Political Broadcasting by Independent Committees

3. Response Opportunity

Whereas the Equal Opportunity Doctrine assures a candidate an “equal opportunity” to respond,242 the political editorial and personal attack rules entitle candidates only to a “reasonable opportunity” to respond.243 A “reasonable opportunity” does not require “equal time”;244 it can vary with the circumstances,245 and it is generally left to the good-faith judgment of the licensee.246 An “equal opportunity,” however, requires equal time and [*667] equal treatment in all respects247 and operates with mathematical precision rather than relying on individual licensee determinations.248 Congress applied the stricter “equal opportunity” standard to candidate broadcasting to ensure equal treatment of candidates by broadcasters,249 while the FCC has used the less stringent “reasonable opportunity” standard merely to ensure that the public receives contrasting views on important controversial issues.250

The stricter equal opportunity standard should be applied to IPC anti-candidate broadcasts. Unlike the similarities drawn in the context of notification rights,251 anti-candidate broadcasts, in this context, are more analogous to candidate broadcasting because they are candidate-specific broadcasts purchased by parties actively involved in a campaign. Furthermore, preventing licensee discrimination against candidates was the primary reason for implementing the equal opportunity standard;252 licensee use of IPC advertising can result in similar discrimination.253

Anti-incumbent broadcasts should, on the other hand, be subject only to the reasonable opportunity standard. To protect licensee editorial freedom, response rights in non-election periods254 have generally been covered by this lower standard.255 Although regular paid broadcast of pre-election, anti-incumbent advertisements is somewhat analogous to campaign broadcasting, extending the equal opportunity standard to cover anti-incumbent broadcasts by IPCs would require reconsidering fully the reasons for limiting use of the equal opportunity standard to election periods. Such reconsideration may not be necessary, as even if application of the reasonable opportunity standard fails to prevent all licensee discrimination, this problem is likely to be cured by the equal opportunity rights the incumbent may claim as a candidate once the campaign period begins. In sum, although licensees should provide candidates with an equal opportunity to respond, they should be required to provide targeted incumbents only with a reasonable opportunity to respond.

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