From watching television in almost any state with a contested election, it’s clear that it’s political season again. As the ads multiply, one of the most common tactics to disrupt an ad campaign is to write a letter to a station saying that the ad is untrue and should be pulled. However, when an ad is purchased by the candidate or his authorized campaign committee in connection with the campaign, and contains the voice or picture of the candidate, the circumstances in which an ad can be pulled are quite limited. Nevertheless, the questions are rolling in.
In one race in the Midwest, stations received complaints about a Federal candidate ad that did not contain the full disclaimer required by BCRA (the Bipartisan Campaign Reform Act, which requires the now familiar statement from Federal candidates that “I’m John Smith, and I approved this ad”). A competing candidate urged stations to pull the ad that did not contain that disclaimer. In fact, stations cannot pull the ad that does not contain the disclaimer (as long as it has the FCC mandated “paid for” or “sponsored by” language at the end of the spot). While the candidate may get into trouble with the Federal Election Commission for not having the BCRA language, and the station may deny lowest unit rate if the required language is not on a spot that mentions an opposing candidate, the spot cannot be pulled from the airwaves.
In another race in a Western state, the question was raised about the use of one of the words that the FCC has ruled to be "indecent" in almost any circumstance. At the NAB Radio Show, the FCC’s Bobby Baker was asked if such an ad could be channeled to the "safe harbor" periods after 10 PM. Bobby answered that it was possible that such channeling would be permitted, but that the FCC has never addressed that question. So, for now, the issue is unsettled until someone asks for a declaratory ruling or the issue is otherwise put before the FCC.
Even where an ad is not does not contain an indecent word, it can still be disturbing or offensive. In another Midwestern state, an independent candidate for Congress has been running racially charged radio ads. The ads are not indecent (in the sense that the FCC has defined indecency) and are otherwise in compliance with FCC rules. Not indecent, and otherwise in compliance with the FCC rules, a station is obligated to give a Federal candidate reasonable access and cannot censor the ad. So what can a station do? One option would be to use a disclaimer before the spot – explaining that the station is required by Federal law to run political spots without censorship, but all spots for candidates for the same race should be treated alike (even ones that are not offensive). One station decided to run a spot of its own, throughout the broadcast day, explaining that Federal law compels it to run political spots without censorship, explaining that the rules are encouraging robust debate, and trying to turn the situation into a positive. It may be a difficult argument – but it may be the best a station can do under the circumstances.