2. Eagleton: Expanding the Rights of Anti-Candidate IPCs
In Thomas F. Eagleton,155 an incumbent Senator and candidate requested free and equal response time to a series of television advertisements that were highly critical of his senatorial record and candidacy.156 The advertisements were purchased by the National Conservative Political Action Committee (NCPAC), an IPC that had “targeted” Eagleton for a well funded anti-candidate campaign.157 Noting that NCPAC faced no finance restrictions, Eagleton argued that the Zapple doctrine would be rendered meaningless if the supporters of a “targeted” candidate were denied free response time.158 Eagleton additionally suggested that his opponent had [*655] benefited from NCPAC’s campaign at no cost to himself and that Eagleton should be granted free time to remedy this imbalance.159 The FCC ruled that the licensee had acted reasonably in offering Eagleton’s committee paid response time.160 The Commission reached this conclusion by analogizing to the Equal Opportunity and Zapple doctrines, neither of which provides free response time to paid broadcasts.161
In focusing on the question of paid versus free response time, the FCC neglected to resolve the overriding issue: whether Eagleton or his supporters had any response right at all.162 The question of entitlement to paid or free time should arise only after a response right has been established. The Commission specifically ruled that Eagleton had no Equal Opportunity response right because the NCPAC anti-candidate advertisements did not contain a “use” by his opponent.163 The Commission declined to rule on Zapple’s applicability, noting only that it had similarly declined to do so in the past.164 Finally, the Commission noted that the fairness doctrine would not provide a response right specific to Eagleton or his supporters, even if they could demonstrate imbalanced treatment.165
After failing to recognize a response right under the Equal Opportunity, Zapple, and fairness doctrines,166 the FCC ruled, “Accordingly, whether the NCPAC advertisements involved ‘uses’ (Carter/Mondale) or ‘non-uses’ (Zapple) the Commission has ruled that paid spots for one candidate create [*656] a right to paid spots for an opponent or supporters of the opponent.”167 Regardless of whether the FCC intended this language to support a right to respond, as opposed to, or in addition to, the cost of response, the statement has no application to the facts presented in the Eagleton case. The FCC failed to take into account that the NCPAC advertisements were not paid spots for any candidate, but rather were paid spots in opposition to Eagleton. Had the broadcasts been in support of an Eagleton opponent, a Zapple right in favor of Eagleton’s committee would have arisen.168 The broadcasts were not spots for any candidate, except in the extremely indirect sense that they may have benefited one or all of Eagleton’s opponents.169
In sum, the Commission failed to take the opportunity presented in Eagleton to articulate a legal basis for any response right to IPC-sponsored anti-candidate broadcasts. The FCC’s conclusion, sanctioning the licensee’s offer of paid response time, dealt primarily with the issue of cost. The FCC thus left candidates and their supporters without any discernible response right to the increasing number of IPC anti-candidate advertisements.
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