[*658]
(b) Issue-oriented Campaigns.
In 1982, the Commission was asked to apply its interpretation of Cullman, as developed in the NCPAC rulings,185 to issue-oriented IPC advertising in non-campaign periods. In Democratic National Committee,186 the Democratic National Committee (DNC) alleged that two networks’ broadcasts of Republican National Committee (RNC) advertisements that praised the “Republican” economic program violated the fairness doctrine.187 The DNC claimed that the networks had failed to allow adequate time for contrasting views on a controversial issue of public importance.188 The DNC noted that the RNC advertisements were broadcast outside of any federal election campaign period189 and sought to influence public opinion on a current congressional debate rather than a national election.190 To rectify this imbalance, the DNC argued that Cullman obligated the networks to provide free time191 to an appropriate spokesperson such as the DNC.192 The FCC dismissed the DNC complaint for failure to make out a prima facie claim under the fairness doctrine,193 and the United States Court of Appeals for the District of Columbia Circuit affirmed.194
The Commission’s DNC decision was disturbing for two reasons. First, it contains several inconsistencies; second, it has potential negative ramifications for the continued viability of the fairness and Cullman doctrines. The FCC’s opinion was internally inconsistent in that, although it accepted the DNC’s interpretation of Cullman as a remedy for viewpoint imbalance and not merely deficiency,195 it ruled against the complaint on deficiency [*659] grounds.196 The opinion was also inconsistent with previous FCC rulings that had held that news programming was insufficient to offset regular presentation of editorial advertising.197 The Commission took an extremely lax view of the fairness doctrine, suggesting that the doctrine was not intended to address imbalances in coverage over “short intervals” that “exist from time to time.”198 Furthermore, the Commission stated that only a “glaring disparity” would violate the doctrine.199 Finally, the FCC appeared to be setting the stage for the dismissal of any future Cullman claims premised upon paid IPC broadcasts by stating, in dicta, that paid broadcasts by national political organizations deal with issues of public importance that are necessarily covered by a licensee’s programming and are necessarily covered in a manner presenting contrasting viewpoints.200 Although the court of appeals subsequently disapproved of this part of the FCC’s ruling, the court nevertheless noted that a successful fairness doctrine complaint is “a rare creature.”201
The Democratic National Committee ruling reflects a re-evaluation by the FCC of the significance under the fairness doctrine of frequently broadcast editorial advertising. The FCC’s apparent exemption from the fairness doctrine of imbalances in coverage over “short intervals” that “exist from time to time” requires entities seeking to respond to an IPC issue-oriented campaign to satisfy a higher standard of proof. Since a fairness doctrine violation [*660] must be proven before Cullman response time will be considered,202 the FCC has made it far more difficult for any entity to gain response time to IPC editorial advertising.
Under the CBS and Democratic National Committee rulings, IPC non-campaign broadcasts are unlikely to incur response obligations. Such broadcasts will therefore be far more appealing to licensees than they have been in the past. As a result, IPCs are likely to have greater broadcast access during non-campaign as well as campaign periods, whereas entities opposing them will have no guaranteed opportunity to respond.
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