WPC[ 2BJZ Courier3|x2x6X@`7X@HP LaserJet 4M (PCL)_8202HPLA4MPC.PRSx  @\Y,bX@2'6-F ZsZ3|xCourierLine Draw (Scalable-Cr)Courier BoldHP LaserJet 4M (PCL)_8202HPLA4MPC.PRSx  @\Y,bX@<?xxx,>fx6X@`7X@?xxxXfx6X@B X@R&HHHXD,H6X@B h@<R&HHH,D,H6X@`7h@?xxx, x `7XW^5  Courier New  6n  Wv5 h2Y ?<#x@fX@##x@fX@##x@fX@#      $// Michael Steven Levinson, FCC 94128 //$ $/ 300.312 Facilities for Candidates for Public Office /$ $/ 73.1940 Legal Qualifications for Political Candidates /$ $/ 73.1941 Time Period for Requesting Equal Opportunities /$ Before the Federal Communications Commission Washington, D.C. 20554 In re Complaint of ) ) Michael Steven Levinson ) ) against ) ) New Hampshire Noncommercial ) Television Stations WENHTV, Durham, ) and WEKWTV, Keene, and ) Massachusetts Noncommercial ) Television Station WGBHTV, 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,w ?@<Ѝ The Application is 40 pages in length, with an additional 18 pages of attachments. This length is in excess of the 25page limit imposed by Section 1.115(f)(1) of the Commission's rules. Despite Levinson's failure to request leave to exceed the limit, we will consider the merits of his entire Application at this time. w 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 abovecaptioned noncommercial television stations ("Stations"), filed under Section 312(a)(7) of the Communications Act (47"!@0*((P("  ?<U.S.C. Section 312(a)(7)). ?X<ԍ Section 312(a)(7) states:  xx< (a) The Commission may revoke any station license or construction permit * * * *  xx< (7) for willful or repeated failure to allow reasonable  xx< access to or to permit purchase of reasonable  xx< amounts of time for the use of a broadcasting  xx< station by a legally qualified candidate for  xx< Federal elective office on behalf of his candidacy. Levinson has campaigned for various federal offices in elections since at least 1980, including the presidency, using different  ?<independent and major party affiliations. See e.g. Michael Steven  ?<Levinson, 87 FCC 2d 433 (1980). In connection with these election bids, Levinson has regularly contacted the Commission for advice and to file Section 312(a)(7) and Section 315(a)(equal opportunities) complaints. The majority of his complaints have been resolved informally by telephone, a procedure discussed more fully below.  Levinson asserted his right to reasonable access as a candidate for the Republican nomination in the 1992 New Hampshire presidential primary. WENHTV 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.  K   ?< K  BACKGROUND  ?< 2. In his original complaint,x ?<Ѝ Levinson's initial complaint was filed December 18, 1991. Subsequently, and prior to the Bureau's ruling, Levinson either faxed or mailed to the Bureau an additional 11 filings. These filings total 199 pages. In addition to his written filings, Levinson frequently telephoned Bureau staff to seek informal intervention on his behalf and to further supplement his 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.X  ?H&<Ѝ Reasonable access obligations are incurred by stations  ?'<within their normal service area. The Law of Political  ?'<Broadcasting and Cablecasting, 100 FCC 2d 1476, 1486 (1984);"'0*(((("Ԍ ?<Letter to Peter Mobilia, Jr., (B/c Bur. June 17, 1977). Generally, a television station's grade B contour will establish the service area for this purpose. WGBHTV places a grade B contour over the southern part of New Hampshire and thus must accommodate reasonable access requests from candidates qualified for the New Hampshire presidential primaries. Levinson's claim of qualification for the New Hampshire ballot was unchallenged by Stations. In addition, he provided the Commission with a copy of New Hampshire's certification of his status as a legally qualified candidate. Levinson complained that Stations had unreasonably" ` 0*(( " denied his request for a threehour block of programming in prime  ?<time, offering instead five minutes in prime time.u0`  ? < x<ԍ Levinson requested access from 7:3010:30 p.m., on January  x<13, 1992. In explaining to Stations his need for a threehour campaign address, Levinson stated:  ` <x` ` The reasons I require this block of time are multi  xx< In the first place, I am the author of a giant  ?h< ` 0< x` ` work of art, The Book of Lev (c) 1971 , that I self  xx< characterize, "a spoken poem for all man kind, written  xx< down." It is a magnum opus that takes into account all  xx< the world's major stories, beginning with Adman and  xx< Even in the Gar Den ov Edum and from there, covering  xx< the course of human history on the good ship mother  xx< earth ... I will be able to utilize my talent and  xx< create the very first peaceful night in more than 5000  xx< years of recorded history by keeping all the world's  xx< peoples occupied in front of their TV sets as participants in the first multilingual world vid poem. Levinson indicated that he would utilize the fiveminute offer, but ultimately failed to do so. Thereafter, he apparently made at least two more requests for substantial blocks of prime time from Stations, to which Stations again offered five minutes. u 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.  ?x<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 fiveminute, primetime  ?<counteroffers. X ?%<Ѝ In CBS, Inc. v. FCC, 453 U.S. 367 (1981)  ?H&<("Carter/Mondale"), the Court affirmed the Commission's policy of permitting broadcasters to consider substantial program disruption and the multiplicity of other candidates in weighing"'0*((P("ԌSection 312(a)(7) requests. The Court also noted that, under the Commission's policy: If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission's analysis would have differed in the first instance.  ?<Id. at 387.  "( 0*((P "Ԍ 3. In his Application for Review, Levinson argues that the  ?X<program disruption factor discussed in Carter Mondale concerned lastminute 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. (  ?p<Ѝ The Application also raises several unpersuasive constitutional claims to Levinson's right to air his views. With respect to his contention that the First Amendment guarantees a right to broadcast his views, the U.S. Supreme Court has ruled  ?<that no individual has such a right. CBS v. DNC, 412 U.S. 94 (1973). His Fifth Amendment claim does not indicate what rights have been violated under that Amendment. Finally, we see no basis for his Seventeenth Amendment claim in this context, since that Amendment merely established popular election of the U.S. Senate.  Discussion of these issues follows our analysis of the Bureau's ruling. "P0*((`"Ԍ  ?< K  DISCUSSION  ?X< 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 fiveminute, prime time counteroffers.  ?H <ԍ The Court stated that:  xx< In responding to access requests, however, broadcasters  xx< may give weight to such factors as the disruptive  xx< impact on regular programming, and the likelihood of  xx< requests for time by rival candidates under the equal opportunities provision of Section 315(a). 453 U.S. at 387.   ? < One additional factor to be considered when responding to an access request, as set forth by the Commission and discussed  ?H <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 counteroffer 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 counteroffer do not have to be present. A broadcaster may reasonably counteroffer an access request based on any of the factors individually.  ?P<x5. 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.q  (  ?$<Ѝ Id. at 389. Furthermore, the Court also held that Section 312(a)(7) mandated an affirmative right to reasonable  ?H&<access for all federal candidates. Id. at 368. Thus, in addition to the potential for equal opportunities requests from Levinson's 18 Republican opponents, Stations could reasonably consider the"'0*((x("Ԍpotential for reasonable access requests from the 35 Democratic candidates, albeit not necessarily in the same amount made available to a Republican candidate during a primary election period.q " 0*((" We believe Stations reasonably determined that a reasonable probability existed that many such requests would follow any  ?<Levinson appearance.  ?<Ѝ Under Section 73.1941(c) of the Commission's rules (47 C.F.R Section 73.1941(c)), competing candidates have seven days from the time of an opponent's appearance to make an equal opportunities request. 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.k `  ?<Ѝ Although a noncommerial station may charge reasonable production fees for use of its facilities by a federal candidate, the absence of any allowable charge for the time itself distinguishes this case from the Commission's view in  ?<Carter/Mondale that further requests were "speculative."  ?<Carter/Mondale involved only the commercial television networks, each of which had asserted that no additional or contingent requests for time were pending, and it appeared unlikely that a large number of candidates would seek time from each of the networks. 74 FCC 2d at 674. Clearly, the substantial cost of  ?<purchasing major television network time in Carter/Mondale  ?p<contrasts with the circumstances in the case before us.k 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 threehour 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" 0*((p"  ?<telephone at his express suggestion. `  ?X<Ѝ In both Levinson's initial complaint filing of December 18, 1991, and in his facsimile filing of December 27, 1991, he invites the Bureau to "use the telephone in the conduce [sic] of adjudicating this complaint." Levinson's filings reference telephone conversations he had with the staff concerning resolution of his complaint. Because of the large number of complaints and inquiries received by the Bureau, particularly in the period before a presidential election and the short amount of time to deal with such complaints, the Bureau staff regularly attempts to answer questions and informally resolve disputes between parties by telephone prior to the election, without issuing written rulings.  7. In the first matter involving the Massachusetts primary, Levinson argues that the Bureau overlooked his reasonable access complaint against WGBHTV in connection with his candidacy in the March 10, 1992, Massachusetts presidential primary for the  ?<Independent Voters Party. X  ?0<Ѝ According to Levinson, he qualified on December 31, 1991, for the Massachusetts primary ballot as a candidate for nomination by the "Independent Voters Party." In a letter dated January 8, 1992, WGBHTV Corporate Counsel Eric Brass offered Levinson five minutes in prime time on any weekday in response to a threehour prime time reasonable access request apparently made by telephone. The record does not show whether Levinson accepted WGBHTV's offer. In a letter to WGBHTV dated February 14, 1992, Levinson again requested a threehour 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, WGBHTV again denied Levinson's threehour request, and counteroffered 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 WGBHTV'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 WGBHTV 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 WGBHTV's denial of Levinson's request and the fiveminute counteroffer appeared to be reasonable. 8. The second matter Levinson raises in his Application is his contention that the Bureau never ruled on his Section " 0*(("Ԍ312(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 threehour block of time, 7:3010:30 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.8 ?0<Ѝ Section 73.1940(e)(2) of the Commission's rules (47 C.F.R. Section 73.1940(e)(2)) states in part with regard to attaining national legally qualified status under the rules: Xx[E]xcept, that any such person meeting the requirements set forth in paragraphs (a)(1) and (2) of this section in at least 10 States (or 9 and the District of Columbia) shall be considered a legally qualified candidate for nomination in all States, territories and the District of Columbia for purposes of this Act. 8 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"x` 0*(($" by the Bureau during telephone discussions prior to the New Hampshire primary that, as delineated by each network, the Commission's tenstate 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