By: David Oxenford,
Wilkinson Barker Knauer LLP
The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules. While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising. Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.
These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans. The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.
The first change, if adopted on January 27, will add to the factors a broadcaster is required to consider when determining if a write-in candidate has satisfied his/her obligation to make a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.” Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations. A substantial showing is required to demonstrate that the write-in candidate is conducting a serious campaign for office, thus entitling them to the protections of the political rules. Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a substantial showing is also required (see our article here). The facts set forth in that showing determine how serious the campaign is.
Under the current rules, the FCC lists factors a station can look at to determine if a substantial showing has been made. These include whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters. The new rules would add social media activity and a campaign website to the factors to be considered. The FCC would not regulate candidate use of social media or websites, but instead simply require that broadcasters take into account any social media or website presence in assessing if a purported candidate should be considered “legally qualified” for purposes of the FCC’s political rules that apply to broadcast political ads (and to cable). The FCC is simply recognizing that online media is an important factor in determining if a candidate is a serious candidate who should receive the benefit of FCC protections, so it should be considered in deciding if the candidate is legally qualified. But, as the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities already are indicative of how serious a candidate is, stations were likely already reviewing these activities when assessing substantial showings. The FCC’s change would just make clear that these factors should be considered by specifically requiring it in the rules.
The draft Report and Order would make a few helpful clarifications. First, the draft notes that these online activities do not, in and of themselves, constitute a “substantial showing.” In other words, to be considered a legally qualified candidate, the campaign could not be totally virtual. Some real-world activity is necessary for a write-in candidate to be considered legally qualified. Also, the draft decision makes clear that the write-in candidate has the burden to demonstrate that they should be considered legally qualified, and that the broadcaster’s good faith evaluation of whether the candidate has made an adequate showing is entitled to deference by the FCC if ever challenged by a purported write-in candidate.
The second change would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads). This requirement was imposed by the Bipartisan Campaign Reform Act 20 years ago but was never formally carried over into the FCC rules. The FCC has enforced these requirements, as evidenced by recent FCC actions issuing admonitions to TV stations for perceived violations of these public file requirements. See our article here on the FCC’s admonitions, our articles here and here on some of the follow-on controversy, and our article here about the FCC’s limited reconsideration decision. So formally adding these obligations to the rules just reiterates what is already required of broadcasters dealing with federal issue ads.
Thus, the changes to the rules that are likely to be adopted at the FCC’s January 27 meeting do not dramatically affect the existing political broadcasting practices of broadcasters. But they do highlight the importance of these rules – and the details that must be observed. So, with an incredibly active political season ahead of us in 2022, be sure that you are on top of all of the requirements and that you discuss these matters with counsel as they arise. See our article that we published late last year for some of the political broadcasting issues you should be reviewing now to make sure that you are ready for the 2022 political season.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.