By: David Oxenford, Wilkinson Barker Knauer LLP
In recent weeks, with so many government officials looking to get messages out about the coronavirus pandemic, we have received many questions about issues that arise when political candidates appear on public service-type announcements – either free PSAs provided by the station or paid spots purchased by some governmental entity. While such announcements can be run by stations, if a legally qualified candidate personally appears in the spot (their recognizable voice in a radio ad or their voice or picture in a TV ad), stations need to note the advertising purchase in their FCC Online Public Inspection File, as these spots constitute a “use” by a candidate, and they can also give rise to equal opportunities by opposing candidates.
If the use is in a spot on which the candidate appears is a paid-for spot, then any equal time to which opposing candidates are entitled would be on a similar paid-for basis. This is the same situation as if a commercial advertiser who voices or appears in their own ads decides to run for office (see our article here). But if the spot is a free PSA, then the appearance of a legally qualified candidate, even if the PSA says nothing about their campaign, can trigger the requirement to give free equal time to any opposing candidates who make any equal opportunities request within seven days.
To avoid these issues, if the candidate does not personally appear in a spot, and the spot is not about their campaign, no equal opportunities and likely no public file obligations will arise. So, for instance, an ad from a Congressman’s office that refers constituents to the Congressman’s website for more information about relief efforts, that is voiced by a staff person to the Congressman, likely will not trigger these obligations. Similarly, a professionally voiced ad on behalf of the state Attorney General or Secretary of State would likely not trigger public file or equal time issues, even if the office-holder is running for office, as long as the candidate does not appear, and as long as the ad does not raise political or controversial issues.
Appearances by political candidates in exempt programs – news or public affairs or on-the-spot-coverage of a news event – don’t trigger equal opportunities or public file obligations. A discussion with a Congressman or other local elected official on your news or talk program to discuss current issues, where the program and its content is controlled by the station and where decisions about guests are made on the basis of their newsworthiness and not for partisan purposes, should not trigger equal opportunities or public file obligations. The same would be true for coverage of press conferences or similar events that have current news value. See our article here for more on these exempt programs.
Of course, all these legal determinations depend very much on the facts, and thus on any specific legal issue, you should talk to your station’s own attorney who can provide a more detailed answer based on the circumstances in specific cases. Just be alert to these circumstances where the appearance of a candidate in a PSA can trigger both public file and equal opportunities issues.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.