Late Friday, the FCC’s Media Bureau issued an order (at this time available in Word format only, here) clarifying its public file rules for political ads – both ads from candidates and from third-party groups.  The FCC’s clarifications require broadcasters who run candidate or issue advertising to include information about not only the candidates mentioned in an ad, but also any Federal issues that the ad addresses.  On sponsorship identification, the FCC focused on third-party ads, requiring that broadcasters make an inquiry as to the complete set of executive officers or the complete board of directors of any sponsor.  The FCC went on to admonish a number of stations for violating the rules but, as the rules were just clarified, only admonished these stations rather than issuing any fines. This decision was in response to complaints filed by the Campaign Legal Center and the Sunlight Foundation alleging the public file omissions of these stations – complaints that we wrote about here.

The FCC’s order interprets Section 315(e) of the Communications Act, which sets the rules for the disclosures required for political ads.  Under that Section, any political ad that deals with a legally qualified candidate, an election for a Federal office, or with any political issue of national importance, must disclose a variety of information.  That information requires that, in connection with any request for political time, the station must disclose in its public file (1) whether or not the request was accepted, (2) the class of time purchased, (3) the price at which it was sold, (4) the name of the candidate that the ad addresses or the election to which it is directed or the issue discussed, (5) if the ad was bought by a candidate’s authorized committee, the name of the committee and its treasurer, and (6) if the ad was not placed by a candidate’s committee, the name of the sponsor and, where the sponsor is not an individual, the name of the sponsor’s chief executive officers or its executive committee or its board of directors, plus the name, phone number and address of a contact person at the committee.  These requirements were clarified in several respects by the FCC’s order.

The specific areas dealt with by the clarifications were as follows:

• The order required broadcasters to identify in its public file disclosure every issue and candidate that is addressed by an ad – the identification can’t just stop by naming the candidate or the principal issue addressed. The FCC rejected claims that this would be too much work for broadcasters saying that the spots are usually 30 seconds, and sometimes 60 seconds long, so that it should not take a broadcaster that much time to note all of the issues and candidates addressed.
• The order made clear that the statute and rules require that licensees must disclose all of the chief executive officers or members of the executive committee or board of directors of any person seeking to purchase broadcast time. In cases where a station initially is given the name of a single official of a sponsoring entity, or where the station otherwise has a reasonable basis for believing that the information initially provided is incomplete or inaccurate, the station is obligated to inquire whether there are any other officers or members of the executive committee or of the board of directors of such entity.  When a sponsor fills out the station’s disclosure forms, or otherwise tells the station the name of only a single individual when asked for its chief executive officers or directors, the broadcaster must ask if that is really a complete list of the officers and, if assured that it is, seemingly need investigate no further.
• The Commission made clear that a broadcast message must be “political” in nature and must be of “national importance” to trigger a licensee’s record-keeping obligations under the statute – giving the example of a car dealer who mentions in an ad that it is having an election day sale is not political in nature even though it mentions the election. The Commission did go on to say, however, that the issue need not be one that is currently encompassed in pending legislation to be considered a “national legislative issue of public importance.”  This term also encompasses other political issues that are the subject of continuing controversy or discussion at the national level – issues like the national debt, defense and abortion rights being the kinds of issues that are almost always subjects of national importance even if not in specific legislation at the time that the ad runs.

The requirement that a station include in its public file disclosures every issue and candidate that is addressed by a political ad seems to be the one most likely to cause stations the most problems.  One can easily think of some of the recent attack ads from the last Presidential campaign to recognize that one ad – even if it is only 30 or 60 seconds long – can easily require a laundry list of disclosures.  For instance, some ads from Republican groups attacking Hilary Clinton presumably would have required disclosures of issues including preserving government secrets (in connection with the alleged breach of security protocols by the private server), national security (in connection with attacks about Benghazi and the growth of ISIS), Supreme Court nominations and the abortion debate (given the open seat on the Court) and probably many other issues – as well as disclosing that the ad targeted the candidate and the race for President.  Similar lists can result from many other ads – and the sponsors may well be unwilling or untrustworthy about providing a complete list.  The Media Bureau made clear that it is the station’s obligation to make sure that issues are accurately identified for each political commercial.

The clarification about the context of the ad is important too.  While the FCC staff gave the one example of the car dealer having an election day sale would clearly not be a political ad based on its context, there were a number of other examples where the context cut the other direction.  This would include the ubiquitous ads that talk about some political issue and how bad the arguments are for one side of that issue, and then end with the admonition that the members of the audience should “call Senator X” and tell them to vote a particular way about the issue discussed by the ad.  Even though the ad never mentions the election, the Media Bureau made clear that if Senator X is running for reelection at the time that the ad is run, one of the subjects listed in the ad should be his candidacy.  Stations will have to monitor this kind of ad, and know which Federal officials are running for office in their service area, to make sure that they catch these oblique references to an electoral campaign.

Sponsorship, too, must be complete and understandable to the station viewer or listener.  In a separate decision, issued at the same time as the more general order, the FCC staff admonished one station for listing an ad’s sponsor as the “DSCC-IE.”  Those initials stood for the Democratic Senatorial Campaign Committee – Independent Expenditure.  As those initials might not be recognizable to members of the general public, the FCC admonished the station for its incomplete disclosure.

The FCC staff also made clear that these kinds of objections can be raised not only by local citizens of the station’s service area, who normally are the ones thought to have “standing” to challenge a station’s action.  The Media Bureau said that the public file is required not just for local citizens, but for researchers, public interest groups and others who want to monitor what is going on at a station.  Thus, seemingly, any one in any of these groups would have standing to challenge a station for not having a complete file, not just in connection with the political file but for any other deficiency as well.  This may be one of the first times that the FCC staff has said that these kinds of distant organizations have standing to file complaints against broadcasters on a public file issue.  Did the FCC really mean for all of these disclosures to be for the benefit of researchers and public interest groups?  Is that really the purpose of a public file?   Should the FCC really be putting burdens on any business just to benefit researchers and public interest groups – or should those burdens be restricted to those which truly will lead to some benefit to local residents of a station’s service area?  Seemingly, this is the kind of question that some broadcasters admonished for their violations of this newly interpreted rule might want o raise on reconsideration of this order – one likely to be heard by the new FCC after the Presidential inauguration.  According to trade press, Republican FCC Commissioners indicated that they had no input into the final language of the decision and that they may want to review it after the inauguration.

In the meantime, these orders require careful review by broadcasters, as the nuances and examples provided by the order will give more guidance to stations as to what the FCC staff seems to be requiring by this decision.  We’ll also be watching to see what the parties admonished in these decisions do with this decision – whether it will be appealed to the new Commission to further address the matter and some of its implications for broadcasters in the future.