The FCC today provided two more examples of its policy that virtually any sort of interview program is going to be deemed a "bona fide news interview program" exempt from any claim of equal opportunities (or "equal time" as it is commonly referred to) if the program features an appearance by a political candidate. In the decisions released today, the FCC declared that the 700 Club produced by the Christian Broadcasting Network (decision here) and TMZ produced by Telepictures Productions (decision here), both syndicated across the country, were analogous to programs like Entertainment Tonight, which the FCC had previously found to be an exempt program. While these programs may focus on some unique aspect of the news or current affairs, the fact that they cover the candidates with their own particular slant (entertainment news, music news or whatever) does not prevent them from being considered bona fide news interview programs. Where the coverage of the candidate is done based on good faith determinations of what is newsworthy rather than to politically favor the candidate, and where the programming remains under the control of the program producers and not the candidate, the programming is considered exempt from equal opportunities. This is fully consistent with past Commission policy which we have written about many times before (see, for instance, our post on the evolution of this exemption in the context of political debates, here, and our posts on the candidacies of Fred Thompson and Stephen Colbert). Thus, while these decisions are not controversial, they do raise some questions that broadcasters and candidates should ponder.
The first interesting question is raised by a paragraph included in both of the decisions released today. The paragraph warns licensees that, if they are carrying syndicated programming that contains an appearance by a political candidate, and that program is relying on the news interview exception, the licensee must itself make a determination that the program is newsworthy. I think that this ties in with another line in the decisions stating that there is no evidence that the decisions by the program producers that the appearances by the candidates are newsworthy were not bona fide journalistic decisions. In other words, if the program producer was to include candidate appearances in a blatantly political way (e.g. by totally excluding the candidates of one party and promoting the candidates of the other), then the Commission could conclude that the decisions were not "bona fide," and that equal opportunities did apply.
This is not to say that any host with a point of view would be determined to not be bona fide, just because the host let that point of view show on the air. For instance, Bill O’Reilly may be perceived to have a political bias, but just this week he interviewed Hillary Clinton and allowed her to express her views. It would seem to me that the Commission does not forbid bias in an interviewer (as that would be an incredibly subjective test), as long as opportunities are given for the candidate to express their views, and the appearances are based on reasonable determinations of newsworthiness of the candidate. However, if the programming decisions are made in a way that would seem to endorse a candidacy (e.g. similar to the reported instance where G. Gordon Liddy used his program to arguably promote his daughter’s candidacy for a state legislative seat), and where the opponent is excluded, then equal opportunities could be found to apply.
The other question raised by these cases but not fully addressed is what happens outside of the news interview portions of a program? For instance, both Barack Obama and Hillary Clinton have read Top 10 lists on David Letterman, and both have appeared in the scripted introduction to Saturday Night Live. In neither case do these appearances seem like bona fide news or news interview programming. In a race with just two candidates, like the current Democratic primary, the risk is probably slight that there an equal opportunity issue would arise, as in neither case is the other likely to risk the adverse publicity from making an issue out of the appearance by an opponent (remember – a station need not offer equal time to the opposing candidate, the candidate must claim that time within 7 days of the first candidate’s appearance). But once the primaries are over, especially in states where there are independent candidates for president, such appearances give rise to potential claims for equal opportunities. And the opposing candidates would not need to read a Top 10 list or appear in a opening sketch on Saturday Night Live, but would instead get as much time as the featured candidate was on the air with which they could broadcast a political message. Some minor party candidate might see that as worthwhile, despite any adverse publicity that might ensue.