Political Broadcasting by Independent Committees



Explicit formulation of the PACcess Doctrine illustrates the extent to which the FCC has placed the existing political broadcast scheme in jeopardy by failing to accommodate IPCs within it. The PACcess Doctrine directly contravenes the established goals221 of political broadcast law, and it will erode them through its encouragement of imbalance and circumvention. The vital first amendment interests of informing the electorate and protecting robust debate have been compromised thoroughly by the incentive structure the Doctrine creates. The PACcess Doctrine will lead to more limited sources of political discussion in broadcast media, decreased candidate access, and permissible imbalances from increased and unanswered advocacy by licensees and those with access to wealth.222 In sum, the Doctrine threatens the viability of fifty-seven years of political broadcast regulation while adding little to the ends of existing regulation.

This situation should be remedied by eliminating the PACcess Doctrine and including IPCs within the existing regulatory scheme. This Note suggests three changes in the broadcast laws designed to accomplish these goals: (1) formulating reduced-cost response rights to IPC anti-candidate and anti-incumbent broadcasts; (2) revoking IPC Equal Opportunity response rights and formulating reduced-cost response rights to IPC procandidate broadcasts; and (3) applying the fairness doctrine more strictly to IPC editorial advertising in non-campaign periods.

A. Candidate and Incumbent Response Rights to IPC Attacks

The FCC’s failure to provide a response right to IPC anti-candidate and anti-incumbent advertisements is largely responsible for the PACcess Doctrine. Candidates and incumbents have no right to respond to such IPC broadcasts under the Equal Opportunity Doctrine,223 personal attack rule,224 or the FCC’s construction of the Zapple225 and fairness doctrines.226 The enhanced access position of IPCs, the weakened access and response position of candidates, and the ability of licensees to circumvent existing restrictions are the direct result of the Commission’s failure to provide response rights in rulings such as Eagleton.227 To remedy these effects of the PACcess Doctrine, the FCC should draw upon existing doctrines in formulating appropriate response rights. After addressing the major issues involved in creating these new response rights, this Note suggests that the FCC adopt a proposed regulation, as set forth in the text.


1. Definition

An IPC anti-candidate or anti-incumbent broadcast should be defined as any broadcast sponsored in whole or in part by an IPC that is critical of the background, experience, personal qualities, governmental record, or current campaign of a clearly identified candidate or incumbent. Such a definition would include those broadcasts that, although critical of candidates or incumbents, fail to trigger the personal attack rule.

Under this definition, the broadcast’s content rather than its sponsor will trigger the response right.228 Thus licensees, and ultimately the FCC, will be asked to judge which messages are directly critical of a candidate or incumbent.229 This task should not prove too difficult given that the success of IPC anti-candidate or incumbent broadcasts ultimately depends on the effectiveness of their criticism in the eyes of viewers who are arguably far less discriminating than professional broadcast licensees or FCC commissioners.

2. Notification

Although the Equal Opportunity Doctrine rarely requires licensees to notify candidates of time given or sold to opponents,230 both the political [*665] editorial and personal attack rules impose notification obligations on licensees.231 The FCC has noted several reasons for requiring licensee notification under these rules. First, notification ensures that the party criticized is aware of the attack and of the ensuing right to respond; therefore, assuming the response right is utilized, the public will have the benefit of opposing views.232 Second, except for candidate “uses,” which are protected from licensee censorship,233 licensees are held responsible for the content of all material they broadcast.234 Finally, regarding editorials, the Commission has noted that “there appears to be no reason why the licensee cannot immediately inform a candidate of an editorial.”235

For notification purposes, IPC anti-candidate and anti-incumbent broadcasts should be treated as political editorials and personal attacks rather than as candidate uses. Although a candidate may anticipate a certain amount of criticism from opposing candidates, IPC anti-candidate broadcasts, similar to editorial broadcasts and personal attacks, are less likely to be expected. An incumbent who is not campaigning actively during non-election periods may have even less reason to expect or learn of the attack. The public may lose the opportunity to hear a response from candidates and incumbents who are unaware of such broadcasts. Furthermore, whereas licensees are required to keep public records of all candidate “uses,” they are not required to keep similar records of IPC broadcasts.236 As a result, a candidate who [*666] searches licensee records diligently for opponents’ broadcasts will be able to discover for himself when the Equal Opportunity Doctrine entitles him to response time; a similar search for IPC ads would be ineffective. Finally, because licensees are not required to broadcast non-candidate political advertisements,237 they are held to a higher standard of accountability for the content when they choose to do so.238 Because IPC advertisements are more comparable to discretionary licensee editorials than to required239 and protected240 candidate uses, the notification requirement should apply to them as well.

Licensees should be required to notify candidates and incumbents of any IPC-sponsored attacks on them within seven days241 following the broadcast of such attacks. When broadcasts are scheduled to appear during the week immediately preceding election day, licensees should be required to notify the candidate within a sufficient period of time to allow for response.

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