Equal Opportunities - What Triggers Equal Time - Part 1

The 2010 midterm election primary campaigns are underway and they’ll be followed by the general election in the fall. The claims and counterclaims, attacks and retorts are about to begin, if they haven't already. Every candidate appearance on a broadcast station is likely to engender a demand for equal time. So, it's a ripe time to ask, "What are the real rules of equal time and when does a station have to honor the demand?"

The obligation to provide equal time to political candidates under Section 315 arises from a "use" of the station by an opposing candidate. The vexing issue has often been: What is a use? The rule considers nearly any non-exempt identifiable appearance by a candidate to constitute a use. It could be a 10-years-old tape or an old record by a former singer-turned-politician. It matters not whether it was aired with or without the knowledge of the candidate. What does matter, though, is that it be a positive appearance. Otherwise, an opponent could have an add run attacking the candidate and then claim equal opportunities. An exemption is provided for a use, or appearance, in a bona-fide newscast, a bona-fide news interview program, a bona-fide documentary, or within on-the-spot coverage of bona-fide news events (includes station-sponsored debates).

The point to remember is that any non-exempt, identifiable positive appearance of the candidate's voice will render the spot a use. A use of the candidate's voice will qualify as aural identification. Even if the candidate merely reads his or her own sponsorship tag, it makes it a use if his voice is identifiable to a substantial segment of the community. Broadcasters should play it safe and assume that it is, or require the candidate to identify himself.

The Equal Opportunities doctrine is found in §315 of the Communications Act. The doctrine requires a broadcaster to treat all legally qualified candidates for the same office alike. A broadcaster may make no discrimination in charges, practices, regulations, facilities or services rendered among legally qualified candidates for a particular office. This applies to the availability of broadcast time, the use of production facilities, the extension of credit, and the application of technical requirements.

Equal opportunity does not mean an identical segment of broadcast time. When an opposing candidate requests an equal opportunity, the licensee must consider the daypart concerned, the length of the time segment, and the desirability of the particular broadcast time (including adjacency to popular programs). The station is not required to afford an opposing candidate an opportunity to appear on the same program, or even at the same time of day or the same day of the week, as long as the time segments offered are reasonably comparable.

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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.