Primary Election just days away

posted on 2.26.2018

Hard to believe, but the March 6 Texas Primary Election is less than a week away. Most of the broadcast political advertising dollars have been spent in contested races in the Houston and Dallas-Fort Worth markets, both of which have a higher than normal number of “open seat” congressional races.

A handful of Texas House and Senate races around the state have also been responsible for political advertising buys. It has been relatively quiet, however, on the statewide race front when it comes to broadcast political ad buys.  One statewide candidate in particular, Lt. Gov. Dan Patrick, R-Houston, has instead placed a slew of ads on heavily-trafficked internet websites such as YouTube.

TAB does expect much more broadcast political ad activity in statewide races in the fall when the U.S. Senate race, for example, and some of the other statewide campaigns heat up.  Now is a good opportunity for stations to go over some last minute political broadcast considerations.  We’ll start with an important note for those smaller market radio stations who have been hustling to upload the station Public Inspection File by the March 1 FCC deadline.

Smaller market radio stations, the Political File and the online station Public Inspection File
TAB's FCC counsel, Pillsbury Winthrop Shaw Pittman, has confirmed that those in this “last wave” of radio stations moving their station Public Inspection File online do not have to upload their existing Political File by March 1.  Such stations must, however, commence uploading their Political File documents to the FCC’s online station Public Inspection File on a going-forward basis starting this Thursday, March 1.

Political ad “take down” demands
While the Primary Election has not been marked by an enormous amount of statewide political advertising, broadcasters should nonetheless be on guard for political advertising “take-down” requests.  Such requests are more likely to happen in local congressional and statehouse primary races.

It happens with regularity during the closing week or two of an election – a written request, usually an email or letter from a law firm, demanding an attack ad placed by a candidate or a third-party group be pulled down immediately because it is allegedly incorrect, misleading or even worse, libelous.

“If the attack ad is run by a candidate’s authorized campaign committee, you can’t censor the ad based on its content,” said David Oxenford, an attorney with TAB Associate member law firm Wilkinson Barker Knauer LLP.  “That means you are legally forbidden to pull the ad even if it lies about the opponent.”  

The FCC has a specific provision prohibiting the censorship of ads placed by legally qualified candidates or their authorized representative, such as a campaign’s ad agency.  That provision does not apply to ads bought by PACs and other non-candidate third party groups.  As such, stations are liable for the content of such advertising.

Oxenford cautions that stations need to “carefully evaluate the claims made by the party demanding that the spot be pulled, as if the claims made in the spot are in fact false and defamatory, the station could have liability for continuing to run the non-candidate attack ads after receiving notice demanding that they be taken down.”  Oxenford has written more extensively about “take-down” demands here.

Weekend access, last minute orders, and equal opportunities
Broadcasters should ensure they have adequate staffing to handle last minute ad changes or ad buys by legally qualified candidates during this coming weekend, March 2-4.   

TAB’s FCC legal counsel, Pillsbury Winthrop Shaw Pittman, says all radio and television stations that have provided weekend access to any commercial advertiser within the past 12 months must provide similar access to candidates the weekend before the March 6 primary election date.  A station only needs to offer 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 candidates.  Stations may accept last minute buys from candidates if they choose, but again, the station cannot discriminate between candidates with regard to providing access. 

At a minimum, stations should make it clear to anyone who calls the main number, request line, or any listed phone number for the station how to get in touch with a station sales staffer who can take the order.  Station staff working on-air should also be apprised of the procedure in case a campaign calls the on-air number.

“All candidates have the right to buy equal time to the time bought by opposing candidates in the last seven days,” Oxenford said.  “While candidates cannot sit on their equal opportunity rights until the last minute, equal opportunity buys placed in the first part of next week probably need to be accepted.”

Stations should be practicing wise inventory management so that they can accommodate those spots they are legally obligated to run.  Oxenford cautions stations to be particularly careful about selling a new schedule this week to a candidate, as the opposing candidate will need to be able to get his or her equal opportunity requests fulfilled before Primary Election Day.  Because it is an equal opportunity  request, that can mean signing contracts and adding spots to the traffic system over the weekend, even if you have never in the last year been open on the weekend for a commercial advertiser.

Political ads airing on Primary Election Day
TAB reminds stations that there is no Texas or federal law prohibiting political ads from airing on Election Day.  Some states have such laws, but Texas is not one of them. 

Occasionally TAB gets a call from sales staff from such a state who have moved to Texas and are unfamiliar with our state’s ways.  If your station is approached for a political ad buy to run on Primary Election Day, it is okay to make such a sale.

News crews shut out of polling locations
News crews may run into election judges at polling locations who refuse to allow stations to shoot video of people voting. 

The Texas Election Code, sections 61.001, 61.003, 85.036 and 85.037 say, somewhat vaguely, that bystanders are not allowed within 100 feet of the door of a polling location.  It is meant to prevent electioneering, but unsympathetic election judges have used it to prevent news photographers from shooting video of polling locations. 

TAB has tried to pass an amendment to the law in order to allow news cameras into polling locations, but lawmakers have been indifferent to the idea.  Some election judges and county clerks “look the other way,” especially when high profile candidates are at a location to vote. 

TAB’s advice to stations who run into unfriendly election judges at a polling location is to appeal directly to your county clerk and hope for a better reception – preferably the address of a “friendly” polling location.  

Primary Election Night return problems
County officials must keep the Secretary of State’s Office informed of any election night return problems.  Should your local returns appear to be coming in slowly, your newsroom can check the veracity of what local election officials are telling you by calling the Secretary of State’s Office media line, (512) 463-5124, on election night.

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

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