Letters sent by the Chairman of the FCC in response to a letter from a member of Congress do not represent the "considered opinion" of the FCC. Indeed, the other members of the FCC do not see those letters in advance and have no input whatever into their content. Fowler's letter to Rep. Luken no more "speaks" for the entire Commission than Luken's letter spoke for the entire Congress.s
Yes, the letter was written with assistance of FCC lawyers. Likely those who were members of Fowler's staff. But even if it was written by the General Counsel's office (and I speak aas someone who has been an FCC attorney), I can assure you that those lawyers were directed to come up with an argument that supported the Chairman's position. In case you didn't know it, the General Counsel of the FCC is appointed by the Chairman of the FCC.
As for the letter being cited by law review articles, weren't you the one who pooh-poohed blog posts written by experts in the field? The law review articles that cite the Luken letter acknowledge its existence, but they can't characterize it as representing the official, considered, official, binding position of the FCC nor do they uniformly endorse the position taken in the Luken memorandum (despite your conclusion that it was "persuasive." )The Chairman was speaking for himself. Period.
Finally, the courts, including the Supreme Court, have recognized the role played by both Section 312 ("reasonable access"
and 315 (no censorship) play in protecting political discourse from FCC regulation (including, for example, finding that the FCC not only may not give a broadcaster the discretion to refuse to broadcast libelous or offensive political ads (including ads graphically depicting aborted fetuses that are conceded be harmful to children), but also may not even require a broadcaster to channel political ads to a less desirable time period where the audience for the ads would be limited.)
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