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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…

Since the election of President Obama and the Democratic majority in both houses of Congress, the fears of the return of the Fairness Doctrine have been highlighted on talk radio, online, by emails and in conversations throughout the broadcast industry.  Even though President Obama had stated that he was not in favor of its return, and even liberal commentators have gone so far as to make fun of conservatives for suggesting that there might be an attempt to bring it back (see our post on Keith Olbermann lambasting George Will for making such a suggestion).  Yet this week the doctrine was back into the national discussion, coming up in a press conference with White House Press Secretary Robert Gibbs (who joked it off without dismissing the rumors) and in a speech by FCC Commissioner Robert McDowell.  What’s all the fuss about anyway?

To really understand the debate, it’s important to understand what the Fairness Doctrine is and what it is not.  We’ve seen many politicians referring to the Fairness Doctrine and the Equal Time Rule in the same sentence, as if they are part and parcel of the same thing. In fact, they are different issues.  Essentially, the Fairness Doctrine simply required that stations provide balanced coverage of controversial issues of public importance.  The Fairness Doctrine never required "equal time" in the sense of strict equality for each side of an issue on a minute for minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was in a station’s discretion, and the FCC intervened in only the most egregious cases.Continue Reading Fairness Doctrine Back in the News (Part 1) – What’s It all About?

Press Reports (such as this one) have stated that the Obama campaign has purchased half-hour blocks of time on at least NBC and CBS to broadcast a political infomercial to be aired at 8 PM Eastern time on October 29.  Some reports indicate that other broadcast and cable networks will also be broadcasting the same program.  Did the networks have to sell him the time?  In fact, they probably did.  Under FCC rules, Federal political candidates have a right of reasonable access to "all classes" of time sold by the station in all dayparts.  This includes a right to program length time, a right that was affirmed by the US Court of Appeals when the networks did not want to sell Jimmy Carter a program length commercial to announce the launch of his reelection bid.  Because of this right, the networks often had to sell Lyndon LaRouche half hour blocks of time to promote his perennial candidacy for President. 

How often do networks (or stations) have to make such time available?  They only have the right to be "reasonable." While what is reasonable has not been defined, the amount of time that will be requested will probably be limited by the cost of such time.  Even were it not limited by cost, the FCC would probably not require that a broadcaster sell such a prime time block more than once or twice during the course of an election – and given the late stage that we are in the current election, it seems unlikely that more than one such request would have to be honored during these last few weeks of the campaign.  Stations do not need to give candidates the exact time that they requested – so the rumored reluctance of Fox to sell this precise time to the Obama campaign because it might conflict with the World Series would probably be reasonable – if they offered him the opportunity to buy a half hour block at some other comparable time.   Continue Reading Obama Buys A Half Hour of Time on Broadcast Networks – What FCC Legal Issues are Involved?

The New York Times ran an article about how certain African-American radio hosts were acting as cheerleaders for the Obama campaign, and contrasting that to past elections where talk radio hosts like Rush Limbaugh gave a boost to Republican candidates on their programs.  How is it that these programs can take political positions without triggering requirements that opposing candidates get equal time?  Under FCC rules, unless a candidate’ recognizable voice or image is broadcast by a station, there is no right to equal opportunities.  In the past, until the FCC abolished the Fairness Doctrine by declaring it to be unconstitutional, even without a candidate appearance, the station would have had an obligation to give both sides of a controversial issue of public importance, such as an election, free time to respond to on-air statements by an announcer.  When the doctrine was abolished, stations were free to air pointed programs taking positions on issues, giving rise initially principally to the conservative commentators, and more recently to their more liberal counterparts such as those heard on Air America radio.

The abolition of the Fairness Doctrine also allowed broadcasters to editorialize, even endorsing candidates for political office without having to give the opponent of their favored candidate equal time, just like print media can do. Similarly, a station can take a position on a ballot issue, or on another controversial issue of public importance in their communities without having to provide time to those with opposing viewpoints – allowing stations to fully participate in their communities political life.  Under the Fairness Doctrine, stations even had to give time to those with viewpoints opposed to parties who bought time on a controversial issue if the opponents could not themselves afford to buy time.  The occasional discussion of reviving the Fairness Doctrine ignores these issues.Continue Reading No Candidate, No Fairness Doctrine and No Equal Time