A. Informing the Public
The Supreme Court’s opinion in Red Lion Broadcasting Co. v. FCC,94 upholding the fairness doctrine for the first time, emphasized that the public’s first amendment right of access to information, ideas, and experiences95 is the paramount concern of broadcast regulation.96 The Court held that this right of the public outweighs the rights of broadcasters97 and cannot be abridged by Congress or the FCC.98
Congress and the FCC have developed two methods of maximizing the informational utility of media broadcasting: first, by requiring that licensees provide coverage of important public issues; and second, by according candidates direct access to the electorate. The first of these methods is [*645] exemplified best by the public interest standard99 and the fairness doctrine,100 which require licensees to devote portions of their programming time to issues of public importance.101 The second approach, that of granting candidates direct access to the public, thereby facilitating the flow of essential political information to the electorate, is exemplified best by the congressional grant of an affirmative access right to federal candidates under section 312(a)(7) of the Communications Act.102 The avowed goal of the statute was “to give candidates for public office greater access to the media so that they may better explain their stand on the issues and thereby more fully and completely inform the voters.”103 A number of other provisions within the Act attest to this goal.104
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B. Protecting the Free Marketplace of Ideas
The Supreme Court ruled in Red Lion that the purpose of first amendment regulation of broadcasting is to preserve an uninhibited marketplace of ideas in which truth, or at least free choice, can ultimately prevail.105 Given a [*647] regulatory structure that licenses only a few persons to broadcast, the government must take affirmative steps to protect vigorous debate and prevent monopolization of the free marketplace.106 Accordingly, broadcast regulatioins have sought to guarantee that the presentation of any issues of public importance include a diversity of speakers and viewpoints. This goal has been implemented through limitations on multiple ownership of stations, both within a given market107 and nationwide;108 through equal opportunity provisions seeking balanced presentation of candidates, such as the Equal Opportunity109 and Zapple doctrines;110 and through provisions requiring the balanced presentation of issues by licensees regardless of profitability, such as the fairness doctrine and its personal attack, political editorial, and Cullman provisions.111 Congress, the courts, and the FCC have been particularly concerned with keeping in check the editorial potential of two significant classes: licensees and those with access to wealth.
1. Limiting Licensee Discretion
As gatekeepers of the largest communications medium in history, licensees are the focal point of political broadcast regulation. Congress and the FCC have regulated licensee behavior to prevent licensees from using their [*648] grant of a public trust to advance their own political beliefs or private interests.112 As the Supreme Court noted in Red Lion:
Otherwise, station owners and a few networks would have unfettered power . . . to communicate only their own views on public issues, and to permit on the air only those with whom they agreed. There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. “Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.”113
The major congressional and FCC regulations intended to protect candidates from licensee favoritism or discrimination are the Equal Opportunity114 and the Zapple doctrines.115 Furthermore, codification of the fairness doctrine116 limited licensee broadcasting discretion in the realm of general public issues.117 Finally, a licensee’s ability to editorialize is currently offset by its obligation to seek spokespersons to present opposing views.118
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