Last week, we posted a reminder about the obligations for stations to provide equal opportunities for competing candidates to buy time on broadcast stations, and also talked about how the equal time provisions do not apply to bona fide news and news interview programs. Almost immediately, I received several questions about on-air employees who decide to run for political office, and how they are treated for purposes of the equal opportunities rule. 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 pictureappears 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 7 days of the personality’s appearance on the air.
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. An edited version of that article is below.
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 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 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 these are options.
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 another alternative. 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, as we are still in primary elections in many states, especially for state and local elections, remember that equal opportunities only applies to the opponents of the candidates. In the 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, available here.