What Every Station Should Know About Political Advertising

Whats New Petition for Declaratory Ruling -Named State Broadcasters -Google/dMarc, Bid4Spots and Softwave Media Exchange -Interim?

Wisconsin Right to Life June 15, 2007 Supreme Court Decision FEC vs. Wisconsin Right to Life, Inc. Loosened restrictions on TV and Radio ads that corporations and labor unions can finance prior to an election No Other Reasonable Interpretation Standard Redefines Electioneering Communications

Electioneering Communications Electioneering communications are any broadcast, cable or satellite programming that refer to a federal candidate, are aired within 60 days prior to a general election or within 30 days prior to a primary election and reach 50,000 or more persons. What this means for stations

Refresher Course Reasonable Access Equal Opportunities Lowest Unit Charge Sponsorship ID and BCRA Public File

Reasonable Access Stations must sell time to federal candidates Applies during the entire campaign Stations cannot set up front limits on the amounts or type of time that candidates can buy But, stations may reject unreasonable requests and negotiate with candidates

Carter-Mondale Factors How much time the candidate has already bought The amount of disruption the buy would create The potential for equal opportunities demands from other candidates The timing of the request Reasonable access requests must be evaluated using 4 factors:

State & Local Candidates State and local candidates have no right of access Stations may exclude some or all state and local candidate ads

State & Local Candidates Stations can take ads from some races and not others Stations can limit the number of ads Stations can restrict the dayparts for state and local ads But, stations must make discount classes available and equal opportunities and lowest unit charge rules apply

Equal Opportunities Does not require equal time, just equal right (i.e., pay for pay and free for free) Triggered by any non-exempt use Applies only to candidates in the same race Candidates must request equal opportunities within 7 days

What type of programs are exempt? Bona fide newscasts Bona fide news interview programs Bona fide documentaries On-the-spot coverage of bona fide news events includes station-sponsored debates and some free time offers

Political Rates Apply to all races – federal, state and local Issue ads do not receive political rates Party ads are only entitled to political rates if the party is one of the candidates authorized committees - if a party or other ad supporting a candidate is an independent expenditure, political rates are not required

Lowest Unit Charge Since 1991, the most important requirement is disclosure A stations political rates are determined by the rates it offers commercial advertisers Stations must tell candidates about all relevant information and rates offered to commercial advertisers

Disclosure Statement Stations should have a written disclosure statement It should be given to every candidate or agency requesting political time Dont just copy the disclosure statement you used last election – check to see if it still accurately describes your sales practices

What to Include in Calculating the LUC All paid spots All contracts in effect during the political window or available to commercial advertisers Paid PSAs which are aired for commercial advertisers The value of bonus spots must be included in the LUC; this includes bonus spots that air outside the window

What to Exclude from the LUC Spots for which no payment is received Pure barter spots Per-inquiry spots Bonuses for non-profit organizations and the government De minimis value-added incentives or incentives that would imply a station endorsement

Packages Candidates do not have to buy a package to benefit from the package rate Every spot in every package must be valued Package prices may be allocated on the contract or in a signed and dated internal memo If a station does not allocate, FCC will assume all spots have an equal value

Calculating the LUC – Incentives Non-cash merchandise and promotional incentives do not have to be factored into the LUC They must be offered to candidates on the same basis as to commercial advertisers Incentives of de minimis value or which imply endorsement do not have to be offered to candidates

Preemptible Time Stations which offer commercial advertisers separate levels of preemptible time may treat each level as a separate class Stations may offer candidates fixed time so long as that class is offered to commercial advertisers Stations which sell time on an auction basis have only one class of preemptible time

Candidate-Only Discount Class Stations may create a non-preemptible class of time for candidates only If occasional spots clear below the candidate discount rate, no rebate is required

Changes in Rates If a contract with a commercial advertiser expires during the window, the LUC may change Rate changes which are part of a stations ordinary business practices will affect the LUC Rates may vary due to changed ratings, seasonal demand, etc.

Issue Ads Do not qualify for political rates Stations are liable for defamation and may censor Must have sponsor ID No requirement to offer or give time to opponents

Issue Ads Public file must show that station aired ads May have to show date and times aired and rates if the ad includes a message relating to any political matter of national importance Must include a list of officers, directors, or committee members of sponsoring organization Stations should be careful about misleading sponsor identifications

Sponsor Identification All spots must have a sponsor ID The ID must state that the ad is paid for or sponsored by the entity actually paying for the time Candidate spots paid for by someone other than the candidate must state whether they are authorized by the candidate Ads for federal candidates that refer to opponents have new BCRA ID requirements

Sponsor Identification If a spot comes in without an FCC- required ID, the station must add it to the spot A station-added ID may obliterate part of the ad A spot that arrives without an ID may be aired once without penalty – the ID must be inserted for all subsequent airings

Sponsor Identification – TV TV political spots must have a visual sponsor ID It must air for at least 4 seconds The ID must be in letters equal to 4% of the screen height or 20 scan lines BCRA added additional requirements, particularly for ads that refer to opponents

Speaking of BCRA … Bipartisan Campaign Reform Act All significant provisions upheld by Supreme Court in December 2003 Many provisions apply to candidates & stations are not obliged to enforce them FCC will not adopt new rules; will not punish broadcasters who exercise good faith discretion

Stand by Your Ad To obtain the LUC, federal candidates or their authorized committees must certify in writing to stations that: the political programming they will air does not contain a reference to an opposing candidate, OR if there is a reference to an opposing candidate, the spots will contain additional disclosures

Example- Ref. Opposition But Not Advocating Election/Defeat (Radio) At the end of the programming, an audio statement by the candidate identifying him or herself, the office being sought and that the candidate approved the broadcast Sponsor ID Chart

Stand by Your Ad Does it have to be a negative reference? How often should candidates certify? BCRA says at the time of purchase NAB suggests obtaining a certification for each buy Do stations have to check the accuracy of candidate certifications?

What Happens if a Candidate Doesnt Certify? Loses LUC for the remainder of the campaign FCC staff says that if a candidate loses the LUC for the primary, he/she can get it back for the election FEC Deadlock BCRA suggests that candidates would lose the LUC on all stations, but no way to enforce that

Political File Important because this is the only source of information for candidates about their oppositions appearances Stations may not respond to blind requests for avails or time FCC excludes political file from telephone access rule and new enhanced disclosure rule

Political File Must Include All requests for time (but not simple rate inquiries) The nature and disposition of the request (i.e., how did the station respond?) The rates charged The dates and times spots aired Any other non-exempt uses

Political File Information must be placed in the file as soon as possible Stations may provide exact times when spots aired upon request Stations must keep information in the political file for 2 years

Resources NAB Members can call the NAB Legal Hotline at Be Sure to Utilize Your Station Counsel PB-16 and Political Broadcast Catechism are available at