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Last week, the FCC Commissioners appeared before Congress for an "oversight hearing." In such hearings, Congressmen often raise many different issues that may be on their mind – everything from issues about the administration of the FCC to detailed policy issues. In the hearing before the Senate Commerce Committee last week, one issue arose that broadcasters should monitor carefully to see what develops. During the course of the hearing, the FCC Commissioners were asked why the FCC had not taken steps to make sure that the sponsors of political advertisements were disclosed on the air. While the FCC rules already require disclosure of the sponsor of any ad, and enhanced disclosure for political ads or other "issue ads" on matters of public importance, what were the Senators after in this line of inquiry? 

It appears that the Senators were asking the FCC to ask for more information about the source of the money used by political action groups to buy television advertising time on election issues - including the money used by PACs, SuperPACs and the other types of advocacy groups that spent so much money in the last election cycle, and are already beginning to run ads in states that have Senate races that are likely to be hotly contested in 2014. What do the FCC rules currently require?

As we have written before, any issue ad – whether it be on a Federal or state or local issue – requires the identification of the sponsoring group on the commercial. In addition, the FCC rules require that stations keep, in their public inspection file, a list of the principal officers or directors of the sponsoring organization. While the FCC has never required that stations be an investigatory arm of the government, in one case, the FCC did require a station to include on the advertisement what was considered the "true" sponsor of an ad campaign against an anti-smoking ballot issue, but that was only when it was clear that the group that was originally identified as the sponsor was a mere sham, with all of the officers and directors nothing more than lobbyists or paid employees of the tobacco company that had provided all the funding for the group. This ruling has never been extended to groups that are more broadly organized with local citizens acting as the governing board.

On Federal issues (any issue dealing with a Federal election or Federal issue - such as a matter to be decided by Congress or any DC administrative agency), the FCC rules require more – including all of the information that the FCC requires of a candidate ad. This would include the full schedule for the campaign and the price at which the spots were purchased. See our summary of the requirements for third-party ads here and here.

So what are some in Congress seeking? They reportedly want the FCC to require that stations collect more information on the sponsors of these ads – including not only the identification of the governing board of these groups, but also the source of funding for the organizations. While some of the Commissioners suggested that this suggestion would be worth reviewing, Commissioner McDowell questioned whether this would be a proper avenue for the FCC to pursue (or to force broadcasters to pursue) when other agencies like the Federal Election Commission are more directly charged with dealing with this kind of issue. It would seem to us that the expertise for mandating this kind of disclosure is not one within the core competency of the FCC. But, we will have to wait to see if this issue, which has been raised from time to time before (see our summary of the DISCLOSE Act, here and here, that was proposed and died in a previous Congress), has any more legs this time around than it has had in past.

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Does a broadcast station need to book a political ad buy for an agency purporting to be representing a candidate, but refusing to reveal who that candidate is? We’ve recently received this question from a number of broadcast stations in a number of states, as agencies seemingly are jockeying to tie up valuable commercial time in advance of what is likely to be a hotly contested election in November. This seems to be happening particularly with stations that have coverage areas that include parts of certain “swing states” in the Presidential election, or in states with crucial Congressional or Senatorial elections. It seems to us that, unless and until you know that there is a real candidate, there is no obligation for a station to book time for a hypothetical candidate or candidate to be named later.

Booking time for an unknown candidate raises numerous issues for a station. How can a station account for the sale of that time in its political file? If it doesn’t know who the candidate is, it can’t place the required information (which includes the candidate’s name) into the political file. Booking time for a political candidate gives rise to equal opportunities obligations, even outside the 45 and 60 days political windows. How can you determine to whom you owe equal time when the station itself doesn’t even know who the candidate is? And, if the agency even refuses to reveal if it is a Federal or state campaign for which it plans to buy time, making time available to an agency on behalf of an unknown candidate that turns out to be a state candidate may cause the station, through the application of equal opportunities, to have to sell time for a race to which it did not intend to provide access, or to open up dayparts to that state race when it did not intend to offer those dayparts to state candidates. In fact, without knowing the candidate, how can the station assess whether the candidate is legally qualified, or that the time is being purchased by an authorized candidate committee? 

A more difficult question involves giving out rates to agencies that don’t reveal the name of the candidate on whose behalf they are acting. Many stations may be willing to send out their political rate card and disclosure statement to an agency, even if they don’t know who the candidate is, in order to curry favor with the agency when the time actually comes for that agency to buy spots. Other stations may be more reluctant to do so as they don’t want to be sending detailed information about their least expensive rates to just anyone.  Of course, individual lowest unit rates may be available in the station’s public file (and soon, for TV stations, online). But that will reveal only specific rates for specific buys, not all rates for all of the station’s principal classes and dayparts as will be revealed in a full disclosure statement. The Commission has never declared the political rate card or a written political disclosure statement to be public documents that have to be provided to anyone who asks. In fact, the Commission has never even required that they be in writing – though most stations follow good practice and do put them in writing to ensure that they make the same disclosure to all candidates who ask, as required by the Commission.

Neither of these is an easy question, and these thoughts are just for stations to ponder in making decisions on these types of early political season calls. Stations should always check with their own counsel on questions like this – especially if faced with an insistent buyer who refuses to identify the candidate for whom they are buying.

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In recent days we have seen political action committees (PACs) claiming they are "prohibited" from running political ads in primary states due to "new rules" regarding "electioneering communications."  As explained below, these claims are incorrect.  What they are really doing is trying to avoid the need to reveal the identity of their contributors, following a US District Court decision in March.

Under Federal Election law, an "electioneering communication" is a broadcast, cable or satellite communication that refers to a clearly identified candidate for federal office within 30 days of a primary or 60 days of an election, targeted to 50,000 or more people in the state or district the candidate seeks to represent. For President and Vice Presidential candidates, an "electioneering communication" is one that can be received by 50,000 or more people within 30 days of a state primary or the nominating convention.

By federal statute, sponsors of "electioneering communications" must disclose the names and addresses of each donor who contributed $1000 or more to the sponsoring organization. This is is the provision that led to the US District Court decision at issue.

The Federal Election Commission (FEC) enacted a rule requiring disclosure of donors whose donation was made "for the purpose of furthering electioneering communications."  Maryland Rep. Chris Van Hollen challenged this rule on grounds that it created a loophole in the law.  According to Van Hollen, fewer than 10% of the contributors to electioneering communications in 2010 were disclosed to the FEC.

The US District Court agreed with Van Hollen, holding that the statute requires disclosure of ALL contributors of $1000 or more to organizations placing "electioneering communications," even if the contributions were not made for the specific purpose of funding the electioneering communication.  The number of contributors that would need to be disclosed under this ruling could be quite high, particularly since the US Supreme Court allowed corporations and unions to fund independent electioneering communications in its landmark 2009 Citizens United case discussed here.

 So, while some PACs erroneously claim they are "prohibited" from running electioneering communications due to a recent "FCC" ruling, the truth is that they do not want to subject themselves to the broad disclosure requirements established in the Van Hollen case.  The case is on appeal to the DC Circuit, so we should soon know whether the FEC or the US District Court was right in their respective interpretations of the disclosure statute.

In the meantime, "electioneering communications" can be avoided by not referring to a specific candidate, by avoiding states where primaries are to occur within 30 days or by communicating the message to fewer than 50,000 people.  While these ads will still be considered "independent expenditures" that have their own FEC reporting requirements, they are not nearly as burdensome as those recently imposed by the court on "electioneering communications."

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Failing to meet the obligations set out under the law for required sponsorship identification on Federal political ads could, theoretically, cost candidates significant amounts of money – if stations decide to hold the candidates to the letter of the law. Under the terms of the Bipartisan Campaign Reform Act (“BCRA”), Federal candidates airing television commercials that refer to a competing candidate must specifically state, in the candidate’s own voice, that he or she has approved the ad, while a full-screen image of the candidate appears on the screen. In addition, the name of the sponsoring candidate’s campaign committee must appear in text on the screen for at least 4 seconds at 4 percent of screen height, with sufficient color contrast to make the text readable. If the proper identification is not contained in an ad, the candidates forfeit their right to lowest unit rates for the entire pre-election period (45 days before a primary or 60 days before an election), even with respect to future ads that comply with the rules. In recent days, representatives of Democratic Congressional candidates have reportedly filed complaints that argue that Republican competitors have not complied with the rules in several cases, as their written disclosures did not air for the full four seconds. The challengers argue that television stations must take away LUR for these candidates. While the statute say that the candidates forfeit their rights to such rates, the law is unclear as to whether stations are obligated to deny that rate to candidates after the right has been forfeited – and these cases could resolve this issue.

Television stations undeniably have the power to charge full rates to candidates whose ads have not complied with the requirements of the campaign statute. However, many stations have been reluctant to do so for minor infractions such as the ones identified in this complaint. Why wouldn’t television stations want to charge more money? For several reasons. First, denying one candidate lowest unit rates will no doubt trigger a fly-specking of every commercial by the competitor who filed the complaint against the first candidate, to try to trigger a forfeiture of the second candidate's right to Lowest Unit Rates, and adjudicating such complaints will no doubt make the station’s political sales process much more difficult and costly to administer. In addition, there is the question of whether, for a minor violation, a station really wants to give the other candidate a political advantage – especially if the candidate who gets charged more more wins the election and gets to vote on laws that may effect business in the future. But can stations legally continue to charge the lowest unit rate even when a candidate has not complied with the legal requirements for sponsorship identification?

The issue is really whether, by charging candidates the lowest unit rates when they have forfeited their rights to that rate, the stations are giving the candidates illegal campaign contributions – i.e. financial benefits from the station's corporate owners in the form of discounted rates. This is not the first time the issue has come up – in several past elections it has been brought to the Federal Election Commission who has, each time, tied in a 3-3 vote as to whether the practice was prohibited. Thus, the issue has remained unsettled. Television stations, and the candidates who have received the discounts, have argued that the candidates are not getting something at below market rates as, by definition, the LUR is the rate charged to the station’s best commercial customer.  Thus, that rate has been charged commercially and hence is not a “contribution” to the candidate, but is a service given for value. Those arguing on the other side contend that, in practice, candidates get benefits by being allowed to buy these spots at rates that most commercial clients could not obtain, and thus client’s are in fact getting a benefit.

 

For more information on the sponsorship identification requirements for political ads, see our Political Broadcasting Guide.  And watch these pages to see if the issues are resolved in time for this election, or if they will continue to be unresolved even if they reach the FEC once again.

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