Posted on March 20, 2010 by David Oxenford

Reminders About Rates to Be Charged to Candidates At Communications Law Seminar

On March 16, David Oxenford spoke at a Continuing Legal Education Seminar on the FCC’s Political Broadcasting rules. The panel, sponsored by the Federal Communications Bar Association, included another attorney in private practice, an attorney from the NAB, Bobby Baker (the head of the FCC’s Political Broadcasting office), and a media time buyer for political candidates. The panel not only discussed the basic rules governing political advertising on broadcast stations, but also dealt with topics including the impact of the Citizen’s United case on FCC rules (see our post here on that topic), issues of what to do if a political spot contains objectionable content, and how stations should deal with complaints from candidates about the content of political ads. Many of these topics and others are discussed in the Davis Wright Tremaine Political Broadcasting Guide, available here.  The discussion also provided a useful reminder on certain aspects of the law regarding how much broadcast stations can charge political candidates for the purchase of advertising time on broadcast stations.

At the session, the political time buyer complained that broadcast stations were trying to charge political candidates premium prices for purchases of advertising time outside the “political window.” During the window, 45 days before a primary and 60 days before a general election, stations are required to charge candidates the “lowest unit rate” charged for any spot of the same class of time run on the broadcast station. Outside the window, broadcasters do not have to charge lowest unit rates but, as the buyer reminded the audience, they do still need to charge “comparable rates” to what the station charges advertisers for the same type of purchase. So, while candidates do not get volume discounts without buying in volume (as they do during the window), if they do buy in the required volume, they should get the same discount that other advertisers get. Stations should not “mark up” the rates charged to political candidates outside of the window.

Another question that came up dealt with the sale of advertising time on election day, whether it be the day of the primary or the general election.  As the law requires that stations charge the lowest unit rate for the 45 days before the primary and the 60 days before the general election, what do stations charge for time sold on election day?  After significant discussion, it was agreed that stations should charge the lowest unit rate on election day as well as during the political window before the election.  However, even for Federal candidates, there is no right of access to political time on election day.  That is, stations can decide themselves whether or not to sell time on election day.  But, if they do, it should be at lowest unit charge.

Watch our Blog as we highlight other election issues that arise during this election season. 
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Posted on October 9, 2008 by David Oxenford

Obama Buys A Half Hour of Time on Broadcast Networks - What FCC Legal Issues are Involved?

Press Reports (such as this one) have stated that the Obama campaign has purchased half-hour blocks of time on at least NBC and CBS to broadcast a political infomercial to be aired at 8 PM Eastern time on October 29.  Some reports indicate that other broadcast and cable networks will also be broadcasting the same program.  Did the networks have to sell him the time?  In fact, they probably did.  Under FCC rules, Federal political candidates have a right of reasonable access to "all classes" of time sold by the station in all dayparts.  This includes a right to program length time, a right that was affirmed by the US Court of Appeals when the networks did not want to sell Jimmy Carter a program length commercial to announce the launch of his reelection bid.  Because of this right, the networks often had to sell Lyndon LaRouche half hour blocks of time to promote his perennial candidacy for President. 

How often do networks (or stations) have to make such time available?  They only have the right to be "reasonable." While what is reasonable has not been defined, the amount of time that will be requested will probably be limited by the cost of such time.  Even were it not limited by cost, the FCC would probably not require that a broadcaster sell such a prime time block more than once or twice during the course of an election - and given the late stage that we are in the current election, it seems unlikely that more than one such request would have to be honored during these last few weeks of the campaign.  Stations do not need to give candidates the exact time that they requested - so the rumored reluctance of Fox to sell this precise time to the Obama campaign because it might conflict with the World Series would probably be reasonable - if they offered him the opportunity to buy a half hour block at some other comparable time.   

Sometimes, networks or stations may not have problems with the sale of such time.  Remember the repeated appearances of Ross Perot, complete with flip charts, during his 1992 campaign?  If a station has not sold half hour blocks of time in that daypart during the election period, there is no lowest unit rate that applies to such sale.  The FCC has said that the station can set a reasonable fee for the time, plus the station can factor in an increase based on the lost revenue of the subsequent time period because of the likely loss of audience due to the tune-out factor that may result from viewers not interested in the political message.

Local stations are under no obligation (other than perhaps their contractual obligations to the network) to air these half hour political commercials.  That may be one of the reasons that we no longer see the LaRouche infomercials, as many local stations decided to preempt those programs.

Equal time of course applies to these purchases.  If a half hour is sold to one candidate, then other candidates need to be able to buy such a block.  For Federal candidates, this does not make much difference, as they have their own reasonable access rights.  But should a station choose to sell a half hour block to one state or local candidate (it would have no reasonable access requirement to do so), it would have to sell blocks to other candidates for the same office who can afford it and who could request it within 7 days of the first candidate's use.

Cable networks have no reasonable access requirement, so they do not need to sell time at all to Federal candidates, much less program length time.  There has also been some academic debate as to whether network cable is subject to the equal time rules (see our post here).  But, given rumbles heard out of the FCC when Fred Thompson started his campaign, cable networks should consider carefully the equal opportunities obligations that could apply in such situations.

All in all, lots of issues for a seemingly simple half hour political commercial.

 
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