2. Preventing Monopolization by the Wealthy
The historical development of broadcast regulation demonstrates a concern that the broadcast system, fueled by private financial sponsorship, may come to reflect informational and editorial biases in favor of the wealthy. [*649] Such biases could monopolize the free marketplace of ideas and silence the robust debate needed to satisfy first amendment goals.119 Absent the fairness doctrine, licensees would be free to make time available only to the highest bidders.120 Subsequent cases have shown that such an auctioned access system would have many interested takers.121
In the landmark CBS v. Democratic National Committee ruling, the Supreme Court refused to recognize a first-come, first-served system of access, noting that:
the public interest in providing access to the marketplace of “ideas and experiences” would scarcely be served by a system so heavily weighted in favor of the financially affluent, or those with access to wealth. . . . [T]he views of the affluent could well prevail over those of others, since they would have it within their power to purchase time more frequently. Moreover, there is the substantial danger . . . that . . . editorial advertising could be monopolized by those of one political persuasion.
These problems would not necessarily be solved by applying the fairness doctrine, including the Cullman doctrine, to editorial advertising. If broadcasters were required to provide time, free when necessary, for the discussion of the various shades of opinion on the issue discussed in the advertisement, the affluent could still determine in large part the issues to be discussed. . . . [A] right of access . . . would have little meaning to those who could not afford to purchase time in the first instance.122
The Court recognized further that a system in which licensees are required to grant access to anyone who can afford it would erode the editorial discretion of publicly accountable licensees in favor of private spokespersons “whose only qualification . . . may be abundant funds and a point of view.”123 The Court thus construed the fairness doctrine as a shield for the licensee as well as a sword for the public: it protects licensees’ freedom of judgment by allowing them to deny access to non-candidates,124 and it assures the public of coverage of important issues and balance in overall [*650] programming, for a licensee neglects this obligation only at the risk of losing his license.125 In its own restrictions on paid access systems, the FCC has relied upon substantially the same reasoning.126 The approach used by Congress, the courts, and the FCC in limiting the potentially enormous impact of wealth on political broadcasting has thus been one of exclusion rather than inclusion: instead of structuring an affirmative action system of free time grants to less wealthy spokespersons, the government has limited the access of more wealthy spokespersons, adding provisions for free time grants when the scale has tilted too strongly in favor of the wealthy.127
C. Maintaining the Existing Regulatory Structure
All regulatory structures must provide for their own continuing viability. Therefore, the final goal of the broadcast regulatory scheme is to account for newly significant, but previously unregulated, entities that may arise from the rapidly changing nature of campaign broadcasting. The emergence of new entities presents the danger that the existing broadcast regulations and, more importantly, the reasons for their existence may be circumvented. To maintain its continued viability, the existing scheme must be sufficiently flexible to account for new entities.
Although this goal may appear secondary to either of the prior two, its importance to the regulatory structure cannot be understated. The increasingly strong measures taken by Congress, the courts, and the FCC to prevent broadcasts by candidate supporters from becoming a means of eluding the Equal Opportunity Doctrine provide the clearest example of such action.128 In Red Lion, the Supreme Court stressed that absent the fairness doctrine, “the objectives of ß 315 themselves could readily be circumvented”129 by licensees through use of supporter broadcasts.130 The FCC finally formulated the Zapple doctrine to eliminate this loophole by including candidate supporters within the equal opportunity scheme.131 As [*651] will be seen, the FCC appears more reluctant to include other new entities, which present a threat similar to that previously presented by candidate supporters, within the existing regulatory framework.
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