FCC Decides That Randall Terry Not Entitled to Run Graphic Anti-Abortion TV Ads in the Super Bowl For His "Presidential Campaign" - But Questions Remain

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In an 11th hour decision released at about 5 PM on the Friday before the Super Bowl,the FCC decided that TV station WMAQ-TV in Chicago was justified in denying Randall Terry's request to buy advertising time in the Super Bowl.  As we've written before, Mr. Terry is claiming that he is a candidate for the Democratic nomination for President, and as such has a right of reasonable access to broadcast stations, meaning that they must sell him advertising time.  If he had such rights, the stations could not censor the content of the ads that the candidate decided to run (see our article here about the Communications Act's no censorship rule).  As Mr. Terry has promised to run some very graphic antiabortion ads featuring images of aborted fetuses, many stations were reluctant to run the ads, especially in the Super Bowl when families will be watching the big game.  The FCC decided that WMAQ-TV acted reasonably in denying Mr. Terry time in the Super Bowl for two reasons: (1) he had failed to make a substantial showing of his candidacy for the Democratic presidential nomination in Illinois, and (2) even if he had, he had no right to demand that his ads be placed in the Super Bowl.  Each of these prongs of the decision clarifies some issues in the law of political broadcasting that had been long-debated, but the first part of the decision leaves questions - important questions to which many stations want answers.

The first prong of the decision concluded that WMAQ-TV was justified in determining that Mr. Terry was not a bona fide candidate for the Democratic nomination for President in Illinois as he was not on the ballot there, and had not made a "substantial showing" that he was otherwise a candidate in the state (see our discussion of the requirements to be a legally qualified candidate, here).  The FCC found that the station did not need to be a private investigator and ferret out every instance of campaign activity that Mr. Terry had engaged in within the state to determine if his activity was substantial.  Instead, the station could rely on the information that Terry presented to it when he made his request.  That information essentially amounted to the fact that he had made appearances in two small towns in the state, and had some campaign literature (though there was no evidence that it was ever distributed in Illinois).  Based on those facts, the Commission denied the request - concluding that he had not engaged in campaign activities throughout a substantial portion of the state, as required by prior FCC precedent.  While this may answer the question in this case (and helped to clarify the law as to the showing that write-in candidates need to make before they can demand reasonable access to broadcast stations), it leaves several questions unanswered for stations that have or may receive Mr. Terry's request for airtime in other states where Mr. Terry is on the ballot.

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Published In: Communications & Media Updates, Constitutional Law Updates, Elections & Politics Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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