Posted on February 4, 2010 by David Oxenford

Leaving the Air to Run For Office - What to Do With The Broadcaster Who Becomes a Candidate

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. 
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Posted on October 20, 2007 by David Oxenford

Stephen Colbert, Equal Opportunities and the Case of the Candidate Host

2007 - the year of the television actor who decides to become a Presidential candidate.  We've already written about the issues under the FCC's political broadcasting rules, particularly the equal opportunity doctrine, with the candidacy of Law and Order's Fred Thompson, resulting in NBC replacing him on as the on-air District Attorney of New York City.  Now, Comedy Central television host Stephen Colbert has announced his candidacy for the nomination for President - albeit only as a native son in his home state of South Carolina.  While some cynical observers might conclude that the Colbert action is only a bid to get publicity and press for his new book (just think of all the publicity that he's getting from this blog entry - Stephen, we want our commission on all the books you sell because of the promotion you get here), his candidacy does present a useful illustration of a number of issues that arise for broadcasters and other FCC regulatees subject to the political broadcasting rules - particularly issues that arise when a station on-air employee runs for political office.  Questions that are raised include when a employee becomes a legally qualified candidate, does the candidate's appearance on a bona fide news interview program exempt the station from equal opportunities obligations, and the amount and kind of time that is due to opposing candidates should they request equal time.

First, the question of a "legally qualified candidate."  This is important as the on-air appearance of a planned candidate does not give rise to equal time until that individual becomes a "legally qualified candidate."  For most elections, the candidate becomes legally qualified when they file the necessary papers to qualify for a place on the ballot for the election in which they plan to run, or if they actively pursue an write-in candidacy for an office for which they are eligible.  Until they are legally qualified, no matter how much they say they are running, their appearances do not give rise to equal opportunities.  One example of this occurred years ago, when Howard Stern was campaigning for Governor of New York on his morning radio program in New York City.  No equal opportunity issues arose as Stern never filed the required papers to qualify for a place on the ballot with the New York Secretary of State.

However, in Presidential elections, in addition to the usual manner of qualification, a candidate who is qualified in 10 states is deemed qualified in all states.  In addition, a Presidential candidate can become "legally qualified" for purposes of the FCC rules merely by making a substantial showing of a bona fide candidacy (e.g. having a campaign headquarters, making speeches, distributing campaign literature,  and issuing press releases).  So, if Mr. Colbert is out in South Carolina holding campaign rallies and distributing literature in support of his candidacy, he could be deemed a legally qualified candidate before filing the necessary papers (though his recent statement on NPR's Wait Wait Don't Tell Me that his road to the Presidency ends in South Carolina may undercut the bona fides of his campaign.  Perhaps that admission will be retracted when he appears on Meet the Press tomorrow).  But, for the other Presidential candidates who are running in all states, participating in debates and engaging in other campaign activities, they are probably legally qualified throughout the entire country now, even though the filing of the papers for a place on the New Hampshire ballot, the first primary, are not due until early November.

 

Once a candidate is legally qualified, their appearance on the air, outside of a bona fide news or news interview program, requires that opposing candidates be given equal time if they request it.  And, if the first candidate did not pay for the time, the opposing candidate gets the time for free.  The opposing candidate can air any campaign message he or she wishes with the time that they receive.  For instance, when Bill Clinton played his saxophone on the Arsenio Hall television program in 1992, George Bush could have requested equal time, and he could have run a campaign advertisement for the minute or two of time used by the Clinton appearance.  Bush would not have had to play any musical instrument.

While the definition of a bona fide news program has grown in recent years (see our post, here), the employee-candidate still poses problems for broadcasters.  The appearance of a candidate who is being interviewed on a bona fide new interview program is not subject to equal time obligations, as his appearance is effectively treated as a newsworthy event that a station can carry in its employee's reasonable journalistic discretion.  But if a station's employee, who is conducting the interview (or reading the news, doing the weather, being a host or disc jockey on a radio program, or calling play by play of a football game) becomes a candidate for public office (Federal, state or local), then the employee's political opponents are entitled to equal opportunities, if they request those opportunities within 7 days of the appearance.  So, for an employee-candidate who is on the air every day, the opponent can go back 7 days and be entitled to equal time for the amount of time that the candidate's recognizable voice or image was broadcast.  So if Mr. Colbert's program aired on a broadcast station, and he became a legally qualified candidate, and one of his opponents asked for time, they could get 20 minutes or so of free time for each of his shows (when you exclude commercials, and perhaps excluding time when he interviews himself as a candidate).  In the 1968 election, I believe that CBS viewed the threat of equal time so seriously that comedian Pat Paulsen was taken off the air when he got too serious with his campaign for President and actually got on the ballot in New Hampshire.

Of course, the Colbert Report does not appear on broadcast television, and there is language in the law that applies equal opportunities only to local origination cablecasting.  Some read this provision to exclude network cable programs (witness the continued airing of Law and Order on cable).  However, that issue has never been definitively decided by the FCC.  And, even were the FCC to find that network cable did have equal time obligations, any candidate demanding equal time would surely face the wrath of the Colbert Nation.  But it is funny (though perhaps not in the way Mr. Colbert intended it) how instructive one candidacy can be.
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