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 October 30, 2008 by David Oxenford

Senate Candidates File Lawsuits For Defamation in TV Commercials - But Not Against the TV Stations

In two races for the US Senate, candidates have filed defamation lawsuits against their opponents charging that attack ads go over the line from political argument to actionable falsehoods.  However these suits ultimately play out, they demonstrate the premise that we've written about before, that broadcast stations are prohibited by FCC rules and the Communications Act from censoring the content of a candidate's ad, and because they cannot censor the content of a candidate's ad (or refuse to run a candidate's ad because of the content of that ad), stations are immune from liability that might otherwise arise from that content.  But the candidates being attacked can sue their opponents for the contents of those ads, and that is just what has happened in the North Carolina and Minnesota Senate races.

In North Carolina, according to press reports, Democratic candidate Kay Hagan has filed suit against the campaign of Elizabeth Dole for a commercial that accused Hagan of being associated with a group called Godless Americans - an ad ending with a woman's voice that some interpreted as being that of Hagan (when it was in fact not) saying "there is no God."  In Minnesota, Senator Norm Coleman has reportedly filed a lawsuit against Al Franken's campaign claiming that Franken campaign ads improperly claimed that Coleman was rated one of the four most corrupt Senators and that he was getting an improperly financed apartment in Washington DC. 

Defamation is very difficult to prove, especially when the statements are made against public figures, such as political candidates.  A plaintiff must prove that the statement that was made is false, and that the person making it either knew that it was false, or made it with reckless disregard of the truth of the statement (what the Supreme Court has called the "malice" standard).  As it is so difficult to prove malice in a political context, the filing of lawsuits such as these are rare, and they are seldom if ever prosecuted through to any sort of judgment.

If these lawsuits are so hard to prove, why bring them?  In some cases, where the conduct really is outrageous, there may be grounds for a recovery.  In other cases, the suit can be brought to scare media outlets into not running the ad (even though a broadcast station should not refuse to air an ad based on its content if the ad is bought by the candidate's authorized committee) or to delay the airing of the commercial while the broadcast station considers whether or not it should be run.  In these waning days of an election, having an ad run a few fewer times may be a strategic victory. 
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Posted on October 10, 2008 by David Oxenford

Broadcasters Prohibited From Censoring a Candidate's Ad

As we enter the waning days of this election season, where some candidates get more desperate and the attack ads get sharper, broadcasters are often faced with requests that they pull an ad created by a candidate.  Claims are made that the ad contains untrue claims about an opponent or that the ad contains copyrighted material used without permission.  What is a station to do?  When the ad is an ad purchased by a candidate or their authorized committee, and contains a "use" by the purchasing candidate (a use being a spot where the purchasing candidate's voice or likeliness appears on the spot) the broadcaster is forbidden from censoring that ad.  Essentially, that means that the candidate can say just about anything in their ad (as long as it does not violate a Federal felony statute), and the FCC's rules prohibit the broadcaster from refusing to air the ad based on its content.  But, because the station cannot censor the ad, it has no liability for the contents of that ad.  This is in contrast to ads by third parties (e.g. advocacy groups, unions, political parties and others not specifically authorized by the candidate), where the broadcaster theoretically has liability for the content of a political ad (see our post on that subject, here).

Two recent cases illustrate the issue.  In one, according to press reports, in a race for the sole seat in the House of Representatives representing the state of North Dakota, one candidate has claimed that the ads of the other misrepresent the positions of that candidate.  The candidate being attacked has asked that the spots be pulled from the air, while the candidate running the spots has refused to pull them.  Even if requested by the candidate being attacked, and even if the ad is in fact false, broadcasters cannot pull one candidate's ad if that candidate wants to continue to run it.

In another story about a race in New York, one candidate has argued that the spot of another violates copyright law by using recorded material created by another without permission.  While the candidate who created the ad argues that he had a right to use the clip under the "Fair Use" doctrine, even if he did not, a station could not pull the ad, and would not be liable for any copyright liability that might attach.  Note that the answer might be different if the ad was posted on the station's website (where the no censorship rules does not apply), or if the ad was sponsored by a third party group rather than the candidate himself.

This is not to say that the candidate being defamed, or the copyright holder whose material is being improperly appropriated, has no remedy for an objectionable candidate ad.  But that remedy is against the candidate sponsoring the ad, not against the station that broadcasts it.  While suits against a candidate or that candidate's campaign committee are rare, they are theoretically possible. 

One last note, these rules apply to both Federal and state and local candidates.  While broadcast stations have no "reasonable access" obligation to sell time to state candidates, once they do, the no censorship rule applies.  More information on this subject and on other political broadcasting issues can be found in Davis Wright Tremaine's Political Broadcasting Guide.
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Posted on August 22, 2008 by David Oxenford

Independent Groups Start Running Presidential Attack Ads - What Are the Legal Implications for Broadcasters?

The American Issues Project has recently started running a controversial new television ad attacking Barrack Obama for his connections to former Weather Underground figure William Ayers.  The text of the ad is reported here.  While reportedly some cable outlets (including Fox News) have refused to air the ad, numerous broadcast stations are also wondering what the legal implications of running the ad may be.  We have already seen many other attack ads being run by third-party groups - including political parties, long-standing activist groups like Move On.org, as well as from new organizations like American Issues Project which have seemingly been formed recently.  As the use of such ads will no doubt increase as we get closer to the November election, it is important that broadcasters understand the issues that may arise in connection with such ads under various laws dealing with political broadcasting.  Legal issues that must be considered arise not only under FCC rules, but also potentially in civil courts for liability that may arise from the content of the ad.  Broadcast stations are under no obligation to run ads by third party groups, and stations have a full right to reject those ads based on their content.  This is in contrast to ads by Federal candidates, who have a right of reasonable access to all broadcast stations, and whose ads cannot be censored by the stations.  As a candidate's ad cannot be censored, the station has no liability for its contents.  In contrast, as the station has the full discretion as to whether or not it will run a third-party ad, it could have liability for defamation or other liabilities that might arise from the content of such ads that it decides to accept and put on the air.  

The standards for proving defamation (libel and slander) of a public figure are high, but if the ad does contain some clearly false statements, the standard could in fact be met.   Basically, to have liability, the station needs to run an ad containing a false statement either knowing that the ad is untrue or with "reckless disregard" for the truthfulness of the statements made.  This is referred to as the "malice standard."  Essentially, once a station is put on notice that the ad may be untrue (usually by a letter from the candidate being attacked, or from their lawyers),  the station needs to do their own fact checking to satisfy themselves that there is a basis for the claims made or, theoretically, the station could itself be subject to liability for defamation if the claims prove to be untrue.  A few years ago, some TV stations in Texas ended up having to pay a candidate because they ran an ad by an attack group that was shown to contain false statements, and the ad was run even after the candidate complained that the statements were untrue.  These determinations are often difficult to make as the ad's creators usually have hundreds of pages of documentation that they say supports their claims, while the person being attacked usually has documentation to refute the claims.  Thus, the determination as to whether or not to run the ad is a decision that each station needs to make after consultation with their lawyers, and after careful review of the spot and the backing documentation.

The stations also need to comply with FCC rules.  First, the stations need to make sure that the ad has the required sponsorship identification identifying the true sponsor of the ad, in writing for at least 4 seconds at 4% of screen height.  Under FEC rules, there must also be a verbal identification of the sponsor.  In addition, the station needs to comply with all of the public file requirements.
 
For any request to a station by a third-party group asking to buy ads dealing with Federal candidates, the station's public file should contain the following information about each request:

1) The name of the group sponsoring the ad

2) Its principal officers or its directors

3) Whether the request to buy time was accepted or rejected

4) If the schedule was accepted, the date and approximate time the spots will run

5) The class of time purchased

6) The rate charged

7) The name of the candidate to which the ad refers

8) After the spots have run, the exact time the spots ran

More information about these rules and the other laws dealing with political broadcasting issues for broadcast stations can be found in our Political Broadcasting Guide. 
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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 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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Posted on July 2, 2007 by David Silverman

Fairness Doctrine Comeback - Moving Off the Table?

In May, we advised you that House Committee and Energy Chairman John Dingell was considering a return of the Fairness Doctrine that the FCC had eliminated nearly 20 years ago.  This was the FCC policy that both required broadcasters to cover "controversial issues of public importance" and to present contrasting views on those issues.  When the FCC eliminated this policy, it did so on the basis that it believed the Fairness Doctrine to be an unconstitutional restraint on free speech under the First Amendment.  Although the FCC's action was upheld by the U.S. Court of Appeals here in DC, the court found only that the FCC was within its discretion to abolish the doctrine and did not address the ultimate issue of whether the doctrine was constitutional.  In view of recent discussions about the potential reinstatement of the Fairness Doctrine, Indiana Representative and former talk show host Mike Spence sponsored an amendment to the 2008 fiscal year appropriations legislation(which in part provides for the FCC budget) that would prohibit the FCC from reinstating it.  That amendment was approved by a wide (310-115) margin by the House of Representatives this week.  While this was trumpeted as ensuring that the Fairness Doctrine was dead - at least for this year - those discussions may have been a bit overstated.

First, this bill was passed only in the House of Representatives.  While there has been a companion piece introduced in the Senate in the last few days, there also has been much talk there of bringing back the Doctrine - both by Democrats and even some Republicans.  So the fight there may not be so easy.

Moreover, this legislation, even if approved, only prohibits the FCC from spending any money to adopt a new Fairness Doctrine.  In fact, the FCC has really made no moves to do so.  The moves have all been legislative, and the bill does not stop such moves (though the size of the vote may demonstrate that it will be difficult to get such a bill passed in Congress - and virtually impossible to get a bill approved with a sufficient majority to override a possible Presidential veto). 

So, while the Fairness Doctrine may effectively be off the table for the next 12-15 months until after the next Presidential election, those elections may have a significant bearing on the outcome of this issue.  Even if Congress does reinstate the doctrine, however, the courts may have the last word in ultimately determining its Constitutionality.  So the story is far from over.
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Posted on June 3, 2007 by David Oxenford

Law and Order: Equal Opportunites - The FCC Implications of Fred Thompson's Possible Presidential Bid

This past week, former Senator Fred Thompson created a committee to explore a run for the Presidency.  In every article written about the former Senator, like one recently run in the Washington Post, mention is made of his current broadcasting career - his role on Law and Order and as a guest host on Paul Harvey's radio program.  And all the articles assume that the campaign will result in the termination of these roles, and also present issues about the broadcast and cablecast of reruns of Law and Order episodes and old movies in which he appeared.  In some cases, that is true.  In others, it remains to be seen.  But the potential candidacy does offer a good opportunity for a review of the equal time obligations of broadcasters under FCC rules.

"Equal time" or "equal opportunities" require that broadcast stations give treat candidates for the same political race in an even-handed fashion.  If they sell time to one candidate, they have to give the other candidate equal opportunities to buy the same amount of time in programs reaching roughly the same size audience.  If time is provided to a candidate without charge, and the candidate's on-air appearance is outside of a news or news interview programs and is not part of on-the-spot coverage of a news event, then the broadcaster must make equal time available to the opposing candidate, if that candidate requests it within 7 days of the use by the first candidate.

However, none of these obligations arise until a candidate is legally qualified - essentially when he or she has filed the necessary papers to obtain a place on the ballot in accordance with the governing law of the jurisdiction in which the election will be held.  In Thompson's case, as he has not even officially announced that he is running, he is not yet a legally qualified candidate, so for the time being, there is no issue with the continued airing of the programs in which he appears. 

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.
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