Communications Act Section 315(e)

In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates.  While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress.  In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads.  In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates.  Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content.  And for Federal candidates, broadcasters must accept those ads once a political campaign has started, under the reasonable access rules that apply only to federal candidates.

In fact, as we wrote here, broadcasters are immune from any legal claims that may arise from the content of over-the-air candidate ads, based on Supreme Court decisions. Since broadcasters cannot censor ads placed by candidates, the Court has ruled, broadcasters cannot be held responsible for the content of those ads.  If a candidate’s ad is defamatory, or if it infringes on someone’s copyright, the aggrieved party has a remedy against the candidate who sponsored the ad, but that party has no remedy against the broadcaster.  (In contrast, when a broadcaster receives an ad from a non-candidate group that is claimed to be false, it can reject the ad based on its content, so it has potential liability if it does not pull the ad once it is aware of its falsity – see our article here for more information about what to do when confronted with issues about the truth of a third-party ad).  This immunity from liability for statements made in candidate ads absolves the broadcaster from having to referee the truth or falsity of political ads which, as is evident in today’s politically fragmented world, may well be perceived differently by different people.  So, even though Facebook is taking the same position in not censoring candidate ads as Congress has required broadcasters to take, should it be held to a different standard? 
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Late Friday, the FCC’s Media Bureau issued an order (at this time available in Word format only, here) clarifying its public file rules for political ads – both ads from candidates and from third-party groups.  The FCC’s clarifications require broadcasters who run candidate or issue advertising to include information about not only the candidates mentioned in an ad, but also any Federal issues that the ad addresses.  On sponsorship identification, the FCC focused on third-party ads, requiring that broadcasters make an inquiry as to the complete set of executive officers or the complete board of directors of any sponsor.  The FCC went on to admonish a number of stations for violating the rules but, as the rules were just clarified, only admonished these stations rather than issuing any fines. This decision was in response to complaints filed by the Campaign Legal Center and the Sunlight Foundation alleging the public file omissions of these stations – complaints that we wrote about here.

The FCC’s order interprets Section 315(e) of the Communications Act, which sets the rules for the disclosures required for political ads.  Under that Section, any political ad that deals with a legally qualified candidate, an election for a Federal office, or with any political issue of national importance, must disclose a variety of information.  That information requires that, in connection with any request for political time, the station must disclose in its public file (1) whether or not the request was accepted, (2) the class of time purchased, (3) the price at which it was sold, (4) the name of the candidate that the ad addresses or the election to which it is directed or the issue discussed, (5) if the ad was bought by a candidate’s authorized committee, the name of the committee and its treasurer, and (6) if the ad was not placed by a candidate’s committee, the name of the sponsor and, where the sponsor is not an individual, the name of the sponsor’s chief executive officers or its executive committee or its board of directors, plus the name, phone number and address of a contact person at the committee.  These requirements were clarified in several respects by the FCC’s order.
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