Academic journal article Federal Communications Law Journal

The FCC and Section 312(a)(7) of the Communications Act of 1934: The Development of the "Unreasonable Access" Clause

Academic journal article Federal Communications Law Journal

The FCC and Section 312(a)(7) of the Communications Act of 1934: The Development of the "Unreasonable Access" Clause

Article excerpt

I. 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.

II. 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. …

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