FCC Orders Broadcasters to Accept Political Candidates' Ads of Non Standard Length

(September 9, 1999) The Federal Communications Commission issued an order on September 7 which requires broadcasters to accept advertisements from federal political candidates that are not of standard length. The decision opens the way for candidates to buy five minute slots.

Previously, broadcasters had been allowed to restrict candidates to the same lengths of ads sold to commercial advertisers -- typically 30 and 60 second, or 30 minute, slots. The FCC Order states "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."

The Order continued 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."

People for the American Way (PFAW) and the Media Access Project (MAP) filed a petition back in 1994 seeking this ruling. The National Association of Broadcasters (NAB) opposed it.

Section 312(a)(7) of the Communications Act provides, in part:

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.

William Kennard

FCC Chairman William Kennard had this to say in a press release: "I want to thank the Media Access Project and the People for the American Way for reviving this debate over broadcast campaign advertising time. It seems to me that there is no solid reason for a blanket rejection of political spots that are of non-standard length. I think voters will benefit from political messages that are longer than a one minute- or 30- second spot. Candidates will be able to use this new flexibility to better inform voters and get a more complete message out."

The petition which the FCC ruled upon was filed in 1994. The Petitioners had originally hoped for a decision in time for the 1996 elections. Elliot Mincberg, Legal Director for People for the American Way, told Tech Laaw Journal that the decision is "in plenty of time for the 2000 election cycle."

Mincberg stated that restricting candidates to 30 or 60 second slots "does not exactly make for good political dialogue."

The Order does not require broadcasters to sell five minute slots. Rather, it states that office seekers should have access to "reasonable amounts of time."

Mincberg added that "we are hopeful that this will make available reasonable blocks of time," including both five and ten minute blocks.

Andrew Schwartzman, of the Media Access Project, told Tech Law Journal that the order will benefit "candidates whose right to speak to voters is impaired." In addition, it will protect "the right of voters to receive information."

The Order was approved by the Commission on August 27, 1999, and released to the public on September 7. One Commissioner dissented and wrote a separate opinion, Harold Furchtgott-Roth.

The FCC's order does not address, but nevertheless begs the question of what constitutes a broadcaster and a broadcast for the purposes of Section 312(a)(7). For example, FCC Chairman Kennard gave a speech to the National Association of Broadcasters on September 2 in which he referred to Internet audio as "broadcast".

The NAB can still seek a further review by the FCC, or appeal the decision to the U.S. Court of Appeals for the District of Columbia.