06/13/2010 05:12 am ET Updated May 25, 2011

Missouri Radio Station Gives New Meaning to the Phrase "It's Miller Time!"

Although I now reside in La-La Land and have fully embraced many of its eccentricities like jeans as an acceptable form of cocktail attire, Good Day LA and gourmet food trucks, I am not ashamed and, indeed, am proud of the fact that I hail from Missouri...mostly. That is, until I come across news articles like this one which I saw the other day: "The program director of KMBZ radio in Kansas City says the station has no choice but to air commercials with racially biased and anti-Semitic claims from a write-in candidate for the U.S. Senate from Missouri." Exactly.

As I read on, the article explained that the commercials are for Glenn Miller, a Springfield, Missouri man who founded and led the White Patriot Party. Unfamiliar with that organization, I googled "White Patriot Party." I then took a look at Miller's home page, where upon the loading of the page, my cursor morphed into a miniature billowing confederate flag. Suffice it to say I will not be changing my voter registration information.

Now, as a litigator, I have not only encountered, but put up with more than my fair share of lamebrains who espouse views with which I vehemently disagree. Hence, my personal objection to Miller's campaign platform is not my purpose for blogging. Rather I found myself curious to know the legal obligations of a radio station such as KMBZ to air campaign ads like Miller's which it claims to oppose. For that, I needed to brush up on the rules and regulations of the Federal Communications Commission (admittedly, I paid fairly little attention to this area of the law prior to 2004's Nipplegate). This is what I found.

Under federal law, a radio station is subject to losing its license or criminal penalties for airing any material which is "obscene, indecent, or profane." Moreover, the Communications Act of 1934 provides that although no radio station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, if any licensee elects to do so, it must afford equal opportunities to all other candidates for that office to use such facilities. Under these rules it appears that a radio station could decline to broadcast Miller's "obscene, indecent, or profane" campaign ads if it also refused to run ads for every other candidate running for the open U.S. Senate seat in Missouri.

Result: Radio station is not obligated to broadcast Miller's ads.

Good thing I didn't conclude my research there. Notwithstanding the above, the FCC also has the power under the Communications Act to revoke any radio station license for "willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting a legally qualified candidate for Federal elective office on behalf of his candidacy." Not only does the Communications Act require reasonable access, but it also prohibits a station from censoring what a candidate says when he or she appears on the air. Thus, under these rules, if a radio station does choose to block Miller's ads, it risks having its license revoked by the FCC.

Further Researched Result: Radio station is obligated to broadcast Miller's ads, meaning "It's Miller time!"

Because the law, much like Miller's supporters, is never black and white, I don't think the radio station is completely without recourse here. Perhaps the obvious answer is to challenge Miller as a "legally qualified candidate," which is a defined term under FCC rules. Now to be frank, meeting the statutory requirements of a "legally qualified candidate" is somewhat of a low bar (e.g., it does not require one to know how to properly spell "whitey"), but if Miller failed to file or complete necessary paperwork for his candidacy, for example, it would provide radio broadcasters the better argument in this debate of whether or not to run Miller's ads. A less obvious answer is one that (per another news article) was given by an FCC spokesperson. The spokesperson offered that radio station owners may have some latitude with Miller's ads because the general election is more than seven months away and the federal law applies within 45 days of a primary or 60 days of a general election, unless the election is already in full swing. After taking some time to look, I was unable to find any statutory support for this proposition (the 45/60 days is discussed only in terms of the rates to be charged by station owners for campaign ad time). Assuming such support does exist, however, it seems to me that the radio broadcasters can simply wait it out and hope that Miller quits the race. Pun intended.