equal opportunites

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The FCC’s Media Bureau, in a Public Notice released this week, provided guidance that changed the common interpretation of one of the fundamental principles of political broadcasting law for the last thirty years – that a candidate appearance on a regularly scheduled talk program subject to broadcaster control was not subject to equal opportunities claims if that program regularly interviewed newsmakers and political figures, where the program’s discussions were under the control of the program producer and not the candidate, and where the decisions as to guests were made on the basis of newsworthiness, and not for political considerations.  The Public Notice did not actually change these criteria for determining if a program is exempt.  As noted in a written statement released by Commissioner Gomez about this Public Notice, the policies underlying earlier decisions setting policy was not changed by the Notice.  What apparently has changed is the Commission’s reliance on the good faith judgement of the broadcaster as to whether a program is exempt, without the need for any prior FCC approval of the broadcaster’s determination.  Instead, the Notice makes clear that each case is different and relies on the facts of the particular case; that past precedents can only be relied on by the party that received an explicit determination that an exemption was proper; and that there is a real risk that the FCC will disagree with a determination made by a broadcaster that a program is exempt from equal time unless the broadcaster files for and receives a declaratory ruling from the FCC that a program is in fact exempt.

This discussion all stems from the Equal Opportunities requirement in Section 315 of the Communications Act.  This is commonly referred to as the “equal time” rule.  Under the statute and the FCC’s rule adopted to implement the statute (Section 73.1941), stations who allow one candidate to “use” their station by allowing that candidate to appear on the air must provide equal opportunities to other candidates for the same office by allowing them to buy equal amounts of time (for advertising and other purchased time) or to get comparable time for free when the candidate’s appearance is not paid.  In adopting Section 315, Congress recognized that there were certain appearances of a candidate on a broadcast station that should not trigger equal time.  It specifically exempted four categories of programming from the equal time requirement, declaring them to not be “uses” by a candidate – (1) bona fide newscasts, (2) bona fide news interviews, (3) bona fide news documentaries when the candidate’s appearance is incidental to the subject of the documentary, and (4) bona fide coverage of a news event (including political conventions).  The issue discussed in the Public Notice primarily stems from the exemption for news interview programs. Continue Reading FCC Media Bureau Tells Broadcasters that Candidate Appearances on Talk Programs Could Subject Them to Equal Time Demands – More Review of Such Programs Expected From the FCC

The deadline for candidates in Texas to file for a place on the March 3 primary ballot was this week.  Deadlines for filing to become a qualified candidate in other states will follow soon for other primaries that occur in March, and then throughout the first part of 2026.  As a result, broadcast stations and cable companies across the country will be dealing with all of the FCC political rules that become important once you have legally qualified candidates.  Even before the deadline for candidates to file for their place on the ballot, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2026 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival or even exceed the record amounts spent in prior elections. What should broadcast stations be thinking about now to get ready for the 2026 elections?

The week before Thanksgiving I did a webinar for over 20 state broadcast associations on these issues (check with your state association to see if they have access to an archived copy of that webinar).  We have also written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). But there are many issues that broadcasters need to consider now.  Some of those are discussed below.Continue Reading Getting Ready for the 2026 Election – Steps Broadcasters Should Be Taking Now to Avoid Legal Issues with Political Broadcasting

This week’s political primaries in Texas are but the first of many more election contests that will occur between now and November. Already, we are receiving client calls about the political rules, how they should be applied, and what stations should be considering in anticipation of the upcoming elections. I’ve discussed the general FCC issues to be considered by broadcasters in many different ways. In January, I conducted a webinar for two state broadcast associations on these issues, following a similar webinar that I conducted with the head of the FCC’s office of political programming back in November for about 20 additional state associations. The slides from the most recent webinar are available here. Our firm also has available a Guide to Political Broadcasting, here, that provides information about many topics that come up in this area every year. But, with the election still months away, and in many states primaries that don’t occur until the summer, are there issues that broadcasters should be considering today?

Yes – there are many such issues that broadcasters should be considering immediately. As we wrote here prior to the last Presidential election, it is important to start planning early for an election. As that article details, and as set out in our Political Broadcasting guide, there is much planning for lowest unit rates that needs to take place now – before the actual windows (45 days before the primary and 60 days before the general election) in which those rates apply. Stations are likely selling advertising schedules that will run during the windows later this year, and they are putting together advertising packages that will be offered to commercial advertisers during the window. Consideration needs to be given now as to how that advertising will be treated to avoid unwanted lowest unit rate implications during the window.
Continue Reading It’s Political Broadcasting Season Again – What Broadcast Stations Should Be Thinking About Now, Before the Lowest Unit Rate Windows Open

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. 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 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture 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.
Continue Reading What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?

This has been an unusual political year, as the number of political broadcasting legal issues that have arisen seems far smaller than in past election cycles. Perhaps broadcasters are all on top of the issues this year, or maybe the questions that often arise in connection with attack ads simply pale in comparison to some of the non-advertising attacks that take place every day in the news and on other political-themed broadcast and cable programming. But one question that has come up repeatedly in these last few weeks before the election has been one about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. What is a station to do?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming) that appearance is a “use” by the political candidate. That includes “uses” even well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. So, an appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
Continue Reading What to do When a Local Political Candidate Appears in a Spot Advertisement for a Commercial Business

Last week, we posted a reminder about the obligations for stations to provide equal opportunities for competing candidates to buy time on broadcast stations, and also talked about how the equal time provisions do not apply to bona fide news and news interview programs. Almost immediately, I received several questions about on-air employees who decide to run for political office, and how they are treated for purposes of the equal opportunities rule. Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture 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.

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 2010, we wrote an article that provided a discussion of this issue, which remains valid today. An edited version of that article is below.
Continue Reading Equal Opportunities – What to Do With the On-Air Employee who Runs for Political Office

The month of November is one of those rare months on the FCC calendar when there are few routine regulatory filing deadlines for broadcasters.  In odd years, we would have Biennial Ownership Reports but, being an even year, we can wait until 2015 for that obligation for commercial broadcasters.  There is a new November 28 deadline, about which we wrote here, for TV stations with Joint Sales Agreements with other stations in their markets to file such agreements with the FCC.  While we are getting to the end of the current license renewal cycle, there are still some obligations of television stations for the airing of renewal pre or post filing announcements.  Commercial and Noncommercial Full-Power and Class A Television Stations in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan need to air License Renewal Post-Filing Announcements on the first and sixteenth of the month, while television stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont need to air their pre-filing announcements in anticipation of the filing of their license renewal applications on December 1. 

November brings a few other dates of note for broadcasters.  With the end of the political window for lowest unit rates on Election Day, broadcasters have a few last minute issues to remember.  If they sell ads on Election Day, those ads must be sold at lowest unit rates.  If they have opened their stations to take new advertising or changes in copy for any commercial client in the past year, they must be ready to take similar steps for federal candidates over this last weekend before the election.  Even if they never accommodate a commercial advertiser over the weekend, they may still need to provide weekend access to accommodate last minute equal opportunities requests. 
Continue Reading November Regulatory Dates for Broadcasters – The End of the Political Window, Incentive Auction and Online Video Clip Comments and More

The 2010 political broadcasting season is almost upon us, with Texas leading the way.  With the first 2010 primaries on March 2, candidates in Texas are already in windows during which they need to file the paperwork to qualify for a place on the primary ballot.  Once they qualify for that ballot spot, they become "legally qualified candidates…

On November 10, Davis Wright Tremaine’s David Oxenford and Bobby Baker, the head of the FCC’s Office of Political Broadcasting, conducted a webinar on the FCC’s political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable…