Last Minute Station Political Issues are Top of Mind

posted on 2.24.2020

It’s been a busy political season for Texas stations, primarily those located in the larger metro markets. But all broadcasters should be prepared for last minute political advertisement issues as we head into the homestretch of the primary season.

Political Advertisement Buys this Weekend

Several Texas markets have competitive primary elections involving legally qualified federal candidates. Broadcasters should ensure they have adequate staffing to handle last minute changes or ad buys by these federal candidates as well as equal opportunities requests from all candidates during this coming weekend, Feb. 29 – March 1.   

“Section 73.1944 of the FCC’s Rules requires radio and television stations that have provided weekend access to any commercial advertiser during the 12 months prior to the election to provide similar access to federal candidates the weekend before the March 3 primary election,” said TAB FCC counsel Scott Flick of Pillsbury Winthrop Shaw Pittman.

“A station only needs to offer federal candidates the same kind of weekend services that it has previously offered to commercial advertisers. 

This means that if a station has provided weekend access only for deleting copy or canceling spots, as opposed to selling and scheduling new spots, the station is only required to provide those same pre-election weekend services for federal candidates,” Flick said.

“Stations may accept last minute buys from candidates if they choose, but if they do so, they cannot discriminate between competing candidates with regard to providing the same expanded access.” 

Similarly, while the rule does not require stations to provide weekend access to a non-federal candidate, if a station does so (since staff is already standing by for federal candidate requests), it needs to provide those same services to that candidate’s competitors.

To ensure appropriate weekend access is available to candidates (and to avoid candidate complaints to the FCC), stations should make it clear to anyone who calls the main number, request line, or any listed station phone number how to get in touch with station sales staff.  

Station staff working on-air should also be apprised of the procedure in case a campaign calls the on-air number.

Because this requirement increases the likelihood of last-minute changes, stations should practice careful inventory management so that they can accommodate those spots they are legally obligated to run. 

Stations must be particularly careful when selling a new schedule this week to a candidate, as the opposing candidate(s) may demand equal opportunity to air spots before Election Day, and the station needs to ensure it has adequate available inventory to accomplish that.

Note that because this last example involves an equal opportunity request, that can mean signing contracts and adding spots to the traffic system over the weekend, even if you have not done that in the past year for a commercial advertiser.

Political Advertisement Recordkeeping

TAB has encouraged stations throughout this year to keep the station’s online political file as up to date as possible.

Not only is it required by the FCC’s political broadcast rules, but also because FCC staff and others can review a station’s timeliness with the click of a mouse.

Just how quickly does the information need to be posted?

“The FCC says ‘immediately’,” noted Flick. “That has traditionally been interpreted to mean no longer than 24 hours.”

“Take Down” Demands

This is the week that stations are most likely to get “take down” demand letters, emails or phone calls from candidates complaining about the content of an ad placed by an opposing legally qualified candidate. 

The “legally qualified candidate” distinction is important here as ads placed by legally qualified candidates may not be censored by stations under federal law.

“As such, broadcasters are not liable for the content of such advertising,” said Flick.

In contrast, broadcasters are potentially liable for the content of third-party attack ads, and Texas stations have been sued successfully over their content.

Regardless of the type of advertiser involved, parties sending a “take down” notice are trying to get a station to “blink” and pull down an opponent’s ad during a critical time leading up to election day. Knowing which type of ad is involved and the station’s liability for airing it is critical in responding to a “take down” notice.

If your station receives such a letter, email or phone call, take it seriously.

TAB recommends reviewing the situation with your station counsel to determine the proper course of action.

Political Ads Broadcast on Election Day

TAB occasionally fields a call from a station wanting to know if it is legal to broadcast political advertising on election day.

There is no Texas or federal law prohibiting such ads.

If your station is approached for an Election Day political ad buy, it is okay to make such a sale.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.

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