The Law

At first-in American elections between 1920 and 1926-there was no regulation of political broadcasting, and some stations did not allow candidates on the air with political appeals. As Congress moved to pass the Radio Act of 1927, the initial bill contained no provisions concerning political candidates' use of radio. Only a Senate amendment that grew out of concern that radio might exert too much control over the political process led to the inclusion of Section 18, which required that

If 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, and the [Federal Radio Commission shall make rules and regulations to carry this provision into effect.

The provision did not require that political candidates be granted access to airtime, for the section continued, "No obligation is imposed upon any licensee to allow the use of its station by any such candidate." Section 18, without change, became Section 315 of the Communications Act of 1934.

A remarkably small number of amendments have only slightly altered the meaning of these words in the intervening years. The first, in 1952, added a provision prohibiting broadcasters from charging political candidates higher rates than those charged other advertisers for "comparable use." A more fundamental amendment added in 1959 exempted from Section 315 requirements any appearance by a candidate in a "bona fide" (meaning controlled by the broadcaster, not the candidate) newscast, news interview, news documentary, or on-the-spot news coverage if the appearance of the candidate was incidental to the program. Finally, in 1971 Congress narrowed the ability of broadcasters to avoid political advertisements or broadcasts when it modified another section of the act (Section 312[al[7]) to state that not allowing candidates for federal office (candidates for president, vice president, or for seats in the House and Senate) access to the air might be grounds for revocation of a station's license.

Stations could still avoid dealing with candidates for state and local offices. For decades, broadcasters were caught in a legal bind-Section 3 1 5 specifically enjoined them from censoring any remarks made by political candidates, yet stations could still be held liable for any defamatory comments candidates might make. The Supreme Court finally removed this danger by holding in the 1959 WDAY-TV decision that, given the no-censorship requirement in the law, stations could not be held responsible for whatever candidates might say.

FCC Rules and Regulations

As required by changing circumstances, over the years the FCC has defined and refined what the relatively few words in Section 315 are to mean in practice. Such definition has focused on phrases such as "legally qualified candidate"; "equal opportunities"; "use" of a station; how to determine rates charged; and, after 1959, which programs were entirely exempt from the provisions. Indeed, the rules vary for primary and general elections as to who is covered and for what period of time (requiring, for example, an even more stringent "lowest unit charge" price requirement for candidates' advertising 45 days before a primary and 60 days before a general election). Stations must maintain detailed and up-to-date records of all requests for political time and of all actual sales and/or uses of airtime for a period of two years.

These many complications grew steadily more involved after 1960 with an accumulation of numerous FCC decisions and court cases; the confusion finally led to publication by both the FCC and the National Association of Broadcasters of regularly revised booklet-length "primers" or "catechisms," usually in question-and-answer format, of the latest rule interpretations. Despite their complexity-or perhaps because of it-broadcasters, candidates, and the public refer to these rules by the shorthand term of equal time, even though far more is involved than merely an equitable provision of time.

As but one example-prior to 1960, debates between or among candidates counted as a "use" requiring Section 315 treatment under FCC rules. For the 1960 election, Congress temporarily suspended Section 315 (leading to the so-called Great Debates between Kennedy and Nixon, which were carried on both radio and television). Effective in 1975, the FCC allowed debates to occur without triggering Section 315 requirements if the debates were sponsored by a disinterested third party-initially, the League of Women Voters. Only in 1983 were broadcasters themselves allowed to sponsor debates as one of the "bona fide" news exemptions in Section 315. National and local debates have increasingly become a staple of American elections since then. The broadcast industry has attempted repeatedly to have the "equal time" requirements dropped-at least for radio (because of the large number of stations) if not for television as well. Indeed, in the 1980s, a deregulation-minded FCC made the same recommendation to Congress. But all such efforts have generally fallen on deaf ears, given that those who must act to make the change-representatives and senators-are the very people who depend on the access the law provides.