By: David Oxenford, Wilkinson Barker Knauer LLP
The FCC (11/2) released a Public Notice making clear that lowest unit rates (or lowest unit charges) end on Election Day. Some broadcasters had asked the question, fearful that there would be political advertising bought after Election Day to take positions on issues about counting the vote and other legal matters that could arise in a contested election and, if that advertising was bought by the campaign committees of those standing for election today, lowest unit rates would still be in effect. But the FCC made clear that Section 315 of the Communications Act, which requires that these rates be afforded to candidates, means what it says – that these rates apply only in the 60 days before a general election (and the 45 days before a political primary). In a 1978 decision, the FCC stated that selling political ads on Election Day itself was discretionary by the station (they did not need to sell ads on Election Day – in fact, at least in the past, some states actually prohibited those ads), but if they did, they needed to sell at LUC. In effect, that added a 61st day to the LUC period. But, as yesterday’s Public Notice makes clear, the low rates do not extend beyond Election Day itself.
Other questions have arisen as to whether any of the other political rules (e.g., reasonable access, no censorship, equal opportunities) extend beyond Election Day. While the Public Notice is silent on those questions, it would seem that, consistent with the precedent, they would not. In one old case, the FCC held that equal opportunities for a person running for the Republican nomination for president ended after the party’s convention has already taken place, seemingly showing that the candidacy ends when the terminal event in an election has taken place. Similarly, the FCC stated in a public notice in the 1970s that reasonable access clearly applied in the LUC windows before an election (and that other access before those windows would be judged on a case-by-case basis). The ruling on LUC applying to Election Day seemed to recognize that Election Day sales were discretionary (“where licensees sell time to candidates on election day, the lowest unit charge would be applicable on that day”). If reasonable access does not apply to Election Day, it would make no sense to apply it after that day is over. None of these cases suggest that any access would apply after the election. That would seem to make sense as all of these rules were adopted so that candidates can persuade voters to vote for them. After an election, any advertising pitches would not be made to persuade voters to vote, but instead would be asking that legislatures, judges or other government agencies act in a particular manner – more typical of an issue ad. An issue ad on a federal issue does have public file obligations (as yesterday’s Public Notice makes clear – and see our articles here and here on those requirements). Obviously, while the precedent seems to lead to one conclusion, these questions have not been addressed squarely by the FCC, and we will wait for tonight’s election results to see if any of them become relevant to tomorrow’s reality.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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