The FCC and section 312(a) (7) of the Communications Act of 1934: the development of the "unreasonable access" clause.

• Author: Gutwein, Philip J., II

1. INTRODUCTION

   On September 7, 1999, the Federal Communications Commission ("FCC" or "Commission") issued a Memorandum Opinion and Order in which it ruled "that a broadcast station should not be allowed to refuse a request for political advertising time solely on the ground that the station does not sell or program such lengths of time."(1) This ruling came in response to a petition for reconsideration of the FCC's October 3, 1994 Declaratory Ruling(2) filed by the Media Access Project ("MAP") and People for the American Way ("PAW").(3) The 1994 Declaratory Ruling--consistent with most FCC precedent(4)--held "that broadcast stations need not sell or furnish legally qualified candidates for federal office time for political advertising in increments other than those which the station either sold commercial advertisers or programmed during the one-year period preceding the election."(5) Commissioner Harold W. Furchtgott-Roth dissented on the ground that the FCC should have upheld its policy of requiring "regulatory parity as between candidates and advertisers with respect to time."(6) Whether the FCC had a consistent policy with regard to access parity remains uncertain, but Commissioner Furchtgott-Roth advocated what has been the most sensible approach employed by the FCC to date.

   This Note argues that the FCC should adopt Commissioner Furchtgott-Roth's position on reasonable access. In making this argument, Part II discusses the source of the reasonable access requirement. Part III tracks the FCC's attempts at clarifying its reasonable access policy, including discussions of the 1978 Policy Statement, departures from the 1978 Policy Statement, Supreme Court review of the FCC's reasonable access policy, the 1991 Report and Order, the 1994 Declaratory Ruling, and the PAW/MAP Order. Part IV discusses the fault of the PAW/MAP Order, and the merit of Commissioner Furchtgott-Roth's dissent.

2. THE SOURCE OF THE REASONABLE ACCESS REQUIREMENT

   The controversy regarding the right of access to broadcast media for advertising by candidates for federal political office has existed for a long time. Prior to 1971, broadcast media licensees were subject to a series of policies developed by the FCC known as the "public interest standard".(7) Under this standard, "some time had to be given to political issues, but an individual candidate could claim no personal right of access unless his opponent used the station and no distinction was drawn between federal, state, and local elections."(8)

   Thus, under the pre-1971 public interest standard, individual political candidates did not have an affirmative, enforceable right to advertise using broadcast media.(9) On the contrary, broadcast "stations were required to make reasonable, good faith judgments about the importance and interest of particular races,"(10) and allocate accordingly the time devoted to political affairs between individual candidate advertisements and general coverage.(11) As a result, if a broadcast station dedicated ample coverage to political affairs, it did not have to worry a great deal about individual requests for airtime by political candidates, especially if doing so burdened the station's programming schedule.(12)

   The FCC was forced to abandon this part of the public interest standard(13) upon passage of the Federal Election Campaign Act of 1971 ("FECA").(14) The FECA, which consists of four titles,(15) was designed, in part, "to give candidates for public office greater access to the media so that they may better explain their stand on the issues and thereby more fully and completely inform the voters."(16) Title I of the FECA contained the statutory provision from which the current controversy surrounding the right of access to broadcast media by federal political candidates emanates--the provision codified at 47 U.S.C. [sections] 312(a)(7).(17)

   Section 312(a)(7) is known as the "reasonable access" clause. It provides the FCC with the authority to revoke a station license or construction permit "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 [f]ederal elective office on behalf of his candidacy."(18)

   This provision has been controversial from its inception because the terms "reasonable access" and "reasonable amounts of time" are inherently ambiguous. Moreover, the FCC assumed the responsibility of applying and enforcing [sections] 312(a)(7) without meaningful guidance from Congress.(19) In fact, Congress indicated little more than its intent for [sections] 312(a)(7) to provide candidates with greater access to the media for the purpose of informing the voting public.(20) As a result, federal political candidates and broadcast stations, upon passage of [sections] 312(a)(7), attempted to influence the FCC's interpretation of "reasonable access" and "reasonable amounts of time."(21) Federal political candidates wanted the FCC to adopt a working definition of the terms that would provide them with strong, enforceable fights of access to broadcast media during elections.(22) Broadcast stations, conversely, sought a definition of the terms that would maintain the status quo by preserving the pre-1971 public interest standard.

   Not surprisingly, the FCC adopted something of a middle ground. It dismissed "the contention that Section 312(a)(7) was meant merely as a codification of the Commission's already existing policy concerning political broadcasts."(23) Likewise, it dismissed the federal political candidates' suggestion that the terms be read to impose rigid, formalized rules, under which broadcasters would be forced to provide special rights of access to candidates independent of their programming needs and advertising policies for commercial advertisers.(24) Instead, the Commission read [sections] 312(a)(7) to "impose[] an additional obligation on the general mandate to operate in the public interest."(25) This position, the FCC asserted, was consistent with Congress's express desire that "licensees afford candidates for Federal office a special fight of access to a broadcasting station which no other group enjoyed."(26) The FCC tempered its position, however, by noting that [sections] 312(a)(7) was not "intended to require stations to accept all requests for political time during election campaigns to the exclusion of all or most other types of programming or advertising."(27) The Commission stated:

   [A]lthough we recognize a right of access to prime time programming, we decline[] to recognize any right, by a Federal candidate, to program time of any particular or minimum duration. Nor d[o] we recognize any right, by a Federal candidate, to have his programming or announcement given any particular placement-in terms of a specific date and/or specific time-during prime time, or during any other portion of the broadcast day.(28) In deciding when federal political candidates should receive airtime, the FCC deferred "to the reasonable, good faith judgment of licensees as to what constitutes `reasonable access' under all the circumstances present in a particular case."(29) The Commission's position gave federal political candidates a right to purchase(30) time for political advertisements in increments either sold to commercial advertisers or programmed during the one-year period preceding an election.(31) What remained unclear was the extent to which the FCC required broadcast stations to accommodate the particular desires of candidates for airtime when doing so would disrupt a station's programming schedule--that is, how inconvenient did a candidate's request for airtime have to be to warrant refusal by the broadcast station?

   1. The 1978 Policy Statement

      The FCC attempted to clarify its interpretation of [sections] 312(a)(7) in its 1978 Policy Statement.(32) This Report and Order responded directly to the concerns of broadcast stations about the difficulties associated with the promulgation of rigid rules given the "diversity of circumstances with which each licensee is faced during an election period."(33) The prospect of mandatory compliance with rigid rules frightened many broadcast stations not only because of the potential complications in programming, but also because of the severe penalty for noncompliance--revocation of their licenses.(34)

      The FCC's 1978 Policy Statement, however, tried to make it easy for broadcast stations to avoid losing their licenses. In fact, the Commission believed that its policy would, in most cases, leave undisturbed the practices of stations affording federal candidates access to broadcast times.(35) The Commission stated that it would utilize [sections] 312(a)(7) only to ensure that federal political candidates would "be at least on par with commercial advertisers."(36) The concept of access parity between commercial and political advertisers became a principle of [sections] 312(a)(7) interpretation and underscored one of the Commission's ultimate policies of the 1978 Policy Statement--that it was "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."(37) In mm, the 1978 Policy Statement highlighted the Commission's belief "that the best method for achieving a balance between the desires of candidates for airtime and the commitments of licensees to the broadcast of other types of programming is to rely on the reasonable, good faith discretion of individual licensees."(38)

      The FCC provided guidance to broadcast stations on how best to exercise their discretion. It suggested that they consider such factors as "the unavailability of particular classes of time[,] a multiplicity of candidates[, and] the specific desires of candidates."(39) It is important to note, however, that the FCC forbade...