It’s that time of year again. According to Wilkinson Barker Knauer attorney David Oxenford, the fourth quarter is traditionally when some broadcast media air personalities contemplate their future.
This may not mean jumping to a competitor, or earning the “Leap o’ The Week” with a move from Augusta to Atlanta. Rather, it may mean a run for public office.
What does this mean for a radio or TV station?
Being prepared to deal with a talent’s departure should take into consideration several factors. And, with 2017-2018 likely being “a very active one” on the political front, with Congressional elections across many states, Oxenford has received several calls from broadcasters asking what to do.
He says, “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).”
Oxenford therefore advises that stations 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,” Oxenford notes.
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.
How does a station prevent this scenario, if it can?
“In some cases, stations do nothing, and no one seems to mind,” Oxenford writes. “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, Oxenford notes, competing candidates sometimes 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).
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.
- 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,” Oxenford writes. “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.”
Lastly, Oxenford reminds media broadcast owners 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,” he says. “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.”