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February 18, 1998

Honorable John D. Dingell
U.S. House of Representatives
Committee on Commerce
Room 2125
Rayburn House Office Building
Washington, D.C. 20515-6115

Dear Representative Dingell:

Thank you for your letter of February 4, 1998, regarding the FCC's authority to mandate that broadcast licensees provide free air time for political candidates. I welcome this opportunity to share with you my views on this important question.

At the outset, I would like to express my agreement with you about the questionable wisdom of, as you put it, "an unelected body of Federal regulators acting on just one component of what should be a comprehensive campaign reform package fully and publicly debated by the Congress." Questions concerning the way in which campaigns for elective office in this country will be conducted go to the heart of our democratic process, and it strikes me as profoundly undemocratic to have such fundamental questions resolved by an independent administrative agency that is not directly accountable to the American people. Furthermore, we at the Commission do not know how a free time requirement would affect, or work together with, other campaign finance reform measures that have been proposed by lawmakers such as voluntary spending limits; piecemeal efforts in this area could create more problems than they solve.

I also agree with you that "the FCC's authority to act in this area absent any express authority from the Congress" is, as a legal matter, doubtful. In general, I do not believe that the "public interest" standard scattered throughout the Communications Act is a catch-all provision that enables the Commission to enact regulation to promote what it perceives to be the general public welfare. Although the discretion afforded the agency in defining the "public interest" is broad, it is not limitless. See NBC v.United States, 319 U.S. 190, 216 (1943) ("public interest" standard does not "confer unlimited power"). Specifically, the Commission is charged with granting broadcast licenses to people who will use them in a way that serves the public's needs and ensures that the American people will have the best radio and television systems possible, see Radio Station WOW v. Johnson, 326 U.S. 120, 131 (1945) (public interest with which the Commission is charged is that involved in granting broadcast licenses), not to make what is, in essence, election law based on an incidental connection to broadcasting.

As far as election law is concerned, the Federal Communications Commission has no technical expertise at all. The business of this Commission is to regulate the operations of the communications industry, and we therefore have a certain level of specialized knowledge about the workings of that industry and its technologies. But this Commission knows little to nothing, in the institutional sense, about campaign finance law or the conduct of electoral campaigns. There thus would no basis for the judicial branch to defer to our judgment in this area, as it often does with respect to communications issues.

The problems associated with reliance upon general grants of authority to promote goals not directly related to our statutory mission, described above, are heightened when Congress itself has already decided how the competing interests at stake should be balanced. That is precisely the case here: in sections 312 and 315 of the Communications Act, Congress addressed the very question that some would have the Commission now revisit -- the level of access that political candidates should have to broadcast facilities in order to ameliorate concerns about the costs of campaigns -- and set forth explicit rules, which are discussed below, to govern such access. This agency should not rely on assertions of general authority to trump these specific Congressional judgments. It is not our place in the constitutional scheme.(1)

Finally, I address your specific questions:

1. What specific statutory authority gives the Commission the ability to mandate that broadcasters provide free air time to political candidates? Is there any specific support in the legislative history for your conclusion?

I can locate no statutory authority that expressly empowers the Commission to require broadcasters to provide free air time to political candidates. Even the proponents of the agency's authority in this area appear to concede that no such authority exists.

As for legislative history indicative of such authorization, I am unaware of any such material. As a matter of fact, the legislative history of one of the provisions of the Communications Act that directly addresses the question of candidates' access to air time, section 312(a)(7), consistently refers to the "sale" (never the "gift") of air time. See Kennedy for President Comm. v. FCC, 636 F.2d 432, 445 (D.C. Cir. 1980)("Each reference to Section 312(a)(7) in the legislative history of the Campaign Communications Reform Act speaks of the sale of time.").

2. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined whether broadcasters are required to provide free air time under Section 312(a)(7)? What did the Commission say?

As you know, section 312(a)(7) of the Communications Act provides that broadcast licensees must "allow reasonable access to or . . . permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate" in a federal election. 47 U.S.C. 312(a)(7). In a public notice issued just after passage of section 312(a)(7), the Commission addressed the question whether that provision mandated that broadcasters provide air time to political candidates free of cost. See Use of Broadcast and Cable Facilities by Candidates for Public Office, 34 F.C.C.2d 510 (1972).

In this notice, the Commission asked: "Does the 'reasonable access' provision of Section 312(a)(7) require commercial stations to give free time to legally qualified candidates for Federal elective office?" Id. at 537. According to the Commission, the answer was: "No, but the licensee cannot refuse to give free time and also [refuse] to permit the purchase of reasonable amounts of time. If the purchase of reasonable amounts of time is not permitted, then the station is required to give reasonable amounts of free time." Id. (emphasis added). Next, the Commission inquired: "If a commercial stations gives reasonable amounts of free time to candidates for Federal elective office, must it also permit purchase of reasonable amounts of time?" Id. Again, the Commission responded in the negative: "No. A commercial station is required either to provide reasonable amounts of free time or permit purchase of reasonable amounts of time. It is not required to do both." Id. (emphasis added).

The Commission has adhered to this interpretation of section 312(a)(7) in subsequent agency actions. See, e.g, Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Campaign Act of 1971, 47 F.C.C.2d 516 (1974); Petitions for Rulemaking, F.C.C. Docket No. 76-472 (June 1, 1976) (denying petition for regulations requiring free time); The Law of Political Broadcasting and Cablecasting, 69 F.C.C.2d 2209, 2288 (1978).(2) As the U.S. Court of Appeals for the District of Columbia Circuit has observed, "[t]he Commission has consistently read Section 312(a)(7) as giving broadcasters the option of fulfilling their obligation thereunder by offering to candidates either free time or the privilege of purchasing time." Kennedy v. FCC, 636 F.2d at 447.

3. How do you reconcile the Commission's proposal to provide free air time to candidates with the court's holding in Kennedy for President Comm. v. FCC, 636 F.2d 432 (D.C. Cir. 1980)? When the Commission briefed and argued that case, how did the agency characterize Congress's intent with respect to free time for candidates?

In Kennedy for President Comm. v. FCC, the D.C. Circuit affirmed the Commission's view that section 312(a)(7) does not guarantee free air time for qualified federal candidates. See 636 F.2d at 449 ("[Section 312(a)(7)] does not . . . confer the privilege of using the broadcaster's facilities without charge. Rather, . . . broadcasters may meet the demands of Section 312(a)(7) either by an allotment of free time or by making time available for purchase."). Although I have not reviewed the actual briefs that the Commission filed in this case and would respectfully refer you to Chairman Kennard's response on this aspect of your question, it is clear from the court's opinion that the agency, in defending its order denying a petition for free time under section 312(a)(7), took its traditional position that Congress did not intend for that section to create a right to free time, but rather that it gave broadcasters a choice of providing such time or selling reasonable amounts of time to qualified candidates. See generally id. at 447-448 (describing agency interpretation of statute).

I find it difficult, if not impossible, to reconcile this holding with the current proposal that the FCC may indeed require free time for candidates consistent with the Communications Act. If the major provisions of the Communications Act that expressly deal with air time for candidates do not allow for an unqualified right to free time, it would seem to follow that such a right could not, in accord with the Act, be erected under other, more general provisions such as the "public interest" sections. To do so would be effectively to nullify the precise choice made by Congress when it weighed the interests on the scale here. As the Supreme Court has stated, "[a]pplication of the 'broad purposes' of the legislation at the expense of specific provisions ignores the complexity of the problems Congress is called upon to address and the dynamics of legislative action. . . . [Such an approach] takes no account of the processes of compromise and, in the end, prevents the effectuation of congressional intent." Board of Governors v. Dimension Financial Corp., 474 U.S. 361, 373-74 (1986). In short, this Commission is in no position to upset the express legislative balance struck by Congress in section 312(a)(7) and also in section 315, discussed in response to Questions 5 and 7.

4. If Section 312(a)(7) requires that broadcasters either give candidates reasonable access to free time or the opportunity to purchase reasonable amounts of time, what legal authority gives the Commission the power to modify that requirement in any way?

In my opinion, this Commission has no power to modify the plain language of any federal statute, including section 312(a)(7). Congress drafts and passes legislation, the President signs it into law, and the job of this agency is, to the best of our ability, to implement those laws as written. As discussed above, Congress unambiguously gave broadcasters two alternatives when it comes to air time for certain candidates for elective office: reasonable access to free time or the purchase of reasonable amounts of time. This Commission is powerless to alter that clear, disjunctive approach to broadcasters' obligations to political candidates by invoking the generalized "public interest."

Furthermore, I do not believe that section 4(i) of the Communications Act, often relied upon as a source of authority for the Commission, empowers us to modify the plain terms of section 312(a)(7). See 47 U.S.C. 154(i) ("The Commission may perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions."). It seems "inconsistent with" section 312 for the Commission to effectively repeal a significant portion of its language, i.e., the phrase regarding the "purchase of reasonable amounts of time."(3)

5. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined whether the "lowest unit charge" provisions of the Communications Act mandate free time? 47 U.S.C. section 315(b). What did the Commission say? Has the agency ever said that the lowest unit charge should be zero?

The "lowest unit charge" provision of the Communications Act provides that "charges made for the use of any broadcasting station by any person who is a legally qualified candidate for public office" for campaign purposes "shall not exceed . . . the lowest unit charge of the station" for the same class and amount of air time that the candidate seeks to use. 47 U.S.C. 315(b). The Commission has explained that "[b]y adopting the lowest unit charge requirement, Congress intended to place candidates on a par with broadcast station's most-favored advertisers." See Codification of the Commission's Political Programming Policies, 57 Fed. Reg. 189, 197 (1992).

The U.S. Court of Appeals for the Ninth Circuit has observed that the Commission does not under 315(b) "require a station to donate time to a candidate who cannot afford time comparable to that paid for by his opponent." Paulsen v. FCC, 491 F.2d 887, 889 (9th Cir. 1974) (citing Letter to M.R. Oliver, 11 P&F Radio Reg. 239 (1952)). This makes sense in light of the purpose of section 315(b), which, as the Commission has said, is to put candidates "on a par with" -- something quite different than elevating them above -- other advertising customers. My staff can find no proceeding since then in which the Commission has concluded otherwise, although I again defer to Chairman Kennard's response in the event that any relevant proceedings have not been identified. Based on my information, it thus does not appear that the agency has affirmatively determined that the lowest unit charge required by section 315(b) should be "zero" or, in other words, no charge at all.

6. What purpose would the "lowest unit charge" provisions serve if the Commission promulgated a system for free time for candidates? Would a zero charge establish no charge as the benchmark for "sales" of additional time to candidates?

If this Commission were to establish a regulatory scheme requiring free time for candidates, the lowest unit charge provisions of the Communications Act would be rendered superfluous for all practical purposes. If candidates could obtain air time for no charge at all, they of course would have no incentive to invoke the lowest unit charge section.

7. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined the circumstances in which free time would be mandated under the "equal opportunities" provision of the Communications Act? 47 U.S.C. 315(a).

a) What did the Commission say about the availability of free time under this provision?

In Use of Broadcast Facilities By Candidates for Public Office, 24 F.C.C.2d 832 (1970), the Commission summarized its interpretive rulings under section 315 in a question and answer format. With respect to the availability of free time under the "equal opportunities" provision, which requires broadcasters who allow legally qualified candidates to use their facilities to afford the candidates' opponents "equal opportunities" for such use, see 47 U.S.C. 315(a), the Commission said: "Is a licensee required or allowed to give time free to one candidate where it had sold time to an opposing candidate? The licensee is not permitted to discriminate between the candidates in any way. With respect to any particular election it may adopt a policy of selling time, or of giving time to the candidates free of charge, or of giving them some time and selling them additional time. But whatever policy it adopts, it must treat all candidates for the same office alike with respect to the time they may secure free and that for which they must pay." Id. at 865 (emphasis added). From this statement, it appears that the Commission has generally ruled that if a broadcaster chooses to provide free time to one candidate, then under the "equal opportunities" rule he must provide the same sort of time to all opposing candidates.(4)

b) If "major" candidates, or those who voluntarily observe campaign spending limited, are afforded free time, wouldn't the equal opportunities provision then require a grant of time for all opposing candidates?

By logic, it might well do so. Section 315(a) provides that "[i]f any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all such other candidates for that office in the use of such broadcasting station," 47 U.S.C. 315(a), unless the appearance is made in certain specified types of programming, see id. 315(a)(1)-(4). Accordingly, if the exercise of free time rights by a particular candidate were deemed to involve the licensee "permit[ting]" the "use" of a broadcast station by the candidate, and the "use" in question did not fall within one of the enumerated exceptions, then the plain language of 315(a) would appear to require free time for "all . . . other" persons running for the same office. This reading would also comport with the Commission's interpretive rulings of this section, noted in Question 7(a).

As a result, the interaction of the equal opportunity provision with any rule that the Commission might promulgate requiring free time would undermine any attempt by the Commission to limit the scope of persons entitled to free time to anybody but all legally qualified candidates for any public office. As a practical matter, that is a large number of persons. I doubt, therefore, the Commission's ability to fashion a free time rule that would be workable for broadcasters.

Moreover, if the combined effect of the equal opportunity provision and a free time requirement were to open up broadcast studios to all legally qualified candidates in public elections, that would also create tension with the well-established principle that "in the area of discussion of public issues Congress chose to leave broad journalistic discretion with the licensee" and that "Congress specifically dealt with -- and firmly rejected -- the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." CBS v. DNC, 412 U.S. 94, 105 (1973). In other words, if the doors of broadcasters' stations were flung open to great numbers of political candidates, the editorial discretion of broadcasters would be drastically undermined and they might become more akin to public utilities than private journalistic outlets. This is not, I think, the regulatory scheme that Congress had in mind when it originally adopted the Communications Act, as explained by the Supreme Court in CBS v. DNC.

8. What statutory provision gives the Commission the power to modify Congress's specific choices on the issue of candidate access to broadcast time? Reconcile your answer with the Supreme Court's holding in FCC v. Midwest Video, 440 U.S. 689, 706 (1979), that the Commission "was not delegated unrestrained authority" to regulate public access to cable systems.

As stated above, it is my view that this Commission lacks authority to change the plain directives of the statutes that Congress has passed and the President has signed into law. Accordingly, I do not believe that we have the power to modify the specific choices that Congress has already made on the issue of candidate access to broadcast time, as set forth in sections 312(a)(7) and 315.

That is the general teaching of FCC v. Midwest Video, 440 U.S. 689 (1979). As the Supreme Court said in that case, "[t]hough afforded wide latitude in . . . supervision over communication by wire [or radio], the Commission was not delegated unrestrained authority." Id. at 706. To the contrary, Commission actions must be "'reasonably ancillary to the effective performance of [its] various responsibilities for the regulation of television broadcasting.'" Id. at 708 (quoting United States v. Southwestern Cable Co., 392 U.S. 157, 178 (1968)).

I question whether regulation of air time for political candidates could pass that jurisdictional test. To be sure, Congress has granted us "broad authority," but that grant was meant to enable us "to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission," FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940), not to allow us to establish control over the amount of spending by candidates in electoral campaigns. The essential aim of the current proposal is not necessarily to promote goals directly related to broadcasting but rather to redress the perceived problem of escalating campaign costs and the public's attendant opinion of the influence of money on politics. The proposal's relation to broadcasters is really an incidental one: broadcasters provide a convenient means to achieving the posited governmental end -- decreasing the influence of money in politics -- but they are not in themselves part of the problem at which the proposal is aimed.

9. If the Commission has authority to mandate free time for political candidates, does it have the same authority to mandate free air time for elected officials to communicate with their constituents? Can the Commission mandate free time for State and local officials and candidates? What about free time for coverage of local government proceedings? What about free time for special interest groups? Is there any limit to the scope of the power you are claiming? If so, what is it?

As discussed above, I do not believe that the Commission has authority to mandate free air time for political candidates. Once one assumes the correctness of that assertion, however, it is hard to imagine any logical stopping point to the agency's regulatory power. That is, if one reads the "public interest" standard to include free time for political candidates, I can discern no principled basis for drawing the line at, for instance, free time for other forms of communication between political representatives and the public. In other contexts, courts have recognized the dangers of the Commission embarking upon this slippery a slope. See Friends of the Earth v. FCC, 449 F.2d 1164 (D.C. Cir. 1971) (rejecting contention that application of fairness doctrine in context of advertising could be rationally limited to cigarette commercials). The lack of guidance as to how to distinguish between the parties and conduct to be regulated is but one of the inherent difficulties of rulemaking when there is no clear statutory directive to do so.

10. What special expertise does the Commission have to determine how much free air time for candidates would be needed to effectively counter the adverse consequences of the current system on our democratic process? Or to determine which candidates would be entitled to receive such free time? Is the resolution of these contentious issues more appropriately within the province of elected officials?

This agency, which regulates the operations of the communications industry, has no expertise whatsoever in the area of campaign finance or election law. It follows that we lack the ability to say with any real certainty how much free time is enough free time, much less to assess "the adverse consequences of the current system on our democratic process." Apart from guesswork, speculation, or anecdotal experience, we have little or no information upon which to base estimations of the "harm" that results from political candidates purchasing their air time. As you suggest, the resolution of such issues is more appropriately within the province of Congress, which has the institutional capacity to find the relevant facts and create the evidentiary record that should be developed before major changes in the current relationship between broadcasters and political candidates are made.

In closing, I would like to make one point about the merits of the proposal for free air time for political candidates. Who would pay for all of this "free" air time? Broadcasters would, through lost advertising revenue. What this proposal thus amounts to is a painful and targeted tax on their industry in order to fund a general public benefit. They are not, however, the only ones who might ultimately bear the costs of "free" time. If the expense of paid air time rose to compensate for free riders on the system, commercial advertisers would pay, and if those increased costs were passed on to consumers of advertised products, the purchasing public would also pay. In the end, then, the air time at issue would not be "free" at all. This proposal would merely shift the costs of political air time from those who willingly donate to political candidates and the candidates themselves to the broadcast industry and American consumers, whose resultant funding of this speech could hardly be considered voluntary.

Again, thank you for your letter. Please do not hesitate to contact me if I can be of further assistance to you in this or any other matter before the Commission.


Harold W. Furchtgott-Roth

cc: The Honorable Thomas J. Bliley
The Honorable William E. Kennard
Commissioner Susan Ness
Commissioner Michael K. Powell
Commissioner Gloria Tristani

1. Another possible reason not to construe the "public interest" standard of the Communications Act to authorize the imposition of a free time requirement on broadcasters is that such a reading would at least implicate the First Amendment and the Takings Clause of the Constitution. According to traditional rules of statutory construction, statutes should be read to avoid, rather than to create, constitutional issues. See e.g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971). Apart from noting the relevance of this rule to the proper reading of "public interest," however, I leave the constitutional issues for a later day.

2. There may be additional proceedings that address this question, and I defer to the response of Chairman Kennard in this regard.

3. For that matter, mandating free time on the basis of section 4(i) would be equally discordant with section 315, discussed further below, which guarantees political candidates "equal opportunities," and "no more," Kennedy v. FCC, 636 F.2d at 176, and air time at the "lowest unit charge," not necessarily free of charge.

4. Again, I rely in part on the Chairman's response with respect to the identification of other relevant proceedings under section 315(a).