Posted on May 2, 2008 by David Oxenford

FCC Declares 700 Club and TMZ are Exempt From Equal Time - With Some Issues Left Unaddressed

The FCC today provided two more examples of its policy that virtually any sort of interview program is going to be deemed a "bona fide news interview program" exempt from any claim of equal opportunities (or "equal time" as it is commonly referred to) if the program features an appearance by a political candidate. In the decisions released today, the FCC declared that the 700 Club produced by the Christian Broadcasting Network (decision here) and TMZ produced by Telepictures Productions (decision here), both syndicated across the country, were analogous to programs like Entertainment Tonight, which the FCC had previously found to be an exempt program.  While these programs may focus on some unique aspect of the news or current affairs, the fact that they cover the candidates with their own particular slant (entertainment news, music news or whatever) does not prevent them from being considered bona fide news interview programs.  Where the coverage of the candidate is done based on good faith determinations of what is newsworthy rather than to politically favor the candidate, and where the programming remains under the control of the program producers and not the candidate, the programming is considered exempt from equal opportunities.  This is fully consistent with past Commission policy which we have written about many times before (see, for instance, our post on the evolution of this exemption in the context of political debates, here, and our posts on the candidacies of Fred Thompson and Stephen Colbert).  Thus, while these decisions are not controversial, they do raise some questions that broadcasters and candidates should ponder.

The first interesting question is raised by a paragraph included in both of the decisions released today.  The paragraph warns licensees that, if they are carrying syndicated programming that contains an appearance by a political candidate, and that program is relying on  the news interview exception, the licensee must itself make a determination that the program is newsworthy.  I think that this ties in with another line in the decisions stating that there is no evidence that the decisions by the program producers that the appearances by the candidates are newsworthy were not bona fide journalistic decisions.  In other words, if the program producer was to include candidate appearances in a blatantly political way (e.g. by totally excluding the candidates of one party and promoting the candidates of the other), then the Commission could conclude that the decisions were not "bona fide,"  and that equal opportunities did apply.

This is not to say that any host with a point of view would be determined to not be bona fide, just because the host let that point of view show on the air.  For instance, Bill O'Reilly may be perceived to have a political bias, but just this week he interviewed Hillary Clinton and allowed her to express her views.  It would seem to me that the Commission does not forbid bias in an interviewer (as that would be an incredibly subjective test), as long as opportunities are given for the candidate to express their views, and the appearances are based on reasonable determinations of newsworthiness of the candidate.  However, if the programming decisions are made in a way that would seem to endorse a candidacy (e.g. similar to the reported instance where G. Gordon Liddy used his program to arguably promote his daughter's candidacy for a state legislative seat), and where the opponent is excluded, then equal opportunities could be found to apply.

The other question raised by these cases but not fully addressed is what happens outside of the news interview portions of a program?  For instance, both Barack Obama and Hillary Clinton have read Top 10 lists on David Letterman, and both have appeared in the scripted introduction to Saturday Night Live.  In neither case do these appearances seem like bona fide news or news interview programming.  In a race with just two candidates, like the current Democratic primary, the risk is probably slight that there an equal opportunity issue would arise, as in neither case is the other likely to risk the adverse publicity from making an issue out of the appearance by an opponent (remember - a station need not offer equal time to the opposing candidate, the candidate must claim that time within 7 days of the first candidate's appearance).  But once the primaries are over, especially in states where there are independent candidates for president, such appearances give rise to potential claims for equal opportunities.  And the opposing candidates would not need to read a Top 10 list or appear in a opening sketch on Saturday Night Live, but would instead get as much time as the featured candidate was on the air with which they could broadcast a political message.  Some minor party candidate might see that as worthwhile, despite any adverse publicity that might ensue.

These and other issues concerning the FCC's political broadcasting rules are covered here on our Blog, and in our Political Broadcasting Guide. 

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Posted on March 23, 2008 by David Oxenford

On-Air Broadcast Stations Employees Who Run for Elective Office - Equal Time for Local Candidates

In the last few weeks, I've received several calls from broadcasters about on-air employees who have decided to run for local political office, and the equal time obligations that these decisions can create.  Initially, it is important to remember that equal opportunities apply to state and local candidates, as well as Federal candidates.  And the rules apply as soon as the candidate is legally qualified, even if the spot airs outside the "political windows" used for lowest unit rate purposes (45 days before a primary and 60 days before the general election).  For more information about how the rules apply, see our Political Broadcasting Guide.  In one very recent example of the application of these rules, a situation in Columbia, Missouri has been reported in local newspaper stories concerning a radio station morning show host who decided to run for the local elective hospital board.  To avoid having to give equal time to the host's political opponents, the station decided to take the employee off the air.  This was but one option open to the station, as set forth in the article, quoting the head of the Missouri Broadcasters Association, who accurately set out several other choices that the station could have taken. 

These choices for the station faced with an on-air host who runs for office include:

  • Obtain 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.
  • Allow the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
  • Provide equal time to the opposing candidates equal to the amount of time that the host's voice was heard on the air (if the opponents request it within 7 days of the host being on the air)
  • Take the host off the air during the election

Other situations have also arisen concerning non-employees, running for office, who may work for another local station, for ad agencies, or for advertisers, but whose voice or picture appears on spots that run on a station.

The Commission's rules require equal opportunities where a candidate's "recognizable voice or image" appears on a broadcast station.  So, if an announcer with a recognizable voice decides to run for office, commercials featuring that voice become subject to the equal opportunities doctrine.  If that voice is on a PSA or station promotional announcement, for which no consideration is received by the station,opposing candidates who request it within 7 days, get equal time for free - and they can use it in connection with their campaign.  If the voice is on a paid commercial, the opposing candidate will probably have to pay for the equal time, though the opponent would get lowest unit rates during political window periods (even though the initial candidate's spot for a commercial advertiser was for full commercial rates).  As the equal time obligation to respond to paid spots is not for free, but instead only gives the opponent the right to buy time, stations might seem to have no reason to object to the initial candidate's voice on a spot.  However, that spot could force the station to sell time to candidates in a race in which the station might have otherwise have determined not to sell time.  Only Federal candidates have a right of reasonable access to broadcast stations.  Stations can choose whether or not to give state and local candidates access to their stations but, once they make the station available to one candidate, they must make it available to all candidate for the same office.  Thus, a station may have decided, for inventory control or other reasons, not to sell time to candidates for an office like hospital commissioner but, if one candidate's recognizable voice appears on an ad for a local car dealer, the other hospital commissioner candidates can request time within 7 days, and be entitled to purchase such time.

Stations also need to make notes in their public file of all "uses" of a station by a political candidate.  All of these appearances by on-air personnel who become candidates would be considered a use by a political candidate (even though they never mention their campaign), so they must be noted.  Clearly, there are many political broadcasting issues that must be considered when an employee runs for office - so stations should take care of observing those rules.

 
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