Broadcast Law Blog : Broadcast Lawyer & Attorney : Davis Wright Tremaine Law Firm : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

While most of the FCC's political broadcasting rules have remain unchanged for almost 20 years, each year there are a few new wrinkles that arise, and seemingly a few misconceptions that make the rounds among advertising agencies that work with political candidates.  One such misconception that seems to be circulating this year is that an ad for a state or local political candidate does not need to have their voice or picture to be a "use" under FCC rules.  Only "uses" are entitled to lowest unit rates and subject to the no censorship provisions.  For some reason, agencies in several states have tried to convince broadcasters that, as long as a spot has a sponsorship identification at the end (and, for television, a textual sponsorship identification 4% of screen height for 4 seconds), that spot is a "use."  But that is not correct.  A "use" requires that the recognizable voice or picture of a candidate be in the spot - and that is true even for spots for state and local candidates.  Some advertisers may be confused by the change in Federal laws (now itself almost a decade old) that required that Federal candidates identify themselves in their ads and personally state that they approved the message of the ad,  Perhaps some of the advertisers think that, because the law for Federal candidate is so detailed, and because it does not specifically cover state candidates (though several state laws now have imposed the same obligation on state and local candidates in their states), there is no requirement at all for state and local candidates to appear in their ads.  But they are not correct - for a spot to be a use, a candidate him or herself must have a recognizable voice or image in that ad.

While it is not illegal for a station to run a state or local candidate's ad when the ad does not have a candidates voice in it, there are important ramifications for the station if the spot is not a "use".  First, without the candidate's voice or picture, the ad is not entitled to lowest unit rates.  There has been some controversy, not settled by the Federal Election Commission and perhaps subject to interpretations under state election commission rules, about whether a station that charges a candidate lowest unit rates for a spot not entitled to such rates may be making a corporate campaign contribution to that candidate, which is prohibited under Federal law and in most states.  Most importantly for the stations, if the spot does not have the candidates voice or picture in it, the spot is not covered by the 'No censorship" provision of Section 315 of the Communications Act.  That provision prohibits a station from rejecting a candidate's ad based on its content.  But, because the station can't reject the ad based on its content, the station has no liability for the contents of the ad.  Conversely, if the ad does not have the appearance by the candidate in it, then the station is free to reject it based on its content, and thus the station could theoretically have liability for the content of the ad.  As we approach a heated election season where stations don't want the obligation to check the veracity of every claim made by one candidate about an opposing candidate in an attack ad, stations should be careful to insure that spots purchased by candidates are in fact uses, containing the recognizable voice or picture of the candidate - even for state and local candidates. 

We have written about this issue of potential liability for the content of spots many times before, most recently in connection with ads by non-candidate groups that are now allowed from corporations and labor unions following the Supreme Court's Citizens United decision.  Our most recent article on that case can be found here.  For more information about the FCC's laws and policies regarding political broadcasting, check out the Davis Wright Tremaine Political Broadcasting Guide, available here. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In reaction to the Citizens United Supreme Court decision invalidating restrictions on corporate spending on advertising and other messages explicitly endorsing or attacking political candidates (about which we wrote here), new legislation, called the DISCLOSE Act,  has just been introduced in both houses of Congress seeking to mitigate the perceived impact of the Court's decision.  While the announced goal of the legislation is aimed at disclosure of the individuals and companies who are trying to impact the political process, the draft legislation, if adopted would have significant impact on broadcasters and cable companies, including potentially extending lowest unit rates and reasonable access to Federal political party's campaign committees (and not just the candidates themselves).  The draft legislation also proposes lower Lowest Unit Rates in political races where there are significant independent expenditures, more disclosure by broadcasters through an on-line political file, and even mandates for audits by the FCC of the rates charged by television stations to political candidates.  The language could also be read as an expansion of the current applicability of the political rules to cable television - applying reasonable access to cable systems and lowest unit rates and equal opportunities to cable networks.  As Congressional leaders are proposing to move this legislation quickly (with votes before July 4) so that it can be in place for the coming Congressional elections, broadcasters and cable companies need to carefully consider the proposals so that they can be discussed with their Congressional representatives before the bills are voted on by Congress.

While much of the bill is intended to force disclosure of those sponsoring ads and otherwise trying to influence the political process, the portions of the bill that amend provisions of the Communications Act include the following:

• An extension of Reasonable Access to require that broadcasters give reasonable access not just to Federal political candidates, but also to Federal political parties and their campaign committees.  In recent years where the Democratic and Republican Congressional Campaign Committees have been big buyers of broadcast time.  The extension of reasonable access to these groups could put even greater demands on broadcast advertising time on stations in markets with hot races, as stations could not refuse to provide access to "all classes of time and all dayparts", as required by the reasonable access rules.  This could crowd out other advertisers, and even make it harder for ads for state elections (as state and local candidates have no reasonable access rights) in states where there are hotly contested races.
• Extends the Reasonable Access requirements to require reasonable access to "reasonable amounts of time purchased at lowest unit rates."  The purpose of this change is not clear, as all political time must be sold to candidates at lowest unit rates in the 60 days before a general election and the 45 days before a primary. 
• Extends the requirement for Lowest Unit Rates to Federal political parties and their campaign committees.  Currently, the lowest unit charges apply only to the candidate's campaign committees, not to political parties.  Under the proposed language, LUC rates would also apply to the parties, and to groups like the Republican and Democratic National Campaign Committees
• Extends the "no censorship" provisions to Federal political parties and their campaign committees.  This change may be a positive for broadcasters.  As we have written before, a broadcast station cannot censor a candidate's ad.  But, as they have no power to reject a candidate's ad based on its contents, they have no liability should that ad contain material that could potentially be defamatory or otherwise subject the station to liability.  This proposed language would extend the no censorship rule to cover ads from Federal political parties, so that stations would not have liability for those ads either.  As many of the hardest hitting attack ads often come from these committees, if this legislation were to pass, stations would not have to worry about evaluating the truth or falsity of the committee's ads, as they would have no liability for the contents of the ads as they would be forbidden by law from rejecting the ads based on their contents.
• Provides for a lower Lowest Unit Rate in races where there are independent expenditures by any group of more than $50,000.  If a corporation or other group spends $50,000 in any political race, then all stations would be required to charge all candidates in the race the lowest charge made for "the same amount of time in the last 180 days" - not just the lowest charge for the same class of time as is then currently running on the station.  First, this would force stations to look back 6 months to determine their lowest unit rates.  For a primary election in June or July, rates in the doldrums of January or February could set the June political rates.  Moreover, the legislation does not state that it would look at the lowest rate for the same "class" of time over the previous 180 days, but instead it talks only about the same "amount" of time.  It is unclear if this is an intentional attempt to make stations sell prime time spots at overnight rates, but the current language of the bill seems to avoid the traditional distinctions on spots being sold based on their class.
• Forbids the preemption of advertising by a legally qualified candidate or national committee except for unforeseen circumstances.  This provision may well be intended to force stations to sell candidates advertising at their lowest nonpreemptible rates, and then treat the spots as they would much more expensive non-preemptible fixed position spots
• Requires the FCC to conduct random audits during the 45 days before a primary and the 60 days before a general election.  Audits would have to be conducted as follows: 
  • 6 of the Top 50 TV markets
  • 3 of the markets 51-100
  • 3 of the markets rates 101-150
  • 3 markets below 150
  • Audits would be required of the 3 largest networks, 1 independent TV network, 1 cable network, 1 provider of satellite services, and 1 radio network.  The language here, too, seems odd, as the requirements for audits are for "networks" of broadcast, cable and radio stations, not for local operators, and for an "independent television network" which would seem to be an inherently contradictory term - if a station is truly an independent, it is not affiliated with a network, so how can the FCC audit an "independent television network"?  It is unclear of whether this provision is requiring audits of the networks themselves, or of affiliates of the networks in the markets in which audits must be conducted. 
• Requirements that stations keep on their website information about all requests for the purchase of broadcast time by candidates, political parties or other independent political groups. Right now, the rules specifically do not require that political files be kept online.

There is also a provision changing the definition section of the Section 315 of the Communications Act which sets out the lowest unit charge provisions of the Act, along with no censorship and equal opportunities, which currently apply to broadcasters and the operators of cable television systems.  The proposed changes would add to the definition of a broadcast stations the phrase "and a provider of cable or satellite television service", making clear that all such services are included in the lowest unit rate provisions of the rules - which might be read as an attempt to include cable television networks within the scope of the rules.  In fact, as provided above, the law requires an audit of a cable network, implying that they will be subject to the rules if this law is adopted.  The law also adds a reasonable access provision to Section 315, which would seem to extend the concept of reasonable access to cable as well as to broadcast. The clear intent is unstated, but given the definitional language used in the language of the bill, and the fact that this new provision dealing with reasonable access is added to Section 315 which applies to cable (as contrasted to the Section 312 reasonable access provisions which do not), the extension of reasonable access to cable is seemingly the impact of this language.

The bill also extends the "stand by your ad" provisions of the Federal Election law to ads by third party groups, so a spokesman for any third party group buying ad time in connection with a political campaign will be forced to appear on the ad and take "credit" for that ad.  Disclosure of the Top 5 contributors to non-candidate political committees would also be required by this bill.

It is clear that the DISCLOSE Act could fundamentally change the way that broadcasters and cable companies deal with political advertising during election periods.  With the push to decrease rates and increase access to the airwaves, there could well be a a significant reaction by those being regulated.  Given the more expansive reading of First Amendment rights from the Supreme Court in the Citizens United case which spurred this proposed legislation, it would be quite possible that some broadcast or cable group could choose to challenge the mandatory access rights given to political parties under these rules, or the very cheap rates for political ads that could be read into the provisions of this bill.  There will be much to debate on this legislation, and the language of the bill could very well change as it makes its way through the Congressional processes.  But there are many important issues to consider - and broadcasters need to be aware of their possible impact. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

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. 

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

As the dates for the first Presidential primaries draw near, more and more stories appear in the press about attack ads growing in importance.  These ads are coming both from the candidates themselves trying to draw distinctions with their opponents, and from third party, supposedly independent, groups either attacking or supporting one of the candidates.  See, for instance, the recent story in the Washington Post on the increase in third party ads.  These ads have raised political issues on the campaign trail as to whether negative campaigns work, and as to how independent of the candidates the third party expenditures really are.  They also raise legal issues for broadcasters.  Whenever there are attack ads that are run on a broadcast station, there are complaints from the candidate being attacked about how unfair the criticism is.  Broadcasters have to deal with these complaints, and the sponsor of the ads makes a huge difference in the broadcaster's responsibilities to check the truth of the statements made.    As we explain in our Political Broadcasting Guide, broadcasters may not censor the content of a candidate ad, and thus are exempt from any liability for the content of that ad.  But attacks contained in third party ads may require the broadcaster to do some investigation into the claims being made to make sure that they avoid legal liabilities.

For ads run by a candidate or his or her authorized committee, the Communications Act forbids a broadcaster (or cable company that chooses to sell time to political candidates) from censoring the candidate's message.    Because of the no censorship rule, the Courts have ruled that broadcasters are immune from any sort of liability for defamation that may arise from the content of the ad.  Thus, broadcasters cannot reject a candidate's message based on its content (with the possible exception of cases where that content would violate a criminal law, as opposed to just creating some civil liability), and need not take any action in response to a complaint by an opposing candidate that the ad contains incorrect or distorted information.

Attack ads by non-candidate groups, such as unions, advocacy groups, party senatorial or Congressional campaign committees, and other political action committees, are treated much differently.  Because the "no censorship" rule does not apply, and because stations can make the decision whether or not to accept these ads in the first instance, if the ad contains content that could create liability, broadcasters should beware.  Broadcasters could be liable for disseminating claims, especially untrue claims, made in such ads.  So how are broadcasters supposed to deal with these ads?  Do they need to research the content of every ad?  Some ideas from our Political Guide on these questions follow:

What if I get a complaint about the content of a political ad that is bought by a group other than a candidate’s campaign committee? Can I refuse the ad based on its contents?

The “no censorship” rules apply only to ads by candidates and their authorized campaign committees. Thus, the sale by the stations of an ad to a third-party group is purely voluntary. If you get a complaint about a third-party ad, you can pull that ad. In fact, you do not need to run any third-party ads if you do not want to. 

Can I have liability for running an attack ad from a third-party group?

Yes. Because a station has the right to decide whether or not it will run an ad, it can be held liable for the content of that ad. If an ad contains an attack on a candidate that the station knows to be false, or the station is told that the ad is false and the station continues to broadcast the ad and does nothing to investigate whether the ad is in fact false, liability to the station could arise if the claims are in fact false.

How do I know whether or not a third-party ad is true or not?

The station must do a reasonable review of an ad – especially if the truth of the ad has been challenged. If you receive a challenge to the truth of a third-party ad, ask the committee or organization that is sponsoring the ad for information backing up its claims. Review that information for accuracy and reliability, and check with counsel to assess the sufficiency of the backing material to avoid liability for defamation or other torts. It is best to stop running the ad while doing this investigation.

Essentially, if broadcasters receive a challenge to the content of a third-party attack ad, they have a duty to research that content to determine if it is true.  If they do not, and the claim being made is in fact false, they face potential liability for running a falsehood with "malice", e.g. either knowing that it is untrue or recklessly disregarding the truth of the ad.  Most sophisticated political advertisers will have substantiation available for the claims that they have made.  However, even after reviewing the substantiation, these issues are often close calls, and different companies have different tolerance for the legal risk that these ads entail. Thus, stations should tread carefully in dealing with these ads, and consult legal counsel when issues arise.

• Email This
• Print
• Comments
• Share Link