Political Broadcasting

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The new Congress has started its oversight of the FCC, and one of the first topics to be brought up is the reintroduction of the Fairness Doctrine. Presidential candidate and head of the House of Representatives Domestic Policy Subcommittee of the House Government Reform Committee, Dennis Kucinich, was the first to call for hearings about the reintroduction of the doctrine.  Others have joined in that cry, including it in a bill introduced in the House and Senate to reform the media ownership rules. But do these perhaps well-intentioned Congressmen really remember what the Fairness Doctrine meant? Basically, bland broadcasting.

The Fairness Doctrine was, for the most part, declared unconstitutional by the FCC in the late 1980s (though some limited aspects of the policy have persisted until very recently). The Commission decision finding the Doctrine to be unconstitutional made sense, as its application clearly abridged the free speech rights of broadcasters. Basically, the Fairness Doctrine required fair and balanced coverage of all controversial issues of public importance. While that may sound like a good goal (one good enough to be adopted by Fox News), in fact it resulted in bland programming. Continue Reading The Fairness Doctrine – Prescription for Bland Broadcasting

The Bipartisan Campaign Reform Act ("BCRA") adopted in 2002 prohibits the purchase of broadcast commercials by labor unions and corporations using their general funds during the 30 days before a Federal primary and the 60 days prior to a Federal general election. The Act prohibited these "electioneering communications," and essentially defined an electioneering communication as any mention of a Federal candidate. The Supreme Court this past week decided to hear the appeal of a US District Court decision which found the prohibition unconstitutional as applied to a Wisconsin Right to Life group, organized as a corporation, which had purchased ads mentioning a candidate in the 60 days prior to an election. If the Supreme Court upholds this decision, we may see more corporate and union money spent on advertising prior to the 2008 elections.

The District Court decision is not so broad so as to allow unlimited political advertising by these groups. Instead, the Court only held that advertising that was directed at specific issues (in this case Senate filibusters of judicial nominees) was not prohibited if the message was not directed at the election. In this case, the ads asked that residents call their Senators and tell them to stop delaying the judicial nominations, naming Senator Feingold, who was up for reelection. Perhaps not so coincidentally, Senator Feingold was one of the principal authors of BCRA (also known as the McCain-Feingold Act). The ads did not specifically tie this issue to the election, or mention Senator Feingold’s candidacy at all. More on the case can be found in an article in Saturday’s Washington Post. Continue Reading Supreme Court to Decide on More Political Advertising

Entering the last full week before the mid-term elections, broadcasters need to beware of the political broadcasting issues that can arise in the tail end of the campaign season.  With the media expecting political ads to get even dirtier in these final days (see, for instance, the Washington Post’s article yesterday – The Year of Playing Dirtier), potential liability looms for broadcasters if they run unfounded third-party attack ads (see our October 18 posting on Dealing With Issue Ads).  But there are other issues of concern.

In this hot political season, in states with closely contested races, equal opportunities requirements can cause advertising inventory concerns during these last days.  When writing new orders for candidate advertising time in these last days, be sure to factor in buys by political opponents who will be entitled to demand equal opportunities – to be provided before the election.  Remember that reasonable access does not demand unlimited access, only what is reasonable under the circumstances.  In determining what is reasonable, a station can look at inventory concerns, as well as the potential for equal opportunities demands from other candidates.  So remember to save room for those equal opportunities requests.Continue Reading Last Minute Political Issues for the Campaign’s Closing Days

This past week’s appearance of Governor Arnold Schwarzenegger with Jay Leno on the Tonight Show raised the question of when the equal opportunities requirements of Section 315 of the Communications Act apply.   While there has been extensive press coverage of the event, seemingly asking why the Democratic candidate is not by law entitled to equal time, the policy of the Commission has been to treat most interview programs, even ones that usually concentrate on entertainment matters, as "bona fide news or news interview" programs, exempt from the equal time obligations.

While, at one time, the FCC had considered only traditional news and news interview programs (like Meet the Press or Face the Nation) to be "bona fide news or news interview programs."  But in the 1990s, the Commission began to realize that political discourse and the coverage of political races often occurred in programs much different than these traditional news programs.  To encourage this expanded coverage of the political process, the bona fide news exemption had to be extended to programs that routinely featured newsmakers, though the programs themselves might more often focus on entertainment or less serious programming.

The morning "news" programs like Today and Good Morning America were quickly recognized as bona fide news interview programs, and then talk programs like Donahue, Geraldo and Sally Jesse Raphael were later recognized to be exempt.  And, as time went on, the Commission recognized that the even programs that were far more entertainment oriented could still have serious discussions (or at least discussions relevant to their particular audiences) about political issues.  Specific exemptions were granted to the Howard Stern program, Imus in the Morning, and to Entertainment Tonight, which all, from time to time, interviewed political figures or other newsmakers about topics of interest to their audience.  And, while many of these programs filed with the FCC asking for specific declarations that the programs were indeed bona fide news interview programs and exempt from the equal time requirements, the exemption applies to any program that meets the FCC’s standards, without the need for a prior determination from the FCC that they are exempt.

Continue Reading Arnold and Leno – Making Law?

From watching television in almost any state with a contested election, it’s clear that it’s political season again.  As the ads multiply, one of the most common tactics to disrupt an ad campaign is to write a letter to a  station saying that the ad is untrue and should be pulled.  However, when an ad is purchased by the candidate or his authorized campaign committee in connection with the campaign, and contains the voice or picture of the candidate, the circumstances in which an ad can be pulled are quite limited.  Nevertheless, the questions are rolling in. 

In one race in the Midwest, stations received complaints about a Federal candidate ad that did not contain the full disclaimer required by BCRA (the Bipartisan Campaign Reform Act, which requires the now familiar statement from Federal candidates that “I’m John Smith, and I approved this ad”). A competing candidate urged stations to pull the ad that did not contain that disclaimer. In fact, stations cannot pull the ad that does not contain the disclaimer (as long as it has the FCC mandated “paid for” or “sponsored by” language at the end of the spot). While the candidate may get into trouble with the Federal Election Commission for not having the BCRA language, and the station may deny lowest unit rate if the required language is not on a spot that mentions an opposing candidate, the spot cannot be pulled from the airwaves.

In another race in a Western state, the question was raised about the use of one of the words that the FCC has ruled to be "indecent" in almost any circumstance.  At the NAB Radio Show, the FCC’s Bobby Baker was asked if such  an ad could be channeled to the "safe harbor" periods after 10 PM.  Bobby answered that it was possible that such channeling would be permitted, but that the FCC has never addressed that question.  So, for now, the issue is unsettled until someone asks for a declaratory ruling or the issue is otherwise put before the FCC.Continue Reading The Censorship Issue – Dealing with Objections to Candidate Ads

At a continuing legal education seminar held by the Federal Communications Bar Association a week ago, Bobby Baker, the FCC’s chief of the Office of Political Programming, confirmed an issue that has been confounding broadcasters for many months. In recent years, several organizations, including Google’s dMarc service, have begun to take remnant advertising inventory from broadcasters…

A front page article in today’s Washington Post reports that the National Republican Congressional Committee expects to spend about $45 million on negative campaign ads this year, attacking Democratic challengers on personal and character issues.  One academic quoted in the article indicated that this year’s election may be "a more negative campaign that any in recent memory."

If the Republican Party spends money, no doubt the Democrats and other interest groups will be spending as well in this tight election with control of Congress potentially at stake.  For broadcasters, this means that they will be in for lots of controversy, and lots of work. 

When a legally-qualified candidate buys advertising time on a broadcast station, the station cannot censor that ad.  Therefore, the station is exempt from any liability for the content of that ad.  But when the ad is purchased by a non-candidate third party group, the station has no obligation to run the ad, and therefore, if the ad is defamatory, the broadcaster could have liability for running it.  Particularly if the broadcaster knows or suspects from the content of an ad that it is false, or is put on notice that the facts contained in the ad are untrue, the broadcaster faces liability if it does nothing to investigate the truth of that ad.  So, if a broadcaster is running an attack ad and gets a complaint about the truth of the ad (most likely from the candidate being attacked), the broadcaster needs to verify the truth of the claims being made before any further airing of the ad.  And usually the proponent of the ad will have reams of paper to support the claims that are made – support that needs to be evaluated by the broadcaster.Continue Reading Negative Ads Expected to Increase