Broadcasters: The 2024 Election Is Six Months Away. Are You Prepared for Your Political Programming Obligations?

As you are aware, the general election date is Tuesday, November 5, 2024. This means that the FCC's lowest unit charge ("LUC") obligations for the general election begin Friday, September 6, 2024 (or earlier, if there are primaries—see below). Accordingly, broadcasters should review all of the FCC's political programming and LUC requirements, as amended by the Bipartisan Campaign Reform Act of 2002 ("BCRA").

Summary

The Communications Act and FCC rules contain detailed provisions governing requests by political candidates for time on broadcast television and radio stations. The FCC's political programming obligations fall within four basic categories:

(1) providing equal opportunities to opposing candidates;

(2) charging candidates no more than the LUC for political advertising;

(3) requiring sponsorship identification; and

(4) maintaining a political programming file.

Broadcasters should also be aware of the "reasonable access" provisions of Section 312(a)(7) of the Communications Act, which requires stations to afford "reasonable access" to their facilities to candidates for federal office. However, "reasonable access" does not require a broadcaster to sell spots to a candidate during a particular program (e.g., the Super Bowl).

Ensuring compliance with these obligations ultimately is the responsibility of the broadcast licensee. Therefore, the activities of a station's representatives, including ad agencies and sales representatives, should be carefully monitored by the licensee.

Specific Requirements

Equal Opportunities

Under federal law, broadcasters are not required to sell time to political candidates running for state or local office. The reasonable access requirement applies only to candidates for federal office. However, once a station allows any candidate to "use" its facilities, which includes a candidate's appearance by voice or picture, the Communications Act provides that all other legally qualified candidates for the same office may request an equal opportunity to use such facilities, unless the use occurred during certain types of exempt news programming. Stations have no power of censorship over the material broadcast by any such candidate.

         To be a "legally qualified" candidate, the candidate must:

(1) have publicly declared his or her candidacy;

(2) be legally qualified to hold office under applicable state or federal regulations; and

(3) have qualified for a place on the ballot, or have publicly committed to seek election by the write-in method.

The "equal opportunities" request by the opposing candidate must be submitted to the station within one week of when the first candidate's use occurred. The term "equal opportunities" does not necessarily mean equal time, but rather comparable time. The rule requires that opposing candidates be afforded an opportunity to buy the same amount of time at the same rate (or be given free time, if the first candidate's use was free), at similar times of the day. Essentially, the opposing candidate must be given the opportunity to reach a comparable audience. However, the equal opportunity rule generally does not guarantee candidates the right to purchase time during specific programs, unless the first candidate is allowed to buy spots to be aired during a specific program for which there is no comparable alternative, e.g., Sunday Night Football.

The Commission's definition of a "use" does not require that a political advertisement be controlled, approved, or sponsored by a candidate. A "use" is any "positive" broadcast of a candidate's voice or picture that is not "fleeting," even if the use is paid for by an unaffiliated person or citizens group, or occurs in a film or TV appearance unrelated to the election. Any such "positive" political advertisement in which a candidate's voice or picture is present will entitle that candidate's opponents to equal opportunities, even if the first candidate personally considers the spot or appearance objectionable. However, candidate appearances on bona fide news programs (such as on-the-spot news coverage, newscasts, documentaries, news interviews and debates) are excluded from the definition of "use," and therefore, candidate appearances during such exempt programming do not trigger equal opportunities obligations. If the candidate is the newscaster, however, the candidate's opponents are entitled to equal time because that is considered a "positive" appearance, and the candidate is not the subject of the news story.

Lowest Unit Charge (LUC)

Section 315(b) of the Communications Act provides that broadcasters shall not discriminate in the rates charged to candidates seeking to purchase advertising time. In addition, the Communications Act and FCC rules provide that broadcast stations may only charge candidates LUC rates for political advertising as primaries and elections approach. As explained below, candidate entitlement to LUC rates is also subject to the "stand by your ad" requirements established by BCRA.

During the 45 days preceding a primary election and the 60-day period preceding a general or special election (the "LUC periods"), stations must comply with the LUC requirements of the Act. During the LUC periods, a candidate may not be charged more than the lowest unit charge paid by any commercial advertiser that cleared a spot for the same class of time, amount of time and in the same time period. "Class of time" generally means the degree of preemptibility assigned to the spot. For example, stations may have "fixed" time, meaning the spot will definitely be aired; alternatively, the spot may be "immediately preemptible," meaning it could be pulled at the last minute in favor of a higher priority (and presumably, more expensive) spot. Additionally, a spot may be classified as "preemptible with notice," meaning that while it may not have the same priority as a fixed spot, it may not be preempted without appropriate notice. If a station offers various classes of preemptible time, there must be meaningful distinctions between the preemption classes, and those distinctions must be uniformly and consistently disclosed and applied to all advertisers. While it is in the broadcaster's discretion to decide how many classes of spots it wants to offer and what quantity in each class, it must always offer lowest cost (i.e., preemptible) spots. Obviously, a broadcaster should not mislead a candidate about the lack of availability of preemptible time in order to force the candidate to purchase higher priced, non-preemptible spots.

"Amount of time" refers to the duration of the spot (30 seconds, 60 seconds, etc.). "Period of time" refers to the time of day during which the spot is designated to run (e.g., only during a specific program, from 7 to 9 am weekdays, run-of-schedule, etc.). It is in the broadcaster's discretion to decide how to carve up the day into various periods of time.

The test most frequently used to determine compliance with the LUC requirements is whether the political candidate was given the same price and treatment during an LUC period as the station's most-favored commercial advertiser. For example, a candidate running a single spot would be entitled to the same rate (for the same class, amount of time, and time period) as a major advertiser that purchased hundreds of commercial spots at a bulk discount; i.e., bulk rate discounts have to be offered to the candidate even if the candidate is only buying one spot. Non-cash promotional incentives generally need not be included in LUC calculations. However, bonus spots (e.g., buy five spots, get one free) are factored into LUC calculations since their value is readily ascertainable (i.e., determine an average cost per spot by dividing the total number of spots by the total cost). "Make-goods" are also required to be figured into LUC calculations. On the other hand, agency commissions should not be included in the LUC calculation.

Broadcast stations are required to disclose to candidates all rates and discount privileges that are available to commercial advertisers. The LUC for every class of time should be reviewed on a weekly basis. Rebate checks or make-good offers should be provided as soon as possible and even more expeditiously as Election Day approaches.

Stations should prepare a written Disclosure Statement for candidates, which describes the station's political time sales policies and rates. The following practices must be clearly explained:

(1) Each class of time sold must be described and defined, and all differences in classes must be identifiable and understandable;

(2) A lowest unit charge estimate should be prepared for each class of time;

(3) The method of time sales should be described (i.e., whether time is sold by a grid, demand-driven, fluctuating levels, etc.);

(4) For preemptible classes of time, percentage chance of preemption should be estimated;

(5) The station's make-good policy should be stated;

(6) Any and all discount or value-added packages must be explained; and

(7) Any type of rotation sales should be included.

As previously noted, BCRA imposes additional requirements on federal candidates to be entitled to LUC rates. Specifically, within the LUC periods, candidates for federal office must either provide written certification that their spot makes no direct reference to another candidate for the same office or, as is more commonly done, the candidate can certify that their TV spots end with a photograph or similar image of the candidate and a printed statement to the effect that the candidate approves of the spot and that his or her authorized campaign committee paid for the spot. The photograph and statement must be shown for at least four seconds. A radio spot must include a personal audio statement by the candidate, including the candidate's name and office sought, stating that the candidate has approved the spot. Inclusion of the specified "stand by your ad" identification material at the end of the spot allows candidates to run negative campaign ads against their opposing candidate(s) without jeopardizing LUC rates. And while the BCRA requirements apply only to candidates for federal office, some states have enacted similar "stand by your ad" requirements applicable to state and local candidates as well.

Sponsorship Identification

Section 317 of the Communications Act and Section 73.1212 of the FCC's rules require that the identity of the party paying for a political spot be disclosed at the time the spot runs. Aural identification is not required for televised political spots so long as the spots contain a visual identification of the sponsor in letters equal to or greater than four percent of the vertical picture height. This visual identification must air for at least four seconds and applies to all candidates—federal, state, and local. Since precise compliance with these size and time requirements may be difficult, the FCC generally will not penalize a broadcaster for making a reasonable attempt to comply. A broadcaster may not reject a political spot simply because the sponsorship rules may be violated. It is the broadcaster's obligation to insert the necessary sponsorship identification if it is not already included in the spot. If a station does not have an opportunity to pre-screen a spot, the FCC will not find a violation based on the first time it runs without sponsorship identification. Once the spot has run, however, the station will be required to insert the proper sponsorship identification for all subsequent airings.

Reviewing a candidate's spot for sponsorship identification is the only type of editorial control that a broadcaster may exercise over a candidate's political spot. Even if the spot contains potentially libelous material, the station must air it as submitted. Under Section 315(a) of the Communications Act and the Supreme Court's decision in Farmers Educ. & Co-op. Union v. WDAY, Inc., 360 U.S. 525 (1959), the station is exempt from civil liability for libel if the spot qualifies as a candidate's "use."

BCRA contains additional sponsorship ID requirements applicable to third-party or issue ads that advocate the election or defeat of any federal candidate or solicit political contributions. Such ads should contain a statement that the programming is not authorized by any federal candidate and that "[name/address/telephone no.] is responsible for the content of this advertising." This statement is required to be made on-screen (or in a voice-over) by a representative of the sponsoring organization (or other person making the statement) and in clearly readable writing for four seconds. Unlike candidate ads, however, this requirement is enforced by the Federal Election Commission against sponsors and not by the FCC against stations.

Political File

The FCC's political file requirements for broadcasters are fairly concise but often overlooked, and the Commission has expressed concern regarding the broadcasting industry's lack of compliance. Because the FCC has fined broadcast stations for having incomplete political files in the past, this rule warrants special attention.

The rule requires that broadcast stations track each request for time made by a political candidate, even if the candidate does not place an order. The FCC's political file requirements were expanded by BCRA and now apply to all requests to purchase time made: (1) by or on behalf of a legally qualified candidate for public office; or (2) by anyone who "communicates a message relating to any political matter of national importance," including (a) a legally qualified candidate, (b) any election to federal office; or (c) a "national legislative issue of public importance." The records kept must include the following information:

1. Whether the request to purchase time is accepted or rejected.
2. The rate charged.
3. Date(s) and time(s) on which the spot aired.
4. Class of time purchased.
5. Name of candidate to which the spot referred and office sought; the election to which the spot referred; or the issue to which the spot referred (as applicable).
6. If the request was made by or on behalf of a candidate, that candidate's name, the name of his/her authorized campaign committee and its treasurer.
7. vii. If the spot was not placed by a candidate, the name of the person purchasing time, the name, address and phone number of a contact person and a list of the chief executive officers, members of executive committee or board of directors, as appropriate.

The foregoing information must be placed in the political file "immediately," although the FCC has not specifically defined that term. A good rule of thumb is to attempt to place the required materials in the political file by the end of the business day. During hotly contested elections, it may be necessary to update the file several times a day, depending on candidate demand. This material must be maintained in the political file for two years. It is also advisable to place it in the file copies of the station's political and commercial rate cards, if available.

The key element in determining whether a political file complies with the FCC's rules is whether a member of the general public would be able to review the file without assistance and determine the time the station sold or otherwise provided to each and every candidate.

We recognize the complexity of these political programming requirements and encourage you to let us know of any specific questions you may have regarding compliance.

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If you have any questions, please contact Burt Braverman at burtbraverman@dwt.com or Sharon Mathis, broadcast paralegal, at sharonmathis@dwt.com.

*David Silverman is a contract attorney and former partner of DWT. Sharon Mathis, broadcast paralegal, also contributed to this advisory.

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.