Political Broadcasting

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The Sunlight Foundation, along with Common Cause and the Campaign Legal Center, have filed with the FCC complaints against 18 TV stations claiming that these stations violated the FCC’s sponsorship identification rules by not identifying former New York City mayor Michael Bloomberg as the true sponsor of issue ads bought by the Independence USA political action committee.  The complaint (available on the Foundation’s website as part of a press release on the action) alleges that stations have an obligation to look behind the named organizational sponsor to identify Mr. Bloomberg as the true sponsor of these ads, as he has provided all of the organization’s funding and directs its actions.  These same organizations filed a similar set of complaints last year, some also targeting Mr. Bloomberg and the PAC with which he is associated, complaints which, for the most part, remain pending at the FCC (see our article here).

These complaints are very similar to the ones filed in 2014, arguing that where a PAC is 100% financed by a single individual, the individual should be identified on the air as the sponsor, not the PAC itself.  The petitioners claim that, by not identifying Mr. Bloomberg as the true sponsor, the public is deceived as to who is behind the ads.  This is despite the fact that, in the required sponsorship disclosure statements filed in the stations’ public files, Mr. Bloomberg is identified, as required by the rules, as the Chairman of the PAC and as one of its two officers.  Apparently, this required disclosure is deemed insufficient by these groups.  But what will the FCC think?
Continue Reading More Complaints Filed Against TV Stations for Allegedly Not Disclosing the True Sponsor of PAC Ad on Political Issues

With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?
Continue Reading Political Broadcasting Issues that Radio and TV Stations Should Be Thinking About Now As We Approach a Very Active Election Season

The FCC requires each full-power broadcast station, commercial and noncommercial, to maintain a public inspection file.  Even though this is a longstanding FCC requirement, there are always questions about what goes into the file, and how long those materials must be retained.  The week before last, I conducted a webinar for about 20 state broadcast associations on the FCC’s public file requirements for broadcast stations.  The slides from that presentation, outlining the requirements for the file, and the required retention period for many of the documents that make up that file, are available here.

While many broadcasters wonder if the public file is really worth the time that it takes to maintain given the nonexistent traffic to view that file at most stations, the FCC has continued to insist on its importance – fining or otherwise sanctioning stations for missing or late filed documents.  See, for instance, this case admonishing a TV station for failing to get all of its documents into its online public file in a timely fashion (an admonishment is the equivalent of putting a demerit in the station’s permanent record that could be considered as a prior violation in assessing fines if the FCC finds the station in violation for some other offence).  Particularly at license renewal time, a complete public file can be crucial, as missing documents lead to big fines (see, for instance, our articles here and here), and failure to disclose those missing documents can lead to even more harsh penalties (see our article here).  So maintaining an accurate and complete public file is important.  Quarterly issues programs lists are often the most overlooked requirement.
Continue Reading The Care and Feeding of the Broadcast Public Inspection File – Requirements and Retention Periods, A Presentation on the Issues

The FCC yesterday issued a Declaratory Ruling at the request of the producers of a new syndicated Crime Watch Daily TV show, a program that will give a daily rundown of crime stories including ongoing court trials from around the nation, declaring that the program would not give rise to equal opportunities claims from political candidates. As the producers expected that political candidates would be featured in the program’s daily coverage of crime news (e.g. sheriffs or district attorneys who may be running for reelection in local elections), they wanted to be sure that competing candidates would not have grounds to request equal time from stations carrying the program – which obviously would severely limit the attractiveness of the program. The FCC looked at the description of the nature of the program – where the producer is making editorial decisions about who will appear on the program based on determinations of newsworthiness in the exercise of their journalistic judgment, not based on an attempt to favor or highlight any political candidate. Based on these representations, the FCC concluded that the show was exempt from the equal opportunities obligations of Section 315(a) of the Communications Act.

We have written about the equal opportunities rules (or what many refer to as “equal time”) many times before (see, for instance, our article here). When a candidate makes a “use” of a broadcast station, opposing candidates are entitled to equal time on the station, if they request that equal time within 7 days. If the first candidate did not pay for that airtime, the second candidate gets the time for free. So, if an on-air employee of a station decides to run for public office, once that employee becomes a legally qualified candidate by filing the necessary paperwork for a place on the ballot or taking the steps to launch a write-in campaign, if the employee stays on the air, opposing candidates can request, and are entitled to, equal time on the station. And these opposing candidates don’t need to deliver the weather report or introduce the next song as the on-air employee may have been doing. Instead, the opposing candidates can use the time to promote their campaign, even if the on-air employee never mentioned his or her candidacy on the air (see our article on on-air employees running for office, here). However, where the candidate appears on the air as the subject of a news report, there is no “use” of the station under FCC rules and policies, and thus no need to give equal time.
Continue Reading TV Crime Watch Show is Bona Fide News Program Exempt from Equal Opportunities Requests from Political Candidates – Reviewing the Equal Time Rule

A bill introduced in the House of Representatives last week proposes that the FCC be required to amend its sponsorship identification rules to require not just the name of the sponsor of an ad addressing “a controversial issue of public importance,” but also the names of any “significant donors” to the…

March is one of those rare months on the broadcast calendar when there are few routine regulatory deadlines for broadcasters. As we are winding down in the television license renewal cycle, the month’s only license renewal obligations for TV broadcasters are the pre-filing license renewal announcements on the 1st and 16th of the month for stations in Delaware and Pennsylvania, whose renewals are due on April 1, and the post-filing announcements for TV stations in New York and New Jersey. But there are still dates of interest to broadcasters in the month ahead. Here are some of those dates.

March also brings the obligation, by March 16 for TV stations to be in compliance with the Closed Captioning Quality Standards, which require that broadcasts assess and work to perfect the quality of the closed captioning carried on their stations. While the FCC is looking at bringing television program suppliers under these rules, as of now, the obligation for compliance with the rules is on the television broadcaster. We wrote about the captioning quality rules and the FCC’s recent proceeding to shift some of the burden to program suppliers here.
Continue Reading March Regulatory Dates for Broadcasters – Closed Captioning Quality Standards Effective Date, Comments on Online Public File, MVPD Status for Online Video Providers, LIFO for Political Ads, and FRNs for Biennial Ownership Reports

The FCC has finally had published in the Federal Register its Notice of Proposed Rulemaking proposing to extend the online public file obligations to radio, satellite radio, cable operators and satellite TV providers. This publication starts the countdown to the filing deadline for the comments in the proceeding. Comments are due by March 16…

In a Public Notice issued yesterday, the FCC asked for comments from the public on whether broadcast stations should be able to enforce “Last In, First Out” (“LIFO”) pricing against political candidates in election races.  During the 45 days before a primary election or the 60 days before a general election, for advertising buys by a political candidate’s authorized campaign committee, a station cannot charge more than the lowest price charged to the station’s best commercial advertiser for that same class of advertising time.   What the Commission asks in its Public Notice is whether the practice of stations of deciding that particular classes of advertising time are effectively sold out discriminates against candidates – as candidates routinely buy their advertising time late in an election cycle.  These issues come up often, particularly late in any political window as demands on the advertising inventory of stations can become very tight as an election approaches.

So what does this petition ask?  First, let’s take a step back and look at how lowest unit charges work in broadcast (and cable) political advertising.  An easy example would be where a candidate wants to buy a fixed position advertisement on a radio station during its morning drive program.  For that ad, a candidate can be charged no more than the lowest price that the station charged to any commercial advertiser for a similar fixed-position spot that runs in that same time period.  Different classes of time have different lowest unit rates.  That means that, in that same morning drive program, there might be a lowest rate for these fixed position adverting spots that are guaranteed to run at the time that they are scheduled, but a lower price for spots that can be preempted by higher priced spots.  If there are different make-good rights associated with a class of preemptible time (e.g. one type of spot must be “made-good” by the station within a week if it is preempted, while another might just need to be made-good within the next month), both of those classes could have different lowest rates.  See more about lowest unit rate here and here. 
Continue Reading Comments Sought by FCC on Political Broadcasting Lowest Unit Rate Implications of Last In First Out Pricing

In odd numbered years like 2015, most broadcast stations don’t think about the FCC’s political broadcasting rules. But they should – and we have been receiving many calls from clients about the perhaps surprising number of elections that are taking place this year.  These include many races for state and local political offices, everything from school boards and city council to state legislative positions, plus the odd special election to fill vacancies in Congress or some other office.  As we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

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 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, once they decide to sell advertising time to one candidate in a state or local race, almost all of the other political rules apply. 
Continue Reading Reminder – Political Broadcasting Rules Apply Even to State and Local Elections

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC