This has been an unusual political year, as the number of political broadcasting legal issues that have arisen seems far smaller than in past election cycles. Perhaps broadcasters are all on top of the issues this year, or maybe the questions that often arise in connection with attack ads simply pale in comparison to some of the non-advertising attacks that take place every day in the news and on other political-themed broadcast and cable programming. But one question that has come up repeatedly in these last few weeks before the election has been one about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will routinely appear in a business’ ads outside of election season, and the candidate simply wants to continue to appear on their business’ ads during the election as well. What is a station to do?
While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in a way that is not negative (e.g. it is not in an ad attacking that candidate), outside of an exempt program (in other words outside of a news or news interview program which, as we wrote here, is a very broad category of programming) that appearance is a “use” by the political candidate. That includes “uses” even well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump. So, an appearance by a candidate in a commercial for his or her local business is a “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad that you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
As a commercial for a business is usually a paid spot, where the station is receiving money to air the ad (and not an unpaid one like the appearance in an entertainment program where the station does not get paid to air its comedy program or movie in which a candidate appears), the “use” in a paid commercial simply gives rise to equal opportunities for other opposing candidates to buy time on the station. The station will not usually be required to provide free time to opposing candidates (but watch for candidate appearances in PSAs, as that might give rise to free time for opposing candidates). If the station has plenty of commercial inventory and does not mind selling spots to the opposing candidate for the lowest unit rates that apply during this window to spots by a candidate (the opposing candidate gets lowest unit rate for a spot run in connection with his or her campaign, even if the commercial business bought the spot featuring their employee-candidate at regular rates), a station may allow the business spots with the candidate’s appearance to keep running. But if inventory is tight, or the station is not selling political ads to candidates in a particular race, the station may want to tell the business that the candidate can’t appear in the business’ spots once the candidate becomes legally qualified, as the running of those spots with the candidates would require the station to provide equal time to the opposing candidates.
Note that the “no censorship” provision of the rule and the lowest unit rate provision probably do not apply to the commercial business spots even though they contain the voice or image of a candidate. That is because these spots are not uses by the candidate or the candidate’s authorized campaign committee which are covered by these provisions of the law. As the commercial spots are not by the candidate or his or her political committee, but instead they are commercials by a business that happen to be “uses,” normal commercial rates can be applied.
Note that, as in all areas of political broadcasting, any analysis of the implications of any on-air appearance of a candidate can be a very nuanced matter, and small changes in the facts can result in big changes in the legal conclusions that apply. So if these situations arise, consult with the station’s legal counsel before making any decision as to how to treat these kinds of ads. This article is just meant to note that there may be options for dealing with the candidate-advertiser if he or she wants to stay on their business’ spots during an election period, depending on the station’s circumstances. For more general information about the rules that apply to political broadcasting, see our Guide to Political Broadcasting, here.