One hour before a Jan. 15, 2008 Las Vegas debate featuring presidential candidates from the Democratic Party, the Nevada Supreme Court ruled that MSNBC is free to bar Ohio Congressman and presidential candidate Dennis Kucinich (D-Ohio) from participating. The ruling vacated a temporary restraining order issued earlier that day by a Clark County District Court that said MSNBC must either cancel the broadcast or allow Kucinich to participate.
The controversy arose from a January 14 lawsuit filed by Kucinich’s lawyers in Las Vegas after MSNBC initially invited him to participate and then rescinded the offer two days later. The district court held that barring the congressman from participating in the debate would breach a contract between MSNBC and Kucinich and violate the so-called “equal time” requirements of the Communications Act of 1934, 47 U.S.C. section 315 (2006). The “equal time” requirements mean that licensed television and radio stations must, in some circumstances, provide equal opportunity for political candidates to appear on their station’s programs.
Nevada Supreme Court order No. 50889 overturned the lower court ruling on both claims. Even though MSNBC invited Kucinich to participate in the debate in a Jan. 9, 2008 e-mail message, the television network remained free to withdraw its offer, which it did on Jan. 11, 2008, because the alleged contract lacked “consideration,” the Nevada Supreme Court ruled. “Consideration” means a return promise – often of money or some other tangible or intangible asset – offered by the party seeking to enforce the contract. Here, MSNBC offered Kucinich the chance to participate in the debate, but he did not promise any consideration in return. Contracts that lack consideration are invalid, the opinion said.
The high court also reversed the lower court’s ruling under the Communications Act of 1934, finding the district court lacked jurisdiction to hear the case. The federal statute, as amended, states that any “broadcasting station” that allows a candidate for federal office to “use” its services “shall afford equal opportunities to all other such candidates for that office.”
The Nevada Supreme Court ruled that under the Communications Act of 1934, the only role of the courts is to review the rulings of the Federal Communications Commission (FCC). Since Kucinich failed to allege in his lawsuit that he sought review from the FCC first, the Nevada courts lacked jurisdiction to hear his case. The state’s high court did not address MSNBC’s argument that the “equal time” restrictions should apply only to broadcast stations, not cable networks.
Following the ruling, the debate proceeded between the remaining Democratic candidates – Hillary Clinton, John Edwards, and Barack Obama – in the Cashman Center in Las Vegas. Outside the building, Kucinich and his supporters held an impromptu rally, according to a Jan. 16, 2008 report on lasvegasnow.com, a Web site run by a local CBS affiliate.
The report said Kucinich spoke to reporters and supporters at the rally. “Who died and left NBC god? I mean, the TV networks are here to serve the public interest,” Kucinich said. “NBC has some idea that they can determine what the public’s interest is.”
According to a Jan. 16, 2008 New York Times story, MSNBC did not comment on the ruling.
The Nevada controversy was not the only time Kucinich tried to participate in a presidential debate from which he was excluded. On Jan. 4, 2008, he filed a complaint with the FCC after ABC News announced he would be excluded from a debate the next day. The debate proceeded without him as the FCC and ABC News apparently ignored his complaint. But Kucinich tried again on Jan. 18, 2008, when CNN announced he would be excluded from a January 21 debate on the cable network.
In the January 18 complaint, Kucinich repeated the argument that the equal time provisions of 47 U.S.C. section 315 mean television networks cannot bar “serious” presidential candidates from participating in televised debates. Kucinich argued that excluding him from the debate “undermines the purpose” of the statute because it hides “strong anti-war and national health care messages” from the public view. He also pointed out he was the only democratic candidate that had qualified for federal campaign funding to be excluded.
This time, the FCC quickly rejected his complaint in a written opinion, DA 08-136, released the same day. The opinion said the agency lacks authority to force CNN to include Kucinich in the debates. The agency’s authority is limited to forcing the network to offer the congressman equal time, but it declined to do so in this case because the debate was a “bona fide news event.”
Section 315 requires that any FCC licensed television or radio station that allows a “legally qualified candidate” for public office to “use” the station to also “afford equal opportunities to other such candidates.” A “use” is any appearance on television or radio by a candidate whose voice or picture is readily identifiable whether the appearance is political in nature or not. The statute exempts four types of “bona fide” news from the restrictions, including newscasts, interviews, documentaries where the candidate is not the subject of the program, and “on-the-spot coverage” of events like political conventions.
The FCC ruled that the debate consisted of “on-the-spot coverage of a bona fide news event,” so the equal time restrictions did not apply. “A station is free to choose its participants, provided that its intent is not to further the candidacy of any particular individual,” the ruling said.
In a footnote, the FCC acknowledged a potential distinction between cable networks, like CNN, and broadcast networks. But the agency declined to consider whether the equal time provisions should apply to cable networks at all in light of its ruling that the debate qualified as a bona fide news event.
– Michael Schoepf
Silha Research Assistant