“Write-in” Candidates Must Make Substantial Showing to be Eligible for FCC Protections

As we move into the political season, stations may be faced with requests from “write-in candidates.”  A recent case involving stations in Cincinnati provides important insights when dealing with “write-in candidates.”  “Write-in candidates” must make a substantial showing to be eligible for protections under the FCC rules.   According to the FCC:

If seeking election by the write-in method, the individual, in addition to being eligible under applicable law to be a write-in candidate, must make a “substantial showing” that he or she is a bona fide candidate for the office being sought. Section 73.1940(f) of the Commission’s rules speaks directly to the term “substantial showing:” The term “substantial showing” of a bona fide candidacy . . . means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager).

In the Cincinnati case, the FCC found that a candidate for Congress did not make a substantial showing of a bona fide candidacy for office.  A key factor was that there were not enough campaign activities.  Most importantly campaign speeches and activities were held outside the Congressional District for which the candidate was running.  The FCC found:

“Specifically, Mr. Condit identified six locations where he claims to have made campaign speeches and engaged in campaign-related activities.  However, Citicasters demonstrates that none of the locations where the activities took place was located within Ohio’s 2nd Congressional District.”

In addition, the FCC noted that the campaign materials that were distributed were dated and nonspecific.

Importantly, the FCC rejected the candidate’s argument that the radio ads themselves showed that there was campaign activity in the district.

“We reject Mr. Condit’s contention that reaching vast numbers of potential voters in Ohio’s 2-nd Congressional District through his ads that were broadcast over Stations WKRC(AM) and WLW(AM) during the COVID-19 pandemic support his substantial showing….

We decline to accept Mr. Condit’s argument that an individual may qualify as a legally qualified candidate based on advertisements that would not have been aired but for a station’s mistaken belief that the candidate qualified for reasonable access under section 312(a)(7). The Commission has never determined that advertisements are a qualifying activity to make a substantial showing pursuant to 73.1940(f). Further, to hold otherwise would allow Mr. Condit to rely on the broadcast of his ads in order to bootstrap his substantial showing.”

Ultimately the FCC rejected the candidate’s complaint against the stations.

Thus, when dealing with write-in candidates, stations should make inquiries to determine if the candidate is a qualified candidate.  So, if you decide to reject a write in candidates request, make sure of the facts.  As this case demonstrates, a key factor in this determination is whether the candidate is holding campaign activities in the district or geographic are for when the candidate is seeking office.

To see the FCC’s decision, click HERE.

 

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