For "Reasonable Access" Purposes, Predicted NLSC Determines a TV Station's Service Area

Bureau rejects station’s reliance on Longley-Rice study to show that its service area does not reach the state where pro-life presidential candidate Randall Terry is on the ballot.

With less than a week to go before Election Day, the Media Bureau has ordered Station WUSA(TV), the CBS affiliate here in Washington, to sell time to pro-life presidential candidate Randall Terry. But Terry’s not on the ballot in Washington. Nor is he on the ballot in adjacent Maryland or Virginia.  No problem, said the Bureau, because he is on the ballot in West Virginia. And despite WUSA’s claims to the contrary, the Bureau concluded that WUSA’s predicted signal contour covers enough of West Virginia to subject the station to the statutory requirement to provide “reasonable access” to any qualified candidate for federal office.

This decision is of particular importance to stations whose predicted signals may extend into multiple states, because it could result in “reasonable access” burdens beyond what such stations might otherwise expect. Just ask WUSA.

Section 312(a)(7) of the Communications Act requires broadcast stations “to allow reasonable access to or to permit the purchase of reasonable amounts of time for the use of a broadcast station . . .by a legally qualified candidate for federal elective office.” A candidate seeking air time must meet two requirements: (1) the candidate must be qualified to be on the ballot, and (2) the station’s service area must cover the area where the candidate is qualified.  Terry demonstrated that he is qualified to be on the ballot in West Virginia, but not Maryland, Virginia, or the District of Columbia.  So the question boiled down to whether WUSA serves West Virginia.

In the old analog TV days, the FCC held that a station’s Grade B service contour determined the area it serves for political access purposes. In the digital world, the noise-limited service contour (NLSC) has replaced the Grade B contour.  According to the FCC’s standard prediction method, WUSA’s predicted NLSC contour covers about 3% of the population of West Virginia.

Wait a minute, cried WUSA.  The “predicted NLSC” that Terry was relying on was just that – a prediction – and it did not (according to WUSA) accurately predict the station’s actual reception capability.  To bolster that claim, WUSA submitted a Longley-Rice terrain-limited coverage study showing that, sure enough, the station’s signal gets blocked by intervening mountains before it can get into West Virginia. Since the FCC routinely relies on Longley-Rice analyses for a wide range of engineering showings, WUSA argued, the Commission should do the same for political access purposes, too. 

The Bureau was not persuaded. As it sees it, the Commission’s own website provides a depiction of WUSA’s NLSC as part of WUSA’s Station Profile, and that’s what everyone is going to have to use.  That NLSC demonstrates that WUSA covers nearly 3% of the population of West Virginia. That’s too much to qualify for the de minimis exception to the political access statute. WUSA has to cough up the time to Terry’s campaign.

Importantly, the Bureau’s decision was issued under the time pressure of the fast-approaching election. The Bureau acknowledged that its decision was influenced by the “short time remaining before the election” and the need to issue a “prompt decision”. Whether a more extended deliberative process – with public comment and plenty of time to really knock the issue around – would have led to the same result is not clear. What is clear is that, at least for this election, the predicted NLSC will determine the extent of a station’s signal for purposes of determining “reasonable access” obligations.

One intriguing sidenote: the Bureau acknowledged that WUSA itself distributed a “Media Kit” in which it asserted that the Washington, D.C. DMA includes more than 100,000 viewers in West Virginia. The Bureau saw this as “WUSA market[ing] the fact that it has a service presence in West Virginia.” While the Bureau does not appear to have relied on this factoid in reaching its decision, it’s reasonable to assume that the WUSA Media Kit didn’t do much to bolster WUSA’s claims that it doesn’t serve West Virginia at all.

And one last observation.

Warning:  We have seen the Terry spots.  Viewers who are easily offended might wish to turn to another channel – if they can find one where Terry doesn’t buy ads in the closing days of a frenetic campaign.  Terry’s ads are focused on his pro-life philosophy and are intended to shock viewers with graphic images of aborted fetuses, as well as comparing the President of Planned Parenthood to a Nazi.  Most stations consider these spots highly offensive (they are intended to be at least shocking) and would prefer not to carry them. Tough. An earlier FCC decision, upheld by a court, prevents stations not only from refusing the ads but also from channeling them to late night hours when children are least likely to be in the audience.  All time periods must be made available.  The politicians here in Washington who decry censorship are about to have some tough stuff thrown in their faces on local TV.

FCC Declares Terry an Ineligible Receiver . . . For Now

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.