A Guide To Broadcasters’ Obligations During Election Campaigns

Now that NBC stations have reportedly given free air time to five Republican presidential candidates because of Donald Trump’s recent appearance on "Saturday Night Live"(1), this is a good time to take a look at the Federal Communications Commission’s regulation of political broadcasting matters. Some of these requirements can get very complicated, so this is necessarily a broad overview which does not deal with many details that arise in the implementation of these principles.

There are two important preliminary points. First, although this post refers to “broadcasters,” some of these rules also apply to satellite services DishTV and DirecTV and to the local operations of cable systems. For the sake of simplicity, this post will not deal with these circumstances. Second, there is a tendency to focus upon major federal elections, especially Presidential races. In fact, many of the most important applications of these rules are at the local level, especially in smaller communities, where a local station can have a powerful influence over city council, mayoral and similar races.

There are four provisions governing political broadcasting. Section 315 of the Communications Act addresses candidates’ “equal opportunities,” which are colloquially referred to as “equal time.” Section 312(a)(7) of the Communications Act affords a special “reasonable access right” to candidates for federal office. Section 317 of the Communications Act imposes duties to identify the sponsor of commercials. Finally, the Bipartisan Campaign Reform Act (BCRA) expanded some of the Communications Act’s disclosure obligations.

"Equal Opportunities" Under Section 315

Legally-qualified candidates are entitled to equal opportunities. (In essence, to be a legally-qualified candidate, one must be eligible to hold the office and have obtained a place on the ballot or demonstrate that there is a non-frivolous write-in campaign.) Subject to four important exemptions, when one legally-qualified candidate appears on the air (referred to as a “use”), legally-qualified opponents have the right to request an equivalent appearance (i.e., the same time of day and length of time at the same price). If a candidate appears for free, the opponent gets free time; if a candidate has purchased advertising, the opponent is entitled to equivalent time at the same price. Equal opportunity requests must be submitted within seven days of the opponent’s appearance.

To qualify as a “use,” the candidate’s voice or likeness must appear.

There are two additional considerations for presidential candidacies. First, since the equal opportunity obligation is on each licensee, even when the use is on a network, as when Donald Trump hosted “Saturday Night Live,” the requests must still be made to each station in states where there is an active campaign under way. (In practice, the affected stations and the network often agree that the network will serve as the agent for all of them in addressing the claim.) Second, if a candidate demonstrates that she is a legally-qualified candidate in ten states, she is considered to be legally-qualified in the entire country.

While equal opportunities rights can be very important to candidates in some circumstances, including placement and prices of advertising, it is important to stress that there are four exemptions that remove almost all “free” appearances from coverage under Section 315:

1. "bona fide newscasts,"
2. incidental appearances in a "bona fide documentary,"
3. "on the spot coverage of bona fide news events," and
4. "bona fide news interviews."

Since these exemptions were first enacted in 1959, the FCC has interpreted them ever more expansively. Thus, although the term “on the spot coverage of bona fide news events” was originally intended to exempt party conventions, the FCC has since ruled that coverage of campaign rallies (even if not broadcast live) and the broadcast of station-sponsored debates with some -- but not all -- candidates come within the scope of that exemption. Similarly, while Congress originally wanted the term “bona fide news interview” to apply to shows like “Meet the Press,” the FCC has said that virtually any interview qualifies as exempt. Among the programs that it has deemed to be exempt news interviews are “The Howard Stern Show,” “The Jerry Springer Show,” “Oprah,” “The Tonight Show,” and almost all talk radio shows.

"Lowest Unit Charge" Under Section 315

Candidates receive a very important advantage when they purchase air time - they pay the "lowest unit charge" for the time. This means that, in the 45 days preceding a primary or general election, they pay no more than what the station’s best advertiser would pay for the same amount of time at the same time of day.

The "lowest unit charge" provision has taken on even greater importance in recent years, because it only applies to candidates’ uses, but not to air time purchased by independent advertisers (typically Political Action Committees (PACs)) buying time to support or attack a candidate. As PACs have proliferated, the fact that they must pay more - sometimes much more - for commercials can confer a major advantage on candidates and their authorized party committees. For example, Politico recently reported that a PAC supporting Jeb Bush is paying eight times more than Marco Rubio’s campaign for similar air time on a Des Moines TV station for commercials scheduled to run just before the Iowa caucuses next month.

There is one additional condition that candidates for federal office (i.e., House, Senate or President) must meet to be able to obtain the "lowest unit charge." The so-called McCain/Feingold legislation adopted in 2002 included a “stand by your ad” provision that requires TV ads to show a picture of the candidate for at least four seconds and include a message that “identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast.” Political scientists generally agree that this small reform has had the effect of lessening candidates' use of harsh attack ads. While this has not affected PACs and other independent advertisers, the “stand by your ad” provision appears to have resulted in somewhat reducing the incidence of attack advertising.

"Reasonable Access" for Federal Candidates Under Section 312(a)(7)

In 1971, Congress gave federal candidates an additional important right not available to PACs or state-level candidates. Broadcasters are required to give them "reasonable access to or to permit purchase of reasonable amounts of time" on the station. This matters for several reasons. First, because candidates are entitled to the "lowest unit charge," when demand from regular advertisers is strong, stations often attempt to restrict the amount of time they make available to non-federal candidates, but they cannot do so for federal candidates. Second, federal candidates can insist on purchasing time at particular times that would not otherwise be available to them. This enables them to buy time on newscasts, sports programs and other programs that may be watched by a particular target audience. Similarly, federal candidates can purchase time of a duration that the station might not usually sell, so candidates can run a one or two minute biographical ad or buy a longer block of time for a "town hall" presentation.

Sponsorship Identification Under Section 317

Under Section 317 of the Communications Act, broadcasters are required to disclose on air who paid for any advertisement they carry. For product ads on TV, this is often met by showing the product. The FCC has ruled that, for political candidates, a candidate or a committee’s name must be shown on air for at least four seconds in a font that is at least four percent of the vertical height of the picture.

While Section 317 and FCC rules expressly provide that commercials “fully and fairly disclose the true identity” of the sponsor, and require broadcasters to “exercise reasonable diligence” to determine who that is, public interest groups have been unable to get the FCC to enforce these requirements. As a result, broadcasters have allowed sponsors to identify themselves using a generic name such as “Citizens for Good Government” even when the true sponsor is a particular company or person or a small group of persons. A number of complaints have been filed to get the FCC to enforce Section 317, but, as of now, broadcasters can comfortably ignore this requirement.

Public File Disclosure Obligations Under BCRA and Section 317

Under FCC rules adopted pursuant to Section 317, broadcasters have always been required to place certain information about their political commercials in a public file.

For candidate ads, the political file should state whether a request for time was accepted or rejected, the rate charged, the date and time the spot was scheduled to air, and, later, after the spot actually aired, the rate actually paid.

When a candidate makes a request to buy time, the file should list the name of the candidate or its authorized committee and treasurer.

When a candidate receives free time, the file should disclose the time, date and length of any non-exempt unpaid appearances.

For groups buying time about state and local issues, the public file must contain information about who purchased the time, including the name of the group and the names of its executive officer or board of directors.

BCRA has imposed additional public file requirements for groups buying time in connection with a federal election or dealing with a federal issue. For such purchases, the public file should contain essentially the same information as is required for candidate ads.

Online Disclosure

After years of effort, public interest groups succeeded in obtaining an important new requirement. As of August 2012, stations in the 50 largest TV and radio markets had to upload the contents of their public files, including their political flies, to the Internet. As of June 1, 2014, this requirement was extended to all stations.

If you want to see the political files of your local stations, you can view the FCC’s political file portal at https://stations.fcc.gov/.

The easy availability of stations’ public files has proven to be a significant benefit. Public interest groups, local and national, have been able to obtain a great deal of useful information about the electoral process. Reporters have been especially avid users of this information, and it has become commonplace for the press to report on spending developments using the contents of political files.

Conclusion

If this superficial overview isn’t enough for you, take a look at this guide written by a leading member of the communications bar. If even that isn’t enough, you are a hopeless political junkie and there is no cure.

1. For more on "equal opportunities" appearances, see Will Rick Santorum Be The Next Host Of Saturday Night Live?