Political Broadcasting

Another month is upon us, along with all of the FCC regulatory obligations that accompany it. August brings a host of license renewal obligations, along with EEO public file obligations in a number of states, as well as noncommercial Biennial Ownership Report filings in several states. We also expect that the FCC will notify stations of the date for the payment of their regulatory fees (which will either be due late this month or early next). As we reported yesterday, the filing of long-form translator applications for over 1000 applicants from the 2003 FM translator window also comes at the end of the month. There are comments due in a number of FCC proceedings. We’ll talk about some of those issues below. For TV broadcasters, we also suggest that you review our article that recently ran in TV NewsCheck, updating TV broadcasters on issues of relevance to them not only this month, but providing a description of the full gamut of issues facing TV broadcasters. We prepare this update for TV NewsCheck quarterly.

Today brings the deadline for the filing of license renewal applications for radio stations in California and for TV stations in Illinois and WisconsinStations in these states, and in North and South Carolina also have EEO public inspection file reports that should be placed in their public inspection files no later than today. Noncommercial TV stations in Illinois and Wisconsin also need to file Biennial Ownership Reports today, and noncommercial radio stations in California, North Carolina, and South Carolina should also file their Biennial Ownership Reports by today.


Continue Reading August FCC Regulatory Deadlines for Broadcasters – Including Renewals; EEO; Comments on Indecency, the Online Public File and Cross-Ownership

It has been almost a year since the FCC adopted rules for an online public inspection file for television stations. This week, the Commission released a Public Notice requesting comments on how the rules are performing – specifically focusing on the online political file. While the Commission’s rules currently require only that the affiliates of the top four networks, in the Top 50 markets, maintain their political files online, the Commission plans to expand that requirement to all television stations in July 2014. But first, it is asking for comments as to how the rules are working so far, whether changes are needed, and perhaps even whether additional information should be required for inclusion in the online political files of TV stations. Comments are also sought on a Petition for Reconsideration filed by various television broadcasters suggesting a different way of complying with the online political file requirements. 

Specific questions on which comments are requested include the following:

  • Have stations encountered particular obstacles in connection with posting documents to the political file?
  • Has online posting become easier over time as station personnel have become more familiar with the process?
  • Are there other steps the FCC could take to make the database more user-friendly?
  • Are smaller stations prepared to use the online file for their political files starting next year? If not, what needs to be done to help them prepare?

The FCC also asks the public, including political candidates and their representatives, to comment on whether they found it easy to access information in the file, whether improvements could be made, and whether the ability to view the file online has been beneficial.  What have interested groups said about the online political file since it was adopted? 


Continue Reading FCC Seeks Comments on Online Political File for TV Stations – Should Obligations Be Changed or Expanded?

In odd years like 2013, most broadcasting stations don’t think about the FCC’s political broadcasting rules. But they should – both for special elections to fill open seats in Congress, and for state and local political offices. This week, the news has been full of stories about next week’s special election for Congress in South Carolina, pitting former South Carolina governor Mark Sanford against Elizabeth Colbert Busch, the sister of TV host Stephen Colbert. Obviously, for a Federal election like that for the Congressional seat they are competing to fill, broadcast stations serving the district they are seeking to serve need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities. But in other parts of the country, as well, there are all sorts of political races taking place in this off year and, as we have written before, most of the political rules apply to these state and local electoral races as well as to the few Federal elections that are taking place to fill open Congressional seats.

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 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 – Most FCC Political Rules Apply to Off-Year Elections for State and Local Offices

Last week, the FCC Commissioners appeared before Congress for an "oversight hearing." In such hearings, Congressmen often raise many different issues that may be on their mind – everything from issues about the administration of the FCC to detailed policy issues. In the hearing before the Senate Commerce Committee last week, one issue arose that broadcasters should monitor carefully to see what develops. During the course of the hearing, the FCC Commissioners were asked why the FCC had not taken steps to make sure that the sponsors of political advertisements were disclosed on the air. While the FCC rules already require disclosure of the sponsor of any ad, and enhanced disclosure for political ads or other "issue ads" on matters of public importance, what were the Senators after in this line of inquiry? 

It appears that the Senators were asking the FCC to ask for more information about the source of the money used by political action groups to buy television advertising time on election issues – including the money used by PACs, SuperPACs and the other types of advocacy groups that spent so much money in the last election cycle, and are already beginning to run ads in states that have Senate races that are likely to be hotly contested in 2014. What do the FCC rules currently require?


Continue Reading Making the Broadcaster the Source for the Disclosure of Political Spending? What the FCC’s Disclosure Rules Require and What Congress Might Want the FCC to Do

The six months that the FCC gave to television stations to upload the contents of their paper public files to their new online public file seemed like a long time back in August, when the deadline was announced and the online public file rule became effective. But that deadline is upon us, and the FCC yesterday issued a reminder that television broadcasters (full power and Class A stations) need to have all of their required documents uploaded to their online public file by Monday, February 4.  The 6 month deadline actually falls on the weekend, so the FCC has given stations to the end of the day on Monday to come into compliance. The Commission has even offered to have people at the FCC over the coming weekend to answer questions about the uploading process for all those waiting until the last-minute to comply. 

As made clear in the public notice, no broadcasters need to upload contents of their political files that existed prior to the August 2 effective date of the rules. TV Broadcasters who are affiliates of the Big 4 networks in the Top 50 markets should already be uploading new political file material onto their online files, while other TV broadcasters have until July 1, 2014 before they are subject to the requirement that they upload their new political materials to the online file. In neither case do stations have to upload political file materials that precede the date that the obligation applies to their station. 


Continue Reading FCC Issues Reminder that TV Stations Need to Complete Online Public File By February 4 – Upload Documents Including All Quarterly Issues Programs Lists and EEO Public File Reports Since the Last License Renewal Grant

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters’ audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC’s long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC’s considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. 


Continue Reading Gazing Into the Crystal Ball – What Washington Has In Store For Broadcasters in 2013

A recent article in the Chicago Tribune demonstrates that the FCC’s Equal Opportunities requirements, as embodied in Section 315 of the Communications Act, apply to candidates for state and local elective office as well as to those for Federal office. We have written before about this obligation of stations to provide Equal Opportunities (sometimes referred to as “Equal Time“) to all competing candidates for the same office, yet many stations seem to be confused about their obligations as they apply to state and local political races – such as a race for mayor. While the reasonable access provisions of the FCC rules (which we summarized here), require that stations must make available time to Federal candidates (and Federal candidates only) if they request advertising time for their campaigns, if stations voluntarily make time available to a state or local candidate, then equal opportunities apply to all of the competing candidates in that same state or local race. In the case written about in the Tribune, a former Chicago Bear, an on-air host of a sports program, was forced off the air when he decided to run for mayor of a Chicago suburb and his opponent indicated that he would seek equal time from the station if the candidate continued to do his program.

This case also demonstrates several other aspects of the political rules. First, the local election is not until April, yet the station recognized that the equal opportunities rule 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 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 – state and local as well as Federal candidates). See our summary of the lowest unit charge obligations here.  Once a candidate is qualified, even outside of the “political window”, equal opportunities apply.


Continue Reading Sportscaster Running for Mayor In Chicago Suburb Taken Off the Air – Illustrating that the Equal Opportunities Rule Applies to State and Local Candidates

The care and feeding of the broadcaster’s public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations’ files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I’ve conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children’s television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station’s compliance with the Children’s television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.


Continue Reading The Care and Feeding of the Broadcaster’s Public Inspection File – An FCC Reminder and a Compliance Seminar

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act’s prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing

In these last days before the November election, the third-party ads attacking candidates in various political races don’t show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.

While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham’s representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.


Continue Reading California Congressman Files Suit against TV Stations for Alleged Defamation in Third-Party Advertising