FCC Equal Time Rules Raise Constitutional Questions, Former Chairman Patrick Says
FCC rules governing how broadcasters sell political ads in the weeks before federal elections could tread on stations’ First Amendment rights, former FCC Chairman Dennis Patrick said, taking care to say he hasn’t reviewed case law around those rules lately. Patrick addressed a National Press Club audience on his rationale for striking the fairness doctrine from FCC rules in 1987. The doctrine, requiring broadcasters to air contrasting viewpoints on controversial issues they covered, was “unconstitutional on its face,” he said.
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The Supreme Court was wrong to lump broadcasters in a separate class from other media in Red Lion v. FCC, Patrick said. Under that rationale, “there is a very substantial issue with respect to the constitutionality of Section 315 [of the Communications Act],” which includes the equal time rules, he said. That section of the Act requires that candidates for federal office get access to broadcast advertising equal to their opponents and regulates rates candidates pay to buy ads.
The fairness doctrine has become the “surprise hit of the summer silly policy circuit,” said George Mason University Law School Dean Daniel Polsby. His school scheduled the event, commemorating the 20th anniversary of the doctrine’s demise, before Hill interest in the topic materialized. Republicans in Congress have sought to block what they fear may be Democrat-led attempts to revive the doctrine (CD July 2 p1, July 16 p1).
The 1987 commission did away with the rule against Congress’ wishes, Patrick said. The rule enjoyed bipartisan support at the time and would have been codified into law but for a veto by then President Ronald Reagan, he said. The arguments against the doctrine have only gained amplification in the last 20 years, with the growth of new media platforms like cable, satellite and the Internet, he said.
Some in government wanted to ax the rule earlier, said Clay Whitehead, an adjunct professor at George Mason. Whitehead, chief of the Office of Telecommunications Policy during the Nixon and Ford administrations, advocated deleting the rule in 1971, an effort shot down by White House staffers who valued the rule as a tool with which to exert control over media outlets, he said. Whitehead tried to help lay the groundwork for erasing the rule by promoting nascent media technologies like cable and satellite, he said. “The argument for letting markets work was marginal when there were only 3 TV networks,” he said. “We promoted cable because cable meant lots of new channels,” he said.