Jonathan D. Janow · June 2008
76 GEO. WASH. L. REV. 1073 (2008)
In 2003, when Arnold Schwarzenegger announced his candidacy for governor of California on The Tonight Show with Jay Leno, he opened the door to a wide-open gubernatorial race consisting of 135 candidates. Most candidates did not receive such welcome treatment by the television media. Mockingly, the other candidates were invited onto Leno’s late-night program for the opportunity to have ten seconds of equal time, only to have their responses played simultaneously to the television audience.
Congress enacted the equal time provision of the Communications Act of 1934 (“Communications Act”) to provide political candidates equal access to the airwaves. The Act aimed to mitigate potential negative influence of broadcast-media-dominated election coverage. Recent Federal Communications Commission (“FCC”) interpretations of the Act’s subsequent amendments, which provide exceptions to the equal time rule and uncertainty about the provision’s applicability to cable and satellite television broadcasts, have helped erode equal time’s effectiveness. Given the wide range of television shows that now feature candidate appearances and the near ubiquity of cable and satellite television in American homes, the time is ripe to reexamine equal time’s role, coverage, and effectiveness.
This Note proposes that Congress reinvigorate the role of equal time requirements for political candidate appearances on television by repealing the news interview exemption and statutorily extending the rule’s coverage to cable and satellite television networks. Under the proposal, any news interview program that features appearances by qualified political candidates during the limited election season would require networks to provide an opportunity for equal airtime to qualified opposing candidates. Other programs that might feature a candidate appearance, such as bona fide newscasts, on-the-spot news coverage, and news documentaries, would remain exempted from any equal time requirements.
This Note first examines the evolution and enforcement of the equal time rule and the shortcomings of the rule as it currently stands, and then proposes a statutory solution. Part I traces the history and development of the equal time rule. Part II discusses the problems with the current formulation and enforcement of the rule. Part III proposes a statutory amendment to the Communications Act to clarify the equal time rule’s applicability to candidate interview appearances in any television transmission. Part IV evaluates the proposal in light of the First Amendment, policy issues, and prudential concerns.
The Note concludes that without substantial change, the current equal time rule, which lacks teeth, fails to effectuate an important congressional regulatory scheme.
