By: David Oxenford, Wilkinson Barker Knauer LLP
What are a noncommercial broadcaster’s obligations with respect to the political file and the rest of the FCC’s political broadcasting rules? That is a question that I have heard asked several times in the last few weeks as we approach this most important, and contentious, election. In short, I think that the answer to this question is that, in most cases, a noncommercial broadcaster will have few if any political file obligations. Why?
Broadcast stations that are licensed as noncommercial do not have any reasonable access requirements. What that means is that noncommercial stations do not have any obligation to sell time to political candidates or to make any free time available to the candidates for their messages. Years ago, reasonable access did apply to noncommercial stations, but when a DC-area congressional candidate used the statutory reasonable access requirements to force a local NPR affiliate (to which many on Capitol Hill listened) to air political commercials, Congress acted to abolish the reasonable access requirement as it applied to noncommercial stations. So, as noncommercial stations do not need to sell political time to candidates, they are not faced with the political file obligations which have triggered scrutiny from the FCC in recent months. But that is not to say that there could never be a political file obligation for a noncommercial station.
Where an obligation could arise is when a candidate appears on a noncommercial station in a program that is not an “exempt program.” Exempt programs are programs that are not subject to the equal opportunities (or “equal time” as some call it) rule. Broadcast stations must provide equal time to a candidate when an opposing candidate appears outside of an exempt program. But that should rarely, if ever, occur on a noncommercial station. Bona fide news and news interview programs are exempt programs and thus are exempt from equal time requirements – and the FCC has broadly construed those exemptions. On-the-spot coverage of a news event is also exempt(see our articles here, here and here for more on these exemptions). Candidate appearances on these exempt programs do not trigger equal opportunities, and they also do not require any political file entries.
Theoretically, the appearance of a candidate on a non-exempt program could trigger equal opportunities and require public file disclosures. For a noncommercial station, it would seem like that is most likely to occur when an on-air station employee or volunteer decides to run for political office. Just as with commercial stations, when an employee becomes a legally qualified candidate for office, every time they appear on the air (even if they are performing their regular on-air duties and not mentioning their campaign), their appearance is a “use” by a candidate subject to equal opportunities and political file obligations. See our article here about employee-candidates and what can be done if a station’s employees decide to run for office.
Similarly, if a candidate appears in other programming on the station that is not “exempt,” then political file obligations could occur. Watch for PSAs that feature local government officials who are running for re-election or for other offices, as these can give rise to public file and equal opportunities requirements (see our article here that expands on this warning). A candidate appearance on some enhanced underwriting spot – even if the spot has nothing to do with their campaign – could also trigger the political rules (see our article here about how commercial stations should treat appearances by candidates in advertising for their businesses). Or candidate appearances on some purely entertainment programs could trigger equal opportunities (e.g. when Ronald Reagan and Arnold Schwarzenegger ran for political office, their movies could not be shown on television without triggering equal time and public file obligations).
These situations are likely to be few – but be alert and make sure that your noncommercial station does not inadvertently trigger one of these situations where it needs to make entries in its political file about candidate appearances on the stations.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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