The Randall Terry Anti-Abortion Super Bowl Ad Vs. Broadcasters - Behind The FCC Ruling

Gregg Skall
Comble Carlyle Sandridge & Rice, LLP

On Friday Feb. 3rd, the FCC has ruled that broadcasters are not required to sell Randall Terry, or any other candidate, time in the Super bowl or its pre-game shows. Terry had demanded that broadcasters run his graphic anti-abortion advertisements under mandatory access during Sunday’s Super bowl game and pre-game programming. Terry, who purports to be running in the democratic primary in a number of states, had claimed that stations were required to accept his ads under Section 312(a)(7) and may not censor them under Section 315 of the Communications Act.

Terry is known as an anti-abortion activist. His planned advertisements contain graphic anti-abortion visuals which, according to the online magazine Slate, have been “tweaked to qualify as campaign ads for his run for the nomination-via a loophole in the FCC's Communications Act.” His proposed ads can be viewed here. [***Warning - They are VERY Graphic] The Christian Science Monitor reported that “Terry acknowledges his campaign is designed to take advantage of FEC and FCC regulations allowing federal candidates to run uncensored ads” to “bring America face to face with this massacre of the innocents.”

On January 31st, Terry’s lawyer filed a complaint at the FCC against 13 stations that have refused to run his ads. Another complaint was filed against WMAQ-TV, the NBC affiliate in Chicago, which had also refused his ads on the basis that he was not a legally qualified candidate for the Democratic Party nomination of President of the United States. It also argued that even if Terry were a legally qualified candidate, the right to reasonable access would not guarantee him ad placement in a specific program such as the Super Bowl.

The Commission made two findings. First, it concluded that it was not unreasonable for WMAQ to conclude that Terry is not a legally qualified candidate entitled to reasonable access to broadcast stations in Illinois. Second, even if he were a legally qualified candidate, WMAQ’s refusal to sell time to him specifically during the Super Bowl broadcast was not unreasonable.

In a formal sense, the Commission’s ruling rests on the ground that Section 312(a)(7) does not require any broadcaster to sell time in specific programs, particularly where time is demanded in a highly rated program which is broadcast only once and their advertising availabilities are limited such that it would be “very difficult for a licensee to afford ‘equal opportunities’ to opposing candidates.”

The Super Bowl is widely considered the most popular television program of the year. CBS’s 60 Minutes reported that it should attract some 163 million viewers. In essence, the Commission decided that if any program qualifies for the described exception, it would be the Super Bowl. Therefore, any broadcaster should be justified in relying on the WMAQ-TV decision to reject Mr. Terry’s demands for Super Bowl programming access.

Notably, the Commission also concluded that, at least in Illinois, Terry is not a legally qualified candidate for the Democratic Party nomination for President, and therefore, at least in Illinois, not entitled to the benefit of mandatory reasonable access at all.

Section 73.1940 of the Commission’s rules defines a “legally qualified candidate” for nomination for the office of President as, inter alia, any person: who has publicly announced his or her intention to run for nomination; is qualified under the applicable local, State, or Federal law to hold the office for which he or she is a candidate; and has either qualified for the primary ballot or makes a substantial showing that he or she is a bona fide candidate.¹ The Commission’s letter explains that “[t]he term ‘substantial showing’ of a bona fide candidacy . . . means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning.” It is the candidate’s burden to make that demonstration to the station when demanding access rights. Based on the showing presented by Terry to WMAQ, the Commission concluded he had not met that test.

The decision also cites the January 27th, 2012 letter from Patrick Gaspard, Executive Director of the Democratic National Committee (“DNC Letter”) wherein Mr. Gaspard “proclaims that Mr. Terry ‘cannot satisfy’ the ‘presidential candidate’ requirements under Democratic Party rules” and, therefore, argues that “Terry did not and could not prove to WMAQ that he was a ‘legally qualified candidate’ entitled to ‘reasonable access’ because the Democratic Party does not consider him an actual candidate for its presidential nomination.” This Commission cited this letter as additional weight to support its holding that Terry has not established his candidacy as bona fide in Illinois.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing

¹ 47 C.F.R. § 73.1940.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.