Political Broadcasting

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The Federal Election Commission last week adopted new rules, implementing a relaxation in its rules defining what is considered a prohibited "electioneering communication" by a union or corporation.  This change may allow more political spending by these organizations during the upcoming election campaigns  The rule changes were adopted in response to a Supreme Court case which threw out the FEC’s old rules (see our post on that decision, here).  The old rules had prohibited in the 30 days before a Federal primary or 60 days before a general election the purchase of ads by unions or corporations if they mentioned a candidate in that election.  The Supreme Court found that restriction unconstitutional, where the ad addressed an issue without mentioning the election.  Because of that Supreme Court decision, the FEC was forced to rewrite its rules.

The new rules allow corporate and union expenditures on ads on issues, even if the ads mention a candidate, unless the ad is "susceptible of no other interpretation" other than as urging a vote for or against a particular candidate.  The new rules (Section 114.15) provide a "safe harbor" which allows a union or corporation to conclude that their ad is not prohibited.  If the ad does not mention the upcoming election (or the candidacy of an office holder, or the political party of the candidate or the fact that the public will soon be voting) and does address an issue, where the mention of the candidate comes in connection with a suggestion that the public urge the candidate to support a position on the issue, then the ad will fall within that safe harbor.Continue Reading Federal Election Commission Adopts Rule That May Allow More Issue Ads During Election Season

Joining Fred Thompson and Stephen Colbert (see our stories here and here), Presidential candidate Barack Obama appeared briefly on Saturday Night Live last night and delivered that iconic line – "Live From New York, It’s Saturday Night!"  But does his appearance trigger equal opportunities for television stations that aired the program and, if so, would…

2007 – the year of the television actor who decides to become a Presidential candidate.  We’ve already written about the issues under the FCC’s political broadcasting rules, particularly the equal opportunity doctrine, with the candidacy of Law and Order’s Fred Thompson, resulting in NBC replacing him on as the on-air District Attorney of New York City.  Now, Comedy Central television host Stephen Colbert has announced his candidacy for the nomination for President – albeit only as a native son in his home state of South Carolina.  While some cynical observers might conclude that the Colbert action is only a bid to get publicity and press for his new book (just think of all the publicity that he’s getting from this blog entry – Stephen, we want our commission on all the books you sell because of the promotion you get here), his candidacy does present a useful illustration of a number of issues that arise for broadcasters and other FCC regulatees subject to the political broadcasting rules – particularly issues that arise when a station on-air employee runs for political office.  Questions that are raised include when a employee becomes a legally qualified candidate, does the candidate’s appearance on a bona fide news interview program exempt the station from equal opportunities obligations, and the amount and kind of time that is due to opposing candidates should they request equal time.

First, the question of a "legally qualified candidate."  This is important as the on-air appearance of a planned candidate does not give rise to equal time until that individual becomes a "legally qualified candidate."  For most elections, the candidate becomes legally qualified when they file the necessary papers to qualify for a place on the ballot for the election in which they plan to run, or if they actively pursue an write-in candidacy for an office for which they are eligible.  Until they are legally qualified, no matter how much they say they are running, their appearances do not give rise to equal opportunities.  One example of this occurred years ago, when Howard Stern was campaigning for Governor of New York on his morning radio program in New York City.  No equal opportunity issues arose as Stern never filed the required papers to qualify for a place on the ballot with the New York Secretary of State.

However, in Presidential elections, in addition to the usual manner of qualification, a candidate who is qualified in 10 states is deemed qualified in all states.  In addition, a Presidential candidate can become "legally qualified" for purposes of the FCC rules merely by making a substantial showing of a bona fide candidacy (e.g. having a campaign headquarters, making speeches, distributing campaign literature,  and issuing press releases).  So, if Mr. Colbert is out in South Carolina holding campaign rallies and distributing literature in support of his candidacy, he could be deemed a legally qualified candidate before filing the necessary papers (though his recent statement on NPR’s Wait Wait Don’t Tell Me that his road to the Presidency ends in South Carolina may undercut the bona fides of his campaign.  Perhaps that admission will be retracted when he appears on Meet the Press tomorrow).  But, for the other Presidential candidates who are running in all states, participating in debates and engaging in other campaign activities, they are probably legally qualified throughout the entire country now, even though the filing of the papers for a place on the New Hampshire ballot, the first primary, are not due until early November.

Continue Reading Stephen Colbert, Equal Opportunities and the Case of the Candidate Host

The FCC has taken the unusual step of issuing a Notice of Apparent Liability, i.e. an announcement that it has fined a broadcaster, against two TV station owners for failing to provide a sponsorship identification for political material sponsored by another Federal agency–the Department of Education ("DOE").  The proposed fines for these two broadcasters totaled over $70,000.  In connection with the same broadcasts, the Commission also issued a citation against the producer of the programs for failing to include a disclosure of the sponsor of the programs, warning that company that it would be fined if it were to engage in such activity in the future, even though the entity was not an FCC licensee.  These actions demonstrate the concern of the Commission over programs that attempt to influence the public, particularly those dealing with controversial issues of public importance, where those who have paid to do the convincing are not evident to the public.

These cases all stem from programs associated with conservative political commentator Armstrong Williams, who was paid by DOE to promote the controversial No Child Left Behind Act ("NCLBA") supported by the current administration.  He did so on two television programs:  his own show, titled "The Right Side with Armstrong Williams" and on "America’s Black Forum," where he appeared as a guest.  These shows were aired by various television stations without any sponsorship identification to indicate that Williams was paid by DOE to promote NCLBA on the air.

In one case, the television broadcaster received $100 per broadcast for airing Right Side, but failed to reveal that it had received any consideration.  The broadcaster claimed that the consideration received was "nominal," which is generally an exception to the sponsorship ID requirement.  However, the FCC noted that the exception for "nominal" consideration applies only to "service or property" and not to "money," holding that receipt of any money, even if only a small sum, triggers the requirement for sponsorship identification.Continue Reading FCC Proposes Fines for Political Sponsorship ID Violations

With the shifting dates for the upcoming Presidential primaries, questions have arisen as to when broadcast stations must start to give Lowest Unit rates to candidates for these elections.  As it appears that, in some states, the primaries or caucuses for the Republicans and the Democrats may be held on different dates, the Lowest Unit rate…

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Continue Reading Fred Thompson Announcement Spurs TV Coverage of Equal Opportunities Rules – And Asks If Rules Should Extend to New Media

Every day, on almost every television channel, it seems as if you can find a presidential candidate making an appearance – and it’s not just on the Sunday morning political interview programs.  Last week, it was Hillary Clinton on the David Letterman Show (where her husband is scheduled to appear this week).  In the last two weeks, both Barack Obama and John McCain have made the pilgrimage to talk with John Stewart on the Daily Show.  Mike Huckabee seems to be a fixture on the Colbert Report.  And at the end of last week, TNT reportedly stated that, candidacy or not, it would continue to run episodes of Law and Order featuring Fred Thompson.  With all of these appearances of candidates on television, one might wonder if the FCC’s Equal Opportunities (a/k/a the "Equal Time") rules FCC have been repealed.  In fact, it appears that all of these appearances are within exemptions to, or are otherwise not covered by, the Equal Opportunities Doctrine of the FCC. 

That doctrine requires a broadcaster or, in some instances, a cable system, to provide equal opportunities to competing candidates to appear on the air.  In the most common situation, if one candidate buys commercial time on a broadcast station, the station must treat other candidates in the same race equally, and allow them to buy equal amounts of time on the station at equivalent rates to those paid by the first candidate.  In a candidate is given free time, all his or her opponents are entitled to the same amount of free time, if they request it within seven days of the first candidate’s appearance.  However, the statute provides many exemptions, and all of these recent appearances appear to fall within these exemptions.  Continue Reading Barack Obama and the Daily Show, Hillary Clinton and David Letterman, Fred Thompson and Law and Order – What About Equal Time?