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Why equal time for candidates may not be so equal

Nova Safo Oct 23, 2015

Why equal time for candidates may not be so equal

Nova Safo Oct 23, 2015

If all goes according to plan, Donald Trump will host “Saturday Night Live” the first week  in November.

That’s a lot of air time for The Donald. Will the other GOP presidential candidates be entitled to equal air time?

Some of them may qualify, but it’s unlikely any will get the same broad exposure Trump will get from hosting SNL. 

The FCC requires individual broadcast stations, not networks or cable channels, to offer equal time — or rather equal opportunity — to competing candidates. But there are limitations. For instance, the rule doesn’t apply to news, such as an appearance on “60 Minutes” or “Entertainment Tonight,” said Meredith McGehee of the Campaign Legal Center.

“Where you can kind of draw the line is the difference between a scripted appearance and an interview appearance,” she said.

So Trump appearing on SNL would trigger equal-time provisions. His appearances on late night talk shows, which are considered news, would not.

This equal-time is most common in local politics, said Andrew Jay Schwartzman, an election law expert and professor at Georgetown Law School. For example, a mayor running for re-election might get time on a local radio station that broadcasts a regularly scheduled “Ask the Mayor” segment. A competing candidate could request the same amount of air time, he said.

“Over-the-air broadcasting continues to be the single most important force shaping public opinion and voter behavior, especially at the local level,” said Schwartzman. “The intention of the law was to avoid favoritism, broadcasters putting a thumb on the scale.”

But rarely is the FCC’s equal time provision applied to national presidential politics. And, while a network might negotiate equal time requests if it involves a national show, it is doing it on behalf of all of its local affiliates that hold broadcast licenses and are bound by the provision, if they aired the network show in question.

In 2003, then-Democratic presidential candidate Al Sharpton hosted Saturday Night Live. Joe Lieberman, also a candidate, asked and got equal time on some NBC-affiliated stations. He didn’t get the same access to a national audience, because there are a lot of exceptions to equal time provisions. Among them: both candidates in question must be qualified on the ballots on each state involved; candidates must show they have a significant presence in each state involved; and a candidate must make the request no more than a week after the broadcast in question aired. 

The significant-presence requirement might limit equal time for candidates to only a few states early in a campaign cycle, because they might be focusing their efforts in key early primary states. 

When Hillary Clinton appeared on SNL earlier this month, her lesser-known Democratic rival Larry Lessig asked NBC for equal time. NBC sent a letter requesting that Lessig prove he — and Hillary Clinton —are legally qualified candidates.

Lessig’s attorney Adam Bonin responded by laying out the case for Lessig, including saying that 10,000 supporters had donated more than $1 million to his campaign. As to whether Clinton is a qualified candidate, Bonin wrote: “If she is not, then no one in America is running for president right now, which would be a shock to many people.”

“It’s an open and shut case in terms of the right,” Schwartzman said. But the fact that NBC is asking for proof of legitimate candidacy underscores the many requirements and steps needed to get equal time.

Still Schwartzman believes Lessig will prevail, at least in negotiating for air time on some stations.

“For example, if Donald Trump is on for 30 minutes, a candidate might say I’ll trade that right … for 10 one-minute spots during prime time,” Schwartzman said, adding that that kind of a trade is a common tactic in local markets and potentially more valuable than a 30-minute block of time late at night on a weekend.

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