Political Broadcasting

After this year’s contentious elections, it is with reluctance that we even broach the subject – but broadcasters and cable companies need to be aware that in many jurisdictions there are elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Virginia and New Jersey, and all sorts of state and local elections in different parts of the country.  These include some mayoral races in major US cities.  Some of these local elections don’t even occur in November – and there are even a few that are taking place as early as next month. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.
Continue Reading Reminder – 2021 Will Include Some Off-Year Elections for State and Local Office – and FCC Political Broadcasting Rules Do Apply

Here we are, in a new and hopefully more “normal” year – wondering what will be ahead.  Each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters – or at least the primary ones that we already know.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2021.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewalsEEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations and much more.  This year, for LPTV and TV translator operators, there are also dates associated with this summer’s deadline for all such stations to be operating digitally (see our article here).

While this likely will not be a big political advertising year like 2020, there will be some state and local races – so we note the start of the Lowest Unit Charge window for this year’s November election – relevant in states like New Jersey and Virginia where there are races for governor and state legislature, and to the many locations across the country that will have mayor’s races and other state and local political contests.  Look for local information about the dates for any primary elections for these elections – as those primaries have their own LUC windows for the 45 days preceding the primary.  See our article here on how the other political broadcasting rules apply to state and local elections.
Continue Reading A Broadcaster’s 2021 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

December is a busy month for broadcasters with routine filings to complete and action on FCC proceedings that will carry over to the next administration.  Keep on top of these dates and deadlines even as your calendar fills up with holiday celebrations.

We start at the beginning of the month, with December 1 being the deadline for the filing of applications for the renewal of license of radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota, and TV stations in Alabama and Georgia.  These stations should have already reviewed their public file (as we noted here, stations should pay particularly close attention to their political files) and be putting the finishing touches on their renewal application (see our article about license renewal preparation here).
Continue Reading December Regulatory Dates for Broadcasters: License Renewals, EEO Filings, DTV Ancillary/Supplementary Fees, Comment Deadlines and More

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next

In the last few days, two defamation cases filed against media companies by the Trump campaign have been dismissed – one on the merits and one by agreement of the parties.  This includes the suit filed by the campaign against Northland Television, the licensee of a rural Wisconsin television station.  That station was perhaps the smallest TV station to air an ad by a non-candidate group, Priorities USA, that the Trump campaign alleged was misleadingly edited to assert that the President had labeled the coronavirus a “hoax.”  As we wrote here when that suit was first filed, the campaign claimed that the reference to the hoax was not about the virus itself but was actually a reference to “the Democrats’ exploitation of a pandemic and related characterization of the candidate’s response to the pandemic.”  This suit was vigorously opposed by the station and the sponsor of the ad.  The parties have now agreed to voluntarily dismiss that suit with prejudice, meaning that it cannot be refiled.

Another suit was brought by the campaign against CNN alleging that CNN had libeled the President by publishing on its website an article from one of its contributors who alleged that the campaign had assessed the risks of seeking Russian assistance in the 2020 campaign and had “decided to leave that option on the table.”  The campaign alleged that the statement was false and defamatory – and published with knowledge that it was false.  CNN had countered that the statement was protected as it was presented as opinion, not fact, and moreover it was published without “actual malice.”  As we have written before (see, for instance, our articles here and here), under Supreme Court precedent, a claim about a public figure for defamation can only be sustained if it is both false and published with “actual malice” – meaning that the publisher knew that it was false, or acted with reckless disregard as to whether or not it was false and published it anyway.
Continue Reading Two Trump Defamation Claims Dismissed Including Claim Against TV Station for Political Attack Ad – What is the Relevance for Broadcasters? 

The FCC yesterday released a Public Notice making clear that lowest unit rates (or lowest unit charges) end on Election Day.  Some broadcasters had asked the question, fearful that there would be political advertising bought after Election Day to take positions on issues about counting the vote and other legal matters that could arise

As the campaign enters its final weeks, the FCC has begun to send out the next round of proposed consent decrees to radio broadcasters unable to certify in their license renewal applications, because of perceived deficiencies in their political file, that that every document was placed into their FCC-hosted online public inspection file on a timely basis (see, for instance, this decree released yesterday).  The certification of public file compliance is required of every applicant for license renewal.  As with any other certification, a licensee must review its records and truthfully answer the application’s question, either certifying that it has complied with all of the public file obligations or disclosing any deficiencies.  As we wrote last year, in cases of substantial noncompliance, the FCC has fined stations that essentially ignored the public file rules.  But, until recently, in cases where a station had made a good faith effort to comply but had some minor deficiencies in the public file (as is natural over an eight-year renewal period), the FCC has generally been granting renewals, acknowledging that minor violations do not signal that a broadcaster is not operating in the public interest.  However, in August, the Commission initiated a new policy for stations that reported deficiencies in the political portion of the public inspection file, sending draft consent decrees to virtually all stations unable to certify full public file compliance because of any political file issue.

These consent decrees were modeled on the ones that were sent in July to six large radio broadcast groups as a result of an earlier FCC review of their political files (see our article here on those consent decrees, which also provides a review of a broadcaster’s political file obligations).  The difference is, of course, that the July decrees went to large radio groups for what the FCC described as hundreds of violations at many radio stations.  The new renewal-driven consent decrees were sent to all stations that did not certify political file compliance, even to stations that had only a handful of political advertising sales if those stations determined that they could not certify that all required documents went into the file in a timely fashion.  While the decrees carry no monetary fine, they do require that the signing station enter into a compliance program – appointing a compliance officer, having a written compliance plan, reporting any violations to the FCC as they occur, and providing a report to the FCC at the end of each calendar year for two years cataloging all political sales and when the required documents went into the political file.
Continue Reading More FCC Consent Decrees for Political File Violations – Issues to Watch in the Last Weeks of the Election

Back in August, we highlighted some of the many issues in computing lowest unit charges (or “lowest unit rates”) for political candidates which are in effect during the window for the November elections that went into effect on September 4.  In this last month before the election, as political advertising ramps up and each party fights over those few undecided viewers, we wanted to bring to your attention a video that I did for the Indiana Broadcasters Association discussing the various issues that arise in determining lowest unit rates.  That video summarizes many of the issues that we wrote about back in August and is available here:

At the end of this article, we provide links to other videos produced by the Indiana Broadcasters discussing other political broadcasting issues, and to other articles that we have written on other political broadcasting issues.

As we wrote back in August, lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.
Continue Reading A Video Summary of the Rules on Lowest Unit Rates and Other Political Broadcasting Resources

In many parts of the country, the air is turning crisp, the leaves are changing color, and kids are back in school (in some form), making it the perfect time to get caught up with regulatory dates and deadlines coming in October.  This is an unusual month where there are several routine regulatory deadlines – renewals, EEO filings, Quarterly Issues Programs Lists, and the must-carry/retransmission consent deadline, but no significant broadcast rulemaking comment deadlines, perhaps as we are nearing the end of the current administration which might not be around to finish any proceeding started now.

The routine deadlines include those for radio stations in Iowa and Missouri and TV stations in Florida, Puerto Rico, and the U.S. Virgin Islands who should be putting the finishing touches on their license renewal applications, to be filed on or before October 1, along with the accompanying EEO program report.  Stations should also have their post-filing announcements ready and scheduled to begin airing on October 1.  Those announcements continue through December 16.  Stations are no longer required to air pre-filing announcements.  The schedule for post-filing announcements and sample announcement language is here for radio stations and here for TV stations.
Continue Reading October Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Carriage Elections, Quarterly Issues/Programs Lists and More