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 ad. We 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.