Broadcasting Telecasting (Jan-Mar 1956)

Copyright 1956 by The Brookings Institution Further reproduction unlicensed OF THE SEC. 315 TRAP Even if he were to call for revolution, the station could do nothing about it in advance, and might be held jointly liable for abetting a criminal utterance. Stations as a matter of practice can ask for copies of candidates' speeches in advance, and try to persuade them against any utterances that they feel would put the network or the station in an improper or false position; but they cannot insist on seeing the speech in advance, let alone make any deletions or changes without the speaker's consent. Better solutions of the issues are not easily found. If the networks and stations were given more freedom under the law or its interpretation to determine who is a substantial candidate in an open nominating contest, enormous power would be granted to them. While television is not indispensable to political success, it has unique characteristics that make it especially valuable to the political late-comer. The public is interested in a wide choice among competent candidates, and the accidents or designs of network or station policy should not be allowed unduly to hamper that range of selection. The broadcasters could now, under the law, reduce drastically the amount of public service time granted to candidates for nomination. They are already hinting that they must do so, and have indicated their willingness to sell time to political office-seekers in the pre-convention period. By closing their public service time to avowed candidates for the nomination, networks or stations could press potential candidates toward withholding declarations of candidacy until the last possible moment, in order to preserve their chances of getting on television as invited guests. This would further reduce the importance of the existing presidential primaries in which candidacies must be avowed or not disavowed in order to participate effectively, as in New Hampshire and several other states. The stations would still retain their present great power to decide who is to be selected to appear on various occasions when candidacies have not yet become overt. It would give an advantage to potential candidates already in some office — governors or congressmen— who have access to television by virtue of their public position. THE FOUR ALTERNATIVES There appear to be four courses of action with respect to the equal-access provisions of Section 315: (1) leave them alone; (2) remove them from the law, and leave complete discretion with licensees to govern access of candidates to the air; (3) have the government purchase or pre-empt time for political broadcasting; (4) revise the standard in the act. As to the first course, it now appears that the networks and stations are serious about limiting public service political time in the pre-convention period, and view with great misgivings the problem of political broadcasting, even on a paid or news-show basis, in the campaign period. To leave the section untouched is to risk real diminution of the usefulness of television as a medium of political communication. To remove all standards governing equal access from the law, leaving the judgment to the licensees as to who can use the potentialities of television and when, seems to delegate excessive political power and responsibility to the networks and stations. The networks and stations are not requesting it, and no one has seriously suggested this course of action. To have the government purchase or pre-empt a good block of political time, under the legal principle that access to the electro magnetic spectrum is a privilege granted by government and revocable by it, is a proposal that has had a good many recent proponents. But if the government were to buy time from the networks and make it available to all comers, there would be a long series of headaches or worse in sorting out political time among the various applicants. If the government were to force the networks to give up enough time to accommodate everybody, this would amount to a taking of property (not the access to the spectrum, but the right to sell time over broadcasting stations). Such a taking might be justified on the ground that it is for a legitimate public purpose, but the facts might not bear it out. In the case of candidates toward the fringe of seriousness and political stature, there might be no public gain. And the public stands to suffer from an overdose of political television and deprivation of substantial quantities of its accustomed television programming. Underlying both procedures would be the question whether it is better to have government or private decisions as to who shall have access to one communications medium. The industry has already made the point that it is unfair for the government to force television to give up valuable air time for political broadcasting, when similar deprivations are not required from other media. Possibly more important are those issues that revolve on the question of the propriety of allowing a government agency to make vital decisions concerning the freedom of competing political organizations to conduct campaigns and discuss issues. The final course is to revise the standard in the act, so as to improve the chances of full political use of television while avoiding some of the difficulties and dangers of the other courses. Two steps under this course of action seem worthy of discussion. As a first step, amend the Communications Act so as to define a major party and to make the equal-time provision apply only to candidates of such parties, or their authorized representatives, and leave to the discretion of stations decisions on how far their general responsibilities for giving balanced treatment to controversial issues require them to give time to other political parties.12 The second step would be to amend the act further to define a leading candidate, and to restrict the benefits of the equal-time provision to leading candidates of major parties in the case of pre-nomination campaigns. Since these two steps are separable and involve somewhat different issues of administration, they are discussed separately. The problem of defining a major party has been dealt with often, to all intents and purposes, by state legislation in connection with the admission of parties to the primary election machinery of the states. And the pending Douglas-Bennett Bill proposes a federal criterion for a national party.13 The important point is to require a certain minimum of electoral support distributed over several states. A proposal to define major parties and to make the equal-time provision run to them would open the way to a better balanced and more varied use of television time for political purposes during the campaign itself. If the broadcasters had to assure equal treatment only for four candidates — two for President and two for Vice President— at the national level, they might find it advisable to give 12 See editorial, Washington Post and Times-Herald (June 27, 1955), p. 18; and letter from Frank Stanton, President, CBS, in the same issue. 13 See Paul T. David, Malcolm Moos, Ralph M. Goldman, Presidential Nominating Politics in 1952, Vol. I (1954), p. 217. The criterion for a party proposed there is that the organization shall have polled at least 10 million votes in the past presidential election. The Democratic and Republican parties are the only political parties that have ever met this criterion in the United States. Broadcasting • Telecasting February 20, 1956 • Page 69