political broadcasting obligations

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

Political speech has been called the "life-breath of democracy" by the US Supreme Court and receives very strong First Amendment protection.  For that reason, the FCC has said that it will "not attempt to judge the truth or falsity of material broadcast regarding candidates or ballot issues."  That principle is sure to be tested in the wave of negative campaign ads we are likely to see between now and November, many of which will generate "cease and desist" letters from the subjects of those negative ads. Of course, broadcasters and cable operators alike are immune from liability for anything said in the context of a candidate "use" featuring a sponsoring candidate’s recognizable voice or image…the so-called "no censorship" rule.

There is, however, one type of political ad that could create potential liability for the media if allowed to run unchecked:  A third party or PAC attack ad that is defamatory. A defamatory ad is one that exposes the candidate to public hatred, shame, disgrace or ridicule.  Generally, these are ads that allege crime, fraud, dishonest or immoral conduct on the part of the candidate.  Truth is the only absolute defense to a defamatory claim.  Therefore, when defamation is alleged, substantiation should be requested.  Read on for details of a recent case study….


Continue Reading Political Ad Content—When Do You Need to Worry?

On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David’s PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may

The Supreme Court Decision in Citizens United v. Federal Election Commission, freeing corporations to use their corporate funds to take explicit positions on political campaigns, has been mostly analyzed by broadcast trade publications as a good thing – creating one more class of potential buyers for broadcaster’s advertising time during the political season – which seems to almost be nonstop in these days of intense partisan battles in Washington and in the statehouses throughout the country.  What has not been addressed are the potential legal issues that this "third party" money may pose for broadcasters during the course of political campaigns.  Not only will an influx of money from non-candidate groups require that broadcasters review the contents of  more commercials to determine if the claims that they make are true, but it may also give rise to the return of the Zapple doctrine, one of the few remnants of the Fairness Doctrine never specifically repudiated by the FCC, but one which has not been actually applied in over a quarter of a century.  Public file obligations triggered by these ads also can not be overlooked. 

First, the need for broadcasters to vet the truth of allegations made in political ads sponsored by non-candidate advertisers.  As we have written before(see our post here), the political broadcasting rules enforced by the FCC allow broadcasters to run ads sponsored by the candidates themselves without fear of any liability for the claims made in those ads.  In fact, the Communications Act forbids a station from censoring a candidate ad.  Because the station cannot censor the candidate ad (except in the exceptionally rare situation where the airing of the ad might violate a Federal felony statute), the broadcaster has no liability for the contents of the ad.  So candidates can say whatever they want about each other – they can even lie through their teeth – and the broadcaster need not fear any liability for defamation based on the contents of those ads.  This is not so for ads run by third parties – like PACs, Right to Life groups, labor unions, unincorporated associations like MoveOn.org and, after the Citizens United case, corporations. 


Continue Reading What is the Impact on Broadcasters of Supreme Court Decision that Corporations Can Buy Political Ads? More Money, More Ad Challenges and the Return of the Zapple Doctrine

The FCC, after taking two years off, is looking to finish their field hearings on Localism by scheduling a hearing in Portland, Maine on June 29.  This hearing is not one of the six hearings to discuss possible new multiple ownership rules, but instead a continuation of the hearings started by Chairman Powell after public controversy over the 2003 multiple ownership rules.  In an ironic twist of fate, this public notice was released on the Friday before the National Association of Broadcasters Educational Foundation hosts their Service to America Awards Dinner to honor broadcasters and the public service commitment that they have to their communities.  Thus, while the FCC is looking in the hinterlands for evidence of the responsiveness of the broadcast industry to the needs of their listeners, some of the best evidence of that service was on display some 12 blocks from the FCC’s headquarters.

The Localism hearings were part of a larger proceeding begun in response to the controversy after the 2003 multiple ownership rules.  When the Democratic Commissioners, Congressional legislators from both parties, and a variety of citizen’s groups from across the political spectrum complained about how the public’s input was not sought before the rules were adopted, the FCC tried to respond to some of those complaints by putting out a Notice of Inquiry on Localism.  The proceeding was to assess how well broadcasters were serving their communities, and the Notice asked for public comment on a grab bag of issues including the following:

  • whether a broadcaster’s public interest obligations should be quantified (bringing back obligations abolished in the 1980s that required specific amounts of the programming of broadcast stations to be devoted to news and public affairs programming), 
  • should broadcasters be required to play specific amounts of local music,
  • is payola a major issue,
  • whether more programming should be devoted to political campaigns
  • whether the voices of minorities were being heard on the airwaves.
  • if the FCC should authorize more LPFM stations and take other steps to make airtime available to new entrants


Continue Reading Another Localism Hearing and Service to America