Equal Time Provision

Overview

In the United States, the Federal Communications Commission (FCC) governs broadcasting, both by enforcing relevant laws passed by Congress, and through their own regulatory authority. The equal time provision is one such regulation, having been introduced as part of the legislation that defined the powers of the Federal Radio Commission (the FCC's predecessor) and clarified, expanded, or revised through subsequent legislation and FCC decisions. As broadcasting became more and more important to the political landscape—both as a medium for advertising and because of the role played by the news cycle—these regulations have played a major role in shaping political discourse. While FCC regulations are complex and every generalization is accompanied by a number of exceptions, in general they govern who has the right to broadcast political advertisements, what stations or networks can charge for that air time, and the requirements pertaining to recordkeeping and disclosure.

The equal time provision is a regulation governing political content in American broadcasts, originating with the 1927 Radio Act and modified several times in later years. The provision requires that, outside of special circumstances, equal opportunity to express their views must be provided to all political candidates, without a given station or network favoring any particular candidate or party. The provision was adopted out of a concern over the influence of radio broadcasts—and later television broadcasts—on elections. A separate provision also governs fairness in advertisement pricing for political candidates, to avoid the possibility of biased stations making "equal time" available to opposition candidates only at prohibitively high prices.

The major exceptions to the equal time rule include syndicated news and talk show content, which the FCC considers on a case by case basis; normal news coverage (not paid for by any candidate or political action committee), including both formal interviews and on-the-scene news coverage; and documentaries (again, if part of the station's normal programming, not airing as a long-form advertisement). Since 1983, political debates not hosted by the station are classified as normal news coverage; because this was not always true, a special exception had to be passed in 1960 in order to permit the televising of the now-famous Kennedy-Nixon debates (Hazlett, 2018).

For purposes of FCC regulations, a political candidate is someone who has announced his or her intention to run for a specific office; who is qualified to hold that office; and who is qualified to be on the ballot for that office, or is eligible as a write-in candidate. "Qualified" here refers to the legal sense: The candidate meets the legal requirements (e.g., citizenship, age, payment of fees), independent of whether they possess the relevant skill set for the office. The relevant legal requirements are those of the state in which the station is located, unless the candidate is qualified in at least ten states (a distinction largely only important when the candidate is running for president).

In discussions of equal time, and of the now-defunct fairness doctrine, the FCC refers to "uses" of the station's broadcasting by the candidate. Rulings have clarified that such "use" is not limited to broadcasts approved by the candidate or the candidate's campaign committee; all that matters is that the appearance of the candidate's identified or identifiable voice or likeness is positive in nature. This not only means that advertisements purchased by third parties count—it also includes positive appearances of the candidate that are not political in nature. For example, when Donald Trump ran for president in 2016, NBC had to suspend reruns of his reality program The Apprentice, or else trigger an equal time requirement.

Further Insights

In the case of qualified candidates for federal office—including the House of Representatives and Senate, as well as the office of the president (which extends to the presidential candidate's running mate)—the FCC has ruled that candidates are entitled not just to equal time but also to "reasonable access." Reasonable access means that stations are required to let qualified candidates purchase advertising time—albeit only through the candidate himself or his campaign committee; reasonable access does not extend to third party purchases or "issue advertisers." The reasonable access provision means that stations cannot elect to simply refuse all political advertising in order to avoid triggering an equal time requirement. Stations can, however, refuse to air advertisements for candidates running for state or local offices, so long as they refuse them to all candidates in any given race. Further, stations cannot alter the content of political ads, provided they are paid for by the candidate or his committee; because the exception here, as with many of these provisions, is third party ads, this also means that stations assume liability when airing third party ads.

What access is "reasonable" is sometimes open to interpretation. Though a federal candidate is guaranteed access, for example, they are not entitled to demand time during specific programs or times of day, and stations have the explicit right to refuse political advertising during news programs. Beyond that, the FCC had tended to handle conflicts on a case by case basis, but has discouraged stations from imposing quotas on the amount of time available for political advertising. Because the equal time provision applies to both the primary and general election, in an especially vital campaign cycle, there may be a need to make a good deal of time available to political advertising, given that an ad by one candidate during the primary could trigger equal time rights for a dozen other candidates.

The FCC also governs what stations may charge for political advertising, dictating that candidates should be charged the "lowest unit charge" during the 45 days before a primary and the 60 days before a general election, known in the broadcast industry as the LUC windows. The LUC is determined according to the lowest rate the station charges any other advertiser for the same type of advertising (meaning the class of advertisement and the time period in which it airs). As simple as that may sound, the process can be complicated, given the number of factors that govern advertising prices, from class (e.g., whether the purchased spot is preemptible, a discounted class that may be preempted by an advertiser paying more) to discounts for bulk/recurring purchases; the LUC for any given proposed advertisement varies as a result. Though the FCC's disclosure requirements do not extend to a written disclosure of the station's advertising rates by class and time, in practice stations need to maintain them and provide them to candidates on request, in order to streamline FCC compliance for everyone. Like reasonable access, the LUC requirement applies only to the candidate and his or her committee, not third party ads.

What the FCC requirements do dictate is that all political advertising indicate who paid for or sponsored the ad; the station is ultimately responsible for ensuring that such declarations are made, even if the advertiser provides a spot without it. When advertisements are broadcast on television, the statement must be visible (taking up at least four percent of screen space) and run for at least four seconds. The Bipartisan Campaign Reform Act (BCRA) imposes additional requirements that are applicable to some ads: for example, any ad that mentions an opposing candidate by name must be accompanied by a statement that the candidate supported in the ad approves the broadcast (if televised, the ad must also include an image of the candidate). This is called the "stand by your ad" provision, designed to prevent campaigns from running negative ads that the candidate can disavow. In keeping with the terms of the provision, federal candidates are required to provide stations with written certification identifying whether or not an opposing candidate is mentioned in an ad and affirming their compliance with the "stand by your ad" provision.

Furthermore, there are specific records stations are required to keep. At a minimum, they must maintain a record of all requests for political air time (even requests that are refused) by candidates, along with a list of time slots purchased with an explanation of the advertisement class, the rate charged, and contact information for the purchaser. Such records must be available to the public on request—part of the equal time provision is making it easy for interested parties to discover what equal time they are entitled to. The BCRA amplified these requirements, adding that records be kept pertaining to third party and issues advertisers—specifically, any air time requested that pertains to a legally qualified candidate, an election to a federal office, or any legislative issue of national importance.

Issues

The equal time provision is not the same thing as the fairness doctrine, a similar FCC policy which was broader in scope and was applied over a briefer period of time. They are often discussed in conjunction with one another, though, since the fairness doctrine held sway for nearly forty years and several efforts have been made to enact it as law. Like the equal time provision, the fairness doctrine was not law but a policy of the FCC. It was adopted in 1949, in the earliest days of television, and required broadcasters not simply to allow candidates in political campaigns equal time but to present a balanced and equitable account of all sides when discussing controversial issues. The main reason for the adoption of the fairness doctrine was its supplanting of the Mayflower doctrine, which was repealed the same year, having been implemented in 1941. The Mayflower doctrine similarly required that broadcasters provide the public with all sides of important issues—but specifically forbade editorializing by stations. The timing of the Mayflower doctrine's adoption is not coincidental; just as it had during World War I, before commercial radio was a going concern, the federal government was concerned about the detrimental impact of anti-government speech in a time of war.

Recognizing the importance of broadcast media in American news consumption, the fairness doctrine required that broadcasters that devote airtime to one view of a controversial issue must also air an opposing view—albeit with no equal time requirement, and with latitude as to how that opposing view was presented. For example, in local news programs, it was often a common practice (and remained not uncommon even after the doctrine was suspended) to invite a viewer on the show to present a brief counterpoint in response to an editorial that had aired earlier in the week.

Just as efforts have been made to restore the fairness doctrine since its suspension, while it held sway it faced legal challenges. The Supreme Court in 1969 upheld the FCC's right to enforce the fairness doctrine, but declined to rule that it was required to do so, a distinction that helped lead to the policy's end. The Court made its decision in Red Lion Broadcasting v. FCC, in which a journalist demanded equal time to respond to personal attacks against him in a radio broadcast discussion about his book about presidential candidate Barry Goldwater.

A U.S. circuit court of appeals case from the same year especially highlights why the fairness doctrine was considered so important by its defenders: it dealt with Lamar Broadcasting, owners of television station WLBT, an NBC affiliate in Jackson, Mississippi. At a time when the civil rights movement was in full swing, WLBT chose not only to regularly offer editorials in favor of segregation, but also to censor the network news programs provided by NBC in order to eliminate positive coverage of civil rights activism and legislation (Thompson, 2016).

One provision of the fairness doctrine later adopted was called the Zapple doctrine, after Nicholas Zapple, counsel for the Senate Commerce Committee, who argued in 1970 that the equal time provision of the fairness doctrine should apply not only to candidates themselves, but also to representatives and supporters of those candidates. If a station devoted airtime to, for example, a local volunteer for a political campaign to discuss why they support their candidate, equal airtime should be provided to a supporter of the opposing campaign. As with most provisions of the fairness doctrine, the Zapple doctrine applied only to major political party candidates.

Though the fairness doctrine was suspended in 1985, the Zapple doctrine essentially remained in effect until 2014, when the FCC ruled for the first time that it too was suspended. Supporters of Tom Barrett, the Democratic candidate in Wisconsin's 2012 gubernatorial race, brought a complaint against Capstar TX LLC, owners of the AM radio station WISN and its affiliate WTMJ, alleging that they were denied free airtime in response to statements the station had aired in support of the Republican candidate, Scott Walker. The Barrett supporters argued that because the Zapple doctrine had been adopted as a separate provision years after the adoption of the fairness doctrine, it had not been suspended; the FCC disagreed, ruling that because the provision guided the interpretation of a now-defunct regulation, it had no legal effect. Further—in a ruling that could have ramifications should efforts to legislate the fairness doctrine succeed—the FCC ruled that the Zapple doctrine was unenforceable.

Two more provisions remained in place until 2000: the political editorial rule, which required that candidates be allowed to respond on-air to editorials endorsing their opponents; and the personal attack rule, which allowed such opportunities to any person or group subject to attack during a broadcast. These rules were repealed in 2000 at the directive of the Court of Appeals, when the FCC was unable to justify their continued enforcement in light of the fairness doctrine's suspension.

The fairness doctrine was routinely attacked by conservatives and libertarians, both on the grounds that it limited the free speech rights of broadcasters and that it impinged on property rights. It is not a coincidence that conservative talk radio (Clogston, 2016), which was a prominent political force in the 1990s and 2000s, saw its rise and its hold on mainstream discourse begin in the years after the fairness doctrine was suspended—nor is it a coincidence that the legislators seeking to bring the fairness doctrine back have almost exclusively been Democrats, while Republicans have attempted to pass laws expressly forbidding the FCC to bring it back. However, there have been notable dissenters on both sides of this largely partisan debate—Barack Obama, for example, while still a candidate for president in 2008, staunchly opposed reinstating the fairness doctrine, and reiterated this opposition after his election.

In the twenty-first century, opponents of reviving the fairness doctrine argue that, in a post-broadcast age in which viewers have access to information outside of broadcast media, notably through the Internet, broadcast media no longer hold the same sway over public discourse. However, it is a subject of debate whether social media should adopt a fairness doctrine for political ads.

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