The flood of 2020 political ad dollars is, for now, just a trickle. But in the year to come a lengthy revision and clarification of several of the disclosure obligations on stations issued by the Federal Communications Commission last month could play a complicating factor for some broadcasters. How those changes came about, and some of what the FCC is requiring, are now coming under fire from a half dozen companies and the National Association of Broadcasters. The group claims some of the new industry-wide obligations are “overbroad and difficult if not impossible to apply” and in all cases are “counter-productive” to the FCC’s goal to make station political files more useful to the public. Broadcasters also say the Commission erred when it created new disclosure and recordkeeping requirements as part of a long-simmering response to complaints that several TV stations weren’t meeting disclosure requirements.
“The FCC should not have altered its political broadcasting rules without the benefit of public comment,” the NAB-led group says. In a filing with the agency, they say there wasn’t an opportunity for anyone beyond the dozen TV stations under review to comment. And they think at the very least the FCC should have created a docket to allow other broadcasters to review and file comments concerning the issues under review. “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 says, adding, “The Commission should reconsider its orders with the benefit of input from the broader industry directly affected by the FCC’s new rules.”
What The New Rules Say
The revisions and clarifications that were part of the FCC order largely focused on the content of station political files. It said each request to purchase political ad time still triggers disclosure obligations, and stations are still required to disclose in their political file all political matters of national importance. But stations are also 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. That’s a broader requirement than some broadcasters had sought, but the FCC said its interpretation of federal law is “more likely to ensure meaningful disclosure” and help anyone trying to track and analyze political advertising in a particular market.
The Commission also clarified its rules that require stations to keep a record that identifies, among other things, a list of the leaders of any organization seeking to purchase political advertising time. And if a station thinks the information provided to it isn’t complete, such as when the organization only supplies the name of one official, the FCC says as long as the station asks whether there are any other officers it will rule a station has satisfied recordkeeping obligations.
Creating A ‘Minefield’
Beyond the process of how those rules were drafted, the broadcasters say in terms of substance the clarifications also miss the mark. That includes the order’s use of the phrase “political matter of national importance” to describe an ad’s content. Broadcasters say that’s too general and would sweep in spots that touch on water cooler issues and aren’t subject to any federal action, as well as issues raised in local and state races where the eventual officeholders wouldn’t have any input in resolving those issues. It says the FCC should update the revision to make it clear that political ads would have to be tied to a national political figure and that person would be in a position to take action on the matter.
The NAB also thinks the Commission “created a minefield” for local stations by requiring they identify and report every political topic included in a commercial, not just the main issues. “This places local radio and TV station personnel across the country in the position of picking out each and every arguably national issue in a political advertisement, with the threat of penalties for noncompliance hovering over them for even good faith mistakes,” argue broadcasters. They say that approach would be a “recipe for disaster” for local stations that would be at risk 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. And they say the Commission would suffer since it would need to call balls and strikes on whether each and every issue referenced in the tens of thousands of advertisements aired during election cycles were appropriately captured.
Broadcasters are instead proposing the FCC adopt a more “rational, administrable and effective approach” that requires stations to make “reasonable, good faith efforts” to disclose any topics as the main focus of a political ad and not be required to compile a laundry list of issues that may be the main points of the ads.
The industry is also calling on the FCC to reconsider what it calls a “somewhat stilted policy” that takes a hard line against stations using acronyms to identify the sponsoring entities of political ads. “The new standard is unnecessarily unforgiving, impractical and even fails to account for entities whose legal names are acronyms,” the group writes in its petition.
Only Issue Ads?
The seemingly out-of-nowhere political ad revisions left some broadcasters scratching their heads. During a webinar held for state broadcast associations last week, attorney David Oxenford provided some insight into the FCC’s thinking. When asked if the new rules applied to candidates as well as issue ads, Oxenford said FCC staffers pointed to a footnote that referenced issue ads. In a blog post, he said his conclusion was the message they were sending was that the new rules seem to impact only issue ads and not those bought by candidates or their campaign committees.
The Commission itself hasn’t said that explicitly. And even as broadcasters ask for a second look and more clarification, the political ad buys begin. While the industry waits, Oxenford advises stations that the revisions announced last month remain in effect in the meantime.