B-130961, NOV 26, 1974

B-130961, NOV 26, 1974

ABSENT STATUTORY MANDATE THEREFOR, WHETHER TO CONTINUE USE OF FEDERAL COMMUNICATIONS COMMISSION'S POLITICAL BROADCASTING/CABLE CASTING REPORT, (FCC FORM 322) TO OBTAIN INFORMATION ON BROADCAST EXPENDITURES BY CANDIDATES IN 1974 ELECTIONS IS MATTER OF AGENCY DISCRETION; AND SUCH REPORT IS NOT DUPLICATED BY REPORTS REQUIRED UNDER FEDERAL ELECTION CAMPAIGN ACT OF 1971. STATUS OF FCC REPORT BEYOND 1974 ELECTIONS MIGHT BE CONSIDERED IN VIEW OF ENACTMENT OF FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1974; AND USE OF REPORT THEREAFTER WOULD BE CONTINGENT UPON CLEARANCE BY GAO IN ACCORDANCE WITH 44 U.S.C. SEC. 3512.

FEDERAL COMMUNICATIONS COMMISSION'S SURVEY OF POLITICAL BROADCASTING:

THIS DECISION TO THE CHAIRMAN OF THE FEDERAL COMMUNICATIONS COMMISSION (FCC) IS IN RESPONSE TO HIS REQUEST (REFERENCE: 2100) FOR ADVICE AS TO WHETHER FCC SHOULD REQUIRE BROADCAST LICENSEES AND CABLE TELEVISION SYSTEMS TO REPORT ON POLITICAL BROADCASTING FOR THE 1974 ELECTIONS THROUGH ITS POLITICAL BROADCASTING/CABLE CASTING REPORT (FCC FORM 322).

IT IS EXPLAINED THAT THIS REPORT INCLUDES EXPENDITURES FOR GUBERNATORIAL, AS WELL AS FEDERAL, ELECTIONS, AND ALSO INCLUDES INFORMATION ON FREE TIME FURNISHED TO ALL CANDIDATES. IT IS UNDERSTOOD THAT FCC HAS COLLECTED SIMILAR INFORMATION REGARDING PREVIOUS ELECTIONS (APPARENTLY COMMENCING IN 1960) AT THE REQUEST OF CONRESSIONAL COMMITTEES AND AS A CONVENIENCE TO OTHER PARTIES INTERESTED IN LEGISLATION ON POLITICAL EXPENDITURES. THE CHAIRMAN STATES THAT FCC HAS NO SPECIAL USE FOR THIS INFORMATION IN CONNECTION WITH ITS REGULATORY FUNCTIONS. FCC'S COSTS FOR PROCESSING SUCH REPORTS ARE ABOUT $37,000. THIS DOES NOT INCLUDE RESPONDENT COSTS.

A QUESTION AS TO WHETHER FCC SHOULD CONTINUE TO REQUIRE ITS REPORTS FOR THE 1974 ELECTIONS ARISES IN THAT, PURSUANT TO TITLE III OF THE FEDERAL ELECTION CAMPAIGN ACT OF 1971, APPROVED FEBRUARY 7, 1972, PUB. L. NO. 92- 225, 86 STAT. 11, 2 U.S.C. SECS. 431 ET SEQ. (SUPP. II, 1972), CAMPAIGN EXPENDITURES FOR CONGRESSIONAL CANDIDATES ARE REPORTED DIRECTLY BY POLITICAL COMMITTEES OR CANDIDATES TO THE CLERK OF THE HOUSE OF REPRESENTATIVES (FOR HOUSE CANDIDATES) AND TO THE SECRETARY OF THE SENATE (FOR SENATE CANDIDATES).

AS INDICATES ABOVE, FCC'S POLITICAL BROADCAST REPORTING PROGRAM DOES NOT INVOLVE ANY STATUTORY MANDATE UPON THAT AGENCY. CONSEQUENTLY, THE DECISION WHETHER TO CONTINUE OR ELIMINATE THE REPORT IS A MATTER WITHIN FCC'S DISCRETION. WE WOULD, HOWEVER, OFFER SEVERAL OBSERVATIONS WHICH MAY BE OF ASSISTANCE TO THE FCC IN REACHING ITS DECISION.

SECTION 3512 OF TITLE 44, U.S.C. ADDED BY THE ACT APPROVED NOVEMBER 16, 1973, PUB. L. NO. 93-153, SEC. 409, 87 STAT. 593, REQUIRES OUR OFFICE, INTER ALIA, TO CONDUCT ADVANCE CLEARANCE REVIEWS OF NEW AND REVISED INFORMATION COLLECTION PROPOSALS BY INDEPENDENT FEDERAL REGULATORY AGENCIES - INCLUDING FCC - WITH A VIEW TOWARD AVOIDING DUPLICATION AND MINIMIZING RESPONDENT BURDENS. WE UNDERSTAND THAT THE FCC POLITICAL BROADCASTING/CABLE CASTING REPORT HAS PREVIOUSLY BEEN CLEARED BY THE OFFICE OF MANAGEMENT AND BUDGET FOR USE THROUGH MAY 1975. ACCORDINGLY, THIS REPORT IS NOT BEFORE US FOR CLEARANCE. SEE 4 C.F.R. SEC. 10.5(E), 39 FED. REG. 24348 (JULY 2, 1974). NEVERTHELESS, IN ORDER TO FULLY RESPOND TO THE FCC CHAIRMAN'S REQUEST, OUR REGULATORY REPORTS REVIEW STAFF HAS INFORMALLY REVIEWED THE FCC REPORT IN TERMS OF POSSIBLE DUPLICATION OF THE REPORTS REQUIRED UNDER THE FEDERAL ELECTION CAMPAIGN ACT. ON THE BASIS OF THAT REVIEW, WE DO NOT BELIEVE THAT THE FCC REPORT AND THE LATTER REPORTS ARE DUPLICATIVE. FIRST, THE REPORTS PURSUANT TO THE FEDERAL ELECTION CAMPAIGN ACT DO NOT NECESSARILY RESULT IN SPECIFIC IDENTIFICATION OF BROADCAST MEDIA EXPENDITURES FOR FEDERAL CANDIDATES. SECOND, AS NOTED PREVIOUSLY, THE FCC REPORT PROVIDES INFORMATION COVERING EXPENDITURES BY GUBERNATORIAL CANDIDATES AND THE FURNISHING OF FREE TIME TO ALL CANDIDATES. NEITHER OF THESE ITEMS IS COVERED BY THE REPORTS FURNISHED PURSUANT TO THE FEDERAL ELECTION CAMPAIGN ACT. THIRD, THE STAFFS OF THE CLERK OF THE HOUSE AND SECRETARY OF THE SENATE ADVISED US THAT THEY USE THE FCC REPORTS AS A MEANS OF IDENTIFYING POTENTIAL VIOLATIONS OF THE BROADCAST MEDIA EXPENDITURE LIMITATIONS SET FORTH IN SECTION 104 OF TITLE I OF THE FEDERAL ELECTION CAMPAIGN ACT (THE "CAMPAIGN COMMUNICATIONS REFORM ACT"), 47 U.S.C. SEC. 803 (SUPP. II, 1972).

FINALLY, WE NOTE THAT THE FEDERAL ELECTION CAMPAIGN ACT AMENDMENTS OF 1974, APPROVED OCTOBER 15, 1974, PUB. L. NO. 93-443, 88 STAT. 1263, MAKE EXTENSIVE CHANGES IN THE ORIGINAL FEDERAL ELECTION CAMPAIGN ACT. AMONG OTHER THINGS, THE 1974 AMENDMENTS ELIMINATE BROADCAST EXPENDITURE LIMITATIONS FOR FEDERAL CANDIDATES IN FAVOR OF SINGLE OVERALL EXPENDITURE LIMITATIONS, AND ESTABLISH A "FEDERAL ELECTION COMMISSION" TO ADMINISTER THE NEW EXPENDITURE LIMITATIONS AND REPORTING REQUIREMENTS. THESE PROVISIONS OF THE 1974 AMENDMENTS WILL NOT BECOME EFFECTIVE UNTIL AFTER THE 1974 ELECTIONS. THE UTILITY OF THE FCC REPORT, OR POSSIBLE CHANGES THEREIN, FOR FUTURE ELECTIONS MIGHT BE CONSIDERED IN VIEW OF THE 1974 AMENDMENTS. CONTINUATION OF THE REPORT AFTER MAY 1975 WOULD, OF COURSE, BE CONTINGENT UPON FORMAL CLEARANCE BY OUR OFFICE IN ACCORDANCE WITH 44 U.S.C. SEC. 3512, SUPRA. ..END :