The FCC’s Media Bureau, in a Public Notice released this week, provided guidance that changed the common interpretation of one of the fundamental principles of political broadcasting law for the last thirty years – that a candidate appearance on a regularly scheduled talk program subject to broadcaster control was not subject to equal opportunities claims if that program regularly interviewed newsmakers and political figures, where the program’s discussions were under the control of the program producer and not the candidate, and where the decisions as to guests were made on the basis of newsworthiness, and not for political considerations. The Public Notice did not actually change these criteria for determining if a program is exempt. As noted in a written statement released by Commissioner Gomez about this Public Notice, the policies underlying earlier decisions setting policy was not changed by the Notice. What apparently has changed is the Commission’s reliance on the good faith judgement of the broadcaster as to whether a program is exempt, without the need for any prior FCC approval of the broadcaster’s determination. Instead, the Notice makes clear that each case is different and relies on the facts of the particular case; that past precedents can only be relied on by the party that received an explicit determination that an exemption was proper; and that there is a real risk that the FCC will disagree with a determination made by a broadcaster that a program is exempt from equal time unless the broadcaster files for and receives a declaratory ruling from the FCC that a program is in fact exempt.
This discussion all stems from the Equal Opportunities requirement in Section 315 of the Communications Act. This is commonly referred to as the “equal time” rule. Under the statute and the FCC’s rule adopted to implement the statute (Section 73.1941), stations who allow one candidate to “use” their station by allowing that candidate to appear on the air must provide equal opportunities to other candidates for the same office by allowing them to buy equal amounts of time (for advertising and other purchased time) or to get comparable time for free when the candidate’s appearance is not paid. In adopting Section 315, Congress recognized that there were certain appearances of a candidate on a broadcast station that should not trigger equal time. It specifically exempted four categories of programming from the equal time requirement, declaring them to not be “uses” by a candidate – (1) bona fide newscasts, (2) bona fide news interviews, (3) bona fide news documentaries when the candidate’s appearance is incidental to the subject of the documentary, and (4) bona fide coverage of a news event (including political conventions). The issue discussed in the Public Notice primarily stems from the exemption for news interview programs.
Over the past several decades, as we wrote here, here, and here, the FCC’s Media Bureau has issued numerous determinations expanding in its interpretation 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 as being bona fine news or news interview programs. Instead, the FCC recognized that people get their “news” from all sorts of different kinds of broadcast programs. It determined that any regularly scheduled program that regularly features newsmakers, where the program content is in the hands of the program’s producers, and where the program’s guests are selected for newsworthiness and not to promote a particular political agenda, could be an exempt news or news interview program. So, there have been rulings from the FCC’s staff that a wide range of programs that may not look like hard news are in fact exempt programs. These rulings included programs as diverse as the Today Show, Entertainment Tonight, the Phil Donahue and Anderson Cooper daytime talk programs, and even the Howard Stern radio show. Thus, candidate appearances on these programs did not trigger equal time. If a regularly scheduled program covered some aspect of the news, and regularly featured news makers, programs were likely to be determined to be exempt. The FCC staff decisions even recognized that stations had reasonable discretion to determine what constituted exempt programs – and no official ruling was needed to be entitled to the news interview exception (just as no official ruling is needed to determine if a program is a news program).
This week’s Public Notice does not overturn the underlying principles of the prior cases. Its significance, and the reason that it has been controversial (see, for instance, the articles here and here about the decision), comes from the emphasis that it puts on the factors used to determine if a program is a bona fide news interview program. In particular, the Public Notice expresses concerns about the potential partisan motivations of the broadcaster in determining if the program is a bona fide news interview program. This is made clear from the subheading of the notice – “Emphasizes that Broadcast TV Stations Airing Covered Programming Motivated by Partisan Purposes Must Comply with Equal Opportunities Requirement.” The notice goes on to state (footnotes omitted):
Accordingly, when considering the scope of an exemption related to a specific program, the Commission has long sought to ensure “that the content, format and participants not be intended for the political advantage of candidates.” Indeed, the FCC has specifically noted that certain programs that might otherwise be exempt would be excluded from an exemption category if the program was “designed for the specific advantage of a candidate.”
The federal equal opportunities regulations operate to prevent broadcast television stations, which have been given access to a valuable public resource (namely, spectrum), from unfairly putting their thumbs on the scale for one political candidate or set of candidates over another.
The Notice goes on to note “concerns” that broadcasters have taken the consistent staff guidance over the last three decades to mean that all interview programs that are similar to the ones that were granted exceptions are also exempt. The Public Notice states that this should not be the assumption – but instead any exemptions that were granted were “fact specific” and “limited to the program that was the subject of the request.” It even goes on to say that a 2006 exemption granted to the Tonight Show with Jay Leno should not be read to say that today’s Tonight Show is exempt, as Jay Leno is no longer the host. The Public Notice goes on to urge broadcasters who want assurances that their programs are in fact exempt file requests for declaratory ruling with the FCC so that it can determine if the program meets the test for exemption.
In essence, this decision turns the practice of the past on its head, without changing any underlying law. Instead of assuming that a broadcaster will make a rational decision based on precedent as to what is an exempt program, the Public Notice says that precedent cannot be relied on except by the party getting an FCC ruling, and that the only safe course for a broadcaster to claim an exemption is to ask the FCC to issue a ruling that a specific program is exempt. In the past, such rulings took a long time to be issued. With the renewed emphasis on whether a program’s producer may have a partisan bent in making their selection for guests on various programs, the processing may be even longer as the producer’s motivations are probed. So, rather than clarify the rules, the Public Notice may have the practical effect of making broadcasters more uncertain as to what is permitted.
The probing of the partisan nature of the program also puts the FCC in the position of assessing whether programming decisions are being made for partisan purposes – or whether the program simply reflects facts and opinions that some parties do not like. We have in the past noted how uncomfortable it is for the government to be determining what is “true” and what is not in connection with political speech (see, for instance, our articles here and here). Making determinations as to whether programming decisions are made for partisan purposes may well involve these uncomfortable subjective determinations by the FCC in areas where the FCC’s mandate is limited by Section 326 of the Communications Act which states that the Commission does not have the “power of censorship” over any broadcast station and that none of its actions “shall interfere with the right of free speech” by the broadcaster.
The Public Notice has several other interesting aspects. At several places, it makes a point that a broadcaster needs to keep up with its political file obligations. In the past, where the programmer could rely on past precedent to determine that its program was exempt, it had no political file obligations for a candidate’s appearance in an exempt program. A candidate appearance on an exempt program is not a “use,” so no public file obligations are triggered (just as no public file obligations are triggered when a story on a news program features a candidate). Now, with the ambiguity as to whether or not a program is exempt unless and until the FCC says that it is exempt, how is the broadcaster supposed to know whether public file entries are required? It almost seems that this is one of those regulatory “gotchas.” If you think you are exempt and thus don’t make public file entries for candidate appearances, and the FCC later says that you are not exempt, you may have violated the public file rule if the program is later determined to not be exempt even if no other candidate ever requested equal time for the first candidate’s appearance on the program thought to be exempt.
Another anomaly in the decision is that it emphasizes television – and does not even mention radio. Radio is subject to the exact same rules as TV. Even though the Commission’s attention may be on TV, radio broadcasters should not ignore the Public Notice, as candidates who want equal time after the appearance of another candidate on a radio program will be quick to cite to this Public Notice to back up their demands.
So, what does this all mean? Likely, given the uncertainty that it creates, broadcasters will be disincentivized from having any candidates on programs that are not clearly a news interview program – the talking heads interviewed by a news anchor. But that does not mean that there will be no political talk on the late night and afternoon talk programs that this Notice targets. As the Public Notice makes clear, the equal opportunities requirements apply only when a candidate is legally qualified. In most political races (with the exception of candidates for President, where the status of candidates is more broadly defined), a candidate is legally qualified only when the candidate files the paperwork to qualify for a place on the ballot (or is a bona fide write-in candidate, see our articles here and here on write-in candidates). Candidates who have announced that they are running, but are not yet qualified, likely can still appear on programs to discuss their plans for the future. Even during the campaign, the rule applies only to candidate appearances. Appearances by surrogates or other supporters do not trigger the rule.
Thus, broadcasters need to evaluate this week’s Public Notice carefully, and talk to their legal advisors as to when they can interview candidates without political file and equal time concerns. But, even with the increased scrutiny of broadcasters signaled by this decision, political talk will go on – even if candidates themselves may be seen on the airwaves less frequently.
