With primaries in some states happening as soon as March, the 2018 election cycle is certain to be contentious and hard-fought. 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. Now that all broadcast stations are required to place political files online, it will be increasingly important for all radio and television stations to ensure compliance with the political broadcasting rules – not just the substantive rules but the recordkeeping portions as well. A little-advanced planning can go a long way in making this election season run smoothly (and, ideally, profitably) for your station.
Photo by Elliott Stallion courtesy of the Creative Commons License
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 highly dependent on the specific facts at hand.
Central to understanding and complying with the political rules is the concept of a candidate’s “use” of a broadcast station. As we will delve into in greater detail below, the “use” of a broadcast station by a candidate triggers several potential obligations. Therefore, 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.
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. 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, in news interviews, 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.
What 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 (e.g., 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 only come 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.
Photo by Jomar courtesy of the Creative Commons Licence
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 legal 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 office (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 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 station’s disclosure statements (see below) – and consistently applied. Continue Reading