Political Broadcasting

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Last week’s announcement of the partnership between eBay and Bid4Spots and the impending full launch of Google’s service to sell online radio spots beg for FCC action to clarify how these services will be treated for lowest unit rate purposes. We have written about this issue before (see our note here), and the increasing number of online sales tools for broadcast advertising inventory highlights the issue. If advertisers can buy spots using these online systems on a single station, or if stations offer their spots to a particular advertiser at a set price for a specific class of spot, it would seem that these spots could have an effect on the station’s lowest unit rate if the spots sold through the online systems run during lowest unit rate periods (45 days before a primary or 60 days before a general election.). For the peace of mind for all broadcasters, it would be worth the FCC clarifying the status of these services as we hurtle toward what will probably be the busiest political year ever.

In looking at some of these systems, it appears that some of these systems are premised on specific stations offering spots to advertisers on a cost-per-point basis, for specific dayparts as designated by the advertiser and agreed to by the station.  For instance Bid4Spots system advertises that it holds an auction to sell the spots on Thursday for the following week.  And it appears that spots must be sold by a station in specific dayparts on a non-preemeptible basis. For the week in which the spots are offered, the sale of such spots would appear to set a lowest unit rate for non-preemptible spots that run in the same time period. Continue Reading Will On-Line Spot Auctions Have an Impact on Lowest Unit Rate? – Only the FCC Knows For Sure

This past week, former Senator Fred Thompson created a committee to explore a run for the Presidency.  In every article written about the former Senator, like one recently run in the Washington Post, mention is made of his current broadcasting career – his role on Law and Order and as a guest host on Paul Harvey’s radio program.  And all the articles assume that the campaign will result in the termination of these roles, and also present issues about the broadcast and cablecast of reruns of Law and Order episodes and old movies in which he appeared.  In some cases, that is true.  In others, it remains to be seen.  But the potential candidacy does offer a good opportunity for a review of the equal time obligations of broadcasters under FCC rules.

"Equal time" or "equal opportunities" require that broadcast stations give treat candidates for the same political race in an even-handed fashion.  If they sell time to one candidate, they have to give the other candidate equal opportunities to buy the same amount of time in programs reaching roughly the same size audience.  If time is provided to a candidate without charge, and the candidate’s on-air appearance is outside of a news or news interview programs and is not part of on-the-spot coverage of a news event, then the broadcaster must make equal time available to the opposing candidate, if that candidate requests it within 7 days of the use by the first candidate.

However, none of these obligations arise until a candidate is legally qualified – essentially when he or she has filed the necessary papers to obtain a place on the ballot in accordance with the governing law of the jurisdiction in which the election will be held.  In Thompson’s case, as he has not even officially announced that he is running, he is not yet a legally qualified candidate, so for the time being, there is no issue with the continued airing of the programs in which he appears.  Continue Reading Law and Order: Equal Opportunites – The FCC Implications of Fred Thompson’s Possible Presidential Bid

The FCC today issued the long-awaited text of its decision on Digital Audio radio – the so-called IBOC system.  As we have written, while adopted at its March meeting, the text of the decision has been missing in action.  With the release of the decision, which is available here, the effective date of the new rules can be set in the near future – 30 days after its publication in the Federal Register.  With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues – some not confined to digital radio, but instead affecting the obligations of all radio operations.

The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations.  The Order also permits the use of dual antennas – one to be used solely for digital use – upon notification to the FCC.  In addition, the order addresses several other matters not discussed at the meeting, as set forth below.  Continue Reading FCC Issues Rules on Digital Radio – With Some Surprises that Could Eventually Impact Analog Operations

Last week, House Commerce and Energy Committee Chairman John Dingell reportedly stated that he favored the return of the Fairness Doctrine, and couldn’t see why broadcasters would be opposed.  We’ve suggested reasons, here and here.  But the reports are that Congressman Dingell may try to move legislation to accomplish the return of the Doctrine later this year.…

The Presidential election in 2008 seemingly has a record number of candidates who will apparently have a record amount of money to spend on political advertising.  One would think that broadcasters would be celebrating their likely share of this spending.  While broadcasters will no doubt be the recipients of much political spending, the timing of this election’s early primaries may also present problems – as political advertising will be running during the broadcasters’ busiest advertising season – the period between Thanksgiving and Christmas.  Many of the largest states are now planning a primary in early February, meaning that the lowest unit rate window for political advertising, which begins 45 days before a primary or caucus, will become effective the weekend before Christmas.  And for those states with earlier contests (Iowa, New Hampshire, Nevada and South Carolina), the lowest unit rate period will be in effect for much of December.

Of potentially more concern will be the fact that candidates will be entitled to reasonable access to the airwaves even before the lowest unit rate periods begin.  Under FCC rules and policies, once a candidate is legally qualified to be on a ballot in a state (or for President, once he or she is qualified in ten states, the candidate is qualified in every state), the candidate is entitled to reasonable access to all "classes and dayparts" of advertising time offered by a station.  While the determination of how much time is reasonable is in the discretion of a station, that discretion is not absolute.  Stations must provide at least some time in all dayparts to all qualified candidates for President who request such time, so this may put a strain on commercial inventory in the pre-Christmas period in many states with hotly contested Presidential primaries or caucuses.Continue Reading Early Presidential Primaries May Present Christmas Season Problems for Broadcasters

I’ve received several calls in the last week asking if the political broadcasting rules apply to municipal elections – such as elections for mayor, city council, or school board.  Even though this is an "off year" for Federal elections, many communities around the country have local elections, and in some of those elections, candidates have sought…

Today’s New York Times carried an article announcing that the Mitt Romney campaign is planning to run advertising spots for his Presidential campaign in five states – at least 10 months before the first contest for delegates to the Republican presidential nominating convention.  With this first purchase of political time in what promises to be a very…

Last week, we wrote about the potential return of the Fairness Doctrine, reminding broadcasters what the doctrine had really meant – free commercials to groups that wanted to respond to purchased ads addressing controversial issues of public importance, and few if any editorials or controversial programming that took a position on issues, as that would also…

The new Congress has started its oversight of the FCC, and one of the first topics to be brought up is the reintroduction of the Fairness Doctrine. Presidential candidate and head of the House of Representatives Domestic Policy Subcommittee of the House Government Reform Committee, Dennis Kucinich, was the first to call for hearings about the reintroduction of the doctrine.  Others have joined in that cry, including it in a bill introduced in the House and Senate to reform the media ownership rules. But do these perhaps well-intentioned Congressmen really remember what the Fairness Doctrine meant? Basically, bland broadcasting.

The Fairness Doctrine was, for the most part, declared unconstitutional by the FCC in the late 1980s (though some limited aspects of the policy have persisted until very recently). The Commission decision finding the Doctrine to be unconstitutional made sense, as its application clearly abridged the free speech rights of broadcasters. Basically, the Fairness Doctrine required fair and balanced coverage of all controversial issues of public importance. While that may sound like a good goal (one good enough to be adopted by Fox News), in fact it resulted in bland programming. Continue Reading The Fairness Doctrine – Prescription for Bland Broadcasting

The Bipartisan Campaign Reform Act ("BCRA") adopted in 2002 prohibits the purchase of broadcast commercials by labor unions and corporations using their general funds during the 30 days before a Federal primary and the 60 days prior to a Federal general election. The Act prohibited these "electioneering communications," and essentially defined an electioneering communication as any mention of a Federal candidate. The Supreme Court this past week decided to hear the appeal of a US District Court decision which found the prohibition unconstitutional as applied to a Wisconsin Right to Life group, organized as a corporation, which had purchased ads mentioning a candidate in the 60 days prior to an election. If the Supreme Court upholds this decision, we may see more corporate and union money spent on advertising prior to the 2008 elections.

The District Court decision is not so broad so as to allow unlimited political advertising by these groups. Instead, the Court only held that advertising that was directed at specific issues (in this case Senate filibusters of judicial nominees) was not prohibited if the message was not directed at the election. In this case, the ads asked that residents call their Senators and tell them to stop delaying the judicial nominations, naming Senator Feingold, who was up for reelection. Perhaps not so coincidentally, Senator Feingold was one of the principal authors of BCRA (also known as the McCain-Feingold Act). The ads did not specifically tie this issue to the election, or mention Senator Feingold’s candidacy at all. More on the case can be found in an article in Saturday’s Washington Post. Continue Reading Supreme Court to Decide on More Political Advertising