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Advertising from Stephen Colbert’s Super PAC was rejected by Des Moines television station WOI-TV, based on its belief that these commercials would be confusing to Iowa voters.  Colbert, the host of Comedy Central’s the Colbert Report, has formed his own Political Action Committee to run ads during the upcoming Presidential election.  The first ads ran in Iowa this past week – making fun of the amount of third party money that was being spent on political advertising in Iowa and urging voters to vote for "Rick Parry", with an "a" rather than "Rick Perry."   WOI-TV, rejected them, while the spots ran on all other stations in Iowa’s capitol city.  Are there legal issues with this station deciding not to run these ads?

Not at all.  The FCC has said many times that broadcast stations are not "common carriers," meaning that they don’t have to run all advertising time that advertisers want to run on their stations.  Instead, stations pick and choose among the ads that are brought their way, and stations have an affirmative duty to reject ads that they feel are not in the public interest.  So, while many may question whether these Colbert ads were outside of the norms applied to advertising in the public interest (as Colbert himself argued that the station runs many other ads as likely to confuse the public on many issues), the station has the absolute, non-delegable duty to decide on its own what is and what is not in the public interest – with the very narrow exception of candidate ads.Continue Reading Colbert Super PAC Ad Rejected by Iowa TV Station – Can They Do That?

This past week’s political news seemed to be all about Donald Trump and his possible run for the Presidency – and his plans to announce his intent to run on the season finale of The Apprentice.  When, a week ago, we wrote about the President declaring his candidacy, there was little interest in our post, and there seemed to be little news attention in general to that announcement.  But when Donald Trump started making noise about his possible Presidential run, and his plans to announce his intent on the season finale of The Apprentice in May, our phones started ringing, asking how can he do that?  My partner David Silverman was quoted in a Huffington Post article, while my analysis was misunderstood in a Hollywood Reporter legal blog (see why I was misunderstood below).  But the question remains – can Trump continue on The Apprentice while signaling his interest in running for President?

In fact, there is no FCC rule that prohibits a broadcaster from giving airtime to a political candidate on any kind of program, as long as they are willing to provide equal time to opposing candidates.  There may be other legal issues involved in giving time to a candidate as it may in effect be a deemed a campaign contribution to the candidate (an issue apparently for PACs as well, as explained by that legal scholar Steven Colbert, here), but the FCC’s equal time rules don’t prohibit the appearance of a candidate on an entertainment program, they only demand that the stations that broadcast the program give equal amounts of time to opposing candidates who ask for it – if the opponents ask for it within 7 days of the candidate’s appearance.  And that is often the first issue – will the opposing candidate ask for it?  None of the Republicans asked when cable networks continued to run episodes of Law and Order featuring Fred Thompson, even after Thompson declared his candidacy for the Republican nomination.  Nor did other candidates request time after there was a parade of candidate appearances on Saturday Night Live during the last election (see our post on this pattern of candidates passing on their equal time rights).  But would a Trump declaration of a candidacy on The Apprentice even face that minimal risk?  Probably not.Continue Reading Donald Trump May Declare Presidential Candidacy on The Apprentice – FCC Legal Issues?

With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year’s elections should not be distracting broadcasters from their current political broadcasting obligations.  I’ve received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 – including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules – including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate’s spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees – those rates only become effective 45 days before the primaries – so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts – even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, as we’ve written before, the FCC has determined that most interview programs where the content is under station control – even those that have little news value on the normal day – are deemed "news interview programs" exempt from equal time rules.  Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program – and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political officeContinue Reading President Obama Declares Candidacy – What Political Broadcasting Rules Should Broadcasters Be Considering Now?

Many broadcasters, both television and radio, have been running the NAB spots on the Future of Television.  Those spots contain a description of the service available from local television stations and the new technologies that over-the-air television are in the process of deploying, and end with the suggestion that the Future of Broadcast Television lies in "technology not regulation from Washington DC."  Obviously, these ads are geared to address some of the many legislative and administrative issues facing TV broadcasters – including the proposals to take back some of the TV spectrum for wireless broadband uses.  Given that these spots could be arguably be seen as addressing Federal issues, to be safe, they should be identified as issue ads in stations’ public inspection files, and appropriate information about those spots should be placed in the files.

The NAB, in announcing the availability of these spots, suggested this same precaution.  We’ve written before about issue ads, and the need to place notations in the public file about these ads. For instance, when stations ran ads on the broadcast performance royalty, we suggested that same treatment (and proponents of the royalty complained that broadcasters might not be making such notations).  What needs to go in the public file?  As the issues are Federal ones (as opposed to state and local issues that have lesser disclosure obligations), the requirements are similar to those that apply to political candidates. Continue Reading Is Your Station Running the NAB Future of Television Spots? Are You Identifying Them As Issue Ads in Your Public File?

The Supreme Court issued its landmark opinion in Citizens United v. FEC one year ago today.  That case allowed corporations and labor unions to make independent expenditures for or against political candidates.  An editorial in today’s Washington Post by the President of Citizens United and its lead counsel argues that the hysteria following that decision was unfounded because the amount spent by citizen groups in the last election paled in comparison to the amount spent by the Democratic and Republican parties and by the candidates themselves.  Rather, the authors argue, the primary political speech to come out of the Supreme Court’s decision has been that of independents, and politicians are upset by this because they cannot control the speech of independents.

 As a reminder, the Supreme Court case arose as a result of a film directed against then Presidential candidate, Hillary Clinton.  Citizens United was a nonprofit corporation that produced the film, and there was debate whether this was a "documentary" or an "electioneering communication," as well as whether distribution via video on demand constituted "public distribution" of the film.  The Supreme Court found that the film was indeed an "electioneering communication" and that VOD was likewise a public distribution of the film.  Thus, Citizens United ran smack up against the FEC prohibition on independent corporate political expenditures.Continue Reading “Citizens United”: The Supreme Court Decision One Year Later

Citizens United has led to many third party political ads, which in turn has led to many cease and desist letters to broadcasters and cable operators that they pull those ads. Most concern “false and misleading” statements, which should not be a concern in the political realm. A few concern potential defamation, which may be of concern. Getting substantiation is wise, but in most cases, there is no need to pull the ads in question.
Continue Reading What to Do With Cease and Desist Letters About Political Ads

In the waning days before the mid-term election, we have received many questions about the applicability of the political broadcasting rules to state and local candidates.  In particular, we have seen a number of letters from attorneys representing candidates who are running for state and local offices (everything from Governor to county commissioner or school board representative), who claim that an attack by an opposing candidate is unfounded and that a broadcast station must pull that ad from the air.  Just as is the case with Federal candidates, ads by state candidates cannot be censored by a station.  Thus, except in certain very unusual situations (where the language of the ad would violate some Federal criminal statute, e.g. if it is obscene), a station must air the ad as it was created.  It cannot be rejected because the station disagrees with the content or the tone, and it cannot be pulled even if the opposing candidate believes it to be defamatory.  Because the station cannot censor a candidate’s ad, they have no liability for the content of the ad, i.e. they cannot be held responsible for any defamatory content that it may contain, even if they are on notice of that content.  They cannot censor an ad by a candidate or a candidate’s authorized campaign committee – whether that candidate is running for a Federal, state or local office.

Note that, as we have written many times, this is in contrast to those situations where a candidate complains about an attack ad sponsored by a non-candidate group.  In those cases, the station does have the option of whether or not to run the ad (the no censorship provisions of Section 315 of the Communications Act do not apply).  Thus, if the station is on notice that there is potentially defamatory content in an ad, it must do some investigation of that ad, and make an informed decision about whether or not to allow the ad to continue to run.  If it does not investigate, and continues to run an ad that is defamatory after receiving notice of that fact, in some extreme cases, it could face liability for that defamatory content.Continue Reading Political Broadcasting Reminder – State and Local Candidates Subject to Lowest Unit Charge, No Censorship and Equal Opportunities Rules

While most of the FCC’s political broadcasting rules have remain unchanged for almost 20 years, each year there are a few new wrinkles that arise, and seemingly a few misconceptions that make the rounds among advertising agencies that work with political candidates.  One such misconception that seems to be circulating this year is that an ad for a state or local political candidate does not need to have their voice or picture to be a "use" under FCC rules.  Only "uses" are entitled to lowest unit rates and subject to the no censorship provisions.  For some reason, agencies in several states have tried to convince broadcasters that, as long as a spot has a sponsorship identification at the end (and, for television, a textual sponsorship identification 4% of screen height for 4 seconds), that spot is a "use."  But that is not correct.  A "use" requires that the recognizable voice or picture of a candidate be in the spot – and that is true even for spots for state and local candidates.  Some advertisers may be confused by the change in Federal laws (now itself almost a decade old) that required that Federal candidates identify themselves in their ads and personally state that they approved the message of the ad,  Perhaps some of the advertisers think that, because the law for Federal candidate is so detailed, and because it does not specifically cover state candidates (though several state laws now have imposed the same obligation on state and local candidates in their states), there is no requirement at all for state and local candidates to appear in their ads.  But they are not correct – for a spot to be a use, a candidate him or herself must have a recognizable voice or image in that ad.

While it is not illegal for a station to run a state or local candidate’s ad when the ad does not have a candidates voice in it, there are important ramifications for the station if the spot is not a "use".  First, without the candidate’s voice or picture, the ad is not entitled to lowest unit rates.  There has been some controversy, not settled by the Federal Election Commission and perhaps subject to interpretations under state election commission rules, about whether a station that charges a candidate lowest unit rates for a spot not entitled to such rates may be making a corporate campaign contribution to that candidate, which is prohibited under Federal law and in most states.  Most importantly for the stations, if the spot does not have the candidates voice or picture in it, the spot is not covered by the ‘No censorship" provision of Section 315 of the Communications Act.  That provision prohibits a station from rejecting a candidate’s ad based on its content.  But, because the station can’t reject the ad based on its content, the station has no liability for the contents of the ad.  Conversely, if the ad does not have the appearance by the candidate in it, then the station is free to reject it based on its content, and thus the station could theoretically have liability for the content of the ad.  As we approach a heated election season where stations don’t want the obligation to check the veracity of every claim made by one candidate about an opposing candidate in an attack ad, stations should be careful to insure that spots purchased by candidates are in fact uses, containing the recognizable voice or picture of the candidate – even for state and local candidates. Continue Reading Remember that Political Ads By State and Local Candidates Need to Have Candidate’s Recognizable Voice or Picture to Be a Use

In the last few weeks, I’ve been asked several times by broadcasters whether an ad should be considered an "issue ad."   Usually, the ad in question deals with some sort of faintly controversial issue, and the broadcaster seems torn about how to classify the ad.   In many ways, the answer is almost irrelevant as, other than some public file obligations, whether or not an ad is an issue ad has little practical significance.  Issue ads are not entitled to special rates – lowest unit rates are reserved for candidate ads.  They are not entitled to special placement in broadcast schedules.  As there is no Fairness Doctrine, there isn’t even a requirement that you treat both sides of an issue in the same fashion (except perhaps, where a Fairness obligation may still arise if the issue being discussed is a candidate in an election, when the last remnant of Fairness, the Zapple Doctrine, has not officially been declared dead).  So why worry about whether or not something is an issue ad?

The principal reason is the public file. Commission rules require that the sponsor of an issue ad be identified in a broadcaster’s public file, along with the sponsor’s principal officers or directors.  This is required for any ad dealing with a controversial issue of public importance.  The ad does not need to deal with a political issue, or one to be considered by a government body.  Any controversial issue of public importance merits the public file treatment.  For ads dealing with a "federal issue", one to be considered by the US Congress, any Federal administrative agency or any other branch of the United States government, additional disclosures need to be made in the file (which we have listed before), setting out all the information that you would need to provide with respect to a candidate ad – including the price paid for the ad and the schedule on which the ad will run. Continue Reading So Just What is an “Issue Ad” and Why Should I Care?

On May 27, 2010, David Oxenford spoke to the Vermont Association of Broadcasters annual meeting in Montpelier, updating the broadcasters on Washington events of importance, and discussing the FCC’s political broadcasting rules.  A copy of Dave’s PowerPoint on issues of importance to broadcasters will be posted here soon.  Broadcasters may want to refer to Davis Wright Tremaine’s Political Broadcasting Guide for a discussion of the political broadcasting issues that may arise in this election season.  One of the political broadcasting issues that was discussed in detail was the issue of what a station should do when faced with a political ad that comes from a third party, attacking a political candidate, and the candidate tells the station that the ad is untrue and, if it continues to run on the air, it may subject the station to liability.

This issue may be coming up more in the coming months.  The recent Citizens United case signals the potential for more campaign spending by corporations and labor unions. This money would be spent directly by these organizations, not contributed to the candidates, as the case did not loosen the limits on corporate contributions directly to candidate’s campaign committees. Thus, as the ads will not come from candidates, they will not be subject to the “no censorship” rule that applies only to candidate ads. Because the no censorship rules prevent a broadcast station from rejecting a candidate’s ad based on its content, stations are protected from any liability for the content of those candidate ads. In contrast, broadcasters are free to reject ads from corporations, labor unions, or other non-candidate groups. Because they can choose whether or not to accept such ads, they can technically be held liable for the contents of those ads, should the ad be defamatory or otherwise contain legally actionable material. This should not be new to broadcasters as, even before Citizens United, stations were often faced with complaints from candidates about ads from third party interest groups (like the political parties’ campaign committees, or so-called 527 groups like MoveOn.org) that were permitted to advertise even before the recent decision. Most broadcasters want to be able to accept these advocacy ads from non-candidate groups, but they also want to avoid potential liability. What is a station to do when it receives such an ad, or when an ad is already running and a candidate complains about its contents?Continue Reading David Oxenford Speaks to Vermont Broadcasters – Addresses What to Do When a Station Receives a Complaint about the Truth of a Political Ad