Political Broadcasting by Independent Committees


B. Broadcast Rights of Candidate Supporters45

On at least two occasions, Congress has attempted to extend the Equal Opportunity Doctrine to include candidate supporters.46 The failure of these congressional endeavors has forced the FCC to regulate supporter broadcasting under the broad fairness doctrine.47 The fairness doctrine imposes [*638] two obligations upon broadcast licensees: (1) the duty to provide coverage of controversial issues of public importance; and (2) the duty to present contrasting viewpoints on these issues.48 These two duties are referred to as the “affirmative” and “contingent” obligations, respectively.49 The fairness doctrine requires balanced coverage within a licensee’s overall programming,50 rather than within each program or series of programs.

The FCC relies primarily upon the reasonable, good faith editorial discretion of licensees in implementing the fairness doctrine.51 The FCC’s failure to develop specific criteria by which to judge compliance with the fairness doctrine reflects the Commission’s hesitancy to interfere with broadcast content52 and results in extensive discussion but infrequent enforcement of the doctrine.53 Nevertheless, a violation of the fairness doctrine may require [*639] prompt remedy by a licensee54 and can result in financial penalty or license non-renewal.55

1. Affirmative Access Rights

In CBS v. Democratic National Committee,56 the Supreme Court held that neither the first amendment nor the Communications Act requires a [*640] licensee to accept paid editorial advertisements.57 This holding effectively denied affirmative access rights to entities other than federal candidates.58 Similarly, the FCC has refused to construe section 312(a)(7) as granting an access right to any entity other than federal candidates.59 Although supporters have no affirmative access rights, licensees may be motivated to grant access, under certain circumstances, by their actual or perceived obligation under the fairness doctrine60 or the general public interest standard.61

2. Contingent Response Rights — The Zapple Doctrine

To mitigate the consequences of Congress’s failure to extend the Equal Opportunity Doctrine to include candidate supporters,62 the FCC developed the Zapple,63 or “quasi-equal opportunity,”64 doctrine. In Letter to Mr. Nicholas Zapple,65 the FCC established a contingent response right, similar to the Equal Opportunity response right of candidates,66 for candidate supporters [*641] after a broadcast by supporters of an opposing candidate.67

The FCC deemed the creation of this right to be a “common-sense application” of the section 315(a) statutory scheme to candidate supporters.68 The Zapple doctrine, like the Equal Opportunity Doctrine,69 does not require a licensee to grant free response time to candidate supporters, even if the supporters are financially unable to purchase such time.70 A candidate’s supporters will be entitled to free time only if a licensee has granted free time to an opposing candidate’s supporters.71 As pointed out in the discussion of the Equal Opportunity Doctrine, these rules ensure only equal broadcast opportunity, not equal broadcast time.72

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