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.