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