Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations. Here is this week’s list of significant
As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty. We provided this overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality. What do stations do when confronted with these claims?
We have written about this issue several times before (see, for instance, our articles here and here). In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee. If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content. Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here). Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent. In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad. But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? …
Continue Reading Demands to Pull Attack Ads in the Closing Days of the Election – What is a Station to Do?
We’re down to the last week and a half before the election, but broadcasters can’t let up quite yet, as the last week is almost always the busiest for political advertising. Candidates, PACs and other groups try to get the last word before the voters go to the polls. Here are three issues that broadcasters…
As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty. With the rise in the number of attack ads, stations are facing more and more demands from candidates who are being attacked in these ads, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality. What do stations do when confronted with these claims?
We have written about this issue several times before (see, for instance, our articles here and here). In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee. If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content. Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here). Because the station cannot pull the ad based on its content, the station has no liability if the candidate ad defames their opponent. The opponent’s only remedy is to sue the candidate who ran the ad. But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? …
Continue Reading Demands to Pull Political Attack Ads – What is a Station to Do?
According to Politico, Ted Cruz’ campaign has demanded that TV stations pull certain PAC ads which he claims distort his voting record on immigration issues. This kind of claim from a political candidate about the unfairness of attack ads is common. Here, Cruz’ representatives apparently don’t threaten lawsuits against the stations for running the ads, but suggest that it is a violation of the stations’ FCC obligations to operate in the public interest to continue to run the ads. What is a station to do when such a claim is received?
We have written many times about this issue. Much depends on who is sponsoring the attack ad. If the ad is sponsored by the authorized campaign committee of another candidate, and features the voice or image of the sponsoring candidate, the station cannot do anything. As we wrote in detail here, a station cannot censor a candidate ad. Once it has agreed to sell time to a political candidate or his or her authorized campaign committee, the station must run the ad as delivered by the candidate without edit (with the very limited exception of being able to add a sponsorship identification if one is missing, or when running the ad would constitute a felony, e.g. running a spot that is legally obscene – not just indecent but obscene, meaning that it has no redeeming social significance). Because the station is required to run the ad as delivered by the candidate, the station has no liability for the content of the ad. So, if the candidate being attacked complains, the station can do nothing to edit, censor or pull the attacking candidate’s ad without violating the “no censorship” provisions of Section 315 of the Communications Act. The candidate being attacked has a remedy against the ad’s sponsor, not against the station. Third party ads, however, are different.…
Continue Reading Ted Cruz Demands Takedown of PAC Ad Attacking His Voting Record – Issues that Broadcast Stations Need to Consider When Threatened by Candidate Wanting an Ad Pulled
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
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.
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.
With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads? Of course, there are revenue considerations. But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads? Often, it’s because broadcasters have to – under the applicable laws. We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip. The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules.
Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad. What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes). If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC. But that immunity arises only because the station cannot, under law, reject the ad. So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad. (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here) So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.
Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory. Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours. If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it. So what should Ms. Allred have argued about the Terry ads?
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