This weekend, the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of factWe have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.
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While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.
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With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.
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While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.
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Late last week, the US Court of Appeals for the Fourth Circuit issued a decision in a case called Washington Post v. David J. McManus, upholding the ruling of the US District Court finding that the State of Maryland’s attempts to impose political advertising reporting obligations on online platforms to be an unconstitutional abridgment of these companies’ First Amendment rights.  The suit was brought by the Washington Post and several other companies owning newspapers with an online presence in the State.  Their arguments were supported by numerous other media organizations, including the NAB and NCTA.  The Maryland rules required that online advertising platforms post on their websites information about political ads within 48 hours of the purchase of those ads.  That information had to be maintained on the website for a year and kept for inspection by the Maryland Board of Elections for a year after the election was over.  The appeals court concluded that the obligation to reveal this information was forcing these platforms to speak, which the court found to be just as much against the First Amendment as telling them to not speak (e.g., preventing them from publishing).  As the court could find no compelling state interest in this obligation that could not be better met by less restrictive means, the law was declared unconstitutional.

The Maryland law required the following disclosures on the website of a platform that accepted political advertising:

  • the ad purchaser’s name and contact information;
  • the identity of the treasurer of the political committee or the individuals exercising control over the ad purchaser; and
  • the total amount paid for the ad.

In addition, the platform had to maintain the following information for a year after the election and make it available to the State authorities upon request:

  • the candidate or ballot issue to which the qualifying paid digital communication relates and whether the qualifying paid digital communication supports or opposes that candidate or ballot issue;
  • the dates and times that the qualifying paid digital communication was first disseminated and last disseminated;
  • a digital copy of the content of the qualifying paid digital communication;
  • an approximate description of the geographic locations where the qualifying paid digital communication was disseminated;
  • an approximate description of the audience that received or was targeted to receive the qualifying paid digital communication; and
  • the total number of impressions generated by the qualifying paid digital communication

The appeals court found that this “compelled speech” forced these platforms to “speak” when they otherwise might not want to – the “speaking” being the mandatory publication of information on their website.  The court also pointed to the potential of these rules to chill political speech, by compelling companies to reveal information about those who might otherwise not want to disclose that they are taking a position on a controversial issue or election.  The court found that anonymity in political speech was part of a long tradition in the US, and it could subject those buying the political ads to harassment.  Also, the added burden of collecting this information could cause platforms to reject political ads in favor of advertising where no such burden was imposed. 
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We have written many times about the concerns regarding the marketing of CBD products on broadcast stations. As we wrote here, here, and here, the FDA and FTC have repeatedly warned makers of these products that they cannot make specific health claims about the products and cannot market products that are intended to be ingested. In a recent action, the FDA issued 15 warning letters to companies marketing CBD products – warning them about marketing both for edible products and for health claims (see the FDA press release here with links to all 15 warning letters). The FDA also released a Consumer Update warning consumers about many of the potential risks of CBD use and noting that, except for a single epilepsy drug, it has not approved any medical uses of these products.

These warning letters include a litany of advertising issues that the FDA found problematic, beyond the simple issues of advertising products to be ingested and making specific health claims. In several letters (including those here, here and here), the FDA suggested that even claims about CBD being good to relieve “aches and pains” or that it “reduces inflammation” exceeded the legal limits on marketing. Even claims that oils used for “skin conditions, spot pain management and sore joints,” qualified with the fact that the uses were “still being studied,” were noted as being concerns. Advertising about products aimed at children was noted as being particularly problematic as use by “vulnerable populations” is a real concern where no FDA-recognized research has established the safety of those products. Animal products were also recognized as a concern, as they also have not been approved as being safe and effective.
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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.
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Last month, the FCC issued what it termed a “clarification” of the obligations of broadcasters to disclose in their public inspection files each and every candidate and issue discussed in any Federal issue adWe wrote about the Clarification here.  That decision prompted many questions among broadcasters as to how they would comply with the requirement to uniformly identify every issue in political ads, when that judgement might well be quite subjective.  The National Association of Broadcasters apparently agreed, and filed a Petition for Reconsideration of the Clarification, available here.  Hearst Television, Graham Media, Nexstar, Fox, Tegna, and Scripps joined the NAB in filing the Petition.

The NAB’s Petition raises numerous issues about the FCC decision.  It suggests that the Commission did not have the power to make what most in broadcasting thought was a change in the rules without first soliciting public comment on the proposed changes.  The Petition also argues that the Clarification sets up requirements that will be almost impossible to meet.  The FCC stated that “a political issue of national importance” (which is what an issue ad must discuss in order to trigger the disclosure obligations) includes anything pending before Congress.  The NAB asks how a broadcaster is supposed to know about every issue that may be pending before Congress?  The NAB also expresses concern about the catch-all determination in the Clarification stating that political issues of national importance can go beyond just pending legislation or federal political candidates to include any political issue that is subject to discussion and debate at a national level.  The NAB argues that this could encompass almost anything except the most hyperlocal issue (e.g., a school bond issue).  All sorts of advertising could end up being swept up into this definition. 
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On October 31, the US Department of Agriculture published in the Federal Register interim rules governing the production of industrial hemp under the provisions of the 2018 Farm Act (see the USDA press release here).  These rules will allow the USDA to approve state and tribal plans for the regulation of hemp production.  It also allows for the USDA to authorize growers in states that have not adopted their own plans (or that have restricted the production of hemp).  The USDA notes the interest in hemp production driven by interest in CBD products derived from hemp.  While these rules do not address advertising issues specifically, they do ease some of the concerns that many broadcasters and other media companies have had about advertising CBD products when it was unclear that the production of those products was legal.  We wrote about some of those concerns many times, including in our posts here and here.

These interim rules recognize that CBD products can already be legally produced under provisions of the 2014 Farm Act.  As we noted here, that Act authorized experimental production of hemp products.  The 2014 Act also permitted research into commercial exploitation of hemp products – probably permitting greater production than Congress or the USDA expected when the Act was adopted.  The October 31 public notice states that production under the 2014 Act will be allowed to continue for the next three years until permanent rules implementing the 2018 Act are adopted.  In fact, the USDA notes that it expects that over 50% of hemp production will be by those operating under these grandfathered 2014 licenses for the next year.  This seems to recognize that a significant amount of production already underway is in fact legal under federal law, ameliorating some of the concerns as to whether CBD products now being sold could have been legally produced. 
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It seems like every other week, there is a story about an online media giant making changes in their rules that govern political advertising on their platform – and being either praised or condemned for doing so. We recently wrote about the controversy over Facebook deciding to not fact-check candidate ads, and how Congress itself requires by statute that broadcast stations take that same position. Broadcast stations are not allowed to censor ads from legally qualified candidates so, except in very limited circumstances where the ads may be criminal in nature (and not where they might just give rise to civil claims, like in the case of defamation or copyright infringement), broadcasters cannot reject ads based on their content. The right of a person being defamed in an ad for redress of any civil claim they may have is against the candidate who sponsored the ad, not against the broadcaster. Last week brought the news that Twitter has decided to ban political ads from its platform. Broadcasters, on the other hand, have no ability to ban ads for Federal candidates, as Congress has legislated a right of access to the airwaves where broadcasters cannot refuse to run political advertising from any Federal candidate.

That right of reasonable access, written into Section 312 of the Communications Act, requires that broadcasters give Federal candidates access to all classes of advertising time sold on a broadcast station, and that access be provided in all parts of the broadcast day. See our post here for more information about that reasonable access requirement, and our post here on the limited exception accorded for special events with limited advertising inventory (like the Super Bowl), where the provision of ads to one side might be problematic as there would be no opportunity for an opposing candidate to find an equivalent opportunity to advertise, and because of the potential disruption to commercial advertising on these stations given the limited availability of advertising breaks in such programs.
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