Presidential Candidate Reasonable Access: Here’s the Deal!

In these last days of the presidential election, I am hearing that some stations are being flooded with so much demand by the presidential campaigns that they actually want to turn some down. That raises the question: can they? The answer is probably not, but yes under very strained and stringent circumstances.

So: Here’s the deal, as one candidate might say.

The Communications Act clearly states that all federal candidates are to have “reasonable access” to broadcast facilities. The Communications Act authorizes the FCC to revoke a station license:

... for willful and repeated failure to allow reasonable access or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.

While the use of the word “reasonable” twice in the same sentence of this law might at first suggest a balance between candidate and licensee needs, the Supreme Court has interpreted the provision as requiring that a licensee accommodate all federal candidate requests unless there exists a realistic danger of substantial program disruption. Commission staff has suggested that candidates must negotiate their demands with broadcasters and that accommodations are especially appropriate for requests involving non-standard length or placement. Nonetheless, if a dispute remains, it is more likely that the Commission and the courts will favor the candidate rather than the licensee, reasoning that the candidate’s needs to address the public are paramount. Access cannot be denied on the basis of content.

The Commission has set out the following guidelines for determining whether a licensee’s judgment in affording access was reasonable for legally qualified candidates for federal office:

• Reasonable access must be provided to legally qualified federal candidates at least during the 45-day period preceding a primary or runoff election and 60 days before a general election. We are in such a period. The Commission will determine the issue of reasonable access on a case-by-case basis. It is likely to be guided by a 1980 Supreme Court decision which held that stations must provide reasonable access to federal candidates if the request for time outside the 45- or 60-day period will not cause serious disruption.
• Except as noted below, a broadcaster must afford federal candidates all the types, lengths and classes of program time that a candidate may request unless running the requested political program or advertisement would severely disrupt the station’s schedule. Thus, a television station might be able to reject a request for a 10-minute prime time political broadcast on the ground that it could not fill the remaining 20 minutes of the half hour. Radio stations, however, probably could not make the same claim since most radio programming normally is not limited to specific time lengths.
• Stations may bar candidates from spot positions during newscasts but must make access available for news adjacencies. This ban may extend to all news broadcasts, to only certain programs (i.e. the 6 p.m.but not the11 p.m. news) or to only specified portions of a newscast (i.e. to the “hard news” segments but not to sports or weather).
• Stations may refuse political advertising on the Election Day itself, but such a policy must apply to all federal candidates; that is, once any federal candidate is allowed to purchase advertising on Election Day, then all federal candidates must be afforded access as well.
• Commercial stations must sell spot announcements to legally qualified federal candidates during prime or drive time.
• If a commercial station chooses to donate time to legally qualified federal candidates rather than sell time, it must donate it on the same basis it sells time to non-political advertisers; that is, the same lengths, classes and time periods must be available. Once a station donates time to one legally qualified candidate, it must be prepared to donate equivalent amounts of time to all opposing candidates who request it.

When an access issue arises, the Commission confines its analysis to two questions:

• Whether the broadcaster followed the proper standards in deciding whether to grant a candidate’s request for access; and
• Whether the broadcaster’s explanation of its decision is reasonable in terms of those standards.

In considering the first of these questions, the Commission follows the admonition of the Supreme Court 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.” To limit access, broadcasters may consider the following factors:

• How much time was previously sold to the candidate;
• The number of candidates in a particular race;
• The equal opportunities likely to be requested by opposing candidates and the probable timing of such requests;
• The potentially destructive impact on the station’s regular programming.

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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.