Keep Your Files in Order

Contributors: Brad C. Deutsch, Principal, Foster Garvey, P.C. and Benjamin J. Lambiotte, Principal, Foster Garvey, P.C

Just as the 2020 federal election campaign shifts into high gear, on October 16, 2019, the Federal Communications Commission issued two significant orders “clarifying” broadcasters’ political public file obligations in response to complaints filed against several stations.  In both orders, the Commission made it very clear that it is station licensees – and not political ad sponsors or their ad buyers – who are responsible for ascertaining, collecting, and uploading in a timely manner to the FCC online political public file, all the information required by Section 315(e) of the Communications Act and the FCC’s political broadcasting rules.

Specifically, for all political ad requests (regardless of whether characterized as an candidate ad or as an issue ad), the Commission clarified that stations must disclose information in their online political files about all political matters of national importance, including 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 ad refers.

The Commission recognized that a single ad may implicate all three disclosure “triggers”: (1) a legally qualified candidate; (2) any election to federal office; and (3) a legislative issue of national importance.  The FCC said that each station’s online political file must include all disclosures applicable to the content of the proposed ad.  Thus, if a proposed candidate ad discusses issues of national importance, then the broadcaster must – in addition to disclosing in its political file the candidate, the federal election, and the office – also disclose all legislative issues of national importance referenced in the spot.  Likewise, if an ad request references one or more legislative issue of national importance, and also mentions a candidate, or an election, the political file must also disclose the candidate, the office he or she is seeking, and the election in which he or she is running, in addition to identifying all nationally important legislative issues referenced in the spot.  The Commission specifically rejected arguments that it is too burdensome for broadcasters to determine what issues are the subject of pending federal legislation.  Therefore, it might be best for licensees to simply err on the side of disclosure if in doubt about whether an issue of national importance mentioned in a proposed spot is a “legislative” issue.

In addition, the Commission clarified that broadcast licensees must maintain a record that identifies the full legal name of any person or entity seeking to purchase political advertising time on any political matter of national importance (including candidate and issue ads), and all of the chief executive officers or members of the executive committee or board of directors of such entities.  The Commission concluded that broadcasters are not entitled to rely entirely on the information reported by the spot’s sponsor or its ad buyer.  Specifically, for any sponsor reporting only a single officer or Board member, the Commission made it clear that it is the broadcaster’s responsibility to inquire further of the sponsor or its third-party ad buyer as to whether there are any additional officers or board members.

The Commission did not take any enforcement actions the stations named in the complaints because it recognized that there had been varying interpretations of the requirements prior to these orders.  The Commission used these orders, however, to issue a clear warning to broadcasters that enforcement action could be taken in the future if licensees fail to heed these interpretations and clarifications going forward.

Copies of the orders are here and here.

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