IN A recent Outlook article, Philip Stern described how television stations refused to carry the advertising spots of his independent political action committee, which sought to hold certain senators and congressmen accountable for their opposition to the nuclear-weapons freeze. Stern learned that the law permits the stations to do this, "for any reason, or no reason at all," and urged Congress to act promptly to make access available to independent political groups.
Stern is right about the station's complete practical control. In theory, a station doesn't have complete discretion. The FCC held in 1970 that a station can't reject views "on the basis of a policy that (it) never presented views with which (it) disagreed, or views of women, blacks or redheaded men." And it ruled against a licensee that refused spots based on its view that in a labor dispute, mention of a boycott would not be "constructive."
But in practice, there is no hope for the Sterns of this world seeking fast media reform. For under FCC policy, affirmed by the Supreme Court, a station can decline an ad, simply saying that it is poor programming or that the station does not regard the subject matter as suitable for a short presentation -- and there is no review of such editorial judgment.
Stern's call for prompt congressional action also runs into a practical roadblock: it has no chance in Congress. His cry is based on the underlying premise of the First Amendment -- promotion of robust, wide- open debate. Congress has no interest in that. It is made up exclusively of incumbents, all passionately interested in political survival. They want no part of NCPAC or Stern PAC, and regard such independent ommittees, at best, as nuisances and, all too often, as interfering with the orderly process of their reelection.
Even if Congress did not have such an adverse reaction, there would be no legislation. Broadcasters play "PAC-Man" with the best of lobbying groups. There will be no legislation in the 98th Congress passed over their opposition, and they would be vehemently opposed to Stern's effort to impose further obligations on them in the political broadcast field.
Well, am I then condemning Stern and company to the mercy of the broadcasters and to public-access cable channels, with their minuscule reach? No, for there is a simple solution to Stern's problem in 1984: run for president. If someone cares enough about some issue -- nuclear freeze, abortion, whatever -- and is concerned about a TV gag, there is only one self-help measure, and that is to run yourself or some associate for federal office.
Wait, you say, that's very difficult to do. Itis hard to qualify for FEC funding. But it is not so difficult to be a "legally qualified candidate," getting all the benefits of the Communications Act. Just get enough signatures to get on the ballot in the states in which you are interested. In 1976, Lester Maddox of the American Independent Party was a candidate on 19 states' ballots (and a write-in candidate in 10 more states) and Thomas J. Anderson of the American Party ran in 35 states, on the ballot in 18. In the 1960 election, there were C. Benton Coiner, Merritt Curtis, Lar Daly, Dr. R.L. Decker, Farrell Dobbs, Orval E. Faubus, Symon Gould, Eric Hass, Clennon King, Henry Krajemski, J. Bracken Lee, Whitney Harp Slocomb, William Lloyd Smith and Charles Sullivan. You don't recognize the names, but they were all rivals of Nixon and Kennedy for the presidency of the United States.
You don't have to show the FCC or the broadcasters that you are likely to win or garner a significant share of the vote in order to be regarded as a "legally qualified candidate." And it's perfectly legitimate to run simply to give exposure to your views.
All sorts of access goodies then come Stern's way.
Broadcasters must give him (or his candidate) reasonable access to use their facilities for spots or programs, and at the lowest rate charged by broadcasters. In 1971, Congress passed a law requiring this discount; and then, because they were worried that broadcasters might decline to sell such cheap time, inserted the reasonable access provision for candidates for federal office.
Furthermore, in a 1980 decision involving a Carter-Mondale request for time, the FCC dealt virtually all the cards to the candidates requesting time, and the Supreme Court, in an equally poorly reasoned opinion, affirmed. So it would be Stern -- not the candidates -- who would be in the catbird seat.
The broadcaster can't censor Stern (or his candidate). There would be no more hassles such as Stern described, for again Congress has carved out a unique requirement -- a broadcast by political candidates is the only programming withdrawn from licensee control.
And finally he is entitled to equal opportunities with all the time purchased by the Republican or Democratic candidate in 1984. If he has the money, this will insure that he gets great coverage. Indeed, if the station slips up and affords free time to the major-party candidates in what is called a non-exempt program (for example, an appearance on Johnny Carson or some other entertainment program), Stern gets free equal time.
In 1986, there is no presidential race, so Stern would have to run for lesser federal office -- congressman or senator. This is a comedown, but he will still get all the benefits.
It's true that this could result in scores of people running for federal office in order to get their views to the American people. But that's the system Congress devised.
It is also true that if every Tom, Dick and Harriet proceeds in this fashion, it will be a grand mess. But I confess that I would welcome the mess. For I believe that there is a clear need forrsubstantial legislative revision of the 1934 Communications Act, and no chance of getting it. Congress likes the present scheme for political broadcasting, and broadcasters have a veto over any revision involving their contributing more effectively to the public interest.
I also have concluded that there are only two ways around this legislative impasse. One is what I call "waiting for Thalidomide" -- for some scandal in the field of such dimensions that it forces Congress' hand. The last such occurrence was about a quarter of a century ago -- the quiz scandals in the late 1950s -- and the broadcasters cleverly coopted the situation by taking greater control over all programming in the name of preventing such abuses.
The other way is to make a mess of the present law. When the renewal applicant on Channel 5 in Boston lost to a challenger in the early 1970s, broadcasters -- and consequently Congress -- really focused on the comparative renewal situation.
So my advice to Stern, NCPAC and others is: seek federal office. And my hope is that the ensuing mess will lead us to a better policy. Certainly Congress won't so it if left to its usual process.