By Lisa de Moraes

Saturday, August 23, 2003; Page C01

"The Late Late Show With Craig Kilborn" did a very funny bit this week in which they closed-captioned Arnold Schwarzenegger's first campaign ad for those of us who have trouble understanding the Austrian native:

"Dis hysterical erection his come bout becuz deres a tree men dos dis connect between da peep hole of Cauliflower and da readers of Cauliflower. . . ."

"Weed a peep hole arrr! dewey hour job, verking hod . . . and paying toxics. But de pomegranates Arnold mooving tear jobs. We candle butter den dot. After fall, we are Colin Farrell.

"I stand for fiscal irresponsible government . . . reap-hilling California's eco-gnomic enzyme, potting the knees of children thirst and informing our political sister so dat da puppet interest comes before spetzel internss.

"I want to eat the peep hole's governor."

It was very funny.

The studio audience loved it.

Viewers, however, did not get to see it.

Wednesday night's bit was nixed by CBS attorneys citing the equal-time law. It's a provision that could enable all 134 other candidates in the race to replace California Gov. Gray Davis to demand equal time on every CBS station in California.

"The network didn't want to open themselves up to certain FCC regulations concerning equal time," "Late Late Show" executive producer Todd Yasui says he was told in a phone group hug with several CBS lawyers. Yasui was told that his show could not use photos, video or audio of any of the candidates.

Producers of Jimmy Kimmel's ABC late night show "Jimmy Kimmel Live" had a similar experience this week:

"[Schwarzenegger] had a big press conference today; he laid out his plan for saving California," Kimmel told his audience Wednesday night. "He's saying so many hilariously stupid things but we are not allowed to show them, we can't air the voice or image of any of the candidates because of the equal-time laws. It's an idiotic rule and it's killing me personally. Today he said, and I quote: 'The people -- you can't put wood over their eyes.' "

The equal-time regulation also applies to stations in neighboring states that reach sizable numbers of California voters. Since it kicked in on Aug. 13 -- the day California released the list of certified candidates in the recall race -- the networks seem to be running scared.

Suits familiar with the situation speculate it's because of the sheer volume of candidates. That and the fact that so many of the gaggle of candidates, including porn star Mary Cook, former child star Gary Coleman and Hustler publisher Larry Flynt, are clearly in it strictly for the publicity and are therefore very likely to pursue any and all equal-time opportunities.

"It's a crazy situation," a CBS spokesman acknowledged. "No network wants to put its affiliates or owned stations in a position where they get hit with 134 demands for equal time.

"Everyone seems to be proceeding very cautiously."

In the case of Kilborn's show, the network did post the unaired material on its Web site.

The equal-time requirement is a dense little glop known fondly as Section 315 of the Communications Act.

And when you try to get someone at the Federal Communications Commission, which is charged with enforcing the rule, to explain it to you, you end up having conversations about things like the definition of the word "use" and your head starts to throb.

The equal-time provision does give some exemptions, so that every time the "CBS Evening News" does a story about, for instance, a presidential candidate getting caught on a boat with his mistress, all CBS stations don't get socked with demands that they devote an equal amount of time to all the other candidates' monkey business.

Exempted are a "bona fide newscast," a "bona fide news interview," a "bona fide news documentary, if the appearance of the candidate is incidental to the presentation of the subject" covered by the news documentary; also exempted is "on the spot coverage of bona fide news events."

This sounds reasonable, except that over the years, the FCC has ruled that those bona fides include Rosie O'Donnell's syndicated talk show, "Access Hollywood" and "Entertainment Tonight."

Which is about as silly as calling the old animated "G.I. Joe" Saturday morning show a bona fide children's educational program. Oh wait, the FCC did that, too.

It appears that the FCC has not, however, decided that late night talk shows qualify for relief from equal-time responsibilities on the grounds that they are political satire. Late night shows have been exempted on occasion, like when a presidential candidate plays the sax and takes some softball questions. That's a bona fide news interview.

Yasui said he's been surprised at how conservatively networks have been interpreting the equal-time provision this time when it comes to late night shows. He notes that in past elections, his show has used photos and video of candidates it was pillorying.

"We parody the news -- it's been done," he said.

"I was surprised, very surprised," he said of CBS's decision this week on the Schwarzenegger bit, adding philosophically, "There are certain things I have learned you can win an argument about and those you can't, and one of those is FCC rules.

"You can argue taste, argue sensibility, appropriateness, but you can't argue about law."

We tried in vain yesterday to reach an attorney at one of the networks or at the FCC to explain why late night shows don't get exempted in order to have moving pictures to go with their jokes, which is one of the wonderful things that distinguishes TV from, say, radio.

Do you know how hard it is to scare up an attorney on a Friday in August?

But one poor FCCer stuck at the office had this bit of advice for the broadcast networks as they try to figure out where to draw the line when it comes to late-night comedic coverage and the California recall circus:

"The closer you get to a line-drawing situation, the best advice you can get is to stay away from the line."

A federal judge has ruled against Fox News in its trademark infringement lawsuit against Al Franken and publisher Penguin Group and refused to stop the sale of Franken's new book, Reuters reported.

Fox claimed that Franken violated its trademarked phrase "fair and balanced" by including it on the cover of his new book "Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right."

"There are hard cases and there are easy cases. This is an easy case," U.S. District Judge Denny Chin said, according to Reuters. "This case is wholly without merit both factually and legally."

"Parody is a form of artistic expression protected by the First Amendment. The keystone to parody is imitation. Mr. Franken is clearly mocking Fox," said Chin.

Although the judge refused to grant an injunction that could have stopped further book sales, he did not end the case, Reuters noted. Fox could pursue litigation while Penguin could file a motion asking that the case be dismissed. Both sides said they are mulling it over.