The FCC this week announced consent decrees with six large radio groups over problems with the political files maintained by these groups. The consent decrees included very specific compliance plans for each company to ensure that it met all FCC political file obligations in the future. And it suggested that the penalties were mitigated by the current economic conditions caused by the pandemic – but emphasized the importance to the FCC of the political file obligations and suggested that industry associations take steps to educate all broadcasters about their public file obligations when they run political advertising. Based on these decisions, we thought that we would republish an updated version of an article that we ran two years ago about those political file obligations so that broadcasters can review their own files to ensure that they have in their files the documents that the FCC wants to see.
Our article from two years ago looked at the political file obligations not too long after the FCC required that all of these documents be made available online, as part of the FCC-hosted online public inspection file. The fact that this file can now be viewed by anyone anywhere across the globe has made the required documents much more visible than when they could be reviewed only by physically visiting the main studio of a broadcast station. Not only can these documents be reviewed by the FCC in Washington, DC, but they can be reviewed by candidates, their agencies, and political ad buyers across the country. In fact, we understand that some political ad buyers have online “bots” that scan these files routinely to keep track of political ad buying across the country. Plus, with the license renewal cycle ongoing, the FCC reviews the political file as part of their review of a commercial station’s license renewal application (where licensees need to certify as to whether they have kept their public files complete in a timely fashion).
As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to act on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. The documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?
For any request for advertising made by any legally qualified candidate for any public office (Federal, state or local), the following information needs to be maintained in the file:
- Whether the request to purchase time was accepted or rejected;
- If accepted, the rate charged for the ads in the advertising schedule;
- The date and time that the ads are to be aired, with the exact times that they were aired to be added to the file after they run;
- The class of advertising time purchased (which will be determined by the rights associated with the spots, e.g. whether they are fixed or preemptible, the daypart or rotation in which the spots will run, etc.)
- The name of the candidate and his or her authorized committee, and the treasurer of the committee.
The FCC rules also require that information about free time provided to candidates outside of exempt programs be listed in the public file. So if a candidate appears in a PSA, that needs to be noted in the political file. See our article here for more information about such uses by candidates that can trigger this obligation.
All information should go into the file as soon as an order is received – certainly within one business day of the receipt of the relevant document – and perhaps quicker in the final days of an election. The only exception to the one-day rule is for the details of the exact times that the spots ran, which can be inserted into the file when your traffic system generates those reports – provided that they must be provided sooner on request.
That same information as provided for a candidate ad needs to be put into the file for any advertising relating to a “political matter of national importance.” That would include any ad by a non-candidate group (e.g., a PAC, labor union, corporation or other interested individual) dealing with any issue likely to be dealt with here in Washington. Such issues would include:
- Any ad dealing with a legally qualified candidate for Federal office (either attacking or supporting a candidate); or
- Any national legislative issue of public importance (e.g., an ad saying “write your Congressman and tell him to vote” for or against some issue being dealt with by the Federal government).
So, for these issue ads dealing with federal matters, the public file needs to state whether or not the request to purchase time was accepted or rejected, the rate charged, the schedule on which the ads will run, the class of advertising purchased, and the identity of the sponsor. As set forth below, for any issue ad (federal, state or local), the information about the identity of the sponsor needs to disclose contact information for that sponsor and a list of the members of its governing board.
In the political file for these federal issue ads, in addition to all of the information for candidate ads, the file also needs to include a description of the issue that the ad addresses. In the last year, the FCC has clarified its requirements and made clear that this identification of the issues addressed by a non-candidate ad needs to include the name of every federal candidate that the ad mentions and the office for which they are running, and a description of any federal issue mentioned in the ad. We have provided a much more detail on these ruling in our articles here, here, here and here. Suffice it to say, this puts a burden on every station to carefully review any noncandidate ad to see exactly what issues it discusses. These decisions also take an expansive view of what are federal issues, requiring the disclosure of the mention of any legislative issue pending before Congress, any issue pending before any federal administrative agency and any of the big policy issues that are debated on a national level (e.g. health care, immigration, abortion, racial injustice, etc.).
All issue ads, whether dealing with federal, state or local issues (state and local issues could include state ballot initiatives, local zoning or school bond issues, or attacks on state or local candidates), also require information about the sponsor of the ads. The information includes the following:
- The name of the person or entity purchasing the time
- A contact person at the sponsor, with their name, address and phone number, and
- A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.
In the FCC’s recent clarification of the rules for issue advertising, the Commission required that stations, if they are given only a single name of an officer or director of an entity buying issue ads, ask the ad buyer for the names of additional officers or directors – on the assumption that it is unlikely that any organization has but a single officer or director. Stations must make such inquiries and keep records (though not necessarily records that need to go into the public file) of the inquiries that they make when they have received only one name for an issue-ad buyer.
We note that many stations use forms to gather the information necessary to respond to these questions – often forms generated by a group owner or one of the “PB” forms created by the NAB. The NAB in fact recently released updated PB-19 forms for candidate and non-candidate/issue advertising. These are good models to use to gather the information for the file, but the station still needs to make sure that the information provided by the political buyer fully responds to the questions on the form. We have heard of many cases where non-candidate groups do not want to say on the form that they are buying ads on a Federal issue, even when they are clearly attacking a candidate for Federal office, perhaps because they do not want all the information about the advertising buy (including the price and schedule) to be revealed in the public file. Stations need to inquire if the information provided is not complete, as the burden is on the station, not the ad buyer, for this information to be complete and accurate, and timely placed in the online public file.
Also, do not put information into the file about the method of payment for the ads. We have seen cases where checks from advertisers, or worse yet, information about their electronic payment methods, have been included in the public file, potentially revealing sensitive information that could compromise bank accounts. Do not place this information into the file.
Finally, be alert to state record-keeping requirements. States including Washington State have enacted state laws that may impose different or additional paperwork obligations on political advertising (see our article here). Numerous other states have other recordkeeping obligations. While most of those requirements (although not that imposed by Washington State, which is broader than the federal mandate) can be met by the FCC’s public file, some of these state’s rules appear to impose these obligations on any advertising – not just broadcast advertising – so any digital political ad sales that you do may impose these public file obligations on your station. So be aware of state law obligations, and if your station is in one of those states, be sure to not only observe the FCC’s rules, but also those of the state in which you are located.
Good luck in keeping all these rules straight in the last weeks before the election. For more information about political advertising obligations, see our Guide to Political Broadcasting, here. And, of course, ask your own lawyer as these issues arise, as they raise many tricky issues that may depend on the specific facts of your case to get the right answer.