Posted on May 1, 2013 by David Oxenford

Reminder - Most FCC Political Rules Apply to Off-Year Elections for State and Local Offices

In odd years like 2013, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices. This week, the news has been full of stories about next week’s special election for Congress in South Carolina, pitting former South Carolina governor Mark Sanford against Elizabeth Colbert Busch, the sister of TV host Stephen Colbert. Obviously, for a Federal election like that for the Congressional seat they are competing to fill, broadcast stations serving the district they are seeking to serve need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country, as well, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply. 

So that means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. And, if the time is sold during the 45 days before a primary, or the 60 days before the general election, the time must be sold to the candidate at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station air personality decides to run for state and local office (anything from the school board or local planning commission to governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing applicants – for free, in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our article about this choice here.

Two weeks ago, I spoke on FCC legal issues to the Oklahoma Association of Broadcasters at their annual convention, and was asked a question about this issue and the one type of public office to which the rules do not apply – election to offices in Native American tribes. The Commission has stated that these elections are exempt from the FCC’s political advertising rules, but for all other state and local elections, the rules must be applied. So don’t forget about the political advertising rules – even though this is an odd numbered year!
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Posted on January 3, 2013 by David Oxenford

Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air - Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

A recent article in the Chicago Tribune demonstrates that the FCC's Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as "Equal Time") to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races - such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the "political window", equal opportunities apply. 

This situation also highlights the problems that stations can have when on-air employees decide to enter politics. We've written about options that stations have in that situation, but, if the opposing candidates are numerous or unwilling to waive their equal opportunities claims in exchange for some limited amount of airtime, then the stations are left with the choices of either having to take the employee-candidate off the air, or to provide minute-for-minute equal time to the opposing candidates – for free, as the employee-candidate did not pay for access to the airwaves. And this equal time requirement applies even if the employee-candidate never mentions his or her candidacy on the air.

 

Even though this is a political off-year, there are a significant number of state and local races that will occur, including a number of high-profile mayoral races in big cities across the country, governor's races in New Jersey and Virginia, and vacancies in a number of US Senate seats. Thus, stations need to remember their political broadcasting obligations – just when many may have thought that they could relax after this past November's elections.
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Posted on September 12, 2012 by David Oxenford

Political Broadcasting Update Part 2 - Equal Opportunities

Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.

At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.

The employee candidate, for instance, can still give rise to equal time issues. An on-air employee of the station who decides to run for political office (whether it be a local office like the school board or town council or some bigger political office), creates an obligation for the station to give equal time to every opposing candidate, if the opposing candidate asks for equal time within 7 days of the candidate’s on-air appearance – even when the employee-candidate does not mention his political race. We’ve written about this issue before, and how stations are faced with the dilemma of either risking having to give equal time for opposing candidates (who can make a political pitch even if the employee-candidate was just doing the weather or play-by-play on a sportscast), having to take the candidate off the air, or having to work out a deal with opposing candidates to waive their equal time rights. And this issue, like all equal opportunities issues, arises once a candidate is legally qualified, not just in the 45 and 60 day political windows.

Political debates have been considered, in recent years, as being exempt from equal opportunities as on-the-spot coverage of a bona fide news event, even if the station itself is organizing the debate. But, as we have written before (here and here), the decision as to which candidates to include must be made based on some defined standards to judge the newsworthiness of candidates, basing the decision on meeting some pre-defined standing in the polls or some other defined criteria other than party affiliation – and can’t be used to exclude independent or minor party candidates just because the station only wants to include the major parties. Issues about what to do when one candidate decides not to show up also present interesting issues (see our article here).

But, for this political season, the equal opportunities issue that may give rise to the most issues for stations is in the scheduling of candidate advertising. With the spending in the upcoming election expected to break all previous records and where, in “battleground states”, it seems like every ad break for the last several months has already been taken up by political advertising, stations must be careful about overscheduling political advertising for one side or the other. As a candidate has the right to match his or her opponent’s advertising schedule if they request the time within 7 days, if a station lets one candidate in a race buy too much time in the weeks immediately preceding an election, when an opposing candidate gets a last minute surge of money and comes to the station to match the first candidate’s schedule, the station may have to preempt other advertisers (or even programs), or risk contractual issues by trying to void the agreement with the first candidate, in order to meet its equal time obligations.  So sell candidate schedules with an eye toward making sure that you have availability to schedule equal time spots from opposing candidates in the waning days of an election.

As we said with lowest unit rates, this summary just scratches the surface on equal time issues – as in practice there are many nuances of these rules that make their application more complicated than they seem (and, as set forth above, they are already pretty complicated). Watch for our next article on “reasonable access” – how much time stations must provide to political candidates.
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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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