Oct 08 2018

This article originally was published in the September/October 2018 issue of Radio Guide.

With the nation now only weeks away from what is possibly the most important mid-term federal election in the last half-century, the political advertising climate is sure to get more and more furious. So, this would be a good time to review a few important principles important to broadcast licensees. Chief among them are issues connected to the FCC sponsorship identification rules. The “dark money” in political broadcasting is now overwhelming and with last-minute robust campaigning, broadcasters are often confronted by “exuberant” time buyers who are ready to reassure the broadcaster that they really don’t need the sponsorship information required by the FCC rules. This is especially true with respect to issue advertisers.

Issue Ads

§73.1212, the sponsorship identification rules requires that when an announcement contains political matter or the discussion of a controversial issue of public importance, it is the broadcaster’s responsibility, in addition to making sponsorship identification in the spot, to obtain and place in its public file a list of the chief executive officers or members of the executive committee or board of directors of the entity paying for the ad. Section 315 of the Communications Act, states that when a message relates to any political matter of national importance, including a legally qualified candidate; any election to Federal office; or a national legislative issue of public importance, a complete record must be included in the public file.

This is important. Now that station public files are available online from the FCC server, public interest groups and issue opponents are examining them carefully; some have filed complaints with the FCC. Be sure to get all the information that you need from time buyers and be prepared to get it into the public file. Under FCC rules, that means immediately, and immediately means within 24 hours.

Candidate Ads

While we’re talking about the political file, broadcasters must make sure to have candidate advertising information up to date. §73.3526 requires that the file contain all requests for specific schedules of advertising time by candidates and some issue advertisers, as well as the final dispositions or "deals" with the political advertiser.

Materials relating your negotiations are not required to be included; just the final disposition. The description of the disposition should include when the advertising actually aired, including if the advertising was preempted, and the timing of any make-goods of preempted time, as well as credits or rebates provided to the advertiser.

Verifying Candidate Ad Sponsorship ID

Recognizing that broadcasters may not have enough time to preview the ad and still meet the candidate's requested timing, the FCC allows the licensee to air the ad once without being subjected to liability for not having proper sponsorship ID. This identification requirement exception applies only to ads for political candidates -- and not for political issues or other types of ads. After that, it’s your responsibility to make sure the ad carries a proper sponsorship ID, even if you have to add it and run it over a portion of the spot. Remember, a proper sponsorship ID, political or otherwise, must use the “paid by” or “sponsored by” language of the FCC rule.

Election Weekend Sales

Given the heated exchanges we can expect in this mid-term, it’s predictable that there could be strong demand for access the weekend before the election. The fury of last-minute attack and response political advertising will increase at a frenzied pace. The weekend before the election will be particularly important to the candidates. Typically, they will be cutting new spots daily. They will want access to stations to place them. The question arises, must a station provide access to political time buyers in the weekend before the election? What about election day itself? Does the station have to accept new orders for candidate advertising on election day?

Like most other political time buying scenarios, these situations have also arisen, been argued and settled by the FCC staff. During the 1990 election, there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. Clarifying this requirement, the Commission stated that if a station had taken an order from any commercial advertiser on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election.

However, the broadcaster is not required to provide any services to the political advertiser/time-buyer that are more extensive than the range of services previously provided to any commercial advertiser. For example, if access had been given to the commercial advertiser only to deliver or change copy, then those are the only services that need be afforded to candidates. If a station can prove that it has not sold time on weekends during the past year, it can justify a refusal to sell time to political candidates on the weekend before the election. However, a station that has done this just once for a favored advertiser (such as for a store running a holiday promotion or a movie premiere), must be prepared to process political advertising requests on the weekend before the election.

Note: the equal opportunities doctrine does not apply to this type of station service. That doctrine applies only to a candidate’s actual response to a prior “use” (or appearance) on the station by an opposing candidate for the same office; not to the sale or use of facilities of the licensee. Remember, however, that a station cannot discriminate between candidates., Thus, even if it has not taken an order from any commercial advertiser on a weekend during the previous year, if the station offers weekend sales opportunities to one candidate, the station must also accept weekend sales from all opposing candidates for the same office.

What About Election Day Itself?

Election day, however, is treated differently. The Commission allows each station to adopt its own policy regarding whether it will or will not accept new candidate advertisements on election day, even from those seeking federal elective office who are otherwise entitled to reasonable access under section 312(a)(7) of the Communications Act. Here too, however, the station cannot discriminate, and if it decides to take a new Election Day order from a candidate, it must also take new orders from all opposing candidates for the same office. For federal office candidates, the station’s policy must apply to all federal candidates equally, that is; once any federal candidate is allowed to purchase advertising on Election Day, then all federal candidates must be afforded such access as well.

A Short Refresher on Equal Opportunities

The Equal Opportunities doctrine is found in §315 of the Communications Act. The doctrine requires a broadcaster to treat all legally qualified candidates for the same office alike. A broadcaster may make no discrimination in charges, practices, regulations, facilities or services rendered among legally qualified candidates for a particular office. This applies to the availability of broadcast time, the use of production facilities, the extension of credit, and the application of technical requirements.

Equal opportunity does not mean an identical segment of broadcast time. When an opposing candidate requests an equal opportunity, the licensee must consider the daypart concerned, the length of the time segment, and the desirability of the particular broadcast time (including adjacency to popular programs). The station is not required to afford an opposing candidate an opportunity to appear on the same program, or even at the same time of day or the same day of the week, as long as the time segments offered are reasonably comparable.

The mechanics of working out equal opportunities is a matter the FCC normally leaves to the station and the candidates involved, within that framework of the general principles

Requests for Equal Opportunities

A right to equal opportunities does not arise automatically, but only upon proper request. The request must be made by a candidate or by an authorized representative and not by a political party or special interest group. All equal opportunity requests must be for a “use” by the candidate.

Seven Day Rule

A request for equal opportunities must be made within seven days of an opposing candidate’s prior use. Thus, if Candidate A “uses” a broadcast facility on October 5, 10, 15, 20 and 25, Candidate B’s request for equal opportunities on October 26 will only cover Candidate A’s uses of October 20 and 25; Candidate B lost his right to request equal opportunities to Candidate A’s first three uses by waiting more than seven days after the use had occurred. Further equal opportunity rights do not attach to the reply “use.”

A station is under no obligation to advise a candidate of a use by an opposing candidate - even when a use occurs toward the very end of a campaign. However, upon inquiry from a legally-qualified candidate, the station must provide the candidate with the facts relative to opposing candidates’ requests, including the time sold and the changes made. This may be done by referring the candidate (or his or her representative) to the station’s online political file.

Prior Requests for Expected Uses

Requests made before an opponent’s use must be honored only if directed to a specific future use known at the time of the request. However, when a candidate will use a station according to a fixed and continuing pattern (such as a spot in the 7:00 p.m. news every Monday), then a single request from a legally qualified opposing candidate for equal opportunities will apply not only to the first candidate’s uses during the preceding seven days but for all subsequent scheduled uses as well under the same “buy”.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.