From our friend Adam Avery at AA Mortgage Group.
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A recent Frederick News Post editorial calls for the immediate termination of WFMD’s the Blaine Young Show on the grounds that its continuation would be unethical at the least, and worse, a violation of section 315 of the Communications Act, also known as the “equal time rule.”
The editor is wrong and he has even misinterpreted his own source, David Oxenford, partner of Davis Wright Tremaine, LLP and editor of the BroadcastLawBlog.com.
The FNP’s editor asserts that WFMD and Mr. Young are “taking advantage of a loophole” in the Act. That is, he argues that had Mr. Young filed the necessary paperwork required to run for re-election to the Board of County Commissioners, he “would be off the air right now.”
What the FNP editor labels a “loophole”, I would argue is instead a clearly defined provision.
DWT’s opinion bolsters my position, concluding that “once a candidate becomes “legally qualified” (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates….”
In other words, unless and until a candidate becomes “legally qualified”, his broadcasting is not germane to any facet of Section 315 of the Act and thus, the radio station would be under no obligation to offer equal time to other candidates.
If, for example, I went on a radio show as a guest in mid-July, mentioned that I was thinking about running for public office, engaged in the waste to energy debate, and then declared in September that I was running for the Board, by what means would one be able to ascertain what equal time is owed and to whom to mitigate my mid-July appearance?
How would one reconcile Lenny Thompson’s tiresome on air mantra, “I will not run for office anymore, since no one will ever vote for me again due to my support of an incinerator”, if he later filed the necessary paperwork to run for re-election?
What if Mr. Young said on air that he was going to run, but then due to an unforeseen event decided that he couldn’t run? Would it have been fair to have removed him from his show?
The answer to all of these questions is to look at the rule for a trigger event. That trigger is “to have become legally qualified by having established a place on the ballot.” That is why the law is written as such. It isn’t a “loophole.” It is the rule.
Finally, let’s be clear about the law: no one goes to jail and no one gets fined if WFMD allows Mr. Young to broadcast AFTER he has legally qualified. They simply become obligated to offer equal time. The onus is on opposing candidates to demand equal time. Who says anyone would come forward. If they did, who says WFMD wouldn’t oblige? Perhaps it would be good radio and generate advertising revenue beyond their wildest dreams. That is for WFMD’s management to decide. Not the Frederick News Post. Not me. Not WFMD’s listeners. Not Davis Wright Tremaine.
WFMD is a business. Although it interacts with the public, it is not publically funded. It would be a poor business practice to quell any programming that generated profit any sooner than WFMD determines to be more of a risk than reward.
I am sure that WFMD will see through the hypocrisy and appreciate the FNP’s concern for the potential to create an unfair playing field for one political party or candidate. In the meantime, the FNP should evaluate its own bias that permeates their columns, opines, and newswire lifts.