Free air time for political advertising: An invasion of the protected first amendment freedoms of broadcasters

George Washington Law Review

Volumn 67, Issue 1, 1998, Pages 100-122

  Melcher, Douglas C ^a,b  

^a SYRACUSE UNIVERSITY   (United States)

^b MASSACHUSETTS INSTITUTE OF TECHNOLOGY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 22444456105     PISSN: 00168076     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (144)

1. William Jefferson Clinton, State of the Union Address (Jan. 27, 1998), in 34 PUB. PAPERS 129 (Feb. 2, 1998).
2. See, e.g., Reed E. Hundt, The Public's Airwaves: What Does the Public Interest Require of Television Broadcasters?, 45 DUKE L.J. 1089, 1100-09 (1996) ("It is impossible to overestimate the harm to the legislative process caused by the sheer amount of time required to raise funds for television advertising.");
3. Jeffrey A. Levinson, Note, An Informed Electorate: Requiring Broadcasters to Provide Free Airtime to Candidates for Public Office, 72 B.U. L. REV. 143-47 (1992) ("The inordinate amount of time spent raising money detracts from time spent developing initiatives, devising policy proposals, and discussing 'the issues.'").
4. See supra note 1 and accompanying text; Alexandra Marks, Do Broadcasters Serve Public Enough?, CHRISTIAN SCI. MONITOR, Aug. 12, 1997, at 4 (stating that "Clinton has embraced the idea of free air time as part of an overall campaign-finance reform plan").
5. Communications Act of 1934, Pub. L. No. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.). Section 312(a)(7) is codified at 47 U.S.C. § 312(a)(7) (1994).
6. 47 U.S.C. § 312(a)(7). See infra section I.B for further discussion.
7. See infra section IV. In previous publications, various authors have argued that a free air time requirement would not violate the First Amendment rights of broadcasters. See Hundt, supra note 2, at 1108-10; Levinson, supra note 2, at 162-72;
8. Susan M. Zwerling, Note, Reclaiming a Public Resource: The Constitutionality of Requiring Broadcasters to Provide Free Television Advertising Time to Candidates for Federal Office, 18 N.Y.U. REV. L. & SOC. CHANGE 213, 236-39 (1990-1991).
9. For example, "legislation introduced in the 100th Congress by Senator Albert Gore, Jr., of Tennessee proposed making available to specified presidential candidates a total of 6.5 hours of free prime time airtime during the two months preceding election day." Levinson, supra note 2, at 149 (citing S. 2923, 100th Cong. (1988)).
10. See Wyden Seeks Uniform Taxing: Ratings and Rates Top McCain Agenda, COMM. DAILY, Jan. 9, 1997, at 1 [hereinafter Wyden Seeks Uniform Taxing] (discussing McCain-Feingold proposal to provide free air time for political advertising).
11. See Michael Kranish, Campaign Finance Bill Shows TV's Clout, BOSTON GLOBE, Dec. 25, 1997, at A1 ("McCain . . . dropped his proposal requiring free TV for candidates after other members of Congress succumbed to the industry's lobbying blitz."). This outcome was strongly criticized in the media: All year, the television networks broadcast stories about political fund-raising and the need to reform the campaign finance system. But the real story, some members of Congress say, is that the television lobby racked up one success after another as it helped strangle a campaign reform bill. The result is that when Congress takes up a proposal to reform the campaign system in January, the most discussed idea of 1997 - free television time for political ads - will not be included in the legislation. Id.
12. Other nations provide free air time to candidates. For example, in Britain, "[a]ny party that files at least 50 candidates for seats in the 659-member parliament, and pays a refundable deposit of roughly $750 for each of them, qualifies for free prime television time on national broadcast stations. This is the only form of television advertising allowed in the campaign." John Nichols, Britain Proves U.S. Campaigns Can Be Reformed, CAP. TIMES, May 12, 1997, at 1C.
13. Executive Order 13,038 established the Gore Commission, more formally known as the "Advisory Committee on the Public Interest Obligations of Digital Television Broadcasters." The Gore Commission is comprised of persons who are selected by the President from the private sector. Its function is to "report to the Vice President on the public interest obligations digital television broadcasters should assume." Exec. Order No. 13,038, 62 Fed. Reg. 12,065 (1997).
14. See PBR Notes, PUB. BROAD. REP., Apr. 18, 1997, available in 1997 WL 8585704.
15. See Marks, supra note 3, at 4.
16. Broadcasters have been subject to government imposed "public interest" obligations since the Radio Act of 1927. See Radio Act of 1927, Pub. L. No. 69-632, 44 Stat. 1162,
17. repealed by Communications Act of 1934, Pub. L. No. 73-416, § 602(a), 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.). Many public interest obligations stem from the "public interest, convenience, and necessity" clause of 47 U.S.C. § 309 which controls spectrum licensing: Subject to the provisions of this section, the Commission shall determine, in the case of each application filed with it to which section 308 of this title applies, whether the public interest, convenience, and necessity will be served by the granting of such application, and, if the Commission, upon examination of such application and upon consideration of such other matters as the Commission may officially notice, shall find that public interest, convenience, and necessity would be served by the granting thereof, it shall grant such application. 47 U.S.C. § 309(a) (1994).
18. See PBR Notes, supra note 12.
19. The Gore Commission was originally due to issue its report in June 1998. The deadline was subsequently extended to October 1998. Some observers, however, speculate that the report will not be issued until after the November elections. See Broadcasters Say Gore Commission Is "Fizzling Out," COMM. DAILY, Aug. 17, 1998.
20. See supra note 1 and accompanying text.
21. In February 1998, several members of Congress vowed to pass legislation to expressly prohibit the FCC from adopting a free air time requirement. See Alison Mitchell, Senators Vote to Keep Alive Bill Overhauling Campaign Finances, N.Y. TIMES, Feb. 25, 1998, at A1
22. (stating that Senator Trent Lott offered an amendment to the McCain-Feingold bill that would block the FCC from imposing a free air time requirement). By late March, the Chairman of the FCC, who had previously "announced he would force an FCC vote to implement" a free air time requirement, testified before a committee of the U.S. House of Representatives that he was "'not prepared to move forward unilaterally without intensive consultation from Congress.'" John Simmons, Well-Liked FCC Chief Still Runs into Plenty of Battles, WALL ST. J., Jun. 19, 1998, at A18.
23. There is some uncertainty as to whether the FCC presently has the authority to promulgate a free air time requirement, but that issue is beyond the scope of this Note. See, e.g., FCC Backs Away from Plan Aimed at Giving Free Air Time to Candidates, WALL ST. J., Mar. 26, 1998, at B11 (stating that "Democrats and Republicans on Capitol Hill upbraided FCC Chairman William Kennard charging that he would be overstepping his authority by requiring [free air time] without congressional approval").
24. Other political broadcast regulations include the "no censorship" and "equal opportunities" requirements and the "lowest unit charged" rule. The "no censorship" and "equal opportunities" requirements provide that [i]f any licensee shall permit 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: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. 47 U.S.C. § 315. The implementing regulations for the statute include 47 C.F.R. § 73.1940 (1997) (defining who is a "legally qualified candidate for public office"); 47 C.F.R. § 73.1941 (stating the equal opportunities requirements); and 47 C.F.R. § 73.1942 (stating, inter alia, that licensees are required to "keep and permit public inspection of a complete and orderly record . . . of all requests for broadcast time made by or on behalf of a candidate for public office"). The "lowest unit charged" rule provides that [t]he charges made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his campaign for nomination for election, or election, to such office shall not exceed . . . (1) during the forty-five days preceding the date of a primary or primary runoff election and during the sixty days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period; and (2) at any other time, the charges made for comparable use of such station by other users thereof. 47 U.S.C. § 315(b). The implementing regulations for the statute include 47 C.F.R. § 73.1942 ("Candidate Rates") and 47 C.F.R. § 73.1943 (outlining the requirement and use of a "political file").
25. 47 U.S.C. § 312(a)(7).
26. 47 C.F.R. § 73.1940.
27. See id § 73.1944(a) (using the language of 47 U.S.C. § 312(a)(7)). 47 C.F.R. § 73.1944(b) states that For purposes of providing reasonable access, a licensee shall make its facilities available for use by federal candidates on the weekend before the election if the licensee has provided similar access to commercial advertisers during the year preceding the relevant election period. Licensees shall riot discriminate between candidates with regard to weekend access. Id. Aside from clarifying that weekend access must be nondiscriminatory, the FCC's rules do not delineate the duties of licensees.
28. See id § 73.4185 (incorporating by reference the following documents: The Law of Political Broadcasting and Cablecasting: Political Primer 1984, 100 F.C.C.2d 1476 (1985) (summarizing the FCC's rules on political advertising) ("1984 Political Primer"); In re Codification of the Commission's Political Programming Policies, 7 F.C.C.R. 4611 (1992) (codifying FCC rules on political programming) ("1992 Policy Statement"); In re Codification of the Commission's Political Programming Policies, 7 F.C.C.R. 678 (1991) (same) ("1991 Policy Statement")).
29. See 1991 Policy Statement, 7 F.C.C.R. at 679.
30. Id. at 681-82 (citing In re Commission Policy in Enforcing Section 312(a)(7) of the Communications Act, 68 F.C.C.2d 1079, 1090 (1978) ("Section 312(a)(7) Policy")).
31. Id. at 681 (citing Section 312(a)(7) Policy, 68 F.C.C.2d at 1094).
32. Section 312(a)(7) Policy, 68 F.C.C.2d at 1090; see also CBS, Inc. v. FCC, 453 U.S. 367, 387 (1981) (stating that to justify a denial of access a broadcaster "must cite a realistic danger of substantial program disruption . . . or of an excessive number of equal time requests").
33. Section 312(a)(7) Policy, 68 F.C.C.2d at 1090; see also In re Public Notice Concerning Licensee Responsibility Under Amendments to the Communications Act Made by the Federal Election Campaign Act of 1971, 47 F.C.C.2d 516 (1974).
34. 453 U.S. 367 (1981).
35. Id. at 390.
36. See id. at 394-95.
37. See supra Introduction.
38. There is little doubt that broadcasters are entitled to First Amendment protection. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 378 (1984) (stating that "broadcasters are 'entitled under the First Amendment to exercise 'the widest journalistic freedom consistent with their public [duties]''") (citations omitted); see also Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 102 (1973) (stating that broadcasters are "not without protection under the First Amendment" (citing United States v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948))).
39. The First Amendment states that "Congress shall make no law . . . abridging the freedom of speech." U.S. CONST. amend. I (emphasis added).
40. In the short term, the most likely scenario would be for the FCC to attempt to promulgate a free air time requirement under existing statutory authority. As noted in the introduction, the President called upon the FCC to consider such a requirement in his State of the Union Address. See supra note 1 and accompanying text. However, several members of Congress have vowed to block FCC action. See supra note 17.
41. See, e.g., League of Women Voters, 468 U.S. at 402 (invalidating under the First Amendment a statute forbidding any noncommercial educational broadcaster that receives a grant from the Corporation for Public Broadcasting to engage in editorializing); cf. Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 254-58 (1974) (holding that a right of reply requirement imposed on newspaper publishers violates the First Amendment).
42. Broadcasters are entitled to First Amendment freedoms. See supra note 32. Furthermore, "[w]hen a . . . broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity." Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) (stating that "[a]lthough programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communicative acts").
43. Compelled speech implicates the First Amendment. See, e.g., Turner Broad. Sys. v. FCC, 512 U.S. 622, 641 (1994) ("Turner I") (stating that "[g]overnment action that . . . requires the utterance of a particular message favored by the Government . . . contravenes [the First Amendment]"); see also Pacific Gas & Elec. v. Public Utils. Comm'n, 475 U.S. 1 (1986) (invalidating state regulation requiring a privately owned utility company to include inserts providing alternative views on energy issues in its billing mailings).
44. See CBS, Inc. v. FCC, 453 U.S. 367, 394-95 (1981). Although the Court implicitly recognized that reasonable access implicates the First Amendment freedoms of broadcasters, the Court upheld reasonable access. See supra notes 26-27 and accompanying text.
45. See, e.g., Turner I, 512 U.S. at 641-44.
46. See, e.g., id. at 642-43; United States v. O'Brien, 391 U.S. 367, 377 (1968). This characterization of First Amendment law is crude, however, because the law varies depending upon, inter alia, the kind of speech involved as well as the communication medium. For example, "low value" speech categories, such as "fighting words," typically are subject to less rigorous review than speech that lies at the heart of the First Amendment, such as political speech. See, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992); see also infra Parts III.B.1., III.C.1.
47. FCC v. League of Women Voters, 468 U.S. 369, 380 (1984); see also Turner I, 512 U.S. 642-43; O'Brien, 391 U.S. at 377.
48. See Sable Communications v. FCC, 492 U.S. 115, 126 (1989). In Sable, the Court stated that the government may regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest . . . but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedom." Id. (quoting Shaumburg v. Citizens for a Better Env't, 444 U.S. 620, 637 (1980)).
49. See id.
50. See Turner I, 512 U.S. at 643 ("As a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of ideas or views expressed are content-based."); see also R.A.V., 505 U.S. at 391 (invalidating a viewpoint-based regulation); City of Chicago v. Mosley, 408 U.S. 92, 95 (1972) (invalidating a subject matter regulation).
51. See Turner I, 512 U.S. at 643.
52. Id. at 649 & n.7 (emphasis added).
53. See Boos v. Barry, 485 U.S. 312, 319 (1988); see also City of Ladue v. Gilleo, 512 U.S. 43 (1994) (holding unconstitutional a municipal ordinance that prohibited homeowners from displaying all signs, except those falling under certain exceptions); Simon & Schuster v. Members of the N.Y. State Crime Victims Bd, 502 U.S. 105 (1991) (holding unconstitutional a "son of Sam" law requiring entity contracting with an accused or convicted person for a depiction of a crime to turn over any income under that contract to a fund for the victim).
54. See Boos at 318-19 (asserting that "whether individuals may picket in front of a foreign embassy depends entirely upon whether their picket signs are critical of the foreign government or not").
55. Assuming, arguendo, that free access is not, on its face, a content regulation, it nonetheless is content-based because its manifest purpose is to confer privileges based upon content. As the Court noted in Turner I, "a regulation neutral on its face may be content based if its manifest purpose is to regulate speech because of the message it conveys." Turner I, 512 U.S. at 645 (citing United States v. Eichman, 496 U.S. 310, 315 (1990)).
56. See 47 U.S.C. § 315 (1994); supra note 18 and accompanying text.
57. By requiring broadcasters to provide free air time for a public purpose (i.e., facilitating speech by qualified candidates), broadcasters would effectively be providing in-kind compensation to the public in exchange for the valuable right to use the spectrum for purposes such as airing paid commercial advertising.
58. Turner I, 512 U.S. at 642-43 (emphasis added) (citations omitted).
59. See id. at 645-46; Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, 106 Stat. 1460 (codified as amended in scattered sections of 47 U.S.C.) ("1992 Cable Act").
60. Turner I, 512 U.S. at 644.
61. In Turner I the Court stated that "the privileges conferred by the must-carry provisions are . . . unrelated to content." Id. at 645. More specifically, the Court stated that "[t]he rules benefit all full power broadcasters who request carriage - be they commercial or non-commercial, independent or network affiliated, English or Spanish language, religious or secular." Id.
62. 395 U.S. 367 (1969).
63. In re Inquiry into Section 73.1910 of the Commission's Rules and Regulations Concerning the General Fairness Doctrine Obligations of Broadcast Licensees, 102 F.C.C.2d 145 (1985) ("1985 Fairness Report") (citing In re The Handling of Public Issues under the Fairness Doctrine and the Public Interest Standards of the Communications Act, 48 F.C.C.2d 1 (1974), aff'd sub nom. National Citizens Comm. for Broad, v. FCC, 567 F.2d 1095 (D.C. Cir. 1977)). The fairness doctrine, which was predicated upon 47 U.S.C. § 315(a) (1994), was repealed in the mid-1980s by the FCC because the agency concluded that the doctrine "contravenes the First Amendment and thereby disserves the public interest." In re Complaint of Syracuse Peace Council, 2 F.C.C.R. 5043, 5057 (1987), aff'd, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989). The Commission's decision was based upon the conclusion that "the transformation of the broadcast marketplace and the compelling documentation of the 'chilling effect' undermine the factual predicate" of Red Lion Broadcasting Co., Inc. v. FCC which originally upheld the doctrine. 1985 Fairness Report, 102 F.C.C.2d at 157. However, related rules controlling "personal attacks" and "political editorials" were not repealed. See 47 C.F.R. §§ 73.1920, 73.1930 (1997).
64. See Red Lion, 395 U.S. at 390.
65. Id. at 378.
66. 468 U.S. 364 (1984).
67. Id. at 379 n.12 (quoting Red Lion, 395 U.S. at 393).
68. CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981); see also supra notes 26-27 and accompanying text.
69. League of Women Voters, 468 U.S. at 383 (quoting Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring)).
70. Id. (emphasis added).
71. Id. at 384 (emphasis added) (quoting Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 538 (1980)).
72. Id. at 386.
73. 412 U.S. 94 (1973).
74. See id. at 97-98.
75. See id. at 121-32.
76. See supra Introduction.
77. CBS, Inc. v. FCC, 453 U.S. 367, 396 (1981) (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)).
78. Id. (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
79. Wyden Seeks Uniform Taxing, supra note 8 (summarizing comments attributed to Senator Feingold). Under the McCain-Feingold proposal, "candidates would [have] receive[d] . . . time if they abided by voluntary campaign spending limits." Id.; see also supra note 8 and accompanying text.
80. 424 U.S. 1 (1976).
81. See id.
82. See CBS, 453 U.S. at 394-97.
83. FCC v. League of Women Voters, 468 U.S. 364, 378 (1984) (citing Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 124-27 (1973) (holding that requiring broadcast licensees to accept all paid political advertisements is inappropriate because such a requirement would intrude unnecessarily upon the editorial discretion of broadcasters)); see also Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1639 (1998) (discussing the importance of not interfering with the journalistic discretion of broadcasters).
84. See DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION 5 (1974) (analyzing the behavior of federal legislators as "single-minded seekers of reelection").
85. CBS, 453 U.S. at 396.
86. Turner Broad. Sys. v. FCC, 512 U.S. 622, 641 (1994) (emphasis added).
87. See Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969). The scarcity doctrine was first used by the Court to justify a content-based broadcasting regulation in National Broadcasting Co. v. United States, 319 U.S. 190, 210-19 (1943). See supra note 57 and accompanying text for a discussion of the fairness doctrine.
88. See Red Lion, 395 U.S. at 390 ("It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.").
89. See id. at 387-95.
90. 418 U.S. 241 (1974).
91. See id. at 258. As summarized by the Court, the right of reply statute provided that "if a candidate for nomination or election is assailed regarding his personal character or official record by any newspaper, the candidate has the right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may make to the newspaper's charges." Id. at 244.
92. See id. at 247-58.
93. See Turner Broad. Sys. v. FCC, 512 U.S. 622, 661 (1994).
94. See id. at 641-42.
95. See Laurence H. Winer, The Red Lion of Cable, and Beyond? - Turner Broadcasting v. FCC, 15 CARDOZO ARTS & ENT. L.J. 1, 21 (1997) (stating that "in Turner, the Court explicitly acknowledged what long had been apparent. Namely, the spectrum scarcity that always has been the foundation for broadcast regulation refers only to perceived physical characteristics of broadcast transmission and not to economic scarcity (of broadcast frequencies, printing presses or the like), which after all is a universal condition affecting all resources.").
96. For example, CNN provides 24-hour news coverage and is distributed by both cable and satellite television facilities.
97. See New Media, COMM. DAILY, Nov. 7, 1996, at 12;
98. Jared Sandberg, U.S. Households with Internet Access Doubled to 14.7 Million in Past Year, WALL ST. J., Oct. 21, 1996, at B11.
99. New Media, supra note 91, at 12.
100. Nicholas Denton, NBC Buys into LiveWorld, FIN. TIMES, Mar. 11, 1998, at 28.
101. See Michael Katz, Cable Attracts Political Ad Dollars, BROADCASTING & CABLE, Mar. 11, 1996, at 66.
102. The growth in on-line media is facilitated by the increasing market penetration of personal computers which are in an estimated 45 percent of U.S. households. That increase also facilitates the dissemination of information in other formats such as on CD-ROM. See U.S. Household PC Penetration Passed 45% by End of 1997, BUS. WIRE, Mar. 9, 1998, available in Dow Jones News/Retrieval.
103. See WARREN PUBL'G, INC., TELEVISION & CABLE, FACTBOOK No. 65, 1-80 (1997).
104. See STANDARD & POOR'S, INDUSTRY SURVEYS: BROADCASTING & CABLE 7 (June 26, 1997).
105. See id.
106. See id. at 8; Katz, supra note 94.
107. See WARREN PUBL'G, INC., supra note 96, at 1-15.
108. See id.
109. See id. at 1-45.
110. See Commission Adopts Rules for Digital Television Service, FCC, Apr. 3, 1997, available in 1997 WL 154537, at *1.
111. See id., at *9.
112. See, e.g., Steve McClellan, Ready and Not, Here Comes DTV, BROADCASTING & CABLE, Mar. 9, 1998, at 29 ("Fox has made no public declaration on format, but the network has told its affiliates it wants to broadcast in 480 P, a non-HDTV format, for the foreseeable future. Use of 480 P will allow multicasting - the broadcast of four or five channels at the same time.").
113. See, e.g., ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM 151 (1983) (arguing that technological change undermines the scarcity doctrine);
114. Mark S. Fowler & Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 TEX. L. REV. 207, 221-30 (1982) (arguing that spectrum is no more scarce than any other good and that technological change undermines the scarcity doctrine);
115. Thomas W. Hazlett, Physical Scarcity, Rent Seeking, and the First Amendment, 97 COLUM. L. REV. 905, 944 (1997) (arguing that public choice dynamics, not technological necessity, was the fundamental basis for early radio regulation and development of scarcity . doctrine).
116. 105 F.3d 723 (D.C. Cir. 1997).
117. See id. at 724 (Williams, J., dissenting).
118. Id. (Williams, J., dissenting) (citing Red Lion Broad, v. FCC, 395 U.S. 367 (1969)).
119. See, e.g., Action for Children's Television v. FCC, 58 F.3d 654, 672-77 (D.C. Cir. 1995) (Edwards, C.J., dissenting) (rejecting scarcity rationale because it is factually undermined by the growing number of broadcast channels); Telecommunications Research & Action Ctr. v. FCC, 801 F.2d 501, 508-09 n.4 (D.C. Cir. 1986) (stating that [b]roadcast frequencies are much less scarce now than when the scarcity rationale first arose in National Broadcasting Co. . . . [in 1943] and it appears that currently "the number of broadcast stations . . . rivals and perhaps surpasses the number of newspapers and magazines in which political messages may effectively be carried." . . . Indeed, many markets have a far greater number of broadcasting stations than newspapers. (quoting Loveday v. FCC, 707 F.2d 1443, 1459 (D.C. Cir. 1983))).
120. 468 U.S. 364 (1984).
121. Id. at 376-77 n.11 (citation omitted).
122. See 1985 Fairness Report, supra note 57. The 1985 Fairness Report also states that: Our conclusions regarding the disutility of the fairness doctrine find further support by examining the current amount of diverse and antagonistic sources of information available in the marketplace. . . . [S]ignificant increases in the number and variety of information sources attenuates the need for a system of government imposed 'fairness' with its corollary duty to discover and present controversial issues of public importance. Id. at 196-97.
123. See supra notes 11-15 and accompanying text.
124. This approach is illustrated by Forbes v. Arkansas Educ. Television Comm'n, 93 F.3d 497, 505 (8th Cir. 1996), rev'd, 118 S. Ct. 1633 (1998). See also Charles W. Logan, Getting Beyond Scarcity: A New Paradigm for Assessing the Constitutionality of Broadcast Regulation, 85 CAL. L. REV. 1687, 1689-90 (1997) (arguing that the public forum doctrine provides a logical basis for upholding broadcast regulations even if the scarcity rationale is abandoned).
125. See supra note 115.
126. 118 S. Ct. 1633 (1998).
127. See id. at 1641.
128. See id. at 1637-38.
129. Id. at 1639.
130. See id. at 1639-43. The Court recognized, however, that the candidate debate was a forum. Accordingly, the public broadcaster was required to demonstrate that its decision to exclude Forbes from the debate was reasonable and viewpoint neutral. The Court held that the broadcaster's decision met these requirements. See id. at 1643-44.
131. Under the strict scrutiny standard, the government must demonstrate that its regulation is necessary to achieve a compelling governmental interest. See supra note 42.
132. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) (stating that a "content-based regulation is presumptively invalid").
133. The inherent value of the spectrum is often used to justify broadcast regulations as demonstrated by the Court's holding in CBS. See CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) ("A licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain; when he accepts that franchise it is burdened by enforceable public obligations.'" (quoting Office of Communication of the United Church of Christ v. FCC, 359 F.2d 994, 1003 (1966))); see also THOMAS G. KRATTENMAKER, TELECOMMUNICATIONS LAW & POLICY 139 (1994) ("The intuitions behind the public trustee notion are easy to identify. Broadcasters, in creating their product, employ an essential input, use of the spectrum, which government gives them free of charge.").
134. See Gregory L. Rosston & Jeffrey S. Steinberg, Using Market-Based Spectrum Policy to Promote the Public Interest, 50 FED. COMM. L.J. 87, 88-91 (1997).
135. See Kranish, supra note 9, at A27.
136. See, e.g., id.
137. See supra note 42 and accompanying text.
138. See supra note 125 and accompanying text.
139. As discussed in Part III.A, free access is a content-based regulation.
140. See supra note 2 and accompanying text.
141. The Presidential Election Campaign Fund Act establishes a Presidential Election Campaign Fund from which disbursements are made to eligible presidential candidates. Candidates who accept such funds must certify that they will not incur campaign expenses in excess of a specified amount. See 26 U.S.C. §§ 9001-9013 (1994).
142. CBS, Inc. v. FCC, 453 U.S. 367, 395-96 (1981) (emphasis added) (stating that "'speech concerning public affairs is . . . the essence of self-government.'" (quoting Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964))).
143. In making this argument, the author does not need to concede that political speech would actually be promoted. Indeed, both free access and the Presidential Election Campaign Fund program may have the effect of reducing the amount and diversity of political speech.
144. This fact likely would weigh very heavily in the mind of any judge or justice considering whether the scarcity doctrine has been factually undermined.