D. Evaluation of Proposal
Having stressed the need to reform the regulation of IPC broadcasting, and having suggested means of implementing such reform, this Note will [*680] now address the main objections that may be leveled against the proposals made.
1. Chilling Effect
The objection most likely to be raised against the proposed regulations is the possible chilling effect on IPC political broadcasting. Protestations of chilling effects on speech have followed the institution of all existing response provisions. However, the claim that this proposal will increase the chilling effect upon IPC broadcasting is unwarranted. The suggested response rights are virtually identical to those provided by existing law; they exceed them only by reducing the cost of response. A licensee who must provide half-rate time in response to market-priced IPC broadcasts is no worse off than a licensee who uses only candidate broadcasts that carry section 315(b) reduced-rate obligations.325 In either event, the licensee must provide a certain amount of campaign coverage under the public interest obligation.326 Reducing the greater profitability of IPC broadcasts is scarcely an attempt to restrict free speech. Moreover, the informational goal of these reduced-rate provisions is identical to that of existing provisions that courts have upheld as outweighing the competing value of licensee discretion.
Even assuming a chilling effect on IPC broadcasting, it is significant to note that in the past both the Supreme Court and the FCC have viewed an absence of political speech as preferable to unreasonably unbalanced speech.327 Hence, denying IPCs the opportunity to voice unanswered opinions is not entirely without precedent. The unbalanced access scheme which is likely to result from the PACcess Doctrine parallels the one rejected by the Supreme Court in CBS v. Democratic National Committee, whereby the financially affluent set the national agenda and speak without contradiction.328 As the Court noted, no private individual or group has a first amendment right to broadcast editorial advertising.329 Limiting the appeal of IPC advertising to licensees therefore implicates no constitutional right. The proposal does little more than remove IPCs’ “most favored” broadcast status, placing IPCs back on a par with all other political speakers.
2. Informing the Public
One may always argue that any restrictions on broadcasting content reduce the public’s access to information. Denying IPCs an opportunity for the rigorous and unanswered presentation of one side of an issue does not, [*681] however, leave the public uninformed, but merely unpersuaded. The fairness doctrine still requires licensees to provide coverage of any important public issues, regardless of whether this goal is achieved through IPC advertising. Furthermore, as the Court’s opinion in CBS v. Democratic National Committee suggested, the duty to cover important issues is better left with a carefully chosen, publicly accountable, and regulated licensee than given to a potentially larger number of unaccountable speakers “whose only qualification . . . may be abundant funds and a point of view.”330 Effective coverage of issues is more likely to result from the regular and continuous in-depth coverage a licensee is capable of providing than from a series of repetitive 30- or 60-second spot announcements.
3. Governmental Control
More generally, a first amendment danger is presented by any attempts to increase the government’s role in regulating speech. However, as this proposal is merely an extension of existing provisions to an additional entity, rather than the creation of new restrictions, such a criticism has only limited application. The Red Lion Court noted that different media may require different first amendment standards331 and that government action may be necessary to preserve the “free marketplace” goals of the first amendment in the broadcast media.332
4. Burden on Licensees
The proposal may also be objected to on the ground that it places an added administrative burden on licensees. However, the similarity of these provisions to existing law suggests a very minimal increase in the burden on licensees. Even if this were not so, as the Supreme Court noted in Red Lion, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount”333 under the first amendment.
5. Burden on FCC
A more serious concern might be the potential burden on the FCC of handling additional complaints that might arguably arise under such a scheme. This concern is especially significant at a time when the FCC and the broadcast industry have sought to remove most existing balance controls.334 The FCC’s lack of enthusiasm for new regulations, however, is hardly a reason to continue a demonstrably faulty regulatory arrangement. [*682] Furthermore, the proposed regulations would define more clearly a licensee’s obligations to candidates and supporters after IPC broadcasts, and may therefore actually reduce the number of complaints. There may, however, be an increase in Cullman complaints outside of campaign periods, and it will be entirely up to the FCC to either spell out more regular review procedures and standards or face an administrative logjam.
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