Thompson's Candidacy Highlights Need to Allow Exemptions from Equal Opportunities Rule

With the candidacy of Fred Thompson comes an issue of communications policy that arises with every generation of candidates. What to do about the reruns of television programs in which a candidate appears as an actor? The most famous episode was Ronald Reagan's appearance in Bedtime for Bonzo, which triggered equal opportunities for airtime by his opponents in the 1976 Presidential primaries. It arose when Arnold Schwarzenegger ran for Governor of California and long before that when Star Trek's Lt. Sulu, George Takei, ran for Los Angeles County Commissioner.

The problem is that any "use" of the broadcast waves by a candidate, meaning any non-exempt appearance on a broadcast station, triggers the Equal Opportunities Rule. This rule provides all other qualified candidates for the same office equal opportunity to appear on the same station during that election - for free if the actor-candidate did not pay for the airing of the original program.

Broadcasters usually do not want to air political speeches by each of the actor's legally qualified opponents in response to these appearances, so the common response is to remove the show for the duration of the campaign. Since actors receive residual payments for each airing, this not only hurts the candidate, but also all other actors in the episode, to say nothing of depriving the audience of desired programs.

The law, which stems from the 1927 Radio Act, the Communications Act of 1934, and their longstanding interpretative regulations, are aimed at preserving fair elections, certainly an important principle to uphold. Nevertheless, its application to fictional acting warrants re-examination.

When a candidate's appearance is part of a bona fide news story, news interview, newscast or an incidental appearance in a documentary, it is exempt from the rule. Those exceptions were enacted in 1959. But if the newscaster, weatherman, or anyone else appears regularly on television, the law properly applies, as it would give that candidate an unfair advantage.

But what happens when an actor plays a futuristic killer, or a professor who acts as the father of a chimpanzee, or a spaceship crew member who is exposed to a foreign substance on another planet causing him to get progressively crazier throughout the hour? In each of those cases, where the Equal Opportunity Rule applied, the candidate (1) had no control over the content, (2) was acting as someone other than himself, and in some cases had a strikingly different appearance, and (3) was not helping his own candidacy.

Certainly, we do not want the Federal Communications Commission judging whether the content was beneficial to the candidacy or not. The criteria for application of the rule need to be as mechanical and as objective as possible. But by exempting fictional characters who had no control over their lines, the Commission would do no harm to the principle of free and fair elections, and might even help.

What about fake candidacies? Let's say Stephen Colbert becomes a legally qualified candidate in the upcoming Presidential primaries, as Pat Paulsen did in 1972. In that case, the candidate (whether one considers him a real or fake candidate) does have control over the script and thus would not qualify for the proposed exemption.

That raises, though, a broader question of communications regulation -- the application of these rules to cable networks, as the Equal Opportunities Rule applies to broadcast and local cable origination channels, but apparently not to cable and satellite networks.Indeed, Fred Thompson's roles in Law and Order are still showing on Time Warner's TNT Channel.

The reason for disparate legal treatment dates back to the early days of radio regulation, based on a theory of a scarcity of frequencies for radio and later television. Only a few are licensed by the government to broadcast, therefore those who receive such licenses do so as public trustees. There have been many attacks on this theory for the last thirty years, but it is still the law. Furthermore, regardless of whether the government was originally correct in limiting the number of broadcast licensees, the fact is that the government still restricts all but a relative handful from broadcasting on these frequencies, and in return receives relatively little of the licensee. The Equal Opportunity Rule is one of the few content regulations left.

Cable networks, on the other hand, were freed of almost all content regulation on the theory that the consumer actively brought them into the home, subscribing to these channels voluntarily. Never mind the inconsistencies such as the fact that you pay for a television set to bring TV channels into the home, or that many cannot receive signals without the aid of cable, or that local origination channels (those few channels actually programmed by the local cable operator) are still subject to the Rule. In addition, paid multi-channel delivery systems now serve over 85% of the television homes, and those viewers by-and-large do not distinguish between broadcast and cable programs.

If the inconsistencies between broadcast and cable were not enough, we are rapidly approaching the conversion of all broadcasting stations to digital transmission (February, 2009), and the emergence of video programs on the Internet, for example, YouTube.

But for today, the FCC should exempt fictional characters who have no control over their scripts from application of the Equal Opportunities Rule. Broadcasters and cable operators then should exercise restraint from carrying more episodes of a candidate than they previously aired on a regular basis. If not, perhaps the Federal Election Commission would view it as a gift to the candidate, evoking a whole different set of regulations.

These issues, though, are minor compared to the real travesty of broadcast coverage of elections -- the absence of almost all candidate centered discourse on local stations. Yes, this season we are getting a smattering of 9-person debates for the presidential primaries. But, as shown in studies by the Norman Lear Center at the University of Southern California's Annenberg School for Communication, the record of local television stations in covering anything under the federal level -- indeed anything under the presidency -- is dismal. They averaged about a minute a night. It will be particularly ironic if that continues in 2008, as the expected bill for political ads on broadcasting and cable will well exceed $2 billion, an amount keeping them vibrant in a time when other advertising is migrating online.

As the election of 2008 unfolds, will the FCC adopt a policy to allow fictional characters to air when their actors are candidates? More importantly, will local broadcasters exercise their public trust by devoting significant time to candidate-centered discourse and substantive coverage of a wide variety of electoral campaigns?