| In Re | Petition for Reconsideration by People for the American Way and Media Access Project of Declaratory Ruling Regarding Section 312(a)(7) of the Communications Act. |
For the reasons that follow, I would have adhered to the interpretation of section 312(a)(7) set forth in the Declaratory Ruling, 9 FCC Rcd 5778 (1994). That decision does not suffer from legal error and, in my view, policy considerations cut in favor of establishing a clearer rule regarding the duties of broadcasters to sell time.
Legal Considerations
Section 312(a)(7) is not a particularly specific statute. It obliges stations to allow legally qualified federal candidates to "purchase reasonable amounts of time" for the use of broadcast facilities. The definition of "reasonableness" is left to this agency.
The Declaratory Ruling found that "broadcasters should be required to make available to federal candidates only the lengths of time offered to commercial advertisers during the year preceding a particular election period." 9 FCC Rcd at para 10. This decision was based on the Commission's 1978 Policy Statement on enforcement of section 312(a)(7). See 68 FCC 2d 1079.
A careful reading of that Policy Statement indicates that the 1994 Commission correctly understood it to establish regulatory parity as between candidates and advertisers with respect to time. That Statement specifically concludes:
We believe it to be generally unreasonable for a licensee to follow a policy of flatly banning access by a federal candidate to any of the classes and lengths of program or spot time in the same periods which the station offers to commercial advertisers. . . .[Thus,] [l]icensees may not adopt a policy that flatly bans federal candidates from access to the types, lengths, and classes of time which they sell to commercial advertisers.
68 FCC 2d 1079 at paras. 41, 55. In other words, broadcasters must treat candidates as well as they treat regular advertisers.
As the 1994 Commission noted, this parity principle runs throughout our section 312, and related section 315, interpretations. With respect to the question whether stations must provide candidates with access on weekends, the Commission has concluded that "stations are required to provide only the same policies with respect to weekend access that they apply to commercial advertisers. . . . [I]t is reasonable for federal candidates to expect to be treated in the same manner as commercial advertisers." 9 FCC Rcd at para. 8 (citing Codification of the Commission's Political Programming Policies, 7 FCC Rcd 678, 683 (1991)) (emphasis added). The Commission has also followed the parity principle in the context of "make goods," explaining that broadcasters must only offer make goods to candidates if such a privilege has been offered to commercial advertisers in the last year. See 9 FCC Rcd at para. 9 (citing 7 FCC Rcd at 697).
For a broadcaster to adhere to this principle of parity with respect to the issue of time units (even in a general, or "across the board," fashion) is simply not inconsistent with our precedent. To the contrary, it comports fully with the above-discussed rulings and codifications. In my view, today's decision represents a break from the well-established "parity principle" of "reasonableness."
Conversely -- and contrary to the linchpin of petitioners' argument -- the Declaratory Ruling does not, by establishing that stations need only sell candidates the time amounts they sell commercial advertisers, violate any Commission precedent. See supra at para. 11. Although the Order asserts "it is well-settled Commission policy that 'across-the-board' policies adopted by a broadcaster generally cannot be sustained," supra at para. 9, this is not at all clear.
The purported ban on "flat bans" that underlies petitioners' theory, as well as today's Order, is traced back to the 1978 Policy Statement. See supra at para. 4 & n.2 (summarizing petitioners' argument and citing, in support thereof, the 1978 Policy Statement). That decision did not, however, generally prohibit across-the board policies. Rather, it prohibited across-the-board policies that deny candidates the chance to buy time under the same terms as commercial advertisers. To repeat:
Licensees may not adopt a policy that flatly bans federal candidates from access to the types, lengths, and classes of time which they sell to commercial advertisers.
68 FCC 2d 1079 at para. 55. This is simply not a rule against "flat bans" in general, or even against "flat bans" relating to time issues , as petitioners and the Order characterize it; it is a rule against "flat bans" that deny candidates treatment equal to that given advertisers on matters of time.(1)
Moreover, CBS v. FCC, 453 U.S. 367 (1981), did not hold, as this Order suggests, that across-the-board policies are unsustainable or somehow impermissible. The dicta from that case recounts the criteria for evaluating access claims that the Commission established in the 1978 Report and in the Order and memorandum opinions and orders underlying that litigation. In the cited passages, the Supreme Court only recounted those criteria for purposes of deciding the other legal claims before the Court. Specifically, the Court held that the Commission's case-by-case approach was "consistent with," 365 U.S. at 389, the access requirement of section 312(a)(7), and it explained why that was so, speaking of the various interests at stake. In no way, however, did the Court require such an approach with respect to all issues. Other approaches -- including placing some outer limits on the meaning of reasonableness, as the Commission has attempted with its parity theory -- could be equally consistent with the statute.
As discussed above, "across-the-board" policies, even with respect to time, were never prohibited by the 1978 Policy Statement. In any event, the Commission cannot really mean what it says about the requirement of individualized consideration and negotiation in every case. Surely, broadcasters may have "flat" policies that track the requirements of section 312(a)(7). For instance, broadcasters may refuse -- "across the board" -- to sell time prior to the commencement of a campaign, to an unqualified candidate, or to a candidate for state office.
To be sure, the Commission has also stated that spot requests should be considered on an individualized basis. But when it can be ascertained that the request is somehow legally deficient -- either because the campaign has not commenced, the person is not qualified, or the request seeks treatment that exceeds that given to advertisers with respect to weekend access, make goods, or time increments -- I do not believe that the broadcaster has any duty to consider and negotiate such requests. The best way to reconcile the parity principle with the Commission's emphasis on individualized consideration is to conclude that stations must negotiate individual requests when those requests fall within the outer bounds of section 312(a)(7).
Policy Considerations
Given that the Commission possesses some discretion to define the meaning of "reasonableness," I turn to the policy considerations involved in the sale of non-standard increments of time to political candidates. I believe that the interests of the broadcasters in having at least some regulatory clarity, as well as their interest in reducing the transaction costs of complying section 312(a)(7), are being overlooked.
I grant that determinations of reasonableness turn, at bottom, on the facts and circumstances of individual cases. That does not mean, however, that we cannot establish any general principles to help broadcasters better understand, ex ante, their obligations in this area -- such as simple equal treatment standards.
Moreover, by requiring broadcasters to engage in full-scale negotiation and compromise every single time that a federal candidate makes a request to purchase time (today's Order admits of no exceptions), this decision imposes great transaction costs on the stations. The cost for stations of mandated, individualized negotiation in every case should not be underestimated.
Finally, I am troubled by the fact that the Commission's reading of section 312(a)(7) elevates federal candidates to a status that is not just on a par with, but superior to, commercial advertisers. I think it equally reasonable to read "reasonable time" to mean as much time as the station gives commercial advertisers -- in other words, to require parity of treatment between candidates and advertisers. As explained above, this is precisely how Commission precedent has interpreted the term. In my opinion, reasonable treatment is equal treatment; I do not think that the policy concerns that animate 312(a)(7) require special or more favorable treatment for candidates than for everybody else.