$// Michael Steven Levinson, FCC 94-128 //$ $/ 300.312 Facilities for Candidates for Public Office /$ $/ 73.1940 Legal Qualifications for Political Candidates /$ $/ 73.1941 Time Period for Requesting Equal Opportunities /$ Before the Federal Communications Commission Washington, D.C. 20554 In re Complaint of ) ) Michael Steven Levinson ) ) against ) ) New Hampshire Noncommercial ) Television Stations WENH-TV, Durham, ) and WEKW-TV, Keene, and ) Massachusetts Noncommercial ) Television Station WGBH-TV, Boston ) ) Memorandum Opinion and Order Adopted: 5/27/94; Released: By the Commission: Commissioners Ness and Chong not participating 1. The Commission has before it an Application for eview, filed March 16, 1992, by Michael Steven Levinson ("Levinson"), seeking review of a February 12, 1992, Mass Media Bureau ruling, released February 19, 1992 (7 FCC Rcd 1457 (1992)). The Bureau's ruling denied Levinson's reasonable access complaint against the above-captioned noncommercial television stations ("Stations"), filed under Section 312(a)(7) of the Communications Act (47 U.S.C. Section 312(a)(7)). Levinson asserted his right to reasonable access as a candidate for the Republican nomination in the 1992 New Hampshire presidential primary. WENH-TV filed an opposition to the Application on March 30, 1992. After careful review of this matter, we conclude that the Application does not contain sufficient grounds to warrant a reversal or alteration of the Bureau's ruling and must be denied. BACKGROUND 2. In his original complaint, Levinson asserted that he was denied reasonable access by Stations in his bid for the Republican presidential nomination on the New Hampshire primary ballot. Levinson complained that Stations had unreasonably denied his request for a three-hour block of programming in prime time, offering instead five minutes in prime time. The stations provided two principal reasons for denial of his original request: (1) three hours of prime time would unduly disrupt normal program scheduling; and (2) the number of other presidential candidates on the New Hampshire primary ballot (36 Democratic and 18 Republican) at the time of Levinson's request. The Bureau ruled that it was not unreasonable for Stations to conclude that both the length of time requested and the possibility of a significant number of requests from the other candidates supported the validity of the five-minute, prime-time counter-offers. 3. In his Application for Review, Levinson argues that the program disruption factor discussed in Carter Mondale concerned last-minute requests and thus is inapplicable to his request, which was made several months before the election. He also argues that Stations had no reasonable basis for anticipating a significant number of equal opportunities or reasonable access requests since no other candidates had shown any interest in using the Stations' facilities at the time of his request. The Application also contends that the Bureau failed to address two other Section 312(a)(7) matters raised by Levinson in the course of his series of filings, a reasonable access request in connection with his Massachusetts primary election candidacy and his requests of the NBC and PBS television networks in connection with his New Hampshire primary election candidacy. Discussion of these issues follows our analysis of the Bureau's ruling. DISCUSSION 4. Section 312(a)(7) of the Act requires broadcasters to allow reasonable access to or permit the purchase of reasonable amounts of time by legally qualified candidates for federal elective office. The Supreme Court's Carter/Mondale decision approved the Commission's policy identifying permissible factors which licensees may take into consideration in evaluating federal candidates' Section 312(a)(7) requests. As the Bureau stated in its ruling, two of the factors specified by the Commission and noted by the Court, the multiplicity of other federal candidates and the potential for substantial program disruption, directly support Stations' denial of Levinson's request for three hours of prime time and their five-minute, prime time counter-offers. One additional factor to be considered when responding to an access request, as set forth by the Commission and discussed favorably by the Carter/Mondale Court, is the amount of time previously sold or given the candidate. This factor, however, was not pertinent to Station's counter-offer since it was Levinson's first request for time. It should be noted that all of the factors upon which a broadcaster may rely to justify a reasonable access counter-offer do not have to be present. A broadcaster may reasonably counter-offer an access request based on any of the factors individually. 5. Furthermore, the fact that other candidates may not have approached Stations at the time of Levinson's request is not controlling. The Carter/Mondale Court emphasized that the Commission does not mandate "blind assent" to candidate requests and that a "reasonable probability" for equal opportunities requests from competing candidates is a legitimate issue for stations to consider in terms of the multiplicity of candidates. We believe Stations reasonably determined that a reasonable probability existed that many such requests would follow any Levinson appearance. As the Bureau also properly reasoned, Stations are noncommercial and must provide both reasonable access and equal opportunities on a free basis, thereby significantly increasing the potential for further candidate requests. Finally, although program disruption is more significant when the request is made in close proximity to an election, the program disruption factor is nonetheless pertinent throughout the entire campaign period. Stations were not unreasonable in concluding that the request for a three-hour block of time on a specific date would unduly disrupt their programming, particularly given the likelihood of equal opportunities requests for equivalent blocks in prime time. In sum, as the Bureau correctly found, Stations applied appropriate factors in assessing Levinson's requests. There is nothing in the record to suggest that Stations acted unreasonably or in bad faith in their negotiations with him. Thus, the Bureau's ruling must stand. 6. In addition to seeking review of the Bureau's ruling, the Application also contends that the Bureau failed to address in its ruling other matters raised by Levinson. However, neither of these matters was the subject of a pending complaint at the time the Bureau released its ruling. In addition, as discussed below, the Bureau handled issues raised by Levinson informally by telephone at his express suggestion. 7. In the first matter involving the Massachusetts primary, Levinson argues that the Bureau overlooked his reasonable access complaint against WGBH-TV in connection with his candidacy in the March 10, 1992, Massachusetts presidential primary for the Independent Voters Party. In a letter dated January 8, 1992, WGBH-TV Corporate Counsel Eric Brass offered Levinson five minutes in prime time on any weekday in response to a three-hour prime time reasonable access request apparently made by telephone. The record does not show whether Levinson accepted WGBH-TV's offer. In a letter to WGBH-TV dated February 14, 1992, Levinson again requested a three-hour block in prime time on the station in connection with his Massachusetts candidacy to air on one of several dates. In a February 17, 1992, response from Eric Brass, WGBH-TV again denied Levinson's three-hour request, and counter-offered with five minutes of prime time on any weekday. As a basis for his denial, Brass cited the other 18 candidates on the Massachusetts primary ballot and the length of time requested. Levinson included copies of these letters in his February 25, 1992, complaint to the Bureau about WGBH-TV's denial. The Bureau obviously could not have responded to this complaint involving the Massachusetts primary because the complaint was not filed until six days after the Bureau released its ruling on February 19, 1992. The Bureau handled the February 25 complaint informally by telephone with Levinson and WGBH-TV prior to the March 10 primary. For the same reasons articulated in the Bureau's February 19, 1992, ruling (program disruption and the multiplicity of other candidates), the Bureau advised the parties that WGBH-TV's denial of Levinson's request and the five-minute counter-offer appeared to be reasonable. 8. The second matter Levinson raises in his Application is his contention that the Bureau never ruled on his Section 312(a)(7) complaints against the NBC and PBS networks relative to the New Hampshire primary. In his fourth filing dated December 27, 1992, Levinson indicated that he had requested that both the NBC and PBS television networks provide him with a three-hour block of time, 7:30-10:30 p.m. on January 13, 1992, but that they had failed to respond. With respect to NBC, Levinson also requested that since the network planned to air a debate between several Democratic candidates on the New Hampshire ballot, it should provide him access without charge. The Bureau contacted the networks by telephone after receipt of Levinson's December 27 letter and asked them to respond to his requests. 9. NBC denied his request in a letter dated January 6, 1992. NBC stated that Levinson had claimed to be legally qualified only in New Hampshire and that because NBC was not the licensee of a station in New Hampshire, no obligation as to the network existed. NBC also stated that under Commission rules a candidate cannot claim to be legally qualified on a national basis until he/she is qualified as a candidate in at least 10 states. Responding to Levinson's request that the access be provided without charge, NBC noted that it was not obliged to do so because the reasonable access provision permits commercial broadcasters to meet the obligation by either giving or selling the time. NBC also noted that the debate between Democratic challengers was an exempt news event and, since it involved candidates from a party different from Levinson's, he would have no rights thereto even if it were not exempt. 10. PBS also denied Levinson's request by letter dated January 6, 1992. PBS noted that Levinson had claimed ballot status in New Hampshire alone and was entitled to reasonable access only at PBS affiliates serving that state, negotiations that would have to be carried out at each station in the state. However, although it could not guarantee carriage by any of its affiliates, PBS did agree to make transmission time available to Levinson on the public satellite interconnection system, subject to the normal conditions and production charges. 11. Although Levinson did not file a complaint after receiving NBC's or PBS' January 6, 1992, denials, he was advised by the Bureau during telephone discussions prior to the New Hampshire primary that, as delineated by each network, the Commission's ten-state rule precluded any reasonable access or equal opportunities obligations for the networks until such time as he had qualified on the ballot of at least ten states, or nine states and the District of Columbia. Thus, in accordance with the clear meaning of the Commission's rules, at the time he made his requests of the networks, Levinson was entitled to reasonable access only on those stations which serve New Hampshire. Neither of the networks is the licensee of a New Hampshire station, nor of any station whose normal service area includes New Hampshire. NBC correctly pointed out to Levinson that the reasonable access provision requires commercial broadcasters to give or sell time to meet its obligations. Therefore, even had Levinson established a right under Section 312(a)(7) in regard to NBC, his refusal to purchase the time would preclude any obligation on NBC's part. 12. Based on the above, we believe that the Bureau's ruling was correct. Therefore, pursuant to Section 1.115(g) of the Commission's rules, the Application for Review IS DENIED. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary