Political Broadcasting by Independent Committees


B. Response Rights to IPC Pro-Candidate Broadcasts:296 Modifying Carter/Mondale

In Carter/Mondale the FCC was asked to address the financial and informational inequities inherent in IPC pro-candidate broadcasts.297 Although the Commission noted that correcting such inequities was not within its province, it nevertheless created a mechanism aimed at alleviating the problem. The FCC granted IPCs the right to respond to certain IPC pro-candidate broadcasts, regardless of an affected candidate’s wishes.298 There is, however, no precedent and little justification for extending Equal Opportunity response rights to non-candidates, particularly in a manner that infringes significantly upon a candidate’s independence.299 The FCC’s remedy, which contravenes existing law, should be eliminated.

Although the FCC’s remedy exceeded existing law, its goal is sound. The Commission attempted to promote a balanced presentation of candidates by increasing a candidate’s ability to gain time to respond to IPCs. This goal can be achieved in a more direct manner that is consistent with existing broadcast law. The FCC should grant directly to candidates reduced-rate Equal Opportunity time to respond to IPC pro-candidate broadcasts. A candidate should also have the right to designate an authorized IPC to broadcast the response.

1. Cost of Response

The proposed candidate right to respond to IPC pro-candidate broadcasts brings into direct conflict the two provisions of law currently governing a candidate’s cost of response. Section 315(b) requires a licensee to charge candidates a reduced rate for any purchase of broadcast time.300 Section 315(a) obligates licensees to charge candidates a price for response time equal to that charged the initial user.301 When the initial user is a candidate, the initial purchase price will be set by section 315(b). The equal response price under section 315(a) will then be identical to the section 315(b) price. In such a case, therefore, the licensee can meet the obligations imposed by both sections. When the initial user is an IPC, however, section 315(b) does not apply,302 and the initial purchase price will almost certainly exceed the section 315(b) reduced rate. Thereafter, a licensee cannot meet the obligation imposed by one section without violating the other. If the licensee relies [*676] upon section 315(a) and charges an equal response price, he will violate the reduced rate obligation of section 315(b) by charging an impermissibly high price. If instead the licensee defers to section 315(b) and charges the reduced rate, he will have violated the equal response price obligation of section 315(a). The FCC must articulate a distinct purchase standard to be applied to candidates’ responses to IPC pro-candidate broadcasts to avoid repeated violations of the existing provisions.

In formulating a new standard, the FCC should not only remove the conflicting obligations currently placed upon licensees, but should adopt a reduced-rate response provision identical to the candidate reduced-rate response right to IPC anti-candidate broadcasts outlined in the previous section.303 Candidates should be entitled to purchase response time at one-half the applicable rate under section 315(b). This would clarify a licensee’s responsibility under sections 315(a) and 315(b) and enable candidates to respond to a greater number of IPC broadcasts, lessening any informational imbalance to the public. In addition, it would reduce any financial incentive304 for licensees to sell time to IPCs rather than to candidates. Once again, the sale of time at market price to IPCs carrying a concurrent obligation to sell response time to candidates at a price below that required by section 315(b) approaches equivalence to sale of time to a candidate at section 315(b) prices with the concurrent obligation to sell reponse time at the same price. The remaining provisions of section 315(a) regarding notice,305 response opportunity,306 and content of response307 should govern this response right due to the similarity between such broadcasts and candidate “uses.”

2. Candidate Authorization of IPC Responses

Candidates should have the option of allowing an IPC to broadcast a response to a prior IPC pro-candidate broadcast. The FCC provided candidates with such an option in Carter/Mondale.308 The FCC ruling should be modified, however, to require that a candidate explicitly authorize an IPC to broadcast on his behalf. This modification would return full control of campaign strategy to the candidate. If a candidate specifically chooses not to [*677] respond to IPC broadcasts, IPCs, whether supportive or antagonistic to the candidate, should not be able to obliterate the desired effects of such a choice. If the candidate elects to grant authorization to an IPC, the IPC should not be entitled to reduced-rate response time under either the aforementioned provision or section 315(b).309

3. Proposed Regulation
ß 73. 1933 IPC Pro-Candidate Broadcasts

(a) If any licensee permits an IPC to sponsor, in whole or part, the use of a broadcasting station by any person who is a legally qualified candidate for any public office, he shall afford equal opportunities to all other candidates for that office in the use of the same broadcast station in accordance with section 315(a) of the Communications Act, except that:

(1) the charges made for the use of a broadcasting station by a candidate in response to an IPC-sponsored broadcast by a legally qualified opposing candidate shall not exceed:

(A) 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

(B) at any other time, one-half the charges made for comparable use of the station by other users. A candidate shall be charged no more than the rate the station would charge if the candidate 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 candidate.

(2) Upon notice from an opposing candidate, a licensee shall permit an IPC to purchase time to respond to the initial broadcast. In such instances, subsection (1) above shall not apply.

(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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