Back in January, we reminded broadcasters that state and local elections, even those held in “off-years” like 2021, still fall within the FCC’s political broadcasting rules. Virtually all FCC rules, with the exception of reasonable access, apply to candidates for the local school board or town council just as they do for candidates for President – i.e., once you decide to accept an ad for a local candidate, then equal opportunities, lowest unit rates and online public file obligations all apply (see our article here for more information). But in that article, we did not focus on political issue ads, which also raise their own FCC obligations, particularly with respect to the public file and sponsorship identification.
Unlike candidate ads, or ads dealing with federal issues, ads from non-candidate groups dealing with state and local elections and issues generally do not require price and schedule information to be uploaded to the online political file (unless those ads also mention a federal issue). However, those ads do require that the public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers or the members of its Board of Directors or similar governing board. Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with the name of only one officer or board member, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.
State issue ads can come in all sorts of forms. They can be taking positions on local issues (e.g., a zoning controversy or a school bond issue). They can be dealing with a state-wide issue, like a ballot issue on gambling or cannabis matters, or a state legislative issue (e.g., write your representative in insert state capital here and tell them to vote against the bill to impose a tax on bottles or to vote for a funding proposal for the new sports stadium). Or they can be supporting or opposing a state or local candidate who is not running for federal office (i.e., a candidate for any office other than President, the US Senate or the House of Representatives). In any of these instances, the public file disclosure of the identity of the sponsor and the individuals who run it are required, even outside any political window. They are required whenever these ads are run.
This difference in the way that candidate and issue ads are treated may make for some interesting results in state and local elections. Third-party groups buying ads to support or oppose a state or local candidate do not have the detailed public file obligations that similar groups would have if supporting or opposing a candidate for the US House of Representatives or the US Senate. For groups buying in state elections, as long as they do not bring up any federal issues, price information and details of the ad schedule do not appear to be required to be in the public file. In contrast, a purchase by the candidates themselves (or by an authorized committee or organization) do require that the details as to price, class of time and schedule be posted to the online public file.
But note (as we mentioned in our article linked to above), non-candidate ads on state issues or elections can end up requiring all the price and schedule information, as well as a list of all the issues and candidates mentioned in the ad, where those ads mention any federal issues. So if a non-candidate group attacks a candidate running for governor, and bases that attack on the candidate’s failure to support the Mexican border wall, or his or her votes for or against some policy while they were in Congress, this may well turn the state issue ad into a federal one – requiring all the detailed information required for a federal issue ad.
This obviously is a complicated issue, so be sure to talk to your own counsel and advisors, especially when ads contain claims that could be related to federal issues. With the FCC’s review of online public files being such a priority this year, caution is always advised.