Political Broadcasting -- Election Year Update


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Mid-term elections are just around the corner. Now is the time for broadcasters to review their procedures to assure compliance with the FCC's political advertising rules.

The FCC's political broadcast rules generally cover: (1) who is entitled to access to broadcast advertising time and under what circumstances, (2) how much candidates can be charged for that time, and (3) disclosure and recordkeeping requirements.

Uses. A concept that affects several areas of the FCC's rules is the idea of a candidate's "use" of a broadcast station. A use is any positive appearance of a candidate whose voice or likeness is either identified or is readily identifiable. Friendly third-party ads may trigger a use, as can appearances in entertainment programming (e.g., Governor Schwarzenegger's performance in Kindergarten Cop). The candidate's appearance on a station, however, must be "positive," so a third-party attack ad against a candidate would not be considered a use. Likewise, an appearance by a candidate on a bona fide news or news interview program is not considered a use.

Access. The FCC's rules provide that "legally qualified" candidates for federal offices (i.e, for president, U.S senator or House member) can demand "reasonable access" on commercial broadcast stations. This means that commercial broadcasters are generally obligated to sell time to candidates for federal office. Third-party advertisers and "issue advertisers" do not have reasonable access rights and, as discussed below, neither do candidates for state and local offices.

If a station decides to cover a local or state election and time is sold to candidates in such elections, their opponents are entitled to "equal opportunities." Once a legally qualified candidate for a given office makes a "use" of a station, all other legally qualified candidates for the same office are entitled to the opportunity to make equal use of the station. A candidate claiming equal time must make a request for it within seven days of the opposing candidate's triggering use of the station. Stations are not obligated to notify opposing candidates when a use is made.

Lowest Unit Charge. All legally qualified candidates for state or federal political office are entitled to the "lowest unit charge" (LUC) during the 45 days before a primary election and the 60 days prior to a general election. For the 2010 federal general election, the LUC window opened on Sept. 3, 2010. The LUC is the lowest rate changed to any commercial advertiser for the same class and amount of time for the same time period, including all discounts and bonus spots. Only candidate ads are entitled to the lowest unit charge.

Disclosure Statements. In addition to ascertaining their lowest unit rates, stations should ensure that they have an up-to-date disclosure statement to provide to political advertisers. Although the FCC's rules do not technically require written disclosures, every station should have one to ensure compliance and also to head off disputes. A written disclosure statement should cover the classes of time available to advertisers, the lowest unit charge for each class, any make-good policies, policies on the preemption of ads, and any other sales practices or information that would be relevant to advertisers. Stations should provide the disclosure statement to any candidate, agency or group requesting political time (inside or outside of the LUC window).

Sponsorship Identifications. All political advertising must include sponsorship identification, i.e., a statement that the ad was "paid for" or "sponsored by" the group or person purchasing the ad time. If the advertiser does not include such a statement, the station must add this language on its own.

Recordkeeping. The FCC's political file rule requires stations to maintain, and allow public inspection of, records of all requests for political time. These records must include details of the nature and disposition of the requests, the schedule of time provided or purchased, the classes of time involved, the rates charged and contact information of the purchaser.


Dateline

For noncommercial radio stations in Iowa and Missouri, biennial ownership report deadline is Oct. 1.

Oct. 1 is the deadline for radio stations licensed in the following locations to place their Annual EEO Reports in their public files: Alaska, Florida, Hawaii, Oregon, Puerto Rico, Virgin Islands, Washington and the Pacific islands.

The radio station license renewal cycle begins again in 2011, with the first batch of renewals due on June 1, 2011, for stations in D.C., Maryland, Virginia and West Virginia.


Martin is a member of Fletcher, Heald & Hildreth, PLC, Arlington, Virginia. E-mail: martin@fhhlaw.com




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