Whether you are in California or Maine, it's election season again. Here is a brief review of applicable law and regulation governing access to time by political candidates.
- Right to access
The political broadcast rules require stations to provide federal candidates reasonable access to their facilities. State and local candidates do not have the same right of access. Indeed, no station licensee is required to permit the use of its facilities by any legally qualified candidate for state or local public office. However, if a licensee permits any such candidate to use its facilities, it must afford equal opportunities to all other candidates for that office. And that candidate may say or show whatever he or she wants. The licensee cannot censor any of a candidate's broadcast material.
- Qualifying uses
Certain appearances by a candidate do not count as a “use” of broadcast facilities and do not trigger the equal opportunity requirement. For example, appearances in a bona fide newscast, news interview, news documentary (if the appearance of the candidate is incidental to the presentation of the subject of the documentary), and on-the-spot coverage of bona fide news events do not give rise to equal opportunity obligations.
However, if a candidate's appearance, either by voice or picture, does not fall under any of these exceptions, then the appearance may be what the FCC calls a “use,” in which case the door would be opened to all other legally qualified candidates who may want equal time. Once the first use has occurred, a broadcaster must accommodate other legally qualified candidates who request time within a week after the first use.
Every licensee must keep and permit public inspection of a complete record of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. Unlike other parts of the public inspection file, a licensee whose main studio is outside its community of license does not have to honor telephone requests for photocopies of the political file.
- Lowest unit charge
During the 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate, a broadcaster cannot charge a legally qualified candidate more than the lowest unit charge of the station for the same class and amount of time for the same period for any advertisement related to the candidate's campaign. Bonus spots provided to advertisers must be factored into calculation of lowest unit rate.
- Special California issues
In even a two- or three-candidate race, these rules can be troublesome. Consider California this year, where at last count there were more than 130 announced candidates for governor. By taking one candidate's spots, stations will open the door to 129 potential equal time requests.
In California there is another perplexing twist: As a technical matter, the current governor, who is the subject of the recall election, is technically not himself a candidate as far as California is concerned. Does the governor then qualify as a candidate for FCC purposes? The commission has taken the position in the past that a person who is subject to recall is a candidate under the FCC's rules if the candidates to replace him appear on the same ballot as the recall.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
December 1 is the deadline for filing with the FCC the biennial ownership reports, and for the placement of annual EEO reports in the public file, for TV stations in the following states: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont.
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