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. Further, Fox contends that Perot "mischaracterizes" the network©s actions in staring that Fox withdrew its agreement to provide him free time. Fox states that on September 6, 1996, it sent Perot a list of the ten questions to be posed to the participating candidates. Fox states that it provided Perot with mis information solely "as a courtesy" to enable him to be better prepared in the event that the CPD included him in the debates. Fox states that because its exemption for these programs was based upon a proposal submitted to the Commission in which the network specifically stated that it would defer to the CPD with respect to the participants, it could not now decide to include Perot without being susceptible to a claim by other candidates that it was not acting in
9 Aspen Institute. 55 FCC 2d 697 (1975X affd. sub nom. Chisholm v. FCCr 538 F.2d 349 (D.C. Cir. 1976), cat, denied. 97 S. a 247 (1976); Henrv Geller. 95 FCC 2d 1236 (1983), affd sub nom. Lgsgue_of Women Voters v. FCC 731 F2d 995 (D.C. Cir. 1983).
10 ABC said that if the CPD decides to include Perot or any other candidate in the debates, it would continue to consider the events newsworthy and would broadcast them.
" See Letter to CBS. 58 FCC 2d 601 f 1976Vgranting an exemption to the news interview portions of the CBS program "60 Minutes.")
12 Fox Broadcasting Company. FCC 96-355 (rel. Aug. 21, 1996).
13112 accordance with the Commission©s ruling. 11. Finally, NEC takes issue regarding Perof s allegation that the networks only invite major party candidates and their representatives to appear on news programs. NBC contends that Perot©s claim is incorrect, at least with respect to NBC, and states that since early 1996 the network has broadcast several news interviews with him. NBC further states that Perot©s campaign has received coverage in its other news programs as well.
Perot Reply To Network Equal Opportunities Responses 12. Perot contends that the appearances by the Democratic and Republican presidential candidates in the above programs cannot be exempt from equal opportunities as news. Perot maintains that such an expansive definition of the news exemption would eliminate the "structural safeguards" that the Commission has required of such programming. Perot further contends that if the networks are given the liberty to define virtually every appearance by a candidate as "news," no candidate will ever have the right to enforce equal opportunities. Perot argues that this result would be inconsistent with the intent of Congress in enacting Section 315(a). With respect to the issue of broadcaster intent, Perot states that he had "no ability to conduct discovery" and, therefore, cannot provide any evidence thereof. However, Perot maintains that the fact that the networks chose to cover only the Democratic and Republican conventions, and not that of the Reform Parties, suggests mat they are "showing favoritism" towards the major party candidates.
Discussion Equal Opportunities Legal Background 13. Section 315 of the Communications Act (47 U.S.C Section 315) provides that if a licensee permits a legally qualified candidate for public office to use a broadcast station, it must afford equal opportunities to other such candidates for that office. In 1959, Congress amended Section 315 to exempt from the equal opportunities requirement appearances by legally qualified candidates on any of the following: (1) bonafide newscast, (2) bonafide news interview, (3) bonafide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or (4) on-the-spot coverage of bonafide news events (including but not limited to political conventions and activities incidental thereto).
13113 47 U.S.C. Section 315(aXlX4). 14. In Aspen Institute.13 the Commission adopted a two-part test for analyzing whether a program should be considered bonafide news event programming. First, it determined whether the format of the program reasonably fit within the news event exemption category and, second, it assessed whether the decision to carry a particular event was the result of good faith news judgment and not based on partisan purposes.14 The Commission has continued to utilize the Aspen analysis for cases involving the news event exemption.15
Analysis of Equal Opportunities Complaint 15. Applying the terms of the statute and the Aspen test to the Perot equal opportunities arguments as they relate to the "news event" exemption, we conclude that, based on the record before us, none of the networks is obligated to provide Perot with equal opportunities in connection with the major party nominating convention coverage or the upcoming debates. In addition, consistent with our recent ruling in Fox Broadcasting, we conclude that Perot is not entitled to equal opportunities related to his exclusion from Fox©s presentation of statements by President Clinton and Bob Dole. Finally, we conclude that Perot is not entitled to equal opportunities in connection with the respective appearances by President Clinton and Bob Dole on separate editions of ABCs 20/20 program. For purposes of clarity, we shall address each of Perofs allegations separately.
Party Convention Coverage 16. With respect to Perofs argument that he is entitled to equal opportunities in
13 Aspen Institute 55 FCC 2d 697 (1975), affd sub nom. Chisholm v. FCC. 538 F.2d 349 (D.C. Cir. 1976), cert, denied. 97 S. Ct 247 (1976). 14 In Kennedy for President Committee (Kennedy!. 77 FCC 2d 965, 968-69, aff d sub nom. Kennedy for President Committee v. FCC. 636 F.2d 417 (D.C. Cir. 1980), the Commission further clarified Aspai and emphasized that in making the analysis of whether a program is exempt, the Commission will first "determine whether a particular scenario falls within one of the classes of appearance exempt under Section 315(aXlH^)-" M- at 969. Second, the Commission will explore "whether a particular broadcast which is claimed exempt was presented using a broadcaster©s good faith news judgment" M. Hie second aspect of this analysis places considerable reliance on the exercise of a broadcaster©s discretion to determine "newsworthiness" once it is determined an exempt news event is involved. Thus, "absent evidence of the broadcaster©s intent to advance a particular candidacy, newsworthiness of an event is left to the reasonable news judgment of the professionals." Kennedy for President Committee v. FCC. 636 F2d at 427.
15 In our recent decision in Fox Broadcasting Company, supra, n.2, we found mat proposals by Fox, ABC and the Public Broadcasting Service to offer free time to major presidential candidates should be treated as bona fide news event programming under Section 315 (aX4). In doing so, we set out the relevant history of the Commission©s interpretation of mat exemption and its application to the specific network proposals.
13114 response to the network©s coverage of the political conventions, the explicit language of Section 3 1 5(a)(4) exempts such programming. Section 3 1 5(aX4) states that on-the-spot coverage ofbona fide news events includes "political conventions and activities incidental thereto." Thus, Congress has chosen by statute to classify political conventions as exempt from the equal opportunities requirement. We have no basis to conclude that such programming is not bona fide. With respect to Perof s argument that the conventions are staged to showcase the candidates, the following language from the Aspen decision by the United States Court of Appeals is instructive: We remain unconvinced by petitioner©s arguments that these events (political conventions, debates and press conferences] are distinguishable [from debates and press conferences] based on the degree of control by the candidate, or the degree to which candidates tailor such events to serve their own political advantages. It is more reasonable to believe, as the Commission apparently does, mat any appearance by a candidate on the broadcast media is designed to the best of the candidate©s ability, to serve his own political ends. ^ 538 F.2d 349 (D.C. Cir. 1976), cert, denied 97 S. Ct 247 (1976). Thus, candidate control does not necessarily mean that a program is not an exempt news event. Appearances on the "20/20" program 17. The appearances of President Clinton and Bob Dole on ABCs "20/20" program are also not subject to equal opportunities. As discussed above, in 1959 Congress exempted four categories of news from the equal opportunities requirement The exemption for "bona fide news interviews" pursuant to Section 315 (aX2) has been interpreted by the Commission to apply to a variety of different kinds of interview programming, including CBS©s "60 Minutes."16 In granting CBS©s 1976 request for a Commission determination as to whether it believed that "60 Minutes" fit the news interview exemption, the Commission ruled that it satisfied congressional intent. Specifically, the Commission noted that it was regularly scheduled, a requirement specified in the exemption©s legislative history. The Commission also took note of the fact that the program was under the exclusive control of CBS, and the licensee stated that interviewees were selected based on the basis of newsworthiness, not for partisan purposes. CBS indicated that although "60 Minutes" contained various kinds of news formats, the program featured news interviews on a regular recurring basis. As such, the Commission determined that appearances by legally qualified candidates on "60 Minutes" would not trigger equal opportunities rights for opposing candidates. Similarly, ABC states that "20/20" has been regularly scheduled since 1978 and has featured news interviews of many newsworthy persons, including heads of state and other political figures, including Perot in 1988 and 1992. ABC states that its news division controls the program and guests are selected on the basis of good faith journalistic judgment, not to favor any particular candidacies. Thus, in the absence of any indication to the contrary, "20/20" falls
letter to CBS. 58 FCC 2d 601 (1976).
13115 within the news interview exemption and the appearances of President Clinton and Bob Dole therein do not entitle Perot to equal opportunities.17
Presidential Candidate Debates 18. With respect to the Presidential debates, we believe that under our news event analysis, Perot again fails to establish that the debates would not be properly accorded exempt news event status. In Aspen Institute and consistently since, the Commission has found, with the approval of the courts, that debates between at least two competing legally qualified candidates are exempt news events. Thus, under the first part of the test, as to whether the debates reasonably fit within the news event exemption, it is reasonable for broadcasters to treat them as such. As to the second prong, whether the decision to cany the debates is the result of good faith news judgment and not based on partisan purposes, Perot also fails to show that the networks decision to cover the debates is not based on the newsworthiness of the event. Perot contends that the CPD selection process is skewed because, inter alia, the CPD failed to follow its own objective criteria and is partial to the two major political parties. We do not review the decisions of the CPD. Thus, the correctness of its decision is immaterial to the question of whether any particular broadcaster©s decision to carry the debates was based upon an intent to favor one candidate over another, and not on a judgment of newsworthiness.18 Perot has not suggested that any of the networks played any role in CPD*s decision to exclude Perot. In the absence of a showing by Perot that the broadcasters themselves acted for partisan purposes, we conclude that the presidential debates are news events and exempt from the equal opportunities requirement.19
17 That Perot is willing to pay for the time is irrelevant for purposes of determining whether he is entitled to equal opportunities. 18 In 1988, the Commission was faced with resolving a complaint from presidential candidate Lenora B. Fulani, who made the same essential arguments with respect to the debate sponsorship by the CPD. The Commission staled mat Here, the fact that an organization established through the cooperation of the major political parties sponsored the debate is similarly not determinative of the banafide newsworthiness of the debate. In short, regardless of the debate©s sponsors, format, or participants, the controlling question is whether broadcasters made good faith journalistic determinations that the ... debate was newsworthy. It is the broadcaster, not the Commission, who bears the initial responsibility to formulate journalistic judgments as to whether, as the Commission reasoned in Henry Geller. an event has "banafide news value." Lenora B. Fulani. 3 FCC Red 6245 (1988).
19 With respect to Perofs argument mat he is entitled to equal opportunities for the appearance of the Republican and Democratic candidates in the programming approved by the Commission in Fox we note that this programming was determined to be exempt under Section 315(aX4). Thus, Perot is not entitled
13116 REASONABLE ACCESS 19. On August 18,1996, the Reform Parties nominated Ross Perot as its candidate for President for the November, 5, 1996, general election. Shortly thereafter, representatives of the Perot campaign contacted each of the aforementioned networks to inquire about the purchase of time.20 Specifically, Perot requested to buy from all four networks eight one-half hour blocks of prime time, one to air each week beginning the week of September 8, 19%, continuing through the week of October 27, 1996. In addition, Perot requested a one half-hour slot for election eve, Monday, November 4,19%. Perot maintains that the ability to purchase half-hour blocks of time, especially in prime time, is crucial to his campaign as a third-party candidate. Perot asserts that the Democratic and Republican candidates have ample access to the media through traditional news coverage, which is rarely provided to him and other third party candidates. Perot argues, by way of an example, that only major party candidates and their representatives are typically invited to appear on talk shows and other news programs. Perot also notes that he has been excluded from the presidential debates scheduled to take place in October, which ABC, CBS, and NBC plan to cover. In addition, Perot claims that the Democratic and Republican presidential candidates will each have over $100 million dollars to spend on their respective campaigns, whereas he will have approximately $29 million at his disposal.21 Consequently, Perot contends that while the major party candidates may be able to afford to communicate with the voters by the purchase of 15, 30 or 60-second "sound bites," he does not have this luxury and needs to purchase larger blocks of time to deliver his message effectively.22 20. Perot states that the Commission has long required networks to sell reasonable amounts of time to federal candidates during prime time programming. Commission Policy in Enforcing Section 312(aVT>. 68 FCC 2d 1079,1091 (1978). A refusal to do so, Perot contends, would deny a candidate access to the time periods which possess the greatest audience potential and would thus be inconsistent with Section 312(aX7). Further, Perot asserts that a candidate to equal opportunities as to this programming. 20 Perot made earlier attempts to secure time from the networks before he became a legally qualified candidate. However, the networks were under no obligation at mat point to offer him time, and Perot has made no arguments in this regard. 21 Under certain circumstances, the Federal Election Commission awards general election presidential candidates matching funds based upon a formula derived from the percentage of votes his or her respective party received in the prior presidential election. Because Perot has chosen to receive federal election matching funds, he is limited in die amount of personal resources that he may donate to his campaign. 22 Perot states that a typical 15-second spot during network prime time programming "costs a candidate approximately $50,000 - $60,000." Perot states that if he were to campaign using 15 or 30-second increments, 30 minutes of time would cost approximately $3 million, almost ten times what he contends he would pay for a 30- minute block of time.
13117 must be allowed the flexibility to obtain programming in a manner suited to his or her campaign. Perot states that the United States Supreme Court in CBS Inc. v. FCC r"Carter-Mondale"\ 453 U.S. 367 (1981), held that broadcasters are required to tailor their responses, as much as reasonably possible, to a candidate©s stated purpose in seeking the airtime. Accordingly, Perot argues that the networks should "honor a candidate©s decisions on the best strategy for pursuing his media campaign." Perot maintains that the responses he received from each of the four networks constitute a denial of reasonable access. 21. Since the focus of this portion of the complaint is Perof s allegation that he did not receive sufficient prime time program length access, we reiterate that Perot initially requested to purchase 8 one-half hour prime time slots, one to air each week beginning the week of September 8, 1996, continuing through the week of October 27, 1996, and an additional one half-hour slot for election eve, Monday, November 4, 1996, for a total of 4 1/2 hours of prime time programming. Network Responses 22. In their September 27, 19%, responses to Perofs allegations, as detailed below, each network argues that it complied with the statute and relevant Commission policy and case law in providing access to the Perot campaign.
ABC 23. According to the pleadings, ABC has provided Perot with three one-half hour prime time slots from September 1, through October 20,1996, and a shared hour on election eve, the amount of which is to be determined in relationship to the needs of other candidates that evening. ABC has also offered Perot four additional one-half hour slots in non-prime time following its program "Nightline." ABC further states that it has offered Perot "spot availabilities" in prime time and other day parts through election day. ABC states that Section 312(aX7) does not require licensees to provide unlimited time to candidates or to accede to every request that a candidate may make. ABC asserts that the Commission has made clear that licensees may take into consideration the disruption of broadcast schedules, the potential of equal opportunities requests by competing candidates, and the amount of time already provided to the candidate during the course of the campaign in responding to a candidate©s request for time. ABC maintains that it has been flexible in considering Perofs particular requests and needs and has responded by making available a variety of dates and different dayparts to him. Consequently, ABC concludes that it has "fully satisfied" its reasonable access obligation to Perot.
13118 NBC 24. According to the pleadings, NBC sold one half-hour of prime time to Perot on September 8, 19%, from 7:00-7:30 pm and states that it will sell Perot an additional half-hour of prime time on October 12,1996. NBC will also sell Perot up to one-hour in non-prime time on October 1,1996, as well as a portion of a one-hour block of time on election eve, November 4,1996, that, like CBS, will be apportioned among the candidates choosing to purchase time that evening.23 In addition, NBC has offered Perot numerous 15, 30, and 60-second spots in both prime and non-prime time. NBC states that it applied the proper criteria in evaluating Perot©s request for access and maintains that it arrived at a reasonable decision that balances Perot©s expressed needs against other relevant factors such as the disruptive impact on the network©s programming schedule and the likelihood of requests for time from other candidates. Moreover, NBC states that it had no role in creating Perot©s financial disadvantage vis a vis the major presidential candidates, and therefore, the network has no obligation to create a "level playing field" for presidential candidates. NBC states that Perot is not entitled to unlimited access and that the package NBC has offered him, including program length and spot time, fulfills the network©s obligation in providing reasonable access. Consequently, NBC maintains that Perot©s complaint against it is without merit FOX 25. According to the pleadings, Fox has sold Perot a one half-hour slot on September 14,1996, from 8-8:30 pm. Fox has also offered Perot a package of ten, 15, and 30 second spots to air between October 5, 1996, and November 2, 1996. Fox has further indicated that it will attempt to clear time currently allotted to the airing of the 6th game of the World Series if the Series ends in fewer games. Fox states that it offered Perot a half-hour in prime time on September 30, 1996, but that Perot declined this offer. This offer was made to Perot on September 26,1996, two days after Perot filed his complaint with the Commission. In addition, Fox has since offered to sell Perot an additional one-half hour on October 12,1996, from 9:30 - 10:00 pm. Fox claims that it is unique among the major networks because it is constrained by a smaller prime time schedule. Fox points to the fact that it provides only 15 hours of regularly scheduled prime-time programming each week compared to 22 hours for the major networks. Fox argues that the Commission has previously indicated that it will make exceptions to the prime time program length requirement for federal candidates "where circumstances dictate,"** and maintains that mis is one of those circumstances. Fox also contends that the Commission has recognized the importance of other non-political types of programming,25 and states that it has
23 Accordingly, Perot may receive less than 30-minutes if three or more candidates choose to avail themselves of this opportunity.
24 Law of Political Broadcasting and Cablecasting. 69 FCC 2d 2209, 2288 (1978)
25 Commission Policy in Enforcing Section 312TaYT>. 68 FCC 2d at 1089 (1978).
13119 contractual obligations with respect to the broadcast of the Major League Baseball championship games. Fox further states that considering "the likelihood of requests to buy time by rival candidates under the equal opportunities provision of Section 315(a)" it has accommodated Perot as much as reasonably possible. Consequently, Fox concludes that it has acted "reasonably and in good faith, and that its decisions should be entitled to deference even if the Commission©s analysis would have differed in the first instance." CBS 26. According to the pleadings, CBS sold Perot one half-hour of prime time on September 10, 19%, from 8:00-8:30 pm. and has offered to sell him a half-hour in prime time in the latter part of October, the specific day and time of which is to be determined. In addition, CBS offered to sell Perot an hour block of time on election eve, but reserves the right to reduce proportionately the amount of time available based upon requests by other candidates for election eve access. CBS has also offered to sell Perot two non-prime time half-hour slots during the daytime as well as a one-hour slot during late night programming. In addition, CBS has offered to provide Perot with an extensive amount of 15,30, and 60-second spot announcements in both prime and non-prime time programming and states that it remains willing to consider further requests for time. CBS maintains that it weighed Perofs expressed needs against other factors which the courts and the Commission have indicated broadcasters may consider in responding to reasonable access requests, including the number of other candidates who may also seek program and spot length time as well as disruption to regular programming. CBS states mat there has never been a Commission requirement that a licensee, which has provided other types of access to its facilities, must sell a federal candidate multiple half-hour blocks of time over the course of a campaign in order to comply with Section 312(aX7)- On the contrary, CBS refers to a staff ruling by the Mass Media Bureau in which it was determined that ABC had not acted unreasonably in offering a presidential candidate 5 minutes of time in response to a 30-minute request where the network had previously sold the candidate a half-hour of time accepted by the candidate to be in lieu of its right to prime time.26 CBS concludes that, in light of this ruling, its response to Perofs requests cannot be considered unreasonable.
Perot Reply To Network Reasonable Access Responses 27. In his reply, Perot contends that the networks have failed to provide evidence to support their refusal to provide him with sufficient prime time programming. Perot asserts that the networks merely recite the factors which the Commission considers in analyzing a reasonable access complaint rather than offering explanations of why they have failed to adequately provide him with prime time slots. Perot maintains that the networks must cite a realistic danger of program disruption or unusual circumstances to justify a denial of a candidate©s request for time. Otherwise, Perot states, the networks could simply evade their reasonable access obligations on
26 Citizens for T^Rnuche Inc.. 47 RR 2d 1415 (B/cast Bur. 1980).
13120 a "speculative and unsubstantiated" basis. In response to Fox, Perot states that the Commission has never relieved a network of reasonable access obligations because it programs fewer prime time hours. Further, Perot argues that Fox©s contract to air the Major League Baseball games cannot be considered an "exceptional circumstance." With respect to his having declined Fox©s offer for a one-half hour prime time slot on September 30,19%, Perot states that this was a "last minute offer," which did not allow him sufficient opportunity to prepare a program. Regarding NEC©s assertion that it had no obligations to create a level, playing field, Perot claims that NBC was obligated, but failed, to "assess" the campaign©s needs in evaluating its request for time. Perot further claims that LaRouche is not analogous because, unlike here, the candidate in that case accepted a substitute time period in lieu of prime time. Finally, Perot claims that despite the networks© current assertion that they must consider the fact that another presidential candidate has now requested to purchase a half-hour block of time, mis information was not before them at the time they denied his requests and thus cannot justify their refusal to have honored his request.
Discussion Reasonable Access Legal Background 28. Section 312(aX7) of the Communications Act provides: The Commission may revoke any station license or construction permit..for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy.27 29. In 1978, the Commission formulated policies for implementing the reasonable access obligation, emphasizing a "rule of reason" in balancing the needs of the federal candidate in seeking access and the interests of broadcasters in not having regular programming unduly disrupted28 Relying on those factors, the Commission encouraged good faith negotiation between broadcasters and federal candidates in determining how much advertising time, and the placement, a station will provide. Three years later, in its landmark Carter/Mondale decision, the Supreme Court stated that although fiat bans or across-the-board policies for handling reasonable access requests are prohibited, "the Commission mandates careful consideration, not blind assent to, candidates desires for air time." 453 U.S. at 389. The Court affirmed the Commission©s interpretation of Section 312(aX7), summarizing as follows: [A]ccess requests from "legally qualified" candidates for federal elective office . . . must be considered on an individualized basis, and broadcasters are
27 47 U.S.C. Section 312(aX7).
28 Report and Oder in Commission Policy in Enforcing Section 312faY7V 68 FCC 2d 1089 (1978).
13121 required to tailor their responses to accommodate, as much as reasonably possible, a candidate©s stated purposes in seeking air time. In responding to access requests, however, broadcasters may also give weight to such factors as the amount of time previously sold to the candidate, the disruptive impact on regular programming, and the likelihood of requests for time by rival candidates under the equal opportunities provision of Section 315(a). These considerations may not be invoked as pretexts for denying access; to justify a negative response, broadcasters must cite a realistic danger of substantial program disruption perhaps caused by insufficient notice to allow adjustments in the schedule or of an excessive number of equal time requests.29 30. The Commission©s review of a broadcaster©s reasonable access determination is analyzed in a two-step process: (1) has the broadcaster adverted to the proper standards in deciding whether to grant a request for access?; and (2) is the broadcaster©s explanation for his decision reasonable in terms of those standards?30 31. Each of the networks has adverted to the proper standards in considering Perofs request for time, as the first prong of our test contemplates. Specifically, each has stated that it has balanced the amount of program length, prime time programming Perot requested nine prime time half-hours from each network, and his campaign©s stated need for such time, against the highly disruptive impact the request, if fulfilled in its entirety, would have on its regularly scheduled programming. In addition, each took into account the potential for requests for time from the six other presidential candidates31 and the amount of time it had already offered Perot. With respect to the second prong of our test, we have reviewed the networks© explanations as to how each has balanced Perofs requests for program length prime time against the impact of that request, and find that the explanations are reasonable. We believe that the record shows that each network indeed gave considerable weight to the candidate©s express need for program length, prime time access. We also believe that they have been reasonable in considering the potential impact of Perofs substantial request on their programming schedules and have offered access
29 453 U.S. at 387.
30 Cartgf-MOTldate at 375-76. We also note that, in reviewing reasonable access matters, the Supreme Court stated that [Tjn order to facilitate review by the Commission, broadcasters must explain their reasons for refusing time or making a more limited counteroffer. If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commission©s analysis would have differed in the first instance. Id, at 387
31 For example, CBS filed a letter with the Commission on September 30, 19%, advising us that Libertarian Candidate Harry Browne and Natural Law Party Candidate John Hagelin have both requested half- hour prime time blocks of time before the election. Similarly, NEC has submitted a letter it has received from Libertarian Candidate Harry Browne requesting a thirty-minute block of prime time before the election.
13122 consistent with their obligations under Section 312(aX7). &1 coming to this conclusion, we have necessarily looked at the amount of time offered, the time period in which it is offered, and the proximity of the time offered to the election.32
Analysis of Reasonable Access Complaint against ABC 32. We are satisfied that ABC has offered to sell Perot "reasonable" amounts of program length programming in prime time and that it has provided such prime time access sufficiently close to the election so that Perot will have a reasonable opportunity to reach the American electorate during the period they are most engaged in deciding how to cast their votes. Specifically, once Perot was nominated by the Reform Parties, ABC offered him a total of one and a half hours during prime time, spread over the eight weeks preceding the election. ABC offered to allow Perot to purchase half-hours slots on September 1, 7-7:30 pm, October 6, 7- 7:30 p.m, and October 20, 7:30-8 pm The network also offered Perot the opportunity to purchase up to one-hour of prime time programming on election eve. Under the facts and circumstances before us, we find that ABC has provided Perot "reasonable access" under Section 312(aX7).
Analysis of Reasonable Access Complaint against NEC 33. We are satisfied mat NBC has offered to sell Perot "reasonable" amounts of program length programming in prime time and mat it has provided such prime time access sufficiently close to the election so that Perot will have a reasonable opportunity to reach the American electorate during the period they are most engaged in deciding how to cast their votes. Specifically, NBC offered to sell to Perot one thirty-minute prime time program for broadcast in September (September 8, 7-7:30 pm) and an additional half-hour in prime time in October (October 12, 10:30-11:00 pm) NBC also advised Perot that it was reserving one-hour on election eve, November 4, 8-9:00 pm, to be allocated among any of the presidential candidates who request paid access that evening. Under the facts and circumstances before us, we find that NBC has provided Perot "reasonable access" under Section 312(aX7). Analysis of Reasonable Access Complaint against Fox 34. We are satisfied mat Fox has offered to sell Perot "reasonable" amounts of program length programming in prime time and mat it has provided such prime time access sufficiently close to the election so that Perot will have a reasonable opportunity to reach the American electorate during the period they are most engaged in deciding how to cast their votes. Specifically, Fox initially offered Perot one prime time half-hour slot on September 7, subject
32 To the extent that this ruling is inconsistent with a 1980 staff ruling in fft*7?"!? for 1 aRnuche. Inc.. 47 RR 2d 1415 (Beast/Bur 1980), ft is hereby overturned.
13123 to rescheduling on September 14, which Perot accepted Thereafter, Fox offered Perot a second prime time half-hour slot on September 30, which Perot declined Fox also offered Perot a half- hour prime time program slot on October 26, as a contingent backup to game 6 of the World series. Fox then offered to sell to Perot an additional prime time slot on October 12,9:30-10:00 p.m. Thus, in response to Perofs request for prime time programming, Fox offered to sell to Perot three prime time half-hours in a period sufficiently proximate to the election to provide his campaign with the reasonable opportunity to reach the electorate. Under the facts and circumstances before us, we find that Fox has provided Perot "reasonable access" under Section 312(aX7).
Analysis of Reasonable Access Complaint Against CBS 35. We are satisfied that CBS has offered to sell Perot "reasonable" amounts of program length programming in prime time and that it has provided such prime time access sufficiently close to the election so that Perot will have a reasonable opportunity to reach the American electorate during the period they are most engaged in deciding how to cast their votes. Specifically, CBS has offered to sell to Perot a half-hour slot on September 10, 8-8:30 p.m. and a second half-hour prime time slot in the latter part of October. In addition, CBS offered to sell Perot one-hour of prime time on election eve, but has reserved the right to apportion the hour on election eve as it deems reasonable among any other candidates who seek such access. Thus, in response to Perofs request for prime time programming, CBS offered to sell to Perot two prime time half-hours and at least a portion of election eve hour of prime time in a period sufficiently proximate to the election to provide his campaign with the reasonable opportunity to reach the electorate. Under the facts and circumstances before us, we find that CBS has provided Perot "reasonable access" under Section 312(aX7)-
CONCLUSION 36. As a result of the foregoing, the complaint filed by Ross Perot is hereby DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton Acting Secretary
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