Septeber 19, 1978 CONGRESSIONAL RECORD--SENATE S 67 Mr. DrVONCINI. Mr. President, this pact statement has been issued, and Select Committee on Indian iffairs in amendmee f will modify Public Law 93- hearings were completed last Friday, no February of this year on S 714, a bill 531, the Nivajo-Hopi Settlement Act, land has been transferred to the Nava- I introduced to lessen le impact of which was dsigned to resolve the Hopi- jos. Bureau of Land Management land in relocation, gave me aiitional incen- Navajo jointqse-4rea land dispute. the House Rock Valley-Paria Plateau tive to pursue mod cation of Public The Navajo- opi Settlement Act es- area of Arizona is one of the areas being Law 93-531. The rings were held in tablished proced res for the resolution considered for purchase. The purchase of Winslow, Ariz., th over 200 Navahos of a century-old dispute between the land in this area Is strongly opposed by and Hopis inm tendance. Hopi and Navajo ibes over joint-use ranchers in the vicinity and various en- Also, on Y 27, of this year, Senator area lands in Arizo . The act basically vironmental and wildlife organizations. ABOUREZKn d I visited the joint-use provides for a nego tated settlement of Even if this land transaction were con- area and/ ersonally talked with many the dispute, or fai g agreement, a summated, it is estimated that only 10 of thos gw ho will be required to relocate. mediated settlement t be approved by percent of the Navajo families now liv- This ersonal contact indicated to me the district court. Quid ines for media- ing on the Hopi portion of the joint-use tha the Congress has no choice but to tion and court settlemet are set forth area would be accommodated. hp these people. in the act and mechanis s are estab- An alternative suggestion has been to Several legislative alternatives have lished for the transition piod follow- relocate at least a portion of the Navajos/been reviewed, all of which would help ing a settlement. in urban areas such as Gallop, Flagst alleviate the relocation problems pre- Negotiations having failed, e media- or Albuquerque. Many of these re- viously discussed. After listening to tor, William Siekin, filed his port to catees have no skills that wouldow many of the relocatees and studying the court on December 12, 1975. here- them to become productive mebers various proposals, I am convinced that port recommended partition of theands of an urban population andin all some form of life estate should be between the tribes and set out a l e of probability they would be foed onto provided-at least for those most ad- partition. Hearings and filings of efs the welfare rolls. versely affected by relocation. were held through 1976. On Februy' The Senate Committee o nterior and There'fore, Mr: President, the amend- 10, 1977, the court issued its judgme t Insular Affairs, in its reprt which ac- ment that I am offering today is a modi- of partition in which it confirmed the re- companed H . 0337, amended, now fled version of S. 1714, the bill that I port of the mediator and ordered that ublic Law 93-531, rec gnized the seri- introduced on June 17, 1977. This pro- the lands be partitioned in the manner impact relocation ould have if not posal will assist those who are most aAC set out in the report. h.dled properly : versely affected by relocation--thq Since the issuance of the partitioning Committee be eves it vitally impor- elderly. They will be allowed to live out judgment by the U.S. District Court for ta t at the pla take into account all their remaining years on their tradi- the District of Arizona, the Relocatioon omc, ultural, and other ad- tional homelands with sufficient live- Commission-a three-memberpaneles- verse i acts of elocation on persons in- stock for their livelihood. t-53er1oadn- volved in tablished by Public Law 93-531 to admin- avoid or e recationto theand extentbe developed possible to This amendment provides for limited ister the required relocation of trial such impac The plan must also identify life estates. In order to qualify for the life members-has begun to formulate its the sites to such households are to estate, one of the spouses of the house- relocation plan for approximately be relocatd an assure that housing and hold mustbe at least 40 years of age, and 3,500 Navajos and 32 Hopis who must related c nunit facilities are available at it must be determined that the household move. However, on May 15, 1978, the th relo tion sites.The Committee believes cannot be relocated within the bound- U.S. Court of Appeals for the Ninth Cir- this re rement Is lcularlyg important in aries of the tribal reservation Of which effect' the cuit vacated the original partition de- purposeof minimizing the ad- the household is a member. cree. Although the substance of the After meeting these two criteria, then court's opinion is important, its most I view of the fact th lands have not it must be established that the head of dramatic effect will be to delay the sub- y been found for most othe relocates, household does not have the necessary mission of the relocation plan to Con- Cecommittee's Intent " minimizing job skills to compete in an urbanized gress. The Relocation Commission, ac- he adverse impacts of rel ation" may society. Heads of households who are dis- canno / e adv tere'inpatsent cording Theto PublicPublocLatio Law 93-53,93-531, cannoy not be implemented. abled may receive life estates without submit its plan until the district coue Mr. President, not only will elocatees meeting the age requirement. issues its decision on the full, final 1' e possibly suffer "adverse impts," but The life estate bill I originally intro- of partition. many have lived their entire live on the duced, S. 1714, required that the Secre- Thirty days following the plan' sub- joint-use area, and it is home. I rently tary of the Interior implement the prom mission to Congress it becomes e.ctive. received a letter which vividly illus ates gram. A major modification is includ According Accordingto the law, the CoCon ission the plight of those residing in theis- in this amendment-the Navajo-Ho must complete the entire reloc ion plan puted area: Relocation Commission will be required 5 years after its effective dat. we, the McCabes, of Tolani Lake (Ar to implement the life estate program. The act directs the ommission 5-B), would like to express our true feelings This change will not extend the life of to make relocation payments about our land ... the Commission because the life estates of decreasing value each yar after the Our late father, Everett McCabe, Sr., was t be granted prior to the expiration plan~Is in effect thoeod wihborn on this land that we now live on and the 5-year relocation period. Assist- lan s in effect to lho alds which he Is buried on the land, too. Our father t those receiving a life estate will voluntarily enr to tion con- worked on the land- so that we can have a tractsr Ch the Additlo - be phvided tracts with the Cormm on. Addition- home. We were all born on this land and p through the Secretary of the ally, payments and p, rams to make he raised all 12 of us along with our mother Inter .Thus, the Commission will end restitution for dwell and improve- until he died in 1956. Now there are 81 of its du related to the relocation pro- ments, as well as f for new housing us including all our children and mother. cess as isioned in Public Law 95-531. after relocation, ar authorized. Our grandmother and her family have been This am ent will require the Com- or. Presidentmoved three times before for the same mission to life estates with enough Mr. President, te intent of this law problems. It is high time that we, the chll- land for the ily to maintain livestock to resolve a cen y-old land dispute is dren an4 grandchildren, put our foot down ata subsistanc level. Further, the Secre- admirable. Ho er, implementation and demand our rights. So this is where we problems have whichwh:l,.i'l~.ich should be arisenall stop and stay for the rest of our lives. ta of the nte or is authorized to give should be assistance to who maintain live- considered. Th law authorizes the Secre- -Our father and mother had a grazing tary of the In to transfer, upon the permit (350) for this land and they raised stock. payment of fimarket value, up to sheep, cattle, and horses. They built homes, The remaining ajor provisions in 250,000 c of Bureau of Land Man- wells, dikes, fences, and planted trees and the amendment ncl e: P25 ofBureaar of and Mn-wcorn. To this day we still have all of what First. Those receivi life estates will agement lads to the Navajo Tribe so as they built we still plant corn, and plus fond be able to make impr ements on the to restore portion of the Navajo land memories of our childhood and our families. property during the ten of the life base lost i partitioning. The additional We know every square foot of our land. Our estate. land wo be used by those Navajos re- relatives and friends live close by and this Second. The life estate will remain in ~~~quiredelcate. to ~Is our happiness. . . . effect until the head of household or Altho :h a draft environmental im- Hearings, conducted by the Senate spouse dies, whichever is later. S 15468 CONGRESSIONAL RECORD--SENATE September 19, 1978 Third. A one-House veto of the Com- PUBLIC TELECOMMUNICATIONS for that matter-from the control of mission's plan is added. FINANCING ACT OF 1978 Congress, control of the President of the Fourth. The Relocation Commission The Senate continued with the con- Unilted States, and the direction, funda- will be authorized to purchase up to sideration of the bill menLtally, of the President of the United 25,000 acres for relocation purposes. No The PRESIDING OFFICER. Who Stattes and Congress. condemnation authority is granted-the yields time? I believe that is consistent with a free sales are voluntary. socilety only because the principal broad- Mr. President, this amendment will (Purpose repealTo the e time require- casting in this country is not public (Purpose: To repeal the equill time provide for a more humane relocation ment and the fairness doctrine as require-applied broiidcasting but private, outside the than is called for in present law. I urge to broadcasting solely by radio) aegiis, outside the control, outside the my colleagues to support it. Mr. PROXMIRE. Mr. President, I send dowtination of the Federal Government. The PRESIDING OFFICER. The ques- an amendment to thMe desk. ly amendment would recognize that tien is on agreeing to the amendment. The PRESIDING OFFICER. The itiss time, beciuse of technological de- The amendment was agreed to. amendment will be stated velopments; it is time, because of the Mr. DECONCINI.DaCONCINI. Mr. President, I The assistantwill legislativebe statedfun clerk read as fun,damental convictions of our Found-. move to reconsider the vote by which follows: ing Fathers and of the overwhelming the amendment was agreed to. The Senator from Wisconsin (Mr. PROX- majority of Americans, that we should Mr. HOLLINGS. I move to lay that MIRE) proposed an unprinted amendment hav e freedom of the press. It is time to motion on the table. numbered 1853. recc,gnize that the reality of freedom of The motion to lay on the table was the press can be achieved only if we have agreed to. Mr. PROXMIRE. Mr. President, I ask freeedom of the electronic media from The PRESIDING OFFICER. If there unanimous consent that reading of the gov4ernment regulation and government be no further amendment, the question is amendment be dispensed with. con,trol. on agreeing to the committee amend- The PRESIDING OFFICER. Without This is a first, small, modest step. We ment in the nature of a substitute, as objection, it is so ordered. shoiuld recognize that the great majority amended. The amendment is as follows: of Ipeople do not get their news from The committee amendiment in the na- At the end of the bill insert a new section new7spaper. I think there is an illusion ture of a substitute, as amended, was as follows: thatt they do. Seventy-six percent of the hgreed to. REPEAL OF EQUAL TIME REQUIREMENT AND FAIR- peojple say that they get their principal PF The PRESIDING OFFICER. The ques- NESS DOCTRINE AS APPLIED :O RADIO BROAD- ne rs-and many of them, their exclusive tion is on the engrossment of the amend- CASTING newrs-from radio and television. ments and the third reading of the bill. SEC. 404. (a) Section 309 of the Communi- At the present time there is no ques- The amendments were ordered to be cations Act of 1934 is amended at the end thereof the following:by inserting tionn that there is no freedom of the engrossed and the bill to be read a third "(I) Notwithstanding any other provision pre, ss for radio and television. They are time. of this part, effective on and. after the date cenl sored; they are licensed; they are The bill was read the third time, and of the enactment of this subsection for the sub,ject to not only oversight by the FCC passed. . purposes of this part as applied to broad- but also to the denial of their license if Mr. DECONCINI. Mr. President, I casting solely by radio (excluding television the:y do not comply with the Federal reg- move to reconsider the vote by which broadcasting), the term 'public interest, con- ulattions. There is no question that this thepassed. bill was venience, and necessity' shall not be con- is a th bill PROwas passed.RE move strued to give the commission jurisdiction Iacensorship. Mr. PROXMIRE. I move to lay that to require the provision of broadcast time to f you talk to any owner of a station motion on the table. any person or persons or for the expression or become involved in any way in a sta- The motion to lay on the table was of any viewpoint or viewpo:lnts.". tiori's operation, you know how sensitive agreed to. (b) Section 315 of such Act is amended the:y are to that kind of Government The ulation and that kind of Government title was amended so as to read: following:by inserting at the end. thereof the conregi An Act to amend the Act of December 22, "(e) The provisions of this section shall I trol. 1974 (88 Stat. 1712) relating to the Navajo not apply to broadcasting solely by radio contend that, for many reasons, the and Hopi Indian Relocation Commission. (excluding television broadcasting).". time has come to end that control, that itical control of the private sector, Mr. DECONCINI. Mr. President, I (c) The amendments made by this sec- poli thank the Senator from South Carol'ina tion shall be effective on the date of enact- andI I think the place to begin is with (Mr. HOLLINGS) for permitting time in ment of this Act. rad io. vhich to handle this matter. I know he Mr. PROXMIRE. Ve should recognize, for example, the Mr. :President, the Vnber of newspapers we have in New las been here a long time today. I also amendment I have just sent to the desk nunIk City and the number of radio sta- 'thank Senator PROXMIRE for permitting would abolish the so-called fairness Yor this matter to be taken up at this time, doctrine ns. The number of newspapers is and equal time rule as they tiolaething like 3, or perhaps 4, and the as a personal favor to me. apply to radio. son Since 3 o'clock or 3:30 this afternoon, nunaber of radio stations is something It is not that I would not want to stay we have been discussing public broad- likee50. and listenlisten torto the finefine speechesspeeches, but II casting, and it is fascinating that the ¶'here is no question that with the ad- promise to read them tomorrow in the principal emphasis of the discussion has vent of FM, the number of radio stations RECORD. been on how to keep public broadcasting in communities throughout this coun- free of political interference. I think that try is going to increase greatly. Soif we really believe in freedom, we REPORT ON AMERICAN FOREIGN was a constructive effort. I whole- Suld recognize that we no longer can POLICY INTERESTS IN EUROPE, heartedly support public broadcasting. I shoue the scarcity argument. In the old THE MIDDLE EAST, AND INDIA believe it has greatly improved the qual- arg (S. DOC. NO. 95-125) ity of broadcasting generally, as well as day7s,you couldcsay that there were only enriched the lives of the American peo- a certain number of frequencies avail- Mr. PROXMVIRE. Mr. President, on ple, and I am happy to vote for and ablhe and that they could be allocated behalf of Mr. WILLIAMS, the chairman of support this legislation. fairfly only by the Government. the Senate Delegation on American For- However, we must recognize that pub- IIf we do not require a certain stand- eign Policy Interests in Europe, the Mid- lic broadcasting is funded by Govern- ard of fairness and a standard of equal dle East, and India, I am submitting the ment, controlled by Government, di- time, and so forth, of the radio stations, report of the delegation to the Senate rected by Government; that all the it Iwill mean that the plutocrats, who and I ask unanimous consent that it be officials are appointed by the Federal hav*e the money to buy a radio station, printed as a Senate document. Government. There is no question that are going to determine-not the Gov- The PRESIDING OFFICER. Without there is no way that public broadcasting ern ment, not society as a whole-who objection, it is so ordered. can be insulated-or should be insulated, should have access to it. September 19, 1978 CONGRESSIONAL RECORD- SENATE S 15469 We should see what has happened as crime-ridden neighborhoods, venereal than to start a newspaper. And the radio with freedom for our newspapers; be- diseases, old age; population growth, stations, as I pointed out, are a vital cause, while it is not unique, it is almost race relations, and school curriculum. source of news for the American people. unique in this world that a Government Women's rights, it is true, have been So, Mr. President, I think that anyone permits its newspapers to operate with reported on since long before the Bloomer who supports the notion that we should an amendment that prohibits any Gov- Girls. But now we get searching reports have a continuation of the fairness doc- ernment censorship or Government in- on what women's rights really mean. trine for radio or equal time rule, I should terference. The list is endless. But fair coverage ask why they would not apply it to news- As I say, one-city ownership is char- means that problems, advances, and ex- papers. acteristic in this country. It is hard to perimentation in areas of life affecting Mr. President, let me also point out find any city except the big ones, such all of us are covered in all their aspects. that the denial of first amendment rights as New York and Chicago, that has more Mr. President, take the argument that to the radio stations and to television is than one newspaper. many people for many years-I guess self-defeating. In a metropolis like in our State, Mil- some still subscribe to it-that news- Under the fairness doctrine, for exam- waukee, for instance, there is one owner- papers can be forced by their advertisers ple, broadcasters are required to, first, ship. The Milwaukee Journal Co. owns to support a particular viewpoint, an devote a reasonable amount of time to the both newspapers, and that is true in the economic viewpoint or a particular social discussion of controversial issues, and overwhelming majority of cities in this viewpoint, or even an individual who is second, afford reasonable opportunities country, one ownership, monopoly own- a heavy advertiser. for opposing viewpoints. ership of the newspapers. Mr. President, anyone who really In 1972, NBC broadcast a documentary Yet, Mr. President, they are free and knows newspapers knows that is no entitled, "Pensions: The Broken Prom- they should be free, and the first amend- longer true. You rarely hear the charge. ise," which dealt with corporate pen- ment to the Constitution guarantees When it is made it is made out of igno- sion plans and how they often do not their freedom from Government regula- rance. There is no advertiser who is go- keep faith with the workers they are in- tion, Government censorship, and Gov- ing to make a newspaper publisher tended to benefit. ernment control. knuckle under. If there is any example The airing of the program led to the How is that operated? of that I would like to hear it because I filing of a fairness doctrine complaint Well, years ago I worked on my doc- have never seen it. I do not know anyone with the FCC. _J dissertation and the subject of it who maintains it, and that is no longer NBC claimed in defending itself that "developing standards for evaluat- the situation. They police their advertis- the subject of private pension plans was ing the political content of the American ing. There is no advertising pressure on not controversial because as far as it newspaper," and in the course of work- the editorial concept. knew the subject had not been dealt with ing on that thesis, which I have never So, with no licensing, no censorship, previously on network television. finished, I discovered that American just with freedom, responsible vigorous CATcH 22 newspapers have vastly improved. They journalism has flourished. Accuracy in Media, Inc., complained have improved in professionalism. They Mr. President, one of the best exam- that contrasting viewpoints were not have improved far more than they would ples of that, of course, has been with aired on-the progrm. have, in my judgment, if they had an the development during the worst scan- The FCC rejected AIM's allegation of FCC applying to newspapers. dal that hit this country in perhaps the distortion but did decide that NBC had They have op-ed pages where they last century, and that was the Watergate violated the fairness doctrine. It then or- have an editorial page, of course, ex- scandal. dered the network to broadcast balanc- pressing their view, but in most cases What was the reason why the Presi- ing material. opposite the editorial page they have dent of the United States so occupying NBC said that it had done a fair job the expression of columnists and others the most powerful office in this country, and had no intention of giving the sub- who disagree with their viewpoint. maybe in the world, was forced to leave ject more air time. Take a look at the Washington papers. office? There is no question that it was Before moving on to what happened You can see that. Take a look at your not because of any governmental group in the courts, I should point out a "Catch own hometown paper. The Chicago or any agency. While the House of Rep- 22" aspect of this situation. I do so be- Tribune, which I think has been recog- resentatives played a part in this mat- cause it is but one example of the night- nized as one of the most biased, one- ter, there is no question that the drive mare of complexities that accompanies sided papers in the country, has had that forced a correction of this situation the attempt to administer the fairness t~greputation, but it changed and im- in our society and in our Government doctrine. Had NBC devoted more time to Eind vastly. Opposite their editorial came from the free press, came from the subject, giving additional viewpoints, PUTF they have the expressions of col-. there would have been no issue before the disagree with the newspapers. umnists who vigorously I think everyone acknowledges that, FCC. So in order to prove its point, to the Chicago Tribune line and do so every Mr. President. test the matter in the courts, NBC could day. air no more shows on the subject without But even more important is the fact Mr. President, I think the clearest way making its case moot. that you have the professionalism of the we can understand how unnecessary and Now back to the courts. A three-judge reporters. It is only a relatively recent improper is the Federal Communications panel of the District of Columbia Court phenomenon that we had journalism Commission control of radio and tele- of Appeals ruled in favor of NBC, say- schools. We have now developed report- vision is to ask ourselves why not try an ing that this country needs investiga- ers who take great pride in objectivity FCC for newspapers. I challenge anyone tive reporting. Subsequent court actions and they are taught to be objective, fair, to propose on the floor of the Senate or left this ruling intact. and comprehensive, and that has greatly the floor of the House of Representatives What is the lesson of the Pensions expanded and improved our coverage. or propose seriously anywhere that we case? It is this. The fairness doctrine In what other ways have newspapers provide for a new commission which can interfere with journalistic discre- become more fair and unbiased? Here is would apply equal time or fairness doc- tion, particularly in investigative report- how: trine for newspapers. ing. For one thing, by expanding their cov- Why not? Why not? Why should not RESTRICTING BROADCAST EFFORTS erage. There was a time-not too long we apply it to newspapers if we apply it Just think of the implications if the ago-when we could not read stories to radio? As I point out we have many court had decided the other way. Such a about environmental and health haz- radio stations in communities through- ruling would have meant that Govern- ards, such as those caused by insecti- out the country and throughout the ment could, in the words of fairness doc- cides, food additives, and other previ- country far more radio stations than trine analyst Fred Friendly: ously arcane chemicals. newspapers. Substitute its judgment for that of the There was time, too, when we did not It is far easier for someone to start a network as to what issue was involved in a see stories about social concerns, such radio station. It takes far less capital broadcast documentary and order that more S 15470 CONGRESSIONAL RECORD - SENATE September 19, 1978. air time be given to elements that the jour- proponents want diversity of ideas and National Committee, used the fairness nalist never thought central to the story. the presentation of controversial and doctrine to subdue right-wing radio The end result would be to restrict contrasting points of view. What they commentators who were critical of ad- broadcast efforts at investigative report- promote, instead, is sameness, blandness, ministration goals. ing of the difficulty in airing any pro- timidity, and conformity. 'The American These clandestine campaigns, which gram that took a point of view or was people are the losers. reportedly began in 1963, were also meant controversial. Now, Mr. President, the most impor- to inhibit stations from carrying com- But wait a minute, you might say. tant reason why the censorship of radio mentary supporting Senator BARRY There is no problem here. NBC won its through the fairness doctrine-equal time GOLDWATER, who was then a prospective case. It was home free and clear. There rule is wrong is because it is dangerous. Presidential candidate. is no lingering aftereffect. DANGEROUS DENIAL: THE TYRANNY OF GOVERN- Friendly reported that both the Ken- True? Not necessarily. MENT nedy and Johnson administrations main- The result of that requirement is that Denying broadcasters their first tained professsionally staffed organiza- fear of losing a license persuades stations amendment rights is wrong for a final tions that monitored stations carrying to avoid controversy. We could have a reason. It is dangerous. right-wing commentary and then de- far more stimulating society, far greater Letting Government be the final ar- manded time for reply under the fair- opportunity for people to express con- biter of "fairness," for example, confers ness doctrine. troversial views-no question about it-- immense power. This is especially true Such demands for air time, which the if we did not have the kind of licensing when that same Government decides on stations would have to provide at no cost, situation we have and the requirement the granting of broadcast licenses. were regarded by many broadcasters as of compliance with equal time and the Three examples from the recent past harassments that they chose to avoid. fairness doctrine. remind us how the power of Govern- As a- result, they either dropped the Mr. President, I wish to call the at- ment-although often exercised in the commentaries or diluted them. This, ac- tention of the Senate to the experience name of "fairness"-can amount to the cording to Friendly, was exactly what of one television network with the fair- tyranny of Government. the White House had in mind. ness doctrine and how self-defeating These examples all involve past Presi- What do these three examples of the that is if we expect to achieve the kind dents of the United States. The Presi- abuse of Government power tell us? of controversial discussion that we wish dent, of course, is tlhe head of Govern- It is wrong to deny broadcasters their to achieve. ment, the same Government that con- first amendment rights because a_ NBC's problems in airing two television trols broadcasters through the Federal press-and that should include _ documentaries help to illustrate the Communications Commission. broadcasters-is needed to protect us point. In recalling the stories that follow, it all from the tyranny of Government Let us look at how NBC reportedly is important to remember, too, that the power. agonized over its 1975 television docu- President himself appoints the members WHY NOT TAKE A CHANCE ON FREEDOM? mentary on handguns entitled, "A of the FCC and designates who shall be What I have been saying tonight can Shooting Gallery Called America?" Chairman. be reduced to this simple thought: Why According to New York Times writer NIXON ADMINISTRATION not take a chance on freedom? If it is John J. O'Connor, complaints from the My first example comes from the Nixon power we are concerned about, and we public even before the program was administration. Relevant episodes from should be, the power of the electronic shown caused a rewriting of the script to that period are still fresh in our minds. I media is a pygmy compared to the power avoid fairness doctrine complaints to need only cite some of them briefly here. of Government. the FCC after the fact. FCC Chairman Dean Burch called CBS In 1977, U.S. News &World Report sur- And, O'Connor further reports, this President Frank Stanton in November veyed the leading citizens of this country documentary on a controversial issue of 1969 to request a transcript of that net- in business, labor, the universities, the public importance-gun control--drew work's news analysis after a Nixon newspapers and the Government as to little response from a national televi- address the night before. who were the people who ran America. sion audience of about 10 million (381 Vice President Agnew made his fa- Where did the electronic media rate? complaints out of the 441 letters received mous Des Moines speech 9 days later Think of this: in the 2 weeks after the show) because it blasting the network's news coverage and The only person from the media who failed to take a stand. reminding them that they held licenses was rated in the 10 most influential CHILLING EFFECT at the pleasure of the FCC. Americans was Walter Cronkite and he If O'Connor is right, then this is a good CBS President Stanton reported that was a distant ninth. In fact, Cralte example of the chilling effect on journal- there were a number of White House was the only electronic media peiin ism caused by governmental control of phone calls over the succeeding 3 years the 30 most influential Americans.'` broadcasting. conveying displeasure with news broad- Who are the most influential? The I believe NBC executives should not casts. answer is emphatic. It is Government. have felt the hot breath of the FCC and There was a memo of September 1970 Eight of the top 10 persons who run its fairness doctrine on the backs of their from Charles Colson to H. R. Haldeman America were Government officials. necks. For if O'Connor is correct, the ex- proposing that the White House get a By denying the electronic media their istence of the fairness doctrine indirectly ruling from the FCC on the "role of the first amendment rights, we give the big restrained the producers of "Shooting President, when he uses TV." This, Col- guy-Government-more power and dallery." son argued, would have "an inhibiting from the less.influential-the media-we And if O'Connor is right, if NBC news impact on the networks." take it away. executives ordered a new script for the There was, too, the December 1972 In- To those who would claim that it is "Shooting Gallery" because of the fair- dianapolis speech by Clay T. Whitehead, safer to take a chance on Government ness doctrine, I wonder if it was because director of the White House's Office of than a chance on freedom and a free of the time and expense NBC went Telecommunications Policy, condemning press, there are two clear rebuttals. through before the FCC and the courts the "ideological plugola" and "elitist GOVERNMENTAL POWER in the wake of its 1972 documentary on gossip" of network news. First, governments traditionally have "Pensions: The Broken Promise?" And there was, finally, President Nixon gathered more and more power unto I firmly believe that broadcast jour- on tape telling Haldeman that: themselves without regard to the liberties nalists would not be chilled into bland- The main thing is the Post is going to have of their citizens. Europe and South ness and sameness if it were not for damnable, damnable problems out of this America and Asia are replete with such governmental controls as exercised one. They have a television station. ... And examples. And we in this country can cite through the FCC's fairness doctrine. they're going to have to get' it renewed. some near-misses, the most recent being, I believe that without the fairness doc- KENNEDY AND JOHNSON ADMINISTRATIONS of course, what we have come to know by trine there would be more, not less, pro- But this is not a partisan matter. Fred the shorthand term of Watergate. graming of controversial issues. Friendly has reported that the Ken- And second, it is easy for a govern- Restrictions like the fairness doctrine nedy and Johnson administrations, with ment, with its power to give jobs and are, in my view, self-defeating. Their financial backing from the Democratic favors, to present a solid front in con- September 19, 1978 CONGRESSIONAL RECORD-- SENATE S 15471 trolling information about itself. But it ings on this bill. But nothing further stitutions, private and public organiza- is impossible, with members of a free has happened. The measure still lan- tions, and many more. press competing among themselves, to guishes in subcommittee. The pluralism reflected in these com- conspire to suppress information about I confess, too, that I am partly to peting sources of news and views is the Government or anything else. As Jeffer- blame for this state of affairs. After all, best protection we can have against son once said, whoever heard of a news- I had a part in the establishment of the possible "abuses" by radio broadcasters. paper suppressing a government? fairness doctrine. I was one of its early And once a democratic society gives You might say whoever heard of a supporters. up on this kind of protection-and looks radio station suppressing a government? But since then I have seen the light. instead to Government "protection"- The reverse, as I demonstrated here, has And I hope my colleagues will join me the freedoms we all enjoy are put in happened. It happened in this country, in this new vision and this new insight. jeopardy. it happened recently, and it is likely to Mr. President, I do not stand alone in Mr. President, having said all this, I happen again and again. wanting to take this limited but impor- am going to withdraw my amendment at Freedom of the press can be abused by tant step toward giving fuller meaning this time. The bill presently before us- individual reports, papers, magazines, to our first amendment's guarantee of S. 2883-may not, in the view of some, be broadcasters, or broadcasting stations. freedom of the press. the most appropriate vehicle through But, with competition the drive to be The same concept is included as a part which to attempt to achieve what my best, to be first with the news, to make of the Communications Act "rewrite" amendment seeks. money-there is little or no danger of that was introduced earlier this year in I do not want to see the important all elements of the press forming a the House of Representatives by Con- issue that lies at the heart of my amend- clique or cabal to take over the Govern- gressman LIONEL VAN DEERLIN, the chair- ment obscured by procedural diversions ment, or--and most important-to de- man of the House Communications Sub- that might accompany its introduction ceive the citizens, their customers. committee, and that unit's ranking Re- at this point. FREE SOCIETY IS BEST publican, Congressman Lou FREY. But I do want my colleagues to know Mr. President, this is coming. The Sen- that I shall continue to pursue the vital As long as the Government is kept ate is going to have to face it. The House aims of this amendment-and other re- from the neck of the press by the first is going to have to face it. There are lated efforts on behalf of fuller first amendment, the public should be in- those in the committee on the House side amendment freedoms for the broadcast _ned. And that is why the first amend- that favor this kind of freedom for the media-whenever the opportunity arises. t was written the way it was-as a communications media. Mr. President, I withdraw my amend- direct prohibition against governmental SCARCITY ARGVMENT ment. interference with five basic freedoms: The PRESIDING OFFICER. The Sen- Of religion, of speech, of press, of assem- Chairman VAN DEERLIN has stressed- ator has that right. The amendment is bly, of redress. and quite rightly, in my view-that the argument" can no withdrawn. Let us not brush away the wisdom of so-called "scarcity Mr. HOLLINGS. Mr. President, I the men who wrote the Constitution and longer be used -in attempting to justify control over learned before I ever saw public service its Bill of Rights. continuing governmental that once a judge has ruled with you, But it is easy to do that, Look at what radio programing content. facts speak for you never continue to argue the case. the Government has done already Mr. President, the hard The PRESIDING OFFICER. On what through abridging the freedom of the themselves in this regard. On January 1, are amendment is the Senator speaking? press by imposing controls over the con- 1977, the latest date for which figures Mr. HOLLINGS. I will take time on the tent of radio and television broadcasts. available, there were 8,173 radio stations compares bill to answer my friend on a most im- If there is any risk in the belief that, on the air in this country. This portant doctrine even though the amend- in Jefferson's words: with a total of 2,946 radio stations on the in- ment has been withdrawn; because, yes, ... the people ... may safely be trusted air for that same date in 1952, an we will be here fighting just as vigorously to hear everything true and false, and to crease of over 177 percent. with similar on the other side, because I feel, as a form a correct judgment. And contrast these figures new student of this field, that there is data for newspapers in this country. In wis- And there is-then it is the risk in- only 2,412 newspapers in no question about the efficacy and herent in any free society. But a free 1977, we had dom of a fairness doctrine. safest way of life. It is the United States; 25 years earlier, in society is not the 1952, the figure was 2,331. The Senator starts out by saying, only the best. Let us look, too, at related comparative "Wait a minute, you can't insulate the _. President, for the reasons that I figures for two cities in the United public radio or public TV from the con- 4W been discussing, I shall continue trol of Congress, from the control of the of S. 22, States-Milwaukee and New York. my efforts to secure enactment In Milwaukee, at the end of 1977, there President; you have to take things right so that not only radio-but all broad- on down; you have to admit it is being be freed from the burdens were 24 radio stations on the air-21 casters-may commercial and 3 public. And contrast controlled, and continually, by the doc- of the fairness doctrine and the equal- this with the two newspapers that were trine." time rule. of a fairness MODEST STEP being published in Milwaukee on that Then what is the point same date. doctrine to try to protect you from poli- But if I am right in pursuing the In New York City, there were, at the tical controls? It is a non sequitur. If goals sought to be realized through en- end of 1977, 40 radio stations operating- you follow the Senator's argument, the actment of S. 22, then surely it is proper 33 commercial and 7 public-as com- only thing that has really faced us at all, to ask that we take this more modest step pared with 10 newspapers. and established credibility, and con- of abolishing the fairness doctrine and These same kinds of relative figures tinues to get support for public broad- the equal-time rule in the case of radio are repeated in city after city through- cast media generally, is the fairness broadcasting. out the United States. doctrine. And that is what can be achieved MULTIPLICITY OF VOICES out some years back, through approval of the amendment that This started In view of this multiplicity of voices after the Radio Act was passed in 1912, I offer today. is a reference to it in my gen- Am I pursuing a hopeless cause that radio provides, how can a "scarcity and there argument" be reasonably offered as a eral statement, which I ask to have in- through the introduction of this amend- in the RECORD at this point. ment? Some may think so. sound basis for restrictions like the fair- serted And I am the first to admit that this ness doctrine and equal-time rule? WHAT 6. 22 WOULD DO fight has been a long one. I have been These restrictions are even more ill- S. 22 would eliminate the ban on trying since 1975 to get Senate approval conceived when we stop to realize that editorializing by public broadcasting sta- of my bill to abolish the fairness doctrine our Nation's citizens receive information tions and repeal the equal time provision and the equal-time rule for both radio and ideas not only from radio but also for candidates for public office. It would and television. from a multitude of other sources, in- also wipe out all of the Commission's Earlier this year the Senate Com- cluding television, newspapers; books, other powers to review the content of munications Subcommittee held hear- magazines, newsletters, educational in- programing broadcast by commercial S 15472 CCNGRESSIONAL RECORD - SENATE September 19, 1978 tives * * *. We have argued for structural, the networks in the programming field. The stations. The effects werne lumnmarized. dominance of the networks makes enforce- in 'his testimony economic, and other objective, content-neu- by Robert L. Shayon tral forms of regulation that would better ment of diversification of ownership policies at the 1975 fairness doctrine !hearings,, insure the first amendment goals of diver- an insufficient effort to deal with the con- which dealt with 'an earlier incarnation. sification of viewpoints and :ncreased pub- centration of economic power in TV pro- of the Proxmire bill containing language -lic access. We have fought for these alter- gramming. similar to this year's bill: natives, arguing that they pose less risk than Now, If the :Congress passes this bill, the existing, potentially, subJec;ive forms of Bazelon then went on to propose a FCC would be precluded from comparing FCC regulation. number of policies to increase the di- rival proposals for program service both in versity of programing outlets: applications for construction permits or Lloyd then listed a series of structural The first step is to limit the networks' from considering past and promised per- reforms which he had advocated. Most ability to sell blocks of programming to the formance in license renewal applications. of them involved an antitrust approach licensees and to increase the feasibility of Program service could not be considered in designed to break up concentrations of new networks. 'Second, the Commission petitions to deny or in "Jump applications." ownership. They included: should act to encourage the development of The entire process of ascertainment . . . The Prime Time Access Rule, now a cable, in both pay and lnonpay forms, anA would be thrown out. The Commission couldl part of FCC regulations, which bans the .the further development of UHF .... (T,).here not require information from licensees about networks from using 1 of the 4 prime- -should be 'provision for common -carrier categories of programs nor could it specify ,public stations or common carrier time percentages for either -adequate, substantial time station hours each night. periods on regular public stations, to which or .superior serndce. A licensee could with Divestiture of local newspaper-televi- access may be had by lottery or through impunity drop all news and public affairs sion-radio crossownership, partially im- bidding. .... A fourth strategy would 'be programs, all local programs, 'broadcaSt his plemented in FCC rules ard subject to to . . . increase 'the viability of minority -or her partisan political views and make per.. possible expansion by the courts. taste programming by introducing some ormn sonal attacks without according anyone the Elimination of coowned AMI and FM of subscriber TV service. right to reply -or the public the opportunity radio stations, still -allowed under pres- Proposals like those advocated by io hearng copposing viaevs. A television sta.. ent regulations. tion ,anmpd put -on -n Omr 'of children's -pro-- 'Bazelon and Tiloyd raise questions of the granms om;aaturday Kerning end devote as Enforcement of tMhe "top 50 markets" possible consequences of a repeal of the much .as .30 minutes of that hour to com- policy. Now under-review by the Commis- fairness doctrine and related 'measu mercials -addressed to children. . . . (I)t ·sion, it would prevent broadcasters from like the equal time rule. A reperl c would throw the-whdle question of obscenity 'acquiring more than three television sta- generate strong politcal 'pressure hlto the criminal statutes. .... The Corn.- tions-or two VIF stations-in 'the top structural reforms, and arguments thbt mission would have no discretion or review 50 cities. access in such a context -of content including four-letter words. :mandatory Breakup of clear chamlel radio sta- should be viewed as a constitutlohal re- A POSSIBLE HIDDEN AGENDA: ALTERNATIVES TO tions -into numerous local outlets. quirement by the courts. THE FAIRNESS DOCTRINE Drop-in of additional VTHPF -channels LEGAL HISTORY OF THE FAIRNE6 DOCTRINE The fairness-doctrine is tolerated and ,and ihnprovement of UHF television. even embraced by some broadcasters be- Elimination of restrictions on IpaY This section summarizes seriatim 'the cause they believe that its demise would cable, which has since roccurred in the major legal developments leading -up to precipitate'the passage of more dracon- Home Box Office case. and articulating the fairness doctrine. ian measures designed to break up the JElimination of broadcast-cable cross- The Federal Government began gen- concertration of control in the broad- ownership, currently imposed by FCC eral regulation of the spectrum when casting industry. rules. Congress passed the Radio Act of 1912, cross- which forbade operation of radio trans- William Sheehan, ,president of ABC Elimination of newspaper-cable mitters without a license from the Sec- News, candidly admitted that strategy in ownership, already in effect under a rule ,retary of Commerce and-Labor. Prob- the 1975 hearings: affecting acquisitions and subject to 'ex- lems of interference were rare prior to One difficulty we have with the outright pansion under a court challenge which the first World War, but military re- repeal proposal is that there is no assurance ·could apply it to existing crossowner- that if the fairness doctrine were taken off search accelerated hardware develop- ships. ment. The first standard broadcast sta- the books, it would not be replaced with a In addition to his antitrust measures, new and more onerous obligation.... The tions were established in 1921, and by -large vacuum which some perceive would re- Lloyd supported a mandatory access con- 1923 there -were several hundred such sult from a complete elimination of the fair- cept proposed by the Committee forgOpen stations throughout the country. In 1924 ness doctrine would likely lend renewed Media. In a subsequent 1977 decision, -the 6ecretary of Commerce establlis] credence to those who have argued for a IVttonad -Citizens Committee for -Broad- 'policy of assigning specified frequos system of nmandatory broadcast access. In our casting v. FCC, 41 RR 2d 1311, the Dis- to particular stations. When the number view, sudh a system would be wrong for the trict of Columbia Circuit Court of Ap- public, and unworkable for the broadcaster. of -applicants exceeded the number of peals directed the Commission to recon- -vailable frequencies, the SecretarY ini- Not only would the repeal generate sider She COM proposal, which woUld 'tiated a policy of dividing frequencies political pressures for mandatory access establish a presumptive compliance with into time segments, limiting the hours of and related measures; it might give the the fairness doctrine for stations which operation of stations to enable several courts a plausible basis for imposing such set aside 1 hour per week for public stations to use the same channel. measures on .constitutional grounds. access. Half 'of the time would be opened -Court decisions restricted the Secre- Henry Geller has-compared'the broadcast up on a first-come-first-se'ved basis, and tary's power. In RHoover v. Intercity Radio license to public auditoriums to find such the other half would be offered to repre- Co., 286 PF. 1003, the District of Columbia a requirement: sentative spokespersons selected by the Circuit Court of Appeals held that the Suppose the Government were to license licensee. Secretary had no statutory authority the use of the main park in Jackson to one The most prestigious proponent of to deny a license to an otherwise legally party, the White Citizens Council. for three structural reforms has been David L. qualified applicant on the ground that years, and allow nobone else to use that park judge of for parades, rallies, etc.; and suppose black Bazelon, who in 1975 was chief the proposed station would interfere with groups sought the right to present their pa- the District of Columbia C:ircuit Court of existing private or Government stations. rades or rallies. Clearly they would succeed Appeals. In a speech that year at Duke In 1926 an Illinois district court held in striking down the above governmental ac- University, Bazelon attadked the main that the Secretary had no power to im- tion as unconstitutional. rationale used to justify the fairness pose restrictions as to frequency, power, Public interest groups have supported doctrine-scarcity of spect:rum. and hours of operation, and that a sta- the doctrine as a second-best choice; (I)t is important to distinguish between tion's use of a frequency not-assigned to many have stated that they would pre- the power gained by oligopoly ,in the produc- it was not a violation of the Radio Act fer to replace the fairness concept with tion of news and entertainment programming of 1912. United States v. Zenith Radio -for radiibo nd TV and the power inherent in Corp., 12 P. 2d 614. Soon thereafter the more basic charges. Thus, Frank Lloyd, the medium. .... The problem ,is aot "scar- representing the Citizens Communica.- cltty" . ..'but rather simple, ,old-fashioned Acting Attorney General issued an opin- tions Center at the 1975 hearings, stated coneentration of econoplc,power and owner- ton stating his agreement with 'the dis- that his -organization 'had- ship of'TV facilities. . . 'rT)'he major-con- trict couft,'and the neat day ithe Wecre- Consistently attempted to foster alternr- centration is caused by the. dominance of tary of Commerce announced that he September 19, 1978 CONGRESSIONAL RECORD - SENATE S 15473 was withdrawing from attempts to regu- guage which was often cited in later de- private citizen; instead, his actions grew Out late radio transmission. cisions, the Commission said: of a politically motivated campaign to use the The resulting chaos led to passage of Where a licensee permits the use of its fa- fairness doctrine to harass stations airing the Radio Act of 1927, which created the cilities for the expression of views on con- right-wing commentary, an effort inspired Federal Radio Commission. Its main pro- troversial local or national issues of public and managed by the White House and the importance such as the nuclear weapons test Democratic National Committee and financed visions were later incorporated in the in large measure with political contributions. Communications Act of 1934, including ban treaty, he must afford reasonable oppor- power to license in the "public interest, tunities for the presentation of contrasting Emboldened by the Red Lion opinion, views by spokesmen for other responsible the convenience, or necessity." Section 3(h) groups.... (T) he public's paramount right commission revoked the license of a expressly provided, and still provides, to hear opposing views of controversial issues station in Media, Pa., which was in- that: of public importance cannot be nullified directly controlled by the Reverend Carl A person engaged in radio broadcasting by . . . the inability of the licensee to obtain McIntire. Brandywine-Main Line Radio shall not ... be deemed a common carrier. paid sponsorship of the broadcast time.... v. FCC, 473 F.2d 16 (1972) upheld the The background of the Cullman letter decision. The station had refused to offer Early decisions laid the groundwork for reply time after broadcasting statements the fairness doctrine. In 1929 the Federal did not become public knowledge until 1975, when Fred Friendly by McIntire which were said to be "de- Radio Commission held that the "public published an liberate distortions of the facts relating interest requires ample play for the free article on the fairness doctrine in the New York Times magazine. to various public issues such as race re- and fair competition of opposing views It stated: lations, religious unity, foreign aid, et and the commission believes that the It was. in 1963 that the doctrine began to change from a vague public-interest policy cetera." The minister was also said to principle applies * * * to all discussion have made "'intemperate' attacks on of importance to the public." to an instrument of politics and inhibition. Great Lakes That year, President Kennedy worried that other religious denominations and Broadcasting Co., 3 F.R.C. Ann. Rep. 32, one of the noblest goals of his Administra- leaders, various organizations, govern-. 33 (1929), rev'd on other grounds, 59 App. tion-the nuclear test-ban treaty with the mental agencies, political figures, and D.C. 197, 37 F. 2d 993, cert. dismissed, 281 Soviet Union--was being Jeopardized by international organizations." U.S. 706 (1930). For an extended period right-wing commentators who denounced the In Columbia Broadcasting System v. the licensee was obliged not only to cover treaty and argued against its ratification. His political strategists monitored stations Democratic National Committee, 412 and to cover fairly the views of others, broad- U.S. 94 (1973), the Supreme Court over- _ also to refrain from expressing his casting such commentary and then prompted test-ban treaty advocates to demand time to turned a lower court ruling which might _lh personal views. Mayflower Broad- state their side of the Issue, citing the fair- have provided a mandatory access alter- casting Corp., 8 F.C.C. 333 (1940). ness doctrine In their letters to the stations native-to the fairness principle. The de- The Commission made its first explicit involved. The campaign resulted in a dra- cision upheld an FCC ruling that tele- statement of the fairness doctrine in its matic number of broadcasts favoring the vision stations were free to impose a flat 1949 report on editorializing by broad- treaty in areas of the country where such views might ban on all paid public issue announce- cast licensees. The report repealed the not otherwise have been heard. ments. The Burger opinion stated that ban on editorializing and established a The White House believed this political use of the fairness doctrine hade made an im- Congress had consistently rejected ef- twofold requirement, first, that the portant contribution to the eventual Senate forts to impose on broadcasters a "com- broadcaster cover important issues, and vote to ratify. mon carrier" right of access for all per- second, that it provide coverage of vari- sons wishing to speak out on public ous viewpoints on the controversial is- The most famous fairness doctrine issues. The chief justice emphasized that sues it did cover. case came in 1969-Red Lion Broadcast- the Commission ing Co. v. F.C.C., 395 U.S. 367. The Red was- Congress endorsed the doctrine in 1959. Entitled to take into account the reality While amending the statutory require- Lion decision actually involved two cases that in a very real sense listeners and viewers ment of section 315's equal time provi- which were consolidated for purposes of constitute a "captive audience." . .The. sion to except certain appearances of review. In one of them, the FCC had or- "captive" nature of the broadcast audience candidates on news programs, it added dered the Red Lion Broadcasting Co. to was recognized as early as 1924, when Com- language stating that the change consti- offer reply time following a personal at- merce Secretary Hoover remarked at the tuted no exception "from the obligation tack on a journalist named Fred J. Cook. Fourth National Radio Conference that "the imposed upon them under this act to op- The attack had come during a 15-minute radio listener does not have the same option broadcast that the reader of publications has-to ig- erate in the public interest and to afford by the Reverend Billy James nore advertising in which he is not inter- reasonable opportunity for the discussion Hargis as part of a "Christian Crusade" ested-and he may resent its invasion of of conflicting views on issues of public series. Hargis attacked Cook's latest his set." Id. at 127-128. *rtance." Act of September 14, 1959, book, "Goldwater: Extremist on the I_ Stat. 557, amending 47 U.S.C. 315 Right," and claimed by that Cook had The Court nevertheless held open the (a). The language which survived in the been fired by a newspaper for making possibility that: statute is comparatively mild compared false charges against city officials; that (c) Conceivably at some future date Con- to the language initially proposed by Cook had then worked for a Communist- gress or the Commission-or the broad- affiliated casters-may devise some kind of limited Senator PROXMIRE, which read as fol- publication; that he had de- right of access that is both practicable and lows: fended Alger Hiss and attacked J. Edgar desirable. Id. at 131. (B) ut nothing in this sentence shall be Hoover and the Central Intelligence construed as changing the basic intent of Agency; and that he had now written a Twenty-five years after its first report Congress with respect to the provisions of this "book to smear and destroy Barry Gold- dealing with the fairness doctrine, the act, which recognizes that television and ra- water." Commission issued a second fairness re- dio frequencies are in the public domain, that port in 1974. The main accomplishment the license The Supreme Court upheld the FCC's to operate in such frequencies re- directive to provide reply of that document was to reverse the ear- quires operation in the public interest, and time for Cook, lier direction set by the FCC in the that in newscasts, news interviews, news doc- and it also sustained the Commission in the face 1960's. In a decision which was upheld in umentaries, on-the-spot coverage of news of a challenge to its personal Banzhaf v. F.C.C., 405 events, and panel discussions, all sides of attack rules, adopted after the Red Lion F. 2d 1082 (D.C. public controversies shall be given as equal litigation was begun. Those rules had Cir. 1968), the Commission had issued an opportunity to be heard as is practically been a ruling requiring radio and television challenged in a separate action by station which carried possible. 105 Cong. Rec. 14457. the Radio Television News Directors As- cigarette advertis- sociation. ing to devote a significant amount of The Proxmire amendment was altered broadcast time to presenting the case in conference and survived in the lan- Fred Friendly's New York Times Mag- against cigarette smoking. Though it guage cited above. azine article in 1975 created a minor later sought to distinguish cigarettes as The doctrine began to take a more defi- scandal and played a significant role in a special case, the Commission found it- nite shape in 1963, when the FCC sent that year's fairness doctrine hearings self in trouble when the District of a letter to the Cullman Broadcasting Co. with its revelations about the background of Columbia Circuit Court of Appeals re- Cullman, Ala., ordering it to play a of the Red Lion case: fused to accept the limitation and found tape sent to it by the Citizens Committee Fred Cook, it turns out, did not bring his no logical basis on which to distinguish for a Nuclear Test Ban Treaty. In lan- action against WGCB simply as an offended advertisements for high-powered auto- S 15474 CONGRESSIONAL RECORD - SENATE September 19, 1978 mobiles. The excessive pollution caused persons associated with the candidates in the campaign; talk about the fairness dootrine,-andtthey by such automobiles was said to consti- and (iti) to bona fLde newscasts, really begin tute bona fide news interviews and on-the-spot to think they own the pub- a public health threat. Friends of lic's airwaves, that they have got the Earth v. FCC, 449 P. 2d 1164 (D.C. coverage of a bona fide news event (includ- a right. ing commentary or analysis contained in the You know, everyone has a right to every- Cir. 1971). In its 1974 fairness report, foregoing thing: A the Commission's programs, but the provisions of right to trial, a right to a law- response was to retract paragraph (a) shall be applicable to editori- yer-we cannot finance it all. It seems the Banzhcf decision and limit the doc- als of the licensee). trine's application they have a right, not to equality of op- to commercials This section applies to AMi radio. portunity, but "which are devoted in an obvious to equality of results; "I and Sections 73.300, 73.598, 73.679, and have a first amendment freedom of meaningful way to the discussion of pub- 76.209 lic issues." apply identical personal attack speech right." rules to commercial FM, noncommercial If we were to assume that to be the A case which is often mentioned in FM, television, and origination cable- case, heavens above, you would assume discussions of the fairness doctrine is casting, respectively. All track the lan- no one could have access to the airwaves. Miami Herald Publishing Co. v. Tornillo, guage of the AM provision cited above. You would assume as our friend Henry 418 U.S. 241 (1974). That decision struck The fairness doctrine has not been fur- Geller did, that they could come on the down a Florida statute which sought to ther delineated in FCC rules. Commis- air, as just like the case of apublic park. provide a right of access to persons at- sion practice since 1962 ha;s been to re- I think he was alluding to a .particu- tacked in newspapers. view alleged violations on a case-by-case lar case at the time, that ,you would have The last major case dealing with the basis, without waiting until the station a public park in a town, and you would doctrine was National Broadcasting Co. comes up for a license renewal. It has say no one else in that towm could use against PCC, a 1974 D.C. Circuit ruling not attempted to impose any require- that public park to demonstrate or pa- popularly dubbed Pensions.' In it the ments governing the precise amount of rade except the Ku Klux Klan. How long court reversed a Commission ruling that time accorded to different sides of con- would that last? I think they tried that NBC had failed to-present both sides of a troversial issues under the :fairness doc- once here. controversial public issue, the quality of' trine. Notwithstanding what we are doing private employee pension plans. The FCC The equal time arovision, which ap- with respect to 8,000 or 9,000, a little less had acted in response to a petition by plies to political candidates, is separate than 10,000 broadcast and TV stat_ Accuracy in Media, Inc., wfiich com- and distinct from tie fairr.ess doctrine. owners, what about the two hundW plained about the allegedly one-sided The fairness doctrine has not been inter- twenty million nine hundred ninety some presentation concluding with 'the follow- preted as requiring equal time for op- thousand other Americans? Are not we ing summation by narrator Edwin New- posing viewpoints. the group? Are not we the people, 'the man: As I say, back in 1929, M.r. President, ones who are really guaranteed, with the Our own conclusion about all this, is that the Federal Radio Commission held: fairness doctrine, the first amendment it is almost inconceivable that this enormous The public interest requires ample play right? thing has been allowed to grow up with so for the free and fair competition of opposing That is the freedom of speech. Where little understanding of it and with so little views. have we placed protection and such uneven results for those ourselves as a people? Let involved. I repeat that. This is back in 1929, this me refer, if you please, to Justice Burger under The situation, as we've seen it, is deplor- is not the fairness doctrine. This is what the Columbia Radio Broadcasting able. was the thinking back f.n President System case in 1973. The Chief Justice emphasized The Hoover's day, when he was Secretary of that the Commission was en- Court of Appeals reversed the titled to take into account the reality Commission, concluding that NBC had Commerce just before he became Presi- dent: that in a very real sense listeners and acted reasonably and in good faith (516 viewers-that is, we the people-con- F.2d at 1125-32). The public interest requires ample play for the stitute a captive audience. CUaRENTr FCC free and fait competition of opposing MWU.S IP.LSMEkrI[NG THEE views, and the Commission The captive :DQCTRINE believes that nature of the broadcast the principle applies.... to all discussions audience was recognized as early :as 1924, Several 'Commission regulations give of importance to the public. to quote Justice Burger, "When Com- detailed outline to'the fairness doctrine. merce Secretary Hoover remarked at the They include: There you are. Adding up the first amendment rights going back to Jeffer- Fourth National Radio Conference that, The personal attack rule, section son, let us remember it was Jefferson 'The radio listener does not have," 73A23 (a) and (b), which read as fol- who said: same option that the reader of pub_ tions has, to ignore advertising lows: As between a free newspaper and a free in vlq- (a) When, during the ;presentation of government, I would select a free newspaper. he is not interested, and he may resent views on a controversial issue of public im- its invasion of his set.' " Re is in the cap- portance, an attack is made 'upon ,the hon- He knew which could control themost. tive audience. esty, character, integrity or like personal He knew, as we all do now, that it We the people have the first amend- qualities of an identified person or group, was not "We, the press" or "We, the Con- ment. the licensee shall, within a reasonable time The Constitution is for we the peo- gress," or "We, the Supreme Court," but, ple of the United States, and in no event later than one week after as stated not -we the the in the preamble to the Con- 10,000 licensees. Do not try to slough this attack, transmit to the person or group stitution, "We attacked (1) notification of the date, time the people cf the United off and compare it to newspapers. Phy- and identification of the broadcast; (2) a States, in order to form a more perfect sically speaking, there is not any more script or tape (or an accurate summary if union," and so on. spectrum in certain areas to allocate. All a script or tape is not available) of the at- Let us look and find out whose first you need for a new newspaper is money. tack: and (3) an offer of a reasonable oppor- amendment rights. under that Constitu- And in some cases there are eleemosyn- tuntiy to respond over the licensee's facili- tion, are to be protected. ties . ary publications which are mailed with- The people's rights. Because the dis- out charge. I can get a press and -grind (b) The provisions of paragraph (a) of tinguished presiding officer, myself, the out anything and this section shall not be applicable (i) get it around. I canadl- to Senator from Wisconsin, and everyone ways get a newspaper. Do not worry attacks on foreign groups or foreign public else in here, presumably figures; (ii) to personal attacks which are lias no radio about that. Of course, the great dangers made by legally qualified candidates, their station rights or franchise. But we cer- are the big mergers and buy-ups, accord- authorized spokesmen. or those associated tainly have airwaves that belong to us. ing to the program the Senator from with them in the campaign, or other such Those airwaves belong to tlhe people of Wisconsin was quoting. candidates, their authorized spokesmen, or the United States, and, adm ittedly are to The truth is that in the large cities be used for the public benefit. For that the spectrum reason we instituted is overallocated. You 1516 F:2d 1101,reversal vacated &rehearing a franchise system cannot get any.more spectrumifor bnoad- es;Banc granted, -516 .2ed -1155. rehearing en of licensing after hearing, -and the li- cast without major changes in -present banc Mavt.l,f:16 :F.2d 1156, second -reversal ouse-sare,give that erclusive franehise, allocation policy. You-can go to the rural varated s n mat X remanded with direction with -irtmWn duties, muderaa'public trust. areas, technically, but you cannot take to vacate initial order and dismiss complaint, Oh, I have been to some of the broad- from those areas and increase in satu- 516 P.2d 1180 (D.C. Cir. 1974). casters' conventions, and I: have heard rated areas. September 19, 1978 CONGRESSIONAL RECORD - SENATE S 15475 Incidentally, under the conference re- instance of Democratic and Republican because the newspapers have done a port that we agreed to just last week Presidents who, to some extent, have better job. The job they did on Water- with respect to the Federal Communica- tried, and succeeded to some extent, in gate was probably the finest job news- tions Commission appropriations, in- dominating newspapers. papers ever did in this country. I think creased the appropriations to try to Furthermore, I think the Senator from we all would have to agree they are more technically redesign sets and improve South Carolina should recognize this is competitive, more comprehensive, than the UHF spectrum channels so as to in- not 1929 which he quotes, but this is ever before. If you give that kind of free- crease that portion of the spectrum. That .1978, a time when the technology has dom to radio and television there is no is fine, but that is the difference. transformed electronic media. We now reason they should not develop along the In the newspaper you can print what have far more, as I pointed out-and I same lines with exactly the same kind of you want to and others will buy or not would like him to meet this argument- free competition we believe in in the eco- buy it. They are not captives. far more radio stations available, far nomic marketplace. I say apply it to the Recognizably, once you turn on a set, more easily and cheaply available, than area of good ideas. and we all have them, radio being what newspapers. We have a situation in which Mr. HOLLINGS. Very well. Mr. Presi- we are talking about, then we are as the people get their news primarily not dent, are there any further amendments? Chief Justice Berger has said, "a captive from newspapers but from radio and The PRESIDING OFFICER. The bill audience." television. is open to further amendment. If there The fairness doctrine goes to just ex- So if the Senator really believes in free- be no further amendments to be pro- actly what the Senator is concerned dom of the press, if he believes in the posed, the question is on the engrossment about, first amendment rights, only he competition of ideas, if he believes what and the third reading of the bill. speaks for first amendment rights for our Founding Fathers found was neces- The bill was ordered to be engrossed some 10,000 at most. Actually, if you sary, that you have to protect the people for a third reading and was read the want to get technical there, there are from the Government itself by prohibit- third time. only 933 in public radio broadcasting. He ing the Government from interference or Mr. HOLLINGS. Mr. President, I ask is talking, if you please, in his amend- interfering with the freedom of the news- unanimous consent that the Senate pro-. ment, which was proposed and with- papers and protect the people in doing so, ceed to the consideration of Calendar drawn, for 933 Americans as composed to then I say you should apply that to radio Order No. 903, HR. 12605. almost 220 million that I speak for, and television and do as the House sub- I am replacing the Senate bill with Upeople in general. committee itself is doing, or the direc- the House bill. Vr. PROXMIRE. Will the Senator tion in which they are moving, exempt The PRESIDING OFFICER. Without yield? radio from the fairness doctrine and the objection, it is so ordered. Mr. HOLLINGS. I yield. equal time rule. Then you have real free- The bill will be stated by title. Mr. PROXMIRE. I am delighted the dom, real competition, and a far more The legislative clerk read as follows: distinguished Senator from South Caro- vigorous electronic media. A bill (H.R. 12605) to amend the Com- lina has chosen to respond to this. I was Mr. HOLLINGS. If the Senator is going munications Act of 1934 to extend and im- afraid he would not. I am very impressed. to quote the Founding Fathers, let us prove the provisions of such Act relating to He always is a very brilliant speaker, agree they never heard of a radio spec- long-term financing for the Corporation for very logical, and very persuasive. I do trum. But where a speaker can enlarge Public Broadcasting and relating to certain hope with his quick mind and his great upon his own speech, transmitting it in a grant programs for public telecommunica- ability he does not take as long as I did controlled fashion, namely on radio tions, and for other purposes. to change my mind. waves, air waves-to broadcast it-then The PRESIDING OFFICER. Without As he knows, I was one of the prin- your licensing becomes necessary to pro- objection, the Senate will proceed to the cipal authors of the fairness doctrine tect the spectrum. For the few, for the consideration of the bill. back in 1958. How wrong I was. It took benefit of the many we have that licens- Mr. HOLLINGS. Mr. President, I move me a while to learn, but the Senator ing scheme, and invest licensees with the to strike all after the enacting clause of from South Carolina is a quicker learner. public trust. It sometimes seems that H.R. 12605 and that the text of S. 2883, Mr. HOLLINGS. With that remark, they do not want that public trust once as amended, be substituted for the text Mr. President, the Senator from South they have it, but you ought to hear them of H.R. 12605 as reported and as Carolina now is ready to move for third when they apply for a initial license. We amended. reading. do not want to go into all of that. The The PRESIDING OFFICER. The ques- Mr. PROXMIRE. May I tell the distin- fact is they do have a public trust; they tion is on agreeing to the motion of the ted Senator that, of course, what he do have certain responsibilities arising Senator from South Carolina. mlone is he has said he does not want out of that trust. The motion was agreed to. t"alk about just the 'rights of a few If the Senator is right about his anal- The PRESIDING OFFICER. The ques- thousand radio station owners or a few ogy, there is nothing due the minorities tion is on the engrossment of the amend- hundred television station owners, but nothing due the handicapped, nothing ment and the third reading of the bill. it is the right of the people which counts. due with respect to sex discrimination. The amendment was ordered to be en- How right he is. That is exactly what I am sure the Senator, as a leader in grossed and the bill to be read a third the Founding Fathers had in mind when civil rights, would not want to say, since time. they wrote freedom of the press as the the Founding Fathers did not have any The bill was read the third time. first amendment to the Constitution. blacks in radio stations when they passed The PRESIDING OFFICER. The bill They were not thinking of the owners of the Constitution, they would never get having been read the third time, the the newspapers. They were thinking any. I am confident of that. question is, Shall it pass? about the people who get the newspapers, What he is trying to say now is once a The bill (H.R. 12605) was passed. who read the newspapers, who rely on broadcaster has received that license he Mr. HOLLINGS. I move to reconsider the newspapers for news. then does not owe any more duties to the the vote by which the bill was passed. No matter how my friend from South people who gave him that privilege to Mr. PROXMIRE. I move to lay that Carolina squirms, no matter how he broadcast. I am saying that he does. I motion on the table. moves, no matter what magic he weaves am saying one of his duties is to provide The motion to lay on the table was with his oratory, he cannot escape from balanced treatment to the American agreed to. the fact that the newspapers of this people on controversial and important Mr. HOLLINGS. I ask unanimous con- country have been free of censorship; issues. That has been a finding substan- sent that the Secretary of the Senate be they have not had an FCC guiding them. tiated by this Congress and the courts authorized to make technical and clerical They have not had to be licensed. They under the Constitution. I think it is corrections in the engrossment of IHR. have been free. sound, 12605, as it passed the Senate. What have we gotten out of that? Mr. PROXMIRE. I say to my good The PRESIDING OFFICER. Without Greatly improved newspapers, a greatly friend, take a chance on freedom. It has improved objection, it is so ordered. press. We have had freedom worked for the American newspapers Mr. HOLLINGS. Mr. President, I ask of Government domination or censor. I brilliantly. Our newspapers have vastly u.nanimous consent that consideration of have cited specific instance after specific improved. Our people are more informed S. 2883 be indefinitely postponed. S 15476 'CONGRESSIONAL REC:ORD - SENATE September 19, 1978 The PRESIDING OFFICER. Without basis of the Navy experts' findings, a fair to reduce or eliminate losses incurred by objection, it is so ordered. and equitable settlement could have been defense contractors? Mr. HOLLINGS. Mr. President, I move achieved. Instead, the Secretary of the The two shipbuilders have experienced that the Senate insist on its amendments Navy took the findings of his experts and large cost overruns on their ship con- to H.R. 12605, as passed by the Senate, added in lump sum pa3yments totaling tracts. The cost overruns are the cause and request a conference thereon with $541 million. As a result, the taxpayer is of the claims. Why did the cost overruns the House of Representatives and that being forced to pay $978 million for occur and who should be responsible for the Chair be authorized to appoint the claims which the Navy experts found are them? conferees on the part of the Senate. worth only $437 million. These are precisely the questions the The motion was agreed to and the Pre- Uncle Sugar-in this case, Uncle Sap- Navy experts addressed when they ex- siding Officer (Mr. PAUL G. HATFIELD) is handing over to the two defense con- amined the claims. They concluded, as I appointed Mr. CANNON, Mr. HOLLINGS, tractors $541 million in "financial relief." indicated earlier, that most of the re- Mr. MAGNUSON, Mr. GRIFFIN, and Mr. The distinguished cartoonist for the sponsibility is the shipbuilders'. They re- SCHMITT conferees on the part of the Washington Post, Herblock, was so out- jected most of the shipbuilders' claims. Senate.' raged that he drew these two cartoons, The reason they rejected most of their Mr. HOLLINGS. Mr. President, I thank which I have here in the back of the claims is that the shipbuilders themselves my distinguished colleague from Wiscon- Chamber. The cartoons point to the are responsible for most of the cost over- sin for his interest, his indulgence, and marvelous position that defense contrac- runs. his courtesy in this -matter, and for his tors find themselves in. What they do is There is amule evidence that the cost consideration. I think particularly the say to the Pentagon, "Pay off or we will overruns occurred because of the incom- Presiding Officer and the Senator fro.t stop production and you will not get your petence and mismanagement of the two Alaska, who has been leading the way. ships." As Herblock points 'out in the defense contractors. cartoon on the far side, the Pentagon We had hearings on this before the waves its white flag and caves in-gives Joint Economic Committee. We have had NATURAL GAS POLICY ACT OF in. hearings over the last 2 years on this. 1978--CONFERENCE REPORT I want to point out in detail how out- We have documented this incompetence. Mr. PROXMIRE. Mr. President, what rageous this settlement is. Before I do We have had people from the shipyards is the parliamentary situation now? that, I call attention to the other cartoon come in and testify to it. Managen3 t The PRESIDING OFFICER. Under the by Herblock, "Arrivals and Departures," personnel has done so. Labor pers previous order, the Senate will resume pointing out how the President of the has done so. The incompetence is'lW consideration of.the conference report on United States, by vetoing the aircraft rageous and they do not like it. H.R. 5289. carrier, saved hundreds of millions of The bailouts are thus a huge subsidy The Senate resumed consideration of dollars. However, we turn around and of waste, incompetence and inefficiency. the conference report. ship out those hundreds of millions of But worse-much worse-they are a The PRESIDING OFFICER. The Sen- dollars-not to get any hard equipment, precedent that could invite a Niagara of ator from Wisconsin not to strengthen our military force, but waste, incompetence and inefficiency. Mr. PROXMIRE. Mr. President, is just as a payoff to incompetent, ineffi- NATIONAL SECsUr1' there any time limitation? cient contractors above their contracts and above their value in claims. The concern has been created in the The PRESIDING OFFICER. There is minds of manv Senators that without the no time limitation. Navy Secretary Claytor says, in de- fense of these bailouts, that they will bailouts the Navy may not get the ships avoid "years of litigation, with a sub- that are vital to the national security. THE GREAT NAVY SHIPBUILDING stantial risk of greater cost to the Gov- This is a legitimate concern raised by the BAILOUT ernment as well as disruption of vital actions of the Navv. After all, when the Navy shipbuilding programs." Navy quakes in its boots and raises a Mr. PROXMIRE. Mr. President, I shall In addition, Claytor says that the large white flag-as Herblock has depicted in speak as briefly as I can, but I think this losses which the two shi pbuilders are his dramatic cartoon-every time the is an extremely important matter that I being forced to accept will discourage shipbuilder threatens to shut down un- am taking up tonight and I must call it other contractors from attempting "to less its demands are met, we are entitled to the attention of the Senate because obtain the kind of relief that these set- to question whether the ships will be of the time involved. tlements provide for." Let us take a look built. When the Senate adjourns tonight, the! at each of these justifications. First, the But I asked this question direct Lto bell will have tolled on the payment of argument that the two contractors are -Secretary Claytor in a hearing lesinn a $359 million bailout on one defense! suffering large losses. 2 weeks ago. On September 8 I kd contractor, and by the end of the Friday Mr. President, the contracts that are Claytor if the Navy was afraid that it session, the bell will have tolled on a the basis for the claims in question will would not get the ships unless these pay- $182 million bailout to another Navy con- not be completed for several: years. Many ments were made. Claytor said the Navy tractor. A total of $541 million in bailouts of the ships in question are still under knew it could get the ships. Secretary will have been tacitly approved by the construction and will not be delivered for Claytor testified that the construction Senate. months and years to come. Thus, we are of the ships would not be stopped. These bailouts are incorrectly referred talking about hypothetical losses which Of course, the Navy can see to it that to as "settlements" of Navy shipbuilding the shipbuilders may realize when the its ships are built. There is ample re- claims disputes. But they are not settle- contracts are fully performed. There course through the courts and the law ments at all. The $541 million is being may, in fact, be no such losses, or they to obtain ships needed for national se- handed over to the shipbuilders as sweet- may be far below present estimates. curity. eners above-and beyond what the Navy As I point out, if the estimated losses, In the few instances of threatened experts found were owing to the con- which only the contractor has esti- shutdowns by Navy shipbuilders in re- tractors for their claims. mated-the Navy has not made an esti- cent years, the Navy has obtained in- The Navy experts found General Dy- mate, only the contractor has-if they junctions from the courts requiring con- namics' claim of $544 million is worth have, which they may very well have, struction to continue. $125 million. In other words, they found exaggerated these losses, then they can I challenged the Secretary of the Navy that it is worth less than one-fourth of lose money. They can lose over $100 mil- and the Assistant Secretary to cite me what they claimed. lion, for example, and make a nice fat one case where they could not get the in- I might point out that this Navy Board profit on the loss. That is how bad these junction. They could not, because there that made this finding was a competent, contracts are. were not any. expert, professional board, whose find- The hypothetical losses can even be Would the contractors go bankrupt if ings have not been challenged. They transformed into profits at the taxpay- they were not bailed out by the Navy? found that Litton's claim of $1.1 billion ers' expense. The answer is no. The Secretary of the is worth $312 million or less than a third But even if there are losses, the bail- Navy has testified and the facts confirm of what they claimed, about 30 percent. outs are unjustified. Where Is it written the Navy's conviction that neither of If the Navy had settled the claims on the that the taxpayer must spend his money these firms would go bankrupt if they