Legal Memo

Political Ads: The Latest for the Last Days

All that political money in these lean times is a beautiful thing. But as the campaigns wind down, it's important for broadcasters to keep up with the evolving rules and regulations governing political advertising and coverage. Do you know what to do if one of the candidates for your televised debate fails to show up?
By
TVNewsCheck,

Beauty's in the beholder's eye. Is it beautiful or ugly that only three weeks and four days remain in the 2008 general election campaigns? It's ugly to some TV advertising managers, program directors and GMs who see it as the end of record political ad spending in a crashing economy. It's beautiful to others for whom it's relief from compliance with political broadcast regulations.

For both groups, this column focuses briefly on home-stretch legal points to help stations make money, while complying with the regs covering some of the finer points of equal opportunities, candidate debates, ad cancellations and "hybrid" ads.

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Q. Must stations accept and run political ads right through Election Day itself?

A. No. For Election Day itself, the law offers flexibility. Stations may decide whether running political ads on the official national Election Day, Nov. 4, is in the public interest. Note that the flexibility has not been applied to "early voting" days established by some states. Also, a station's decision should be consistent with its political disclosure statement.

Q. If a station allows candidate ads on Election Day, how does equal opportunities apply to "last minute" requests?

A. First, especially this close to the election, stations should be sure to comply with the requirement to place candidate ad buys in the public file at the time of the sale (same day, according to FCC interpretation). Checking the public file is how a candidate can tell whether an opponent has bought Election Day time, and make a timely request for equal opportunities.

Second, close to Election Day, equal opportunities may mean proportional time, not equal time. This example illustrates the principle: A station sells Candidate A a one-week schedule of spots that ends on Election Day. Three days before Election Day, Candidate A's opponent Candidate B makes a timely request for equal opportunities. The station should offer Candidate B 3/7 of the number of spots it sold to Candidate A.

Q. What's the difference between equal time and equal opportunities?

A. Equal opportunities -- as required by statute and FCC rules -- includes equal time, but is broader than equal time. For instance, the total amount of time offered to each candidate can be the same, but the "opportunities" aren't "equal" if Candidate A's spots all ran in primetime and opponent B's spots run between midnight and 6 a.m. Also, if a station provides ancillary services to the first candidate, such as ad production assistance or use of station production facilities, the station must offer those to opponents seeking equal opportunities too, and on the same terms and conditions that were offered to the first candidate.

Q. What if a candidate drops out of a televised debate or fails to show up? Can the station still run the program without having to give equal opportunities to lesser candidates not invited to debate?

It depends on the facts of each situation.

To be exempt from equal opportunities, a program must meet the criteria for one of the four types of exemptions: on-the-spot coverage of a bona fide news event (where debates have qualified for exemption); bona fide news interview; bona fide news documentary; and bona fide newscast. See my column last month for more on equal opportunity exemptions.

For a debate to be exempt, it must be adversarial with at least two debaters. If it's a two-person debate and one doesn't show, it cannot qualify as on-the-spot coverage of a bona fide news event.

When that happens the station could try to convert the planned program to fit another exemption category. For example, the candidate who appears (but cannot debate himself) could be interviewed, and the recorded interview broken up into short segments (e.g., five minutes) to be aired during regularly scheduled already-exempt newscasts or other programs. The segments could be designed to qualify as bona fide news interviews. This requires careful attention to details of the interview and its on-air scheduling.

A debate planned for three or more candidates can still qualify as exempt if one debater is absent, if all criteria for on-the-spot coverage of a bona fide news event are met.

Q. When a candidate cancels an ad contract, are there FCC requirements that apply?

A. As long as the station treats the candidate comparably to commercial advertisers that cancel, the FCC usually leaves the matter to the parties to the contract. The treatment comparability aspect comes from an FCC rule prohibiting licensees from subjecting any candidate "to any prejudice or disadvantage" in making time available. If a station is generally relaxed about commercial cancellations, the FCC may expect it to do the same for candidates. Enforcement is complaint-driven.

Q. For about the past month stations have been asked (so far by McCain and others) to run, at lowest unit charge (LUC), ads featuring a candidate and paid for by the candidate or his/her campaign and an organization such as a national political party. Generally LUC applies to ads by legally qualified candidates or their authorized campaign committees when the candidate appears in the ad in connection with his/her campaign--a candidate "use"--and other requirements are met. (See my January column for more on LUC.) Do these "hybrid," "coordinated" or "combination" ads qualify for LUC?

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