3. National Conservative Political Action Committee and Democratic National Committee: IPC Broadcasting in Non-Election Periods
IPCs, unlike candidates and supporters, may also be active political broadcast entities outside of campaign periods. During non-campaign periods in recent years, IPCs have sought to broadcast editorial advertising170 of two types: anti-candidate campaigns targeting incumbents expected to seek reelection, and issue-oriented campaigns seeking to focus attention on issues on the public or congressional agenda.
(a) Anti-incumbent Campaigns.
In the 1980 National Conservative Political Action Committee rulings,171 the National Conservative Political Action [*657] Committee (NCPAC) asked the FCC to investigate alleged actions taken by NCPAC opponents that were designed to prevent NCPAC from gaining access to broadcast anti-incumbent campaigns.172 NCPAC charged that its opponents were intimidating licensees through claims that NCPAC advertisements could result in burdensome free-time obligations.173 In rejecting the complaint, the FCC ruled,174 and later reiterated,175 that, despite the political nature of the NCPAC advertisements, Cullman obligations might result from broadcasting them in non-election periods. The FCC reasoned that the language in Zapple that held Cullman inapplicable to “the direct political arena”176 should be confined to campaign periods, as was the rest of the Zapple doctrine.177
As recently as 1983, broadcasters and IPCs were still seeking clarification from the FCC on this issue. In its CBS ruling,178 the FCC declined to rule that any sale of broadcast time to IPCs in non-election periods would not incur Cullman free time obligations.179 The FCC’s ruling, however, focused almost entirely on Zapple rather than the Cullman issue presented. The Commission held that Zapple does not apply to IPC broadcasting outside of campaign periods.180
These rulings make it far more difficult for a targeted incumbent to respond to hostile IPCs. The Commission has completely ruled out Zapple as an avenue of response.181 Moreover, because an incumbent’s record or qualifications are unlikely to be viewed as a controversial issue of public importance,182 the fairness doctrine and its Cullman corollary will afford no relief.183 An incumbent’s access and response rights might therefore be limited entirely to campaign periods.184
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