WPC ( 2MBVRKZ3|j 7jC:,y3Xj\  P6G;XP"i~'^:DPddDDDdp4D48dddddddddd88pppX|pDL|pp||D8D\dDXdXdXDdd88d8ddddDL8ddddX`(`lD4l\DDD4DDDDDDDDd8XXXXXX|X|X|X|XD8D8D8D8ddddddddddXdbdddpdXXXXXlX~|X|X|X|XdddldldD8DdDDDdplld|8|P|D|D|8dvddddDDDpLpLpLpl|T|8|\ddddddl|X|X|Xd|DdpL|Dd~4ddC$CWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNHxxH\dDXddddd8@d<@d<DDXXdDDxddzHxxHvppDXd<"dxtldpxxdHP LaserJet 4M (PCL) (Additional)HL4MPCAD.PRSXj\  P6G;\#'DXP2Y uK3|j Times New RomanTimes New Roman BoldTimes New Roman ItalicCourierCG TimesCG Times ItalicLine Draw (Scalable-Cr)"i~'^09CSS999S]+9+/SSSSSSSSSS//]]]Ixnnxg]xx9?xgxx]xn]gxxxxg9/9MS9ISISI9SS//S/SSSS9?/SSxSSIP!PZ9+ZM999+99999999S/xIxIxIxIxIlnIgIgIgIgI9/9/9/9/xSxSxSxSxSxSxSxSxSxSxIxSxRxSxSxS]SxIxIxInInInZnIxigIgIgIgIxSxSxSxZxSxZxS9/9S999Su]ZZxSg/gCg9g9g/xSbxSxSxSxSxn9n9n9]?]?]?]ZgFg/gMxSxSxSxSxSxSxxZgIgIgIxSg9xS]?g9xSi+SS88WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN/>/>/>/x]SSSSx]x]x]x]xSxSx]SSxSxSf]xSxSxSxIxIxWxIx{nInInInISSSWS]a?/?]?9?]]WW]n/nKn9nCn/x]xx]x]SSxxIxIxI]?]?]?]WnUn9nax]x]x]x]x]x]xxWnInInIx]n9x]]?n9xSz+SS8-8WuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuuxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN8HH"&H>XHH8HB8>HH^HH>"".2",2,2,"222N2222"&22H22,006"6."""""""""""2H,H,H,H,H,XAB,>,>,>,>,""""H2H2H2H2H2H2H2H2H2H2H,H2H1H2H2H282H,H,H,B,B,B6B,H?>,>,>,>,H2H2H2H6H2H6H2""2"""2F866H2>>(>">">H2;H2H2H2H2XHB"B"B"8&8&8&86>*>>.H2H2H2H2H2H2^HH6>,>,>,H2>"H28&>"H2?22!!WFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFFxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxN$<<$.2",2222`2 LL2 LL2L"",,2d""A.SSxSSJJSJS+SSSSS8SSSSSSSSS.xJxJxJxJxJorJiJiJiJiJ8.8.8.8.{SxSxSxSxS{S{S{S{SxSxJ{SxSxSxS{S`SxIxSxIqIqIrSrS{dgIiSiSgIxSxSxSxSxS{S{S8.SSSS8Sz]SSuSg/g4 !of any particular length.L>| {O' !/ ԍ#X\  P6G;P# 1978 Policy Statement, 68 FCC 2d 1079, 1090 (1978). And as noted by Petitioners, the Commission's  ! prohibition against such flat bans was favorably cited by the U.S. Supreme Court in its landmark reasonable access  {OI' ! decision. Carter/Mondale Presidential Committee, Inc., 74 FCC 2d 631, recon. denied, 74 FCC 2d 657 (1979), aff'd  {O' !@ sub nom. CBS Inc. v. FCC, 629 F.2d 1 (D.C. Cir. 1980), aff'd, 453 U.S. 367, 392 (1981) ("Carter/Mondale"). In  {O' !U addition, our Report and Order in Codification of the Commission's Political Programming Policies, reaffirmed the  {O' !3 ongoing viability of the prohibition against flat bans. 7 FCC Rcd 678, 68182 (1991) ("Political Programming  {Oq'Policies").  ?;4#x6X@`7iX@# Rather, according to Petitioners, the Commission had required  X'4 !broadcasters to consider each request for time on an individualized, ad hoc basis. Petitioners  X4 !cmaintain that this approach of requiring ad hoc responses to access requests properly accorded  !broadcasters sufficient flexibility without foreclosing the possibility that a candidate may  !successfully demonstrate the need for a certain nonstandard program length. In this way, the  !candidate has the opportunity to explain individualized campaign needs for a length of program  !<time and the broadcaster retains the ability to counter offer or refuse a request, if warranted by  ! the facts. Petitioners conclude that permitting broadcasters to choose not to sell particular lengths  !of time based on their own commercial sales and programming practices conflicts with the  !Commission's and the courts' longstanding interpretation of Section 312(a)(7), which prohibits  !a broadcaster from establishing blanket bans on sales of any particular length of spot or program time.  X4 xN5. NAB's Opposition challenges Petitioners' argument that the Commission, by its action,  !relegated federal candidate speech to that of a commercial advertiser. NAB contends that",-(-(ZZ"  X4 !Petitioners ignored the Declaratory Ruling to the extent that it requires a broadcast station to  X4 !provide access to program lengths either sold or programmed in the year preceding an election.  !Thus, according to NAB, federal candidates are still entitled access to program lengths greater  X4 !than commercial spot time. NAB argues that the Declaratory Ruling struck an appropriate  !balance between the need of candidates to convey their message and the practical need of  X4 !3broadcasters to minimize the disruption to their schedules. NAB also argues that the Declaratory  X~4 !Ruling is entirely consistent with Commission and court precedent, which has avoided forcing  !broadcasters "to carve up their schedules in order to accommodate a candidate who desires to air an oddlength spot or program."  X 4, Discussion ă  6. Section 312(a)(7) of the Communications Act provides:  xJXThe Commission may revoke any station license or construction permit...for willful or  xrepeated failure to allow reasonable access to or to permit purchase of reasonable amounts  xof time for the use of a broadcasting station by a legally qualified candidate for Federal  Xl4elective office on behalf of his candidacy.l| yO'ԍ #X\  P6G;P#47 U.S.C. Section 312(a)(7).#x6X@`7iX@#ѓ(#  !Since Congress enacted this provision in 1972, the Commission has attempted to interpret it in  !a manner consistent with Congress' clear intent to promote wider, less fettered dissemination of  !political speech. Indeed, the legislative history of the access provision emphasizes that the  !fundamental policy underlying its adoption was "to give candidates for public office greater  !"access to the media so that they may better explain their stand on the issues, and thereby more  X4fully and completely inform the voters."s$X| {O' !c ԍ #X\  P6G;P#117 Cong. Rec. S12872 (daily ed. Aug. 2, 1971); see also S. Rep. No. 96, 92d Cong., 1st Sess. 20 (1971).  {O' ! The Commission in Summa Corp. indicated its understanding that Section 312(a)(7) was not intended to require  !! stations to accept all requests for political time during election campaigns to the exclusion of all or most other types  yO0'of programming or advertising. 43 FCC 2d 602, 604 (1973).#x6X@`7iX@#s  X4 x=#Xj\  P6G;9XP#7. While it is clear that candidates have an undeniable right to purchase "reasonable"  !lamounts of time, it is also clear that this right is not without limitation. Thus, the Commission  ! has steadfastly charted a course which attempts to strike an appropriate balance between political  !speech and undue burdens on broadcasters in accommodating the needs of federal candidates.  !In doing so, the Commission has determined that it is not appropriate or practical to adopt formal  !"rules outlining in an objective, quantifiable manner how much time is reasonable because of the  !variety of circumstances and number of federal candidates any particular station might encounter  !during a specific election period. Instead, the Commission has relied on the reasonable, good"D,-(-(ZZ"  X4 !Rfaith judgment of licensees to provide reasonable amounts of time to federal candidates.| {Oy'ԍ #X\  P6G;P#Political Programming Policies, 7 FCC Rcd at 681.#x6X@`7iX@#Ѵ In  !determining whether a particular licensee reasonably afforded access to advertising time, the Commission confines itself to two questions:  !h(1) whether the broadcaster followed the proper standards in deciding whether to grant a  !candidate's request for access; and (2) whether the broadcaster's explanation of its decision is  X4reasonable in terms of these standards.Z| {O'ԍ #X\  P6G;P#Carter/Mondale, 453 U.S. at 37576. #x6X@`7iX@#ѧ  X_4 x 8. As articulated by the U.S. Supreme Court in its landmark Carter/Mondale decision,  !the Commission's guidelines a broadcaster must follow in evaluating access requests are wellestablished:  xNX[A]ccess requests from "legally qualified" candidates for federal elective office . . . must  xbe considered on an individualized basis, and broadcasters are required to tailor their  xresponses to accommodate, as much as reasonably possible, a candidate's stated purposes  xin seeking air time. In responding to access requests, however, broadcasters may also  xqgive weight to such factors as the amount of time previously sold to the candidate, the  xAdisruptive impact on regular programming, and the likelihood of requests for time by rival  xcandidates under the equal opportunities provision of Section 315(a). These  xconsiderations may not be invoked as pretexts for denying access; to justify a negative  xresponse, broadcasters must cite a realistic danger of substantial program disruption  xperhaps caused by insufficient notice to allow adjustments in the schedule or of an  X4excessive number of equal time requests.| {O'ԍ #X\  P6G;P#Carter/Mondale, 453 U.S. at 387.#x6X@`7iX@#ѣ (#  !The Commission has consistently followed these guidelines in evaluating complaints under  X4Section 312(a)(7).(~| {O ' !7 ԍ #X\  P6G;P#See, e.g., Ed Clark for President Committee, 87 FCC 2d 417 (B/C Bur. 1980) ("Ed Clark"); Ed Noble, 79 FCC  {O' !k 2d 903 (B/C Bur. 1980); Kennedy for President Committee, 80 FCC 2d 93 (1980). See also, Arthur R. Block, Esq.,  {O' ! 7 FCC Rcd 1784 (MMB 1992); Mitchell Rogovin, Esq., DA 92198 (released February 18, 1992); Michael Steven  {Og'Levinson, 7 FCC Rcd 1457 (MMB 1992).#x6X@`7iX@#і  x9. While determinations regarding access are entitled to deference if the licensee takes  !into account the appropriate factors and acts reasonably and in good faith, it is wellsettled  !Commission policy that "acrosstheboard" policies adopted by a broadcaster generally cannot be  Xg4 !sustained. gn | {O%'ԍ #X\  P6G;P#Carter/Mondale, 453 U.S. at 38788.  See also Ed Clark, 87 FCC 2d at 421; Ed Noble, 79 FCC 2d at 907.#x6X@`7iX@# This is precisely because "acrosstheboard" policies do not allow for appropriate"g ,-(-(ZZ"  X4 !Mconsideration of the individualized needs of candidates. | {Oy'ԍ #X\  P6G;P#Carter/Mondale, 453 U.S. at 38788.#x6X@`7iX@#Ѧ The Supreme Court in Carter/Mondale considered this issue and stated:  xXWhile the adoption of uniform policies might well prove more convenient for  xSbroadcasters, such an approach would allow personal campaign strategies and the  xuexigencies of the political process to be ignored. A broadcaster's "evenhanded" response  xof granting only time spots of a fixed duration to candidates may be "unreasonable" where  xa particular candidate desires less time for an advertisement or a longer format to discuss  XJ4substantive issues. JZ| {OU 'ԍ#X\  P6G;P# Id. at 390.#x6X@`7iX@#щ(#  xS10. On the other hand, in balancing the needs of candidates and broadcasters, the  !Commission has ruled that candidates do not have a right to a particular placement of their  X 4 !political announcements on a station's schedule; | {O'ԍ #X\  P6G;P#1978 Policy Statement, 68 FCC 2d at 1091.#x6X@`7iX@#Ѭ nor do candidates have any right to program  X 4 !8time "of any particular or minimum duration." ~| {O'ԍ #X\  P6G;P#Donald Riegle, 59 FCC 2d at 1315; Pete Flaherty, 48 FCC 2d at 848. #x6X@`7iX@# These two policies, taken together, require a  !candidate and a station to negotiate and compromise, in the absence of preestablished ceilings or minimums.  X{4 x[11.   The Commission's Declaratory Ruling was a departure from the above framework  !and, on further reflection, we believe the it does not afford appropriate consideration to the needs  XO4 !of federal candidates. In effect, the Declaratory Ruling permitted what amounts to an "across !ltheboard" policy, or flat ban, on the sale of program time in nonstandard increments. Thus,  X#4 !upon reconsideration, we now believe that broadcasters should not be allowed to refuse, as the  !result of such a ban, requests from candidates for nonstandard lengths of time. Rather, in  X4 !lconsidering such requests, broadcasters must take into account the Carter/Mondale factors outlined above.  xm12. We believe that requiring good faith negotiation between an individual federal  !Mcandidate and a broadcaster concerning access to nonstandard lengths of political advertising time  !better fulfills Congress' intent in enacting Section 312(a)(7). As a practical matter, there may  !be a variety of circumstances where a federal candidate decides that the best campaign strategy  XV4 !involves the use of nonstandard length advertising formats and, applying the Carter/Mondale  XA4 !<factors, the broadcaster can reasonably make the necessary accommodations. With respect to  !requests for fiveminute increments in particular, we note that, from a candidate's perspective,  !a fiveminute program may be a desirable option because of the expense of purchasing and  !8producing a thirtyminute or longer program, and the brevity of a thirty or sixtysecond spot  !announcement. As petitioners point out, such nonstandard lengths of time may facilitate more" ,-(-(ZZ"  !"substantive political discourse during political campaigns. This, in turn, furthers the purposes of  !Section 312(a)(7) by giving candidates the opportunity to "better explain their stand on the issues,  X4and thereby more fully and completely inform the voters."| yPK'ԍ #B7  PT6Q MP#117 Cong. Rec. S12872 (daily ed. Aug. 2, 1971).# Xx6X@JQiX@#Ѧ  x13. The disruption to regular programming that would be caused by granting a request  !"for a nonstandard length of time, while clearly relevant, must be considered in light of whether  !the broadcaster could make adjustments in its schedule that would accommodate the candidate's  !needs. In this regard, in several of the reasonable access cases decided by the Commission prior  XH4 !Mto the Declaratory Ruling, broadcasters were able to provide fiveminute programs to candidates,  X34 !which suggests that broadcasters may not be extraordinarily burdened by such requests.&3Y| {O= ' !  ԍ #X\  P6G;P#See Carter/Mondale, 453 U.S. at 394; Ed Noble, 79 FCC 2d at 9034; Donald Riegle, 49 FCC 2d at 1314;  {O ' ! Senator Frank Church, 37 R.R.2d 337 (1976); Campaign '76 Media Communications, Inc., 58 FCC 2d 1142 (1976)  {O ' ! ("Campaign '76"), reversed on other grounds, Anthony MartinTrigona, 64 FCC 2d 1087 (1977); Don C. Smith, 49  yO'FCC 2d 678 (B/C Bur. 1974).#x6X@`7iX@#я To  !callow a broadcaster categorically to decide in advance that it will not sell nonstandard time, like  !Vfiveminute increments, absolves the broadcaster of even considering the possibility that it could make such an accommodation in a particular circumstance.  x14. Our finding herein does not mean that broadcasters will be required to provide five  !minutes or other nonstandard lengths of program time to candidates in every particular instance.  !uIndeed, in several previous decisions involving candidate requests for nonstandard length  !pprogram time, the Commission determined that the broadcaster acted reasonably in denying the  Xd4 !request given the circumstances presented in those cases.\dG| {O\' !Z ԍ #X\  P6G;P#See, e.g., Ed Clark, 87 FCC 2d at 428; Ed Noble, 79 FCC 2d at 91011; Donald Riegle, 59 FCC 2d at 1314;  {O&' ! Don C. Smith, 49 FCC 2d at 680; Pete Flaherty, 48 FCC 2d at 848; Humphrey for President Campaign, 34 FCC  yO'2d 471, 472 (1972). #x6X@`7iX@# Thus, the Commission will, as  !cpreviously, defer to a licensee's discretion, and overturn a decision only if the licensee has acted  X64unreasonably pursuant to the established guidelines.T6k | {OR' ! ԍ#X\  P6G;P# As to our discussion of the case law in the Declaratory Ruling regarding the provision of nonstandard  !o program time, we note that in the cases cited, the staff undertook the very balancing of factors that NAB would have  {O' ! us ignore. In Donald Riegle, the Commission balanced the needs of the candidate with those of the broadcaster in  ! determining that the broadcaster had acted reasonably in refusing to sell a candidate fiveminute programs in prime  ! time and early fringe hours. However, the Commission explained by pointing out that the broadcaster made  ! available to the candidate fiveminute programs on Saturday and Sunday, and thirtyminute programs during prime  O"4 !t time and early fringe.#x6X@`7iX@# #X\  P6G;P#59 FCC 2d at 131516. A similar balancing analysis and result was reached in Ed Noble  yO"'pursuant to a careful balancing of the relevant factors. 79 FCC 2d at 909.#x6X@`7iX@# pppp  x15. For all of the above reasons, we grant Petitioners' request for reconsideration, and find  !that stations must evaluate each request for time by a federal candidate on an individualized basis,  X4using the factors set forth in Carter/Mondale. These factors include: ",-(-(ZZT"Ԍ !I(1) how much time was previously sold to the candidate; (2) the potentially disruptive impact on  !/the station's regular programming; (3) the likelihood of equal opportunities requests by opposing  X4 !tcandidates; and (4) the timing of the request.mg | yPK' ! ԍ #B7  PT6Q MP#In its initial request for a declaratory ruling, NAB asked that we consider a narrower alternative approach  ! if we decided that Section 312(a)(7) would not permit allowing broadcasters to reject nonstandard length of time  !M requests if they had neither sold nor programmed a requested increment. The alternative would allow broadcasters  zP' ! to reject nonstandard length requests during any network or syndicated programming. Since the Declaratory  zPn' !M Ruling reached the broader approach, the alternative was rendered moot. We believe that NAB's alternative request  ! raises concerns similar to those addressed herein. As a practical matter, for example, if a station could deny a  ! request for non-standard lengths of time during all network and syndicated programming, federal candidates would  ! be virtually shut out of televised prime time programming hours on the major network affiliates and from a  ! significant portion of drive time radio, where syndicated programming is especially dominant. Although a station  ! may consider the potentially disruptive impact such requests may have on its regular programming, it must weigh  zP ' ! this factor along with the other Carter/Mondale factors in making an individualized decision on whether to grant  xP 'the request.# Xx6X@JQiX@#m And we note that, as the Court in Carter/Mondale  !@emphasized, these factors may not be used as a pretext 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 number  Xx4of equal time requests."x | yP 'ԍ #B7  PT6Q MP#453 U.S. at 387.# Xx6X@JQiX@#ч 16. In view of the foregoing, Media Access Project and People for the American Way's petition for reconsideration, to the extent indicated, is hereby GRANTED.   pppppppppp pFEDERAL COMMUNICATIONS COMMISSION  X 4 Magalie Roman Salas   Secretary"{ ,-(-(ZZ"  X' ''R  ''R  Dissenting Statement of Commissioner Harold W. FurchtgottRoth ă  X' !  In re Petition for Reconsideration by People for the American Way and Media Access Project of Declaratory Ruling Regarding Section 312(a)(7) of the Communications Act.  X4  xFor the reasons that follow, I would have adhered to the interpretation of section 312(a)(7)  Xv4 ! set forth in the Declaratory Ruling, 9 FCC Rcd 5778 (1994). That decision does not suffer from  Xa4 !legal error and, in my view, policy considerations cut in favor of establishing a clearer rule regarding the duties of broadcasters to sell time.  V 4Legal Considerations  X 4  x Section 312(a)(7) is not a particularly specific statute. It obliges stations to allow legally  !qualified federal candidates to "purchase reasonable amounts of time" for the use of broadcast facilities. The definition of "reasonableness" is left to this agency.  X4 xThe Declaratory Ruling found that "broadcasters should be required to make available to  !yfederal candidates only the lengths of time offered to commercial advertisers during the year  !Ipreceding a particular election period." 9 FCC Rcd at para 10. This decision was based on the  XO4Commission's 1978 Policy Statement on enforcement of section 312(a)(7). See 68 FCC 2d 1079.  xA careful reading of that Policy Statement indicates that the 1994 Commission correctly  !understood it to establish regulatory parity as between candidates and advertisers with respect to time. That Statement specifically concludes:  xXWe believe it to be generally unreasonable for a licensee to follow a policy of flatly  X4 x"banning access by a federal candidate to any of the classes and lengths of program or spot  X4time in the same periods which the station offers to commercial advertisers. . . .(#  Xo4 xX[Thus,] [l]icensees may not adopt a policy that flatly bans federal candidates from access to the types, lengths, and classes of time which they sell to commercial advertisers.(#  X,4 !}68 FCC 2d 1079 at paras. 41, 55. In other words, broadcasters must treat candidates as well as they treat regular advertisers.  x'As the 1994 Commission noted, this parity principle runs throughout our section 312, and  !/related section 315, interpretations. With respect to the question whether stations must provide  !Icandidates with access on weekends, the Commission has concluded that "stations are required  X"4 !to provide only the same policies with respect to weekend access that they apply to commercial  X#4 !yadvertisers. . . . [I]t is reasonable for federal candidates to expect to be treated in the same  Xz$4 !dmanner as commercial advertisers." 9 FCC Rcd at para. 8 (citing Codification of the  !Commission's Political Programming Policies, 7 FCC Rcd 678, 683 (1991)) (emphasis added).  !The Commission has also followed the parity principle in the context of "make goods," explaining  !cthat broadcasters must only offer make goods to candidates if such a privilege has been offered"7',-(-(ZZ%"  X4to commercial advertisers in the last year. See 9 FCC Rcd at para. 9 (citing 7 FCC Rcd at 697).  xWFor a broadcaster to adhere to this principle of parity with respect to the issue of time  !hunits (even in a general, or "across the board," fashion) is simply not inconsistent with our  !}precedent. To the contrary, it comports fully with the abovediscussed rulings and codifications.  X4 !In my view, today's decision represents a break from the wellestablished "parity principle" of "reasonableness."  XJ4 xConversely and contrary to the linchpin of petitioners' argument the Declaratory  X54 !Ruling does not, by establishing that stations need only sell candidates the time amounts they sell  X 4 !commercial advertisers, violate any Commission precedent. See supra at para. 11. Although the  !"Order asserts "it is wellsettled Commission policy that 'acrosstheboard' policies adopted by a  X 4broadcaster generally cannot be sustained," supra at para. 9, this is not at all clear.  xThe purported ban on "flat bans" that underlies petitioners' theory, as well as today's  X 4 !Order, is traced back to the 1978 Policy Statement. See supra at para. 4 & n.2 (summarizing  X4 !petitioners' argument and citing, in support thereof, the 1978 Policy Statement). That decision  X4 !did not, however, generally prohibit acrossthe board policies. Rather, it prohibited acrossthe !}board policies that deny candidates the chance to buy time under the same terms as commercial advertisers. To repeat:  XD4  X-4 x XLicensees may not adopt a policy that flatly bans federal candidates from access to the types, lengths, and classes of time which they sell to commercial advertisers.(#  X4 !68 FCC 2d 1079 at para. 55. This is simply not a rule against "flat bans" in general, or even  !}against "flat bans" relating to time issues , as petitioners and the Order characterize it; it is a rule  !against "flat bans" that deny candidates treatment equal to that given advertisers on matters of  X4time.z{ X 4 !ԍ#XP\  P6Q9XP#Given that the Commission has generally declined to issue guidelines as to what constitutes  !y"reasonable" time, and that it now rejects even the parity principle, one wonders whether this  X4 !application of the statute could survive a nondelegation doctrine challenge. See generally  X4 !American Trucking v. EPA, 175 F.3d 1027 (D.C. Cir. 1999) (requiring agency to adopt  !"intelligible principles" in implementing broad statutory provision in order to save provision from constituting an unconstitutional delegation of authority).  Xy4 xMoreover, CBS v. FCC, 453 U.S. 367 (1981), did not hold, as this Order suggests, that  Xd4 !acrosstheboard policies are unsustainable or somehow impermissible. The dicta from that case  !recounts the criteria for evaluating access claims that the Commission established in the 1978  X84 !"Report and in the Order and memorandum opinions and orders underlying that litigation. In the  !&cited passages, the Supreme Court only recounted those criteria for purposes of deciding the other  !legal claims before the Court. Specifically, the Court held that the Commission's casebycase  !approach was "consistent with," 365 U.S. at 389, the access requirement of section 312(a)(7), and" ,-(-(ZZ^"  X4 !it explained why that was so, speaking of the various interests at stake.  In no way, however, did  X4 !the Court require such an approach with respect to all issues. Other approaches including  !placing some outer limits on the meaning of reasonableness, as the Commission has attempted with its parity theory could be equally consistent with the statute.  xAs discussed above, "acrosstheboard" policies, even with respect to time, were never  !prohibited by the 1978 Policy Statement. In any event, the Commission cannot really mean what  !it says about the requirement of individualized consideration and negotiation in every case.  !Surely, broadcasters may have "flat" policies that track the requirements of section 312(a)(7).  !JFor instance, broadcasters may refuse "across the board" to sell time prior to the commencement of a campaign, to an unqualified candidate, or to a candidate for state office.  xTo be sure, the Commission has also stated that spot requests should be considered on an  !individualized basis. But when it can be ascertained that the request is somehow legally deficient  !ԩ either because the campaign has not commenced, the person is not qualified, or the request  !seeks treatment that exceeds that given to advertisers with respect to weekend access, make  X{4 !goods, or time increments I do not believe that the broadcaster has any duty to consider and  !negotiate such requests. The best way to reconcile the parity principle with the Commission's  !_emphasis on individualized consideration is to conclude that stations must negotiate individual requests when those requests fall within the outer bounds of section 312(a)(7).  V4Policy Considerations  X4 x\Given that the Commission possesses some discretion to define the meaning of  !"reasonableness," I turn to the policy considerations involved in the sale of nonstandard  !increments of time to political candidates. I believe that the interests of the broadcasters in  !<having at least some regulatory clarity, as well as their interest in reducing the transaction costs of complying section 312(a)(7), are being overlooked.  xI grant that determinations of reasonableness turn, at bottom, on the facts and  !Vcircumstances of individual cases. That does not mean, however, that we cannot establish any  X"4 !general principles to help broadcasters better understand, ex ante, their obligations in this area  X 4such as simple equal treatment standards.  xMoreover, by requiring broadcasters to engage in fullscale negotiation and compromise  X 4 !Zevery single time that a federal candidate makes a request to purchase time (today's Order admits  !Rof no exceptions), this decision imposes great transaction costs on the stations. The cost for stations of mandated, individualized negotiation in every case should not be underestimated.  xFinally, I am troubled by the fact that the Commission's reading of section 312(a)(7)  !/elevates federal candidates to a status that is not just on a par with, but superior to, commercial  !cadvertisers. I think it equally reasonable to read "reasonable time" to mean as much time as the  !station gives commercial advertisers in other words, to require parity of treatment between")' ,-(-(ZZ%"  !candidates and advertisers. As explained above, this is precisely how Commission precedent has  !<interpreted the term. In my opinion, reasonable treatment is equal treatment; I do not think that  !the policy concerns that animate 312(a)(7) require special or more favorable treatment for candidates than for everybody else.    ''R  ''R