Political Broadcasting Advisory 2014

Introduction

More than ten years after adoption of the Bipartisan Campaign Reform Act (“BCRA”) of 2002, popularly known as “McCain-Feingold,” Congress’ and the FCC’s interest in political broadcasting and political advertising practices remains undiminished. Broadcast stations must ensure that a broad range of federal mandates are met, providing “equal opportunities” to all candidates using the stations’ facilities, affording federal candidates for public office “reasonable access” and treating all candidates for public office no less favorably than the station treats its most favored advertisers. Accordingly, it is imperative that broadcasters be very familiar with what is expected of them in this regulatory area, that they have adequate policies and practices in place to ensure full compliance, and that they remain vigilant in monitoring legislative, FCC, and FEC changes in the law.

In this environment, it is critical that all stations adopt and meticulously apply political broadcasting policies that are consistent with the Communications Act and the FCC’s rules, including the all-important requirement that stations fully and accurately disclose in writing their rates, classes of advertising, and sales practices to candidates. That information should be routinely provided to candidates and their committees in each station’s carefully prepared Political Advertising Disclosure Statement.

Many of the political broadcasting regulations are grounded in the "reasonable access," "equal opportunities," and “lowest unit charge” (“LUC”) provisions of the Communications Act. These elements of the law ensure that broadcast facilities are available to candidates for federal offices, that broadcasters treat competing candidates equally, and that stations provide candidates with the rates they offer to their most-favored commercial advertisers during specified periods prior to an election. As a general rule, stations may not discriminate between candidates as to station use, the amount of time given or sold, or in any other meaningful way.

It is also important to note that television stations affiliated with ABC, CBS, NBC, or FOX located in the top 50 markets must keep their political records in their online public inspection file located on the FCC’s website. Beginning July 1, 2014, all other television stations must commence placing new political file documents in the political file section of their online public inspection file as well. This requirement does not apply to radio stations at this time.

While this Advisory outlines some of the general aspects of the political broadcasting rules, there are dozens of possible variations on any one issue. Accordingly, stations should contact legal counsel with any specific questions or problems they may encounter.

Political Broadcasting Overview

There are two basic concepts that are fundamental to an understanding of the federal laws, rules, and policies governing political broadcasting. These are the concepts of a "legally qualified candidate" and "use" of a broadcast facility.

A person seeking the benefits afforded candidates by the political broadcasting rules must prove that he or she is a legally qualified candidate. A determination of whether and when a candidate has made that showing is a matter of the good faith judgment of the station, applying the rules set forth below.

"Legally Qualified Candidate"

To be a legally qualified candidate for FCC purposes, a person must:

(1) have publicly announced that he or she is a candidate;

(2) meet the qualifications prescribed by the applicable laws for the office he or she seeks; and

(3) meet additional requirements, which vary depending on the office sought and the type of election.

These additional requirements are:

For Primary, General, or Special Elections

A person seeking election to any office, or nomination to any office other than President or Vice President of the United States, by means of a primary, general or special election, in addition to (1) and (2) above, must meet the following additional criteria as to each state in which he or she seeks "legally qualified" status:

(a) he or she must have qualified for a place on the ballot; or

(b)(i)must have publicly committed himself or herself to seeking election by the write-in method; and

(ii) must be eligible under applicable law to be voted for by sticker, write-in, or other method in the state where he or she seeks election; and

(iii)must make a substantial showing that he or she is a bona fide candidate for nomination or office.

For Non-Presidential Conventions or Caucuses

A person seeking nomination to any public office, except President or Vice President, by means of a convention, caucus, or similar procedure must, in addition to (1) and (2) above, also make a substantial showing that he or she is a bona fide candidate for the office sought. No person seeking such a nomination is considered a legally qualified candidate for nomination by a convention, caucus, or similar procedure prior to 90 days before the beginning of the convention or caucus.

For Persons Seeking Nomination for President or Vice President

A person seeking nomination for these national offices must, in addition to (1) and (2) above:

(a) show that he or she, or proposed delegates on his or her behalf, have qualified for the primary or presidential preference ballot in the relevant state; or

(b) make a substantial showing of bona fide candidacy for nomination in the relevant state.

Any candidate for President or Vice President who meets these qualifications in ten states is considered to be legally qualified in all states.

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