What is Reasonable Access?

Or, Do I Really Have To Let That Son Of A ... (Gun ) Use My Station?

A question that comes up again and again every political season is: To whom do I have to sell time? While broadcasters are usually happy for the additional revenue opportunities presented by political advertising, there are reasons for not wanting to carrying some spots -- for example inventory concerns or the consequences of opening the station up for equal opportunities claims by competing candidates. Sometimes the ad may be so offensive that the broadcaster doesn't want to carry it just as a matter of community relations. Below is a link to an ad that many broadcasters tried to refuse. Listen the mp3 and you'll know why.

So, sooner or later, the question always comes in, "Do I have to take that ad, carry that candidate, or cover that race?"

What makes it even more confusing is the Equal Opportunities doctrine. Most every broadcaster knows that under Section 315 of the Communications Act, equal opportunities have to be made available to all legally qualified candidates for the same political office. So if that applies to all candidates, do you have to make the station available to all candidates who want to buy time?

The answer is no. The question of "access" to your station is far different than the question of how to treat candidates equally under Section 315. Access is governed by Section 312(a)(7) of the Communications Act and provides only "reasonable access" to purchase "reasonable amounts of time by a legally qualified candidate for federal elective office on behalf of his candidacy."

So here is the difference: Equal Opportunities applies to ALL legally qualified candidates, whether they are running for local, state or federal office. It is only required once a competing candidate for the same office has already made use of the station.

Mandatory reasonable access is required to be afforded only to candidates for federal elective office, as long as they request it, without regard to any prior use by a competing candidate.

The history of the requirement is interesting and illuminating as to what it actually means. "Reasonable Access" was first addressed by the FCC in 1979, and later the U.S. Court of Appeals. In Carter/Mondale Presidential Committee, Inc., that court ruled that Section 312(a)(7) of the Communications Act requires that federal candidates' requests for access must be considered individually, on a case-by-case basis. In other words, a station may not make a flat policy that, for example, it will not sell more than a specific amount of time, or specific program adjacencies to a federal candidate. It must take the campaign's own perceived needs or strategy into account in the determination of what is to be made available.

Later, in a case called People for the American Way and Media Access Project, the Commission decided that broadcasters can be required to sell non-standard lengths of time, such as five minutes, to legally qualified candidates for federal elective office. The Commission emphasized that Congress' motive under Section 312(a)(7) was to provide wider, less-fettered dissemination of political speech and "give candidates for public office greater access to the media to better explain their stand on the issues, and thereby more fully and completely inform the voters." Federal candidates have an undeniable right to purchase "reasonable" amounts of time, even in lengths not recently used by the broadcaster or a commercial advertiser.

But neither is the federal candidate's right of access absolute. In fact, the Commission views its role as assisting broadcasters and candidates to strike an appropriate balance between political speech and undue burdens on other programming. It does not apply an objective, quantifiable standard of how much time is reasonable. Rather, it relies on the reasonable, good faith judgment of licensees and an obligation on each party to come to a reasonable accommodation, taking into account the candidate's campaign strategy and the imposition on the station.

In People for the American Way the Commission declared that it confines its analysis to two questions:

1. Whether the broadcaster followed the proper standards in deciding whether to grant a candidate's request for access; and
2. Whether the broadcaster's explanation of its decision is reasonable in terms of these standards.

To answer the first question, the broadcaster must consider the factors set forth in Carter/Mondale. These factors include:

1. How much time was previously sold to the candidate;
2. The potentially destructive impact on the station's regular programming;
3. The likelihood of equal opportunities requested by opposing candidates; and
4. The timing of the request.

The Carter/Mondale court provided further guidance that the Commission follows, namely that "... to justify a negative response, broadcasters must cite a realistic danger to substantial program disruption - perhaps caused by insufficient notice to allow adjustments in their schedule - or of an excessive number of equal time requests."

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.