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ELECTIONS SYSTEM OF THE VIRGIN ISLANDS POLITICAL BROADCAST REGULATION Excerpt from Pepper & Corazzini Washington, DC (202) 296-0600 POLITICAL BROADCAST REGULATION Introduction The Communications Act and the Commission’s rules impose certain obligations on broadcasters and bestow certain rights on candidates. The first question for a broadcaster, therefore, is to determine what the obligations are and who is entitled to benefit from them. On the preceding page is a nutshell explanation of the most fundamental principles with the key terms expressed in BOLD and the sections of this guide describing the principles in parentheses. The political rules apply only to broadcasting. This includes radio, television, cable, and most direct broadcast satellite services. The political rules do not apply to ancillary services such as teletext, subscription television, and subsidiary sideband authorizations, which are generally intended as point-to-point communications of interest to a narrow band of subscribers. In addition, the FCC’s political rules do not apply to newsletters, program guides and other non-broadcast activities of a broadcaster. “Legally Qualified” Candidates There are separate sets of rules for federal and non-federal candidates. One set of rules governs candidates for President and Vice-President and the Congress, while another vastly different set of rules applies to candidates for state and local offices. The first step is to determine whether the candidate seeking access to your station is “legally qualified.” Then you must make the simpler decision of whether you are dealing with a state or federal candidate. Only legally qualified candidates are entitled to access. It may sometime be quite obvious that a candidate is legally quailed. In other instances, the question may be close, particularly in the early stages of a campaign or when you must decide whether a “fringe” candidate is bona fide. Unless the candidate can demonstrate that he or she meets the requirements under the Communications Act and applicable local law, the licensee is under no obligation to provide access. The Three Part Test. The Communications Act provides a three-part test. It is up to the candidate, not the broadcaster, to demonstrate that he or she satisfies each criterion. Public Announcement – This requirement can be fulfilled through a public statement or by filing the necessary papers to qualify for a place on the ballot. However, if the candidate is simply expected to run, this is not in itself sufficient. Thus, an incumbent is not automatically a legally qualified candidate for reelection even though there may have been widespread speculation or even broad hints from the incumbent that he or she will run again. Incumbents are often very careful to avoid making any public announcement until the last moment in order to deny their opponents equal opportunities. As will be discussed below, bona fide newscasts and other types of news and public affairs programming are exempt from the equal opportunities requirement so that you need not be concerned about restricting most coverage of an incumbent’s activities. Local Legal Qualifications – The candidate must meet the age, residency, and other requirements of applicable law to hold the office for which he or she is a candidate. Bona Fide Candidate – The candidate must make a substantial showing that he or she is a bona fide candidate. This requirement can be satisfied in either of two ways. Any candidate who has qualified for a place on the ballot is considered bona fide. A write-In candidate may be considered bona fide by being otherwise qualified to hold the office sought and by making a substantial showing of genuine candidacy including engaging in activities commonly associated with political campaigning, such as making speeches, distributing literature, organizing a campaign and committee and fund raising. Exceptions. There are two overall exceptions to the above rules: With the exception of candidates for President and Vice President (or their delegates), candidates for nomination by convention or caucus will not be considered legally qualified, until 90 days before the convention or caucus is to begin. Even then, they must meet the three-part test above. Candidates for President and Vice President (or their delegates) must either qualify or make a substantial showing of bona fide candidacy separately in each state in which broadcast rights are sought. However, when a Presential or Vice Presidential candidate has qualified in at least 10 states (including D.C.) then he or she will be deemed qualified in all states. Note that this provision applies separately to candidacy for nomination and to candidacy for election. That is, a candidate for nomination to either office must qualify for the primary or Presidential preference ballot, and the same candidate for election to that office must qualify separately for the general election ballot itself. The candidate must make the substantial showing of a bona fide candidacy. This is one of the few areas of the political broadcasting rules in which the burden is on the candidate. Since such questions are a matter of local law, the prudent course in the event of uncertainty would be to obtain an opinion from the Attorney General or other state official who has authority to decide a candidate’s legal qualifications. Unless subsequently overturned by a court, the state official’s ruling will be followed by the FCC and can be relied upon by a station. “Fringe” candidates present a potentially troublesome area. So long as an individual has met the three-part test outlined above, that person must be considered a legally qualified candidate even if he or she has no chance of winning and is doing little or no campaigning. Reasonable Access One a candidate demonstrates his or her legal qualification, he or she must be accorded broadcast rights equal to all other legally qualified opponents, and, if a candidate for federal office, must be given reasonable access to a broadcast facility. This consideration does not apply to exempt news and public affairs programming. Federal Candidates The Communications Act states clearly that all federal candidates are to have “reasonable access” to broadcast facilities. The Communications Act authorizes the FCC to revoke a station license for willful and repeated failure to allow reasonable access 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. While the use of the word “reasonable” twice in the statutory language might at first suggest a balance between candidate and licenses needs, the Supreme Court has interpreted the provision as requiring that a licensee accommodate all federal candidate requests unless there exists a realistic danger of substantial program disruption. In less extreme cases, it is more likely that the Commission and the courts will come down on the side of the candidate rather than the licensee, reasoning that the candidate’s needs to address the public are paramount. In its 1991 Report and Order the Commission set out the following guidelines for determining whether a licensee’s judgment in affording access was reasonable for legally qualified candidates for federal office: Reasonable access must be provided to legally qualified federal candidates at least during the 45 day period preceding a primary or runoff election and 60 days before a general election. Outside of these time periods, the Commission has said it will determine the issue of reasonable access on a case-by-case basis. It is likely to be guided by a 1980 Supreme Court decision which held that stations must provide reasonable access to federal candidates if the request for time outside the 45 or 60 day period will not cause serious disruption. Stations may bar candidates from spot positions during newscasts, but must make access available to news adjacencies. This ban may extend to all news broadcasts, to only certain programs (i.e., the 6 p.m. but not the 11 p.m. news) or to only specified portions of a newscast (i.e., to the “hard news” segments but not to the sports or weather). Commercial stations must sell spot announcements to legally qualified federal candidates during prime or drive time. If a commercial station chooses to donate time to legally qualified federal candidates rather than sell time, it must donate it on the same basis it sells time to non-political advertisers; that is, the same lengths, classes and time periods must be available. Once a station donates time to one legally qualified candidate, it must donate equivalent amounts of time to all candidates. But there is no requirement that licensees make available time to federal candidates that is not made available to other advertisers. A broadcaster must afford federal candidates the same types, lengths and classes of program time that are available to other advertisers. Requests for other lengths of time may be rejected if running the requested political program time would severely disrupt the station’s schedule. Thus, a television station could reject a request for a 10 minute political broadcast on the grounds that it could not fill the remaining 20 minutes of the half hour and that such time is not made available to other advertisers. Radio stations, however, could probably not make the same claim since most radio station programs normally are not limited to specific time lengths in the same manner as television programs. The Commission encourages candidates and broadcasters to negotiate the length and placement of non-standard time requests. A station may take into consideration its broader programming and business commitments including the number of candidates in a particular race, the disruption to programming that would be caused by political programming and the amount of time sold to a particular candidate in the race. Non-Federal Candidates Licensees are not required to provide access to non-federal candidates. A licensee may be risking substantial ill will in the community, however, if it were to adopt a policy of excluding all non-federal candidates. Although there is no requirement to provide time to non-federal candidates, many oivio leaders consider it fair and reasonable to do so. Remember, the public will look to broadcasters more than any other medium for a thorough and fair reporting of the candidates and the issues in the election. Assuming that a licensee will want to provide some access for non-federal candidates, it may allocate time to those non-federal political recess which it determines to be of greatest importance to its service area. Broadcast time for less important races can be limited or even refused. Once a licensee decides to present the candidates for a given office, it generally also may: Refuse to sell any time if it instead plans to give away free time (i.e., by inviting all candidates for a given office to a debate, or by dividing an hour of time equally among all candidates for the purpose of speech making); Limit time sales to a given pre-election period; Limit program or spot availability certain amounts or day parts; Limit candidates to a specific form; (such as one-minute spots or five minutes program only). Keep in mind that once the decision is made to provide air time to candidates for an office, the rules discussed in the remaining sections of this manual will apply with full force. Therefore, a decision to make time available for a given non-federal contest carries with it the responsibility for accepting the equal opportunity and lowest unit charge obligations that will apply. Election Weekend Sales During the 1990 election there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. The 1991 Report and Order clarified this requirement to state that if a station had taken an order from any commercial advertiser on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election. The Commission has since further clarified that the services to be made available to the political advertiser need be no more extensive than the range of services that had been provided to the commercial advertiser. Thus, if access had been given to the commercial advertiser only for a limited purpose, such as changing copy, then only the same service need be afforded to candidates. If you can prove that you have not sold time on weekends during the past year, you can justify a refusal to sell time to political candidates on the weekend before the election, but if you have done this just once for a favored advertiser, you should be prepared to process political advertising requests on the weekend before an election.