In many states, we are in election season for local offices, which has resulted in a question that has come up repeatedly in the last few weeks 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 appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago.  But, as the question continues to come up, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

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 any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate.  What is a “positive” use?  Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate).  To be a positive “use” by the advertising candidate, the appearance must also be 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 exempt from the equal time rules).. “Uses” can arise 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.  An appearance by a candidate in a commercial for his or her local business is similarly a positive “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, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
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The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.
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In recent weeks, tragic events in Orlando, Dallas, Baton Rouge and elsewhere engender thoughts for the victims, their families and their communities.  Events like these have become all too common, and certain normal routine has developed, with broadcast stations devoting substantial amounts of airtime to coverage of the event until some new story takes away their attention. While the events are ones that cause us to think about those involved, and perhaps the broader political and policy issues that each raises, broadcasters also need to consider, to some degree, the legal implications of the coverage of such events and the questions that are sometimes raised about the FCC issues that can arise in such coverage.  Why isn’t EAS invoked?  Can we interview political candidates about the events?  What other legal issues should broadcasters be considering in connection with events like these?

One question that seemingly arises whenever events like these occur is why isn’t EAS used more often?  Even during 9-11, there was no activation of the EAS system, and there were some questions of why that was.  In fact, EAS is not intended to provide a source for blanket coverage of events like those that occurred recently, or even of those with broader national implications like the events of 9-11.  There are no reporters or information-gathering sources at the other end of the EAS alert system putting together updates on the news and ready to start providing substantive coverage of any news event.  Instead, EAS is meant to provide immediate alerts about breaking, actionable events – like the approach of a severe storm, the need to evacuate a particular area in the advance of a fire or after a tanker spill or, in its origins during the Cold War, the possibility of a nuclear attack.  In any of these events, it is not EAS, but the broadcasters themselves and other journalists who are the ones that need to provide the in-depth coverage of events as they occur.  While the FCC is looking at revamping the EAS system in many different proceedings, the basic workings of the system do not change.  A weather alert or a Presidential address on a catastrophic event may occur through EAS, but the full coverage of that event, with all the developments and details, is going to come from the broadcasters themselves, not from Federal, state or local EAS alerts.
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Yesterday, the FCC’s Media Bureau issued a Declaratory Ruling, deciding that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was a bona fide news interview program – meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities (or “equal time” as it is often called). In looking at such request the FCC looked at the following factors – (1) the program was regularly scheduled, (2) its content is controlled by the station or program supplier, and (3) the decisions as to the inclusion of candidates are based on judgments as to the newsworthiness of the appearance and not for political purposes. If these factors are met, the program is considered a bona fide news interview program, and candidates can appear without competitors having the right to claim equal opportunities, and without a candidate’s appearance being considered a “use” that needs to be noted in the public files of stations that carry the program.

In addition to news interview programs, newscasts and on-the-spot coverage of a news event are also “exempt programs” where candidate appearances do not constitute “uses” giving rise to equal opportunities or public file obligations. Over the years, as we wrote here and here, the FCC has been more and more liberal in its interpretations of what constitutes a news or news interview program. It is no longer just the evening newscast on a station and the boring Sunday morning talking heads news interview program that qualify. Instead, the FCC has recognized that people get their “news” from all sorts of different kinds of broadcast programs, and the FCC has determined that any program that regularly features newsmakers, where the program content is in the hands of the producers and where the program’s guests are selected for newsworthiness, and not to promote a particular political agenda, can be an exempt news or news interview program. So the FCC has ruled that a host of programs that may not look like hard news, from the Today Show to Entertainment Tonight, to the Phil Donahue program to even the Howard Stern radio show, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If they cover some aspect of the news, and regularly feature news makers, they are likely to be determined to be an exempt program.
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After last week’s Indiana primary, it appears that the Republican Party will be nominating Donald Trump as their Presidential candidate. While Hillary Clinton’s defeat in that primary may mean that the primaries continue to have meaning on the Democratic side, with apologies to supporters of Senator Sanders among our readers, most political commentators seem to believe that the likely Presidential matchup will pit Mr. Trump against Secretary Clinton in what will no doubt be a fascinating political race. From this past weekend’s news reports, it appears that there will be no shortage of heat in that race right up until the November election. Plus, with an unorthodox Presidential candidate heading the Republican ballot, there is some speculation that down-ballot races – including those for seats in Congress – may include real contests in districts that were previously considered to be safe for one party or another. With this confusing political landscape, what legal issues can a broadcaster expect to face in the upcoming election season?

We will start our discussion today with issues that may arise under the equal opportunities rule (sometimes referred to as requiring “equal time”) that generally requires that a station provide equal opportunities for the use of its facilities to competing candidates for any political office. We have written about that issue many times, including our general article on the topic here. Also, this topic is covered in our handbook for stations on the political broadcasting rules, POLITICAL BROADCASTING – Questions and Answers on the FCC Rules and Policies for Candidate and Issue Advertising. But let’s look today at some of the particular equal time issues that may come up this year.
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With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?
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The Zapple Doctrine was an outgrowth of the FCC’s Fairness Doctrine.  The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well. Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued (see, for instance, our articles mentioning the continued life support of the Doctrine, here and here).  Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates.  Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC”s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead.

The cases just decided (available here and here) both involved the recall election of Wisconsin Governor Scott Walker, where complaints were filed against the renewals of two radio stations, complaining that those stations did not provide equal opportunities to supporters of Walker’s recall opponent even though station hosts provided on-air support for Walker.  The FCC rejected those complaints, declaring:

Given the fact that the Zapple Doctrine was based on an interpretation of the fairness doctrine, which has no current legal effect, we conclude that the Zapple Doctrine similarly has no current legal effect.

So why didn’t the FCC’s equal opportunities rule, which is still in effect, apply to this situation?
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It’s political season, and somewhere, some on-air broadcast air personality is making the decision that they really want to change careers – and run for political office.  We’ve written about what a broadcaster needs to do when that decision is made by one of their personalities, but I guess not every broadcaster reads this blog, as a story in the Salem (Oregon) Statesman Journal from last week shows that there is still some confusion about what the rule provides.  So it is time for a little refresher on the issues that arise when an on-air personality runs for political office. 

We wrote about the issue last year, when a Chicago-area on-air talk show host decided to run for local office.  Then, we noted that the requirement that a station provide equal opportunities to a candidate who is opposing the on-air personality kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule (or “equal time” as some refer to it) is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates), and equal opportunites applies to state and local as well as Federal candidates. Once a candidate is qualified, even outside of the “political window”, equal opportunities apply. 
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In odd years like 2013, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices. This week, the news has been full of stories about next week’s special election for Congress in South Carolina, pitting former South Carolina governor Mark Sanford against Elizabeth Colbert Busch, the sister of TV host Stephen Colbert. Obviously, for a Federal election like that for the Congressional seat they are competing to fill, broadcast stations serving the district they are seeking to serve need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country, as well, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply


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