Equal Opportunities Rule in Broadcasting for Candidates for Public Office

1. Lawrence M. MillerSchwartz, Woods & MillerWashington, DC Joshua A. DouglasUniversity of Kentucky College of Law

2. The Equal Opportunities Rule SEC. 315. [47 U.S.C. 315] FACILITIES FOR CANDIDATES FOR PUBLIC OFFICE. (a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section.

3. The Equal Opportunities Rule • Who qualifies as a candidate for office? • Legally eligible to hold office • Declaration of candidacy • Eligible for ballot or showing • of legitimate write-in candidacy • Special rules for Presidential and VP candidates to be deemed national candidates

4. The Equal Opportunities Rule • Who are “all other candidates for that office”? • What is a “use”? - Any nonexempt, non-negative appearance, including on-air talent running for office • “Equal opportunities” means more than just equal time

5. Exceptions to The Equal Opportunities Rule Bona fide newscast Bona fide news interview Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the documentary) On-the-spot coverage of bona fide news events (political conventions, press conferences, major nonpolitical speeches by office holders, debates, debate-like round tables, back-to-back statements by leading candidates stating essential campaign messages)

6. Candidate Debate Exceptionto The Equal Opportunities Rule • Primary separate from general election • Covering debates staged by others • Staging a debate: Station selection and exclusion of candidates

7. Eligible Candidate Must Make a Request to The Station to Get Equal Opportunities FCC Rule Section 73.1941: Timing of request. A request for equal opportunities must be submitted to the licensee within 1 week of the day on which the first prior use giving rise to the right of equal opportunities occurred: Provided, however, That where the person was not a candidate at the time of such first prior use, he or she shall submit his or her request within 1 week of the first subsequent use after he or she has become a legally qualified candidate for the office in question. Burden of proof. “A candidate requesting equal opportunities of the licensee or complaining of noncompliance to the Commission shall have the burden of proving that he or she and his or her opponent are legally qualified candidates for the same public office.”

8. “Reasonable Access” Requestsby Federal Candidates JUST SAY NO

9. Voter ID Laws

10. Voter ID Laws • A brief history of voter ID laws and "voter suppression" tactics • The basic arguments for and against various types of voter ID requirements

12. Voter ID Laws • Recent voter ID controversies • Current litigation in North Carolina and Texas

14. Election Identification Certificate (EIC) Texas voters must show a photo ID to vote in elections in Texas, unless you are exempt (see “Exemptions” below). If you do not have any of the following acceptable forms of ID, beginning June 26, 2013, you may apply for an Election Identification Certificate (EIC) at no charge. Texans can obtain an EIC at: Any of the more than 220 Texas driver license offices during regular business hours throughout the year EIC mobile station locations (EIC transactions only) Alternate approved locations issuing only EICs in select counties Saturday locations issuing only EICs (EIC transactions only)

15. Voter Expansion Gov. Terry McAuliffe held up the signed executive order at a ceremony outside the state capitol in Richmond, VA

16. Presidential Election Issues • Window effectively closed for 2016 third-party candidacies other than Libertarian • Political party “Superdelegates” and “pledged delegates”

17. Political Underwriting • The Communications Act prohibits accepting consideration and in return airing a message that supports or opposes a political candidate. • Consult your own counsel for particular prospective underwriting, but our firm advises clients that it is permissible to accept funds from a political candidate (but not from a political PAC) and to identify the candidate by name and note that he or she is running for office.

18. The Political File • Record of requests for time by or on behalf of political candidates and the disposition of such requests • Entries are to be made immediately unless there is a very good reason why that is not practical • For TV, maintained as part of the online public inspection file • For radio, optional on paper locally or online for early adopters until the online transition deadline of March 1, 2018 • For radio, paper file to be made available immediately on request

19. ELECTION ISSUESFOR PUBLIC BROADCASTERS

20. ELECTION ISSUESFOR PUBLIC BROADCASTERS Lawrence M. Miller Joshua A. DouglasSchwartz, Woods & Miller UK College of LawWashington, DC Lexington, KY miller@swmlaw.comjoshuadouglas@uky.edu www.swmlaw.com @JoshuaADouglas