FCC: Stations off hook for anti-abortion Super Bowl ads


The FCC has ruled in the battle between anti-abortion activist and purported Democratic candidate for president Randall Terry, who wants to force ads onto the airwaves during the Super Bowl, and broadcast interests, who do not believe he is a true candidate and say he has no claim to the airwaves. Basing its ruling on the battle for time on NBC WMAQ in Chicago, the FCC said WMAQ was acting reasonably when it determined that Terry had not made “a substantial showing that he is a legally qualified candidate” and that even if he was, it would not be unreasonable for WMAQ to deny him time specifically during the Super Bowl.

The FCC decision, signed by Media Bureau Chief William T. Lake, cited the back and forth between the opponents on the issue, and concluded that Terry’s evidence of an active candidacy was very much on the light side.

“For example,” wrote the Commission, “he lists under ‘Literature Distributed’ two pieces of campaign literature—an article and a fundraising envelope—but fails to indicate where they were distributed. In addition, the few locations in which he mentions campaigning fail to demonstrate that he has engaged in campaign activities throughout a substantial part of the state, as required by Commission precedent.”

The Commission underscored that it is up to the candidate to assume the burden of a substantial showing. “Therefore, the Commission does not require or expect broadcasters to act as private investigators to ascertain the facts relating to claims of campaign activities lacking the specificity needed to establish a showing.”

The “candidate” seeking time cannot rely on the fact that he successfully place ads on other stations as a demonstration of his bona fides. “Furthermore, the fact that other stations may have chosen to air Terry’s ads because they may have considered Terry a legally qualified candidate does not alone establish that a contrary determination by other stations was unreasonable.”

WMAQ stated that the rules for a legal established candidate only guarantee reasonable access, not the right to dictate the amount and scheduling of time purchased, and the FCC agreed, stating that no candidate has the right to force ads on the air at a specific time. In particular, the Super Bowl, a high-priced once-a-year event may simply be sold out, given the limited airtime inventory available to stations. Compounding the problem, if Terry was allowed to run his spot during this program, the station would then be compelled to offer the same amount of time to other bona fide candidates.

In denying Terry’s complaint, the FCC said, “Given these factors, we do not find WMAQ’s refusal to sell time to Terry specifically during the Super Bowl broadcast to be unreasonable.”

RBR-TVBR observation
: Randall Terry has just done broadcasters everywhere a big favor. In no uncertain terms, he has forced the political and broadcast worlds to take a good close-up look at the rules and has confirmed for everybody that broadcasters are neither arbiters of candidacy viability nor do they have to put up with a candidate trying to dictate their broadcast schedule. Thank you very much, FCC.