Posted on February 16, 2010 by David Oxenford

When Potential Candidates Like Sarah Palin, Mike Huckabee, and Harold Ford Are On Radio, TV and Cable - FCC Issues?

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. 
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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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