Will Rick Santorum Be The Next Host Of Saturday Night Live?

When Donald Trump serves as the host of Saturday Night Live (SNL) on November 7, won’t all the other candidates get equal time to be hosts of the show as well? The answer is no, but some of the other Republican candidates for President may well claim a right to receive air time on a number of NBC stations. This post will discuss the law surrounding Trump’s appearance. A forthcoming post will discuss political broadcasting law more broadly.

First, an aside: Trump’s SNL gig has generated a lot of attention, which is certainly why NBC wanted him to do it. Much of the reaction has been negative, which is hardly surprising in light of the fact that just three months ago the network announced that, "Due to the recent derogatory statements by Donald Trump regarding immigrants, NBCUniversal is ending its business relationship with Mr. Trump." But despite lobbying pressure from the National Hispanic Media Coalition and other minority groups (which probably even helps NBC in the short run by promoting the event), NBC is likely to stick to its plan. After all, this is business.

Under Section 315 of the Communications Act, legally qualified candidates have a right, under certain conditions, to request “equal opportunities” when their opponents appear on the air. “Equal opportunities” is often referred to colloquially and interchangeably as “equal time,” but the right is broader than that; candidates are entitled to the same amount of time, at more or less the same time of day, and if the appearance was in an advertisement, at the same price. The stations’ obligation is to make the time available and broadcast what the candidate provides. However, they are not responsible for producing the programming, much less placing it in a particular station-produced program.

Section 315 has four broad exemptions that the Federal Communications Commission has very broadly construed to remove almost all candidate appearances on news or similar programs from its coverage. For example, the FCC has ruled that Howard Stern’s radio show and Jerry Springer’s TV show are both “bona fide news interview” programs and therefore exempt from equal opportunities requests. However, SNL is a scripted entertainment program and cannot fit into any of the exemptions. Similarly, Fred Thompson’s appearances on Law and Order and Ronald Reagan movies were considered to trigger equal opportunity appearances, and most stations chose not to run them while those men were candidates.

The operation of Section 315 can be seen in Hillary Clinton’s appearance in an SNL skit on October 3. In compliance with FCC rules, NBC notified each of its owned and affiliated stations that she had been on the air for three minutes and 12 seconds, commencing at 11:53 pm, and the stations placed notices to that effect in their public files, which have recently been made available online. The notices also stated that the time was made available “without charge.”

Clinton is running for the Democratic nomination, so Section 315 empowers other Democratic candidates to request equal opportunities. So far as is known, Lawrence Lessig was the only candidate to make an “equal time” request within the seven day deadline provided in the FCC’s rules. Notably, stations, not networks, are licensed by the FCC, so Lessig’s request was addressed to 47 different NBC stations. In practice, when a network program is involved, the network (which owns many but not all of the affected stations) typically handles the matter for most or all of the stations. Thus, NBC responded to Lessig by asking if he could meet his legal burden of showing that he is, indeed, a legally qualified candidate. In addition, even though the notices the NBC stations placed in their public file described Clinton as “a candidate for the Democratic nomination for President,” NBC also asked Lessig to prove that she, too, is a legally qualified candidate.

To weed out frivolous requests, the test for being a legally qualified candidate is rather rigorous. Candidates must make a “substantial showing” of their bona fides. In Presidential elections, the candidate must demonstrate qualification on a state-by-state basis, but a candidate qualified in 10 or more states is considered to be a candidate in all the states. The FCC defines “substantial showing” to mean:

evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters....”

Lessig’s attorney responded by letter on October 21, describing Lessig’s fundraising, media appearances and speeches and asserting that Lessig is a legally qualified candidate in more than 10 states. As to Clinton, Lessig’s attorney said, “Our first response to that is as follows: surely, you can’t be serious.” (Boldface and italics in the original.) The attorney then proceeded to provide evidence of what he considered to be obvious. As of this writing, there is no public indication as to NBC’s decision on Lessig’s claim, but it is virtually certain that NBC will accede. In the unlikely event that NBC were to deny the request, Lessig would surely file a complaint with the FCC. (In a recent press conference, FCC Chairman Wheeler said, “The rules are pretty clear. Rules are rules. I hope that we have developed a reputation as folks who enforce the rules.”)

Trump’s appearance on SNL will trigger a similar scenario, but the stakes are higher than for Clinton’s, because, as the host, he will be appearing for substantially more than the three minutes and 12 seconds that Clinton’s skit did. Moreover, there are many more candidates who are in a position to request time. Republican candidates will have seven days to make their claim; after that, their right extinguishes. NBC will ask them for documentation, and then probably grant the request. (In 2004, after Al Sharpton hosted SNL, NBC gave Joseph Lieberman about half an hour to broadcast a “town hall.” A number of stations chose not to carry the Sharpton broadcast, but there is no indication that this will happen when Trump appears.)

Assuming that NBC agrees to provide equal opportunities to Lessig or any Republican to be named later, the next question is what that means. The candidate’s right is to air time, not to appear on SNL. However, it is critical in this regard that Section 315 contains a no censorship provision that gives the candidate complete control over how to use the time. Thus, Lessig’s right would be to control about 3 minutes of time on a Saturday night at about 11:30 pm. Presumably, a Republican receiving equal opportunities after Trump’s appearance will have a similar right, but to a larger block of time. In practice, this typically leads to a negotiation. While NBC could probably give Lessig 3 minutes during a commercial break, the candidate might well prefer 2 one-minute spot announcements spread throughout the show. NBC would almost certainly prefer to provide some spot announcements rather than turn over 20 or 25 minutes to each of a number of candidates. Similarly, both NBC and someone like Rick Santorum or George Pataki might well prefer an arrangement in which the candidate receives a few prime time spots rather than 20 minutes on a Saturday night.

The equal opportunities provision rarely applies to Presidential candidate appearances. However, it can be very important in local elections, which is something that will be addressed in the forthcoming post.