With the Iowa primary approaching, political ads are increasing on the local Iowa TV stations. While the national press may have been focused on some of the recent Rick Perry ads about the end of "don’t ask, don’t tell" and its connection to the celebration of Christmas in the public schools, there has been an even more controversial ad running on Iowa TV stations – anti-abortion spots being run by Randall Terry, the head of Operation Rescue, who has announced that he is running for the Democratic nomination for President – challenging President Obama for the privilege of running in next year’s election. Some of the planned ads have graphic depictions of the results of abortions. These ads are disturbing to some, and many viewers (and many stations) are concerned and upset about their being broadcast – so why are stations running them? For the most part, it is based on the requirement of Section 315 of the Communications Act that prohibits a station from censoring an ad from a candidate for public office. Not only that, but court rulings concerning the reasonable access provisions of the Communcations Act prohibit stations from channeling potentially disturbing ads to later night hours – limiting stations to a pre-ad disclaimer warning viewers of the content to come and advising them that the ad is being aired by a candidate and is not subject to station censorship (stations should work with counsel to use language on such a disclaimer that has been approved by the FCC).
But there are issues that stations need to explore to prevent everyone with the money to cover an ad from claiming to be a candidate for office and being able to air disturbing images on broadcast stations. Under the law, a person has no censorship rights for their ads (and reasonable access rights for Federal candidates) only if they can show that they are a "legally qualified candidate." In most cases, the question as to whether someone is legally qualified is relatively easy. The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary. In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting that person. But once the local election authority receives the papers (and does whatever evaluation may be required), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election). But, for Presidential candidates, especially in caucus states, and for write-in candidates, there are slightly different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot. Instead, in these situations, a person claiming to be a candidate must make a "substantial showing" that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election in the caucus would do. What does that mean?