equal time

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  • The FCC’s Media Bureau released a Public Notice purporting to provide guidance directed to broadcast TV stations on whether the
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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

It’s the start of another year, so it is time to dust off the crystal ball and look at what we expect to be the big regulatory and legislative issues facing broadcasters in the new year.  Looking back on our forecast for 2025 that came out just over a year ago, I was surprised to see that we had predicted that the new Commission would be interested in defining the public interest standard, reviewing network-affiliate relations, and looking at the political biases that broadcasters allegedly exhibited.  All of these were in fact issues that came up this year but, as no conclusions were reached on any of these matters, these same issues will no doubt continue to be on the FCC’s agenda in 2026.

Public Interest Standard

Throughout 2025, FCC Chairman Carr has been talking about the public interest standard in most of his many public discussions of media regulation, and those comments have prompted much legal analysis from all corners.  We expect that, in the coming year, there will continue to be discussions about what the public interest standard really means– and just how far that standard goes in authorizing the FCC to act to regulate broadcast operations.

Network-Affiliate Relations

The FCC has also received preliminary comments on the relationship between television networks and their affiliates.  As we noted last week, reply comments were due December 29, so the pleading cycle has now closed.  In the Public Notice asking for these comments, there was a statement that the comments would be used to inform the Commission as to whether a formal rulemaking proceeding was necessary to further review the issues.  With the comments in, we will be watching to see if the FCC moves forward with any additional proceedings. Continue Reading Crystal Ball Time – What Are the Regulatory and Policy Issues Broadcasters Should Be Expecting to Deal With in 2026?

The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 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, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies.
Continue Reading Candidate Filing Deadline for the Primaries in the Texas 2022 Elections Just Passed – What Should Your Station, No Matter Where It Is, Be Doing to Prepare for the Coming Election Advertising Deluge?

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • FCC Chairwoman Jessica Rosenworcel’s nomination for another five-year term at the agency was approved by the Senate Commerce Committee. The

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On Tuesday, we were deluged with press inquiries about Dr. Oz’s declaration that he was going to seek the open US Senate seat in Pennsylvania – with many questions as to whether his syndicated television program would subject stations that aired it to equal time obligations.  The Doctor avoided issues for stations by immediately terminating his participation on the program, but the events of this week highlight that, with 2022 expected to be a very busy election season that will soon be upon us, many stations may be facing the question of what to do when an on-air employee decides to seek election to a public office.

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 2017, we wrote another article here, updating prior articles on the same subject.  While the rules have not changed in the 15 years that we have been writing about it, it seems that there are always questions, so it is worth revisiting the issues again.
Continue Reading Dr. Oz Decides to Run for the Senate – What to Do When Your On-Air Employee Decides to Run for Public Office

What are a noncommercial broadcaster’s obligations with respect to the political file and the rest of the FCC’s political broadcasting rules?  That is a question that I have heard asked several times in the last few weeks as we approach this most important, and contentious, election.  In short, I think that the answer to this question is that, in most cases, a noncommercial broadcaster will have few if any political file obligations.  Why?

Broadcast stations that are licensed as noncommercial do not have any reasonable access requirements.  What that means is that noncommercial stations do not have any obligation to sell time to political candidates or to make any free time available to the candidates for their messages.  Years ago, reasonable access did apply to noncommercial stations, but when a DC-area congressional candidate used the statutory reasonable access requirements to force a local NPR affiliate (to which many on Capitol Hill listened) to air political commercials, Congress acted to abolish the reasonable access requirement as it applied to noncommercial stations.  So, as noncommercial stations do not need to sell political time to candidates, they are not faced with the political file obligations which have triggered scrutiny from the FCC in recent months.  But that is not to say that there could never be a political file obligation for a noncommercial station.
Continue Reading Noncommercial Broadcasters and the Political File

In recent weeks, with so many government officials looking to get messages out about the coronavirus pandemic, we have received many questions about issues that arise when political candidates appear on public service-type announcements – either free PSAs provided by the station or paid spots purchased by some governmental entity.  While such announcements can be run by stations, if a legally qualified candidate personally appears in the spot (their recognizable voice in a radio ad or their voice or picture in a TV ad), stations need to note the advertising purchase in their FCC Online Public Inspection File, as these spots constitute a “use” by a candidate, and they can also give rise to equal opportunities by opposing candidates.

If the use is in a spot on which the candidate appears is a paid-for spot, then any equal time to which opposing candidates are entitled would be on a similar paid-for basis.  This is the same situation as if a commercial advertiser who voices or appears in their own ads decides to run for office (see our article here).  But if the spot is a free PSA, then the appearance of a legally qualified candidate, even if the PSA says nothing about their campaign, can trigger the requirement to give free equal time to any opposing candidates who make any equal opportunities request within seven days.
Continue Reading Reminder:  PSAs Featuring Candidates Can Give Rise to Equal Time and Public File Obligations