United States: Political Advertising In The 2018 Mid-Terms – Some Important Last Minute Thoughts!

With the nation now only weeks away from what is possibly the most important mid-term federal election in the last half-century, the political advertising climate is sure to get more and more furious. So, this would be a good time to review a few important principles important to broadcast licensees. Chief among them are issues connected to the FCC sponsorship identification rules. The "dark money" in political broadcasting is now overwhelming and with last-minute robust campaigning, broadcasters are often confronted by "exuberant" time buyers who are ready to reassure the broadcaster that they really don't need the sponsorship information required by the FCC rules. This is especially true with respect to issue advertisers.

Issue Ads

§73.1212, the sponsorship identification rules requires that when an announcement contains political matter or the discussion of a controversial issue of public importance, it is the broadcaster's responsibility, in addition to making sponsorship identification in the spot, to obtain and place in its public file a list of the chief executive officers or members of the executive committee or board of directors of the entity paying for the ad. Section 315 of the Communications Act, states that when a message relates to any political matter of national importance, including a legally qualified candidate; any election to Federal office; or a national legislative issue of public importance, a complete record must be included in the public file.

This is important. Now that station public files are available online from the FCC server, public interest groups and issue opponents are examining them carefully; some have filed complaints with the FCC. Be sure to get all the information that you need from time buyers and be prepared to get it into the public file. Under FCC rules, that means immediately, and immediately means within 24 hours.

Candidate Ads

While we're talking about the political file, broadcasters must make sure to have candidate advertising information up to date. §73.3526 requires that the file contain all requests for specific schedules of advertising time by candidates and some issue advertisers, as well as the final dispositions or "deals" with the political advertiser.

Materials relating your negotiations are not required to be included; just the final disposition. The description of the disposition should include when the advertising actually aired, including if the advertising was preempted, and the timing of any make-goods of preempted time, as well as credits or rebates provided to the advertiser.

Verifying Candidate Ad Sponsorship ID

Recognizing that broadcasters may not have enough time to preview the ad and still meet the candidate's requested timing, the FCC allows the licensee to air the ad once without being subjected to liability for not having proper sponsorship ID. This identification requirement exception applies only to ads for political candidates -- and not for political issues or other types of ads. After that, it's your responsibility to make sure the ad carries a proper sponsorship ID, even if you have to add it and run it over a portion of the spot. Remember, a proper sponsorship ID, political or otherwise, must use the "paid by" or "sponsored by" language of the FCC rule.

Election Weekend Sales

Given the heated exchanges we can expect in this mid-term, it's predictable that there could be strong demand for access the weekend before the election. The fury of last-minute attack and response political advertising will increase at a frenzied pace. The weekend before the election will be particularly important to the candidates. Typically, they will be cutting new spots daily. They will want access to stations to place them. The question arises, must a station provide access to political time buyers in the weekend before the election? What about election day itself? Does the station have to accept new orders for candidate advertising on election day?

Like most other political time buying scenarios, these situations have also arisen, been argued and settled by the FCC staff. During the 1990 election, there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. Clarifying this requirement, the Commission stated that if a station had taken an order from any commercial advertiser on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election.

However, the broadcaster is not required to provide any services to the political advertiser/time-buyer that are more extensive than the range of services previously provided to any commercial advertiser. For example, if access had been given to the commercial advertiser only to deliver or change copy, then those are the only services that need be afforded to candidates. If a station can prove that it has not sold time on weekends during the past year, it can justify a refusal to sell time to political candidates on the weekend before the election. However, a station that has done this just once for a favored advertiser (such as for a store running a holiday promotion or a movie premiere), must be prepared to process political advertising requests on the weekend before the election.

Note: the equal opportunities doctrine does not apply to this type of station service. That doctrine applies only to a candidate's actual response to a prior "use" (or appearance) on the station by an opposing candidate for the same office; not to the sale or use of facilities of the licensee. Remember, however, that a station cannot discriminate between candidates., Thus, even if it has not taken an order from any commercial advertiser on a weekend during the previous year, if the station offers weekend sales opportunities to one candidate, the station must also accept weekend sales from all opposing candidates for the same office.

What About Election Day Itself?

Election day, however, is treated differently. The Commission allows each station to adopt its own policy regarding whether it will or will not accept new candidate advertisements on election day, even from those seeking federal elective office who are otherwise entitled to reasonable access under section 312(a)(7) of the Communications Act. Here too, however, the station cannot discriminate, and if it decides to take a new Election Day order from a candidate, it must also take new orders from all opposing candidates for the same office. For federal office candidates, the station's policy must apply to all federal candidates equally, that is; once any federal candidate is allowed to purchase advertising on Election Day, then all federal candidates must be afforded such access as well.

A Short Refresher on Equal Opportunities

The Equal Opportunities doctrine is found in §315 of the Communications Act. The doctrine requires a broadcaster to treat all legally qualified candidates for the same office alike. A broadcaster may make no discrimination in charges, practices, regulations, facilities or services rendered among legally qualified candidates for a particular office. This applies to the availability of broadcast time, the use of production facilities, the extension of credit, and the application of technical requirements.

Equal opportunity does not mean an identical segment of broadcast time. When an opposing candidate requests an equal opportunity, the licensee must consider the daypart concerned, the length of the time segment, and the desirability of the particular broadcast time (including adjacency to popular programs). The station is not required to afford an opposing candidate an opportunity to appear on the same program, or even at the same time of day or the same day of the week, as long as the time segments offered are reasonably comparable.

The mechanics of working out equal opportunities is a matter the FCC normally leaves to the station and the candidates involved, within that framework of the general principles

Requests for Equal Opportunities

A right to equal opportunities does not arise automatically, but only upon proper request. The request must be made by a candidate or by an authorized representative and not by a political party or special interest group. All equal opportunity requests must be for a "use" by the candidate.

Seven Day Rule

A request for equal opportunities must be made within seven days of an opposing candidate's prior use. Thus, if Candidate A "uses" a broadcast facility on October 5, 10, 15, 20 and 25, Candidate B's request for equal opportunities on October 26 will only cover Candidate A's uses of October 20 and 25; Candidate B lost his right to request equal opportunities to Candidate A's first three uses by waiting more than seven days after the use had occurred. Further equal opportunity rights do not attach to the reply "use."

A station is under no obligation to advise a candidate of a use by an opposing candidate - even when a use occurs toward the very end of a campaign. However, upon inquiry from a legally-qualified candidate, the station must provide the candidate with the facts relative to opposing candidates' requests, including the time sold and the changes made. This may be done by referring the candidate (or his or her representative) to the station's online political file.

Prior Requests for Expected Uses

Requests made before an opponent's use must be honored only if directed to a specific future use known at the time of the request. However, when a candidate will use a station according to a fixed and continuing pattern (such as a spot in the 7:00 p.m. news every Monday), then a single request from a legally qualified opposing candidate for equal opportunities will apply not only to the first candidate's uses during the preceding seven days but for all subsequent scheduled uses as well under the same "buy".

Originally published in the September/October 2018 issue of Radio Guide.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions