As we enter the 2010 election season, questions are beginning to arise about broadcast station on-air employees who decide to run for political office, and what a station needs to do about such employees to avoid issues under the FCC political broadcasting rules. For instance, in Arizona, talk show host (and former Congressman) JD Hayworth recently left his radio program and announced that he was planning to contest John McCain's reelection by challenging him in the Republican primary. On a local level throughout the country, on-air station employees are deciding to throw their hats into the political ring. And, whether that ring is a Federal office like the one that Mr. Hayworth is seeking, or a state or local elective position, whether it be Governor or member of the Board of Education or Water Commission, an announcer-candidate can mean equal time obligations under Section 315 of the Communications Act and under FCC rules for a broadcast station.
We wrote about this issue last election cycle,here, and the rules have not changed. Once a candidate becomes "legally qualified" (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates. What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air. So if your meteorologist decides to run for the city council, and he appears on the 6 o'clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message. So what is a station to do when an on-air employee decides to run for office?
In some cases, stations do nothing, and no one seems to mind. I've known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council, and no opposing candidate ever bothered to ask for equal opportunities - either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season. Even in national races, that calculus often seems to be the case. As we wrote here and here, in the last Presidential campaign, we had candidates appearing on Saturday Night Live or on Law and Order (candidate Fred Thompson), and no opposing candidate asked for equal time. The jokes and negative stories that would have no doubt followed from such a claim (can you imagine what a target for jokes a candidate would become if they claimed equal opportunities to deliver a stale campaign message because Sarah Palin or Barack Obama appeared on SNL and triggered equal opportunities?) simply weren't worth the few minutes that the candidate would have received.
But sometimes candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out. Thus, many stations play it safe and don't allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified to even avoid the appearance of unfairness). But there are other alternatives that can be pursued that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air. These include:
- Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race
- Allowing the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
Another alternative is to give the on-air employee/candidate other duties that don't trigger equal opportunities. If the candidate's voice or likeness does not appear on-air, then there is no equal opportunities right. Right now, the political rules do not apply to Internet appearances, so website work is an alternative. Also, a move to a sister station with a service area that does not reach the district in which the candidate is running is another alternative.
Finally, as we are still in the primary elections in most states (save Illinois where primaries were held earlier this week), remember that equal opportunities only applies to the opponents of the candidates. In the primary, the opponents are only those candidates who are running for the nomination of the same party. Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes. The Democrats don't get equal time until the nominees of each party have been selected.
We'll write more about equal opportunities in the coming weeks. For more information now, check out the Davis Wright Tremaine Political Broadcasting Guide, here.