C. Heightened Fairness Doctrine Standard for Editorial Advertising
The FCC’s apprehension of extended involvement in broadcast content and its periodically articulated distaste for the fairness doctrine310 have led [*678] to a standard that is increasingly amorphous. Although the fairness doctrine continues to help the FCC in treading the thin line between enforcement and violation of the first amendment,311 the informational objectives that led to its original formulation and ultimate codification have been increasingly ignored. Originally, the FCC required active licensee efforts to balance editorial advertising,312 and proposed to treat fairness doctrine obligations on a par with licensee editorials.313 Recently, however, the FCC reduced its standard to require only the maintenance of “less than a glaring disparity” between opposing views,314 and has tried unsuccessfully to exempt virtually all national issues from the doctrine.315 Although the Commission relies upon the good-faith discretion of licensees in applying the statutory directive,316 its repeated disdain for the doctrine is unlikely to encourage license compliance.
The growing use of political advertising requires that the FCC be more active in preventing informational imbalances. However, because the doctrine relies so heavily upon licensee editorial judgment and provides for ad hoc determinations of violations, it is difficult to propose specific statutory provisions to remedy the FCC’s inaction. The Commission should adopt standards for licensee compliance that reflect the Red Lion Court’s view that the right of the public to be suitably informed exceeds the broadcaster’s right to unrestricted freedom of operation.317
The FCC has often relied upon Congress’ decision not to create an equal opportunity doctrine for general public debate318 when declining to articulate a mathematical formula to test fairness doctrine violations.319 The Commission has reasoned that such a standard would be ineffective in dealing with the diversity of cases.320 Nevertheless, when evaluating individual [*679] complaints, the FCC frequently relies upon quantification, such as time and presentation ratios.321 Similarly, the FCC frequently considers audience size, potential of differing time periods, frequency, and overall broadcast time devoted to a particular viewpoint when evaluating complaints under the Equal Opportunity Doctrine.322
IPC editorial advertising campaigns are not so dissimilar to candidate uses as to preclude the formulation of general mathematical or other balance guidelines. For example, a licensee should be required to provide a reasonable balance in political advertising, rather than merely prevent “glaring disparities” in coverage. If a licensee accepts editorial advertising, the licensee should have an active duty to provide contrasting views, not only in news programming, but through programming or advertisements likely to reach a similarly sized audience to that reached by the initial advertising. This may require a licensee to provide reduced rate or free broadcast time to include opposing views that are less well funded. This pseudo-equal opportunity requirement is necessary to balance the wide exposure of prime-time editorial advertisements.
In its Democratic National Committee ruling, the FCC accepted the DNC’s interpretation of Cullman as a remedy fir imbalance and not only deficiency.323 This re-interpretation should be retained, and Cullman free time should be granted to viewpoints opposing those presented by extensive IPC campaigns. Although licensees should not be required to accept editorial advertising, if they choose to broadcast such advertisements they must take affirmative steps to counter the imbalance likely to result from the one-sided addition to overall programming.324
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