third party political ads

The 2020 presidential elections already loom large, with one of the over 20 Democratic candidates for the Presidential nomination seemingly appearing on whatever TV talk show you tune into on your TV set. With the first debate among these candidates scheduled for late June, it seems like we have a real election already underway – and it is time for broadcasters to start thinking about their political broadcasting obligations under FCC rules and the Communications Act, and beginning to make plans for compliance with those rules.

Stations in Iowa and other early primary states have already been receiving buys from Presidential candidates, PACs, and other third-party groups. That spending is sure to increase in the latter part of the year as these early primaries and caucuses are scheduled early in 2020. What should stations in Iowa and in other states be thinking about now to get ready for the 2020 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide (which we plan to update shortly). Obviously, one of the primary issues is lowest unit rates – as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charge windows for Presidential campaigns will start for the political contests in Iowa and New Hampshire in December, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here.
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As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  We provided this overview of what a station should do when it gets an attack ad two years ago, and the ads have not become kinder in the intervening period, so we will publish it again (with a few revisions). With the rise in the number of attack ads in this last week before the election, stations are facing more and more demands from candidates who are being attacked, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate’s attack ad defames their opponent.  In fact, we have heard of cases where a non-candidate group runs an attack ad containing claims that the target of the ad claims are untrue, where stations pull the ad, and where the claims soon reappear in the ads of the candidate who the third-party supported. When they objectionable claims are in a candidate’s own ads, the only remedy of the candidate that is being attacked is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? 
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As we approach Election Day, the political ads seem to be getting more and more frequent, and often more and more nasty.  With the rise in the number of attack ads, stations are facing more and more demands from candidates who are being attacked in these ads, asking that the ads be pulled from the airwaves because the content is not truthful or otherwise presents a distorted picture of reality.  What do stations do when confronted with these claims?

We have written about this issue several times before (see, for instance, our articles here and here).  In some cases, the stations can do nothing – if the attack is contained in an ad by a candidate or the candidate’s authorized campaign committee.  If a candidate in his or her own ads attacks another candidate, the station cannot pull the ad based on its content.  Ads by candidates and their authorized campaign committees are covered by the Communication Act’s “no censorship” provision, meaning that the station cannot (except in very limited circumstances) pull the ad based on its content (see more on the “no censorship” provision here).  Because the station cannot pull the ad based on its content, the station has no liability if the candidate ad defames their opponent.  The opponent’s only remedy is to sue the candidate who ran the ad.  But what about allegedly false claims made in ads by third parties – like PACs, unions, political parties or other non-candidate groups? 
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With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules.  I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?
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Even though the election is over, political broadcasting issues have not stopped.  Yesterday, the same groups (the Campaign Legal Center, Common Cause, and the Sunlight Foundation) that had previously objected to the sponsorship identification of issue ads funded by PACs with a limited donor base have struck again.  This time, they have filed a complaint with the FCC against a Chicago TV station claiming that it should have identified former New York City mayor Michael Bloomberg as the true sponsor of an ad run by a PAC. That PAC stated on its website that it had been formed by the former mayor and, from its FEC filings, it appears that it was 100% funded by Mr. Bloomberg.

The complaint differs from complaints filed earlier this year about similar ads in that, in this case, the station was given written notice by the Petitioner of the claim that the sponsorship identification should have included Mr. Bloomberg.  In previous cases, no such notice had been given to the station (the lack of such prior notice resulting in the FCC’s rejection of the initial set of complaints filed by this group, see our article here).  In addition, this is the first complaint where it appears that the PAC in question was 100% funded by a single individual.  See, for instance, our article here, where we asked in connection with previous complaints where the PACs in question were not 100% funded by a single individual how a station was supposed to know at what point the individual donor needed to be identified, and when there were a sufficient number of other donors that the identification of the groups as the true sponsor was proper.  Will these factual differences mandate a different result from the FCC?
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Just a month ago, the FCC denied complaints alleging that Washington DC  TV stations had not adequately identified the true sponsor of political ads sponsored by a political action committee.  When that decision came down – denied on procedural grounds by the Commission – we warned that it opened the door to more complaints in the current election cycle.  Sure enough, a new complaint has been filed against one of the same DC stations, contending that in the current election cycle, it should have gone beyond the sponsorship identification of the PAC itself as the sponsor of the ad, and instead identified the sponsor as the individual who contributed the majority of the PAC’s funding. 

The complaint, filed by the Campaign Legal Center, Common Cause and the Sunlight Foundation, the same DC public interest groups that filed the previous complaints, alleges that WJLA-TV failed in identifying the true sponsor of ads by the Next Gen Climate Action Committee as Tom Steyer, the individual who they allege (based on FEC disclosures) provided the majority of the funding for the PAC.  In last month’s decision, the FCC rejected a similar petition about the same PAC, deciding not to pursue the complaint as the station was not directly put on notice of the allegations raised in the complaints before the ads ran.  In the new petition, the petitioners don’t allege that they made any contact with the station to alert the station about their new complaints.  Instead, the complaint alleges that the TV station should have known about the issues because it is the same PAC that was named in last year’s complaint, and the station should have known about the petitioners allegations that the sponsorship tag is incorrect.  But is there a real issue here?
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Every election season there is the same refrain from candidates who are attacked in political ads run on broadcast stations – that ad is unfair and the broadcaster who is running it should take it off the air.  Sometime, that request is sent by a lawyer with threats to bring legal actions if the broadcaster does not stop airing the ad.  What is a broadcaster to do when it gets one of these requests to pull a political ad from the air?  While we have written about this issue many times before (see, for instance, our refreshers on the rules with respect to candidate ads, here, and non-candidate, third-party attack ads, here), questions still come up all the time.  Thus, broadcasters need to know the rules so that they don’t pull an ad that they are not allowed to censor under the FCC’s rules, and that they don’t run one for which they could in fact have liability.

The rules are actually fairly simple in concept, and for ads sponsored by candidates themselves, the rules are fairly simple for broadcasters to implement.  It’s very basic – broadcasters can’t censor a candidate ad, so they can’t reject it (or remove it from the air) no matter what its content is.  The FCC has made only one exception to this “no censorship” obligation.  That exception was adopted when Larry Flint was planning to run for Federal elective office and stations feared that he would run sexually explicit campaign ads.  At that time, the FCC adopted a policy that broadcasters need not run an ad that would violate a Federal criminal law (e.g. obscenity).  That is a very narrow decision, as the Courts have even forced the FCC to make stations run without censorship graphic anti-abortion ads with disturbing content, where such ads would not be legally obscene (they might be indecent under FCC rules, and may be disturbing to some, but the airing is not a criminal violation, so the Courts said that they cannot be blocked by a broadcaster).  Because broadcasters have essentially no choice but to run a political ad in the form that the candidate provides it, and cannot reject it based on content, the Supreme Court has recognized an exemption from any broadcaster liability for the content of the ad.  So the candidate who claims that he is libeled or defamed by the political ad needs to seek relief from the candidate who ran the attack ad, not from the station.  But there are some important details that need to be observed to make sure that there is no liability for the broadcaster.
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