[ Text Version | WordPerfect Version ]

February 19, 1998


The FCC has received dozens of requests and petitions from citizens, political scientists, public interest advocates, 55 Members of Congress and the President asking the Commission to examine whether broadcasters should be obligated to provide free or reduced rate air time for political candidates as a way of reducing the demand for campaign dollars by enhancing candidates' ability to reach the electorate. Given these calls and my conviction that improved exposure to informed political debate would serve the public interest, I favor an FCC rulemaking proceeding examining free or reduced-rate air time initiatives.

Candidates for federal office spent $400 million in the last election buying TV time, which they need to reach voters with their message. Another $150 million was spent on third party issue ads, which are not regulated as campaign expenditures but nonetheless are designed to influence the outcome of elections. That's $550 million buying access to the airwaves. In some races, media spending accounts for over 60% of total campaign expenditures. An FCC rulemaking proceeding examining free or reduced-rate air time proposals would provide an independent, open, and public forum for discussion of proposals for ways to improve candidate access to the airwaves, as well as an opportunity to collect and consider all views on the extent of the Commission's legal authority to effectuate various free time initiatives. Although we have learned much that is relevant to campaign advertising under our longstanding duties under the Act, it remains the case that the Commission needs to learn much more before acting on any free time proposal.

It is my intention that the Commission launch a proceeding on free or reduced-rate air time for candidates later this Spring. I do not believe that the Commission needs to examine broader campaign finance issues in order to consider adopting a free time initiative. Rather, the focus should be on examining what broadcasters can do to serve the public interest of providing political candidates with access to the public airwaves.

It is my preliminary view that the Commission has authority to act in this area under the public interest standard governing license renewals set forth in Section 309(k)(1)(A) of the Communications Act. I believe that this interpretation of the public interest standard is consistent with longstanding Commission and judicial precedent. In addition, although Congress has enacted two provisions specifically addressing broadcasters' obligations to political candidates (Subsection 312(a)(7) and Section 315), it is my preliminary view that Congress has not chosen to enact the sort of legislative scheme that would preclude further agency action pursuant to Section 309. Instead, I believe that Congress preserved the Commission's duty to construe and apply the public interest standard.

A. The Public Interest Standard Confers Broad Authority on the FCC to Require Broadcasters to Air Programming that Serves the Public Interest

The public interest standard predates the Commission. The Radio Act of 1927 established the general scheme under which broadcasters may use the airwaves by making clear that the airwaves are public property and that broadcasters may use them only if they agree to serve the "public interest, convenience and necessity." That licensing standard was used when the Communications Act was enacted and the Federal Communications Commission was created in 1934. Under Section 309(a), the Commission may not grant a broadcast license unless it determines that "the public interest, convenience, and necessity will be served," and under Section 309(k)(1)(A) the Commission may not renew a broadcast license unless it determines that "the station has served the public interest, convenience, and necessity." In the recently enacted Section 336(d), which provided that existing television stations may obtain digital spectrum, Congress made clear that "[n]othing in this section shall be construed as relieving a television broadcasting station from its obligation to serve the public interest, convenience, and necessity." In short, in an unbroken line dating back to the dawn of broadcasting, the bedrock principle established by Congress has been that the Commission must ensure that broadcasters serve the public interest. Congress added to the Commission's broad authority by enacting Section 303(r), which states that the Commission may "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this Act," which, of course, includes the public interest standard.

Within a decade of the Commission's creation, the Supreme Court twice ruled that the Act conferred broad and flexible authority upon the Commission. In FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138 (1940), the Court described the public interest standard in the Act as a "supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy." In NBC v. United States, 319 U.S. 190, 219 (1943), the Court upheld the Commission's authority to regulate broadcast networks, despite the absence of any explicit reference to networks in the Act, explaining that the Act gave the Commission "a comprehensive mandate to 'encourage the larger and more effective use of radio in the public interest.'" Thus, it has long been settled that the 1934 Act conferred ample authority on the Commission to adjust the duties of broadcasters to better serve the needs of the American people.

Congress largely has chosen not to develop the contours of the public interest standard itself -- although it may do so -- but instead generally has allowed this agency to develop and adjust that standard to meet changing circumstances such as the development of digital broadcasting. Even before this Commission was created, the Federal Radio Commission considered the programming service offered by licensees to determine whether they served the public interest, and its renewal forms sought information on the amount of time devoted to entertainment, religious, commercial, educational, agricultural, and fraternal programs. See 1928 Annual Report to Congress by the Federal Radio Commission 161. In 1946, the Commission issued its "Blue Book" governing the Public Service Responsibilities of Broadcast Licensees, which provided that the public interest service of broadcasters would be judged according to the Commission's evaluation of the noncommercial programming offered by the licensee; the extent of its local programming devoted to discussion of public issues; and the licensee's efforts to limit the extent of commercials. By 1960, the Commission listed 14 elements of programming that would usually be necessary to meet the public interest standard: (1) opportunity for local self-expression; (2) the development and use of local talent; (3) programs for children; (4) religious programs; (5) educational programs; (6) public affairs programs; (7) editorialization by licensees; (8) political broadcasts; (9) agricultural programs; (10) news programs; (11) weather and market reports; (12) sports programs; (13) service to minority groups; and (14) entertainment programs. Report re En Banc Programming Inquiry, 44 FCC 2203, 2314 (1960). And, of course, the Commission developed standards such as the fairness doctrine, the personal attack rule, and the political editorializing rule pursuant to the public interest standard. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). None of those programming elements is set forth explicitly in specific provisions of the Communications Act itself. Rather, for decades after 1927 it was understood that it is the core duty of this agency and its predecessor to develop and adjust that standard. The Supreme Court approved the Commission's role as "'ultimate arbiter and guardian of the public interest'" because "[a] licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.'" CBS, Inc. v. FCC, 453 U.S. 367, 394-95 (1981).

From time to time, of course, the Commission can and should reduce a broadcaster's public interest obligations to take into account marketplace and other developments. The Commission has eliminated a number of requirements because they were no longer necessary. To cite one example, both the 1928 and 1960 standards required broadcasters to provide agricultural programming, and it seems clear that such a requirement is no longer appropriate as a general matter. But in eliminating certain requirements the Commission never purported to eliminate the general public interest obligation of every licensee to air programming that serves the public interest. Nor could the Commission reach such a decision, for the Act clearly requires the Commission to issue and renew licenses only upon a finding that the licensee has and will continue to serve the public interest. Indeed, the public interest standard was never deleted from the statute -- to the contrary, Congress in 1996 reiterated that it applies with full force to digital licenses -- and it would be a mistake to conclude that the Commission has authority to enforce only duties that are specifically enunciated in the Communications Act. Such a scheme is precisely the opposite of the one Congress enacted in 1934 and that continues to govern the Commission today.

Although the Supreme Court has described the Commission's authority as "expansive," NBC, 319 U.S. at 219, there are important checks on that authority. First, Congress may always amend Section 309(k) to adjust the public interest standard, although it has not done so since that standard was adopted in 1927. Second, the courts retain authority to review all of our regulations as well. And we recognize, as the Supreme Court stated in CBS, that the Commission's role as "guardian of the public interest" requires "a delicate balancing of competing interests." 453 U.S. at 394. Accordingly, we always strive to provide as much discretion as possible to broadcasters, and to limit whatever burden is placed upon them, although "[i]t is the right of viewers and listeners, not the right of broadcasters," which is "paramount" under the public interest standard. Id. at 395 (quoting Red Lion). In the course of considering the duties of broadcasters in the digital era, we should listen to comments from all quarters regarding the proper balance to be struck and be especially mindful of the First Amendment rights of broadcasters. In addition, commenters would be free to raise arguments concerning the scope of the Commission's authority, and we would carefully consider those arguments as well.

B. Specific Statutory Provisions Relating to Campaign Advertising Do Not Limit the FCC's Authority to Adopt Campaign-Related Public Interest Rules

The Communications Act includes two specific provisions relating to campaign advertising, Sections 312(a)(7) and 315. I do not believe that those requirements constitute comprehensive legislation that has, in effect, precluded regulation pursuant to the public interest standard. As an initial matter, it seems to be beyond dispute that, in the decades following 1934, the Commission's interpretation of the public interest standard to require "public affairs programs" and "political broadcasts" was appropriate. Under the long history of broadcast regulation, such requirements have been considered to be at the heart of the public interest standard. Congress would not have reenacted the language of the public interest standard in 1934 if it thought that the Federal Radio Commission had erred in 1928 by examining licensees' programming in the course of deciding whether to renew licenses.

I also do not believe that Congress, without so stating, amended the public interest standard in 1959 or 1971 to deprive the Commission of authority with respect to such political matters. Section 315(a) established the "equal opportunities" rule, which requires broadcasters who permit one candidate to "use" a station to permit the candidate's opponents to "use" the station as well. Section 315(a) long has been construed by the Commission, in accordance with its straightforward language, to require a station that sells or provides free time to one candidate to provide time to other legally qualified candidates for that office on the same terms. But that provision was never thought to preclude regulation of political or public affairs programming under the public interest standard. In 1959, concerned that the Commission had misconstrued the provision by requiring equal opportunities for a challenger when an incumbent appeared on a news program, Congress amended Section 315(a) to make clear that the equal opportunities rule was not triggered by such an appearance. At that time, Congress also specified that its limitation on the equal opportunities rule should not be construed to relieve broadcasters "from the obligation imposed upon them under [the Act] to operate in the public interest." In other words, Congress in 1959 took pains to make clear that it was not circumscribing the public interest standard generally, but instead was making a surgical amendment limited to the equal opportunities rule of Section 315.

Twelve years later, in 1971, Congress added the "lowest unit charge" rule to Section 315. Once again, that was a focused but limited amendment, which provided that broadcasters may not charge candidates whatever the market may bear but must provide advertising time to candidates at the discounted rate charged to large advertisers. Congress did not indicate that, by making this change, it was otherwise adjusting the public interest standard in any way. Section 315 instead includes an express proviso preserving the obligation "to operate in the public interest."

In 1971, Congress also added Section 312(a)(7). I do not believe that through this provision Congress sub silentio has adjusted the public interest standard to limit the Commission's discretion regarding license renewal decisions. Congress did not say in 1971 that it was restricting the Commission's broad discretion under the public interest standard of Section 309, and relieving broadcasters of their longstanding obligations under that provision, by adding one sentence to another provision of the Act. Moreover, Section 312(a)(7) is not addressed to license renewals and it did not on its face relieve broadcasters of any obligation. Section 312 does not involve license renewal, but rather involves license revocation. And rather than relieving broadcasters of any obligation, Section 312(a)(7) provides, in full, that the Commission may revoke a station license "for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy." The other provisions in Section 312(a) have nothing to do with political advertising. Section 312(a) may be a comprehensive list of the bases on which the Commission may take one of the most drastic actions authorized under the Act -- license revocation -- but it is not a comprehensive code governing campaign advertising.

The 1971 amendments, in short, did not relieve broadcasters of any obligations, but instead directed the Commission to revoke broadcast licenses in certain circumstances. If the Commission had authority prior to the 1971 amendments to consider a broadcaster's actions regarding political broadcasting prior to those amendments, as the Commission's 1960 Programming Inquiry shows, it did not lose that authority upon enactment. Indeed, I do not believe it would be correct to construe a provision placing additional burdens on broadcasters (the lowest unit charge rule) and authorizing a draconian penalty in certain circumstances (the license revocation provision) as effecting an unstated amendment of the public interest standard that relieved broadcasters of a core responsibility.

It also is worth noting that the Commission in the past has construed the public interest standard to contain requirements very similar to, but not identical with, those imposed by the equal opportunities requirement of Section 315(a). The equal opportunities requirement of Section 315(a) is triggered when a candidate is given or purchases time from a broadcaster. The political editorial rule, 47 C.F.R. 73.1930(a), which was codified as a regulation in 1967, requires a broadcaster to provide time for a candidate to respond if the broadcaster endorses the candidate's opponent. In Nicholas Zapple, 23 FCC 2d 707 (1970), the Commission held that supporters of a candidate must be provided equal opportunities if supporters of an opposing candidate were given or sold time on a station. Both the political editorial rule and Zapple are based on the public interest standard, but they plainly concern matters closely related to Section 315. All three provisions involve campaigns. If any of the three provisions is triggered, the result is that a broadcaster must provide time to advance the election of a particular candidate. But both the political editorial rule and Zapple are based on the public interest standard, rather than Section 315. Thus, the public interest standard has long been used as a basis for rules affecting political campaigning, which shows that the Commission has not understood Sections 312(a)(7) and 315 to have precluded further agency action.