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Indian E-music – The right mix of Indian Vibes… » Political Broadcasting


Twitter Bans Political Ads – Doing What Broadcasters are Forbidden to Do

Delivered... David Oxenford | Scene | Mon 4 Nov 2019 5:26 pm

It seems like every other week, there is a story about an online media giant making changes in their rules that govern political advertising on their platform – and being either praised or condemned for doing so. We recently wrote about the controversy over Facebook deciding to not fact-check candidate ads, and how Congress itself requires by statute that broadcast stations take that same position. Broadcast stations are not allowed to censor ads from legally qualified candidates so, except in very limited circumstances where the ads may be criminal in nature (and not where they might just give rise to civil claims, like in the case of defamation or copyright infringement), broadcasters cannot reject ads based on their content. The right of a person being defamed in an ad for redress of any civil claim they may have is against the candidate who sponsored the ad, not against the broadcaster. Last week brought the news that Twitter has decided to ban political ads from its platform. Broadcasters, on the other hand, have no ability to ban ads for Federal candidates, as Congress has legislated a right of access to the airwaves where broadcasters cannot refuse to run political advertising from any Federal candidate.

That right of reasonable access, written into Section 312 of the Communications Act, requires that broadcasters give Federal candidates access to all classes of advertising time sold on a broadcast station, and that access be provided in all parts of the broadcast day. See our post here for more information about that reasonable access requirement, and our post here on the limited exception accorded for special events with limited advertising inventory (like the Super Bowl), where the provision of ads to one side might be problematic as there would be no opportunity for an opposing candidate to find an equivalent opportunity to advertise, and because of the potential disruption to commercial advertising on these stations given the limited availability of advertising breaks in such programs.

The reasonable access requirement is imposed on all commercial broadcast stations. Its applicability to noncommercial stations was repealed when candidates started to demand free time on NPR affiliates (including one here in the DC region). It has never applied to cable systems – and certainly does not apply to online media platforms. It has also raised interesting issues about requiring access for some Federal candidates who, because of the no censorship provision of the rules that we wrote about in connection with the Facebook ads, decide to demand time to air ads containing content that reasonable broadcasters would prefer to reject, but have to run because of the interplay of these two rules imposed on broadcasters (see, for instance, our articles here, here and here).

The mandated access to broadcast stations is one more way in which broadcasters, in dealing with political advertising, are treated differently than are their online competitors. While there have been many calls to regulate the political communications obligations of online platforms in the same way as broadcasters are regulated, those making these calls need to be aware of just how broadcasters are regulated as many of those regulations would likely never be tolerated in an online world.

FCC Issues “Clarifications” of Political Broadcasting Public File Disclosure Requirements – Significantly More Disclosures to Be Required on Issue Ads

Delivered... David Oxenford | Scene | Mon 21 Oct 2019 11:25 pm

The FCC last week released two decisions (here and here) addressing complaints from public interest groups against several TV stations alleging that the stations had not sufficiently disclosed in their online public files sufficient information about political issue advertising.  These decisions, as detailed below, will end up making life significantly more difficult for broadcasters running ads from non-candidate groups, as they will need to review each issue ad to come up with a list all of the issues of public importance discussed in the ad.  A perhaps unintended result may also be that there will be more disclosure in the public file of the cost of non-candidate political ads supporting or attacking state and local candidates when those ads mention Federal issues – as more and more ads dealing with state elections now do.  Watch as the ramifications of these decisions become clear in the coming months.

These decisions should not strike regular readers of this blog as particularly new, as these complaints were considered by the FCC’s Media Bureau in early 2017, under the former leadership of the FCC (see our article here).  When the new Republican-controlled Commission took over, the Media Bureau decisions were rescinded, as the new Commission felt that these issues should be considered by the Commissioners rather than at the Bureau level.  The decisions that resulted from this additional review come to much the same result as had the Media Bureau decision, though some of the explanations are more detailed.  In making the decision more detailed, the Commission may have made the acceptance of political ads from non-candidate groups even more troublesome for broadcasters than these ads have been in the past.  What do these rulings provide?

The decisions set out two principal requirements that had not been clearly articulated in the past.  First, the decisions require that broadcasters who accept ads on Federal issues of national importance must list in their public file disclosures about the ads all the Federal issues described by the ad – even if there are multiple issues which the ad discusses.  As described in more detail below, this will be true even where the ad is one supporting or attacking a political candidate – if in doing so it also discusses Federal issues.  If a third-party ad supports or attacks a candidate and mentions Federal issues, those issues need to be listed in the political file in addition to listing the candidate who is being supported or attacked.  Second, the decisions require that the broadcaster, in disclosing the governing board of an organization sponsoring an ad, cannot accept a single name as making up that board without making an additional inquiry of the organization asking if there are in fact more officers or directors than the single person.

Let’s look first at the decision requiring the disclosure of all of the issues raised by a third-party ad, and what that may mean for a broadcaster.  The decision looks at the requirement that that the Bipartisan Campaign Reform Act back in 2002 added to Section 315 of the Communications Act requiring that, when there is an offer by a non-candidate group made to a broadcaster to buy an ad about Federal issues, the broadcaster must disclose in its public file all the same information that it discloses for a candidate ad (i.e., whether or not the offer was accepted, if accepted the class of time purchased, the schedule of spots that will run, the price paid for the spots and, after the spots run, the exact times at which they aired).  In addition, for these issue ads, the public file disclosure must also report on the candidate or issue discussed in the ad.  As discussed below in connection with the second aspect of last week’s decisions, there is also a separate requirement for all issue ads (state and Federal) that you provide information in the public file about the sponsoring organization, including the names of its chief executive officers, members of its executive committee, or members of its board of directors.  As one of the decisions makes clear, make sure that the disclosure is of the legal name of the sponsoring organization, not just a set of initials that those in the political world might know, but which may be unfamiliar to the public.

Section 315, in discussing the ads that are subject to these requirements, says that disclosure will be required for any ad discussing a “political matter of national importance.”  The statute gives three examples of what are considered political matters of national importance: (1) any discussion of any candidate for office; (2) any discussion of any election for a Federal office, and (3) any national legislative issue of public importance.  Last week’s decisions made clear that, to trigger the obligation, the candidate who is mentioned needs to be a Federal candidate.  The Commission also goes into detail to define a “national legislative issue of public importance” as an issue currently pending in legislation before Congress.  The FCC goes into great detail in justifying that interpretation – and then says that even if an issue is not currently pending before Congress, it might still be a “political matter of national importance” that triggers the reporting obligations – as the three categories set out in the statute are illustrative, not definitive.  So, the Commission notes, a debate over some tax ruling at the IRS, while not pending before Congress, could still be a political matter of national importance triggering the broadcaster’s disclosure obligation.  Seemingly, matters already voted on, like the health care bills, or perennial Federal issues on which there may be no specific legislation pending before Congress (e.g., abortion, gun control, civil rights, etc.) would also trigger these obligations.

The importance of the broad nature of the definition becomes clear when coupled with the newly articulated requirement that all issues discussed in a third-party ad must be disclosed by the broadcaster.  That means that the broadcaster needs to review the ad, and make sure that the disclosure documents to be placed in the public file disclose all the issues addressed in the ad.  Even if the ad is about a Federal candidate, the disclosure placed into the public file needs to disclose not just the candidate being supported or opposed, but also any issues addressed in the ad.  So if the ad attacks a Democratic candidate for Congress by saying he is weak on immigration and wants to raise your taxes, the public file disclosure would have to list the name of the candidate being attacked (and the office the candidate is running for), plus the fact that the ad discussed immigration and taxes.  The FCC said that it did not think this would put a great burden on broadcasters – but it does mean that the broadcaster will have to review each ad that runs on its station and make sure that all of the issues are identified.  While the Commission seemed to think that this would make disclosure more uniform, as each station running an ad would not pick a different issue to highlight, in fact, this will require many subjective judgments by broadcasters as to what ads are in fact being discussed and whether such issues are political matters of national importance.  In talking to lawyers who practice in this area all the time, we are sure that there would be disagreement among us lawyers on how to characterize many issues – and are sure that those whose job is to sell broadcast ads will not have an easier time making such calls than those of us whose job it is to interpret the meaning of FCC rules and governing statutes.

While third-party ads supporting or attacking a state or local candidate do not normally trigger the obligations to disclose all of the price and schedule information, the rulings from last week indicate that there is the real possibility that ads about state and even local candidates could also discuss Federal issues – and would thus trigger obligations to include all the price and schedule information in the file at the same time as it requires the disclosure of the issues discussed.  For instance, an ad attacking a candidate for governor who currently serves in Congress because he did not support the President’s pending judicial nominations, or an attack on a candidate because he favors the elimination of a woman’s right to choose, may well be seen as discussions of Federal issues that need to be disclosed, and trigger all of the obligations to disclose price information and scheduling that do not normally attach to third-party ads on state issues.

The difficulty in making these calls can be illustrated by a current ad running on TV in the Washington DC area for a candidate for the Virginia legislature.  In it, the candidate attacks his opponent for being in the pocket of the NRA.  If this ad had been from a political party or other third-party group and not a candidate, it would be a perfect illustration of the concerns about identifying issues.  The ad talks specifically about laws dealing with how close a shooting range can be from residential properties or schools and playgrounds.  But it goes on to state that the candidate is not afraid of the NRA and is for common-sense gun regulation.  On first glance, that ad seems to be about a state issue – a state legislative election.  Thus, no cost and scheduling disclosures would be needed in the public file.  But, under last week’s ruling, if it mentions a Federal issue, public file details about price and schedule would be required.  To make the determination whether a public file disclosure was required, the station would have to look at the issues and determine if the issues that it mentions – specific gun laws about the distance needed between a gun range and schools and houses, and support by the NRA – are issues of state or federal law.  Even if the distance between a shooting range and homes and schools are matters of state law, is there a bigger issue involved – standing up to the NRA – a separate Federal issue?  If so, would that make this a Federal issue and require public file disclosure?  Who knows?  We’ll have to wait to see what the FCC says in the coming months.  But even if this case is not one that demands disclosure, there will be many ads dealing with state elections that will also implicate Federal issues – making full disclosure about the purchase details for those ads a requirement.

One interpretation that was helpful from the decision last week was the determination that the mere mention of these issues would not trigger a disclosure requirement, e.g. a car’s dealer mention of a Presidential election day sale would not trigger a disclosure obligation.  To trigger the public file obligation, the ad must mention an issue in some political way.  That does not simplify the consideration of real issue ads, but it does make clear that the mere mention of an issue or candidate (for instance, on an ad promoting the sale of a newspaper or magazine) does not necessarily trigger the disclosure obligations.

The second aspect of the rulings, that stations need to ask about the chief executive officers or the members of the board of directors, or the members of its executive committee, is somewhat more straightforward.  The FCC’s new requirement is that the station needs to ask more questions as to whether there are more officers or directors of an organization, when the station receives only one name listed in response to the question on the NAB Form PB-18 or similar documents used by the station asking for the officers or directors of the sponsoring organization.  The FCC said that stations can ask the sponsoring organization or the advertising agency whether there are additional members of the governing board of the organization.  The important thing under the FCC record is that a station must ask whether there are additional names to disclose when only a single name is provided or the station otherwise has reason to believe that the disclosure is inadequate.  If the sponsor says that there are no other officers or directors, keep notes that you asked (not required to be in the public file – but to prove you asked if you are ever questioned).

These decisions give broadcasters plenty to think about – and it may give broadcasters plenty to do.  Because of the additional burden being placed on broadcasters, it is possible that some will be asking the FCC to review some aspects of the decisions.  But, for now, these are the new rules.  So be sure to prep your sales force and the keeper of your public file about these new disclosure obligations – and start compliance now.

Facebook Criticized for Not Censoring Candidate Ads – Even Though Congress Requires No Censorship from Broadcasters

Delivered... David Oxenford | Scene | Thu 17 Oct 2019 3:35 pm

In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates.  While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress.  In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads.  In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates.  Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content.  And for Federal candidates, broadcasters must accept those ads once a political campaign has started, under the reasonable access rules that apply only to federal candidates.

In fact, as we wrote here, broadcasters are immune from any legal claims that may arise from the content of over-the-air candidate ads, based on Supreme Court decisions. Since broadcasters cannot censor ads placed by candidates, the Court has ruled, broadcasters cannot be held responsible for the content of those ads.  If a candidate’s ad is defamatory, or if it infringes on someone’s copyright, the aggrieved party has a remedy against the candidate who sponsored the ad, but that party has no remedy against the broadcaster.  (In contrast, when a broadcaster receives an ad from a non-candidate group that is claimed to be false, it can reject the ad based on its content, so it has potential liability if it does not pull the ad once it is aware of its falsity – see our article here for more information about what to do when confronted with issues about the truth of a third-party ad).  This immunity from liability for statements made in candidate ads absolves the broadcaster from having to referee the truth or falsity of political ads which, as is evident in today’s politically fragmented world, may well be perceived differently by different people.  So, even though Facebook is taking the same position in not censoring candidate ads as Congress has required broadcasters to take, should it be held to a different standard? 

That decision is well past my pay grade.  Perhaps, given the difference in the nature of the platforms, different regulation is justified.  On a broadcast station, if an ad is false, the station’s news department may point out the falsity of the ad, or the candidate being attacked can buy responsive ads to refute the false claims.  Presumably, these corrections will reach an audience similar to that which heard the initial ad.  With online platforms, given the algorithms used to target ads at fragmented and sometimes unique audiences, responsive ads may not reach the same people.  But the government, and the FCC specifically, has thus far taken a hands-off approach to Internet content regulation, reasoning that because there is no bandwidth scarcity (which has always been used to justify broadcast regulation), there is no need for government content regulation.  Moreover, such regulation would be suspect under First Amendment principles.  In fact, the adoption of Section 230 of the Communications Decency Act, which generally absolves Internet services from liability for content posted on their platforms by others, seems to reflect a Congressional recognition of the reluctance that government should have in regulating online content.

Of course, these arguments about censoring political speech may well be a reflection of our polarized political times, and the unique strains currently being put on political discourse.  But, as the old maxim suggests, difficult cases make for bad law.  We don’t want the current difficult times to, in the name of trying to preserve democracy and civil political discourse, put more strains on that discourse by trying to make private companies (or some government agency) the arbiter of truth or falsity in political debates.  That has traditionally been left to the marketplace, backstopped by the defamation laws that can be employed by someone who can prove that they have been wronged by a political attack.  That process has worked well for many years, and the government should be very cautious in urging changes to that system now

Reminder – FCC Political Rules Apply to Off-Year Elections for State and Local Offices

Delivered... David Oxenford | Scene | Fri 20 Sep 2019 5:15 pm

While next year’s federal elections are already receiving most of the publicity, I’ve been getting a surprising number of calls about elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Kentucky, Louisiana and Mississippi, and all sorts of state and local elections in different parts of the country. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply

That means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. Stations can decide to make available advertising only in certain dayparts (or on certain stations in a cluster) for state and local races. They can even make different dayparts (or stations) available for different political races, as long as all candidates for the same race are treated the same. So, for instance, a station could decide to offer only spots during weekend and overnight time periods to candidates for the city council, while offering candidates for governor time during all dayparts. A station just needs to treat all legally qualified candidates (including independent and fringe party candidates) for the same state or local race in the same way.

If the time is sold to state and local candidates during the 60 days before the November general election, the time must be sold to the candidate at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station on-air personality decides to run for state or local office (anything from the school board or local planning commission to governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing applicants – for free – in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our articles about this topic here and here.

For more about the political rules, see our Broadcaster’s Guide to Political Broadcasting here. Don’t forget about these political advertising rules – even though this is an odd numbered year!

When a Broadcast Advertiser Becomes A Political Candidate, What is a Station to Do?

Delivered... David Oxenford | Scene | Tue 27 Aug 2019 4:48 am

In many states, we are in election season for local offices, which has resulted in a question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago.  But, as the question continues to come up, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate.  What is a “positive” use?  Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate).  To be a positive “use” by the advertising candidate, the appearance must also be outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules).. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump.  An appearance by a candidate in a commercial for his or her local business is similarly a positive “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.

A commercial for a business is almost always a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program, where the station does not get paid to air the comedy program or movie in which a candidate appears).  Thus, a “use” arising in a paid commercial gives rise to equal opportunities for other opposing candidates to buy time on the station. The station usually will not be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, usually by incumbents, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during the political windows (45 days before a primary and 60 days before a general election) to spots purchased by a candidate’s authorized campaign committee (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular commercial rates), a station may decide to continue to air the business spots with the candidate’s appearance. But if inventory is tight, or the station wants to avoid having to sell political ads to candidates in a particular state or local race (as state and local candidates, unlike those running for federal office, have no right to access to buy spots), the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots featuring the voice or image of the candidate would require the station to provide equal time to the opposing candidates upon request.

Note that the “no censorship” provision of the Communications Act and the lowest unit rate provisions likely do not apply to the business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by the rules providing for lowest unit rates and the “no censorship” provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied rather than lowest unit rates (though the opposing candidates do get LUR for their equal time ads run during a political window).

Note, also, that business spots that advertise a business in which the candidate’s name appears, but where the actual candidate does not appear by voice or picture, probably do not trigger any equal opportunity issues. It is the recognizable voice or picture of the candidate that triggers the equal opportunity and public file requirements. For those of us here in the DC area, we are accustomed to seeing ads for the local Volvo dealer even during election season, even though that dealership is named after a politician currently serving in Congress.

As in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.

$233,000 Proposed Fine for Sponsorship Identification Rule Violations – Warning, if the FCC Fines You Once, Don’t Do the Same Thing Again

Delivered... David Oxenford | Scene | Fri 9 Aug 2019 2:38 pm

The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number?

The FCC’s base fine for each violation of its sponsorship identification rules is $4000 per violation.  Because of the 2016 violation, the FCC determined that each of the new violations should be fined at twice that level, as the licensee should have learned from its prior mistakes.  The FCC considers each airing of the ad to be a separate violation (see this article about a prior case where this policy was applied).  Thus, the 26 ads without the proper identification times $8000 led to a fine of $208,000.  The FCC then decided, because of the one late reporting of the violations, the fine should be increased by $25,000 for not adhering to the terms of the consent decree.  Adding those two figures, the FCC arrived at the proposed fine of $233,000.

While this week’s release does not detail the specifics of the alleged violations, the first appears to have been a commercial message aired on multiple stations a total of 13 times.  The second was a spot aired in connection with the Georgia governor’s election last year.  Neither spot appears to have run for more than a few days, and in both cases, Cumulus stated that it had not only caught and corrected the violations, but it had also conducted training on the rules after being alerted to the problems.  These violations would seem like the kinds of issues that could arise at any station when a spot with an inadequate sponsorship tag slips on to the air unnoticed.  It would seem laudable that Cumulus apparently caught and corrected the problems quickly, yet the FCC came down hard on the company, with one Commissioner issuing a dissenting statement suggesting that the penalty was not enough.  The message to broadcasters?  The FCC is still watching very closely so don’t mess up – and if you do and are subject to FCC penalties, by all means do not do it again.

Looking at Equal Opportunities – When Does the Appearance of a Political Candidate on a Broadcast Program Trigger Equal Time Obligations?

Delivered... David Oxenford | Scene | Wed 24 Jul 2019 4:44 pm

In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider?

In the case two years ago, the FCC looked at various factors to determine if the program was an “exempt program” where an appearance by the candidate did not trigger equal opportunities. Those factors include the following: (1) was the program regularly scheduled, (2) was the program content controlled by the station or program supplier, and (3) were the decisions as to the inclusion of candidates based on judgments as to the newsworthiness of the appearance and not for political purposes. Other decisions, in the past, have also required that the program be one where issues of importance to the community are regularly discussed, or candidates and other political figures are regularly featured. These factors have allowed the FCC to take an expansive view, and determine that programs that hardly seem like the typical Sunday morning talking heads news interview program can be considered bona fide news interview programs that are exempt from equal opportunities. For example, FCC staff have found programs as diverse as the Howard Stern radio show and Entertainment Tonight to be news interview programs that regularly – though not necessarily every day or even a majority of the time, but regularly – featured newsmakers. If these factors are met, the program is considered a bona fide news interview program, and candidates can appear without competitors having the right to claim equal opportunities, and without a candidate’s appearance being considered a “use” that needs to be noted in the public files of stations that carry the program.

In addition to news interview programs, newscasts and on-the-spot coverage of a news event are also “exempt programs” where candidate appearances do not constitute “uses” giving rise to equal opportunities or public file obligations. Over the years, as we wrote here and here, the FCC has been more and more liberal in its interpretations of what constitutes a news or news interview program. It is no longer just the evening newscast on a station and the boring Sunday morning talking heads news interview program that qualify. Instead, the FCC has recognized that people get their “news” from all sorts of different kinds of broadcast programs, and the FCC has determined that any program that regularly features newsmakers, where the program content is in the hands of the producers and where the program’s guests are selected for newsworthiness, and not to promote a particular political agenda, can be an exempt news or news interview program. So the FCC has ruled that a host of programs that may not look like hard news, from the Today Show to the Phil Donahue program to the late-night talk shows, could be exempt news interview programs where a candidate’s appearance did not trigger equal time. If the program covers some aspect of the news, and regularly features newsmakers, it is likely to be determined to be an exempt program.

A station need not get a declaratory ruling from the FCC to rely on this exemption. However, many stations and syndicators do seek a ruling. Syndicated programmers in particular like to have the certainty of a ruling to reassure potential affiliated stations that, by picking up the program, they are not likely to subject themselves to equal time requests.

In the recent case, without knowing the full facts of the situation, we cannot evaluate whether or not the decision was justified. If the program in the past had confined itself to music and entertainment programming, without regularly tackling political or other topical issues, the concerns of the station owner may well have been justified.

In the case discussed so much this week, another issue is worth mentioning – the issue of who would get equal time if the program was not exempt. Only legally qualified candidates opposing the candidate who appeared on the air have the right to demand equal time. In these early days of the Presidential election season, there is a real question as to which candidates are in fact legally qualified candidate for the Democratic nomination and are thus entitled to equal opportunities at this point. In most elections, a candidate needs to either have qualified for a place on the ballot or, in the case of a write-in candidate, they need to make a substantial showing that they are a real candidate by demonstrating that they are doing everything that candidates do (e.g., making public appearances, passing out literature, advertising, taking policy positions, etc.).

However, there are special rules for Presidential candidates, in that once they become legally qualified in 10 states, they are considered legally qualified in all states. In addition, as Presidential campaigns often begin well before the deadlines for filing for a place on the ballot (or, for states with caucuses instead of primaries, there may be no ballot for which to qualify), a candidate for President can demonstrate legally qualified status by making a substantial showing that they are actively campaigning in at least 10 states (or nine states and DC). At this point, some of the major candidates may well have been sufficiently active in some of the early primary and caucus states (e.g., Iowa, New Hampshire, South Carolina, etc.), but can they show that they really have been active in 10 states? That is an open question that broadcasters face with equal opportunities issues about candidate appearances on national programs, or appearances on local stations in states where the candidates have not been particularly active. Stations need to discuss these issues with their counsel and perhaps the FCC as they arise.

There are obviously many other issues at play in evaluating any political issue like this, so be prepared to talk to counsel about the particular facts of your case. My colleagues and I will be doing a number of political broadcasting webinars for state broadcasting associations in the coming months – including three in the next week and one for multiple states in November. I am sure that many other FCC attorneys will be doing the same. So listen in to these webinars, and study up to help to identify the issues about which you need to be concerned. And to help identify some of the issues that you need to consider, see our Guide to Political Broadcasting, here.

 

Preparing for the 2020 Elections – Our Updated Political Broadcasting Guide

Delivered... David Oxenford | Scene | Mon 17 Jun 2019 4:25 pm

2020 will no doubt be a very active year for political advertising. To help broadcasters sort out the confusing rules they need to follow in connection with such advertising, we have updated our Political Broadcasting Guide for Broadcasters (note that the URL for the updated version has not changed from prior versions, so your bookmarks should continue to work). The revised guide is much the same as the one that we published two years ago, formatted as Questions and Answers to cover many of the issues that come up for broadcasters in a political season. This guide is only that – a guide to the issues and not a definitive answer to any of the very fact-dependent legal issues that arise in election season. But we hope that this guide at least provides a starting point for the analysis of issues, so that station employees have a background to discuss these matters with ad buyers and their own attorneys.

In looking at the Guide that we prepared two years ago, really not much has changed. The online public inspection file has now become a reality for all broadcasters, so that adds a new layer of transparency (and scrutiny) to broadcasters’ political advertising decisions. There also has been some discussion of the disclosures necessary for issue advertising – though because this guidance is still somewhat up in the air (see our posts here and here), our Guide highlights the questions and our understanding of where the FCC appears to be heading on this topic. We have also made some clarifications and updates on other issues based on issues we have seen arise in the last year.

Again, this Guide is just a starting place for analyzing political broadcasting issues, but we hope that many broadcasters find it to be helpful in giving them some of the tools that are needed to analyze the complex questions that come up during this election year. But resolving these issues is very dependent on the facts of any particular situation, so stay in close touch with your attorneys and advisers experienced in these issues to make sure that you get the law right. In the upcoming months, I will be doing a number of seminars on these rules for various broadcast associations – watch for announcements on those in the coming months. Last week, I spoke at the Iowa Broadcasters Association annual convention, where broadcasters are already gearing up for their Presidential caucuses early in 2020. With the Democratic debates starting this week, it looks like we are about to enter this crazy season. We trust that our Guide will assist broadcasters in spotting issues in this very active political year.

Political Broadcasting Issues to Consider Now for the 2020 Election Campaign

Delivered... David Oxenford | Scene | Fri 31 May 2019 4:23 pm

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.

In addition to the question of rates for political ads, stations should be thinking about access for political candidates. Especially in the early primary and caucus states, with so many candidates for the Democratic nomination, spot availability may become tight in the weeks leading up to actual voting. But, as long as a candidate does not sit on their rights, equal opportunities requires that candidates have a right to respond to their opponents in equal amounts of broadcast time, and reasonable access requires that you make available time to all Federal candidates in reasonable amounts. But reasonable access does not require that you provide a candidate with all the time that they request (see our article here). As well-funded candidates come in to stations now to request big ad buys later in the political season, stations should consider whether they really want to sell those candidates all the time that they ask for – knowing that some of the less financially secure candidates may be delaying their buys until the last days before the primary. Equal opportunities will require that you fit in spots from those late-arriving candidates, so make sure you have sufficient advertising inventory in reserve in the weeks leading up to the election to make room for commercials from these candidates whose funding may not cover ads until late in the primary period.

There are issues to consider about free time for candidates. As we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on the normal day – are deemed “news interview programs” exempt from equal time rules if they routinely cover issues of public importance.  Bona fide news programming is also exempt from equal time. Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program. In these days of media overload, candidates are looking for these nontraditional means of exposure in broadcast programming. So use care if a candidate appears as a character on a scripted TV show, or walks into the announcing booth at a local football game asking to do the play by play for a few minutes, or (especially when dealing with state and local candidates, see our posts here and here) where the candidate is a host of a broadcast program – as, depending on how these situations are handled, all could give rise to equal opportunity claims.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  In any case, if the ads are dealing with Federal candidates or other issues being considered by the US House of Representatives or Senate, then they are Federal issue ads on which the station must maintain full online public file information, similar to that which is kept for any candidate advertising – the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our post here on the public file requirements for Federal issue ads).

We have also written, here, about issues concerning the content of these third-party ads, as stations can potentially have liability for defamatory content in those ads if the station knows or has reason to believe that the ads are in fact false. Being put on notice of the falsity of the ad by a letter from a representative of the candidate being attacked can constitute that reason to believe that the ad is false that, if it contains defamatory content, could theoretically result in liability to a station. Candidates who are attacked may be calling stations asking that ads from PACs and other third-parties be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims. While third-party ads do not get lowest unit rates, these ads can be more problematic than candidate ads as they potentially force stations to be judges of the truth of the content of those ads. Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for the broadcast content of those ads.

Finally, with the election season fast approaching, even stations not in early primary states should start planning.  Some stations are no doubt already selling long-term contracts that will still be in effect during the primary season.  Stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value – rather than simply booking them as having a flat rate throughout the entire year – including the pre-election lowest unit rate periods. As we wrote in our Political Broadcasting Guide, the FCC allows you, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods.  Consult with your attorney to make sure that you properly apply this process, but it could save you money in the long term.

These are but a few of the political issues that broadcasters should be considering. So start thinking about the political issues that will arise as we enter this political season, and check out our Political Broadcasting Guide and the guides prepared by the NAB and many other organizations representing broadcasters – as you can never have enough perspective on these issues. These rules are complex, and many candidates are getting smarter about the how to use the rules to their advantage, so be prepared for the upcoming onslaught of political advertising.

FEC Seeks Comment on Proposal for Change in TV Political Disclosures

Delivered... David Oxenford | Scene | Tue 12 Feb 2019 3:05 pm

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

Important Dates for Broadcasters in 2019 – A Broadcaster’s Calendar

Delivered... David Oxenford | Scene | Wed 6 Feb 2019 5:33 pm

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports, and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

FCC Shuts Down Because of Government Funding Impasse – What Does It Mean for Broadcasters?

Delivered... David Oxenford | Scene | Fri 4 Jan 2019 5:27 pm

Do you have a deal to buy a new station or a planned technical modification that needs FCC approval? Well, it looks like those plans may have to wait as the budget controversy in Washington has shut down the FCC. But what does the shut-down really mean for broadcasters? The FCC clarified some of the questions broadcasters have in a Public Notice released Wednesday.

Most applications will not be processed, though the FCC has made clear that it will have FCC staff members available to deal with issues related to the TV spectrum repacking that was caused by the incentive auction. So for those stations needing FCC approvals for actions relating to the repacking of the TV band, the FCC will be functioning. Unlike in past shutdowns (see, for instance, our article here), the FCC website will remain up and generally will be operating, and the CDBS and LMS databases used for most broadcast applications will continue to function (though without any sort of tech support if an applicant has problems). Certain other databases relevant to some aspects of broadcast operations (like the public complaint filing system, the International Bureau’s database used for filing earth station applications, and the tower registration database) will not be available. Perhaps most surprisingly, as the FCC does not specifically mention it in the Public Notice, the FCC has shuttered its Online Public Inspection File database for broadcasters. With that database not working, public file updates (including the Quarterly Issues Programs lists that are due to be added to the files by January 10, cannot be uploaded unless the government reopens. Note that, in the FCC’s orders adopting the online public inspection file obligations, stations are supposed to be able to provide access to their political files when the FCC system is offline (see our article here). While no access to the rest of the file is required, stations are supposed to be able to provide access to back-ups of the political file. Luckily, with few elections taking place at the moment, this should not generally be a widespread issue, but it could obviously become an issue should the shutdown persist.

For the applications that can be prepared in the databases that will remain available, they will all be considered to have been received the day after the day the FCC reopens. Other FCC filing deadlines that fall within the shutdown period (which will include yesterday as the FCC was not open for regular business all day) will be postponed until the day after the day that the FCC reopens. Exception to the suspension of these deadlines deals with auction deadlines – including those due to the repacking of broadcast stations following the incentive auction and an auction of mutually exclusive FM translators. Those deadlines remain in place as auction related activities are separately funded so the auction process continues. Depending on the length of the shutdown, the FCC may reexamine other deadlines that fall within the period that routine operations of the government are closed.

There are certain other emergency functions of the FCC that remain open even during a shutdown, including the filing of STAs where there are issues of life or property. Routine STAs already in place authorizing temporary operations are extended through the end of the shutdown (except where they involve repacking issues). The FCC has a meeting scheduled for January 30 (assuming the FCC is open by then). Routinely, the FCC would have released its agenda for that meeting next week. In anticipation of the shutdown, the agenda was released yesterday (here), and contains several matters of interest to broadcasters which we will cover in subsequent posts. The tentative draft orders for that meeting that were released yesterday (here) pose an interesting question of how, with most of the FCC staff furloughed, interested parties are supposed to bring issues about the draft orders to the FCC’s attention.

Obviously, the shutdown will be disruptive, and station sales and most facilities modifications will be on hold until the FCC reopens. As these rules about what is available and what is not are complex and open to interpretation, consult your own attorney about how the shutdown impacts your operations. And watch the news to see when we can expect the FCC (and the other agencies affected by the partial government shutdown) to restart their operations.

 

Demands to Pull Attack Ads in the Closing Days of the Election – What is a Station to Do?

Delivered... David Oxenford | Scene | Wed 31 Oct 2018 3:57 pm

As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  We provided this overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent.  In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? 

Stations must take seriously any claim that a political ad that they are running is false, particularly where there is legal action threatened if the ad is not pulled from the airwaves.  The Communications Act’s “no censorship rule” does not apply to third-party ads, only to candidate ads.  Thus stations can pull a third-party ad because of its content.  While stations need not fact- check every ad they receive, if an ad is defamatory – spreading falsehoods about a recognizable individual – it could result in civil liability to the station.  Under Supreme Court precedent, statements made about public figures (such as political candidates) can be found defamatory only if the person or entity that is distributing them either knew that they were false or distributes them with “negligence,” e.g., where they had notice that the ads were false, yet they continued to distribute the false material anyway.  Thus, if a station does not know that a claim in a third-party ad is false, but it is put on notice about the falsity (e.g., by a letter from an attorney representing the party being attacked), the station needs to take steps to investigate the truth of the ad.

If the station ignores a demand letter claiming that an ad is false, and keeps running the allegedly false ad anyway, and the ad is in fact false and defamatory, there is potential liability to the station.  Stations should ask the sponsor of any attack ad for documentation backing up their claims, review the supporting material to see if it in fact backs up the claims made, and consult with their attorneys to determine if it is likely actionable.   There are often no clear answers, so broadcast companies need to talk to their attorneys and make their own assessment of the risk of liability for continuing to run a third-party ad claimed to be untrue. Typical political claims (e.g. “candidate X is a big-spending liberal” or “candidate Y doesn’t care about our kids as he has voted against school funding increases 12 times”) are less likely to be actionable than are claims about the character, integrity and similar personal qualities of a candidate (e.g., a claim that a candidate did something illegal).

The FCC itself is not a fact checker of claims made in political ads.  Many times letters demanding that attack ads be removed from the air suggest that running these ads somehow violates the FCC rules about stations operating in the public interest.  Sometimes the demand letters even claim that the ads violate FCC rules against false and deceptive advertising – even though it is the FTC, not the FCC, which deals with deceptive ads.  But even the FTC is not routinely involved with the political advertising process, given that the involvement of any government agency is assessing the truth or falsity of any political ad is so fraught with First Amendment issues.  Generally, we don’t want a government agency deciding what is true in political ads and what is not.  Thus, these questions are left to private actions for defamation.

While defamation actions against broadcasters for not pulling an attack ad are not common, there have been a few broadcast stations sued. These are stations that kept running an allegedly false political ad which they had been told was false.  You don’t necessarily want to go to the time and expense involved in any such litigation, so assess these claims with your attorney once they come in.  Many of these demand letters seem to be sent more to intimidate stations into pulling ads in the last few days before an election than to advance real legal claims, but you need to carefully review all the demands to make sure that the ones that you receive don’t have merit. Consult your attorney, as these are sometimes not easy calls to make.

For more on various political broadcasting issues, see our Political Broadcasting Guide, here.

Beware of the Political File Obligations in this Hot Political Advertising Year

Delivered... David Oxenford | Scene | Mon 1 Oct 2018 4:47 pm

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the US House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top of mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to take action on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. Thus, the documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?

For any request for advertising made by any legally qualified candidate for any public office (Federal, state or local), the following information needs to be maintained in the file:

  • Whether the request to purchase time was accepted or rejected;
  • If accepted, the rate charged for the ads in the advertising schedule;
  • The date and time that the ads are to be aired, with the exact times that they were aired to be added to the file after they run;
  • The class of advertising time purchased (which will be determined by the rights associated with the spots, e.g. whether they are fixed or preemptible, the daypart or rotation in which the spots will run, etc.)
  • The name of the candidate and his or her authorized committee, and the treasurer of the committee.

All information should go into the file as soon as an order is received – certainly within 24 hours. The only exception is for the details of the exact times that the spots ran, which can be inserted into the file when your traffic system generates those reports – provided that they must be provided sooner on request.

That same information as provided for a candidate ad needs to be put into the file for any advertising relating to a “political matter of national importance.” That would include any ad by a non-candidate group (e.g., a PAC, labor union, corporation or other interested individual) dealing with any issue likely to be dealt with here in Washington. Such issues would include:

  • Any ad dealing with a legally qualified candidate for Federal office (either attacking or supporting a candidate); or
  • Any national legislative issue of public importance (e.g., an ad saying “write your Congressman and tell him to vote” for or against some issue being dealt with by the Federal government).

In the political file for these Federal issue ads, in addition to all of the information for candidate ads, the file also needs to include a description of the issue that the ad addresses. That can be the name of the candidate that the ad supports or attacks, or the name of a Federal issue that the ad addresses. In some cases the ad can address both a candidate and an issue. In that case, it is probably safest for the political file to list both the candidate and the issues addressed. The FCC’s Media Bureau issued a decision in January 2017 requiring that dual identification (see our article here), but that decision was withdrawn when the current FCC Chairman came into office with a promise that the FCC would reexamine the issue and release a new decision (see our article here). While that new order has apparently been drafted and has been on circulation among the Commissioners for a vote since May 2018, the decision has not yet been released. Watch for a clarification that could come at any time.

All issue ads, whether dealing with Federal, state or local issues (state and local issues could include state ballot initiatives, local zoning or school bond issues, or attacks on state or local candidates), also require information about the sponsor of the ads. The information includes the following:

    • The name of the person or entity purchasing the time, and
    • A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.

In the decision referenced above on which we are awaiting a final FCC ruling, the Media Bureau had required that stations, if they are given only a single name of an officer or director of an entity buying issue ads, ask the ad buyer for the names of additional officers or directors – on the assumption that it is unlikely that any organization has but a single officer or director. While that responsibility has not yet been clarified, it is probably advisable that stations make such inquiries.

We note that many stations use forms to gather the information necessary to respond to these questions – often forms generated by a group owner or one of the “PB” forms created by the NAB. These are good models to use to gather the information for the file, but the station still needs to make sure that the information provided by the political buyer fully responds to the questions on the form. We have heard of many cases where non-candidate groups do not want to say on the form that they are buying ads on a Federal issue, even when they are clearly attacking a candidate for Federal office, perhaps because they do not want all the information about the advertising buy (including the price and schedule) to be revealed in the public file. Stations need to inquire if the information provided is not complete, as the burden is on the station, not the ad buyer, for this information to be complete and accurate, and timely placed in the online public file.

Also, do not put information into the file about the method of payment for the ads. We have seen cases where checks from advertisers, or worse yet, information about their electronic payment methods, have been included in the public file, potentially revealing sensitive information that could compromise bank accounts. Do not place this information into the file.

Finally, be alert to state record-keeping requirements. States including Washington and New York have recently enacted state laws that may impose different or additional paperwork obligations on political advertising (see our article here). If your station is in one of those states, be sure to not only observe the FCC’s rules, but also those of the state in which you are located.

Good luck in keeping all these rules straight in the last weeks before the election. For more information about political advertising obligations, see our Guide to Political Broadcasting, here. And, of course, ask your own lawyer as these issues arise, as they raise many tricky issues that may depend on the specific facts of your case to get the right answer.

 

 

Broadcasting and Cable Political Window Begins September 7 For November Elections – A Refresher on the FCC’s Lowest Unit Charge Rules

Delivered... David Oxenford | Scene | Thu 6 Sep 2018 5:03 pm

With the lowest unit charge window for the November elections going into effect tomorrow (September 7), we thought that it was a good idea to review the basics FCC rules and policies affecting those charges. With this election, where control of Congress may well be hotly contested and may result in competitive elections across the country, your station needs to be ready to comply with all of the FCC’s political advertising rules. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time and particular daypart. Candidates get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes of advertising spots. For instance, there will be different rates for spots running in morning drive than for those spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each with its own set of charges resulting in different classes of time, each with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or unique rights attached to it (e.g., different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate. Stations need to review each class of time sold on their station, find the lowest rate charged to a commercial advertiser for a spot of the same class that is running at the same time that the candidate wants to buy a spot, and that lowest rate will be what the candidate is charged.

One question that still comes up with surprising regularity is whether these rates apply to state and local candidates, as well as Federal candidates. Indeed they do – so if your station is running advertising for candidates for mayor or city council; or for governor or the state senate; or even for the board of education, municipal court judge, or state attorney general – they and any other candidate in any public election for which your station chooses to accept advertising gets lowest unit rates. See our past articles on this topic here and here.

In modern political elections, where PACs, Super PACs and other non-candidate interest groups are buying much political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Even if the picture or recognizable voice of the candidate that the PAC is supporting appears in the ad, spots that are sponsored by an independent organization not authorized by the candidate do not get lowest unit rates (note, however, that spots purchased by independent groups featuring the voice or picture of the candidate may trigger public file and equal opportunities obligations for the station if the station decides to run those spots).  Stations can charge these advertisers anything that the station wants for non-candidate ads – no need to stick to lowest unit rates.

From time to time stations may face the one exception to the above paragraph, where political parties are requesting lowest unit charges. In some cases, parties may in fact be entitled to these rates – but only where the spot features the recognizable voice or picture of the candidate and the party is using specific types of donations to pay for the ad.  These donations are ones that are subject to political campaign donation limitations (known as “hard money”).  To get lowest unit rates, the advertising purchases must be authorized and “coordinated” with a candidate (and, in Federal races (and in several states that have adopted laws on the subject), the spots should make that coordination clear with the “I approved this message tag” or, under some state laws, some variant of the tag that discloses the coordination. Not all party spots are entitled to this treatment – only this special class of coordinated expenditures – and stations are entitled to get written confirmation from the party or the candidate that the expenditures are coordinated under the election laws. If not coordinated, the parties get charged the same as any other third-party organization.

Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates cannot be forced to buy single-station packages to get low unit rates. Instead, the package must be broken down by the station into a price per spot for each class of spot that is contained in the package. That is done by allocating the package price to the various spots of each class that are contained in the package. Then the allocated rates, on a unit basis, are compared to other spots of the same class that have been sold on the station either on their own or in other packages to determine if the spots from this package have any impact on the station’s lowest unit rates. This allocation is done in an internal station record, which does not need to go into the public file, and does not need to be revealed to the candidate. Other than the station, only the FCC will see this allocation if they decide to conduct some sort of audit. We wrote more about this process of allocating spots in a package here.

And these are just some of the myriad issues that arise in computing lowest unit rates. Stations need to be familiar with these rules, and apply them accurately through the lowest unit rate window. Check with your own legal advisor to discuss the specifics of these issues as they arise as they are often very difficult to apply in the real world.  Some of the other situations that arise with lowest unit rates, and with other political issues that come up in any election season, are covered in our Political Broadcasting Guide, available here.  This article in an update of an article from a series that we did several years ago on Political Broadcasting Basics, which we may update from time to time over the next few weeks.  But until we post the updates, you can find the original articles on our blog by clicking on these links:  equal opportunities, reasonable access, the no-censorship provision that governs candidate ads, and the potential for station liability for untruthful statements made in third party ads.

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