The FCC’s Political Broadcasting Regulations

The FCC’s Political Broadcasting Regulations

Order Code RS21963
October 27, 2004
CRS Report for Congress
Received through the CRS Web
The FCC’s Political Broadcasting Regulations
Angie A. Welborn
Legislative Attorney
American Law Division
Summary
This report provides an overview of the Federal Communication Commission’s
political broadcasting regulations, including general public interest obligations; the equal
opportunity (equal time) regulations; and the various interpretations of the Fairness
Doctrine, which is no longer enforced by the Commission. A brief section of frequently
asked questions regarding political broadcasting is also provided. This report will be
updated as events warrant.
Public Interest Obligations of Broadcast Licensees
The Communications Act of 1934, as amended, authorizes the FCC to issue licenses
to broadcast stations only if it finds that such grants will serve the “public convenience,
interest, or necessity.”1 While the Commission is charged with ensuring that all
broadcasters serve the public interest, the public interest standard is not clearly defined
by statute.2 However, the FCC has specified several public interest obligations relating
to programming and consumer accessibility that broadcasters must fulfill.3 A significant
part of a broadcast licensee’s public interest obligation relates to political broadcasts.
While the FCC’s role in overseeing programming is very limited,4 the Commission
expects its broadcast licensees to “be aware of the important problems or issues in the
communities their stations serve and foster public understanding by presenting some
programs and/or announcements about local issues.”5 To further meet their public interest
1 47 U.S.C. 307(a).
2 See Remarks of FCC Commissioner Gloria Tristani, “Campaigns, Broadcasters, and the Public
Interest,” June 19, 2000. [http://ftp.fcc.gov/Speeches/Tristani/2000/spgt008.html].
3 See 65 Fed. Reg. 4211(I)(2)(January 26, 2000).
4 The FCC and Broadcasting, [http://www.fcc.gov/mb/enf/forms/fcc100.html].
5 Id. See also Revision of Programming and Commercialization Policies, Ascertainment
Requirements and Program Log Requirements for Commercial Television Stations, 98 F.C.C.2d
(continued...)
Congressional Research Service ˜ The Library of Congress

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obligations, broadcasters are also required to allow reasonable access to candidates for
federal office,6 provide equal opportunities for use of broadcast facilities to all candidates
for the same public office,7 and during the 45 days preceding a primary election and the
60 days preceding a general election to charge legally qualified candidates for public
office “the lowest charge of the station for the same class and amount of time for the same
period.”8 These requirements are discussed in detail infra.
Equal Opportunity Regulations
Pursuant to section 315 of the Communications Act of 1934, as amended, if a
broadcaster allows “any person who is a legally qualified candidate for any public office
to use a broadcasting station; he shall afford equal opportunities to all other such
candidates for that office in the use of such broadcasting station.”9 Under section 315, the
broadcaster is not permitted to censor the material broadcast by the candidates.10
Certain types of broadcasts are exempt from the equal opportunity requirements.
Under section 315, an appearance by a legally qualified candidate on any (1) bona fide
newscast; (2) bona fide news interview; (3) bona fide news documentary (if the
appearance of the candidate is incidental to the presentation of the subject or subjects
covered by the news documentary); or (4) on-the-spot coverage of bona fide news events
(including but not limited to political conventions and activities incidental thereto), is not
deemed to be “use of a broadcasting station” for equal opportunity purposes.11
Generally, equal opportunity is defined to prohibit discrimination between
candidates.12 The practices, regulations, facilities, or services for or in connection with
service rendered by the broadcaster must be the same for all candidates for a political
office.13 Broadcast licensees are also prohibited from making any contract or other
agreement “which shall have the effect of permitting any legally qualified candidate for
any public office to broadcast to the exclusion of other legally qualified candidates for the
same office.”14 Under this provision, for example, a station could not enter into a contract
with a candidate stipulating that the station would not sell time to another candidate
during the same time period.
5 (...continued)
1076 (1984).
6 47 U.S.C. 312(a)(7).
7 47 U.S.C. 315(a).
8 47 U.S.C. 315(b)(1).
9 47 U.S.C. 315(a). “Use” is defined to include a candidate appearance, including by voice or
picture, that is not exempt under section 315(a). 47 C.F.R. 73.1941(b).
10 47 U.S.C. 315(a).
11 Id.
12 47 C.F.R. 73.1941(e).
13 Id.
14 Id.

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Reasonable Access Requirement. Section 315 does not require broadcasters
to allow candidates to use their facilities; however, “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 Federal elective office on
behalf of his candidacy” could lead to revocation of the station’s license.15 Thus,
broadcasters are required to permit candidates for Congress, and for the offices of
President and Vice President, to purchase reasonable amounts of time. Broadcast stations
are not required to allow candidates for local offices access on a similar basis. However,
if they do offer time to a local candidate, the equal opportunity regulations would apply
and time must be offered to all local candidates for that office.
Charges for Use of Broadcast Station. If a broadcaster makes time available
to a legally qualified candidate for public office, the amount that the station may charge
the candidate may be limited. During the 45 days preceding the date of a primary or
runoff election and during the 60 days preceding the date of a general or special election
charges for air time may not exceed “the lowest unit charge of the station for the same
class and amount of time for the same period.”16 The lowest unit charge of the station is
typically what the station charges its most favored commercial advertisers for the same
classes and amounts of time.17 The broadcaster must disclose and make available to the
candidate any special discount plans or other pricing options that are made available to
commercial advertisers.18
Classes of time are generally defined according to the benefits with which they are
associated. The Commission recognizes the following classes of time: nonpremptible,
preemptible with notice, immediately preemptible and run-of schedule.19 Broadcasters
are allowed to establish and define their own classes of immediately preemptible time “so
long as the differences between such classes are based on one or more demonstrable
benefits associated with each class and are not based solely upon price or the identity of
the advertiser.”20 Classes of preemptible with notice time may also be defined so long as
all classes of such time are clearly defined, fully disclosed and made available to the
candidate.21 Broadcast stations may treat nonpreemptible and fixed position time as
distinct classes of time provided that the differences between such classes are clearly
15 47 U.S.C. 312(a)(7). See also 47 C.F.R. 73.1944. Noncommercial educational broadcast
stations are not subject to the reasonable access requirement.
16 47 U.S.C. 315(b)(1)(A). See also 47 C.F.R. 73.1941(a)(1).
17 47 C.F.R. 73.1941(a)(1)(i).
18 Id.
19 47 C.F.R. 73.1942(a)(1)(ii).
20 47 C.F.R. 73.1942(a)(1)(iii). Demonstrable benefits include, but are not limited to, varying
levels of preemption protection, scheduling flexibility, or associated privileges, such as
guaranteed time-sensitive make goods.
21 47 C.F.R. 73.1942(a)(1)(iv).

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articulated.22 Stations may not establish a separate, “premium-period” class of time sold
only to candidates.23
At any other time, the charges may not exceed the charges made for comparable use
of the station by other users (i.e. commercial advertisers).24 The rates charged to all
candidates for the same office must be uniform and may not be rebated by any means,
direct or indirect.25 Any discount privileges offered by the broadcaster to commercial
advertisers must be disclosed and made available upon equal terms to all candidates for
public office.26
Sponsorship Identification Requirements. Under the Bipartisan Campaign
Reform Act (BCRA), a candidate is not entitled to receive the lowest unit charge rates
discussed supra unless the candidate provides written certification to the broadcast station
that the candidate (or any authorized committee of the candidate) will not make any direct
reference to another candidate for the same office unless such reference meets certain
sponsorship identification requirements.27 In order to qualify for the lowest unit charge
rates, the broadcast (advertisement) must include, for a period of no less than 4 seconds,
“(1) a clearly identifiable photographic or similar image of the candidate; and (2) a clearly
readable printed statement, identifying the candidate and stating that the candidate has
approved the broadcast and that the candidate’s committee has paid for the broadcast.”28
For radio broadcasts, the broadcast must include “a personal audio statement by the
candidate that identifies the candidate, the office the candidate is seeking, and indicates
that the candidate has approved the broadcast.”29
Frequently Asked Questions
Are broadcast stations required to provide “fair and balanced”
reporting on political issues or candidates? Are news programs required
to present opposing viewpoints? There are no current regulations that require
broadcasters to provide fair and balanced reporting. Until 1985, the Fairness Doctrine
required broadcasters to present opposing viewpoints on controversial issues of public
22 47 C.F.R. 73.1942(a)(1)(v).
23 47 C.F.R. 73.1942(a)(1)(vi).
24 47 U.S.C. 315(b)(1)(B). See also 47 C.F.R. 73.1941(a)(2)
25 47 C.F.R. 73.1941(a)(2).
26 Id.
27 47 U.S.C. 315(b)(2)(A).
28 47 U.S.C. 315(b)(2)(C). BCRA places additional sponsorship identification requirements on
television advertisements. Under BCRA, television advertisements must include an unobscured,
full-screen view of the candidate making the statement; or the candidate making the approval in
voice-over accompanied by a clearly identifiable photographic or similar image of the candidate.
Pub. L. 107-155, Sec. 311, codified at 2 U.S.C. 441d(d)(1)(B)(i).
29 47 U.S.C. 315(b)(2)(D).

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importance.30 However, in 1985, the FCC determined that the Fairness Doctrine was no
longer justified due to the “multiplicity of voices in the marketplace.”31 The Commission
based its determination on findings that the doctrine restricted broadcaster’s journalistic
freedom, and “in operation, actually inhibit[ed] the presentation of controversial issues
of public importance to the detriment of the public and in degradation of the editorial
prerogative of broadcast journalists.”32 While not as precise as the equal time rules, which
apply to the use of a broadcast station by a candidate, the Fairness Doctrine required the
broadcaster “to make reasonable judgments in good faith on the facts of each situation –
as to whether a controversial issue of public importance is involved, as to what viewpoints
have been or should be presented, as to the format and spokesmen to present the
viewpoints, and all the other facets of such programming.”33
Are broadcast stations required to air political debates? Are they paid
when they do? Broadcast stations are not required to air political debates and are not
paid for doing so. Political debates are typically aired at the request of the Commission
on Presidential Debates, and are apparently exempt from the equal opportunity regulations
discussed supra.34 Some broadcasters choose not to air the debates because of contractual
obligations to air other programs, such as sporting events.
Are there regulations prohibiting a broadcast journalist or on-air talent
from taking a certain position on a political issue or candidate? What about
the station manager or station owner? There are no regulations requiring
journalists to be nonpartisan or unbiased. Under the Fairness Doctrine, which is no longer
enforced by the FCC, a broadcaster would have been required to present opposing
viewpoints, but there is no such requirement under current law. Additionally, there are
no FCC regulations that would prohibit the station manager or station owner from doing
so.35
30 In re Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public
Importance, 40 F.C.C. 598 (1964).
31 General Fairness Doctrine Obligations of Broadcast Licensees, 50 Fed. Reg. 35418 (1985).
The repeal of the Fairness Doctrine also led to the repeal of its corollary, the Personal Attack
Rule. Radio-Television Directors Association of America v. FCC, 229 F.3d 269 (D.C. Cir. 2000).
Additionally, the Zapple Doctrine, an additional interpretation of the Fairness Doctrine that
required broadcasters to provide supporters of a candidate with an opportunity to respond when
the broadcaster has allowed his or her opponent’s supporters to use or purchase time on the
station, is presumably no longer enforced by the Commission. See In re Request by Nicholas
Zapple, Communications Counsel, Committee on Commerce for Interpretive Ruling Concerning
Section 315 Fairness Doctrine, 23 F.C.C. 2d 707 (1970). For a detailed discussion of the
evolution and repeal of the fairness doctrine, see Stuart N. Brotman, Communications Law and
Practice, 2003 ed., §§ 2.04 et seq.
32 50 Fed. Reg. 35418 (1985).
33 Supra n. 30. The Fairness Doctrine did not require that equal time be given for varying
viewpoints, nor did it require balance in individual programs.
34 See In re Complaint of Ross Perot Against ABC, CBS, NBC, and Fox Broadcasting Co., 11
F.C.C. Rcd. 13109 (1996).
35 While there are no FCC regulations that relate to this situation, certain campaign finance laws
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Are broadcast stations required to air a certain amount of public
interest or civic affairs programming? The FCC expects broadcasters to “be aware
of the important problems or issues in the communities their stations serve and foster
public understanding by presenting some programs and/or announcements about local
issues.”36 However, there is no requirement that broadcast stations air a specific amount
of such programming.
35 (...continued)
regarding contributions by corporations may be applicable. See 2 U.S.C. 441b.
36 See Revision of Programming and Commercialization Policies, Ascertainment Requirements
and Program Log Requirements for Commercial Television Stations, 98 F.C.C.2d 1076 (1984).