# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In re Petition for Reconsideration by )

)

NATIONAL ASSOCIATION OF )

BROADCASTERS )

)

of )

)

MEMORANDUM OPINION AND ORDER )

)

Regarding Section 312(a)(7) )

of the Communications Act )

# MEMORANDUM OPINION AND ORDER

**Adopted: November 5, 2003 Released: November 12, 2003**

By the Commission:

1.  Pending before the Commission is a Petition for Reconsideration
    filed by the National Association of Broadcasters ("NAB")Number
    range level0Number range level1Number range level2Number range
    level3Number range level4Number range level5Number range
    level6Number range level7 regarding the Commission's decision in
    *Petition for Reconsideration by People for the* American *Way and
    Media Access Project*, FCC 99-231, released September 7, 1999
    ("*Reconsideration*"). In *Reconsideration*, the Commission stated
    that, as part of its obligation to provide reasonable access to a
    legally qualified federal candidate on behalf of his or her
    candidacy pursuant to Section 312(a)(7) of the Communications Act of
    1934, as amended, a broadcast station could not refuse a request for
    advertising time made by federal candidates solely on the ground
    that the station does not sell or program such lengths of time.[^1]
    This ruling reversed an earlier decision by the Commission.[^2]

2.  In *Reconsideration*, the Commission stated that requiring good
    faith negotiations between a federal candidate and a broadcaster
    regarding access to non-standard lengths of political advertising
    time better fulfills Congress' intent in enacting Section 312(a)(7),
    which 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 fully and completely inform the voters."[^3] Rather
    than allowing a flat ban on the sale of program time in non-standard
    increments, the Commission concluded that stations should evaluate
    each request for time made by a candidate on an individualized
    basis, taking into consideration the following factors: "(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 candidates;
    and (4) the timing of the request."[^4]

3.  In its Petition, NAB argues that the Commission's decision in
    *Reconsideration* is at odds with Commission precedent and policy,
    as well as a misinterpretation of the Supreme Court's decision in
    *Carter/Mondale*;[^5] that forcing broadcasters to grant odd-length
    spots to candidates would greatly disrupt broadcast programming
    during prime time hours; and that, during the five years between the
    1994 *Declaratory Ruling* and the 1999 *Reconsideration,* there were
    no candidate requests for odd-length spots to support a change in
    Commission precedent.

4.  Reconsideration is appropriate only when the petitioner either shows
    a material error or omission in the original order or raises
    additional facts not known or not existing until after the
    petitioner\'s last opportunity to present such matters.[^6] NAB has
    failed to demonstrate that our decision in *Reconsideration*
    contained a material error or omission. Nor does NAB raise any
    additional facts not known to it or not existing until after NAB's
    last opportunity to present such matters.

5.  Nonetheless, we address NAB's principal arguments. First, the
    Commission's decision in *Reconsideration* was not contrary to
    Commission precedent and policy nor did it misinterpret the Court's
    decision in *Carter/Mondale.* As the Commission stated in
    *Reconsideration*, "\[w\]hile 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
    well-settled Commission policy that 'across the board' policies
    adopted by a broadcaster generally cannot be sustained" because such
    "policies do not allow for appropriate consideration of the
    individualized needs of candidates."[^7] The Commission concluded
    that its decision in the 1994 *Declaratory Ruling* departed from the
    above policy by allowing what, in effect, was a "an 'across the
    board' policy, or flat ban, on the sale of program time in
    non-standard lengths."[^8] The Court in *Carter/Mondale* indicated
    that broadcasters cannot ban certain lengths of time from being
    considered in candidates' requests for airtime:

While the adoption of uniform policies might well prove more convenient
for broadcasters, such

an approach would allow personal campaign strategies and the exigencies
of the political

process to be ignored. A broadcaster's "evenhanded" response of granting
only time spots of

fixed duration to candidates may be "unreasonable" where a particular
candidate desires less

time for an advertisement or a longer format to discuss substantive
issues.[^9]

6.  Second, as to the alleged disruption to broadcast programming, the
    Commission\'s case-by-case approach adopted in its *Reconsideration*
    decision permits broadcasters to consider disruption of their
    regular programming as one of four factors in evaluating each
    request from a Federal candidate for non-standard lengths of
    political advertising time. Therefore, broadcasters need not impose
    a flat ban on the sale of program time in non-standard increments in
    order to avoid disruption of broadcast programming.

7.  Third, as to the demand for such ads, even if it is true, as NAB
    asserts, that there were no candidate requests for odd-length spots
    during the five years that the *Declaratory Ruling* was in effect,
    that may well have been a function of the candidates' knowledge that
    stations were not then required to grant such requests. Moreover, if
    the NAB is correct that Federal candidates are not interested in
    obtaining such odd-length advertising spots, then the Commission\'s
    prohibition of a flat ban on such ads should, in fact, cause
    broadcasters little or no disruption of their regular programming.

8.  Based on the foregoing, we deny NAB's Petition for Reconsideration.

9.  Accordingly, **IT IS ORDERED**, that the Petition for
    Reconsideration filed by NAB **IS DENIED**.

**FEDERAL COMMUNICATIONS COMMISSION**

Marlene H. Dortch

Secretary

[^1]: 47 C.F.R. § 312(a)(7) (the Commission may revoke any station
    license for "willful or repeated failure to allow reasonable access
    to a broadcasting station by a legally qualified Federal candidate
    on behalf of his candidacy").

[^2]: *Memorandum Opinion and Order*, 9 FCC Rcd 5778 (1994)
    (*Declaratory Ruling*).

[^3]: 117 Cong. Rec. 512872 (daily ed. Aug. 2, 1971); *see also* S. Rep.
    No. 96, 92d Cong., 1^st^ Sess. 20 (1971).

[^4]: *Declaratory Ruling* at 7.

[^5]: *Carter/Mondale Presidential Committee, Inc.*, 74 FCC 2d 631,
    *recon. denied*, 74 FCC 2d 657 (1979), *aff'd* *sub. nom.* *CBS Inc.
    v. FCC*, 629 F.2d 1 (D.C. Cir. 1980), *aff'd*, 453 U.S. 367 (1981).

[^6]: *See* 47 C.F.R. § 1.106(c); *WWIZ, Inc.*, 37 F.C.C. 685, 686
    (1964), *aff\'d sub nom., Lorain Journal Co. v. FCC*, 351 F.2d 824
    (D.C. Cir. 1965), *cert. denied*, 383 U.S. 967 (1966).

[^7]: *Declaratory Ruling* at 4-5, citing *Carter/Mondale*, 453 U.S. at
    387-88; *Ed Clark for President Committee*, 87 FCC 2d 417 (B/C Bur.
    1980); *Ed Noble*, 79 FCC 2d 903 (B/C Bur. 1980).

[^8]: *Declaratory Ruling* at 5.

[^9]: *Carter/Mondale*, 453 U.S. at 389.