Section 315

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In the 45 days before a political primary and the 60 days before a general election, ads by political candidates (federal, state, or local) airing on a broadcast station or inserted by a local cable system into the programming it transmits to the public are entitled to “lowest unit rates” (LUR).  That means that candidates get the best rate offered or sold to a commercial advertiser whose ads are of the same class of time and running in the same daypart or on the same program.  This includes getting the benefit of all volume discounts given to commercial advertisers without having to buy in the volume that the commercial advertiser would need to qualify for the discount.  We have written more about the details of some of the issues with computing lowest unit rate (or “lowest unit charge”) many times before (see, for example, our articles here, here, and here). 

In a request for declaratory ruling filed by the Florida Association of Broadcasters, an interesting question has been posed to the FCC – can other political advertisers who buy time during the LUR period be entitled to these low rates if they are “authorized” by the political candidate?  Normally, such non-candidate political ads (usually referred to as issue ads) are charged much higher rates than those charged to candidates.Continue Reading Are Issue Ads By Non-Candidate Groups Entitled to Lowest Unit Rates Just Because a Candidate Approves the Ad?  The FCC Is Asked for Its Opinion

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Following up on its proposals from last summer to clean up radio technical rules that were inconsistent, outdated, or inaccurate,

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According to Politico, Ted Cruz’ campaign has demanded that TV stations pull certain PAC ads which he claims distort his voting record on immigration issues. This kind of claim from a political candidate about the unfairness of attack ads is common. Here, Cruz’ representatives apparently don’t threaten lawsuits against the stations for running the ads, but suggest that it is a violation of the stations’ FCC obligations to operate in the public interest to continue to run the ads. What is a station to do when such a claim is received?

We have written many times about this issue. Much depends on who is sponsoring the attack ad. If the ad is sponsored by the authorized campaign committee of another candidate, and features the voice or image of the sponsoring candidate, the station cannot do anything. As we wrote in detail here, a station cannot censor a candidate ad. Once it has agreed to sell time to a political candidate or his or her authorized campaign committee, the station must run the ad as delivered by the candidate without edit (with the very limited exception of being able to add a sponsorship identification if one is missing, or when running the ad would constitute a felony, e.g. running a spot that is legally obscene – not just indecent but obscene, meaning that it has no redeeming social significance). Because the station is required to run the ad as delivered by the candidate, the station has no liability for the content of the ad. So, if the candidate being attacked complains, the station can do nothing to edit, censor or pull the attacking candidate’s ad without violating the “no censorship” provisions of Section 315 of the Communications Act. The candidate being attacked has a remedy against the ad’s sponsor, not against the station. Third party ads, however, are different.
Continue Reading Ted Cruz Demands Takedown of PAC Ad Attacking His Voting Record – Issues that Broadcast Stations Need to Consider When Threatened by Candidate Wanting an Ad Pulled

The FCC yesterday issued a Declaratory Ruling at the request of the producers of a new syndicated Crime Watch Daily TV show, a program that will give a daily rundown of crime stories including ongoing court trials from around the nation, declaring that the program would not give rise to equal opportunities claims from political candidates. As the producers expected that political candidates would be featured in the program’s daily coverage of crime news (e.g. sheriffs or district attorneys who may be running for reelection in local elections), they wanted to be sure that competing candidates would not have grounds to request equal time from stations carrying the program – which obviously would severely limit the attractiveness of the program. The FCC looked at the description of the nature of the program – where the producer is making editorial decisions about who will appear on the program based on determinations of newsworthiness in the exercise of their journalistic judgment, not based on an attempt to favor or highlight any political candidate. Based on these representations, the FCC concluded that the show was exempt from the equal opportunities obligations of Section 315(a) of the Communications Act.

We have written about the equal opportunities rules (or what many refer to as “equal time”) many times before (see, for instance, our article here). When a candidate makes a “use” of a broadcast station, opposing candidates are entitled to equal time on the station, if they request that equal time within 7 days. If the first candidate did not pay for that airtime, the second candidate gets the time for free. So, if an on-air employee of a station decides to run for public office, once that employee becomes a legally qualified candidate by filing the necessary paperwork for a place on the ballot or taking the steps to launch a write-in campaign, if the employee stays on the air, opposing candidates can request, and are entitled to, equal time on the station. And these opposing candidates don’t need to deliver the weather report or introduce the next song as the on-air employee may have been doing. Instead, the opposing candidates can use the time to promote their campaign, even if the on-air employee never mentioned his or her candidacy on the air (see our article on on-air employees running for office, here). However, where the candidate appears on the air as the subject of a news report, there is no “use” of the station under FCC rules and policies, and thus no need to give equal time.
Continue Reading TV Crime Watch Show is Bona Fide News Program Exempt from Equal Opportunities Requests from Political Candidates – Reviewing the Equal Time Rule

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

In an 11th hour decision released at about 5 PM on the Friday before the Super Bowl,the FCC decided that TV station WMAQ-TV in Chicago was justified in denying Randall Terry’s request to buy advertising time in the Super Bowl.  As we’ve written before, Mr. Terry is claiming that he is a candidate for the Democratic nomination for President, and as such has a right of reasonable access to broadcast stations, meaning that they must sell him advertising time.  If he had such rights, the stations could not censor the content of the ads that the candidate decided to run (see our article here about the Communications Act’s no censorship rule).  As Mr. Terry has promised to run some very graphic antiabortion ads featuring images of aborted fetuses, many stations were reluctant to run the ads, especially in the Super Bowl when families will be watching the big game.  The FCC decided that WMAQ-TV acted reasonably in denying Mr. Terry time in the Super Bowl for two reasons: (1) he had failed to make a substantial showing of his candidacy for the Democratic presidential nomination in Illinois, and (2) even if he had, he had no right to demand that his ads be placed in the Super Bowl.  Each of these prongs of the decision clarifies some issues in the law of political broadcasting that had been long-debated, but the first part of the decision leaves questions – important questions to which many stations want answers.

The first prong of the decision concluded that WMAQ-TV was justified in determining that Mr. Terry was not a bona fide candidate for the Democratic nomination for President in Illinois as he was not on the ballot there, and had not made a "substantial showing" that he was otherwise a candidate in the state (see our discussion of the requirements to be a legally qualified candidate, here).  The FCC found that the station did not need to be a private investigator and ferret out every instance of campaign activity that Mr. Terry had engaged in within the state to determine if his activity was substantial.  Instead, the station could rely on the information that Terry presented to it when he made his request.  That information essentially amounted to the fact that he had made appearances in two small towns in the state, and had some campaign literature (though there was no evidence that it was ever distributed in Illinois).  Based on those facts, the Commission denied the request – concluding that he had not engaged in campaign activities throughout a substantial portion of the state, as required by prior FCC precedent.  While this may answer the question in this case (and helped to clarify the law as to the showing that write-in candidates need to make before they can demand reasonable access to broadcast stations), it leaves several questions unanswered for stations that have or may receive Mr. Terry’s request for airtime in other states where Mr. Terry is on the ballot.Continue Reading FCC Decides That Randall Terry Not Entitled to Run Graphic Anti-Abortion TV Ads in the Super Bowl For His “Presidential Campaign” – But Questions Remain

With the Florida broadcast airwaves overrun with political ads in the last few days – the great majority of them attack ads – many ask why do broadcasters keep running those ads?  Of course, there are revenue considerations.  But as the attacks get nastier, and perhaps even go against the interest of the station owners themselves, why do broadcasters keep running these ads?  Often, it’s because broadcasters have to – under the applicable laws.  We’ve seen two stories this week that illustrate that point – one where Gloria Allred, the well-known attorney, has written to a number of television stations asking them to refuse graphic anti-abortion ads to be run during the Super Bowl sponsored by purported Democratic presidential candidate Randall Terry, and a second about an NBC-owned station in Florida apparently continued to run a Mitt Romney ad attacking Newt Gingrich, featuring NBC News footage of an old Tom Brokaw Nightly News report, even after NBC News asked the Romney campaign to stop using the clip.  The NBC station apparently recognized its obligations, while Ms. Allred ignored the station’s obligations under Section 315 of the Communications Act and the FCC’s political broadcasting rules. 

Broadcasters are sometimes in a sticky position with nasty political ads, as by law (Section 315 of the Communications Act) they are not allowed to censor a candidate ad.  What this means is that they cannot reject a candidate ad based on its content, with the possible limited exception of where the ad violates a Federal felony statute like the obscenity laws (though not the indecency rules, which are not felony statutes).  If the ads just violate someone’s property interests, or could give rise to some sort of civil liability (e.g. defamation), as we’ve written before, the broadcaster is immune from liability for running the ad by a candidate or his authorized campaign committee. The broadcaster is also immune from liability from a perceived copyright action like that alleged by NBC.  But that immunity arises only because the station cannot, under law, reject the ad.  So the only remedy for someone objecting to the content of a candidate’s ad is to seek a remedy against the campaign itself, not against any station that runs the campaign’s ad.  (See examples of suits against the candidates, but not the stations, in cases we wrote about here and here)  So, even if the copyright owner who objects to the use of its copyrighted content in an ad owns the TV station, it is still stuck running the ad if the candidate insists.

Similarly, in the case that Ms. Allred complained about – asking stations to pull the graphic anti-abortion ads sponsored by Randall Terry, she posed the wrong question – alleging that the ad would be offensive and inflammatory.  Stations can’t make those judgments about political ads – they have to run them even if they can be upsetting. The FCC has even been told by the Courts that it can’t allow stations to channel upsetting political ads (like those anti-abortion ads that Mr. Terry plans to run), into late night hours.  If a candidate wants to run ads in the middle of the day (or in the middle of children’s programs), a station can warn its audience that the ad may be disturbing and that it is being forced by law to run it, as long as such warnings are done in a neutral fashion, but it must run the ad in the form the candidate created it.  So what should Ms. Allred have argued about the Terry ads?Continue Reading Why Broadcasters Have To Air Political Attack Ads Even If They Don’t Want To

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

The FCC issued a declaratory ruling this week finding that Anderson Cooper’s new talk show appeared to be a bona fide news interview program exempt from equal opportunities under the FCC’s political broadcasting rules interpreting the mandate of Section 315 of the Communications Act. This ruling is another in a series of rulings by the FCC making…