On Friday, January 7, after the sun had set and the FCC’s doors were locked for the night, the agency released two decisions addressing complaints that a dozen TV stations did not provide sufficiently complete information about political advertising in their public inspection files during the 2016 Presidential campaign.
That sounds kind of like a “controversial” FCC decision, and we thought that the FCC was going to hold off on controversial decisions until after next week’s Presidential Inauguration. To get around that unofficial moratorium, the Media Bureau Staff, rather than the full Commission, issued the two Orders, an approach used in a few other situations where the Wheeler FCC has wanted to get decisions out before the Chairman departs next week.
The political public file requirements are pretty detailed, and it’s not always easy to pry some of the required information out of political sponsors, let alone get it all uploaded immediately into a station’s online political public file. Complaints were filed during the campaign, often by public interest groups, attempting to expose the sources of money behind political advertising where the sponsor preferred to remain in the shadows.
The new decisions “clarify,” to use the FCC’s own word, that when a spot mentions more than one candidate, the political public file entry must mention all the candidates, not just the lead candidate. Where a spot addresses both candidacies and national legislative issues of public importance, both the candidates and the issues must be listed in the public file entry. But only issues that are both “political” and of “national importance” need be listed – not issues of only local or regional importance.
A station is expected to be pro-active and look at the spot to see whether the sales order lists all the candidates and issues mentioned – not so easy to do in the few days prior to Election Day when spots are being delivered to the station only hours or maybe even minutes before they go on the air.
The public file must contain a list of the chief executive officers or members of the executive committee or board of directors of the purchaser of air time. Some ad agencies refused to provide that information and provided the name of only a single official of the sponsoring entity. The FCC held that if a station has a reasonable basis for believing that the initial information is incomplete or incorrect, it must ask whether there are other persons who must be disclosed. However, importantly, the FCC held only that the station must ask the sponsor; the station is not required to reject a spot if it cannot get all the names from the sponsor and is not required to engage in independent research to try to find the information.
Some of the defending TV stations argued that national public interest groups do not have standing to file political complaints if they don’t have members living in the local station’s service area who watch the station. That’s the standing test to petition to deny a license renewal; but the FCC said that it will not apply the renewal test to political complaints and will afford standing to national organizations, because of the importance of ensuring adequate political information disclosure.
It is clear that the FCC thought that the TV stations missed the boat quite often in keeping their political public files up to date, but the agency did not follow its enforcement pattern of the last few years of ringing its cash register with a nasty fine for rule violations. The worst sanction was an admonishment. Maybe the FCC decided that its prior rulings were not clear enough to stand up in court if an appeal was filed; or perhaps it did not want the issues reviewed by a Commission with a Republican majority; or maybe it decided that all things considered, it is best to put the 2016 campaign to rest.
In any case, the public file clarification requirements should help stations in future campaigns to understand how far they have to go on their own to obtain and to disclose sponsorship information and should also give stations ammunition to pressure political sponsors who refuse to provide information required by law.