In two recent decisions, the FCC clarified – and increased – the burdens on stations accepting third-party political advertisements. As explained below, the new rules will require stations to review each ad to list all the national issues contained in the advertisement. The new “clarifications” increase the amount of information that must be listed in a stations public/political file.
THE NEW RULES APPLY TO ISSUE AND CANDIDATE ADVERTISEMENTS THAT ARE PURCHASED BY A THIRD-PARTY ORGANIZATION. THIS WOULD INCLUDE ORGANIZATIONS SUCH AS A REPUBLICAN CAMPAIGN COMMITTEE, DEMOCRATIC CAMPAIGN COMMITTEE, A POLITICAL ACTION COMMITTEE (PAC) OR ANY OTHER THIRD PARTY. The new rules do not change requirements regarding political advertisements purchased by a candidate’s own campaign committee.
In the past, when a third party purchased a political ad supporting or opposing a candidate, stations would often view the issue in the advertisement as only the election of the candidate. They would not list the actual issues discussed in the advertisement. For issue ads, stations would often list one issue. This may no longer acceptable. Stations must now make sure they list all legislative issues of national importance which are raised in the advertisement. Specifically, for each request to purchase advertising time from a third party concerning; i) a legally qualified candidate; ii) any election to a federal office or iii) a national legislative issue of public importance, a station must disclose in its political files all political matters of national importance addressed in each ad, including the names of all legally qualified candidates for federal office (and the office to which they are seeking election), all elections to federal office and all national legislative issues of public importance.
So what does this mean? If you have an advertisement purchased by a third party ( e.g., Senate Campaign Committee, Citizens for a Better World, PAC, Democratic or Republican Party) for a legally qualified federal candidate, you must list in your political file all issues raised in the advertisement that are of national legislative importance. The same holds true for any “issue advertisement.” Thus, if the advertisement mentions issues such as, gun control, immigration, taxes, or national defense you need to list all of the issues addressed in a particular ad in your public file. Note, the new rules state that you only have to list issues that actually involve legislation before Congress. Quite frankly, thousands of bills are introduced every year. You can bet that any issue discussed has been included in some type of legislation. Bottom line, just list every national issue raised in the ad.
This means you will have to review every third party political advertisement, both candidate and issue advertisements, to discern all legislative issues of national importance. This can be incredibly burdensome and may require judgment calls about what issues are actually mentioned.
Importantly, the new rules may apply to third party political advertisements that are broadcast for state candidates or regarding state issues. The critical question is whether these advertisements also discuss national issues. If so, the issue must be listed in your description of the advertisement in your political file, and for those ads, you must then include all of the other information the FCC requires to be disclosed for third party ads addressing federal candidates or national issues. If a state or local political advertisement raises issues such as gun control, immigration, unemployment or even President Trump, a station would have to list that issue in its political file when describing the advertisement. If a local advertisement focuses on pot holes and mentions the need to invest in infrastructure, they could be considered a legislative issue of national importance. As a result, stations will have to examine each third party advertisement that is purchased for a state election, including candidate and issue advertising, to see if federal issues are discussed.
There is also a new requirement regarding listing the names of officers and board or committee members of third party entities that are purchasing political advertising. Stations have always been required to disclose all of the chief executive officers or members of the executive committee or board of directors of any entity seeking to purchase political advertising time. In many cases, advertisers either did not provide that information or listed one person. The FCC made clear that stations must obtain that information. If the advertiser provides only one name, however, the FCC says the station will have met its obligation by making a single inquiry to either the organization sponsoring the ad or the entity buying time on the organizations behalf.
As a result, stations accepting advertising from a third party organization with just one name on the disclosure form will have to make an additional inquiry. For example, if the organization lists only the “Treasurer,” you should inquire to obtain all the names of the officers or board of directors or similar officials of the organization. Importantly, stations have to make only one inquiry. Moreover, stations do not have to check to see if the names provided are accurate. We recommend that stations make this inquiry by e-mail to have evidence that they did follow up.
These new rules significantly increase the burdens on stations with respect to information to be included in the political for political advertising purchased by third party organizations. Moreover, because the FCC and other organizations can now check political files on line, you can expect greater oversight in the future.
For further discussion from noted communications attorney David Oxenford click HERE.
To see the FCC’s decision click HERE.
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