carrier obligations would hamper the broadcaster who would then be compelled to “accept anything and every- thing that was offered him so long as the price was paid.” (67 Cong. Rec. 12502 (1926)). Similarly, Senator Dill opposed the provision because he feared that if discretion were taken away in this area, broadcasters: would have to give all their time to that kind of discussion, or no public question could be discussed. 67 Cong. Rec. 12504 (1926).* the public” were deleted on the floor of the Senate, through an amendment offered by Senator Dill (67 Cong. Rec. 12501-12502 (1926) ). 13 Senator Howell objected to the change because “to perpetuate in the hands of a comparatively few interests the opportunity of reaching the public by radio and allowing them alone to determine what the public shall and shall not hear is a tremendously dangerous course for Congress to pursue.” (67 Cong. Rec. 12503 (1926)). Senator Dill responded; “I sympathize with a great deal of what the Senator is saying, I want to remind the Senator of the danger of having the wo ‘public questions’ in the bill. “That is such a general term that there is probably no question of any interest whatsoever that could be discussed but that the other side of it could demand time; and thus a radio station would be placed in the position that the Senator from Iowa mentions about candidates, namely, as that they would have to give all their time to that kind of discussion, or no public question could be discussed. “As I say, I sympathize with the Senator’s position; but the opposition to that was so strong in the minds of many that it seemed to me wise not to put it in the bill at this time, but to await developments, and get this organization to functioning, and the bill can be amended in the future. “{ just wanted to leave that idea with the Senator as to my reasons for taking the view I do.” (67 Cong. Rec. 12504) (1926). Poy oy Comments of CBS 69 Debate on the conference report reaffirmed the judgments reached in the earlier debate that it would be unwise to enact a common carrier obligation." The 1927 Congress did not stop at rejecting common car- rier status for licencees. It also adopted what is now Section 326 of the Communications Act. The legislative history demonstrates that by this action Congress in- tended to bar the Commission from abridging the right of the licensee to choose the programs that it will carry. Even before Congress began consideration of the bill, a proposal was initially rejected that would have per- mitted the agency to establish a system of priorities for the selection of program material by broadcasters under which, for instance, religious or educational programs would have preference over entertainment programs.** When the bill which became the 1927 Act was introduced in 1926, this provision was deleted, according to Rep- resentative White—the author of the bill— because “of the fear which had been expressed by so many to me that that did confer something akin to censorship.” This pro- #68 Cong. Rec. 2567 (1927). The 1927 Act did contain a pro- vision, dropped without comment from the 1934 Act, permitting license revocation if the Interstate Commerce Commission found that a particular licensee had been guilty of discrimination with respect to charges or service. Compare 44 Stat. 1162, 1168, with 48 Stat. 1064. However, it was understood that the 1.C.C. would have to find that broadcasters were “common carriers,” within the meaning of the Interstate Commerce Act, and that the I.C.C. had not previously asserted that such entities were common car- riers within that Act. See 67 Cong. Rec. 5559 ( 1926) ; 68 Cong. Rec. 2567 (1927). ** A bill authorizing the licensing authority to “prescribe. . . the priorities as to subject matter to be observed” by classes of stations and stations within classes had originally been introduced by Representative White in 1924. H.R. 7357, 68th Cong., 1st Sess. (1924). ** Hearings on H. R. 5589 Before the House Committee on the Merchant Marine and Fisheries, 69th Cong., Ist Sess. (1926). = ELI IE LIE IEG, ME TIED NL IE OSS SEATED LET ASE! CE ata ematam Comments of CBS 70 vision having been deleted, Representative White was satisfied that the bill as it passed the House did not per- mit censorship, even though it contained no specific anti- censorship provision.” , The Senate, however, was not gatisfied with an unwritten proscription. The bill as introduced in the Senate * con- tained a specific provision—which later became Section 326—barring Commission censorship. And Senator Dill, the Senate sponsor, responded to a suggestion on the floor that the bill would permit censorship by stating that the “bill does not give to the Commission the power to censor programs, but instead there is a provision in the bill which specifically prohibits the commission from censor- ing programs in any way.” ° Following adoption of the 1927 Act, in 1929, the Radio Commission, in a major pronouncement on the scope of the 1927 Act and its views on its own responsibilities, re- jected, as had Congress two years before, the view that broadcasters must allow access to all who seek it. It was contended that the broadcasters’ obligations, like those of telephone common carriers, ran to “the sender” of mes- ‘sages. The Commission held, however, that “the duties of broadcasting stations are to listeners.” Great Lakes Broadcasting Co. v. Federal Radio Commission, 3 F.R.C. Ann. Rep. 82, 33. The efforts to enact a right of access were not over, how- ever. For example, in 1934 Congressman McFadden, seeking to achieve by legislation a Aight substantially identical to that which the DNC seeks here in its request for a declaratory ruling, sought to forbid discrimination by any broadcasting stations against programs sponsored —— 1167 Cong. Rec. 5480 (1926). 18S, 1754, 69th Cong., 1st Sess. (1926). 1967 Cong. Rec, 12615 (1926). Comments of CBS 71 by any religious, charitable or educational association. H.R. 7986, 78rd Cong., 2nd Sess. (1934). The Commis sion opposed the McFadden bill. Chairman Sykes, tes- | tifying against the bill, began his statement by pointing } out that the proposal to require access “fs directly contrary to broadcasting as it has grown up in the United States prior to the act of 1927 and is directly contrary to the theory of broadcast- ing under the act under which we operate... .” The Chairman also stated that the Act “puts upon the individual licensee of a, broadcast station the private initiative to see that those pro- grams that he broadcasts are inthe public interest . Then that act makes those individual li- censees responsible to the licensing authority to see that their operations are in the public interest.” Hearings on H.R. 8301 Before the House Committee On Interstate and Foreign Commerce, 78rd Cong., 2nd Sess. (1934), pp. 349-52; The McFadden bill was not reported out of committee, but Chairman Sykes’ testimony opposing it became—at his request—part of the record of the Congressional con- sideration of the Communications Act of 1934. Section 8(h) of that Act was adopted specifically declaring that broadcasters are not common carriers. Passage of this provision—based as it was on the history of the 1927 Act, the Commission’s views in the Great Lakes case and its Chairman’s testimony on the McFadden bill—consti- tutes a clear legislative determination that it is not in the public interest to compel carriage of programs, without licensee selection as to content.” To the contrary, with : 20 Other attempts to add a common carrier provision were made both before and after consideration of the 1934 Act. All of them failed. E.g., H.R. 14467, 70th Cong., 2nd Sess. (1928) ; H.R. 6227, 78rd Cong., 2nd Sess. (1934); H.R. 8716, 79th Cong., 1st Sess. . (1945). Comments of CBS 72 the exceptions noted earlier, the Act and its legislative history established that “the choice of programs rests with broadcasting stations licensed by the F.C.C.” Mc- Intire, supra, at 599. See also F.C.C. v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940); Pulitzer Pub- lishing Co. v. F.C.C., 68 App. D.C. 124, 126, 94 F.2d 249, 251 (1937). Other legislative history shows that the general rule against compulsory carriage has particular force in the present case. First, in rejecting over the years numerous proposals to expand the equal time concept beyond candi- date appearances, Congress has recognized the importance of the exercise of journalistic standards and licensee dis- cretion in broadcasting news. In amending Section 315 of the Communications Act in 1959, Congress provided that even the equal time provision of Section 315 for political candidates would be inapplicable to certain cate- gories of news broadcasts—an amendment which rep- resented an increased Congressional recognition for the need of journalistic discretion in broadcasting news. In connection with the fairness provision of the 1959 amend- ment Congress had the benefit of the Commission’s com- ments on proposed bills before House and Senate Com- mittees which took the position that “when it comes to application of the overall fairness standard, the licensee can exercise discretion as to which viewpoints are en- titled to be expressed and which spokesmen are entitled to be heard... .”* In the course of the floor debates on the “fairness amendment” to the bill, it was made clear 21See the Commission’s official comments on proposed bills appearing in Hearings on S. 1585, S. 1604, S. 1858 and S. 1929 Before the Communications Subcommittee of the Senate Committee _ on Interstate and Foreign Commerce, 86th Cong., 1st Sess. (1959) p. 71 and in Hearings on H.R. 53889, H.R. 5675, H.R. 6326, H.R. 7122, H.R. 7180, H.R. 7206, H.R. 7602 and H.R. 7985 Before a Sub- committee of the House Committee on Interstate and Foreign Commerce, 86th Cong., 1st Sess. (1959), p. 10. | Comments of CBS 78 that, as the fairness requirement was understood, it im- posed only a general obligation on broadcasters to exer- cise their programming judgment in good faith, and was not a back door method of depriving broadcasters of dis- cretion.” Second, the relief which the DNC seeks relates to po- litical campaigns and would, in effect, amount to an ex- tension of Section 315 of the Act. Over the years, Con- gress has carefully limited Section 315 and has rejected amendments which would have extended the equal oppor- tunities provisions of Section 315 to spokesmen for can- didates and other election issues.22 When consideration 72105 Cong. Rec. 14457 (1959) (remarks of Senators Pastore, Proxmire and Hartke) ; 105 Cong. Rec. 16231 (1959) (comments of Chairman Harris in response to Congressman Jones of Missouri) ; 105 Cong. Rec. 16227 (1959) (comments. of Congressman Celler). 7S. 6. 71st Cong., 1st Sess. (1929) (equal opportunities for candidates, their spokesmen and political parties) ; H.R. 5716, 71st Cong., 2nd Sess. (1929) (similar) ; S. 1806, 77th Cong., 1st Sess. (1941) (equal opportunities must be afforded opposing parties when public officials discuss public questions); S. 814, 78th Cong., 1st Sess. (1948) (similar); H.R. 3595, 80th Cong., 1st Sess. (1947) (equal opportunities required for candidates, their spokesmen, political parties, when referendum questions are discussed, and for the discussion of differing viewpoints on public questions) ; S. 1333, 80th Cong., 1st Sess. (1947) (similar); H.R. 6949, 81st Cong., 2nd Sess. (1950) (equal opportunities for candidates, their spokes- men, or when referendum questions are discussed), H.R. 5470, 82nd Cong., 1st Sess. (1951) (equal opportunities required for candi- dates or their spokesmen), S. 1379, 82nd Cong., 1st Sess. (1951) (similar), H.R. 7062, 82nd, 2nd Sess. (1952) (similar); S.R. 539, 82nd, 2nd Sess. (1952) (similar); H.R. 11851, 87th Cong., 2nd Sess, (1962) (opportunities for response required when an indi- vidual is subjected to fidicule by a candidate utilizing time pursuant to Section 315); H.R. 7072, 88th Cong. 1st Sess. (1963) (equal opportunities to be afforded opponents when station editorializing favoring one candidate or opposing his opponent) H.R. 7612, 88th Cong. 1st Sess. (1968) (similar to H.R. 11851, 87th Cong. 2nd Sess.) H.R. 10135, 88th Cong. 2nd Sess. ( 1964) (similar to H.R. 7072, 88th Cong., 1st Sess.) H.R. 5414, 89th Cong. 1st Sess. (1965) (similar to H.R. 11851, 87th 2nd Sess.) , Comments of CBS 74 has been given to broadening the provisions of Section 315, Congress has made it clear that Congress itself retains responsibility. In connection with the 1959 amend- ments to Section 315, Congress specifically stated that it intended to continue supervision of the equal opportuni- _ ties area: “The Congress declares its intention to reexamine from time to time the amendment to Section 315 (a) of the Communications Act of 1934 made by the first section of this Act, to ascertain whether such amend- ment has proved to be effective and practicable. (73 Stat. 557% (1959)).” C. The Commission Has Consistently Declared That There Is No Right To Compulsory Carriage. The DNC Request is also fundamentally inconsistent with the concept of licensee responsibility which has long been a root of this Comission’s regulatory policy, as exempli- fied by its 1949 Editorializing Report, 13 F.C.C. 1246, and its 1960 Report and Statement of Policy in the En Bane Programming Inquiry, 25 Fed. Reg. 7291 (August 8, 1960). Thus, in a basic enunciation of its fairness doctrine, the Commission wrote in the Report on Edi- torializing : “Tt should be recognized that there can be no one all embracing formula which licensees can hope to apply to insure the fair and balanced presentation of all quoted above, p. 2. 4 as — 7 Comments of CBS 75 CT hae This was the philosophy too of the Commission in the 1960 En Bane Programing Report: “An examination of the foregoing authorities serves to explain why the day-to-day operation of a broad- cast station is primarily the responsibility of the individual station licensee. Indeed, Congress pro- vided in Section 3(h) of the Communications Act that a person engaged in radio broadcasting shall not be deemed a common carrier. Hence, the Com- mission in‘administering the Act and the courts in interpreting it have consistently maintained that responsibility for the selection and presentation of | broadcast -material ultimately devolves upon the in- ‘ dividual station licensee, and that the fulfillment of the public interest requires the free exercise of his independent judgment. * * .- * “Broadcasting licensees must assume responsibility for all material which is broadcast through their facilities. This duty is personal to the licensee and may not be delegated. He is obligated to bring his positive responsibility affirmatively to bear upon all who have a hand in providing broadcast matter for transmission through his facilities so as to as- sure the discharge of his duty to provide acceptable program schedule consonant with operating in the public interest in his community.” Moreover, the very issue presented by the DNC Request was the subject of a complaint to the Commission in 1965 by the Washington Women’s Strike for Peace involving a policing of Station WTOP in Washington apparently similar to that complained of in the DNC Request. The group had complained about the station’s refusal to sell its spot announcements on the subject of the Vietnam war and alleged that such denial violated the First Amendment and in any case was “contrary to policies of this Commission.” Comments of CBS 76 After noting that “it is not the policy of the licensee to sell spot announcements concerning controversial public issues, but rather, when they are of sufficient interest, the licensee deals with them in news and public affairs programs,” the Commission wrote: “With respect to the refusal of the station to sell time for spot announcements, under the Communi- eations Act, the selection and presentation of broad- cast material are the responsibilities of the individ- ual station licensees, and Section 826 of the Act expressly prohibits the exercise of censorship powers by the Commission. That Section provides ...-- “Thus, the Act makes it clear that the Commission has no power to require a broadcaster to carry or refrain from carrying any particular program, or to prescribe the content of any program presented over the air. Moreover, Section 3(h) of the Act provides that ‘. . . a person engaged in radio broad- easting shall not, insofar as such person is SO en- gaged, be deemed a common carrier.’ In McIntire v. Wm. Penn. Broadcasting Company, 151 F. 2d 597, the U.S. Court of Appeals, Third Circuit, stated, in part, that: ‘For a radio station to refuse to sell time in which an individual may broadcast his views may be censorship but we know of no law which prohibits such a course. As we have indicated, a radio broadcasting station is not a public utility in the sense that it must permit broad- casting by whoever comes to its microphone.’ “In view of the foregoing, it does not appear that Commission action concerning radio station WTOP is warranted in this instance.” Although the DNC is “mindful of the provisions of Sec- tions 3(i) [sic] and 326 of the Communications Act and of rulings [such as the Women’s Strike letter] : Comments of CBS 77 (DNC Request, p. 22), these statutory sections and rul- ings are dismissed with the remarkable assertion: “The response to these matters insofar as they pertain to this request is that they all predate the Red Lion decision.” (DNC Request, p. 23). Not so easily dismissed, however, is the Comission’s decision of March 24, 1970, which involved the question of compulsory carriage in connection with the right of the ABC Television Network to delete certain remarks made by Judy Collins on The Dick Cavett Show. In that ruling, it is clear that the Com- mission continues to recognize (after Red Lion) that the licensee has considerable discretion in fulfilling the obligations of the fairness doctrine, including the selec- tion of issues, formats, and the appropriate spokesmen. Thus, the Commission stated in its Judy Collins letter: “Except for broadcasts by legally qualified candi- dates for public office, where the licensee is enjoined from censoring, the licensee is responsible for all material broadcast over his facilities, and thus can and does edit and select the material to be presented. Each licensee makes thousands of programming de- cisions a year—that some material “works,” some does not fit in a particular program, etc. “That the material in question involves discussion of a controversial issue does not take it outside the scope of the licensee’s editing and selection process. The licensee must devote a reasonable amount of time to the discussion of controversial issues of pub- lic importance, and cannot exclude from the airways views with which he disagrees. Red Lion Broad- casting Co. v. FCC, 395 U.S. 367 (1969) ; Report on Editorializing by Broadcast Licensees, 13 FCC 1246 (1949). As the Supreme Court stated in Red Lion, the licensee must . . . conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his com- munity and which would otherwise, by necessity, be Comments of CBS | | 78 barred from the airways. But he is not a common carrier (see Section 3 (h) of the Communications Act) and can exercise judgment as to appropriate tt spokesmen, time, or manner of presentation of the issue. ; |: } t } TT Sone a Ae Carat “This last point is, of course, crucial. A person or group cannot demand that as a matter of right its message be presented over the station’s facilities. Melntire v. Wm. Penn Broadcasting Co., 151 F. 2d 597 (3rd Cir. 1945). The licensee does not have to present programming material which he believes ei- ther will not serve the needs or interests of his lis- teners or will not do so as well as other program: - ming material. Report and Statement of Policy Re: Programming Inquiry, 20 Pike & Fischer, Radio Regulations, 1902, 25 F.R. 7291. He is thus con- stantly called upon to make choices between types of programming, and then, within each type, to Furthermore, in considering the DNC’s contention that the Commission’s fairness policies and rulings which pre- date Red Lion are no longer of decisional significance, it should be emphasized that the very first paragraph of the Court’s opinion in Red Lion states: “The Federal Communications Commission has for many years imposed on radio and television broad- casters the requirement that discussion of public is- sues be presented on broadcast stations, and that each side of those issues must be given fair cover- age. This is known as the fairness doctrine, whi originated very early in the history of broadcasting and has maintained its present outlines for some Comments of CBS 79 time. It is an obligation whose content has been de- fined in a long series of FCC rulings in particular cases, and which is distinct from the statutory re- quirement of § 315 of the Communications Act that equal time be allotted all qualified candidates for wey office.” 395 U.S. at 369-70. [Footnote omit- ] Similarly, the current viability of the Commission’s fair- ness policies and rulings was explicitly confirmed by the Court’s description of the 1959 Congressional action amending Section 315 of the Communications Act as a ratification of long standing FCC administrative con- struction of the fairness obligations. Thus the DNC is clearly wrong in asserting that the Court in Red Lion contemplated the abandonment of tra- ditional FCC fairness policies and the adoption by the FCC of a common carrier theory as set forth in the DNC Request. To the contrary, the decision ratified long- standing FCC policies in this area. IV. CONCLUSION CBS intends to continue to promote robust and rational discussions of issues of public importance with the widest possible dissemination of facts and contrasting opinions. As a member of the “most powerful communication media in our democracy” we understand our obligations to the public and reject the notion that the ability to pay should be a factor in the exchange of ideas on controversial public issues. We disagree that anyone with a viewpoint and a dollar in hand ought to be able to purchase broad- cast time to propagandize a particular view. Stripped of all its rhetoric, that is the thrust of the DNC’s Re- quest, CBS submits that its policy and practice insure compre- hensive coverage of controversial issues—with ample op- Comments of CBS 80 portunity for a full and fair discussion of a cross section of opinion. The central guiding force in our various news formats is not ratings or cost, but is the apprecia- tion that the public has a right to know—to be informed of the news of the day—that somehow through the sifting and winnowing of fact and opinion, truth will emerge and citizens will be better able to exercise their responsi- bilities. At times our news broadcasts are unpopular and criti- cized, but as Dr. Frank Stanton, President, CBS, re cently stated: « |. the fact is that tranquility is not the order of the day. Ours is a questioning, searching society— unsure, groping, running to extremes, abrasive, often violent even in its reactions to the violence of others. one way or another. It is the duty of the media to report all this as faithfully as humanly possible—not to hide it from view or to sugar-coat the facts.” This is our call to action, a mandate that has always guided CBS, and that is fully consistent with the Com- mission’s goals. We therefore believe that the Commission should decline to make the ruling requested by the DNC. Respectfully submitted, /s/ Robert V. Evans Wilmer, Cutler & Pickering of Counsel Attachments Comments of CBS 81 CBS NEWS EXHIBIT Comments of CBS ; ¥ a 4 5 | ANALYSIS OF CBS EVENING NEWS COVERAGE OF INDOCHINA WAR AND DOMESTIC REACTION IN THE MONTHS OF MARCH, APRIL, AND MAY 1970 2 Mins:Secs Sunday, March 1, 1970 Mudd: Enemy mortars hit Luang Prabang, 00 44 Laos. B-52s hit Ho Trail. Shepard & Threlkeld: Report from Queson Val- 02:45 ley, So. Vietnam, where six marines are ac- ‘eused of murdering civilians at Son Trang or Thanh Tra. Appearing: Lt. Col. Charles Cooper, 01:30 SOF,* “Civilians had attacked troops in past.” Monday, March 2, 1970 Cronkite: Antiwar movement leaders suggest 00:20 following letter of law,~ burying Selective Service in paper. Cronkite: Sen. Mansfield again criticizes US in 00:22 Laos. Cronkite: Report No. Vietnamese may boycott 00:19 Paris Peace talks. Cronkite: Most of 43,000 marines in Vietnam 00:15 to be withdrawn by mid-July. Cronkite: Guerrillas blow up bridge on High- 00:16 way One in Vietnam. Cronkite: Tran Ngoe Chau’s re-trial begins in 00:24 Saigon. *SOF—Sound Appearances on Newsfilm. Comments of CBS 83 Mins:Secs Monday, March 2, 1970 (Continued) Benti: Report on dismal understaffing in Veter- 04:48 ans Hospitals, low quality care given to Viet- - nam vets. Appearing: Patient Matthew Raible, Dr. Albert Tomasulo, VA’s Don- ald Johnson, Rep. Olin Teague, Patients Robert Muller, Patrick Sheehan, Ron Kovic. Tuesday, March 3, 1970 Mudd: Administration to release transcript of 01:33 Senate hearings on Laos. | Appearing: Melvin Laird, SOF, “No 00:24 buildup in Laos.” Sen. McGovern, SOF, “Laird mis- 00:48 leading—special forces in Laos.” Cronkite: Laotian premier and military high 00:15 command in emergency meeting in Vientiane. Cronkite: So. Vietnam troops claim they killed 00:12 323 enemy in Mekong Delta in three-week operation. Cronkite: Americans find huge enemy cache of 00:12 rice near Cambodia. Sargent: Survivors of Tet offensive in Hue have 01:15 memorial service for massacre victims. Appearing: Maj. Robert Dash, SOF, 00:16 calls it massacre. Teacher Nguyen Duc Mai, SOF, 00:18 citizens now scared of VC. Comments of CBS 84 Mins:Secs Wednesday, March 4, 1970 Cronkite: Sen. Ribicoff’s new attack on black market money deals in SE Asia. Cronkite: Souvanna Phouma says Laos will fall to N. Vietnam unless US continues bombing. Kalb & Mudd: White House launches new effort to calm concern about Laos involvement. Appearing: Laird, SOF, “No plans to use US ground forces in Laos.” Sen, Fulbright, SOF, Senate appre- hensive about troops in Laos. Thursday, March 5, 1970 Cronkite: Last week’s Vietnam casualty figures. Threlkeld: Trans Ngoc Chau convicted again in - gecond trial, gets 10 years. Appearing: Tran Ngoc Chau, SOF, “tT am a nationalist.” Cronkite: Paris Peace Talks—Communists charge escalation in Laos. Sen. Muskie says Administration follows end- less path to victory in Vietnam. Friday, March 6, 1970 Rather: Nixon issues statement giving all facts on Laos. Kalb: Washington officials fear possible involve- ment of US in Thailan [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0152%3A01. Public record. Not legal advice.