Political Broadcasting

Everyone knows that a fundamental principle of American democracy is the First Amendment – guaranteeing many freedoms to US citizens including freedom of the press and freedom of speech.  It is one of those concepts that underlies our society, but is often mentioned only in passing, and rarely considered in practice.  Few people – even broadcasters and other media companies – have cause to think about First Amendment principles in their day-to-day operations.  The concepts embodied by the First Amendment are almost a given – except when they are not.

In our politically polarized society, there are more and more arguments made about regulation of speech in various contexts – often made without significant consideration of those First Amendment principles.  On the broadcast side, we have seen Commissioner Carr react to two cases where the FCC has seemingly been called on to regulate the speech (or anticipated speech) of broadcasters.  One case involved a call to deny the sale of a broadcast station allegedly based on a perceived change in the political orientation of its programming from liberal to conservative (see the Carr statement here), and another calling for the FCC to investigate a TV station in Baltimore for allegedly being too focused on investigations into a local government official (see the Carr statement here and an NAB statement also weighing in on the controversy here).  While there may well be issues in each case that go beyond the question of the proposed speech of the broadcasters involved, the issue of whether the FCC can get involved in the regulation of political positions taken by broadcasters is one that is addressed both by the Communications Act and past FCC precedent.
Continue Reading The First Amendment’s Role in Broadcast and Online Regulation

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.
Continue Reading Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of

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.
Continue Reading Reminder: Issue Ads Require Public File Disclosures Even Outside Political Windows

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.

  • Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of

In recent months, we have seen concerted attempts to reign in digital and social media from all along the political spectrum – from Washington, in the states and even internationally.  We thought that we would look at some of those efforts and their motivations today.  We will look at many of these issues in more detail in future articles.

Towards the end of last year, the Trump Administration sought to strip social media platforms of Section 230 protections because of their alleged bias against conservative speakers (see our articles here and here).  A similar perception seems to underlie the recently proposed Florida legislation that seems to create for social media a policy similar to the equal opportunities (or “equal time”) policy that applies to broadcasters – a social media service cannot “de-platform” a political candidate if it allows the opposing candidate access to that platform.  That proposed legislation also has announced goals of requiring clear rules for access and editing of political views on such sites.  A press release about that legislation is here, though the actual text does not yet seem to be available for review.
Continue Reading Everyone Seems to Want to Regulate Online Media – But Can They?  Setting the Stage- Looking at the Range of Regulatory Proposals

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.

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four

It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases.
Continue Reading The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the

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