By: David Oxenford, Wilkinson Barker Knauer LLP
In October, the FCC issued what it termed a “clarification” of the obligations of broadcasters to disclose in their public inspection files each and every candidate and issue discussed in any Federal issue ad. We wrote about the Clarification here. That decision prompted many questions among broadcasters as to how they would comply with the requirement to uniformly identify every issue in political ads, when that judgement might well be quite subjective. The National Association of Broadcasters apparently agreed, and filed a Petition for Reconsideration of the Clarification, available here. Hearst Television, Graham Media, Nexstar, Fox, Tegna, and Scripps joined the NAB in filing the Petition.
The NAB’s Petition raises numerous issues about the FCC decision. It suggests that the Commission did not have the power to make what most in broadcasting thought was a change in the rules without first soliciting public comment on the proposed changes. The Petition also argues that the Clarification sets up requirements that will be almost impossible to meet. The FCC stated that “a political issue of national importance” (which is what an issue ad must discuss in order to trigger the disclosure obligations) includes anything pending before Congress. The NAB asks how a broadcaster is supposed to know about every issue that may be pending before Congress? The NAB also expresses concern about the catch-all determination in the Clarification stating that political issues of national importance can go beyond just pending legislation or federal political candidates to include any political issue that is subject to discussion and debate at a national level. The NAB argues that this could encompass almost anything except the most hyperlocal issue (e.g., a school bond issue). All sorts of advertising could end up being swept up into this definition.
The NAB suggests that the definition be significantly narrowed and focus only on ads addressing national political actors in a position to take actions on a national stage. That would also avoid the obligation imposed by the Clarification to treat state issue ads as Federal issue ads if they mention federal issues (e.g., a PAC ad attacking a candidate for governor based on his or her past record in Congress, or his or her lack of support for the President).
The NAB’s Petition also asks for a clarification as to whether the decision applies to candidate ads, as well as those from third-party buyers (e.g., PACs, unions, political parties, corporations, and other advocacy groups). To some extent, this issue was clarified in a webinar on political broadcasting that I conducted for 16 state broadcast associations on November 21. There, two representatives of the FCC’s Media Bureau Political Programming Staff, when asked if the Clarification applied to candidate as well as issue ads, pointed to footnote 24 in the Clarification which states,
[s]ection 315(e)(1) of the Act requires licensees to maintain records for two types of requests for the purchase of political advertising time. The first type concerns requests for advertising time that are “made by or on behalf of a legally qualified candidate for public office.” 47 U.S.C. § 315(e)(1)(A). The second type concerns requests for advertising time by all other persons and which communicate a message relating to “any political matter of national importance.” 47 U.S.C. § 315(e)(1)(B). The complaints that are the subject of this Order relate to the second type of request.
To me, that reference to footnote 24, which states that the Order refers to “the second type of request” (a request that is not made by a political candidate) shows that the decision was intended only to address issue ads, not those bought by candidates or their authorized campaign committees. Obviously, ask your own counsel for guidance on this and other issues about the FCC’s Clarification.
While the NAB’s Petition raises many important issues, the Clarification remains in effect. The Commission took over two years to issue the Clarification, after rescinding previous advice given on these issues by the FCC’s Media Bureau (see our article here). While we would hope that consideration of the NAB’s Petition will not take that long, these are complicated issues that may well take time to review. In the interim, stations must do their best to understand the requirements of the Clarification and implement those requirements now in their day-to-day operations.
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).
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