All Things Not-So Equal

Entertainers-turned-politicians are bringing problems with the FCC’s equal-time rule into the spotlight

From the Fall 2003 issue of The News Media & The Law, page 42.

By Andrew Serros

With entertainers coming to the foreground of politics, interpreting the Federal Communications Commission’s equal-time rule has become far more difficult. The rule forces equal air time opportunities for political candidates, and recent high-profile contenders have caused strife for some broadcasters.

On Sept. 9, Howard Stern became the latest controversial broadcast entertainer to receive a “news” exemption to the equal-time rule. The New York-based shock jock wanted to interview Arnold Schwarzenegger, Hollywood actor and then-gubernatorial candidate in California’s Oct. 7 recall election, but he was concerned that the equal-time rule might require him to also provide air time to all 134 other candidates for governor.

In a declaratory ruling by the FCC’s media bureau chief, W. Kenneth Ferree, on the request by Infinity Broadcasting, which owns Stern’s show, programs that have news interview segments “need not seek formal declaration.” In essence, if a show covers some news or has regularly scheduled interviews, it is exempt from the rule.

Media attorney Rosemary Harold believes the ruling shows the FCC to be heading in the right direction. “I think they did the right thing,” Harold said. “You don’t want the government really involved in deciding what kind of questions have to be asked to be a bona fide news interview.”

The equal-time rule has gone through some dramatic changes in interpretation since its creation in 1934. The initial purpose of the rule, enacted by Congress, was to provide equal broadcast time to all candidates in a political election if a broadcast station offers time to one of them.

At the federal election level, unlike local and state elections, stations are obligated to offer air time to candidates. However, if a station gives air time to one “lower-level” candidate, it must make available that same amount of time — at the same cost — to his or her political opponents, a restriction that effectively prevents a broadcaster from giving free air time to a favored candidate.

Cable television, on the other hand, is slightly different. Cable company operators are only responsible for their own original programming, not rebroadcast programming. FCC rules define “original” cablecast material as aired material under the “exclusive editorial control of the cable operator.” And while cable operators are clearly defined within FCC regulations, cable networks do not fall under the same distinction.

In June 2000, the cable television network A&E requested an exemption for its documentary program “Biography” because some of the segments included interviews with presidential candidates in that year’s election. The FCC deemed the program exempt from equal-time, even though the commission “has not considered whether cable network programming . . . [like A&E] could, under any circumstances” be considered original cablecast programming. FCC sources said this is a gray area that the commission may have to address in the future.

In 1959, Congress created four exemptions to the equal-time rule — for bona fide newscasts, news interviews, news documentaries and on-the-spot coverage of a news event — after a Chicago mayoral candidate was interviewed by a news program.

But with constant changes in broadcast programming, new technologies and an explosion of outlets through which one’s political messages can be heard, the commission has gradually taken a more relaxed interpretation of the regulations. According to an official at the FCC, it is no longer even clear what type of TV or radio show the equal-time rule still affects.

In 1984, the FCC determined that the “bona fide news interview segments” on the “Donahue” show are exempt from equal-time regulation. “Donahue” broke ground for other shows to follow, such as the “Sally Jessy Raphael Show,” “Jerry Springer” and “Politically Incorrect with Bill Maher.” According to Dennis Wharton, senior vice president of communications for the National Association of Broadcasters, the FCC’s ruling on Howard Stern was simply the next logical step.

“It’s not a huge change in policy . . . when you consider they have given this exemption for shows like “Oprah” and “Donahue” and a whole host of other sort of programs that some would put in the ‘quasi-news’ category,” Wharton said.

There are some, however, who believe Stern’s show — which regularly features strippers and porn stars and is broadcast nationally on cable TV and radio — promotes ambiguity and has no business receiving a news exception.

“I’m concerned it’s a step in blurring the line between entertainment and news,” said Meredith McGehee, executive director of the Alliance for Better Campaigns, a public interest group seeking to improve elections.

McGehee said her concern is with celebrity and entertainment interests downplaying the election process. Schwarzenegger, who ran as a Republican and offered little in the way of specifics on how he would govern the state, eventually appeared on Stern’s show — he also made appearances on “The Tonight Show with Jay Leno” and “Oprah” — and ultimately won the recall election with approximately 54 percent of the vote.

Geoffrey Cowan, dean of the University of Southern California School of Journalism, says the bigger point is whether or not the public is served by allowing broadcast outlets greater flexibility in who they interview and how those interviews are conducted. Currently, “the only way that people get exposure to political candidates is through political advertising,” Cowan said.

According to the Local News Coverage of the 2002 Election report, conducted by the USC Norman Lear Center and released this year, campaign ads outnumbered campaign stories by nearly four to one. Of the more than 10,000 news broadcasts studied, less than half covered any political campaign during a seven-week period leading up to the 2002 congressional election. Also, nearly half of the campaign stories that aired were about the race or strategy, and not about issues.

“One of the big problems right now with modern politics is that the media has lost any kind of incentive or willingness to actually make their coverage of politics more entertaining,” McGehee said.

Some would argue that is exactly why less restrictive enforcement is so important. By removing hurdles few broadcasters were willing to jump over to air political viewpoints, the public will be served by a competition to disseminate the most information possible. James Gattuso, a research fellow at The Heritage Foundation, says changes in the broadcast industry are finally changing regulatory efforts.

Providing a news exception to “Donahue,” Gattuso explained, was an attempt by the FCC to engage audiences in a different format. And while much has changed over the past 20 years — High Definition TV, satellite communication and digital cable, to name just a few — the FCC continues to rethink the application of old regulations.

“It’s one of those rules,” Gattuso said, “that was written for a different era.”