FCC Denies Political Advertising Complaint

In the final hours of the last business day before the Super Bowl, the Chief of the FCC's Media Bureau released an order denying the "reasonable access" complaint of Randall Terry against a Chicago television station.

Terry's campaign had been seeking to place ad buys on stations around the country leading up to and during the game.  He claimed he was a "legally qualified candidate" for the Democratic nomination for President. The ads featured disturbing images of aborted fetuses that would be potentially disturbing to some audiences.

As we wrote previously, a "legally qualified candidate" for federal office is entitled to certain benefits under federal law, including "reasonable access" to broadcast facilities.  Terry's complaint was based on a denial of access---Chicago TV station WMAQ-TV refused to grant the campaign's request to place a Terry spot during the Super Bowl.

The Bureau's decision to deny the Terry complaint was based on two rationales. 

First, the Bureau found Terry had not made a substantial showing that he was a "legally qualified candidate" entitled to access. 

Evidentiary issues were important to this aspect of the decision and are worth mention.  FCC rules and precedent have long held that it is the candidate's burden to make a substantial showing of candidacy.  And, when the FCC reviews access complaints, it will examine the evidence made available to the station at the time access is sought (not evidence later submitted with a complaint) in determining whether the station acted reasonably in denying access.  While not dispositive, the Bureau noted that the station had received a letter from the Democratic National Committee stating that the DNC did not consider Terry an actual candidate for its presidential nomination and that Terry could not satisfy its presidential candidate requirements.

Second, the Bureau determined that even if Terry had been a "legally qualified candidate" entitled to access, WMAQ-TV was justified in refusing to place spots during the Super Bowl game. While legally qualified candidates are entitled to "reasonable access" to broadcast air time, no candidate is entitled to "particular placement of his spots in a particular program on a station's broadcast schedule."  Stations may reasonably take into account limited spot inventory for highly rated annual programs and the fact that there may be no "equivalent broadcasts" should an opposing candidate seek equal opportunities after the fact.

Television stations in particular should keep the Terry decision in mind as we enter into this season of college basketball tournaments and awards shows.  While the decision is not an invitation to ignore ad buys from candidates during the most sought after programming (or to ignore buys from candidates based on disturbing content in the ad), it does offer insight into who qualifies as a "legally qualified candidate" and what kinds of things a station can consider when evaluating requests for time in highly rated annual broadcasts.



Federal Candidate Ad Entitled to Air Time; Cannot Be Censored

National news outlets are reporting that the NBC Network has asked presidential candidate Mitt Romney to stop using a television ad attacking Newt Gingrich that features former NBC News anchor Tom Brokaw.  The ad is available on the Mitt Romney campaign website and features Brokaw's reporting on ethics violations.

Some say the spot gives the impression that NBC is biased against Gingrich or in favor of Romney. As reported in the Wall Street Journal, Brokaw has said he is “extremely uncomfortable with the extended use of my personal image in this political ad.  I do not want my role as a journalist compromised for political gain by any campaign.”

So why can’t NBC owned and operated stations, or NBC-affiliated stations, simply say no to the ad and take it off the air? 

The reason is two-fold—first, Romney is entitled to “reasonable access” to station air time, and second, the “no censorship” rule applies to the Romney spot.

Federal law requires radio and TV stations to provide “legally qualified candidates” for federal office—including candidates for the offices of President and Vice President, the U.S. Senate, and the U.S. House of Representatives—with “reasonable access” to their broadcast facilities.  “Reasonable access” does not require stations to give free time to federal candidates, but it means that a station may not have a policy of refusing to sell or give a “reasonable” amount of time to federal candidates.

Additionally, the “no censorship” rule applies to a “use” by a “legally qualified candidate.”  A “use” means any positive appearance of a candidate whose voice or likeness is either identified or readily identifiable.  In this case, consistent with FCC staff decisions on the issue, Romney’s appearance and voice in the sponsorship identification at the end of the spot is sufficient to render this ad a “use” to which the “no censorship” rule applies.

Under the “no censorship” rule, unless the material broadcast is legally obscene or indecent, a station may not censor the content of a candidate’s broadcast even if it is libelous, a copyright violation, inflammatory, or otherwise offensive.  A station can insist on a compliant sponsorship identification to be included if it has not been (for example, “paid for by” and the name of the sponsor), but otherwise it may not censor or alter the spot (unless it is legally obscene or indecent).  

The “no censorship” rule would seem to put stations in the difficult position of being required to air political advertisements that expose them to legal liability—for example, for defamation or invasion of privacy.  On the contrary, under federal law, TV and radio stations cannot be held liable for the content of a “use” by a “legally qualified candidate.”  

Accordingly, stations are obligated to grant the Romney campaign committee “reasonable access” to their air time until the Romney campaign chooses to pull the spot.