Easy online access to TV stations’ political files leads to charges of shortcomings.

Two years ago, when TV stations were first required to post their local public inspection files online, a number of observers anticipated that the ubiquitous availability of the now-misnamed “local” files would lead to an influx of complaints from non-local parties enjoying easy Internet access to once distant files.

The complaints have started.

In one of the first – if not the first – instance, two Washington, D.C.-based public interest firms have filed complaints against a total of 11 TV stations. The complainants – the Sunlight Foundation and the Campaign Legal Center – base their charges entirely on political advertising materials obtained from the stations’ online public files. The essential claim running through all the complaints is that the target stations failed to include various bits and pieces of legally-required information.Following up on the complaints, the Commission has sent letters of inquiry (with Chairman Wheeler’s blessing) to the targeted stations.

First, let’s focus on the disclosure information that the complainants allege to be missing. Section 315(e)(1) of the Communications Act requires broadcasters to maintain (and make available for public inspection) certain information with respect to any request to purchase airtime when the request is either (a) made on behalf of a legally-qualified candidate for public office or (b) “communicates a message relating to any political matter of national importance”. That latter provision includes messages concerning a legally qualified candidate, any election to federal office, or a “national legislative issue of public importance”.

With respect to each such request for time, the broadcaster is required to record:

  • Ÿ whether the request is accepted or rejected by the licensee;
  • Ÿ the rate charged;
  • Ÿ the date and time the spot(s) are aired;
  • Ÿ the class of time purchased;
  • Ÿ the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);
  • Ÿ for ads placed by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and
  • Ÿ for any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.

And all that information is then supposed to be placed in the station’s public file and, thus, made generally available for inspection.

According to the complaints, the targeted stations didn’t include all the required information. In particular, the documents obtained from the various stations’ files allegedly failed to identify: the name of the candidate referred to in the ad; and/or the issue of national importance to which the ad referred; and/or the chief executive officer or board of directors of the sponsor. And sure enough, some of those tidbits of information do appear to have been omitted from the documentation attached to the complaints. (The complainants have provided a webpage with links to all 11 of the complaints, each of which conveniently includes the underlying station documents as attachments, in case you’d like to take a look.)

In some instances the complaints allege that the station’s paperwork failed to identify the “issue of national importance” even though the paperwork did identify the candidate for whom the spot ran. But it’s not at all clear from the language of Section 315(e)(1) that, when a candidate’s ad includes reference to a national issue and the candidate is him/herself properly identified, the national issue referred to must be separately identified in the public file materials. And even where the candidate was also not identified, the complainants don’t appear to have had much trouble figuring out from the available documentation just what candidates (and what issues) were featured in any particular spot.

In any event, review of the station documents suggests that any omissions occurred more as a matter of oversight or inadvertence than devious calculation. The forms on which the required information should have been communicated to the stations appear in some, if not all, instances to have originated from the advertisers, not the stations. Sure, station personnel could presumably have noted the omissions and tried to track down the information before letting the spots run. But that’s easier said than done.

In the thick of a political campaign season, with ad buys rolling in hot and heavy from a wide range of candidates and organizations, such follow-up is difficult. And that’s true even if the sponsor is cooperative, which apparently often isn’t the case on the political front. Non-candidate political advertisers may prefer anonymity, notwithstanding what the law may require – so, for example, getting a complete list of officers or directors can be a non-starter. What’s worse, we understand from a number of knowledgeable sources that, when contacted by stations trying to track down the required information, some political advertisers are declining to cooperate – and even threatening to pull the order and place it on one or more competing stations (who, so the threat goes, would be happy to air non-compliant spots).

In other words, compliance is often hard to achieve even by the best-intentioned stations.

But while it may be easy to understand the practical realities that presumably led to the alleged omissions, the fact is that the Communications Act says what it says, as do the FCC’s rules. Compliance with those requirements is the order of the day. The complaints clearly illustrate that, thanks mainly to the online public file system, individuals and groups who may have no connection to a particular station or a particular area (including that area’s particular political contests) can nevertheless flyspeck a station’s public file from the distant comfort of their computers. And, as the complainants have done here, such individuals and groups can urge the FCC to impose forfeitures and possibly other penalties on stations whose public files are found lacking in some way or other.

That being the case, station personnel – and especially sales personnel – should be reminded of the law’s requirements. Stations might consider, where possible, developing internal systems to minimize omissions of required data from political advertising documentation. Absolutely perfect compliance, while theoretically desirable, is practically unlikely – but if such systems are in place, a licensee may be in a better position to argue that it has taken adequate steps to comply with the law, even if those steps in some instances prove not quite up to the job.

As annoying as the complaints may be, they do provide a reminder that is particularly timely – timely because, as we have reported, it looks like the requirement to place political advertising materials in the online public file system is likely to be extended on July 1 to ALL full-power and Class A TV stations regardless of market or network affiliation status. (Up to now, only affiliates of the Top Four commercial networks in the Top 50 DMAs have been required to upload their political files to the online system.) That doesn’t change the underlying requirements relative to what information those files are expected to contain, but it does change the ease with which those files may be reviewed by anybody anywhere.

The complaints are thus a shot across the bow, a demonstration that there are organizations out there who are ready, willing and able to access whatever information is available in online public files and notify the FCC is they find that the information falls short in some way. The possibility of such complaints should provide a strong incentive for all TV stations to take steps to tighten up that end of their operation to the extent possible. Again, a station’s ability to comply will often depend on the willingness of the advertiser to provide the necessary information, and advertisers may not always be as cooperative as a station might like. But that merely underscores the wisdom of knowing the requirements and trying in good faith to comply with them. Remember that the FCC’s rules apply to TV licensees, not to their advertisers.