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Felix v. Westinghouse Radio Stations Inc.

decided: December 20, 1950.

FELIX
v.
WESTINGHOUSE RADIO STATIONS, INC. FELIX V. TRIANGLE PUBLICATIONS, INC. FELIX V. WCAU, INC.



Author: Maris

Before MARIS, McLAUGHLIN and STALEY, Circuit Judges.

MARIS, Circuit Judge.

These are appeals from summary judgments entered by the United States District Court for the Eastern District of Pennsylvania in favor of the defendants in three civil actions for defamation. There is no dispute as to the facts. It appears that in October, 1949 in the course of a political campaign in the City of Philadelphia for the election of municipal officers, William F. Meade, chairman of the Republican Central Campaign Committee, broadcast two radio speeches over the defendants' radio stations. His theme was that the Democratic party in Philadelphia, and particularly its candidate for city treasurer, was supported and more or less controlled by a communist group. The plaintiff, who was not a candidate for office at the election, was named as one of the group in a context which, for the purposes of its decision, the district court assumed to be libelous. We make the like assumption for the purposes of these appeals.

In the preceding August the defendants had offered radio time to be used for political broadcasts for candidates in the November election to the respective chairmen of the Republican and Democratic campaign committees on a basis of equal time to each. It was stipulated in the district court that the Republican party candidates for the offices of city controller, city treasurer, register of wills and coroner authorized the Republican Central Campaign Committee and its chairman, Meade, to campaign for their election, and, as part of the campaign to contract for the rental of radio facilities and to use defendants' broadcasting stations. It is also undisputed that Meade's speeches were made in time contracted for by the committee in pursuance of such authorization.

A few minutes before each broadcast by defendant Westinghouse Radio Stations, Inc., Meade delivered to that defendant a typewritten copy of the speech. The speeches were thereafter broadcast without change and electrically transcribed. The speeches thus broadcast and transcribed by Westinghouse were subsequently rebroadcast by defendants, WCAU, Inc., and Triangle Publications, Inc. These two defendants were in each case warned by the plaintiff personally in advance not to rebroadcast the speeches but they nonetheless did so.Concluding that upon these facts the defendants were not liable to the plaintiff by virtue of Meade's speeches, the district court entered the summary judgments in their favor from which the present appeals were taken. 89 F.Supp. 740.

The conclusion which the district court reached was based upon the construction which it placed upon Section 315 of the Communications Act of 1934. That section is as follows: "If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station, and the Commission shall make rules and regulations to carry this provision into effect: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate."*fn1

It was the view of the district court that the language of Section 315 must be construed to comprehend the use of a broadcasting station not only by a candidate personally but also by others authorized to speak in his interest and on his behalf. Based upon this premise the court held that Section 315 prohibited the defendants from censoring the speeches which were delivered over their facilities by Meade on behalf of the candidates. Having thus decided that the defendants were prohibited by Section 315 from censoring those speeches the court reasoned that they were without fault in broadcasting them. Since under the law of Pennsylvania the owner of a broadcasting station has been held not to be liable in damages for libellous statements broadcast over his station in the absence of fault on his part, the court concluded that the defendants could not be held liable by the plaintiff.

We are unable to assent to the conclusion thus reached by the district court for the reason that we cannot agree with the premise upon which it is based. For we do not think that Section 315 of the Communications Act of 1934 may be given the construction which the district court has here placed upon it. On the contrary the language of the section itself and its legislative history compel the conclusion that the section applies only to the use of a broadcasting station by a candidate personally and that it does not apply to the use of such a station by other persons speaking in the interest or support of a candidate.

The significant language of Section 315 is that if a licensee "shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station." The use referred to is, of course, the broadcasting of speeches to the voting public. It will be observed that the section speaks only of such use by candidates. It is wholly silent as to the use of broadcasting facilities by supporters of candidates.

The district court, however, thought that as a matter of public policy the provisions of Section 315 relating to the use of broadcasting stations by candidates should be construed broadly so as to include not only broadcasts by the candidates themselves but also by their supporters. We are quite willing to concede that there are strong reasons for advocating such a broad construction. When we turn to the legislative history of Section 315, however, we find that this very question of including supporters of candidates within the purview of that section has been specifically considered and rejected by the Congress, which has made it perfectly clear that the section is intended to apply only to the personal use of broadcasting facilities by the candidates themselves.

The Communications Act of 1934, of which Section 315 is a part, repealed and replaced the Radio Act of 1927.*fn2 Section 315 is identical with Section 18 of the prior act. The Radio Act of 1927 originated in the House of Representatives.*fn3 As passed by that House it contained no provisions similar to those now incorporated in Section 315. Those provisions had their origin in an amendment made to the bill when it was under consideration in the Senate.The amendment was proposed by Senator Dill, Chairman of the Committee on Interstate Commerce, who was in charge of the bill on the floor of the Senate. It was offered by him as a substitute for a proposed committee amendment which would have prohibited discrimination by licensees of broadcasting stations with regard to political candidates and the discussion of public questions and which provided that such licensees should be deemed common carriers in interstate commerce. Senator Dill's substitute amendment provided: "If any licensee shall permit a broadcasting station to be used by a candidate or candidates for any public office, he shall afford equal opportunities to all candidates for such public office in the use of such broadcasting station: Provided, That such licensee shall have no power to censor the material broadcast under the provisions of this paragraph and shall not be liable to criminal or civil action by reason of any uncensored utterances thus broadcast."*fn4

In discussing this amendment on the floor of the Senate, Senator Dill said:

"There is the difference that under the common-carrier provision the radio station is compelled to take any kind of broadcasting that anybody wants to offer, which would mean that it would take anybody who came in order of the person presenting himself and would be compelled to broadcast for an hour's time speeches of any kind they wanted to broadcast.This provision simply says that if a radio station permits one candidate for a public office to address the listeners it must allow all candidates for that public office to do so, and to that extent there must be no discrimination. * * *

"If it permits one candidate - but it need not permit any candidate. In other words, a station may refuse to allow any candidate to broadcast; but if it allows one candidate for governor to broadcast, then all the candidates for governor must have an equal ...


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