Political Broadcasting

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As we move into the final weeks of the election season, and races heat up, there are always issues about attack ads and what a station needs to do when they receive a “take-down” notice from a candidate who is being attacked. We recently wrote about candidate ads, and the “no censorship” provision of Section 315 of the Communications Act. Broadcasters can’t censor a “use” by a political candidate (a candidate ad that features his or her recognizable voice or image and is purchased by his or her authorized campaign committee), and thus the broadcaster is not liable for the content of the candidate’s ad. So no matter what the candidate may say – the broadcaster runs the ad as is. However, ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are different. The “no censorship” provisions of the political rules don’t apply, so broadcasters are free to accept or reject third party ads based on the content of the ads.

This question arises all the time. A station runs a third-party ad, and the politician who is being attacked by the ad will contact the station – or have their lawyer contact the station – demanding that the station pull the ad for its alleged untruthfulness. Sometimes that request has some vague (or sometimes not so vague) threat of a legal action against the station if it continues to run the ad. Unlike candidate ads (where the station cannot censor the ad and thus the station must reject all requests to pull a candidate ad, and can continue to run the ad without liability), the station makes a choice when it runs a third-party ad. Ads that are not run by the candidate’s official campaign committee (or by a political party with explicit authority and coordinated with the candidate), can be rejected based on their content – or for any other reason that the station may have – or for no reason at all.  Because stations make a decision as to whether or not they are going to run a third-party ad, they theoretically have liability if the ad is untrue and the station continues to run the ad when it has been challenged by a candidate or another party attacked in the ad.
Continue Reading What’s a Broadcaster to Do When a Candidate Complains About the Truth of an Attack Ad? – Dealing with Ads from Non-Candidate, Third-Party Organizations

Every election season there is the same refrain from candidates who are attacked in political ads run on broadcast stations – that ad is unfair and the broadcaster who is running it should take it off the air.  Sometime, that request is sent by a lawyer with threats to bring legal actions if the broadcaster does not stop airing the ad.  What is a broadcaster to do when it gets one of these requests to pull a political ad from the air?  While we have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here, and non-candidate, third-party attack ads, here), questions still come up all the time.  Thus, broadcasters need to know the rules so that they don’t pull an ad that they are not allowed to censor under the FCC’s rules, and that they don’t run one for which they could in fact have liability.

The rules are actually fairly simple in concept, and for ads sponsored by candidates themselves, the rules are fairly simple for broadcasters to implement.  It’s very basic – broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is.  The FCC has made only one exception to this “no censorship” obligation.  That exception was adopted when Larry Flint was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads.  At that time, the FCC adopted a policy that broadcasters need not run an ad that would violate a Federal criminal law (e.g. obscenity).  That is a very narrow decision, as the Courts have even forced the FCC to make stations run without censorship graphic anti-abortion ads with disturbing content, where such ads would not be legally obscene (they might be indecent under FCC rules, and may be disturbing to some, but the airing is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster).  Because broadcasters have essentially no choice but to run a political ad in the form that the candidate provides it, and cannot reject it based on content, the Supreme Court has recognized an exemption from any broadcaster liability for the content of the ad.  So the candidate who claims that he is libeled or defamed by the political ad needs to seek relief from the candidate who ran the attack ad, not from the station.  But there are some important details that need to be observed to make sure that there is no liability for the broadcaster.
Continue Reading Questions about the Truth of Political Ads, What’s a Broadcaster to Do When a Candidate Complains About an Attack Ad? – The No Censorship Rule for Candidate Ads

With the lowest unit charge window for the November elections kicking into effect tomorrow (September 5), we thought that it was a good idea to review the basics FCC rules and policies affecting those charges. With each election seemingly breaking spending records from prior cycles, your station needs to be ready to comply with all of the FCC’s political advertising rules. Essentially, lowest unit charges guarantee that, in the 45 days before a primary and the 60 days before a general election, candidates get the lowest rate for a spot that is then running on the station in any class of advertising time. Candidates 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.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time. Even on the smallest radio station, there are probably several different classes of spots. For instance, there will be different rates for spots that run in morning drive and spots that run in the middle of the night. Each of these time periods with differing rates is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each forming a different class with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or having different rights attached to it (e.g. different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate.
Continue Reading The Political Window Opens Tomorrow – A Refresher on the Basics of Lowest Unit Charge

Get ready for more challenges to issue ads that you may be receiving this election season.  The FCC’s Media Bureau today released a brief decision on the Sunlight Foundation’s complaint petition against two TV stations concerning the proper sponsorship identification for ads by Political Action Committees.  We wrote about those complaints when they were filed back in July, here.  The complaints, arising from elections that took place last year, targeted two PACs that each had single individuals who had donated substantially all of the money that was raised by the PAC.  Sunlight claimed that the stations should have tagged as the true sponsors of the ads the individuals who had provided virtually all of the money for the PACs.  Sunlight alleged that these stations should have known who the true sponsors of the ads were, based on news reports that were run on the stations talking about the individuals who had funded the PACs.  Instead, the stations had run sponsorship identifications identifying only the PACs as the sponsors of the ads. 

In today’s action, the Bureau dismissed the complaints.  However, the Bureau did not find Sunlight’s allegations to be incorrect.  Instead, the complaints were dismissed because Sunlight never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.  The Bureau stated that it was using its “prosecutorial discretion” not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election.
Continue Reading Identification of Sponsors of Non-Candidate Political Ads May Be More Controversial This Election Season as FCC Suggests that Broadcasters May Need to Determine Who is Behind Third Party Ads

September is one of those few months of the year where there are no regular FCC filing deadlines – no quarterly issues programs lists, no children’s television reports, no annual EEO public file reports, and no ownership reports or renewal deadlines.  For TV stations that recently filed a renewal, or which are about to file one, there are the pre-or post-filing notices.  But for most broadcasters, the one routine regulatory deadline in September (which has, in the past, sometimes fallen in August), is the obligation to pay annual regulatory fees.  But, so far, the FCC has not released the Order officially stating what those fees will be, or the Notice setting the filing deadlines – though we expect these notices any day (perhaps any moment).  As the fees need to be paid before the start of the FCC’s new fiscal year on October 1, expect that those fees will be due at some point before the end of September.

While there are few of these routine filing deadlines in September (though broadcasters should, of course, be preparing for the due date for many of these reports in early October), there are a number of important proceedings with September comment dates, appeal deadlines or other important milestones.  And there is the start of the Lowest Unit Rate window for the November election.  Some of the September deadlines are summarized below.
Continue Reading September Regulatory Dates for Broadcasters – Regulatory Fees, Lowest Unit Rates, and Comments on Multiple Ownership, Online Public File for Radio and MVPDs, Music Licensing and Class C4 FM Stations

The FCC has asked for public comment on whether it should extend the online public inspection file obligation to radio, and also whether it should adopt an online public file obligation for cable television and satellite television operators.  The latter proposal originates in a recent petition by the Sunlight Foundation and two other…

Public interest groups are actively watching broadcast political advertising which could make this a very interesting year for broadcasters.  The Sunlight Foundation, which only two months ago filed complaints against 11 television stations for alleged inadequacies in their online political files (see our summary here), has now filed two new complaints alleging that television stations violated FCC rules in recent elections by not identifying the true sponsor of political ads.  In each complaint, Sunlight alleged that ads were tagged as having been sponsored by Political Action Committees, but in each case the true sponsor who should have been identified was the wealthy individual who had contributed all of the funds to the PAC.  Sunlight’s press release about the complaints is available here, and contains links to the complaints themselves.  Is this complaint valid?

The complaint focuses on the language in Section 317 of the Communications Act which requires that when a station broadcasts any content and “consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person,” that person must be identified.  While it seems clear from FCC precedent that person does not mean individual person, as corporations or other legal entities can certainly be sponsors, the compliant submits that this situation is different.  Why?  Because, the petitioners argue, the PACs involved in these cases (one supporting a Republican candidate, the other supporting a Democrat) were effectively each an alter ego for a single individual who provided all the funds for the PAC.  But how is the TV station supposed to know?
Continue Reading FCC Complaints Filed Against TV Stations for Not Identifying the True Sponsor of Political Ads

July brings a number of new regulatory dates for broadcasters – including the effective dates of two new compliance obligations for small market TV stations, as well as numerous routine regulatory filing dates.  July 10 brings one deadline for all broadcast stations – it is the date by which your Quarterly Issues Programs lists, setting out the most important issues that faced your community in the last quarter and the programs that you broadcast to address those issues, need to be placed in the physical public inspection file of radio stations, and the online public file of TV broadcasters.

Full power TV and Class A TV stations by January 10 also need to have filed with the FCC their FCC Form 398 Children’s Television Reports, addressing the educational and informational programming directed to children that they broadcast.  Also, by that same date, they need to upload to their online public files records showing compliance with the limits on commercials during programming directed to children.  And there are other new obligations for smaller TV stations that are effective this month.
Continue Reading July Regulatory Dates for Broadcasters – New Captioning Obligations, Online Political File for Small TV Stations, Issues Programs List and Children’s Television Reports, and More

TV stations in markets outside of the Top 50, and stations in the Top 50 markets that are not affiliated with one of the Big 4 networks, need to begin to upload new material placed into their political files into their Online Public File as of July 1 – just a few weeks away.  David O’Connor of my firm and I conducted a webinar for television broadcasters from 7 states last week, where we discussed this new obligation for smaller TV stations, and talked about what documents are supposed to go into the political file.  We also reviewed the content of the NAB forms that are helpful in tracking the documentation that needs to go into the political file.  The slides from that presentation are available here.

 As we wrote in April, the FCC has already reminded broadcasters of this new obligation as of July 1, and there does not appear to be any potential that the obligation will be changed between now and the July 1 effective date.  Broadcasters need not upload political file contents that were placed into the file before July 1 (they should continue to be kept in the station’s paper file for the two-year required holding period).  But, starting on July 1, all new political file documents need to be placed into the station’s Online Public file accessible through the FCC website.
Continue Reading A Presentation on the Obligations of Small Market TV Broadcasters to Begin To Upload Their Political Files into Their Online Public File as of July 1

Two weeks ago, we wrote about the complaints filed against 11 big-market TV stations about deficiencies in the political broadcasting paperwork in their online public file.  This week, the FCC’s Office of Political Broadcasting in its Media Bureau sent letters to all of the stations involved, asking that the stations respond to the complaints and provide details about the factual assertions that were made, by May 27.  At the same time, the FCC Chairman issued a Statement, reminding TV broadcasters of the importance of the political file, and how seriously the FCC takes any violations of its rules.

While having the FCC staff respond to complaints with requests for more information is not unusual, the speed with which the letters were sent is.  Rarely does a complaint trigger an FCC response in less than two weeks.  And rarer still is an accompanying press release from the FCC Chair talking about the importance of the subject matter of the complaint.  These actions only serve to highlight what we wrote last week – that stations need to be vigilant in reviewing their online public files – and particularly the political files – to make sure that the records are accurate and timely.  And, as stations in smaller markets need to be ready to put their political files online by July 1, they need to be prepared as well. 
Continue Reading FCC Chairman Reminds TV Broadcasters of the Importance of their Online Political File Obligations as its Staff Investigates Complaints about Deficiencies