Now You See It, Now You Don't: Free Air Time for Political Candidates?

By Richard L. Cys and Brian Wong

What started with a roar in the President's State of the Union address has settled down to background noise as the controversy over free air time for political candidates continues. Here is a chronology of recent events in this ongoing saga.

In calling for Congress to pass campaign finance reform in his January 27, 1998 State of the Union address, President Clinton said, "I will . . . formally request that the Federal Communications Commission act to provide free or reduced-cost time for candidates who observe spending limits voluntarily."

The next day FCC Chairman William Kennard proclaimed that the FCC has authority to require free time for candidates, and stated that a rulemaking on the subject likely would be considered by the FCC in March. Two other Commissioners, Susan Ness and Gloria Tristani, who like Kennard are Democrats, supported a rulemaking on free or reduced-cost air time. But the two Republican Commissioners, Michael Powell and Harold Furchtgott-Roth, disagreed, stating that Congress has the sole authority to require free or reduced-cost air time.

On February 5, 1998, President Clinton wrote to Chairman Kennard instructing the FCC "to develop policies, as soon as possible, which ensure that broadcasters provide free and discounted air time for candidates to educate voters." On February 19, 1998, Chairman Kennard issued a statement setting forth his "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" consistent with longstanding Commission and judicial precedent.¹ The statement also concluded that two statutory provisions addressing broadcasters' obligations to political candidates had not created a legislative scheme precluding further agency action under 47 U.S.C. § 309.²

Members of Congress jumped into the fray, with Representative John Dingell (D-Michigan) leading the criticism of the FCC and its asserted lack of authority to act in the matter, and Representative W.J. (Billy) Tauzin (R-Louisiana) introducing a bill to prevent the FCC from requiring free air time. Senators John McCain (R-Arizona) and Conrad Burns (R-Montana) planned to introduce a provision in a supplemental appropriations bill that would ban the FCC from using funds to create and enforce a rule requiring free air time, but the Senate Appropriations Committee decided not to include the provision when President Clinton threatened to veto the bill. Senators McCain and Burns plan to introduce a similar provision in another bill, and Senator S. Trent Lott (R-Mississippi) and Don Nickles (R-Oklahoma) have introduced bills prohibiting a free time requirement.

Finally, at a Senate Appropriations Subcommittee hearing, Senators directly challenged Chairman Kennard's proposals. Appropriations Committee Chairman Ted Stevens (R-Alaska) went so far as to suggest that the FCC should be abolished. While at first he resisted the pressure not to act, Chairman Kennard accepted a compromise. He pledged not to conduct a rulemaking on the issue unless there was a sufficient show of Congressional intent. Instead, he suggested that the Commission would initiate a Notice of Inquiry on the issue but would do no more; this appeared to placate most Congressional opposition.³ The Chairman stated that the Notice of Inquiry could issue as soon as the Commission's April 1998 meeting, but April has come and gone with no such action, and the rancor over the free air time issue has faded considerably.⁴

Underlying this controversy is a dispute over whether requiring broadcasters to provide free or reduced air time to political candidates is constitutional. Government compulsion to broadcast the political speech of candidates raises serious First Amendment concerns. Under standard First Amendment analysis, any such law would be justified only by a showing of a compelling interest. And numerous alternative means are available to enhance the integrity of the political process that are far less speech-intrusive than requiring broadcasters to lose their editorial freedom.

For example, the Supreme Court has observed that "Congress may engage in public financing of election campaigns and may condition acceptance of public funds on an agreement by the candidate to abide by specified expenditure limitations." Buckley v. Valeo.⁵ Congress' apparent reluctance to adopt such an alternative does not make constitutionally permissible the present initiative to make broadcasters shoulder the costs of campaign finance reform. Also, Congress could enact more stringent limits on "soft money" and other contributions to political campaigns. The Supreme Court upheld the constitutionality of limits on political contributions (but not spending limits) in Buckley.⁶

Finally, Red Lion Broadcasting v. FCC,⁷ which has been used to justify intrusive regulation of broadcasters in other settings, has been criticized as no longer valid. Based on spectrum scarcity concerns of 30 years ago, the predicate of Red Lion arguably has vanished in a world where technology has created a plethora of outlets for speech in the public domain.

In Red Lion, the Supreme Court justified content regulation of broadcast licensees based on the scarcity of broadcast frequencies and the "paramount" right of the public "to have the medium function consistently with the ends and purposes of the First Amendment."⁸ Because broadcasting was the only electronic mass medium for the first 50 years of its existence, it is perhaps understandable why the Supreme Court saw spectrum scarcity as equivalent to scarcity of outlets for diverse viewpoints. However, the current profusion and dispersion of speakers are exponentially greater than they were in electronic broadcasting in the late 1960's, when Red Lion was decided. The advent of cable television, satellite transmissions, digital television and radio, video and data transmission via MMDS and LMDS,⁹ the Internet¹⁰ and open video systems have vastly increased the number and availability of electronic mass media outlets.

Accordingly, courts increasingly have declined to use scarcity of available media access to justify content regulation.¹¹ In direct response, the FCC abolished the Fairness Doctrine, which gave rise to the Court's decision in Red Lion.¹²

Recently, in Time Warner Entertainment Co. v. FCC, the D.C. Circuit noted that Red Lion has been subject to "intense criticism:"

Partly this rests on the perception that the "scarcity" rationale never made sense-in either its generic form (the idea that an excess of demand over supply at a price of zero justifies a unique First Amendment regime) or its special form (that broadcast channels are peculiarly rare). And partly the criticism rests on the growing number of available broadcast channels. See Action for Children's Television v. FCC, 58 F.3d 654, 672-677 (D.C. Cir.1995) (Edwards, C.J., dissenting). While Red Lion is not in such poor shape that an intermediate court of appeals could properly announce its death, we can think twice before extending it to another medium.¹³

Moreover, the spectrum itself is no longer so "scarce," thanks to the development of digital transmission and the advancing use of compression techniques. Noting these advances, Commissioner Powell has stated that because the spectrum "may actually be infinite, depending only on technology," the scarcity argument is a "demonstrably faulty premises for broadcast regulation." The Commissioner characterized the reasoning of Red Lion as "almost quaint," stating that the factual assumptions underlying Red Lion "and its progeny, if they were ever true, clearly are not true today." He concluded by questioning whether the reasoning of Red Lion should "determine the First Amendment rights of broadcasters in today's communications environment."¹⁴

Because of the force of these arguments, this year's debate may be more sophisticated than in the past. In his carefully phrased statements, the President tied his proposal for free or reduced-cost air time to a requirement that the eligible candidate voluntarily observe some level of as-yet unspecified spending limits. Given the existence of the current lowest unit charge requirements, compromise proposals may be made to broadcasters. For example, one proposal in the past was that only candidates who voluntarily accept spending limits would be eligible for paying the lowest unit charge for air time. This approach would simply revise the present system and arguably would not impose additional burdens upon broadcasters. u Richard L. Cys is a partner in the firm's Washington, D.C. office. He has been involved with communications and First Amendment issues for over fifteen years and has extensive experience litigating on behalf of media clients in federal and state trial and appellate courts.

1. The Chairman's statement cited as support FCC v. Pottsville Broad. Co., 309 U.S. 134, 138 (1940) (public interest standard of the Act a "supple instrument for the exercise of discretion by the expert body which Congress has charged to carry out its legislative policy"); NBC v. United States, 319 U.S. 190, 219 (1943) (upholding Commission's authority to regulate broadcast networks despite absence of explicit reference to networks in Act, explaining that Act gave Commission "a comprehensive mandate to 'encourage the larger and more effective use of radio in the public interest'"); Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) (upholding Commission regulations implementing fairness doctrine, personal attack rule and political editorializing rule pursuant to public interest standard)

2. 47 U.S.C. § 312(a)(7) (providing for broadcast license revocation for failure to provide reasonable access to or purchase of broadcast time by qualified political candidates) and 47 U.S.C. § 315 (equal opportunities and lowest unit charge rules).

3. But not Commissioner Powell, who has stated he is "critical of those that urge us to simply 'open an inquiry.' They maintain rhetorically, 'what does it hurt.' The real answer is that it costs money and other resources that could be used elsewhere." Michael Powell, Address at American Bar Ass'n 17th Annual Legal Forum on Communications Law (Apr. 5, 1998), The Public Interest Standard: A New Regulator's Search for Enlightenment Apr. 29, 1998 (last modified Feb. 12, 1998).

4. In a related development, PBS announced that it will offer "major" presidential candidates free time during the election in the year 2000. That proposal will pass constitutional muster now that the Supreme Court has upheld the decision of the Arkansas public television agency to prohibit a third party candidate from participating in a 1992 congressional debate. Arkansas Educ. Television Comm'n v. Forbes, __U.S.__, 66 U.S.L.W. 4360, No. 96-779 (May 18, 1998), slip op. at 16.

5. 424 U.S. 1, 57 n.65 (1976).

6. Id. at 35-38. But see Kruse v. City of Cincinnati, _____ F.3d. _____, No. 97-3194, 1998 WL 197666 (6th Cir. Apr. 27, 1998). The Sixth Circuit recently affirmed a district court decision striking down a Cincinnati ordinance that placed a $140,000 limit on city council campaign expenditures because it violates the First Amendment. The Sixth Circuit held that Buckley controlled and that the campaign expenditure limitation was constitutionally insufficient. Id.

7. 395 U.S. 367 (1969).

8. Id. at 389.

9. Multichannel Multipoint Distribution Service and Local Multipoint Distribution Service.

10. The Internet alone offers an immense array of methods of communication and exchange of a virtually infinite variety of information. See ACLU v. Reno, 929 F. Supp. 824, 834-44 (E.D. Pa. 1996) (describing the most common methods of communication and information over the Internet, including the World Wide Web, and noting that these methods "are constantly evolving and are therefore difficult to categorize concisely," id. at 834; "diversity of content on the Internet is possible because the Internet provides an easy and inexpensive way for a speaker to reach a large audience, potentially of millions." id. at 843, aff'd by unanimous Court, 117 S. Ct. 2329 (1997). Free Air Time

11. See, e.g., Turner Broad. System Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994) (impliedly questioning the validity of disparate treatment for broadcasters); Telecommunications Research and Action Ctr. v. FCC, 801 F.2d 501 (D.C. Cir. 1986) ("The basic difficulty in this entire area is that the line drawn between print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference . . . Since scarcity is a universal fact, it hardly explains regulation in one context and not another.").

12. See Syracuse Peace Council v. FCC, 867 F.2d 654, 669 (D.C. Cir. 1989), aff'g In re Syracuse Peace Council, 2 F.C.C.R. 5043 (1987), recon. denied, 3 F.C.C.R. 2035 (1988).

13. Time Warner Entertainment Co. v. FCC, 105 F.3d 723, 724 n.2 (D.C. Cir. 1997) (dissent from denial of reh'g in banc) (citation omitted).

14. Commissioner Michael Powell, Willful Denial and First Amendment Jurisprudence, Address at the Media Institute Luncheon (Apr. 22, 1998), in Communications Daily, Apr. 23, 1998, at 5. Commissioner Powell has stated further: "I do not believe that the growing convergence of technology will allow us to continue to maintain two First Amendment standards, one for broadcasting and one for every other communications medium. Technology has evaporated any meaningful distinctions among distribution media, making it unsustainable for the courts to segregate broadcasting for First Amendment purposes." Commissioner Michael Powell, Address at the Freedom Forum (April 27, 1998).