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So that means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. And, if the time is sold during the 45 days before a primary, or the 60 days before the general election, the time must be sold to the candidate at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station air personality decides to run for state and local office (anything from the school board or local planning commission to governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing applicants – for free, in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our article about this choice here.

Two weeks ago, I spoke on FCC legal issues to the Oklahoma Association of Broadcasters at their annual convention, and was asked a question about this issue and the one type of public office to which the rules do not apply – election to offices in Native American tribes. The Commission has stated that these elections are exempt from the FCC’s political advertising rules, but for all other state and local elections, the rules must be applied. So don’t forget about the political advertising rules – even though this is an odd numbered year!

This situation also highlights the problems that stations can have when on-air employees decide to enter politics. We've written about options that stations have in that situation, but, if the opposing candidates are numerous or unwilling to waive their equal opportunities claims in exchange for some limited amount of airtime, then the stations are left with the choices of either having to take the employee-candidate off the air, or to provide minute-for-minute equal time to the opposing candidates – for free, as the employee-candidate did not pay for access to the airwaves. And this equal time requirement applies even if the employee-candidate never mentions his or her candidacy on the air.

Even though this is a political off-year, there are a significant number of state and local races that will occur, including a number of high-profile mayoral races in big cities across the country, governor's races in New Jersey and Virginia, and vacancies in a number of US Senate seats. Thus, stations need to remember their political broadcasting obligations – just when many may have thought that they could relax after this past November's elections.

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.

An opinion released several weeks ago by the US Court of Appeals for the First Circuit sheds some light on whether statements made in the context of a third party political ad are defamatory.  The ad at issue there was a negative campaign ad against a candidate for the Maine State Senate.  The ad stated that the candidate, as a town selectman (equivalent to city council) "voted to cancel the $10,000 fireworks celebration for the Fourth of July," while also "[giving] 10,000 taxpayer dollars to a political organization."  The ad then stated that "It's wrong for [the candidate] to give your money to a political organization, and it was wrong for [him] to cancel your 4th of July celebration."

The candidate claimed that the word "wrong" implied that he had committed a crime and that the words "political organization" implied that it was the candidate's own organization, therefore implying that he had stolen town funds for his own organization.  The court disagreed and granted the defendant's motion to dismiss.  Why?

First, the court held that a political candidate is "public" figure.  In order for a statement to be defamatory against a public figure, the statement must be made with "actual malice," which means that it must be made with knowledge of falsity or with "reckless disregard for the truth."  The court held that this standard could not be met here because the word "wrong" does not necessarily mean that the candidate broke the law.  Although the court did not elaborate on this, the word "wrong" is often used to convey the speaker's opinion rather than as a statement of fact.  In other words, in a political ad, one party often believes that what the other party does is "wrong," even though it is neither criminal nor immoral. A statement presented as an opinion generally is not defamatory.

The court also refused to draw the inference that the "political organization" referred to in the ad was the candidate's own organization.  In essence, the entire ad was an opinion that the candidate's use of $10,000 would have been better spent on fireworks rather than on a political organization of any kind, and there is nothing defamatory about that allegation/opinion.

In this particular case, the court also found that the allegations were true, which is an absolute defense to defamation, as noted above.  However, for purposes of ruling on the motion to dismiss, the court viewed the allegations in the most favorable light to the plaintiff (the non-dismissing party) and still found that the statements were not defamatory, even if untrue.

The lesson to be learned is that political speech is subject to strong First Amendment protection.  Most of the negative ads do not need to be taken down, even if you get a cease and desist letter.  You may need to be concerned if the statements made are potentially defamatory, charging that a candidate has committed a crime or an immoral or unethical act.  And you should request substantiation of any potentially defamatory claims made in the ad.  But merely stating that a candidate did something "wrong" does not necessarily imply criminality or unethical behavior.  It may simply be "wrong" in the eyes of the advertiser, and that is a mere opinion.

Of course, if there is any question about the content of a political ad, you should consult with legal counsel.  This is one area where it is better to be safe than sorry.

The decision did not reach the question of whether Mr. Terry could be a qualified candidate in other states, including states where his name does appear on the ballot for the Democratic nomination (including Missouri and Oklahoma).    The FCC's decision cites a letter from the Democratic National Committee that concludes that Mr. Terry cannot be considered a bona fide Democratic candidate, as he had not shown that he had a history of participation in the Democratic Party, was dedicated to the party's success and would participate in the Democratic Convention in good faith.  But the FCC decision does not specifically state that the DNC letter ends the question of whether he is a bona fide candidate for the Democratic nomination.  In a case in the late 1990s involving Lyndon LaRouche, the FCC stated that the determination of a political party as to who was a qualified candidate for its nomination was binding on the FCC and would not be second-guessed.  Some have suggested that the LaRouche decision gives stations the ability to conclude based on the DNC letter that Mr. Terry is not a bona fide candidate, even where he is on the ballot.  But the LaRouche case arose after all the primaries were done, and the only debate was whether the candidate could run ads about the party convention.  The decision did not have to address the issue of what happens when a candidate is actually on the primary ballot in a state and demands time before the primary. As the FCC rules state that a place on the ballot is enough to be a legally qualified candidate, the FCC has left stations in states where Mr Terry is on the ballot in a precarious situation - can they rely on the Democratic Party letter and deny him advertising time, or simply because he paid his filing fee and secured a place on the ballot, is he then entitled to buy time?  Certainly, the latter option opens up the campaign process to all sorts of shenanigans, as anyone could pay the filing fee in states where there are not complicated ballot qualification processes, and then be able to demand time on broadcast stations - at the cheapest rates that such stations sell advertising time during the lowest unit rate windows 45 days before an election, and rely on the no censorship rule to advertise almost anything that they wanted to - bypassing many station's standards for advertising content.

The second part of the decision, that stations need not sell advertising time to candidates in the Super Bowl, is much more straightforward.  Stations have always known that candidates do not have the right to demand access to any specific ad placement, as long as the station offers the Federal candidate "reasonable" access.  The Commission went further here, relying on one of its policy statements on the political broadcasting rules that said that stations did not need to sell time to candidates in one-time programs of special significance where the stations would be unlikely to be able to provide equal opportunities to opposing candidates as required by law.  As the Super Bowl is the highest rated program in the TV year, were the station to sell some of its limited advertising inventory to Mr. Terry, how could it offer equal opportunities to President Obama's campaign, which would have 7 days to make an equal time demand? As the Super Bowl is unique, it would simply be impossible to offer comparable time to opposing candidates after-the-fact, as required by law.  This decision makes perfect sense as the Super Bowl's limited local advertising inventory provides all sorts of problems for stations - even without having to worry about political ads and the potential for equal opportunities.

This decision may not bring the Terry story to an end, as we'll have to see if more time is demanded on other stations in other states.  But it does illustrate some of the many practical and philosophical questions about the implementation and obligations put on stations by Sections 312 and 315 of the Communications Act.  First Amendment issues abound with forcing stations to sell time to candidates with whom they disagree and whose messages may be upsetting to many viewers. We'll see if these broader issues are further discussed as the still-young campaign season progresses. 

While this action has been greeted by some as confirmation that we will not see the Fairness Doctrine revived by the Commission, that jubilation seems a little unwarranted.  If there was a future FCC that decided that they wanted to impose some degree of Fairness obligations on broadcasters, they still would have ways of doing so.  After all, broadcasters are subject to an overall obligation to operate in the public interest, a standard that has, over the years, changed as Commissions change their interpretation of what it means.  As we've written before, some would like to put more teeth into the standard, which could include some Fairness-like requirements.  Section 315 of the Communications Act, dealing with equal opportunities for political candidates, itself has language that implies that there is some sort of Fairness obligation of broadcasters, at least in connection with their news coverage:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

Thus, just because the Fairness Doctrine has been repealed, one cannot conclude that the FCC will never meddle in the speech of broadcasters.  These debates over what is permiited and what should be restricted on the air have gone on as long as there have been broadcasters, and they will not end with yesterday's announcement.

What will be most interesting about the text of this action will be seeing what the other 82 rules are that are being repealed.  The Obama administration has recently announced a push to decrease Federal regulation as a way to stimulate economic growth.  There are plenty of broadcast rules that impose monetary obligations on broadcasters for little public interest benefit (e.g.the public file rule), that have been the subject of FCC consideration as to whether they are still justified.  Action on changing some of these rules would bring real relief to broadcasters - far more than the symbolic repeal of a Doctrine not enforced in 25 years. 

For a broadcasters to be forced to honor a request for equal opportunities (or equal time as many call it), there must be a "legally qualified candidate" to make the request.  We'll look at that issue in a moment.  But even more fundamentally, there must be a legally qualified candidate who makes the appearance that triggers the requests for equal opportunity.  And, right now, Trump is not a legally qualified candidate, and one wonders whether he ever will be.  Years ago, when Howard Stern was the King of New York radio, he for weeks claimed that he was running for Governor of New York - and started aggressively campaigning for the job on his morning radio show.  Why did the opposing candidates (who were at the time, I believe, Mario Cuomo and George Pataki), not get equal time on the radio stations on which the Stern program was broadcast?  Because he never became a legally qualified candidate.  He talked on and on about running but, when the time came to file the necessary papers to qualify for a place on the ballot, he passed, and dropped his campaign.  That same ting seemed to happen with that aforementioned legal scholar, Mr. Colbert, and his intent to run in the South Carolina presidential primary in 2008 (see our post here).

In addition to Trump not being a legally qualified candidate, there may well be no other candidates yet ready to claim any equal opportunity rights, as there currently are no other declared candidates, who have filed papers with the FEC declaring their candidacy, to qualify as official candidates. There has been lots of discussion about exploratory campaign committees - but few if any real candidates.  What about the President you might ask?  Good question - but right now, we are, at most, in the run up to the primaries - not to the general election.  In the primaries, Mr Trump (who has indicated interest in running for the Republican nomination) would be opposed only by Republicans - not by the President.  So only the Republican candidates could request equal time during the primary season.

And even if some candidate officially declares between now and the last episode of The Apprentice, there still might not be an obligation.  Again, we are focused on equal time to candidates before a particular election.  And right now there is not a single election looming - but instead a series of primaries, each with their own filing dates and qualification requirements.  In fact, with many of the "primaries" actually being in the form of caucuses (which are subject to political rules), there might not even be formal, legal ways to register for a "place on the ballot" so to speak.  So it may come down to a subjective decision as to whether a candidate has done enough in a state to be considered a bona fide candidate.  While, once a Presidential candidate becomes legally qualified in 10 states, FCC rules deem him qualified for purposes of equal time, reasonable access and lowest unit rates, there is not much law on how a candidate gets to be qualified in some of these states - and it is likely the simple declaration that "I'm running" doesn't do it.  Usually some form of petition and filing fee may be necessary - which may or may not be accomplished at the same time as the declaration of candidacy.  If there are no formal papers to be filed, an active election effort in the state would be required to establish a candidacy - and it's unlikely that any quasi-candidate has done enough in any state (or certainly in 10 states) to meet that standard.

And what did the Hollywood Reporter blog get wrong?  They quoted me as saying that there were no cases deciding that a candidate appearance in an entertainment program triggered equal opportunities, when there have been such cases.  In fact, the FCC tried to change the rules to eliminate the need to offer equal time in such situations, soon after stations were forced to stop running Bedtime for Bonzo during the Reagan campaigns.  But the FCC backed down from that change when faced with a challenge filed in the Court of Appeals arguing that Section 315 of the Communications Act exempted from equal opportunities only very specific classes of broadcast programs (essentially news and news interview programs, an exemption that we've written much about, see, for instance, our post here), and entertainment programs were not among the exemptions.  So obviously there are cases that hold that candidate appearances in entertainment programs are covered by equal opportunities (including cases about comedian Pat Paulsen, who also became a legally qualified candidate, and the movie Storm Warning starring Ronald Reagan).  Perhaps they confused it with another issue which does remain unresolved -  which we also wrote about in connection with the Fred Thompson/Law and Order situation, whether cable television networks are covered by the rule, or only local origination by particular cable systems (certain FCC officials had said, at the time of the Fred Thompson situation, that the FCC was ready to extend the rule to cable networks, but no formal ruling to that effect has been issued).

All in all, the Donald appears to be able to go on making all the noise that he wants about running for President - perhaps in hope that it will not be just the Gary Busey fans who'll be watching the final episode of the Apprentice, but the political junkies as well.  Anything to drive ratings or the birth of the next political superstar?  Here, the old maxim "stay tuned" is quite appropriate.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Already, in many contested Congressional districts around the country, there are ad being run sponsored by various political action committees and other interest groups -targeting potential candidates for the House of Representatives or the Senate. Sometimes the ads are subtle digs at the positions that a potential candidate is taking ("call Congressman X and tell him that he should stop voting for bills that are bankrupting the country"), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don't directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  And sometimes, as reportedly happened just recently, they ask callers to tell a Congressman to vote in a particular way on an issue where he has already voted in the way the ad requests.  In any case, if the ads are dealing with Federal candidates or other issues being considered by the US House of Representatives or Senate, then they are Federal issue ads on which the station must maintain full public file information, similar to that which is kept for any candidate advertising - the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our post here on the public file requirements for Federal issue ads).

Finally, with the 2012 election fast approaching, stations should start planing for the election season.  Some stations are no doubt already selling long-term contracts that will still be in effect during the primary season.  Stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value - rather than simply booking them as having a flat rate throughout the entire year - including the pre-election lowest unit rate periods. As we wrote in our Political Broadcasting Guide, the FCC allows you, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods.  Consult with your attorney to make sure that you properly apply this process, but it could save you money in the long term.  For other things that you should be thinking about in preparation for the election, check out our Political Broadcasting Guide. 

Most of the other rules governing political broadcasting apply to state candidates as well as Federal candidates.  The requirement that candidate be charged lowest unit rates for the class of advertising time that the candidate purchases in the 60 days before the general election applies with equal force to state and local candidates as it does to Federal candidates.  And equal opportunities requires that a station sell comparable amounts of advertising time to competing candidates, or give free time to one candidate if their opponent appeared on a non-exempt program on the station, also applies to state and local as well as Federal candidates.  Public inspection file obligations - that a station put in its political file information about the amount of political time purchased by a candidate, the class of time sold, the price of the spots, and the schedule that will run - apply to state and local as well as to Federal candidates.

The principal political rule that does not apply to state and local candidates is the "reasonable access" provisions of the rules.  That is to say that stations need not sell time to candidate for all local races.  They can pick and choose in which races they will sell time, or they can restrict candidates for a specific race to buying time in particular dayparts in which the station has more inventory.  But once the decision to sell to candidate for a particular office is made, the other rules mentioned above apply.

More information about the political advertising rules can be found in the Davis Wright Tremaine Political Broadcasting Guide.

Because of the need to be legally qualified before equal opportunities attach, on-air employees can often keep right on with their jobs until the last moment when they decide to run for office - or decide not to.  Remember the campaign many years ago that Howard Stern conducted for Governor of New York from his on-air studio, only to announce at the last moment that he wasn't running - just before the papers were due to be filed by which he would have become legally qualified.  Or Stephen Colbert's decision to run for President in the South Carolina primary, which never happened (see our post on that issue here, where we also talked about the fact that the Communications Act applied the equal opportunity rules in the cable industry only to local origination cablecasting - and the FCC has never addressed whether that imposes any obligations on cable operators for candidate appearances on network cable).  So entertainers can get mileage out of their plans to run, even if they ultimately do not.  On the other hand, where the on-air person is really serious about running for office, the stations often take them off the air early - earlier than required to avoid equal time obligations - simply to avoid the appearance of unfairness.

A final point about these on-air performers who may run for political office - the equal opportunities that do attach to the appearance of the candidate only apply to the performer's opponents.  Thus, if the candidate is running for the Democratic nomination, only Democrats are entitled to equal time until after the nominations are decided.  So if an on-air performer decides to run for the Democratic nomination, and the Republicans have 10 candidates in their primary, when there is only one Democratic opponent, only that Democratic opponent gets equal opportunities until the nomination is settled

For all these reasons, potential candidates can populate the airwaves, staying in the public eye, without fear of triggering FCC obligations to other candidates until the point at which they become real and unequivocal candidates.   So watch for the current parade of potential candidates to continue on the airwaves near you. 

For more information about the FCC's political broadcasting rules, see the Davis Wright Tremaine Political Broadcasting Guide. 

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. 

Stations are not required to accept third party ads and, even where these ads address a candidate, the station has full rights to accept or reject the ads based on the ad's content (perhaps subject to Zapple discussed below).  However, because the station can choose whether or not to run the ad, the station can also be held liable for the content of those ads.  While the standard for liability under the rules of defamation are very high for public figures such as a political candidate, there still can be liability if the station runs an ad with "malice", meaning that they either know that the content of the ad is false, or run it with reckless disregard of the truth of the claims made (where those claims later prove to be false).  That malice standard is what forces stations to become political researchers - tasked with determining if there is a reasonable basis for a claim made in an ad so that the candidate being attacked cannot later come back against the station and accuse the station of recklessly running a false ad.  We've written before (here and here) about the typical scenario that arises - a third party group buys an attack ad against a political candidate, the candidate or his or her lawyer sends the station a letter saying that claims made in the attack ad are false and the station will be liable if the station continues to run the ad.  At that point, the station has an obligation to investigate the truth of the statements made in the ad.  If the station just continues to run the ad with no investigation, and the ad proves to be false and the candidate that is attacked can prove injury, the station can be held liable.  How much investigation is necessary?  That is a question that cannot be answered in a few paragraphs on this blog.  But suffice it to say that stations need to be prepared to call their attorneys and discuss the issue with their owners in making these assessments - as each station may have a different tolerance for risk, and a different willingness to allow questionable third party ads to run.

The other potential issue that this decision may bring to the fore is the status of the Zapple Doctrine.  Section 315 of the Communications Act imposes the Equal Opportunities doctrine (otherwise known as "Equal Time") on stations, which the FCC has interpreted to mean that stations need to treat all candidates running for the same office in the same way - allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates).  But the Equal Opportunities Doctrine applies only to candidates and their appearances  on stations (or "uses", in the language of the FCC).  What about the purchase of time by third party groups, which are technically not subject to the Equal Time rule?  Well, more than 30 years ago, the FCC adopted the Zapple Doctrine, or "quasi-equal opportunities" as an outgrowth of the Fairness Doctrine.  The Zapple case, as we wrote here and here, held that where supporters of a candidate are allowed to buy time on a station, supporters of the opposing candidate should also be allowed to buy roughly equivalent amounts of time.  While the remainder of the Fairness Doctrine has been declared by the FCC or by the Courts to be unconstitutional over the last 25 years, Zapple has never been officially overturned.  When the Swift Boat documentary was about to be run on some television stations during the Kerry-Bush campaign, the Kerry campaign invoked Zapple in claiming that all stations that ran that documentary would need to air equal amounts of time from pro-Kerry groups.  While that matter was settled before the FCC ruled, some FCC officials have from time to time implied that they would have invoked Zapple had it gone to a decision.  With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.

Finally, the Citizens United case did not upset the record-keeping and disclosure requirements of the Bipartisan Campaign Reform Act ("BCRA").  BCRA imposed many such obligations on broadcasters.  Thus, the sale of time to corporate groups, just like the sale of time to any other third-party group, requires a full public file disclose when such purchases are made to address a Federal issue or election.  We wrote about those obligations here and here. Essentially, all the same information about the purchase that would be kept for a candidate buy must be kept for a third-party buy - including the class of spots purchased, the schedule run, the price paid, and the identity of the purchaser.  Even advertising buys dealing with state and local elections require an identification of the buyer and its principal officers or directors.

Thus, while more money may flow into broadcast stations as a result of the Citizens United decision, that money may come with some additional headaches for broadcasters.  All of these issues and more are addressed in the Davis Wright Tremaine Political Broadcasting Guide, available here.

So stations need to remember that they do have political broadcasting obligations for elections that may occur in their towns, cities, counties and states this year.  See the Davis Wright Tremaine Political Broadcasting Guide for more information about these issues.

So why didn't Senator Obama claim the time?  Probably because he didn't want to be seen as a spoil sport.  Obviously, if he had claimed equal time, SNL would never again put a candidate into a skit.  So who wants to be blamed for ruining all the fun?  Besides, Senator Obama seems to have found many other ways to appear on TV.

What is more surprising, however, is why no third party candidates have requested equal time rights. These rights extend not only to the major party candidates, but also to third parties.  Thus, Ralph Nader, Bob Barr and the host of other Presidential candidates could have requested equal time on any station that ran SNL in a state in which that candidate was a legally qualified candidate, i.e. where they were on the ballot or conducting a bona fide write-in campaign.  Yet none requested such time, and stations and networks have not appeared to be concerned about such claims.  Perhaps stations make the calculation that, even if they have to give up a couple of minutes of late night time, the publicity value of the candidate's appearance is worthwhile (after all, the Sarah Palin appearance on SNL was the highest rated SNL show of the year, and McCain's appearance was also highly rated.  Why not risk having to give Bob Barr a few minutes when the program with the candidate can garner such ratings?

Alternatively, there may be a more serious issue afoot.  From time to time, various broadcast observers have speculated that, if the FCC's political time rules were ever subject to a court challenge on First Amendment grounds, they would not survive.  While it looks like we have survived another election without the issue being addressed, watch future elections when the issue may finally come to the fore.

So how do cable news channels get away with coverage of significant portions of speeches by candidates?  These are a couple of explanations.  First, these speeches are events that are not planned specifically for television, and therefore can be considered news events, and they are covered as part of a regularly scheduled news or news interview program - also exempt from equal opportunities.  Also, it has been unclear as to whether cable networks are even subject to equal opportunities.  For all these reasons, no claim for equal opportunities for the coverage of a campaign speech has been decided in recent years by the FCC. 

For more information about these and other Political Broadcasting issues, see our Political Broadcasting Guide. 

Similar liability concerns do arise for broadcasters in connection with attack ads run by third-party groups – groups not “authorized” by the candidates. As broadcast stations are under no obligation to run ads by third party groups and have the full right to reject them based on their content, like an Internet spot, a station has potential liability for defamation or other civil liabilities that arise from the content of an ad that airs.  We recently wrote about the considerations that a broadcaster should use to evaluate those spots when the spots are challenged, here.  A similar process should be used to evaluate Internet spots - whether or not authorized by a candidate.
 

On Monday night, the Clinton campaign has purchased an hour long block of time on the Hallmark cable channel to cover a town hall meeting.  Cable, unlike over-the-air broadcasting, is not subject to reasonable access requirements , so there was no obligation for the channel to sell time to the campaign.  And for network cable, it is still an open question as to what other FCC political rules apply.  The Commission recently went out of its way to avoid answering whether the equal opportunities rules apply to network cable by deciding that CNN did not violate the equal time rules by denying Dennis Kuchinich an opportunity to participate in a recent debate (see our summary of the case here).  From the lengths that the Commission went to in avoiding providing a direct answer to the question of whether equal opportunities applies to network cable programs, it could almost be inferred that, if push came to shove, the FCC would ultimately apply these rules if it could not otherwise avoid the issue.  But even if the rules applied, the sale of the programming block to the Clinton campaign would just give the Obama campaign the right to buy an hour of time, which it may or may not want.  And what rates would apply?  Applying the rules used for broadcast stations, if hour long blocks of time are not customarily sold by a network, the network could charge a reasonable amount, including a mark-up for lost audience in following time periods, according to recent FCC statements about the sale of block programming.

Around the country, in anticipation of the voting, third party groups including labor unions and other advocacy organizations are running ads supporting or opposing candidates.  These ads are not entitled to lowest unit rates (which are for candidates only), and stations need not sell time to these groups if they do not want to (reasonable access also applies only to candidates).  If a station does sell time to these groups, is there a requirement that a station sell time to supporters of both sides?  That is an open question.  While the FCC did away with most of the "Fairness Doctrine" over a decade ago, there is still a last thread of that doctrine that has never been officially abolished - the "Zapple Doctrine."  That doctrine was essentially equal time for supporters of a candidate - if a station sold time to the supporters of one candidate, it had to sell that time to the supporters of the other.  While the doctrine has not been applied in the last two decades, it has not been explicitly overruled so, if a station refused to sell to supporters of one side, the FCC might be forced to deal with that issue.

In fact, would that doctrine come into play in connection with the radio talk show hosts that are overtly partisan on the air?  According to press reports, many of the conservative radio talk show hosts have been aggressively anti-McCain in their programs.  As there are usually no appearances by the candidates on these programs, there are no equal opportunities issues, as equal opportunities is triggered only by the actual appearance of a candidate.  But could the Zapple Doctrine apply?  Traditionally, that doctrine applied to the purchase of time.  However, four years ago, when certain television stations thought about airing the "documentary" from the Swift Boat veterans attacking John Kerry, the Kerry campaign argued that the supporters of the Kerry campaign were entitled to free time under the Zapple Doctrine.  That case never reached a decision as the stations dropped their plans to air the film, but it remains an open issue (though more than a bit of a long-shot as it would seemingly render the abolition of the Fairness Doctrine meaningless, and raise significant First Amendment issues).

For more discussion of the FCC rules regulating broadcasters and political broadcasting, click on the Political Broadcasting subject heading on the right of this page, and read our Political Broadcasting Guide.  And watch for more discussion of political issues, as they arise, here.

Historically, a strict reading of the equal opportunities requirements of Section 315 of the Communications Act for many years greatly restricted the number of broadcast debates.  It was necessary for Congress to suspend the law to allow the Nixon-Kennedy debates.  It was not until the 1970s when the Commission decided to allow broadcasters to carry debates sponsored by third-parties as "on the spot coverage of news events" so as to be exempt from equal opportunities.  Eventually, the Commission determined that debates were news events no matter who sponsored them, so broadcasters themselves could sponsor the debates, as long as they set rational criteria to decide which candidates to invite to participate.  They could not choose participants based on any sort of partisan criteria.  Thus, debate sponsors often set standards based on the candidate's standings in the polls or established nonpartisan panels to assess which candidates had a serious opportunity to win the election.  These rational criteria were used to assess the newsworthiness of the candidates, and avoided the need to include every candidate for an office.  And, while there have often been objections to the particular criteria selected (as was the case when Ross Perot was excluded from the 1996 Presidential debates even after having participated in the 1992 debates and even while receiving substantial public funding for his campaign as the Committee running the debates concluded that he had not met the criteria they set), the FCC and the courts have been quite deferential to the decisions of the debate sponsors.

As debate sponsors have been given great latitude in establishing the criteria that they use in choosing who to invite to a debate, the debates have prospered, as witnessed by the number of debates held in this year's presidential primaries.  Because of this deference, the Kucinich campaign had little chance of prevailing on an argument that MSNBC was not complying with the Communications Act and the FCC rules (and, as the Nevada Supreme Court pointed out, the issue of Congressman Kucinich's participation had never even been raised with the FCC, which has primary jurisdiction over equal opportunities complaints).  Thus, the campaign raised an interesting argument that tried to avoid the FCC's jurisdiction - contending that MSNBC had entered into contract with the campaign promising to include the Congressman in the debate, and then had reneged on that contract.  The Nevada Supreme Court rejected that argument on fairly technical grounds (that Kucinich had not paid any consideration to MSNBC), though it seemed clear that the Court did not want to invade the jurisdiction of the FCC and start to adjudicate which candidates should be included in broadcast or cablecast debates.

So the debate went on without Congressman Kucinich, and the case helps reinforce the FCC's primacy over decisions regarding political speech and debate carried by broadcasters and cable companies.  But it is still early in the 2008 election season, so we will no doubt see more disputes about the political broadcasting rules as the election season progresses.  Watch this blog for more developments, and check out our Political Broadcasting Guide for answers to many political broadcasting questions. 

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.....

In Presidential races, once a candidate becomes legally qualified in 10 states, he or she is legally qualified in every state.  In the primary, that presents some issues - as many of the "primary" states don't have primaries but instead have caucuses.  For FCC political rules purposes, lowest unit charges do apply to a caucus - but the FCC has not defined when a candidate for president becomes legally qualified in a caucus state which does not have any required registration process.  For non-Presidential races, there is a presumption that one is not legally qualified more than 90 days before a primary - but that specific ruling does not apply in the Presidential race.  So when a Presidential candidate is legally qualified in 10 states may be difficult to determine.  it may be, with so many state moving their primaries to early February (see our comment on this move), the issue may be settled quickly as candidates become qualified in primary states with formal filing deadlines. 

Cable presents another problem.  Thompson has already announced that he will not be returning to Law and Order in September, and it would seem likely that many TV stations will not be running movies in which he has appeared once his candidacy becomes official and he is legally qualified.  But what about cable?  The equal opportunities rules are, by their terms, applicable to "local origination cablecasting."  But what does that mean?  Are cable networks like TNT, which broadcast Law and Order episodes, covered?  While many cable networks take the position that they are not covered by the rules, they nevertheless tend to take off programming which could trigger the rules and force a test case of how far the rules do extend.  For instance, when Arnold Schwarzenegger ran for governor of California, Terminator movies were nowhere to be seen.

So a Thompson candidacy may banish the last few years of Law and Order from the airwaves and from cable, but can those reruns be shown on the Internet?  Apparently - the answer is yes.  Thus far, none of the political rules have been officially extended to the Net other than some vague statements that a broadcaster, who sells Internet spots as part of a package with broadcast spots, may need to also sell those spots to candidates - especially if they are sold to one candidate for a particular race.  But, otherwise, Law and Order online could continue to offer Fred Thompson episodes even during his candidacy. 

In fact, the Internet is proving to be more of a  force in political campaigns, partially as it is free of so much regulation.  An LA Times article talks about the ability of candidates to post messages online that they might not want to broadcast on television - free from regulation.  As this most unusual political year rolls on - with so many candidates running for President - watch for the new media to play an even bigger role in the political campaign.  And, as it does, watch for more calls for legislation to regulate that roll.