Reasonable Access, Made More Reasonable: An Argument for Extending the Reasonable Access Rule to Cable Programming.

AuthorGutierrez, Kyle
PositionTerry v. WMAQ-TV

TABLE OF CONTENTS I. INTRODUCTION 222 II. THE TELEVISION LANDSCAPE TODAY 225 III. INTRODUCTION TO THE REASONABLE ACCESS REGIME IN THE BROADCASTING CONTEXT 226 A. Legally Qualified Candidates 226 B. Reasonable Access 227 IV. THE BASES FOR UPHOLDING THE CONSTITUTIONALITY OF THE REASONABLE ACCESS RULE ON BROADCAST 229 V. WHAT LEVEL OF SCRUTINY SHOULD APPLY TO A CABLE REASONABLE ACCESS RULE? 231 VI. APPLYING STRICT SCRUTINY TO A CABLE REASONABLE ACCESS RULE 234 A. Compelling Government Interest-Contribution to Freedom of Expression 234 B. Narrow Tailoring--The Limited Nature of the Reasonable Access Right 238 VII. CONCLUSION 242 I. INTRODUCTION

For many Americans, the first Friday of February can be a particularly long one. The nine-to-five nation anxiously watches the clock as it ticks, seemingly slower than ever, towards quitting time, knowing that what awaits them that weekend is the most glorious day of the American sporting year: Super Bowl Sunday.

Super Bowl XLVI, the culmination of the 2011-2012 National Football League season, gave football fans a much-anticipated rematch between the New England Patriots and the New York Giants. (1) Yet on that first Friday of February 2012, while millions of Americans wondered whether quarterback Tom Brady and the Patriots would get back at the Giants for denying the Patriots a perfect season in Super Bowl XLII, (2) whether quarterback Eli Manning and the Giants would finally put the nail in the coffin of the Patriots' Dynasty, (3) or whether they had ordered enough chicken wings to feed all the guests coming to watch the game, Randall Terry had something very different on his mind.

In early 2011, Terry announced his intention to challenge President Obama in the Democratic primaries before the 2012 presidential election. (4) A prominent figure within the pro-life movement, Terry was well aware that he stood no chance of unseating Obama. (5) In reality, the goal of Terry's candidacy, at least in part, was to gain the right to air graphic anti-abortion advertisements during Super Bowl XLVI. (6) In the days leading up to the Super Bowl, Terry submitted a request to Chicago's WMAQ-TV to purchase ad time for his campaign during the game. (7) Fortunately, WMAQ-TV rejected Terry's request, and, on that Friday before the big game, the FCC denied the complaint Terry filed against the station, saving millions of unsuspecting viewers from being subjected to unsettling material during the ad breaks normally reserved for the likes of the Budweiser Clydesdales. (8)

Naturally, all of this begs the question of how running a 30-second spot during the most coveted advertisement opportunity of the year would even be in the realm of possibilities for someone like Randall Terry. The answer is something called the reasonable access rule. In essence, Section 312(a)(7) of the Communications Act of 1934 (9) ("Communications Act") requires commercial broadcast stations to grant legally qualified candidates for federal office "reasonable access" to their station--meaning that, upon request, commercial broadcasters must make reasonable amounts of air time available for purchase to these candidates. (10)

In reality, Congress did not intend to give the Randall Terrys of the world a platform to push their agenda in such a manner, and by no means is a situation like this the norm. Rather, it was the interests of the American voting public that were the driving force behind the reasonable access rule, as the provision sprang from Congress's desire 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." (11) In theory, the reasonable access rule is a good thing, as it aims to further the democratic process we as Americans hold so dear. However, in practice and in execution, the reasonable access rule would seem to have its flaws.

As the law currently stands, the reasonable access rule applies to broadcast television, as well as direct broadcast satellite (DBS) television. (12) Yet, when it comes to cable programming, the rule's presence is nowhere to be found. In fact, FCC regulations specifically provide that cable operators are under no obligation to permit legally qualified candidates to use their facilities. (13) Thus, while the eyes of the nation look ahead to the 2020 presidential election this November, and to all of the political advertising that will come with it, the reasonable access rule finds itself residing all too comfortably in the past.

What can be done to address this discrepancy and bring the reasonable access rule at least a little bit closer to the present? Well, the solution that this Note puts forth is a simple one: Congress could, within the bounds of its constitutional authority, amend the Communications Act to establish a cable equivalent to the reasonable access rule, and provide the FCC with a statutory directive to create a regulatory scheme that mirrors the one currently in place for broadcasters. It should be noted that the resolution that this Note lays out is statutory, as opposed to purely administrative, in large part because this exertion of regulatory force over cable operators would appear to exceed the FCC's current rulemaking authority under the Communications Act.

Whether Congress should or should not actually amend the Communications Act in this regard is not for this Note to say. Rather, this Note merely intends to demonstrate that if individuals were to advocate for such a change, they would have a valid argument in support of doing so. Specifically, given the current make-up of the television landscape, the failure to amend the Act could arguably amount to an abandonment of the goals Congress sought to achieve with the reasonable access rule in the first place. On top of that, because it would advance the government's compelling interest in contributing to the freedom of expression that the First Amendment guarantees, and because it would be narrowly tailored to achieve this goal by creating an even more limited access right than the one that already exists in the broadcast scheme, Section 312(a)(7)'s cable twin would likely survive the strict scrutiny that a reviewing court would be inclined to apply. Ultimately, in an era in which the differences between broadcast and cable television--at least in the eyes of the average viewer--are virtually invisible, there is certainly a viable argument that requiring broadcasters, but not cable operators, to comply with Section 312(a)(7) not only makes little to no sense at all, but also goes against basic notions of fairness.

Although the reasonable access rule extends to candidate requests for all types, lengths, and classes of programming time, (14) this Note will focus on the rule specifically within the context of political advertising in the form of traditional, short-form commercials, as opposed to program-length commercials, like infomercials. (15) Section I will provide a brief look at the dynamics of today's television landscape, in order to demonstrate how one might argue that the current regulatory regime makes little sense, while Section II will provide an introduction to the political programming scheme as a whole and explain the statutory and regulatory provisions relevant to how the reasonable access rule functions with regards to broadcast. Next, Section III will address CBS v. FCC, (16) the case in which the Supreme Court upheld the constitutionality of the broadcast reasonable access rule, and will examine the logic the Court applied in coming to its decision. From there, Section IV will discuss what level of scrutiny a reviewing court might apply to a potential statute expanding reasonable access requirements to cable operators, looking at standards that have been applied in similar cases and concluding that such a court would likely apply strict scrutiny. Finally, Section V will perform a strict scrutiny analysis on the would-be cable reasonable access rule, concluding that the bases that the CBS Court relied on could similarly serve as the compelling government interest and sufficiently narrow tailoring necessary for such a statute to be upheld.

  1. THE TELEVISION LANDSCAPE TODAY

    It seems that the biggest television-related buzz phrase of the last few years has been "cord cutting," which makes sense considering how much easier the Internet has made it to view your favorite television content when you want it, where you want it, and how you want it. (17) So of course, more and more viewers are, in fact, cutting the cord, electing to rely on over-the-top video providers like Netflix and Hulu, as well as virtual multichannel video providers (vMVPDs) like Sling or YouTube TV. (18) While there are arguments to be made for applying the reasonable access rule to these platforms as well, such a stance is beyond the scope of this Note, especially considering the relative nascence of the streaming industry as compared to cable.

    Despite the rise of cord cutting, there is no reason to believe that the sun has set on cable quite yet, as a whopping 72.9% of American households still have traditional cable service. (19) Compare this to the mere 13.3% of homes that are using over-the-air TV antennas, (20) the traditional form of receiving broadcast television signals, and the discrepancy in the application of the reasonable access rule starts to become a head scratcher. Although local broadcast channels (21) are generally included as part of a cable subscription, there are still scores of for-pay channels that potential voters devote their time to whose commercial breaks are currently unavailable to legally qualified federal candidates by way of the reasonable access rule. (22)

    In addition to cable's sizeable share of the television market, it is also important to note that broadcast and cable television are no longer so distinguishable as to justify an unequal regulation like...

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