By: David Oxenford,
Wilkinson Barker Knauer LLP
Last week, it was announced that the FCC would be considering some changes to its political broadcasting rules at its monthly open meeting in August. In some quarters (see, for example, this article), that raised concern that significant changes were coming in time for the 2022 Congressional elections. But, when the draft of the proposed changes was released last week, it turned out that the changes were instead very minor – almost ministerial. The proposed rule changes revise the Commission’s rules on two matters that are already part of the practices of stations and the lawyers who advise them on political broadcasting matters. Two changes are being proposed – one dealing with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and entitled to take advantage of the FCC’s political broadcasting rules, and the second being just a rule change to conform FCC rules to statutory requirements that broadcasters include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.
The first proposal would add use of social media and creation of a campaign website to the factors specified in the rules as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.” Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations. Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules. Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a write-in candidate must also show that he or she is really conducting a serious campaign for office (see our article here). The facts set forth in that showing determine how serious the campaign is. Since the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities are indicative of how serious a candidate is, stations were already reviewing online activities when assessing substantial showings. The FCC’s proposal would just make sure that what is already being done is spelled out in the rules.
The second proposal would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads). This requirement was imposed by the Bipartisan Campaign Reform Act almost 20 years ago but was never carried over into the FCC rules. The FCC has enforced these requirements, as evidenced by the FCC actions last year as to the public file obligations of stations for ads dealing with political issues of national importance, including FCC guidance issued in the form of admonishments to a number of TV broadcasters. See our article here on the FCC’s admonitions, our articles here and here on some of the follow-on controversy and our article here about the FCC’s limited reconsideration decision. But, even after all of that litigation last year, there is still some confusion among some broadcasters as to what the law requires. Perhaps updating the FCC’s rules to make the public file obligations clear will serve as a reminder to broadcasters of their obligations.
Watch for these matters to be considered at the Commission’s regular monthly open meeting to be held on August 5. The FCC will simply be adopting a Notice of Proposed Rulemaking looking to adopt these rules. If the Commission as expected moves forward with its proposal, comments on the Notice of Proposed Rulemaking will be due after its publication in the Federal Register.
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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