[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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