David Oxenford - Color

David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider?

In the case two years ago, the FCC looked at various factors to determine if the program was an “exempt program” where an appearance by the candidate did not trigger equal opportunities. Those factors include the following: (1) was the program regularly scheduled, (2) was the program content controlled by the station or program supplier, and (3) were the decisions as to the inclusion of candidates based on judgments as to the newsworthiness of the appearance and not for political purposes. Other decisions, in the past, have also required that the program be one where issues of importance to the community are regularly discussed, or candidates and other political figures are regularly featured. These factors have allowed the FCC to take an expansive view, and determine that programs that hardly seem like the typical Sunday morning talking heads news interview program can be considered bona fide news interview programs that are exempt from equal opportunities. For example, FCC staff have found programs as diverse as the Howard Stern radio show and Entertainment Tonight to be news interview programs that regularly – though not necessarily every day or even a majority of the time, but regularly – featured newsmakers. 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 the Phil Donahue program to the late-night talk shows, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If the program covers some aspect of the news, and regularly features newsmakers, it is likely to be determined to be an exempt program.

A station need not get a declaratory ruling from the FCC to rely on this exemption. However, many stations and syndicators do seek a ruling. Syndicated programmers in particular like to have the certainty of a ruling to reassure potential affiliated stations that, by picking up the program, they are not likely to subject themselves to equal time requests.

In the recent case, without knowing the full facts of the situation, we cannot evaluate whether or not the decision was justified. If the program in the past had confined itself to music and entertainment programming, without regularly tackling political or other topical issues, the concerns of the station owner may well have been justified.

In the case discussed so much this week, another issue is worth mentioning – the issue of who would get equal time if the program was not exempt. Only legally qualified candidates opposing the candidate who appeared on the air have the right to demand equal time. In these early days of the Presidential election season, there is a real question as to which candidates are in fact legally qualified candidate for the Democratic nomination and are thus entitled to equal opportunities at this point. In most elections, a candidate needs to either have qualified for a place on the ballot or, in the case of a write-in candidate, they need to make a substantial showing that they are a real candidate by demonstrating that they are doing everything that candidates do (e.g., making public appearances, passing out literature, advertising, taking policy positions, etc.).

However, there are special rules for Presidential candidates, in that once they become legally qualified in 10 states, they are considered legally qualified in all states. In addition, as Presidential campaigns often begin well before the deadlines for filing for a place on the ballot (or, for states with caucuses instead of primaries, there may be no ballot for which to qualify), a candidate for President can demonstrate legally qualified status by making a substantial showing that they are actively campaigning in at least 10 states (or nine states and DC). At this point, some of the major candidates may well have been sufficiently active in some of the early primary and caucus states (e.g., Iowa, New Hampshire, South Carolina, etc.), but can they show that they really have been active in 10 states? That is an open question that broadcasters face with equal opportunities issues about candidate appearances on national programs, or appearances on local stations in states where the candidates have not been particularly active. Stations need to discuss these issues with their counsel and perhaps the FCC as they arise.

There are obviously many other issues at play in evaluating any political issue like this, so be prepared to talk to counsel about the particular facts of your case. My colleagues and I will be doing a number of political broadcasting webinars for state broadcasting associations in the coming months – including three in the next week and one for multiple states in November. I am sure that many other FCC attorneys will be doing the same. So listen in to these webinars, and study up to help to identify the issues about which you need to be concerned. And to help identify some of the issues that you need to consider, see our Guide to Political Broadcasting, here.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

There are no additional costs for the call; the advice is free as part of your MAB membership.

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