Sunday, July 29, 2007

Where's the Law in "Law & Order"? - Thompson vs. Thompson

July 29, 2007, 7:00 a.m.

A couple of reporters tracked down the former FCC commissioner the other day in their thorough effort as good journalists trying to figure out whether Fred Thompson the actor was going to be playing the role of spoiler in the show starring Fred Thompson the presidential candidate.

I play only a bit part in their reports of this drama, but you might be interested in these links to their stories anyway.

Jill Vejnoska, "Fred Thompson is a TV star. He's also a politician. If he enters the '08 presidential race, his air time on the popular show "Law & Order" would raise a ... Question of visibility,"
The Atlanta Journal-Constitution, July 15, 2007.

Scott Horsley, "'Law & Order' Episodes with Fred Thompson to End,"
NPR's "Morning Edition," July 26, 2007,

To fully explain and document what this is all about would require a law review article rather than an early morning blog entry, but here's a simple walk-through:

In recognition of the political power of the media (after all, where do all those millions of dollars of campaign contributions go anyway but to purchase TV time, right?) for 80 years Congress has required broadcasters to provide an "equal opportunity" (often erroneously called "equal time," which it's not) to all candidates. That is, once they put a given candidate for public office on their station they have to give all of his or her competitors an equivalent shot at the audience.

Of course, that raises a question as to who is, and is not -- or is not yet -- a candidate. There are a number of factors to consider in answering those questions, but within limits if you don't say you're a candidate you may not be one. Notice, for example, that Fred Thompson -- only once a U.S. senator but seemingly always to be in our homes as the star of "Law & Order" -- refuses to say whether he's a Republican candidate for president or not. (It's a tactic I used before entering the Democratic Party primary for Congress. I got radio time as someone just "considering" whether to become a candidate or not.)

Why would someone giving serious thought to running not want to be characterized as a "candidate"? Because broadcast stations don't like the idea of giving a candidate time if it means they'll be required to turn over valuable programming time with high ratings (and therefore high commercial revenue) -- even if for pay -- to a large field of candidates, most of whom are likely to turn off a goodly share of the audience. So while they may be willing to offer a little time interviewing someone "who might become a candidate in the future" they are more reluctant to provide time to a "candidate."

So far so good for Fred Thompson. He's not a "candidate."

And what's the problem if he becomes one? A TV program in which he stars, "Law & Order," is in reruns on cable -- some 20 or more hours a week. If "equal opportunity" applies to those "appearances" of a presidential candidate -- and if the cable channel isn't interested in providing hundreds of hours of time to give the nine current Republican candidates an "equal opportunity" (which would likely be the case) -- Fred Thompson will confront a tough choice. Either he abandons a possible race for president, or he abandons -- for himself, others compensated by the reruns, and the cable channel -- the income those reruns provide.

There are a number of issues.

Does "equal opportunity" apply to appearances in entertainment programming? The answer, so far, is that it does -- in situations, or litigation, involving Ronald Reagan, Arnold Schwarzenegger, Pat Paulsen, and a TV news journalist (Branch). Should it? That's another issue. My view, as Scott Horsley reported, is that Fred Thompson's own case is the best argument why it should.

Name identification is one of the most important assets for a candidate; it's the goal of the early political commercials. However irrational, familiarity builds support. It's one of the reasons Hillary Clinton started off so strong compared to the others. And it's how one can explain that a former U.S. senator, with an undistinguished record virtually no one can recall, who has not declared as a candidate, is suddenly found in polls among the top tier of Republican candidates. TV makes a difference. Indeed, one suspects that it is the character Fred Thompson plays in "Law & Order," not the politician, who is leading the Republican pack.

So, does "equal opportunity" apply to these cable re-runs? The law in which it is found (section 315) deals with "broadcasting," the programming you pick up from an over-the-air TV station (whether with a rabbit-ears antenna, or from your cable company), the "Law & Order" episodes when first broadcast by NBC (or when re-run by over-the-air stations). But cable programming suppliers, whether ESPN, C-SPAN or TNT, aren't "broadcasters."

However, the FCC long ago said that the requirements of section 315, even if not that section itself, do apply to cable companies (that is, your local cable distributor you pay every month) when they are "originating" programming. (Like your local "public access" channels, the cable company may have a "local origination" channel which it programs.) That much is clear.

But it's also not what we're talking about. A cable programming supplier (in this case providing network re-runs to local cable companies) is not a "cable company" engaged in "program origination."

On the other hand, the intention of the Congress, the FCC, and the spirit of the FCC regulation are clear. The reason the FCC regulation was limited to "program origination" is because, at that moment in the history of cable television, that was the only programming not otherwise covered. There was just re-distributed over-the-air stations' programming (which clearly was covered by section 315's "equal opportunity" requirements -- and therefore needed no additional regulation just because it was re-broadcast by a local cable distributor), and there might be programs created by the local cable company -- which would not be covered by section 315. Therefore, the FCC -- recognizing the nation's well- and long-established policy of "equal opportunity" -- extended the requirement to cable company-originated programming as well.

All of this is what leads to my assertion, reported by Scott Horsley, that we are left with ambiguity. But unless Congress is inclined to redefine "appearance" so as to exclude entertainment programming -- which of course it has the constitutional power to do -- in an age when some 70% of the American people are getting their TV programming from a cable, and neither know nor care to distinguish the sources of their various channels' programming, the only fair and rational resolution of that ambiguity is to apply the same standards to all cable programming -- whether it is being relayed from an over-the-air station, created by the local cable company, or comes from a cable programming supplier.

But, then, when was the last time rational analysis won the day in Washington?

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Note: Yesterday's blog entry ("Health Care, Honors & Sports" now updated with links, including today's Gazette story reviewing Fethke's term.)

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