FCC Record, Volume 1, No. 7, Pages 1267 to 1368, December 22, 1986 - January 2, 1987 Page: 1,307
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Federal Communications Commission Record
a write-in candidate, if his name were removed from the
ballot. However, Levinson has presented neither the station
nor the Commission with evidence of his continuing
and active engagement "to a substantial degree in activities
commonly associated with political campaigning."
Thus, his evidence was not such that a reasonable licensee
could conclude that he was a "legally qualified candidate."
Flory, supra, is distinguishable from the instant
case, because Levinson has demonstrated no continuing
substantial campaign activities since his September 8 announcement.
See Flory, supra, at 131.
17. In sum, the materials submitted by Levinson to
support his contention that he is "engaged to a substantial
degree in activities commonly associated with political
campaigning" simply fail to convince us that WXXI-TV
was unreasonable in determining that he was not a bona
fide, legally qualified candidate for U.S. Congress. Furthermore,
Levinson's materials, including his allegations
that the station: (1) failed to mail its September 19 response
promptly; (2) failed to return each of the letters
from his campaign workers; and (3) erroneously stated
that he was not and had never been "on the ballot." do
not show that the station acted in bad faith. On the
contrary, WXXI-TV's correspondence with Levinson evidences
the station's repeated efforts to allow him to make
a "substantial showing." Moreover, in numerous phone
calls to the Commission he stated that he would furnish
the station and the Commission with further information
about his campaign activities. These promises continued
until October 31, but no such information was furnished.
18. Accordingly, no further action is warranted on
Levinson's complaint. Due to the proximity of the election,
Levinson was orally advised of this ruling when he
telephoned the Commission on the afternoon of Friday,
October 31, 1986.
19. Staff action is taken here under delegated authority.
Application for Review by the full Commission may be
requested within thirty days of the date of public notice of
this action (see Commission Rule 1.4(b) 147 C.F.R. Section
1.4(b)]) by writing the Secretary, Federal Communications
Commission, Washington, D.C. 20554, stating
the factors warranting consideration and, if mailed,
should be sent by certified mail. Copies must be sent to
the parties to the complaint. See Commission Rule 1.115
(47 C.F.R. Section 1.115).
FEDERAL COMMUNICATIONS COMMISSION
Milton 0. Gross, Chief
Fairness/Political Programming Branch
Mass Media Bureau
X This announcement allegedly was aired September 8 on the
12:00 noon and 6:00 p.m. newscasts of television station WOKR,
2 According to its July 24, 1986, ruling, a copy of which was
submitted by Levinson on September 29, 1986, the Board of
Elections had previously upheld a challenge to Levinson's petition
to be on the primary ballot as a Republican candidate for
3 Levinson indicates that these cards do not reference his
write-in status, as he believed that his ballot attempt would be
successful. He said he would update this information. He furnished
no evidence that this was done.
4 In addition, Levinson submitted letters from several volunteer
campaign workers who indicated that they distributed
copies of the "campaign literature" referred to herein between
September 8 and September 30. See footnote 8, infra.
5 Levinson also includes a photocopy of Section 6-154 of the
New York Statutes which, he claims, states that "independent
nominating petitions are presumptivelyvalid if in proper form,"
and argues that, therefore, WXXI-TV was incorrect when it
claimed that he was not officially on the ballot when his
request was made. We disagree. In an October 27, 1986, telephone
conversation with a Commission staff member, Mr.
Thomas Wallace, Executive Director of the New York State
Board of Elections, stated that the "letters of acknowledgement"
sent to Levinson on July 11 and August 21 were merely to
indicate receipt of the pertinent petitions, and did not constitute
an indication that Levinson was ever on the ballot.
6 In Flory, the court held that a candidate who has not yet
qualified for a ballot position under state election laws is nevertheless
entitled to status as a "legally qualified candidate" if he
or she: (1) is otherwise eligible under then Sections 73.120(a)
and 73.657(a); and (2) commits to seeking election by write-in
method in the subsequent election. 528 F.2d at 130.
7 Section 312(a)(7) reads:
(a) The Commission may revoke any station license or
construction permit (7)
for willful or repeated failure to allow reasonable access to
or to permit purchase of reasonable amounts of time for the use
of a broadcasting station by a legally qualified candidate for
Federal elective office on behalf of his candidacy.
Noncommercial educational stations are not exempt from this
requirement. Commission Policy in Enforcing Section 312 (a )(7)
of the Communications Act, 68 FCC 2d 1079, 1092 (1978).
8 In these letters: (1) John Staley (September 12) stated that
he is "distributing Rochester newspaper articles"; (2) the author
(signature illegible) (September 14) is "passing out literature"
in the district and plans on "working in Levinson's campaign
for Congress until November 4th"; (3) James Alva (September
15) had passed around petitions and distributed campaign literature,
and is "committed to supporting Mr. Levinson with
additional work in passing out literature and spreading his
platform . . ."; (4) Kevin Stansfield (September 15) is "helping
to lay out the eight-page platform for national reform", five
thousand copies of which he and his group of helpers will "put
into the shopping bags of registered voters"; (5) Melvin Smith
(September 15) "will be passing out literature . . . every day
until the November election"; (6) Edward Snyder (September
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United States. Federal Communications Commission. FCC Record, Volume 1, No. 7, Pages 1267 to 1368, December 22, 1986 - January 2, 1987, book, January 1987; Washington D.C.. (digital.library.unt.edu/ark:/67531/metadc1579/m1/46/: accessed May 28, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.