Political Broadcasting

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A recent article in the Chicago Tribune demonstrates that the FCC’s Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as “Equal Time“) to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races – such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.Continue Reading Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air – Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

The care and feeding of the broadcaster’s public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations’ files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I’ve conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children’s television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station’s compliance with the Children’s television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.Continue Reading The Care and Feeding of the Broadcaster’s Public Inspection File – An FCC Reminder and a Compliance Seminar

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act’s prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing…

In these last days before the November election, the third-party ads attacking candidates in various political races don’t show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.

While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham’s representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.Continue Reading California Congressman Files Suit against TV Stations for Alleged Defamation in Third-Party Advertising

The FCC today acted on a reasonable access complaint by Randall Terry against a Washington DC television station, ordering the station to sell commercial time to his campaign as he is on the ballot as a legally qualified candidate for President in the state of West Virginia. The decision was based on the Commission’s finding that a…

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 thus the broadcaster is not liable for the content of a candidate’s ad. So no matter what the candidate may say – the broadcaster runs the ad as is.  Ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are, however, 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.  Even though broadcasters can reject political ads that come from third-party groups, they rarely do, and we seemingly see just as many outrageous claims about candidates in third party ads as we see in the candidate ads that can’t be censored. Why don’t broadcasters more aggressively decide which ads are truthful and which are not, and reject those ads that are not accurate?

A recent article in the Tampa Bay Times asks that question, citing a political ad running on a television station which had, in a news segment, determined that the contents of the ad were not true. Why was the ad still running on that very station? I spoke to the author, and was quoted as saying that broadcasters don’t want to act as “gatekeepers.”  In more detail, I said that broadcasters don’t want to be in the position of being the arbiter of what ads are "truthful enough" to run and which ones should be rejected.  In the political world, the concept of “truth” is often in the eyes of the beholder. Whether a candidate a “big-spending liberal” or not is not a claim that cannot be factually evaluated. Even in cases where the import of specific legislation is involved, or questions of what a piece of legislation accomplishes or the purposes underlying its adoption can be seen by different people in the political world from very different perspectives, making determinations about “truth” very difficult.  In the eyes of some, a legislative act may be motivated by a desire to respond to constituent desires, but in the eyes of others that same act may be motivated by caving in to special interests or as part of some vast conspiracy to undermine the American way.  In most cases, broadcasters are reluctant to draw lines as to when an ad is truthful enough to run on the air and when it is not – instead leaving the debate over the "truth" to the marketplace of ideas. If someone thinks that an ad is untrue, they can buy their own ad and spell out their position on the issue. (See this article from the Denver Post  complementing TV stations on fact-checking and making their results available for the public to check on the veracity of political ads).  But does that station need to worry about liability for the third-party ad?Continue Reading Political Broadcasting Refresher Part 5 – Why Don’t TV Stations Pull More SuperPAC Ads? Is There Potential Liability for These Ads?

How can political attack ads get away with taking out-of-context statements of the candidates that they are attacking, and twisting these statements to convey meanings that were never intended by the candidate who first uttered the words? And how can political ads take a single line of an incredibly complex piece of legislation and use that legislation to allege that a candidate has violated some core belief that the candidate espouses on the campaign trail? Do stations have liability for these attack ads, and must they react when the candidate being attacked asks that the ad be pulled? In the fourth of our series of political broadcasting refreshers (following those on lowest unit rates, equal opportunities, and reasonable access), we’ll address the question of the no censorship provision of the rules and what rights stations have to deal with the content of political ads.

Starting with the basics, the FCC rules (stemming from Section 315 of the Communications Act) prohibit broadcasters from censoring the content of advertising that is a “use” by a candidate. Essentially, that means that the broadcaster cannot reject an ad that is sponsored by the candidate or the candidate’s official campaign committee, if that ad has the recognizable voice or image of the candidate somewhere in the course of the ad. No matter how outrageous the statement of the candidate may be, the station cannot refuse to run the ad (with the limited instance of ads that are legally obscene or which otherwise may violate some Federal felony statute). So, even if an ad by a candidate may be totally untrue in claims made about the candidate’s opponent, or even if it could give rise to other civil liability (for instance if it is defamatory or a copyright violation), the station cannot refuse to run the ad.Continue Reading Political Broadcasting Refresher Part 4 – No Censorship – How Can Candidates Get Away With Those Attack Ads?

In recent days, we’ve been writing about political broadcasting topics in anticipation of the November election. We provided a refresher on the basics of lowest unit charges on Monday, and equal opportunities on Wednesday.  Today, we’ll look at reasonable access – how much time must stations sell to political candidates (or give to them if they would rather meet their obligations through free time, which few stations are willing to do). Reasonable access requires broadcasters to make reasonable amounts of time available to candidates for Federal office – in all classes and dayparts on all commercial broadcast stations (noncommercial stations were exempted by Congress about a decade ago when candidates started to demand free time on these stations). With the expected onslaught of political advertising coming up in most battleground states, stations fearful of having to devote all of their commercial time to election advertising wonder just how much time is reasonable?

The FCC leaves the determination as to what is “reasonable” to the reasonable discretion of the station, as long as access is provided to all classes and dayparts on the station.  The discretion, though, is to be exercised in coordination with the political candidates themselves. For Federal candidates, stations should not put up-front limits (e.g. in a political rate card or on a political disclosure statement) as to how many spots they will sell to any Federal candidate in any specified period of time. Instead, stations are supposed to engage in a give and take with the candidate, accessing the candidate’s needs and desires and weighing them against the needs of the station to provide advertising to other clients.  After hearing the needs of the candidates, it is up to the station to reach a determination as to what is reasonable. If stations give candidates at least some access to all classes and dayparts on their stations, even if it is not as much as the candidate wants, stations have traditionally been given the benefit of the doubt by the FCC.Continue Reading Political Broadcasting Refresher Part 3 – Reasonable Access – How Much Advertising Time Must Be Sold to Candidates?

Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.

At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.Continue Reading Political Broadcasting Update Part 2 – Equal Opportunities

Now that the Democratic and Republican conventions are over and the candidates begin the final sprint to the November 6 elections, the political broadcasting season goes into overdrive. Effective last Friday, lowest unit rates are in effect. In this year which will probably break all records for political spending, is your station ready to comply with all of the political rules? We thought that we’d provide a series of articles on some of the basics of the FCC political broadcasting rules, to make sure that your station is prepared to deal with the most common issues that arise in a political season.  Today, as the lowest unit charges have just kicked in, we’ll hit some of the common questions that we get about these rates.  In coming days, we’ll address other areas of the FCC’s political 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  in any class of advertising time for a spot in that class that is then running on the station. 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 so many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.Continue Reading Political Broadcasting Reminder Part 1 – The Basics of Lowest Unit Charges