ELECTION COMPLAINT NOW BEFORE NH. ATTORNEY GENERAL

DID WMUR CHANNEL 9 AND THE NEW HAMPSHIRE UNION LEADER  VIOLATE NEW HAMPSHIRE ELECTION LAW

Attorney General
Civil Bureau
33 Capital Street
Concord, NH 03301
Fax (603) 271-2110

Alleged violation:
Did WMUR Channel 9 and the New Hampshire Union Leader  violate New Hampshire election law by not filing as a Political Committee in the 2006 New Hampshire election?
Background for complaint: Response from FCC complaint  attached and reads in part…. such as the League of Women Voters a political committee under New Hampshire statute  … extended this exemption to include broadcaster-sponsored debates… WMUR Channel 9 and the New Hampshire Union Leader….without the potentially inhibiting effect of being obligated to present every candidate in a campaign…. WMUR-TV acted within the law and, specifically, was not obligated to include you in the debate, or offer you "equal opportunities".

Key to this complaint is “was not obligated to offer you equal opportunities” resulting in advocating  the election of clearly identified participating candidates and/or the defeat of a clearly identified candidate in this case Libertarian Ken Blevens thus influencing the election for congress 2nd district. 

TITLE LXIII
ELECTIONS
CHAPTER 664
POLITICAL EXPENDITURES AND CONTRIBUTIONS
General Provisions
Section 664:2
664:2 Definitions. – As used in this chapter:
  
 I. ""Election'' means any general biennial or special election and political party primary except presidential preference delegate primaries.

II. ""Candidate'' means any person publicly declared as such and for whom votes are sought in an election.

III. ""Political committee'' means any organization of 2 or more persons to influence elections or measures, including the political committee of a political party as defined in paragraph V

XI. ""Independent expenditures'' means expenditures by a person, political committee, or other entity expressly advocating the election or defeat of a clearly identified candidate which are made without cooperation or consultation with any candidate, or any authorized committee or agent of such candidate, and which are not made in concert with, or at the request or suggestion of, any candidate, or any authorized committee or agent of such candidate. As used in this paragraph, ""clearly identified'' means that the name of the candidate involved appears; a photograph or drawing of the candidate appears; or the identity of the candidate is apparent by unambiguous reference

TITLE LXIII
ELECTIONS
CHAPTER 664
POLITICAL EXPENDITURES AND CONTRIBUTIONS
Registration
Section 664:3
    664:3 Registration of Political Committees. –
[Paragraph I effective until January 1, 2007; see also paragraph I set out below.]

 I. Any political committee, except the political committee of a political party, shall register with the secretary of state as provided in this section. The committee shall register with the secretary of state not later than 24 hours after receiving any contribution in excess of $500 or before making any expenditure in excess of $500. The registration shall be accompanied by a fee of $50, which shall be deposited by the secretary of state into the election fund established pursuant to RSA 5:6-d; provided, however, that the political committee of a candidate which registers under this section shall not be required to pay the $50 fee. Each political committee shall designate a treasurer or agent who is a citizen of this state and who is authorized to receive all process and other legal documents on behalf of the political committee, and through whom may be obtained access to all books and records of the political committee. The political committee shall file with the secretary of state a statement of the purpose of the committee and shall indicate whether the committee will be making independent expenditures in support of or in opposition to any candidate including a statement of the name, address, occupation, and principal place of business of its chairperson, treasurer or agent, and other officers.

Response from FCC. RE complaint filed Libertarian Ken Blevens
Mar 12 2006  # 070204-R In part below complete copy attached.

In 1975, the Commission determined that debates arranged by non-broadcast entities, such as the League of Women Voters, would be considered exempt from equal opportunities as on-the-spot coverage of a bona fide news event. In 1983, the Commission extended this exemption to include broadcaster-sponsored debates. These determinations were intended to foster greater coverage of candidate debates without the potentially inhibiting effect of being obligated to present every candidate in a campaign. The appellate courts have ruled in both instances that the Commission had properly exercised its discretion in this area.

Thus, based on the information you have presented to us, it appears that station WMUR-TV acted within the law and, specifically, was not obligated to include you in the debate, or offer you "equal opportunities." In addition, you have not presented any information to support an allegation of discrimination against your campaign.

Federal Communications Commission
445 12th. Street SW.
Washington, DC. 20554

January 25, 2006

Re: Complaint for noncompliance
WMUR TV Channel 9
100 Commercial Street
Manchester, New Hampshire 03301

FCC Commissioners,

Please accept this notice as a formal complaint of noncompliance WMUR TV channel 9 is in violation of FCC rules:
Section 73.1941 [47 CFR §73.1941] Equal Opportunities, and
Section 73.1940 [47 CFR §73.1940] Legally qualified candidates for public office.

The complainant, Libertarian candidate Ken Blevens was not included in any candidate profiles televised after August 15th. 2006. Ken Blevens was a candidate for the general election, confirmed by the Secretary of State of New Hampshire William Gardner. Copy of signed documentation attached exhibit (B) also copy of sample ballot exhibit (C). 

Libertarian Ken Blevens was not included in a one hour debate that included the other two candidates, debate sponsored and televised by the licensee in November 2006. The complainant seeks relief as FCC regulations allow.   

Section 73.1940 [47 CFR §73.1940] Legally qualified candidates for public office.

  (a) A legally qualified candidate for public office is any person who:
(1) Has publicly announced his or her intention to run for nomination or office;
(2) Is qualified under the applicable local, State or Federal law to hold the office for which he or she is a candidate; and
(3) Has met the qualifications set forth in either paragraph (b), (c), (d), or (e) of this section.
(b) A person seeking election to any public office including that of President or Vice President of the United States, or nomination for any public office except that of President or Vice President, by means of a primary, general or special election, shall be considered a legally qualified candidate if, in addition to meeting the criteria set forth in paragraph (a) of this section, that person:
(1) Has qualified for a place on the ballot; or

Libertarian Ken Blevens was a legally qualified candidate in accord with the above description well within the time of the alleged violation.  See attachments exhibits  (A),(B), and (C).
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Section 73.1941 [47 CFR §73.1941 Equal Opportunities.

The areas of complaint are pre-planned discrimination by licensee and do not qualify as exempt under the Equal Opportunities Section 73.1941 [47 CFR §73.1941.

(a) General requirements. Except as other-wise indicated in § 73.1944, no station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such licensee shall have no power of censorship over the material broadcast by any such candidate. Appearance by a legally qualified candidate on any:
(1) Bona fide newscast;
(2) Bona fide news interview;
(3) Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary); or
(4) On-the-spot coverage of bona fide news events (including, but not limited to political conventions and activities incidental thereto) shall not be deemed to be use of broadcasting station. (section 315(a) of the Communications Act.)
(b) Uses. As used in this section and § 73.1942, the term "use" means a candidate appearance (including by voice or picture) that is not exempt under paragraphs 73.1941 (a)(1) through (a)(4) of this section.
(c) Timing of request. A request for equal opportunities must be submitted to the licensee within 1 week of the day on which the first prior use giving rise to the right of equal opportunities occurred: Provided, however, That where the person was not a candidate at the time of such first prior use, he or she shall submit his or her request within 1 week of
the first subsequent use after he or she has become a legally qualified candidate for the office in question.
(d) Burden of proof. A candidate requesting equal opportunities of the licensee or complaining of noncompliance to the Commission shall have the burden of proving that he or she and his or her opponent are legally qualified candidates for the same public office.
  See attached exhibits (A),(B), and (C). 
(e) Discrimination between candidates. In making time available to candidates for public office, no licensee shall make any discrimination between candidates in practices, regulations, facilities, or services for or in connection with the service rendered pursuant to this part, or make or give any preference to any candidate for public office or subject any such candidate to any prejudice or disadvantage; nor shall any licensee make any contract or other agreement which shall have the effect of permitting any legally qualified candidate for any public office to broadcast to the exclusion of other legally qualified candidates for the same public office.
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The licensee WMUR TV should be held to the highest standard regarding equal access by all candidates in their, the licensee’s, use of the public air waves regarding federal elections. This has not been the case regarding Libertarian candidate Ken Blevens.

I would request a response to this formal complaint of noncompliance as per FCC
regulations.

Mr. Kenneth E. Blevens Sr.
2 Valley Road
Bow, New Hampshire 03304-3404
(603) 225-5547

Sincerely yours,

Kenneth E. Blevens Sr.

Copy to:
WMUR TV Channel 9
100 Commercial Street
Manchester, New Hampshire 03301

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