legally qualified candidate

In this “political” year with Congressional mid-term elections in November, including many hotly contested races for seats in the US House of Representatives and the Senate, as well as many state and local elections, I receive many questions from broadcasters across the country. Perhaps the area in which most questions are received deals with the “political file,” particularly because these files are now available online. The fact that this file can now be viewed by anyone anywhere across the country has raised many questions that were perhaps less top of mind when the file was available only by physically visiting the main studio of a broadcast station. So, with the election just over a month away, meaning that the busiest advertising period will be coming up between now and the election, I thought that it would be worth taking a look at some of the online public file issues.

As an initial matter, it is worth mentioning that the political file has two main purposes. First, it is designed to provide information to the public about who is trying to convince them to vote in a certain way or to take action on other political issues that may be facing their country or community. Second, the file is to inform one candidate of what uses of broadcast stations his or her opponents are making. Thus, the documents placed in the file must be kept in the file for only two years from the date that they were created – perhaps on the assumption that at that point, we will be on to the next election cycle and old documents really won’t matter to the public or to competing candidates in the last election. But what needs to go into the file?
Continue Reading Beware of the Political File Obligations in this Hot Political Advertising Year

This week’s political primaries in Texas are but the first of many more election contests that will occur between now and November. Already, we are receiving client calls about the political rules, how they should be applied, and what stations should be considering in anticipation of the upcoming elections. I’ve discussed the general FCC issues to be considered by broadcasters in many different ways. In January, I conducted a webinar for two state broadcast associations on these issues, following a similar webinar that I conducted with the head of the FCC’s office of political programming back in November for about 20 additional state associations. The slides from the most recent webinar are available here. Our firm also has available a Guide to Political Broadcasting, here, that provides information about many topics that come up in this area every year. But, with the election still months away, and in many states primaries that don’t occur until the summer, are there issues that broadcasters should be considering today?

Yes – there are many such issues that broadcasters should be considering immediately. As we wrote here prior to the last Presidential election, it is important to start planning early for an election. As that article details, and as set out in our Political Broadcasting guide, there is much planning for lowest unit rates that needs to take place now – before the actual windows (45 days before the primary and 60 days before the general election) in which those rates apply. Stations are likely selling advertising schedules that will run during the windows later this year, and they are putting together advertising packages that will be offered to commercial advertisers during the window. Consideration needs to be given now as to how that advertising will be treated to avoid unwanted lowest unit rate implications during the window.
Continue Reading It’s Political Broadcasting Season Again – What Broadcast Stations Should Be Thinking About Now, Before the Lowest Unit Rate Windows Open

In these last few weeks before the many municipal elections that will be occurring in November in states across the country, I have recently received several questions about a broadcaster’s legal obligations toward write-in candidates who want to run advertising on a radio or television station. Under FCC precedent, all legally qualified candidates (including those running for state and local offices, see our article here) must be provided lowest unit rates, equal opportunities to purchase advertising time matching purchases by their opponents and, when they do buy time, the no censorship rules apply to their ads. For Federal candidates, they also have a right of reasonable access. But is a write-in candidate a “legally qualified candidate?” 

In most cases, the question as to whether a candidate is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting the candidacy.  Once the local election authority receives the papers (and does whatever evaluation may be required to determine if the filer is qualified for a place on the ballot), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for write-in candidates, there are different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a “substantial showing” that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election would do. What does that mean?
Continue Reading FCC Political Broadcasting Rules for Write-In Candidates

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. 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 here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.
Continue Reading What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?

It’s election season, and for the 60 days before any general election, broadcast stations are required to charge political candidates the “lowest unit rate” for comparable advertising time that runs on their stations. That means that, for each class of advertising time on any particular station, the candidate can only be charged the lowest

Last week, we posted a reminder about the obligations for stations to provide equal opportunities for competing candidates to buy time on broadcast stations, and also talked about how the equal time provisions do not apply to bona fide news and news interview programs. Almost immediately, I received several questions about on-air employees who decide to run for political office, and how they are treated for purposes of the equal opportunities rule. Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.

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 here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today. An edited version of that article is below.
Continue Reading Equal Opportunities – What to Do With the On-Air Employee who Runs for Political Office

While many broadcasters’ thoughts are on holiday celebrations, the political process leading to the 2016 elections marches on. Last week, Bobby Baker, the head of the FCC’s Office of Political Programming and I conducted a webinar for broadcasters in 16 states on the legal issues that need to be considered in connection with the upcoming political season. The slides from that presentation are available here.

The week before last, I wrote about some of the issues that broadcasters should already be considering in connection with the 2016 election. With Lowest Unit Charge windows either open or to open this month in Iowa and New Hampshire, and windows opening in South Carolina and Nevada in the first week in January, stations need to be paying attention to their political obligations. Even though political windows are not yet open in other states, stations in these other states nevertheless need to pay attention to their political obligations. As I explained in the webinar, those windows apply only to Lowest Unit Rates. All other political obligations, including reasonable access for Federal candidates, equal opportunities, and the no censorship provisions of the rules apply once you have legally qualified candidates – not just during political windows. See our article here and here on that subject.
Continue Reading Understanding a Broadcaster’s Political Broadcasting Obligations Under FCC Rules – A Webinar Outlining the Requirements

It’s political season, and somewhere, some on-air broadcast air personality is making the decision that they really want to change careers – and run for political office.  We’ve written about what a broadcaster needs to do when that decision is made by one of their personalities, but I guess not every broadcaster reads this blog, as a story in the Salem (Oregon) Statesman Journal from last week shows that there is still some confusion about what the rule provides.  So it is time for a little refresher on the issues that arise when an on-air personality runs for political office. 

We wrote about the issue last year, when a Chicago-area on-air talk show host decided to run for local office.  Then, we noted that the requirement that a station provide equal opportunities to a candidate who is opposing the on-air personality kicks in as soon as you have a legally qualified candidate – one who has filed the necessary paperwork to run for an office. The application of the equal opportunities rule (or “equal time” as some refer to it) is not limited to the 45 days before a primary or the 60 days before a general election (those windows apply only to the application of the lowest unit charges that have to be made available to candidates), and equal opportunites applies to state and local as well as Federal candidates. Once a candidate is qualified, even outside of the “political window”, equal opportunities apply. 
Continue Reading Equal Opportunities Issues that Arise When a Broadcast On-Air Personality Runs for Political Office

An active political broadcasting season is already upon us, with things more likely to get even more hectic between now and November.  Are you ready to handle all of the FCC’s political broadcasting obligations?  We’ve prepared an updated Guide to the FCC’s political broadcasting rules in a question and answer format, and it is available here.  We hope that this Political Broadcasting Guide will give you a primer on many of the questions that arise in any political broadcasting season so that you can intelligently discuss the issues with your attorneys when issues arise, and with your staff and media buyers when dealing with routine matters.  And the issues will arise.

Already we have seen a number of contested races, including a primary for the November elections recently held in Texas, and a special election in Florida to fill an open House seat. As in any other even-numbered year, all of the US House of Representatives and one-third of the seats in the US Senate will be filled in the November elections, and there are a great many elections for state and local offices, including many high-profile governor’s races, that will be contested this year.  Check out our 2014 Broadcasters Calendar for some of the upcoming dates for primaries and lowest unit rate windows in your state.  As explained in our Political Broadcasting Guide, there are things that you should be doing now to get ready for the political season, and you will have obligations to potential candidates once they become legally qualified candidates, even if you are not yet in the political window (45 days before a primary and 60 days before a general election).  For instance, as we wrote here, reasonable access applies to Federal candidates even outside the political windows, and equal opportunities and the paperwork and public file requirements apply to all candidates as soon as they are candidates – even outside the actual lowest unit rate windows.
Continue Reading Answering Your Questions on the FCC’s Political Broadcasting Rules – A Guide to Political Broadcasting from Candidates and Issue Advertisers

With the Iowa primary approaching, political ads are increasing on the local Iowa TV stations.  While the national press may have been focused on some of the recent Rick Perry ads about the end of "don’t ask, don’t tell" and its connection to the celebration of Christmas in the public schools, there has been an even more controversial ad running on Iowa TV stations – anti-abortion spots being run by Randall Terry, the head of Operation Rescue, who has announced that he is running for the Democratic nomination for President – challenging President Obama for the privilege of running in next year’s election.  Some of the planned ads have graphic depictions of the results of abortions.  These ads are disturbing to some, and many viewers (and many stations) are concerned and upset about their being broadcast – so why are stations running them?  For the most part, it is based on the requirement of Section 315 of the Communications Act that prohibits a station from censoring an ad from a candidate for public office.  Not only that, but court rulings concerning the reasonable access provisions of the Communcations Act prohibit stations from channeling potentially disturbing ads to later night hours – limiting stations to a pre-ad disclaimer warning viewers of the content to come and advising them that the ad is being aired by a candidate and is not subject to station censorship (stations should work with counsel to use language on such a disclaimer that has been approved by the FCC). 

But there are issues that stations need to explore to prevent everyone with the money to cover an ad from claiming to be a candidate for office and being able to air disturbing images on broadcast stations.  Under the law, a person has no censorship rights for their ads (and reasonable access rights for Federal candidates) only if they can show that they are a "legally qualified candidate."  In most cases, the question as to whether someone is legally qualified is relatively easy.  The station looks at whether the person has the requisite qualifications for the office that they are seeking (age, residency, citizenship, not a felon, etc.), and then looks to see whether they have qualified for a place on the ballot for the upcoming election or primary.  In most cases, qualifying for a place on the ballot is a function of filing certain papers with a state or local election authority, in some places after having received a certain number of signatures on a petition supporting that person.  But once the local election authority receives the papers (and does whatever evaluation may be required), a person is legally qualified and entitled to all the FCC political broadcasting rights of a candidate: equal opportunities, no censorship, reasonable access if they are Federal candidates, and lowest unit rates during the limited LUC windows (45 days before a primary and 60 days before a general election).  But, for Presidential candidates, especially in caucus states, and for write-in candidates, there are slightly different rules that are applied, as there is no election authority to certify that the requisite papers have been filed for a place on the ballot.  Instead, in these situations, a person claiming to be a candidate must make a "substantial showing" that he or she is a bona fide candidate – that he has been doing all the things that a candidate for election in the caucus would do. What does that mean?


Continue Reading Graphic Abortion Ads In Iowa By Presidential Candidate – And A Seminar on FCC Political Broadcasting Rules