Reply #17: clarification of the history of section 315 as applied to debates [View All]

Section 315 has exempted news events from the equal opportunities rules since 1959. In 1975 (during the Carter administration), the FCC issued a declaratory ruling finding that debates were "bona fide" news events provided that the decision to cover the event was based on the broadcasters good faith news judgment and not to advance the candidacy of a particular candidate. See Aspen Institute, 55 FCC 2d 697 (1975), aff'd sub nom.,
Chisholm v. FCC, 538 F.2d 349 (D.C. Cir. 1976) cert. denied, 429 U.S. 890 (1976.

Initially, the exemption from 315 for debates was limited to debates sponsored by parties other than a broadcaster. However, in 1983 (during the reagan administration) the FCC -- at the request of Henry Geller, a public interest lawyer -- concluded that such a limitation was inconsistent with Congress' intent to exempt bona fide news events from being covered and raised serious First Amendment issues. In other words, the FCC held that coverage of a debate was coverage of a bona fide news event no matter who sponsored the debate, so long as it wasn't designed to promote the candidacy of a particular candidate. The decision was upheld by the court of appeals. See Henry Geller, 95 FCC 2d 1236, aff'd sub nom. League of Women Voters v FCC, 731 F.2d 955 (DC Cir 1983).
This decision, it should be noted, is consistent with the fact that Congress in 1959 exempted from the equal opps rule regularly scheduled new interview appearances by a candidate -- meaning that an appearance by one candidate on Meet the Press doesn't create any equal opps rights in any other candidates,notwithstanding that the broadcaster is deciding who gets to appear on the interview program.

Personally, I'm not a big fan of the 1983 decision, although I tend to agree that it would be hard to sustain a different decision under the First Amendment. In any event, keep in mind that even before the reagan-era FCC expanded the debate exemption, a broadcaster wasn't barred from hosting a debate with all, or even less than all of the candidates. Indeed, if all candidates participated, the requirements of section 315 -- equal opportunities -- were met. If the debate excluded a candidate or candidates, the excluded candidates had no right to be a part ofthe debate. They merely had a right to a period of free time on the station equivalent to what the other candidates were given.