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W!@(#,h@\  P6G;hP H5!,x,5\  P6G;,P 5hC:,-Xh*f9 xr G;XX Times BoldJ:\INTERNET\DA961660.TXTJ:\INTERNET\INDEX.HTMBJ:\INTT\EXP1096.LISes BoldX\  P6G;P x5y.K8?X/K\  P@QP xI-!&X/a,-\  P@Q,P1{,C8*XKֳC*f9 xQX6?xxxXjoXx `NQX2?^N;X5"^\  P6QP.3?cN;Xc4  pQt?xxxXXXx6NhQXHlz-E8*X"E9 xyQ^?uFMM]MXEU؃j h6v?<h6b?<[F ^ F 0FF;FCourier New (TT)Times New Roman (Bold) (TT)RomanTimes New Roman (TT)Times New Roman (Italic) (TT)Courier New (Bold) (TT)Courier New (Italic) (TT)Times New Roman (Bold Italic) (TT)24S@O=c `""5@^*A]SS.77S_*7*.SSSSSSSSSS77___SoooxooxASofxxfxo]fxooff7.7_S7SSJSJ7S]..S.]SSSAA.]JoSJA:%:_*7777CE7SSoSoSoSoSoSxoJoJoJoJoJA.A.A.A.x]xSxSxSxSx]x]x]x]fJoSxSxSxSfJxSfSoSoSoSoJoJoJoJoJoJxSxSxxSxS]]CSASA7ASSoSf.fEx]x]xSxoAoE]A]AN:*SSASSSSSS,2}}S2}}S}277SSS77SS7S72t7[[[[eee*C`_.wRSSn[Cfx`xWlRx[][ceIfIs`Wx[rriwge*A]SS.77S_*7*.SSSSSSSSSS77___SoooxooxASofxxfxo]fxooff7.7_S7SSJSJ7S]..S.]SSSAA.]JoSJA:%:_7SSSS7]777SS:S7A7xf*ASSSS%S7},Se7}SC[227`S*722S}}}SoooooooooooAAAAxxxxxxx_xxxxxffSSSSSSSxJJJJJ....S]SSSSS[S]]]]JS2fS X< y#XU4  pQ4X# #XU4  pQ4X# Federal Communications Commission   #XP\  P6QXP# FCC 96401 ă  T yxdddy T  yOT#C\  P6QQwP# 3vBefore the  yOTP ` `  Federal Communications Commission  yOHE Washington, D.C. 20554 #Xj\  P6G;XP#у   X-In re Complaint of hh@h) (#(#Xx` `  hh@h)  X-Ross Perot` `  hh@h)  X -Th)  X -againstTh)  Xo -Th)  XX -ABC, CBS, NBC, andTh)  XA -Fox Broadcasting Co.Th)  X-  MEMORANDUM OPINION AND ORDER  X-x Adopted: October 3, 1996@ hReleased: October 4, 1996 0  X-xBy the Commission:     X- ` x1. ` ` We have before us a complaint filed on September 24, 1996, by Ross Perot  x("Perot") and his general campaign organization against American Broadcasting Company  x("ABC"), CBS Inc. ("CBS"), Fox Broadcasting Company ("Fox"), and National Broadcasting  xCompany ("NBC"). Perot is the Reform Parties candidate for President of the United States.  x-Perot asserts that these networks have allowed the presidential candidates of the major parties to  x"use" their facilities, but have failed to afford him equal opportunities in violation of Section  X- x315(a) of the Act. (47 U.S.C. Section 315(a)).# ^V yOx-#C\  P6QQwP#э xOn September 25, 1996, the Commission asked each network to file a response to the Perot complaint by the close of business, September 27, 1996, with copies to each of the other parties. Perot was given until the close of business, September 30, 1996, to reply to the network filings, with copies to the networks. Each of the  yO-networks chose to file timely responses and Perot filed a timely reply.#Xx6X@DQ2X@## Perot also alleges that each of the broadcast  xnetworks has failed to provide him with "reasonable access" to their facilities, as required by Section 312(a)(7) of the Communications Act (47 U.S.C. Section 312(a)(7)).  X- ` x2.` ` Several months ago, Fox, ABC, and PBS sought guidance from the Commission  xon the equal opportunities provision of the Communications Act. Those networks sought a  x.declaratory ruling on whether their plans to offer free time to the major presidential candidates  X^ - xfell within the "#XP*f9 xQXX#bona fide#XP\  P6QXP# news event" exemption to the equal opportunities requirement. The  XI!- xCommission found that they did.I!^V yO'-#C\  P6QQwP#эxFox Broadcasting Company, FCC 96355 (rel. Aug. 21, 1996). The Commission has not, however, fully considered the issue  xof a presidential candidate's right to reasonable access from the major networks since 1979, whenX2"@0*0*0*W!3'#X  x{the Commission ruled that ABC, CBS, and NBC could not, consistent with their 312(a)(7)  xyreasonableaccess obligations, refuse to sell a candidate a onehalf hour block of time once the  X- xcampaign had begun.EX yOK-#C\  P6QP#эxCarter/Mondale Presidential Committee, Inc., 74 FCC 2d 631 (1979), recon. denied,74 FCC 2d 657  yO-1979, aff'd sub nom, CBS Inc. v FCC, 629 F.2d 1 (D.C. Cir. 1980), aff'd 453 U.S. 367 (1981).E We will address the issues raised by this petition on the facts before us  xand leave the need for guidance on the reasonable access provision of the Communications Act to a future time.  X-  Xv- `  x 3. ` ` Applying the principles articulated in our prior decisions and the congressional  xintent underlying the equal opportunities and reasonable access provisions, we believe that denial of Perot's complaint is appropriate.  X - EQUAL OPPORTUNITIES  X - ` x4.` ` Perot alleges that the networks have failed to provide him with equal opportunities  xin response to several appearances, or planned appearances, of his opponents. First, Perot alleges  xthat ABC, CBS, and NBC provided extensive prime time coverage of the 1996 Democratic and  xMRepublican presidential nominating conventions, and that over four hours of this coverage  Xb- xkconsisted of "uses"(b X yO3-  #C\  P6QP#э xA "use" is defined generally as any positive appearance by a candidate outside the context of an exempt news program in which the candidate is identifiable. 47 C.F.R. Section 73.1941. ( by the Democratic and Republican nominees. Perot argues that, while  xcoverage of political conventions is normally exempt from equal opportunities pursuant to Section  x315(a)(4), the events surrounding the 1996 conventions of both parties were "exceptional," and  xthat as a result, the news exemption should not apply. Specifically, Perot states that "while some  xlimited news was dispatched, the vast majority of the network's programming . . . was simply a  x[staged forum for the candidates." Perot also notes that the networks did not cover the Reform  xxParties' convention and asserts that he is entitled to four hours of equal opportunities in response  x[to the time received by President Clinton and Bob Dole during the coverage of their respective conventions.  X|- ` x5.` ` Perot also contends that he is entitled to equal opportunities as a result of these  x-networks' planned coverage of the Presidential debates between President Clinton and Bob Dole.  XN- xThe Commission on Presidential Debates ("CPD"),NxX yOw"-#C\  P6QP#э xThe Commission on Presidential Debates is an organization established to plan and sponsor debates among the leading candidates for the Presidency and Vice Presidency.  the sponsoring entity, recently announced that  xPerot should not be included in the debates. Perot claims that the CPD "arbitrarily" excluded him  xdespite his having satisfied all the objective criteria for inclusion. Perot states that the CPD's  xreason for excluding him was that he had "no realistic chance of winning" the election. Perot  xmaintains that CPD's decision was "clearly partisan" and that, under the circumstances, if any"0*((<"  xnetwork decides to carry the debates, appearances by the candidates therein will entitle Perot to equal opportunities.  X- ` x6.` ` For similar reasons, Perot contends that Fox has denied him equal opportunities  xby failing to include him in the network's news presentations of ten sixtysecond statements by  xthe major presidential candidates and an election eve program in which the network will present  xlonger statements by the major presidential candidates. Fox chose to include on these programs  X_- xthose candidates selected by the CPD for inclusion in the presidential debates. _X yO-#C\  P6QP#э xIn recently granting a news exemption to these programs, the Commission found that Fox's deference to the CPD as to which candidates should be included demonstrated a greater level of assurance of good faith by  yOh -minimizing the potential for broadcaster abuse in the selection of the candidates. Fox Broadcasting Company, FCC 96355 (rel. Aug. 21, 1996).  Perot maintains  x.that Fox "suddenly withdrew its agreement to provide" him free time. Finally, Perot notes that  xABC recently aired two hourlong editions of its program "20/20", one featuring President  xZClinton and First Lady Hillary Clinton and the second featuring Republican Presidential candidate  xBob Dole and his wife, Elizabeth Dole. Perot claims that these appearances do not fall under  xzexempt news programming, and that accordingly, he is entitled to equal opportunities to the  X - xcandidates' appearances therein. X yO6-  M#C\  P6QP#э xPerot contends that he should be entitled to two one hour slots as a result of his opponents' appearances. Perot maintains that he is willing to pay for this time, but that ABC has still refused to provide it to him.  X- Network Responses to Equal Opportunities Complaint  Xb- ` _x7.` ` The networks contend that Perot's equal opportunities complaint is without merit.  xABC, CBS, and NBC assert that their coverage of the Democratic and Republican National  X4- xConventions was specifically exempt pursuant to Section 315(a)(4) of the Communications Act.4X yO-#C\  P6QP#э xThe text of this provision is discussed herein.  xConsequently, the networks contend that any appearances by candidates during these broadcasts  xLcannot give rise to equal opportunities rights. Further, ABC states that its decision to devote  xlive air time coverage to the conventions "was based on its good faith journalistic judgment that  xsuch coverage was newsworthy and not in order to promote the candidacy of either party  xnominee." NBC asserts that its decision to cover the Democratic and Republican Conventions  xand not that of the Reform Parties is within its discretion to be selective in determining which  xnews events to broadcast. NBC maintains that Perot presents no basis to support his claim that the coverage of these two conventions could not be considered newsworthy.  XN- ` x8.` ` The networks contend that their planned coverage of the presidential debates is  xzsimilarly exempt. NBC and CBS point to the fact that the Commission has long held that the  xcoverage of debates consisting of two or more candidates for public office qualifies for an  X - x/exemption from equal opportunities as an onthespot coverage of a bona fide news event, " 0*((["  X- xpursuant to Section 315(a)(4). XX yOy-#C\  P6QP#э xAspen Institute, 55 FCC 2d 697 (1975), aff'd. sub nom, Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.  yOA-1976), cert. denied, 97 S. Ct. 247 (1976); Henry Geller, 95 FCC 2d 1236 (1983), aff'd sub nom, League of  yO -Women Voters v. FCC 731 F.2d 995 (D.C. Cir. 1983). Moreover, CBS contends that the test of whether a broadcaster's  x=coverage of a candidate debate qualifies for an exemption is not the motivation of the debate's  xorganizers in selecting the participants, but rather whether the broadcaster acted in good faith in  x determining that the event is newsworthy. In this respect, the networks maintain that their  xdecision to broadcast the debates was based upon their good faith "journalistic judgment" that  xthese events will be highly newsworthy and they state that Perot has provided no basis upon  xwhich to question their judgment. NBC states that it played no role in choosing the participants  xand asserts that the fact that Perot has not been invited to participate does not, in its judgment,  XH-render the event any less newsworthy. HX yO -#C\  P6QP#эx ABC said that if the CPD decides to include Perot or any other candidate in the debates, it would continue to consider the events newsworthy and would broadcast them.   X - ` x9.` ` ABC states that Perot has no basis upon which to assert an equal opportunities  xcomplaint against it for the appearances of President Clinton and Republican Party nominee Bob  x{Dole on its program "20/20," in light of the fact that "regularly scheduled news interview  xyprogram[s]" are exempt from equal opportunities pursuant to Section 315(a)(2). ABC maintains  xthat "20/20" is a regularly scheduled news program and that "news interviews are a regular and  xjrecurring feature of the program." ABC contends that "20/20" satisfies the criteria upon which  X- xthe Commission has previously found similar programs to be exempt. @X yO-#C\  P6QP#э xSee Letter to CBS, 58 FCC 2d 601 (1976)(granting an exemption to the news interview portions of the CBS program "60 Minutes.") ABC claims that "except  xfor a bare assertion that '20/20' is not news, Perot presents no evidence" to refute the program's exempt status.  X4- ` Ax10.` ` Fox contends that Perot's equal opportunities complaint against it with respect to  xits coverage of presentations by the major presidential candidates is similarly without merit. Fox  x=notes that the Commission recently determined that these programs qualified for an exemption  X- xas onthespot coverage of #XP*f9 xQ _XX#bona fide# XP\  P6QXP# news events. X yO8-#C\  P6QP#э xFox Broadcasting Company, FCC 96355 (rel. Aug. 21, 1996). Consequently, Fox maintains, there can be  xno right to equal opportunities with respect to the appearances by the candidates therein. Further,  xFox contends that Perot "mischaracterizes" the network's actions in stating that Fox withdrew its  xMagreement to provide him free time. Fox states that on September 6, 1996, it sent Perot a list  xKof the ten questions to be posed to the participating candidates. Fox states that it provided Perot  xwith this information solely "as a courtesy" to enable him to be better prepared in the event that  xythe CPD included him in the debates. Fox states that because its exemption for these programs  xKwas based upon a proposal submitted to the Commission in which the network specifically stated  xthat it would defer to the CPD with respect to the participants, it could not now decide to include  xPerot without being susceptible to a claim by other candidates that it was not acting in""( 0*((" accordance with the Commission's ruling.  X- ` _x11.` ` Finally, NBC takes issue regarding Perot's allegation that the networks only invite  xmajor party candidates and their representatives to appear on news programs. NBC contends that  xPerot's claim is incorrect, at least with respect to NBC, and states that since early 1996 the  xnetwork has broadcast several news interviews with him. NBC further states that Perot's campaign has received coverage in its other news programs as well.  XH-  X1-Perot Reply To Network Equal Opportunities Responses  X - ` "x12. #Xj\  P6G;XP# ` ` #Xj\  P6G;XP# Perot contends that the appearances by the Democratic and Republican presidential  xcandidates in the above programs cannot be exempt from equal opportunities as news. Perot  xZmaintains that such an expansive definition of the news exemption would eliminate the "structural  xZsafeguards" that the Commission has required of such programming. Perot further contends that  xif the networks are given the liberty to define virtually every appearance by a candidate as  xy"news," no candidate will ever have the right to enforce equal opportunities. Perot argues that  x.this result would be inconsistent with the intent of Congress in enacting Section 315(a). With  xrespect to the issue of broadcaster intent, Perot states that he had "no ability to conduct  xdiscovery" and, therefore, cannot provide any evidence thereof. However, Perot maintains that  xthe fact that the networks chose to cover only the Democratic and Republican conventions, and  xnot that of the Reform Parties, suggests that they are "showing favoritism" towards the major party candidates.  X-x  X-x` `  hhDiscussion  X-Equal Opportunities Legal Background  X|-  Xe- ` ox13.` ` Section 315 of the Communications Act (47 U.S.C. Section 315) provides that if  x-a licensee permits a legally qualified candidate for public office to use a broadcast station, it must  xafford equal opportunities to other such candidates for that office. In 1959, Congress amended  xSection 315 to exempt from the equal opportunities requirement appearances by legally qualified candidates on any of the following:  X-x(1) bona fide newscast,  X!-x(2) bona fide news interview,  X#-x(3) bona fide news documentary (if the appearance of the candidate is incidental to xthe presentation of the subject or subjects covered by the news documentary), or  X@&-x(4) onthespot coverage of bona fide news events (including but not limited to (#(#Xpolitical conventions and activities incidental thereto)."+' 0*((%"Ԍ47 U.S.C. Section 315(a)(1)(4). x  X- ` x14.` ` In Aspen Institute,5 X yOK-#C\  P6QP#эxAspen Institute 55 FCC 2d 697 (1975), aff'd. sub nom, Chisholm v. FCC, 538 F.2d 349 (D.C. Cir.  yO-1976), cert. denied, 97 S. Ct. 247 (1976). #Xx6X@DQVbX@#5 the Commission adopted a twopart test for analyzing whether  X- x<a program should be considered bona fide news event programming. First, it determined whether  xthe format of the program reasonably fit within the news event exemption category and, second,  xit assessed whether the decision to carry a particular event was the result of good faith news  Xx- xjudgment and not based on partisan purposes.x X yOI -#C\  P6QP#э xIn Kennedy for President Committee (Kennedy), 77 FCC 2d 965, 96869, aff'd sub nom. Kennedy for  yO -President Committee v. FCC, 636 F.2d 417 (D.C. Cir. 1980), the Commission further clarified Aspen and emphasized that in making the analysis of whether a program is exempt, the Commission will first "determine whether a particular scenario falls within one of the classes of appearance exempt under Section 315(a)(1)(4)."  yOi -Id. at 969. Second, the Commission will explore "whether a particular broadcast which is claimed exempt was  yO1-presented using a broadcaster's good faith news judgment." Id. The second aspect of this analysis places considerable reliance on the exercise of a broadcaster's discretion to determine "newsworthiness" once it is determined an exempt news event is involved. Thus, "absent evidence of the broadcaster's intent to advance a particular candidacy, newsworthiness of an event is left to the reasonable news judgment of the professionals."  yOQ-Kennedy for President Committee v. FCC, 636 F.2d at 427.#Xx6X@DQVbX@# The Commission has continued to utilize the  Xa-Aspen analysis for cases involving the news event exemption.2a X yO-#C\  P6QP#эxIn our recent decision in Fox Broadcasting Company, supra, n.2, we found that proposals by Fox, ABC  {O-and the Public Broadcasting Service to offer free time to major presidential candidates should be treated as bona  O\<fide news event programming under Section 315 (a)(4).#Xx6X@DQVbX@# #C\  P6QP#In doing so, we set out the relevant history of the  yO4-Commission's interpretation of that exemption and its application to the specific network proposals.#Xx6X@DQVbX@#ѿ     X3-  X -Analysis of Equal Opportunities Complaint  X - ` 5x15.` ` Applying the terms of the statute and the Aspen test to the Perot equal  xopportunities arguments as they relate to the "news event" exemption, we conclude that, based  xon the record before us, none of the networks is obligated to provide Perot with equal  xopportunities in connection with the major party nominating convention coverage or the  X- xupcoming debates. In addition, consistent with our recent ruling in Fox Broadcasting, we  xMconclude that Perot is not entitled to equal opportunities related to his exclusion from Fox's  xypresentation of statements by President Clinton and Bob Dole. Finally, we conclude that Perot  xis not entitled to equal opportunities in connection with the respective appearances by President  xClinton and Bob Dole on separate editions of ABC's 20/20 program. For purposes of clarity, we  X-shall address each of Perot's allegations separately.  X-Party Convention Coverage  X- ` x16.` ` With respect to Perot's argument that he is entitled to equal opportunities in"0*((4"  xresponse to the network's coverage of the political conventions, the explicit language of Section  X- x315(a)(4) exempts such programming. Section 315(a)(4) states that onthespot coverage of bona  X- xfide news events includes "political conventions and activities incidental thereto." Thus,  xCongress has chosen by statute to classify political conventions as exempt from the equal  x.opportunities requirement. We have no basis to conclude that such programming is not bona  xNfide. With respect to Perot's argument that the conventions are staged to showcase the  Xz- xcandidates, the following language from the Aspen decision by the United States Court of Appeals is instructive:  $XxWe remain unconvinced by petitioner's arguments that these events [political  conventions, debates and press conferences] are distinguishable [from debates and  }press conferences] based on the degree of control by the candidate, or the degree  Ato which candidates tailor such events to serve their own political advantages. It  X - ais more reasonable to believe, as the Commission apparently does, that any  appearance by a candidate on the broadcast media is designed to the best of the candidate's ability, to serve his own political ends.   X- xChisholm v. FCC, 538 F.2d 349 (D.C. Cir. 1976), cert. denied, 97 S. Ct. 247 (1976). Thus, candidate control does not necessarily mean that a program is not an exempt news event.  XQ-  X:-Appearances on the "20/20" program#XP\  P6QXP#  X - ` x17.` ` The appearances of President Clinton and Bob Dole on ABC's "20/20" program  xZare also not subject to equal opportunities. As discussed above, in 1959 Congress exempted four  x-categories of news from the equal opportunities requirement. The exemption for "bona fide news  x=interviews" pursuant to Section 315 (a)(2) has been interpreted by the Commission to apply to  X- xa variety of different kinds of interview programming, including CBS's "60 Minutes."X yO)-#C\  P6QP#э xLetter to CBS, 58 FCC 2d 601 (1976). #Xx6X@DQVbX@#ѫ In  x.granting CBS's 1976 request for a Commission determination as to whether it believed that "60  xMinutes" fit the news interview exemption, the Commission ruled that it satisfied congressional  xintent. Specifically, the Commission noted that it was regularly scheduled, a requirement  x=specified in the exemption's legislative history. The Commission also took note of the fact that  xthe program was under the exclusive control of CBS, and the licensee stated that interviewees  xwere selected based on the basis of newsworthiness, not for partisan purposes. CBS indicated  xKthat although "60 Minutes" contained various kinds of news formats, the program featured news  xinterviews on a regular recurring basis. As such, the Commission determined that appearances  xby legally qualified candidates on "60 Minutes" would not trigger equal opportunities rights for  xKopposing candidates. Similarly, ABC states that "20/20" has been regularly scheduled since 1978  xand has featured news interviews of many newsworthy persons, including heads of state and other  xpolitical figures, including Perot in 1988 and 1992. ABC states that its news division controls  x<the program and guests are selected on the basis of good faith journalistic judgment, not to favor  xany particular candidacies. Thus, in the absence of any indication to the contrary, "20/20" falls"n$X0*((F#"  xwithin the news interview exemption and the appearances of President Clinton and Bob Dole  X-therein do not entitle Perot to equal opportunities.X yOb-#C\  P6QP#э xThat Perot is willing to pay for the time is irrelevant for purposes of determining whether he is entitled to equal opportunities.  X-x  X- Presidential Candidate Debates  Xv- ` ~x18.` ` With respect to the Presidential debates, we believe that under our news event  xjanalysis, Perot again fails to establish that the debates would not be properly accorded exempt  XH- xnews event status. In Aspen Institute and consistently since, the Commission has found, with the  xapproval of the courts, that debates between at least two competing legally qualified candidates  xlare exempt news events. Thus, under the first part of the test, as to whether the debates  X - xreasonably fit within the news event exemption, it is reasonable for broadcasters to treat them  xas such. As to the second prong, whether the decision to carry the debates is the result of good  xfaith news judgment and not based on partisan purposes, Perot also fails to show that the  xnetworks decision to cover the debates is not based on the newsworthiness of the event. Perot  X - xcontends that the CPD selection process is skewed because, inter alia, the CPD failed to follow  x.its own objective criteria and is partial to the two major political parties. We do not review the  x/decisions of the CPD. Thus, the correctness of its decision is immaterial to the question of  xwhether any particular broadcaster's decision to carry the debates was based upon an intent to  XM- xfavor one candidate over another, and not on a judgment of newsworthiness. M X yO-#C\  P6QP#э xIn 1988, the Commission was faced with resolving a complaint from presidential candidate Lenora B. Fulani, who made the same essential arguments with respect to the debate sponsorship by the CPD. The Commission stated that: XxHere, the fact that an organization established through the cooperation of the major political  {O-parties sponsored the debate is similarly not determinative of the #C*f9 xQ ֳX#bona fide# C\  P6QP# newsworthiness of the debate. In short, regardless of the debate's sponsors, format, or participants, the controlling question is whether broadcasters made good faith journalistic determinations that the . . . debate was newsworthy. It is the broadcaster, not the Commission, who bears the initial responsibility  yO(-to formulate journalistic judgments as to whether, as the Commission reasoned in Henry Geller,  {O-an event has "#C*f9 xQ ֳX#bona fide# C\  P6QP# news value."   yO-Lenora B. Fulani, 3 FCC Rcd 6245 (1988). Perot has not  x.suggested that any of the networks played any role in CPD's decision to exclude Perot. In the  xabsence of a showing by Perot that the broadcasters themselves acted for partisan purposes, we  xconclude that the presidential debates are news events and exempt from the equal opportunities  X-requirement.XX yO~%-#C\  P6QP#э xWith respect to Perot's argument that he is entitled to equal opportunities for the appearance of the  yOF&-Republican and Democratic candidates in the programming approved by the Commission in Fox Broadcasting, we note that this programming was determined to be exempt under Section 315(a)(4). Thus, Perot is not entitled"'0*((1'" to equal opportunities as to this programming."X0*((s"Ԍ X-ԙ  #^\  P6Q"P# #XP\  P6QXP##XP\  P6QXP# x  X- REASONABLE ACCESS ă  X- ` Px19.` ` On August 18, 1996, the Reform Parties nominated Ross Perot as its candidate for  xjPresident for the November, 5, 1996, general election. Shortly thereafter, representatives of the  xPerot campaign contacted each of the aforementioned networks to inquire about the purchase of  X_- xtime.oX_XX yOh -  L#C\  P6QP#э xPerot made earlier attempts to secure time from the networks before he became a legally qualified candidate.  xHowever, the networks were under no obligation at that point to offer him time, and Perot has made no arguments in this regard.o Specifically, Perot requested to buy from all four networks eight onehalf hour blocks  x?of prime time, one to air each week beginning the week of September 8, 1996, continuing  x through the week of October 27, 1996. In addition, Perot requested a one halfhour slot for  X - xelection eve, Monday, November 4, 1996. Perot maintains that the ability to purchase halfhour  xkblocks of time, especially in prime time, is crucial to his campaign as a thirdparty candidate.  xPerot asserts that the Democratic and Republican candidates have ample access to the media  xNthrough traditional news coverage, which is rarely provided to him and other third party  xcandidates. Perot argues, by way of an example, that only major party candidates and their  xKrepresentatives are typically invited to appear on talk shows and other news programs. Perot also  xZnotes that he has been excluded from the presidential debates scheduled to take place in October,  xwhich ABC, CBS, and NBC plan to cover. In addition, Perot claims that the Democratic and  xRepublican presidential candidates will each have over $100 million dollars to spend on their  XK- xrespective campaigns, whereas he will have approximately $29 million at his disposal.1 KxX yOt-  #C\  P6QP#эx Under certain circumstances, the Federal Election Commission awards general election presidential  xicandidates matching funds based upon a formula derived from the percentage of votes his or her respective party  xreceived in the prior presidential election. Because Perot has chosen to receive federal election matching funds, he is limited in the amount of personal resources that he may donate to his campaign.1  xConsequently, Perot contends that while the major party candidates may be able to afford to  xcommunicate with the voters by the purchase of 15, 30 or 60second "sound bites," he does not  X-have this luxury and needs to purchase larger blocks of time to deliver his message effectively. ` X yO-  #C\  P6QP#эx Perot states that a typical 15second spot during network prime time programming "costs a candidate  xapproximately $50,000 $60,000." Perot states that if he were to campaign using 15 or 30second increments, 30  ximinutes of time would cost approximately $3 million, almost ten times what he contends he would pay for a 30minute block of time.   X-  X- ` x20.` ` Perot states that the Commission has long required networks to sell reasonable  X- xamounts of time to federal candidates during prime time programming. Commission Policy in  X- xEnforcing Section 312(a)(7), 68 FCC 2d 1079, 1091 (1978). A refusal to do so, Perot contends,  xKwould deny a candidate access to the time periods which possess the greatest audience potential  xLand would thus be inconsistent with Section 312(a)(7). Further, Perot asserts that a candidate"| H 0*(("  X- xmust be allowed the flexibility to obtain programming in a manner suited to his or her campaign.  X- xPerot states that the United States Supreme Court in CBS Inc. v. FCC ("CarterMondale"), 453  x!U.S. 367 (1981), held that broadcasters are required to tailor their responses, as much as  xreasonably possible, to a candidate's stated purpose in seeking the airtime. Accordingly, Perot  xZargues that the networks should "honor a candidate's decisions on the best strategy for pursuing  X- xhis media campaign." Perot maintains that the responses he received from each of the four  Xv-networks constitute a denial of reasonable access. pp   XH- ` x21.` ` Since the focus of this portion of the complaint is Perot's allegation that he did not  xreceive sufficient prime time program length access, we reiterate that Perot initially requested to  xpurchase 8 onehalf hour prime time slots, one to air each week beginning the week of September  xL8, 1996, continuing through the week of October 27, 1996, and an additional one halfhour slot  xfor election eve, Monday, November 4, 1996, for a total of 4 1/2 hours of prime time programming.  X - Network Responses  Xy- ` ~x22.` ` In their September 27, 1996, responses to Perot's allegations, as detailed below,  xeach network argues that it complied with the statute and relevant Commission policy and case law in providing access to the Perot campaign.  X-x    X-ABC  X- ` 3x 23.` ` According to the pleadings, ABC has provided Perot with three onehalf hour  xprime time slots from September 1, through October 20, 1996, and a shared hour on election eve,  xthe amount of which is to be determined in relationship to the needs of other candidates that  xevening. ABC has also offered Perot four additional onehalf hour slots in nonprime time  x1following its program "Nightline." ABC further states that it has offered Perot "spot  xLavailabilities" in prime time and other day parts through election day. ABC states that Section  x312(a)(7) does not require licensees to provide unlimited time to candidates or to accede to every  xrequest that a candidate may make. ABC asserts that the Commission has made clear that  xlicensees may take into consideration the disruption of broadcast schedules, the potential of equal  xopportunities requests by competing candidates, and the amount of time already provided to the  xcandidate during the course of the campaign in responding to a candidate's request for time.  xABC maintains that it has been flexible in considering Perot's particular requests and needs and  xhas responded by making available a variety of dates and different dayparts to him.  xConsequently, ABC concludes that it has "fully satisfied" its reasonable access obligation to Perot.  X#-    Xh$-"h$ 0*(((#"  X- NBC  X- ` x24.` ` According to the pleadings, NBC sold one halfhour of prime time to Perot on  xkSeptember 8, 1996, from 7:007:30 pm. and states that it will sell Perot an additional halfhour  xzof prime time on October 12, 1996. NBC will also sell Perot up to onehour in nonprime time  x.on October 1, 1996, as well as a portion of a onehour block of time on election eve, November  x4, 1996, that, like CBS, will be apportioned among the candidates choosing to purchase time that  XH- xevening.HX yO -  j#C\  P6QP#э x Accordingly, Perot may receive less than 30minutes if three or more candidates choose to avail themselves of this opportunity. In addition, NBC has offered Perot numerous 15, 30, and 60second spots in both  xprime and nonprime time. NBC states that it applied the proper criteria in evaluating Perot's  xrequest for access and maintains that it arrived at a reasonable decision that balances Perot's  xexpressed needs against other relevant factors such as the disruptive impact on the network's  xprogramming schedule and the likelihood of requests for time from other candidates. Moreover,  X - xNBC states that it had no role in creating Perot's financial disadvantage vis a vis the major  xLpresidential candidates, and therefore, the network has no obligation to create a "level playing  x[field" for presidential candidates. NBC states that Perot is not entitled to unlimited access and  xthat the package NBC has offered him, including program length and spot time, fulfills the  xnetwork's obligation in providing reasonable access. Consequently, NBC maintains that Perot's complaint against it is without merit.  XM-  X6- FOX  X- ` _x25.` ` According to the pleadings, Fox has sold Perot a one halfhour slot on September  x14, 1996, from 88:30 pm. Fox has also offered Perot a package of ten, 15, and 30 second spots  xto air between October 5, 1996, and November 2, 1996. Fox has further indicated that it will  xattempt to clear time currently allotted to the airing of the 6th game of the World Series if the  X- xSeries ends in fewer games. Fox states that it offered Perot a halfhour in prime time on  X- xSeptember 30, 1996, but that Perot declined this offer. This offer was made to Perot on  x.September 26, 1996, two days after Perot filed his complaint with the Commission. In addition,  Xg- xFox has since offered to sell Perot an additional onehalf hour on October 12, 1996, from 9:30  x10:00 pm. Fox claims that it is unique among the major networks because it is constrained by  xa smaller prime time schedule. Fox points to the fact that it provides only 15 hours of regularly  xscheduled primetime programming each week compared to 22 hours for the major networks. Fox  xargues that the Commission has previously indicated that it will make exceptions to the prime  X- xtime program length requirement for federal candidates "where circumstances dictate," X yO#-#C\  P6QP#э xLaw of Political Broadcasting and Cablecasting, 69 FCC 2d 2209, 2288 (1978) and  xmaintains that this is one of those circumstances. Fox also contends that the Commission has  X - x[recognized the importance of other nonpolitical types of programming, X yO''-#C\  P6QP#э xCommission Policy in Enforcing Section 312(a)(7), 68 FCC 2d at 1089 (1978). and states that it has" @0*(("  xZcontractual obligations with respect to the broadcast of the Major League Baseball championship  xgames. Fox further states that considering "the likelihood of requests to buy time by rival  xxcandidates under the equal opportunities provision of Section 315(a)" it has accommodated Perot  x-as much as reasonably possible. Consequently, Fox concludes that it has acted "reasonably and  xin good faith, and that its decisions should be entitled to deference even if the Commission's analysis would have differed in the first instance."  X_- CBS  X1- ` %x26.` ` According to the pleadings, CBS sold Perot one halfhour of prime time on  xSeptember 10, 1996, from 8:008:30 pm. and has offered to sell him a halfhour in prime time  xin the latter part of October, the specific day and time of which is to be determined. In addition,  xjCBS offered to sell Perot an hour block of time on election eve, but reserves the right to reduce  xproportionately the amount of time available based upon requests by other candidates for election  xeve access. CBS has also offered to sell Perot two nonprime time halfhour slots during the  xydaytime as well as a onehour slot during late night programming. In addition, CBS has offered  xto provide Perot with an extensive amount of 15, 30, and 60second spot announcements in both  xMprime and nonprime time programming and states that it remains willing to consider further  xLrequests for time. CBS maintains that it weighed Perot's expressed needs against other factors  xwhich the courts and the Commission have indicated broadcasters may consider in responding  xto reasonable access requests, including the number of other candidates who may also seek  xzprogram and spot length time as well as disruption to regular programming. CBS states that  xthere has never been a Commission requirement that a licensee, which has provided other types  xof access to its facilities, must sell a federal candidate multiple halfhour blocks of time over the  xzcourse of a campaign in order to comply with Section 312(a)(7). On the contrary, CBS refers  xjto a staff ruling by the Mass Media Bureau in which it was determined that ABC had not acted  xunreasonably in offering a presidential candidate 5 minutes of time in response to a 30minute  xrequest where the network had previously sold the candidate a halfhour of time accepted by the  X|- xcandidate to be in lieu of its right to prime time.|X yO-#C\  P6QP#э xCitizens for LaRouche, Inc., 47 RR 2d 1415 (B/cast Bur. 1980).  CBS concludes that, in light of this ruling, its response to Perot's requests cannot be considered unreasonable.  XN-x  X - Perot Reply To Network Reasonable Access Responses  X- ` x27.` ` In his reply, Perot contends that the networks have failed to provide evidence to  x=support their refusal to provide him with sufficient prime time programming. Perot asserts that  xthe networks merely recite the factors which the Commission considers in analyzing a reasonable  x-access complaint rather than offering explanations of why they have failed to adequately provide  xhim with prime time slots. Perot maintains that the networks must cite a realistic danger of  xprogram disruption or unusual circumstances to justify a denial of a candidate's request for time.  xOtherwise, Perot states, the networks could simply evade their reasonable access obligations on"h$ X0*((F#"  x-a "speculative and unsubstantiated" basis. In response to Fox, Perot states that the Commission  xyhas never relieved a network of reasonable access obligations because it programs fewer prime  xtime hours. Further, Perot argues that Fox's contract to air the Major League Baseball games  xcannot be considered an "exceptional circumstance." With respect to his having declined Fox's  xoffer for a onehalf hour prime time slot on September 30, 1996, Perot states that this was a "last  X- x=minute offer," which did not allow him sufficient opportunity to prepare a program. Regarding  x=NBC's assertion that it had no obligations to create a level playing field, Perot claims that NBC  xwas obligated, but failed, to "assess" the campaign's needs in evaluating its request for time.  XH- xjPerot further claims that LaRouche is not analogous because, unlike here, the candidate in that  xcase accepted a substitute time period in lieu of prime time. Finally, Perot claims that despite  xthe networks' current assertion that they must consider the fact that another presidential candidate  xLhas now requested to purchase a halfhour block of time, this information was not before them  xat the time they denied his requests and thus cannot justify their refusal to have honored his request.  X- Discussion   Xb- Reasonable Access Legal Background  X4- x28.` ` Section 312(a)(7) of the Communications Act provides:   ^XxThe 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  X-elective office on behalf of his candidacy.vX yO:-#C\  P6QP#э x47 U.S.C. Section 312(a)(7).v(#  X- ` x29.` ` In 1978, the Commission formulated policies for implementing the reasonable  xaccess obligation, emphasizing a "rule of reason" in balancing the needs of the federal candidate  x=in seeking access and the interests of broadcasters in not having regular programming unduly  XN- xdisrupted.NXX yOW-#C\  P6QP#э Report and Order in Commission Policy in Enforcing Section 312(a)(7), 68 FCC 2d 1089 (1978). Relying on those factors, the Commission encouraged good faith negotiation between  x!broadcasters and federal candidates in determining how much advertising time, and the  X - xplacement, a station will provide. Three years later, in its landmark Carter/Mondale decision, the  xxSupreme Court stated that although flat bans or acrosstheboard policies for handling reasonable  xxaccess requests are prohibited, "the Commission mandates careful consideration, not blind assent  xNto, candidates desires for air time." 453 U.S. at 389. The Court affirmed the Commission's  X -interpretation of Section 312(a)(7), summarizing as follows:  Xx[A]ccess requests from "legally qualified" candidates for federal elective office .  X#-. . must be considered on an individualized basis, and broadcasters are  0"# 0*((""ԑ 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). These considerations may not be  1invoked as pretexts 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  X1-number of equal time requests.1X yO -#C\  P6QP#э x453 U.S. at 387.#Xx6X@DQVbX@#і   X - ` x30.` ` The Commission's review of a broadcaster's reasonable access determination is  xzanalyzed in a twostep process: (1) has the broadcaster adverted to the proper standards in  xydeciding whether to grant a request for access?; and (2) is the broadcaster's explanation for his  X -decision reasonable in terms of those standards? XX yO-#C\  P6QP#э xCarterMondale at 37576. We also note that, in reviewing reasonable access matters, the Supreme  yO-Court stated that: x` `  2Xx[I]n order to facilitate review by the Commission, broadcasters must explain their reasons for  ^refusing time or making a more limited counteroffer. 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.   yO-Id. at 387  x  X- ` x 31.` ` Each of the networks has adverted to the proper standards in considering Perot's  Xy- xrequest for time, as the first prong of our test contemplates. Specifically, each has stated that it  xhas balanced the amount of program length, prime time programming Perot requested nine  xprime time halfhours from each network, and his campaign's stated need for such time, against  xthe highly disruptive impact the request, if fulfilled in its entirety, would have on its regularly  xyscheduled programming. In addition, each took into account the potential for requests for time  X- x[from the six other presidential candidates ( X yO-#C\  P6QP#эxFor example, CBS filed a letter with the Commission on September 30, 1996, advising us that Libertarian Candidate Harry Browne and Natural Law Party Candidate John Hagelin have both requested halfhour prime time blocks of time before the election. Similarly, NBC has submitted a letter it has received from Libertarian Candidate Harry Browne requesting a thirtyminute block of prime time before the election. and the amount of time it had already offered Perot.  xWith respect to the second prong of our test, we have reviewed the networks' explanations as to  xhow each has balanced Perot's requests for program length prime time against the impact of that  xrequest, and find that the explanations are reasonable. We believe that the record shows that  xeach network indeed gave considerable weight to the candidate's express need for program length,  xprime time access. We also believe that they have been reasonable in considering the potential  x=impact of Perot's substantial request on their programming schedules and have offered access"|0*(("  xconsistent with their obligations under Section 312(a)(7). In coming to this conclusion, we have  X- xnecessarily looked at the amount of time offered, the time period in which it is offered, and the  X-proximity of the time offered to the election. X yOK-#C\  P6QP#эxTo the extent that this ruling is inconsistent with a 1980 staff ruling in Citizens for LaRouche, Inc., 47 RR 2d 1415 (Bcast/Bur 1980), it is hereby overturned. x  Xv-#XP\  P6QXP# Analysis of Reasonable Access Complaint against ABC  X_-x  XH- ` x32.` ` We are satisfied that ABC has offered to sell Perot "reasonable" amounts of  xprogram length programming in prime time and that it has provided such prime time access  xsufficiently close to the election so that Perot will have a reasonable opportunity to reach the  x-American electorate during the period they are most engaged in deciding how to cast their votes.  xSpecifically, once Perot was nominated by the Reform Parties, ABC offered him a total of one  xand a half hours during prime time, spread over the eight weeks preceding the election. ABC  xoffered to allow Perot to purchase halfhours slots on September 1, 77:30 p.m., October 6, 7 xN7:30 p.m., and October 20, 7:308 p.m. The network also offered Perot the opportunity to  xpurchase up to onehour of prime time programming on election eve. Under the facts and  xxcircumstances before us, we find that ABC has provided Perot "reasonable access" under Section 312(a)(7).  XK-  X-Analysis of Reasonable Access Complaint against NBC  X- ` x33.` ` We are satisfied that NBC has offered to sell Perot "reasonable" amounts of  xprogram length programming in prime time and that it has provided such prime time access  xsufficiently close to the election so that Perot will have a reasonable opportunity to reach the  x-American electorate during the period they are most engaged in deciding how to cast their votes.  xzSpecifically, NBC offered to sell to Perot one thirtyminute prime time program for broadcast  xMin September (September 8, 77:30 p.m.) and an additional halfhour in prime time in October  x](October 12, 10:3011:00 p.m.) NBC also advised Perot that it was reserving onehour on  xjelection eve, November 4, 89:00 p.m., to be allocated among any of the presidential candidates  x<who request paid access that evening. Under the facts and circumstances before us, we find that NBC has provided Perot "reasonable access" under Section 312(a)(7).  X- Analysis of Reasonable Access Complaint against Fox  X - ` Cx34.` ` We are satisfied that Fox has offered to sell Perot "reasonable" amounts of  xprogram length programming in prime time and that it has provided such prime time access  xsufficiently close to the election so that Perot will have a reasonable opportunity to reach the  x-American electorate during the period they are most engaged in deciding how to cast their votes.  Xh$- xk Specifically, Fox initially offered Perot one prime time halfhour slot on September 7, subject"h$  0*((F#"  xyto rescheduling on September 14, which Perot accepted. Thereafter, Fox offered Perot a second  X- x.prime time halfhour slot on September 30, which Perot declined. Fox also offered Perot a half  xkhour prime time program slot on October 26, as a contingent backup to game 6 of the World  xseries. Fox then offered to sell to Perot an additional prime time slot on October 12, 9:3010:00  x p.m. Thus, in response to Perot's request for prime time programming, Fox offered to sell to  xPerot three prime time halfhours in a period sufficiently proximate to the election to provide his  xcampaign with the reasonable opportunity to reach the electorate. Under the facts and  xcircumstances before us, we find that Fox has provided Perot "reasonable access" under Section  XH-312(a)(7).  X - Analysis of Reasonable Access Complaint Against CBS x` `  X - ` x35.` ` We are satisfied that CBS has offered to sell Perot "reasonable" amounts of  xprogram length programming in prime time and that it has provided such prime time access  xsufficiently close to the election so that Perot will have a reasonable opportunity to reach the  x-American electorate during the period they are most engaged in deciding how to cast their votes.  xSpecifically, CBS has offered to sell to Perot a halfhour slot on September 10, 88:30 p.m. and  x=a second halfhour prime time slot in the latter part of October. In addition, CBS offered to sell  xPerot onehour of prime time on election eve, but has reserved the right to apportion the hour  xion election eve as it deems reasonable among any other candidates who seek such access. Thus,  xin response to Perot's request for prime time programming, CBS offered to sell to Perot two  xNprime time halfhours and at least a portion of election eve hour of prime time in a period  x.sufficiently proximate to the election to provide his campaign with the reasonable opportunity  xto reach the electorate. Under the facts and circumstances before us, we find that CBS has provided Perot "reasonable access" under Section 312(a)(7).  X|-  Xe- x` `  hhCONCLUSION  X7-x36.` ` As a result of the foregoing, the complaint filed by Ross Perot is hereby DENIED.  X- x` `  hh  X-x` `  hhFEDERAL COMMUNICATIONS COMMISSION x` `  hhWilliam F. Caton x` `  hhActing Secretary  XQ%-x` `