FCC 375

Billions of dollars are up for grabs in the coming political season and it’s not just broadcast sales teams gearing up. Ahead of the onslaught of political ads, the Federal Communications Commission has issued a lengthy revision and clarification of several of the disclosure obligations that it imposes on radio and television stations relating to how they handle the sale of political ad time.

It came this month in an order approved by the Commission that slapped the wrist of several television operators for how they handled the disclosure requirements dictating what information was place in station political files. In each case the FCC received complaints alleging the stations weren’t meeting their obligations. The Commission concluded that there have been “varying interpretations” about the nature and extent of its rules and rather than slapping the television broadcasters with fines, it instead opted to clarify the obligations faced by both TV and radio stations. “In so doing, we place licensees on notice that, going forward, they will be subject to enforcement action for willful and/or repeated failure to comply with their political file disclosure obligations,” the order warned.

Contents of Political Records

The revisions and clarifications 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. That includes the names of all legally qualified federal candidates and the offices to which they are seeking election, all elections to federal office, and all national legislative issues of public importance, to which the advertisement refers.

Stations are also 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 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. “We find that requiring stations to make all such information, as applicable, available to the public is reasonable and not unduly burdensome for licensees,” the order concludes.

Asking Once Is Enough

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. If a station thinks the information provided to it isn’t complete, such as where 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. “We reject the suggestion that this approach will improperly place stations in the role of ‘private investigators’ contrary to Commission precedent,” the order said.

But broadcast attorney David Oxenford thinks that revision will end up making life significantly more difficult for broadcasters running ads from non-candidate groups. “They will need to review each issue ad to come up with a list all of the issues of public importance discussed in the ad,” he noted in a blog post.

Candidate ads are more cut and dry than how stations should deal with ad buys that fall under the guise of a political matter of national importance. The FCC says such ads are weighed on a case-by-case basis but notes they typically must be issues that are national in scope.

For example, it says an advertisement that promotes the virtues of an individual running for governor and references the candidate’s stance on immigration reform would have to be disclosed because immigration reform is an issue that is a political matter of national importance. By contrast, an ad promoting a gubernatorial candidate that does not reference issues considered or debated at the national level would not reasonably constitute a message having national importance and need not be disclosed.

The Unsortable Stack

Commissioner Michael O’Rielly said he still has doubts about the constitutional basis on which the FCC’s political file requirements are based but federal law prevents them from abolishing them. He believes the clarifications will at least make things more certain for broadcasters. “At a minimum, our action today creates a clearer structure that hopefully opens the door to consistent enforcement across future Commissions,” O’Rielly said.

Commissioner Jessica Rosenworcel supports broader disclosures and called the FCC revisions a “reasonable attempt” to modernize its policies. But she believes the Commission has come up short by not making the online political files machine-readable. That means they can’t be processed, searched or sorted by a computer and so anyone looking for information must open each station’s political file one-by-one. “For an agency charged with developing the digital future, this is an embarrassment. It’s one we can fix,” said Rosenworcel.

Read the full update HERE.