The FCC this week announced consent decrees with six large radio groups over problems with the political files maintained by these groups.  The consent decrees included very specific compliance plans for each company to ensure that it met all FCC political file obligations in the future.  And it suggested that the penalties were mitigated by the current economic conditions caused by the pandemic – but emphasized the importance to the FCC of the political file obligations and suggested that industry associations take steps to educate all broadcasters about their public file obligations when they run political advertising.  Based on these decisions, we thought that we would republish an updated version of an article that we ran two years ago about those political file obligations so that broadcasters can review their own files to ensure that they have in their files the documents that the FCC wants to see.

Our article from two years ago looked at the political file obligations not too long after the FCC required that all of these documents be made available online, as part of the FCC-hosted online public inspection file. The fact that this file can now be viewed by anyone anywhere across the globe has made the required documents much more visible than when they could be reviewed only by physically visiting the main studio of a broadcast station. Not only can these documents be reviewed by the FCC in Washington, DC, but they can be reviewed by candidates, their agencies, and political ad buyers across the country.  In fact, we understand that some political ad buyers have online “bots” that scan these files routinely to keep track of political ad buying across the country.  Plus, with the license renewal cycle ongoing, the FCC reviews the political file as part of their review of a commercial station’s license renewal application (where licensees need to certify as to whether they have kept their public files complete in a timely fashion).
Continue Reading FCC Enters Consent Decrees with Six Big Radio Groups – Looking at What the FCC’s Political File Rules Require

The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules.  Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses.  The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director.  The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.

The reconsideration addressed two aspects of the October ruling.  First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees.  That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit.
Continue Reading FCC Clarifies Its Ruling on Political File Obligations for Federal Issue Ads

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).
Continue Reading Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Year

While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, 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 here, here 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.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.
Continue Reading Election Season in High Gear for Broadcasters – Lowest Unit Rate Windows to Begin in Iowa This Week, New Hampshire Next and Other States Soon to Follow

The FCC on Friday issued a Public Notice seeking comment on a petition for reconsideration by the NAB and several broadcast groups seeking review of the FCC’s October decision, deemed a “clarification” of the public file disclosure rules for federal political issue ads requiring that all candidates and issues mentioned in any political issue ad be disclosed in the political section of the online public file (see our articles here on the reconsideration filing and here on the FCC’s October decision). The Public Notice sets the deadline for comments on the NAB petition as December 30.

The Public Notice again states that the FCC’s October decision dealt only with issue ads – and not ads from the authorized campaign committees for legally qualified candidates. As we wrote in our article on the reconsideration filing, that was the way I interpreted the FCC decision, based on statements of FCC staff when specifically asked whether the decision applied to candidate ads during the course of a recent webinar that I was moderating, where the staff members cited (and read) footnote 24 in the October decision. That footnote is the one cited in the Public Notice, and states that the October decision applied only to issue ads.
Continue Reading More on Required Public File Disclosures of Issue Ads – Comment Dates on NAB Petition for Reconsideration and Another Admonition for Inadequate Disclosures

Last month, the FCC issued what it termed a “clarification” of the obligations of broadcasters to disclose in their public inspection files each and every candidate and issue discussed in any Federal issue adWe wrote about the Clarification here.  That decision prompted many questions among broadcasters as to how they would comply with the requirement to uniformly identify every issue in political ads, when that judgement might well be quite subjective.  The National Association of Broadcasters apparently agreed, and filed a Petition for Reconsideration of the Clarification, available here.  Hearst Television, Graham Media, Nexstar, Fox, Tegna, and Scripps joined the NAB in filing the Petition.

The NAB’s Petition raises numerous issues about the FCC decision.  It suggests that the Commission did not have the power to make what most in broadcasting thought was a change in the rules without first soliciting public comment on the proposed changes.  The Petition also argues that the Clarification sets up requirements that will be almost impossible to meet.  The FCC stated that “a political issue of national importance” (which is what an issue ad must discuss in order to trigger the disclosure obligations) includes anything pending before Congress.  The NAB asks how a broadcaster is supposed to know about every issue that may be pending before Congress?  The NAB also expresses concern about the catch-all determination in the Clarification stating that political issues of national importance can go beyond just pending legislation or federal political candidates to include any political issue that is subject to discussion and debate at a national level.  The NAB argues that this could encompass almost anything except the most hyperlocal issue (e.g., a school bond issue).  All sorts of advertising could end up being swept up into this definition. 
Continue Reading NAB Seeks Reconsideration of FCC’s Clarification of Issue Advertising Public Disclosure Requirements – Rules Remain in Effect Though Some Clarification Provided

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 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 – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.
Continue Reading Political Broadcasting Issues to Consider Now for the 2020 Election Campaign

Earlier this week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station.
Continue Reading Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

The Campaign Legal Center and Sunlight Foundation filed FCC complaints against 11 major market TV stations across the country alleging that these stations had inadequate online political files.  The Center issued a press release about its filings, stating that these complaints “exposed widespread noncompliance with the disclosure requirements” of the law.  The press release went on to say “[w]ithout this information, viewers are denied important information about the organizations and individuals seeking to influence their vote through these ads.”  While the complaints ask that the FCC take appropriate action against these stations, including fines, and begin an education campaign to make sure that other stations don’t repeat these mistakes as the political file goes online for stations in smaller markets on July 1 (see our article here about the FCC’s reminder about this obligation), just how serious were the discovered deficiencies?  As discussed below, many of the issues raised seem to be minor, but they put stations on high alert that their online public files will be scrutinized and must be kept up to date with the utmost care. 

The complaints themselves (which are available through links in the press release) do not reveal widespread systematic violations of the FCC rules.  Instead, each complaints cites a single instance where the station named in the complaint in some way evidenced some noncompliance with the rules. And many of those instances of noncompliance are quite minor.  In each case, the complaints were about disclosures made about the sponsors of issue advertising.  The ads were from non-candidate groups.  In some cases, the ads named a specific political candidate, and alleged that they had voted the wrong way on some specific issue.  Other ads urged viewers of the station to call that Congressman to tell them to vote in a particular way on some issue of importance pending in Congress.  The complaints did not allege that the public file did not contain the names of the sponsors, or the amount that was spent on the ads, or the times at which the ads were to run.  Instead, the allegations in many of the complaints were that, in a single instance, the public file disclosures identified the candidates who were being attacked, but not the issue on which they were attacked.  Is this a violation of the rules?
Continue Reading Complaints Filed against 11 TV Stations Alleging Deficiencies in their Online Political File – Warning to Stations, Your File is Being Watched!

Many broadcasters, both television and radio, have been running the NAB spots on the Future of Television.  Those spots contain a description of the service available from local television stations and the new technologies that over-the-air television are in the process of deploying, and end with the suggestion that the Future of Broadcast Television lies in "technology not regulation from Washington DC."  Obviously, these ads are geared to address some of the many legislative and administrative issues facing TV broadcasters – including the proposals to take back some of the TV spectrum for wireless broadband uses.  Given that these spots could be arguably be seen as addressing Federal issues, to be safe, they should be identified as issue ads in stations’ public inspection files, and appropriate information about those spots should be placed in the files.

The NAB, in announcing the availability of these spots, suggested this same precaution.  We’ve written before about issue ads, and the need to place notations in the public file about these ads. For instance, when stations ran ads on the broadcast performance royalty, we suggested that same treatment (and proponents of the royalty complained that broadcasters might not be making such notations).  What needs to go in the public file?  As the issues are Federal ones (as opposed to state and local issues that have lesser disclosure obligations), the requirements are similar to those that apply to political candidates. 


Continue Reading Is Your Station Running the NAB Future of Television Spots? Are You Identifying Them As Issue Ads in Your Public File?