# Petition for Writ of Certiorari — Branch v. Federal Communications Commission

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 959

## Text

(i) Supreme Court, U.S,

OCT 16 B87
| ® goserH F. SPANIOL, JR.
i CLERK
No. i
IN THE

Sipreme Court of the Wuited States

OCTOBER TERM, 1987

WILLIAM H. BRANCH,
Petitioner,

Vv.
FEDERAL COMMUNICATIONS COMMISSION AND

THE UNITED STATES OF AMERICA,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Robert L. Corn*

Marvin J. Diamond

Hogan & Hartson

(a partnership including
professional corporations)

555 13th Street N.W.

Washington, D.C. 20004

(202) 637-8652

Counsel for Petitioner

*Counsel of Record

QUESTIONS PRESENTED

1. Did the court below err in holding that Section 315
of the Communications Act does not, by its plain language,
exempt from equal opportunity requirements appearances by
newscaster candidates on bona fide newscasts contrary to the
holding of the Fifth Circuit in Brigham v. FCC, 276 F.2d 828
(Sth Cir. 1960)?

2. Is Section 315 of the Communications Act
constitutional despite recent findings of the Federal
Communications Commission in Syracuse Peace Council, 2
FCC Rcd 5043 (1987) and General Fairness Doctrine
Obligations of Broadcast Licensees, 102 F.C.C.2d 143 (1985)
that broadcast frequencies are abundant and content controls
chill speech?

(i)

PARTIES TO THE PROCEEDINGS

Petitioner William H. Branch ("Branch") is a newscaster
for television station KOVR in Sacramento, California.

Respondents below are the Federal Communications
Commission (“Commission”) and the United States of
America. The American Legal Foundation, Media Access
Project, Telecommunications Research and Action Center,
Media Access Project and Consumer Federation of America
participated as Intervenors.

TABLE OF CONTENTS

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tie anidncewetahtibesess
315(a) are of particular relevance here. The first sen-
tence sets forth the “equal opportunities” requirement:

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 oppor-
tunities to all other such candidates for that office
in the use of such broadcasting station: Provided,
That such licensee shall have no power of censorship
over the materia] broadcast under the provisions of
this section.

Id. § 815(a). The third sentence then provides exemp-
tions from the strictures mandated by the first sentence:
Appearance by a legally qualified candidate on any—
(1) bona fide newscast,
(2) bona fide news interview,

(3) bona fide news documentary (if the ap-
pearance of the candidate is incidental to the
presentation of the subject or subjects covered
by the news documentary), or

(4) on-the-spot coverage of bona fide news
events (including but not limited to political con-
ventions and activities incidental thereto),

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SS

shall not be deemed to be use of a broadcasting sta-
tion within the meaning of this subsection.

Id.

Section 315(a) is thus crystal clear: bona fide news-
casts are exempt from its “equal opportunities” require-
ment. Since in this case there is no question but that
Mr. Branch in reporting his three-minute news segments
appears on a bona fide newscast, his appearance would
not be deemed a use of a broadcasting station under a
straightforward reading of section 315(a).

As the court acknowledges, the Fifth Circuit recog-
nized the force of this common-sense interpretation in
Brigham v. FCC, 276 F.2d 828 (5th Cir. 1960). In
Brigham, the court upheld the Commission’s determina-
tion (later repudiated, see Use of Station by Newscaster
Candidate, 40 F.C.C. 433 (1965) ) that a weathercaster’s
appearance fell within the “bona fide newscast” exemp-
tion of section 315(a) (1). The Fifth Circuit stated with
admirable brevity:

There is not the slightest hint in the undisputed
facts that this weathercaster’s appearance involved
anything but a bona fide effort to present the news.
. . . [H]is employment is not something arising out
of the election campaign but, rather, is a “regular
job.” Certainly the facts do not indicate any favor-
itism on the part of the station licensee or intent to
discriminate among candidates.

Brigham, 276 F.2d at 830.

Eschewing Brigham’s simplicity, the court examines
in detail the legislative history of the 1959 amendments
that created the section 315(a) exemptions. Cf. Burling-
ton Northern Railroad Co. v. Oklahoma Tax Commis-
sion, 107 S. Ct. 1855, 1859-60 (1987). After a careful
evaluation of the legislative materials, the court quite
rightly concludes that Congress, in enacting the exemp-

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tions, intended to protect broadcast stations’ discretion to
air newsworthy events. See Panel Op. at 14.

From that unexceptionable premise, however, the court
derives the general principle that Congress intended the
exemption to extend only to “coverage of the candidate
that is presented to the public as news.” Panel Op. at 15.
But there is a difficulty with this analysis. Through its
finely-honed construction of the third sentence of the
statute, the court moves rather far away from the key
language of the first sentence of section 315(a), namely
“permit” and “use.” When a newscaster reports the
news, there is no “use” or “permitting” of a use in the
ordinary sense of those words. Employers do not “per-
mit” their employees to “use” broadcast facilities. Em-
ployees are hired to do their jobs. Once on the payroll,
they have to carry on their duties; there is no “permis-
sion” being granted in the everyday sense of the word.
The thrust of the first sentence, in short, is to regulate
broadcaster favoritism and candidate-initiated appear-
ances, which is what Brigham held.

For these reasons, a more natural statutory interpre-
tation would exempt newscast reporters who are just
doing their jobs from the “equal opportunities” require-
ment of section 315(a). But, unfortunately for Mr.
Branch, the most natural reading is not the only reading
that will pass muster under governing principles of stat-
utory construction. What is more, as the cuvurt faithfully
recounts, the legislative history contains suggestions that
Congress adopted the 1959 amendments in order to re-
store the understanding of the law that had prevailed
prior to the Commission’s ill-fated Lar Daly decision.
See id. at 12-13 & n.7. Since that pre-Lar Daly body of
law included the principle that a newscaster’s appear-
ance was indeed a “use” within section 315(a), see 23
Fed. Reg. 7817, 7818 (1958), it is not unfair to conclude
that the legislative history adds an additional dash of

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uncertainty in the search for Congress’ intent. That
Congressional intent is ambiguous is, of course, quite a
different matter than concluding, as the court apparently
does, that Congress clearly intended to exclude news-
casters from the exemptions.

It is thus the ambiguity of the Legislature’s intent,
not the supposed crystalline clarity of the statute (and
legislative history), that in my view carries the day for
the Commission. Under Chevron principles, courts are,
of course, bound to defer to an agency’s reasonable inter-
pretation of its governing statute if Congress’ intent is
unclear. Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837,
842-44 (1984); cf. INS v. Cardoza-Fonseca, 107 S. Ct.
1207, 1221-22 (1982). In light of the two permissible
readings of the statute and the support that the Com-
mission’s interpretation enjoys in the legislative history, ,
the court correctly holds that the Commission’s “news-
caster candidacy” rule passes muster under Chevron. At
the same time, however, the Commission is, in my view,
by no means bound to its current interpretation, which
as I see it embodies the less natural and indeed less
sensible reading of what Congress passed.

31a

APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
NO. 86-1256
SEPTEMBER TERM, 1986

William H. Branch,
Petitioner

V. aie

Federal Communications Commission ttle
United States of America,
Respondents

American Legal Foundation,
Consumer Federation of America, et al.,
Intervenors

PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL
COMMUNICATIONS COMMISSION

Before: BORK and STARR, Circuit Judges,
and McGowan, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the petition for review of
an order of the Federal Communications Commission, and was
argued by counsel. On consideration thereof, it is

ORDERED and ADJUDGED, by this Court, that the petition
for review is hereby denied, in accordance with the Opinion for
the Court filed herein this date.

Per Curiam

For The Court
George A. Fisher
.. Clerk

Date: July 21, 1987
Opinion for the Court filed by Circuit Judge Bork.
Concurring opinion filed by Circuit Judge Starr.

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APPENDIX C

Before the
Federal Communications Commission

Washington, D.C. 20554

In re Request by )
William H. Branch
for
Declaratory Ruling
M mn Onini 1 Ord

Adopted: March 26, 1986;
Released: March 31, 1986;

By the Commission:

1. The Commission has before it a petition for

reconsideration of its ruling of August 12, 1985,! in whichewe
denied petitioner's request for a declaratory ruling that
appearances by legally qualifed candidates for public office in
their capacity as newscaSters would no longer be subject to the
“equal opportunities" required by Section 315 of the
Communications Act of 1934, as amended.

2. In his petition, Mr. Branch reiterates his general challenge to
Section 315's constitutionality and, more particularly,.as applied
by the Commission to newscaster-candidate appearances. Mr.
Branch also contends that in denying his request the
Commission has continued to misinterpret the legislative
history of the news exemptions to Section 315 which, in his
view, does not support application of Section 315 to newscaster

_ 1101 FCC 2d 901. On September 23, 1985, the American Legal
Foundation filed an opposition, to which Mr. Branch replied on September
30.

5

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candidates during otherwise exempt news programming.
Lastly, Mr. Branch continues to argue that his appearances will
be limited to “nonpolitical"” news material to avoid even that
possibility that his campaign would be furthered. Mr. Branch
adds that he exercises no control over the editorial content of
the news he reports.

3. Petitioner has provided no basis for reconsideration of
our decision. The legislative history of the Section 315 news
exemptions indicates that Congress enacted them to enhance the
unfettered news coverage of the political arena during campaign
periods. In order to minimize any unfair advantage which
could result from the amendment, gress indicated that the
exemptions would not apply where candidates initiated the
coverage themselves or were in control of the production or
format of the news. Despite Mr. Branch's argument that he
does not editorially control the material, as a newscaster he is a
part of the news production and delivery team. Furthermore,
Congress believed that assuring relative equality of treatment
for candidates outweighed the potential for intrusion upon
journalistic discretion. Court precedent and previous
Commission decisions support this interpretation of Section
315, including its applicability to candidate appearances
irrespective of whether they are "political" or "nonpolitical" in
nature.2 The Commission correctly deferred any ultimate
disposition of Mr. Branch's general constitutional challenge to
Cgngress and the courts, the traditional forums for such
determinations.

4. In view of the above, pursuant to Section 1.106 of the
Commission's rules, the petition for reconsideration IS
DENIED.

2Pat Paulsen, 33 FCC 3d FCC 2d 297 (B/c Bur. 1972), review denied,
33 FCC 2d 835 (1972), aff'd sub nom. Paulsen v. FCC, 491 F.2d 887
(9th Cir. 1974). See also Use of Station by Newscaster Candidate for
Public Office, 40 FCC 433 (1965), where the Commission by public
notice first refused to exempt newscaster-candidate appearances.

APPENDIX D
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In re Request by
William H. Branch

for

ee ee

Declaratory Ruling
MEMORANDUM OPINION AND ORDER
Adopted : August 5, 1985; Released: August 12, 1985

BY THE COMMISSION: COMMISSIONERS RIVERA AND
PATRICK CONCURRING IN THE RESULT.

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1. The Commission has before it a request for a declaratory
ruling involving Section 315(a) of the Communications Act of

1934, as amended, filed by William H. Branch.!
‘ REQUEST

2. Branch states that he is a news reporter at television
station KOVR, Stockton, California, and that he had intended
to run in the November 1984 Loomis, California, town council
election. Had Branch become a legally qualified candidate for
public office during the general election and ontinued his on-
the-air appearances, pursuant to the Commission's
interpretation of Section 315, KOVR would have been required
to provide "equal opportunities" to his opponents. KOVR
informed Branch that it would not provide such time to his
opponents. Instead, he would have been required to take a
leave of absence for the duration of the campaign, with no

10n August 10, 1984, Branch filed a request for an expedited
declaratory ruling with respect to the issues raised herein. Shortly
thereafter, he informed the Commission that an expedited ruling would not
be necessary since he no longer intended to run as a candidate for the
Loomis, California, town council. On August 30, 1984, a memorandum
in support of the petition was filed by Michael A. Hackard on behalf of
Branch. By letter, which the Commission received September 17, 1984,
Branch requesicd that the Commission delay a decision in this matter until
after the November 6 election.

On October 26, 1984, the National Association of Broadcasters
(NAB) filed a statement in partial support of Branch's request, asking that
the Commission seck public comment on this matter. Because the
legislative, judicial, and Commission precedents are clear with respect to
the issues raised herein, we do not feel public comment is necessary.

On October 29, 1984, the American Legal Foundation (ALF) filed
an opposition to the Branch petition. The gravamen of ALF's arguments
is that Branch's request would violate the basic congressional objective in
enacting Section 315(a) of the Communications Act -- that is, to ensure
that all candidates for public office are treated similarly in their use of
broadcast facilities.

36a

assurance of being rehired after the election. Branch requests
that the Commission declare the "equal opportunities" provision
of Section 315 to be unconstitutional. He also argues that the
Commission's interpretation of Section 315 violates first
amendment free speech objectives and is overbroad in its
application. Branch asserts that the legislative history of the
1959 amendments clearly indicates that the Commission should
modify its interpretation of Section 315 and exempt the
appearances of a newscaster/candidate from the “equal
opportunities" provision of Section 315.

DISCUSSION
A. CASE AND LEGISLATIVE HISTORY

3. Section 315(a) requires that if broadcasters permit a

legally qualified candidate to "use"? thei facilities, they must
afford equal opportunities to the candidate's opponents. The
purpose of Section 315, originally Section 18 of the Radio Act
of 1927 (44 Stat 1162), is to assure equality of treatment to
candidates for public office. 67 Cong. Rec. 12502 (1926); 105
Cong. Rec. 14439, 1445] (1959). In 1959, the Commission held
that Section 315 required "equal opportunities” to be afforded to
the opponents of those Chicago mayoral candidates who
appeared on television newscasts. Telegram to CBS, Inc. (Lar
Daly), 18 RR 238 (1959), recon. denied, 26 FCC 715 (1959).
Congress reacted to’ that ruling by amending Section 315 to

2in general, any appearance by a legally qualified candidate on a
nonexempt program, by voice or picture, where the candidate's
participation is such that he will be identified by members of the viewing
or listening audience, constitutes, a "use." Law of Political Broadcasting
and Cablecasting, -- FCC 2d -- 1984); H. R. 92-65, 92d Cong., Ist Sess. 9
(1971).

37a

exempt four categories of news programming.> The purpose
of the amendement is set forth clearly in the Senate report,
which states:

If the present position of the Federal
Communications Commission with regard to
Section 315 remains unchanged, the Committee feels
that this would tend to dry up meaningful radio and
television coverage of political aor, [S. Rep.
No. 562, 86th Cong., Ist Sess. 10 (1959).]

The amendment created situations where broadcasters need not
provide absolute equality of treatment to candidates appearing
on exempt programs. In order to minimize any unfair
advantage which could result from the amendement, Congress
indicated that the exemptions would not apply where candidates
initiated the coverage themselves. While discussing the
proposed amendments on the Senate Floor, Senator Pastore
chairman of the subcommittee which drafted the amendments,
Stated:

3Section 315(a) of the Communications Act states in pertinent part:

Appearance by a legally qualified on any --

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is
incidental to the presentation of the subject or subjects covered by

the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not
limited to political conventions and activities incidental thereto),

shall not be deemed to be a use of a broadcasting station within the
meaning of this subsection.

38a

That is correct, provided he did not initiate the
newscast, provided he did nothing affirmatively to
advance his own candidacy -- in other words, if his
appearance was part of the information given to the
public as a newscast. [/d. at 14446 (emphasis
added).]

On the House side, Congressman Brown stated with regard to
a candidate's exempt appearance:

He cannot put on a program of his own to help his
own candidacy. Instead, it must be newsworthy,
but it must be instigated by the station or by the
news reporters that interview him. [105 Cong. Rec.
16225 (1959).]

In addition to specifying that candidates were not to initiate
exempt appearances, the legislative history of the 1959
amendments show that Congress did not intend that candidates
have control over the “format and production" of these
appearances. S.Rep. No. 562, 86th Cong. Ist Sess. ll (1959).
The Senate Report stated:

It should be noted that the programs that are being
exempted in this legislation have one thing in
common. They are generally news and
information-type programs designed to disseminate
information to the public and in almost every
instance the format and production of the program is
under the control of the broadcast station, or the
network in the case of a network program. [S.
Rep. No. 562, 86th Cong. Ist Sess. 1] (1959).]

The year after the news exemptions were enacted, the
Commission ruled that appearances on newscasts by a
weatherman who was a legally qualified candidate were not
subject to the "equal opportunities"provision of Section 315 by
virtue of their falling into one of the four exempt news
categories. KWTX Broadcasting Co., 40 FCC 304 (1960),
aff'd sub nom. Brigham v. FCC, 276 F.2d 828, 830 (Sth Cir.

39a

1960). Subsequently, the Commission recognized that this
decision was inconsistent with the legislative history of the 1959
amendments and ruled that a candidate's appearance "on a
news-type program in which he has participated in ‘the format
and production" would be subject to “equal opportunities."
Use of Station by Newscaster Candidate for Public Office, 40
FCC 433, 434 (1965) (hereinafter Newscaster Candidacy). See
S. Rep. No. 562, 86th Cong. Ist Sess. ll (1959). (See pars. 8
and 9, below, for further discussion).

B. CONSTITUTIONAL ARGUMENTS

4. While generally challenging the constitutionality of
Section 315, Branch's specific concern here is that the
Commission's interpretation of it, as applied to news

reporters/candidates, is unconstitutional.4 Branch alleges, citing
CBS Inc. v. FCC, 453 U.S. 367, 395 (1981) (quoting
Columbia Broadcasting System,-Inc. v. Democratic National
Commitee, 412 U.S. 94, 110 (1973), that the Commission's
exclusion of reporters from the news exemptions intereferes
with the ability of braodcasters to exercise their journalistic
freedoms and singles out news reporters/candidates "from

4 To the extent that Branch is urging that the Commission cease
enforcing Section 315 based on constitutional objections to it, we delcine
to take that action. The Commission has previously expressed its concern
to Congress about the continuing wisdom of Section 315 and other
content-control sections of the Communications Act and asked that
consideration be given to repealing these provisions. We recognize that
the constitutionality of a government agency's actions must always be
subject to review, and in light of speech and press related concerns
associated with its regulatory policies, the Commission has been
particularly mindful of the constitutional dimensions of its actions. This
is not, however, a proceeding in which there is a well developed record on
the constituuional balancing involved in evaluating Section 315. We are
mindful, moreover, that such constitutional decisions have "generally been
thought beyond the jurisdiction, of administrative agencies..." Oestereich
v. Selective Service Board, 393 U. S. 233, 242 (1968). Thus, we decline
to undertake a review here of previous determinations as to the
constitutionality of Section 315.

40a

exercising any form of speech over the airwaves." We find
these arguments to be without merit. Congress has determined
in enacting Section 315 that there is a governmental interest in
assuring that licensees afford equitable treatment to all
candidates running for a particular office, and that this interest

— justifies imposing certain limitations on broadcast speech.
McCarthy v. FCC, 390 F.2d 471, 473 (D.C. Cir. 1968).
Moreover, Section 315 does not discriminate against Branch
and those individuals similarly situtated because all candidates
for public office are treated in the same manner. As the
Supreme Court observed in United States Civil Service
Commission v. National Association of Letter Carriers, 413
U.S. 548 (1973): ;

The restrictions...are not aimed at particular parties,
groups, or points of view, but apply equally to all
partisan, activities of the type described. They
discriminate against no racial, ethnic, or religious
minorities: Nor do they seek to control political
opinions or beliefs, or to interfere with or influence
anyone's vote at the polls. [/d. at 564.]

5. Branch also alleges that the Commission's applicat:on of
Section 315 is unconstitutionally overbroad because it prohibits

nonpolitical appearances by candidates.) The Commission
and the court of appeals specifically addressed the issue of
"nonpolitical” uses where a legally qualified candidate asserted
that his appearances as an entertainer should be exempt from
the "equal opportunities" requirement of Section 315. Pat
Paulsen, 33 FCC 2d 297 (B/c Bur. 1972), review denied, 33
FCC 2d 835 (1972) aff'd sub nom. Paulsen v. FCC, 491 F.2d

887 (9th Cir. 1974). (hereinafter Paulsen). The Commission, ~

in denying the application for review, emphasized that Section
315 did not distinguish between political and nonpolitical
"uses." Furthermore, the Commission pointed out that under
the no-censorship provision of Section 315, a licensee could not
require a candidate to present only nonpolitical material during a
broadcast. See Farmers Educational and Cooperative Union of
America v. WDAY, Inc., 360 U.S. 525, 529 (1959). Further,
in upholding the Commission's Paulsen decision, the court
noted that a political and nonpolitical definitional approach to
"uses" could raise serious first amendment problems in terms
of enlarging the Commission's involvement in broadcasting
operations. Paulsen, 491 F.2d at 891. Accordingly, we believe
our interpretation is both consistent with the congressional
intent and is reasonably tailored to avoid first amendment
concerns.

SBranch asserts that under the Commission's current application of
Section 315 one of three situations would occur if he were to become a
legally qualified candidate for town council: (1) his employment duties
with KOVR would no longer include on-the-air appearances; or (2) he
would have to take a leave of absence without pay with no assurance of
being rehired after the election; or (3) KOVR would be required to provide
his legally qualified opponents with free air time for all his appearances as
a news reporter. Branch fails to mention, however, that it is possible for a
Station to seck a waiver or partial waiver from the opposing candidates of
their "equal opportunities” rights where on-the-air employees of a station
have become candidates for public office. See Senate Committee on
Commerce, 40 FCC 357 (1962); Licensee Obligations in Political
Campaigns, 14 FCC 2d 765 (1968). Such waivers would generally be
binding as long as they were’ given with full knowledge of the relevant
facts concerning the broadcasts. WBTW-TV, 5 FCC 2d 479 (1966).

42a

C. REQUEST TO MODIFY INTERPRETATION OF SECTION 315

6. Branch also requests that the Commission modify its
present interpretation of Section 315 and thus treat appearances
by news reporters/candidates as exempt. Branch contends that
the legislative history of the 1959 amendments Clearly indicates
that Congress did not intend for such appearances to be subject
to "equal opportunties". In this regard, Branch asserts that it is
"ironic" that in Newscaster Candidacy the Commission found
the appearance of an employee newscaster to be a "use," but at
the same time the Commission recognized the 1959 amendments
were designed to encourage news coverage. To this effect,
Branch cites Newscaster Candidacy where the Commission
stated:

Thus the main purpose of the amendment was to
allow greater freedom to the broadcaster in
reporting news to the public, that is to say, in
inserting appearances of candidates as part of the
contents of news programs. [Newscaster
Candidacy, 40 FCC at 434.]

7. In light of the previously cited legislative history, supra,
par. 3, it is clear that when a candidate appears on the air in the
capacity of a news reporter, that appearance is not the type
which Congress intended to exempt from the "equal
opportunties” provision of Section 315. A news reporter, by
the very nature of his position, may initiate and control his on-
the-air apppearances and is not the subject of the news
program. These are precisely the types of activities that
Congress identified as being inappropriate for a candidate to
participate in when performed in conjunction with his
appearance on an exempt program. Therefore, where a legally
qualified candidate for public office appears on a bona fide
newscast in the capacity of a news reporter, rather than as the
subject of the news, such appearances are subject to the “equal
opportunities" requirement of Section 315. Newscaster
Candidacy, supra; See generally, Henry Geller, 95 FCC 2d
1236 (1983), aff'd sub nom. League of Women Voters
Education Fund v. FCC, 731 F.2d 995 (D.C. Cir. 1984). To

43a

conclude otherwise, would be inconsistent with Congress’
basic objective for enacting Section 315 -- to prevent a legally
qualified candidate from gaining an advantage over an opponent
through favoritism or gaining access to a broadcast facility. S.

~ Rep. No. 562, 86th Cong., Ist Sess. 8-9 (1959); Paulsen v.

FCC, supra.. The Paulsen court agreed that the exposure
which a candidate receives from any television appearance may
render an invaluable advantage to his election campaign. In this
regard, the court stated:

A candidate who becomes well-known to the public
as a personable and popular individual through
"nonpolitical" appearances certainly holds an
advantage when he or she does formally discuss
political issues to the same public over the same
media. [Paulsen v. FCC, 491 F.2d at 891].

8. In view of the foregoing, and pursuant to Section 1.2 of
the Commission's rules and regulations, the request for
declaratory ruling IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. TRICARICO, SECRETARY

---

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