Can TV stations refuse to carry advertising?

By Eriq Gardner

That's probably not a question most TV broadcasters are asking themselves in these recessionary times. But it looks like the major networks and some cable stations might see a lawsuit soon over when broadcast stations can refuse to accept ads.

Adbusters Media Foundation, a Canadian anti-consumerism non-profit organization, is hunting for U.S. lawyers to file a lawsuit, saying in a statement that "CBS, NBC, ABC, Fox, MTV and the Food Channel have also repeatedly refused to sell us airtime over the past 15 years and we would like to launch a freedom of speech legal action in the U.S."

Adbusters says it wants to bring the case after having found legal success against the Canadian Broadcasting Corporation in a recent appeals court decision. Adbusters argued that Section 3 of the Canadian Broadcasting Act allowed it to express its opinions in advertising spots under the same terms given to other advertisers. The organization has been fighting this cause (largely unsuccessfully) since 1993, when the CBC refused to air an anti-car ad. It astonished many by winning its appeal last week.

"The court has basically given us permission to go after media corporations and hold them up for scrutiny," said Kalle Lasn, the editor of Adbusters magazine.

The rules in the U.S. are a little different. Networks refuse ads all the time, usually without a challenge. Section 315 of the Communications Act of 1934 requires that broadcasters grant "reasonable access" to airwaves for political speech, at the rate charged to a broadcaster's most favored commercial advertiser. But that rule has typically been applied to candidates for political office, not political groups. 

Adbusters could challenge a broadcaster's right to refuse political issue advertisements, but the Supreme Court gave little room to do this when they addressed the issue in a 1973 decision, CBS v. Democratic National Committee. In that case, the Court ruled that broadcasters can refuse to sell TV time for discussion of controversial political issues like the Vietnam War, though it left some wiggle room for federal regulators if they one day wanted to impose that condition on broadcasters.

Interestingly, in recent months, since the election of Barack Obama, conservatives have feared the return of the "Fairness Doctrine," something that could compel broadcasters to take advertising they don't like.

It's unclear what legal path Adbusters might take to get its ads on TV, but since telecommunications law tends to change rather rapidly, it's worth keeping an eye on.