What Does the FCC's Equal-Time Rule Actually Say?

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Donald Trump’s rumored presidential candidacy has sparked fresh interest in the FCC’s equal-time rules. What would Trump’s candidacy mean for The Celebrity Apprentice? Would NBC have to give Trump’s competitors their own primetime reality shows? Even though Trump has bowed out of the race, let’s take a look at some questions about the frequently discussed equal-time rules.

Why do these rules exist in the first place?

The equal-time rules exist for a pretty simple reason: radio and TV stations would theoretically be able to sway elections by refusing to sell ad time to a candidate. Progressives feared this outcome as far back as the 1920s, so legislators worked equal-time rules into the Radio Act of 1927.

If everyone gets equal time, why aren’t we inundated with ads from minor parties every election?

The way the term “equal time” is often used is a bit misleading.

The rules state that if a station gives free airtime to one candidate, it has to offer an equivalent amount of free time to all candidates.

When it comes to campaign ads, though, stations just have to offer candidates the opportunity to buy time at the same rates they offer their most favored advertisers. If you’re a Democratic or Republican candidate with deep pockets, coming up with the cash to buy these spots is no problem. On the other hand, if you’re the candidate of America’s Independent Party, having the opportunity to buy a primetime spot isn’t all that useful if you don’t have a sufficient war chest to foot the bill.

Were these rules easy to implement?

Not so much. It took decades of challenges and fine-tuning to craft a relatively reasonable set of equal-time rules. For example, take the situation that arose in Chicago in 1959.

Daly appealed to the FCC that the news stations’ coverage of Mayor Daley’s day-to-day activities constituted “use” of the stations. Daly in turn claimed that since the stations had given Mayor Daley this free airtime, he was entitled to an equal amount. The FCC agreed, and Daly got his fringy moments in the sun.

What happened to these loopholes?

After the Daly/Daley debacle, Congress acted to fix these obvious problems. Eventually, the equal-time rules changed to include four exceptions. If the airtime comes in a documentary, a scheduled newscast, a news interview show, or in the coverage of an on-the-spot news event, it doesn’t play in to the equal-time rules.

Any other notable exceptions?

For years televised debates fell under the equal-time umbrella. In 1960 Congress passed a temporary joint resolution that allowed networks to air the debates between presidential candidates John F. Kennedy and Richard Nixon without having to include minor candidates.

That suspension of equal-time rules was only temporary, but the FCC later changed its policy regarding debates. As long as the networks themselves weren’t organizing the debates, the showdowns could be considered on-the-spot news events to which the equal-time rules didn’t apply.

What if a candidate has been in movies and TV shows?

That’s where things get interesting. When former Tennessee Senator Fred Thompson began mounting a bid for the 2008 Republican presidential nomination during the summer of 2007, NBC found itself in a tight spot. Thompson had also appeared in 116 episodes of the network’s hit show Law & Order. NBC announced that it would cease airing reruns of episodes in which Thompson appeared until his campaign ended. Otherwise, the network could have been compelled to offer free equal time to all candidates for every second Thompson appeared on the screen.

Thompson’s candidacy wasn’t the first time networks had faced this decision. Michael D. Shear of The Washington Post noted that in 2003, networks stopped airing Arnold Schwarzenegger flicks during his bid to become California’s governor. (Presumably the networks did the same thing with the dramatic output of fellow candidate Gary Coleman.) Similarly, Ronald Reagan’s movies fell out of the broadcast cycle during his gubernatorial and presidential campaigns.

Do these rules apply to cable networks?

That’s a good question, and it’s also one that doesn’t have a simple answer. As Scott Horsley reported on NPR’s Morning Edition during the discussion of the Thompson/Law & Order issue, equal time on national cable networks is a bit of a gray area. TNT kept broadcasting the Thompson episodes of L&O during his campaign without any repercussions. (Networks only have to provide equal-time if an opposing candidate asks for it, and apparently none of Thompson’s Republican rivals felt like forcing the question over a few reruns.)

When Horsley interviewed former FCC Commissioner Nicholas Johnson for his piece, though, Johnson admitted that even though the equal-time rules haven’t been applied to national cable networks yet, there might be a legal case for extending the rules in that direction. As attorney David Oxenford noted in a post on the Broadcast Law Blog last month, this question is still unresolved.

Do the equal-time rules kick in as soon as someone announces their candidacy?

No. For the purposes of the rule, an office-seeker has to be a legally qualified candidate, which means they’ve filed all of the necessary paperwork to appear on the ballot. As David Oxenford notes in the aforementioned blog post, the “legally qualified candidate” provision would have allowed Donald Trump to formally announce his campaign for the 2012 Republican presidential nomination on the finale of The Celebrity Apprentice with little risk of blowback for NBC. Since Trump is not yet a legally qualified candidate, equal-time rules don’t yet apply to him.