The FCC on Friday issued a Public Notice seeking comment on a petition for reconsideration by the NAB and several broadcast groups seeking review of the FCC’s October decision, deemed a “clarification” of the public file disclosure rules for federal political issue ads requiring that all candidates and issues mentioned in any political issue ad be disclosed in the political section of the online public file (see our articles here on the reconsideration filing and here on the FCC’s October decision). The Public Notice sets the deadline for comments on the NAB petition as December 30.
The Public Notice again states that the FCC’s October decision dealt only with issue ads – and not ads from the authorized campaign committees for legally qualified candidates. As we wrote in our article on the reconsideration filing, that was the way I interpreted the FCC decision, based on statements of FCC staff when specifically asked whether the decision applied to candidate ads during the course of a recent webinar that I was moderating, where the staff members cited (and read) footnote 24 in the October decision. That footnote is the one cited in the Public Notice, and states that the October decision applied only to issue ads.
This week, the FCC also released another decision admonishing two broadcasters for the same kinds of public file problems as addressed in its clarification decision in October. In this week’s decision, in connection with issue ads addressing a special election for a vacant seat in Georgia’s 6th Congressional District, the FCC found the stations’ public file disclosures wanting. In one case, while the ad buyers did not identify the issue or election addressed by the ads, the station did go so far as to handwrite on the public file disclosure forms (in this case the NAB PB-18 form) “GA CD6” – referring to the 6th Congressional District of Georgia – the race to which the ad was targeted. The FCC found that disclosure to be inadequate, as members of the public would not necessarily know that “GA CD6” would refer to an election for the 6TH Congressional District. The Commission also found the public file disclosure inadequate as it did not specifically name the candidates attacked or supported, nor did the disclosures mention some of the federal issues mentioned in the ad (specifically, in one ad, taxes). The other station had similar issues in not identifying all the candidates and issues identified in the ads.
This case once again emphasizes the FCC’s concern about the complete disclosure of all of the candidates, political races, and issues mentioned in any federal issue ad. While we wait for the FCC to act on the NAB petition, the rules set out in the October clarification remain in effect – so take steps to comply now, and discuss with your own legal counsel how to interpret the meaning of these FCC decisions.