On Tuesday, we were deluged with press inquiries about Dr. Oz’s declaration that he was going to seek the open US Senate seat in Pennsylvania – with many questions as to whether his syndicated television program would subject stations that aired it to equal time obligations. The Doctor avoided issues for stations by immediately terminating his participation on the program, but the events of this week highlight that, with 2022 expected to be a very busy election season that will soon be upon us, many stations may be facing the question of what to do when an on-air employee decides to seek election to a public office.
We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2017, we wrote another article here, updating prior articles on the same subject. While the rules have not changed in the 15 years that we have been writing about it, it seems that there are always questions, so it is worth revisiting the issues again.
To start with the basics, the FCC’s equal time rules state that, whenever there is a “use” by a candidate of a broadcast station, competing candidates for the same office are entitled to request “equal opportunities.” If the candidate’s appearance is at no charge to the candidate, the opposing candidates can get free time. If it is paid for by the candidate, the opposing candidates can request to buy equal amounts of time at a comparable rate. In a primary, only those running in the same party are considered opposing candidates.
A use is a positive recognizable voice or image of a legally qualified candidate outside of an exempt program. Exempt programs are news, news interviews (interpreted broadly to include almost any interview program that sometimes features newsmakers – so, for instance, the late-night TV programs are considered for this purpose to be news interview programs), or on-the-spot-coverage of a news event (e.g., a debate). For more on the basics of the equal time rule, see our post here.
Having an on-air employee who runs for political office – whether it is a federal, state or local office – gives rise to equal opportunities for competing candidates whenever that employee’s recognizable voice or image appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g., a newscaster who runs for office triggers equal time when he delivers the news, even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.
Once a candidate becomes “legally qualified” (i.e., he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates. What this means is that, if the on-air talent who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air talent appeared in the broadcast, and the opponent would be entitled to the same amount of time, which they can use to broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air. So if your meteorologist decides to run for the city council, and he appears on the 6 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message. For Dr. Oz, that would have meant an hour of time would be owed to opposing candidates whenever his program aired – hence the quick decision to stop the broadcast once his candidacy was declared.
What is a station to do when an on-air employee decides to run for office? In some cases, stations do nothing, and no one seems to mind. I’ve known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council, and no opposing candidate ever bothered to ask for equal opportunities – either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season.
But sometimes competing candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out and want any free time that they can get because of the on-air employee’s appearances. Thus, most stations choose to avoid the risk and play it safe, and don’t allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified, to avoid even the appearance of unfairness). But there may be other alternatives that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air. These include:
- Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do their job, perhaps with conditions such as forbidding any discussions of the political race
- Allowing the candidate to continue to broadcast in exchange for a negotiated amount of paid airtime for the opponents.
Obviously, consult counsel to get the wording right on any waiver, but waivers are a potential option.
Another alternative might be to give the on-air employee/candidate other duties that don’t trigger equal opportunities. If the candidate’s voice or likeness does not appear on-air, then there are no equal opportunities rights created. Currently the political rules do not apply to Internet appearances, so website work is a possibility. A move to a sister station with a service area that does not reach the district in which the candidate is running may be another alternative.
Finally, remember that equal opportunities are only available to the opponents of the employee-candidate. In a primary, the opponents are only those candidates who are running for the nomination of the same party. Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes. The Democratic candidates would not be entitled to get equal time against a Republican candidate until the nominees of each party have been selected.
For more on the political broadcasting rules, check out our Guide to Political Broadcasting, available here.