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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules
obtain information about entities sponsoring candidate and issue advertisements.25 The Commission also has applied political file rules to cable television system operators,24 DBS
providers,25 and SDARS licensees,26
finding that the rationale for imposing such requirements on broadcasters similarly applies to these entities.
In 2002, Congress enacted the BCRA, which amended section 315 of the Act.27 The BCRA added new section 315e to codify the Commissions existing political file obligations by requiring that information regarding any request to purchase advertising time that is made on behalf of a legally qualified candidate for public office be placed in the political file.28 In addition, the BCRA expanded the political file requirements to include any request to purchase political advertising time that communicates a message relating to any political matter of national importance. 29 Specifically, section 315e1 of the Act requires licensees to make available for public inspection a complete record of each request for the
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25 Review
of the Commissions Rules Regarding the Main Studio and Local Public Inspection Files of Broadcast Television and Radio Stations, MM
Docket No. 97138, Report and Order, 13 FCC Rcd 15691, 15716, para. 54 1998. In order for the public to verify that licensees have complied with their obligations, the public can visit a particular station or other entitys political file on the Commission-hosted website https
publicfiles.fcc.gov/.
24 Amendment of Part 76 of the Commissions Rules and Regulations Relative to Obligations of Cable Television Systems to Maintain Public Inspection Files and Permit System Inspections, Docket No. 19948, Report and Order, 48 FCC 2d 72, para. 1 1974; 47 CFR 76.1701.
25 Section 335 of the Act imposes public interest obligations on DBS providers and requires the Commission, at a minimum, to apply the access to broadcast time requirement of section 312a7 and the use of facilities requirements of section 315 to DBS providers. 47 U.S.C. 335a. The Commission adopted rules requiring DBS providers to abide by political file obligations similar to those requirements placed on terrestrial broadcasters and cable systems in order to assist in evaluations of compliance with the political programming rules and to enable competing candidates to review other candidates advertising access and rates. DBS Public Interest Obligations Report and Order, 13 FCC Rcd at 23271, para. 41; DBS Public Interest Obligations Sua Sponte ReconsIderation, 19 FCC Rcd at 5561, para. 35; 47 CFR 25.701d.
26 Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, MB Docket No. 14
217, Report and Order, 31 FCC Rcd 526, 53738, paras. 2627 2016 Expansion of Online Public File Obligations; Applications for Consent to the Transfer of Control of Licenses, XM Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio Inc., Transferee, MB Docket No. 0757, Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348, 12415, para. 146 2008;
47 CFR 25.702b.
27 Public Law 107155, 504, 116 Stat. 81 2002
codified at 47 U.S.C. 315e.
28 47 U.S.C. 315e1.
29 Id.

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purchase of broadcast time by or on behalf of a legally qualified candidate and by or on behalf of any other entity whose ad communicates a message relating to any political matter of national importance.
A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that A is made by or on behalf of a legally qualified candidate for public office; or B communicates a message relating to any political matter of national importance, includingi a legally qualified candidate; 30
The BCRA, at section 315e2 of the Act,31 also specifies the kinds of records that must be maintained in political files, and it provides, at section 315e3 of the Act, that the information required by section 315e shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2
years. 32
II. Discussion A. Substantial Showing for Write-In Candidates In order to update our rules to make them consistent with present-day campaign practices, we propose to amend 73.1940f and 76.5q of the Commissions rules to add the use of social media and creation of a campaign website to the list of activities that a broadcast licensee or cable operator may consider in determining whether an individual who is running as a write-in candidate has made a substantial showing of his or her candidacy.33 The proposed amendment would recognize both activities as among the practices that are now commonly associated with political campaigning.
Only those individuals who have achieved the status of legally qualified candidate are entitled to avail themselves of the benefits and privileges bestowed by the political programming rules, including the reasonable access,34
30 The reference to licensee in section 315e1
includes broadcast licensees and cable system operators, SDARS licensees, and DBS service providers engaged in origination programming. See 47 CFR 76.5p, 76.1701, 25.701, 25.702.
31 47 U.S.C. 315e2.
32 Id. Section 315e3. See infra para. 15.
33 47 CFR 73.1940f, 76.5q. As we explain above, the definition of legally qualified candidates for public office set forth in section 73.1940 also applies for purposes of the political programming obligations of DBS providers and SDARS licensees. Id. 25.701b1, 25.702a.
Thus, the analysis and discussion here as well as revisions to the definition in section 73.1940 would apply to these entities as well.
34 47 U.S.C. 312a7; 47 CFR 73.1944.

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equal opportunities,35 and lowest unit charge provisions.36 If seeking election by the write-in method, an 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.37
Questions as to whether an individual who is running as a write-in candidate has made a substantial showing ordinarily arise when such individual approaches a broadcast station or cable system and makes a request to purchase time in furtherance of his or her candidacy or seeks to avail himself or herself of equal opportunities.38
Sections 73.1940f and 76.5q define what it means to make a substantial showing by listing various activities that are commonly associated with political campaigning, including making campaign speeches, distributing campaign literature, issuing press releases, and maintaining a campaign headquarters. 39
At the time our current rules were drafted, social media and campaign websites did not exist. Media coverage of recent campaigns on the national, state, and local levels indicates that the use of social media has become an activity that bona fide candidates routinely use to solicit support, financial contributions, and votes.40
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U.S.C. 315a; 47 CFR 73.1941, 76.205.
U.S.C. 315b; 47 CFR 73.1942, 76.206.
37 Id. Sections 73.1940b2, 76.5q2.
38 47 U.S.C. 315a.
39 47 CFR 73.1940f, 76.5q5. The Media Bureau has long required that an individual claiming to be a legally qualified candidate by the write-in method bears the burden of demonstrating that he or she has made a substantial showing of a bona fide candidacy. See, e.g., Complaint of Michael Stephen Levinson, 87 FCC 2d 433, 435
Broadcast Bur. 1980 The burden is on the potential candidates to establish to the stations from which they seek broadcast time under Section 312 that they have engaged to a substantial degree in activities commonly associated with political campaigning. . Further, the Media Bureau has held that a broadcasters or cable operators determination as to whether a potential write-in candidate has satisfied the substantial showing requirement is entitled to deference, provided the determination is reasonable and made in good faith. See Complaint by Michael Levinson Against Station WXXITV, Rochester, New York, 1 FCC Rcd 1305 MMB 1986 Michael Levinson This agency will review the licensees decision only to determine if it was unreasonable or made in bad faith.; Complaint of Douglas S.
Kraegar Against Radio Station WTLB Utica, New York, 87 FCC 2d 751, 753 Broadcast Bur. 1980 A
licensee has the discretion to make a good faith judgment as to the bona fide qualifications of a write-in candidate.. Cf., CBS, Inc. v. FCC, 453 U.S.
367, 387 1981 If broadcasters take the appropriate factors into account and act reasonably and in good faith, their decisions will be entitled to deference even if the Commissions analysis would have differed in the first instance..
40 See, e.g., Lata Nott, Political Advertising on Social Media Platforms June 26, 2020, https
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