Posted on January 3, 2013 by David Oxenford

Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air - Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

A recent article in the Chicago Tribune demonstrates that the FCC's Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as "Equal Time") to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races - such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the "political window", equal opportunities apply. 

This situation also highlights the problems that stations can have when on-air employees decide to enter politics. We've written about options that stations have in that situation, but, if the opposing candidates are numerous or unwilling to waive their equal opportunities claims in exchange for some limited amount of airtime, then the stations are left with the choices of either having to take the employee-candidate off the air, or to provide minute-for-minute equal time to the opposing candidates – for free, as the employee-candidate did not pay for access to the airwaves. And this equal time requirement applies even if the employee-candidate never mentions his or her candidacy on the air.

 

Even though this is a political off-year, there are a significant number of state and local races that will occur, including a number of high-profile mayoral races in big cities across the country, governor's races in New Jersey and Virginia, and vacancies in a number of US Senate seats. Thus, stations need to remember their political broadcasting obligations – just when many may have thought that they could relax after this past November's elections.
Tags: , , , , ,
Posted on January 13, 2010 by David Oxenford

Broadcaster Calendar for 2010 - Important Regulatory Dates to Remember

Each year poses a new set of regulatory deadlines, and to help you remember all of those deadlines, the Davis Wright Tremaine Broadcast Group has prepared a calendar setting out the dates that broadcasters need to remember in 2010.  The calendar can be found here, and sets out FCC imposed deadlines for, among other things, Ownership Report filings (for noncommercial stations for now, until the status of the Form 323 for commercial stations is resolved), for quarterly issues programs lists, for EEO public file and Mid-Term reports, and for children's TV reports.   The calendar also provides reminders about the dates of SoundExchange filings and payment obligations, and for the political windows during which lowest unit rates apply for the Federal elections to be held in 2010 (for the House of Representatives in all states, and for the Senate in over a third of the states).  Lots of dates to remember - so check out the DWT Broadcasters Calendar.

Tags: , , , , , , , , , , , , , , ,
Posted on August 29, 2008 by David Oxenford

Lowest Unit Rates for Political Candidates Begin on September 5; Get Answers to Political Broadcasting Questions from Our Political Broadcasting Guide

Political Broadcasting season is now in full swing, with the Democrats just ending their convention, and the Republicans beginning theirs next week.  Already, we've seen disputes about third party attack ads (see our post here), and there are bound to be many more issues about the FCC's political broadcasting rules that arise during what looks to be a very contentious political season.  For guidance on many political broadcasting issues, you can check out our Political Broadcasting Guide, with discussions of many common political broadcasting issues (including reasonable access, equal opportunities, lowest unit rates, public file issues, and political disclosure statements) in what we hope is an easy to follow question and answer format.   Broadcasters should also remember that the Lowest Unit Rate "political window" opens on September 5, meaning that stations cannot charge political candidates any more than the lowest rate that is charged a commercial advertiser for the same class of time run at the same time as the candidate's spot. 

We have reminded broadcasters that the Lowest Unit Rate (or "Lowest Unit Charge,"  often abbreviated as" LUC" or "LUR")must be available to all candidates for public office - including state and local candidates.  While state and local candidates have no right of reasonable access (meaning that a station can decide not to sell time to those candidates, or to restrict their purchase of time to particular limited dayparts), if the station sells state and local candidates time, it must be at Lowest Unit Rates during the political window. 

 Some of the other aspects of Lowest Unit Rates as discussed in our Political Broadcasting Guide:

 What is a class of time?

  

A class is a type of spot that has unique rights and characteristics. For instance, spots that run

in different dayparts which have different rates are of a different class, e.g. morning drive is a

different class from mid-day, which is different from afternoon drive. Each of those classes

would have its own lowest unit rate.

 

Even within a given daypart, a station may have spots of many different classes.  Basically, a spot is of a different class if it has different rights. Thus, in any daypart, there may be multiple classes of time, each with its own lowest unit rate. For instance, a preemptible spot would be of a different class than a fixed position spot each with a different lowest unit rate even if they both run during the same daypart. Different rotations can also be different classes with their own lowest unit rate, e.g. a spot which could run anytime between 6 a.m. and midnight could be a different class from one that can run between 6 a.m. and 6 p.m. If the stations sells these rotations, and sells them with differing rates, rights of preemption, or make good privileges, then they would be of a different class and each would have a different lowest unit rate. A candidate can buy spots of any of those classes at the lowest unit rate for that class, and he gets the same rights that commercial advertisers who buy that spot get (e.g. if the candidate buys spots in a 6 a.m. to midnight rotation, his spots are treated just like those of a commercial advertiser who buys those spots and they can run anywhere between those hours).

 

What commercial spots do you look at in determining the lowest unit rate for a given class

of time?

  

You look at the spots of that class running at the same time as the candidate s spots. You need

not look any further than those spots running (or being offered on a rate card) during the 45 days

before a primary or the 60 days before a general election. But even within the 45 and 60 day

periods, the rates can change. If, for instance, a long term package sets your lowest unit rate for a

particular class of time, and the last spot from that package is run midway through the political

window, after the last spot from the package runs, the rates for that class of time can go up for

the rest of the political window. Similarly, if spots are sold on a demand basis, the lowest unit

rate can change on an almost daily basis. If there are fire sales of spots during particular

periods within a window, the lowest unit charge for the fire sale does not set the rates for periods

outside of the fire sale period.

 

Do candidates have to buy in volume to get volume discounts?

 

No. Candidates get the benefit of all volume discounts, even if they do not buy in volume. For

instance, if spots are $10 each, or 12 for $100, the candidate can buy one spot for $8.33 (100

divided by 12) even though a commercial advertiser would have to spend $100 to get the volume

discount.

Check out the Guide for further information about these and other topics dealing with the law of political advertising.

 

 

 
Tags: , , , , , , ,
  • Email This
  • Print
  • Comments
  • Share Link
Posted on March 23, 2008 by David Oxenford

On-Air Broadcast Stations Employees Who Run for Elective Office - Equal Time for Local Candidates

In the last few weeks, I've received several calls from broadcasters about on-air employees who have decided to run for local political office, and the equal time obligations that these decisions can create.  Initially, it is important to remember that equal opportunities apply to state and local candidates, as well as Federal candidates.  And the rules apply as soon as the candidate is legally qualified, even if the spot airs outside the "political windows" used for lowest unit rate purposes (45 days before a primary and 60 days before the general election).  For more information about how the rules apply, see our Political Broadcasting Guide.  In one very recent example of the application of these rules, a situation in Columbia, Missouri has been reported in local newspaper stories concerning a radio station morning show host who decided to run for the local elective hospital board.  To avoid having to give equal time to the host's political opponents, the station decided to take the employee off the air.  This was but one option open to the station, as set forth in the article, quoting the head of the Missouri Broadcasters Association, who accurately set out several other choices that the station could have taken. 

These choices for the station faced with an on-air host who runs for office include:

  • Obtain waivers from the opponents of the station employee allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race.
  • Allow the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
  • Provide equal time to the opposing candidates equal to the amount of time that the host's voice was heard on the air (if the opponents request it within 7 days of the host being on the air)
  • Take the host off the air during the election

Other situations have also arisen concerning non-employees, running for office, who may work for another local station, for ad agencies, or for advertisers, but whose voice or picture appears on spots that run on a station.

The Commission's rules require equal opportunities where a candidate's "recognizable voice or image" appears on a broadcast station.  So, if an announcer with a recognizable voice decides to run for office, commercials featuring that voice become subject to the equal opportunities doctrine.  If that voice is on a PSA or station promotional announcement, for which no consideration is received by the station,opposing candidates who request it within 7 days, get equal time for free - and they can use it in connection with their campaign.  If the voice is on a paid commercial, the opposing candidate will probably have to pay for the equal time, though the opponent would get lowest unit rates during political window periods (even though the initial candidate's spot for a commercial advertiser was for full commercial rates).  As the equal time obligation to respond to paid spots is not for free, but instead only gives the opponent the right to buy time, stations might seem to have no reason to object to the initial candidate's voice on a spot.  However, that spot could force the station to sell time to candidates in a race in which the station might have otherwise have determined not to sell time.  Only Federal candidates have a right of reasonable access to broadcast stations.  Stations can choose whether or not to give state and local candidates access to their stations but, once they make the station available to one candidate, they must make it available to all candidate for the same office.  Thus, a station may have decided, for inventory control or other reasons, not to sell time to candidates for an office like hospital commissioner but, if one candidate's recognizable voice appears on an ad for a local car dealer, the other hospital commissioner candidates can request time within 7 days, and be entitled to purchase such time.

Stations also need to make notes in their public file of all "uses" of a station by a political candidate.  All of these appearances by on-air personnel who become candidates would be considered a use by a political candidate (even though they never mention their campaign), so they must be noted.  Clearly, there are many political broadcasting issues that must be considered when an employee runs for office - so stations should take care of observing those rules.

 
Tags: , , , , , , , ,
  • Email This
  • Print
  • Comments
  • Share Link
Posted on June 13, 2007 by David Oxenford

Will On-Line Spot Auctions Have an Impact on Lowest Unit Rate? - Only the FCC Knows For Sure

Last week’s announcement of the partnership between eBay and Bid4Spots and the impending full launch of Google’s service to sell online radio spots beg for FCC action to clarify how these services will be treated for lowest unit rate purposes. We have written about this issue before (see our note here), and the increasing number of online sales tools for broadcast advertising inventory highlights the issue. If advertisers can buy spots using these online systems on a single station, or if stations offer their spots to a particular advertiser at a set price for a specific class of spot, it would seem that these spots could have an effect on the station’s lowest unit rate if the spots sold through the online systems run during lowest unit rate periods (45 days before a primary or 60 days before a general election.). For the peace of mind for all broadcasters, it would be worth the FCC clarifying the status of these services as we hurtle toward what will probably be the busiest political year ever.

In looking at some of these systems, it appears that some of these systems are premised on specific stations offering spots to advertisers on a cost-per-point basis, for specific dayparts as designated by the advertiser and agreed to by the station.  For instance Bid4Spots system advertises that it holds an auction to sell the spots on Thursday for the following week.  And it appears that spots must be sold by a station in specific dayparts on a non-preemeptible basis. For the week in which the spots are offered, the sale of such spots would appear to set a lowest unit rate for non-preemptible spots that run in the same time period. 

Before broadcasters panic, however, they need to remember that the Commission has always recognized that where spots are sold as a “network” – packaged together and sold as at a single price for multiple stations, the sale of the spots does not have a lowest unit rate impact on any of the stations in the network. If the spots are packaged and sold so that no advertiser is buying any particular station, and no station is selling to any particular advertiser, it would as if these online systems would operate as networks and not affect the lowest unit rates for any station using the service.   It is our understanding that some of the on-line auction systems work this way with spots from one station being packaged with spots from other stations so that the advertiser merely gets a certain audience delivery from the package of different stations that the on-line system puts together.

Even where there is a specific deal for one station to sell ads to one advertiser, the rates would not carry through the entire election cycle. In its 1992 revision of its political policies, the FCC recognized that lowest unit rates could vary throughout an election cycle. Stations could have “fire sales,” selling spots at a very low price during a few days where there was excess inventory, and those rates would only apply during that period of time (and as necessary to respond to any requests for equal opportunities that may flow from the sales of the spots that during these fire sale periods). In fact, as many stations adopt more sophisticated inventory control systems, rates can vary on a daily basis, with the lowest unit rte being set by the cheapest spot running during a particular time period. Thus, stations may be willing to use even the online systems that allow specific matching of stations and advertisers if they recognize that, for the periods during which they offer spots through the on-line system, the spots sold could affect lowest unit rates during that limited period.

But these concerns are all speculative, given the lack of specific guidance from the FCC.   We understand that the FCC has considered these systems and some guidance may be in the works.  Hopefully, that guidance will come soon, so that broadcasters and advertisers may recognize, if these choose, the benefits of this new technology without the fear of unforeseen implications on their political rates and practices.
Tags: , , , , , , ,
  • Email This
  • Print
  • Comments
  • Share Link
 
<--!
-->