WPCC 2BJZ Courier#|xpx6X@KX@HP LaserJet 4 PostScriptHPLA4POS.PRSx  @hhhh' CX@26 ZF #|xHP LaserJet 4 PostScriptHPLA4POS.PRSx  @hhhh' C@CourierCourier Bold(2XFZAT?xxxpx6X@KX@?xxx{x `KXTR&HHH0H6X@Kh@Ђ  FOR RECORD ONLY $// National Association of Broadcasters, FCC 94225 //$ $/ 300.312 Reasonable Access for Federal Candidates /$ $/ 73.1944 Reasonable Access /$  ?<? Before the  ?< 0 FEDERAL COMMUNICATIONS COMMISSION   xx- X(#(# ?x<` `  Washington, D.C. 20554  ?<In re Request for hh,V) FCC 94225  ?<Declaratory Ruling ofhh, ) ` ` hh,V)  ?` <NATIONAL ASSOCIATION OF hh,V)  ?( <BROADCASTERS ) ` ` hh,V)  ? <Regarding Section 312(a)(7)V)  ? <of the Communications ActV)  ?<\ MEMORANDUM OPINION AND ORDER  ă  ?<Adopted: August 31, 1994;Released: By the Commission:    X 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). ?X<Ԃ On September 17, 1992, the Democratic National Committee ("DNC") filed a letter urging the Commission to defer action on the NAB request until presented with an actual case or controversy. On October 9, 1992, People for the American Way and Media Access Project (PAW/MAP) filed an opposition to NAB's request for declaratory ruling, arguing that grant of this request would require reversal of the Commission's longstanding and consistent interpretation of Section 312(a)(7), which requires that candidates' requests be considered individually, on a casebycase basis. On January 14, 1993, PAW/MAP asked that its opposition be considered as comments in this proceeding.  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"X( 0*(( "  ?<filings.  ?X<Ѝ Staff Ruling and Request for Public Comment, 7 FCC Rcd 6880 (1992). Comments were due by January 23, 1993, and reply comments were due by March 1, 1993. A complete list of the commenting parties is listed in the Appendix. 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  ?x<312(a)(7) of the Communications Act ("1978 Policy Statement").a x~ ? <  k<ԍ 68 FCC 2d 1079 (1978). The guidelines a licensee must follow in evaluating access requests are wellestablished: X[A]ccess requests from "legally qualified" candidates for federal elective office...must be considered on an individualized basis, and broadcasters are required to tailor their responses to accommodate, as much as reasonably possible, a candidate's stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of Section 315(a).(# CBS Inc. v. FCC, 453 U.S. 367, 387 (1981)("CarterMondale"). a  In addition, the Commission stated that such guidelines "do not mean that broadcasters will be required to provide five minutes or other nonstandard lengths of program time to candidates in any particular  ?<instance."<~ ? <ԍ 7 FCC Rcd at 6881.<  ?( <  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  ?0<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.  ?P<"P0*((`"Ԍ ?< 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 fiveminute, or other  ?<odd length periods of time to offer a client.2` ~ ?h<Ѝ A.H. Belo Corporation, Cosmos Broadcasting Corporation, Cox Enterprises, Inc. and Multimedia as joint parties also cite  ?<to the 1978 Policy Statement, saying that Section 312(a)(7) requires stations to follow their normal commercial practices in  ?<granting access to federal candidates. CBS states that sales of oddlength program time to political candidates would "fractionalize" the station's programming. GHTV, SCI Television, and Busse Corporation as joint parties state that altering commercial and program time in newscasts to accommodate political advertising disserves the public interest and could cause confusion among viewers who may not differentiate between political advertisements and the newscast. 2  5. In contrast, reply comments submitted by the Media Access  ?h<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 oddlength 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 casebycase basis thereby prohibiting a blanket policy on sales of any particular length of time.  ?<  " 0*((""Ԍ ?<` `  hh,Discussion 6. Section 312(a)(7) of the Communications Act provides: XThe 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.F~ ?` <ԍ 47 U.S.C. Section 312(a)(7).Fƀ%  ?<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. X~ ?<  k<ԍ Codification of the Commission's Political Programming  ?<Policies, 7 FCC Rcd 678, 681. 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?J~ ?<ԍ CarterMondale at 37576. J 7. When the Commission formulated its policies for implementing  ?0<the reasonable access provision in the 1978 Policy Statement, it stated:  ?<` ` We believe it to be generally unreasonable for a X(#(#%% ?P<` ` 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.= @~ ?x<ԍ 68 FCC 2d. at 1090.=  ?8<The Commission elaborated that:  ?<` ` We do not believe that this policy will in any way (#(#%% ?<` ` disrupt a station's broadcast schedule. It only X(#(#%%` ` requires that the licensee follow its usual commercial  ? <` ` practices.F ~ ?%<č Id. F Finally, in summarizing the various policies it had established, the Commission stated that "[l]icensees may not adopt a policy that flatly"x` 0*(($"  ?<bans federal candidates from access to the types, lengths, and classes  ?<of time which they sell to commercial advertisers."B ~ ? <ԍ Id. at 1094.B   ?X<8. In the 1991 political programming Report and Order XXX~ ?@<Ԃ Codification of the Commission's Political Programming  ?<Policies, 7 FCC Rcd 678 (1991); Recon. denied, 7 FCC Rcd 4611  ?<(1992)., 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.; x~ ?<ԍ 7 FCC Rcd at 683.; The Commission stated that:  ?( <XWe 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  ?H <treated in the same manner as commercial advertisers.H ~ ?<  .<ԍ 7 FCC Rcd at 4612. The Commission codified the weekend access policy in the reasonable access rules, Section 73.1944(b). ƀ% 9. Similarly, with respect to "make goods," the Commission determined that broadcasters do not have to offer timesensitive 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.A` ~ ?<ԍ 7 FCC Rcd at 697.A 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 timesensitive 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  ?X<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" 0*(("" 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  ?h<Ed Noble for U.S. Senate Committee,Hh~ ?<ԍ 79 FCC 2d 903 (B/C Bur. 1980).H the then Broadcast Bureau held that a station's decision not to sell a candidate fiveminute program time during prime time was reasonable given the lastminute 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 fiveminute program time to commercial advertisers, Bureau "dicta" in Ed Noble indicated that if a candidate in a similar situation requests fiveminute program time far enough in advance, network affiliates, for example, may have to preempt onehalf hour of network time, air the candidate's fiveminute 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 casebycase basis, we believe that it is preferable and appropriate to resolve this important issue by declaratory ruling rather than leaving its resolution to casebycase 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"%X0*((-" campaigns, and correspondingly to lessen our case load by providing  ?<more specific guidance to interested parties. "0*((" 13. In view of the forgoing, NAB's August 18, 1992, request for  ?<declaratory ruling to the extent indicated, IS GRANTED.X~ ?<Ѝ In view of our decision herein, NAB's alternative request  ?<discussed in  1, supra, regarding network and syndicated programming is moot. ` ` hh,VFederal Communications Commission ` ` hh,VWilliam F. Caton,  ?< ` ` hh,VActing Secretary "#0*(( +"Ԍ` `  hh, APPENDIX  ?<` `  hh,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  ?h< ` ` hh,REPLY COMMENTS  ?0< Haley, Bader, and Potts Joint Comments of People for the American Way and Media Access Project