Pillsbury Winthrop Shaw Pittman LLP
More than fifteen years after the adoption of the Bipartisan Campaign Reform Act (“BCRA”) of 2002, popularly known as “McCain-Feingold,” Congress’s and the Federal Communications Commission’s interest in political broadcasting and political advertising practices remains undiminished. Broadcast stations must meet a broad range of federal mandates, and must therefore familiarize themselves with this regulatory area,ensuring they have adequate policies and practices in place and that they monitor legislative, FCC, and Federal Election Commission developments for changes in the law.
Stations must adopt and meticulously apply political broadcasting policies that are consistent with the Communications Act and the FCC’s rules, including the all-important requirement that stations fully and accurately disclose in writing their rates, classes of advertising, and sales practices to candidates. This information should be provided to candidates and their agents in a station’s Political Advertising Disclosure Statement.
Many of the political broadcasting regulations are grounded in the “Reasonable Access,” “Equal Opportunities,” and “Lowest Unit Charge” provisions of the Communications Act. These elements of the law ensure that broadcast facilities are available to candidates for federal office, that broadcasters treat competing candidates equally, and that stations provide candidates with the same rates offered to their most-favored commercial advertisers during specified periods prior to an election. As a general rule, stations may not discriminate between candidates for the same office as to station use, the amount of time given or sold, or in any other meaningful way.
These rules are enforced through fairly stringent recordkeeping requirements, with a station’s political advertising documentation required to be kept in its political file—a file that is now available online to the public as part of a station’s Public Inspection File. Political files must contain a station’s political documentation for the past two years. As of the publication of this Advisory, all TV political file documents going back two years and most radio political file documents going back two years are online. However, the FCC allowed certain smaller, small market, and noncommercial radio stations a longer period of time to move their pre-March 1, 2018 political documents online. For these stations, their political files are not required to be completely online until March 1, 2020.
Because of the transition to online political files, broadcasters must be even more diligent to ensure that all political documents are timely created and uploaded. The past few years have seen an uptick in political complaints fromwatchdog organizationswhich now have convenient around-the-clock access to stations’ political files. Unfortunately, many of those who have suddenly gained ready access to stations’ political files do not understand the political rules and may allege that a station’s political file is missing required information when the political file is in fact complete. It is therefore important for stations to understand their obligations so they are able to quickly respond to such allegations before they generate formal FCC complaints. Even where the station is completely in the right, responding to FCC complaints and investigations can be expensive, and diverts the attention of station staff from operating the station and serving the public.
While this Advisory outlines the political broadcasting rules in general terms, application of the rules can be quite fact-specific and there are many additional aspects of the rules too numerous to address within this Advisory. Accordingly, stations should contact legal counsel with specific questions or problems they encounter.