By: David Oxenford,
Wilkinson Barker Knauer LLP
We are nearing the end of September and, in many jurisdictions, we are in the heart of political season – though mostly for state and local elections. While most broadcast stations don’t think much about the FCC’s political broadcasting rules in odd-numbered years, they are required to do so, as races for state and local political offices trigger most of the same FCC obligations as do races for federal office. There are particularly hard-fought elections for Governor in November in Virginia and New Jersey, and all sorts of state and local elections around the country. These include some mayoral races in major US cities. Thus, it is worth repeating the reminders that we have published before: most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.
Whether the race is for Governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station sells. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.
That means that if a broadcast station decides to sell advertising time to one candidate in a state or local political race, they must sell it to all candidates for the same race – and be prepared to make available equal amounts of time in equivalent time periods. Stations can decide to make available advertising only in certain dayparts (or on certain stations in a cluster) for state and local races. They can even make different dayparts (or stations) available for different political races, as long as all candidates for the same race are treated the same. So, for instance, a station could decide to offer only spots during weekend and overnight time periods to candidates for the city council, while offering candidates for Governor time during all dayparts. A station just needs to treat all legally qualified candidates (including legally qualified independent, fringe party and write-in candidates) for the same state or local race in the same way.
Lowest unit rates apply to state and local candidates, if you choose to sell to those candidates. That means if the time is sold to state and local candidates during the 60 days before the general election (no matter when that election will be held), the time must be sold to the candidates at lowest unit rates. See our summaries of the rules relating to equal time here, and to lowest unit charges here. Similarly, if a station on-air personality decides to run for state or local office (anything from the school board or local planning commission to Governor or state legislature), the station needs to consider whether to take that personality off the air, or risk having to provide equal time to all competing candidates – for free – in amounts equivalent to the amount of time that the employee-candidate appeared on the air, even if the employee never mentions his or her candidacy at all. See our articles about this topic here and here.
Political file rules also apply to all advertising by candidates and their authorized campaign committees. So the FCC’s clarifications in 2020 (see our articles here and here) on information about orders for candidate ads – including all price and schedule information – being uploaded to the public file within one business day, applies to these elections just as it does to federal elections. See my video here, prepared for the Indiana Broadcasters Association, that discusses many of the FCC’s new interpretations of the public file rules.
Ads from non-candidate groups dealing with state and local elections generally do not require price and schedule information to be uploaded (unless those ads also mention a federal issue), but they do require that the station’s online public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers, members of the Board of Directors or similar governing board. Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with a single name, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.
For more about the political rules, see our Broadcaster’s Guide to Political Broadcasting here (though note that the political file information has not been updated, so refer to the video and articles linked in the prior paragraph for more information). Don’t forget about these political advertising rules – even though this is an odd-numbered year!
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