substantial showing of candidacy

Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past.
Continue Reading Reasonable Access and the Problem Candidate – FCC Declares a Write-In Candidate Not Entitled to Buy Radio Spots, But That May Not Be the End of the Story

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Broadcast operations that use uninterruptable power supply (UPS) devices as either a primary or backup power source should be alert

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Global Music Rights (GMR) and the Radio Music Licensing Committee (RMLC) announced that enough broadcasters had agreed to GMR licensing

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC adopted two items of interest to broadcasters that were on the agenda for its January 27 Open Meeting.

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued a Public Notice urging all communications companies to take steps to ensure the security of their facilities

The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules.  While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising.  Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.

These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans.  The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.
Continue Reading FCC Plans to Adopt Two Minor Changes to its Political Broadcasting Rules – What is Being Changed?

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC this week announced that it will vote on two items of interest to broadcasters at its next Open

As we enter the last quarter of the year, the broadcasters’ October calendar is full of important regulatory dates and deadlines.  We share some of those dates below and urge you to stay in close touch with your lawyers, engineers, and consultants for the dates and deadlines applicable to your station’s operations.

On or before October 1, radio stations in Alaska, American Samoa, Guam, Hawaii, Marianas Islands, Oregon, and Washington and TV stations in Iowa and Missouri must submit their license renewal applications.  Pay close attention to the contents of your online public file and be sure that all required documents are complete and were uploaded on time.  Stations filing their renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396), submitting two years of EEO Public File reports for FCC review unless your employment unit employs fewer than 5 full-time employees.  As you are putting the final touches on your applications, be sure to read the instructions for the license renewal application (radio, TV) and consult with counsel if you have questions.
Continue Reading October Regulatory Dates for Broadcasters: License Renewals, Broadcast Ownership Filings, Quarterly Issues/Programs Lists, Rulemaking Comment Dates and More

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In the run-up to the August 11 National EAS Test, the FCC released a Public Notice reminding broadcasters to ensure

Last week, it was announced that the FCC would be considering some changes to its political broadcasting rules at its monthly open meeting in August.  In some quarters (see, for example, this article), that raised concern that significant changes were coming in time for the 2022 Congressional elections.  But, when the draft of the proposed changes was released last week, it turned out that the changes were instead very minor – almost ministerial.  The proposed rule changes revise the Commission’s rules on two matters that are already part of the practices of stations and the lawyers who advise them on political broadcasting matters.  Two changes are being proposed – one dealing with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and entitled to take advantage of the FCC’s political broadcasting rules, and the second being just a rule change to conform FCC rules to statutory requirements that broadcasters include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.

The first proposal would add use of social media and creation of a campaign website to the factors specified in the rules as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”   Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules.  Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a write-in candidate must also show that he or she is really conducting a serious campaign for office (see our article here).  The facts set forth in that showing determine how serious the campaign is.  Since the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities are indicative of how serious a candidate is, stations were already reviewing online activities when assessing substantial showings.  The FCC’s proposal would just make sure that what is already being done is spelled out in the rules.
Continue Reading FCC To Clarify Political Advertising Rules – No Significant Changes Proposed