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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

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.
Continue Reading With November’s Presidential Election Taking Shape – Likely Political Advertising Issues Ahead for Broadcasters – Looking at Equal Opportunities

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?
Continue Reading Political Broadcasting Issues that Radio and TV Stations Should Be Thinking About Now As We Approach a Very Active Election Season

The FCC yesterday issued a Declaratory Ruling at the request of the producers of a new syndicated Crime Watch Daily TV show, a program that will give a daily rundown of crime stories including ongoing court trials from around the nation, declaring that the program would not give rise to equal opportunities claims from political candidates. As the producers expected that political candidates would be featured in the program’s daily coverage of crime news (e.g. sheriffs or district attorneys who may be running for reelection in local elections), they wanted to be sure that competing candidates would not have grounds to request equal time from stations carrying the program – which obviously would severely limit the attractiveness of the program. The FCC looked at the description of the nature of the program – where the producer is making editorial decisions about who will appear on the program based on determinations of newsworthiness in the exercise of their journalistic judgment, not based on an attempt to favor or highlight any political candidate. Based on these representations, the FCC concluded that the show was exempt from the equal opportunities obligations of Section 315(a) of the Communications Act.

We have written about the equal opportunities rules (or what many refer to as “equal time”) many times before (see, for instance, our article here). When a candidate makes a “use” of a broadcast station, opposing candidates are entitled to equal time on the station, if they request that equal time within 7 days. If the first candidate did not pay for that airtime, the second candidate gets the time for free. So, if an on-air employee of a station decides to run for public office, once that employee becomes a legally qualified candidate by filing the necessary paperwork for a place on the ballot or taking the steps to launch a write-in campaign, if the employee stays on the air, opposing candidates can request, and are entitled to, equal time on the station. And these opposing candidates don’t need to deliver the weather report or introduce the next song as the on-air employee may have been doing. Instead, the opposing candidates can use the time to promote their campaign, even if the on-air employee never mentioned his or her candidacy on the air (see our article on on-air employees running for office, here). However, where the candidate appears on the air as the subject of a news report, there is no “use” of the station under FCC rules and policies, and thus no need to give equal time.
Continue Reading TV Crime Watch Show is Bona Fide News Program Exempt from Equal Opportunities Requests from Political Candidates – Reviewing the Equal Time Rule

In odd numbered years like 2015, most broadcast stations don’t think about the FCC’s political broadcasting rules. But they should – and we have been receiving many calls from clients about the perhaps surprising number of elections that are taking place this year.  These include many races for state and local political offices, everything from school boards and city council to state legislative positions, plus the odd special election to fill vacancies in Congress or some other office.  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, once they decide to sell advertising time to one candidate in a state or local race, almost all of the other political rules apply. 
Continue Reading Reminder – Political Broadcasting Rules Apply Even to State and Local Elections

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?
Continue Reading FCC Decides that it will No Longer Enforce the Zapple Doctrine – Killing the Last Remnant of the Fairness Doctrine

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. Continue Reading Reminder – Most FCC Political Rules Apply to Off-Year Elections for State and Local Offices

A recent article in the Chicago Tribune demonstrates that the FCC’s Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as “Equal Time“) to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races – such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule 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 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 – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.Continue Reading Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air – Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.

At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.Continue Reading Political Broadcasting Update Part 2 – Equal Opportunities

This past week’s political news seemed to be all about Donald Trump and his possible run for the Presidency – and his plans to announce his intent to run on the season finale of The Apprentice.  When, a week ago, we wrote about the President declaring his candidacy, there was little interest in our post, and there seemed to be little news attention in general to that announcement.  But when Donald Trump started making noise about his possible Presidential run, and his plans to announce his intent on the season finale of The Apprentice in May, our phones started ringing, asking how can he do that?  My partner David Silverman was quoted in a Huffington Post article, while my analysis was misunderstood in a Hollywood Reporter legal blog (see why I was misunderstood below).  But the question remains – can Trump continue on The Apprentice while signaling his interest in running for President?

In fact, there is no FCC rule that prohibits a broadcaster from giving airtime to a political candidate on any kind of program, as long as they are willing to provide equal time to opposing candidates.  There may be other legal issues involved in giving time to a candidate as it may in effect be a deemed a campaign contribution to the candidate (an issue apparently for PACs as well, as explained by that legal scholar Steven Colbert, here), but the FCC’s equal time rules don’t prohibit the appearance of a candidate on an entertainment program, they only demand that the stations that broadcast the program give equal amounts of time to opposing candidates who ask for it – if the opponents ask for it within 7 days of the candidate’s appearance.  And that is often the first issue – will the opposing candidate ask for it?  None of the Republicans asked when cable networks continued to run episodes of Law and Order featuring Fred Thompson, even after Thompson declared his candidacy for the Republican nomination.  Nor did other candidates request time after there was a parade of candidate appearances on Saturday Night Live during the last election (see our post on this pattern of candidates passing on their equal time rights).  But would a Trump declaration of a candidacy on The Apprentice even face that minimal risk?  Probably not.Continue Reading Donald Trump May Declare Presidential Candidacy on The Apprentice – FCC Legal Issues?