The FCC today acted on a reasonable access complaint by Randall Terry against a Washington DC television station, ordering the station to sell commercial time to his campaign as he is on the ballot as a legally qualified candidate for President in the state of West Virginia. The decision was based on the Commission’s finding that a
In an 11th hour decision released at about 5 PM on the Friday before the Super Bowl,the FCC decided that TV station WMAQ-TV in Chicago was justified in denying Randall Terry’s request to buy advertising time in the Super Bowl. As we’ve written before, Mr. Terry is claiming that he is a candidate for the Democratic nomination for President, and as such has a right of reasonable access to broadcast stations, meaning that they must sell him advertising time. If he had such rights, the stations could not censor the content of the ads that the candidate decided to run (see our article here about the Communications Act’s no censorship rule). As Mr. Terry has promised to run some very graphic antiabortion ads featuring images of aborted fetuses, many stations were reluctant to run the ads, especially in the Super Bowl when families will be watching the big game. The FCC decided that WMAQ-TV acted reasonably in denying Mr. Terry time in the Super Bowl for two reasons: (1) he had failed to make a substantial showing of his candidacy for the Democratic presidential nomination in Illinois, and (2) even if he had, he had no right to demand that his ads be placed in the Super Bowl. Each of these prongs of the decision clarifies some issues in the law of political broadcasting that had been long-debated, but the first part of the decision leaves questions – important questions to which many stations want answers.
The first prong of the decision concluded that WMAQ-TV was justified in determining that Mr. Terry was not a bona fide candidate for the Democratic nomination for President in Illinois as he was not on the ballot there, and had not made a "substantial showing" that he was otherwise a candidate in the state (see our discussion of the requirements to be a legally qualified candidate, here). The FCC found that the station did not need to be a private investigator and ferret out every instance of campaign activity that Mr. Terry had engaged in within the state to determine if his activity was substantial. Instead, the station could rely on the information that Terry presented to it when he made his request. That information essentially amounted to the fact that he had made appearances in two small towns in the state, and had some campaign literature (though there was no evidence that it was ever distributed in Illinois). Based on those facts, the Commission denied the request – concluding that he had not engaged in campaign activities throughout a substantial portion of the state, as required by prior FCC precedent. While this may answer the question in this case (and helped to clarify the law as to the showing that write-in candidates need to make before they can demand reasonable access to broadcast stations), it leaves several questions unanswered for stations that have or may receive Mr. Terry’s request for airtime in other states where Mr. Terry is on the ballot.
With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads? Of course, there are revenue considerations. But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads? Often, it’s because broadcasters have to – under the applicable laws. We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip. The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules.
Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad. What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes). If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC. But that immunity arises only because the station cannot, under law, reject the ad. So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad. (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here) So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.
Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory. Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours. If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it. So what should Ms. Allred have argued about the Terry ads?