Political Advertising Rules “Clarified”

Orders put all broadcasters on notice that, moving forward, they would be held responsible for failing to comply with the now-clarified rules February 16, 2017

Despite attempts on both sides of the political spectrum to try to forget the 2016 election, the FCC’s Media Bureau issued two decisions seeking to “clarify” what information must be gathered by broadcasters in connection with their political public files.

The two orders did not impose any monetary forfeitures for television broadcasters’ failure to comply with the FCC’s rules, but it did put all broadcasters on notice that, moving forward, they would be held responsible for failing to comply with the now-clarified rules.

PUBLIC FILE

Generally, the Communications Act and the FCC’s rules require broadcasters to retain “complete” records regarding requests for the purchase of broadcast time to communicate “a message relating to any political matter of national importance.” The Communications Act provides three examples of advertisements that are covered, namely those that reference (i) a legally qualified candidate, (ii) any election to federal office or (iii) a national legislative issue of public importance.

In such cases, the information that must be collected by the broadcaster and placed in its political public file includes (i) the name of the candidate mentioned in the advertisement, (ii) the office sought by that candidate, (iii) the election to which the advertisement refers and (iv) the list of the chief executive officers or members of the executive committee or the board of directors of the advertiser.

Complaints were filed in October 2016 against broadcasters relating to the public file records for political advertisements that allegedly failed to contain all of the required information. For example, in connection with two advertisements run by one television broadcaster, the complaints noted that the public file records failed to identify any of the officials of one advertiser, and only used an acronym for identifying the second advertiser. The Media Bureau determined that the records for both advertisements failed to comply with the political file obligations, and admonished the broadcaster.

The second order collectively dealt with complaints filed against 11 television broadcast stations. These TV broadcasters faced similar complaints that their political public files were insufficient, and the Media Bureau issued an order both clarifying the recordkeeping requirements and admonishing the broadcasters. The Media Bureau’s clarification addresses both the “completeness” of the records and the “context” that triggers the record-keeping requirements.

First, the Media Bureau clarified that licensees must include in their records (i) the names of all candidates and the office they seek, (ii) all elections; and (iii) all national legislative issues of public importance mentioned in the advertisement.

Second, the Media Bureau clarified that the political public files must include all of the chief executive officers or members of the executive committee or board of directors of the party seeking to purchase the advertisement. In those instances where an advertiser only provides the name of one person, the Media Bureau clarified that the broadcaster is obligated to make a second inquiry to confirm that the advertiser has provided all of the names required under the Communications Act and the FCC’s rules.

Finally, the Media Bureau indicated that it would consider context in determining if the advertisement was a “political matter of national importance.” In reviewing the context, the Media Bureau expects that broadcasters will consider whether the advertisement discusses (i) legally qualified candidates; (ii) any election to federal office; (iii) a national legislative issue of public importance; and (iv) political issues that are the subject of continuing controversy or discussion at the national level.

Because the Media Bureau determined that clarification of these requirements was requested, the bureau admonished the broadcasters rather than imposing forfeiture. But because the two decisions seemingly create new record-keeping obligations for their political files, it is possible that this is not the last word on the “clarifications.”

Just as enforcement action surrounding George Carlin’s seven dirty words did not involve forfeiture, it is possible that one or more of these broadcasters may seek reconsideration of the “admonishment.”

With the change in administration, it is likely that a new FCC may have a different view on whether the clarifications consisted of new rulemaking that should have been reviewed by the full commission.

UPDATE

The Media Bureau provided a last-minute stocking stuffer for all noncommercial broadcast stations that were to have filed Biennial Ownership Reports in 2017. In light of the new rule requiring that all biennial reports are now due on Dec. 1, 2017, the Media Bureau announced that NCE broadcasters that would have been required to submit a report earlier in the year may wait until the Dec. 1 deadline. Those reports, now for all broadcasters, are to contain information current as of Oct. 1, 2017.

Petro is of counsel at Drinker Biddle & Reath LLP. Email: lee.petro@dbr.com.

 

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