FCC Declares Terry an Ineligible Receiver . . . For Now

Posted on February 4, 2012 by Dan Kirkpatrick

Agency denies effort by self-proclaimed candidate (and anti-abortion activist) Randall Terry to buy Super Bowl® ad time.

With time on the clock winding down, the FCC threw the flag on self-proclaimed presidential candidate Randall Terry. Ruling him ineligible (on a couple of counts), the Commission rejected Terry’s effort to force Chicago’s WMAQ-TV to sell him advertising time during its carriage of the Super Bowl®.

Terry’s attempted time-buy in support of his supposed candidacy raised again an issue that has popped up in recent political campaign seasons: how are broadcasters supposed to deal with self-proclaimed candidates for federal office looking to buy advertising time during which they can address controversial content – in Terry’s case, abortion – free from any editorial control by the station. In its decision released barely 48 hours before kick-off in the Big Game, the FCC provided a little guidance on this matter, and a reprieve for stations faced with a difficult decision about airing such advertising during the Super Bowl®.

Disputes regarding the broadcast of controversial political advertisements arise almost every election year as a result of longstanding statutory and regulatory requirements that stations provide “reasonable access” (i.e., sell advertising time) to “legally qualified candidates” for federal office. Under these rules, if a bona fide federal candidate wants to buy time on a station, the station must sell the candidate some ad time. And importantly, the broadcaster cannot edit or censor the content of the advertising that candidate chooses to air. 

In the current election cycle, anti-abortion advocate Randall Terry has attempted to take advantage of these rules. Claiming that he is federal candidate, he invokes the “reasonable access” requirement in demanding time to broadcast his political advertisements, which include graphic images of aborted fetuses. Most notably, presumably to garner the maximum number of eyes, he tried to buy time during the Super Bowl®. 

While a number of stations agreed to sell him spot time, WMAQ-TV, Chicago’s NBC affiliate (and, therefore, the local Super Bowl® outlet this year), refused. Terry filed a complaint with the FCC on Monday, January 30. He asked the Commission to force the station to carry his advertisements. The FCC, in something approaching record time, released a decision on Friday, February 3, denying the complaint on two grounds.

First, the FCC agreed with WMAQ-TV that Mr. Terry had not made the necessary “substantial showing” that he was a legally qualified candidate.  Under the FCC’s rules, to take advantage of the rules requiring “reasonable access” for legally qualified candidates, the “candidate” looking for access must make a “substantial showing” that he or she is in fact a bona fide candidate. In addition to having satisfied the legal qualifications for the office he/she claims to be seeking, the “candidate” must also demonstrate that he/she has engaged in some campaign activities, such as speeches, distributing literature, etc. 

In its decision, the FCC concluded that Terry failed to make this showing, either in his initial request to WMAQ-TV or in the information he provided to the FCC. According to the Commission, Terry failed to (a) show where he distributed campaign literature or (b) demonstrate that he campaigned in a substantial portion of the state of Illinois. The Commission also acknowledged a letter submitted by the Democratic National Party stating that Terry did not qualify as a bona fide candidate under Democratic Party rules, and therefore could not claim to be a candidate for the Democratic primary. The FCC’s decision does not definitely state that the DNC’s letter in fact prevented Terry from being a legally qualified candidate. However, the decision clearly suggests that WMAQ-TV could reasonably consider the DNC’s letter as a factor undermining Terry’s effort to show that he was, in fact, a bona fide candidate.

The second basis for the Commission’s decision was independent of the first. The FCC concluded that even if Terry were a legally qualified candidate, he would not be entitled to purchase advertising time during a specific program – in this case, the Super Bowl®.  

The Commission has long held that the “reasonable access” requirements do not entitle candidate to request ad placement during specific programs. At least in part, this arises from the interplay of the reasonable access mandate and the “equal opportunity” mandate, which requires that if a station sells time to one candidate, it must sell equivalent time to that candidate’s opponents. 

In Terry’s case, the Commission recognized the obvious: the Super Bowl® occurs only once a year, it enjoys extremely high audience ratings, and there is little or no advertising availability at the last minute. Because of those factors, it would have been virtually impossible for WMAQ-TV to afford to other candidates advertising opportunities equivalent to time during the Big Game. Accordingly, the Commission concluded that WMAQ-TV’s refusal to sell time to Terry was not unreasonable, regardless of his qualifications as a candidate. 

We are sure that the battles over controversial candidate advertising are far from over, but at least for the 2012 2Super Bowl®, the final whistle appears to have blown.
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Webinar on Political Broadcasting Rules Now Available

Posted on January 14, 2012 by FHH Law

FHH’s Frank Jazzo and the FCC’s Bobby Baker headline a comprehensive refresher course

With the Iowa caucuses and the New Hampshire primary already fading in the rear-view and the bright lights of Election Night peeping up over the horizon, there can be little doubt: Campaign 2012 has kicked into high gear. The prime primary season is coming on fast, and the real deal election will not be far behind – so if you’re a broadcaster and you haven’t yet developed your plan for dealing with the political broadcasting rules, time’s a-wastin’.

Anyone looking for a refresher course need look no further: we here at Fletcher Heald (in cooperation with a number of state broadcast associations) recently presented a webinar surveying the political broadcasting rules. Led by Frank Jazzo, the presentation featured Bobby Baker, the FCC’s guru on all things political. (Technical note: Bobby’s formal title is Assistant Chief of the Media Bureau’s Policy Division.) For more than an hour and a half Frank and Bobby reviewed the most important aspects of the rules, providing useful tips on how those rules work in the real world. (Frank and Bobby also took a few questions from the audience.)

If you missed the show, you can still catch it in re-runs.  Access the full audio-visual experience by clicking here to get to the WMV recording of the program. (Once you click on the link, you should be prompted to open the file; it’s a big file, and may take a couple of minutes to load.) If you only want to review a PDF of the underlying PowerPoint presentation, click here.

One other alternative – make arrangements for Frank (or another member of the FHH team) to provide you and your organization your own webinar.

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Lowest Unit Rate and Internet Streaming

Posted on December 21, 2011 by Frank Montero

[Blogmeister Note: The following piece, in a more compact form, appeared in Radio Ink magazine. We thank our friends at Radio Ink for allowing us to post this here as well.]

As we enter the political season, radio stations are being bombarded with reminders about the FCC’s political broadcasting rules – including, of course,  the lowest unit rate (“LUR”) requirement for many, but not necessarily all, political spots. 

LUR, of course, means that stations must provide all political candidates (federal, state and local) with the LUR for advertising bought during a statutorily-specified pre-election windows.  Those windows include the periods: (a) 45 days before a primary election, and (b) 60 days before a general election. 

In general terms, the LUR is the lowest rate of the station for a particular class and amount of time during a particular period.  “Lowest” means lowest.  Thus, candidates must get the benefit of all discounts, including those offered to the station’s most favored commercial advertisers for the same class and amount of time for the same period as that purchased by the candidate.  Note that only ads bought by candidates are entitled to receive LUR. Also, federal candidates must provide the “stand by your ad” certification in order to be entitled to receive the LUR. 

A spot “class” is one that has particular rights and characteristics, such as morning drive,  afternoon drive, fixed position, ROS, etc.  In many instances calculating the LUR for different classes of time can be relatively simple. But in other instances – particularly when different classes are bundled into packages for non-political advertisers, the calculation can get tricky fast.  Unlike state and local candidates, federal candidates cannot be denied “reasonable access” to a station, which means that they are effectively entitled to any and all commercial opportunities as a standard advertiser. (State and local candidates can be limited to certain classes.) So for federal candidates, stations must determine the per-class LUR for each component of the package and make that rate available to the political advertiser, whether or not he/she buys the whole package

That process is already confusing enough – and it has gotten increasingly so as stations have expanded their streamed content on the Internet. How does Internet streaming of content – including political spots – affect LUR calculations?

First, you should know that the LUR requirement does not apply to Internet-only advertising time.  However, broadcasters operating websites should be careful to distinguish sales of Internet-only advertising time from sales of over-the-air advertising time. This is especially so if an advertising package includes broadcast spots as well as Internet-only advertising. Example: a candidate buying over-the-air spots receives, as part of a package, a banner ad on the station’s website.  Such packages may impose obligations on a station with respect to political advertising sales and the value of the Internet component may impact the station’s LUR. 

If a station offers a combined package of broadcast and Internet advertising, LUR rules will apply to the broadcast component.  Also, remember that the equal time requirements apply so if the station sells a package with broadcast spot time and Internet spots to one candidate, then the same should be made available to competing candidates for the same office. In short, be careful when selling combined broadcast and Internet advertising packages and be aware of how such bundling may impact the LUR and your bottom-line.
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Heads Up! It's Politics As Usual For Halloween!

Posted on October 29, 2010 by Jeff Gee

If candidates come trick or treating at your station this weekend, don’t lose your head.

It’s alive!!! The Campaign Season That Would Not Die still walks among us!  As Halloween approaches, so does the end of mid-term election season.  Notwithstanding the likely onslaught of ghoulies, ghosties, long-legged beasties, things that go bump in the night – and zombies – broadcasters need to remain alert to their political advertising obligations, especially during this last weekend of the campaign season. 

In particular, broadcasters need to continue to comply with the reasonable access rights of federal candidates.  For some stations, that includes remaining available to receive or change orders from federal candidates over the weekend.  Specifically, if a station has provided weekend access to any commercial advertiser, the station must provide the same access to federal candidates.  (This weekend access need only be to the same extent granted to commercial advertisers – so, for example, if the station never takes new orders over the weekend from commercial advertisers, the station doesn’t need to do so for federal candidates.)

This right of access does not extend to state and local candidates or non-candidate political ads.  As our long-time readers know, candidates for state/local offices and third party political advertisers do not have the reasonable access rights granted to federal candidates.  State/local candidates, however, do have equal opportunities rights, so if a station offers weekend access to any candidate for state/local office, equivalent access must be offered to all candidates for that particular office.

Finally, to the extent stations are receiving political advertising requests over the weekend, they should continue to keep their political files up-to-date regarding those requests.

Good luck, and happy trick or treating.

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Spotlight On: Jeff Gee, Media Darling

Posted on October 16, 2010 by FHH Law

If you happened to be in the DC area on October 15 and switched on the local news on Fox 5, you probably saw FHH’s own Jeff Gee, who served the role of political broadcasting guru and savant (although the station chose the more modest title “Media Attorney” to flash on the screen) in a piece about political broadcasting. In case you missed it, here it is: 

Jeff was the obvious choice here. He regularly creates and conducts training programs for broadcasters to bring them up to speed on the nitty-gritty details of FCC regulations. And just a couple of months ago he presented a webinar on the ins and outs of political broadcasting to the Maryland-D.C.-Delaware Broadcasters Association. (Interested in having Jeff address your organization on the political rules? Contact us – he’s available.)

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Hillary Clinton Heading to the Supreme Court?

Posted on November 17, 2008 by Kevin Goldberg

Maybe, but not as a Justice.  Nor, technically, as a litigant.  Instead, she's at the center of a controversy involving whether a documentary film entitled "Hillary: The Movie":

 

is an “electioneering communication” under the Bipartisan Campaign Reform Act of 2002 (also known as "BCRA" or the "McCain-Feingold Law").  A finding that the movie is an “electioneering communication” would limit the programming that could be offered by broadcasters on political candidates and topics; it would also subject the movie’s producers to extensive disclosure obligations.

Technically, an “electioneering communication” is any paid broadcast, cable or satellite programming that: (a) “refers to a clearly identified” candidate for Federal office; and (b) is telecast within 60 days of the general election or 30 days of a primary; in the case of a presidential candidate, it must also be received by 50,000 or more people. (Some exemptions exist for news stories, editorials and the like, as long as the broadcaster is not controlled by a political party or candidate.)

The distinctly anti-Hillary documentary was produced by the not-for-profit organization "Citizens United", which claims it is "[d]edicated to restoring our government to citizen control".   "Hillary: The Movie" was released in January, 2008, in the thick of Senator Clinton's run for the Democratic presidential nomination. Citizens United released the movie in theaters and on DVD.  No problem there.

But Citizens United also wanted to offer the movie for pay-per-view purchase on cable systems nationwide, and it wanted to broadcast ads for the DVD and movie showings.  In order to avoid getting crosswise with BCRA, it first sought a declaratory ruling from the United States District Court for the District of Columbia that the film did not run afoul of McCain-Feingold, as that law was interpreted by the Supreme Court in McConnell v. Federal Election Commission (2003) and FEC v. Wisconsin Right to Life, Inc. (a 2007 decision previously discussed addressed in this blog),

The District Court ruled that the film was an electioneering communication as defined in BCRA because the only reasonable interpretation was that the film was intended as an appeal to vote against Clinton.  Accordingly, under BCRA, Citizens United would not be able to show the movie on broadcast or cable television.

And while ads for the movie (and DVD) would not themselves be “electioneering communications”, broadcast of the ads would subject Citizens United to considerable, detailed disclosure requirements (including disclosure of Citizens United donors) and the airing of a disclaimer containing the identity of those responsible for the content, as well as the name and address of the corporation (in this case a non-profit) that paid for the advertisement. 

By law, Citizens United was able to – and did – appeal directly to the United States Supreme Court. On November 14, 2008, the Supremes agreed to hear the case later this term.

While the overall outlines of BCRA’s “electioneering communications” rules have previously been upheld, the applicability of those outlines to particular cases remains an open question. In 2007 a sharply divided Supreme Court held that certain advocacy ads could not properly be held subject to those rules. Citizens United is presumably hoping for at least such a ruling in its case, if not a broader holding affording appropriate First Amendment protections to a greater range of announcements.

While this case does not directly address the rights and duties of broadcasters, those rights and duties are likely to be affected by whatever the Court does. The Court might narrow the definition of “electioneering communications”, thereby removing a disincentive for some potential advertisers. Or the Court might at least clarify precisely the line between communications which are “electioneering” and those which are not – thus providing all concerned with useful practical guidance.  Of course, if the Court sides with the government, broadcasters will continue having to vet every piece of politically-oriented programming – not just commercials – to determine whether it could trigger BCRA regulations.

This is a case rife with irony.  Another rival for the presidency – John McCain – co-authored the law which is effectively protecting Hillary Clinton's reputation. The current Administration, repeatedly and harshly criticized by Senator Clinton, will be defending the law (and, by extension, protecting her from attack). 

Citizens United's basic argument should be palatable to broadcasters:  regulation of this type of movie could lead to similar regulation of other media which also could influence elections, including books, magazines and even newspaper editorials or op-eds.  Its brief contends that the court must recognize a fundamental difference between an advertisement and a movie that merits different treatment under BCRA.

So, essentially, it appears that the court is being asked to decide whether content is king or the medium is the message...
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Palin, the First Amendment and the Media - Need for Concern?

Posted on November 1, 2008 by Kevin Goldberg

In September's "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are - to the extent they have been stated - rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).

We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry. 

While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

Hold on; wait a minute. ‘First Amendment rights’? What’s she talking about? As just about any first-year law student understands - and many others as well (and here’s a shout out to the undergraduate students in Comm 475 - Journalism Law at George Mason University – you get no extra credit on the exams being graded this weekend even if you're reading this blog) - the First Amendment is directed against the Government, not the media.

(Quick refresher: The First Amendment provides in relevant part that “CONGRESS shall make no law . . . abridging the freedom of speech, or of the press” (emphasis added). While the First Amendment clearly applies to all government entities and not just Congress, private individuals or entities, including “the media”, still are not limited in any way by the First Amendment.)

So when Governor Palin suggests that her dust-ups with the media might somehow affect our “First Amendment rights” in the future, it’s worth taking a second look here. It’s probably too big a stretch to suggest that, as Vice President, Palin would seek to restrict the rights of freedom of speech and the press in any way. But it does make us wonder whether she might think it either necessary or appropriate to try to prevent, or at least discourage, similar “attacks” by the “mainstream media” in the future.

Short of a repeal of the First Amendment - and we obviously don’t think that that's even conceivable, much less practically likely - there are precious few ways in which the Federal government might attempt to soften the blows delivered by “the media”, particularly during political campaigns. Instituting further changes to the media ownership rules provides no obvious change. It would be virtually impossible to make the necessary amendments to the political broadcasting rules to consider “attacks” in the context of news or editorial broadcasting to be a use which triggers equal time. 

So perhaps the most obvious of those alternatives would be a resurrection of the Fairness Doctrine. But the Fairness Doctrine was mustered out of service more than 20 years ago, and it is hard to imagine why it should be returned to active duty now. Still, in light of Palin’s expressed concerns about the “future of our county . . . in terms of First Amendment rights”, we might all want to keep an eye on this should Palin wake up on November 5 to find herself in a position to influence Federal communications policy.

(We note that any effort by Republicans to bring the Fairness Doctrine back would seem ironic in view of the speculation by a number of conservative commentators that an Obama Administration, with the support of a Democratic-controlled Congress and FCC, might seek to re-impose the Fairness Doctrine, supposedly as an antidote against conservative talk radio.)
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