POLITICAL/LEGAL MEMO (skeletal)
To: Ben Carson
...the Professor and Mary Ann
From: Paul Weich, co-founder of Arizona's Politics...and attorney
Date: October 13, 2015
Re: What you need to know about Donald Trump's SNL hosting gig and the FCC's equal time
The Federal Communications Commission ("FCC") enforces the 'equal time doctrine' for broadcast television licensees, although the categories of exempt programs have grown over the years, and other aspects have broadened. However, the doctrine still exists and may still be useful for your campaign.
Last week, we were the 1st to report about the 'equal time' issues raised by Clinton's SNL appearance. (bit.ly/AZp1177) We raised the possibility that Trump was behind the NBC memo warning affiliates. (Even though FCC case law limits it to campaign opponents in the primary.
Today, NBC announced that Trump is HOSTING SNL on Nov. 7. We were again the 1st political site to report it (bit.ly/AZp1180).
This obviously triggers equal time issues for all major GOP presidential candidates. One or more are likely to avail themselves of this opportunity. It may (WILL) be interesting who will be the 1st to request (pre-request?) time on SNL, or some equivalent time elsewhere.
This abbreviated memorandum will raise some of the legal and political issues that you should be aware of and should consider when deciding whether to pursue equal time.
The equal time doctrine came about from the Communications Act of 1934, so it has been around for a long while. It is simply and clearly set forth in this federal regulation:
1. Saturday Night Live is NOT an exempt program, even as the doctrine has broadened to include late night talk shows, Entertainment Tonight-type programs, and other INTERVIEW shows. (At the bottom of this memo is the FCC decision that determined that Howard Stern's radio show interview of Arnold Schwarzenegger did not trigger equal time doctrine.)
2. One key thing to remember is that this is NOT a doctrine that is applied to THE NETWORK. Rather, these are applied to individual stations. This means that you have to determine whether you are going to make your equal time requests to the certain stations, all stations, and/or the network.
3. While it is not in the regulation, the FCC does tell Arizona's Politics that the equal time requests applies to stations in states where the requesting candidate is ACTIVELY campaigning. They indicate that this would mean affiliates broadcasting in early primary/caucus states such as New Hampshire and Iowa would be likely targets, but that affiliates in other states - especially where the deadline to appear on the state's ballot has not yet passed - might not be required to provide equal time.
In this campaign, where candidates may be actively campaigning in most or all states, this may become a key issue in determining whether to go to NBC or just select affiliates. However, remember the words "legally qualified" - this has been found to mean that you are not entitled to equal time unless you have got your name on that state's ballot. (Thanks to the advance notice, you might want to accelerate your efforts to get on key states' ballots before November 7.) If there are a number of affiliates that you feel should provide equal time, you might want to negotiate with the network and apply pressure to the affiliates.
4. There is little doubt that Trump's hosting of SNL is a "use" that will open affiliates up to equal time requests; however, keep in mind that you are only entitled to "equal opportunities." SNL is not the only program that would represent an "equal opportunity". This will also come down to your campaign's negotiation skills.
5. As we've noted earlier, only candidates opposing Trump for the GOP nomination need apply.
6. Although affiliates are supposed to place a notice of Trump's appearance in their FCC file, they do not always do so and you should not count on them doing so. The regulation requires you to make your equal time request within 7 days of the broadcast. So, plan on doing so before the close of business, Friday, November 13 (to be safe).
However, because of the political considerations mentioned in the introduction, we would suggest considering "pre-filing" your request. (A request for PREqual time?)
7. If you are among "the Professor and Mary Ann" - one of the many who have filed with the FEC your notice of candidacy for the GOP Presidential nomination, the law states that the stations are not permitted to discriminate against a "legally qualified candidate". You also have a few weeks to get your legal qualifications in place in a state or states. This is different than the GOP-sanctioned debates in which the networks and/or party set standards as to who could participate at the big kids table, the little kids table, etc.
(...to be continued)
We welcome your comments about this post. Or, if you have something unrelated on your mind, please e-mail to info-at-arizonaspolitics-dot-com or call 602-799-7025. Thanks.