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Editor's Notes: Before the
MEMORANDUM OPINION AND ORDER
By the Commission: Commissioner Furchtgott-Roth dissenting and issuing a statement:
1. The Commission has before it a petition for reconsideration of our October 3, 1994, Declaratory Ruling, timely filed by Media Access Project and People for the American Way ("Petitioners"). The Declaratory Ruling granted a request by the National Association of Broadcasters ("NAB") with respect to a broadcaster's sale of non-standard lengths of time, such as five minutes, to legally qualified candidates for federal elective office.1 Specifically, the Commission ruled that broadcast stations need not sell or furnish legally qualified candidates for federal office time for political advertising in increments other than those which the station either sold commercial advertisers or programmed during the one-year period preceding an election. 2. For the reasons set forth below, we believe that the petition for reconsideration should be granted and that a broadcast station should not be allowed to refuse a request for political advertising time solely on the ground that the station does not sell or program such lengths of time. As will be [begin page 2] discussed in greater detail, a station must take into account a number of factors in evaluating a federal candidate's request for access, only one of which involves the potential disruption to normal programming. Our reconsideration finds that the Declaratory Ruling did not accord sufficient consideration to the needs of federal candidates. 3. Petitioners argue that the Commission's Declaratory Ruling erred both as a matter of policy and law. As to policy, they suggest that allowing broadcasters to refuse in advance the sale of certain lengths of program time based entirely on a station's or network's commercial sales or programming practices wrongly reduces political speech to the level of the commercial marketplace. Petitioners also question the Commission's stated goal of drawing a clear line as to what lengths of time are subject to legitimate access requests in order to avoid potential disputes. According to Petitioners, the record neither demonstrated any need to protect broadcasters from such potential disputes nor evidenced any need to preserve administrative resources. Further, Petitioners contend that only a few cases involving this issue bad been brought to the Commission prior to the Declaratory Ruling.
4. With regard to the law, Petitioners argue that the Declaratory Ruling misconstrued the Commission's longstanding and consistently applied interpretation of Section 312(a)(7), which requires that federal candidates! requests for access must be considered individually, on a case-by-case basis. Petitioners contend that until the Declaratory Ruling, Commission decisions had consistently held that a broadcaster cannot arbitrarily refuse, in advance, to sell a program slot of any particular length.2 Rather, according to Petitioners, the Commission had required broadcasters to consider each request for time on an individualized, ad hoc basis. Petitioners maintain that this approach of requiring ad hoc responses to access requests properly accorded broadcasters sufficient flexibility without foreclosing the possibility that a candidate may successfully demonstrate the need for a certain non-standard program length. In this way, the candidate has the opportunity to explain individualized campaign needs for a length of program time and the broadcaster retains the ability to counter offer or refuse a request, if warranted by the facts. Petitioners conclude that permitting broadcasters to choose not to sell particular lengths of time based on their own commercial sales and programming practices conflicts with the Commission's and the courts' longstanding interpretation of Section 312(a)(7), which prohibits a broadcaster from establishing blanket bans on sales of any particular length of spot or program time. 5. NAM Opposition challenges Petitioners' argument that the Commission, by its action, relegated federal candidate speech to that of a commercial advertiser. NAB contends that Petitioners ignored the Declaratory Ruling to the extent that it requires a broadcast station to provide access to [begin page 3] program lengths either sold or programmed in the year preceding an election. Thus, according to NAB, federal candidates are still entitled access to program lengths greater than commercial spot time. NAB argues that the Declaratory Ruling struck an appropriate balance between the need of candidates to convey their message and the practical need of broadcasters to minimize the disruption to their schedules. NAB also argues that the Declaratory Ruling is entirely consistent with Commission and court precedent, which has avoided forcing broadcasters "to carve up their schedules in order to accommodate a candidate who desires to air an odd-length spot or program." Discussion 6. Section 312(a)(7) of the Communications Act provides:
Since Congress enacted this provision in 1972, the Commission has attempted to interpret it in a manner consistent with Congress' clear intent to promote wider, less fettered dissemination of political speech. Indeed, the legislative history of the access provision emphasizes that the fundamental policy underlying its adoption was "to give candidates for public office greater access to the media so that they may better explain their stand on the issues, and thereby more fully and completely inform the voters."4 7. While it is clear that candidates have an undeniable right to purchase "reasonable" amounts of time, it is also clear that this right is not without limitation. Thus, the Commission has steadfastly charted a course which attempts to strike an appropriate balance between political speech and undue burdens on broadcasters in accommodating the needs of federal candidates. In doing so, the Commission has determined that it is not appropriate or practical to adopt formal rules outlining in an objective, quantifiable manner how much time is reasonable because of the variety of circumstances and number of federal candidates any particular station might encounter during a specific election period. Instead, the Commission has relied on the reasonable, good faith judgment of licensees to provide reasonable amounts of time to federal candidates.5 In determining whether a particular licensee reasonably afforded access to advertising time, the Commission confines itself [begin page 4] 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.6 8. As articulated by the U.S. Supreme Court in its landmark Carter/Mondale decision, the Commission's guidelines a broadcaster must follow in evaluating access requests are well-established:
The Commission has consistently followed these guidelines in evaluating complaints under Section 312(a)(7).8 9. While determinations regarding access are entitled to deference if the licensee takes into account the appropriate factors and acts reasonably and in good faith, it is well-settled Commission policy that "across-the-board" policies adopted by a broadcaster generally cannot be sustained.9 This is precisely because "across-the-board" policies do not allow for appropriate consideration of the individualized needs of candidates.10 The Supreme Court in Carter/Mondale considered this issue and stated:
10. On the other hand, in balancing the needs of candidates and broadcasters, the Commission has ruled that candidates do not have a right to a particular placement of their political announcements on a station's schedule;12 nor do candidates have any right to program time "of any particular or minimum duration."13 These two policies, taken together, require a candidate and a station to negotiate and compromise, in the absence of pre-established ceilings or minimums. 11. The Commission's Declaratory Ruling was a departure from the above framework and, on further reflection, we believe the it does not afford appropriate consideration to the needs of federal candidates. In effect, the Declaratory Ruling permitted what amounts to an "across-the-board" policy, or flat ban, on the sale of program time in non-standard increments. Thus, upon reconsideration, we now believe that broadcasters should not be allowed to refuse, as the result of such a ban, requests from candidates for non-standard lengths of time. Rather, in considering such requests, broadcasters must take into account the Carter/Mondale factors outlined above, 12. We believe that requiring good faith negotiation between an individual federal candidate and a broadcaster concerning access to non-standard lengths of political advertising time better fulfills Congress' intent in enacting Section 312(a)(7). As a practical matter, there may be a variety of circumstances where a federal candidate decides that the best campaign strategy involves the use of non-standard length advertising formats and, applying the Carter/Mondale factors, the broadcaster can reasonably make the necessary accommodations. With respect to requests for five-minute increments in particular, we note that, from a candidate's perspective, a five-minute program may be a desirable option because of the expense of purchasing and producing a thirty-minute or longer program, and the brevity of a thirty- or sixty-second spot announcement. As petitioners point out, such non-standard lengths of time may facilitate more substantive political discourse during political campaigns. This, in turn, furthers the purposes of Section 312(a)(7) by giving candidates the opportunity to "better explain their stand on the issues, and thereby more fully and completely inform the voters."14
13. The disruption to regular programming that would be caused by granting a request for a non-standard length of time, while clearly relevant, must be considered in light of whether the broadcaster could make adjustments in its schedule that would accommodate the candidate's needs. [begin page 6] In this regard, in several of the reasonable access cases decided by the Commission prior to the Declaratory Ruling, broadcasters were able to provide five-minute program to candidates, which suggests that broadcasters may not be extraordinarily burdened by such requests.15 To allow a broadcaster categorically to decide in advance that it will not sell non-standard time, like five-minute increments, absolves the broadcaster of even considering the possibility that it could make such an accommodation in a particular circumstance. 14. Our finding herein does not mean that broadcasters will be required to provide five minutes or other non-standard lengths of program time to candidates in every particular instance. Indeed, in several previous decisions involving candidate requests for non-standard length program time, the Commission determined that the broadcaster acted reasonably in denying the request given the circumstances presented in those cases.16 Thus, the Commission will, as previously, defer to a licensees discretion, and overturn a decision only if the licensee has acted unreasonably pursuant to the established guidelines.17
15. For all of the above reasons, we grant Petitioners' request for reconsideration, and find that stations must evaluate each request for time by a federal candidate on an individualized basis, using the factors set forth in Carter/Mondale. These factors include: (1) how much time was previously sold to the candidate; (2) the potentially disruptive impact on the station's regular programming; (3) the likelihood of equal opportunities requests by opposing candidates; and (4) the timing of the request.18 And we note that, as the Court in Carter/Mondale [begin page 7] emphasized, these factors may not be used as a pretext for denying access: "...to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption -- perhaps caused by insufficient notice to allow adjustments in the schedule -- or of an excessive number of equal time requests."19
16. In view of the foregoing, Media Access Project and People for the
American Way's petition for reconsideration, to the extent indicated, is hereby
GRANTED. FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas Secretary [begin page 8] Dissenting Statement of Commissioner Harold W. Furchtgott-Roth In re Petition for Reconsideration by People for the American Way and Media Access Project of Declaratory Ruling Regarding Section 312(a)(7) of the Communications Act. For the reasons that follow, I would have adhered to the interpretation of section 312(a)(7) set forth in the Declaratory Ruling, 9 FCC Rcd 5778 (1994). That decision does not suffer from legal error and, in my view, policy considerations cut in favor of establishing a clearer rule regarding the duties of broadcasters to sell time. Legal Considerations Section 312(a)(7) is not a particularly specific statute. It obliges stations to allow legally qualified federal candidates to "purchase reasonable amounts of time" for the use of broadcast facilities. The definition of "reasonableness" is left to this agency. The Declaratory Ruling found that "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." 9 FCC Rcd at para 10. This decision was based on the Commission's 1978 Policy Statement on enforcement of section 312(a)(7). See 68 FCC 2d 1079. A careful reading of that Policy Statement indicates that the 1994 Commission correctly understood it to establish regulatory parity as between candidates and advertisers with respect to time. That Statement specifically concludes:
68 FCC 2d 1079 at paras. 41, 55. In other words, broadcasters must treat candidates as well as they treat regular advertisers. As the 1994 Commission noted, this parity principle runs throughout our section 312, and related section 315, interpretations. With respect to the question whether stations must provide candidates with access on weekends, the Commission has concluded that "stations are required to provide only the same policies with respect to weekend access that they apply to commercial advertisers.... [I]t is reasonable for federal candidates to expect to be treated in the same manner as commercial advertisers." 9 FCC Rcd at para. 8 (citing Codification of the Commission's Political Programming Policies, 7 FCC Red 678, 683 (199 1)) (emphasis added). The Commission has also followed the parity principle in the context of "make goods," explaining that broadcasters must only [begin page 9] offer make goods to candidates if such a privilege has been offered to commercial advertisers in the last year. See 9 FCC Rcd at para. 9 (citing 7 FCC Rcd at 697). For a broadcaster to adhere to this principle of parity with respect to the issue of time units (even in a general, or "across the board," fashion) is simply not inconsistent with our precedent. To the contrary, it comports fully with the above-discussed rulings and codifications. In my view, today's decision represents a break from the well-established "parity principle" of "reasonableness." Conversely -- and contrary to the linchpin of petitioners' argument -- the Declaratory Ruling does not, by establishing that stations need only sell candidates the time amounts they sell commercial advertisers, violate any Commission precedent. See supra at para. 11. Although the Order asserts "it is well-settled Commission policy that 'across-the-board! policies adopted by a broadcaster generally cannot be sustained," supra at para. 9, this is not at all clear. The purported ban on "flat bans" that underlies petitioners' theory, as well as today's Order, is traced back to the 1978 Policy Statement. See supra at para. 4 & n.2 (summarizing petitioners' argument and citing, in support thereof, the 1978 Policy Statement). That decision did not, however, generally prohibit across-the board policies. Rather, it prohibited across-the-board policies that deny candidates the chance to buy time under the same terms as commercial advertisers. To repeat:
68 FCC 2d 1079 at para. 55. This is simply not a rule against "flat bans" in general, or even against "flat bans" relating to time issues, as petitioners and the Order characterize it; it is a rule against "flat bans" that deny candidates treatment equal to that given advertisers on matters of time.20 Moreover, CBS v. FCC, 453 U.S. 367 (1981), did not hold, as this Order suggests, that across-the-board policies are unsustainable or somehow impermissible. The dicta from that case recounts the criteria for evaluating access claims that the Commission established in the 1978 Report and in the Order and memorandum opinions and orders underlying that litigation. In the cited passages, the Supreme Court only recounted those criteria for purposes of deciding the other legal claims before the Court. Specifically, the Court held that the Commission's case-by-case approach was "consistent with," 365 U.S. at 389, the access requirement of section 312(a)(7), and it explained why that was so, speaking of the various interests at stake. In no way, however, did the Court [begin page 10] require such an approach with respect to all issues. Other approaches -- including placing some outer limits on the meaning of reasonableness, as the Commission has attempted with its parity theory -could be equally consistent with the statute. As discussed above, "across-the-board" policies, even with respect to time, were never prohibited by the 1978 Policy Statement. In any event, the Commission cannot really mean what it says about the requirement of individualized consideration and negotiation in every case. Surely, broadcasters may have "flat" policies that track the requirements of section 312(a)(7). For instance, broadcasters may refuse -- "across the board!' -- to sell time prior to the commencement of a campaign, to an unqualified candidate, or to a candidate for state office. To be sure, the Commission has also stated that spot requests should be considered on an individualized basis. But when it can be ascertained that the request is somehow legally deficient -either because the campaign has not commenced, the person is not qualified, or the request seeks treatment that exceeds that given to advertisers with respect to weekend access, make goods, or time increments -- I do not believe that the broadcaster has any duty to consider and negotiate such requests. The best way to reconcile the parity principle with the Commissions emphasis on individualized consideration is to conclude that stations must negotiate individual requests when those requests fall within the outer bounds of section 312(a)(7). Policy Considerations Given that the Commission possesses some discretion to define the meaning of "reasonableness," I turn to the policy considerations involved in the sale of non-standard increments of time to political candidates. I believe that the interests of the broadcasters in having at least some regulatory clarity, as well as their interest in reducing the transaction costs of complying section 312(a)(7), are being overlooked, I grant that determinations of reasonableness turn, at bottom, on the facts and circumstances of individual cases. That does not mean, however, that we cannot establish any general principles to help broadcasters better understand, ex ante, their obligations in this area -such as simple equal treatment standards. Moreover, by requiring broadcasters to engage in full-scale negotiation and compromise every single time that a federal candidate makes a request to purchase time (today's Order admits of no exceptions), this decision imposes great transaction costs on the stations. The cost for stations of mandated, individualized negotiation in every case should not be underestimated. Finally, I am troubled by the fact that the Commissions reading of section 312(a)(7) elevates federal candidates to a status that is not just on a par with, but superior to, commercial advertisers. I think it equally reasonable to read "reasonable time" to mean as much time as the station gives commercial advertisers -- in other words, to require parity of treatment between candidates and [begin page 11] advertisers. As explained above, this is precisely how Commission precedent has interpreted the term. In my opinion, reasonable treatment is equal treatment; I do not think that the policy concerns that animate 312(a)(7) require special or more favorable treatment for candidates than for everybody else. |
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