I. EXISTING POLITICAL BROADCAST RIGHTS
Political broadcast rights fall into two categories: affirmative access rights and contingent response rights.12 Both sets of rights consist of an opportunity to broadcast over a licensee’s frequency.13 An affirmative access right entitles its holder to use a broadcast frequency regardless of any triggering event.14 A contingent response right entitles its holder to such a use only after a prior broadcast by an individual15 or a group with a particular relationship to the holder,16 or after an editorial broadcast by the licensee.17
All political broadcast rights are accompanied by corresponding restrictions upon a licensed broadcaster’s relatively unencumbered use of his station.18 Affirmative access rights, which impose greater restrictions upon a licensee’s freedom of operation, are far less common than contingent response rights, due to a congressional desire to preserve a licensee’s editorial [*630] discretion.19 Courts and, until recently, the FCC have vigorously enforced political broadcasting rights as they apply to the three major political broadcast entities: candidates, candidate supporters, and IPCs.20
A. Broadcast Rights of Political Candidates21
The affirmative and contingent broadcast rights of political candidates are more extensive and clearly defined than those of any other political broadcast entity.
1. Affirmative Access Rights — Section 312(a)(7)
Although early FCC decisions under the public interest standard22 created [*631] certain incentives for licensees to offer candidates direct access,23 licensees were under no affirmative duty to do so24 until the enactment of the Federal Election Campaign Act of 1971, which added section 312(a)(7) to the Communications Act.25 Section 312(a)(7) requires licensees to grant federal candidates [*632] the opportunity to purchase reasonable amounts of time or to grant them free time.26 The impact of section 312(a)(7) was not fully recognized until ten years later when the United States Supreme Court decided CBS v. FCC,27 holding that the statute created an affirmative broadcast access right for federal candidates.28 The Court rejected CBS’s argument that the statute [*633] merely codified existing public interest obligations without imposing additional requirements upon licensees.29 The Court construed the statute as an unambiguous congressional command granting a right to access to all federal candidates that went far beyond the access time required by the public interest standard.30 In addition, the Court interpreted the statutory language strictly, permitting license revocation for even a single “willful” denial of access, as well as for repeated denial of access, even if not “willful.”31
The forcefulness of the CBS v. FCC opinion will almost certainly result in greater caution on the part of licensees when handling future access requests by federal candidates. The decision, however, will not affect state and local candidates, who have no affirmative access right beyond the general obligation imposed upon licensees under the ill-defined public interest standard.32
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2. Contingent Response Rights — The Equal Opportunity Doctrine
To prevent licensees from using their power to discriminate against certain candidates, Congress codified the Equal Opportunity Doctrine in section 315(a) of the Communications Act.33 The Doctrine creates an equal opportunity34 for a legally qualified candidate35 to use a broadcast station after a prior “use”36 by an opposing candidate.37 The Doctrine was amended [*635] significantly in 1959, exempting certain types of news programming from Equal Opportunity obligations.38
Section 315(a), like section 312(a)(7),39 does not require a licensee to provide free time to a candidate. Section 315(a) does require the licensee to provide free time if it had previously provided free time to an opposing [*636] candidate.40 Given the financial disparity among candidates, the statutory grant to candidates of an “equal” opportunity to purchase time for response to opponents’ paid broadcasts does not ensure that equal broadcast time will in fact result.41
FCC regulations formulated subsequent to the codification of the Equal Opportunity Doctrine have granted candidates additional contingent response rights. The “political editorial rule” requires a licensee to provide a candidate with a reasonable opportunity to respond to a licensee editorial that criticizes the candidate or endorses an opposing candidate.42 The “personal attack rule” requires a licensee to provide a reasonable opportunity to respond to an attack on an individual’s “honesty, character, integrity or like personal qualities” made during the presentation of views on a controversial issue of public importance.43 However, the FCC has recently proposed that both of these rules be repealed.44
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