On November 10, Davis Wright Tremaine’s David Oxenford and Bobby Baker, the head of the FCC’s Office of Political Broadcasting, conducted a webinar on the FCC’s political broadcasting rules and policies. The webinar originated from Lansing, Michigan, before an audience of Michigan Broadcasters, and was webcast to broadcasters in 13 other states. Topics discussed included reasonable
In the last few days before the Super Tuesday series of presidential primaries, efforts are being made across the political spectrum to convince voters to vote for or against the remaining candidates. With Obama buying Super Bowl ads in many markets, Clinton planning a one-hour program on the Hallmark Channel the night before the primaries, Rush Limbaugh and other conservative radio host attacking McCain, and third-party interest groups and unions running ads supporting or attacking various candidates, a casual observer, looking at this media blitz, may wonder how all these efforts work under the rules and laws governing the FCC and political broadcasting.
For instance, sitting here watching the Super Bowl, I just watched a half-time ad for Barack Obama. Did the Obama campaign spring for one of those million dollar Super Bowl ads that we all read about? Probably not. It appears, according to press reports, that instead of buying a national ad in the Fox network coverage, the campaign purchased local ads in certain media markets. And with reasonable access requirements under the Communications Act and FCC rules, he could insist that his commercial get access to the program as all Federal candidates have a right of reasoanble access to all classes and dayparts of station programming. Moreover, the spot would have to be sold at lowest unit rates. While those rates are not the rates that an advertiser would pay for a spot on a typical early Sunday evening on a Fox program, they still would be as low as any other advertiser would pay for a similar ad aired during the game. In this case, by buying on local stations, at lowest unit rates, his campaign apparently made the calculation that it could afford the cost, and that the exposure made it not a bad deal.
The FCC has now joined the Nevada Courts (see our post here) in denying Dennis Kucinich entry into the Presidential debates. In a decision released this week, the FCC found that they could not force CNN to include Kucinich in its Democratic Presidential Debate, as such an action would violate the First Amendment. The FCC only has the jurisdiction to determine if Kucinich was entitled to equal opportunities for not being included, and the Commission rejected that claim as well, finding that the carriage of the debate was on-the-spot coverage of a news event, exempt from equal opportunities.
This decision is what we predicted in our post when the court’s denied Kucinich access to the Nevada Presidential debate. As we set out in that post, to encourage political debates, the FCC has determined that debates are on-the-spot coverage of news events as long as more than one candidate is included, and the decision as to which candidates to invite is made based on some rational criteria that is not exercised in some discriminatory, partisan fashion. In this case, the Commission found that CNN’s criteria – that a candidate had to have finished in the top 4 in a previous primary and be polling over 5% in an established national Presidential preference poll were not standards that were being applied arbitrarily for partisan reasons. The Commission concluded that the mere fact that Kucinich was receiving Federal funds and had unique positions on the issues was not enough to conclude that CNN was required to either include him in the debate or provide him equal time.
Last week’s announcement of the partnership between eBay and Bid4Spots and the impending full launch of Google’s service to sell online radio spots beg for FCC action to clarify how these services will be treated for lowest unit rate purposes. We have written about this issue before (see our note here), and the increasing number of online sales tools for broadcast advertising inventory highlights the issue. If advertisers can buy spots using these online systems on a single station, or if stations offer their spots to a particular advertiser at a set price for a specific class of spot, it would seem that these spots could have an effect on the station’s lowest unit rate if the spots sold through the online systems run during lowest unit rate periods (45 days before a primary or 60 days before a general election.). For the peace of mind for all broadcasters, it would be worth the FCC clarifying the status of these services as we hurtle toward what will probably be the busiest political year ever.
In looking at some of these systems, it appears that some of these systems are premised on specific stations offering spots to advertisers on a cost-per-point basis, for specific dayparts as designated by the advertiser and agreed to by the station. For instance Bid4Spots system advertises that it holds an auction to sell the spots on Thursday for the following week. And it appears that spots must be sold by a station in specific dayparts on a non-preemeptible basis. For the week in which the spots are offered, the sale of such spots would appear to set a lowest unit rate for non-preemptible spots that run in the same time period.