The Federal Communications Commission is signaling it may be willing to embrace some of the clarifications broadcasters are seeking to its updated political file obligations. The Media Bureau issued the revisions in October, but the National Association of Broadcasters and a half dozen broadcast companies said the requirements are “overbroad and difficult, if not impossible, to apply.” They also said it was an anomaly for such a change to be made without a public comment period and urged the FCC to quickly reconsider the rules before the 2020 political advertising season gets underway in full force. The Bureau hasn’t said it is willing to rework its other changes, but it has gone along with a request by broadcasters that it open a public comment period on the proposals (MB Docket No. 19-363).
The sore spots for the NAB-led group include what it sees as an overly broad definition of the term “political matter of national importance” for disclosure and recordkeeping requirements for political ads. The FCC order said stations are now required to maintain a record of each request for the purchase of political advertising time that communicates a message relating to any political matter of national importance. That includes a legally qualified candidate, any election to federal office, or a national legislative issue of public importance. In each of these cases, stations are required to put in their political file information about the buy. And each category addressed in an ad must be flagged in the disclosure.
Instead, broadcasters say such a designation should only apply to “national political actors in a position to take national political action on the matter.” That clarification, they argue, should explicitly exclude from the definition “advertisements about state and local candidates and races.”
The broadcasters are also requesting the FCC eliminate a new requirement that stations identify all “political matters of national importance” referenced in each and every radio and television commercial. The group says in doing so the FCC “created a minefield” for local stations by requiring they identify and report every political topic included in a commercial, not just the main issues. They say that approach would be a “recipe for disaster” for local stations that would be at risk of being fined for not listing an issue, as well as making it hard for third parties to sift through the information to find what they want or need. Broadcasters told the Media Bureau that it should instead require stations to make “reasonable, good faith efforts to disclose the topics that are the focus of the political ads.”
The updated political file obligations came tucked inside an order dealing with several TV stations that weren’t meeting disclosure requirements. In a filing with the agency, broadcasters complained there wasn’t an opportunity for anyone beyond the dozen TV stations under review to comment. “Narrowly-focused complaint proceedings with limited parties and no call for public input are not the proper or lawful vehicles for promulgating industry-wide rules,” the group said. In addition to the NAB, the petitioners also include Hearst Television, Graham Media Group, Nexstar Broadcasting, Fox, Tegna, and the E.W. Scripps Company.
During a webinar held for state broadcast associations last month, attorney David Oxenford provided some insight into the FCC’s thinking. In a blog post he said that some FCC staffers suggested the new rules only reference issue ads, not candidate commercials. The agency’s public notice seemingly backs that up, explicitly saying the requirements are targeted to issue ads.
Due dates in the proceeding for the initial round of comment filings and the subsequent reply comment period will be set once the public notice is published in the Federal Register.