Political Broadcasting by Independent Committees

7. Bona Fide News Programming Exemption

Congress has exempted bona fide news programming from the Equal Opportunity Doctrine to encourage greater licensee coverage of political campaigns.290 The FCC has applied an identical exemption to the Zapple [*673] doctrine291 and to the personal attack rule292 to avoid inhibiting licensee coverage of controversial issues.293

Unless bona fide news programming is also exempt from the newly formulated rights to respond to IPC broadcasts, licensee news coverage of significant IPC activity might be inhibited, resulting in the diminished availability to the public of political information. For this reason, and to maintain consistency with existing broadcast law, the anti-candidate and anti-incumbent response rights should not apply to broadcast material that falls within bona fide news programming.294 Existing law ensures that the general balance obligation of the fairness doctrine will still apply to such programming.295

8. Proposed Regulation

IPC anti-candidate and anti-incumbent response rights could be added to the existing communications provisions in volume 47 of the Code of Federal Regulations as follows:

ß 73.1931 IPC Anti-Candidate Broadcasts

(a) If any licensee permits an IPC to sponsor, in whole or part, any broadcast that presents views critical of the background, experience, personal qualities, governmental record, or current campaign of a clearly identified candidate, the licensee shall afford an equal opportunity [*674] to the candidate or a spokesperson of the candidate to use the same broadcast station.

(b) The licensee shall, within one week of the broadcast, transmit to the candidate:

(1) notification of the date, time, and identification of the broadcast;

(2) a script or tape (or an accurate summary if a script or tape is not available) of the broadcast; and

(3) notification of the candidate’s right to an equal opportunity to respond himself, or through a spokesperson.

When such broadcasts occur within seventy-two hours prior to the day of the election, the licensee shall comply with the provisions of this paragraph sufficiently far in advance of the broadcast to enable the candidate an equal opportunity to prepare a response and present it in a timely fashion.

(c) The charges made for the use of a broadcasting station by a candidate or candidate’s spokesperson in response to an IPC anti-candidate broadcast shall not exceed:

(1) during the forty-five days preceding the date of a primary or primary runoff election, and during the sixty days preceding the date of a general or special election in which the person is a candidate, one-half the lowest unit charge of the station for the same class and amount of time for the same period, and

(2) at any other time, one-half the charges made for comparable use of the station by other users. A candidate or candidate’s supporter shall be charged no more than the rate the station would charge if the candidate or candidate’s supporter were a commercial advertiser whose advertising was directed to promoting its business within the same area encompassed by the particular office for which the person is a candidate.

(d) The provisions of this section shall not apply to broadcast material that falls within bona fide newscasts, bona fide news interviews, or on-the-spot coverage of bona fide news events, including commentary and analysis contained in the foregoing programs.

ß 73.1932 IPC Anti-Incumbent Broadcasts

(a) If any licensee shall permit an IPC to sponsor, in whole or part, any broadcast which presents views critical of the background, experience, personal qualities, or governmental record of a clearly identified incumbent elected official, the licensee shall, within a reasonable time, and in no event later than one week after the broadcast, transmit to the incumbent:

(1) notification of the date, time, and identification of the broadcast;

(2) a script or tape (or an accurate summary if a script or tape is not available) of the broadcast;

(3) an offer of a reasonable opportunity to respond over the licensee’s facilities.

(b) The provisions of this section shall not apply to broadcast material which falls within bona fide newscasts, bona fide news interviews, or on-the-spot coverage of bona fide news events, including commentary and analysis contained in the foregoing programs.

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