The CHAIRMAN. And that has been interpreted literally as censorship over any material? Does that apply to material that might be regarded as salacious or immoral?

Mr. COTTONE. The Commission has not interpreted that in any situation other than where the station attempted to censor material because it was libelous. The Commission has not ruled on any other situation. The Commission's ruling confines itself to the situation where libel is involved.

The CHAIRMAN. Have there been any specific cases where a radio station has been subjected to a libel suit and the radio station has pleaded as its defense the ruling of the Commission?

Mr. COTTONE. The Felix case was one.

The CHAIRMAN. What was the Felix case?

Mr. COTTONE. The Felix case was one involving a suit against a station in Philadelphia for an alleged libel by a person who was speaking in behalf of the candidate for public office. The defense made in the Felix case was that section 315 applied not merely to a candidate for public office, but to one speaking for a candidate for public office, as the particular person involved was doing.

In the district court it was held that the station's defense was correct in that instance; that since the section covered not merely statements by the political candidate himself, but statements by one speaking for the political candidate, it precluded the station from censoring not only the statements of the political candidate, but the statements of anyone speaking for him, and therefore the station was not liable. However, on appeal the question turned on whether this was actually covered by section 315, because this particular person was not the political candidate himself, and the court held that the station was not precluded by section 315 from censoring the content of a speech that was given by a person speaking in behalf of a candidate for public office.

So to that extent there was a pleading of the defense of the Commission's ruling, or of the provision in section 315.

Mr. KEATING. But they did not decide the question whether, if it was the candidate, that provision would be a valid defense?

Mr. COTTONE. That is right. As I said before, that would have to be implicit in the ruling of the court. The ruling of the court was not a direct ruling on that question.

The CHAIRMAN. Let me carry this a little further. The last sentence of paragraph (a) of section 315 is:

No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate.

Does that mean that if Candidate A goes to Station B with a speech which is obviously libelous, that Station B can deny the use of its facilities to that candidate?

Mr. COTTONE. It depends on whether the facilities have previously been allowed a candidate.

The CHAIRMAN. Suppose they have.

Mr. COTTONE. Then I would say under the Port Huron case the station may not refuse the use of its facilities.

The CHAIRMAN. Then the station (1) has no right to censor, and (2) has no right to deny the use of its facilities for something that is obviously libelous?

Mr. WALKER. Provided it permits the use of its facilities by any other candidates. It does not have to permit the use of its facilities to any candidate, but if it permits it to one it has to permit it to all.

The CHAIRMAN. Take a specific case. X is a candidate and he makes a speech that is not libelous. Y is a candidate and he comes in with a speech in answer to X which is obviously libelous. In that case the station would have to permit Candidate Y to make the libelous speech?

Mr. COTTONE. Yes.

The CHAIRMAN. You also maintain that under the Port Huron case that station could not be held in damages for libel?

Mr. COTTONE. We said if it is correct that the station is under a disability to censor, obviously it could have no culpability where it has no means of protecting itself. It follows as a matter of logic that if section 315 means what Congress intended it to mean, a station could not have liability imposed on it if it was unable to take necessary measures to protect itself.

Mr. WALKER. That is not by our ruling, but by the act of Congress itself.

The CHAIRMAN. But other than the Felix case, you know of no specific court decision on that point?

Mr. COTTONE. I must say this: Before the Port Huron case there was the case of Sorenson v. Wood, which we dealt with in our Port Huron decision; we referred to it in our Port Huron decision. That case was, as I recall it, also not a situation in which there was a use of the facilities by the candidate himself. The court's ruling implicitly assumed that this section was applicable to a person whether or not he was the candidate himself.

If you were to take the ruling of the court in the Sorenson case, you could say a contrary result was reached from the Commission's decision. But as a factual situation, it was not the candidate himself making use of the facilities in that case, so there was no disability on the part of the station to censor that.

The CHAIRMAN. It seems to me there was a decision rendered a few years ago I don't remember the name of the case-against a radio station which had permitted a candidate to call another candidate a Communist.

Mr. COTTONE. That was the Felix case. The Felix case was specifically a case where the libel claimed was that the speaker had accused another person-I don't remember if it was another candidate-of being a Communist, or of having Communist affiliations.

The CHAIRMAN. Do you maintain that under that decision if the candidate himself had called Candidate B a Communist, that there would have been no liability on the part of the station, but because the candidate's agent called the man a Communist, there is liability, because the court did award damages, if I remember correctly.

Mr. COTTONE. That is right, that the station was under an obligation to take what measures were necessary.

So under the reasoning of the Port Huron case, and under the interpretation of section 315 as it has been interpreted by the courts, a station would be liable under State law, assuming the State law makes it liable under those conditions.

The CHAIRMAN. When was section 315 enacted?

Mr. COTTONE. If first appeared in the Radio Act of 1927, as I recall it. There were no significant amendments until 1952, this year.

The CHAIRMAN. Until the Port Huron case, was there any question about the right of a radio station to censor libelous material of a candidate?

Mr. COTTONE. Yes. I think we had a situation where some stations took the position they would not censor because of this provision, and other stations took the view where libel was concerned they would take necessary precautions to see that a candidate himself did not have libelous material in his speeches. As far as my understanding goes, there was not complete unanimity on the part of the stations. The CHAIRMAN. Does the same rule apply to television? Mr. COTTONE. Yes, sir.

The CHAIRMAN. This is a policy question, and you can answer it if you like. Do you feel that this provision is in the public interest? Mr. COTTONE. The Commission has already taken a position on that.

The CHAIRMAN. What is the Commission's position?

Mr. COTTONE. The Commission's position has been that this provision is a sound provision, and, as a matter of fact, as the chairman will point out as he goes along, there has been a proposal to extend the provision of section 315 to apply to authorized spokesmen of candidates.

The CHAIRMAN. What happens in the case of a crackpot, a man who is insane and who is a candidate for public office?

Mr. COTTONE. He is a legally qualified candidate?

The CHAIRMAN. Yes. He goes to a radio station and has a script which is insanely libelous. Do you think it is in the public interest to permit that man on the air?

Mr. COTTONE. I think the question is whether that person, under the laws of the State, should be a legally qualified candidate. Isn't the public policy question initiated at the very outset by a State law which permits that kind of person to be a candidate for public office?

The CHAIRMAN. That is something that can be attended to by the public. They have a right to either elect or reject him. In most cases they will reject him, although in some instances they don't seem to. But to allow him complete liberty, if that be a sound public policy, then it seems to me that all libel laws, as affect all publications, including newspapers, should likewise be repealed.

Mr. COTTONE. I think the alternative would be for an administrative agency

The CHAIRMAN. Oh, no. You say it is the responsibility of Congress under section 315?

Mr. COTTONE. Yes.

The CHAIRMAN. So it is not your prerogative at all.

Mr. COTTONE. That is right.

The CHAIRMAN. What should the alternative congressional policy be?

Mr. COTTONE. I think Congress is confronted with the problem there of whether the general public interest and public policy behind the provision against censorship, in terms of the evils that there could be in censorship of, let us say, a fair-minded candidate for public office, which is usually the situation-Congress will have to determine

whether the benefit of a no-censorship provision outweighs the possible exceptional cases where there might be an evil in that.

That is true in the case of most laws, as I see it. There may be exceptional cases where laws do not operate to achieve the most beneficial effect in all instances, but that is weighed by Congress in the enactment of the law.

The CHAIRMAN. The broadcasters are not sure in their own minds whether the Port Huron case absolves them of liability.

Mr. COTTONE. Yes, sir. That is why we have recommended that Congress include in section 315 a provision that makes that perfectly clear.

Mr. KEATING. I think that is sound.

The CHAIRMAN. Go ahead.

Mr. WALKER. Since this committee, during the course of these hearings this week, has been largely concerned with the problems arising out of the increasing costs of campaigns and particularly national campaigns, let me discuss at the outset the legal questions relating to this problem which have arisen in carrying out the mandate of Congress under section 315 of the Communications Act. As I stated a minute ago, section 315 of the act does not provide that stations must provide an equal amount of time to all legally qualified candidates for a particular office; it merely provides that the stations must make equal opportunities in the use of their facilities available to all candidates. This means where stations sell, rather than give time to candidates for the use of their facilities-and this is the common practice during campaigns-that even though they are under an obligation to sell as much time to one candidate as to another, all candidates may not be in a position to take advantage of their legal opportunities if they do not have the funds to purchase as much time as their opponents. In a period where costs for radio and television time, particularly for time on a Nation-wide hook-up, are increasingly high, this becomes a very important question indeed.

There is another interesting development in connection with political broadcasts and telecasts which I feel I must bring to the attention of this committee. In the past, the dividing line between the time provided to candidates free of charge and time purchased by the candidates has been a relatively sharp one. Either the time was given to the candidate by the station or it was purchased by the candidate himself or purchased for him by a recognized political party organization or by one of the recognized associated campaign committees or organizations of the type of which you gentlemen have heard so much during the course of this week. But with the increasing use of radio and particularly of television a new method of paying the costs of political broadcasts was developed during this campaign. Under this method political programs, including programs where use is made of station facilities by legally qualified candidates, are paid for by one or more commercial sponsors. For example, as you will all remember, the broadcasts of the Democratic and Republican Conventions were sponsored by commercial interests who, in this manner, advertised their products to a large audience and, at the same time, helped to finance the extensive costs that full convention coverage demanded.

I think it is fair to state that in all instances which have been reported to the Commission of commercial sponsorship of political

programs there is no evidence that any of the commercial sponsors intended by their sponsorships to favor any particular candidate or party. On the other hand, a question is raised as to whether such programing, especially where it is carried on, as some was, after the nominations and during the campaign itself, constitutes a "contribution" to the candidate and party who is therefore enabled, without cost to it, to present its case to the American people.

This practice raises several questions. In the first place, it is not clear whether such commercial sponsorship by corporations or labor unions of political broadcasts in which valuable air time is made available to the political candidates for Federal offices or their parties, is consistent with the existing provisions of the Corrupt Practices Act. On this point we believe that Congress should clarify the situation so that licensees and the potential sponsors of such programs may know their rights, and take such action as may be appropriate to comply with the provisions of law. And whatever determination is made as to whether such financing of campaign broadcasts should be permitted or prohibited, this method of paying some of the costs of political campaigns must enter into the committee's over-all calculations.

But there is a more immediate problem which has already been presented to the Commission arising out of this new method of paying for political programs. For the question has arisen as to whether, for purposes of applying section 315 of the Communications Act, such time as is made available to some candidates on a sponsored program is to be classified as free time because no expenditure on the part of the candidate or his party is involved, or paid time because the stations carrying the program received compensation from the sponsor. The importance of this question results from the fact that, if the time is classified as free, stations will, if a candidate appears on such a program, be under an obligation under the law to afford time, without cost, to legally qualified opposing candidates, whether or not the station can secure a sponsor for the time utilized by the opposing candidate. On the other hand, if the time were to be classified as "paid time" it is clear that a tremendous weapon for political favoritism would be placed in the hands of corporations or unions willing to take advantage of it.

The question as to the status of such commercially sponsored programs was raised during the course of the recent campaign by Senator Monroney, head of the speakers bureau of the Democratic Party. After careful consideration of the matter, the Commission determined that such programs must be considered to be time afforded to participating candidates free of charge. I have had copies made of the correspondence between Senator Monroney and the Commission on this point for the information of the committee. We think this determination by the Commission was the only one possible in view of the obvious objective of the act to maintain equality of opportunity among legally qualified candidates.

I should like to revert briefly now to another one of the basic problems in the enforcement of section 315 to which I referred at the beginning of my remarks the limitation of the provisions of section 315 to the use of facilities by candidates themselves. Since this limitation obviously makes possible inequality in the treatment of candidates by the simple device of making broadcast facilities available to spokes