FCC defends rules requiring equal broadcast time for candidates

Monday, July 3, 2000

WASHINGTON — ABC News President David Westin recently let his frustration
show over the Federal Communications Commission’s “equal time” restrictions on

It seems that ABC was planning to air two documentaries in the fall comparing
the presumptive Democratic and Republican presidential nominees, Al Gore and
George W. Bush, but the network was warned off by an ABC lawyer. The lawyer said
he feared the documentary plan might put ABC in the position of having to give
equal time to third-party candidates.

According to a report in USA TODAY, Westin reacted by calling the
equal-time provisions, which date back to 1934, “anachronistic.” And, he told
reporters, the network was considering filing a challenge to the equal-time
restrictions to try to get those documentaries on air.

Unbeknownst to Westin, that same day, the FCC was negotiating through the
equal-time minefield in a similar case involving the Arts and Entertainment
cable network. A&E had come to the commission to try to find a way to avoid
equal-time restrictions on two proposed biographies of Bush and Gore that it
hoped to broadcast in the fall as part of its “Biography” series.

Pre-clearance of program concepts is not required by law, but broadcasters
frequently approach the FCC for guidance or exemptions so they can assure
affiliate stations that they won’t be facing a barrage of equal-time requests if
they air a program that might be subject to a challenge from fringe

Although Congress has granted an exemption to the equal-time rule for bona
fide news documentaries, it applies only if a candidate’s appearance is
incidental to the main theme of the program, said Bobby Baker, chief of the
FCC’s Office of Political Programming.

“If you’re looking at something that is strictly a documentary, and the
candidate is the subject of the thing … that wouldn’t fly. That would not be
incidental,” Baker said. “But if you’re doing a documentary on campaign
techniques of the 20th century … and if one of the candidates being shown is
also running for office, then you could argue that the appearance is

A&E knew that if it was doing a biographical documentary on a candidate,
“you could never argue that his appearance is incidental, and if you put it on,
other candidates would have the right to equal time,” Baker said. So the
producers of “Biography” asked the FCC whether, if they included a current
interview with each candidate, the two biographies could be considered “bona
fide news” — another of the four exemptions — and be freed of equal-time

“We said yes,” Baker said.

Although ABC’s Westin may consider the FCC an “anachronism,” Baker says he
thinks the A&E example shows that the agency is anything but a throwback to
earlier times. Indeed, says Baker, the FCC is going out of its way to find ways
to make sure that the congressional requirements of equal time do not have a
“chilling effect” on the news coverage of political campaigns.

“An anachronism? We’re trying to not be an anachronism; we’re trying to go
with innovation. I couldn’t imagine that they (ABC) couldn’t come up with a
format that would work,” Baker said. “There’s a way to make almost any kind of
format that you’re imagining work as long as there are certain safeguards.”

Courts have consistently held that there is no equal-time provision affecting
newspapers because they enjoy a First Amendment free-press right. But
broadcasters do not enjoy the same latitude because of the theory that there are
fewer resources available for the broadcast band. The government justifies
granting broadcast licenses because of the public ownership of the airwaves and
the limited broadcast spectrum; that same rationale has led to operating rules
such as the equal-time restrictions.

The requirement of granting equal time to competing political candidates is
as old as the Communications Act of 1934 which created the FCC. Similar language
had been contained in the law’s predecessor, the Radio Act of 1927, which was
the first broadcast regulation of any kind, Baker said.

In the beginning, it was essentially an equal-opportunity provision, requiring a radio station (television as we know it was not even a dream at the time) to sell or make available the same amount of time to a candidate if it makes similar time available to his opposition. The broadcaster also was prohibited from censoring the content if a candidate appeared in the advertisement.

Things pretty much remained the same for the next 25 years until the
commission got involved in a squabble relating to a Chicago mayoral election
featuring the legendary Richard Daley. When the FCC ruled that a fringe
candidate was entitled to equal time because of news coverage of Daley, Congress
immediately revisited the 1934 act and rapidly enacted the four news exemptions
to the equal-time restrictions. The rationale, Baker said, was “to expand
journalistic coverage of the process without having the chilling effect that
might come with equal time.”

Congress said “they wanted journalists to cover the (political) process to
the broadest possible extent,” Baker said. “If you had to have equal time at
every point in covering news, broadcasters certainly would be chilled,” he

In addition to the exemption for bona fide documentaries, the other news
exemptions are for:

Bona fide newscasts on network and local television and radio stations.

Bona fide news interview programs such as “Meet the Press” or “Face the

Spot coverage of bona fide news events such as a political convention,
campaign appearances or stories about the candidate or the campaign.

Presidential debates weren’t covered under the original interpretation of
news exemptions. Although then GOP Vice President Richard Nixon and Democratic
nominee John Fitzgerald Kennedy squared off in a televised debate in 1960 — a
debate widely regarded as a turning point in the campaign because of Nixon’s
sweating under the hot television lights and his “5 o’clock shadow” that gave
him a swarthy look — the face-off occurred under a special congressional
exemption that waived the equal-time provisions.

For the next 14 years, if a television station had broadcast a presidential
debate featuring only the major party candidates, it would have been subject to
an equal-time claim from a minor party candidate. Not until 1975, when a
complaint was filed with the FCC by the fringe presidential campaign of then New
York Congresswoman Shirley Chisholm, did the FCC extend an exemption from the
equal-time rules to presidential debates.

That ruling said broadcasters could air debates that excluded less newsworthy
candidates if the decision as to whom was included in the debate was made by an
independent group sponsoring the debate. In 1983, that rule was further modified
to allow the broadcasters themselves to sponsor the debates and conduct them in
their own studios if the candidate participants were selected because of
demonstrated newsworthiness, not for any partisan purpose.

Over the years, Baker says, no one has ever made a showing that the
“newsworthiness” standard was not being correctly applied. Even Ross Perot, who
was included in the presidential debates in 1992 but complained to the
commission when he was excluded in 1996, failed to prove to the FCC that his
exclusion was based on partisan, not news, judgment, Baker said.

Another significant landmark in the FCC’s interpretation of equal-time rules
came in 1984 and involved the idea of what a bona fide news interview program
really was. When Congress created that exemption in 1959, the legislative
history mentioned two news programs in particular as examples of what it
considered a bona fide news interview program — NBC’s “Meet the Press” and CBS’s
“Face the Nation.” But in 1959, when television broadcasting was in its infancy,
no one could have imagined the variety of news interview formats that would
evolve as the medium found its legs.

The FCC tackled that issue in 1984 when it considered and granted an
exemption from the equal-time provisions for Phil Donahue’s show.

“We certainly sent the signal that news interview programs can come in all
sizes and shapes, and we have continued to do that over the years,” Baker said.
Faced with a show such as “Donahue,” the FCC decision recognized that “for us to
demand of broadcasters to adhere to whatever (they were) doing in 1959 was
ignoring change and creativity,” Baker said.

Over the years, the FCC has tried to resolve most equal-time complaints
amicably without having a formal ruling, he said.

“Most of the times we’ve ever gotten into the area, it’s (with) a candidate
who knows that his opponent has been interviewed on a program (or) excerpted in
a newscast. He goes to the station, and the station says ‘no,’ and then he comes
to us,” Baker said. “That same day, usually by talking to them … I can usually
tell … that they have no valid complaint,” Baker said.

Conversely, he said, if the candidate’s complaint appears valid, if he picks
up the telephone and “and if I tell the station they probably should provide
equal time, they probably do. They don’t want to violate the law, so if someone
from the FCC tells them to provide equal time, they usually do. At least in the
last decade, I can’t recall a single time we ever had to formally rule over it.
We do most of what we do over the telephone, and we try to mediate

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