May 13, 2014
Or What Happens When Station Talent Runs For Public Office
The 2014 midterm election season is upon us. Predictions are that this year political will exceed the $3.2 billion spent in the 2010 midterm elections. Predictions also abound that radio will get an increased share of the spending. And in each election year it seems that news anchors, reporters and other popular broadcast talent, often frustrated by the state of the political scene they are reporting, decide it's time for them to fix the problems and run for office. When this happens it never fails to generate the question: WHAT DO I DO ABOUT OPPOSING CANDIDATES?
Remember the first two cardinal rules of political broadcasting:
- Stations must provide legally qualified candidates for federal office "reasonable access."
- When a legally qualified candidate makes a "use" of a broadcast facility during a non-exempt program, the opposing candidate is entitled to "equal opportunities."
There is no exemption for on-air talent.
A station personality becomes a legally qualified candidate when he/she has: announced his/her intention to run, has qualified under state law to hold the office, and has qualified to be on the ballot or as a write-in candidate.
At that point their legally qualified opponents are entitled to equal opportunities.
This creates an obvious problem. Keeping that on-air newscaster, narrator, reporter or other talent on-air, performing their normal broadcaster duties during the campaign, generates an enormous equal opportunities obligation .
But wait! Don't the equal opportunities exemptions for a bona fide newscast, news interview, documentary or on-the-spot coverage of bona fide news events apply? After all, the newscast is performed as a part of a licensee's genuine effort to focus upon a newsworthy event or deliver the news. Why should the station be penalized? Didn't the 1959 Congressional amendments to §315 specifically exempt appearances on those programs from the very definition of a "use" so they would not trigger the "equal opportunity" rights of opposing candidates?
Unfortunately, no! In its 1994 Political Programming Policies Order, the FCC clarified that the broad, historic definition of "use" includes any "positive" appearance of a candidate by voice or picture, even if unauthorized and deemed harmful by the candidate because of the nature of the endorsers.
In 2006, the Commission again addressed the definition of a candidate "use" in the context of the license renewal for Detroit Public Schools station WRCJ, stating specifically that The Commission defines a "use" as a positive, identifiable appearance of a candidate, including by voice or picture, lasting for four seconds or more, that is not exempt under the news programming exemptions.
WRCJ is also important because it addresses yet another frequent issue: allowing a candidate for public office to voice a public service announcement. WRCJ was sanctioned and fined for a failure to note in the station's political file broadcasts by a station air personality who was simultaneously a candidate for the University of Michigan Board of Regents and the station's airing of public service announcements voiced by a candidate for U.S. Congress.
Therefore, under the FCC definition of a "use," a legally qualified candidate who voluntarily appears as a performer, celebrity, or station employee in a non-exempt program will entitle his or her opponents to equal opportunities.
Actually, the Commission believes that appearances in the four exempt program categories are not uses at all; the exception applies only to candidates who are the subject of a report, interview or other coverage. So where the station employee reads the news, conducts the interview, or otherwise appears is himself a candidate, his appearance is not exempt and will be considered a "use."
Earlier, in its 1984 Political Primer, the Commission dealt with this issue extensively, stating specifically that if a radio or TV performer is identifiable on the air, appearances on radio or television in the course of a performer's regular duties, such as announcing, signing, acting or newscasting, these are "uses," entitling opposing candidates to equal time, equivalent to the period that the performer appears on camera rather than to the time measured by the duration of the entire program. As another example of how to calculate the equal opportunity, it said that a radio disc-jockey/candidate's opponent would be entitled only to the amount of time the disc-jockey's voice was heard, not to the time he was playing records. Finally, note that if the announcer's voice is neither identified nor identifiable to the public, the appearance would not be a "use," but merely identifying the announcer by name would likely make the appearance identifiable.
The good news, perhaps, is that equal opportunities are a "right" of the opposing candidate which can be negotiated, and there are good reasons why an opposing candidate might want to negotiate. Rather be labeled as the candidate who made a popular newscaster leave broadcasting during a campaign, many candidates would rather negotiate their substantial equal opportunities rights for a specific, free schedule of spots together with an agreement that the candidate newscaster make no reference to his or her candidacy during the regular broadcasts. Indeed, the Commission has noted that stations have sought waivers or partial waivers of their "equal time" rights from opposing candidates based on such agreements and that "waivers given with full knowledge of the relevant facts concerning the broadcast[s] (and assuming of course the . . . conditions were adhered to) would generally be binding . . . ."
Understand, however, that opposing candidates have no obligation to grant waivers of their full equal opportunity rights, and absent such a voluntary agreement, a use would be triggered every time a candidate employee appears on the air. Thus, to avoid equal opportunity obligations, the station might be forced to require an employee-candidate to take a furlough from on-the-air activities for the duration of his or her campaign.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.