LETTERS ON CURRENT ISSUES
[Text only of letters sent from the Commerce Committee Democrats]

February 4, 1998

The Honorable William E. Kennard
Chairman
Federal Communications Commission
1919 M Street, N.W.
Washington, D.C. 20554

Dear Chairman Kennard:

In his State of the Union address, the President pressed for passage of campaign finance reform and announced his intention to "formally request that the Federal Communications Commission (FCC) act to provide free or reduced cost television time" for political candidates who voluntarily observe campaign spending limits. The following day, you announced that the FCC was developing a proposal to be made public later this year.

Free air time for political candidates is an appealing idea, given the harsh reality that the high cost of media advertising is largely responsible for the escalating cost of political campaigns. But while the concept is worth debating, I have serious concerns about the wisdom of an unelected body of Federal regulators acting on just one component of what should be a comprehensive campaign reform package fully and publicly debated by the Congress.

Furthermore, I have serious doubts about the FCC's authority to act in this area absent any express authority from the Congress. Indeed, an FCC rule commanding broadcasters to provide free time to candidates may contravene the comprehensive statutory scheme Congress has already established to govern broadcasters' public interest obligations to political candidates.

The Communications Act explicitly delineates the obligations that broadcast licensees, as public trustees, owe to political candidates. Under 47 U.S.C. 312(a)(7), broadcasters must "allow reasonable access to or ... permit purchase of reasonable amounts of time" to legally qualified candidates for Federal elective office. In enacting this provision, Congress never suggested that commercial broadcasters were obligated to provide free time to candidates. To the contrary, as the Commission itself has recognized since the provision was first enacted, broadcasters may satisfy their obligations simply by permitting candidates to purchase reasonable amounts of time. Indeed, the Supreme Court has confirmed that Section 312(a)(7) only requires access for candidates that are "willing to pay for the time sought."

Congress also specifically limited the fees broadcasters may charge candidates for elected office when it enacted the "lowest unit charge" section of the Communications Act. Clearly, Congress expects candidates to pay for air time. If the Commission mandated free time for candidates, that statutory provision would be rendered largely meaningless. Furthermore, Congress has already established the limited circumstances in which candidates shall have "equal opportunities" to use a broadcast station free of charge. See 47 U.S.C. 315(a).

I am quite curious to learn your view, and the perspective of each of your fellow Commissioners, on the agency's authority to modify the public interest obligations of broadcasters to political candidates as established in existing law enacted by Congress. I am also interested in your respective ideas on how the Commission plans to interact with the President's Advisory Committee on Public Interest Obligations of Digital Television Broadcasters, which is scheduled to meet through June. In your various responses, please include answers to the following questions:

  1. What specific statutory authority gives the Commission the ability to mandate that broadcasters provide free air time to political candidates? Is there any specific support in the legislative history for your conclusion?

  2. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined whether broadcasters are required to provide free air time under Section 312(a)(7)? What did the Commission say?

  3. How do you reconcile the Commission's proposal to provide free air time to candidates with the court's holding in Kennedy for President Comm. v. FCC, 636 F. 2d 632 (D.C. Cir. 1980)? When the Commission briefed and argued that case, how did the agency characterize Congress's intent with respect to free time for candidates?

  4. If Section 312(a)(7) requires that broadcasters either give candidates reasonable access to free time or the opportunity to purchase reasonable amounts of time, what legal authority gives the Commission the power to modify that requirement in any way?

  5. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined whether the "lowest unit charge" provisions of the Communications Act mandate free time? 47 U.S.C. 315(b). What did the Commission say? Has the agency ever said that the lowest unit charge should be zero?

  6. What purpose would the "lowest unit charge" provisions serve if the Commission promulgated a system for free time for candidates? Would a zero charge establish no charge as the benchmark for "sales" of additional time to candidates?

  7. In what specific proceedings (i.e., rulemakings, policy statements, adjudications, or other agency action) has the Commission determined the circumstances in which free time would be mandated under the "equal opportunities" provision of the Communications Act? 47 U.S.C. 315(a).

    a) What did the Commission say about the availability of free time under this provision?

    b) If "major" candidates, or those who voluntarily observe campaign spending limits, are afforded free time, wouldn't the equal opportunities provision then require a grant of free time for all opposing candidates?

  8. What statutory provision gives the Commission the power to modify Congress's specific choices on the issue of candidate access to broadcast time? Reconcile your answer with the Supreme Court's holding in FCC v. Midwest Video, 440 U.S. 689, 706 (1979), that the Commission "was not delegated unrestrained authority" to regulate public access to cable systems.

  9. If the Commission has the authority to mandate free time for political candidates, does it have the same authority to mandate free time for elected officials to communicate with their constituents? Can the Commission mandate free time for State and local officials and candidates? What about free time for coverage of local government proceedings? What about free time for special interest groups? Is there any limit to the scope of power you are claiming? If so, what is it?

  10. What special expertise does the Commission have to determine how much free air time for candidates would be needed to effectively counter the adverse consequences of the current system on our democratic process? Or to determine which candidates would be entitled to receive such free time? Is the resolution of these contentious issues more appropriately within the province of elected officials?

I would appreciate a response from you and each individual Commissioner no later than February 20, 1998.

Sincerely,

JOHN D. DINGELL
RANKING MEMBER

cc: The Honorable Tom Bliley, Chairman
Committee on Commerce
Commissioner Susan Ness, FCC
Commissioner Harold Furchtgott-Roth, FCC
Commissioner Michael K. Powell, FCC
Commissioner Gloria Tristani, FCC


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