III. THE PACCESS DOCTRINE: EXPANDING THE RIGHTS OF INDEPENDENT POLITICAL COMMITTEES
Despite continued debate among broadcasters, legislators, and regulators regarding repeal of the political broadcasting balance requirements,132 the statutory scheme explained in section I remains substantially unaltered. Recently, however, the FCC has re-interpreted several existing provisions in a manner that strengthens significantly the editorial broadcasting position of IPCs, whether they support a candidate,133 oppose a candidate,134 or seek to influence public opinion on important issues during national or congressional debate.135
A. Federal Communications Commission IPC Rulings Since 1980
1. Carter/Mondale: Expanding the Rights of Pro-Candidate IPCs
In Carter/Mondale Reelection Committee,136 candidate Carter’s authorized campaign committee requested an FCC ruling entitling Carter to free and equal response time to any broadcast “use” by his opponent, candidate Reagan, sponsored by an IPC.137 The Carter/Mondale Committee was [*652] concerned about having sufficient resources to respond to numerous IPC-funded Reagan “uses,” which, unaffected by federal presidential campaign expenditure limitations, could be overwhelming.138
The FCC ruled that an IPC-sponsored candidate “use” would not entitle an opponent to free response time.139 The FCC reasoned that a licensee was only obliged to provide response time to a candidate on the same terms — paid or free — as that provided to the sponsor of the opponent’s use, regardless of the relationship between the sponsored candidate and the sponsoring party.140 The Commission interpreted section 315(a) as merely preventing licensees from discriminating among candidates;141 the provision was not intended to “equalize any inequalities created by the election laws or by a candidate’s relative ability to attract support from independent groups.”142 The Commission viewed such inequalities, to the extent that they operate in a candidate’s favor, as analogous to personal financial wealth, and thus neither within the focus of section 315(a) nor of any concern to the FCC.143
Nevertheless, the Commission, going considerably beyond the scope of the Carter/Mondale Committee’s request, sought to remedy the perceived inequity. The Commission granted IPCs a contingent response right to IPC-sponsored candidate “uses”144 when an opposing candidate either elects not to or is financially unable to respond.145 The FCC formulated this [*653] contingent response right for IPCs by reasoning that the underlying fairness principles in this context were “indistinguishable” from those applied to candidate supporters under the Zapple doctrine.146 The Commission, however, did not restrict this right to any particular IPCs or provide a means for determining which IPC was to take precedence over others in claiming a single response opportunity on behalf of the opposing candidate.
The FCC’s creation of this right contravenes several of its own precedents. First, the FCC has explicitly declined to extend Zapple to IPCs in rulings both concurrent with147 and after Carter/Mondale.148 Second, the FCC has historically refused to grant contingent response rights to entities which, unlike candidates and supporters, are not readily identifiable as opponents.149 Third, while Zapple only entitles supporters to respond to non-“uses,”150 the Commission has provided IPCs a response right to candidate “uses” when sponsored by other IPCs.151 Therefore, this provision in effect grants IPCs a right identical to a candidate’s Equal Opportunity right whenever the candidate elects not to respond to the initial IPC-sponsored “use,” even though Congress, the courts, and the FCC have [*654] always restricted the Equal Opportunity right to candidates themselves.152 Fourth, in formulating this right, the FCC failed to consider that a candidate’s decision not to respond to certain broadcasts may reflect a particular campaign strategy. By allowing any number of IPCs to respond after a candidate has abstained from doing so, the FCC has curtailed a candidate’s independence by permitting IPCs to second guess and supersede a candidate’s campaign strategy.153 Finally, the right created restricts severely a licensee’s exercise of editorial discretion, contrary to FCC policy, by requiring the broadcast of responses from potentially numerous and varied IPCs in lieu of other coverage.154