[Federal Register Volume 59, Number 60 (Tuesday, March 29, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7333]
[[Page Unknown]]
[Federal Register: March 29, 1994]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 73 and 76
[MM Docket No. 91-168; FCC 94-1]
Codification of Political Programming Policies
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: The Commission has amended its rules to return to the
original, broader definition of the term ``use'' for purposes of the
political broadcasting rules that was in effect prior to the adoption
of the Report and Order in this proceeding. The Commission concluded
that the policy justifications that it had given to support its
redefinition may not have been adequate in the circumstances. The
intended effect of this amendment is to return to the previous
definition until the Commission has had an opportunity to give further
consideration to this issue.
EFFECTIVE DATE: April 28, 1994.
FOR FURTHER INFORMATION CONTACT:
Milton O. Gross or Robert L. Baker, Mass Media Bureau at (202) 632-
7586.
SUPPLEMENTARY INFORMATION:
Memorandum Opinion and Order
Adopted: January 3, 1994.
Released: January 27, 1994.
By the Commission: Chairman Hundt Abstaining From Voting.
1. This proceeding was begun in 1991 to revise and clarify our
rules governing political programming. A Report and Order was released
in 1991, and petitions for reconsideration were addressed in a 1992
Memorandum Opinion and Order.\1\ A petition for judicial review of that
proceeding is currently pending in the United States Court of Appeals
for the Ninth Circuit.\2\ The petitioners in that case have limited
their challenge to the Report and Order's modification of the
interpretation of the term ``use'' under section 315 of the
Communications Act. For the reasons set forth below, we have decided to
return to the interpretation of ``use'' employed prior to the Report
and Order.
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\1\Report and Order, 7 FCC Rcd 678 (1991), 57 FR 189, reconsid.
granted in part and denied in part, 7 FCC Rcd 4611 (1992), 57 FR
27705. A petition for further reconsideration is currently pending.
We also modified, in a separate order, certain of the rules relating
to sponsorship identification in response to reconsideration
petitions. See Memorandum Opinion and Order, 7 FCC Rcd 1616 (1992),
57 FR 5156. A petition for further reconsideration of that action is
also presently pending. As a result of the pendency of those further
reconsideration petitions, we continue to have jurisdiction of this
matter. See TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir.
1989).
\2\Westen v. FCC, No. 93-70041 (9th Cir., filed Jan. 22, 1993).
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2. Prior to the Report and Order in this proceeding, the Commission
defined ``use'' by a ``legally qualified candidate'' under section
315(a) as any ``positive'' appearance of a candidate by voice or
picture. We had held that a disparaging use of a candidate's voice or
picture, for example by a candidate's opponents, would not be
considered a ``use,'' but that any positive appearance, for example as
an endorsement, even if unauthorized by the candidate and deemed
harmful by him because of the nature of the endorsers, had been
considered a ``use'' that would trigger the equal opportunity
provision. See NPRM, 6 FCC Rcd 5707, 5717 22-23, 56 FR 30526; Report
& Order, 7 FCC Rcd at 684 30, 57 FR 195. We sought comment on whether
we should continue this broad interpretation of a ``use'' for purposes
of section 315.
3. Commenters suggested that the Commission modify the definition
of ``use'' to include only programs and announcements that were paid
for or authorized by the candidate or his campaign committee. In the
Report and Order we adopted this suggestion and narrowed our definition
of ``use'' under section 315 to include only non-exempt candidate
appearances that are ``controlled, approved, or sponsored by the
candidate (or the candidate's authorized committee) after the candidate
becomes legally qualified.'' 7 FCC Rcd at 685 33, 57 FR 196. We
concluded that both the language of the statute and the legislative
history supported this narrower interpretation. Id. In addition, we
believe that this narrower definition would simplify administration of
section 315 for broadcasters and would give candidates greater control
of their campaign. Id. at 37.
4. Tracy Westen and the National Association for Better
Broadcasting have sought judicial review of our redefinition of the
term ``use.'' They have argued that the Commission has consistently
interpreted ``use'' broadly to include ``any appearance of a candidate,
by voice or picture, that is identifiable to the audience'' whether or
not the ``use'' is authorized by the candidate. They claim that because
``Congress ratified this definition of `use' in a 1959 amendment'' to
section 315(a), the Commission is not free to modify it in any way.
They also have argued that our modified interpretation frustrates
Congress' purpose in adopting section 315(a) because it permits
broadcasters to ``afford one candidate valuable public exposure without
triggering any obligation to grant opponents the same opportunity.''
5. We continue to find no basis for petitioners' statutory
arguments. The 1959 news exemptions, far from ratifying the
Commission's existing definition of ``use,'' were enacted solely to
correct what Congress believed was an overly-broad interpretation of
that term.\3\ Further, the Commission's ``broad'' interpretation of
``use'' was itself a departure from prior interpretations.\4\
Petitioners also do not recognize longstanding exceptions to the
broader interpretation of ``use,'' such as the ``fleeting use''
provision\5\ and our interpretation that appearances in a disparaging
manner are not ``uses.'' It is, in addition, well established that the
Commission has especially broad authority to interpret and apply the
provisions of section 315.\6\
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\3\See S. Rep. No. 562, 86th Cong., 1st Sess. 5 (1959). Our rule
change also expressly did not affect application of the equal
opportunities requirement to news programs codified in the 1959
amendment. See Report & Order, 7 FCC Rcd at 685 n.51, 57 FR 196.
\4\Congress stated in 1959 that the Commission's ``broad''
interpretation of Section 315 in CBS, Inc. (Lar Daly), 26 F.C.C. 715
(1959) had overturned three decades of applying Section 315 and its
predecessor in the Radio Act narrowly so as not to include candidate
appearances where ``the candidate had in no way directly or
indirectly initiated either the filming or presentation of the
event. . . .'' S. Rep. No. 562 at 5, citing Alan H. Blondy, 40
F.C.C. 284 (1957).
\5\See The Law of Political Broadcasting and Cablecasting, 100
F.C.C.2d 1476, 1492 35 (1984).
\6\Chisholm v. FCC, 538 F.2d 349, 357 (DC Cir.), cert. denied,
429 U.S. 890 (1976).
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6. Nevertheless, upon further consideration, we now believe that
the two policy justifications that supported our redefinition may not
have been adequate in the circumstances. We indicated that narrowing
the definition of ``use'' would simplify administration of Section 315
for broadcasters. See Report & Order, 7 FCC Rcd at 686 37, 57 FR 197.
We also indicated that we believed a narrowed definition of ``use''
would give candidates ``greater control of their campaigns by
attributing to them only those messages or associations they authorize
or approve.'' Id. We continue to believe that these reasons are valid.
However, in light of our obligation to explain fully the basis for
changing a policy or statutory interpretation,\7\ particularly one as
established as our prior interpretation of ``use,'' we now believe that
the Commission should provide a more comprehensive examination of this
issue. Typically, when the Commission has reevaluated its
interpretation of Section 315, it has done so in a comprehensive
manner. For example, in Aspen Institute, the Commission reversed its
statutory interpretation of ten years' duration in order to permit a
news exemption to the ``use'' definition for candidate debates.\8\
Similarly, the Commission has engaged in more extensive analysis when
it interpreted the ``use'' exemptions to include delayed broadcasts of
news events and licensee-sponsored debates.\9\ Until we have had an
opportunity to give further consideration to this issue, and to seek
further comment, we believe that the better course is to return to our
previous interpretation.
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\7\See, e.g., Greater Boston Television Corp. v. FCC, 444 F.2d
841, 852 (DC Cir. 1970), cert. denied, 403 U.S. 923 (1971).
\8\Aspen Institute, 55 F.C.C.2d 697 (1975), aff'd, Chisholm v.
FCC, 538 F.2d 349 (DC Cir.), cert. denied, 429 U.S. 890 (1976).
\9\Delaware Broadcasting Co., 60 F.C.C.2d 1030 (1976), aff'd,
Office of Communication of the United Church of Christ v. FCC, 590
F.2d 1063 (DC Cir. 1978); Henry Geller, 95 F.C.C.2d 1236 (1983),
aff'd, League of Women Voters Educ. Fund v. FCC, 731 F.2d 995 (DC
Cir. 1984).
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7. Accordingly, it is ordered that pursuant to authority contained
in sections 4(i), 303(r) and 315 of the Communications Act, 47 U.S.C.
154(i), 303(r), 315, the Commission's rules are amended as set forth
below, effective thirty days after publication in the Federal Register.
8. Further information in this proceeding may be obtained by
contacting Milton O. Gross or Robert L. Baker, Mass Media Bureau at
(202) 632-7586.
List of Subjects
47 CFR Part 73
Radio broadcasting, Television broadcasting, Political candidates.
47 CFR Part 76
Political candidates.
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Title 47 CFR parts 73 and 76 are amended as follows:
PART 73--RADIO BROADCAST SERVICES
1. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 303.
2. Section 73.1941(b) is revised to read as follows:
Sec. 73.1941 Equal opportunities.
* * * * *
(b) Uses. As used in this section and Sec. 73.1942, the term
``use'' means a candidate appearance (including by voice or picture)
that is not exempt under paragraphs 73.1941 (a)(1) through (a)(4) of
this section.
* * * * *
PART 76--CABLE TELEVISION SERVICE
3. The authority citation for part 76 continues to read as follows:
Authority: Secs. 2, 3, 4, 301, 303, 307, 308, 309, 48 Stat., as
amended, 1064, 1065, 1066, 1081, 1082, 1083, 1084, 1085; 47 U.S.C.
152, 153, 154, 301, 303, 307, 308, 309.
4. Section 76.205(b) is revised to read as follows:
Sec. 76.205 Origination cablecasts by legally qualified candidates for
public office; equal opportunities.
* * * * *
(b) Uses. As used in this section and Sec. 76.206, the term ``use''
means a candidate appearance (including by voice or picture) that is
not exempt under paragraphs 76.205 (a)(1) through (a)(4) of this
section.
* * * * *
[FR Doc. 94-7333 Filed 3-28-94; 8:45 am]
BILLING CODE 6712-01-M
