By: David Oxenford, Wilkinson Barker Knauer LLP,
It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.
Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within seven days of the personality’s appearance on the air.
Once a candidate becomes “legally qualified” (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates. What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air. So if your meteorologist decides to run for the city council and he appears on the 6 p.m. news for three minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (three minutes for each of the last seven days) and that opposing candidate does not need to read the weather, but can do a full political message. So what is a station to do when an on-air employee decides to run for office?
In some cases, stations do nothing and no one seems to mind. I’ve known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council and no opposing candidate ever bothered to ask for equal opportunities – either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season.
But sometimes competing candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out and want the free time that they can get because of the on-air employee’s appearances. Thus, many stations play it safe and don’t allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified to even avoid the appearance of unfairness). But there are other alternatives that can be pursued that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air. These include:
- Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race.
- Allowing the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents.
Obviously, consult counsel to get the wording right on any waiver, but waivers are an option.
Another alternative is to give the on-air employee/candidate other duties that don’t trigger equal opportunities. If the candidate’s voice or likeness does not appear on-air, then there is no equal opportunities right. Right now, the political rules do not apply to Internet appearances, so website work is a possibility. Also, a move to a sister station with a service area that does not reach the district in which the candidate is running is another alternative.
Finally, remember that equal opportunities are only available to the opponents of the employee-candidate. In a primary, the opponents are only those candidates who are running for the nomination of the same party. Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes. The Democrats don’t get equal time until the nominees of each party have been selected.
For more on the political broadcasting rules, check out our Guide to Political Broadcasting.
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).
There are no additional costs for the call; the advice is free as part of your membership.