FOR RECORD ONLY $// National Association of Broadcasters, FCC 94-225 //$ $/ 300.312 Reasonable Access for Federal Candidates /$ $/ 73.1944 Reasonable Access /$ Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In re Request for ) FCC 94-225 Declaratory Ruling of ) ) NATIONAL ASSOCIATION OF ) BROADCASTERS ) ) Regarding Section 312(a)(7) ) of the Communications Act ) MEMORANDUM OPINION AND ORDER Adopted: August 31, 1994; Released: By the Commission: 1. The Commission has before it a request filed on August 18, 1992, by the National Association of Broadcasters ("NAB") seeking a declaratory ruling that broadcast stations need not provide legally qualified candidates for federal office with program time in increments other than those which the station ordinarily sells to commercial advertisers or which it ordinarily programs. In the alternative, NAB asks for a ruling that stations need not sell such time during programming not produced by the station itself (e.g., programming produced by networks and syndicators). In order to establish a fuller record and particularly to afford interested parties an opportunity to participate, on October 23, 1992, the Commission sought public comment on the issues raised by these filings. 2. The Commission also ruled that in the interim period until resolution of this request, licensees should continue to rely on the Commission's guidelines for responding to reasonable access requests first articulated in the Commission Policy in Enforcing Section 312(a)(7) of the Communications Act ("1978 Policy Statement"). In addition, the Commission stated that such guidelines "do not mean that broadcasters will be required to provide five minutes or other non- standard lengths of program time to candidates in any particular instance." The Request for Declaratory Ruling 3. NAB argues that the 1978 Policy Statement prohibited broadcasters from establishing bans on the lengths of advertising time made available to commercial advertisers, but did not require the sale of every conceivable length of time desired by a candidate. NAB argues further that the fundamental intent of the Commission in the 1978 Policy Statement is to provide federal candidates with access to the various classes and lengths of time a station actually sells to commercial advertisers. NAB thus urges the Commission to infer from the 1978 Policy Statement that stations need not sell time to candidates in increments which the stations neither sell to commercial advertisers nor program themselves. Comments 4. The majority of commenters support NAB's request and recommend that the Commission not promulgate specific rules mandating that broadcast stations must provide legally qualified candidates for federal office with program time in increments other than those which the station ordinarily sells to commercial advertisers or which it ordinarily programs. These commenters suggest that longstanding Commission precedent prohibits flat bans only in connection with the lengths of time it has made available to commercial advertisers. Many commenters believe that unless a station has made odd program lengths available to commercial advertisers or has chosen to program particular odd lengths such rules would place a substantial burden on broadcasters for two essential reasons: (1) stations could face severe technological burdens because of the difficulty of delaying programming to accommodate political advertisements of nonstandard lengths; and (2) because of contractual obligations with both syndicators and networks, a station may not have five-minute, or other odd length periods of time to offer a client. 5. In contrast, reply comments submitted by the Media Access Project/People for the American Way (MAP/PAW) point to Commission and court decisions which, it contends, hold that a broadcaster cannot arbitrarily refuse to sell an ad of a certain length. They agree, however, that the Commission should not require a broadcaster to sell odd blocks of time to candidates in every circumstance, particularly where the request does not come sufficiently far enough in advance of the requested programming date. MAP/PAW argues that permitting licensees to choose whether or not to sell odd-length program time would conflict with the Commission's longstanding interpretation of Section 312(a)(7), which requires that requests for access by federal candidates must be considered individually on a case-by-case basis thereby prohibiting a blanket policy on sales of any particular length of time. Discussion 6. Section 312(a)(7) of the Communications Act provides: The Commission may revoke any station license or construction permit...for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy. The Commission has not established formal rules outlining specifically how much time would satisfy this requirement. Instead, it has relied on the reasonable good faith judgment of licensees to provide time to federal candidates. In determining whether a particular licensee's judgment in affording access to advertising time is reasonable, the Commission has essentially confined itself to two questions: (1) Did the broadcaster follow the proper standards in deciding whether to grant a candidate's request for access?; and (2) Is the broadcaster's explanation of his decision reasonable in terms of these standards? 7. When the Commission formulated its policies for implementing the reasonable access provision in the 1978 Policy Statement, it stated: We believe it to be generally unreasonable for a licensee to follow a policy of flatly banning access by a federal candidate to any of the classes and lengths of program or spot time in the same periods which the station offers to commercial advertisers. The Commission elaborated that: We do not believe that this policy will in any way disrupt a station's broadcast schedule. It only requires that the licensee follow its usual commercial practices. Finally, in summarizing the various policies it had established, the Commission stated that "[l]icensees may not adopt a policy that flatly bans federal candidates from access to the types, lengths, and classes of time which they sell to commercial advertisers." 8. In the 1991 political programming Report and Order, the Commission emphasized the continued viability of the reasonable access guidelines in the 1978 Policy Statement. Indeed, in the Report and Order's consideration of whether federal candidates were entitled to gain access to a broadcast facility during the weekend prior to an election to edit existing advertising or to purchase additional time, the Commission decided that such access was required only to the extent weekend access had been made available to commercial advertisers during the preceding year. The Commission stated that: We confirm that stations are required only to apply the same policies to candidates with respect to weekend access that they apply to commercial advertisers. As noted above, we believe that it is reasonable for federal candidates to expect to be treated in the same manner as commercial advertisers. 9. Similarly, with respect to "make goods," the Commission determined that broadcasters do not have to offer time-sensitive make goods to any candidate unless such a privilege had been offered to commercial advertisers during the prior year in connection with the purchase of the same class of time. Although the issue of make goods involved the "lowest unit charge" provision (Section 315(b)) of the Act and not Section 312(a)(7), it has implications for reasonable access in that the Commission decided that no candidates (federal, state or local) are entitled to time-sensitive make goods unless such an arrangement has been made available to commercial advertisers in the prior year. 10. Thus, in two contexts the Commission related specific requirements for providing access to candidates to the station's actual practices in its dealings with commercial advertisers. This is fully consistent with the reasoning in the 1978 Policy Statement that only limitations or flat bans of the kinds and lengths of time offered to commercial advertisers are prohibited. We believe that the same rationale applies to NAB's request and that accordingly broadcasters should be required to make available to federal candidates only the lengths of time offered to commercial advertisers during the year preceding a particular election period. We also believe that stations must make program time available to federal candidates in the same lengths they have programmed the station in the year preceding an election whether or not such lengths of programming time have been sold to commercial advertisers. A station's decision to program odd lengths of time should be treated in the same manner as its decision to sell odd lengths of time. In both cases, it is reasonable to require broadcasters to provide access to qualified federal candidates consistent with their own sales and programming decisions. By establishing the relevant period as one year prior to the election, the Commission is assuring that federal candidates are provided access consistent with a station's current commercial sales or programming practices. It also protects the candidate from the occasional abuse that might occur if a station changed its sales practices or programming just prior to an election period. 11. We believe that this is an appropriate interpretation of the reasonable access provision despite an apparent inconsistency with the language in one decision rendered after the 1978 Policy Statement. In Ed Noble for U.S. Senate Committee, the then Broadcast Bureau held that a station's decision not to sell a candidate five-minute program time during prime time was reasonable given the last-minute nature of the request, the potential disruption that would be caused by equal opportunities requests by opposing parties, and the station's other efforts to accommodate the candidate. However, as NAB notes, although the station did not sell five-minute program time to commercial advertisers, Bureau "dicta" in Ed Noble indicated that if a candidate in a similar situation requests five-minute program time far enough in advance, network affiliates, for example, may have to preempt one-half hour of network time, air the candidate's five-minute program, and fill the remaining time with local programming or other candidates' programming. We agree with NAB that the dicta in Ed Noble is in conflict with the explicit statements made by the full Commission in the 1978 Policy Statement, which relate the reasonable access requirements to a station's particular practices. Therefore, to the extent that Ed Noble may suggest a result contrary to our determination herein, it is superseded by this ruling. 12. Finally, with respect to MAP/PAW's argument discussed in  5, supra, that the issue of odd lengths of time should be handled on a case-by-case basis, we believe that it is preferable and appropriate to resolve this important issue by declaratory ruling rather than leaving its resolution to case-by-case determinations. The ruling clarifies our reasonable access policies for candidates and broadcasters in a manner which comports with longstanding Commission precedent. Furthermore, taking this action should help to prevent disputes between stations and candidates in the heat of election campaigns, and correspondingly to lessen our case load by providing more specific guidance to interested parties. 13. In view of the forgoing, NAB's August 18, 1992, request for declaratory ruling to the extent indicated, IS GRANTED. Federal Communications Commission William F. Caton, Acting Secretary APPENDIX FORMAL COMMENTS CBS Inc. Haley, Bader, and Potts Hearst Corporation Joint Comments of A.H. Belo Corporation, Cosmos Broadcasting, Cox Enterprises, and Multimedia, Inc. Joint Comments of Busse Broadcasting Corporation, GHTV, Inc., and SCI Television, Inc. National Association of Broadcasters Joint Comments of People for the American Way and Media Access Project REPLY COMMENTS Haley, Bader, and Potts Joint Comments of People for the American Way and Media Access Project