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.