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.