The Equal Time Rule Is Anything But: How Can the Federal Communications Commission Apply the Equal Time Rule to Make Televised Political Debates Fairer and Ensure That Candidates Receive Relatively Equal Speaking Time?

• Author: Snower, Sydney

TABLE OF CONTENTS I. INTRODUCTION 177 II. WHAT IS THE EQUAL TIME RULE AND HOW DID IT GET HERE? 178 A. Elements of the Equal Time Rule 178 B. A Brief History of the Equal Time Rule: Its Origins and Reshaping Since 1927 180 III. THE INSTITUTIONALIZED ROLE OF TELEVISED POLITICAL DEBATES IN U.S. ELECTIONS AND THE CONTINUED IMPORTANCE OF THE EQUAL TIME RULE 184 A. Why Are Debates Important? 184 B. Why Is the Equal Time Rule Important? 186 IV. IDENTIFYING OPPORTUNITIES FOR REFORM: HOW TO HARNESS THE EQUAL TIME RULE TO ENSURE THAT ALL DEBATE PARTICIPANTS HAVE AN EQUAL OPPORTUNITY TO SPEAK TO THE ELECTORATE V. FURTHER EXPLORATION OF THE EQUAL TIME RULE OUTSIDE OF THE POLITICAL DEBATE ARENA 190 VI. CONCLUSION 192 I. INTRODUCTION

21 minutes and 16 seconds. (1)

9 minutes and 34 seconds. (2)

6 minutes and 22 seconds. (3)

These figures do not represent average wait times for a favorite theme park ride or baking times for the perfect chocolate chip cookie. Instead, the figures represent the difference in speaking time between the candidate who spoke the most and the candidate who spoke the least in three presidential primary debates. Millions of Americans watch the presidential primary debates each election year and some criticize the networks and hosts for unequally allocating speaking time among candidates on the debate stage. (4) In recent years, post-debate news reports featured minute-by-minute tallies of each candidate's speaking time that highlighted these disparities. (5) Can the United States presidential debates be fairer? And is there a mechanism already in place that can address the imbalance of speaking time on the national debate stage?

The equal time rule may provide the solution. Although rarely invoked today, the equal time rule requires broadcasting stations to afford equal opportunity in airtime to all legally qualified candidates who submit a request. (6) The FCC'S interpretation of the equal time rule currently excludes political debates. This allows speaking time disparities to occur among candidates without penalty.

This Note explores the equal time rule and its viability as a solution to equalize the disparities in speaking time among candidates during televised debates. (7) Part I introduces the problem of unequal speaking time during televised debates among candidates competing on the same debate stage. Part II discusses the elements of the equal time rule, its origin, its evolution, and concerns about its effectiveness and underlying purpose. Part III addresses the relevance and institutionalized nature of televised debates in U.S. elections, the impact political debates have on voter decision-making, and policy justifications to support continued adherence to and expansion of the equal time rule. Part IV suggests a modification to the equal time rule exemption for on-the-spot coverage of bona fide news events that would subject political debates to the rule. This could be accomplished by applying the two-pronged test created in the FCC'S Aspen Institute Program on Communications Memorandum Opinion and Order to determine exemption status for each debate. (8) The FCC could then impose a more exacting interpretation of the Aspen test's requirement that the program be the result of good faith news judgment and not based on partisan purposes. This would encourage broadcasting stations and licensees to afford relatively equal speaking time to all debate participants by making the two-prong test a requirement for exemption from the rule. Alternatively, Congress could amend Section 315 of the Communications Act to codify both the two-part Aspen test and an enhanced standard. Part V discusses further problems of the equal time rule apart from political debates, ranging from lax enforcement to notice issues. Ultimately this Note suggests that the FCC strengthen the equal time rule by broadening its scope and application to the political debate arena.

2. WHAT IS THE EQUAL TIME RULE AND HOW DID IT GET HERE?

   1. Elements of the Equal Time Rule

      The equal time rule requires broadcasting stations to afford equal opportunity in airtime to all legally qualified candidates who submit a request. (9) This rule consists of the following elements: a legally qualified candidate; an opposing candidate; use of programming; equal opportunity; no censorship; and a timely request. Congress also created four statutory exemptions to the rule. (10)

      A Legally Qualified Candidate. (11) A legally qualified candidate is an individual who has publicly announced her intention to run for office, made a substantial showing that she is a bona fide candidate by participating in campaign activities, and met various local, state, and federal regulations for the office being sought. (12) A substantial showing means engaging "to a substantial degree in activities commonly associated with political campaigning" such as "making campaign speeches, distributing campaign literature, issuing press releases, [and] maintaining a campaign committee." (13) Once a candidate is a legally qualified candidate, she is eligible to invoke the equal time rule. (14)

      An Opposing Candidate. Only an opposing candidate may invoke the equal time rule. (15) During a primary election, only a candidate who is of the same political party is an opposing candidate for purposes of the equal time rule. (16) For example, a Democratic primary candidate cannot request equal time based on coverage that a Republican primary candidate received in the same election cycle. (17) However, during a general election, all candidates running for office are considered opposing candidates for purposes of the equal time rule. (18)

      Use as Defined in Section 315(b) of the Communications Act of 1934. Only a candidate's use of programming allows an equal time request. (19) Use consists of a candidate's appearance by voice or picture, "regardless of [the] candidate's consent." (20)

      Equal Opportunity. The equal time rule requires "equal time at equal cost" and applies to paid and unpaid programming. (21) For example, if a television station affords coverage to Candidate A free of charge, Candidate B may request coverage of an equal duration free of charge. (22) A candidate must also receive coverage during the same or comparable daypart. (23) For example, if a station sells 20 seconds of prime-time access to Candidate A for $10,000, the station must make available to Candidate B a comparable slot--20 seconds during prime-time--for $10,000 if she so requests.

      No Censorship. Should a candidate receive equal opportunity for time as a result of her request, the broadcasting station or licensee cannot censor the content.24 As a result, a candidate who requests and is granted equal time need not appear in the same forum in which her opponent appeared. (25)

      A Timely Request. A candidate seeking protection under the equal time rule must request equal time from the broadcasting station within seven days of the date the relevant coverage of the opposing party first aired. (26) A candidate's appearance that stems from an equal time request does not itself trigger an opportunity to request equal time, eliminating requests made ad infinitum. (27) A candidate who has not received equal time may file a complaint with the FCC. (28)

      Four Statutory Exemptions. In 1959, Congress passed an amendment listing four categories of programs that are exempt from the equal time rule: (1) bona fide newscasts, (2) bona fide news interviews, (3) bona fide news documentaries, and (4) on-the-spot news coverage of bona fide news events. (29) Although Congress provided little guidance as to which characteristics defined each category, the FCC eventually decided that the fourth exemption, of relevance in this Note, encompasses televised political debates. (30)

   2. A Brief History of the Equal Time Rule: Its Origins and Reshaping Since 1927

      The equal time rule (31) originated from Section 18 of the Radio Act of 1927 which required radio broadcasters to afford equal time to candidates who requested it. (32) The rule later expanded to television broadcasting after its codification in Section 315 of the Communications Act. The law was intended to prevent owners of broadcasting stations from giving more airtime, and thus unfair advantage, to one political candidate over another. (34)

      In 1959, Congress amended Section 315 in response to an FCC ruling that "candidate appearances on news programs would trigger the equal time requirements of the Act" and render it virtually impossible to report on a candidate without being required to provide equal time to all other requesting candidates. (35) The amendment created four statutory exemptions to the equal time rule: (1) bona fide newscasts, (2) bona fide news interviews, (3) bona fide news documentaries, and (4) on-the-spot news coverage of bona fide news events. (36) The statute offers no further guidance regarding interpretation of each exemption except that the fourth exemption for on-the-spot news coverage of bona fide news events "include[s] but [is] not limited to political conventions and activities incidental thereto." (37) These exemptions gave broadcasters more latitude over their stations' content and alleviated the burdens posed by giving every candidate, including minor ones, free air time. (38) In adopting the four statutory exemptions, Congress judged that "the public benefits of [dynamic coverage of political campaigns] are so great that they outweigh the risk that may result from the favoritism that may be shown by some partisan broadcasters." (39)

      One year later, Congress temporarily suspended the equal time rule in fear that it would thwart a highly sought televised presidential debate. (40) The 1960 presidential election cycle was in full swing and featured frontrunners then-Senator John F. Kennedy (D-MA) and then-Vice President Richard Nixon. (41) By 1960, neither Congress nor the FCC had clarified whether the equal time rule applied to political debates or...