In a wild series of legal decisions preceding the Democratic Presidential debate in Nevada, a Nevada judge ruled that MSNBC had to include Congressman Dennis Kucinich in its debate, only to be overruled by a decision of the Nevada Supreme Court released less than a hour before the debate was to begin. Notably, the initial decision was not based on FCC rules, but instead on a breach of contract theory, as FCC precedent seems relatively clear that a Presidential debate sponsor need not include all candidates in a debate for the coverage of that debate by a broadcaster or cable operator to be exempt from the equal opportunities rules enforced by the FCC.
The FCC has long recognized that, to promote the coverage of debates on broadcast media, the sponsors need to be able to limit participation in those debates for them to have any meaning. In some races where there are minimal requirements for being placed on a ballot, there can be dozens of candidates for a particular office. If all needed to be included in a broadcast debate, the debate would never be broadcast, and the public would not receive the benefit that on-air coverage would provide. The issue first arose when the equal opportunities rule was adopted, as broadcasters feared that, unless every candidate for a particular office was included in the debate, any broadcaster or cable company carrying the debate would have to give free "equal time" to any candidate that did not participate in the debate.
Historically, a strict reading of the equal opportunities requirements of Section 315 of the Communications Act for many years greatly restricted the number of broadcast debates. It was necessary for Congress to suspend the law to allow the Nixon-Kennedy debates. It was not until the 1970s when the Commission decided to allow broadcasters to carry debates sponsored by third-parties as "on the spot coverage of news events" so as to be exempt from equal opportunities. Eventually, the Commission determined that debates were news events no matter who sponsored them, so broadcasters themselves could sponsor the debates, as long as they set rational criteria to decide which candidates to invite to participate. They could not choose participants based on any sort of partisan criteria. Thus, debate sponsors often set standards based on the candidate’s standings in the polls or established nonpartisan panels to assess which candidates had a serious opportunity to win the election. These rational criteria were used to assess the newsworthiness of the candidates, and avoided the need to include every candidate for an office. And, while there have often been objections to the particular criteria selected (as was the case when Ross Perot was excluded from the 1996 Presidential debates even after having participated in the 1992 debates and even while receiving substantial public funding for his campaign as the Committee running the debates concluded that he had not met the criteria they set), the FCC and the courts have been quite deferential to the decisions of the debate sponsors.
As debate sponsors have been given great latitude in establishing the criteria that they use in choosing who to invite to a debate, the debates have prospered, as witnessed by the number of debates held in this year’s presidential primaries. Because of this deference, the Kucinich campaign had little chance of prevailing on an argument that MSNBC was not complying with the Communications Act and the FCC rules (and, as the Nevada Supreme Court pointed out, the issue of Congressman Kucinich’s participation had never even been raised with the FCC, which has primary jurisdiction over equal opportunities complaints). Thus, the campaign raised an interesting argument that tried to avoid the FCC’s jurisdiction – contending that MSNBC had entered into contract with the campaign promising to include the Congressman in the debate, and then had reneged on that contract. The Nevada Supreme Court rejected that argument on fairly technical grounds (that Kucinich had not paid any consideration to MSNBC), though it seemed clear that the Court did not want to invade the jurisdiction of the FCC and start to adjudicate which candidates should be included in broadcast or cablecast debates.
So the debate went on without Congressman Kucinich, and the case helps reinforce the FCC’s primacy over decisions regarding political speech and debate carried by broadcasters and cable companies. But it is still early in the 2008 election season, so we will no doubt see more disputes about the political broadcasting rules as the election season progresses. Watch this blog for more developments, and check out our Political Broadcasting Guide for answers to many political broadcasting questions.