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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.

The MusicFirst claim is that this case is different in that broadcasters have a self-interest in the topic.  Yet, seemingly, that argument goes too far, as a restriction on broadcasters editorializing on topics in which they have some interest could very well eviscerate the First Amendment rights that they have now had for so many years.  For instance, editorials on tax policy, health insurance, utility rate hikes, and even local bond issues may well have a direct impact on the broadcaster, but no one suggests that these topics are off limits.  Even an editorial supporting or opposing a political candidate, the heart of the editorial right for newspaper publishers and now enjoyed by broadcasters, could be seen as potentially having a financial impact on the broadcaster.  The MusicFirst petition does not address why these issues are somehow different from the performance rights issue, or why artists are entitled to more rights than supporters of positions that may be contrary to the broadcaster's position on other issues.

Moreover, it was clear even before the abolition of the Fairness Doctrine that broadcasters are not "common carriers," meaning that they do not have to accept every ad or message that anyone wants to put on their airwaves (Common carriers, like telephone companies, have to transmit every message that is given to them).  The broadcaster can serve as an editor or journalist, picking and choosing the message that it wants to convey to its listeners.  The only exception is for Federal political candidates, who have legislated a right of "reasonable access" - legislation that has not been challenged in the Courts in recent memory.  But regardless of the rights of political candidates, this exception is in no way relevant to the MusicFirst Coalition.

The MusicFirst petition also suggests that broadcasters may be improperly characterizing spots that they run against a performance royalty as Public Service Announcements ("PSAs").  Yet that also is not a relevant criticism, as the FCC did away with all of its mandatory program logging requirements back in the 1980s.  Thus, whether broadcasters characterize the announcements are PSAs, or Entertainment or News or anything else has no current significance for regulatory purposes.  Note that the localism rules adopted but not yet effective for TV, and those proposed for radio, would bring back the mandatory classification of broadcast programs and give the PSA classification regulatory significance if and when these proposed rules become effective.  But it is certainly not an objection at this point.

The PSA suggestion is tied into another claim that the radio broadcasters running these announcements may not be meeting their public file issues under the Bipartisan Campaign Reform Act ("BCRA") which requires that a broadcaster who runs advertising discussing "Federal issues" put information into their public files similar to that which is maintained for political candidates (see our post, here, for details on that requirement).  While we have advised our clients to comply with these rules, especially if anything of value has been provided to the station in connection with the ads (including scripts or pre-produced spots), where the station airs its own editorial message on the issue, the spots do not seem to fall into the BCRA requirements as they are not sponsored programming, which is essentially what those requirements address.

Ignoring other procedural and substantive issues in the petition (including its failure to name names - in most cases omitting information about the stations which supposedly engaged in the complained of conduct and of the artists who were discriminated against), the issue seems to boil down to a First Amendment issue.  No one would suggest that performers be required to allow broadcasters to attend their concerts to speak against the royalty, so why should broadcasters be compelled to give voice to a position to which they are fundamentally opposed?  We will see what the FCC does with the MusicFirst petition in coming months.  Given the recent statements of the proposed new Chair of the FCC at his confirmation hearing that he has no intention of reviving the Fairness Doctrine, the prospects are that this petition will be simply one more publicity volley in a protracted war over the broadcast performance royalty.

In a separate opinion, Justice Scalia and two other Justices argued that Section 203 (the relevant section of BCRA prohibiting the mention of candidates in corporate sponsored issue ads) is unconstitutional on its face and should be thrown out.  However, the end result was that five Justices, a majority of the Court, believe that Section 203 was unconstitutional, either on its face or as applied to these issue ads, and thus, the Court invalidated the FEC decision..

Four other Justices, led by Justice Souter, dissented, believing that Section 203 is constitutional, as had been previously decided by the Court just a few years earlier.  The dissenters believed that it is  easy for corporations to support or oppose candidates through ads superficially posing as issue ads and to thus evade the clear intent of BCRA to reduce corporate influence in elections.

With this decision, broadcasters can expect that more corporations and labor unions will be running ads that urge voters to write to their Congressman to express outrage about some issue or another (and of course it will be completely coincidental that such ads will only be asking that people write to those Congressmen who happen to be up for reelection.  This will no doubt increase advertising inventory in next year's advertising season.