Legal Memo

Political Ads: A Guide for the Next 53 Days

As a result of Supreme Court and FEC rulings, stations should expect to get plenty of non-candidate attack ads this fall. Here's what you need to know about them and the candidate complaints they may generate. Also: the FCC's latest ruling on news exemptions from the equal time law.
By
TVNewsCheck,

This general election is historic by many measures.

One major party has nominated an African-American man for president and the other a woman for vice president. Their televised nominating conventions attracted record audiences. And last week, TVB projected that TV stations would take in a record $2.25 billion in political ad revenue this year, about 75 percent of the total political ad pie.

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Fifty-three days before the election and one week into the 60-day lowest unit charge period, here are some things you should know about the ever-changing rules and regulations surrounding political advertising and broadcasting.

Non-candidate ads that attack candidates

Supreme Court and FEC rulings last year allowed corporations, labor unions and other groups to use their own funds for the first time for political "issue ads" 30 days before primaries and 60 days before general elections.

Partly due to these changes, many stations are experiencing unprecedented demand for time from groups.

Some of these are attack ads and may contain false or dubious statements about legally qualified candidates. Their campaigns have complained to stations, asked them to pull the ads and in some cases spoken of station liability for money damages in lawsuits for defamation or other legal harm.

Stations in this or similar situations need to assess each case individually, perhaps seek advice of counsel and decide how to proceed.

Among the factors to consider:

  • Stations are not required to accept or run non-candidate ("third-party") ads. The ads are not subject to lowest unit charge, stations can censor them (such as by requiring revisions) and can be held liable for their contents. (Candidate ads, in contrast, must be run for federal candidates and all candidates requesting equal opportunities, at lowest unit rate, and stations may not censor them or be held liable for their contents.)
  • All stations have a general obligation to operate in the public interest. This applies to advertising. Licensee judgments about what is in the public interest usually are deferred to by the FCC if reasonable.
  • Stations have options. They may let the ads run and take the risks; decline to run the ads at all or stop them at any time; ask the advertiser to indemnify them in writing against damages; investigate the ad's claims; or require substantiation from the advertiser of the facts alleged. In this Google era, stations may get competing sets of substantiation from the advertiser and the attacked candidate.

Combination on-air and Web site ad buys

Stations that sell advertising space on Web sites may get requests for it from candidates. Lowest unit charge does not apply to the Web, but it is wise not to gouge candidates or discriminate among candidates in the pricing and placement.

The question has come up, but has not been addressed by the FCC, whether a station that sells commercial advertisers Web space in combination with on-air time must offer that option to candidates under access or lowest unit charge requirements.

The FCC has no direct authority over station Web sites. Multimedia ad combinations may become the norm for future elections.

But, in the meantime, it appears that stations can gain a degree of protection against various potential problems by offering and pricing airtime and Internet space separately and allowing each to be purchased exclusively by any type of advertiser.

A recent FCC ruling on news exemptions from equal time obligations

In one of the few recent FCC political broadcast rulings, the Media Bureau on May 1 decided that newscast portions of Christian Broadcast Network Inc.'s The 700 Club program qualify for the "bona fide newscast" exemption, and its news interview segments are exempt as "bona fide news interviews."

In its declaratory ruling the FCC:

  • Stressed the importance of the ruling to stations and program producers. Whenever a news exemption is sought for an independently produced program, "individual licensees must still make a determination to air individual programs in the exercise of their bona fide news judgment." Licensees, the FCC said, remain ultimately responsible for that determination, and should not make it for the political advantage of a candidate.
  • Noted that the words "bona fide" emphasize Congressional intent that programs qualifying for any of the four categories of exempt news programming (the other two being bona fide news documentary and on-the-spot coverage of bona fide news events) must be of genuine news value and not designed to serve the political advantage of any candidacy.
  • Provided a reminder of the criteria for the two exemptions granted. A bona fide newscast must report news of some area of current events, in a manner similar to more traditional newscasts. A bona fide news interview must be regularly scheduled, controlled by the broadcaster or an independent producer, and decisions on format, content and participants must be based on newsworthiness and not an intent to advance or harm a candidacy.
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