Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.
At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.
The employee candidate, for instance, can still give rise to equal time issues. An on-air employee of the station who decides to run for political office (whether it be a local office like the school board or town council or some bigger political office), creates an obligation for the station to give equal time to every opposing candidate, if the opposing candidate asks for equal time within 7 days of the candidate’s on-air appearance – even when the employee-candidate does not mention his political race. We’ve written about this issue before, and how stations are faced with the dilemma of either risking having to give equal time for opposing candidates (who can make a political pitch even if the employee-candidate was just doing the weather or play-by-play on a sportscast), having to take the candidate off the air, or having to work out a deal with opposing candidates to waive their equal time rights. And this issue, like all equal opportunities issues, arises once a candidate is legally qualified, not just in the 45 and 60 day political windows.
Political debates have been considered, in recent years, as being exempt from equal opportunities as on-the-spot coverage of a bona fide news event, even if the station itself is organizing the debate. But, as we have written before (here and here), the decision as to which candidates to include must be made based on some defined standards to judge the newsworthiness of candidates, basing the decision on meeting some pre-defined standing in the polls or some other defined criteria other than party affiliation – and can’t be used to exclude independent or minor party candidates just because the station only wants to include the major parties. Issues about what to do when one candidate decides not to show up also present interesting issues (see our article here).
But, for this political season, the equal opportunities issue that may give rise to the most issues for stations is in the scheduling of candidate advertising. With the spending in the upcoming election expected to break all previous records and where, in “battleground states”, it seems like every ad break for the last several months has already been taken up by political advertising, stations must be careful about overscheduling political advertising for one side or the other. As a candidate has the right to match his or her opponent’s advertising schedule if they request the time within 7 days, if a station lets one candidate in a race buy too much time in the weeks immediately preceding an election, when an opposing candidate gets a last minute surge of money and comes to the station to match the first candidate’s schedule, the station may have to preempt other advertisers (or even programs), or risk contractual issues by trying to void the agreement with the first candidate, in order to meet its equal time obligations. So sell candidate schedules with an eye toward making sure that you have availability to schedule equal time spots from opposing candidates in the waning days of an election.
As we said with lowest unit rates, this summary just scratches the surface on equal time issues – as in practice there are many nuances of these rules that make their application more complicated than they seem (and, as set forth above, they are already pretty complicated). Watch for our next article on “reasonable access” – how much time stations must provide to political candidates.