2019 - 2020 Political Issue Advertising - The Blessing And The Curse!

By Gregg P. Skall
Womble Bond Dickinson (US) LLP

With 2020 election less than a year away and the fourth quarter of 2019 already a hot issue advertising season, the FCC rules on issue ads are more important than ever. Not only are candidates beginning to advertise heavily, but political PAC's are already collecting huge sums of money destined for advertising. With all political matter, it is critically important for broadcasters to understand their disclosure and online public file responsibilities. Further, just as we experience an enormous increase in PAC money this 2019-2020 political season, the disclosures required for issue advertising got much more complicated.

Last month, the FCC finally resolved eleven issue ad complaints that had been filed jointly by the Campaign Legal Center and Sunlight Foundation against television stations back in 2014. The new FCC order provides detailed new guidelines that clarify the Commission's expectations regarding information required to be placed in the station's political online public file. To the chagrin of many broadcasters, the clarification specifies a substantial amount of information that many diligent broadcasters had not previously collected. In particular, the clarification specifies that any request to purchase advertising time that communicates a message relating to any "Political Matter of National Importance" as defined by § 315e(1)(B) must provide the following information.

For each request to purchase time that relates to the Political Matter of National Importance, licensees must disclose in their political file all political matters of national importance mentioned in the ad. The disclosure must include any mentions of any or all of the following: the names of all legally qualified candidates and the offices to which they are seeking election, all elections for federal office (with or without a candidate name), and all "national legislative issues of public importance" referred to in the communication.

It will consider context in determining whether an advertisement communicates a message relating to a "Political Matter of National Importance", but at a minimum, it includes:

1. References to legally qualified candidates for Federal office (the commission noted that this refers only to federal candidates, although some ads concerning state and local candidates may qualify as raising "political matters of national importance"); and
2. Any reference to a federal office (for example "our next Senator" or "our person in Washington").

The Commission defined a "national legislative issue of public importance" as any matter that is the subject of controversy or discussion at the national level. A "national legislative issue of pubic importance" is narrower than a Political Matter of National Importance. It includes issues that are the subject of federal legislation that have been introduced and are pending in Congress at the time the request for airtime is made.

In considering context as to whether an advertisement constitutes a "Political Matter of National Importance" to trigger the recordkeeping obligations, the Commission will analyze whether the message is political in nature and of national importance, i.e. the broadcast message must satisfy two requirements in order to trigger a licensee's disclosure obligations. First, the message must be "political" in nature. Second, it must be of "national importance," i.e., it must have significance on a national level.

The recordkeeping obligations for such ads requires the station to place in its political online public file the following information:

1. Whether the request to purchase broadcast time is accepted or rejected by the licensee;
2. The rate charge for the broadcast time;
3. The date and time in which the communication is aired;
4. The class of time purchased;
5. The name of the candidate to which the communication refers, the office to which the candidate is seeking election and the election to which the communication refers;
6. The issue or issues to which the communication refers (all issues discussed must be listed);
7. For a request made by, or on behalf of candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and
8. In the case of any other request, the name of the person purchasing the time, the name, address and phone number of a contact person for such person, and a list of the Chief Executive Officers or members of the Executive Committee or of the Board of Directors for such person.

And importantly, for each ad that references a Political Matter of National Importance, whether or not it is designed or placed for a candidate PAC, you must also include:

1. the names of ALL candidates for federal office referenced in the broadcast message;
2. the respective offices to which all such candidates are seeking election;
3. All elections referenced in the broadcast message; and
4. All National Legislative Issues of Public Importance.

Finally, remember that the Communications Act and FCC rules require that, whenever a station broadcasts any political matter or a matter involving a controversial issue of public importance that is paid for or furnished by any form of an entity, the station must obtain for its public file a list of the Chief Executive Officers or members of the Executive Committee or of the Board of Directors and make it available in its online public inspection file.

A problem that frequently occurs in the political online public file materials is when the political ad buyer provides only one name or a short list of names. The FCC's recent clarification states that, where the station has a reasonable basis for believing that this sponsor information appears to be incomplete, it has an affirmative obligation to inquire further. Specifically, the FCC stated that whenever the name of only one official has been supplied, the station must make further inquiry with that obligation being satisfied by making a single further inquiry to either the organization sponsoring the ad or the third party buyer of advertising time acting on the organization's behalf. BUT IT MUST MAKE THE INQUIRY. While the response is not required to be placed in the public file, broadcasters should obtain the response in writing and maintain it as evidence of its effort should a later inquiry be made.

Revised forms for political issue advertising are in the works and will be available e soon. Make certain that anyone wishing to place such advertising with you completes the form in its entirety. Following the broadcast, complete the rest of the form including the actual broadcast schedule and pricing information.

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.