The FCC ruled that Terry failed to meet his burden to demonstrate to the station that he is a bona fide candidate for the Democratic Presidential Primary in Illinois. The FCC also ruled that even if Terry were a bona fide candidate, it was reasonable for the station to reject his request for ad time during the Super Bowl, since a station could reasonably conclude that “it may well be impossible, given the station’s limited spot inventory for that broadcast, including the pre-game and post-game shows, to provide reasonable access to all eligible federal candidates who request time during that broadcast.”
One aspect of the decision that is particularly interesting is the FCC’s conclusion that the mere fact that some stations may have aired the spots did not make another station’s decision not to air them unreasonable. The FCC assessed the degree to which Terry demonstrated he had broadly campaigned in Illinois, concluding that “[r]eview of the information provided by Terry to the station regarding his substantial showing demonstrates that much of it is either incomplete or without specific facts to support his claims regarding particular campaign activities” and that “the few locations in which he mentions campaigning fail to demonstrate that he has engaged in campaign activities throughout a substantial part of the state, as required by Commission precedent.”
While it is unlikely this decision marks the end of the controversy, it will certainly allow broadcasters to breathe easier for the moment. Unavoidably, however, the decision provides a road map to those seeking to exploit the rules in the future, detailing the type of showing they will need to make “next time” to establish a right to reasonable access, equal opportunity, and lowest unit charge (although probably not during the Super Bowl). While the FCC today set the bar appropriately high for establishing a bona fide candidacy, the benefits conveyed to candidates by the Communications Act are sufficiently attractive that it likely won’t be long before we see an effort by another “candidate” to clear that hurdle.