This past week’s appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply. While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.
While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs." But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs. To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.
The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt. And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues. Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience. And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC’s standards, without the need for a prior determination from the FCC that they are exempt.
To be exempt, a program (1) must have a historical record of interviewing newsmakers or political figures, (2) any interview or appearance by a candidate must be on topics selected by the station (or the program producer to which the station has entrusted the programming – such as a network or syndicator) and under the control of the program producer, and (3) the persons to be interviewed must be selected for their newsworthiness or with some sort of journalistic discretion (e.g. if you only interview candidates of one party, or otherwise make the program overly partisan, the FCC might conclude that the program was not bona fide).
These decisions have expanded political speech – making programs like Oprah and the Daily Show popular stops for political candidates, and have given the electorate a unique view of the candidates (e.g. "boxers or briefs" from the MTV interview of Bill Clinton) that might not otherwise ever be exposed. While some may say that it trivializes politics, or treats them as celebrities rather than in a serious vein, it seems to me that it has in fact fostered inclusion in the political process for many who might otherwise never sit down to watch a Sunday morning talk program.
This precedent probably gave comfort to NBC in making its Leno decision though, as suggested by an LA Times editorial, there may well be reasons that broadcasters choosing to invite one major party candidate onto a high-profile program may want to be sure to invite the major opponents as well.