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 Federal  Communications  Commission  FCC  03-  279 
 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)  regarding  the  Commissions  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 

 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). 
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 the  stations  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  Commissions  decision  in  Reconsideration  is  at  odds  with  Commission  precedent  and  policy,  as  well  as  a  misinterpretation  of  the  Supreme  Courts  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  NABs  last  opportunity  to  present  such  matters. 
 5.  Nonetheless,  we  address  NABs  principal  arguments.  First,  the  Commissions  decision  in  Reconsideration  was  not  contrary  to  Commission  precedent  and  policy  nor  did  it  misinterpret  the 
 Courts  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  broadcasters  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 
 4  Declaratory  Ruling  at  7. 
 5  Carter/  Mondale  Presidential  Committee,  Inc.,  74  FCC  2d  631,  recon.  denied,  74  FCC  2d  657  (1979), 
 affd  sub.  nom.  CBS  Inc.  v.  FCC,  629  F.  2d  1  (D.  C.  Cir.  1980),  affd,  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. 
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 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  NABs  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 
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