Understanding The Issues Of Issue Advertising…Yes, This Is Important!

Earlier this year, the FCC released a Report and Order updating the political file rules to make them consistent with the Bipartisan Campaign Reform Act of 2002. The political file rules now codify the extension of the requirement that any request for the purchase of advertising time that communicates a message relating to any political matter of national importance (i.e. issue ads) requires that specific information be placed in the station’s online public file.

Upon receiving such a request, the broadcast licensee must place and maintain in their online political file, a record of the request together with all the records identified in Section 315(e)(2)¹ for issue ads, including whether the request was accepted or rejected, the rate charged, the date and time the ad was aired, the class of time purchased, the issue to which the communication refers, and the name and contact of the individual or organization purchasing the ad. However, that material is not required for ads that pertain to state or local issues of public importance.

Propositions, Referendums and the Political File

During the political season, many issue ads deal with how states or local governments should address matters that may also be the subject of national political debate. While the issues might appear to deal with matters of national political importance, and may even be the subject of national legislation, advertising for or against the proposition is focused on persuading registered state or local voters to cast a vote for or against the proposition. In that way, the proposition is uniquely designed and limited to address a local issue, and issue ads of state or local importance are not subject to the BCRA political file rule.

Consider for example a ballot proposition advocating that all school teachers must be vaccinated against Covid-19. Vaccination as a qualification for employment has risen to be a national issue since some states allow it while others ban the practice. But because it would be a proposition on the state or local ballot, the actual issue addressed by the paid advertising would be whether local voters should vote for or against the proposition. As such, it would be reasonable to consider it a uniquely state or local issue.

FCC staff has indicated in similar situations that a matter involving a state or local election is by its nature a local matter, and that it will defer to a licensee’s good-faith judgement should it treat it as such. Last year, the FCC released an order that addressed this issue,² stating it will apply a standard of reasonableness and good faith decision-making to the efforts of broadcasters to comply with the Political File Order. The FCC concluded that applying a reasonable, good faith standard strikes an appropriate balance between the burdens that broadcasters bear in maintaining full and complete political files and the public’s right of access to critical information about issue advertisers.

State and Local vs Federal Issue Ads

For state and local issue ads, the only public file requirement is compliance with the FCC Sponsorship Identification Rule at § 73.1212(e).³ The rule requires that where a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the broadcast matter, in addition to making the normal sponsorship “paid for” announcement, the station must also place a list of:

• the chief executive officers OR
• members of the executive committee OR
• the board of directors

in the Online Public File and maintain it there for two years. The sole exception is where the broadcast is originated by a network. The list may then be retained at the headquarters office of the network or in the public file of the originating station.

Online Public File Sponsorship ID : Where does it go?

The rule only requires that the sponsorship information be placed in the station public file. As a holdover from the days of the paper public files, it does not specify a particular location in the station public file. Based on discussions with the FCC staff responsible for political file enforcement, it was determined that the station would be in compliance with the rules if it is placed anywhere in the public file, but the logical place for it would be in a station created sub-folder linked to the Non-Candidate Issues Folder in the political file. For ease of reference, a suggestion might be to name the folder, “State – Local Non-Candidate Issues Ads”

The FCC has created a folder Non-Candidate Issue Ads in all station political file folders. Here is an example from the Online Public File of WRC-TV, Washington, DC.

That folder is intended and created for National Political Issues of Public Importance. Within that folder, however, a station can create its own sub-folders. The FCC staff thinks this is the natural place for State and Local Issue Ads sponsorship information.

So the station can create a folder titled STATE/LOCAL Issue Ads for placement of the sponsorship information required by section 73.1212.

Conclusion: Create a State/Local Issue Ad folder now so you’ll be ready for the coming onslaught of proposition issue ads. To assist with this process and to assure compliance, a form for your use in fulfilling this requirement is attached.

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.