I. Political Discourse

The Advisory Committee’s recommendations on political discourse are well-intentioned, but insufficient.

We recommend that, unless Congress enacts comprehensive campaign finance reform legislation by the end of 1999:

• The FCC should require broadcasters to provide “free time” to national and local candidates for candidate-centered discourse;
• The FCC should consider whether a portion of this “free time” should be administered by political parties;
• In implementing this obligation, the FCC should consider whether it should specify an administrative scheme such as the “time bank” or “voucher” models presented to the Advisory Committee by the Alliance for Better Campaigns and the Center for Governmental Studies; and
• The FCC should give broadcasters broad discretion over the format of candidate appearances, except that qualifying “free time” segments must be of no less than 1 minute in duration, and the candidate should appear for no less than one-half of the duration of the segment.

The Advisory Committee recommendations on political discourse include, among other things: (1) a challenge to broadcasters to support “free time” proposals that are part of comprehensive campaign finance reform legislation and (2) broadcasters’ voluntarily providing 5 minutes per night of free candidate centered discourse. For the reasons discussed below, we believe that these recommendations will likely fall short of achieving the very worthy goals of ensuring that citizens have broad access to candidate speech that results in informed decisions at the ballot box and reducing the influence of money on the political process.

First, despite what appears to be majority support in both Houses, Congress failed to pass comprehensive campaign finance reform last year, and is unlikely to do so in the future.(1) Despite this fact, it is possible that campaign finance reform legislation will be reconsidered. However, if Congress does not pass comprehensive campaign finance reform, including a “free time” component, by the end of 1999, the FCC should require broadcasters to provide a modest amount of free candidate-centered discourse. This approach allows Congress to have the first opportunity to act to broaden political speech. If Congress does not act, we believe that it is necessary for the FCC to step in.

Second, we believe that exclusive reliance on voluntary standards in this area will be ineffective. Many broadcasters provide candidate-centered discourse today and the new mandate will not affect them. Rather, this obligation is directed at the substantial number of broadcasters that have chosen not to do so. There is no reason to believe that voluntary standards will impel those broadcasters that choose not to carry any such programming to do so now. It is this reasoning that led the Advisory Committee to recommend mandatory minimum requirements for local public affairs programming and public service announcements. In light of the expanded capacity and increased opportunities that digital transmission will provide for broadcasters, the burden on broadcasters of providing a minimal amount of free candidate-centered discourse would be small. Among other things, the FCC has ruled that, under 47 USC §315, providing “free time” does not reduce a broadcaster’s lowest unit rate to zero.

Although we recommend that the FCC should require broadcasters to provide “free time,” the obligation should not be unlimited. The Advisory Committee has been presented with several “time bank” and “voucher” models that would result in broadcasters providing very modest amounts of “free time” for political candidates 60 days before a general election. It has also considered other models that would require broadcasters to provide some specific amount of time (for example, 5 minutes a night for the 60 days before an election). Although we do not endorse any particular model, we believe that the FCC should consider these well-conceived proposals, along with such other new proposals as may emerge in fashioning the “free time” requirement. None of these models will unreasonably burden broadcasters, and all provide them with flexibility in the choice of the format.

The goal of ensuring an informed electorate will not be achieved, however, if the benefits of “free time” are used only for 30 second attack ads and 7-second sound bites that are segregated onto one of multiple channels. If the FCC provides a benefit of “free time,” it may, and should, also require that this time be of a specified minimum length, and that candidates actually appear for a specified amount of time. It should also prohibit broadcasters from segregating the candidate-centered programming onto one of multiple program channels. Such segregation would violate Federal candidates’ rights to “reasonable access” to the broadcast airwaves,(2) and might also violate candidates’ rights to equal opportunities.(3)

We agree with the principle underlying the Advisory Committee’s recommendation on mandatory minimum public interest requirements—broadcasters should be required to provide some minimum amount of public interest programming in return for the free use of the public airwaves. We write separately to address the absence of specific minima in the Report. At the very least, we believe it is critical to specify how many hours per week of each type of public interest programming should be carried, and to specify the time period in which it should be carried (to ensure that such programming is not relegated to hours when few viewers are watching).

In addition, to ensure that all broadcasters serve the public interest, the FCC should adopt minimum public interest requirements that are stronger and more specifically targeted to address the absence of local news and locally originated and locally oriented educational and public affairs programming over many broadcast stations.

We recommend, therefore, that the FCC adopt a processing guideline calling for 3 hours per week of local news and 3 hours per week of locally originated or locally oriented educational and public affairs programming outside of local news. A broadcaster that airs this minimum amount would receive automatic approval of that portion of its license renewal application that addresses local programming. Local programming, outside of local news, should be dedicated to programming that addresses issues of local importance and/or is specifically tailored to meet a need in the community that is otherwise underserved, including minority communities. To ensure that such programming is not buried in “graveyard” time periods, the Commission should specify that a significant amount of this programming should be aired between 6 p.m. and 11 p.m. and that no programming to fulfill this mandate should be aired before 7 a.m. or after 11 p.m. Public service announcements would not fulfill this requirement.

The proposed recommendation has its roots both in the Communications Act of 1934 and the Telecommunications Act of 1996. Under the 1934 Act, television broadcasters are licensed to serve localities to which they are licensed.(4) It has long been understood both by the FCC and by broadcasters that at the core of this local licensing requirement is an obligation that broadcasters provide locally originated and locally oriented programming. Most broadcasters take this obligation to serve as public trustees for their communities seriously, and consequently provide programming that meets local needs. However, evidence presented to the Advisory Committee demonstrates that a significant number of broadcasters provide neither local news nor local public affairs programming, and avoid controversial topics, no matter how important.(5)

As discussed above, broadcasters receive a license to use public spectrum free of charge in exchange for providing inkind payment through programming services that are not market-driven. Under the same rationale, the FCC, pursuant to Congress’ mandate in the Telecommunications Act of 1996, gave incumbent broadcasters free additional spectrum (for a period of no less than 9 years) to convert to digital TV. In the 1996 Act, Congress emphasized three times the need for digital broadcasters to provide programming and services that serve the public.(6) The processing guidelines discussed above will ensure that broadcasters that provide little or no local programming do not benefit from the free grant of spectrum in the digital world. We believe that these guidelines would not burden those broadcasters who already provide adequate amounts of local news and programming.

We agree with the broad principle, and most of the specific provisions, contained in the Advisory Committee’s recommendation on multiplexing. Broadcasters that use their free, extra public spectrum to provide more services and garner extra revenue should provide increased public service.

We write separately to address one issue.

We do not believe that the FCC should consider a broadcaster’s revenues in determining whether new public interest obligations attach. The Report suggests that new obligations should attach “upon the extra channels reaching a particular revenue goal....” Conditioning the provision of public service on broadcasters’ revenues will ensure that such service is never provided. Creative accounting can always ensure that any revenue “goals” the FCC adopts will never be attained, especially because much broadcasting revenue is traditionally obtained via “trade-outs” for inkind goods and services.

Importantly, consideration of revenues is unwarranted in light of the fact that broadcasters have been given multiple billions of dollars worth of public airwaves, at no cost, to convert to digital TV. Moreover, the ability to multiplex gives broadcasters far greater opportunities to increase revenues than are available today. Digital transmission technology currently permits broadcasters to provide at least five to six video programming streams of quality equal to today’s television picture, as well as other nonprogramming services such as data, paging, internet, and telephone services. Rapid advances in digital compression will likely expand that capacity even more. Additional public service obligations should be commensurate with these additional benefits, and should not be conditioned on whether those services generate a predetermined amount of revenue or profit.

1) See S. 25, 105th Cong., 1st Sess. (1997); H.R. 493, 105th Cong., 1st Sess. (1997).

2) 47 USC §312(a)(7), CBS v. FCC, 453 U.S. 367 (1981).

3) 47 USC §315(a). See Becker v. FCC, 95 F.3d 75 (D.C. Cir. 1996).

4) 47 USC §307(b).

5) See, e.g., University of Miami, Content Analysis of Local News Programs in Eight U.S. Television Markets (1997).

6 )47 USC §§336(a)(2), 336(a)(5) & 336(d).