That’s a question tackled today by David Oxenford, a partner at M Street law firm Wilkinson Barker Knauer.
In this column, Oxenford notes, “Under FCC precedent, all legally qualified candidates (including those running for state and local offices) must be provided lowest unit rates, equal opportunities to purchase advertising time matching purchases by their opponents and, when they do buy time, the no censorship rules apply to their ads. For Federal candidates, they also have a right of reasonable access.”
But, is a write-in candidate a “legally qualified candidate?”
“In these last few weeks before the many municipal elections that will be occurring in November in states across the country, I have recently received several questions about a broadcaster’s legal obligations toward write-in candidates who want to run advertising on a radio or television station,” Oxenford notes.
Here’s what he says:
In most cases, the question as to whether a candidate is legally qualified is relatively easy.
The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary. In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting the candidacy. Once the local election authority receives the papers (and does whatever evaluation may be required to determine if the filer is qualified for a place on the ballot), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).
But, for write-in candidates, there are different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot. Instead, in these situations, a person claiming to be a candidate must make a “substantial showing” that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election would do.
What does that mean?
Section 73.1940(f) of the Commission’s rules sets out what a substantial showing needs to include. The rule states:
The term substantial showing of a bona fide candidacy as used in paragraphs (b) of this section means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager). Not all of the listed activities are necessarily required in each case to demonstrate a substantial showing, and there may be activities not listed herein which would contribute to such a showing.
Stations are entitled to ask a purported candidate to make that substantial showing before they accord the candidate all the rights that he or she might be entitled to under the rules. Stations will looks at factors including whether the candidate has had campaign rallies.
Is the candidate making speeches and campaign appearances throughout the area where the election is being held?
Is there campaign literature that is being distributed on his or her behalf?
Does the candidate have any campaign offices or campaign workers?
Is the campaign more than a website?
A station is entitled to ask for this evidence, and then needs to review the evidence, probably with the aid of counsel and possibly with the informal advice of the FCC (whose Political Broadcasting Office is usually quite helpful in working through issues like this), to determine whether the write-in candidate meets the substantial showing test.
The determination is very fact based. A few years ago, an individual from a fringe group launched a write-in campaign for Congress in a Missouri district where he resided. As he made speeches in the district, had an office there, and put up signs and passed out literature there (and his campaign was covered by the local print publications), many stations deemed him to be a legally qualified candidate and ran his advertising. A few years later, that same individual purportedly launched a campaign for an open US Senate seat in the same state. But that candidate did nothing to show that he was a bona fide state-wide candidate – showing no evidence of a statewide election campaign. Given the different factual circumstance, the Commission informally determined in that case that he was not a bona fide candidate for the Senate as he had not made a substantial showing of his candidacy for the statewide office.
If the candidate does pass the substantial showing test, then all of the political broadcasting rules apply – just as if the candidate had qualified for a place on the ballot. But if the purported candidate has done nothing more than say “I’m a candidate” and then decided to buy advertising time on a broadcast station, it is likely that the station need not sell him or her advertising time. Again, it depends on the facts of the situation, so analyze those facts carefully and discuss these issues with counsel familiar with the precedent in this area.
David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters before the Federal Communications Commission, the courts and other government agencies for over 30 years.