While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.
Continue Reading Election Season in High Gear for Broadcasters – Lowest Unit Rate Windows to Begin in Iowa This Week, New Hampshire Next and Other States Soon to Follow

As we move into the final weeks of the election season, and races heat up, there are always issues about attack ads and what a station needs to do when they receive a “take-down” notice from a candidate who is being attacked. We recently wrote about candidate ads, and the “no censorship” provision of Section 315 of the Communications Act. Broadcasters can’t censor a “use” by a political candidate (a candidate ad that features his or her recognizable voice or image and is purchased by his or her authorized campaign committee), and thus the broadcaster is not liable for the content of the candidate’s ad. So no matter what the candidate may say – the broadcaster runs the ad as is. However, ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are different. The “no censorship” provisions of the political rules don’t apply, so broadcasters are free to accept or reject third party ads based on the content of the ads.

This question arises all the time. A station runs a third-party ad, and the politician who is being attacked by the ad will contact the station – or have their lawyer contact the station – demanding that the station pull the ad for its alleged untruthfulness. Sometimes that request has some vague (or sometimes not so vague) threat of a legal action against the station if it continues to run the ad. Unlike candidate ads (where the station cannot censor the ad and thus the station must reject all requests to pull a candidate ad, and can continue to run the ad without liability), the station makes a choice when it runs a third-party ad. Ads that are not run by the candidate’s official campaign committee (or by a political party with explicit authority and coordinated with the candidate), can be rejected based on their content – or for any other reason that the station may have – or for no reason at all.  Because stations make a decision as to whether or not they are going to run a third-party ad, they theoretically have liability if the ad is untrue and the station continues to run the ad when it has been challenged by a candidate or another party attacked in the ad.
Continue Reading What’s a Broadcaster to Do When a Candidate Complains About the Truth of an Attack Ad? – Dealing with Ads from Non-Candidate, Third-Party Organizations

Get ready for more challenges to issue ads that you may be receiving this election season.  The FCC’s Media Bureau today released a brief decision on the Sunlight Foundation’s complaint petition against two TV stations concerning the proper sponsorship identification for ads by Political Action Committees.  We wrote about those complaints when they were filed back in July, here.  The complaints, arising from elections that took place last year, targeted two PACs that each had single individuals who had donated substantially all of the money that was raised by the PAC.  Sunlight claimed that the stations should have tagged as the true sponsors of the ads the individuals who had provided virtually all of the money for the PACs.  Sunlight alleged that these stations should have known who the true sponsors of the ads were, based on news reports that were run on the stations talking about the individuals who had funded the PACs.  Instead, the stations had run sponsorship identifications identifying only the PACs as the sponsors of the ads. 

In today’s action, the Bureau dismissed the complaints.  However, the Bureau did not find Sunlight’s allegations to be incorrect.  Instead, the complaints were dismissed because Sunlight never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.  The Bureau stated that it was using its “prosecutorial discretion” not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election.
Continue Reading Identification of Sponsors of Non-Candidate Political Ads May Be More Controversial This Election Season as FCC Suggests that Broadcasters May Need to Determine Who is Behind Third Party Ads

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

We recently wrote about candidate ads, and the "no censorship" provision of Section 315 of the Communications Act.   Broadcasters can’t censor a "use" by a political candidate (a candidate ad that features his or her recognizable voice or image), and thus the broadcaster is not liable for the content of a candidate’s ad. So no matter what the candidate may say – the broadcaster runs the ad as is.  Ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are, however, different. The “no censorship” provisions of the political rules don’t apply, so broadcasters are free to accept or reject third party ads based on the content of the ads.  Even though broadcasters can reject political ads that come from third-party groups, they rarely do, and we seemingly see just as many outrageous claims about candidates in third party ads as we see in the candidate ads that can’t be censored. Why don’t broadcasters more aggressively decide which ads are truthful and which are not, and reject those ads that are not accurate?

A recent article in the Tampa Bay Times asks that question, citing a political ad running on a television station which had, in a news segment, determined that the contents of the ad were not true. Why was the ad still running on that very station? I spoke to the author, and was quoted as saying that broadcasters don’t want to act as “gatekeepers.”  In more detail, I said that broadcasters don’t want to be in the position of being the arbiter of what ads are "truthful enough" to run and which ones should be rejected.  In the political world, the concept of “truth” is often in the eyes of the beholder. Whether a candidate a “big-spending liberal” or not is not a claim that cannot be factually evaluated. Even in cases where the import of specific legislation is involved, or questions of what a piece of legislation accomplishes or the purposes underlying its adoption can be seen by different people in the political world from very different perspectives, making determinations about “truth” very difficult.  In the eyes of some, a legislative act may be motivated by a desire to respond to constituent desires, but in the eyes of others that same act may be motivated by caving in to special interests or as part of some vast conspiracy to undermine the American way.  In most cases, broadcasters are reluctant to draw lines as to when an ad is truthful enough to run on the air and when it is not – instead leaving the debate over the "truth" to the marketplace of ideas. If someone thinks that an ad is untrue, they can buy their own ad and spell out their position on the issue. (See this article from the Denver Post  complementing TV stations on fact-checking and making their results available for the public to check on the veracity of political ads).  But does that station need to worry about liability for the third-party ad?


Continue Reading Political Broadcasting Refresher Part 5 – Why Don’t TV Stations Pull More SuperPAC Ads? Is There Potential Liability for These Ads?

Political speech has been called the "life-breath of democracy" by the US Supreme Court and receives very strong First Amendment protection.  For that reason, the FCC has said that it will "not attempt to judge the truth or falsity of material broadcast regarding candidates or ballot issues."  That principle is sure to be tested in the wave of negative campaign ads we are likely to see between now and November, many of which will generate "cease and desist" letters from the subjects of those negative ads. Of course, broadcasters and cable operators alike are immune from liability for anything said in the context of a candidate "use" featuring a sponsoring candidate’s recognizable voice or image…the so-called "no censorship" rule.

There is, however, one type of political ad that could create potential liability for the media if allowed to run unchecked:  A third party or PAC attack ad that is defamatory. A defamatory ad is one that exposes the candidate to public hatred, shame, disgrace or ridicule.  Generally, these are ads that allege crime, fraud, dishonest or immoral conduct on the part of the candidate.  Truth is the only absolute defense to a defamatory claim.  Therefore, when defamation is alleged, substantiation should be requested.  Read on for details of a recent case study….


Continue Reading Political Ad Content—When Do You Need to Worry?

Advertising from Stephen Colbert’s Super PAC was rejected by Des Moines television station WOI-TV, based on its belief that these commercials would be confusing to Iowa voters.  Colbert, the host of Comedy Central’s the Colbert Report, has formed his own Political Action Committee to run ads during the upcoming Presidential election.  The first ads ran in Iowa this past week – making fun of the amount of third party money that was being spent on political advertising in Iowa and urging voters to vote for "Rick Parry", with an "a" rather than "Rick Perry."   WOI-TV, rejected them, while the spots ran on all other stations in Iowa’s capitol city.  Are there legal issues with this station deciding not to run these ads?

Not at all.  The FCC has said many times that broadcast stations are not "common carriers," meaning that they don’t have to run all advertising time that advertisers want to run on their stations.  Instead, stations pick and choose among the ads that are brought their way, and stations have an affirmative duty to reject ads that they feel are not in the public interest.  So, while many may question whether these Colbert ads were outside of the norms applied to advertising in the public interest (as Colbert himself argued that the station runs many other ads as likely to confuse the public on many issues), the station has the absolute, non-delegable duty to decide on its own what is and what is not in the public interest – with the very narrow exception of candidate ads.


Continue Reading Colbert Super PAC Ad Rejected by Iowa TV Station – Can They Do That?

The Supreme Court issued its landmark opinion in Citizens United v. FEC one year ago today.  That case allowed corporations and labor unions to make independent expenditures for or against political candidates.  An editorial in today’s Washington Post by the President of Citizens United and its lead counsel argues that the hysteria following that decision was unfounded because the amount spent by citizen groups in the last election paled in comparison to the amount spent by the Democratic and Republican parties and by the candidates themselves.  Rather, the authors argue, the primary political speech to come out of the Supreme Court’s decision has been that of independents, and politicians are upset by this because they cannot control the speech of independents.

 As a reminder, the Supreme Court case arose as a result of a film directed against then Presidential candidate, Hillary Clinton.  Citizens United was a nonprofit corporation that produced the film, and there was debate whether this was a "documentary" or an "electioneering communication," as well as whether distribution via video on demand constituted "public distribution" of the film.  The Supreme Court found that the film was indeed an "electioneering communication" and that VOD was likewise a public distribution of the film.  Thus, Citizens United ran smack up against the FEC prohibition on independent corporate political expenditures.


Continue Reading “Citizens United”: The Supreme Court Decision One Year Later

On May 27, 2010, David Oxenford spoke to the Vermont Association of Broadcasters annual meeting in Montpelier, updating the broadcasters on Washington events of importance, and discussing the FCC’s political broadcasting rules.  A copy of Dave’s PowerPoint on issues of importance to broadcasters will be posted here soon.  Broadcasters may want to refer to Davis Wright Tremaine’s Political Broadcasting Guide for a discussion of the political broadcasting issues that may arise in this election season.  One of the political broadcasting issues that was discussed in detail was the issue of what a station should do when faced with a political ad that comes from a third party, attacking a political candidate, and the candidate tells the station that the ad is untrue and, if it continues to run on the air, it may subject the station to liability.

This issue may be coming up more in the coming months.  The recent Citizens United case signals the potential for more campaign spending by corporations and labor unions. This money would be spent directly by these organizations, not contributed to the candidates, as the case did not loosen the limits on corporate contributions directly to candidate’s campaign committees. Thus, as the ads will not come from candidates, they will not be subject to the “no censorship” rule that applies only to candidate ads. Because the no censorship rules prevent a broadcast station from rejecting a candidate’s ad based on its content, stations are protected from any liability for the content of those candidate ads. In contrast, broadcasters are free to reject ads from corporations, labor unions, or other non-candidate groups. Because they can choose whether or not to accept such ads, they can technically be held liable for the contents of those ads, should the ad be defamatory or otherwise contain legally actionable material. This should not be new to broadcasters as, even before Citizens United, stations were often faced with complaints from candidates about ads from third party interest groups (like the political parties’ campaign committees, or so-called 527 groups like MoveOn.org) that were permitted to advertise even before the recent decision. Most broadcasters want to be able to accept these advocacy ads from non-candidate groups, but they also want to avoid potential liability. What is a station to do when it receives such an ad, or when an ad is already running and a candidate complains about its contents?


Continue Reading David Oxenford Speaks to Vermont Broadcasters – Addresses What to Do When a Station Receives a Complaint about the Truth of a Political Ad

As the dates for the first Presidential primaries draw near, more and more stories appear in the press about attack ads growing in importance.  These ads are coming both from the candidates themselves trying to draw distinctions with their opponents, and from third party, supposedly independent, groups either attacking or supporting one of the candidates.  See, for instance, the recent story in the Washington Post on the increase in third party ads.  These ads have raised political issues on the campaign trail as to whether negative campaigns work, and as to how independent of the candidates the third party expenditures really are.  They also raise legal issues for broadcasters.  Whenever there are attack ads that are run on a broadcast station, there are complaints from the candidate being attacked about how unfair the criticism is.  Broadcasters have to deal with these complaints, and the sponsor of the ads makes a huge difference in the broadcaster’s responsibilities to check the truth of the statements made.    As we explain in our Political Broadcasting Guide, broadcasters may not censor the content of a candidate ad, and thus are exempt from any liability for the content of that ad.  But attacks contained in third party ads may require the broadcaster to do some investigation into the claims being made to make sure that they avoid legal liabilities.

For ads run by a candidate or his or her authorized committee, the Communications Act forbids a broadcaster (or cable company that chooses to sell time to political candidates) from censoring the candidate’s message.    Because of the no censorship rule, the Courts have ruled that broadcasters are immune from any sort of liability for defamation that may arise from the content of the ad.  Thus, broadcasters cannot reject a candidate’s message based on its content (with the possible exception of cases where that content would violate a criminal law, as opposed to just creating some civil liability), and need not take any action in response to a complaint by an opposing candidate that the ad contains incorrect or distorted information.


Continue Reading As Presidential Races Heat Up, So Do the Attack Ads – Legal Issues For Broadcasters Dealing With Third Party Political Ads