Political Broadcasting by Independent Committees


4. Cost of Response

Existing law provides three reasons for requiring candidates and supporters to purchase time to respond to opponents’ paid broadcasts;256 these reasons, however, do not apply to IPC anti-candidate broadcasting. First, Congress has mandated that licensees treat all candidates equally;257 thus one candidate should not be given what an opponent had to purchase. Satisfaction of this rule, however, does not require that an IPC and a targeted candidate receive equal treatment.258 Second, although the FCC does not view the equalization of funding inequalities as a function of political broadcast law,259 its more recent interpretations of political broadcast provisions may be characterized as attempts to minimize these inequalities.260 Third, the Commission has ruled that a licensee should not be obligated to subsidize a candidate’s campaign.261 Congress, however, has caused licensees to subsidize campaigns to some extent by requiring them to sell time to candidates at prices below the market rate.262 The FCC also has created a certain amount of subsidization by requiring licensees to provide free response time to licensee editorials,263 and by requiring them to provide free access time to candidates under the public interest standard.264

Strong policy arguments exist both in favor of and against granting free response time to IPC anti-candidate and anti-incumbent broadcasts. Free response time has been urged by campaign committees265 and other commentators.266 One complainant before the FCC argued that, because IPC broadcasts benefit a candidate’s opponents at no cost to the opponents, a candidate should not be charged for response time.267 Others have noted that because IPCs are free from the strict contribution and expenditure [*669] restrictions imposed on candidates,268 they can afford to purchase more time for anti-candidate broadcasts than the candidate can purchase to respond,269 thus creating considerable imbalance.270 To avoid the net effect of leaving the public uninformed of opposing views, particularly on an election issue,271 certain existing regulations, such as those governing personal attacks,272 have been interpreted as warranting free response time.

Other arguments provide support for mandating only paid response time to paid IPC anti-candidate broadcasts. First, the numerous IPC-sponsored broadcasts are far more similar, in their number and repetitiveness, to paid candidate broadcasts, to which only paid response time is required, than to licensee editorials, to which free response time is required. Second, although the Cullman doctrine requires free time to ensure that the public will not be left uninformed,273 it has been ruled inapplicable to campaign periods.274 Finally, licensees might perceive a free response time requirement as so burdensome that they would avoid all IPC broadcasts.

A solution to this issue must balance the paramount interest of the public to be informed and the unfairness to candidates of unchallenged IPC broadcasts against the potential burden on licensees and restriction on IPCs. Providing candidates with reduced-rate response time to paid IPC anti-candidate broadcasts is the most suitable accommodation of these interests. Reduced-rate time would enable candidates to purchase a greater amount of response time, enhancing the public’s opportunity to hear opposing views. It would minimize the degree of licensee subsidization and thus avoid the possibility that licensees would refuse to sell time initially to IPCs. Finally, it [*670] would eliminate or reduce drastically the existing financial incentive for licensees to sell time to IPCs to the exclusion of candidates and their supporters.275 The combined sum from a sale of time at market price to IPCs and response time to candidates at a price below that required by section 315(b) would equal roughly the sum obtainable from a sale of time to a candidate at section 315(b) prices with the concurrent obligation to sell reponse time at the same price.

Finally, incumbents should receive free response time to IPC anti-incumbent broadcasts. Existing law provides only for free, not paid, response time outside of campaign periods.276 Incumbents have no campaign war chests to compete with IPCs. To require a public officer to spend personal funds to respond would either bankrupt the official or leave the public uninformed of the opposing view. Free response rights, entitlement to which is judged by the “reasonable opportunity” standard, would bring incumbents into line with other non-election period respondents under the editorial and personal attack rules.

The most effective compromise among the competing policies for and against granting free response rights would require licensees to give targeted candidates response time on the same terms, whether paid or free, that they have provided to the IPC. If paid, the licensee should charge the candidate only one-half the rate applicable under section 315(b), even if the IPC paid a higher price for the initial time. Licensees should provide targeted incumbents with free response time.

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