Entering the last full week before the mid-term elections, broadcasters need to beware of the political broadcasting issues that can arise in the tail end of the campaign season.  With the media expecting political ads to get even dirtier in these final days (see, for instance, the Washington Post’s article yesterday – The Year of Playing Dirtier), potential liability looms for broadcasters if they run unfounded third-party attack ads (see our October 18 posting on Dealing With Issue Ads).  But there are other issues of concern.

In this hot political season, in states with closely contested races, equal opportunities requirements can cause advertising inventory concerns during these last days.  When writing new orders for candidate advertising time in these last days, be sure to factor in buys by political opponents who will be entitled to demand equal opportunities – to be provided before the election.  Remember that reasonable access does not demand unlimited access, only what is reasonable under the circumstances.  In determining what is reasonable, a station can look at inventory concerns, as well as the potential for equal opportunities demands from other candidates.  So remember to save room for those equal opportunities requests.

Another area of concern is access to the station.   Particularly with last minute attack ads, the candidate being attacked will want the opportunity to respond, and respond before the election.  The Commission has said that, if a station has been open on a weekend for commercial advertisers for taking orders or changing copy in the year prior to the election, it must be open for similar services for candidates the weekend before the election.  It would seem to be the unusual station that will have never taken or changed an order over a weekend during the prior year.  And, even if a station not done any weekend business in the prior year, it may be that, to respond to a late-placed flight by one candidate, equal opportunities will compel weekend action by the station if that is the only way that the opposing candidate can get on the air by the election deadline.  So have someone on duty – or provide staff cell phone numbers to candidates for that last minute weekend access.

The political file is another source of potential last-minute issues.  The Commission’s rules require broadcasters to place information about the orders placed by a political candidate into the public file immediately, so that competing candidates can determine what spots their opponents have ordered.  The file is supposed to be the source of all that information for candidates.  If it is not current, candidates may not know what has been ordered, and could complain to the FCC if they feel that the missing information somehow injured their campaign.

So take care during these last days of this hotly contested election.