[grc] Equal time for political candidates

Wed May 11 09:50:52 PDT 2016

Section 312 [47 U.S.C. §312] Administrative sanctions.
(a)    The Commission may revoke any station license or construction permit –
(7)    for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.
(f)     For purposes of this section:
(1)    The term “willful”, when used with reference to the commission or omission of any act, means the conscious and deliberate commission or omission of such act, irrespective of any intent to violate any provision of this Act or any rule or regulation of the Commission authorized by this Act or by a treaty ratified by the United States.
(2)    The term “repeated”, when used with reference to the commission or omission of any act, means the commission or omission of such act more than once or, if such commission or omission is continuous, for more than one day.
What about the other than statement in section 312?

From: Philip Tymon [mailto:philiptymon at gmail.com]
Sent: Wednesday, May 11, 2016 12:31 PM
To: Kenny Lavender WTSQ
Cc: grc at maillist.peak.org
Subject: Re: [grc] Equal time for political candidates

Kenny,

I think you're confusing three different things: Section 315 a, Section 315 b and Section 399

The section you are now referring to appears to be Section 315b  having to do with "lowest unit rate". This only applies if you are selling time to candidates. This does not appear to apply to you.

The person who is asking for time is citing Section 315 a. This does appear to apply to you.

And, as some have mentioned, Section 399 might also be a cause for concern.

Bottom line--- as pretty much everyone has said--- is,  if a programmer is running for office (and others are also running for that office) safest thing to do is suspend their program until the election is over.

If you don't want to do that, you really need to get good, professional legal advice from a practicing FCC attorney.

Philip Tymon

On Wed, May 11, 2016 at 6:52 AM, Kenny Lavender WTSQ via grc <grc at maillist.peak.org<mailto:grc at maillist.peak.org>> wrote:
Here is the content section of the code he is referring to:

(2) Content of broadcasts
(A) In general
In the case of a candidate for Federal office, such candidate shall not be entitled to receive the rate under paragraph (1)(A) for the use of any broadcasting station unless the candidate provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office, in any broadcast using the rights and conditions of access under this chapter, unless such reference meets the requirements of subparagraph (C) or (D).

(B) Limitation on charges
If a candidate for Federal office (or any authorized committee of such candidate) makes a reference described in subparagraph (A) in any broadcast that does not meet the requirements of subparagraph (C) or (D), such candidate shall not be entitled to receive the rate under paragraph (1)(A) for such broadcast or any other broadcast during any portion of the 45-day and 60-day periods described in paragraph (1)(A), that occur on or after the date of such broadcast, for election to such office.

(C) Television broadcastsA candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds-
(i) a clearly identifiable photographic or similar image of the candidate; and
(ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate's authorized committee paid for the broadcast.
(D) Radio broadcasts
A candidate meets the requirements of this subparagraph if, in the case of a radio broadcast, the broadcast includes a personal audio statement by the candidate that identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast.

(E) Certification
Certifications under this section shall be provided and certified as accurate by the candidate (or any authorized committee of the candidate) at the time of purchase.

(F) Definitions
For purposes of this paragraph, the terms "authorized committee" and "Federal office" have the meanings given such terms by section 30101 of title 52.

-----Original Message-----
From: grc [mailto:grc-bounces at maillist.peak.org<mailto:grc-bounces at maillist.peak.org>] On Behalf Of Michelle Bradley via grc
Sent: Wednesday, May 11, 2016 9:28 AM
To: grc at maillist.peak.org<mailto:grc at maillist.peak.org>
Subject: Re: [grc] Equal time for political candidates

I think we have two different issues here.

Equal time, which is addressed in §315  below.

Station endorsement of candidates, which is addressed in §399.

What I speak of with §399 is not a statutory requirement that once a candidate announces their bid for public office that you have to kick them off the air, you are keeping a liability that the candidate DJ may
say something on the air that could be construed as an endorsement.
Some will interpret (and they already have) that the DJ's presence on the air, using his/her name on the air (supplementing the campaign signs all around the listening area) can be perceived as an endorsement by the station.

I still feel that a political candidate having live, unfettered access to an NCE/LPFM station during a political campaign is a conflict of interest and opens the station to §399 liabilities.

Also, if you read §315(a) where it states:

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 provisions of this section. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate.

The key words "to use a broadcasting station" come into play here.

If a competing candidate was to escalate the issue, the vague wording of
§315(a) would mean that once a person is declared a legally-qualified candidate and the "use" a broadcast station (even to spin records only), an opportunity must be provided to all other candidates for that office.

Again, I would still strongly suggest suspending the show until after the election.

=m

On 5/11/2016 9:12 AM, Kenny Lavender WTSQ via grc wrote:
> Here is his email that he sent me after calling me:
>
> Dear Mr. Lavender:
>
> Thank you for taking the time to speak with me this afternoon.  In reference to our conversation regarding equal time for political candidates, I offer this for your consideration:
>
> Communications Act of 1934, § 315; codified at 47 U.S.C. § 315:
>
> "(a) Equal opportunities requirement; censorship prohibition;
> allowance of station use; news appearances exception; public interest;
> public issues discussion opportunities; 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 provisions of this
> section. No obligation is imposed under this subsection upon any
> licensee to allow the use of its station by any such candidate.
> Appearance by a legally qualified candidate on any-
>
> (1) bona fide newscast,
> (2) bona fide news interview,
> (3) bona fide news documentary (if the appearance of the candidate is
> incidental to the presentation of the subject or subjects covered by
> the news documentary), or
> (4) on-the-spot coverage of bona fide news events (including but not
> limited to political conventions and activities incidental thereto),
>
> shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance."
>
> I believe that for my purposes it is reasonable, in accordance with this statute, to request two hours of weekly broadcast time on WTSQ-FM regardless of content of the program, which to the best of my knowledge does not meet the exemptions outlined above.
>
> With specificity, I believe that the phrase "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" is clear in its meaning and application to this request.
>
> I have an extensive background in media production for broadcast standards and an off-site production facility able to meet your requirement for on-air signal.  Here is the program I propose to you and your organization:
>
> "CRRRRAZY TALK!", a weekly two hour talk show in the style of Art Bell.  In practice, this program would more likely be roughly 90 minutes of monologue, interview and panel discussion with the rest of the time devoted to station formatting and music breaks.  I would prefer WTSQ aggregate the music to correspond with a weekly genre theme; e.g. punk, hip hop, jazz, etc. but am able to provide appropriate playlists.
>
> Literally anyone can come on CRRRRAZY TALK!, provided they follow this procedure:
>
> 1. Write a hand-written letter to me
> 2. Offer brief synopsis of argument/issue 3. Include self-addressed
> stamped envelope 4. Wait 2-4 weeks for reply
>
> I want to create a space where listeners come and talk about anything they wish.  My live-to-tape production capabilities allows me to make sure that nothing way out on the edge or out of compliance with FCC regulation is able to reach the air.
>
> To address the second topic of our conversation, I am requesting WTSQ's consideration for a live, on-air debate between me and the Democratic nominee for WV37.  As a media outlet whose principal broadcast area encompasses the district, I believe it benefits the community and furthers WTSQ's mission to hold this public conversation.  I understand that WTSQ is not compelled to host or air this program.
>
> I understand per our conversation that you must present this to your board of directors for consideration.  I will look forward to your reply.  A copy of this letter has been submitted to my consulting attorney for convenience and accuracy.
>
> Warmest regards,
> -Thomas W. Goodman
>
> -----Original Message-----
> From: grc [mailto:grc-bounces at maillist.peak.org<mailto:grc-bounces at maillist.peak.org>] On Behalf Of Lanny
> Cotler via grc
> Sent: Tuesday, May 10, 2016 8:00 PM
> To: Michelle Bradley; grc at peak.org<mailto:grc at peak.org>
> Subject: Re: [grc] Equal time for political candidates
>
> Is it worth the risk? Maybe it is.
>
> I'd hate to see the Bill of Rights being trumped (no pun intended) by itty-bitty laws-within-laws.
>
>
>> On May 10, 2016, at 4:56 PM, Michelle Bradley via grc <grc at maillist.peak.org<mailto:grc at maillist.peak.org>> wrote:
>>
>> You are still risking that something will be said that can be seen as a political endorsement in violation of section 399 of the Communications Act, state non-profit laws and if 501(c), the IRS code.
>>
>> Here in the NCE world (which includes LPFM), we have 399 looming over us.. commercial radio does not have this.
>>
>> =m
>>
>>
>>
>> On 5/10/2016 7:53 PM, Lanny Cotler via grc wrote:
>>> Why not offer the candidate the opportunity to have a musical (non-political) slot to DJ.
>>>
>>> The more DJs we have, the better.
>>>
>>>
>>>> On May 10, 2016, at 5:18 AM, Kenny Lavender WTSQ via grc <grc at maillist.peak.org<mailto:grc at maillist.peak.org>> wrote:
>>>>
>>>> We have been approached by a candidate for office requesting equal airtime as one of our DJs that is running for local office.  They aren't yet opponents.  The potential candidate thinks that he is due equal time based on the Dj having a musical program where he doesn't discuss politics.  Any ideas on how to proceed?
>>>>
>>>>
>>>> Kenny Lavender
>>>> Vice President
>>>> WTSQ LP 88.1
>>>> The Status Quo
>>>> _______________________________________________
>>>> grc mailing list
>>>> grc at maillist.peak.org<mailto:grc at maillist.peak.org>
>>>> http://maillist.peak.org/mailman/listinfo/grc
>>>
>>>
>>>
>>>
>>> KLLG ~ 97.9 FM
>>> Lanny Cotler, Director
>>> Little Lake Grange Radio
>>> Willits Hometown Low Power Radio
>>> P.O Box 820, Willits, CA 95490
>>> 707-367-1812<tel:707-367-1812>
>>> LANNY at KLLG.ORG<mailto:LANNY at KLLG.ORG>
>>>
>>>
>>>
>>>
>>>
>>>
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