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Rules of the Race

by Kathleen Kirby
Reprinted from RTNDA Communicator, all rights reserved, © November 1999
 

As Campaign 2000 reaches full steam, political candidates will continue to compete for radio and television exposure, making now a good time to remind newsrooms of the laws that come into play when covering campaigns. Certain provisions of the Communications Act, rules of the Federal Communications Commission, and copyright law bear directly on journalistic programming, and will play a role in the presidential election as the numbers and kinds of news programs involving political candidates increase.

As you likely already know, the FCC deals with questions of candidate equal-opportunity (or “equal-time”) rights on broadcast programs. It is obliged to do so under Section 315 of the Communications Act, which provides that legally qualified candidates for public office are entitled to receive, upon request, equal facilities to those used by their opponents for the same office, under certain defined circumstances. A “use” is any positive appearance by a candidate whose voice or likeness is either identified or identifiable. Many electronic journalists assume that the equal-time and other political broadcasting rules never apply to their work, because of the exemptions discussed below. That is not always the case, and you should be at least generally familiar with the rules that trigger equal opportunities.

Equal-opportunity obligations

The law creates equal-opportunity obligations from voluntary appearances by legally qualified candidates on all broadcast and cable programming, with the exception of programs that fall within the following four categories: bona fide newscasts; bona fide news interviews; bona fide news documentaries (if the appearance of the candidate is incidental to the subject of the documentary); or on-the-spot coverage of bona fide news events (including, for example, political conventions). These four categories are exempt from equal-opportunity obligations.

It is not always easy to determine whether a particular program falls within the scope of one of these specified news exemptions. The FCC will consider the format, nature and content of the program, who initiates the program, who produces and controls the program, and whether the program is regularly scheduled. Generally, in extending an exemption, the FCC looks to ensure that the programs are designed to inform the public rather than to further the campaign of any particular candidate.

A program whose focus is entertainment news may be exempt from Section 315 if it has bona fide news value. Examples of bona fide news interview programs include regularly scheduled programs like “Meet the Press,” “Today” and “Good Morning America.” Newscasts may include discussion programs, like “The McLaughlin Group,” insofar as they use news clips with candidate appearances to introduce issues. For a news documentary to be exempt, the appearance of the candidate must be incidental to the presentation of the subject or subjects covered. A documentary that focuses on a candidate, therefore, would trigger equal-opportunity obligations.

Live coverage of political debates is exempt from the equal-opportunity requirement as on-the-spot coverage of a bona fide news event. The exemption includes both debates between opposing candidates covered by a station but arranged by another party (a local civic association, for example), and debates arranged and broadcast by the station itself. In the latter example, broadcasters have the discretion to select as participants those candidates who, in the exercise of the broadcaster’s good faith news judgment, they deem most significant.

The bona fide news event exemption has afforded newsrooms substantial flexibility in avoiding equal-opportunity obligations by accommodating not only debates, but also special presentations of occasional interviews and candidate statements. Again, the station must exhibit a journalistic rather than a partisan motive. Personal attack and political editorializing.

While most stations do not editorialize for or against political candidates, those that do should be careful to comply with the FCC’s rules. The rules require that opposing candidates be notified and offered reply time when the station endorses or opposes a candidate. Similarly, the personal attack rule requires that if a personal attack is made during a discussion of controversial issues, an offer of reply time must be made within a week. While the rule does not apply to most news programming, it does apply to editorials and news documentaries.

Copyright

Aside from compliance with FCC rules, your campaign coverage may raise other legal issues. Suppose your station airs a copyrighted newscast or news interview program. During that program, a candidate appears and completely fumbles his or her answers to questions concerning several important issues. The candidate’s opponent tapes that portion of your news program and incorporates it into his negative advertising campaign. Fair use? Should your station refuse to air the spot? The courts have not definitively answered the question of whether partisan political use of program excerpts may be a “fair use” under copyright law. But in this example the public’s interest in information might win out over your station’s right to assert a copyright claim. Regardless, your station should not automatically refuse to air the spot, as the FCC’s political programming policies forbid broadcasters from censoring in any manner candidates’ paid spots and programs if a candidate “use” is present. Here’s another twist. Your station is airing a paid commercial for a candidate. Your news department is doing a special feature on political advertising and wants to use part or all of the spot in a newscast to critique its accuracy. Can you use the tape provided by the candidate to your sales department to include the commercial in the newscast? The answer to that question is probably governed by the advertising contract, which likely limits use of the tape to that intended-the broadcast of advertisements. What if you tape the spot off the air and include it in your newscast? Fair use? Maybe so. At the very least, you could make a sound argument that the use of the previously aired spot for criticism or comment is a fair one.

All of which will make for a very interesting Campaign 2000.

Kathleen Kirby is an attorney with Wiley, Rein & Fielding in Washington. These notes are intended as a general overview of the topics addressed. They should not be relied upon as a substitute for legal advice.

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