B. The PACcess Doctrine
The PACcess Doctrine is not codified in any statute, nor has it been expressly articulated as FCC policy. It is not a formal doctrine in the same sense as the Equal Opportunity, Zapple, and fairness doctrines. Rather, it is a cohesive set of rulings with the force of law. Were the PACcess Doctrine formally spelled out, its impact on existing broadcast regulations could be perceived more easily. The PACcess Doctrine has three major effects: (1) strengthening the political broadcasting position of IPCs; (2) weakening the political broadcasting position of candidates and supporters; and (3) increasing the editorial discretion of licensees.
1. Enhanced Position of IPCs
The PACcess Doctrine provides IPCs with access potential and response rights contrary to current law and policy. The FCC’s failure in Eagleton to provide any response right to IPC anti-candidate broadcasts will enhance greatly an IPC’s ability to gain access time. Furthermore, the FCC’s ruling in Carter/Mondale has granted IPCs unprecedented response rights.
(a) Access Rights.
The lack of a response right to IPC anti-candidate broadcasts creates a significant incentive for licensees to sell time to IPCs rather than candidates. Licensees must provide response time to potentially numerous candidates or supporters who seek to exercise their response rights after opponents’ initial broadcasts.203 Because licensees are not obliged to provide any entity with response time after IPC anti-candidate broadcasts,204 such broadcasts are far less burdensome to licensees than any other campaign broadcasts.205
[*661] The Eagleton ruling also exacerbates an already existing statutory incentive for licensees to grant access to IPCs rather than to candidates or their supporters. Section 315(b) of the Communications Act206 requires licensees to charge candidates their lowest rate for any time sold within a certain proximity of a primary or general election. In contrast, only the competitiveness of the market restricts what a licensee may charge an IPC. As a result, a licensee can realize a greater profit by selling time to an IPC rather than to a candidate.
Because of these incentives, except when otherwise obligated by section 312(a)(7)207 or 315(a),208 or when the public interest standard appears to require it,209 a licensee is almost certain to sell all political broadcast time to IPCs for anti-candidate advertising. Furthermore, because a sale of time to IPCs outside of campaign periods is similarly unlikely to result in response obligations,210 IPC anti-incumbent and issue-oriented advertising will also find favor with licensees.
(b) Response Rights.
The Carter/Mondale ruling reversed prior law that denied IPCs any contingent response rights.211 The FCC ruling granted two new types of contingent response rights to IPCs. First, an IPC may share a favored candidate’s Equal Opportunity right by funding a response to an IPC-sponsored opponent’s use.212 Second, an IPC has the right to respond to such broadcasts when a candidate declines to do so.213 Consequently, an IPC now has a means of sharing a candidate’s contingent response right.
2. Weakened Position of Candidates and Supporters
A licensee is obligated to devote time to political broadcasting,214 but is likely to apportion only a limited quantity of this time to paid advertisements. The increased access that IPCs are likely to receive as a result of the PACcess incentives will therefore come at the expense of other political entities. State and local candidates, who, unlike federal candidates, have no [*662] affirmative access rights,215 will now find it much more difficult to obtain access time from licensees. In addition, although candidates and supporters have traditionally had response rights to anti-candidate broadcasts by other candidates and their supporters,216 they do not have any response right to similar broadcasts sponsored by IPCs.217 The candidate therefore has less opportunity to reach the public directly and no opportunity to respond to IPC criticisms.
3. Increased Editorial Discretion of Licensees
The FCC’s failure to provide a response right to IPC anti-candidate broadcasts allows licensees to promote their own views without running afoul of the otherwise stringent prohibitions on licensee advocacy contained in existing broadcast law. Licensees who favor or disfavor particular candidates now have available to them several permissible means of discrimination. Licensees can circumvent the Equal Opportunity and Zapple doctrines and political editorial rule218 by selling time only to IPCs who seek to discredit either disfavored candidates or opponents of favored candidates. No obligation to afford response time to the attacked candidates or their supporters will result.
This form of licensee advocacy is both more effective and more profitable than sale of time to favored candidates or their supporters, or frequent editorializing. It not only results in frequent and unanswered broadcasting of the licensees’ views, but also rewards the licensee with greater revenue from IPCs than would be derived from reduced-rate candidate broadcasts. Although a licensee still may not discriminate among candidates, it may discriminate between candidates and IPCs.219
Licensees may take similar partisan steps in non-election periods. Provided that they avoid a “glaring disparity” between viewpoints in overall programming,220 licensees are free to permit a favored IPC repeated opportunities to criticize an incumbent or editorialize on an important public issue without fear of incurring Cullman or other response obligations.
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