The great fuss over Citizens United and the predicted awful consequences to our politics that the pundits immediately declared after this court ruling is a red herring, an unnecessary worry, certainly not the fault of the court and easily prevented by the very media who are supposed to serve as the damaging vehicle for the money-laden super PACs. Yes, Citizens United may have established a constitutional right of sorts to buy advertising time and publicity on behalf, yet not specifically in support of, political candidates -- but, Citizens United did not establish an obligation on the part of the media to sell. Therein lies the crucial solution to a problem that might not exist at all.
While broadcasters are required by the FCC to guarantee "access" to official candidates for public office, nowhere in the Citizens United ruling did the Supreme Court -- or the FCC through any rule or regulation -- order radio and TV stations to sell time to anyone not officially associated with an actual candidate. And the very essence of the super PACs is their total legal non-association with a candidate -- any candidate. Yes, that lack of official association may be a complete fiction in the real world, but legally that non-association is absolute. Thus, the media -- the radio and TV stations -- are under no obligation whatsoever to sell any time at all to any super PAC. They can simply refuse. They can turn them down. They can say "No thank you." They can do this today, tomorrow, next month, whenever. It's just as easy that.
American broadcasting, the collection of radio and television stations and the various networks many belong to, is a private industry. Each station is a private business. You and I have no right, constitutional or otherwise, to put our message on the airways that have been licensed to any of them. You may appear with a suitcase full of money and the station may turn you away empty-handed. I know this personally because some years ago I used to be the general manager, and one of the owners, of an important radio station in a major American city. As the executive in charge I had complete authority to approve or disapprove of all advertising and all commercial content broadcast on behalf of those advertisers who bought commercial time. The FCC rules have not changed since we sold our company and the nearly three dozen stations we owned and operated across the country.
There were times when I refused to sell time to some who wanted to buy, and also times when I refused to allow certain commercials to run on-the-air. Those decisions were mine and mine alone. It didn't happen often, but it did happen, as I'm sure it does at all stations from time to time. What's important to remember is this: The station has the final say -- the only say -- they are not required to sell time, and for those who are sold time, they enjoy no right to run whatever commercial message they submit. The station must approve the commercial content.
When an advertiser is turned down an explanation is not legally required. No structured reasons are necessary. Every station establishes its own commercial policy based on whatever standards, or whim of management, as it sees fit. And those standards are subject to change without notice. The plain facts are that the FCC has never promulgated a rule telling broadcasters that they must sell time to all comers, to anyone who wants to buy.
I've had potential advertisers, both local businesses and major national companies protest my decision not to sell them time by threatening legal action. Usually, they were outraged, furious and eager to enforce their self-perceived right to buy. I never backed down. I always knew that if and when they talked to a lawyer they would be advised that my station was under no legal obligation to sell them time just because they had the money to pay for it. True, some of the biggest corporations and largest advertising agencies in the country were unaware of this until they faced such a situation. It was unusual. Their ignorance, however, changed nothing. If I didn't want them on-the-air, they didn't get on-the-air. My decision was final, not reviewable, not subject to appeal.
There is no legal recourse when an advertiser is refused commercial time by a broadcaster. Citizens United may have granted some sort of right to buy, but what's that worth if nobody is obligated to sell?
The proper response -- if this is the way you feel -- to the possible, potential abuses that might arise from a flood of money after Citizens United is for America's radio and television station owners and managers to simply refuse to sell time to super PACs. If, as many believe, representative democracy is threatened by super PAC mega-money, then the media can save our democratic system of representative politics by taking exactly this action. Any station manager or owner, any network president can do it. If I were still in the broadcasting business it's what I would do.
Note: Richard Greener was vice president/general manager of radio station WAOK, Atlanta, Georgia and a partner in U.S. Radio Inc. (1981-1996)
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