The FCC has taken the unusual step of issuing a Notice of Apparent Liability, i.e. an announcement that it has fined a broadcaster, against two TV station owners for failing to provide a sponsorship identification for political material sponsored by another Federal agency–the Department of Education ("DOE").  The proposed fines for these two broadcasters totaled over $70,000.  In connection with the same broadcasts, the Commission also issued a citation against the producer of the programs for failing to include a disclosure of the sponsor of the programs, warning that company that it would be fined if it were to engage in such activity in the future, even though the entity was not an FCC licensee.  These actions demonstrate the concern of the Commission over programs that attempt to influence the public, particularly those dealing with controversial issues of public importance, where those who have paid to do the convincing are not evident to the public.

These cases all stem from programs associated with conservative political commentator Armstrong Williams, who was paid by DOE to promote the controversial No Child Left Behind Act ("NCLBA") supported by the current administration.  He did so on two television programs:  his own show, titled "The Right Side with Armstrong Williams" and on "America’s Black Forum," where he appeared as a guest.  These shows were aired by various television stations without any sponsorship identification to indicate that Williams was paid by DOE to promote NCLBA on the air.

In one case, the television broadcaster received $100 per broadcast for airing Right Side, but failed to reveal that it had received any consideration.  The broadcaster claimed that the consideration received was "nominal," which is generally an exception to the sponsorship ID requirement.  However, the FCC noted that the exception for "nominal" consideration applies only to "service or property" and not to "money," holding that receipt of any money, even if only a small sum, triggers the requirement for sponsorship identification.

In the other case, the broadcaster received no monetary consideration for airing an episode of America’s Black Forum titled "2004 Election Countdown," in which Williams discussed NCLBA.  However, the Commission noted that this program contained discussion of a "controversial issue of public importance."  Because the videotape was provided to the station without charge, however, FCC rules require sponsorship identification, even if no monetary consideration is received. 

If "controversial issue of public importance" sounds familiar, that is the same type of programming subject to the FCC’s former Fairness Doctrine, which required stations to air opposing viewpoints.  Although the Fairness Doctrine is no longer enforced by the FCC (but see here for a discussion of its possible return), programming aired on a station that discusses such issues are still subject to the sponsorship identification rules.  Although the FCC did not discuss it in this case, the same rule that triggers sponsorship identification requirements for programming addressing a controversial issue of public importance also triggers a requirement that the station include in its public file the name and address of the sponsoring organization and a list of its principal officers or directors.  For Federal issues, the Bipartisan Campaign Reform Act ("BCRA") also requires that stations place in their public files information as to the amounts paid to the station for any such programming (including advertising spots) and the schedule on which those spots will be run – essentially the same information as is provided for a spot purchased by a political candidate.

This decisions comes less than a month after the Commission’s decision, about which we wrote here, to fine a cable operator for running Video News Releases without proper sponsorship identification.  The decisions show that the Commission is intent on enforcing sponsorship ID requirements for sponsored messages delivered in the form of news….even if the broadcaster or cable operator is not fully aware of the facts as to who was paying for their viewpoints to be put on the air.

Although the broadcasters in this most recent decision are likely to appeal the proposed fines levied by the FCC, the lessons to be learned include:  1) receipt of any money in exchange for airing programming, regardless of how small the sum, requires sponsorship identification; 2) the receipt of anything -even a tape or script – dealing with a controversial issue of public importance triggers the requirement for a sponsorship identification; and 3)  broadcasters and cable operators have an affirmative duty to conduct a good faith inquiry into any programming provided by third parties in which political matters are discussed to determine if the program provider received any consideration.  Although it may be difficult to determine whether a speaker’s statement of a political viewpoint is due to the belief of the speaker or is the result of the speaker receiving compensation (especially if that position is also the speaker’s belief), the FCC has made clear that any programming where the speaker is compensated for presenting his views should make the public aware of who is paying to have that viewpoint expressed.