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Why Donald Trump Could Actually Run For U.S. President Right Now (Analysis)

Donald Trump
Brad Barket/Getty Images

For the past few weeks, The Apprentice star Donald Trump has played footsie with the media over the idea that he'll run for president of the United States. His doubts about Barack Obama's birth in this country has gained headlines everywhere, and a poll released yesterday by CNN shows that Trump is tied with Mike Huckabee for first place among Republican primary voters. 

So why doesn't Trump just announce his candidacy already? Many pundits have speculated that Trump is only taunting a presidential run in the interest of generating buzz and ratings for the current season of Celebrity Apprentice. Trump, of course, won't admit to such grandstanding, instead alluding to another factor at play -- legal obligations by NBC should he make such a declaration. We have some doubts about this excuse.

Last week on NBC's Today show, Trump's announcement of a private investigation into Obama's birth was followed by an appearance by Bill Cosby, who said, "He's full of it...You kept saying or somebody kept saying, 'are you going to run, are you going to run?' He jumped. You run or shut up." 

Cosby's comment drew Trump's ire. 

The real estate magnate then put out a statement that said in part, "As I am sure [Cosby] must know I cannot run until this season of Celebrity Apprentice ends."

The reference seems to be a nod to Section 315 of the Communications Act -- the so-called "equal access" provision -- which states:

"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."

In other words, Trump is getting airtime from NBC for Celebrity Apprentice. If he runs, NBC might have to offer other candidates equal time on air.

Is this really the case?

"Technically, it is true," says David Oxenford, an attorney specializing in communications regulation at Davis Wright Tremaine. "This is the same issue that came up when Fred Thompson decided to run last cycle, and there were concerns with Law & Order triggering the equal opportunities requirements."

Actually, as Oxenford wrote at the time, there have some disagreements about how Section 315 would apply to original programming, particularly in respect to news interview exceptions and cable entertainment,. NBC decided to take Law & Order repeats with Thompson off the air, but TNT decided it wouldn't pull its own Law & Order shows featuring Thompson. Over the years, most broadcasters have decided to err on the safe side. For instance, no Ronald Reagan movies were shown when he was running for president and none of Arnold Schwarzenegger's films were aired in California when he was running for governor.

Are fears of Section 315 overstated? Any Republican who gripes would look utterly ridiculous. Republicans live in fear of a revival of the so-called "Fairness Doctrine," and loathe regulatory intrusion. Just last week, the Republican caucus in the House voted to reject the FCC's latest incursion into media marketplace by voting to overturn "net neutrality" laws. Which Republican really is going to complain that Trump has an unfair advantage by hosting a reality television show?

Of course, as Oxenford points out to us, all it would take is a single letter by one of the candidates to trigger a review. So if Trump and NBC really are concerned about their exposure to broadcast laws in the event of a presidential run, why not beat these candidates to the punch by offering them air-time? If Mitt Romney or Tim Pawlenty want to come on as contestants on "Celebrity Apprentice," we're sure that Trump would love to have them. Great for ratings. Plus, Trump will have the power to fire them -- which probably won't be so appealing to voters deciding whom to hire for the next Celebrity Apprentice U.S. President.

Eriq Gardner can be reached at eriqgardner@yahoo.com and followed on Twitter.

This post has been updated. A prior version stated there has never been an explicit FCC ruling on the issue of whether a candidate's appearance on an entertainment show would trigger a network's obligation to offer equal time. As one commentator points out, there have been a couple challenges on this front. The rulings happened many years ago, and the primary confusion over Section 315 stands in its relation to cable programming.