not afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials." Conversely, perhaps those who cannot effectively make their views known in person should be allowed to speak through more advantageous, although more expensive, campaign methods. Ensuring a variety of modes of expression may be especially important in political contests, because the method of speech utilized may have a substantial impact upon campaign strategy and the outcome of the election." This is not to say that campaign expenditures cannot be subjected to reasonable regulations; rather, any such regulation should not be based solely on the use of complex or advanced communications methods.

133

104

Limitation of spot advertising is another sensitive area of concern. The question is whether Congress could eliminate or retard certain styles of advertising. In the past decade, use of spot advertising on television has proliferated." Because spot advertising is unique to the electronic media, the impact of its regulation falls on only one segment of the "campaign industry". However, the questionable value of such advertisements 15 may justify some form of regulation. Yet, as Professor Rosenthal notes, limitation of spot advertisements would "take away from the candidate what is often an entirely legitimate means of communicating" and would allow the government "to mold the shape" of the candidate's campaign strategy." 16 Moreover, spot advertising may serve useful purposes. Voters who have little patience for lengthy discussion may find such short programs their best or only source of information about candidates. Although the cost of spot advertisements has escalated rapidly, these announcements are still substantially less expensive than longer periods of air time.

137

The debate over spot advertising illustrates the task of constitutional factfinding. In order to pass a balancing test, limits on spot advertising, as on other types of paid advertising must be based upon an objective determination that the danger outweighs the value of the advertising to all participants. 2. Distinguishing Among Media, Broadcasting. As suggested above, the degree of first amendment protection accorded paid political advertisements may depend upon the type of media to which a spending ceiling applies. For example, a distinction may be drawn between FCC-regulated broadcasting and the relatively unrestricted newspaper industry.

138

Since 1949," the Federal Communications Commission has imposed a fairness-in-programming requirement on all broadcast licensees. This doctrine requires that "when a broadcast station presents one side of a controversial issue of public importance, reasonable opportunity must be afforded for the presentation of contrasting views." 139 In announcing the doctrine the Commission recognized "the paramount right of the public to be informed and to have presented to it for acceptance or rejection the different attitudes and viewpoints concerning. vital and often controversial issues.

* 140

In Red Lion Broadcasting Company v. FCC," the Supreme Court sustain d the constitutionality of the fairness doctrine in general and the "personal attack" and "political reply time" doctrines in particular. The Court enunciated two bases for its decision: (1) the statutory mandate that broadcast facilities be operated in the public interest," and (2) the public's right to free and open debate, as guaranteed by the first amendment.113

12 Adderley v. Florida, 385 U.S. 39, 50-51 (1966) (Douglas, Brennan & Fortas, JJ., & Warren, C. J.. dissenting).

Any limitation of the methods of speech available indirectly restricts a candidate's choice of campaign strategy. Cf. Note, Campaign Spending Regulation, supra note 31, at 651. See also 1970 Hearings 94 (remarks of H. Alexander).

E.g., R. MacNeil, The People Machine, supra note 14, at 204; B. Rubin, Political Television 132 (1967); O'Toole, Ad Executive Would Reform Campaign TV, Boston Evening Globe, Nov. 22, 1971, at 1, col. 1.

15 Note, Campaign Spending Regulation, supra note 31, at 647; 1970 Hearings 10 (statement of D. Burch, Chairman of the FCC),

16A. Rosenthal, supra note 31, at 59. Cf. Mills v. Alabama, 384 U.S. 214 (1966), Particularly in the political arena, the type of speech utilized may be as important as the words chosen. If the government can eliminate spot announcements as "ineffective singing commercials," the next step may be a limitation on "misleading" or "inflammatory" campaigning. Yet the underlying purpose of the first amendment suggests that any subjective judg ments concerning these speech techniques should be made not by the government but by an informed citizenry. See pp. 239-40 supra.

137 See pp. 238-40 supra.

138 Federal Communications Comm'n. Report on Editorializing by Broadcast Licensees, reported in 13 F.C.C. 1246 (1949) [hereinafter cited as Report on Editorializing].

133 Federal Communications Comm'n, Thirty-second Annual Report, Fiscal Year 1966 at 90.

140 Report on Editorialiing 1246.

141 395 U.S. 367 (1969).

112 Id. at 379-80.

143 id. at 390. For a critique of the Red Lion approach, see Blake, Red Lion Broadcasting Co. v. FCC: Fairness and the Emperor's New Clothes, 23 Fed. Com. B.J. 75 (1969).

144

Assuming the continued validity of Red Lion, and the fairness doctrine itself, the question of whether fairness concepts support the constitutionality of campaign spending ceilings in a particular advertising medium. This inquiry requires an understanding of the application of the fairness doctrine to controversies involving social and political advertisements.

in Chitman Broadcasting Company, the FCC clarified the relationship between fairness time and paid sponsorship, stating that if one view of public importance is broadcast by paid programming, a licensee must, if requested. broadcast a contrasting viewpoint even if he is unable to obtain a paying sponsor. The impact of Cullman was probably not realized until it was applied to purchased "spot" advertising as well as to longer paid programming. In 1967, the FCC announce its decision in Matter of WCBS.14 In a controversial opinion, it stated that a licensee's statutory obligation to operate in the public interest included the duty to make fair representations concerning the "issue" raised by cigarette advertising. The grave danger to health from smoking and the frequency of cigarette advertising were said to require the presentation of anti-smoking views on a regular basis, and without charge if the licensee was unable to obtain a paying sponsor.1

148

Although the Commission carefully stressed that its ruling applied only to cigarette advertising, the approach seemed applicable in other situations involving a similar or greater degree of public interest. This suggestion was supported by Chief Judge Bazelon, who explained in Retail Store Employees, Local 880 v. FCC that the Commission's attempt to limit the Cullman approach to cigarette advertising would be interpreted to mean only that "the implicit and explicit messages normally carried by advertising do not concern controversial issues of public importance." 150

149

151

152

The FCC has attempted with limited success to curb extension of Cullman to other paid advertising, thus refusing to find the requisite important public issue in armed forces enlistment advertising (peace),' automobile and gasoline announcements (safety and environmental hazards), and Alaskan oil development publicity (environmental dangers). In other controversies the FCC has narrowly defined the issues involved, thus limiting the scope of any required presentation of opposing views.154

155

Extension of the Cullman doctrine to paid political advertisements was considered in Nicholas Zapple.1 The decision involved a hypothetical broadcast station selling air time to Candidate A, to an individual, or to a committee urging Candidate A's election. Although Candidate A does not personally appear, the candidate or issues are discussed. Candidate B or his position on the issues is criticized. An authorized spokesman, an individual, or a group supporting Candidate B then requests "fairness time". The Commission held that if the licensee has sold time to spokesman for Candidate A, it need not offer free time to Candidate B or to his spokesmen.

141 See Barron, Access-The Only Choice for the Media? 48 Texas L. Rev. 766 (1970); Barrow, The Equal Opportunities and Fairness Doctrines, supra note 121. But see Kalven. Broadcasting, Public Policy and the First Amendment, 10 J. Law & Econ. 15 (1967): Marks, Broadcasting and Censorship: First Amendment Theory After Red Lion, 38 Geo. Wash. L. Rev. 974 (1970): Robinson, The FCC and the First Amendment: Observations on 40 Years of Radio and Television Regulation, 52 Minn. L. Rev. 67 (1967). In June, 1971, the FCC issued a notice of inquiry into the fairness doctrine and related public interest policies. The study is divided into four parts: (1) the fairness doctrine generally: (2) access to the broadcast media as a result of the presentation of product commercials: (3) access generally for discussion of public issues; and (4) application of the fairness doctrine to political broadcasts. See P & F Radio Reg. ¶ 53:451 (June 16, 1971) (FCC Dkt. No, 19260).

145 40 F.C.C. 576 (FCC 1963).

115 9 F.C.C. 24 921 (FCC 1967).

147 Id. at 927.

148 Id. at 941.

19 436 F. 2d 248 (D.C. Cir. 1970).

150 Id. at 258. See id. at 258 n. 67.

151 E.g.

San Francisco Women For Peace, 24 F.C.C. 2d 156 (FCC 1970), aff'd sub nom. Green v. FCC, 447 F. 2d 323 (D.C. Cir. 1971); Alan F. Neckritz, 24 F.C.C. 2d 175 (FCC 1970), aff'd sub nom. Neckritz v. FCC, 446 F. 2d 501 (9th Cir. 1971) (per curiam).

152 Friends of the Earth, 24 F.C.C. 2d 743 (FCC 1970), rev'd sub nom. Friends of the Earth v. FCC, 22 P & F Radio Reg. 2d 2145 (D.C. Cir., Aug. 16, 1971).

13 National Broadcasting Co., 30 F.C.C. 2d 643 (FCC 1971) (fairness doctrine held applicable).

14 E.g., San Francisco Women For Peace. 24 F.C.C. 2d 156 (FCC 1970), aff'd sub nom. Green v. FCC 447 F. 2d 323 (D.C. Cir. 1971): Alan F. Neckritz, 24 F.C.C. 2d 175 (FCC 1970), aff'd sub nom. Neekritz v. FCC, 446 F. 2d 501 (9th Cir. 1971); Applicability of the Fairness Doctrine. 2 P & F Radio Reg. 2d 1901, 1908 (FCC 1964).

15523 F.C.C. 2d 707 (FCC 1970).

In the opinion the FCC first observed that the fairness doctrine was "plain!y applicable" to the fact situation. The Commission reaffirmed its support of the general Cullman proposition that "the public's right to know cannot be defeated by the licensee's inability to obtain paid sponsorship for presentation of a contrasting viewpoint, even where the initial presentation was made under pail sponsorship." 158 But the Commission cautioned that his principle "[s]hould not have applicability in the direct political arena. . . . [I]t is our view that it would be inappropriate to require licensees to in effect subsidize the campaign of an opposing candidate. . . . [S]uch requirement would be an unwarranted and inappropriate intrusion into the area of political campaign financing.'

* 157

If the Commission's conclusion rests upon the view that traditional fairness concepts are inappropriate in the area of political advertising, then the congressional approach embodied in S. 382 and S. 3637 is undermined. Conversely, if practical considerations merely make the fairness doctrine a poor tool for administrative application to the political arena, the rationale of the doctrine may still support the constitutionality of spending limitations.

150

Zapple rests on an awareness of the practical impact of a contrary decision, and should not be read to mean that fairness concepts have no application in regulating political speech. First, the issue of the benefit conferred by free time must be faced. In cigarette advertising, the person who demanded reply time received no personal gain from the free exposure; rather, the advantages of the free time inured to all listeners. In the political arena the candidate who receives free time receives a much more personal benefit: he gains exposure which he can then use in his campaign in other ways. Second, the Commission's reluctance to force individual stations to subsidize individual campaigns should not be brushed aside lightly. In areas with essentially one-party systems, the licensee might be forced to sustain the campaign efforts of the weaker party." Application of Cullman fairness concepts to elections involving several "fringe" candidates would increase the likelihood of subsidization as well as raise difficult questions concerning time allocations.160 In elections involving two candidates, a station providing Cullman fairness time could have its profit from paid political advertis ing cut in half. More substantial losses could occur in primaries and other contests with numerous contenders. So long as a single candidate purchased large amounts of air time, opposing candidates could demand free time under Cullmar, Under such conditions the attractiveness to the candidate of regulated media for political advertising may be completely destroyed. The licensee's increased financial burden could be met in several ways.

If stations increase their rates for political advertising, campaign expenses of paying candidates would be raised. This would reduce disparities in information dissemination resulting from differences in wealth, but would also increase the danger from personal obligations to large contributors. Alternatively, the station might reduce the amount of political advertising time offered during each election. Although the fairness doctrine probably requires a station to carry at least some political advertisements, the doctrine does not set a specific level. Many stations would doubtless comply with fairness standards by offering less, but still equal, time for political advertisements, while increasing public interest programming in other areas. The question then becomes whether the expected increase in fairness of presentation would justify a reduction in the overall flow of political information. As a third alternative, a broadcasting station might absorb the costs of sponsoring air time for the non-paying candidate. Whether resulting in a reduction in station profits or an increase in overall advertising rates, the economic burden imposed by this alternative may be misplaced. Politi

158 Fairness concepts recognize the balance of viewpoints necessary, and the limited media resources available. See also note 144 supra; p. 246 infra.

159 Faced with the prospect of having each purchased television advertisement countered by an opposing announcement provided by the station under Cullman, a particularly strong party might lower the amount of its broadcast advertising substantially and simply rely upon historic party preferences and party name recognition. Although the "fairness of views presented on the broadcast media would remain the same, the total flow of political information to the public could be reduced. Furthermore, faced with the prospect of substantial campaign subsidization, a station might simply reduce the amount of political advertising it sells, while maintaining fairness in general programming. See also Committee for the Fair Broadcasting of Controversial Issues, 19 P & F Radio Reg. 2d 1053 (FCC 1970).

160 For the related problem that arises under the equal opportunities doctrine, 47 U.S.C. $ 315(a) (1970), 8ee 1790 Hearings 94 (statement of H. Alexander), 8 (statement of D. Burch). See also Note, Campaign Spending Regulation, supra note 31, at 650–35.

cal controversy and the electoral process are intimately linked to the future of the nation. “Cullman time” in political campaigns would represent a fundamental change in the electoral process, and one which should perhaps await a clear legislative mandate. If the licensee must subsidize because of the public interest, perhaps free air time should be made available to all candidates. If a station must continually provide free time for a political party or group of fringe candidates, perhaps the public as a whole (the government) should directly sponsor this fairness time.16:

Because the Zapple opinion was delivered while Congress was considering the subject of political campaign spending, the Commission may have felt constrained to leave this policy choice to Congress. In a footnote to the Zapple decision, the Commission distinguished its support for congressional proposals calling for repeal of the section 315(a) equal time requirement of the Communications Act of 1934.28 The FCC asserted that those proposals are "directed to providing free time for coverage of political campaigns, and the opposing candidates, not to providing free time to one side where the other side has purchased time."

163

182

In summary, Zapple is based upon practical considerations and alternatives. The FCC's decision did not flow from a belief that the broad theory of fairness should not be applied to electoral contests. Campaign spending ceilings would not cause practical problems similar to the Zapple subsidization issue. Expenditure limits achieve fairness objectives by minimizing the disparity in the ability to disseminate information.

164

The next inquiry is whether expenditure limits are consistent with the broad concepts embodied in the fairness doctrine. As Professor Barrow.commented, "[t]he fairness doctrine is intended to facilitate robust dialogue on vital issues by requiring that licensees provide opportunity to present opposing viewpoints on controversial issues of public importance.” Campaigns clearly involve the requisite public issues. In one sense, a spending ceiling facilitates dialogue on vital issues by preventing a particular point of view from monopolizing the media. The ceiling should thus encourage rational decision-making by offering each voter a more balanced picture of political positions and concepts.

167

The ceiling need not ensure equality in presentation, for reasonable fairness is all that is required by the doctrine. The basic problem centers on the level of information provided. Although reasoned dialogue may be hampered if one view is presented with far greater freqnency, volume, and technical expertise than contrasting opinions, an overall level of information that is wholly inadequate may make rational decision-making even more difficult. Any spending ceiling must be set at a level that will curb "excess" political advertising, and yet ensure a level of political information adequate for voter choice. But if a ceiling must be set at a level far above the campaign budget of a candidate with "average" financial support, direct subsidies to the candidate with less financial backing may be necessary.' 160 The important consideration at this juncture is that the campaign expenditure ceilings are analogous to the FCC fairness doctrine. If government imposition of the fairness standard on the quasi-regulated

168

181 Other practical considerations may have affected the Commission's refusal to extend the Cullman doctrine to the Zapple fact situation. The possibly overlapping impact of $ 315(a) offers one example. Unlike the fairness doctrine, this section applies only to political candidates. Time is available only upon request of the candidate. Although fairness rationale requires only a reasonable opportunity for discussion of opposing views, section 315(a) requires "equal time. If a sponsor for the reply doctrine is not available, under the general fairness doctrine embodied in Cullman the licensee must provide free sustaining time, while under $315(a) the licensee must supply equal time only to a paying advertiser. In the absence of a congressional directive, the FCC may have been reluctant to extend Cullmon in a manner that would indirectly expand § 315.

162 47 U.S.C. & 315 (1970)

189 Nicholas Zapple, 23 F.C.C. 2d 707. 708 n.1. (FCC 1970). The Commission's support for repeal of the equal time requirements suggests that the FCC believed that the subsidization costs imposed on licensees by an opposite result in Zapple would reduce the amount of political advertising time accented by the stations. One of the strongest arguments in favor of repealing $315(a) is that stations are reluctant to offer free time to major candidates because, "equal' free time must then be offered to all candidates for the post involved. Particularly in elections in which numerous fringe candidates participate, the economic burden of such equal time may substantially reduce the total free time made available.

164 Barrow, The Equal Opportunities and Fairness Doctrines, supra note 131.

165 See Nicholas Zapple, 23 F.C.C. 2d 707 (FCC 1970).

168 If a few loud voices overpower the weaker voices of others. rational decision-making would be difficult, due to a reduction in the diversity of ideas presented.

167 Compare the result if section 315(a) is applied. See note 161 supra.

16% See the discussion of ceiling levels, p. 258 supra.

1 See Note, Campaign Spending Regulation, supra note 31, at 660–67.

broadcast industry is justified, statutory campaign spending limits in that industry are also warranted.

170

The Press and Other Media. The question of whether broadcasting fairness standards support imposition of spending ceilings in other media is more difficult. Because the number of frequencies is limited, one can argue that broadcasting activities must be regulated in the public interest.' Because the public owns the airwaves, restraints on some expression may be appropriate in order to serve the greater purpose of encouraging a free exchange of ideas.11 As Senator Pastore stated during the debate to override President Nixon's veto of S. 3637: "Unlike the owners of newspapers and other advertising media, broadcasters are by law trustees of the airways of the communities in which they are licensed to serve. As a consequence, and again unlike other media owners, they are subject to specific legal obligations and restrictions reasonably calculated to serve the public interest." "Although the broadcasting industry may have a statutory or even a constitutional duty to operate in the public interest, similar legal obligations might be imposed upon non-broadcast media.

The "limited number of frequencies" justification for government regulation of the airwaves is arguably applicable to the newspaper industry. Although the number of broadcasting stations is increasing,' 173 the number of competing daily newspapers is declining." American journalist J. Russel Wiggins finds the trend in the newspaper industry “disquieting,” since “[t]his noncompetitive situation puts it within the power of a monopoly newspaper to suppress facts at its discretion...." ." 175 Fear of monopolization and operation inconsistent with the public interest were strong factors in the decision to bring the broadcast industry within government supervision. The Supreme Court noted in FCC v. Pottsville Broadcasting Company that "Congress moved under the spur of a widespread fear that in the absence of governmental control the public interest might be subordinated to monopolistic domination in the broadcasting field. To avoid this Congress provided for a system of permits and licenses." 176

As fears concerning monopolistic newspaper practices have increased with the declining number of competing dailies, any threat of broadcast station monopolies has probably been reduced by the rapid proliferation of new stations. Professor Turner observed in 1968:

Although a severe bottleneck to entry in local markets hasresulted from the physical limitations of the usable frequency spectrum, that factor should rapidly diminish in significance with the growth of cable and UHF television and in any event it has not prevented major population areas from attracting several-today as many as nine different over-the-air television stations alone. Moreover, coming developments in satellite transmission may further open up local television areas to multiple entry and diversity."

177

170 See Note. Mortality and the Broadenst Media: A Constitutional Analysis of FCC Regulatory Standards, 84 Härv. L. Rev. 664, 676 nn. 60-62 (1971),

171 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969).

172 116 Cong. Rec. $18726 (daily ed. Nov. 23, 1970) (remarks of Senator Pastore). Of. 1970 Hearings 9 (statement of D. Burch), 77 (statement of E. Erlick).

173 In 1960 the FCC reported a total of 4.218 commercial broadcast stations (of which 530 were television stations) on the air in the United States, Puerto Rico, Guam and the Virgin Islands. By 1969 the total figure had increased to 5.309 (of which 673 were television). U.S. Bureau of the Census, Dep't of Commerce. Pocket Data Book USA 1971 at 296 (W. Lerner ed. 1971). Cf. Jaffe. Program Control, 14 Vill. L. Rev. 619, 620 (1969). See generally Note, The Listener's Right to Hear in Broadcasting, 22 Stan. L. Rev. 863 (1970). Figures showing the ownership of stations would be more helpful to indicate potential monopolistic practices in idea dissemination.

174 Barron, Access to the Press-A New First Amendment Right, 80 Harv. L. Rev. 1641 (1967). See J. Wiggins. Freedom of Secrecy 178 (rev. ed. 1964): "The number of daily newspapers in the United States declined from 2,202 in 1909-10 to 1.760 in 1953-54. The number of citis with competing daily newspapers declined from 689 to only 87. The number of cities with non-competing dailies increased from 518 to 1,361. Eighteen states are now without locally competing daily newspapers."

175 J. Wiggins, supra note 174, Wiggins cautions that the danger of suppressing varied viewpoints as a result of the rise of the monopoly in newspapers can be exaggerated since newspapers compete not only with each other, but with other media as well. Id. at 177-78. See Jaffe, Program Control, supra note 173, at 620: Note, Mortality and the Broadenst Media, supra note 170, at 677 n. 68. For a less encouraging view concerning the diversity fostered by multiple mass media outlets, see M. McLuhan. Understanding Media 173, 204 (1964). See generally E. Efron, The News Twisters (1971); R. MacNeil, The People Machine, supra note 16.

178 309 U.S. 134, 137 (1940). In Pottsville, the Supreme Court upheld the power of the FCC to employ broad public interest criteria in reviewing station performance because of "complicated factors" present in broadcasting.

177 Turner, The Role of Antitrust Policy in the Communications Industry, 13 Antitrust Bull. 873., 874 (1968). See Note, Mortality and the Broadcast Media, supra note 170, at 678