Equal Opportunities For Confusion


You know when you are talking to one of the experts in equal time legal issues and he can’t quite define it that there is room for confusion out there. There is room for confusion in here, too.  Of course, that confusion is good for top equal time lawyers since that is why they are employed.

When Actor-turned-Senator-turned-radio-host-turned-presidential candidate Fred Thompson joined the race, a lot of people were looking for what cable networks like Turner and USA might do with their re-runs featuring the candidate.

Communications law requires TV stations and in some, yet-to-surface cases, cable operators, to provide equal time (actually it is called the "equal opportunities clause) to all qualified federal candidates for office if they give airtime to any.

A Fred Thomspson repeat airing in syndication on a TV station would trigger that obligation. It would apparently not trigger it if the same show aired on cable. That is even though the law states that the definition of broadcaster includes cable operator.

The FCC has interpreted that to mean only local cable origination, which apparently has never happened in terms of a show that would trigger the obligation since I’m told no cable operator has ever been required to provide equal time.

An irony of the process is that an appearance on a broadcast talk show like Oprah or even the Tonight show, where the candidates are acting, in this case presidential, does not trigger the equal time, but an appearance in an old movie where they might be dressed like a clown (not a reference to anybody in particular) does trigger it, though the other candidates would not have to dress like clowns.

That is because there are exemptions for breaking news, talk shows and public affairs shows. So, my musings a while ago that Thompson’s Leno announcement might trigger the rule were dry thoughts in a dry brain.

At one point, Ronald Reagan’s appearance in the Bonzo movies was ruled not to trigger equal time, but unwiser heads reversed that decision, opening the floor on appearances of Arnold Schwarzenegger in Terminator movies, which would trigger the obligation.

If equal time is triggered, the time must be provided to an audience of roughly the same size as the appearance that triggered it, and it need be not a second longer than that appearance, so competing candidates will need to get out their stop watches.

Only TV stations, locally-originating cable "stations," are subject to the rule, not networks, though programmers like NBC Universal, which distributes Law & Order in syndication has taken steps to insure there aren’t any equal time surprises for its stations.

A surprise like the station talk show host that forgot to tell his boss he was running for office, and by the time he did had racked up more than 24 hours in time that would have to be provided to numerous other candidates. Fortunately for the station, the host had filed for a race he didn’t qualify for, so it was moot anyway.

Of course, not every appearance that could require a call for equal time should, as former Congressman Fred Grandy pointed out to fellow scribe Bill Triplett at Variety.

Grandy, who used to play Gopher on Love Boat, pointed out that his primary opponent fell behind after he invoked equal time and the show was dropped from a Sioux City Iowa station.

So, if Fred Thompson appears on a Law & Order episode on the TNT cable network, it does not trigger equal time, but if he appears in an episode on a TV station carried on the same cable system, he does. But if it is a clip from Law & Order airing in a news broadcast about equal time, he doesn’t, either on cable or broadcast. Of course, I’m not sure about a clip airing on Oprah during a talk appearance. And what about a cable channel programmed as a TV affiliate in markets without a broadcast affiliate? would that be the magic "cable origination" that would trigger equal time.

It isn’t so much that equal time doesn’t apply to cable. It’s more like it has never been applied. That is why some cable operators have played it safe and acted as though it does apply, though that was not the case with Turner, which has said it wasn’t modifying its schedule of a couple dozen weekly airings of Law & Order.

If Fred Thompson appears on the Tonight show, cracking wise and showing the funny, human side that might have gotten Al Gore elected over his rivals, that does not trigger equal time. But if he shows up in an old movie playing a villain that nobody would want to elect dog catcher, it does trigger equal time, unless it is in a documentary about his movie career, in which it doesn’t, probably.

And in any case, none of this kicks in until he is actually a registered candidate in a minimum number of states, which I think is 10.

Got it.