Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

With the Iowa primary approaching, political ads are increasing on the local Iowa TV stations.  While the national press may have been focused on some of the recent Rick Perry ads about the end of "don't ask, don't tell" and its connection to the celebration of Christmas in the public schools, there has been an even more controversial ad running on Iowa TV stations - anti-abortion spots being run by Randall Terry, the head of Operation Rescue, who has announced that he is running for the Democratic nomination for President - challenging President Obama for the privilege of running in next year's election.  Some of the planned ads have graphic depictions of the results of abortions.  These ads are disturbing to some, and many viewers (and many stations) are concerned and upset about their being broadcast - so why are stations running them?  For the most part, it is based on the requirement of Section 315 of the Communications Act that prohibits a station from censoring an ad from a candidate for public office.  Not only that, but court rulings concerning the reasonable access provisions of the Communcations Act prohibit stations from channeling potentially disturbing ads to later night hours - limiting stations to a pre-ad disclaimer warning viewers of the content to come and advising them that the ad is being aired by a candidate and is not subject to station censorship (stations should work with counsel to use language on such a disclaimer that has been approved by the FCC). 

But there are issues that stations need to explore to prevent everyone with the money to cover an ad from claiming to be a candidate for office and being able to air disturbing images on broadcast stations.  Under the law, a person has no censorship rights for their ads (and reasonable access rights for Federal candidates) only if they can show that they are a "legally qualified candidate."  In most cases, the question as to whether someone is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting that person.  But once the local election authority receives the papers (and does whatever evaluation may be required), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for Presidential candidates, especially in caucus states, and for write-in candidates, there are slightly different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a "substantial showing" that he or she is a bona fide candidate - that he has been doing all the things that a candidate for election in the caucus would do. What does that mean?

Section 73.1940(f) of the Commission's rules sets out what a substantial showing needs to include.  The rule states:

The term substantial showing of a bona fide candidacy as used in paragraphs (b) of this section means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager). Not all of the listed activities are necessarily required in each case to demonstrate a substantial showing, and there may be activities not listed herein which would contribute to such a showing.

Stations are entitled to ask a purported candidate to make that substantial showing before they accord the candidate all the rights that he or she might be entitled to under the rules.  Stations will looks at factors including whether the candidate has had campaign rallies. Is he making speeches and campaign appearances throughout the area where the election is being held? Is there campaign literature that is being distributed on his behalf? Does he have any campaign offices or campaign workers?  Is his campaign more than a website?  A station is entitled to ask for this evidence, and then needs to review it, probably with the aid of counsel and possibly with the informal advice of the FCC (whose Political Broadcasting Office is usually quite helpful in working through issues like this) to determine whether it meets the substantially test.

For Presidential candidates, there is yet another wrinkle - as once a candidate has established his qualifications in 10 states, then he or she is presumed to be qualified throughout the country.  So, candidates like Mr. Terry, who work hard to qualify in early primary and caucus states, will have the FCC rights of a candidate accorded to them in later states by virtue of their actions in these early states.  This may become important as Mr. Terry has claimed that he is looking to buy spots in the Super Bowl from stations across the country.

Is this system fair?  Does it allow fringe candidates valuable airtime access that stations would otherwise likely deny?  The intent of this law to is forbid stations from being censors of political messages – leaving candidates free to deliver their message in a manner that they believe to be the most effective.  With stations not being able to second guess the decisions of candidates, some controversial material may be aired in candidate advertising, but that will be the candidate's choice.  It is then up to the voters (not the stations) to make the decision as to whether the candidate made wise decisions in delivering his or her message in their advertising in the way that they choose.  But substantial questions remain about whether stations should be allowed to channel ads to periods when a more appropriate audience may exist.  But given court decisions in this area, it would take an act of Congress to allow the FCC to allow such channeling. 

This question, and other questions about the political rules were discussed last week in a webinar that I conducted for the Texas Association of Broadcasters.  The slides from that presentation are available here.  Other questions about the political broadcasting process are available in the Davis Wright Tremaine Political Broadcasting Guide, and we'll continue to highlight on this blog some of the interesting issues that arise throughout this election season. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

This past week's political news seemed to be all about Donald Trump and his possible run for the Presidency - and his plans to announce his intent to run on the season finale of The Apprentice.  When, a week ago, we wrote about the President declaring his candidacy, there was little interest in our post, and there seemed to be little news attention in general to that announcement.  But when Donald Trump started making noise about his possible Presidential run, and his plans to announce his intent on the season finale of The Apprentice in May, our phones started ringing, asking how can he do that?  My partner David Silverman was quoted in a Huffington Post article, while my analysis was misunderstood in a Hollywood Reporter legal blog (see why I was misunderstood below).  But the question remains - can Trump continue on The Apprentice while signaling his interest in running for President?

In fact, there is no FCC rule that prohibits a broadcaster from giving airtime to a political candidate on any kind of program, as long as they are willing to provide equal time to opposing candidates.  There may be other legal issues involved in giving time to a candidate as it may in effect be a deemed a campaign contribution to the candidate (an issue apparently for PACs as well, as explained by that legal scholar Steven Colbert, here), but the FCC's equal time rules don't prohibit the appearance of a candidate on an entertainment program, they only demand that the stations that broadcast the program give equal amounts of time to opposing candidates who ask for it - if the opponents ask for it within 7 days of the candidate's appearance.  And that is often the first issue - will the opposing candidate ask for it?  None of the Republicans asked when cable networks continued to run episodes of Law and Order featuring Fred Thompson, even after Thompson declared his candidacy for the Republican nomination.  Nor did other candidates request time after there was a parade of candidate appearances on Saturday Night Live during the last election (see our post on this pattern of candidates passing on their equal time rights).  But would a Trump declaration of a candidacy on The Apprentice even face that minimal risk?  Probably not.

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.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year's elections should not be distracting broadcasters from their current political broadcasting obligations.  I've received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 - including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules - including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate's spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees - those rates only become effective 45 days before the primaries - so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts - even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, as we've written before, the FCC has determined that most interview programs where the content is under station control - even those that have little news value on the normal day - are deemed "news interview programs" exempt from equal time rules.  Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program - and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political office

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The New York Times just ran an article on the number of radio and television commentators who are also potential political candidates, speculating on whether the appearance of these candidates on TV and cable talk shows, and on radio programs, give them an advantage in their future political careers.  That perceived TV bump might be most in the news in the potential candidacy of Harold Ford in the Democratic Senate primary in New York, with his appearances on MSNBC (and this past weekend on Meet the Press on NBC, where he was part of a panel to talk about the week's news, and was then asked about his future political plans).  But it is also evident in the almost daily parade of potential candidates on radio, TV and cable talk programs.  So, one might ask, what are the FCC implications of these appearances?

The week before last, we wrote on this question, in connection with on-air radio or TV performers who actually become candidates, and how a broadcast station should deal with those candidates and the equal opportunities obligations to opposing candidates that arise when these employee-candidates appear on the air.  But the question of when the equal opportunities obligations arise is one that we only touched on.  Under the FCC's interpretation of the Section 315 of the Communications Act, the equal opportunities obligations arise once you have a legally qualified candidate - one who fulfills all of the obligations that a state imposes for securing a place on the ballot.  Usually, this involves the filing of certain papers, often with petitions signed by a specified number of registered voters, with a state's Secretary of State by a given deadline.  Once the requirements established by the state have been met, the candidate is legally qualified and equal opportunities attach to any on air appearances outside the context of an exempt program (see our post here about those appearances, principally in news and interview programs, which are exempt from equal opportunities). 

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. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As we enter the 2010 election season, questions are beginning to arise about broadcast station on-air employees who decide to run for political office, and what a station needs to do about such employees to avoid issues under the FCC political broadcasting rules.  For instance, in Arizona, talk show host (and former Congressman) JD Hayworth recently left his radio program and announced that he was planning to contest John McCain's reelection by challenging him in the Republican primary.  On a local level throughout the country, on-air station employees are deciding to throw their hats into the political ring.  And, whether that ring is a Federal office like the one that Mr. Hayworth is seeking, or a state or local elective position, whether it be Governor or member of the Board of Education or Water Commission, an announcer-candidate can mean equal time obligations under Section 315 of the Communications Act and under FCC rules for a broadcast station. 

We wrote about this issue last election cycle,here, and the rules have not changed. Once a candidate becomes "legally qualified" (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates.  What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air.  So if your meteorologist decides to run for the city council, and he appears on the 6 o'clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message.  So what is a station to do when an on-air employee decides to run for office?

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. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

The 2010 political broadcasting season is off to a fast start, with a controversy already erupting in connection with the Illinois Senate race to fill the seat once held by President Obama.  Illinois has one of the first primaries in the nation for the 2010 election, to be held on February 2, 2010.  In that race, Andy Martin, one of the Republican candidates for the open Senate seat that will be vacated by Senator Burris, is reportedly running ads on radio in Illinois stating that the front-runner for the Republican nomination, Mark Kirk, is rumored to be gay, and has many gay staffers, and asking that Kirk clear up questions about his sexuality.  Many stations in Illinois have expressed concern about running an ad from a fringe candidate in the race that makes such a controversial allegation.  Stations that are concerned need to remember that an ad by a legally qualified candidate cannot be censored once a station has agreed to sell time to the candidate.  As we've written previously, if the attacking candidate is legally qualified for a place on the primary ballot, as news reports indicate that he is in the Illinois case, then stations cannot censor that ad - and have to run it with these attacks on the front-running candidate, even if the stations do not like the message. 

The Chicago Tribune story about this controversy quotes me as stating that stations can censor a candidate ad if the ad violates a Federal felony statute.  That caveat was added to FCC policy when it was feared that Larry Flint was going to run for Federal political office and run campaign ads that might test the limits of obscenity laws.  More importantly, however, stations should recognize that, because they cannot censor an ad by a candidate's authorized campaign, the station itself has no liability for the contents of that ad.  The candidate may be sued for libel or defamation (which has occurred in other cases), but the station itself should be immune from liability as it has no choice but to run the ad or violate Federal election laws.  Stations do, however, have the ability to put disclaimers on ads - stating that they are political messages that cannot be censored and do not necessarily reflect the views of the station, but these disclaimers should be applied to all candidates for the same race equally.

For this protection from liability for the contents of a candidate ad to apply, stations do need to make sure that the ad is a "use" under FCC rules, i.e. it contains the recognizable voice or picture of the candidate.  The ad also needs to have the required sponsorship identification.

The kind of issue that is raised by this ad can be particularly troublesome in connection with ads for Federal candidates, who have a right of reasonable access.  Reasonable access means that commercial broadcast stations must provide access to all dayparts to Federal candidates who want to buy time.  Thus, we've dealt with situations where white supremacists have qualified for a place on the ballot in a Congressional race and wanted to run racist ads - and stations have had to allow it.  While this may seem like a bad outcome, it does make sure that stations cannot block unpopular viewpoints from being aired so that all points of view can be expressed by political candidates.  Thus, while individual cases may result in ugly situations, the overall purpose of encouraging diverse political speech is achieved by the rules.

Stations do need to note that ads by third parties - e.g. political parties, labor unions, interest groups, or rich individuals interested in the process - are not subject to the no censorship rule.  Thus, as ads by these third party groups can be rejected by stations based on their content, stations have theoretical liability for the content of these ads if they are defamatory.  See our post on this subject here.

The political broadcasting rules are complex and confusing.  The Davis Wright Tremaine guide to the political broadcasting rules can be found here.  But stations faced with these issues should consult with counsel for specific guidance on any specific situation that may develop.  Make those contacts now, as 2010 is likely to be a long political year with many controversies yet to come. 

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

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

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

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

According to press reports, the Obama campaign is contemplating an ad schedule during the upcoming Summer Olympics.  This raises the question of what political broadcasting rules would apply to such a buy.  The Olympics run from August 8 through 24, before the lowest unit rate window for political candidates.  Thus, the Obama campaign is not entitled to lowest unit rates.  Instead, the candidate would only be entitled to a "comparable rate" to what a commercial advertiser in a similar situation would receive.  The campaign would not get frequency discounts that a big Olympics sponsor might get, unless the campaign bought in the same frequency, or other discounts that may apply to larger advertisers.  But the reasonable access provisions of the rules do apply once you have a legally qualified candidate, so it would seem as if at least some political ads would have to be placed in the Olympic programming.  In various political seminars held throughout the country, when this question has been raised, the FCC representatives have consistently said that, given the fact that the Olympics run for such a long period, at least some access must be made available to Federal candidates who are willing to pay the price that the airtime commands.

During the Super Bowl, the Obama campaign bought time, but it was purchased on local stations, not on the network itself (see our post here).  Affiliates of NBC would also have reasonable access issues of their own, were the Obama campaign to approach them directly, or were some local Federal candidate to request time on their stations.  As these stations have less inventory during the Olympics than does the network, the amount of time that would have to be provided would be less (and a candidate need not be given access to the exact time spot that they might request - not everyone can get the coveted spots in certain high profile event's finals - as long as the access that they are given is reasonable under the circumstances).  But the access rules would apply -so at least some access would have to be given.  Note that in a few states with late primaries for Congress and the Senate, it is possible that there would be Federal candidates entitled to lowest unit rates, even during the Olympics.  State and local candidates, however, have no right of access, so stations would not have to sell them time in the Olympics.

It is interesting to note that Senator Obama will not officially be the Democratic candidate during the Olympics, as the Democratic Convention will not occur until immediately after the Olympics conclude.  Certainly, the primaries are over.  Is Obama really a legally qualified candidate before the Convention?  Seemingly, at that point, he is still a candidate for the nomination and, having made a"substantially showing" that he is a candidate in 10 states, under FCC rules he would be qualified in all states. So, whether as a candidate for the nomination or for the general election, it would seem that the reasonable access rules would apply.  So we may well have a Little politics with our sports this summer - rather than having one following on the heels of the other.

For more on the law of Political Broadcasting, check out our Political Broadcasting Guide. 

• Email This
• Print
• Comments (2)
• Share Link

In the hotly contested Democratic Presidential nominating contest, the delegates from Michigan and Florida, which already held Presidential primaries which were labeled as meaningless by the Democratic Party, may become crucial in deciding a winner in the race.  Thus, there have been discussions, particularly in Michigan, of holding another Presidential primary or caucus to award the delegates, probably in early June.  Broadcasters have asked whether they would need to provide lowest unit rates yet again if such a primary is held, given that they have already had one lowest unit rate window for the Presidential primaries already this year.  It seems to me that the answer is yes, a new lowest unit rate window would again open for any rescheduled primary.

While some might contend that a second window for the same election is somehow unfair, it is not at all unprecedented.  In a number of states, such as Louisiana, candidates in some elections must receive a majority of the votes (50% plus one) to be declared the winner.  Thus, in an election, it is not uncommon for there to be no "winner" in the November election, with a run-off having to be held a month or two later.  In those cases, lowest unit rates apply to the run-off, just as they did to the initial election.  Of course, the window is only available to the candidates competing in the election at issue, so if Michigan were to reschedule a primary in June, only the Democratic presidential candidates would be entitled to the rate - while Senator McCain, the presumptive Republican nominee, could be required to pay full rates for any ads that he might choose to run in this same period.  For more information about political broadcasting issues, see our Political Broadcasting Guide, which can be found here.

• Email This
• Print
• Comments
• Share Link

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.....

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments
• Share Link

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.

• Email This
• Print
• Comments (3)
• Share Link