NBC to Cut Fred Thompson from ‘Law and Order’ Reruns

Without much fanfare, NBC made an interesting announcement Tuesday: if Fred Thompson becomes a presidential candidate, his episodes of "Law and Order" will no longer be rerun.

As reported by the New York Daily News Wednesday (emphasis added throughout):

"If Fred Thompson formally declares his intention to run for President, NBC will not schedule any further repeats of 'Law & Order' featuring Mr. Thompson beyond those already scheduled, which conclude on Saturday, Sept. 1," [executive producer Dick] Wolf said.

Wolf assured that NBC would take all "appropriate steps consistent with FCC regulations."

"Consistent with FCC regulations" appears to relate to the Equal Time rule:

Thompson played D.A. Arthur Branch on the show for five years. If Thompson is legally declared a candidate, and NBC airs episodes that feature 10 minutes of him, under the equal-time requirement the network would then have to feature all the other Republican candidates for an equal 10 minutes in some shape or form.

I'm not an attorney, but I'm not sure that's true. In fact, the opening section of the code suggests otherwise:

§ 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. No obligation is imposed under this subsection upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any-

(1) bona fide newscast,

(2) bona fide news interview,

(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or

(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto), shall not be deemed to be use of a broadcasting station within the meaning of this subsection.

The first paragraph states:

Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section.

Obviously, NBC does have censorship and editing control over the material in "Law and Order." As such, this appears to exempt this kind of a program from Equal Time.

Furthermore, if a "bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary)" is also exempt, it seems logical that a fictitious drama would be similarly so.

To get a firm answer, I will be forwarding this to some known lawyers in the blogosphere for their comment, and welcome legal opinions from those qualified to render them.

However, given the network's current position, after the many hours NBC gave to potential candidate Al Gore during his Live Earth concerts, if Gore indeed runs, will Republican candidates be given compensatory equal time?

Yes, that's a rhetorical question.

*****Update: UCLA law professor Eugene Volokh doesn't agree with my assessment:

Entertainment programming is not included within any of these exceptions; and the FCC and the courts have ruled that appearances as actors or entertainers are covered as "use [of] a broadcasting station." See, e.g., Paulsen v. FCC, 491 F.2d 887 (9th Cir. 1974) (entertainment appearances by comedian and jocular Presidential candidate Pat Paulsen); In re Weiss, 58 F.C.C.2d 342 (1976) (broadcast of movies in which Ronald Reagan had acted); In re Culpepper, 99 F.C.C.2d 778 (same); 100 F.C.C.2d 1476 ¶ 34(d) (1984) ("If an actor becomes a legally qualified candidate for public office, his appearances on telecasts of his movies thereafter will be uses, entitling his opponents to equal time, if the actor is identifiable in the movies"); id. ¶ 34(e) (taking the same view for other broadcast appearances, for instance by "the host of a teenage dance show," "a radio disc jockey," and a minister on a religious program).

Thank you for the speedy reply, Professor. 

Noel Sheppard
Noel Sheppard
Noel Sheppard, Associate Editor of NewsBusters, passed away in March of 2014.