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

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.

One of the first issues that may be of concern to broadcasters is the use of “free media,” i.e. appearances on a radio or TV station’s programming to promote a candidate. We have already received numerous questions from broadcast stations where primary candidates for Congressional or even state offices have tried to emulate Mr. Trump, by calling in to stations’ local programs to discuss issues and promote their campaign, or by appearing live on those programs. As we have written before (see for instance, our article here), those appearances, when on a regularly scheduled news or news interview program, and where they are aired in a station’s attempt to inform their listeners making decisions using the station’s bona fine journalistic discretion (e.g., the station is not only putting on candidates from one party), are normally exempt from equal time requirements. So the mere fact that one candidate for office appears on a station more than his or her competition, or that the station chooses to devote more coverage to major candidates for office than to those of fringe parties, if that coverage is given as part of regularly scheduled news or news interview programs, does not give rise to equal time requests.

So what is a news or news interview program? As we have written before (for instance, here, here, and here), the FCC has taken an expansive view of the definition of a news interview program. Recognizing that today’s media consumer gets their news and information from many diverse programming sources, news interview programs are no longer restricted to those dry Sunday morning programs that devote themselves almost exclusively to news topics. Instead, any program that regularly features interviews with newsmakers or covers issue of importance to the community (even if done in a less serious manner) can be considered a news interview program and exempt from equal opportunities. So the late night TV talk shows are all considered exempt, as are the daytime talk shows. Even programs like the Howard Stern program, the 700 Club and TMZ have been declared to be exempt programs as they regularly feature newsmakers and political figures. Stations can ask the FCC for a declaratory ruling to demonstrate that they are exempt if they are concerned, but there is no need to get such a ruling in advance if a station feels comfortable that their program fits within the very broad parameters laid out in prior cases.

Equal time, does, however, require that stations sell equal amounts of advertising time to the candidate’s campaign committees – requiring that candidates be afforded access to the advertising time that reaches an equivalent audience. That does not mean necessarily that candidates need to be able to buy exactly the same programming time – only that they be able to reach essentially the same audience in the same time periods. Candidates must be able to buy the time – there is no obligation to give free time to a candidate that can’t afford to match their opponent’s schedule. Where issues often arise is in the late stages of a campaign.

As we near election day, the demands for time tend to escalate as even candidates who were not able to find the money to air many ads early in the campaign find those funds to air a last-minute appeal to voters. While candidates coming in late to buy advertising don’t need to be able to match their opponent’s buy from early in the campaign season, the rules do require (except in the case of very last-minute attempts to buy time) that candidates need to be able to buy time in amounts equal to what their opponent’s purchased in the 7 days prior to their request. With the potential for an unusually high number of contested races this year, stations need to think about scheduling ads in those last few weeks before the November election. Be careful about committing to the scheduling of large political buys for one candidate in the period immediately preceding the election, as you may well have to provide equal time to the opposing candidate during that same period, which could require clearing out lots of other advertisers to accommodate those equal time requests. A little careful planning now can avoid lots of last-minute concerns if you have more demands for political advertising that you are obligated to meet than you have advertising inventory available in the weeks before the election.

Finally, remember that equal time applies to state and local candidates as well as to Federal ones. While reasonable access does not require that you sell time to state and local candidates, once you sell time to one candidate for a state or local office, you must provide equal opportunities to the opposing candidates for that same race (see our articles here and here). So plan accordingly.

We’ll write about some of the other interesting political broadcasting issues that may arise in this election in the coming days. But if past is prologue, given the history of this election season so far, there will no doubt be many other interesting twists and turns that arise before November rolls around. So be ready!