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Federal Communications Commission FCC 96-401 in Re Complaint Of Federal Communications Commission FCC 96-401 Before the Federal Communications Commission Washington, D.C 20554 In re Complaint of ) ) Ross Perot ) ) against ) ) ABC, CBS, NBC, and ) Fox Broadcasting Co. ) MEMORANDUM OPINION AND ORDER Adopted: October 3,1996 Released: October 4,1996 By the Commission: 1. We have before us a complaint filed on September 24, 19%, by Ross Perot ("Perot") and his general campaign organization against American Broadcasting Company ("ABC"), CBS Inc. ("CBS"), Fox Broadcasting Company ("Fox"), and National Broadcasting Company ("NBC"). Perot is the Reform Parties candidate for President of the United States. Perot asserts that these networks have allowed the presidential candidates of the major parties to "use" their facilities, but have failed to afford him equal opportunities in violation of Section 315(a) of the Act (47 U.S.C. Section 315(a)).© Perot also alleges that each of the broadcast networks has foiled to provide him with "reasonable access" to their facilities, as required by Section 312(aX7) of the Communications Act (47 U.S.C. Section 312(aX7)). 2. Several months ago, Fox, ABC, and PBS sought guidance from the Commission on the equal opportunities provision of the Communications Act. Those networks sought a declaratory ruling on whether their plans to offer free time to the major presidential candidates fell within the "bonafide news event" exemption to the equal opportunities requirement. The Commission found that they did.2 The Commission has not, however, fully considered the issue of a presidential candidate©s right to reasonable access from the major networks since 1979, when 1 On September 25, 1996, the Commission asked each network to file a response to the Perot complaint by the close of business, September 27, 1996, with copies to each of the other parties. Perot was given until the close of business, September 30, 1996, to reply to the network filings, with copies to the networks. Each of the networks chose to file timely responses and Perot filed a timely reply. 2 Fox Broadcasting Company. FCC 96-355 (rel. Aug. 21, 1996). 13109 the Commission ruled that ABC, CBS, and NBC could not, consistent with their 312(aX7) reasonable-access obligations, refuse to sell a candidate a one-half hour block of time once the campaign had begun.3 We will address the issues raised by this petition on the facts before us and leave the need for guidance on the reasonable access provision of the Communications Act to a future time. 3. Applying the principles articulated in our prior decisions and the congressional intent underlying the equal opportunities and reasonable access provisions, we believe that denial of Perof s complaint is appropriate. EQUAL OPPORTUNITIES 4. Perot alleges that the networks have failed to provide him with equal opportunities in response to several appearances, or planned appearances, of his opponents. First, Perot alleges that ABC, CBS, and NBC provided extensive prime time coverage of the 19% Democratic and Republican presidential nominating conventions, and that over four hours of this coverage consisted of "uses"4 by the Democratic and Republican nominees. Perot argues that, while coverage of political conventions is normally exempt from equal opportunities pursuant to Section 315(aX4), the events surrounding the 19% conventions of both parties were "exceptional," and that as a result, the news exemption should not apply. Specifically, Perot states that "while some limited news was dispatched, the vast majority of the network©s programming... was simply a staged forum for the candidates." Perot also notes that the networks did not cover the Reform Parties© convention and asserts that he is entitled to four hours of equal opportunities in response to the time received by President Clinton and Bob Dole during the coverage of their respective conventions. 5. Perot also contends that he is entitled to equal opportunities as a result of these networks© planned coverage of the Presidential debates between President Clinton and Bob Dole. The Commission on Presidential Debates ("CPD"),5 the sponsoring entity, recently announced that Perot should not be included in the debates. Perot claims that the CPD "arbitrarily" excluded him despite his having satisfied all the objective criteria for inclusion. Perot states that the CPD"s reason for excluding him was that he had "no realistic chance of winning" the election. Perot maintains that CPD*s decision was "clearly partisan" and that, under the circumstances, if any 3 Carter/Mondale Presidential Committee. Inc.. 74 FCC 2d 631 (1979), recon. denied.74 FCC 2d 657 1979, affd sub nom. CBS Inc. v FCC. 629 F2d 1 (D.C. Cir. 1980), affd 453 U.S. 367 (1981). 4 A "use" is defined generally as any positive appearance by a candidate outside the context of an exempt news program in which the candidate is identifiable. 47 C.F.R. Section 73.1941. 5 The Commission on Presidential Debates is an organization established to plan and sponsor debates among the leading candidates for the Presidency and Vice Presidency. 13110 network decides to carry the debates, appearances by the candidates therein will entitle Perot to equal opportunities. 6. For similar reasons, Perot contends that Fox has denied him equal opportunities by failing to include him in the network©s news presentations of ten sixty-second statements by the major presidential candidates and an election eve program in which the network will present longer statements by the major presidential candidates. Fox chose to include on these programs those candidates selected by the CPD for inclusion in the presidential debates.6 Perpt maintains that Fox "suddenly withdrew its agreement to provide" him free time. Finally, Perot notes that ABC recently aired two hour-long editions of its program "20/20", one featuring President Clinton and First Lady Hillary Clinton and the second featuring Republican Presidential candidate Bob Dole and his wife, Elizabeth Dole. Perot claims that these appearances do not fall under exempt news programming, and mat accordingly, he is entitled to equal opportunities to the candidates© appearances therein.7 Perot maintains that he is willing to pay for this time, but that ABC has still refused to provide it to him. Network Responses to Equal Opportunities Complaint 7. The networks contend that Perof s equal opportunities complaint is without merit ABC, CBS, and NBC assert that their coverage of the Democratic and Republican National Conventions was specifically exempt pursuant to Section 315(aX4) of the Communications Act8 Consequently, the networks contend that any appearances by candidates during these broadcasts cannot give rise to equal opportunities rights. Further, ABC states that its decision to devote live air time coverage to the conventions "was based on its good faith journalistic judgment that such coverage was newsworthy and not in order to promote the candidacy of either party nominee." NBC asserts that its decision to cover the Democratic and Republican Conventions and not that of the Reform Parties is within its discretion to be selective in determining which news events to broadcast. NBC maintains that Perot presents no basis to support his claim that the coverage of these two conventions could not be considered newsworthy. 8. The networks contend that their planned coverage of the presidential debates is similarly exempt. NBC and CBS point to the feet that the Commission has long held that the coverage of debates consisting of two or more candidates for public office qualifies for an exemption from equal opportunities as an on-the-spot coverage of a bona fide news event, 6 In recently granting a news exemption to these programs, the Commission found that Fox©s deference to the CPD as to which candidates should be included demonstrated a greater level of assurance of good faith by minimizing the potential for broadcaster abuse in the selection of the candidates. Fox Broadcasting Company. FCC 96-355 (id. Aug. 21, 1996). 7 Perot contends that he should be entitled to two one hour slots as a result of his opponents© appearances. 8 The text of this provision is discussed herein. 13111 pursuant to Section 315(aX4).9 Moreover, CBS contends that the test of whether a broadcaster©s coverage of a candidate debate qualifies for an exemption is not the motivation of the debate©s organizers in selecting the participants, but rather whether the broadcaster acted in good faith in determining that the event is newsworthy. In this respect, the networks maintain that their decision to broadcast the debates was based upon their good faith "journalistic judgment" that these events will be highly newsworthy and they state that Perot has provided no basis upon which to question their judgment NEC states mat it played no role in choosing the participants and asserts that the fact that Perot has not been invited to participate does not, in its judgment, render the event any less newsworthy.10 9. ABC states that Perot has no basis upon which to assert an equal opportunities complaint against it for the appearances of President Clinton and Republican Party nominee Bob Dole on its program "20/20," in light of the fact that "regularly scheduled news interview program[s]" are exempt from equal opportunities pursuant to Section 315(aX2). ABC maintains that "20/20" is a regularly scheduled news program and that "news interviews are a regular and recurring feature of the program." ABC contends that "20/20" satisfies the criteria upon which the Commission has previously found similar programs to be exempt11 ABC claims that "except for a bare assertion that ©20/20© is not news, Perot presents no evidence" to refute the program©s exempt status. 10. Fox contends that Perots equal opportunities complaint against it with respect to its coverage of presentations by the major presidential candidates is similarly without merit Fox notes that the Commission recently determined that these programs qualified for an exemption as on-the-spot coverage of bonafide news events.12 Consequently, Fox maintains, there can be no right to equal opportunities with respect to the appearances by the candidates therein.
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