Equal Opportunities 101

What Triggers Equal Time
Every candidate appearance on a broadcast station is likely to engender a demand for equal time.  So, it’s a ripe time to ask, what are the real rules of equal time and when does a station have to honor the demand?

The obligation to provide equal time to political candidates under Section 315 arises from a “use” of the station by an opposing candidate.  The vexing issue has often been: What is a use?  The rule considers nearly any non-exempt identifiable appearance by a candidate to constitute a use. It could be a 10 years old tape or an old record by a former singer turned politician.  It matters not whether it was aired with or without the knowledge of the candidate.  What does matter, though, is that it be a positive appearance.  Otherwise, an opponent could have an add run attacking the candidate and then claim equal opportunities.   An exemption is provided for a use, or appearance, in a bona-fide newscast, a bona-fide news interview program, a bona-fide documentary, or within on-the-spot coverage of bona-fide news events (includes station-sponsored debates).

The point to remember is that any non-exempt, identifiable positive appearance of the candidate's voice will render the spot a use.  A use of the candidate’s voice will qualify as aural identification.  Even if the candidate merely reads his or her own sponsorship tag, it makes it a use if his voice is identifiable to a substantial segment of the community.  Broadcasters should play it safe and assume that it is, or require the candidate to identify himself.

The Equal Opportunities doctrine is found in §315 of the Communications Act.  The doctrine requires a broadcaster to treat all legally qualified candidates for the same office alike.  A broadcaster may make no discrimination in charges, practices, regulations, facilities or services rendered among legally qualified candidates for a particular office.  This applies to the availability of broadcast time, the use of production facilities, the extension of credit, and the application of technical requirements.

Equal opportunity does not mean an identical segment of broadcast time.  When an opposing candidate requests an equal opportunity, the licensee must consider the daypart concerned, the length of the time segment, and the desirability of the particular broadcast time (including adjacency to popular programs).  The station is not required to afford an opposing candidate an opportunity to appear on the same program, or even at the same time of day or the same day of the week, as long as the time segments offered are reasonably comparable.

The mechanics of working out equal opportunities is a matter the Federal Communications Commission normally leaves to the station and the candidates involved, within that framework of the general principles.

Requests for Equal Opportunities
A right to equal opportunities does not arise automatically, but only upon proper request.  The request must be made by a candidate or by an authorized representative and not by a political party or special interest group.  All equal opportunity requests must be for a “use” by the candidate.

Opposing Candidates
Rights to equal opportunities vest only in legally qualified opposing candidates.  In order for candidates to be “opposing candidates,” the same elective office must be involved.  At a nominating convention or in a primary election, the opposing candidate would normally be from the same party.  If a candidate is running unopposed in his or her party’s primary, then there would be no opposing candidate entitled to equal opportunities.  Upon nomination, of course, equal opportunities would then accrue in favor of an opposing party’s nominee for the same public office.

Seven Day Rule
A request for equal opportunities must be made within seven days of an opposing candidate’s prior use.  Thus, if A “uses” a broadcast facility on August 5, 10, 15, 20 and 25, B’s request for equal opportunities on August 26 will only cover A’s uses of August 20 and 25; B lost his right to request equal opportunities to A’s first three uses by waiting more than seven days after they had occurred.  Further equal opportunity rights do not attach to the reply “use.”

Two fine points:
First, the seven day rule applies only to the time for the request and not to the date selected for the equal opportunities reply broadcast. 

Second, a request cannot be based upon another candidate’s equal opportunity.  Where more than one prior user is involved, the request must be made within seven days of the first prior use giving rise to equal opportunities. 

Notice
A station is under no obligation to advise a candidate of a use by an opposing candidate - even when a use occurs toward the very end of a campaign.  However, upon inquiry from a legally-qualified candidate, the station must provide the candidate with the facts relative to opposing candidates’ requests, including the time sold and the changes made.  This may be done by showing the candidate (or his or her representative) the station’s political file.

Prior Requests for Expected Uses
Requests made before an opponent’s use must be honored only if directed to a specific future use known at the time of the request.  However, when a candidate will use a station according to a fixed and continuing pattern (such as a spot in the 7:00 p.m. news every Monday), then a single request from a legally qualified opposing candidate for equal opportunities will apply not only to the first candidate’s uses during the preceding seven days but for all subsequent scheduled uses as well under the same “buy”.

--Gregg Skall is a Washington DC based attorney at Womble Carlyle Sandridge & Rice, PLLC specializing in all things media and FCC. If you have a comment, suggestion, or want more information, you can reach him at (202) 857-4441 or gskall@wcsr.com.

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