Most FCC political broadcast rules kick in next week for 2016 election year

posted on 12.08.2015

When the Texas political candidate filing window ends at the close of the business day next Monday, the majority of the FCC’s political broadcast regulations will kick in.

At that point broadcasters will know who the “legally qualified candidates” are for the March 1 Democratic and Republican primary elections.

It will likely take a day or two for the Texas Democratic Party and the Republican Party of Texas to update their online listings of federal and state candidates. 

The information is now or will soon be available on the state Party websites, Texas Democratic Party and Republican Party of Texas. 

The Secretary of State’s Office also has an online searchable listing of candidates by county that’s helpful.

It can be searched by party or combined, and it is especially useful because it lists federal, state AND local county candidates.  

The only warning TAB has is that the list may not be up to up to date at the time of your search as it depends on the local political parties having sent candidate information to Austin.  

Still, it is useful for sales departments and newsrooms that want a quick read on the candidates from their station’s viewing area.

The next big date will be Jan. 16, which is the start of the FCC political window for the March 1 primary and the point when lowest unit charge rates for political time go into effect for legally qualified candidates.

(Lowest unit charge political rates go into effect 45 days before the date of the primary election and 60 days for the date of the general election in November.)

Attorney David Oxenford with TAB Associate member law firm Wilkinson Barker Knauer wrote a great primer piece over a year ago on the issues stations should be considering in determining lowest unit rates.

Oxenford points out that some stations are no doubt already selling long-term contracts that will still be in effect during the primary season. 

Those stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value – rather than simply booking them as having a flat rate throughout the entire year – including the pre-election lowest unit rate periods. 

Oxenford says the FCC allows stations, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods. 

TAB advises stations to consult with their legal counsel to make sure that their station properly applies this process, because it could save considerable sums in the long term.

Third-party ads, those not placed by legally qualified candidates or their representative, do not qualify for lowest unit charge.

Although the ad dollars may be tempting, Oxenford warns stations to be careful in accepting such ads.

Stations can potentially have liability for defamatory content in those ads if the stations know or have reason to believe that the ads are in fact false.

Candidates who are attacked may be calling stations asking that ads from PACs and other third-parties be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims.

In general, third-party ads can be more problematic than candidate ads as they do potentially force stations to be judges of the truth of the content of those ads.

Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for the content of those ads.

Oxenford said broadcasters also need to pay attention to third party ads dealing with federal issues. 

Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate. 

Sometimes such ads don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress. 

In any case, Oxenford said, if the ads are dealing with Federal candidates or other issues being considered by Congress, then they are Federal issue ads on which the station must maintain full public file information, similar to that which is kept for any candidate advertising – the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots.

Oxenford has written a good backgrounder on the public file requirements for Federal issue ads.

The FCC political broadcast rules may seem daunting for stations and no doubt, they are fraught with danger for stations, but TAB has arranged for a post-candidate filing, end of year review of the FCC’s political broadcast regulations

Register now for a special two-hour webinar on Thursday, Dec. 17 from 1-3pm CST (12-2pm MST), featuring Oxenford and Bobby Baker, chief of the Federal Communications Commission’s political bureau.

Baker and Oxenford will cover a number of topics related to the FCC’s political broadcasting regulations.  Topics covered include lowest unit rate, third party issue advertising, reasonable access and equal opportunities, news exceptions, sponsorship identification and public file requirements.

There is no registration fee for TAB member station staff, but station employees need to register individually in advance to be ensured a spot for the online presentation.  

The presentation will be live.

An email will be made available for questions to registrants along with log-on instructions prior to the webinar date.

The webcast will be archived online and accessible to registered participants for six months, so it’s also crucial to register now even if one misses or will miss the webinar itself due to a schedule conflict.

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

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