The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies.

In addition to the question of rates for political ads, stations should be thinking about access for political candidates. Especially in the early primary and caucus states, where some races will include multiple candidates in contested primaries, spot availability may become tight in the weeks leading up to actual voting. But, as long as a candidate does not sit on his or her rights, equal opportunities require that candidates have a right to respond to their opponents in equal amounts of broadcast time, and reasonable access requires that you make available time to all Federal candidates in reasonable amounts. Stations thus should plan for inventory management, especially in the final weeks before any primary.  As well-funded candidates come to stations now to request big ad buys later in the political season, stations should consider whether they really want to sell those candidates all the time that they ask for – knowing that some of the less financially secure candidates may be delaying their buys until the last days before the primary. Reasonable access for federal candidates does not require that you provide a candidate with all the time that they request (see our article here). But equal opportunities will require that you air  spots from those late-arriving candidates.  Since you can’t avoid the potential impact of equal opportunities, make sure you have sufficient advertising inventory in reserve in the weeks leading up to the election to make room for commercials from these candidates, whose funding may not cover ads until late in the primary period.

There are issues to consider regarding free time for candidates. As we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on a normal day – are deemed “news interview programs” and therefore are exempt from equal time rules if they routinely cover issues of public importance.  Bona fide news programming is also exempt from equal time. But in these days of media overload, candidates are looking for nontraditional means of exposure in broadcast programming. So use care if a candidate appears as a character on a scripted TV show, or walks into the announcing booth at a local football game asking to do the play by play for a few minutes, or (especially when dealing with state and local candidates, see our posts here and here) where the candidate is a host of a broadcast program.  Depending on how these situations are handled, all of these could give rise to equal opportunity claims.  Public service announcements (“PSAs”) are also a potential issue, as candidate appearances in PSAs will trigger equal opportunities rights – potentially requiring free time to opposing candidates (who would not be limited to giving a public service message).  See our article here for more details, and remember that these appearances outside the exempt news and news interview programs also trigger public file obligations.  Also remember that equal opportunities apply as soon as there are legally qualified candidates – even outside the 45-day lowest unit rate window – so stations should be ready to deal with these issues as candidates become qualified.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  In any case, if the ads deal  with Federal candidates or other issues being considered by the US House of Representatives or Senate, or with any other political issue of national importance even where the issue is not currently before Congress (e.g., the Supreme Court’s consideration of abortion, issues about claims of a stolen election, and similar matters), then they are Federal issue ads on which the station must maintain full online public file information, similar to that which is kept for any candidate advertising – the information must include the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our posts here, here, and here on the public file requirements for Federal issue ads).

We have also written, here, about issues concerning the content of these third-party ads, as stations can potentially have liability for defamatory content in those ads if the station knows or has reason to believe that the ads are in fact false. Theoretically, a station could be subject to liability once it has been put on notice of the falsity of the ad by a letter from a representative of the candidate being attacked, if the ad does contain defamatory content. Candidates who are attacked may be calling stations asking that ads from PACs and other non-candidate advertisers be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims. While third-party ads do not get lowest unit rates, these ads can be more problematic than candidate ads as they potentially force stations to be judges of the truth of the content of those ads. Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for their content.

These are but a few of the political advertising issues that broadcasters should be considering. Start thinking about the issues that will arise as we enter this political season, and check out our Political Broadcasting Guide and the guides prepared by the NAB and many other organizations representing broadcasters,  as you can never have enough perspective on these issues. These rules are complex, and many candidates are getting smarter about the how to use the rules to their advantage.  Be prepared and have your attorney on speed-dial as specific facts are important in evaluating each of these issues.  Get ready for the upcoming onslaught of political advertising!