Issues

Legal Notes: Bona Fide Coverage

By Kathleen Kirby

As candidates crusade for airtime, make sure you understand political programming regulations.

Campaign 2008 is off to an early and vigorous start, and what a difference four years can make. The candidates are attending debates held in new locations, such as Howard University in Washington, and using new media, such as YouTube.com. The “Super Tuesday” primaries of prior election cycles have been replaced by what Congressional Quarterly has dubbed “Super Duper Tuesday.” The unusually large slate of candidates has already raised sizable campaign war chests.

And in June, the U.S. Supreme Court eliminated the pre-election blackout periods for political issue advertisements.

With the number of well-funded candidates vying for attention, journalists should take a moment and remind themselves of the laws and regulations that apply to covering campaigns. Provisions of the Communications Act, the rules of the Federal Communications Commission, and copyright law each shape the ways in which political candidates appear on broadcast stations.

Equal Time

The Communications Act requires that the FCC’s rules address questions about candidates’ equal-opportunity (or “equal-time”) rights on broadcast programs, but these rights do not apply to certain categories of programming (see sidebar). Because of the news-centric nature of the exemptions, journalists might assume that the equal-time rule and other political broadcasting rules do not apply to their work. But this is not always true, so journalists should have at least a passing familiarity with factors that can trigger a candidate’s equal-time rights.

Subject to the four news exemptions, a legally qualified candidate for public office is entitled to receive, upon request, the same opportunity to use a broadcast station that was given to his or her opponent for the same office. In this context, a “use” of a broadcast station is any positive appearance on a broadcast or cable-system originated program by a legally qualified candidate whose voice or likeness is either identified or identifiable.

But what exactly qualifies as an exempt newscast, interview, documentary or event? As a general rule, the FCC looks to ensure that programs exempt from equal-time obligations are informational rather than partisan. In making this determination, the FCC will examine several factors, such as the producers’ editorial independence as well as the program’s nature, schedule, format and content.

During the past 37 years, the commission has broadened its application of the news interview exemption to include a greater variety of entertainment programs that have bona fide news components. For example, in 1960, the FCC found that a political candidate’s appearance on The Tonight Show with Jack Paar was not subject to the news exemption. The agency’s policy evolved over the next three decades, such that in 2006 it found that Gov. Arnold Schwarzenegger’s appearance on The Tonight Show with Jay Leno qualified as a bona fide news interview. Other exempt news interview programs include Meet the Press, NBC’s Today and Good Morning America.

Eligible newscasts may include discussion programs, such as The McLaughlin Group and Face The Nation, if they use news clips featuring candidate appearances to introduce issues.

The bona fide news event exemption provides electronic journalists with flexibility to cover debates, candidate statements and occasional interviews, all without significant fear of triggering equal-opportunity obligations. Moreover, live coverage of political debates qualifies as an on-the-spot coverage of a bona fide news event, regardless of whether the debate between opposing candidates is organized by a broadcast station or a third party, such as a local civic association. Broadcasters organizing debates may use their good faith news judgment to include those candidates they deem most significant. Again, in choosing to cover or organize news events, stations must exhibit journalistic rather than partisan motives in order to qualify for the bona fide news event exemption.

A news documentary will be exempt from equal-time obligations so long as the appearance of a candidate is incidental to the presentation of the subject or subjects covered. Consequently, documentaries that focus on a candidate will trigger equal-time obligations.

Many may remember the election in 2004 featuring a self-styled documentary, “Stolen Honor,” which focused on Sen. John Kerry’s service in the Vietnam War as well his subsequent activism against the conflict. For those who do not recall, the program did not cast the senator in a positive light. The program, of course, would probably not qualify as an equal-time triggering “use” of a broadcast station because the program did not feature a “positive” appearance by Kerry.

But suppose that “Stolen Honor” was determined, however implausibly, to be a “use.” If so, the program could not have triggered an equal-time right for Kerry, but it might have afforded President George Bush such an opportunity. Here is why: If “Stolen Honor” was a “use” but was also a bona fide news documentary, the stations that aired the program would have been exempt from any equal-opportunity obligations. If, on the other hand, the program was a “use” but was not found to be a news documentary, only those candidates not appearing in the program could request equal time, and President Bush was not featured in “Stolen Honor.” Of course, the requirement that a program feature a “positive” appearance by a candidate has served to prevent the absurd results discussed above.

Copyright Issues

Aside from FCC compliance, your campaign coverage may raise other legal issues. Suppose your station airs a copyrighted newscast or news interview program. Perhaps the candidate appears in a military tank or fumbles a question about a significant issue. And suppose the candidate’s opponent tapes that portion of your news program and incorporates it into a negative ad campaign. Is this fair use? Should your station refuse to air the spot?

The courts have not definitively answered the question of whether partisan political use of program excerpts may be a “fair use” under copyright law. But in this example the public’s interest in information about a candidate might trump your copyright claim. Regardless, your station should not automatically refuse to air the spot because the FCC’s policies forbid broadcasters from censoring, in any manner, a candidate’s paid spots and programs constituting a candidate’s “use.”

Here is one more twist. Your station airs a paid commercial for a candidate, and your news department also produces a special feature on truth in political advertising. The newsroom wants to include all or part of the candidate’s ad to critique its accuracy. Can you use the tape the candidate provided to your sales department to include the commercial in the newscast? The answer is probably governed by the ad contract, which likely limits use of the tape to that intended—the broadcast of advertisements. But what if you tape the spot off air and include it in your newscast? Fair use? Perhaps. At the very least, you could make a sound argument that the use of the previously aired spot for criticism or comment is a fair one.

Of course, this era of blogs and YouTube has prompted broadcasters to make groundbreaking decisions about the repurposing their own content. ABC, NBC, CNN and MSNBC recently announced that they would permit relatively unrestricted use of presidential debate footage, particularly where the purpose is for reporting and commentary. C-SPAN and NPR likewise have loosened restrictions on their content to permit online use, thus circumventing potential fair use dilemmas.

Coverage of Local Elections: Not Required

Recently, several public interest groups have opposed stations’ license renewal applications because of what is perceived as a dearth of coverage of local elections. In denying the objections and granting the license renewals, the FCC reiterated that it has “very little authority to interfere with a licensee’s selection and presentation of news and editorial programming.” Absent a showing of a broadcaster’s bad faith in making editorial decisions, the agency seems unwilling to sanction stations’ lack of local elections in a station’s newscasts.

“Soft Money” and Issues Ads

In a splintered decision earlier this summer, the Supreme Court agreed with a lower court that a portion of the Bipartisan Campaign Reform Act of 2002 regarding “electioneering communications” (issues ads) had been unconstitutional. The part of the act in question prohibited corporations from funding issue ads in the 30 days prior to a federal primary and in the 60 days before a federal general election. As a result of this decision, the Federal Elections Commission has initiated a rulemaking proceeding to revamp its regulation of issues ads. Although still under way, the FEC’s proceeding will likely eliminate the pre-election blackout period. Stations, especially those in battleground states, will likely see a resurgence of issues ads in the weeks leading up to Super Duper Tuesday and the general election. At the present, it is unlikely that the Supreme Court’s decision will have an impact on newsroom operations.

The cornucopia of well-funded candidates, the current political atmosphere and the Supreme Court’s decision to unleash a torrent of “soft money” are likely to combine to make Campaign 2008 exciting for journalists and lawyers. As we have said in other contexts: Always use your sound, independent editorial judgment, but be sure to support it with good legal counsel.

Kathleen Kirby is a partner with Wiley Rein LLP in Washington. Matthew Gibson, an associate at Wiley Rein, assisted with this column. These notes are intended as a general overview of the topics addressed. They should not be relied upon as a substitute for legal advice.

Originally published in the September 2007 issue of Communicator. All rights reserved.