Unwired Networks and Political Broadcasting

Question 1: Do you run programming from any national or statewide unwired network?

If you answered YES, you have work to do!

Did you know that your station is subject to the very same FCC political rules that would apply as if you sold the advertising yourself. Special issues arise when a station runs network fed political advertising from legally qualified candidates or third party political advertisers and push the ads to local affiliates.

That means that:

• You must have the same documentation for your online public file; it must be provided by the network.
• That documentation must be posted in your political file immediately.
• You must be able to review issue/PAC advertising messaging in advance of airing,
• You have the right to refuse to air issue/PAC advertising,
• If you are unable to receive the appropriate information from the network in a timely fashion and you air the messages you could be subject to fines and other penalties.

Here are the specific details:

The 2020 election year is shaping up like no other any person alive can remember. SmithGeiger recently reported that, since the start of the COVID-19 pandemic, live TV, local and national news is up around 40 percent and some state broadcaster associations confirm that increased political advertising is coming through regional unwired networks to local stations.

Importance of Licensee Prior Approval

A network supplying political advertising messages without prior approval impinges on a licensee’s ability to maintain control over its station. FCC rules require that the licensee maintain full authority over station policies, programming and operation of the station. This includes, without limitation, the right to decide whether to accept or reject any programming or advertisements and to preempt any program. Therefore, except for candidate ads, the licensee must have the opportunity to make decisions that have the potential for controversy, including political issue advertisements.

Also, the licensee must have the information required to be placed in its online public file. There is no exception for network placed ads. Therefore, it is critical that each affiliate be provided the necessary public file information prior to allowing it to be aired.

Network placements may contain a positive “use” by a legally qualified candidate. When this happens, the affiliate may not edit or censor the ad and must accept demands for equal opportunities from opposing candidates. Stations need to know in advance whether running the network feed will result in demands for equal opportunities to opposing candidates. Business and regulatory consequences must be planned for.

Equal Opportunities and Lowest Unit Charge:

The network and the station should have an agreement between them as to who has the responsibility to honor equal opportunities obligations. Now is the time for affiliates to review network affiliation agreements to determine what rights an affiliate has to require the network to accept that responsibility and to bargain for any desired changes. If it falls on the affiliate, note that the FCC’s “network exception” policy relieves the affiliate of the requirement to offer its own lowest unit rate to an opposing candidate. Rather, the network has the obligation to offer its lowest unit rate, and to the opposing candidate as well.

Under the FCC regulatory scheme, when a network sells time to a legally qualified candidate, it is acting as the affiliate’s surrogate, so while the network may arrange for this, and its time is sold at the “network rate,” it remains the obligation of each individual station licensee to assure that timely requests for equal opportunities by an opposing candidate are honored.

The Public File

When a network sells political time it is also the station’s responsibility to assure that it places in its online public file all the information required of it by the FCC rules.

Issue Advertising

Possibly the hottest area for political advertising over the next six months will be political issue advertising. The most active area is likely to be funding for political action committees (PACs) which are not subject to most of the FEC restrictions imposed on federal candidates and their authorized committees.

The FCC requires that detailed information on issue-oriented advertising be placed in the station’s political online public file. This election may be the first time many broadcasters will be dealing with some new requirements. Because each broadcast licensee must remain in compliance with FCC rules, it is critical to obtain information on issue-oriented advertising from a network that places political advertising on its station. The NAB has revised its forms to cover this requirement in its new PB-19 form package. NAB members should require its use and ensure that networks supply the information prior to sending any candidate or other message containing political matter to the station, enabling the station to comply with its FCC political file obligations.

For any message that communicates “Political Matter of National Importance” the station must provide the following information in its political file.

For each request, all political matters of national importance mentioned in the ad, including 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.

The FCC will defer to the licensee good faith efforts to identify and include all political matters in its file. It will consider context in deciding what constitutes “Political Matter of National Importance,” but at a minimum, a message that includes (a) any references to legally qualified candidates for Federal office (this refers only to federal candidates, although some ads concerning state and local candidates may qualify as raising “political matters of national importance”); (b) any reference to a federal office (for example “our next Senator” or “our person in Washington”) or (c) discussion of a “national legislative issue of public importance” would be included.

While a “Political Matter of National Importance” includes any matter that is the subject of controversy or discussion at the national level, a “national legislative issue of public importance” is narrower and 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.

Regarding a National Issue of Legislative Importance, the station must place in its public file:

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 aired;
4. The class of time purchased;
5. The name of the candidate to which the communication refers, the office the candidate is seeking and the election to which the communication refers (if relevant);
6. The issue or issues to which the communication refers (NOTE: 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.

Importantly, for each ad that references a Political Matter of National Importance, whether or not it is designed or placed for a candidate PAC:

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, whenever a station broadcasts any political matter or a matter involving a controversial issue of public importance paid or furnished by an entity, the station must obtain a list of the Chief Executive Officers or members of the Executive Committee or the Board of Directors and make it available in its online public inspection file.

Whenever the station has a reasonable basis for believing that sponsor information appears to be incomplete, it must inquire further. That obligation can be satisfied by a single further inquiry to either the sponsoring organization or the third party time buyer. BUT IT MUST MAKE THE INQUIRY. The response should be obtained in writing and maintained as evidence of its effort should a later inquiry be made.

Conclusion

There are reports that some unwired networks are including political advertising subject to FCC rules in their network feeds to affiliates but have refused to allow pre-clearance rights to stations or to provide the information required for their online public files. Acceding to this arrangement should be rejected by affiliates of that network as it could result in a serious violation of the FCC’s rules subjecting the affiliate to a severe FCC sanction.

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.

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.