Election Weekend Sales ... Get Ready!

Election day, November 4, 2008, is only five weeks away. If the past is any teacher, as we drill down to E-Day, the fury of last minute attack and response political advertising will increase at a frenzied pace. The weekend of November 1-2 will be particularly important to the candidates. Typically, they will be cutting new spots daily. They will want access to stations to place them. The question arises, must a station provide access to political time buyers in the weekend before the election?

If that's a frantic time, then what about election day itself? Does the station have to accept new orders for candidate advertising on election day?

Like most other political time-buying scenarios, these situations have also arisen, been argued and settled by the FCC staff. During the 1990 election there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. Clarifying this requirement, the Commission stated that if a station had taken an order from any commercial advertiser on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election.

However, the broadcaster is not required to provide any services to the political advertiser/time-buyer that are more extensive than the range of services previously provided to any commercial advertiser. For example, if access had been given to the commercial advertiser only to deliver or change copy, then those are the only services that need be afforded to candidates. If a station can prove that it has not sold time on weekends during the past year, it can justify a refusal to sell time to political candidates on the weekend before the election. However, a station that has done this just once for a favored advertiser (such as for a store running a holiday promotion or a movie premiere), must be prepared to process political advertising requests on the weekend before the election.

Note: The equal opportunities doctrine does not apply to this type of station service. That doctrine applies only to a candidate's actual response to a prior "use" (or appearance) on the station by an opposing candidate for the same office -- not to the sale or use of facilities of the licensee. Remember, however, that a station cannot discriminate between candidates. Thus, even if it has not taken an order from any commercial advertiser on a weekend during the previous year, if the station offers weekend sales opportunities to one candidate, the station must also accept weekend sales from all opposing candidates for the same office.

What About Election Day Itself?

Election day, however, is treated differently. The Commission allows each station to adopt its own policy regarding whether it will not accept new candidate advertisements on election day, even from those seeking federal elective office who are otherwise entitled to reasonable access under section 312(a)(7) of the Communications Act. Here too, however, the station cannot discriminate, and if it decides to take a new election day order from one candidate, it must also take new orders from all opposing candidates for the same office. For federal office candidates, the station's policy must apply to all federal candidates equally -- that is, once any federal candidate is allowed to purchase advertising on election day, then all federal candidates must be afforded such access as well.

This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.