Broadcasting Telecasting (Jan-Mar 1960)

broadcasters to cover court trials, presented a detailed history of court and legislative actions dealing with the First Amendment, Sec. 326 and FCC's powers. He conceded FCC "might reasonably ask applicants for initial licenses or renewals to submit evidence as to their plans to meet the desires of the communities in which they operate, for it is in the local community that their operations must be appraised." ' Mr. Seymour said that while the Commission "may not substitute its taste and judgment for that of the licensee, it is not required to close its eyes to abuses by a licensee which reflect on its qualifications to enjoy the privilege." __vAt the same time he insisted Congress had recognized broadly in Sec. 326 that the Commission could not act as a censor, imposing an explicit prohibition which covers previous restraint. The First Amendment, he explained, applies both to previous restraints and subsequent sanctions. And he stated, "The Commission is given no supervisory control over the general content of programs, and the selection of material for broadcasts is exclusively the province of station licensees." Mr. Seymour cited Supreme Court language that "the public interest, convenience, or necessity standard for the issuance of licenses would seem to imply a requirement that the applicant be law-abiding." Rare Exceptions • While contending particular program items can only rarely serve as the Commission's basis for determining that an operation is not in the public interest, he conceded that besides bad character there may be a narrow exception in the case where a licensee made "practically no attempt to consider the wishes of any part of the public." "Changes in taste, the encouragement of greater interest in better forms of instruction or entertainment than may be available, must flow primarily from the efforts of broadcasters to satisfy the public taste in their communities as it advances through the influences of church, school and home," he said. He said the Commission, in cooperation with other federal authorities, "can prevent knavery and assist the industry in barring corruption." As to types of programs, he said, "The Commission is not entitled to say to tired farmers, businessmen or even lawyers that they must watch or listen to cultural programs instead of enjoying the kind of entertainment they may prefer, even if their preference saddens some. . . . The provisions of the First Amendment reflect a basic decision that occasional abuses of the right of free speech — exasperating though they 32 (FCC HEARING) may be or lacking in taste as some may think — are still preferable to any system of governmental control over what people think and say. Recent public concern with certain instances of improper actions in radio and television, such as the so-called 'payola' and 'rigged' shows, should not be allowed to blur our fundamental principle that, except for the few narrowly defined exceptions to the First Amendment discussed above, the government has no proper concern with the substantive content of the ideas communicated among the public, whether they are thought to be entertainment or instruction." Censorship • Under cross-examination, Mr. Seymour said regulations or prohibitions on westerns, for example, would be censorship. An FCC requirement that all stations have certain percentages of certain programs would be censorship, he insisted. He called himself "a San Francisco Beat man." A line of questioning designed to show that programs with advertising content or advertiser control are outside the First Amendment's protection drew this comment, "They are not NAB's legal witness • FCC can't get into programming under the limitations imposed by the First Amendment and Sec. 326 of the Communications Act, according to Whitney North Seymour. A nationally famed authority on constitutional law, Mr. Seymour in appearance at FCC hearing as special NAB counsel, said programming isn't the FCC's business unless a station's performance gravely reflects on the licensee's character or unless it broadcasts material in the obscenity-depravity-violence category. Mr. Seymour rode out lengthy cross-examination without yielding a point. outside the First Amendment because of advertiser participation." Asked by FCC Chairman John C. Doerfer about his court experience in constitutional cases, Mr. Seymour recited a long list of cases over several decades and his service as Assistant Solicitor General of the U.S. When Comr. Frederick W. Ford asked about the Fellows proposal for narrative reports at renewal time and the possible loss of license as a result of a report, Mr. Seymour said loss of license could only be possible if bad faith or grave reflection on character in not meeting community needs were shown. Answering a question by Comr. Robert E. Lee, he said amendment of Sec. 326 is not necessary since the Commission has "ample authority without interfering with programming to make sure licensees fulfill their responsibility." No 'Percentage' • Mr. Seymour answered a question by Comr. Robert T. Bartley about the right of Congress to require 20% cultural programs, for example, with a flat "No." To another question on FCC powers, he said, "The Commission can't take away a license because of some belief the station is not serving community needs." "No group is wise enough to exercise control over the tastes of people," he said in response to a query by Comr. Rosel H. Hyde. He said the industry "uses experience but doesn't legislate for the group" in drawing up and enforcing codes of ethics. Asked by Chairman Doerfer how the Commission can rule on deception, wrestling for example, he gave this test, "Does the deception reflect on the character of the licensee?" Under stiff questioning in the morning by Commission counsel and commissioner, Mr. Fellows stuck to the position that FCC can't get into program control, but some of his comments dealt with program balance and public service policies of stations (see transcript excerpts). Comr. John S. Cross fired questions built around what he described as nationwide evidence of dissatisfaction with programming. "How about murder, mayhem, mediocrity?" Comr. Cross asked at one point. Mr. Fellows suggested this type of criticism is overemphasized by people who feel there should be no programming of these types. He said there are always vocal minorities. Miller Doctrine Deviation • The questions asked by Comrs. Ford and T.A.M. Craven dealt with NAB's deviation from the original Miller doctrine. Comr. Ford said, after questioning, that he and Mr. Fellows seemed to be in agreement. Comr. Craven's brief questions brought an agreement from Mr. Fellows that he BROADCASTING, February 1, 1960