A MARDI GRAS OF ELECTION LAW FOR TV STATIONS

Eleven days from now, on Feb. 5, 25 states will hold primary elections or caucuses in the biggest “Super Tuesday” in American electoral history.

As Mardi Gras revelers will find reasons to celebrate, and pitfalls to avoid, in the streets of New Orleans that same day, TV stations will face their own set of opportunities and challenges in the laws surrounding televised campaign advertising and news coverage. 

This article builds on my December column by highlighting the impact on stations of election developments during the past week, and by noting key lowest unit charge factors applicable to the primaries and general elections this year.  

Televised Candidate Debates: The Kucinich Complaint

Last Friday Democratic presidential candidate Dennis Kucinich filed, and the FCC Media Bureau denied, an emergency complaint seeking inclusion in last Monday evening’s nationally-televised CNN debate among Hillary Clinton, Barack Obama and John Edwards. The debate was in South Carolina, which has a Jan. 29 primary.

Kucinich invoked Section 315(a) of the Communications Act, requiring “equal opportunities” (including equal time) for opposing candidates when a candidate has appeared on-air.

The law exempts candidate appearances on certain types of “bona fide” news programs. Kucinich claimed that the debate could not be exempt unless he was included. The FCC denied the complaint and ruled that the three-candidate debate qualified for exemption as “on-the-spot coverage of a bona fide news event.”

This ruling affirms the use by the FCC in 2008 of a 1975 two-part reasonableness test to judge whether debates and other televised programs qualify for the “on-the-spot coverage” and other news-related exemptions from equal opportunities.

In addition to on-the-spot coverage of news events, the exemptions are for candidate appearances in bona fide newscasts; bona fide news interviews; and bona fide news documentaries (if the appearance of the candidate is incidental to the presentation of the subject[s] covered by the news documentary). 

The reasonableness test asks two questions. If answers to both are yes, the news event exemption from equal opportunities applies, including to debates among less than all the legally qualified candidates for the office involved.

1.  Does the format of the program fit reasonably within the news event exempt category?

2.  Was the decision to air the news event without all the legally qualified candidates (e.g., the three-candidate debate) the result of the station’s good-faith news judgment and not partisan purposes?

Last Friday, the FCC also reaffirmed that, if they pass this test, debates can be exempt from equal opportunities whether sponsored or initiated by stations, candidates or other third parties. When the broadcaster sponsors or initiates a debate, it can choose the participants based on reasonable news judgments, not to favor any candidate.

The FCC also noted that it lacks the power to order inclusion of a candidate in advance.

Even if equal opportunities applies, the complaining candidate is not entitled to appear in the same program cited in the complaint and may be given a separate “equal opportunity” to appear on station airtime.

Left unresolved by the exemption ruling is the extent to which equal opportunities requirements apply to cable programming aired by cable networks like CNN. That could come up later this year. There is no question that the requirements apply to broadcasters.

Thompson and Kucinich Withdrawals from the Presidential Race

Also in the past week, Republican presidential candidate Fred Thompson publicly ended his candidacy. Yesterday so did Congressman Kucinich, who cited exclusion from broadcast debates as a factor. Coming so close to Super Tuesday and other elections, this could affect TV stations in a couple of ways.

It may be too late for removal of Thompson and Kucinich from ballots. Whether they ceased to be “legally qualified candidates” as of their announcements is a matter of state and local law and can vary from place to place.

Presumably, airing of Law and Order episodes in which Thompson appeared as an actor may resume without triggering equal opportunities requests by Republicans still in the race, but checking state/local law on this could clarify that. The FCC would likely defer to that law if an opposing candidate sought equal opportunities based on the series episodes. 

Station obligations to Thompson, Kucinich and others who drop out as the year progresses for unused portions of time sale contracts, or other questions concerning  those contracts, are likely to be in the category of private contractual matters and not of concern to the FCC.

Lowest Unit Charge (LUC)

All stations in Super Tuesday states, and many others as well, are in the throes of the 45-day pre-primary period when LUC must be made available to all legally qualified candidates.

“Legally qualified” means all federal candidates requesting time, and all state and local candidates running for offices, if any, that a station chooses to offer time to. 

LUC questions are notoriously fact-specific and must be answered case by case. Key overriding themes, however, are helpful.

Legally qualified candidates are entitled to the most favorable commercial rate, even if that rate is based on a large volume of spots, which is in effect during the LUC window for the class of time the candidate wants to buy, even if the candidate wants only one spot. That’s the general principle. One application of it is that ad packages must be broken down into individual spot values.

LUC for each sale of time depends on the commercial advertiser rates that are in effect during the 45 days before primaries and the 60 days before the general election in November. Long-term (or any) low-rate contract commercial rates that are in effect during the 45-day pre-primary period will affect LUC rates.

When entering into new contracts for commercial time, stations can consider their impact on the LUC for primaries that are more than 45 days away, and for the general election LUC period that starts on Sept. 5.

Based on how a station sells time, there are likely to be several or many LUCs at a given station during each LUC period. This is because each class of time—run of schedule, fixed position, drive time, pre-emptible or not, etc.—can have a different rate based on business value.

In setting LUC rates, stations should be careful to compare “apples to apples”—identify the lowest commercial rate in effect for the same class of time the candidate wants and calculate the LUC based on that. This “class of time” aspect affords stations flexibility and requires careful, defensible calculations.

Still unresolved at this writing is the request for FCC ruling that commercial time sold via Internet sales rep sites does not affect LUC (discussed in this column on Dec. 14, 2007).

It’s said that politics is the art of the possible. So is political broadcast law for Super Tuesday and beyond.

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C. communications lawyer and the principal in the Law Office of Michael D. Berg, appears monthly. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.

Note: This article provides general guidance only and is not a substitute for individualized legal advice for particular situations.