Request By:
Mr. O. Leonard Press
Executive Director
Kentucky Educational Television
600 Cooper Drive
Lexington, Kentucky 40502
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Robert L. Chenoweth, Acting Deputy Attorney General
As the Executive Director of the Kentucky Educational Television (KET) you have asked the Office of the Attorney General for an opinion relative to the presenting on the air the candidates for statewide office in the various political races. You stated the question has been raised as to whether it is legal for KET to provide time for political candidates in view of the language of KRS 168.100. It is your belief the language of KRS 168.100 does not prohibit KET from providing time for legally qualified candidates for public office and that if it were so interpreted, it would be in conflict with the Federal Communications Act of 1934 which has supremacy in this area. You have asked whether you are accurate in your position and it is our opinion that you are.
KRS 168.100 is the "powers" statutory provision for KET. Some of the pertinent "specific powers . . . vested in the authority" are set forth in subsection (2) of that statutory provision as follows:
"To make contracts and agreements whereunder the authority may undertake to provide educational television facilities and related functions and facilities to or for any public body of the state or federal government in furtherance of educational television or in aid of any other public function; provided, however, it shall be an express provision of every such contract that the authority will not undertake to transmit or relay, and will not permit any other party to transmit or relay, in the use of the authority's television facilities, any subversive matter, any political propaganda, or any image or message in the interests of any political party or candidate for public office; or be used by, or in aid of, any church, sectarian or denominational school; but this proviso is not intended and shall not be construed to be a limitation upon dissemination by the authority of legitimate objective instructional material which is properly related to the study of history or of current events, or which is no more than factually informative, of current issues of government or of various political ideologies;"
Other specific powers vested in KET in subsections (3) and (4) are:
"To produce, prepare, transmit and relay, either from life or by recording on tape or films, educational television programs and related services not inconsistent with the curricula prescribed or approved for the public schools of the Commonwealth by the department of the board;
To purchase or lease from others, or to contract with others for the use of, or the right to transmit or relay similar educational television programs and related services, whenever in the opinion of the authority the same are suitable and cannot be produced as effectively or economically through the use of its own facilities;"
You provided this office with an opinion written to you by the Honorable Lawrence M. Miller of the law firm of Schwartz, Woods and Miller, Washington, D.C., which firm concentrates its practice in the representation of broadcast licensees before the Federal Communications Commission and also represents numerous broadcast licensees, including several state public broadcasting networks. Mr. Miller's opinion considered the same question you have presented to us. Mr. Miller prepared the position letter at the request of the National Association of Educational Broadcasters. We believe Mr. Miller's analysis of the proper construction of KRS 168.100, with the provisions of the Federal Communications Act of 1934, is accurate and we adopt his conclusion for the reasons given by him as our own. This office sought and received from Mr. Miller's law associate, Mr. Robert A. Woods, approval to refer to and quote from his opinion, which we will do below.
Mr. Miller wrote in his letter:
"The plain meaning of this statutory language is that the Authority generally enjoys complete discretion to produce, purchase, or lease programming of its choice for broadcast over its facilities, but that, pursuant to 168.100(2), there are certain limits as to the content of programming broadcast under contracts and agreements for the benefit of any public body of the state or federal government. "
He continued that:
". . . we assume that this limitation was imposed to protect the authority from any pressure to broadcast presentations of political candidates at the request of legislative or other governmental bodies, and was not designed to restrict its discretion in the production and selection of programming not broadcast under such an arrangement. Thus, it appears that the statute purports to proscribe the broadcast of, among other things, 'political propaganda' or 'any image or message in the interests of any political party or candidate for public office, ' only where such material is broadcast pursuant to a contract or agreement to provide educational television services or facilities 'to or for any public body of the state or federal governments.' If the Authority chooses to produce programming presenting political candidates not pursuant to any such contract or agreement, the statutory prohibition would be inapplicable."
Mr. Miller also viewed KRS 168.100 against various provisions of the Federal Communications Act, 47 U.S.C. § 151, et seq. In this regard Mr. Miller stated:
"While we are of the opinion that the statute by its terms does not limit the broadcast by the Authority of programs featuring political candidates, so long as such broadcast is not made on behalf of any state or federal public body, we should underscore that any such limitation would offend the federal regulatory scheme. Section 312(a) of the Communications Act provides that the Federal Communications Commission may revoke any station license 'for willful or repeated failure to allow reasonable access to or [in the case of commercial stations] 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.' The Commission has specifically ruled that this obligation includes public broadcasters. Moreover, there is a strong regulatory policy to the effect that broadcasters, both commercial and noncommercial, must afford reasonable access to state candidates. The Commission has emphasized repeatedly the importance of licensee presentation of political broadcasting. The current statement on this subject is the Commission's Public Notice of October 29, 1968, In re Licensee Responibility as to Political Broadcasts, 15 FCC 2d 94, 14 RR 2d 566 (1968) (copy attached). In that statement the Commission noted that it had received 'information indicating that some licensees have policies proscribing or severely limiting political broadcasts over their facilities,' and called its licensees' attention to 'the desirability of making their facilities effectively available to candidates for political office even though this may require modification of normal station format.' The Commission concluded that the presentation of political broadcasts is an element of public service 'deserving the licensee's closest attention, because of the contribution broadcasting can thus make to an informed electorate - in turn so vital to the proper functioning of our republic.'"
In view of the above, it is the opinion of the Office of the Attorney General that no provisions of state law prohibit KET from providing time for political candidates in programs produced, purchased or leased by KET for general broadcast purposes.