Reasonable Access and the Problem Candidate – FCC Declares a Write-In Candidate Not Entitled to Buy Radio Spots, But That May Not Be the End of the Story

Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past.

The FCC has a list of criteria that they look at to determine if a candidate has made this substantial showing, criteria just recently updated by the FCC to include more digital and social media activities (see our post here on the recent update).  The criteria include:

• making campaign speeches,
• distributing campaign literature,
• issuing press releases,
• maintaining a campaign committee,
• establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager),
• creating a campaign website, and
• using social media for the purpose of promoting or furthering a campaign for public office.

Not every one of these boxes needs to be checked – and even showing that one of these criteria was met in some way is not necessarily sufficient if the cited activity was not serious in nature.  For instance, in the case decided last week, the candidate had not demonstrated that he made any campaign speeches or appearances in the district in which he was purportedly running.  The Media Bureau concluded that doing normal daily activities, such as shopping or attending religious services or visiting friends in the district were not in and of themselves campaign activities. The Media Bureau also concluded that the candidate had not distributed campaign literature in the district (handing out a few business cards and a few brochures from a previous campaign was not enough), and had really done very little concrete activities showing that he was trying in a substantial way to reach voters in the congressional district.  While the candidate argued that his advertising on the radio represented a substantial way to reach voters in the district, the Media Bureau indicated that the other activities listed above must come first before a radio station is required to sell the candidate time.  The decision is worth reviewing to see the FCC staff’s analysis of the various facts in the case leading to a finding that the station was justified in determining that the candidate’s showing was not substantial.

One fact omitted in most of the reports on this decision is that it related to the 2020 election – not to the current campaign.  This decision was one that sought to punish the radio station for denying the purported candidate access, not one that would have given him access for a pending race.  The candidate appears to have learned from his experience, and in 2022 it appears that he has qualified for a place on the ballot, rendering this analysis of a substantial showing unnecessary.  What he will do with any advertising time that he buys is a subject for another post…

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.