Shawn Dixon October 13th, 2008

From a KET press release regarding Ed Whitfield’s threat of legal action if KET didn’t run his infomercial in place of him showing up for a debate with his opponent Heather Ryan:

“The Whitfield campaign requested to broadcast a recorded statement. Under the ‘equal opportunities’ requirements of Section 315 of the Communications Act and the FCC’s rules, KET is obliged to provide equal time by broadcasting the recorded statement,”

The relevant portion of the statute that the KET press release is citing reads as follows:

§ 315. Candidates for public office

(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.

KET caved to Ed Whitfield’s unreasonable demands and they did not have to. As their former station manager said here, they have embarrassed themselves and set a terrible precedent that threatens their future. As I mentioned earlier, no incumbent will ever again debate on KET if they can just send in an infomercial and demand the station run it.

The FCC has issued several opinions that make the threshold for meeting the “equal opportunity” requirement very clear. When a television station offers to set up debates and that station doesn’t try to set limits on what candidates can talk about or the topic of the debate and offers a reasonable format and time arrangements, they have met the “equal opportunity” requirement. Whitfield declined KET’s offer and would not be a party to the negotiations. Ed Whitfield, as we know, had no intention of ever debating Heather Ryan. By offering to work with both candidates and negotiate with them, KET satisfied the “equal opportunity” requirement of the statute.

But, even if you accept KET’s attorney’s argument that they had not met the “equal opportunity” requirement, they did not have to run Whitfield’s infomercial. When a station doesn’t meet that standard, they don’t have to give the opposing candidate any demand they ask for, like demanding an infomercial be played after your opponent speaks with no opportunity for rebuttal. They simply need to offer comparable opportunities.

From an FCC opinion on meeting the requirements of § 315:

If complete agreement cannot be effected with all candidates, the licensee may implement his plans as to candidates who have agreed thereto and, as to any who have not agreed, make available, upon request, opportunities comparable to those accorded his opponents in the program, in accordance with the literal language of Section 315.

Again, this decision isn’t applicable because KET originally met the “equal opportunity” requirement. But, for the sake of argument, in the worst case scenario, they could have simply offered Whitfield an opportunity to come on a program with a format like the one Heather faced. Instead, they offered to run his propaganda for free.

Now, all this raises a bigger question: since KET originally met the “equal opportunity” requirement, do they now owe Heather Ryan an “equal opportunity” to run her infomercial?

• Mitch McConnell
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