The FCC has now joined the Nevada Courts (see our post here) in denying Dennis Kucinich entry into the Presidential debates. In a decision released this week, the FCC found that they could not force CNN to include Kucinich in its Democratic Presidential Debate, as such an action would violate the First Amendment. The FCC only has the jurisdiction to determine if Kucinich was entitled to equal opportunities for not being included, and the Commission rejected that claim as well, finding that the carriage of the debate was on-the-spot coverage of a news event, exempt from equal opportunities.
This decision is what we predicted in our post when the court’s denied Kucinich access to the Nevada Presidential debate. As we set out in that post, to encourage political debates, the FCC has determined that debates are on-the-spot coverage of news events as long as more than one candidate is included, and the decision as to which candidates to invite is made based on some rational criteria that is not exercised in some discriminatory, partisan fashion. In this case, the Commission found that CNN’s criteria – that a candidate had to have finished in the top 4 in a previous primary and be polling over 5% in an established national Presidential preference poll were not standards that were being applied arbitrarily for partisan reasons. The Commission concluded that the mere fact that Kucinich was receiving Federal funds and had unique positions on the issues was not enough to conclude that CNN was required to either include him in the debate or provide him equal time.
One other interesting aspect of this case was the fact that the Commission went through the entire equal opportunities analysis for a cable network program. As we have written before, in connection with the now-ended candidacy of Fred Thompson (and that of Stephen Colbert), the Commission has never explicitly decided if equal opportunities applies to programming supplied to local cable systems by national cable programmers. In this case, the FCC went out of its way to decide that Kucinich had no claim to equal opportunities, noting in a footnote that, as there was no claim of equal opportunities, the Commission did not have to address the question of whether the doctrine even applies to cable networks. Thus, it remains an issue to be addressed another day and, with Fred Thompson withdrawing from the race, it most likely now will be an issue addressed in another election.