Can I Interview A Candidate?

We may be in a hot and heavy political season of 2016, but broadcasters know that the world does not stop turning between now and November. As the old saying goes, s... (expletive deleted) happens, and we frequently need to hear from our public officials, even though they may be running for reelection or a new office.

With that in mind, a frequent question during campaign season comes from broadcasters asking when can they interview a candidate without incurring the consequence of a string of equal opportunity demands or the need to give away free time. With that in mind, I recently received this question: "Will an interview that we want to conduct during a newscast, where there will be a positive appearance by a current candidate, be considered a 'use' that incurs equal opportunities? This is a public official running for reelection and we want to interview him about nonpartisan matters, but our GM is worried that his opponent would have the right to ask for the same time amount of time to do whatever he want? PS: This interview will be done without charge to the candidate, so could the other candidate ask for free time?

It is important to know the details of the equal opportunities and lowest unit charge rules, including their exceptions. Those rules apply only to a "use," or positive appearance by a candidate, that falls outside of four exceptions provided by Congress in the Communications Act. Those exceptions are:

• A bona fide newscast
• A bona fide news interview program
• A bona fide documentary, and
• On the spot coverage of bona fide news events (which includes station sponsored debates)

In 1959, Congress amended the Communications Act to specifically exempt these four categories of news programming from a "use" appearance by a legally qualified candidate that would otherwise have incurred equal opportunities at lowest unit charge. Congress believed that the interest of the public in bona fide political news and informational coverage of current events, outweighed the possible risk of the appearance of favoritism through a slight disparity of exposure. Still, the exemption is not so broad that actual favoritism shown to a candidate, even within one of these exempt categories, would defeat the exemption and could lead to a challenge of its bona fides.

A newscast may be considered bona fide if it is regularly scheduled or if it is a special newscast precipitated by a particular and sudden news event. Above all, it must involve the broadcaster's genuine effort to focus on a newsworthy event, rather than on an effort to advance a candidacy.

In making that determination of whether a newscast or news interview program is bona fide, the Commission considers the following:

• Whether the program is regularly scheduled outside the election period;
• How long the program has been broadcast;
• Whether the decisions on the format, content and participants based upon reasonable, good faith journalistic judgment and intended to advance a candidate's candidacy;
• Whether the selection of persons and topics is based upon their newsworthiness;
• Whether the normal format of the program has been followed; and
• Whether the licensee's news coverage as a whole has shown indications of having given favoritism to a particular candidate?

Even individual segments of the variety or magazine-show can qualify as exempt bona fide news interviews. For example, the Commission has held that programs such as Larry King and even the Howard Stern radio show contained legitimate news interviews, as was the appearance of Arnold Schwarzenegger on the Tonight Show when he announced his candidacy for governor. However, contrast that with the recent appearance of Donald Trump on Saturday Night Live, when NBC readily conceded the show and Trump's appearance was entertainment and not a news interview appearance.

Another exempt category is the appearance of a candidate in a bona fide news documentary. A program is considered to be a bona fide documentary when it develops the background chronology leading to an event in order to place it in historical context. One qualification: The appearance of a candidate on such a program cannot be the primary purpose of the program, but rather would be incidental to the presentation of the subject of the documentary.

Finally, on-the-spot-coverage of the bona fide news event is, of course, legitimate news. The Commission has held that the appearance of a candidate during a World Series pregame ceremony to present an award to former baseball player Jackie Robinson was a bona fide news event. Covering a candidate's appearance at a natural disaster such as an earthquake, or a terrorist incident would be likely considered a bona fide news event. Candidate debates also qualify as on-the-spot coverage of a bona fide news event when the debate or its coverage was motivated by the licensee's determination that it would be a newsworthy event, and that even includes debates that are sponsored by and produced by the station.

There was a time when FCC staff would issue an advisory with respect to a proposed news interview or other event, to rule on its qualification as a bona fide exemption. More recently, the Commission has taken the position that many such events have been ruled upon and there is sufficient guidance available to broadcasters. Therefore, it has declined to entertain such ruling requests, absent a very extreme and unprecedented situation.

So the next time you want to cover a news event or interview that happens to include a candidate for public office, make a reasonable decision about the bona fides of the event, consider which exemption will apply and be prepared to defend your determination. Once you determine that you can rely upon an exemption, the appearance should not be considered a "use" subject to equal opportunities by opposing candidates.

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.