VAB, in combination with the state broadcasters associations of all 50 states, the District of Columbia, and Puerto Rico, filed extensive Joint Reply Comments on January 28, 2020 in support of the Petition for Reconsideration of Political File Orders submitted by the National Association of Broadcasters (NAB) and others (MB Docket No. 19-363).
State Broadcasters Associations joint reply comments and the NAB petition are seeking reversal of the FCC’s orders faulting a number of broadcasters for claimed deficiencies in their Political Files, and announcing a significant expansion of the record keeping and disclosure requirements associated with the airing of political advertising.
The Joint Reply Comments Docket 19-363 As Filed argue that the Commission’s expanded disclosure requirements were inconsistent with the Communications Act and violative of the First Amendment rights of both broadcasters and political issue advertisers. The Joint Reply Comments further argued that the expanded disclosure requirements are unduly burdensome, particularly for smaller stations, and expose all broadcasters to improper second-guessing by the FCC as to whether a station’s political ad disclosures fully and accurately described all candidates, offices, elections, and issues of national importance contained in a political issue ad. The Joint Reply Comments also urged the FCC to significantly narrow the definition of “political matters of national importance” which require disclosure in the Political File, and to defer to broadcasters’ reasonable, good faith judgment in describing the content of political issue advertising for their Political File disclosures.
While we are hopeful that the FCC will indeed reconsider its orders in this matter, until that occurs, please make sure you are aware of the expanded requirements during this busy election year.
Political & Federal Issue Ads
With political ads already beginning to air for the 2020 election and ads likely to air about a number of other issues being considered in Washington, stations need to be sure that they are complying with the FCC’s recent interpretation of what is required to be contained in the public file disclosures about Federal issue ads.
The recent FCC interpretation says that stations must include in the public file complete information about all of the candidates, all of the elections, and all of the issues discussed in any Federal Issue ad – not just the primary issue or election addressed in such an ad. The FCC decision even notes that a state issue ad could become a Federal issue ad simply by mentioning a Federal issue (e.g. if a PAC buys an ad attacking a candidate for governor because, when in Congress, the candidate voted against the Border Wall, that PAC ad will likely be considered a Federal issue ad that needs to identify the “border wall” as the Federal issue that it addresses – and as a Federal issue ad, it will likely require the disclosure of all price and schedule information which is not required for a pure state issue ad).
As issue ad buyers are not likely to provide all of this information voluntarily, stations need to monitor the ads and identify in their public file all of the Federal candidates and issues discussed. The ruling also required that, when an issue ad buyer identifies only a single member of its its executive officers or board of directors (who need to be identified in the public file for both state and Federal issues ads), the station needs to make an inquiry of the sponsor or the agency that bought the ad as to whether there are other officers or directors who should be disclosed (as most buyers will have more than one member of their executive committee or board of directors).
The FCC’s new interpretations are very detailed and nuanced, so you should discuss compliance with your attorney.
Charging For Them:
Presidential primaries and caucuses are right around the corner, including the election-heavy day in March often dubbed Super Tuesday. This means stations in more than two dozen states will soon find themselves within the 45-day primary/caucus political window, which brings with it special obligations like lowest unit rates for candidates. With lowest unit charge windows opening on January 18, 2020 in Vermont, stations should be sure employees understand the requirements that go along with political advertising, including lowest unit charge and the expanded public file disclosure obligations issued by the FCC in mid-October. For more guidance on navigating election season, see David Oxenford’s Political Broadcasting Guide for Broadcasters and/or read this article by David Oxenford.