Obama's 30-Minute Network Buy Raises Legal Issues

By Eriq Gardner

The decision by the Barack Obama campaign to purchase a half-hour of prime-time television on CBS and NBC might not seem like it raises any legal issues, but don't be so sure.

Many media outlets are framing this campaign expenditure as almost a gift to broadcast networks in a tough economic environment. Millions of dollars could exchange hands, and is the preemption of ratings-challenged "Knight Rider" really that bad for NBC?

Maybe not, but networks have less wiggle room in negotiating with political candidates than might be imagined.

Federal communications law gives federal political candidates the right of "reasonable access" to broadcast time. In fact, a station's license can be revoked "for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time..."

So, why does this matter?

In 1979, the Jimmy Carter campaign actually brought a case against CBS all the way to the U.S. Supreme Court after alleging that the network violated its obligation to provide "reasonable access." The Supreme Court deferred authority to the FCC on these matters.

Of course, what's "reasonable" has never been clearly determined, and assuredly there's a number of FCC and election lawyers discussing the issue today. While Fox hasn't yet committed to Obama's purchase request due to scheduling conflicts surrounding the baseball playoffs, it might be required to offer the campaign some other time.

FCC law also mandates a discounted "lowest unit rate" for political ads under certain circumstances, which could explain why the $1 million price tag reported today by THR seemed low to us.

Oddly, although broadcast networks are obligated to provide reasonable access to candidates like Obama and John McCain, the broadcast law blog run by Davis Wright Tremaine points out that "Local stations are under no obligation (other than perhaps their contractual obligations to the network) to air these half hour political commercials."

Keep in mind that in 2004, Sinclair Broadcast Group, owner of the largest group of television stations in the nation at the time, wanted to air an anti-John Kerry documentary that engendered controversy and a complaint by the Democratic National Committee. In the weeks ahead, everybody may want to watch those local affiliates to see whether they will be in lockstep with the networks.

Of course, election law also provides that networks give "equal time" to political candidates. So far, from what's in the news, that seems to be interpreted to mean that the networks have to give McCain the opportunity to purchase a half-hour of time at the same rate. But McCain's campaign doesn't have the deep financial resources Obama has generated, and not all time slots are created equal. Will the Republican candidate have to settle for a 3am slot between weight-loss infomercials?