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Footnotes

1. Independent political committees (IPCs) for the purposes of this Note will refer to all committees other than those authorized by a candidate to serve as campaign committees. IPCs include political action committees, as well as national, state, and subordinate party committees. See infra note 5 (defining political action committees); 11 C.F.R. ßß 100.13 (national party committee), 100.14(a) (state party committee), 100.14(b) (subordinate committee of a state committee) (1983). IPCs do not include a candidate’s principal or other authorized campaign committees. See 2 U.S.C. ß 432(e) (1982); 11 C.F.R. ß 101.1 (1983) (defining principal and authorized campaign committees).


2. Federal Election Campaign Act of 1971 (FECA), Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified as amended at 2 U.S.C. ßß 431-455 (1982)).


3. Prior to the 1970s, campaign finance laws were sufficiently porous to allow individuals and groups to contribute substantial sums of money directly to candidates. As a result, the fewer than sixty PACs then in existence, supported by small but numerous donations, were primarily a means of promoting the social interests of relatively homogenous contributors across the country.

FECA activated the rapid growth of the PAC movement by restricting the size of individual contributions to candidates while setting more lenient standards for individual contributions to PACs, PAC contributions to candidates, and PAC independent expenditures. See generally Epstein, The PAC Phenomenon: An Overview, 22 ARIZ. L. REV. 355, 356-62 (1980). Under FECA, an individual may not contribute more than $ 1,000 to a candidate per election and may not make more than $ 25,000 in total political contributions in a calendar year. 2 U.S.C. ßß 441a(a)(1)(A), 441a(a)(3) (1982). An individual may, however, contribute $ 5,000 per year to individual IPCs. Id. ß 441a(a)(1)(C). IPCs may contribute up to $ 5,000 to a candidate per election, and they face no overall limit. See id. ß 441a(a)(2)(A). In addition, IPCs can make independent expenditures on other forms of politically valuable goods and services, such as print and broadcast advertising. See Epstein, supra, at 356; see generally 2 U.S.C. ß 431(17) (1982) (defining independent expenditures).


4. In many ways, IPCs have even overtaken political parties in terms of influence. See Sorauf, Political Parties and Political Action Committees: Two Life Cycles, 22 ARIZ. L. REV. 445 (1980) (noting concurrence of decline of political parties and rise of IPCs). Political parties, the author suggests, have lost many of their previously essential functions due to political reforms. Direct party primaries have replaced inner-organization nomination procedures. Public sector jobs are increasingly filled through merit systems rather than patronage, and the increasinly sophisticated campaign techniques and more educated electorate depend less on cues from political parties. Id. at 449-51. Furthermore, the escalating cost of campaigning has exceeded the party’s ability to fund individual candidates. Id. At the same time, PACs bring to modern politics two things that parties can no longer provide: substantial sums of money for the new media-based electoral process and a loyal and responsive membership unified on a homogenous group of issues. Id.

During the 1978 campaign, PACs contributed $ 35.2 million to individual campaigns, not including independent expenditures. By contrast, the two major political parties contributed a total of $ 6.4 million to federal candidates, and spent an additional $ 4.8 million on their behalf. Epstein, supra note 3, at 361.


5. The term “political action committee (PAC)” does not appear in FECA. See Pub. L. No. 92-225, 86 Stat. 3 (1972) (codified as amended at 2 U.S.C. ßß 431-455 (1982)); FEC Record 4-5 (Oct. 1982); Oldaker, The Rules of the Game, in E. ROEDER, PACS AMERICANA xvii (1982). PAC is a popular term that refers to two types of political committees: separate segregated funds and nonconnected political committees. FEC Record 4-5 (Oct. 1982); Oldaker, supra, at xvii.

Separate segregated funds are political committees established by corporations, labor organizations, or incorporated membership organizations. 2 U.S.C. ßß 431(4)(B), 441b(b) (1982); FEC Record 4-5 (Oct. 1982). These sponsoring corporations and organizations are otherwise prohibited from making direct contributions or expenditures in connection with federal elections. 2 U.S.C. ßß 441b (1982). The separate segregated fund’s sponsor, or “connected organization,” may absorb all of the fund’s administrative costs. Id. ß 431(7), 441b(b)(2)(C). Payment of these costs is exempted from FECA’s contribution and expenditure limits. Id. ß 441b(b)(2)(C); 11 C.F.R. ß 114.1(a)(2)(iii) (1983). Separate segregated funds may solicit contributions only from persons related in certain ways to the connected organization. 2 U.S.C. ß 441b(b) (1982); 11 C.F.R. ß 114.5(g) (1983).

Nonconnected political committees are political committees established by individuals, unincorporated associations, or partnerships. Oldaker, supra, at xvii. Nonconnected political committees are viewed as separate entities from the sponsoring organization. Id. They are financially independent and must pay their own administrative expenses. FEC Record 4-5 (Oct. 1982). Any funds provided to it by a sponsor are not exempt from FECA’s contribution and expenditure limits. Id. A nonconnected political committee may solicit funds from anyone, and not just specified individuals. Id.

The distinctions between separate segregated funds and nonconnected political committees are not relevant for the purposes of this Note. They will both be referred to generally as PACs.


6. The growth in PAC numbers and expenditures is illustrated by the following chart:

Growth of PACs 1977-82
Election Period # of PACs Contributions to Fed. Candidates
1977-78 1,949 $35.2 million
1979-80 2,551 $60.2 million
1981-82 3,722 $87.6 million

Source: Federal Election Commission press release, Nov. 29, 1983.

By contrast, in 1970, there were only 300 PACs registered with the Federal Election Commission. Epstein, supra note 3, at 356.

In the 1980 campaign year alone, PACs spent $ 69 million to influence House and Senate elections. N.Y. Times, Aug. 4, 1981, at 12, col. 5 (reporting FEC figures). Fifty-five million dollars of this amount was donated directly to individual campaigns. The remaining $ 14 million consisted of “independent expenditures,” that is, expenditures that are not authorized by a candidate but that are nonetheless spent to influence the outcome of a given election. Id. One of the larger PACs, the National Conservative Political Action Committee (NCPAC) spent over $ 7 million in 1979 and 1980, mostly in dependent expenditures to defeat particular incumbent candidates, and met with notable success. N.Y. Times, May 31, 1981, at 1, col. 1 (well-financed NCPAC media campaigns against six leading liberal U.S. senators credited as having substantial role in defeat of four of them in the 1980 election); see also N.Y. Times, February 16, 1984, at B10, col. 6 (NCPAC intended to spend $ 2 million on anti-candidate advertising against one candidate during New Hampshire primary alone).


7. See, e.g., Green, Political PAC-Man, THE NEW REPUBLIC, Dec. 13, 1982, at 18-25 (assessing impact of PAC contributions on congressional voting behavior and urging stricter finance limits for PACs and free or reduced-rate broadcast response rates for candidates).


8. Incumbent candidates have received larger numbers and shares of PAC contributions than their challengers during the last three federal election periods, and the disparity has grown consistently:

PAC Contributions 1977-82
(in millions of dollars)
Campaign Period 1977-78 1979-80 1981-82
Contributions to:
Incumbents $20.0 $36.8 $58.4
Challengers $7.8 $16.2 $16.7
Open Seat Races $7.4 $7.2 $12.5
Total $35.2 $60.2 $87.6
Incumbents’ share of total: 56.8% 61.1% 66.7%

Source: Federal Election Commission press releases, Nov. 29, 1983, Feb. 21, 1982, Apr. 24, 1980.

See also N.Y. Times, February 26, 1984, at 28, col. 6 (seventeen senators seeking second terms in 1984 received collectively $ 2.77 million in PAC contributions in 1983, compared to the $ 11,122 they received collectively from PACs as non-incumbents in 1977); see generally N.Y. Times, Sept. 3, 1981, at 19, col. 5 (citing instance in which NCPAC offered to cancel a well-funded anti-candidate campaign and support the candidate instead if he would back publicly a particular tax-cut proposal); Green, supra note 7, at 21 (quoting Representative Barney Frank: “We are the only human beings in the world who are expected to take thousands of dollars from perfect strangers and not be affected by it.”). The fact that PACs tend to cluster together, each contributing to officials to whom similar PACs contribute, may augment significantly their congressional influence. Id.


9. See, e.g., N.Y. Times, Nov. 9, 1982, at 26, col. 3 (discussing the perceived effectiveness of negative political advertising); id. Nov. 18, 1981, at 30, col. 1 (editorial criticizing NCPAC’s anti-candidate campaigns); id. May 31, 1981, at 1, col. 1 (describing NCPAC’s media campaigns during the 1980 election campaign).


10. See, e.g., National Conservative Political Action Comm., 89 F.C.C.2d 626, 630 (1982) (separate statement of Chairman Fowler) (urging repeal of fairness doctrine and equal time laws); N.Y. Times, Sept. 9, 1981, at 28, col. 6 (CBS President Janowski seeking congressional repeal of fairness doctrine and equal time laws); see also Kaufman, Reassesing the Fairness Doctrine, N.Y. Times, June 19, 1983, ß 6 (magazine), at 17 (noting call for repeal of content-based broadcast regulations by spokespersons such as FCC Chairman Fowler and New York Times Publisher A. O. Sulzberger).


11. See infra part III.


12. CBS v. FCC, 629 F.2d 1, 10-11 (D.C. Cir. 1980), aff’d, 453 U.S. 367 (1981).


13. See, e.g., CBS v. FCC, 453 U.S. 367, 387-88 (1981) (discussing limitations licensees may permissibly impose upon federal candidates’ use of statutory affirmative access right).


14. Kennedy for Pres. Comm. v. FCC, 636 F.2d 432, 448 (D.C. Cir. 1980); see, e.g., 47 U.S.C. ß 312(a)(7) (1982) (granting federal candidates reasonable access right to broadcast stations).


15. Kennedy for Pres. Comm. v. FCC, 636 F.2d 432, 448 (D.C. Cir. 1980); see, e.g., 47 U.S.C. ß 315(a) (1982) (granting candidates an equal response opportunity after broadcast by an opponent).


16. See, e.g., Letter to Mr. Nicholas Zapple, 23 F.C.C.2d 707 (1970) (providing candidate’s supporters with a response opportunity after broadcast by supporters of opposing candidate).


17. See, e.g., 47 C.F.R. ß 73.1930 (1983) (granting a reasonable opportunity for candidate or supporters to respond to a licensee editorial criticizing the candidate or endorsing an opponent).


18. See, e.g., 47 U.S.C. ß 312(a)(7) (1982) (licensees must allow purchase of reasonable amounts of time by federal candidates or grant them free time); Cullman Broadcasting Co., 40 F.C.C. 576 (1963) (licensee must provide free time for presentation of views constrating with those previously presented when paid sponsorship is not available).


19. See CBS v. Democratic Nat’l Comm., 412 U.S. 94, 110 (1973); accord CBS v. FCC, 453 U.S. 367, 399-400 (1981) (White, J., dissenting).


20. See, e.g., CBS v. FCC, 453 U.S. 367 (1981), aff’g Carter-Mondale Presidential Comm., 74 F.C.C.2d 631 (1979) (upholding the ß 312(a)(7) federal candidate access right); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), aff’g 1 F.C.C.2d 943 (1965) (upholding the FCC’s personal attack response provisions). However, recent FCC rulings have created significant loopholes in political broadcast law, as discussed infra part III, and have proposed the repeal of the same personal attack response provisions upheld in Red Lion, see 48 Fed. Reg. 28,295 (June 21, 1983).


21. Candidate broadcast rights inure only to the benefit of legally qualified candidates. 47 U.S.C. ßß 312(a)(7), 315(a) (1982); Public Notice: The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209, 2216, 2228, 2240-41 (1978) [hereinafter cited as 1978 Primer]. Under FCC regulations, a legally qualified candidate is any person who (a) is eligible under applicable law to hold the office sought; (b) has announced his candidacy; and (c) has qualified for a place on the ballot or is eligible under law to be voted for by write-in vote and is a bona fide candidate. 47 C.F.R. ß 73.1940 (1983). In addition, persons seeking nomination to run for the presidency or vice-presidency are legally qualified candidates in (a) states in which they or their proposed delegates have qualified for the primary or presidential preference ballot, or (b) states in which they have made a substantial showing of bona fide candidacy. Id. Such persons are considered legally qualified in all states if they meet these qualifications in ten or more states, or nine states and the District of Columbia. Id., see also 1978 Primer, supra, at 2228-37 (providing detailed discussion of standards applied in determining legal qualifications of candidates). The FCC may defer to state law in determining who is a legally qualified candidate. Flory v. FCC, 528 F.2d 124, 130-31 (D.C. Cir. 1975). Finally, the definition of a legally qualified candidate under the Communications Act is not necessarily coextensive with that applicable under the Federal Election Campaign Act of 1971 2 U.S.C. ßß 431-455 (1982); compare 47 C.F.R. ß 73.1940 with 2 U.S.C. ß 431(2). See, e.g., Anthony R. Martin-Trigonia, 66 F.C.C.2d 968, 969 (Broadcast Bureau 1977).


22. The FCC’s authority rests upon the broad congressional mandate that it regulate broadcasting to serve the public interest, convenience, and necessity. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 379-80 (1968); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940); Network Programming Inquiry, 44 F.C.C. 2303, 2310 (1960), aff’d sub nom. Suburban Broadcasters v. FCC, 302 F.2d 191 (D.C. Cir.), cert. denied, 371 U.S. 821 (1962). The FCC must heed the public interest in granting, modifying, and renewing licenses, 47 U.S.C. ßß 307, 309 (1982), and in its exercise of rule making and a broad variety of other responsibilities, id. ß 303.

By viewing a licensee’s duty to inform the public as “the single most important requirement of operation in the public interest,” Rep. Patsy Mink, 59 F.C.C.2d 987, 993 P19 (1976), the FCC had, in effect, begun transferring to licensees the duty with which the Commission had originally been charged: serving the public interest. Network Programming Inquiry, 44 F.C.C. at 2312 (grant of license imposes a non-delegable duty to serve the community as a significant element of the public interest). The process of transferral was ultimately completed by the development of the fairness doctrine, see infra notes 48-55 and accompanying text, which imposes an affirmative obligation upon licensees, and which Congress eventually codified in section 315(a) of the Communications Act, 47 U.S.C. ß 315(a) (1982) (licensees are obliged “to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance”). See Red Lion, 395 U.S. at 377 (discussing Federal Radio Commission and FCC rulings between 1929 and 1968, reflecting development of the public interest obligation to present opposing views on issues of public importance).

The Communications Act, however, provides no definition of the public interest standard. FCC v. WNCN Listeners Guild, 450 U.S. 582, 593-94 (1981); Office of Communications of United Church of Christ v. FCC, 707 F.2d 1413, 1423 (D.C. Cir. 1983) (noting that the Act is not “a model of statutory clarity” and discussing various criticisms of the vague public interest standard).


23. Prior to 1971, the FCC examined a licensee’s political broadcasting record, including candidate broadcast time, as one of fourteen nebulous criteria for determining license renewal under the public interest standard. See Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1087-88 PP31-35 (1978) [hereinafter cited as 1978 Report and Order]; see also Network Programming Inquiry, 44 F.C.C.2d 2303, 2314 (1960), aff’d sub nom. Suburban Broadcasters v. FCC, 302 F.2d 191 (D.C. Cir.), cert. denied, 371 U.S. 821 (1962).


24. The Radio Act of 1927, ch. 169, 44 Stat. (pt. II) 1162 (1927) was the first extensive congressional act to regulate broadcasting. Although recognizing the new medium as a potentially useful forum for political candidates, the act failed to give candidates any affirmative access rights. The Radio Act and its successor, the Communications Act of 1934, ch. 652, 48 Stat. 1064 (1934) (codified as amended at 47 U.S.C. ßß 1-757 (1982)) declared specifically that “no obligation is hereby imposed upon any licensee to allow the use of its station by any such candidate.” 44 Stat. (pt. II) at 1170. This language was amended in 1971 to reflect the addition of section 312(a)(7), see infra note 25 and accompanying text. As amended, it states, “No obligation is imposed under this subsection . . . .” 47 U.S.C. ß 315(a) (1982) (emphasis added).


25. Campaign Communications Reform Act, Title I of the Federal Election Campaign Act of 1971, Pub. L. No. 92-225, ß 130(a)(2)(A), 86 Stat. 3 (1972) (codified at 47 U.S.C. ß 312(a)(7) (1982)), which provides:

(a) The Commission may revoke any station license or construction permit — (7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcast station by a legally qualified candidate for Federal elective office on behalf of his candidacy.
Congress said surprisingly little about this significant policy reversal at the time of its enactment. Kennedy for Pres. Comm. v. FCC, 636 F.2d 432, 444 (D.C. Cir. 1980). Instead, most congressional discussion focused on the issues of campaign costs and the proposed — but never enacted — exemption from the Equal Opportunity Doctrine, discussed infra notes 33-38 and accompanying text, for some or all federal candidates. See, e.g., 118 CONG. REC. 319, 325-26 (1972); 117 id. 29,029 (1971); see also Carter-Mondale Presidential Comm., 74 F.C.C.2d 631, 637-38 (discussing the scant legislative history of ß 312(a)(7)), reconsideration denied, 74 F.C.C.2d 657 (1979), aff’d sub nom. CBS v. FCC, 629 F.2d 1 (D.C. Cir. 1980), aff’d, 453 U.S. 367 (1981); see generally Ferris, The Federal Candidate Access to Broadcasting Provisions of the Communications Act, in CAMPAIGN ’84 ADVERTISING AND PROGRAMMING OBOE LIGATION OF THE ELECTRONIC MEDIA 13 (Prac. Law Inst. 1983) (providing a comprehensive discussion of the statute’s application).


26. The 1971 congressional debate over the Campaign Communications Reform Act included suggestions that broadcasters be required to provide free time to candidates as part of their public interest responsibilities, but such a provision was never enacted. See S. REP. NO. 1539, 86th Cong., 2d Sess., reprinted in 1960 U.S. CODE CONG. & AD. NEWS 3252, 3254-58 (recounting one failed attempt to require broadcasters to provide free candidate access time).

Both the United States Court of Appeals for the District of Columbia Circuit and the FCC have construed the language of section 312(a)(7) disjunctively, requiring free time only upon a licensee’s failure to allow a candidate to purchase reasonable amounts of time. See Kennedy for Pres. Comm. v. FCC, 636 F.2d 432, 444-45, 447 (D.C. Cir. 1980); Use of Broadcast and Cablecast Facilities by Candidates for Public Office, 34 F.C.C.2d 510, 537 (1972); see also 1978 Primer, supra note 21, at 2288; accord Dr. Benjamin Spock, 44 F.C.C.2d 12, 20, P21 (1973) (legislation designed to require licensees to provide free time to candidates has not yet been enacted); see generally Kennedy for Pres. Comm., 636 F.2d at 438-49 (neither legislative history, nor administrative construction of ß 312(a)(7), nor even overall statutory scheme of sections 312(a)(7) and 315(a) grants a candidate a right to free time).


27. 453 U.S. 367 (1981).


28. Id. at 379. The case evolved from the refusal of CBS and two other networks to sell a requested one-half hour of broadcast time to the Carter-Mondale Presidential Committee in late 1979. Id. at 371-73. Citing the “massive disruption” in CBS’s programming that could result from equal opportunity response demands by the numerous other declared candidates, CBS instead offered only five-minute segments. Id. at 372-73 n.2. NBC declined entirely to sell time as “early” in the campaign as December 1979, and ABC replied that it had not yet decided when to begin selling time for the 1980 presidential campaign. Id. at 372-73 nn.3-4.

The FCC ruled that CBS’s blanket policy of limiting the amount of time to candidates was neither reasonable nor justified by concern over program disruption, and thus violated ß 312(a)(7). Carter-Mondale Presidential Comm., 74 F.C.C.2d 631, 649-50 P48, reconsideration denied, 74 F.C.C.2d 657 (1979), aff’d sub nom. CBS v. FCC, 629 F.2d 1 (D.C. Cir. 1980), aff’d, 453 U.S. 367 (1981). The Commission also found that NBC’s and ABC’s failure to consider the candidate’s needs and desires in conducting his media campaign fell short of compliance with the statute. Id. at 644, 649.


29. 453 U.S. at 376-79. CBS based this argument upon dictum in CBS v. Democratic Nat’l Comm., 412 U.S. 94, 113-14 n.12 (1973), stating that the statute “essentially codified” existing FCC policy requiring broadcasters to provide time to political candidates under the public interest standard. 453 U.S. at 376-79. See supra note 22 for discussion of the public interest standard. The Court, however, noted that this particular question had not been before the Court in the earlier case. 453 U.S. at 385-86; see also CBS v. FCC, 629 F.2d 1, 13-14 (D.C. Cir. 1980) (interpreting this “cursory” “dictum” as merely reiterating that political speakers as a class had a stronger claim to access than citizens at large), aff’d, 453 U.S. 367 (1981). The Court also noted, in refuting CBS’s contention, that section 312(a)(7) is distinguishable from the public interest standard in its limited application to federal candidates. 453 U.S. at 379.


30. 453 U.S. at 378-79.


31. Id. at 378. But see WALB-TV, Inc., 59 F.C.C.2d 1246, 1248 (1976) (refusal of access on one occasion did not itself establish a violation of ß 312(a)(7)).


32. The Court ruled that the statutory language singles out federal candidates for the special right of access. 453 U.S. at 379; see also 1978 Primer, supra note 21, at 2286-87, 2290 (licensee’s obligation to allocate reasonable amounts of access time to important state and local political races as part of public service obligation is not altered by ß 312(a)(7)); Note, The Right of “Reasonable Access” for Federal Political Candidates under Section 312(a)(7) of the Communications Act, 78 COLUM. L. REV. 1287, 1289-90 (1978) (discussing insufficiency of traditional bases of affirmative candidate access, including the general public interest obligation); see generally supra note 22 (discussing the public interest standard).


33. 47 U.S.C. ß 315(a) (1982) provides in pertinent part:

(a) 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 broadcast station; Provided that such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.
See generally Annot., 35 A.L.R. FED. 856 (1977) (discussing the Equal Opportunity Doctrine).


34. “Equal opportunity” refers to a candidate’s right to obtain an equal amount of time in a period likely to attract the same size audience as the one in which the opposing candidate appeared, and at the same payment rate, whether paid or free, as that charged the opponent. 1978 Primer, supra note 21, at 2216, 2260. No discrimination in rates, practices, facilities, or services rendered to opposing candidates is permitted. Use of Broadcast Facilities by Candidates for Public Office, 3 F.C.C.2d 463, 488 (1966).


35. See supra note 21 (defining candidates entitled to political broadcast rights).


36. Under the Equal Opportunity Doctrine, a “use” occurs whenever a candidate is identified or identifiable by picture or voice. Charles F. Dykas, 35 F.C.C.2d 937, 937 (1972); see, e.g., Carter/Mondale Reelection Comm., 80 F.C.C.2d 285, 286 (1980) (60-second advertisement containing drawing of candidate’s face for three to five seconds qualifies as a “use”); Jerold A. Weissman, 23 F.C.C.2d 778, 778-79 (1966) (eight to fifteen-second long appearance of an individual in a candidate’s campaign advertisement constituted a “use” by that individual after he later became a candidate for a different office); see generally 1978 Primer, supra note 21, at 2240-46 (summarizing FCC rulings regarding candidate “uses”). But see Time, Inc., 522 RAD. REG.2d (P & F) 581, 581-82 (Mass Media Bureau 1984) (a de minimis appearance of two to three seconds is not a “use”).

The “use” need not be political in nature. 1978 Primer, supra note 21, at 2241-45 (1978); see, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974), aff’g 33 F.C.C.2d 297 (1972) (appearance of comedian who meets the definition of a legally qualified candidate is a “use”); Adrian Weiss, 58 F.C.C.2d 1889 (1976) (candidate Ronald Reagan’s appearance in movie featuring chimpanzee Bonzo constituted a “use”). Such a blanket rule is considered necessary to relieve the FCC from making highly subjective judgments regarding the content, context, and potential impact of the candidate’s appearance. Paulsen, 491 F.2d at 891 (9th Cir. 1974); see also CBS v. FCC, 629 F.2d 1, 31 (D.C. Cir. 1980) (Tamm, J., concurring) (reply statutes limit the potential for government partiality by eliminating need for discretion on anyone’s part), aff’d, 453 U.S. 367 (1981). However, under the 1959 amendments to the Act, a candidate’s appearance on a station’s news coverage does not constitute a “use.” See infra note 38.


37. Opposing candidates are either nominees of opposing political parties seeking the same office or candidates of the same party seeking the same nomination to a particular office. 1978 Primer, supra note 21, at 2238; see, e.g., Kay v. FCC, 443 F.2d 638, 644-45 (D.C. Cir. 1970) (primary candidate not entitled to Equal Opportunity response to primary candidates of opposing parties); Ted Salveter, 23 F.C.C.2d 771, 771-72 (1970) (candidates running for same office in primary elections of different parties are not considered opposing candidates until each has been nominated by the party election). But see Hon. Clarence E. Miller, 23 F.C.C.2d 121, 122 (1970) (implying that primary candidates may be considered party nominees if they remain unopposed after statutory deadline for entry to the primary has passed).


38. These exemptions were enacted in the Act of Sept. 14, 1959, Pub. L. No. 86-274, ß 1, 73 Stat. 557, 557 (amending 47 U.S.C. ß 315(a) (1958)), and provide:

Appearance by a legally qualified candidate on any —

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing section shall be construed as relieving broadcasters, and connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.
The amendment was a rapid congressional response to a controversial 1959 FCC ruling that held for the first time that news coverage of a candidate constituted a “use” under section 315(a). See Columbia Broadcasting Sys. (Lar Daly), 18 RAD. REG. (P & F) 238, reconsideration denied, 26 F.C.C. 715 (1959); see also Aspen Inst., 55 F.C.C.2d 697 (1975), aff’d sub nom. Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.) (both rulings discussing the role of the Lar Daly decision in spurring the 1959 amendment), cert. denied, 429 U.S. 890 (1976). Concerned that the FCC’s ruling would eliminate meaningful coverage of campaigns, Congress enacted the amendment to grant licensees greater journalistic discretion and allow the public to benefit from the unrestrained coverage. S. REP. NO. 562, 86th Cong., 1st Sess., reprinted in 1959 U.S. CODE CONG. & AD. NEWS 2564, 2572, 2576, see also S. REP. NO. 1539, 86th Cong., 2d Sess., reprinted in 1960 U.S. CODE CONG. & AD. NEWS 3252, 3253 (1959 amendment was intended to encourage “fuller and more meaningful news coverage of the actions and appearances of [candidates]”; see generally Chisholm v. FCC, 538 F.2d 349, 356 (D.C. Cir.) (discussing the congressional intent of the amendments), cert. denied, 429 U.S. 890 (1976).


39. Section 312(a)(7) entitles federal candidates to purchase broadcast time. See supra notes 25-26 and accompanying text.


40. See Carter/Mondale Reelection Comm., 81 F.C.C.2d 409, 417 P18 (1980) (when licensee provides candidate with free time, opposing candidate is entitled to free response time as well to prevent licensees from discriminating among candidates).


41. See generally Kennedy for Pres. Comm. v. FCC, 636 F.2d 432, 442 (D.C. Cir. 1980) (recounting a congressional attempt to require free time for candidates to ensure equality in actual, rather than potential, broadcast time); Comment, A Constitutional Remedy for the High Cost of Broadcast and Newspaper Advertising in Political Campaigns, 60 CALIF. L. REV. 1371, 1390-1408 (1972) (contending that the ß 315(a) response opportunity violates the equal protection clause by allocating broadcast time discriminatorily on the basis of ability to pay). But see Morrisseau v. Mt. Mansfield Television, Inc., 380 F. Supp. 512, 515-16 (D. Vt. 1974) (dismissing this constitutional argument in dicta, although primarily on statutory grounds).


42. 47 C.F.R. ß 73.1930 (1983); see Amendment of Part 73 of the Rules to Provide Procedures in the Event of a Personal Attack or Where a Station Editorializes as to Political Candidates, 8 F.C.C.2d 721, 727 P16 (1967) (formulating the political editorial rule) [hereinafter cited as 1967 Fairness Report], modified, 9 F.C.C.2d 539, modified, 12 F.C.C.2d 250 (1968), aff’d, Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); see generally 1978 Primer, supra note 21, at 2224-25, 2294-98 (discussing the rule’s application).


43. 47 C.F.R. ß 73.1920 (1983); see generally 1978 Primer, supra note 21, at 2225-26, 2298-3000 (discussing the rule’s application). The rule does not apply when personal attacks are made by candidates during “uses,” by candidates or their supporters against other candidates or their supporters, or in the course of bona fide news programming. 47 C.F.R. ß 73.1920(b)(2-4) (1983). The rule therefore has little real effect on political broadcasting.


44. See Repeal or Modification of the Personal Attack and Political Editorial Rules, 48 Fed. Reg. 28,295 (June 21, 1983). The FCC believes that recent United States Supreme Court decisions require a re-examination of its ability to impose licensee obligations such as editorial and personal attack response rights. Id. at 28,297 PP13-14.

The Commission’s decision to re-appraise the continued viability of both the personal attack rule and the political editorial rule rests on premises that are extremely questionable. First, the Supreme Court decisions relied on by the FCC deal exclusively with circumscribing affirmative access rights. Id. at 28,297-98 PP17-19. The political editorial and personal attack rules, by contrast, provide contingent response rights. See supra notes 12-17 and accompanying text (distinguishing affirmative access rights from contingent response rights). The FCC’s Notice of Proposed Rule Making fails to discuss this distinction; instead, it repeatedly groups both kinds of rights under the general heading of “access rights.” See e.g., 48 Fed. Reg. at 28,297 PP15-16, 28,298 P20, 28,299 P35.

In addition, the FCC suggests that the two rules may impede rather than enhance the presentation of controversial issue programming and may thus conflict with first amendment objectives. Id. at 28,300-01 PP45-50. The empirical support for this conclusion consists primarily of surveys submitted by licensee lobbying organizations indicating that licensees now refrain from such programming, but would actively engage in it if the rules were repealed. Id. P48. Because licensees have historically opposed these rules, the submitted data, based upon self-study, can hardly be viewed as impartial, and the practical basis of the FCC’s re-examination therefore must also be viewed as suspect.


45. The FCC has never specifically defined the term “supporters,” although it employs the term frequently. See, e.g., 1978 Primer, supra note 21, at 2240-41, 2302. Originally, the FCC viewed supporters as spokespersons authorized by the candidate. See Letter to Mr. Nicholas Zapple, 23 F.C.C.2d 707, 708-09 (1970). More recently, the FCC has included as supporters independent committees that purchase broadcast time to support a candidate. See Carter/Mondale Reelection Comm., 81 F.C.C.2d 409, 421 n.19 (1980).


46. See S. 3285, 73d Cong., 2d Sess., discussed in S. REP. NO. 781, 73d Cong., 2d Sess. 8 (1934); H.R. 7716, 72d Cong., 2d Sess., 76 CONG. REC. 3768 (1933). S. 3285 passed the Senate, but was later altered by House conferees. See 78 CONG. REC. 10,988 (1934). H.R. 7716 passed both houses, but was the subject of a presidential pocket veto. The provisions were identical; they would have extended the Equal Opportunity Doctrine to include persons making use of a broadcast station to support or oppose a candidate for public office, or to present views on public questions to be voted upon by the public or by a government agency. See Felix v. Westinghouse Radio Stations, 186 F.2d 1, 4-5 (3d Cir. 1950) (quoting text of both bills), cert. denied, 341 U.S. 909 (1951).


47. Although the fairness doctrine was not formally articulated as FCC policy until 1949, see Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949), early Federal Radio Commission rulings rested on similar concerns about the possible abuse of unrestricted licensee discretion in broadcasting. See, e.g., KFKB Broadcasting Ass’n v. Federal Radio Comm’n, 47 F.2d 670 (D.C. Cir. 1931) (court upheld refusal to renew license based on finding that licensee’s use of station to advance his own private interests was inimical to the public interest); Great Lakes Broadcasting Co., 3 F.R.C. Ann. Rep. 32, 32-34 (1929) (license modification denied because grant of license in the public interest requires coverage of opposing views, which licensee had failed to provide), rev’d on other grounds, 37 F.2d 993 (D.C. Cir.), cert. denied, 281 U.S. 706 (1930).

The fairness doctrine was ultimately codified as part of the 1959 amendment to section 315(a) of the Communications Act. Act of Sept. 14, 1959, Pub. L. No. 86-274, ß 1, 73 Stat. 557, 557 (codified at 47 U.S.C. ß 315(a)). The text of the amendment appears at note 38, supra, and includes the fairness doctrine by implication: the added equal opportunity exemptions do not affect “the obligation imposed upon licensees under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.” 47 U.S.C. ß 315(a) (1982); see also Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 383-84 (1969) (recounting the congressional debate over inclusion of this language in the 1959 amendment); see generally The Handling of Public Issues under the Fairness Doctrine and the Public Interest Standards of the Communications Act (Fairness Report) 48 F.C.C. 2d 1, 2-7 PP3-13 (1974) (discussing legal development of the fairness doctrine), reconsideration denied, 58 F.C.C. 2d 691 (1976), aff’d in part and rev’d in part on other grounds sub nom. National Citizens Comm. for Broadcasting v. FCC, 567 F.2d 1095 (D.C. Cir. 1977), cert. denied, 436 U.S. 926 (1978) [hereinafter cited as 1974 Fairness Report]; F. FRIENDLY, THE GOOD GUYS, THE BAD GUYS AND THE FIRST AMENDMENT 13-31 (1975) (discussing the early history and codification of fairness doctrine).


48. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 377-78 (1969); Democratic Nat’l Comm., 91 F.C.C.2d 373, 382 (1982), aff’d in part per curiam, 717 F.2d 1471 (D.C. Cir. 1983); 1974 Fairness Report, supra note 47, at 7 P15.


49. See Note, supra note 32, at 1290 n.14.


50. 1974 Fairness Report, supra note 47, at P18.


51. Id. at 8-9 P21-22, 16-17 P43.


52. Id. at 6-7 P13, 9 P22.


53. See Democratic Nat’l Comm. v. FCC, 717 F.2d 1471, 1478-79 n.5 (D.C. Cir. 1983) (“a successful fairness doctrine complaint is a rare creature”).

The infrequent enforcement of the fairness doctrine is illustrated best by the following table:

Fairness Doctrine Enforcement 1970-1981
Fiscal Year Complaints Inquiries Total Adverse Rulings
1970 1,736 424 2,160 8
1971 1,124 1,593 2,717 13
1972 1,617 830 2,447 4
1973 2,406 2,293 4,699 11
1974 1,874 2,899 4,773 8
1975 3,590 1,945 5,565 1
1976 41,861 1,151 43,012(b) 4
1977(a) 4,662 3,692 4
1978 3,857 3,857 1
1979 4,490 4,490 2
1980 9,897 9,897 2
1981 5,932 5,932 3
Total 83,046 11,135 93,241 61

a The FCC ceased separate recording of complaints and inquiries in 1977. In addition, this statistic reflects a 15-month period due to shift in measurement of fiscal year.

b The unusually large number of complaints received in 1976 was due to an organized campaign by the National Rifle Association in response to the documentary “The Guns of August.”

Source: telephone interviews with Milton A. Gross, Chief of Fairness/Political Programming Branch, Enforcement Division, FCC Mass Media Bureau (February 17 and August 17, 1984). These figures are at slight variance with those presented in the FCC Annual Reports for the years in question due to a retroacative change in measurement of complaints. Id.

Of 93,241 complaints and inquiries during this eleven-year period, only 61, or 0.065%, resulted in adverse rulings. See also S. SIMMONS, THE FAIRNESS DOCTRINE AND THE MEDIA 210-11 (1978) (only 54 of 49,801, or 0.108%, of fairness complaints received by the FCC in fiscal years 1973 through 1976 resulted in rulings adverse to the licensee; this statistic is at slight variance with those in the table above), cited in Democratic Nat’l Comm. v. FCC, 717 F.2d at 1478-79 n.5 (D.C. Cir. 1983).


54. See, e.g., Rep. Patsy Mink, 59 F.C.C.2d 987, 997 P30 (1976) (licensee given 20 days to inform Commission how it planned to remedy imbalance); Media Access Project, 44 F.C.C.2d 755, 762 (1973) (licensee given 7 days to inform Commission how it planned to remedy imbalance).


55. See, e.g., Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d 16 (D.C. Cir. 1972) (license not renewed due to licensee’s intentional disregard of fairness doctrine obligations), cert. denied, 412 U.S. 922 (1973); see generally F. FRIENDLY, supra note 47, at 78-88 (journalistic account of the Brandywine case). But see Fairness Report Reconsideration, 58 F.C.C.2d 691, 710 (1976) (Robinson, Comm’r, dissenting) (noting that even adverse rulings are rarely followed by penalty; only 8 of 19 adverse rulings during 1973-74 resulted in financial forfeitures, and only once has the FCC failed to renew a license on this basis), denying reconsideration of 1974 Fairness Report, supra note 47.


56. 412 U.S. 94 (1973).


57. Id. Although CBS v. Democratic Nat’l Comm. dealt specifically with issue-oriented advertisements rather than candidate-oriented advertisements, see infra notes 76-80 and accompanying text, a licensee’s freedom to deny access for the latter purpose appears to be the same. See National Conservative Political Action Comm., 89 F.C.C.2d 626, 628 notes 4 & 5 (1982) (candidate-oriented advertisements are within the scope of CBS v. Democratic Nat’l Comm.), petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982).


58. See CBS v. FCC, 453 U.S. at 376-79 (construing CBS v. Democratic Nat’l Comm.), discussed supra note 29.


59. See, e.g., 1978 Primer, supra note 21, at 2221-22 (ß 312(a)(7) has no application to supporters of or spokespersons for candidates); Robert H. Hauslein, 39 F.C.C.2d 1064, 1065 (Broadcast Bureau 1973) (finding no indication of congressional intent to entitle non-candidates to demand the broadcast of a particular message).


60. See supra notes 47-54 and accompanying text (discussing the fairness doctrine).


61. See supra note 54 (discussing the public interest standard).

See supra note 22 (discussing the public interest standard).


62. See supra note 46.


63. Letter to Mr. Nicholas Zapple, 23 F.C.C.2d 707 (1970).


64. See The Handling of Public Issues Under the Fairness Doctrine and the Public Interest Standards of the Communications Act (First Report), 36 F.C.C.2d 40, 41 P4 (1972) [hereinafter cited as 1972 Fairness Report], reprinted in 1974 Fairness Report, supra note 47, at 34-56.


65. 23 F.C.C.2d 707 (1970).


66. The FCC has applied the Zapple doctrine more narrowly than the Equal Opportunity Doctrine. The Zapple doctrine does not require a licensee to grant precisely equal time, 1972 Fairness Report, supra note 64, at 49-50 P31, nor does the doctrine apply to “fringe” political party candidates, id. at 50 P32. The FCC imposed this latter restriction because it was concerned that fringe party use of Zapple might undermine any future congressional attempt to suspend or repeal the Equal Opportunity Doctrine. Id. The ground for the FCC’s concern in this context is somewhat questionable given Congress’s failure to enact any such measure in the twelve years since the FCC articulated this rationale.


67. 23 F.C.C.2d at 708.


68. 1974 Fairness Report, supra note 47, at 31 P86; 1972 Fairness Report, supra note 64, at 49 P31.


69. See supra note 40 and accompanying text (Equal Opportunity Doctrine does not require a licensee to grant a candidate free time).


70. Zapple, 23 F.C.C.2d at 708 (licensee should not be required to subsidize political campaigns).


71. Id.; 1972 Fairness Report, supra note 64, at 49 P31.


72. See supra note 41 and accompanying text.


73. See supra note 3 and accompanying text.


74. See supra notes 33-41 (discussing Equal Opportunity Doctrine), 60-69 (discussing Zapple doctrine) and accompanying text.


75. See supra notes 47-55 and accompanying text (discussing the fairness doctrine).


76. 412 U.S. at 97. CBS v. Democratic Nat’l Comm. was a combined ruling on two similar cases. The first case arose from the DNC’s request for an FCC declaratory ruling that a broadcaster may not refuse to sell time to “responsible entities such as DNC for the solicitation of funds and for comment on public issues.” Democratic Nat’l Comm., 25 F.C.C.2d 216, 216 (1970), rev’d, 450 F.2d 642 (D.C. Cir. 1971), rev’d sub nom. CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973). The second case resulted from a complaint by a private organization of businesspersons that a licensee had violated the fairness doctrine by declining to sell them time to broadcast editorial advertisements opposing the United States’ involvement in Vietnam. Business Executives’ Move for Vietnam Peace, 25 F.C.C.2d 242, 242-43 (1970), rev’d, 450 F.2d 642 (D.C. Cir. 1971), rev’d sub nom. CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973).

In both cases, the FCC ruled that a broadcaster who meets the fairness obligation to present full and fair coverage of of public issues is not required to accept editorial advertisements. 412 U.S. at 97. The United States Court of Appeals for the District of Columbia Circuit overruled the FCC, finding such a blanket refusal by a licensee to be a violation of the first amendment. Business Executives’ Move for Vietnam Peace v. FCC, 450 F.2d 642, 661-62 (D.C. Cir. 1971), rev’d sub nom. CBS v. Democratic Nat’l Comm., 412 U.S. 94 (1973); see generally F. FRIENDLY, supra note 47, at 121-41 (background history of the parties and cases involved in the case). The Supreme Court subsequently reversed the court of appeals and affirmed the FCC’s rulings. 412 U.S. at 94.


77. 412 U.S. at 116; see supra notes 18-19.


78. Id. at 97.


79. Id. at 111.


80. E.g., National Conservative Political Action Comm., 89 F.C.C.2d 626, 628 (1982) (overruling NCPAC’s claim that its advertisements are beyond the scope of CBS v. Democratic Nat’l Comm. because they are candidate-oriented rather than issue-oriented), petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982); see also Thomas F. Eagleton, 81 F.C.C.2d 423, 425 (1980) (licensee was not initially obliged to accept NCPAC’s advertisements to which candidate sought free response time); You Can’t Afford Dodd Comm., 81 F.C.C.2d 579, 583 (1980) (fairness doctrine does not create a right of access for unauthorized political committees).


81. J. Curtis Herge, 88 F.C.C.2d 626, 627-28 (Broadcast Bureau 1981) (ß 312(a)(7) affirmative access right applies only to candidates) review denied sub nom. National Conservative Political Action Comm., 89 F.C.C.2d 626 (1982) petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982); You Can’t Afford Dodd Comm., 81 F.C.C.2d 579, 581-82 (ß 312(a)(7) applies to candidates only, and not to organizations that seek to support or oppose particular candidates); see also supra note 59.


82. See infra notes 144-46 and accompanying text (discussing the FCC’s recent creation of an IPC Equal Opportunity right contrary to existing Broadcast law).


83. Green v. FCC, 447 F.2d 323, 328 (D.C. Cir. 1971).


84. 1974 Fairness Report, supra note 47, at 8 P18, 11 P28.


85. Id.; see supra note 51 and accompanying text.


86. Green v. FCC, 447 F.2d 323, 328 (D.C. Cir. 1971).


87. The 3722 PACs and numerous other IPCs presently in existence would be difficult to classify as opponents, because they span the political spectrum and vary widely in alignment from issue to issue. See CBS, 95 F.C.C.2d 1152, 1161-62 P21 (1983) (noting importance of “readily identifiable” characteristics of opposing candidates and supporters to efficient implementation of contingent response rights); 1974 Fairness Report, supra note 47, at 16 P42 (in personal attacks and political campaigns, unlike most public controversies, the natural opposing spokespersons are relatively easy to identify); see generally CBS, 95 F.C.C.2d at 1162-63 P24 (Nov. 17, 1983) (Congress intended that licensees be able to ascertain precisely those entitled to ß 315(a) response rights); You Can’t Afford Dodd Comm., 79 F.C.C.2d 658, 660 (Broadcast Bureau) (holding Zapple inapplicable to independent organizations that oppose rather than support or speak for any particular candidate), modified, 81 F.C.C.2d 579, 580-83 PP5, 9 (1980) (withdrawing Broadcast Bureau’s contention and declining to rule on Zapple’s applicable to such organizations).


88. For example, when IPCs oppose one another in campaigns concerning ballot propositions.


89. 1974 Fairness Report, supra note 47, at 31-32 P86 (declining to extend the Zapple doctrine to ballot propositions because there is generally no specific individual or group that is an obvious opposing spokesperson).


90. 40 F.C.C. 576 (1963). Cullman was the FCC’s response to a licensee’s inquiry regarding its fairness doctrine obligation after broadcasting a sponsored daily commentary program expressing views critical of a proposed nuclear test ban treaty. Id. at 576.


91. Id. at 577.


92. In Zapple, the FCC held Cullman inapplicable to “the direct political arena.” 23 F.C.C.2d at 708. Since Zapple, the FCC has interpreted this phrase as referring to election periods. See National Conservative Political Comm., 89 F.C.C.2d 626, 629 (1982), petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982); Sen. Thomas F. Eagleton, 81 F.C.C.2d 423, 427 (1980).


93. 1974 Fairness Report, supra note 47, at 31-33 PP85-88.


94. 395 U.S. 367 (1969).


95. See also Associated Press v. United States, 326 U.S. 1, 20 (1945) (first amendment “rests on the assumption that the widest possible dissemination of information . . . is essential to the welfare of the public”).


96. 395 U.S. at 390; see also Report on Editorializing by Broadcast Licensees, 13 F.C.C. 1246, 1249 (1948) (development of informed public opinion is a vital goal of mass communications policy).

The electronic media are arguably the most substantial informational tool ever made available to a large representative democracy. Television news broadcasts are currently the primary source of political information in the United States. Kaufman, supra note 9, at 17 (noting studies indicating that television is the primary source of news in the United States).


97. 395 U.S. at 390 (citing FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 475 (1940)).


98. Id.


99. See supra note 22.


100. See supra notes 47-48 and accompanying text; see also Green v. FCC, 447 F.2d 323, 329 (D.C. Cir. 1971) (essential basis of fairness doctrine is that American public not be left uninformed).


101. A variety of other congressional and FCC regulations can be interpreted as manifestations of this first approach: the FCC’s longstanding requirement that licensees provide coverage of significant election campaigns as part of their public interest obligation, 1978 Primer, supra note 21, at 2286-87, 2290; congressional exemption of bona fide news programming from Equal Opportunity Doctrine obligations, see supra note 38 and accompanying text, which is intended to encourage even greater licensee news coverage of political campaigns, see S. REP. NO. 1539, 86th Cong., 2d Sess., reprinted in 1960 U.S. CODE CONG. & AD. NEWS 3253; the FCC’s exemption of bona fide news programming from the personal attack rule to prevent inhibiting a licensee’s editorial judgment, Amendment of Part 73 of the Rules to Provide Procedures in the Event of a Personal Attack, 12 F.C.C.2d 250, 251-53 PP3-4, 6 (1968); and the FCC’s creation of the Cullman doctrine to ensure that a licensees would not leave the public uninformed due to a lack of paid sponsorship, see supra notes 90-93 and accompanying text.


102. 47 U.S.C. ß 312(a)(7) (1982), discussed supra notes 25-31 and accompanying text.


103. See S. REP. NO. 96, 92d Cong., 2d Sess. 20 (emphasis added) (awkward) language in original), reprinted in 1972 U.S. CODE CONG. & AD. NEWS 1773, 1773-74; see also Buckley v. Valeo, 424 U.S. 1, 52-53 (1976) (noting that it is particularly important for candidates to have unfettered opportunity to make views known so that electorate may evaluate them intelligently).


104. Section 315(b) of the Communications Act further encouraged direct candidate access by allowing both federal and non-federal candidates to purchase access time at a licensee’s most favorable rates. This section provides that a legally qualified candidate shall not be charged in excess of the lowest unit charged by a station for the same class and amount of time for the same period during the 45 days preceding a primary election and the 60 days preceding a general or special election. 47 U.S.C. ß 315(b) (1982); see 47 C.F.R. ß 73.1940(c) (1983); see also 1978 Primer, supra note 21, at 2273-81 (discussing “lowest unit charge” provisions). This provision was intended to “place the candidate on a par with a broadcast station’s most favored advertiser.” S. REP. NO. 96, 92d Cong., 1st Sess. 27, reprinted in 1972 U.S. CODE CONG. & AD. NEWS 1773, 1780; accord Campaign ’76 Media Communications, Inc., 58 F.C.C.2d 1142, 1144-45 (1976). But cf. id. at 1145-47 (Robinson, Cmm’r, dissenting) (this interpretation unduly restricts licensee discretion and abets trivialization of candidates through spot advertisements: “forthwith [sic], WGN shall not discriminate between President Ford and Arrid Extra Dry”). During all other times, the statute requires a licensee to charge a candidate no more than the rate charged other users for comparable use of the station. 47 U.S.C. ß 315(b) (1982); see 47 C.F.R. ß 73.1940(c) (1983); see also 1978 Primer, supra note 21, at 2281-86 (discussing “comparable use” provisions).

Moreover, to maximize the informational potential of candidate access, ß 315(a) prohibits licensees from censoring or otherwise restricting the content of candidate broadcasts. 47 U.S.C. ß 315(a) (1982), quoted supra note 33; see Farmers Educ’l & Coop. Union of America v. WDAY, Inc., 360 U.S. 525, 527-31 (1959) (prohibition against licensee censorship of candidate uses is absolute); see also 1978 Primer, supra note 21, at 2269-73 (discussing and providing examples of licensee censorship).

The courts and the FCC have also been highly critical of any licensee restrictions on a candidate’s exercise of ß 312(a)(7) rights, thereby affirming the candidate’s independence in this regard. See, e.g., CBS v. FCC, 453 U.S. at 387-88 (broadcasters are required to accommodate reasonably a candidate’s stated purpose for seeking air time); see 1978 Report and Order, supra note 23, at 1090 PP40-41 (licensee must allow candidates flexibility to broadcast in the manner they determine best suited to their campaigns); Campaign ’76 Medica Communications, Inc., 58 F.C.C.2d 1142, 1144 (1976) (licensee’s policy found violative of ß 312(a)(7) because it would “drastically curtail the flexibility of a federal candidate’s conduct of his media campaign”); see generally Ferris, supra note 25, at 26-44. Licensee attempts to “second-guess” a candidate’s media strategy, or set blanket rules governing access requests have been held violative of the access statute. See Carter-Mondale Presidential Comm., Inc., 74 F.C.C.2d 657, 667-68 P38 & n. 11a (1979) (broadcasters should not second-guess the political wisdom of candidates in responding to ß 312(a)(7) access requests), aff’d sub nom. CBS v. FCC, 629 F.2d 1 (D.C. Cir. 1980), aff’d, 453 U.S. 367 (1981); CBS v. FCC, 453 U.S. at 387-88 (licensee determinations under ß 312(a)(7) must result from individualized decisions rather than blanket policies); see generally Ferris, supra note 25, at 27-28.


105. 395 U.S. at 390.

To ensure that such truth prevails, the first amendment extends over the quality as well as the quantity of available information. As the United States Court of Appeals for the District of Columbia Circuit has noted in construing the fairness doctrine, “[A] man who hears a hundred ‘yeses’ for each ‘no,’ when the actual odds lie heavily the other way, cannot be realistically deemed adequately informed.” Banzhaf v. FCC, 405 F.2d 1082, 1099 (D.C. Cir. 1968), cert. denied sub nom. Tobacco Inst. v. FCC, 396 U.S. 842 (1969); see also Mayflower Broadcasting Corp., 8 F.C.C. 333, 340 (1940) (“Radio can serve as an instrument of democracy only when devoted to the communication of information and the exchange of ideas fairly and objectively presented.”).


106. 395 U.S. at 386-90. The Court upheld the constitutionality of the fairness doctrine because the doctrine ensured robust discussion in the limited access broadcast media and hence advanced first amendment goals. Id. at 389-90. In addition, the Court upheld the FCC’s personal attack, see supra note 43, and broadcast editorial, see supra note 42, rules as legitimate exercise of congressionally delegated authority. 395 U.S. at 385-86.


107. See 47 C.F.R. ßß 73.35(a), 73.240(a)(1), 73.636(a)(1), 76.501 (1983).


108. See 47 C.F.R. ßß 73.35(b)(1), 73.240(a)(2), 73.636(a)(2) (1983) (a single entity may own no more than seven AM, seven FM, and seven TV (five VHF, two UHF) stations). The Commission revoked the “seven-station” rule in July, 1984, and has limited multiple ownership to twelve stations (of each type) for a six-year transitional period, to culminate in full repeal. See Amendment of ß 73.3555 [formerly ßß 73.55 et. seq.] of the Commission’s Rules Relating to Multiple Ownership of AM, FM, and Television Broadcast Stations, 56 Rad. Reg. (P & F) 859 (1984). The Commission believes that removing multiple ownership restraints will increase program diversity. Id. This action, however, is expected to spur primarily the expansion of the major networks and large media conglomerates. See N.Y. Times, July 27, 1984, at A1, col. 3. In addition, the resulting inflation in station prices will make minority and small operator ownership even more difficult. Id. at D2, col. 1. Therefore, the FCC’s actions appear certain to reduce diversity and increase ownership and programming by an even smaller number of entities.


109. See supra notes 33-41 and accompanying text (discussing the Equal Opportunity Doctrine).


110. See supra notes 63-72 and accompanying text (discussing the Zapple doctrine).


111. See supra notes 42-44 (discussing the personal attack and political editorial rules), 45-48 (discussing the fairness doctrine), 90-93 (discussing the Cullman provision) and accompanying text.


112. See 1974 Fairness Report, supra note 47, at 8 P20 (broadcasters are licensed to act as trustees for a valuable public resource); 67 CONG. REC. 12,501, 12,503 (1926) (statement of Senator Howell) (“[T]o perpetuate in the hands of a comparatively few interests the opportunity to reaching the public by radio and allowing them alone to determine what the public shall and shall not hear is a tremendously dangerous course for Congress to pursue.”); Kaufman, supra note 10, at 18 (“Recognition of the extraordinary influence on public opinion that the small number of licensees could exert led to extreme caution among those drafting broadcast regulations.”).


113. 395 U.S. at 392 (quoting Associated Press v. United States, 326 U.S. 1, 20 (1945)).


114. See supra notes 33-41 and accompanying text (Equal Opportunity Doctrine limits licensee favoritism of candidates). Despite congressional concern about licensees’ ability to influence general public debate, efforts to include “equal opportunity” protections in the 1927 Radio Act for all broadcast discussion of public issues were unsuccessful. See supra note 46.


115. See supra notes 63-72 and accompanying text (Zapple doctrine limits indirect licensee favoritism of candidates by restricting licensee capacity to discriminate among various groups of candidate supporters).


116. Act of Sept. 14, 1959, Pub. L. No. 86-274, ß 1, 73 Stat. 557, 557 (amending 47 U.S.C. ß 315(a) (1958)), quoted supra note 38; see also supra note 47 (discussing codification of Fairness doctrine).


117. See Red Lion, 395 U.S. at 385 (license discretion limited by obligation to provide balanced coverage of general issues).


118. See 47 C.F.R. ß 73.1930 (1983), discussed supra note 42; see also 1974 Fairness Report, supra note 47, at 13-14 P37 (discussing licensee obligation to pursue opposing viewoints actively).


119. See supra note 106 and accompanying text (discussing first amendment goals as articulated in Red Lion).


120. Red Lion, 395 U.S. at 392; see also 67 CONG. REC. 12,504 (1926) (remarks of Senator Heflin) (expressing concern that only wealthy candidates and spokespersons will gain access unless fees for use of stations are regulated).


121. See, e.g., CBS v. Democratic Nat’l Comm., 412 U.S. at 123; J. Curtis Herge, 88 F.C.C.2d 626 (1981), reconsideration denied sub nom. National Conservative Political Action Comm., 89 F.C.C.2d 626, 629 (1982), petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982).


122. 412 U.S. at 123 (emphasis added).


123. Id. at 125.


124. See supra notes 76-79 and accompanying text (Court explained that granting IPCs an affirmative access right would inhibit editorial discretion and allow IPCs to dominate the broadcast media).


125. 412 U.S. at 130-31.


126. See, e.g., 1974 Fairness Report, supra note 47, at 29 P79 (noting that if Cullman’s application to editorial advertisements were suspended, the public would often be left with “one-sided presentations of those issues which the financially able chose to discuss”). In addition, Congress expressed great concern over class bias in enacting the campaign finance reform laws of 1972, noting that an important part of the financial stranglehold wealthy interests had developed over elections involved their ability to fund greater media exposure for candidates they favored. See, e.g., S. REP. NO. 96, 92d Cong., 2d Sess., reprinted in 1972 U.S. CODE CONG. & AD. NEWS 1773, 1775-76.


127. See, e.g., Cullman, 40 F.C.C. at 577, discussed supra notes 90-93 and accompanying text.


128. See supra notes 62-72 and accompanying text.


129. 395 U.S. at 382.


130. Id. at 382-83.


131. Zapple, 23 F.C.C.2d at 707, discussed supra notes 63-72 and accompanying text; see also CBS, 95 F.C.C.2d 1152, 1162-63 P24 (1983), (Zapple is based on FCC’s desire to avoid circumvention of ß 315 by broadcasters through disproportionate presentation of supporters’ appearances).


132. See supra note 9 and accompanying text.


133. See Carter/Mondale Reelection Comm., 81 F.C.C.2d 409 (1980) (discussed infra notes 136-54 and accompanying text.


134. See Thomas F. Eagleton, 81 F.C.C.2d 423 (1980), discussed infra notes 155-69 and accompanying text.


135. See infra notes 170-202 and accompanying text.


136. 81 F.C.C.2d 409 (1980).


137. Id. at 409 P1. The Carter/Mondale Committee’s argument was based upon two earlier rulings. In Hon. Mike Monroney, 40 F.C.C. 251 (1952), the Commission ruled that a candidate was entitled to free response time after his opponent had appeared without cost on a commercially sponsored show. Id. at 251. In Metromedia, Inc., 40 F.C.C. 426 (1964), the Commission ruled that a candidate was entitled only to paid time after his opponent appeared on a program sponsored by the political committee of a labor organization, specifically on the opponent’s behalf. Id. at 426. The Commission later distinguished the two cases on the ground that the sponsoring organization in Metromedia (the ILGWU) was a political committee analogous to the candidate’s own campaign committee, while the organization in Monroney was simply an independent commercial sponsor of a program. 1978 Primer, supra note 21, at 2267.

The Carter/Mondale Committee argued that the status of an IPC supporting a candidate is, under current campaign finance restrictions, more like that of the sponsor in Monroney, which operated independently of the candidate, than the pseudocampaign committee in Metromedia. As a result, the Committee sought free response time, citing the result in the Monroney ruling. Carter/Mondale, 81 F.C.C.2d at 410-11 PP3-4.


138. Carter/Mondale, 81 F.C.C.2d at 409-10 P2, 411 n.5, 419-20 P23.


139. Id. at 416-17 PP17-19, 419 P22.


140. Id. at 419 P22.


141. Id. at 416-17 P17, 419 P22.


142. Id. at 417 P20.


143. Id. at 417-18 P20, 419-20 P23.


144. See supra note 36 and accompanying text (defining candidate “use”).


145. Carter/Mondale, 81 F.C.C.2d at 420-21 P24-25.

The FCC also suggested that a candidate may purchase response time “through expenditures of his own funds or those of an independent committee.” Id. at 420 n.18. However, it is the Federal Elections Commission and not the FCC that has jurisdiction over campaign finance and enforcement of FECA. See 2 U.S.C. ß 437c(b)(1) (1982). It therefore is not within the FCC’s jurisdiction to authorize election broadcast financing by IPCs.

Furthermore, an IPC purchase such as that suggested in Carter/Mondale would almost certainly violate FECA. IPC purchase of broadcast time for a candidate’s “use” would not qualify as an “independent expenditure” under FECA, for it would not be made “without cooperation or consultation with any candidate . . . or [without] at the request of any candidate.” See 2 U.S.C. ß 431(17) (1982). The IPC’s purchase therefore would be a contribution to a candidate. See id. ß 431(8)(A). IPC contributions may not exceed $ 5,000 per candidate per election. Id. ß 441a(a)(A). Because it is extremely unlikely that an IPC could purchase broadcast time for less than $ 5,000, an IPC following the FCC’s suggestion would almost certainly violate the contribution restrictions of FECA. The initial IPC pro-candidate purchase would not, however, unless it failed to qualify as an independent expenditure.


146. Carter/Mondale, 81 F.C.C.2d at 421 P25.

A pro-candidate broadcast by an IPC triggers Zapple rights in opposing candidates’ authorized supporters because the IPC in question will be categorized as the candidate’s supporters by dint of the broadcast. Id. at 421 n. 19.


147. See You Can’t Afford Dodd Comm., 81 F.C.C.2d 579, 580-83 PP5, 9 (1980) (issued same day as Carter/Mondale; declining to rule on Zapple’s applicability after overruling Broadcast Bureau’s prior conclusion that Zapple does not apply to IPC campaign broadcasting), modifying 79 F.C.C.2d 658, 660 (Broadcast Bureau).


148. See Thomas F. Eagleton, 18 F.C.C.2d 423, 427-28 (1980) (post-Carter/Mondale; failing to address Zapple’s applicability despite requests to do so by both candidate and licensee); see also CBS, 95 F.C.C.2d 1152 1159-63 PP19-24 (1983) (declining to apply Zapple to IPC broadcasts outside of campaign periods); Democratic Nat’l Comm., 91 F.C.C.2d 373, 384 P24 (1982) (failure of complainant to establish a prima facie case under the fairness doctrine made it unnecessary to rule on Zapple’s applicability to IPC broadcasts outside of campaign periods), aff’d in part per curiam, 717 F.2d 1471 (D.C. Cir. 1983).


149. See supra notes 87-89 and accompanying text.


150. Broadcasts by a candidate’s supporters will trigger Zapple response rights in supporters of opposing major party candidates, see supra notes 63-72 and accompanying text, unless these broadcasts contain a “use,” in which case the candidates themselves will have Equal Opportunity response rights, see supra notes 33-39 and accompanying text.


151. Carter/Mondale, 81 F.C.C.2d at 421 P25.


152. See 47 U.S.C. ß 315(a) (1982) (right applies only to legally qualified candidates); Red Lion, 395 U.S. at 382; Felix v. Westinghouse Radio Stations, 186 F.2d 1, 3-5 (3d Cir. 1950), cert. denied, 341 U.S. 909 (1951); 1978 Primer, supra note 21, at 2216, 2228, 2240-41.

Carter/Mondale itself acknowledged that “[t]he language of Section 315 makes it clear that equal opportunities is [sic] a right personal to candidates.” 81 F.C.C.2d at 420 P24. Furthermore, the FCC specifically declined to extend an Equal Opportunity right to IPCs on the very same day as the Carter/Mondale ruling. See You Can’t Afford Dodd Comm., 81 F.C.C.2d 579, 580-83 (1980).


153. See supra notes 28, 104 (discussing statutory protection of candidates’ independence in political broadcasting).


154. Cf. Repeal or Modification of the Personal Attack and Political Editorial Rules, 48 Fed. Reg. 28,295, 28,296 P5, 28,297 P15 (June 21, 1983).


155. 81 F.C.C.2d 423 (1980).


156. Id. at 423-24.


157. Ninety-eight of the 30-second advertisements were purchased and broadcast over a twelve day period, with 75 more scheduled for broadcast during the remaining 43 days of the campaign. Id. at 424 n.2.


158. Id. at 424. The licensee, KCBJ-TV, rejected Eagleton’s request, noting that NCPAC’s advertisements did not amount to a “use” by Eagleton’s opponent, and thus that Eagleton did not have an Equal Opportunity right. Id. KCBJ also noted that Zapple would not entitle Eagleton to free time. Id. at 424-25. The licensee did, however, request that the FCC extend Zapple to include instances in which IPCs purchase broadcast time to oppose a candidate, rather than restricting it to situations in which anti-candidate broadcasts are sponsored by an opposing candidate’s supporters. Id.


159. Id. at 424. This argument was based upon Eagleton’s interpretation of Hon. Mike Monroney, 40 F.C.C. 251 (1952), discussed supra note 137, which the FCC rejected here. 81 F.C.C.2d at 426 n.7.


160. 81 F.C.C.2d at 426-28.


161. Id. at 426.


162. Existing response rights may be summarized as follows:

(i) pro- or anti-candidate broadcasts by one of the candidates will constitute a “use” entitling opposing candidates to an Equal Opportunity response, see supra notes 34-37 and accompanying text;

(ii) pro- or anti-candidate broadcasts by a candidate’s supporters will trigger Zapple response rights in supporters of opposing major party candidates, see supra notes 63-66 and accompanying text; and

(iii) pro-candidate broadcasts by an IPC will also trigger Zapple response rights in both opposing candidates’ supporters, see supra note 146; and in other IPCs, see supra notes 145-46 and accompanying text.
The facts in Eagleton presented the FCC with the problem of addressing the anomalous result of existing broadcast regulations that do not provide candidates or their supporters with any response rights to IPC-sponsored anti-candidate broadcasts.


163. 81 F.C.C.2d at 425.


164. Id. at 427-28 (citing You Can’t Afford Dodd Comm., 81 F.C.C.2d 579 (1980)).


165. Id. at 427.


166. Aside from these, the only other possible basis for a response right in this situation is the personal attack rule, 47 C.F.R. ß 73.1920 (1983), discussed supra note 43. However, unless the NCPAC broadcasts amounted to an attack upon Eagleton’s “honesty, integrity, character or like personal qualities,” rather than merely a criticism of his campaign or senatorial record, this rule would not apply.


167. 81 F.C.C.2d at 426-27 (emphasis added).


168. See Carter/Mondale, 81 F.C.C.2d at 421 n.19.


169. See, e.g., Transcript of ABC News “Nightline,” Mar. 8, 1984, at 4 (commentator suggesting that candidate Glenn’s anti-candidate broadcasts against candidate Mondale worked to detriment of candidate Mondale in 1984 New Hampshire presidential primary, but to benefit of candidate Hart rather than candidate Glenn).


170. Editorial advertisements are commercials that consist of direct and substantial commentary on important public issues. 1974 Fairness Report, supra note 47, at 22 P60. While editorial advertisements may be difficult to identify when sponsored by groups not generally engaged in debate on public issues, id. at 22-23 P62, this problem is unlikely to arise in the case of most IPCs.

The fairness doctrine applies fully to editorial advertising. Id. at 22-24 PP60-65. Indeed, the FCC had once proposed that editorial advertisements be treated as licensee editorials. See id. at 22 P60.


171. J. Curtis Herge, 88 F.C.C.2d 626 (Broadcast Bureau 1981), reconsideration denied sub nom. National Conservative Political Action Comm., 89 F.C.C.2d 626 (1982), petition to review dismissed, No. 82-1579 (D.C. Cir. Sept. 15, 1982).


172. 88 F.C.C.2d at 627. NCPAC also requested that the FCC reconsider granting IPCs a right of affirmative access; the FCC declined to do so. Id. at 626-28.


173. 88 F.C.C.2d at 627.


174. Id. at 629.


175. 89 F.C.C. 2d at 629.


176. See supra note 92.


177. 89 F.C.C.2d at 629-30 n.7 (citing 1972 Fairness Report, supra note 64, at 49-50 P31).


178. CBS, 95 F.C.C.2d 1151 (1983).


179. Id. at 1165-66 P29.


180. Id. at 1162-63 P24.


181. Although applying Zapple here would require incumbents to purchase response time, it would nonetheless provide them with a clearly defined and enforceable response right.


182. Cf. Carter/Mondale, 81 F.C.C.2d at 416 n.12 (candidates do not, in themselves represent controversial issues); Dr. Benjamin Spock, 44 F.C.C.2d 12, 18 P18 (1973) (individual candidates are not separate controversial issues of public importance within meaning of fairness doctrine solely by reason of their candidacy or campaign).


183. Even if the fairness doctrine were applied, other recent FCC rulings have made it virtually impossible to prove its violation. See infra notes 198-202.


184. See supra note 21 (political broadcast rights will be available to the incumbent only after he becomes a legally qualified candidate).


185. See supra notes 171-77 and accompanying text.


186. 91 F.C.C.2d 373 (1982), aff’d in part per curiam, 717 F.2d 1471 (D.C. Cir. 1983).


187. Id. at 373-74. The DNC later amended its complaint to allege that the networks’ broadcasts of the RNC advertisements exacerbated an existing imbalance in favor of the RNC’s views. 91 F.C.C.2d at 380-81 P15. Based upon information supplied by news monitoring services, the DNC estimated the alleged imbalance to be 2:1 to 3:1 for this particular issue, resulting in an overall imbalance of 3:1 for CBS and 4:1 for NBC. Id. at 380-81 P15 & n.18; see id. at 384-86 (transcript of the advertisements).


188. Id. at 374 P2.


189. Id. at 375 P4; Brief for Appellant at 5, 13, Democratic Nat’l Comm. v. FCC, 717 F.2d 1471 (D.C. Cir. 1983).


190. 91 F.C.C.2d at 374-75 P4; see also Democrats Challenge Commission Denial of Air Time for Reply, 6 MEDIA & THE LAW, Sept.-Oct. 1982, at 48 (discussing RNC advertising campaign promoting Reagan administration policies during significant congressional debates).


191. Both networks involved had offered only to sell the DNC time to respond to the RNC. 91 F.C.C.2d at 378 P12, 384 P24.


192. Id. at 375-76 P6, 378 P10.


193. Id. at 387 PP24-25.


194. Democratic Nat’l Comm. v. FCC, 717 F.2d 1471, 1479 (D.C. Cir. 1983).


195. See 91 F.C.C. 2d at 384 P24 (“Cullman applies only after an imbalance in coverage has been determined . . . .”) (emphasis added). Cullman had traditionally been viewed as a remedy only for complete deficiency in presentation of viewpoints. See supra notes 90-91.


196. 91 F.C.C.2d at 384 P24 (DNC did not show that “either CBS or NBC failed to present contrasting viewpoints”) (emphasis added).

Whether the FCC intended to alter the standard in Cullman or merely thought erroneously that it was articulating existing standards remains a mystery. The latter alternative would provide some explanation for the FCC’s ultimate reliance on a deficiency standard.


197. See, e.g., Energy Action Comm., Inc., 64 F.C.C.2d 787, 803 (1977) (licensee’s presentation of seven news reports totalling five minutes was insufficient to discharge the fairness obligations incurred by 53 broadcasts of anti-divestiture Texaco advertisements totalling 41 minutes); Media Access Project, 44 F.C.C.2d 755, 762 (1973) (licensee failed, in overall programming, to provide reasonable opportunity for presentation of views in opposition to series of editorial advertisements sponsored by local utility). In Democratic Nat’l Comm., however, the mere presumption of news coverage was found sufficient to offset the advertisements. See 91 F.C.C.2d at 383 P22.


198. 91 F.C.C.2d at 384 P23.


199. Id. at 383 P21.


200. Id. at 383 P22, rev’d in part, 717 F.2d at 1478-79. The FCC’s presumption that licensees are sufficiently trustworthy to cover issues fairly undercuts one of the major bases for broadcast regulation in the first place. See supra notes 112-19 and accompanying text (discussing concern over possible licensee favoritism and discrimination).


201. 717 F.2d at 1478-79 n.5; see supra note 53.


202. 91 F.C.C. 2d at 384 P24.


203. See supra notes 33-41 (discussing the Equal Opportunity Doctrine), 63-72 (discussing the Zapple doctrine) and accompanying text.


204. See supra notes 163-69 and accompanying text.


205. Cf. Flory v. FCC, 528 F.2d 124, 128-29 (D.C. Cir. 1975) (Congress has long recognized that ß 315(a) could result in licensee unwillingness to provide time to candidates due to response obligations); S. REP. NO. 1539, 86th Cong., 2d Sess., reprinted in 1960 U.S. CODE CONG. & AD. NEWS 3252, 3253-54 (noting broadcasters’ claims that burdensome ß 315(a) response obligations limit their coverage of campaigns); see also 67 CONG. REC. 12,502 (1926) (remarks of Senator Cummins) (predicting that licensees will be so overburdened by response rights that such uses will take up all broadcast time).


206. 47 U.S.C. ß 315(b) (1982), discussed supra note 104.


207. See supra notes 25-31 and accompanying text (discussing the affirmative access right of federal candidates).


208. See supra notes 33-39 and accompanying text (discussing the Equal Opportunity Doctrine).


209. See supra note 22 and accompanying text (discussing the public interest standard).


210. See supra note 202 and accompanying text.


211. See supra notes 83-93 and accompanying text (IPCs have no response rights, with the narrow exception of Cullman).


212. 81 F.C.C.2d at 420 P24 n.18.


213. Id. at 420-21 PP24-25, discussed supra note 145 and accompanying text.


214. See supra notes 22-23 and accompanying text.


215. See supra note 32 and accompanying text.


216. See supra notes 33-39, 63-67 and accompanying text.


217. See supra notes 163-69 and accompanying text.


218. 47 C.F.R. ß 73.1930 (1983), discussed supra note 42.


219. For example, a licensee may sell a large number of “spots” to a politically liberal IPC hostile to a conservative gubernational candidate, while denying the candidate any access or response time. Although denying access time to important state candidates might violate the vague public interest standard, see supra note 22, and such a flagrant attempt to editorialize could draw the FCC’s attention, the PACcess Doctrine theoretically permits this scenario and less flagrant variations of it.


220. See supra note 199 and accompanying text.


221. See supra section II.


222. PACs are presently the largest contributors to elections. See supra notes 6, 8.


223. See supra note 163 and accompanying text.


224. See supra notes 43, 166.


225. See supra note 164 and accompanying text.


226. See supra note 165 and accompanying text.


227. See supra notes 155-69 and accompanying text.


228. The triggering mechanism of the Equal Opportunity Doctrine is a “use” by a candidate, regardless of content. By relying upon this construct, the FCC has avoided having to reach subjective judgments about a candidate’s appearance. See supra note 36 and accompanying text.

By contrast, the triggering mechanism of the personal attack rule is content, unrelated to speaker. See supra note 43 and accompanying text. Similarly, although the political editorial rule applies only to licensees, it is the editorial’s content that triggers a candidate’s right to respond to certain editorials and not others. See supra note 42 and accompanying text.

IPC anti-candidate or anti-incumbent broadcasts, however, are identifiable only by the content of the broadcasts — i.e., criticism of a candidate or an incumbent. Basing a response right on the identity of the sponsor of these broadcasts would be ineffective, since not all IPC broadcasts criticize candidates or incumbents. See supra note 9 and accompanying text (discussing many purposes IPC broadcasts may serve).


229. This requirement does not create a new burden for licensees, as they must already examine a broadcast’s content to determine whether a personal attack or political editorial has been broadcast. See supra notes 42-43 and accompanying text.

The FCC has suggested recently that, even in applying Zapple, licensees may have to examine a broadcast’s content “to determine whether it advocates or opposes a candidate’s election.” CBS, 95 F.C.C.2d 1152, 1164 P25 n.16 (1983). Zapple, however, is triggered by the broadcasting entity (supporters) rather than the broadcast’s content. See Zapple, 23 F.C.C.2d at 708-09. The FCC has never extended Zapple to apply to anti-candidate broadcasts by entities other than supporters. See supra note 164.


230. 1978 Primer, supra note 21, at 2224; James Spurling, 30 F.C.C.2d 675, 676 (1971); see, e.g., Stanley A. Miller, 53 F.C.C.2d 1203, 1203-04 (Broadcast Bureau 1975); Norman William Seemann, Esq., 40 F.C.C. 341, 341 (1962).

Licensees are required to keep a complete record of all candidate broadcasts and to permit public inspection of these records. 47 C.F.R. ßß 73.1940(d), 73.3526(a)(4) (1983). This requirement ensures that other candidates will have the ability to determine their entitlement to equal opportunities. 1978 Primer, supra note 21, at 2262-63. Notification is required only if a candidate’s use falls so close to election day that a failure to notify the candidate’s opponent might entirely nullify the latter’s statutory right to respond. See, e.g., James Spurling, 30 F.C.C.2d 675, 676 (1971).


231. A licensee who broadcasts a candidate-related editorial must notify all candidates for the same office who were opposed or not endorsed by the editorial within 24 hours. 47 C.F.R. ß 73.1930(a) (1983); see 1978 Primer, supra note 21, at 2224-25. The political editorial rule further requires that advance notice be given if the editorial broadcast is made within 72 hours of election day. 47 C.F.R. ß 73.1930(a) (1983); see 1967 Fairness Report, supra note 42, at 727 P15. Similarly, a licensee who broadcasts a personal attack must notify the attacked party within one week. 47 C.F.R. ß 73.1920(a) (1983); see 1978 Primer, supra note 21, at 2225-26.


232. 1967 Fairness Report, supra note 42, at 725 P11.


233. See 47 U.S.C. 315(a) (1982) (prohibiting licensee censorship of candidate broadcasts), discussed supra note 104 and accompanying text; see also 1978 Primer, supra note 21, at 2269-72 (discussing censorship restrictions on candidate broadcasts).


234. 1967 Fairness Report, supra note 42, at 723 P6.


235. Id. at 727 P15.


236. 47 C.F.R. ß 73.1940(d) (1983) requires only that a licensee keep records of all requests for broadcast time “made by or on behalf of candidates.” IPC anti-candidate broadcasts are not made “on behalf of” any candidate. See supra notes 168-69 and accompanying text.


237. See supra notes 56-61, 76-81 and accompanying text.


238. See, e.g., Felix v. Westinghouse Radio Stations, 186 F.2d 1, 5 (3d Cir. 1950) (licensee may not claim ß 315(a) licensee immunity as defense to defamation action stemming from remarks of candidate’s spokesperson), cert. denied, 341 U.S. 909 (1951); see also J. Curtis Herge, 88 F.C.C.2d 626, 629 (Broadcast Bureau) (except for candidate “uses,” licensee may be subject to defamation procedings for material broadcast), review denied sub nom. National Conservative Political Action Comm., 89 F.C.C.2d 626 (1981).


239. See supra notes 25-32 and accompanying text (discussing licensee obligation to allow candidate access under ß 312(a)(7) and the public interest standard).


240. See supra note 104 and accompanying text (discussing restrictions on licensee censorship of candidate broadcasts under ß 315(a)).


241. This notification requirement would conform to that imposed by the personal attack rule. See supra note 231.


242. 47 U.S.C. ß 315(a) (1982); see supra note 34 and accompanying text (defining “equal opportunity”).


243. See 47 C.F.R. ßß 73.1920(a), 73.1930(a) (1983).


244. M. Goldseker Real Estate Co. v. FCC, 456 F.2d 919, 920, 923 (4th Cir. 1972).


245. 1978 Primer, supra note 21, at 2296; 1967 Fairness Report, supra note 42, at 727 P15.


246. M. Goldseker Real Estate Co. v. FCC, 456 F.2d 919, 921 (4th Cir. 1972); Roy Barthold, 11 F.C.C.2d 790, 791 (1968).


247. See supra note 34 and accompanying text (defining “equal opportunity”).


248. 1972 Fairness Report, supra note 64, at 49 P31.


249. See supra notes 112-14 and accompanying text.


250. See 1967 Fairness Report, supra note 42, at 722-23 P5 (reasonable response opportunity to political editorials and personal attacks required to inform public of contrasting views).


251. See supra notes 236-40 and accompanying text.


252. See supra notes 112-14 and accompanying text.


253. See supra notes 218-19 and accompanying text.


254. Congress has explicitly sanctioned the use of an equal opportunity standard only in campaign periods; the FCC has confined Zapple’s “quasi-equal opportunity” standard similarly. See CBS, 95 F.C.C.2d 1152, 1159-61 PP19, 24 (1983).


255. Licensees have considerably broader editorial discretion in providing “reasonable opportunity” responses than in providing “equal opportunity” responses. Compare notes 244-46 and accompanying text, supra, with notes 247-48 and accompanying text, supra.


256. See supra notes 39-41 and accompanying text (candidates required to purchase response time under Equal Opportunity Doctrine); supra notes 69-72 and accompanying text (supporters required to purchase response time under Zapple doctrine).


257. See supra notes 112-114 and accompanying text.


258. Cf. You Can’t Afford Dodd Comm., 81 F.C.C.2d 579, 581 P8 (1980) (ß 312(a)(7) and ß 315(a) rights apply only to candidates, not to IPCs).


259. See Carter/Mondale, 81 F.C.C.2d at 417-18 P20, 419-20 P23.


260. See, e.g., id. at 420-21 P24-25.


261. Zapple, 23 F.C.C.2d at 708, construed in Carter/Mondale, 81 F.C.C.2d at 416 n.14.


262. See 47 U.S.C. ß 315(b) (1982).


263. See 47 C.F.R. ß 73.1930 (1983).


264. See supra note 32 and accompanying text.


265. See, e.g., Eagleton, 81 F.C.C.2d at 424 (seeking free response time to IPC anti-candidate broadcasts); see also Carter/Mondale, 81 F.C.C.2d at 409-10 PP1-3 (seeking free response time to IPC pro-candidate broadcasts).


266. See, e.g., Green, supra note 7, at 18-25 (proposing free or reduced-rate broadcast response time for candidates); N.Y. Times, Sept. 3, 1981, at 19 col. 5 (free response time urged).


267. See Eagleton, 81 F.C.C.2d at 424.


268. Carter/Mondale, 81 F.C.C.2d at 410-11 PP3-4.


269. See Eagleton, 81 F.C.C.2d at 426; see also Carter/Mondale, 81 F.C.C.2d at 419-20 P23 (IPCs can purchase more time for pro-candidate broadcasts than opposing candidates can purchase to respond).


270. See Carter/Mondale, 81 F.C.C.2d at 420 P23 (imbalance may result from IPC broadcasts). Because legal limits on contributions by candidates and their supporters already restrict these entities’ expenditures on political broadcasting, there is less need for the law to intervene further in “equalizing” the financial position of candidates. However, because IPCs are unencumbered by any limits on broadcast expenditures, legal intervention in this area is more appropriate.


271. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15 (1976) (“the ability of the citizenry to make informed choices among candidates for office is essential”); Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971) (first amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office”).


272. See 47 C.F.R. ß 73.1920 (1983). Although the text of the regulation does not provide explicitly for free response time, it has subsequently been construed as requiring such free access. See Red Lion Broadcasting Co., 1 F.C.C.2d 934, 934 (1965) (licensee must provide free response time to a personal attack if paid sponsorship is not forthcoming), aff’d, 1 F.C.C.2d 1587, 1587-88 (licensee cannot make attacked party’s response contingent upon payment), aff’d, 395 U.S. 367 (1969).


273. See supra notes 90-91 and accompanying text.


274. See supra note 92 and accompanying text.


275. See supra notes 206-10 and accompanying text (discussing the financial incentive for licensees to sell time to IPCs rather than candidates).


276. The personal attack rule, the only contingent response right outside of campaign periods, provides only for free response time. See supra note 272 and accompanying text.


277. Roy Barthold, 11 F.C.C.2d 790, 792 (1968).


278. See 47 U.S.C. ß 315(a) (1982) (prohibiting licensee censorship of candidate broadcasts); see also 1978 Primer, supra note 21, at 2269-72 (discussing FCC construction of ß 315(a)).


279. See WANV, 54 F.C.C.2d 432, 437-38 PP14, 16 (1975) (ß 315(a) prevents licensee from censoring candidate’s response to an editorial or insisting upon response to issues discussed previously).


280. See WMCA, 40 F.C.C. 241, 242-43 (1952) (candidate need not present his qualifications or attack those of his opponent).


281. See supra note 104 and accompanying text.


282. See supra note 24 (defining “candidates” entitled to political broadcast rights).


283. See supra note 277 and accompanying text.


284. The 47 U.S.C. ß 315(a) licensee censorship prohibition by its express terms applies only to candidates and thus apparently operates only during campaign periods.


285. 1978 Primer, supra note 21, at 2272-73, 2294, 2299; 1967 Fairness Report, supra note 42, at 727 P16; Times-Mirror Broadcasting Co., 40 F.C.C. 538, 539-40 (1962).


286. See 1978 Primer, supra note 21, at 2272-73, 2294, 2299; 1967 Fairness Report, supra note 42, at 727 P16; Times-Mirror Broadcasting Co., 40 F.C.C. 538, 539-40 (1962).


287. 1967 Fairness Report, supra note 42, at 727 P16; see also 1978 Primer, supra note 21, at 2272-73, 2294, 2299; Times-Mirror Broadcasting Co., 40 F.C.C. 538, 539-40 (1962).


288. The Commission has never addressed this point, and therefore the underlying rationale is unclear. There are a number of possible rationales under which the FCC could exempt spokesperson editorial responses from Zapple. Zapple, as a corollary of the fairness doctrine, is intended primarily to provide contrasting views to controversial issues of public importance rather than equal opportunities to each candidate’s supporters. Since the editorial or attack presents one side of such an issue, the supporters’ response may satisfy the licensee’s balance obligation while presenting no new issue. Moreover, since Zapple is a creation of the FCC, it does not necessarily operate with the automatic precision of the statutory Equal Opportunity Doctrine. Regardless of the rationale, because the Commission’s very reason for allowing licensees to select a candidate’s spokesperson to respond is to avoid a cycle of equal opportunity response rights, supra note 287, this provision would be pointless if the spokesperson’s response would generate a cycle of “quasi-equal opportunity” (Zapple) response rights.


289. See Red Lion, 395 U.S. at 378 (licensee obligation under the personal attack rule differs from the general fairness requirement “in that the broadcaster does not have the option of presenting the attacked party’s side himself, or choosing a third party to represent that side”).


290. See supra notes 5, 38, 101 and accompanying text (discussing the 1959 amendments to the Equal Opportunity Doctrine). Although these exemptions were initially intended to encourage greater coverage, subsequent interpretations have increasingly allowed maximum exposure for major party candidates without equal opportunity response rights for fringe candidates. For example, a 1976 FCC policy reversal exempted from Equal Opportunity obligations two-candidate debates broadcast live, as long as they were sponsored by non-broadcast entities. They were deemed “on-the-spot coverage” of news events under ß 315(a)(3) and thus triggered no response rights for the excluded candidates. See Chisholm v. FCC, 538 F.2d 349, 364, 366 (D.C. Cir.) (policy reversal is supported by legislative history of Communications Act and is entitled to judicial deference), cert. denied, 429 U.S. 890 (1976). In 1983, the FCC went even further, ruling that two-candidate debates sponsored directly by broadcasters are now similarly exempt from the Equal Opportunity Doctrine. Henry Geller, 95 F.C.C.2d 1236, 1244-46 PP19-22 (1983).


291. See 1972 Fairness Report, supra note 64, at 50 P32 n.12.


292. See 47 C.F.R. ß 73.1920(b)(4) (1983).


293. See 1972 Fairness Report, supra note 64, at 50 P32 (discussing Zapple); Amendment of Part 73 of the Rules Relating to Procedures in the Event of a Personal Attack, 12 F.C.C.2d 250, 251-52 PP3-4, 253 P6 (1968) (modifying personal attack rule to exempt bona fide newscasts), modifying 1967 Fairness Report, supra note 42.


294. The definition of “bona fide news programming” should be the same as that used under the Equal Opportunity Doctrine. Such programming includes bona fide newscasts, bona fide news interviews, and on-the-spot coverage of bona fide news events, as well as any commentary and analysis contained in the foregoing programs.


295. Amendment of Part 73 of the Rules Relating to Procedures in the Event of a Personal Attack, 12 F.C.C.2d 250, 251 P3 (1968) (fairness doctrine governs all bona fide news programming exempt from the personal attack rule), modifying 1967 Fairness Report, supra note 42.


296. The term “IPC pro-candidate broadcasts” as used in this section includes IPC-sponsored candidate “uses.”


297. See supra notes 136-54 and accompanying text.


298. See supra note 144-45 and accompanying text.


299. See supra note 104 and accompanying text.


300. 47 U.S.C. ß 315(b) (1982).


301. Id. ß 315(a) (1982).


302. 47 U.S.C. ß 315(b) (1982) applies only to candidates.


303. See supra notes 265-75 and accompanying text.


304. See supra note 206 and accompanying text.


305. Licensee notification of candidates should not be required, for the initial IPC’s broadcast will be logged by the licensee, and the candidate will be able to learn of it in the same manner that he learns of opposing candidates’ broadcasts. See supra note 230 and accompanying text.


306. The candidate, by operation of ß 315(a), will neccessarily have an equal opportunity to respond. See supra notes 33-37 and accompanying text.


307. The non-censorship provision of ß 315(a) would apply to the response. See supra note 104 and accompanying text.


308. See supra note 145 and accompanying text.


309. However, as noted in note 145, supra, any such collaboration might violate FECA. If so, such a provision would be moot. If not, this provision would refine the Carter/Mondale consistent with the respect for a candidate’s independence in campaign strategy demonstrated by existing broadcast law.


310. See, e.g., National Conservative Political Action Comm., 89 F.C.C.2d 626, 630 (1982) (separate statement of Chairman Fowler) (urging repeal of the fairness doctrine and equal time laws); Rep. Patsy Mink, 59 F.C.C.2d 987, 998-99 (1976) (concurring statement of Comm’r Robinson) (advocating “the abolition of this mischievous doctrine”).


311. See, e.g., 1974 Fairness Report, supra note 47, at 9 P22 (under the fairness doctrine, the FCC attempts to “achieve ‘robust, wide open debate’ on the one hand while avoiding ‘the dangers of censorship and pervasive supervision’ by the government on the other”).


312. See 1974 Fairness Report, supra note 47, at 22 P60.


313. See id.


314. Democratic Nat’l Comm., 91 F.C.C. 2d at 383 P21.


315. See supra notes 200-01 and accompanying text.


316. See, e.g., 1974 Fairness Report, supra note 47, at 8.


317. See Red Lion, 395 U.S. at 390.


318. See, e.g., CBS, 95 F.C.C.2d 1152, 1162-64 P24 n.14 (1983).


319. See, e.g., Energy Action Comm., Inc., 64 F.C.C.2d 787, 796 P35 (1977) (“equal balance” of views not required); 1974 Fairness Report, supra note 47, at 8 P18 (no requirement that any precisely equal balance of views be achieved), 16-17 P43 (no precise mathematical formula would be appropriate for all cases); Report on Editorializing, 13 F.C.C. 1246, 1251 P10 (1949) (“There can be no one all embracing formula . . . .”).


320. See, e.g., 1974 Fairness Report, supra note 47, at 8-9 P21, 16-17 P43.


321. See, e.g., Californians Against Initiative Fraud, 78 F.C.C.2d 469, 471 (Broadcast Bureau 1980) (presentation of opposing views in public affairs program resulting in 1:1 time ratio offsets repeated broadcast of professionally produced advertising spots in 3:1 presentation ratio); Energy Action Comm., Inc., 64 F.C.C.2d 787, 803-04 PP53-55 (1977) (licensee’s presentation of seven news reports totalling five minutes held insufficient to discharge fairness obligations incurred by 53 broadcasts of anti-divestiture Texaco advertisements totalling 41 minutes); see also 1974 Fairness Report, supra note 47, at 17 P44 (imbalance may be a function of the total amount of time afforded each side, the frequency with which each side is presented, or the size of the listening audience).


322. See, e.g., RKO General, Inc., 25 F.C.C.2d 117, 120-21 (Broadcast Bureau 1970); E. A. Stephens, 11 F.C.C. 61, 64 PP1-2 (1945).


323. See supra note 195 and accompanying text.


324. See generally Ballard, Independent Political Action Groups: New Life for the Fairness Doctrine, 36 VAND. L. REV. 929, 942-44 (1983) (discussing the necessity of vigorous fairness doctrine enforcement in the face of extensive IPC broadcasting).


325. See supra notes 265-66 and accompanying text.


326. See supra note 23 and accompanying text.


327. See, e.g., Brandywine-Main Line Radio, Inc. v. FCC, 473 F.2d 16 (D.C. Cir. 1972), cert. denied, 412 U.S. 922 (1973) (FCC revoked broadcast license despite lack of other applicants).


328. See supra note 122 and accompanying text.


329. 412 U.S. at 123.


330. Id. at 124-55; see supra note 123 and accompanying text.


331. Red Lion, 395 U.S. at 386-87.


332. Id. at 390; see supra notes 105-106 and accompanying text.


333. Red Lion, 395 U.S. at 390


334. See supra note 9 and accompanying text.


335. See supra note 122 and accompanying text.