Editor’s note: On Thursday, November 21, 2019 from 3 – 5 p.m., the MAB will present a live webinar “Preparing for the 2020 Elections” with David Oxenford, Wilkinson Barker Knauer LLP and Bobby Baker, FCC. 2020 is bound to be a very active year for political broadcasting. Who do you have to sell advertising time to? How much can you charge? What paperwork do you need to retain? Who is watching what you do, and what issues are likely to arise in the coming election? These issues and more will be addressed in the webinar. The webinar is free to MAB members. Sign up here.
By: David Oxenford, Wilkinson Barker Knauer LLP
It seems like every other week, there is a story about an online media giant making changes in their rules that govern political advertising on their platform – and being either praised or condemned for doing so. We recently wrote about the controversy over Facebook deciding to not fact-check candidate ads, and how Congress itself requires by statute that broadcast stations take that same position. Broadcast stations are not allowed to censor ads from legally qualified candidates so, except in very limited circumstances where the ads may be criminal in nature (and not where they might just give rise to civil claims, like in the case of defamation or copyright infringement), broadcasters cannot reject ads based on their content. The right of a person being defamed in an ad for redress of any civil claim they may have is against the candidate who sponsored the ad, not against the broadcaster. Last week brought the news that Twitter has decided to ban political ads from its platform. Broadcasters, on the other hand, have no ability to ban ads for Federal candidates, as Congress has legislated a right of access to the airwaves where broadcasters cannot refuse to run political advertising from any Federal candidate.
That right of reasonable access, written into Section 312 of the Communications Act, requires that broadcasters give Federal candidates access to all classes of advertising time sold on a broadcast station, and that access be provided in all parts of the broadcast day. See our post here for more information about that reasonable access requirement, and our post here on the limited exception accorded for special events with limited advertising inventory (like the Super Bowl), where the provision of ads to one side might be problematic as there would be no opportunity for an opposing candidate to find an equivalent opportunity to advertise, and because of the potential disruption to commercial advertising on these stations given the limited availability of advertising breaks in such programs.
The reasonable access requirement is imposed on all commercial broadcast stations. Its applicability to noncommercial stations was repealed when candidates started to demand free time on NPR affiliates (including one here in the DC region). It has never applied to cable systems – and certainly does not apply to online media platforms. It has also raised interesting issues about requiring access for some Federal candidates who, because of the no censorship provision of the rules that we wrote about in connection with the Facebook ads, decide to demand time to air ads containing content that reasonable broadcasters would prefer to reject, but have to run because of the interplay of these two rules imposed on broadcasters (see, for instance, our articles here, here and here).
The mandated access to broadcast stations is one more way in which broadcasters, in dealing with political advertising, are treated differently than are their online competitors. While there have been many calls to regulate the political communications obligations of online platforms in the same way as broadcasters are regulated, those making these calls need to be aware of just how broadcasters are regulated as many of those regulations would likely never be tolerated in an online world.
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.