Posted on November 4, 2008 by David Oxenford

Does McCain on Saturday Night Live Signal the End of Equal Time?

The FCC Equal Time rule (or more properly the "equal opportunities" doctrine) requires that, when a broadcast stations gives one candidate airtime outside of an "exempt program" (essentially news or news interview programs, see our explanation here), it must give the opposing candidate equal time if that opposing candidate requests the time within 7 days of the first candidate's use.  Cable systems are also subject the requirement for local origination programming, and many have surmised that, faced with the proper case, the FCC would determine that cable networks are also likely to be covered by the doctrine.  While the FCC has extended the concept of an exempt program to cover all sorts of interview format programs, allowing Oprah, The View, Leno and Letterman and the Daily Show to have candidates on the air without the fear of equal time obligations, the rule still theoretically applies to scripted programming.  Yet in this election, we have seen candidates appear on scripted programs repeatedly, seemingly without fear of the equal time obligations.  Early in the election season, cable networks ran Law and Order with Fred Thompson without any equal time claims being made.  All through the election, candidates seem to have made themselves at home on Saturday Night Live, culminating with Senator McCain's appearances on the SNL programs on Saturday Night and the SNL special run on election eve.  Yet through it all, stations have not seemed reluctant to run these programs, and candidates have not seemed to show any interest in requesting any equal time that may be due to them.  This seems to raise the question as to whether there remains any vitality to the equal opportunities doctrine.

This is not just a case of candidates deciding not to appear on a program that they don't like because they don't want to appear in a program with that particular format, as the equal time rules free the candidates from format restrictions.  Thus, had Senator Obama sought equal time for McCain's appearances on SNL, he would have been entitled to an amount of time equal to the amount of time that McCain appeared on camera, and Obama could have used that time for any purpose that he wanted, including a straight campaign pitch.  He would not have had to appear in an SNL skit just to get that time.

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.
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Posted on August 29, 2008 by David Oxenford

Lowest Unit Rates for Political Candidates Begin on September 5; Get Answers to Political Broadcasting Questions from Our Political Broadcasting Guide

Political Broadcasting season is now in full swing, with the Democrats just ending their convention, and the Republicans beginning theirs next week.  Already, we've seen disputes about third party attack ads (see our post here), and there are bound to be many more issues about the FCC's political broadcasting rules that arise during what looks to be a very contentious political season.  For guidance on many political broadcasting issues, you can check out our Political Broadcasting Guide, with discussions of many common political broadcasting issues (including reasonable access, equal opportunities, lowest unit rates, public file issues, and political disclosure statements) in what we hope is an easy to follow question and answer format.   Broadcasters should also remember that the Lowest Unit Rate "political window" opens on September 5, meaning that stations cannot charge political candidates any more than the lowest rate that is charged a commercial advertiser for the same class of time run at the same time as the candidate's spot. 

We have reminded broadcasters that the Lowest Unit Rate (or "Lowest Unit Charge,"  often abbreviated as" LUC" or "LUR")must be available to all candidates for public office - including state and local candidates.  While state and local candidates have no right of reasonable access (meaning that a station can decide not to sell time to those candidates, or to restrict their purchase of time to particular limited dayparts), if the station sells state and local candidates time, it must be at Lowest Unit Rates during the political window. 

 Some of the other aspects of Lowest Unit Rates as discussed in our Political Broadcasting Guide:

 What is a class of time?

  

A class is a type of spot that has unique rights and characteristics. For instance, spots that run

in different dayparts which have different rates are of a different class, e.g. morning drive is a

different class from mid-day, which is different from afternoon drive. Each of those classes

would have its own lowest unit rate.

 

Even within a given daypart, a station may have spots of many different classes.  Basically, a spot is of a different class if it has different rights. Thus, in any daypart, there may be multiple classes of time, each with its own lowest unit rate. For instance, a preemptible spot would be of a different class than a fixed position spot each with a different lowest unit rate even if they both run during the same daypart. Different rotations can also be different classes with their own lowest unit rate, e.g. a spot which could run anytime between 6 a.m. and midnight could be a different class from one that can run between 6 a.m. and 6 p.m. If the stations sells these rotations, and sells them with differing rates, rights of preemption, or make good privileges, then they would be of a different class and each would have a different lowest unit rate. A candidate can buy spots of any of those classes at the lowest unit rate for that class, and he gets the same rights that commercial advertisers who buy that spot get (e.g. if the candidate buys spots in a 6 a.m. to midnight rotation, his spots are treated just like those of a commercial advertiser who buys those spots and they can run anywhere between those hours).

 

What commercial spots do you look at in determining the lowest unit rate for a given class

of time?

  

You look at the spots of that class running at the same time as the candidate s spots. You need

not look any further than those spots running (or being offered on a rate card) during the 45 days

before a primary or the 60 days before a general election. But even within the 45 and 60 day

periods, the rates can change. If, for instance, a long term package sets your lowest unit rate for a

particular class of time, and the last spot from that package is run midway through the political

window, after the last spot from the package runs, the rates for that class of time can go up for

the rest of the political window. Similarly, if spots are sold on a demand basis, the lowest unit

rate can change on an almost daily basis. If there are fire sales of spots during particular

periods within a window, the lowest unit charge for the fire sale does not set the rates for periods

outside of the fire sale period.

 

Do candidates have to buy in volume to get volume discounts?

 

No. Candidates get the benefit of all volume discounts, even if they do not buy in volume. For

instance, if spots are $10 each, or 12 for $100, the candidate can buy one spot for $8.33 (100

divided by 12) even though a commercial advertiser would have to spend $100 to get the volume

discount.

Check out the Guide for further information about these and other topics dealing with the law of political advertising.

 

 

 
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Posted on October 17, 2007 by David Oxenford

Lowest Unit Rates for the Shifting Presidential Primaries

With the shifting dates for the upcoming Presidential primaries, questions have arisen as to when broadcast stations must start to give Lowest Unit rates to candidates for these elections.  As it appears that, in some states, the primaries or caucuses for the Republicans and the Democrats may be held on different dates, the Lowest Unit rate periods in those states will be different for each party.  For instance, this week's decision by the Iowa Republican party to move its caucuses up to January 3 will move the beginning of the 45 day period for Lowest Unit Charges for Republican presidential candidates in Iowa to November 19. If the Democrats continue to hold to their planned January 14 caucus date, the Lowest Unit Charge period for Democratic Presidential candidates in Iowa will not start until November 30. Remember, Lowest Unit rates are in effect only for 45 days before a primary (or an open Presidential caucus such as that in Iowa) and the 60 days before a general election. They apply on a race by race basis. Just because you are within the LUC period before one election or primary does not mean that Lowest Unit rates apply to any other race.

This often comes up in Presidential election years when the Presidential caucus or primary in a given state is held early in the year, while the primary for the Congressional, state and local elections are held later in the year.  Even though there are declared candidates for those Congressional, state and local elections, Lowest Unit Charges will not apply to these candidates during the early Presidential primary window, but instead will apply only during the 45 days before their own primary elections (and, during those periods in the late spring or summer after the Presidential primaries and more than 60 days before the general elections, the Lowest Unit rates would not apply to the Presidential candidates).  Broadcasters need to remain alert as these dates are bound to keep shifting - perhaps right up to election day.

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