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Legal Issues

Equal Time, Fairness, Personal Attack, Political Editorializing and Reasonable Access Doctrines Are Not Applicable to PEG Access Channels

For years Congress and the Federal Communications Commission (FCC) have applied various content balancing doctrines to over-the-air broadcast stations and cable systems. These include the:

  • Equal time doctrine, which provides that if a station allows a legally qualified candidate for public office to use its broadcast frequencies, either on a free or paid basis, it must provide all other candidates in that same race with equal opportunities. (47 U.S.C. §315.)
  • Equal opportunity doctrine, which requires that if a broadcaster or cablecaster allows a candidate to use its facilities, it shall provide equal opportunities to all other candidates for that office to use such facilities. (47 C.F.R. §73.1941 [broadcast]; 47 C.F.R. §76.205 [cable].)
  • Fairness doctrine, which until 1987 required a station to cover all significant views on issues of controversy and public importance, has since been repealed by the FCC.
  • Personal attack doctrine, which provides that if a station broadcasts an attack on a named person during the discussion of a controversial issue of public importance, it must provide that person with an opportunity to respond under certain circumstances. (47 C.F.R. §76.209.)
  • Political editorializing rule, which provides that if a station editorializes against a candidate for political office, it must provide that candidate with a reasonable opportunity to respond. (47 C.F.R. §76.209.)
  • Reasonable access doctrine, which requires broadcast stations to provide legally qualified candidates for federal (but not state) office with reasonable opportunities to acquire free or paid time to present their views. (47 U.S.C. §312[a][7].)

The FCC has concluded, however, that these political content doctrines do not apply to PEG access programming. Only programming originated by or controlled by the cable TV operator is subject to these doctrines. Since the cable operator cannot control PEG access channels or their programming, they are not subject to the FCC's political doctrines. (See, e.g., In re Zawicki, 60 R.R.2d 1657 [1987].)

This does not mean that government or educational access channels can be arbitrary in their election coverage. The First Amendment still requires government and educational access channels to be reasonable in their content decisions (see public forum discussion). Candidates should not be selected for program coverage in order to advance a particular candidacy.

Public access channels are somewhat different, because they generally operate without overall editorial policies. They have an announced obligation to be open to all those who want to produce and distribute programming over them. As such, public access channels are already open to all comers. Discriminatory programming policies would be inconsistent with federal concepts of public access.

Bottom line: Federal content rules for broadcast stations, including the equal time, fairness, personal attack, editorializing and reasonable access doctrines, do not apply to PEG access programming. The concepts of equality and fairness in these doctrines, however, are useful guidelines in fashioning programming concepts for PEG access channels.