The author is with communications law firm Fletcher, Heald & Hildreth.
The 2016 elections are a year away, but the race for presidential nominations is already heating up, and primaries themselves will begin in just a few months. With what is certain to be a contentious and hard-fought election season fast approaching, now is the time for broadcasters to review their systems to ensure that they will be in compliance with the FCC’s political advertising requirements.
credit: iStockphoto/ChromaCo A little advanced planning can go a long way in making this election season run smoothly (and ideally profitably) for your station.
The FCC’s political broadcast rules generally cover: (1) who is entitled to access to broadcast advertising time; (2) how much they pay for that time; and (3) disclosure and recordkeeping requirements. We’ll look at each of those areas below — but we highly encourage stations with questions to contact their communications counsel. The FCC’s rules and policies are fairly complicated when it comes to political broadcasting, and the answers to many questions are often highly dependent on the specific facts at hand.
The concept of a candidate’s “use” of a broadcast station is central to understanding and complying with the political rules. As we will delve into in greater detail below, the “use” of a broadcast station by a candidate triggers several potential obligations, so it is important to know, as a threshold matter, (a) when someone is a candidate and (b) when they are considered to have made a “use” of a station.
WHO IS A “CANDIDATE?”
To be considered a candidate a person must:
• have announced his/her intention to run;
• be qualified to hold the office he/she is running for; and
• be qualified to be on the ballot or be eligible to be a write-in candidate
A candidate for president must either be qualified in the state in which the station is located or qualified in at least ten states in total.
WHAT IS A “USE?”
In general, a “use” is any positive appearance of a candidate whose voice or likeness is either identified or is readily identifiable. The appearance in question does not need to be approved by the candidate or the candidate’s committee to be considered a use — third party ads may trigger a use, as can appearances in entertainment programming (e.g., an episode of “The Apprentice” in which Donald Trump appears).
The candidate’s appearance on the station must be positive, so a third-party attack ad against a candidate would not be considered a use by that candidate.
Candidate appearances in certain types of programming do not count as uses. For example, appearances by a candidate on bona fide news, news interview or documentary programs are not considered uses. Thus, coverage of a bona fide news event, such as a debate or candidacy announcement, does not constitute a use even if the candidate is featured prominently in that coverage.
WHICH CANDIDATES ARE ENTITLED TO “REASONABLE ACCESS” AND WHAT ACCESS IS “REASONABLE?”
The FCC’s rules (and the Communications Act) provide that “legally qualified” candidates for federal offices (i.e, president, vice president, House and Senate) are entitled to “reasonable access” to commercial broadcast stations for the broadcast of advertising. This means that, as a general rule, commercial broadcasters must make time available to candidates for federal offices.
Demands for reasonable access can come only from a candidate or his/her authorized campaign committee. Third-party advertisers and issue advertisers do not have reasonable access rights and, as discussed below, neither do candidates for state and local offices.
Although a federal candidate’s reasonable access rights ensure access to a broadcast station’s airtime, federal candidates do not have the right to demand time during specific programs or day-parts. In addition, stations may choose to exclude political advertising from news programming. But beyond those limited exceptions, the station must offer federal candidates reasonable access to the station’s full schedule.
Precisely what degree of “access” is “reasonable” is not always easily determined. Since federal candidates enjoy considerable discretion to tailor their campaigns as they see fit, stations should avoid setting flat limits on the total amount or types/classes of time available to federal candidates. Questions about what is reasonable in any given circumstance may need to be referred to counsel. In any event, in view of the clear requirement that federal candidates be afforded reasonable access, stations should do some advanced planning about the amount of time likely to be required to reasonably accommodate political advertising. (For such planning, it is obviously wise to consider the number of candidates competing for the various federal offices, since a use by one candidate can trigger equal time claims by others running for the same office.)
In contrast to federal candidates, candidates for state and local offices (e.g., mayor, county council, school board, etc.) are not entitled to reasonable access. Thus, a station can choose not to sell any time to any candidate for a particular state or local office.
But if the station does sell time to one candidate for a particular non-federal office, other candidates for that office will be entitled to insist on “equal opportunities” (see below).
If a large number of candidates are vying for one particular non-federal office, selling time to one candidate for that office could result in a multiple demands for equal time from that candidate’s competitors, which could in turn seriously reduce the station’s commercial inventory. That being the case, stations should consider, in advance, the non-federal political races for which advertising time will be made available. Once that determination has been made, any restrictions should be included in the stations’ disclosure statements (see below).
WHAT ARE “EQUAL OPPORTUNITIES?”
All candidates for the same office must be treated in an equal manner. This rule — known as the “equal opportunities” or “equal time” rule — applies to both federal and non-federal (i.e., state and local) candidates; it is not restricted to a limited period of time before the election. The rule is triggered by a use of a station by a legally qualified candidate. Once a legally qualified candidate for a given office makes a use of a station, all other legally qualified candidates for the same office are entitled to the opportunity to make equal use of the station. That is, the station must make the same amount and kind of time available at the same cost.
In order to take advantage of this rule, a candidate seeking equal time must request it within seven days of the opposing candidate’s triggering use of the station.
Stations are not obligated to notify opposing candidates when a use is made but, as described below, stations must document all uses in their political files and make those files available for inspection. If a station does not make documentation publicly available in a timely manner, the seven-day deadline for equal time claims may be extended.
The equal opportunities rule can become a serious issue when on-air talent wish to run for office. All of their appearances on the station after becoming legally qualified count as free uses of the station. Similarly, if an actor or other entertainment personality becomes a legally qualified candidate, the broadcast of movies, TV shows or other material in which the actor/personality is identifiable would also count as free uses. Such uses would obligate the station to give equal amounts of free time to all opposing candidates.
Equal time claims can also become a serious issue in the final days before an election, when some stations may need to monitor their available commercial inventory closely to ensure that they are able to accommodate equal time demands from candidates.
WHAT IS “LOWEST UNIT CHARGE” AND WHEN DOES THAT APPLY?
Perhaps the most troublesome question for many stations is the question of what rates may be charged for political advertising.
All legally qualified candidates for any political office — state, local or federal — are entitled to the “lowest unit charge” or “lowest unit rate” during the 45 days before a primary election and the 60 days prior to a general election. (The 45/60 day periods are often referred to as “LUC windows.”)
In general, the lowest unit charge is the lowest rate changed to any other advertiser for the same class and amount of time for the same time period, including all discounts and bonus spots. As a practical matter, political candidates are to be treated as the most favored advertiser during the LUC windows. This favorable treatment is available only to candidates or their authorized campaign committees for uses by the candidate; it is not available to any third-party advertisers, including political action committees, citizens groups and the like. As explained below, federal candidates also must make an affirmative certification that their advertisements meet certain criteria to qualify for the LUC.
Determining the exact amount of the lowest unit charge for any particular candidate order can be tricky. It depends on what the candidate is buying (e.g., ROS vs. fixed position, preemptible vs. non-preemptible, etc.). Stations must also take into account other factors that affect advertising rates charged to its non-political customers, such as day-part, discounts given for large purchases, the value of bonus spots, etc. Most stations will have more than one lowest unit charge depending on the various classes of time sold on the station during the LUC window.
Because the calculation of the lowest unit charges can be complex, stations should begin considering the issue well in advance of the LUC window.
WHAT ARE DISCLOSURE STATEMENTS AND ARE STATIONS REQUIRED TO HAVE THEM?
A disclosure statement is a written summary of the station’s advertising rates and policies. Ordinarily, it should describe the classes of time available to advertisers, the lowest unit charge for each class, any make-good policies, policies on the preemption of ads, and any other sales practices or information that would be relevant to advertisers. Stations should provide the disclosure statement to any candidate, agency or group requesting political time (inside or outside of the LUC window). Of course, disclosure statements should be updated as often as necessary during the election season to ensure accuracy.
The FCC’s rules do not require that stations prepare written disclosure statements. Nevertheless, as a matter of routine prudence, every station should have one. Disclosure statements provide both station sales staffs and prospective advertisers a clear guide to the factors relevant to any advertising purchase; they also tend to limit after-the-fact disputes. Moreover, the process of preparing a complete disclosure statement forces the station to consider and resolve, in advance of the election season, a number of practical questions (e.g., whether to decline to sell time to candidates for certain non-federal offices).
WHAT SPONSORSHIP IDENTIFICATION REQUIREMENTS APPLY TO POLITICAL ADS?
All political advertising must include some form of sponsorship identification. Specifically, when a political ad is run there must be a statement that the ad was paid for or sponsored by the group or person purchasing the ad time. If the advertiser provides the station with a pre-produced spot that does not include the required sponsorship ID, the station must add this language on its own accord (if necessary, it can do so over the content of the spot — no free time need be provided).
Ads for federal candidates also must meet a variety of additional requirements imposed by the Bipartisan Campaign Reform Act. If the ad refers to an opposing candidate, BCRA requires a statement, spoken by the candidate who is purchasing the time, which identifies the candidate and the office sought and states that (a) he or she approves the broadcast, and (b) he or she (or his/her campaign committee) paid for the ad.
BCRA also requires that federal candidates or their authorized committees provide a broadcast station with a written certification stating whether or not the advertisement refers to another candidate for the same office. If it does refer to another candidate, the certification must state that the ad will comply with the stand by your ad announcement requirements described above. This certification must be provided to the broadcast station when the time is purchased. If the certification is not provided, the station is not obligated to give the candidate the lowest unit rate.
If the ad advocates the election or defeat of a specific candidate and is paid for or sponsored by a third party, then the ad must clearly indicate whether it was or was not authorized by a candidate. That is, the sponsor identification statement must include both the “paid for” or “sponsored by” language and the “authorized by” or “not authorized by” a particular candidate or campaign committee language. If it is not authorized, there must be an additional audio statement that the name of the entity purchasing the ad “is responsible for the content of this advertising.”
This is in addition to relevant state law, which may require more.
CAN A STATION REVISE THE CONTENT OF A POLITICAL “USE?”
When a legally qualified candidate for office makes a “use” of a station, the station is not permitted to censor the candidate’s message in any way.
While some political uses may contain content that the station might ordinarily choose not to broadcast, the station cannot alter the use at all. However, the station is protected from any liability that may result from the candidate’s message. This “no censorship” provision applies only to candidate advertising and not to third party advertising. Thus, stations need to take potential liability into account when deciding whether to accept such third-party ads.
WHAT RECORDS NEED TO BE KEPT?
The FCC’s political file rule requires stations to maintain, and allow public inspection of, records of all requests for political time. These records must include details of:
• the nature and disposition of the requests;
• the schedule of time provided or purchased;
• the classes of time involved;
• the rates charged; and
• contact information of the purchaser
In addition to the FCC’s political file requirements, BCRA requires that the broadcaster’s public file contain all requests for time by anyone (including non-candidates) who seeks to communicate a message that refers either to: (1) a legally qualified candidate; or (2) any election to federal office; or (3) a national legislative issue of public importance. Because the political file is often reviewed by parties seeking equal opportunities, it is important for stations to keep the political file up to date at all times.
Note: since the political file is available for inspection by the public, care should be taken to remove or redact any confidential information, such as credit card or check numbers that might otherwise be included in the materials placed in the file.
As noted previously, this is a thumbnail overview of the political broadcasting rules. In the coming weeks and months, stations should review the rules in detail and confirm that their disclosure statements and station policies in place and up-to-date. As the election season approaches, station management should ensure that sales personnel are well informed about what the rules require and the recordkeeping tasks that they will need to fulfill.
Once the political advertising season begins in earnest, questions and controversies can arise quickly. Those questions and controversies can be complicated and require careful analysis. Don’t hesitate to call your friendly neighborhood communications counsel for help.
Daniel Kirkpatrick counsels radio and TV stations on compliance with FCC regulations affecting their day-to-day operations, as well as in the context of sale, purchase and financing transactions. The website of Fletcher, Heald & Hildreth is www.fhhlaw.com.