Free
Broadcast Time for Political CandidatesFree
Broadcast Time for Political Candidates
Summary
of MAP's Comments
Back to Civic
Discourse Main Page
|
____________________________________________ In the Matter of Issues Relating to |
) ) ) ) ) ) ) |
Media Access Project ("MAP") respectfully submits these comments on the Commission's admin- istration of the equal opportunities provisions of Section 315 of the Communications Act.
MAP appears before the Commission to advance the "paramount" First Amendment right of the public to receive access to information from diverse perspectives. There is no more important task the Commission faces than to ensure that the nation's broadcasters contribute to the development of a well-informed electorate which exercises its right of self-governance with as much knowledge as possible about the candidates appearing on the ballot. Section 315 is intended to implement this goal by assuring fair and full coverage of candidates and allowing direct communication between candidates and their fellow citizens. The Commission has not acquitted itself well in its interpretation of Section 315 over the last 20 years; this proceeding offers an opportunity to improve this essential tool of civic discourse.
As to the most pressing issue now before the Commission, MAP strongly supports the principle of affording candidates free, prime time to speak directly to the voters. This is something which the Commission has authority to, and should, require of every broadcaster as a condition of their exclusive license to use the public's airwaves. This requirement should extend to all federal offices as well as important state and local offices.
The last point bears particular emphasis: all too often in recent years, the Commission has made policy decisions about political broadcasting matters in the context of national coverage of Presidential campaigns. The Commission must not overlook the impact of its decisions at the state and local level. While most decisionmakers, communications lawyers, and network news executives reside "within the Beltway," most candidates and most elections are far from Was ington, DC. The worst abuses of Section 315 take place in small and medium-sized markets, where the wholly inadequate "safeguards" relied upon under current Commission policy cannot be effectively enforced.
I. THE COMMISSION SHOULD DECLARE THE FREE TV FOR STRAIGHT TALK COALITION PLAN DOES NOT TRIGGER THE EQUAL OPPORTUNITIES PROVISIONS OF SECTION 315.
Programming that employs every element of The Free TV for Straight Talk Coalition ("Coalition") format qualifies as exempt from the "equal opportunities" provision of Section 315(a) of the Communications Act.1
The Coalition proposal includes adequate safeguards to insure that the "news event" to be created would in fact be one which is bona fide, as is required under Section 315(a)(4). Of particular import is the requirement that networks rely upon predetermined criteria for determining which candidates would be afforded time, such as those established by the Commission on Presidential debates. Delegation of selection authority to an outside body commonly accepted as beyond reproach would ensure that participants would be selected on the basis of their news-worthiness. It is clear that such an entity would give adequate attention to serious insurgent, "independent" or "third-party" candidates. Candidates such as T.R. Roosevelt, Henry Wallace, Strom Thurmond, Eugene McCarthy, George Wallace and John Anderson have greatly expanded the political gene pool by bringing important issues and ideas to the forefront when mainstream leadership has lost touch with significant segments of the public. The newsworthiness of such candidacies turns not on the likelihood of their election, but upon whether they can have a significant influence on the course of the election. Excessively narrow selection criteria would undermine this important element of the American political tradition.
We do not agree with MAP Board Member Henry Geller and others that the same result would necessarily be reached absent the King decision, upon which he places heavy reliance. King Broadcasting Co., 6 FCCRcd 4998 (1991). Mr. Geller appears to open the door to permit exemptions under circumstances which may not have the same safeguards built into the Coalition proposal. By contrast, the King case was very narrowly circumscribed to the facts presented. The FCC cautioned that the presence of "structural safeguards for objective news coverage...[was] critical to our assessment of the bona fides of a news event under Section 315(a)(4)...." It warned that future proposals, such as the Coalition's plan, would be examined "on a case-by-case basis." Id. at 5001 n. 4.
MAP emphatically shares the objective of expanding the "Free TV" concept to the state and local level; such efforts will rely upon the Presidential experience for legal and political precedent. But that is also where the greatest danger lies. MAP's unwillingness to endorse open-ended expansion of existing case law goes to the heart of our more fundamental concerns that any free time proposal be carefully crafted: time after time over the last 15 years, the FCC has written overly broad decisions granting exemptions which create the opportunity for a handful of irresponsible broadcasters, typically at the local level, to abuse their public trust.
The vast majority of American broadcasters show great rectitude in providing fair, if inadequate, overall coverage of candidates. Our experience is that abuses are uncommon, but that they do occur, especially in smaller and medium-sized communities. It would be a great misfortune if there were not adequate safeguards to ensure against rare, but dangerous, instances of abuse of the public trust. Establishing a truly self-executing selection process is essential here; not every outside body is likely to be as reliable as the membership of the Commission for Presidential Debates, and some groups established or selected in polarized communities may misuse this privilege to advance private political or economic interests.
The potential for abuse is greatly exacerbated by the newly-enacted Telecommunications Act of 1996, which allows vastly increased local media ownership. Because a single individual can now control programming on six or more broadcast outlets in a single market, a meretricious operator could greatly undermine the electoral process.
In limiting any ruling to the facts of the proposal the Coalition has so carefully crafted, an exemption for the Coalition plan would be an important plus for the democratic process.
Fox Broadcasting Company ("Fox") seeks a declaratory ruling that its proposed Presidential candidate coverage is exempt from the "equal opportunities" requirements of Section 315 of the Communications Act. Fox proposes two distinct types of broadcasts: a 10-part series of one-minute statements by candidates to be aired during the 30 days prior to the election, and a single one-hour program of longer statements to be aired the night before the election. Fox argues that both elements qualify for exemption as on-the-spot coverage of bona fide news events and as bona fide news interviews. The Commission should expressly rule that neither element of the Fox proposal qualifies as a bona fide news interview. Based on additional representations Fox has made in a letter dated June 3, 1996, MAP believes that the two programs would qualify as exempt on-the-spot coverage of news events.
As a matter of policy, the Fox proposal is vastly inferior to that of the Coalition. By allowing the candidates full freedom to determine the content of their statements, providing for statements of two minutes or more in length, running the spots every night at the same time, and calling for simultaneous network broadcast, the Coalition proposal creates the opportunity for a dynamic national dialogue and debate on the public airwaves. The Fox proposal does not have the same characteristics. It would employ shorter statements that are recorded in advance, are intended to be responsive to pre-selected questions, and would be shown on a periodic basis on the Fox network alone. This is more akin to non-exempt candidate advertising formats than to a debate model, and is unlikely to stimulate the same kind of vigorous discussion that would be generated by the Coalition approach.
The Fox proposal also poses a much closer question as a matter of law. MAP's view is that the Fox proposal qualifies as exempt if and only if each element of the proposal is implemented exactly as described by Fox.
MAP believes that the proposal as originally presented was insufficiently clear as to Fox's intent not to interfere with candidates' presentations, even if they were not deemed responsive to the questions posed by participating journalists. In a letter to MAP dated June 3, 1996, Fox clarified its plan to state that "each of the respective Candidate's statements will be broadcast exactly as the Candidate chooses....Fox will not edit, delete or otherwise exercise any editorial function with respect to the content of the candidates' responses." In MAP's view, the Fox clarification that it will run candidates' statements without regard to their content is sufficient to justify labelling the programming as news events.
MAP believes that, with recent modifications, the Commission properly can and should rule that both elements of the Fox proposal are exempt under Sec. 315(a)(4) as on-the-spot coverage of a bona fide news event. The declaratory ruling should specifically limit the exemption to the particular facts of the Fox proposal and make clear that the Commission will continue to evaluate future such proposals on a case-by-case basis, as specified in King. Id. at 5001 n. 4.
While MAP has reservations about prior interpretations of Sec. 315(a)(4), the Fox proposal satisfies those established criteria for defining on-the-spot coverage of news events. Both the short and long-form broadcasts will allow the candidates to set forth "their essential campaign message to the American people," without broadcaster control. Id. at 4999. Perhaps the best test of this is the fact that if they had been mounted by any independent outside organization other than Fox, such appearances would likely be intrinsically newsworthy and thus would be "news events" within the FCC's established interpretation of Sec. 315(a)(4).
The Commission's ruling should clearly state that, absent safeguards present here, similar schemes could easily be subject to manipulation or abuse, especially in state or local contests. However, the Fox plan contains adequate structural safeguards of the type that the Commission has found necessary to ensure against broadcaster favoritism. Id. at 5000. In both the long-form and short-form broadcasts, the candidate statements will appear back-to-back, the order of the statements will be determined by coin toss, and the order of subsequent short-form statements will be reversed (or rotated if there are more than two candidates). Fox will not choose which candidates are to appear but will delegate that decision to a truly independent body which will use pre-established, effective criteria for that purpose.2 Nor will Fox control the content of the questions or responses. These safeguards should assure the type of balanced program format that the Commission found to be critical to its decision in King. Id. at fn. 4.
Fox's relinquishment of all control over the content of the broadcast is critical to the exemption of its proposed coverage as a news event. Fox specifies that it will not develop or select the questions to be asked of the candidates, will not control the content of the candidates statements, and agrees to air every candidate statement, even if the statement is not responsive to the question posed. Such lack of control over content is essential for a program staged by a broadcaster to qualify as a news "event." In both cases that Fox cites for its news event exemption claim, the broadcaster had no content control. See Henry Geller, 95 FCC2d 1236 (1983); King Broadcasting Company, Id. In Geller, the Commission exempted a Presidential debate format which included broadcaster sponsorship, but the debate was not subject to broadcaster control as to content. In King, the Commission exempted back-to-back statements by candidates under broadcaster sponsorship, which were pre-recorded but not subject to the broadcaster's review or control. The broadcaster could provide the time and the format, but once started, the debate had to proceed without broadcaster control.
Neither element of the Fox proposal qualifies for exemption as a bona fide interview within the meaning of Section 315(a)(2). Each fails to meet two of the essential qualifying tests established by the Commission.
Neither element meets the requirement that the broadcast be "regularly scheduled." U.S. News and World Report, L.P., 2 FCCRcd 7101 (1987). Although the 10 short-form broadcasts Fox envisions might arguably be construed to fit within the Commission's broad determinations as to what constitutes "regularly scheduled," the single one-hour broadcast the night before the election clearly fails that test. To be considered "regularly scheduled," a program must constitute some sort of regular series. A one-time broadcast cannot conceivably fit this test.
Fox's suggestion that it may again run similar programming four years hence is hardly sufficient to remedy this failure. Fox's reliance on U.S. News and World Report, L.P., Id., is misplaced. That exemption was based on a representation that the program would be repeated four years hence. It is of no small note that the licensee did not keep that promise four years later. MAP assumes that the Commission would, if asked, revoke that exception, for failure to meet its terms.
Nor does either element of the Fox proposal meet the requirement that a news interview be under the "control" of the broadcaster. Id. at 7102. Because Fox will not select the candidates, control the questions they are asked, control their statements, or edit the material, the broadcasts will have no semblance of a journalistic endeavor. In particular, the candidates will not be required to limit their responses to the questions posed.
The contradiction is apparent in Fox's request. Fox states at one point that its proposal qualifies for a news interview exemption because it will make decisions regarding content, but states in other places that, as a structural safeguard, it will not control the content. Fox cannot have it both ways. It is the assurance that Fox will not control the content that enables its proposals to qualify for exemption as news events; that promise renders it ineligible to claim exemption under the news interview provisions.
The Fox proposal simply does not meet existing news interview criteria. Certainly the criteria need not, and should not, be broadened to include this type of coverage. To do so would render the news interview category meaningless and set a precedent that would invite abuse.
MAP emphasizes that any ruling on the Fox exemption must be limited to the specific facts of the Fox plan. The Commission must make clear that it will continue "to carefully scrutinize any future requests for exemption," at the local, state, or national level, on a case-by-case basis, and vigorously enforce the requirement of structural safeguards such as those included in King and in the Fox proposal. King, 6 FCCRcd at 5001 n. 4.
Moreover, the Commission should reiterate its longstanding practice of administering time-bound disputes arising under Section 315 on an expedited basis. See, e.g., Linda Jenness, Socialist Workers Party, 26 FCC2d 485 (1970) (ruling issued within eight days requiring equal time for candidate who appeared in five-candidate news interview that deviated substantially from agreed-upon format and failed to provide equal time for candidate to speak.) Candidates should be apprised of their right to file complaints based on a broadcaster's failure to comply with the terms on which it has relied in seeking an exemption. If, for example, a broadcaster attempts to compromise the independence of a committee delegated the authority to select candidates to be included in a news event, opposing candidates should be afforded equal opportunities as required under Section 315.
The Commission should abandon its practice of granting every request to extend the exemptions contained within Section 315(a). The law has already been stretched far beyond what the plain language permits, and what Congress intended in amending Section 315 in 1959.
A far better - and more legitimate - way to fulfill Congressional intent would be to change the Commission's manner of interpreting the statutory term "legally qualified candidate."
A. The Commission's Expansion of Section 315 Exemptions Is Politically Understandable, But Intellectually Bankrupt.
The FCC's motive is transparently obvious, and never seriously denied: it has willingly acceded to the broadcast industry's desire not to afford valuable air time to candidates the industry perceives as unworthy. This is extremely unfortunate; serious candidacies from outside the mainstream typically arise in times of national or local political discord.
When insurgent candidates like Eugene McCarthy, or independent candidates like John Anderson, seek public office, failure to afford them equal opportunities could prove to be a far greater threat to civil order than allowing them access to present dissident viewpoints. It is sound policy - recognized by Congress - that it is better to bring their supporters into the democratic process than to send them to the streets.
That is not the course the Commission has followed. The Commission's decisions are beyond parody: it has ruled that most of the major "trash talk" shows, including "Sally Jessy Raphael," "Rolanda" and "Jerry Springer" are bona fide news interviews based on their putatively legitimate journalistic intent.
What is newsworthy about the interview of the grandmother who is a stripper? While one might argue that at least the stripper is something of a public figure, not even that much can be said of the embarrassed granddaughter. No one could be so credulous as to believe that the guests on these shows are chosen exclusively for their newsworthiness and not their entertainment value, that the production staff of these programs adheres to journalistic standards, or that they would not seek to advance a particular candidacy if it made for a high rated program or generated more revenues. Nor is anyone besides the FCC likely to characterize the introductory video clips at the start of each segment of "The McLaughlin Group" as a free-standing "newscast."
Over the last 20 years, the FCC has broadened and stretched the exemptions to Section 315 to the point that it is effectively impossible for candidates to assert equal opportunity rights whenever other candidates make joint broadcast appearances. The question here is not that the Commission lacks authority to do this; the Courts have definitively ruled that it can. See, e.g., Chisholm v. FCC, 548 F.2d 349, 363 (D.C. Cir. 1976); League of Women Voters v. FCC, 731 F.2d 995 (D.C. Cir. 1984).3 Rather, the question is whether the Commission should abuse that broad authority.
It is quite understandable why members of the FCC might be amenable to an outcome favoring established parties and candidates. After all, appointees to the Commission necessarily come from the mainstream of the political process. But this is not a reason to twist and contort plain language and Congressional intent. The FCC has turned the seemingly clear language of the four exemptions to Section 315 into little more than a lawyers' joke.
B. The Proposal to Allow Broadcasters to Define What Is "News" Is Abject Surrender, Not Law Enforcement.
The latest Commission proposal to administer Section 315 is little more than abject surrender to broadcaster pressure. To allow broadcasters complete authority to decide what is "news" under Section 315 is to end any meaning to the equal opportunity right. As prior practice has demonstrated, broadcasters have little compunction in placing any label necessary to avoid granting an equal opportunity claim. The same licensees which have argued that they cannot tell what is an "educational" program for children should not be allowed carte blanche to define something so important as what qualifies for "equal time." They have financial, political and emotional reasons to abuse this authority.
There is a better way. The Commission can and should acknowledge that the proper task delegated it by Congress is to draw a line between serious candidates and kooks, and define the term "legally qualified candidate" to include the former and not the latter. This may at first seem to be a difficult task, but it is no more treacherous than deciding what constitutes the same or similar time under Section 315, see, e.g., RKO General, 25 FCC2d 117 (1970); E.A. Stephens, 11 FCC 61 (1945), or determining what is a bona fide news event, see, e.g., Lawrence W. Miller, 7 FCCRcd 1717 (1992); National Unity Campaign for John Anderson, 88 FCC2d 467 (1980), or establishing what constitutes an "incidental" appearance in a documentary. See, e.g., Richard B. Kay, 26 FCC2d 235 (1970).
The answer proposed here is to abandon the Commission's mechanistic, but unrealistic, definition of the term "legally qualified candidate." The traditional interpretation - that any candidate meeting a local jurisdiction's criteria to be placed on the ballot - is extremely broad, and varies from location to location.
It is much easier to decide who is a genuine candidate than it is to declare which interview program is a serious "news interview" program. The wide latitude the Courts have afforded to the Commission's outrageous readings of the Section 315 exemptions gives ample room to establish a different and more functional definition of the term "legally qualified candidate." The same case law which has allowed ever more expansive constructions of the exemptions also supports a broad reading of this term as well. Kay v. FCC, 443 F.2d 638, 645 (D.C. Cir. 1970).4
There would not be great difficulty establishing criteria to be used to redefine the term "legally qualified candidate." The Commission long ago made clear that it would accept reasonable administrative decisions made by broadcasters in assessing Section 315 matters. Some such standards already exist in the time-tested determinations of the League of Women Voters and the Commission on Presidential Campaigns, although modifications are surely necessary to address state and local races. Legally qualified status could also be decided on the basis of several of the following tests:
Given the extremely deferential approach of the Courts, legislation would not be necessary to make the change proposed here.
The Commission has embarked on a very constructive effort to improve the democratic process. MAP hopes these comments will assist the endeavor.
|
Law Student Intern: Katherine J. Barton June 3, 1996 |
Respectfully Submitted, Andrew Jay Schwartzman Gigi B. Sohn Joseph S. Paykel MEDIA ACCESS PROJECT |
2. Although the Fox proposal is somewhat ambiguous on this point, MAP interprets it as promising to accept whatever decision is made by the Commission on Presidential Debates. The Commission should clearly condition its ruling on that basis.
3. In the only instance in which the Commission could not bring itself to go along with an especially outrageous request, the Court of Appeals reversed the Commission, relying upon the excessively broad interpretive language the Commission had employed in prior decisions. King Broadcasting Co. v. FCC, 860 F.2d 465 (D.C. Cir. 1988).
4. In Kay, the D.C. Circuit affirmed the Commission's interpretation of the term "legally qualified candidate." Significantly, this decision was cited with approval in the later Chisholm case, 548 F.2d at 363, which opened up Section 315(a) exemptions to increasingly sweeping construction.