Posted on December 4, 2009 by David Oxenford

The 2010 Political Season Starts Early - Texas Association of Broadcasters Webinar on Political Broadcasting

The 2010 political broadcasting season is almost upon us, with Texas leading the way.  With the first 2010 primaries on March 2, candidates in Texas are already in windows during which they need to file the paperwork to qualify for a place on the primary ballot.  Once they qualify for that ballot spot, they become "legally qualified candidates" in the eyes of the FCC, triggering reasonable access (for Federal candidates) and equal opportunities requirements.  Soon after, broadcast stations in Texas need to start according lowest unit rates to candidates (Federal, state and local) in the primary - such rates to start on January 16.  To help broadcasters prepare for the primary and the rest of the election season, David Oxenford and Bobby Baker, the head of the FCC's Office of Political Programming, conducted a webinar for the Texas Association of Broadcasters on December 2, 2009, originating from the TAB offices in Austin.  The PowerPoint slides used in the presentation is available here.  The Davis Wright Tremaine Political Broadcasting Guide that forms that basis of the TAB's political guide can be found here.

Texas will have an unusually active political season, with a primary election for Governor, where the State's sitting Governor's re-election is being challenged in his own party by one of the state's US Senators.  Races for the Texas State legislature will also likely be a hotbed of activity as the state will be electing the legislators who preside over Congressional redistricting after the 2010 census - a process that was particularly controversial in Texas after the last census.  Given the likely level of activity, broadcasters in Texas need to immediately start planning for the 2010 election and the obligations that it imposes on broadcasters.   And broadcasters in the rest of the country should similarly be preparing, as these same issues will be arising for them very soon, and advertising sold now could well have an impact on their political rates later in 2010 (see information about the webinar that David and Bobby conducted for 13 other state broadcast associations here). 

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Posted on October 15, 2009 by David Oxenford

David Oxenford and FCC's Bobby Baker Prepare Broadcasters for 2010 Elections with Webinar on Political Broadcasting Rules

On November 10, Davis Wright Tremaine's David Oxenford and Bobby Baker, the head of the FCC's Office of Political Broadcasting, conducted a webinar on the FCC's political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable access, equal opportunities, lowest unit charges, and political sponsorship identification and public file rules. 

Seminar participants were provided with Davis Wright Tremaine's Political Broadcasting Guide, available here.  The PowerPoint presentation used in the seminar is available here.

 

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Posted on January 31, 2009 by David Oxenford

Fairness Doctrine Back in the News (Part 1) - What's It all About?

Since the election of President Obama and the Democratic majority in both houses of Congress, the fears of the return of the Fairness Doctrine have been highlighted on talk radio, online, by emails and in conversations throughout the broadcast industry.  Even though President Obama had stated that he was not in favor of its return, and even liberal commentators have gone so far as to make fun of conservatives for suggesting that there might be an attempt to bring it back (see our post on Keith Olbermann lambasting George Will for making such a suggestion).  Yet this week the doctrine was back into the national discussion, coming up in a press conference with White House Press Secretary Robert Gibbs (who joked it off without dismissing the rumors) and in a speech by FCC Commissioner Robert McDowell.  What's all the fuss about anyway?

To really understand the debate, it's important to understand what the Fairness Doctrine is and what it is not.  We've seen many politicians referring to the Fairness Doctrine and the Equal Time Rule in the same sentence, as if they are part and parcel of the same thing. In fact, they are different issues.  Essentially, the Fairness Doctrine simply required that stations provide balanced coverage of controversial issues of public importance.  The Fairness Doctrine never required "equal time" in the sense of strict equality for each side of an issue on a minute for minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was in a station's discretion, and the FCC intervened in only the most egregious cases.

The application of the Fairness Doctrine was never limited to simply news and talk programming - but it also intruded into the commercial sphere.  In the case of advertising about controversial issues, where parties in favor of an issue bought time to push their views, and the opponents could not afford to buy time to respond, the station might actually have to give the opponents time - but it was usually only a third or a quarter as much time as the proponents had bought, not strict equality.   And the station could choose which opponents to give the time to - the viewpoint, not the spokesperson was what counted.

The application of the Doctrine in the context of advertising could have profound effects.  For instance, the use of the Fairness Doctrine as a weapon against smoking advertising - requiring that stations give anti-smoking advocates time to talk about the ill health affects of smoking in a ratio of 1/3 or 1/4 of the advertisements that ran for cigarettes - was one of the reasons that the constitutionality of the legislative ban on smoking ads enacted in 1970 was never challenged by the tobacco companies. 

While enforcement of the Fairness Doctrine was declared unconstitutional by the FCC in the late 1980s, the "equal time" rule is still very much alive - as it stems from a different source in the Communications Act - the Section 315 provisions on the political rules dealing with the treatment by broadcast stations of candidates for public office. Essentially, equal time requires that, if a broadcast station gives one candidate free time, all other candidates can get the same amount of free time. If a candidate buys time on a station, the station must be willing to sell each candidate equal amounts of time. In connection with candidate time, it is strict minute for minute equality - unlike what was once required by the Fairness Doctrine.  See our Political Broadcasting Guide for details of the application of the equal time or "equal opportunities" rule.

Watch for Part 2 - discussing the likelihood of the return of the Doctrine. 
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Posted on October 9, 2008 by David Oxenford

Obama Buys A Half Hour of Time on Broadcast Networks - What FCC Legal Issues are Involved?

Press Reports (such as this one) have stated that the Obama campaign has purchased half-hour blocks of time on at least NBC and CBS to broadcast a political infomercial to be aired at 8 PM Eastern time on October 29.  Some reports indicate that other broadcast and cable networks will also be broadcasting the same program.  Did the networks have to sell him the time?  In fact, they probably did.  Under FCC rules, Federal political candidates have a right of reasonable access to "all classes" of time sold by the station in all dayparts.  This includes a right to program length time, a right that was affirmed by the US Court of Appeals when the networks did not want to sell Jimmy Carter a program length commercial to announce the launch of his reelection bid.  Because of this right, the networks often had to sell Lyndon LaRouche half hour blocks of time to promote his perennial candidacy for President. 

How often do networks (or stations) have to make such time available?  They only have the right to be "reasonable." While what is reasonable has not been defined, the amount of time that will be requested will probably be limited by the cost of such time.  Even were it not limited by cost, the FCC would probably not require that a broadcaster sell such a prime time block more than once or twice during the course of an election - and given the late stage that we are in the current election, it seems unlikely that more than one such request would have to be honored during these last few weeks of the campaign.  Stations do not need to give candidates the exact time that they requested - so the rumored reluctance of Fox to sell this precise time to the Obama campaign because it might conflict with the World Series would probably be reasonable - if they offered him the opportunity to buy a half hour block at some other comparable time.   

Sometimes, networks or stations may not have problems with the sale of such time.  Remember the repeated appearances of Ross Perot, complete with flip charts, during his 1992 campaign?  If a station has not sold half hour blocks of time in that daypart during the election period, there is no lowest unit rate that applies to such sale.  The FCC has said that the station can set a reasonable fee for the time, plus the station can factor in an increase based on the lost revenue of the subsequent time period because of the likely loss of audience due to the tune-out factor that may result from viewers not interested in the political message.

Local stations are under no obligation (other than perhaps their contractual obligations to the network) to air these half hour political commercials.  That may be one of the reasons that we no longer see the LaRouche infomercials, as many local stations decided to preempt those programs.

Equal time of course applies to these purchases.  If a half hour is sold to one candidate, then other candidates need to be able to buy such a block.  For Federal candidates, this does not make much difference, as they have their own reasonable access rights.  But should a station choose to sell a half hour block to one state or local candidate (it would have no reasonable access requirement to do so), it would have to sell blocks to other candidates for the same office who can afford it and who could request it within 7 days of the first candidate's use.

Cable networks have no reasonable access requirement, so they do not need to sell time at all to Federal candidates, much less program length time.  There has also been some academic debate as to whether network cable is subject to the equal time rules (see our post here).  But, given rumbles heard out of the FCC when Fred Thompson started his campaign, cable networks should consider carefully the equal opportunities obligations that could apply in such situations.

All in all, lots of issues for a seemingly simple half hour political commercial.

 
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Posted on July 27, 2008 by David Oxenford

No Candidate, No Fairness Doctrine and No Equal Time

The New York Times ran an article about how certain African-American radio hosts were acting as cheerleaders for the Obama campaign, and contrasting that to past elections where talk radio hosts like Rush Limbaugh gave a boost to Republican candidates on their programs.  How is it that these programs can take political positions without triggering requirements that opposing candidates get equal time?  Under FCC rules, unless a candidate' recognizable voice or image is broadcast by a station, there is no right to equal opportunities.  In the past, until the FCC abolished the Fairness Doctrine by declaring it to be unconstitutional, even without a candidate appearance, the station would have had an obligation to give both sides of a controversial issue of public importance, such as an election, free time to respond to on-air statements by an announcer.  When the doctrine was abolished, stations were free to air pointed programs taking positions on issues, giving rise initially principally to the conservative commentators, and more recently to their more liberal counterparts such as those heard on Air America radio.

The abolition of the Fairness Doctrine also allowed broadcasters to editorialize, even endorsing candidates for political office without having to give the opponent of their favored candidate equal time, just like print media can do. Similarly, a station can take a position on a ballot issue, or on another controversial issue of public importance in their communities without having to provide time to those with opposing viewpoints - allowing stations to fully participate in their communities political life.  Under the Fairness Doctrine, stations even had to give time to those with viewpoints opposed to parties who bought time on a controversial issue if the opponents could not themselves afford to buy time.  The occasional discussion of reviving the Fairness Doctrine ignores these issues.

The one aspect of the Fairness Doctrine that has never been officially abolished is the Zapple Doctrine, a rule that required that supporters of a major-party candidate be able to get time to respond to broadcasts by supporters of the opponent, effectively "quasi-equal opportunities."  The doctrine was argued by supporters of John Kerry in their request for equal time when Sinclair Broadcasting threatened to run the Swift Boat "documentary" during the 2004 Presidential election.  Perhaps fearing that the Zapple Doctrine had continuing validity (or perhaps fearing bad publicity), the film was never run in its entirety, so no decision was released as to whether the Zapple Doctrine had continuing validity after the abolition of the Fairness Doctrine.   Presumably, this policy, even if still valid, would not be applied to talk shows, as the statements of talk show hosts, while certainly biased and pointed in one political direction or another, rarely state outright "go vote for candidate X."  Of course, any application of the Zapple Doctrine, or any reinstatement of the Fairness Doctrine, would no doubt bring about a constitutional challenge to the regulatory scheme.  Given the recent deference of Courts to the First Amendment rights of broadcasters, supporters of the reinstatement of the Fairness Doctrine should get the message. 
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Posted on November 4, 2007 by David Oxenford

Live From New York - It's 20 Seconds of Equal Opportunites?

Joining Fred Thompson and Stephen Colbert (see our stories here and here), Presidential candidate Barack Obama appeared briefly on Saturday Night Live last night and delivered that iconic line - "Live From New York, It's Saturday Night!"  But does his appearance trigger equal opportunities for television stations that aired the program and, if so, would any candidate actually request that time?  Unlike the Thompson and Colbert appearances, Obama was on broadcast television, not cable, so the question of whether equal opportunities applies to cable networks was not implicated.  And, unlike the appearances that candidates have made on talk shows (see our discussion of the broad exemption from equal opportunities given to news interview programs, here), it would be difficult to argue that the Obama appearance was in the context of a news interview program. 

But, would any candidate request the equal opportunities to get 10 or 20 seconds of equal time?  What kind of message could an opposing candidate get out in that limited amount of time (and I must admit that I didn't have my stopwatch working, so it could have been even less time) - and how much more publicity would such a request give to Obama (and Saturday Night Live)?  And such a request could raise the issue of who is a legally qualified candidate - as no registration papers for the Presidential primaries have been filed yet in most states - though the standard for legally qualified candidates for President are not as black and white as they are for other political candidates (see our discussion of this issue in our entry on the short-lived Colbert candidacy).  So, in this case, we can really stayed tuned - at 11:30 eastern time on Saturday night - to see what comes next.....

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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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