The FCC’s Political File Rules: Is Your Station in Full Compliance?

Super Tuesday is less than two weeks away, Michael Bloomberg is spending a king's ransom on political advertisements, and the Federal Communications Commission ("FCC") is actively engaged in investigating stations' compliance with the political file rules. Now is the time to make sure your station staff understands the FCC's political file requirements and implements any required changes in your procedures.

Broadcast stations have long been required by law to maintain public records about political advertisement inquiries and buys, but recently the FCC has taken a keen interest in whether stations are in fact complying with the rules. In addition, there is new guidance from the FCC on what information needs to be gathered for so-called "issue" ads.

Remember: now that public files are online for all stations, the FCC staff can and does review station public files for compliance. Failure to comply with public file rules can result in significant fines. So, buckle up for a quick refresher on political advertising record-keeping requirements so you can take in those sweet political dollars without worrying about turning around and paying Uncle Sam for doing it wrong.

Political Public File 101: the Communications Act and the Bipartisan Campaign Reform Act of 2002 (BCRA) require that all broadcast stations put in their public inspection file a record of any and all requests to purchase advertising time

a) by or on behalf of a legally qualified candidate for public office; OR

b) that communicates a message relating to any political matter of national importance.

We will break down below distinct information required from the different types of ads, but certain requirements apply to any and all political ad time requests. For both political candidate ads and national issue ads, stations must document:

• the rate quoted/charged for the broadcast time and the class of time, if applicable;
• whether the request to purchase broadcast time is accepted or rejected by the licensee; and
• if it aired, the date and time when the spot aired.

For issue ads that do not address issues of national importance, stations must simply document the fact that the ads were aired and maintain a list of the chief executive officers or members of the executive committee or of the board of directors of the entity buying the time. Information about rate, class, and air times is not required.

Not only do stations need to mind their p's and q's in gathering information, but they must be timely - documentation must be uploaded to the online public file (OPIF) as soon as possible - and in any case, no later than 24 hours after the request, or the next business day.

Now, let's get into the specific requirements for the different ad types.

Candidate Ads

A request for time by a legally qualified candidate (federal, state, or local) or on behalf of that candidate by his or her authorized campaign committee, is a candidate ad. Candidate ads must include the information above, plus:

• the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee;
• the office being sought; and
• the type (primary or general) and date of the election.

Issue Ads

In an October order resolving political file complaints against 11 licensees, the FCC clarified the scope of issue ad regulations and gave more guidance on what needs to be documented in station public files for those ads. As a reminder, an advertisement that communicates about a political matter of national political importance but doesn't come from the candidate themselves or from an official behalf of a candidate is an issue ad. How do you know if the issue ad rules arising under BCRA are triggered when a request for time comes in the door? Ask whether the ad is about 1) a federal candidate, 2) a federal election, 3) an issue on which legislation is pending in front of Congress or 4) any other matter of national political controversy. If the answer is yes to any or all of the above, the BCRA issue ad rules are applicable.

For such issue ads, the station must document in the public file - in addition to the information above related to rates, class, and scheduling - the following:

• if a federal candidate is discussed, the candidate's name, office being sought, and election type/date;
• if a federal election is discussed (without a specific candidate named), that election office, type, and date;
• if one or more federal legislative or national political issues are discussed, all such issues must be listed; and
• a list of all chief executive officers or members of the executive committee or of the board of directors of the entity requesting the political advertising time

For example, let's say a political action committee wants to buy time on your station. Their ad copy describes the impeachment of President Trump, alleges corruption in the Senate, discusses economic inequality, and implores the listener to vote for Democrats on Super Tuesday. The federal candidate mentioned is Donald Trump, so the documentation must list him, the office of the presidency, and that he is running for President (including in the primary election if he is, in fact, running in a primary occurring in your station's service area). The ad arguably also references the Senate and the Democratic Presidential primary, so both of those primary elections should be listed as well. Next, the documentation should list economic inequality as the issue of national political importance. Lastly, the documentation uploaded to the station's political folder in its online public file must have the list of all officers and directors of the Political Action Committee (PAC).

Yes, there is some ambiguity here, but you cannot go wrong being over-inclusive in listing candidates, elections and issues discussed, even if some are only obliquely mentioned. Similarly, the FCC acknowledges that, while a station cannot be fully responsible for ensuring that the officers and board members provided to it are complete and accurate, the licensee must nonetheless make a reasonable effort to determine the completeness of the information. If an order comes in with what appears to be an incomplete list of officers (for example, only one officer is named, or the name is obviously incomplete), the station must make at least one attempt to gather the complete information.

So, how can you be sure that your station staff is gathering all of the required information? Luckily, the National Association of Broadcasters (NAB) has updated its Political Broadcast Agreement Forms - one for candidate ads, and one for issue ads. NAB members may download the forms for free; non-member stations can order the PB-19 forms via the NAB online store.

As the 2020 election campaign heats up, licensees should review their political file procedures, re-train their staff, and make sure that they are compliant with the FCC's recent "clarifications." For a more in-depth discussion of the political broadcasting rules, check out our previous post here. If you have questions, contact your communications counsel.