The Federal Communications Commission has made it clear that political time aired over broadcast airwaves is only available for bona fide, legally qualified candidates — a burden of proof that falls on the individual, especially one who claims to be a write-in candidate.
An order released by the Media Bureau weighed in on the objection submitted by an individual who said he was a viable candidate for elected office.
Jim Condit Jr. submitted a complaint to the Media Bureau saying that two Cincinnati radio stations denied him reasonable access to the airwaves as a federal candidate. The complaint was filed against Citicasters Licenses Inc. (which is owned by iHeartMedia) and is licensee to WKRC(AM) AND WLW(AM). Condit approached the stations in September 2020 looking to air advertisements supporting his candidacy for the U.S. House of Representatives in Ohio’s Second Congressional District.
The stations commenced broadcasting Condit’s ads for about three weeks before terminating them. This action led Condit to file an objection with the FCC because, as he said, the radio stations’ owner censored Condit’s ads because they didn’t agree with the ads’ content.
In his complaint, Condit said that the action is a violation of the Communications Act. In refusing to resume broadcasting his ads, Condit said the stations were denying him reasonable access to broadcast airwaves as a federal candidate.
The rules laid out in the Communications Act regarding political speech are clear — commercial broadcast stations must sell reasonable amounts of broadcast time on behalf of legitimate candidates for federal offices. The act also clearly spells out that broadcast stations may not censor the messages of legally qualified candidates. These censorship protections give a legally qualified candidate the right to reasonable access.
In a response to the Media Bureau, however, Citicasters said that Condit had not met that important standard — that of a legally qualified candidate.
The FCC Rules define a “legally qualified candidate” in the following ways: an individual seeking election who has publicly announced his or her intention to run for office, an individual qualified to hold the office for which they are a candidate, and an individual that has qualified for a place on the ballot or have publicly committed themselves to seeking election by the write-in method.
In cases where the write-in method is used, that individual must substantially show that they are a bona fide candidate for the office being sought. The term “substantial showing” means there is evidence that the person claiming to be a candidate has engaged in activities usually associated with political campaigning.
According to Condit’s complaint, he publicly announced his attention to run for Congress in July 2020. Then in August, Condit submitted a declaration of intent to be a write-in candidate and paid the requisite fee. The board of elections identified Condit as a write-in candidate and soon after, he approached staff at the two stations and requested to purchase time as a political candidate, providing information in support of his qualifications.
Citcasters said that sales staff accepted Condit’s request to purchase time on its radio stations in the good faith belief that he was a legally qualified candidate entitled to reasonable access. But after broadcasting his ads for about three weeks, Citicasters suspended the airing of the ads and asked Condit to provide additional evidence to show he had made a substantial showing of his candidacy.
Station staff became concerned that he was not — and never had been — a legally qualified candidate. According to Citicasters, it appeared from information on his website, a speech from an Internet interview and from the ads themselves that that he had no genuine intention of seeking public office.
To resolve those questions, Citicasters asked Condit to provide additional information showing he had engaged, to a substantial degree, in activities commonly associated with political campaigning.
After reviewing the answers Condit provided, Citicasters determined he had not made enough of a substantial showing and was not a legally qualified candidate for federal office.
Condit contends that the stations’ decision to suspend broadcast of his ads is censorship as well as a violation of the reasonable access requirements of the Communications Act. He also claims that Citicasters stopped broadcasting his messages because of the content and they required him to produce additional information about his candidacy as a pretense. He said he provided ample information to prove he was a legally qualified candidate, including making campaign speeches and distributing campaign literature.
But Citicasters came to believe that Condit had no genuine intention of seeking public office. Station management began to suspect that he had instead set out to exploit the rules of the Communications Act by what Citicasters called “a sham political campaign through which he could gain access to the airwaves for the purpose of spreading his beliefs to a vast audience.”
For example, the station found a page on his web site that was devoted to the Communications Act’s reasonable access law. According to Citicasters, “[the] complainant also reveals his motives on his website” where he describes a “little known strategy [where] almost anyone can run for Congress for as little as $100.” That strategy can be used to get “real information to normal Americans over big TV and radio stations.” Citicasters also said that Condit’s alleged campaign was being used to disseminate his views well beyond the Congressional district he was trying to represent.
The station owners said they re-applied the write-in requirement to the information Condit provided and concluded he had not made a substantial showing of “bona fide candidacy.” Among the claims: none of the locations at which Condit made speeches were located in Ohio’s second Congressional district and most of the activities that Condit claims to have participated in were not related to his campaign at all. Also, he did not provide any details regarding how his meetings or conference calls related to his candidacy, he failed to demonstrate that he had distributed campaign literature to a significant degree, he had not issued any press releases, he failed to maintain a campaign committee, and his campaign headquarters were located outside of the Ohio district in which he was running.
“Citicasters further asserts in this regard that an individual claiming to be a legally qualified write-in candidate bears the burden of demonstrating his or her bona fides, and, in this instance, Mr. Condit failed to do so,” the bureau said in its order.
For his part, Condit accused Citicasters of acting in bad faith by suspending the broadcast of his ads and he took issue with the broadcaster’s unilateral determination that he was not a legally qualified candidate. His said he helped organize more in-person events than his two opponents, that his radio ads served as in-person speeches and that he had committed dozens of hours into producing his radio ads.
He did, however, admit that he did not participate in Internet-based meetings, did not engage in door-to-door campaigning or hand out literature because of COVID-19 restrictions and did not send out direct mailings because they were too expensive.
The bureau reiterated in its order that an individual running for office must satisfy three requirements in order to achieve the status of a legally qualified candidate: they must publicly announce their intention to run for office, they must be qualified to hold the office if elected and, if running as a write-in candidate, must make a substantial showing of their bona fide candidacy.
After weighing all the matters, the Media Bureau found that Condit was not a legally qualified write-in candidate. As a result, he is not entitled to reasonable access and censorship protections. The bureau reiterated that any individual claiming to be a legally qualified candidate by the write-in method bears the burden of demonstrating that he made a substantial showing of a candidacy. “In this instance, Mr. Condit failed to do so,” the bureau said in its order.
As a result, the bureau denied the complaint filed by Condit against Citicasters.
Susan Ashworth is the former editor of TV Technology and a long-time contributor to Radio World. She has served as editor-in-chief of two housing finance magazines and written about topics as varied as broadcasting, education, chess, music, sports and the connected home environment.