Political Broadcasting Rules Q & A: Updated for 2019

With primaries in some states happening as soon as March, and the Democratic primary contest already hotly contested by a large field of candidates, the 2020 election cycle is certain to be one of the most contentious and hard-fought in recent memory - as well as one of the longest. While far more limited in scope, 2019 elections in some states, and many localities, are also rapidly approaching. For all stations, now is the time for broadcasters to review their systems to ensure that they will comply with the Federal Communication Commission's ("FCC") political advertising requirements. Now that all broadcast stations are required to place political files online, it is 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 (seemingly perpetual) election season run smoothly (and, ideally, profitably) for your station.

The FCC's political broadcast rules generally cover: 1) who is entitled 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. It is worth noting that in this context, "positive" really means something closer to "neutral" or "non-negative," so even an appearance in entertainment programming that would generally be considered neutral in regards to the candidate's campaign would be treated as a "use."

Candidate appearances in certain types of programming do not count as "uses." For example, appearances by a candidate on "bona fide" news, 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 (i.e., President, Vice President, House of Representatives 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.

Although a federal candidate's reasonable access rights ensure access to a broadcast station's airtime, federal candidates do not necessarily have the absolute 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, given 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 a possibility, 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.

What are "equal opportunities"?

All candidates for the same office must be treated in an equal manner. This rule - known as the "equal opportunities" or "equal time" rule - applies to both federal and non-federal (i.e., state and local) candidates; it is not restricted to a limited period of time before the election. The rule is triggered by a "use" of a station by a legally qualified candidate. Once a legally qualified candidate for a given office makes a "use" of a station, all other legally qualified candidates for the same office are entitled to the opportunity to make equal use of the station. That is, the station must make the same amount and kind of time available at the same cost.

In order to take advantage of this rule, a candidate seeking equal time must request it within seven days of the opposing candidate's triggering "use" of the station. A station is not obligated to notify opposing candidates when a "use" is made but, as described below, it must document all uses in its political files, which are now part of the station's online public inspection file. If a station does not post such documentation to its public files promptly, the seven-day deadline for equal time claims may be extended.

The equal opportunities rule can become a serious issue when on-air talent wishes to run for office. All of that person's appearances on the station after becoming "legally qualified" count as free uses of the station. Similarly, if an actor or other entertainment personality becomes a legally qualified candidate, the broadcast of movies, TV shows or other material in which the actor/personality is identifiable would also count as free uses. Such uses would obligate the station to give equal amounts of free time to all opposing candidates.

Equal time claims can also become a serious issue in the final days before an election, when some stations may need to monitor their available commercial inventory closely to ensure that they can accommodate equal time demands from candidates.

What is "lowest unit charge" and when does that apply?

Perhaps the most troublesome question for many stations is the question of the rate that may be charged for political advertising. All legally qualified candidates for any political office - state, local or federal - are entitled to the "lowest unit charge" (LUC) (or "lowest unit rate") during the 45 days before a primary election and the 60 days prior to a general election. (The 45/60 day periods are often referred to as "LUC windows.") For the 2019 general election the window opened on September 6, and for the November 4, 2020 general election, the window will open on September 3.

In general, the LUC is the lowest rate charged to any other advertiser for the same class and amount of time for the same time period, including all discounts and bonus spots. As a practical matter, political candidates are to be treated as the "most favored" advertiser during the LUC windows. This favorable treatment is available only to candidates or their authorized campaign committees for "uses" by the candidate; it is not available to any third-party advertisers, including political action committees, citizens groups and the like. As explained below, federal candidates also must make an affirmative certification that their advertisements meet certain criteria (and the advertisements must, in fact, meet those criteria) to qualify for the LUC.

Determining the exact amount of the LUC for any particular candidate order can be tricky. It depends on what the candidate is buying (e.g., ROS vs. fixed position, preemptible vs. non-preemptible, etc.). A station must also take into account other factors that affect advertising rates charged to its non-political customers, such as day-part, discounts given for large purchases, the value of "bonus spots," etc. Most stations will have more than one LUC depending on the various classes of time sold on the station during the LUC window.

Because the calculation of the LUC can be complex, stations should begin considering the issue well in advance of the LUC window, and should consult with legal counsel as necessary.

What are "Disclosure Statements" and are stations required to have them?

A disclosure statement is a written summary of the station's advertising rates and policies. Ordinarily, it should describe the classes of time available to advertisers, the LUC for each class, any make-good policies, and policies on the preemption of ads, as well as any other sales practices or information that would be relevant to advertisers. The station should provide the disclosure statement to any candidate, agency, or group requesting political time (inside or outside of the LUC window). Of course, disclosure statements should be updated as often as necessary during the election season to ensure accuracy and stations should be sure to comply with any policies set forth in the statements.

The FCC's rules do not require that stations prepare written disclosure statements. Nevertheless, disclosure statements provide both station sales staffs and prospective advertisers a clear guide to the factors relevant to any advertising purchase; they also tend to limit after-the-fact disputes. In addition, the process of preparing a complete disclosure statement forces the station to consider and resolve, in advance of the election season, several practical questions (e.g., whether to decline to sell time to candidates for certain non-federal offices).

What sponsorship identification requirements apply to political ads?

All political advertising must include some form of sponsorship identification. Specifically, when a political ad is run, there must be a statement that the ad was "paid for" or "sponsored by" the group or person actually purchasing the ad time. If the advertiser provides the station with a pre-produced spot that does not include the required sponsorship ID, the station must add this language on its own accord (if necessary, it can do so over the content of the spot - no free time need be provided, and this type of addition is exempt from the usual non-censorship rules that apply to candidate advertising). For television ads, the statement must be visual, run for at least four seconds, and occupy at least four percent of the screen.

Ads for federal candidates also must meet a variety of additional requirements imposed by the Bipartisan Campaign Reform Act (BCRA). If the ad refers to an opposing candidate, BCRA requires that a statement be spoken by the candidate who is purchasing the time and that the ad identifies the candidate and the office sought. BCRA requires that the candidate state that a) he or she approves the broadcast, and b) he or she (or his/her campaign committee) paid for the ad. Television ads must also display a clearly identifiable image of the candidate.

BCRA also requires that federal candidates, or their authorized committees, provide a broadcast station with a written certification stating whether or not the advertisement refers to another candidate for the same office. If it does refer to another candidate, the certification must state that the ad will comply with the "stand by your ad" announcement requirements as described above. This certification must be provided to the broadcast station when the time is purchased. If the certification is not provided, the station is not obligated to give the candidate the LUC.

If the ad advocates the election or defeat of a specific candidate and is paid for or sponsored by a third party, the ad must clearly indicate whether it was or was not authorized by a candidate. That is, the sponsor identification statement must include both the "paid for" or "sponsored by" language and the "authorized by" or "not authorized by" a particular candidate or campaign committee language. If it is not authorized, there must be an additional audio statement that the name of the entity purchasing the ad "is responsible for the content of this advertising." This is in addition to relevant state law, which may require more.

Can a station revise the content of a political "use"?

When a legally qualified candidate for office makes a "use" of a station, the station is NOT permitted to censor or otherwise alter the candidate's message in any way (other than by adding a missing sponsorship identification). While some political uses may contain content which the station might ordinarily choose not to broadcast, the station cannot alter the use at all. However, the station is protected from any liability that may result from the candidate's message. This "no censorship" provision applies only to candidate advertising and not to third-party advertising. Thus, stations need to take potential liability into account when deciding whether to accept such third party ads.

What records need to be kept with respect to political advertising?

The FCC's political file rule requires stations to maintain, and allow public inspection of, records of all requests for political time. With the advent of the online public file requirements now applicable to all broadcast stations, these materials will now be available for review by anyone with internet access. The records placed in the political file must include details of:

• the nature and disposition of all requests;
• the schedule of time provided or purchased;
• the schedule of time at which advertisements actually aired, if different;
• the classes of time involved;
• the rates charged; and
• contact information of the purchaser.

In addition to the FCC's political file requirements, BCRA requires that the broadcaster's public file contain all requests for time by anyone (including non-candidates) who seeks to communicate a message that refers either to any political matter of national importance, including: 1) a legally qualified candidates for federal office; or 2) any election to federal office; or 3) a national legislative issue of public importance. The Commission has further clarified that a "political matter of national importance" is not necessarily limited to the three specific categories above, but can include any political issue that is "the subject of controversy or discussion at the national level."

For messages that trigger these BCRA requirements, a licensee's public file documentation must include, in addition to the information identified above:

• The name of all candidates, office, and national issues referred to in the message;
• For requests made by or on behalf of a candidate, for federal office, the name of the candidate, his or her authorized committee, and the treasurer of that committee; and
• For requests made by third parties, a list of all of the chief executive officers or members of the executive committee or board of directors of the entity purchasing the time.

Where a request addresses more than one candidate, office, or issue of public importance, the public file documentation must identify all of the candidates, offices, and/or issues referred to. The FCC has also clarified that if a licensee has a reasonable basis to believe that a third party advertiser has supplied an incomplete list of officers or directors (e.g., the list contains only one name), the licensee must make at least a single inquiry of the purchaser as to the completeness of that list.

Because the political file is often reviewed by parties seeking "equal opportunities," it is important for stations to keep the political file up-to-date at all times. (Note: since the political file is available online for inspection by the public, care should be taken to remove or redact any confidential information, such as credit card or check numbers that might otherwise be included in the materials placed in the file.)

As noted above, this is a thumbnail overview of the political broadcasting rules. We also invite readers to review our firm's archived webinar from early September that was presented with the FCC's Bobby Baker on the political broadcasting rules. In the coming weeks and months, stations should review the rules in detail and confirm that their disclosure statements and station policies in place are up-to-date. As election season heats up, station management should ensure that all sales personnel are well-informed about the substantive rules and the recordkeeping obligations related to political broadcasting.

Once the political advertising season begins in earnest, questions and controversies can arise quickly. Those questions and controversies can be complicated and require careful analysis. Don't hesitate to contact your legal counsel.