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In recent weeks, as the Terry ad has sprouted on more and more TV stations around the country (see our article here), there have been questions raised as to whether he really is a bona fide legally qualified candidate for the Democratic nomination for president.  Some have questioned whether he is even a Democrat, and recently the Democratic National Committee issued a letter addressing the subject - finding that Mr. Terry did not meet the party's qualifications to be a Presidential candidate.  Mr. Terry is contesting whether that letter is enough to take him out of the status of a "legally qualified candidate", especially in states where he has qualified for a place on the ballot.  Stations will need to make a judgment as to whether this letter itself is sufficient to disqualify him as a candidate based on some prior precedent from the FCC that seemed to decide, in a 15 year old case involving Lyndon LaRouche, that where the party declared someone was not qualified, the FCC would not second guess that determination.  But the facts of that case were different, including the fact that the primaries had been completed at the time of the ad request.  So we don't know for sure what decision on this issue will come from the FCC.  Watch to see if there is any FCC guidance in the few remaining days before the Super Bowl.

But back to the subject at hand - stations must run candidate ads without censorship.  But note, as we've written many times before (see, for instance, our articles here and here), the no-censorship provision applies only to candidate ads.  Third party ads - those by PACs, Super PACs, labor unions, interest groups or even corporations or individuals - don't get this same "no censorship" treatment - so stations are not shielded from liability for the contents of those ads.  We are sure that we will be writing about this subject again soon as this hotly contested campaign cycle plays out. 

Most of the cease and desist letters cite a 1961 FCC ruling titled Licensee Responsibility With Respect to the Broadcast of False, Misleading or Deceptive Advertising."  What those letters fail to mention is that this ruling concerned a Federal Trade Commission crackdown on false, misleading or deceptive commercial advertising.  It was unrelated to political advertising.

The cease and desist letter may also cite the 1950 Third Circuit opinion in Felix v. Westinghouse, which held that broadcast stations may be liable for defamation in the absence of a candidate "use."  There was nothing in that opinion hinting at media liability for political ads that are false and misleading but not defamatory.

Indeed, the FCC has actually made the following statement on multiple occasions:  "With respect to allegations of false and misleading statements by political candidates or their supporters, the Commission believes that the public interest will best be served through 'robust, wide-open' debate." citing the US Supreme Court decision in New York Times v. Sullivan.

Of course, the Commission has also been quick to point out that it "would be most concerned if substantial evidence were presented that a licensee had acted in bad faith or deliberately discriminated against a political candidate."

So, what is a broadcaster or cable operator to do with those cease and desist letters?  The best and safest course of action is to provide a copy of the letter to the ad's sponsor and ask for substantiation of the claims made in the ad.  That way, you have fulfilled your obligation to avoid having acted in bad faith or recklessly.

But do you need to pull the ad?  You might, but generally speaking, only if the ad is potentially defamatory.  Defamation is broadly defined as reputational harm, usually resulting from untrue statements alleging crime, fraud, dishonesty or immoral conduct.  Cease and desist letters arguing about a candidate's position on a particular bill or the effect of legislation are generally not alleging anything that would be considered defamatory, even if false.  These ads generally do NOT need to be pulled.  Similarly, cease and desist letters arguing that a political ad contains footage protected by copyright are likely to concern material protected by the law of fair use.

If, on the other hand, an ad alleges that a candidate committed a crime or other immoral act, it may be wise to consider pulling the ad pending receipt of substantiation for the claims made by the third party sponsor.  Truth is an absolute defense to defamation.  Broadcasters and cable operators face potential liability in running potentially defamatory ads, but only for for acting with actual malice or reckless disregard of the truth. 

The bottom line, however, is that most third party political spots do not make claims that are potentially defamatory.  The FCC and the First Amendment strongly support the airing of political viewpoints, even if those viewpoints are potentially false.  For the most part, there is no need to worry about threatening cease and desist letters regarding political ads, but it is always wise to get substantiation and to be more careful with ads that are potentially defamatory.

Stations are not required to accept third party ads and, even where these ads address a candidate, the station has full rights to accept or reject the ads based on the ad's content (perhaps subject to Zapple discussed below).  However, because the station can choose whether or not to run the ad, the station can also be held liable for the content of those ads.  While the standard for liability under the rules of defamation are very high for public figures such as a political candidate, there still can be liability if the station runs an ad with "malice", meaning that they either know that the content of the ad is false, or run it with reckless disregard of the truth of the claims made (where those claims later prove to be false).  That malice standard is what forces stations to become political researchers - tasked with determining if there is a reasonable basis for a claim made in an ad so that the candidate being attacked cannot later come back against the station and accuse the station of recklessly running a false ad.  We've written before (here and here) about the typical scenario that arises - a third party group buys an attack ad against a political candidate, the candidate or his or her lawyer sends the station a letter saying that claims made in the attack ad are false and the station will be liable if the station continues to run the ad.  At that point, the station has an obligation to investigate the truth of the statements made in the ad.  If the station just continues to run the ad with no investigation, and the ad proves to be false and the candidate that is attacked can prove injury, the station can be held liable.  How much investigation is necessary?  That is a question that cannot be answered in a few paragraphs on this blog.  But suffice it to say that stations need to be prepared to call their attorneys and discuss the issue with their owners in making these assessments - as each station may have a different tolerance for risk, and a different willingness to allow questionable third party ads to run.

The other potential issue that this decision may bring to the fore is the status of the Zapple Doctrine.  Section 315 of the Communications Act imposes the Equal Opportunities doctrine (otherwise known as "Equal Time") on stations, which the FCC has interpreted to mean that stations need to treat all candidates running for the same office in the same way - allowing them to buy equal amounts of advertising time on a station, and giving them equal amounts of free time on a station if the candidate appears outside of an exempt program (e.g. news or news interview programs, or on-the-spot coverage of a news event, including most debates).  But the Equal Opportunities Doctrine applies only to candidates and their appearances  on stations (or "uses", in the language of the FCC).  What about the purchase of time by third party groups, which are technically not subject to the Equal Time rule?  Well, more than 30 years ago, the FCC adopted the Zapple Doctrine, or "quasi-equal opportunities" as an outgrowth of the Fairness Doctrine.  The Zapple case, as we wrote here and here, held that where supporters of a candidate are allowed to buy time on a station, supporters of the opposing candidate should also be allowed to buy roughly equivalent amounts of time.  While the remainder of the Fairness Doctrine has been declared by the FCC or by the Courts to be unconstitutional over the last 25 years, Zapple has never been officially overturned.  When the Swift Boat documentary was about to be run on some television stations during the Kerry-Bush campaign, the Kerry campaign invoked Zapple in claiming that all stations that ran that documentary would need to air equal amounts of time from pro-Kerry groups.  While that matter was settled before the FCC ruled, some FCC officials have from time to time implied that they would have invoked Zapple had it gone to a decision.  With an influx of corporate money into political campaigns, Zapple issues are more likely to find their way to the FCC in coming elections.

Finally, the Citizens United case did not upset the record-keeping and disclosure requirements of the Bipartisan Campaign Reform Act ("BCRA").  BCRA imposed many such obligations on broadcasters.  Thus, the sale of time to corporate groups, just like the sale of time to any other third-party group, requires a full public file disclose when such purchases are made to address a Federal issue or election.  We wrote about those obligations here and here. Essentially, all the same information about the purchase that would be kept for a candidate buy must be kept for a third-party buy - including the class of spots purchased, the schedule run, the price paid, and the identity of the purchaser.  Even advertising buys dealing with state and local elections require an identification of the buyer and its principal officers or directors.

Thus, while more money may flow into broadcast stations as a result of the Citizens United decision, that money may come with some additional headaches for broadcasters.  All of these issues and more are addressed in the Davis Wright Tremaine Political Broadcasting Guide, available here.

For this protection from liability for the contents of a candidate ad to apply, stations do need to make sure that the ad is a "use" under FCC rules, i.e. it contains the recognizable voice or picture of the candidate.  The ad also needs to have the required sponsorship identification.

The kind of issue that is raised by this ad can be particularly troublesome in connection with ads for Federal candidates, who have a right of reasonable access.  Reasonable access means that commercial broadcast stations must provide access to all dayparts to Federal candidates who want to buy time.  Thus, we've dealt with situations where white supremacists have qualified for a place on the ballot in a Congressional race and wanted to run racist ads - and stations have had to allow it.  While this may seem like a bad outcome, it does make sure that stations cannot block unpopular viewpoints from being aired so that all points of view can be expressed by political candidates.  Thus, while individual cases may result in ugly situations, the overall purpose of encouraging diverse political speech is achieved by the rules.

Stations do need to note that ads by third parties - e.g. political parties, labor unions, interest groups, or rich individuals interested in the process - are not subject to the no censorship rule.  Thus, as ads by these third party groups can be rejected by stations based on their content, stations have theoretical liability for the content of these ads if they are defamatory.  See our post on this subject here.

The political broadcasting rules are complex and confusing.  The Davis Wright Tremaine guide to the political broadcasting rules can be found here.  But stations faced with these issues should consult with counsel for specific guidance on any specific situation that may develop.  Make those contacts now, as 2010 is likely to be a long political year with many controversies yet to come. 

In another story about a race in New York, one candidate has argued that the spot of another violates copyright law by using recorded material created by another without permission.  While the candidate who created the ad argues that he had a right to use the clip under the "Fair Use" doctrine, even if he did not, a station could not pull the ad, and would not be liable for any copyright liability that might attach.  Note that the answer might be different if the ad was posted on the station's website (where the no censorship rules does not apply), or if the ad was sponsored by a third party group rather than the candidate himself.

This is not to say that the candidate being defamed, or the copyright holder whose material is being improperly appropriated, has no remedy for an objectionable candidate ad.  But that remedy is against the candidate sponsoring the ad, not against the station that broadcasts it.  While suits against a candidate or that candidate's campaign committee are rare, they are theoretically possible. 

One last note, these rules apply to both Federal and state and local candidates.  While broadcast stations have no "reasonable access" obligation to sell time to state candidates, once they do, the no censorship rule applies.  More information on this subject and on other political broadcasting issues can be found in Davis Wright Tremaine's Political Broadcasting Guide.

More information about these rules and the other laws dealing with political broadcasting issues for broadcast stations can be found in our Political Broadcasting Guide. 

On Monday night, the Clinton campaign has purchased an hour long block of time on the Hallmark cable channel to cover a town hall meeting.  Cable, unlike over-the-air broadcasting, is not subject to reasonable access requirements , so there was no obligation for the channel to sell time to the campaign.  And for network cable, it is still an open question as to what other FCC political rules apply.  The Commission recently went out of its way to avoid answering whether the equal opportunities rules apply to network cable by deciding that CNN did not violate the equal time rules by denying Dennis Kuchinich an opportunity to participate in a recent debate (see our summary of the case here).  From the lengths that the Commission went to in avoiding providing a direct answer to the question of whether equal opportunities applies to network cable programs, it could almost be inferred that, if push came to shove, the FCC would ultimately apply these rules if it could not otherwise avoid the issue.  But even if the rules applied, the sale of the programming block to the Clinton campaign would just give the Obama campaign the right to buy an hour of time, which it may or may not want.  And what rates would apply?  Applying the rules used for broadcast stations, if hour long blocks of time are not customarily sold by a network, the network could charge a reasonable amount, including a mark-up for lost audience in following time periods, according to recent FCC statements about the sale of block programming.

Around the country, in anticipation of the voting, third party groups including labor unions and other advocacy organizations are running ads supporting or opposing candidates.  These ads are not entitled to lowest unit rates (which are for candidates only), and stations need not sell time to these groups if they do not want to (reasonable access also applies only to candidates).  If a station does sell time to these groups, is there a requirement that a station sell time to supporters of both sides?  That is an open question.  While the FCC did away with most of the "Fairness Doctrine" over a decade ago, there is still a last thread of that doctrine that has never been officially abolished - the "Zapple Doctrine."  That doctrine was essentially equal time for supporters of a candidate - if a station sold time to the supporters of one candidate, it had to sell that time to the supporters of the other.  While the doctrine has not been applied in the last two decades, it has not been explicitly overruled so, if a station refused to sell to supporters of one side, the FCC might be forced to deal with that issue.

In fact, would that doctrine come into play in connection with the radio talk show hosts that are overtly partisan on the air?  According to press reports, many of the conservative radio talk show hosts have been aggressively anti-McCain in their programs.  As there are usually no appearances by the candidates on these programs, there are no equal opportunities issues, as equal opportunities is triggered only by the actual appearance of a candidate.  But could the Zapple Doctrine apply?  Traditionally, that doctrine applied to the purchase of time.  However, four years ago, when certain television stations thought about airing the "documentary" from the Swift Boat veterans attacking John Kerry, the Kerry campaign argued that the supporters of the Kerry campaign were entitled to free time under the Zapple Doctrine.  That case never reached a decision as the stations dropped their plans to air the film, but it remains an open issue (though more than a bit of a long-shot as it would seemingly render the abolition of the Fairness Doctrine meaningless, and raise significant First Amendment issues).

For more discussion of the FCC rules regulating broadcasters and political broadcasting, click on the Political Broadcasting subject heading on the right of this page, and read our Political Broadcasting Guide.  And watch for more discussion of political issues, as they arise, here.