When Your Anchor Runs for Office

With the California primary history and the conventions soon to be, broadcasters across the nation are facing the onslaught of advertising for the general election. While the primaries deal with a limited set of competing candidates for nomination to major federal and state offices, the general elections will add a variety of local elections and other federal and state offices for which a primary was unnecessary. That's when broadcasters often find that their news anchor or other air personality has become a legally qualified candidate.

This is not really surprising. A prime motivation for many who enter broadcasting is a desire to be involved in public affairs. It should not then be a shock that such people want to do more by becoming a candidate for office themselves. But, that presents an issue for the licensee! As news anchors, reporters and other popular broadcast talent, frustrated by the state of the political scene they are reporting, decide that it's time for them to fix it themselves, the licensee is presented with the issue of what to do when opposing candidates demand equal opportunity.

I wrote about this issue several years ago, but with the 2016 general election getting close, it would serve us well to review the principles of a broadcasting "use" by a candidate and the equal opportunities doctrine issues tripped by a candidate "use."

The first two cardinal rules of political broadcasting are:

• Stations must provide legally qualified candidates for federal office "reasonable access," and
• When a legally qualified candidate makes a "use" of a broadcast facility during a non-exempt program, all opposing candidates are entitled to "equal opportunities."

So, when does the station have to start paying attention?

Anyone, including a station on-air personality, becomes a legally qualified candidate when he/she has:

• announced his/her intention to run,
• has qualified under state law to hold the office, and
• has qualified to be on the ballot or as a write-in candidate.

At that point their legally qualified opponents are entitled to equal opportunities. There is no exemption for on-air talent -- not even when fulfilling non-campaign employee on-air responsibilities.

This creates an obvious problem. Keeping on-air newscasters, narrators, reporters or other talent on-the-air, performing their normal broadcaster duties during the campaign, generates an enormous equal opportunities obligation.

But wait! Don't the equal opportunities exemptions for a bona fide newscast, news interview, documentary or on-the-spot coverage of bona fide news events apply? After all, the newscast is performed as a part of a licensee's genuine effort to focus upon a newsworthy event or deliver the news. Why should the station be penalized? Didn't the 1959 Congressional amendments to §315 specifically exempt appearances on those programs from the very definition of a "use" so they would not trigger the "equal opportunity" rights of opposing candidates?

Unfortunately, no! In its 1994 Political Programming Policies Order, the FCC clarified that the broad, historic definition of "use" includes any "positive" appearance of a candidate by voice or picture, even if unauthorized and deemed harmful by the candidate because of the nature of the endorsers.

In 2006, the Commission again addressed the definition of a candidate "use" in the context of the license renewal for Detroit Public Schools station WRCJ-FM, stating specifically that the Commission defines a "use" as a positive, identifiable appearance of a candidate, including by voice or picture, lasting for four seconds or more, that is not exempt under the news programming exemptions.

The WRCJ case is also important because it addresses yet another frequent issue: allowing a candidate for public office to voice a public service announcement. WRCJ was sanctioned and fined for a failure to note in the Station's political file broadcasts by a station air personality who was simultaneously a candidate for the University of Michigan Board of Regents and for the station's airing of public service announcements voiced by a candidate for U.S. Congress.

Therefore, under the FCC definition of a "use," a legally qualified candidate who voluntarily appears as a performer, celebrity, or station employee in a non-exempt program will entitle his or her opponents to equal opportunities.

So, let's address the four equal opportunities exemptions. The Commission considers appearances in the four exempt program categories to not be uses at all; but the exception applies only when the candidate is the subject of a report, interview or other coverage. So where the station employee who reads the news, conducts the interview, or otherwise appears is himself a candidate, his appearance is not exempt and will be considered a "use."

In its 1984 Political Primer, the Commission specifically stated a performer's regular duties, such as announcing, signing, acting or newscasting, are "uses," entitling opposing candidates to equal time, equivalent to the period that the performer appears on camera. For example a radio disc-jockey/candidate's opponent would be entitled only to the amount of time the disc-jockey's voice was heard, not to the time he was playing records. But, if the announcer's voice is neither identified nor identifiable to the public, the appearance would not be a "use." Merely identifying the announcer by name would, however, likely make the appearance identifiable.

The good news, perhaps, is that equal opportunities is a "right" of opposing candidates that can be negotiated, and there are good reasons why an opposing candidate might want to negotiate. Rather than be labeled as the candidate who made a popular newscaster leave broadcasting during a campaign, many opposing candidates would rather negotiate their substantial equal opportunities rights for a specific, free schedule of spots together with an agreement on whether or to what extent the candidate newscaster makes any reference to his or her candidacy during the regular broadcasts. The Commission stated that "waivers given with full knowledge of the relevant facts concerning the broadcast[s] (and assuming of course the . . . conditions were adhered to) would generally be binding . . . ."

Understand, however, that opposing candidates have no obligation to grant waivers of their full equal opportunity rights, and absent such a voluntary agreement, a use would be triggered every time a candidate employee appears on the air. In such circumstances, the station might be forced to require an employee-candidate to take a furlough from on-the-air activities for the duration of his or her campaign.

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.