Barack Obama and the Daily Show, Hillary Clinton and David Letterman, Fred Thompson and Law and Order - What About Equal Time?
Every day, on almost every television channel, it seems as if you can find a presidential candidate making an appearance - and it's not just on the Sunday morning political interview programs. Last week, it was Hillary Clinton on the David Letterman Show (where her husband is scheduled to appear this week). In the last two weeks, both Barack Obama and John McCain have made the pilgrimage to talk with John Stewart on the Daily Show. Mike Huckabee seems to be a fixture on the Colbert Report. And at the end of last week, TNT reportedly stated that, candidacy or not, it would continue to run episodes of Law and Order featuring Fred Thompson. With all of these appearances of candidates on television, one might wonder if the FCC's Equal Opportunities (a/k/a the "Equal Time") rules FCC have been repealed. In fact, it appears that all of these appearances are within exemptions to, or are otherwise not covered by, the Equal Opportunities Doctrine of the FCC.
That doctrine requires a broadcaster or, in some instances, a cable system, to provide equal opportunities to competing candidates to appear on the air. In the most common situation, if one candidate buys commercial time on a broadcast station, the station must treat other candidates in the same race equally, and allow them to buy equal amounts of time on the station at equivalent rates to those paid by the first candidate. In a candidate is given free time, all his or her opponents are entitled to the same amount of free time, if they request it within seven days of the first candidate's appearance. However, the statute provides many exemptions, and all of these recent appearances appear to fall within these exemptions.
Most of the talk show appearances are covered by what's known as the "bona fide news exemption" exception. If a candidate's appearance is during a bona fide news or news interview program, that appearance is not subject to equal opportunities. That exception was adopted to permit broadcasters to cover the news and use their journalistic discretion to select candidates to feature in those programs without having to give equal treatment to every other candidate for the same office. Over time, as the general public has received their "news" in more and more diverse places, the bona fide news exemption exception has broadened greatly to cover virtually every time of interview program where the station retains the ultimate control over the questions asked during the course of the program.
This broadening started with exceptions granted to daytime talk programs like Donahue, Sally Jessy Raphael, and Geraldo, who were found to cover news topics from time to time along with softer issues, and thus the FCC determined that they should be able to have guests who were political candidates on their programs without opening them up to having to give free time to every candidate, including fringe candidates, running for the same office (and, under the equal time laws, that time would be free and uncensored - so if the FCC had found differently, a competing candidate would not have been restricted to the confines of the interview program, but could have aired his own standard stump speech). Morning news programs like Today and Good Morning America were also specifically given rulings that they were exempt, as were specialty programs like Entertainment Tonight and Biography on A & E.
Even radio programs were found to be bona fide news interview programs - including both Howard Stern and Imus. Thus, as time went on, the FCC made clear that any interview program that is regularly scheduled, and which at least sometimes features discussions of topical issues or political matters, where the station picks the guest using the station's discretion, which is not exercised simply to promote one campaign (for instance, if a station interviewed only a single candidate in a contested race every day without ever talking to an opponent, then the FCC might find the program to not be a "bona fide" news interview program), and where the station retains some control over the interview topics, the program will be exempt - and the FCC does not even have to be asked in advance. Practically, this will cover most station programming where interviews are aired.
This doesn't cover scripted programming - so one wonders how TNT can make the decision to keep right on airing Law and Order with Fred Thompson, once he declares his candidacy, as expected later this week. Certainly, NBC made the decision to stop airing any reruns in which he is featured once he declares that he is a candidate. But the law, when it was amended to cover cable 30 years ago, covered only "local origination cablecasting." That has been taken to mean that cable network programming is not covered, though there has been no explicit FCC ruling on that issue, and in the past most cable networks have been careful to remove possible offending programs from their line-up when actor-candidates were running so as to not provoke an FCC ruling. Thus, Bedtime for Bonzo was largely absent from cable when Ronald Reagan was running, no Terminator movies were aired when Arnold Schwarzenegger was campaigning in California, and even reruns of the Love Boat were pulled when Fred Grandy was campaigning for his Congressional seat in Iowa. But TNT seems to have decided to take the law at its word, and decided that it does not apply to networks, and will continue to run Law and Order during the campaign.
So, with this hotly contested election already well underway, watch for more and more candidates - making their appearance on a radio or TV near you.....