FCC DENIES CLAIM BY MAN CLAIMING TO BE A U.S. PRESIDENTIAL CANDIDATE FOR AD BUY ON WMAQ/CHICAGO
Every political season draws requests/demands by fringe and less-well-known candidates who want to buy ads promoting their candidacy on a radio or television station. For people running for President of the United States, stations must sell ad time to an individual only if he/she is a “legally qualified candidate.”
On February 6, 2012 the Federal Communications Commission denied a claim by an individual, Randall Terry, wanting to buy ad time on Chicago’s NBC affiliate, WMAQ, during the Super Bowl. Terry claimed he was running for President. WMAQ refused the ad buy claiming that (1) Terry was not a legally qualified candidate as that term is defined by the FCC’s rules (47 CFR Sec. 73.1940) and (2) even if Terry was a legally qualified candidate, he cannot demand an ad buy during any particular part of the broadcast day under the Federal Communications Act (47 USC Sec.312(a)(7) and the Commission’s corresponding rules (47 CFR Sec. 73.1944).
According to The Hollywood Reporter, Terry was an anti-abortion candidate and the ad he wanted to run on WMAQ featured a photo of an aborted fetus. A few stations in other parts of the country had run Terry’s ads.
The Commission first turned to the definition of “legally qualified candidate” found in its rules: a person who has publicly announced his/her intention to run for nomination, is qualified under the applicable law to hold the office for which he/she is a candidate and has either qualified for the primary ballot or makes a substantial showing the he/she is a bona fide candidate. The FCC’s rules define “substantial showing” as engaging “to a substantial degree in activities commonly associated with political campaigning” including making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee and establishing campaign headquarters (even if headquarters is only the residence of the candidate).
WMAQ argued that Terry had not made a substantial showing the he was a bona fide candidate since he had only made a few campaign stops in a small geographic section of Illinois and did not demonstrate that he had participated in campaign activities throughout a substantial portion of the state. WMAQ added that the only piece of literature that Terry claimed to have distributed was labeled “generic brochure” and lacked various legal disclaimers required by federal law so it was likely that the literature had never been distributed at all.
The station presented a letter from the Democratic National Committee noting that Terry did not meet the Party’s qualifications to be an actual candidate for President.
The candidate has the burden of proving that he has made a substantial showing that he is a candidate because television stations cannot be expected to investigate the activities of every so-called candidate to determine if that candidate meets the qualified candidate definition. The Commission stated that just because other stations had run Terry’s ads did not prohibit another station from making a contrary determination about his candidacy.
Therefore, the Commission ruled that Terry had not made a substantial showing that he was a bona fide candidate for the Democratic nomination for President.
Although the Commission could have ended its opinion at that point, it chose to determine the issue of whether Terry, even if he had proved he was a bona fide candidate, could require WMAQ to run his ad during the Super Bowl. The Commission’s rules require stations to provide “reasonable access” to legally qualified candidates for federal office. The Commission had issued earlier rulings that required stations to provide this access during all parts of a station’s broadcast day excluding news programming. But the Commission has also ruled that a candidate is not entitled to demand that his/her ad run in a particular place on the station’s schedule especially if the program demanded is broadcast only once or rarely. WMAQ had argued that it would be difficult to provide all candidates running for office reasonable access to any one program especially the Super Bowl where the local station’s inventory of available local ad spots was very limited. In addition, WMAQ’s broadcast area covered three different stations each of which have primaries for various federal offices which might lead to a “multiplicity” of federal candidates demanding time on the Super Bowl.
Therefore, the Commission denied Terry’s demand for ad time (i.e., reasonable access) to the Super Bowl.