Media Bureau Orders WUSA to Air Ads for Qualified Candidate Outside a Coverage Area
FCC staff set precedent for what types of federal candidates TV stations must air ads for in the runup to elections, broadcast lawyers said. Less than six full days before election day, the Media Bureau ordered Gannett’s WUSA Washington to air ads for an unaffiliated presidential candidate on the ballot two states away and not inside what the CBS affiliate said more closely resembled its coverage area. The order said that instead of the mathematical model incorporating terrain in assessing coverage area, another model that the agency has preferred since the DTV transition should be used. An engineer said that commission-preferred model, the noise limited service contour (NLSC), is less precise.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
The upshot is that WUSA must air ads from the campaign of Randall Terry. His spots depict aborted fetuses and show the candidate saying voting for President Barack Obama helps “Muslims murder Christians and Jews.” The bureau in February rejected a similar Terry complaint (http://xrl.us/bnxggf), seeking to require NBCUniversal’s WMAQ-TV Chicago run such an ad during the Super Bowl, because he didn’t show he was a candidate for president in the Illinois Democratic primary (CD Feb 6 p9). This time, Terry is a candidate on the ballot in West Virginia for Tuesday’s presidential election, and said WUSA should be required to air his ads because the station serves that state.
Terry’s campaign wants to air ads during news and in prime time, said his ad buyer, Kathleen Offerman. As we spoke with her Thursday morning, about 17 hours after the bureau’s order was released (http://xrl.us/bnxhep), she said she was trying to place a new order with WUSA. The campaign wants to buy slots for five ads on that station, which had rejected previous requests for airtime, Offerman said. “If you vote for Obama, you will have innocent blood on your hands,” Terry said in one ad that Offerman told us the candidate wants to air. “Obama leads the attack” in the “war on women, waged by men,” and “would kill his own grandchild,” another ad Terry wants to run said (http://xrl.us/bnxgh9).
"Mr. Terry strategically chose the states in which he has sought placement on the ballot specifically in order to take advantage of FCC rules to target political advertising into neighboring swing states,” lawyers for Gannett wrote Bobby Baker, chief of the bureau’s Policy Division Political Programming Branch (http://xrl.us/bnxgnj). The Longley-Rice model that shows a “de minimis portion” of WUSA’s viewers, West Virginia’s population and “any political subdivision” of the state should be used instead of the NLSC, lawyers for Gannett wrote Baker. That’s a “predictive map that does not take into account real-world terrain features, such as the Appalachian Mountains,” they wrote. The Communications Act requires TV stations to give candidates in federal elections the lowest charge any commercial advertiser is paying in the same day part for ads around the time of elections.
It’s “unreasonable” for WUSA to “deny Terry reasonable access,” and the commission has used the NLSC in place of what had been the so-called Grade B contour for analog coverage before the full-power broadcaster digital transition, said the order signed by bureau Chief Bill Lake. Jefferson County, W.Va., which the station’s NLSC profile shows the outlet reached, has 54,000 residents according to the U.S. Census, 3 percent of the state’s population, he wrote. “We do not think this percentage can be considered de minimis.” WUSA will ask the FCC to reconsider, said General Manager Mark Burdett. “WUSA’s signal does not reach West Virginia, and we disagree with the decision by the FCC staff to require us to broadcast advertisements for Mr. Terry, who is not running for office in Washington D.C., Maryland or Virginia."
It’s rare for the bureau to grant a candidate’s complaint, in part because most disputes are resolved informally by Baker, said Davis Wright broadcast lawyer David Oxenford, who advises other radio and TV stations on political ads. “There’s very few things done in the political broadcast world through formal” proceedings at the bureau, he said. A decision “can take forever to get written, and by that time it doesn’t do anyone any good” if it’s after an election, Oxenford said. Lake’s order cited “the importance of issuing a prompt decision, particularly in the short time remaining before the election,” in concluding the NLSC should be the measure and not Longley-Rice.
The Terry case is “unusual” in that such complaints are rarely decided against broadcasters, and it’s “pretty clear they treat it as a precedential-type approach,” said broadcast lawyer Scott Flick of Pillsbury Winthrop, who also advises other clients on political ads. The order “didn’t entirely foreclose that there wouldn’t be a different standard down the road,” with the NLSC not being used, Flick said. “But it would be awkward for the FCC” to later reverse course, he said. “Usually these are not hard questions, if the candidate is legally qualified” in a station’s market, the outlet “is going to give them access,” he said: “So it’s rare that you would have a candidate that would have anything to complain about,” and those who might aren’t legally qualified for the races where they want the lowest unit charge.