The deadline for 2022 candidates in Texas to file for a place on the March 1 primary ballot was this past Monday.  Deadlines in other states will follow during the first part of 2022.  As a result, broadcast stations and cable companies in Texas are already dealing with legally qualified candidates, and the FCC political rules that attach to those candidates.  Stations in other states will follow soon.  Even before these deadlines, stations are dealing with buys from potential candidates, PACs, and other third-party groups looking to establish positions for the important 2022 elections. Spending on political advertising is sure to increase as the new year rolls around, and some suggest that it could rival that spent in 2020. What should broadcast stations be thinking about now to get ready for the 2022 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates, which become effective 45 days before the primaries (or before any caucus which is open to members of the general public). In Texas, those rates will begin in mid-January for the March 1 primary, and lowest unit charge (“LUC”) windows will open in other states throughout the first part of 2022.  With these rate windows soon to be upon us, stations should begin the process of determining what rates will apply during the window, as stations are no doubt now writing packages with spots that will be running during the window.  In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.  These articles provide just an outline of issues to consider in determining the rates that will apply in the window, so start conversations now with your attorney and political advertising advisors to make sure that these rates are being determined accurately and in compliance with FCC rules and policies.
Continue Reading Candidate Filing Deadline for the Primaries in the Texas 2022 Elections Just Passed – What Should Your Station, No Matter Where It Is, Be Doing to Prepare for the Coming Election Advertising Deluge?

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • FCC Chairwoman Jessica Rosenworcel’s nomination for another five-year term at the agency was approved by the Senate Commerce Committee. The

On Tuesday, we were deluged with press inquiries about Dr. Oz’s declaration that he was going to seek the open US Senate seat in Pennsylvania – with many questions as to whether his syndicated television program would subject stations that aired it to equal time obligations.  The Doctor avoided issues for stations by immediately terminating his participation on the program, but the events of this week highlight that, with 2022 expected to be a very busy election season that will soon be upon us, many stations may be facing the question of what to do when an on-air employee decides to seek election to a public office.

We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories herehere and here. In 2017, we wrote another article here, updating prior articles on the same subject.  While the rules have not changed in the 15 years that we have been writing about it, it seems that there are always questions, so it is worth revisiting the issues again.
Continue Reading Dr. Oz Decides to Run for the Senate – What to Do When Your On-Air Employee Decides to Run for Public Office

What are a noncommercial broadcaster’s obligations with respect to the political file and the rest of the FCC’s political broadcasting rules?  That is a question that I have heard asked several times in the last few weeks as we approach this most important, and contentious, election.  In short, I think that the answer to this question is that, in most cases, a noncommercial broadcaster will have few if any political file obligations.  Why?

Broadcast stations that are licensed as noncommercial do not have any reasonable access requirements.  What that means is that noncommercial stations do not have any obligation to sell time to political candidates or to make any free time available to the candidates for their messages.  Years ago, reasonable access did apply to noncommercial stations, but when a DC-area congressional candidate used the statutory reasonable access requirements to force a local NPR affiliate (to which many on Capitol Hill listened) to air political commercials, Congress acted to abolish the reasonable access requirement as it applied to noncommercial stations.  So, as noncommercial stations do not need to sell political time to candidates, they are not faced with the political file obligations which have triggered scrutiny from the FCC in recent months.  But that is not to say that there could never be a political file obligation for a noncommercial station.
Continue Reading Noncommercial Broadcasters and the Political File

In recent weeks, with so many government officials looking to get messages out about the coronavirus pandemic, we have received many questions about issues that arise when political candidates appear on public service-type announcements – either free PSAs provided by the station or paid spots purchased by some governmental entity.  While such announcements can be run by stations, if a legally qualified candidate personally appears in the spot (their recognizable voice in a radio ad or their voice or picture in a TV ad), stations need to note the advertising purchase in their FCC Online Public Inspection File, as these spots constitute a “use” by a candidate, and they can also give rise to equal opportunities by opposing candidates.

If the use is in a spot on which the candidate appears is a paid-for spot, then any equal time to which opposing candidates are entitled would be on a similar paid-for basis.  This is the same situation as if a commercial advertiser who voices or appears in their own ads decides to run for office (see our article here).  But if the spot is a free PSA, then the appearance of a legally qualified candidate, even if the PSA says nothing about their campaign, can trigger the requirement to give free equal time to any opposing candidates who make any equal opportunities request within seven days.
Continue Reading Reminder:  PSAs Featuring Candidates Can Give Rise to Equal Time and Public File Obligations

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an

On January 18, the lowest unit charge window for Presidential primaries or caucuses begins in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  The LUC window opened on January 15 for South Carolina’s Democratic primary and will open on January 23 for stations in Puerto Rico.  Soon behind, on January 25, lowest unit charge windows for presidential contests open in Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), and Washington State.  The window opens on January 27 in the US Virgin Islands and West Virginia. January 29th is the opening of the window for contests in Guam (R), N. Mariana Islands (D) and Wyoming (R).

In these windows, when broadcasters sell time to candidates for ads in connection with the races to be decided on these dates, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles herehere and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.
Continue Reading Lowest Unit Charge Windows Open in About 30 States and Territories – Reviewing A Broadcaster’s Political Advertising Obligations

While next year’s federal elections are already receiving most of the publicity, I’ve been getting a surprising number of calls about elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Kentucky, Louisiana and Mississippi, and all sorts of state and local elections in different parts of the country. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply
Continue Reading Reminder – FCC Political Rules Apply to Off-Year Elections for State and Local Offices

In many states, we are in election season for local offices, which has resulted in a question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago.  But, as the question continues to come up, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate.  What is a “positive” use?  Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate).  To be a positive “use” by the advertising candidate, the appearance must also be outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules).. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump.  An appearance by a candidate in a commercial for his or her local business is similarly a positive “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air.
Continue Reading When a Broadcast Advertiser Becomes A Political Candidate, What is a Station to Do?

In the last few days, much has been written about the decision of a national radio broadcaster to prohibit the host of a country music radio program from airing an interview of a Democratic Presidential candidate Pete Buttigieg on a nationally syndicated program. This decision has prompted many questions as to when the FCC’s equal opportunities (sometimes referred to as “equal time”) rules apply to appearances of a candidate on a broadcast station.

Two years ago, we wrote about a Declaratory Ruling issued by the FCC’s Media Bureau which addressed many of these issues. In that decision, the FCC determined that a syndicated television program, “Matter of Fact with Fernando Espuelas,” was an “exempt program” which would not give rise to equal opportunities. The FCC rules state that bona fide news interview programs are exempt programs, meaning that appearances on the program by legally qualified candidates for public office would not give rise to equal opportunities for other candidates to get free time on the stations which aired the program. In reviewing that request for declaratory ruling, or in considering whether any program would be exempt, what does the FCC consider?
Continue Reading Looking at Equal Opportunities – When Does the Appearance of a Political Candidate on a Broadcast Program Trigger Equal Time Obligations?