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In an 11th hour decision released at about 5 PM on the Friday before the Super Bowl,the FCC decided that TV station WMAQ-TV in Chicago was justified in denying Randall Terry's request to buy advertising time in the Super Bowl.  As we've written before, Mr. Terry is claiming that he is a candidate for the Democratic nomination for President, and as such has a right of reasonable access to broadcast stations, meaning that they must sell him advertising time.  If he had such rights, the stations could not censor the content of the ads that the candidate decided to run (see our article here about the Communications Act's no censorship rule).  As Mr. Terry has promised to run some very graphic antiabortion ads featuring images of aborted fetuses, many stations were reluctant to run the ads, especially in the Super Bowl when families will be watching the big game.  The FCC decided that WMAQ-TV acted reasonably in denying Mr. Terry time in the Super Bowl for two reasons: (1) he had failed to make a substantial showing of his candidacy for the Democratic presidential nomination in Illinois, and (2) even if he had, he had no right to demand that his ads be placed in the Super Bowl.  Each of these prongs of the decision clarifies some issues in the law of political broadcasting that had been long-debated, but the first part of the decision leaves questions - important questions to which many stations want answers.

The first prong of the decision concluded that WMAQ-TV was justified in determining that Mr. Terry was not a bona fide candidate for the Democratic nomination for President in Illinois as he was not on the ballot there, and had not made a "substantial showing" that he was otherwise a candidate in the state (see our discussion of the requirements to be a legally qualified candidate, here).  The FCC found that the station did not need to be a private investigator and ferret out every instance of campaign activity that Mr. Terry had engaged in within the state to determine if his activity was substantial.  Instead, the station could rely on the information that Terry presented to it when he made his request.  That information essentially amounted to the fact that he had made appearances in two small towns in the state, and had some campaign literature (though there was no evidence that it was ever distributed in Illinois).  Based on those facts, the Commission denied the request - concluding that he had not engaged in campaign activities throughout a substantial portion of the state, as required by prior FCC precedent.  While this may answer the question in this case (and helped to clarify the law as to the showing that write-in candidates need to make before they can demand reasonable access to broadcast stations), it leaves several questions unanswered for stations that have or may receive Mr. Terry's request for airtime in other states where Mr. Terry is on the ballot.

The decision did not reach the question of whether Mr. Terry could be a qualified candidate in other states, including states where his name does appear on the ballot for the Democratic nomination (including Missouri and Oklahoma).    The FCC's decision cites a letter from the Democratic National Committee that concludes that Mr. Terry cannot be considered a bona fide Democratic candidate, as he had not shown that he had a history of participation in the Democratic Party, was dedicated to the party's success and would participate in the Democratic Convention in good faith.  But the FCC decision does not specifically state that the DNC letter ends the question of whether he is a bona fide candidate for the Democratic nomination.  In a case in the late 1990s involving Lyndon LaRouche, the FCC stated that the determination of a political party as to who was a qualified candidate for its nomination was binding on the FCC and would not be second-guessed.  Some have suggested that the LaRouche decision gives stations the ability to conclude based on the DNC letter that Mr. Terry is not a bona fide candidate, even where he is on the ballot.  But the LaRouche case arose after all the primaries were done, and the only debate was whether the candidate could run ads about the party convention.  The decision did not have to address the issue of what happens when a candidate is actually on the primary ballot in a state and demands time before the primary. As the FCC rules state that a place on the ballot is enough to be a legally qualified candidate, the FCC has left stations in states where Mr Terry is on the ballot in a precarious situation - can they rely on the Democratic Party letter and deny him advertising time, or simply because he paid his filing fee and secured a place on the ballot, is he then entitled to buy time?  Certainly, the latter option opens up the campaign process to all sorts of shenanigans, as anyone could pay the filing fee in states where there are not complicated ballot qualification processes, and then be able to demand time on broadcast stations - at the cheapest rates that such stations sell advertising time during the lowest unit rate windows 45 days before an election, and rely on the no censorship rule to advertise almost anything that they wanted to - bypassing many station's standards for advertising content.

The second part of the decision, that stations need not sell advertising time to candidates in the Super Bowl, is much more straightforward.  Stations have always known that candidates do not have the right to demand access to any specific ad placement, as long as the station offers the Federal candidate "reasonable" access.  The Commission went further here, relying on one of its policy statements on the political broadcasting rules that said that stations did not need to sell time to candidates in one-time programs of special significance where the stations would be unlikely to be able to provide equal opportunities to opposing candidates as required by law.  As the Super Bowl is the highest rated program in the TV year, were the station to sell some of its limited advertising inventory to Mr. Terry, how could it offer equal opportunities to President Obama's campaign, which would have 7 days to make an equal time demand? As the Super Bowl is unique, it would simply be impossible to offer comparable time to opposing candidates after-the-fact, as required by law.  This decision makes perfect sense as the Super Bowl's limited local advertising inventory provides all sorts of problems for stations - even without having to worry about political ads and the potential for equal opportunities.

This decision may not bring the Terry story to an end, as we'll have to see if more time is demanded on other stations in other states.  But it does illustrate some of the many practical and philosophical questions about the implementation and obligations put on stations by Sections 312 and 315 of the Communications Act.  First Amendment issues abound with forcing stations to sell time to candidates with whom they disagree and whose messages may be upsetting to many viewers. We'll see if these broader issues are further discussed as the still-young campaign season progresses. 

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Broadcast stations must charge political candidates the lowest unit rate that they charge any commercial advertiser for a comparable advertising spot during the 45 days before a primary and the 60 days before a general election.  Broadcasters need to remember that this applies to state and local races, as well as Federal campaigns, so those charges must be given to candidates for upcoming off-year November elections that are to be held in many states in less than a month.  As we've written before, while reasonable access does not apply to spots for state and local candidates, once a station decides to give these candidates access to the airwaves by selling time, most of the other political rules (lowest unit rates, equal opportunities, no censorship) apply.

With the Iowa caucus likely to take place on January 3, lowest unit rates will need to be afforded to presidential candidates by stations serving Iowa in mid-November, with stations serving New Hampshire, South Carolina, Nevada and Florida moving into a lowest unit charge window soon thereafter.  The FCC has held that candidates are entitled to lowest unit rates for caucuses as if they are primary elections.  And the rules apply to stations in neighboring states that have service into the states with early primaries and caucuses.  So many states are currently in lowest unit rate windows for local races, and others soon will be for the Presidential race.

Look for more information about the FCC's rules in our Political Broadcasting Guide.  I'll also be conducting a webinar summarizing the political broadcasting rules, featuring Bobby Baker, head of the FCC's political broadcasting office, on Wednesday - sponsored by the Michigan Association of Broadcasters in cooperation with the broadcast associations of at least 10 other states.  Get ready for the political broadcasting season by viewing our webinar or one of the other refresher courses sponsored by other associations in the coming months. 

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With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year's elections should not be distracting broadcasters from their current political broadcasting obligations.  I've received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 - including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules - including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate's spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees - those rates only become effective 45 days before the primaries - so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts - even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, 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.  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 (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program - and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political office

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Already, in many contested Congressional districts around the country, there are ad being run sponsored by various political action committees and other interest groups -targeting potential candidates for the House of Representatives or the Senate. 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.  And sometimes, as reportedly happened just recently, they ask callers to tell a Congressman to vote in a particular way on an issue where he has already voted in the way the ad requests.  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 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).

Finally, with the 2012 election fast approaching, stations should start planing for the election season.  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.  For other things that you should be thinking about in preparation for the election, check out our Political Broadcasting Guide. 

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In the waning days before the mid-term election, we have received many questions about the applicability of the political broadcasting rules to state and local candidates.  In particular, we have seen a number of letters from attorneys representing candidates who are running for state and local offices (everything from Governor to county commissioner or school board representative), who claim that an attack by an opposing candidate is unfounded and that a broadcast station must pull that ad from the air.  Just as is the case with Federal candidates, ads by state candidates cannot be censored by a station.  Thus, except in certain very unusual situations (where the language of the ad would violate some Federal criminal statute, e.g. if it is obscene), a station must air the ad as it was created.  It cannot be rejected because the station disagrees with the content or the tone, and it cannot be pulled even if the opposing candidate believes it to be defamatory.  Because the station cannot censor a candidate's ad, they have no liability for the content of the ad, i.e. they cannot be held responsible for any defamatory content that it may contain, even if they are on notice of that content.  They cannot censor an ad by a candidate or a candidate's authorized campaign committee - whether that candidate is running for a Federal, state or local office.

Note that, as we have written many times, this is in contrast to those situations where a candidate complains about an attack ad sponsored by a non-candidate group.  In those cases, the station does have the option of whether or not to run the ad (the no censorship provisions of Section 315 of the Communications Act do not apply).  Thus, if the station is on notice that there is potentially defamatory content in an ad, it must do some investigation of that ad, and make an informed decision about whether or not to allow the ad to continue to run.  If it does not investigate, and continues to run an ad that is defamatory after receiving notice of that fact, in some extreme cases, it could face liability for that defamatory content.

Most of the other rules governing political broadcasting apply to state candidates as well as Federal candidates.  The requirement that candidate be charged lowest unit rates for the class of advertising time that the candidate purchases in the 60 days before the general election applies with equal force to state and local candidates as it does to Federal candidates.  And equal opportunities requires that a station sell comparable amounts of advertising time to competing candidates, or give free time to one candidate if their opponent appeared on a non-exempt program on the station, also applies to state and local as well as Federal candidates.  Public inspection file obligations - that a station put in its political file information about the amount of political time purchased by a candidate, the class of time sold, the price of the spots, and the schedule that will run - apply to state and local as well as to Federal candidates.

The principal political rule that does not apply to state and local candidates is the "reasonable access" provisions of the rules.  That is to say that stations need not sell time to candidate for all local races.  They can pick and choose in which races they will sell time, or they can restrict candidates for a specific race to buying time in particular dayparts in which the station has more inventory.  But once the decision to sell to candidate for a particular office is made, the other rules mentioned above apply.

More information about the political advertising rules can be found in the Davis Wright Tremaine Political Broadcasting Guide.

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The 2010 political broadcasting season is off to a fast start, with a controversy already erupting in connection with the Illinois Senate race to fill the seat once held by President Obama.  Illinois has one of the first primaries in the nation for the 2010 election, to be held on February 2, 2010.  In that race, Andy Martin, one of the Republican candidates for the open Senate seat that will be vacated by Senator Burris, is reportedly running ads on radio in Illinois stating that the front-runner for the Republican nomination, Mark Kirk, is rumored to be gay, and has many gay staffers, and asking that Kirk clear up questions about his sexuality.  Many stations in Illinois have expressed concern about running an ad from a fringe candidate in the race that makes such a controversial allegation.  Stations that are concerned need to remember that an ad by a legally qualified candidate cannot be censored once a station has agreed to sell time to the candidate.  As we've written previously, if the attacking candidate is legally qualified for a place on the primary ballot, as news reports indicate that he is in the Illinois case, then stations cannot censor that ad - and have to run it with these attacks on the front-running candidate, even if the stations do not like the message. 

The Chicago Tribune story about this controversy quotes me as stating that stations can censor a candidate ad if the ad violates a Federal felony statute.  That caveat was added to FCC policy when it was feared that Larry Flint was going to run for Federal political office and run campaign ads that might test the limits of obscenity laws.  More importantly, however, stations should recognize that, because they cannot censor an ad by a candidate's authorized campaign, the station itself has no liability for the contents of that ad.  The candidate may be sued for libel or defamation (which has occurred in other cases), but the station itself should be immune from liability as it has no choice but to run the ad or violate Federal election laws.  Stations do, however, have the ability to put disclaimers on ads - stating that they are political messages that cannot be censored and do not necessarily reflect the views of the station, but these disclaimers should be applied to all candidates for the same race equally.

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. 

 

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On November 10, Davis Wright Tremaine's David Oxenford and Bobby Baker, the head of the FCC's Office of Political Broadcasting, conducted a webinar on the FCC's political broadcasting rules and policies.  The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states.  Topics discussed included reasonable access, equal opportunities, lowest unit charges, and political sponsorship identification and public file rules. 

Seminar participants were provided with Davis Wright Tremaine's Political Broadcasting Guide, available here.  The PowerPoint presentation used in the seminar is available here.

 

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In two races for the US Senate, candidates have filed defamation lawsuits against their opponents charging that attack ads go over the line from political argument to actionable falsehoods.  However these suits ultimately play out, they demonstrate the premise that we've written about before, that broadcast stations are prohibited by FCC rules and the Communications Act from censoring the content of a candidate's ad, and because they cannot censor the content of a candidate's ad (or refuse to run a candidate's ad because of the content of that ad), stations are immune from liability that might otherwise arise from that content.  But the candidates being attacked can sue their opponents for the contents of those ads, and that is just what has happened in the North Carolina and Minnesota Senate races.

In North Carolina, according to press reports, Democratic candidate Kay Hagan has filed suit against the campaign of Elizabeth Dole for a commercial that accused Hagan of being associated with a group called Godless Americans - an ad ending with a woman's voice that some interpreted as being that of Hagan (when it was in fact not) saying "there is no God."  In Minnesota, Senator Norm Coleman has reportedly filed a lawsuit against Al Franken's campaign claiming that Franken campaign ads improperly claimed that Coleman was rated one of the four most corrupt Senators and that he was getting an improperly financed apartment in Washington DC. 

Defamation is very difficult to prove, especially when the statements are made against public figures, such as political candidates.  A plaintiff must prove that the statement that was made is false, and that the person making it either knew that it was false, or made it with reckless disregard of the truth of the statement (what the Supreme Court has called the "malice" standard).  As it is so difficult to prove malice in a political context, the filing of lawsuits such as these are rare, and they are seldom if ever prosecuted through to any sort of judgment.

If these lawsuits are so hard to prove, why bring them?  In some cases, where the conduct really is outrageous, there may be grounds for a recovery.  In other cases, the suit can be brought to scare media outlets into not running the ad (even though a broadcast station should not refuse to air an ad based on its content if the ad is bought by the candidate's authorized committee) or to delay the airing of the commercial while the broadcast station considers whether or not it should be run.  In these waning days of an election, having an ad run a few fewer times may be a strategic victory. 

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Each election season brings new issues for broadcasters. In recent years, broadcasters are more and more frequently dealing with requests for political uses of the a station’s website. For the most part, unlike a broadcast station that is subject to the full panoply of the FCC’s political rules, those rules largely don’t apply to station websites (some FEC rules, will not be discussed here, may apply to websites). About the only informal pronouncement to come out of the FCC on the use of a station website is that, if the website is sold to one candidate as part of a package with broadcast spot time, then the same offer should be made to competitors of the candidate. This is not an application of FCC’s the rules to the Internet, but instead just a restatement of a long-standing FCC policy that, if one advertiser gets extra benefits that come with the purchase of ad time, and those benefits would be of value to a candidate, they should also be offered to the candidate, and that equal opportunities demands that all candidates for the same office be treated alike.

While the freedom from reasonable access, lowest unit rates, and equal time may seem like a boon to broadcasters, that freedom comes with a price. For instance, the “no censorship rule,” which forbids a station from editing the content of a candidate’s spot or rejecting that spot based on its content (unless that spot violates a Federal felony statute), does not apply to Internet spots. Because candidate spots broadcast on a station cannot be censored, the station has no liability for the content of those spots. So the station is immune for libel and slander, or copyright violations, or other sources of potential civil liability for the content of a candidate’s broadcast spots. But since these spots can be censored or rejected on the station’s website, a station could have theoretical liability for the content of the Internet spot even though the broadcaster could run the exact same spot on the air without fear of any liability. For instance, just recently, according to the Los Angeles Times, CBS asked You Tube to remove a McCain spot attacking Senator Obama as the spot used a copyrighted clip of a Katie Couric commentary without permission. Had that spot been running on a broadcast station, the station would have been forbidden from pulling the spot (and would have no liability for the copyright violation).

Similar liability concerns do arise for broadcasters in connection with attack ads run by third-party groups – groups not “authorized” by the candidates. As broadcast stations are under no obligation to run ads by third party groups and have the full right to reject them based on their content, like an Internet spot, a station has potential liability for defamation or other civil liabilities that arise from the content of an ad that airs.  We recently wrote about the considerations that a broadcaster should use to evaluate those spots when the spots are challenged, here.  A similar process should be used to evaluate Internet spots - whether or not authorized by a candidate.
 

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