Entering the last full week before the mid-term elections, broadcasters need to beware of the political broadcasting issues that can arise in the tail end of the campaign season.  With the media expecting political ads to get even dirtier in these final days (see, for instance, the Washington Post’s article yesterday – The Year of Playing Dirtier), potential liability looms for broadcasters if they run unfounded third-party attack ads (see our October 18 posting on Dealing With Issue Ads).  But there are other issues of concern.

In this hot political season, in states with closely contested races, equal opportunities requirements can cause advertising inventory concerns during these last days.  When writing new orders for candidate advertising time in these last days, be sure to factor in buys by political opponents who will be entitled to demand equal opportunities – to be provided before the election.  Remember that reasonable access does not demand unlimited access, only what is reasonable under the circumstances.  In determining what is reasonable, a station can look at inventory concerns, as well as the potential for equal opportunities demands from other candidates.  So remember to save room for those equal opportunities requests.Continue Reading Last Minute Political Issues for the Campaign’s Closing Days

As we predicted in our entry of October 14, the FCC yesterday ruled that the Tonight Show appearance of Arnold Schwarzenegger, who is running for reelection as Governor of California, was a bona fide news interview program exempt from equal time obligations.  As our October 14 posting set out in detail, previous decisions…

As we wrote here last week, a station has no obligation, and in fact no right, to edit a candidate’s ad, so it has no liability for the contents of that ad. But at this time of year, we are receiving many calls about ads from third party groups who want to address an election…

This past week’s appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply.   While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.

While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs."  But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs.  To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.

The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt.  And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues.  Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience.  And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC’s standards, without the need for a prior determination from the FCC that they are exempt.

Continue Reading Arnold and Leno – Making Law?

From watching television in almost any state with a contested election, it’s clear that it’s political season again.  As the ads multiply, one of the most common tactics to disrupt an ad campaign is to write a letter to a  station saying that the ad is untrue and should be pulled.  However, when an ad is purchased by the candidate or his authorized campaign committee in connection with the campaign, and contains the voice or picture of the candidate, the circumstances in which an ad can be pulled are quite limited.  Nevertheless, the questions are rolling in. 

In one race in the Midwest, stations received complaints about a Federal candidate ad that did not contain the full disclaimer required by BCRA (the Bipartisan Campaign Reform Act, which requires the now familiar statement from Federal candidates that “I’m John Smith, and I approved this ad”). A competing candidate urged stations to pull the ad that did not contain that disclaimer. In fact, stations cannot pull the ad that does not contain the disclaimer (as long as it has the FCC mandated “paid for” or “sponsored by” language at the end of the spot). While the candidate may get into trouble with the Federal Election Commission for not having the BCRA language, and the station may deny lowest unit rate if the required language is not on a spot that mentions an opposing candidate, the spot cannot be pulled from the airwaves.

In another race in a Western state, the question was raised about the use of one of the words that the FCC has ruled to be "indecent" in almost any circumstance.  At the NAB Radio Show, the FCC’s Bobby Baker was asked if such  an ad could be channeled to the "safe harbor" periods after 10 PM.  Bobby answered that it was possible that such channeling would be permitted, but that the FCC has never addressed that question.  So, for now, the issue is unsettled until someone asks for a declaratory ruling or the issue is otherwise put before the FCC.Continue Reading The Censorship Issue – Dealing with Objections to Candidate Ads

At a continuing legal education seminar held by the Federal Communications Bar Association a week ago, Bobby Baker, the FCC’s chief of the Office of Political Programming, confirmed an issue that has been confounding broadcasters for many months. In recent years, several organizations, including Google’s dMarc service, have begun to take remnant advertising inventory from broadcasters…

A front page article in today’s Washington Post reports that the National Republican Congressional Committee expects to spend about $45 million on negative campaign ads this year, attacking Democratic challengers on personal and character issues.  One academic quoted in the article indicated that this year’s election may be "a more negative campaign that any in recent memory."

If the Republican Party spends money, no doubt the Democrats and other interest groups will be spending as well in this tight election with control of Congress potentially at stake.  For broadcasters, this means that they will be in for lots of controversy, and lots of work. 

When a legally-qualified candidate buys advertising time on a broadcast station, the station cannot censor that ad.  Therefore, the station is exempt from any liability for the content of that ad.  But when the ad is purchased by a non-candidate third party group, the station has no obligation to run the ad, and therefore, if the ad is defamatory, the broadcaster could have liability for running it.  Particularly if the broadcaster knows or suspects from the content of an ad that it is false, or is put on notice that the facts contained in the ad are untrue, the broadcaster faces liability if it does nothing to investigate the truth of that ad.  So, if a broadcaster is running an attack ad and gets a complaint about the truth of the ad (most likely from the candidate being attacked), the broadcaster needs to verify the truth of the claims being made before any further airing of the ad.  And usually the proponent of the ad will have reams of paper to support the claims that are made – support that needs to be evaluated by the broadcaster.Continue Reading Negative Ads Expected to Increase