Campaigns & Elections' Political Broadcast Manual - March 2008 - (Page 26)

The FCC has found the following practices to comply with its equal opportunity rules: • Permitting only two candidates to appear on a single hour broadcast and giving the third candidate a half hour for his equal opportunity. • • • • • • • • • • Refusal to grant equal opportunity use in response to a “make good” program necessitated by serious technical problems (but only if it is the station’s policy to refuse make goods to commercial advertisers under comparable circumstances). On the other hand, the FCC has found the following practices to violate the spirit of equal opportunities: Scheduling of the initial use and equal opportunity in time periods having unequal audience potential. Letting one candidate preview his opponent’s unaired message before recording his own. Forcing one candidate to submit a script in advance. Requiring one candidate to prepay but allowing another to be billed (unless the broadcaster has a valid economic justification for the disparate treatment, based upon the candidates’ past credit histories). Failure to enforce collection against one candidate. Selling so much choice time to one candidate that others could not obtain comparable exposure. Charging unequal rates for the use of production facilities. Adding a disclaimer tag to the spots run by only one candidate for a given office. Exceptions There are two broad recognized exceptions to equal opportunities. “Last minute” uses It is assumed that exposures become increasingly valuable as an election approaches. While no absolute rules have evolved, a broadcaster may provide less than numerically comparable opportunities shortly before a primary or general election. Thus, if A launches his campaign with a saturation buy of 100 spots from August 1-3 and B requests equal opportunities on August 7, a broadcaster may properly refuse B’s demand to use all of his equal opportunities in early November. On the other hand, if the broadcaster were to honor B’s demand, then he might be justified in allowing A to buy a few further spots in early November to offset B’s more favorable placement without triggering any further equal opportunities for B. The “Zapple Doctrine” This exception is named after the case brought by Nick Zapple, then Chief Counsel for the Senate Communications Subcommittee. This exception is also referred to as the quasi-equal opportunity principle. Equal opportunities, we have observed, apply only to requests by candidates or their authorized campaign committees or representatives. But the FCC recognizes that a political imbalance would occur were only the supporters of one competing candidate to buy or obtain time. Thus, the Zapple doctrine requires that where A’s supporters have bought time, then legally qualified opponent B’s supporters (but not B himself) must also be given an opportunity to buy comparable time. Similarly, a gift of free time to A’s supporters must be countered with a gift of comparable free time to B’s supporters upon request. Note: the Zapple doctrine applies only to supporters of candidates with substantial support (generally meaning the nominees of major political parties). Further, it does not require the same degree of equivalence that is necessary for equal opportunities, but rather a roughly comparable opportunity. Although it often is considered an adjunct of the fairness doctrine which is no longer enforced (see section XIV), FCC staff has kept the Zapple doctrine in place in order to avoid circumvention of the equal opportunity policies through an expedient of having supporters act in lieu of the candidates themselves. Two miscellaneous final points: Production Facilities Equal opportunities apply here, too. If anything more than the bare necessities for a broadcast are made available to one candidate, then they must be made available to all opposing candidates at identical rates and terms. Networks A network use will trigger equal opportunity rights on each affiliate that carried the program or spot. Thus, if the network itself does not provide an equal opportunity upon proper request, it is the obligation of each affiliate to which a timely 26 « March 2008

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Campaigns & Elections' Political Broadcast Manual - March 2008 Contents Introduction – The Scope of the Political Broadcasting Rules “Legally Qualified” Candidates Reasonable Access “Uses” of Broadcast Facilities Exempt Programs Requests for Equal Opportunities Equal Opportunities Lowest Unit Charges The Disclosure Censorship of Uses Sponsorship Identification Political File Contents Access to the Political File The Fairness Doctrine Political Editorials Personal Attacks Issue Advertising News Distortion Conclusion

Campaigns & Elections' Political Broadcast Manual - March 2008

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