>From: Al Geiersbach <Bob.Sillyheimer@mixcom.mixcom.com>
>Date: Wed, 24 Aug 94 19:57:11 CDT

In 1994, Senate bill S 333 and an equivalent House bill attempt to
re-instate the Fairness Doctrine (in broadcasting), which was an Federal
Communications Commission regulation guaranteeing opposing sides of
important public issues equal opportunity for presenting their points of
view on issues the station might choose to present. Congress passed
legislation to codify the doctrine in 1987, which President Reagan vetoed.
After the veto the FCC revoked its rule which had established the doctrine.

Given the large margins (see below) by which the 1987 measure passed
Congress, one would think it a snap to enact the legislation with a
Democrat in the White House. However, Rush Limbaugh and right wing
religious broadcasters have mounted a campaign against what they call the
"Hush Rush" law, so it is being given a very low priority, and even some
very liberal senators such as Russ Feingold are taking positions against
it.

The many calls generated by the Limbaugh radio program and by the religious
broadcasters have apparently not been matched by any display of public
support.

It is in the hope of reviving the Fairness Doctrine while a Democrat is
still in the White House to sign it, that this information is being posted.

The Fairness Doctrine would allow gay and lesbian voices to be heard on
radio and television stations that now criticize and attack without
providing an opportunity for defense, that spread lies and defamation at
will.

The Fairness Doctrine is VITAL in correcting the hateful propaganda aganist
gays and lesbians.

A Legal Analysis Of The Equal Time Rule
After The FCC's Abolition Of The Fairness Doctrine 87-936A
Thomas M. Durbin, Legislative Attorney, American Law Division 
November 23, 1987

ABSTRACT

This report analyzes the equal time rule after the abolition of the
fairness doctrine by the Federal Communications Commission. The
distinction between the equal time rule and the fairness doctrine is made. 
The history, background, and the application of the equal time rule in
specific situations are developed; and two recent federal court decisions
concerning the equal time rule are analyzed. 


A LEGAL ANALYSIS OF THE EQUAL TIME RULE AFTER
THE FCC'S ABOLITION OF THE FAIRNESS DOCTRINE

I. Introduction: FCC'S Abolition Of The Fairness Doctrine

On August 4, 1987 the Federal Communications Commission (hereafter referred
to as FCC or Commission) abolished the so-called fairness doctrine in its
Memorandum Opinion and Order in the case of Syracuse Peace Council v.
Televisian Station WTVH Syracuse, New York, which is also known as Meredith
Corporation v. FCC.[l] The FCC concluded that its fairness doctrine
regulations and rulings during a thirty-eight year period essentially
chilled the First Amendment speech rights of broadcasters and should
therefore be abolished. The FCC's action was in response to a remand order
in January 1987 of the United States Court of Appeals for the District of
Columbia Circuit in the case of Meredith Corp. v. FCC in which the Court
instructed the FCC to resolve the constitutional issue concerning the
fairness doctrine. In the Meredith case, the Court found that the FCC in
enforcing the fairness doctrine against the Meredith Corporation failed to
give adequate consideration to the broadcast licensee's arguments that the
fairness doctrine violated its First Amendment free speech rights.[2]

The August 4, 1987 ruling of the FCC that abolished the Commission's
fairness doctrine regulations and rulings did not affect the equal
opportunities doctrine (also known as the equal time doctrine or equal time
rule) regarding political office candidates since that doctrine has been
enacted as a federal statute and thus cannot be abolished by a federal
agency ruling.[3] Unlike the fairness doctrine, the equal opportunities
doctrine relates solely to the use of broadcast facilities by candidates
for public office. Besides certain exceptions relating to certain
news-type broadcast programs, the equal opportunities doctrine provides
that, if a broadcast licensee permits a person who is legally qualified for
public office to use a broadcast station, the licensee shall afford equal
opportunities to all other such candidates for that office in the use of
the station. The fairness doctrine, on the other hand, is concerned with
the broader issue of affording a reasonable opportunity for the
presentation of an opposing or contrasting viewpoint when a controversial
issue of public importance is aired. To properly understand the Equal time
rule, it is necessary to make this fundamental distinction between the
equal time rule and the fairness doctrine. And, since the equal time rule
is a federal statute and the fairness doctrine is not, the FCC was not free
to declare the equal time rule unconstitutional and abolish it as the FCC
did with the fairness doctrine by its ruling on August 4, 1987 in its
Memorandum Opinion and Order.[4]

II. History And Application Of The Equal Time Doctrine 

The equal time doctrine was first enacted in section 18 of the Radio Act of
1927.[5] The equal time provision was later incorporated in the
Communications Act of 1934 (hereafter referred to in this report as
Communications Act or Act).[6] In 1959, the equal time rule was amended, to
include the four news-event exceptions.[7] The equal time doctrine as it
was incorporated in the Communications Act of 1934 and as later amended, is
stated as follows:

If any Licensee shall permit any person who is a legally qualified
candidate for any public office to use a broadcasting station, he shall
afford equal opportunities to all such candidates for that office in the
use of such broadcasting station: Provided, That such licensee shall have
no power of censorship over the material broadcast under the provisions of
this section. No obligation is imposed under this subsection upon any
Licensee to allow the use of its station by any such candidate. Appearance
by a Legally qualified candidate on any--

(1) bona fide newscast.

(2) bona fide news interview.

(3) bona fide news documentary (if the appearance of the candidate is
incidental to the presentation of the subjects covered by the news
documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limits
to political conventions and activities incidental thereto), shall not be
deemed to be use of a broadcasting station within the meaning of this
subsection.[8]

The phrase "equal time" is not used in the statutory language, but rather
the phrase "equal opportunities" is used. Equal opportunities is a more
precise description since equal opportunities not only includes equal time
but also includes the right to obtain broadcast time by a candidate in the
same time period which would have the equivalent audience as that time
period which was

allotted to an opposing candidate who had obtained air time. For the
purposes of this report the phrase "equal time rule" and "equal
opportunities doctrine" will generally be used interchangeably to refer to
those provisions in section 315(a) of the Communications Act of 1934, as
amended.

The purpose of the equal time rule is primarily to prevent broadcasters
from discriminating against certain political office candidates by allowing
air time to some and denying it to others. The equal time rule essentially
provides an equal opportunity to a legally qualified candidate to obtain
air time from a broadcaster when there has been a prior use by an opposing
candidate.[9] Since the enactment of the equal time rule, certain issues
have arisen in the application of that rule such [sic] : (1) who is a
Legally qualified candidate?; (2) what is a use of a broadcast station by a
candidate?; (3) how much time does the opposing candidate have in which to
make an equal time request?; and (4) when do political editorials and
personal attacks trigger equal opportunities for political office
candidates?

A. Legally Qualified Candidate

The FCC has defined a "legally qualified candidate" for the purposes of
political broadcasts as a candidate who would meet the following three
requirements: (1) that the candidate has publicly announced his or her
intention to be a candidate for nomination or election to public office;
(2) that the candidate is eligible and qualified under applicable local,
state or federal law to hold the office that is sought, and (3) that the
candidate has qualified for a place on the ballot under applicable state
laws.[10] Certain candidates such as write-in candidates must provide a
substantial showing of a bona fide candidacy which would require evidence
that the candidate is engaged in certain activities which are commonly
associated with political campaigning such as, making campaign speechs
[sic], distributing campaign literature, establishing a political
committee, setting up a campaign headquarters, and other similar campaign
related activities.[11]

A broadcast station may not deny equal opportunities to a candidate because
the station believes such candidate may not be nominated or elected.[12]
The equal opportunities requirement applies to all legally qualified
candidates seeking nomination and election to the same office. The equal
opportunities requirement is not restricted to significant candidates or to
major party candidates. Consequently, many fringe candidates, minor party
candidates, and independent candidates may be entitled to equal
opportunities when there is a non-exempt use of a broadcast station by a
competing candidate. Such a situation provides a disincentive for broadcast
licensees to provide free broadcast time to significant candidates since
such use would trigger in turn free equal opportunities for all other
candidates including fringe and minor party candidates seeking the same
office.[13]

B. Use of a Station

There obviously has to be a use of a broadcast station by a candidate far
public office before equal opportunities by other competing candidates
would be required. What constitutes a use for the purposes of equal
opportunities has been the subject of much inquiry by the FCC. Generally,
any broadcast or cablecast of a candidate for public office, no matter
whether it is the candidate's voice or picture, constitutes a use for the
purpose of the equal opportunities doctrine if such use was to the degree
that the candidate would be identified by the listeners or viewers.[14]
However, there are four types of news broadcasts which are exempted by
section 315 of the Communications Act: (1) bona fide newscast; (2) bona
fide news interview, (3) bona fide news documentary, and (4) on-the-spot
coverage of bona fide news events.[15]

Since only an appearance by a legally qualified candidate is a use, an
appearance by a supporter of a candidate would not be a use since it was
the intent of Congress that the equal opportunities doctrine would apply
only to personal use by candidates themselves.[16] Most appearances by a
candidate, even though his or her candidacy would not be the topic of
discussion, and even though the broadcast would be made by a candidate in
some other capacity than as a candidate, would be considered a use and
would accordingly entitle his or her opponent to equal opportunities except
for the four news-type exemptions. There has been a considerable amount of
litigation in the FCC and the federal courts in regard to what constitutes
a use or news-type exemption and what does not in determining whether the
equal time rights of opponents are triggered under section 315(a) of the
Act.[17]

C. Time Of Request For Equal Opportunities--The Seven-Day Rule 

A candidate who wants equal opportunities because his or her opponent made
a broadcast or cablecast must make his or her request of a broadcast
licensee within seven days of such broadcast or cablecast. This is known
as the seven-day rule.[18] A station does not have the duty to notify a
candidate that his or her opponent has asked for or has obtained broadcast
or cablecast time. Broadcast stations are required to keep a file of: (1)
what candidates have requested time, (2) whether they received time or not,
and (3) whether it was free or paid time. The burden is on the candidates
and not on the station to keep themselves informed about any broadcasts or
cablecasts of their opponents. Stations and cable systems must keep a
"political file" which they must make available to candidates and their
campaign workers for public inspection during regular business hours so
that they can keep track of what opposing candidates are doing in regard to
broadcasts and cablecasts.[19] 

D. Political Editorials And Personal Attacks

The FCC has adopted rules concerning political editorials and personal
attacks. These rules require that broadcast stations that air political
editorials and personal attacks offer air time those who are adversely
affected by such broadcasts in order to present their side of the case
either in person or through a spokesperson.

The FCC's political editorial rule is stated as follows:

(a) Where a licensee, in an editorial,

(1) Endorses or,

(2) Opposes a legally qualified candidate or candidates, the licensee
shall, with 24 hours after the editorial, transmit to, respectively,

(i) The other qualified candidate or candidates for the same office or,

(ii) The candidate opposed in the editorial,

(A) Notification of the date and the time of the editorial,

(B) A script or tape of the editorial and

(C) An offer of reasonable opportunity for the candidate or a spokesman of
the candidate to respond over the licensee's facilities. Where such
editorials are broadcast on the day of the election or within 72 hours
prior to the day of the election, the licensee shall comply with the
provisions of this paragraph sufficiently far in advance of the broadcast
to enable the candidate or candidates to have a reasonable opportunity to
prepare a response and to present it in a timely fashion.

(b) Inasmuch as noncommercial educational stations may not engage in
editorializing nor may support nor oppose any candidate for political
office (section 399, Communications Act), the provisions of paragraph (a)
of this section, do not apply to such stations.[20]

Under the FCC political editorial rule, a broadcast licensee must within
twenty-four hours after the editorial transmit to the adversely affected
candidate or candidates for the same office: (1) a notification of the
date and time of the editorial; (2) a script or tape of the editorial, and
(3) a reasonable opportunity for the candidate or spokesperson of the
candidate to respond in an appropriate broadcast. The FCC has determined
that, in a situation involving a political editorial, a Licensee is not
always required to permit a candidate during a campaign period to respond
in person but rather through a spokesperson, since to do so would trigger
the equal opportunities requirement for other candidates for the same
office.[21]

Moreover, the FCC has provided that, when such editorials are broadcast
within 72 hours of an election day, the broadcast stations must give notice
to an adversely affected candidate or candidates sufficiently far in
advance of the broadcast of the political editorial so as to enable such
candidate or candidates to have a reasonable opportunity to prepare a
response and to timely present it.[22] In enforcing the political editorial
rule, some of the questions that have been addressed by the FCC are: (1)
what is a political editorial? (2) what is a reasonable opportunity to
respond?; and (3) when does an editorial by a broadcast station endorse or
oppose a candidate?[23]

The FCC personal attack rule is stated as follows:

(a) When, during the presentation of views on a controversial issue of
public importance, an attack is made upon the honesty, character, integrity
or like personal qualities of an identified person or group the Licensee
shall, within a reasonable time and in no event later than one week after
the attack, transmit to the persons or group attacked:

(1) Notification of the date, time and identification of the broadcast;

(2) A script or tape (or an accurate summary if a script or tape is not
available) of the attack; and

(3) An offer of a reasonable opportunity to respond over the licensee's
facilities.

(b) The provisions of paragraph (a) of this section shall not apply to
broadcast material which fall within one or more of the following
categories:

(1) Personal attacks on foreign groups or foreign public figures:

(2) Personal attacks occurring during uses by legally qualified candidates.

(3) Personal attacks made during broadcasts not included in paragraph
(b)(2) of this section and made by legally qualified candidates, their
authorized spokespersons, or those associated with them in the campaign, on
other such candidates, their authorized spokespersons or persons associated
with the candidates in the campaign; and

(4) Bona fide news interviews, and on-the-spot coverage of bona fide news
events, including commentary or analysis contained in the foregoing
programs.

(c) The provisions of paragraph (a) of this section shall be applicable to
editorials of the Licensee, except in the case of noncommercial,
educational stations since they are precluded from editorializing (section
399(a), Communications Act).[24]

Under the personal attack rule, an exception is made for personal attacks
by political candidates and their campaign associates against other
political candidates and their associates. Because of this exception,
personal attack complaints by political candidates and their associates
often do not occur during political campaigns. Most of the personal attack
complaints by candidates and their associates would then occur after an
election and outside of a campaign period due to this exception.

In 1967 the FCC adopted amendments to these rules that clarified and made
more precise the obligations of broadcast stations when personal attacks
have been aired against political candidates.[25] The FCC asserted that, in
the case of a personal attack on a political candidate, the broadcast
station may impose reasonable limitations on the reply such as requiring a
spokesperson for the candidate to reply so as to avoid triggering the equal
opportunities requirement.[26]

When the FCC in a 4-0 decision unanimously voted to abolish the fairness
doctrine on August 4, 1987, neither the political editorial rule nor the
personal attack rule was abolished. However, the ruling by the FCC on
August 4, 1987 would seem to put these rules in some sort of constitutional
jeopardy since they are derived from the fairness doctrine and would seem
to have the same First Amendment constitutional problems according to the
Commission's rationale. It should be noted that the Supreme Court in the
1969 decision in

Red Lion Broadcasting Co. v. FCC upheld the constitutionality of these two
rules against First Amendment challenges. However, in the 1984 Supreme
Court decision in FCC v. League of Women Voters, the Court noted that it
might reconsider the constitutionality of the fairness doctrine if it were
given some signal by the FCC or Congress that technological advances in
broadcasting required a review of that doctrine. And any demise of the
fairness doctrine only jeopardizes equal time if a federal court adopts the
constitutional arguments used by the Commission.[27]

III. Recent Federal Court Decisions Concerning The Equal Time Doctrine

A. TRAC v. FCC, 801 F.2d 501 (D.C. Cir. 1986) cert. den. 55 U.S.L.W. 3819
(1987) -- Equal Time and Teletext Technology

In Telecommunications Research And Action Center v. FCC, the United States
Court of Appeals for the District of Columbia Circuit considered inter alia
the issue of whether the equal opportunities doctrine should be applicable
to the new broadcasting and cablecasting technology called teletext which
transmits textual and graphic material to television screens.[28] The FCC
had concluded that since teletext technology did not constitute traditional
broadcast services under the Communications Act of 1934, as amended,
broadcasting stations, therefore, would not be required to grant equal
opportunities to competing candidates if a use occurred. The FCC's
position was that the new teletext technology was essentially incapable of
a use as that term had evolved under the equal opportunities doctrine.[29]
The FCC decision not to apply equal opportunities to the teletext
technology was challenged on appeal by the petitioners.

The Court of Appeals concluded that teletext technology constitutes
traditional broadcast services within the meaning of the Communications Act
of 1934, as amended, and that such technology was capable of a use for the
purposes of the equal opportunities doctrine. The Court concluded that
teletext technology falls within the definition of radio communication as
it is defined in the Communications Act.[30] Teletext technology was
capable of a use for equal opportunities purposes[31] according to the
Court since a "use" should include transmission of personal statements,
reprints of speeches, and policy papers of candidates. Moreover, teletext
technology has the capability of high-resolution graphics which can
transmit recognizable images of candidates. Such transmission of a
pictorial representation of a candidate would constitute a use since it
would satisfy the requirement in the definition of a "use" that the
candidate be identified by voice or picture. Accordingly, the Court
concluded that the equal opportunities doctrine could be applicable to
teletext technology.[32]

B. Branch v. FCC, 524 F.2d 37 (D.C. Cir. 1987)--Equal Time Rule And The
Candidacy Of A News Reporter

The United States Court of Appeals for the District of Columbia Circuit
held that a television news reporter who wished to run for office would
obligate the television station for whom he worked to provide equal
opportunities to political opponents.[33] The petitioner was a television
news reporter for station KOVR in Sacramenco, California who decided to run
for a town council office. The television station calculated that it would
be required to provide approximately 33 hours of broadcast time if he were
to continue as a TV newscaster. Since the station was unwilling to provide
such equal opportunities, the reporter was requested to take an unpaid
leave of absence during the campaign period. The reporter, however,
terminated his candidacy and sought a declaratory ruling from the FCC which
dismissed the petition on the ground that news reporter candidacies do not
have any special exemption under the equal opportunities provision of
section 315(a) of the Communication's Act which would relieve a broadcast
station from its equal time obligations to other candidates.[34]

The Court of Appeals in Branch v. FCC denied petition for review. In
examining the Legislative history of the 1959 amendments to the
Communications Act which provided for the four news-event exemptions to the
equal time statute, the Court concluded that section 315(a) of the Act
required equal opportunities whenever any candidate appeared on the air
unless the candidate was the subject of a routine news broadcast. The
purpose of the 1959 amendments was to protect the ability of a broadcast
station to air news events

concerning political office candidates without the fear of triggering the
equal opportunities law of section 315(a) every time they did so.[35]

The Court concluded that the phrase of section 315(a) of the Act which
reads:..."[a]ppearance by a legally qualified candidate on any [news
program]," did not provide the broadcasting station with an exemption from
the equal opportunities doctrine in regard to broadcast appearances by
candidates for public office who were news reporters. The Court concluded
that the FCC's position in rejecting the petition of the news reporter was
correct and that the congressional intent in regard to news-event
exemptions to section 315(a) and the legislative history of that section
support the Commission's decision.[36]

The Court addressed certain constitutional issues that were raised
concerning the equal time rule of section 315(a). First, the Court
concluded that the equal time rule did not unconstitutionally impose an
undue burden on the news reporter's ability to run for office on the ground
that he could not perform his normal work as a news reporter during the
time he ran for office. The Court concluded that the burdens that are
imposed by the equal time Law of section 315(a) of the Communication's Act
were justifiable since they were reasonable and necessary governmental
interests to encourage political discussion and to prevent an unfair and
unequal use of broadcast time.[37]

Second, the Court concluded that the equal time rule does not violate the
news reporter's First Amendment rights. The Court asserted that the First
Amendment freedom of the press is not as strong for the broadcast media as
it is for the print media. According to the Court in Branch v. FCC, the
Supreme Court in the 1969 decision in Red Lion Broadcasting Co. v. FCC[38]
held that the equal opportunities doctrine of section 315(a) as well as the
FCC's fairness doctrine were based an the power of the federal government
to regulate a scarce resource which is found in the scarcity of broadcast
frequencies.[39] But, as discussed above, the Supreme Court in the 1984
League of Women Voter's decision noted that it might reconsider a review of
the constitutionality of the fairness doctrine if some indication would be
given by the FCC or Congress that broadcasting technology had advanced to
the degree that such a review would be necessary.

IV. Legislative proposals Concerning The Repeal Of The Equal Opportunities
Doctrine

In the 100th Congress, first session, most of the legislative proposals in
the communications area have focused on the codification of the fairness
doctrine[40] rather than the equal opportunities doctrine which is already
codified in section 315(a) of the Communications Act of 1934, as amended. 
Two proposals in the 100th Congress, first session would provide for the
repeal of the equal opportunities doctrine of section 315(a): (1) S. 22,
First Amendment Clarification Act of 1987 introduced by Senator Proxmire on
January 6, 1987 and (2) S. 827, Freedom of Expression Act of 1987
introduced by Senator Packwood on March 24, 1987. Neither of these bills
has had any legislative action.

The Federal Communications Commission has urged Congress to repeal the
equal opportunities doctrine as part of their program to deregulate the
broadcast industry. The FCC has concluded that the proliferation of
available radio stations and TV stations in comparison to the number of
stations when the doctrine was enacted as well as new technological
advances in cablecasting, UHF programming, and satellite transmissions make
the doctrine unnecessary since 

the new stations and the new technology would bring about a variety of
political viewpoints and insure a dialogue of diverse political
opinions.[41]

Broadcasters have argued for the repeal of the equal opportunities doctrine
since it would grant them greater flexibility in their campaign coverages
and would also benefit the public by allowing for more effective
presentation of the candidates and the issues without fear of equal time
requests from other competing candidates.[42]

Opponents to the repeal of the equal opportunities doctrine argue that
similar conditions that made Congress in 1927[43] originally enact the
equal opportunities doctrine in order to protect the ability of the radio
audience to hear all sides of a political campaign exist today such as: 
(1) a fear that broadcasters would grant preferential treatment to favored
candidates, charismatic candidates, and major party candidates to the
detriment of other candidates such as minor party and independent
candidates and (2) a fear of governmental control of access to certain
licensees' audiences by the political party in power since certain
broadcast stations whose licenses would be up for renewal may tend to favor
the candidates of the political party of the administration in power over
other candidates.[44]

(signed)

Thomas M. Durbin
Legislative Attorney
American Law Division
November 23, 1987

FOOTNOTES:

[1] Syracuse Peace Council v. Television Station WTVH, New York, 99 FCC 2d
1389 (1984), reconsideration denied FCC 85-571, remanded sub nom. Meredith
Corp. v. FCC, 809 F.2d 863 (D.C. Cir. 1987). Memorandum Opinion And Order,
FCC 87-266 (Aug. 4, 1987).

[2] 809 F.2d at 865.

[3] The equal opportunities doctrine is codified at 47 U.S.C. ' 315(a); see
also 47 C.F.R. ' 73.1940(g)(1).

[4] Memorandum Opinion And Order, FCC 87-266 (Aug. 4, 1987) at pp. 73-74.

[5] Ch. 169, ' 18 44 Stat. 1170 (1927). Section 18 provided that:

If any licensee shall permit any person who is a legally qualified
candidate for any public office to use a broadcasting station, he shall
afford equal opportunities to all other such candidates for that office in
the use of such broadcasting station and the licensing authority shall make
rules and regulations to carry this provision into effect: Provided, That
such licensee shall have no power of censorship over the material broadcast
under the provisions of this paragraph. No obligation is hereby imposed
upon any licensee to allow the use of its station by any such candidate.

[6] Ch. 652, ' 315, 48 Stat. 1088.

[7] Pub. L. No. 86-274, ' 1, 73 Stat. 557 (1959).

[8] 47 U.S.C. ' 315(a).

[9] See Kwartler, Political Broadcasting By Independent Committees: A
Proposal For Eliminating The Federal Communications Commission's PACCESS
Doctrine, 64 Boston Univ. L. Rev. 625, 634 (1984).

[10] 47 C.F.R. ' 73.1940(a)(1)(2)(3)(4)(1986).

[11] 47 C.F.R. ' 17940(a)(5) (1986).

[12] Columbia Broadcasting System, Inc., 40 FCC 244 (1952).

[13] S. Brotman, Political Broadcasting After The Aspen Ruling: 
Legislative Reform Of Section 315(a) Of The Communications Act Of 1934, 13
Univ. of Mich. J. of Law Reform 61-62 (Fall 1979).

[14] FCC, Primer on Broadcasts By And About Candidates, reprinted in
Campaign Practices Reports, Congressional Quarterly, No. 105, March 1987 at
8:48.

[15] 47 U.S.C. ' 315(a).

[16] Felix v. Westinghouse Kadio Stations, Inc., 186 F.2d 1, 5 (3rd
Cir.1950) cert. den. 341 U.S. 909 (1951).

[17] FCC, Primer, supra at 8:48-8:50.

[18] See 47 C.F.R. ' 73.1940(e) which states:

"A request for equal opportunities must be submitted to the licensee within
1 week of the day on which the first prior use, giving rise to the right of
equal opportunities, occurred: Provided, however, that where the person
was not a candidate at the time of such first pior [sic] use, he shall
submit his request within 1 week of the first subsequent use after he has
become a legally qualified candidate for the office in question."

[19]FCC, Primer, supra at 8:70-8:71.

[20] 47 C.F.R. ' 73.1930 (1986).

[21] FCC Primer, ' primer at 8:71. And see, In The Matter of the Amendment
of Part 73 Of The Rules, 8 FCC 2d 721, 727 (1967).

[22] 47 C.F.R. ' 73.1930 (1986).

[23] See FCC, Primer at 8:71-8:73 which refers to many FCC decisions which
answer many specific aspects of these questions in particular situations
involving political editorials.

[24] 47 C.F.R. ' 73.1920 (1986).

[25] In The Matter of Amendment Of Part 73 Of The Rules To Provide
Procedures In The Event Of A Personal Attack Or Where A Station
Editorializes As To Political Candidates, 8 FCC 2d 721 (1967).

[26] Id., 727.

[27] See Red Lion Broadcastling Co. v. FCC, 395 U.S. 367 (1969) and FCC v.
League of Women Voters 468 U.S. 364, 378-379, n. 12 (1984). On August 4,
1987, the FCC general counsel, Diane S. Killory asserted that the demise of
the fairness doctrine threatened two other rules, the political editorial
rule and the personal attack rule since they were derived from the fairness
doctrine. See Robert D. Hershey, Jr., FCC Votes Dawn Fairness Doctrine In A
4-0 Decision, New York Times, Aug. 5, 1987, pp. Al, C26.

[28] 801 F.2d 501, 502 (D.C. Cir. 1986) cert. den. 55 U.S.L.W. 3819 (1987).

[29] Id., 513-515.

[30] "Radio Communication" is defined in section 153(b) of the Act as
follows:

"...the transmission by radio of writing, signs, signals pictures, and
sounds of all kinds, including all instrumentalities, facilities,
apparatus, and services (among other things, the receipt, forwarding, and
delivery of communications) incidental to such transmission." (47 C.F.R. '
153(b)(1986).

[31] The FCC had defined a use as follows:

"In the case of sports [sic], if a candidate makes any appearance in which
he is identified or identifiable by voice or picture, even if it is only to
identify sponsorship of the spot [sic], the whole announcement will be
considered a use. In the case of a program, the entire program is a use if
the candidate's personal appearance(s) is substantial in length, integrally
involved in the program, and where the program is under the control and
direction of the candidate." (1978 political Broadcasting Primer, 69 FCC
2d at 2245).

[32] 801 F.2d at 515-516.

[33] Branch v. FCC, 814 F.2d 37, 47 (D.C. Cir. 1987), on appeal to Sup. Ct.
(certiorai [sic] requested) 56 L.W. 3322.

[34] 824 F.2d at 39.

[35] Id. at 44-45.

[36] Id., 47.

[37] Id., 49. Cf. Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) in which
the Court concluded that the burdens of section 315(a) were justifiable as
"both reasonable and necessary to achieve the important and legitimate
objectives of encouraging political discussion and preventing unfair and
unequal use of the broadcast media." Id., 892.

[38] 395 U.S. 367, 389-391 (1969).

[39] 824 F.2d at 49. 

[40] The Senate Committee on Commerce, Science, and Transportation held
hearings March 18, 1987 on S. 742, which would codify the fairness
requirements of the Communications Act of 1934. The Committee reported S.
742 favorably without amendment April 3 (S. Rept. 110-34). The Senate
passed S. 742 April 21 by a vote of 59-31.

On Apr. 2, H.R. 1934, another bill to codify the fairness doctrine was
introduced by Representatives Dingell, Chairman of the House Energy and
Commerce Committee, and Markey, Chairman of the Committee's
Telecommunications Subcommittee, and other Members. The Telecommunications
Subcommittee held a hearing on April 2. On May 13, H.R. 1934 was reported
from the full Committee on Energy and Commerce. The House passed H.R. 1934
June 3 by a vote of 302 to 102 and then, after laying the bill on the
table, passed S. 742, which was sent to the President and vetoed. The
proposal may be resurrected before the first session of the 100th Congress
adjourns.

[4l] Jackson, End "Fairness Doctrine, FCC Urges, L.A. Times, Sept . 18,
1981, pt. 1, p.1. Dodge, FCC Watch, Campaigns & Elections, v.2, p. 52, Fall
1981. And see 127 Cong. Rec. H7494 (remarks of Rep. James M. Collins,
daily ed., Oct. 20, 1981).

[42] See, for example, prepared testimony of Everett H. Erlick, Senior Vice
President and General Counsel of the American Broadcasting Companies, Inc.,
Hearings on H.R. 3333, The Communications Act of 1979 Before the
Subcommittee on Communications of the House Committee on Interstate and
Foreign Commerce, 96th Cong., 1st Sess., v. II, pt. 2, 1404, 1437 (1979).

[43] Radio Act of 1927, Ch. 169, ' 18, 44 Stat. 1170. See generally,
Hearings To Regulate Radio Communication, Before the IIouse Committee on
Merchant Marine and Fisheries, 68th Cong., lst Sess., 83 (1924).

[44] Ostroff, Equal Time: Origins of Section 18 of the Radio Act, Journal
of Political Broadcasting, v., 24, 377-378, Summer 1980.

NOTE: Received August, 1994, from Andrew Kutler, Legislative Correspondent,
Office of U.S. Sen. Rull Feingold, Wisconsin

502 Hart Senate Office Building
Washington, D.C. 20510-4904
Phone: 202-224-5323
FAX: 202-224-2725.
File: A:\ Fairness Doctrine S333-FD.sam, 8.23.94
Also S333-FD.TXT