Could South Dakota's Educational Television stations legally produce and broadcast programs giving time to candidates running for local, state, and federal offices, as long as they followed FCC Fairness Doctrine equal-time rules?
Plain-English summary
In early 1972, South Dakota Educational Television (the state-licensed nonprofit broadcaster running educational programming) asked the AG whether it could legally produce and broadcast programs giving statements and opinions from candidates running for local, state, and federal offices, on condition that the FCC's equal-time rules under the Fairness Doctrine were followed. The question was timely because the federal landscape on political broadcasting had just changed dramatically.
The Federal Election Campaign Act of 1971 (Public Law 92-225), signed into law February 7, 1972, had imposed a mandatory access requirement on all broadcasting stations for candidates for federal elective office (President, Senator, Representative, possibly Vice President). The FCC's implementing rules, adopted March 15, 1972, made clear that the access requirement applied to noncommercial educational stations and other nonprofit stations as well as commercial stations. Refusal to allow reasonable access could result in license revocation under 47 USC § 312(a)(7).
The AG walked through the framework:
Federal candidates: Mandatory access. Educational TV had to give reasonable access to legally qualified candidates for federal elective office (President, Senator, Representative). This obligation was federal law, applied directly to educational stations, and was backed by the FCC's license-revocation power. The state had no role in the matter; preempted by federal regulation of interstate broadcasting (citing Allen B. Dumont Laboratories v. Carroll, 184 F.2d 153, holding that television was within "radio communication" and that federal regulation of broadcasting was exclusive of state action).
Pricing for federal candidates. Noncommercial educational stations operating on reserved channels could not charge candidates for broadcast time. The FCC rules said reserved-channel educational stations were "not permitted to levy charges for time, for political broadcasts or otherwise." For South Dakota Educational Television operating on a reserved channel, this meant federal candidates got free reasonable-access time. For nonprofit stations operating on unreserved channels (e.g., religious broadcasters), charges were permitted if their charters allowed, but had to be reasonable when measured against commercial-station rates in the same broadcast market.
State and local candidates: Permissive access. Federal law did not require access for state or local candidates. The South Dakota Educational Television Board could grant access to such candidates if it concluded programming time was available after federal candidates were accommodated. If access was granted, FCC Fairness Doctrine equal-time rules would apply within the category of access granted.
The AG concluded the opinion with a verbatim reproduction of the FCC's Q&A guidance from the March 21, 1972 Federal Register (vol. 37, no. 55, p. 5805), particularly questions 9 and 10, which addressed the application of section 312(a)(7) to noncommercial educational and nonprofit stations and the charging rules for those stations. The AG appended this material as authoritative federal guidance that would govern South Dakota Educational Television's operations.
Currency note
This opinion was issued in 1972. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The FCC Fairness Doctrine was abolished by the FCC in 1987, and the broader equal-time and political-broadcasting regulatory framework has been substantially restructured by subsequent statutes and court decisions (notably the Cable Communications Policy Act and various First Amendment rulings). The 47 USC § 312(a)(7) "reasonable access" requirement for federal candidates remains, but its details have evolved. Modern public-television stations and candidates should consult current FCC rules and federal statute rather than this 1972 opinion.
What the opinion meant at the time
For South Dakota Educational Television, the opinion clarified that the new federal access requirement was not optional. ETV had to plan programming that accommodated federal candidates in the 1972 election cycle (a presidential year, with senators and representatives also on the ballot). The station could not refuse to air federal candidates on educational-purity grounds.
For state and local candidates seeking ETV access, the opinion explained that they had no federal right of access but could be granted access at the station's discretion. South Dakota Educational Television Board's decisions on state-and-local access would have to be principled (presumably granting equally to all qualified candidates for the same office to satisfy Fairness Doctrine within the access-granted category) but were not federally mandated.
For the South Dakota Legislature funding ETV, the opinion confirmed that the station's mission could include political broadcasting without that being a misuse of state funds. The state's public-television funding could appropriately support reasonable-access broadcasting for federal candidates as required by federal law.
For nonprofit religious broadcasters (mentioned in the FCC Q&A), the opinion told them they too had to provide access for federal candidates if their stations had any history of political programming. They could charge for political broadcast time within reason, but they could not refuse access entirely.
For station managers everywhere in South Dakota, the opinion was a heads-up that the FCC was watching. Failure to allow federal candidate access could result in license revocation under § 312(a)(7), which was a more severe penalty than fines or warning letters typically associated with broadcasting violations.
Common questions
Q: Did the access requirement let federal candidates demand specific time slots?
A: The statutory standard was "reasonable" access, not unlimited or premium-time access. Stations had to give access in time slots that allowed candidates a meaningful opportunity to reach the audience, but specific slot demands were not enforceable. FCC mediated disputes about reasonableness through complaint procedures.
Q: If ETV gave time to one federal candidate, did Fairness Doctrine require it to give equal time to opponents?
A: Yes. The Fairness Doctrine (and the related equal-time rules of § 315) required that once a station offered time to one legally qualified candidate for an office, it had to offer equal opportunity to all other legally qualified candidates for the same office. The mandatory-access requirement and the equal-time requirement worked together: access was triggered by federal candidacy, equal-time was triggered by use of station time by any candidate.
Q: What was a "legally qualified candidate"?
A: FCC rules defined this term to mean a person publicly committed to candidacy for a federal office, having qualified for a place on the ballot or, if write-in, having made a substantial showing of bona fide candidacy. The FCC's rules over time provided more detail. A candidate who had merely announced an intent to run, without legal qualification, was not entitled to access.
Q: Could ETV give access to ballot-measure proponents (constitutional amendments, initiatives) or only to candidates?
A: The federal access requirement covered candidates for federal elective office, not ballot measures. Ballot-measure access was up to the station's discretion. The Fairness Doctrine separately required balanced coverage of controversial issues of public importance, which could include ballot measures.
Q: What about debate formats, did debates count as "use" of station time that triggered equal time?
A: This was a complicated question in the 1970s. FCC rules at the time treated debates as "news events" exempt from equal-time rules if all qualifying candidates were invited and the debate was "bona fide." A debate that featured only some candidates could trigger equal-time obligations for the excluded ones. ETV's debate planning had to be careful on this point.
Q: Did the opinion address First Amendment limits on the access requirement?
A: No. The opinion treated the federal access requirement as constitutional and binding, without separately analyzing First Amendment objections. The Supreme Court's decision upholding the mandatory access requirement (CBS v. FCC) did not come until 1981. In 1972, the constitutionality of § 312(a)(7) was not yet authoritatively settled, though the broader regulatory framework was generally upheld.
Q: What if ETV was on an unreserved channel rather than a reserved educational channel?
A: The FCC Q&A distinguished the two: reserved-channel educational stations could not charge for political time (or any time, by virtue of being reserved); unreserved-channel stations and nonprofit (non-educational) stations could charge reasonable rates if their charters permitted. South Dakota ETV was a reserved-channel educational network, so the no-charge rule applied to it.
Background and statutory framework
In 1971, Congress overhauled federal campaign finance and broadcasting law in the Federal Election Campaign Act (FECA), Public Law 92-225. The Act addressed campaign spending limits, disclosure, and political broadcasting. Section 312(a)(7) added a new ground for FCC license revocation: willful or repeated failure to allow reasonable access for federal candidates.
The FECA was signed into law on February 7, 1972. The FCC moved quickly to implement it, adopting rules on March 15, 1972 and publishing them in the Federal Register on March 21, 1972 (vol. 37, no. 55, p. 5805). The FCC rules made clear that the access requirement applied to all broadcasting stations: commercial, noncommercial educational, and other nonprofit. There was no exemption for educational stations even though those stations had historically not run political content.
This was a significant policy shift for educational television. Public TV stations across the country had relied on an implicit understanding that their educational mission insulated them from the political-broadcasting framework that applied to commercial stations. The FECA and the FCC rules ended that exemption for federal candidate access.
South Dakota Educational Television operated under license from the FCC on reserved educational channels. Its statutory basis was state legislation establishing the South Dakota Educational Television Board, which oversaw a network of stations and translators around the state. ETV's program offerings traditionally focused on educational content, public affairs, children's programming, and select cultural offerings. The 1972 FECA and FCC rules required ETV to add reasonable-access broadcasting for federal candidates to its programming.
The Federal Communications Commission's regulatory authority over broadcasting was anchored in the Communications Act of 1934 (47 USC § 151 et seq.). Section 153(k) defined "radio station" to include television stations; section 153(b) defined "radio communication" broadly. Allen B. Dumont Laboratories v. Carroll, 184 F.2d 153 (3d Cir. 1950), cert. denied, 340 U.S. 929 (1951), had confirmed that television fell within these definitions and that federal regulation of broadcasting was exclusive of state action. So states could not regulate ETV's political broadcasting decisions; federal rules controlled.
The South Dakota AG's role was advisory: to interpret how state law (the ETV Board's enabling statute) interacted with the new federal requirements. The opinion's bottom line was that state law did not stand in the way of compliance with federal access requirements, and that the ETV Board had discretionary authority to extend access to state and local candidates.
Citations and references
Federal statutes:
- Federal Election Campaign Act of 1971, Public Law 92-225 (February 7, 1972)
- 47 USC § 153(k) (definition of "radio station")
- 47 USC § 153(b) (definition of "radio communication")
- 47 USC § 312(a)(7) (FCC license revocation for refusing reasonable access to federal candidates)
- 47 USC § 315(b) (lowest unit charge rule for political broadcasts)
Federal regulations:
- FCC Rules and Regulations adopted March 15, 1972, published in 37 Federal Register 5805 (March 21, 1972) (implementing § 312(a)(7) reasonable access requirement, including application to noncommercial educational and nonprofit stations)
Federal cases:
- Allen B. Dumont Laboratories v. Carroll, 184 F.2d 153 (3d Cir. 1950), cert. denied, 340 U.S. 929, 71 S.Ct. 490, 95 L.Ed. 670 (1951) (television communication within "radio communication"; federal broadcasting regulation exclusive of state action)
Source
Original opinion text
Educational television network. Giving time on station for political candidates.
Dear Mr. Busch:
You have asked my official opinion in answer to the following question:
Is it legal for the Educational Television stations in South Dakota, licensed therefor, to produce and broadcast programs allowing statements and opinions from candidates running for local, state and federal offices assuming that provisions of "equal time" under the FCC Fairness Doctrine are complied with?
Insofar as such television programming affects a "federal elective office," your question has been answered by the United States Congress by the adoption of the Federal Election Campaign Act of 1971 of February 7, 1972. (Public Law 92-225), and the rules and regulations promulgated thereunder by the Federal Communications Commission.
Tersely stated, the Federal Election Campaigning Act of 1971 requires, at a fee fixed by Congress, that every commercial "broadcasting station" must make time available for any candidate for "federal elective office," (and once such time is made available to one such candidate, equal opportunity to all other candidates for the same office for similar use) to advocate his candidacy for federal office on such broadcasting media.
The Act defines the term "Federal Elective Office" to mean the office of the President of the United States, or of Senator or Representative in, or resident commission or delegate to, the Congress of the United States, and perhaps (because of the restrictive language used), the Vice President.
The Congressional enactment further provides criminal penalties if the candidate and the broadcasting station fail to meet certain requirements of such Federal Act. It further provides that the Federal Communications Commission may revoke a license or permit of such broadcasting station:
For willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.
In its rules and regulations, adopted March 15, 1972, the Federal Communications Commission has made it clear that the quoted authority to revoke licenses for failure to allow a federal elective office candidate access to the station applies to noncommercial educational stations as well as other nonprofit stations. The Commission has ruled that both types of stations would be required to give reasonable access to legally qualified candidates for federal elective office.
47 USC Sec. 153 (k) defines a "radio station" as being equipped to engage in radio communication. "Radio communication" is defined in 47 USC Sec. 153 (b). In Allen B. Dumont Laboratories v. Carroll (CCA (Pa) 1950) 184 F. 2d 153 (cert. den.) 340 U.S. 929, 71 S.Ct. 490, 95 L. ed. 670, the United States Court of Appeals held that as television communication is within the definition of "radio communication" the Federal regulative acts applied to television stations. It further held that as television broadcasting is interstate commerce, that the Federal laws were exclusive of state action.
In view of this unchallenged holding of the Federal courts, it appears to me that your television station is included in the term "broadcasting station." In view of the court rulings, it appears that no case may be made that the Rules and Regulations of the Commission are invalid.
Such Federal law, of course, does not command giving such access to candidates for state or local offices. It would appear to me that such access might be granted to such local and state candidates, if the South Dakota Educational Television Board concluded that programming was available for all of such candidates, after accommodating those candidates for Federal office who have a right, and to whom you owe a duty to grant access.
Because of the nature of the Federal Statute and its interpretation by the Federal Communications Commission, I am concluding this opinion with the regulations of such Commission, as set forth in a question and answer format in Volume 37, No. 55, page 5805 of the Federal Register of Tuesday, March 21, 1972. This statement should answer many questions concerning the problem and any incidental charges that may be made in connection with such access.
- Q. Does section 312 (a) (7) apply to noncommercial educational stations, and other nonprofit stations, as well as to commercial stations.
A. Yes. There are no provisions in the Campaign Communications Reform Act exempting such stations, nor is there anything in the legislative history of the Act that would indicate that such an exemption was intended. Both types of stations would be required to give reasonable access to legally qualified candidates for Federal elective office.
- Q. May noncommercial educational stations and nonprofit stations charge for broadcast time by or on behalf of legally qualified candidates for Federal elective office?
A. Under the provisions of the Commission rules, noncommercial educational stations operating on channels reserved for noncommercial educational use are not permitted to levy charges for time, for political broadcasts or otherwise. Some such stations presently are providing political programming without charge, and it appears that as a practical matter the new provision will not greatly alter their practices. On the other hand, those stations that do not engage in such programming will be required under the new law to provide reasonable access to candidates without charge. Non-commercial educational stations that are operating on unreserved channels, and nonprofit stations that are not educational, e.g., those offering religious broadcasting, may charge for political broadcast time (if their charters or articles of incorporation permit them to make time charges) although it is their policy normally not to charge for any time. If they do charge, notice must be given to the Commission of this change in operation. The lowest unit charge provisions of section 315(b) cannot apply to such stations since they have no rates on which to base such a charge. However, any charges made must be reasonable when viewed in the light of charges made by commercial stations in the same broadcast service licensed to serve the same community. If the charges made by nonprofit stations are unduly high, it is conceivable that they might be construed as an attempt to circumvent the reasonable access provision of section 312 (a) (7). Noncommercial educational stations and nonprofit stations, whether giving free time for political broadcasts or charging for such time, may make necessary charges for production-oriented services, and for other things of the type mentioned in Q. and A. VI 15 above.
Respectfully submitted,
Gordon Mydland
Attorney General