FCC REVISES POLITICAL PROGRAMMING AND ADVERTISING RULES

Today, the FCC released a Report and Order (Order), updating the political programming and recordkeeping rules for broadcast licensees, cable television system operators, Direct Broadcast Satellite (DBS) service providers, and Satellite Digital Audio Radio Service (SDARS) licensees. The Order revises the definition of legally qualified candidate for public office" to add the use of social media and creation of a campaign website to the existing list of activities that may be considered in determining whether an individual running as a write-in candidate has made a substantial showing" of his or her bona fide candidacy, and thus to be qualified for the benefits of reasonable access to station time for advertisements and the lowest unit charge for such advertisements. The Order also amends the political file rules consistent with the Bipartisan Campaign Reform Act of 2002 (BCRA), which extends the Commission's political file requirements to any request for the purchase of advertising time for issue ads, and lists the specific records that must be maintained in the station's public file.

The attorneys at Fletcher Heald have seen the FCC aggressively enforce the political file rules against numerous broadcasters in the last year, so licensees would be wise to pay close attention to the new revisions to those rules, in order to maintain or enhance their compliance.

Record Keeping and Implementation of the BCRA and Section 315 of the Act.

The FCC has long considered the requirements for licensees to keep accurate records of political advertising in their public files to be critical because the information in these files directly affects, among other things, the statutory rights of opposing candidates to request equal opportunities under Section 315(a) of the Act and present their positions to the public prior to an election. In addition, the political files allow the public to verify that Commission licensees and regulatees have complied with their obligations relating to use of their facilities by candidates for political office and to obtain information about entities sponsoring candidate and issue advertisements.

In 2002, Congress enacted the BCRA, which expanded the requirements to place in the public file requests for ads not just from candidates for public office, but also to include any request to purchase political advertising time that communicates a message relating to any political matter of national importance," (i.e., issue ads). Additionally, Section 315(e)(2) of the Act lists the specific kinds of records that must be maintained in political files, and Section 315(e)(3) of the Act provides that [t]he information required by [section 315(e)] shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years." Yet, while the FCC expected licensees to comply with these requirements, the specific FCC rules, including Section 73.1943 (for broadcasters), did not refer to issues ads, or list the specific records that must be placed in the public file. The Order enacts new rules, including a new Section 73.1943, that 1) implicate issue ads (along with ads for candidates) and 2) list the specific records that must be placed in the public file:

(1) whether the request to purchase broadcast time is accepted or rejected by the licensee;

(2) the rate charged for the broadcast time;

(3) the date and time on which the communication is aired;

(4) the class of time that is purchased;

(5) 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);

(6) in the case of a request made 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

(7) in the case of 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.

While the above list is consistent with prior Commission guidance, it is now formally a rule. It is important to recognize that many or all of the pieces of information in the above list may be contained in one document.

Substantial Showing" for Write-In Candidates

Political programming obligations for certain Commission licensees and regulatees are set forth in Sections 312(a)(7) and 315 of the Communications Act. Section 312(a)(7) requires broadcast licensees to give legally qualified candidates for federal office reasonable access" to their facilities, or to permit them to purchase reasonable amounts of time." Under Section 315(a), if a broadcast licensee permits one legally qualified candidate for a public office to use its station, it must afford all other candidates for that office an equal opportunity" to use the station. Section 315(b) provides that, during certain periods before an election, legally qualified candidates are entitled to the lowest unit charge of the station for the same class and amount of time for the same period."

The Communications Act does not define the term legally qualified candidate," however the Commission has adopted a definition and codified it in Section 73.1940 of its rules. Generally, in order to be considered a legally qualified candidate," an individual must publicly announce his or her intention to run for office, must be qualified to hold the office for which he or she is a candidate, and must have qualified for a place on the ballot or have publicly committed himself or herself to seeking election by the write-in method. If seeking election by the write-in method, the individual, in addition to being eligible under applicable law to be a write-in candidate, must make a substantial showing" that he or she is a bona fide candidate for the office being sought. That rule provides that the term substantial showing" of a bona fide candidacy

. . . means evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning. Such activities normally would include making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager). Not all of the listed activities are necessarily required in each case to demonstrate a substantial showing, and there may be activities not listed herein which would contribute to such a showing."

In an attempt to bring the rule up to date, the Order revises the rule to include social media and campaign website activities as further indicia that an individual is a bona fide candidate entitled to take advantage of the provisions of Section 312 and 315. The new rule provides that social media and campaign website activity alone would not solely determine that a candidate is bona fide, but they may be combined with other criteria in the rule to make that determination.

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In the last year, the FCC has been very aggressive in enforcing the rule requiring stations to quickly upload political ad buy documentation to the station's online public file. We have no reason to believe that this enforcement campaign is slowing down, so licensees would be wise to be mindful of the new rules in this Order. The text of the new rules including social media as a criterion for evaluating whether someone is a bona fide candidate, and listing the documents necessary to upload to a station's public file will become effective 30 days after publication in the Federal Register. The text specifically including issues ads will require approval of the Office of Management and Budget, which should take longer. But the new list of documents to be uploaded to a station's public file and the inclusion of issue ads are consistent with prior Commission advice, and so stations should be complying with those requirements already.

Please contact us if you have any questions, or would like our assistance.