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Network lawyers see nothing funny in recall

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NEW YORK - Late-night comics will be sorry to see California's recall campaign end today. Television network lawyers won't be.

The whole thing makes lawyers nervous. They have been monitoring late-night content closely, worried that discussion of the recall would make the networks subject to federal equal time rules, which require all competing candidates get the same airtime.

Thanks to Howard Stern - of all people - the concern eased a bit in the campaign's final days. But with entertainment and talk shows getting more popular all the time with political candidates, the issue is likely to bubble up again with the presidential campaign.

Craig Kilborn, host of CBS' The Late Late Show, was told 10 minutes before airtime one day in August that a comedy skit lampooning Arnold Schwarzenegger's first political ad and a speech by Gov. Gray Davis had to be cut.

Lawyers told Kilborn that he couldn't show a picture of Schwarzenegger unless he was prepared to show a picture of each candidate for California governor.

Kilborn eliminated the segment, then wrote a half-mocking, half-serious column about the incident for The New York Times, titled "My Couch is Too Small for 135 Candidates."

Shortly after Kilborn's scrapped skit, CBS lawyers relaxed a little. They said Kilborn and David Letterman's Late Show could talk about Schwarzenegger - as long as they were mocking him. Ridicule doesn't trigger equal time provisions for the same reason negative campaign ads don't.

And, on Sept. 9, the FCC ruled that Stern's raunchy radio show was a "bona fide news interview" program, a distinction it sought in order to interview Schwarzenegger without having to give equal time to his opponents. That made lawyers breathe easier. Not easy, just easier.

"I think that many people in the industry, and many people in journalism and government, aren't sure exactly what the rules are. There's enough of a gray area in there," said Todd Yasui, executive producer of The Late Late Show.

"I think the lawyers are being cautious, the way that lawyers tend to be," he said. So cautious that two attorneys specializing in equal time law did not want to comment on the record.

Equal time rules date to television's infancy, with news programs granted an exemption. As far back as the early 1960s, Jack Paar sought to make the Tonight show exempt, but was turned down by the Federal Communications Commission, which thought exemptions more rightly applied to programs like Meet the Press.

A breakthrough occurred in 1984, when Phil Donahue successfully argued that his talk show deserved the news exemption. Shows like Entertainment Tonight came next.

The late-night shows? They're still officially in that gray area.

"As with any late-night comedy show, we're going to try to press the edge as far as we can," Yasui said. "We won't have any shortage of people telling us what we can or can't do."

Until about a decade ago, none of this mattered much. Politicians went one way, and entertainers another. Not any more.

Politicians are finding late-night shows a comfortable perch, offering exposure to audiences that don't normally see them, let alone in a setting that makes them appear to be good sports. A Pew Research Center poll three years ago found that more than a third of people under age 30 said they got campaign news from comedy shows.

The shows, in turn, love the attention.

"It has just become a standard stop and a standard rite of passage," said George Stephanopoulos, host of ABC News' This Week. "It's like anything else, candidates are going on these shows earlier and what's interesting to me is that the talk shows want them earlier."

The newly revamped This Week includes a regular feature showing how politicians fared on the talk show circuit.

Stephanopoulos believes the shows are generally fair, whether or not they're compelled to be by the federal government.

"They don't have an ideological point of view that I can tell," he said. "They don't pick just Democrats or just Republicans. They go for the most entertaining of the candidates. It seems they get the mix about right."

Letterman's Late Show, which had Secretary of State Colin Powell and Lynne Cheney, the vice president's wife, as guests last month, has no political agenda, said Rob Burnett, executive producer.

"Our agenda is only to try to be funny," he said. "We don't necessarily try to sell any product, be they political campaigns or anything else. We try to have something on the show that we think will be good. Bottom line, period."

It's the same at Jon Stewart's The Daily Show on Comedy Central. They're just glad people like Sens. John Edwards and Hillary Rodham Clinton want to visit, said executive producer Stewart Bailey.

Fortunately for Bailey, cable networks are exempt from equal time provisions.

Realistically, chances that the broadcast programs will get in trouble for an equal time violation are slim. The FCC doesn't intervene without a specific complaint. And Howard Dean isn't likely to complain about a John Kerry appearance on the Tonight show, for example, because it might make the show less inclined to invite him.

With 135 candidates for California governor, there was a much greater chance someone would complain. And the remedy - making time for 134 other candidates - kept the lawyers in a cold sweat.

The network lawyers say they take every guest, every joke, individually. Schwarzenegger's announcement to Jay Leno that he was running for governor was safe because he wasn't an officially declared candidate at the time. Notice he hasn't made a return trip.

Faced with restrictions, the late-night comedy writers have had to grimace and bear it.

"The California election is so preposterous, it's hard for any comedy show not to take a shot at it," Yasui said. "It's the biggest carrot you can dangle."

Copyright © 2014, The Baltimore Sun
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