As we predicted in our entry of October 14, the FCC yesterday ruled that the Tonight Show appearance of Arnold Schwarzenegger, who is running for reelection as Governor of California, was a bona fide news interview program exempt from equal time obligations.  As our October 14 posting set out in detail, previous decisions of the FCC had established that many programs that most people would consider to be entertainment qualified as bona fide news interview programs exempt from equal opportunities.  As cited in yesterday’s FCC decision, past cases where this ruling has been made include programs such as Donahue, Sally Jesse Raphael, Jerry Springer, Politically Incorrect, Howard Stern and Entertainment Tonight.  As long as the program regularly discusses political or other topical issues, the program content and topics are not controlled by the candidate, and the programming is not presented in a blatantly partisan fashion, a program will be exempt from equal opportunities. 

This decision should give comfort to broadcasters who may have been shy about letting candidates on their talk shows for fear of equal opportunities claims.  If the program discusses topical issues from time to time, it can be considered an exempt program even if the bulk of its content deals with entertainment or other issues.  The FCC is encouraging political speech – in whatever form it may take. 

As we wrote here last week, a station has no obligation, and in fact no right, to edit a candidate’s ad, so it has no liability for the contents of that ad. But at this time of year, we are receiving many calls about ads from third party groups who want to address an election, usually supporting or attacking a candidate.  For these non-candidate ads, including all ads dealing with ballot propositions, the station can choose whether or not to run the ad, and has complete editorial freedom to accept or reject an ad based on its content. Thus, as the station can elect whether or not to run an ad, it can be found liable if the ad contains material that is actionable. In fact, there have been cases where a station has been found liable for running a defamatory ad after having been put on notice that the claims in the ad were not true. 

A station has a duty to investigate the truth of an ad from a noncandidate.  Even though the station did not produce the ad, by broadcasting it, the station can be found to have liability.  Where an ad is false and contains any sort of personal attack on an individual or identifiable class of people, there is the possibility of a defamation claim.  When the ad deals with a public figure (such as an attack ad by a third-party group against a political candidate), for there to be liability, not only does the ad have to be false, but the claim must be made with "malice."  Malice can be found if the claim is broadcast either knowing that it was false or with reckless disregard for the truth.  In other words, if just by looking at the spot the station should know that it is false (e.g. a claim that your local Congressman was convicted of treason), the station should not run it.  Even if the ad is not clearly false on its face, if the station is put on notice that the claim is false yet continues to run it without investigation of the truth, then reckless disregard could be shown.

When a third party attack ad is broadcast, a station may well get a letter from a lawyer for the candidate being attacked, claiming that the ad is false, and threatening some action against the station if the ad continues to run.  Once the station is put on notice that the spot may be false, the station has a duty to investigate whether or not it is true before continuing to run the ad.  Most of the groups producing attack ads have information on hand supporting their claims, and they will quickly provide it to the station if asked.  The station should review that material, and discuss it with counsel and their corporate headquarters to determine how comfortable they are with the truth of the ad.  This is often not an easy question, but should be treated carefully to avoid any potential liability for running an ad that is not true.

The FCC today released a Public Notice announcing a 60 day settlement window for resolving conflicts between mutually exclusive Low Power Television applications for digital companion channels. Between now and December 15, applicants in 192 separate groups can file engineering amendments to remove the conflict between their applications. Parties cannot pay more than the reimbursement of an opponent’s out-of-pocket expenses to remove a conflict. If the conflicts are not removed by the December 15 deadline, applicants in each group will end up in an FCC auction, with the highest bidder getting the rights to build their digital station on the companion channel for which they applied.

These applications were filed in June in response to a window for Low Power Television stations to seek a second channel on which they can begin digital operations. These channels will allow LPTV stations to begin digital operations while continuing to operate their analog facilities until the end of the digital transition. LPTV stations not having this displacement channel will, at some point need to "flash cut" to digital – terminating their analog operations completely in order to commence their digita operation. We reported on this filing window on May 25.

In one of those "man bites dog" situations, the FCC yesterday decided a case where a cable television system asked that the FCC add the communities that it serves to a nearby television market so that it could carry a television station from that nearby market.  This is in contrast to the usual market modification cases where a cable system will ask for relief from its television carriage obligations by suggesting that the FCC delete a community from a station’s DMA, or where a television station will attempt to add communities to its market to get must-carry rights on a cable system in communities where the station would otherwise not be carried.

This case arose when a cable system located in Oklahoma wanted to carry a television station from Oklahoma City, even though the system served areas of Oklahoma technically in the Shreveport, Louisiana market.  Because a network affiliation agreement did not allow the Oklahoma City station to give retransmission consent to a cable system outside its market, the cable system decided to change the market so that the system would be considered to be in the station’s DMA.  A creative though somewhat unorthodox solution to an unusual problem

Last week, the FCC had on its open meeting agenda the approval of AT&T’s acquisition of BellSouth.  After the Democratic Commissioners were not ready to vote for approval of the transaction, the Commission delayed approval of the deal to give the public the opportunity to comment on some possible conditions to be put on the merger.  Does the process followed in this major Telco merger set a precedent that might be used in major broadcast proceedings, including the current multiple ownership proceeding? 

In the AT&T/Bell South merger, the two Democratic Commissioners objected to approving the deal without conditions.  As AT&T was willing to accept some conditions on the merger, the Chairman decided to ask for public comments on those conditions (see FCC public notices here and erratum here).  This was much the same process that the Democratic Commissioners complained was not followed in the summer of 2003, when the Commission tried to adopt revisions to the multiple ownership rules that were later largely thrown out by the Third Circuit Court of Appeals.  The Democratic Commissioners had contended that the rules adopted in July 2003 should have been been put out for public comment before becoming final – in which case some of the issues that came up in the Third Circuit, such as questions about the Diversity Index, would have been avoided.

As the Commission has now used this process in a major Telco merger, might it follow the same process before adopting any final rules in the Multiple Ownership proceeding?  In many ways, it was the process that the FCC used in adopting the new rules on children’s television issues (though the FCC actually adopted new rules, the effect of the rules were stayed, while the Commission considered revisions proposed by major stakeholders before it adopted its revised set of rules late last month).  The Democrats reportedly asked for assurance that, before the Notice of Proposed Rulemaking was adopted in the multiple ownership proceeding, public comment would be sought on any final rules.  As there were three Republicans on the Commission who outvoted the Democrats on the ownership issues (while there were only two Republicans voting on the Telco merger as Commissioner McDowell recused himself ), no assurance of public comment on draft final rules was provided.  But perhaps, as the ownership Notice of Proposed Rulemaking had so few concrete proposals (see our summary of the proposals), this Telco case will signal a new procedure for dealing other major controversial issues. 

 

This past week’s appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply.   While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.

While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs."  But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs.  To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.

The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt.  And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues.  Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience.  And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC’s standards, without the need for a prior determination from the FCC that they are exempt.

 

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