The care and feeding of the broadcaster's public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations' files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I've conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children's television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station's compliance with the Children's television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.

One question has to do with the Annual EEO Public Inspection File Report that all broadcasters with 5 or more full-time employees must place in their file each year on the anniversary date of the filing of the license renewal applications by stations in the state in which their city of license lies. The most current EEO report must be posted on a station's website, if the station has a website. For radio stations, and in the past for TV stations, this meant uploading an EEO report to the station's website, and placing a link on the homepage where that report could be found. In the paper file, a station had to keep all of the EEO Public File reports back to the beginning of the current renewal period. Now, as TV stations have to upload all of these reports to their online file, TV stations need not actually host an EEO Public File Report on their own site, but they can instead link to the folder on their FCC-hosted public file that contains the EEO Public File reports.

The political file is another area where there are wrinkles that TV stations need to consider, as that part of the file was (and remains) the most controversial requirement of the online file rules, and the one most likely to be scrutinized by public interest groups. As the FCC's public notice released this week makes clear, political file records created prior to the August 2, 2012 effective date of the online public file rule do not need to be uploaded to the online public file – ever. Even though all TV stations have an obligation to upload other contents of their public file that were created prior to August 2 onto their online files by February 2, 2013, the Public Notice makes clear that this does not include political files contents that were created prior to August 2 – for both Big 4 Network affiliate stations in the Top 50 markets that had to upload into the online file all political file contents created after August 2, and for all other TV stations whose online political file obligations don't kick in until July 2014.

Items in the political file must be retained for two years.  Letters and emails from the public about station operations that broadcasters stations must maintain in their files are not to be uploaded into the online file, but instead will will remain in a paper public file of TV stations for the foreseeable future. Like radio stations, TV stations must continue to make public access available to members of the public during normal business hours. As we have written before, stations can face fines if they restrict access to the paper file, or if they question the motivation of those who come to visit that file. At the two recent seminars on the file, I was asked what "normal business hours" are. As far as I can see, these hours are not defined by FCC rules. But it seems to me that stations should be open, with their files accessible, for an 8 hour period each day, Monday through Friday, except for recognized holidays – the exact 8 hours probably being up to the reasonable discretion of the licensee. Remember to alert your receptionist or other studio employees to make the file available – and let them know where it is, so that a visitor does not get the run-around when they try to visit the file.

The political file remains a source of controversy – see this article by a DC public interest group claiming that the information in TV station's political files is voluminous and hard to interpret. This may well be a case of "I told you so", as broadcasters had suggested that the FCC, instead of requiring information about each order for political time being required to be in the file (and each change to an order, and information about when the order was fulfilled – all of which clog the file), that broadcasters instead simply post a weekly total of the amount of money spent by each political candidate on their stations. This summary information would have been much more readable and easily understandable by the public – yet the proposal was rejected by the FCC. Perhaps, over time, that issue will be revisited by the FCC. Sometimes too much information is not a good thing.

But, for now, broadcasters should be aware that their public files are being watched, and they need to be properly maintained. The FCC has not hesitated to issue big fines for public file violations in the past, and it will no doubt continue to do so in the future – both for radio and TV stations. Know the legal requirements and observe them!

Several months ago, a panel of the Ninth Circuit Court of Appeals created shockwaves throughout the noncommercial broadcasting community by holding that the Communications Act's prohibitions against the sale of advertising time by noncommercial stations was unconstitutional when applied to political advertising. That decision may be short-lived, as the full Court of Appeals, in reviewing the decision of the initial three judge panel, has indicated that the case should not be relied on as precedent in any other court decision until the full Court can complete its review. While one must be careful in pre-judging any court decision, especially when all we have to divine the intent of the Court is a two sentence order, this at least hints that the full Court may have misgivings about the initial decision in this case.

The initial decision by the three judge panel suggested that the limits on political speech placed unjustified burdens on the First Amendment, and that there was no overriding non-speech related objectives served by these restrictions. The panel suggested that political ads were different than other commercials trying to sell a service or product, as political speech did not sell a commercial product, but instead encouraged civic discourse not unrelated to the educational mission of noncommercial stations.  Many noncommercial stations saw the potential that this decision could lead to a new source for revenue to support their operations, while others expressed fears that it could erode the noncommercial nature of educational stations. The FCC, while questioning the decision, had initially stated that it would allow stations in the Ninth Circuit to accept political ads as soon as the panel's decision became effective (in the FCC's notice of proposed rulemaking asking for comments on other noncommercial fundraising issues). Given the Court's order in this case, we will wait to see if the FCC revisits this finding as to stations in the Ninth Circuit.  Look for a final decision in this case in the coming year. In the meantime, stations outside the Ninth Circuit should not look for any immediate relief, and stations in the states in the circuit should proceed cautiously in considering any political advertising on their stations.

In these last days before the November election, the third-party ads attacking candidates in various political races don't show any sign of letting up. In fact, press reports indicate that, if anything, the use of these ads is expanding to states not yet receiving them as, because there is so much money in these organizations and so few days left to spend it, they are throwing money into ads in states where there was thought to be little chance of their candidate prevailing. As we warned in our article about third-party political advertising, stations always have a bit of risk in running these ads, as stations have full discretion as to whether or not these ads air. Unlike candidate ads that cannot be censored, third-party ads are aired at the discretion of the station, and if the station airs an ad that is false, and injurious to a candidate, and the station either knows or should have known that the ad was false yet continues to air it (meeting the "actual malice" standard as applied by the Supreme Court to public figures in NY Times v Sullivan), the station theoretically has liability for the content of that ad.

While stations in political seasons often receive threatening letters about third-party ads from representatives of candidates that are attacked – suggesting that the station continuing to run the ad will lose its license or be sued for defamation – such threats rarely result in real penalties or even subsequent legal actions from the complaining parties. But in a complaint just filed in US District Court in the Eastern District of California, Congressman Jeff Denham has filed suit against the Democratic Congressional Campaign Committee for producing an allegedly defamatory attack ad, and against 5 local television stations that are allegedly running the ad even after Denham's representatives told the stations that the ad was false and requested that the ad be removed from the air. The Congressman is seeking injunctive relief (meaning that he wants the Court to order that the ad be stopped) and damages as appropriate.

One of the noteworthy aspects of this case is that the attacks are not ones that deal with the personal life of the candidate, but instead they are attacks on his voting record. According to the complaint, the ad makes the claim that the Congressman voted to protect his salary in the event of a government shut-down while endangering military pay if the government was temporarily unfunded. The complaint alleges that these claims are false, and that the legislation cited actually held back Congressional pay if the government closed, and that the Congressman always supported funding for the troops, issued a statement to that effect, and voted for legislation that required such funding. We have not seen the Answer to the Complaint, so we do not know the specific response yet from those defending the ad. But in the typical case, the ad's sponsor will be able to show other votes on other legislation that back up its claims. Oftentimes these votes will be on bills with dozens or hundreds of other provisions in them, where a legislator may have good reasons totally unrelated to the issue at hand for taking the position that they did on the bill – but often providing some level of support for the claims made. Because of the many votes on the confusing and complicated legislation that are taken in Congress, it is usually difficult for a candidate to support a lawsuit based on the defamatory nature of claims about a legislative record, as it is so difficult to prove that the claims are in fact false. But we have no way of knowing what support the sponsors of the ad have in this case.

But this case does put stations on notice that there are cases where candidates are willing to follow through on their threats to bring legal actions for political claims that they think are defamatory. Even if the claim is ultimately not successful, it will cause the station to spend the time and incur the cost of defending against the claim. This claim shows that stations really do need to exercise some degree of care in dealing with third-party political ads in these closing days of this election year, and insure that there is some back-up for the sometimes outrageous claims made in non-candidate political ads.

The FCC today acted on a reasonable access complaint by Randall Terry against a Washington DC television station, ordering the station to sell commercial time to his campaign as he is on the ballot as a legally qualified candidate for President in the state of West Virginia. The decision was based on the Commission's finding that a portion of the station's noise limited service contour ("NLSC") encompassed a county in West Virginia. Prior to the conversion of television stations to digital operations, the FCC's policy was that a station would have to give reasonable access to a candidate if the station provided more than de minimis Grade B coverage of the district in which the candidate was legally qualified. This decision held, for the first time, that the NLSC was the equivalent of the Grade B contour for reasonable access purposes. It further found that NLSC coverage of 54,000 people, 3% of the state's population, was not de minimis, and ordered the station to provide reasonable access to purchase advertising time on the station before next week's election.

We recently wrote about the reasonable access obligations of broadcast stations. We also wrote about Mr. Terry's attempts to purchase airtime on television stations during the primaries to air graphic anti-abortion ads. Now that Mr. Terry has secured a place on the Presidential ballot in certain states, we may see some of those ads on TV stations in the closing days of this election. Perhaps a scary thought for many on this Halloween night.  But, for television stations, this decision also establishes the extent of their obligations for the carriage of ads from candidates who may be running in districts that make up only a small portion of their total coverage area. Stations take note. 

We recently wrote about candidate ads, and the "no censorship" provision of Section 315 of the Communications Act.   Broadcasters can’t censor a "use" by a political candidate (a candidate ad that features his or her recognizable voice or image), and thus the broadcaster is not liable for the content of a candidate's ad. So no matter what the candidate may say – the broadcaster runs the ad as is.  Ads from third parties (PACs, SuperPACs, labor unions, right to life groups and other advocacy organizations) are, however, different. The “no censorship” provisions of the political rules don’t apply, so broadcasters are free to accept or reject third party ads based on the content of the ads.  Even though broadcasters can reject political ads that come from third-party groups, they rarely do, and we seemingly see just as many outrageous claims about candidates in third party ads as we see in the candidate ads that can’t be censored. Why don’t broadcasters more aggressively decide which ads are truthful and which are not, and reject those ads that are not accurate?

A recent article in the Tampa Bay Times asks that question, citing a political ad running on a television station which had, in a news segment, determined that the contents of the ad were not true. Why was the ad still running on that very station? I spoke to the author, and was quoted as saying that broadcasters don’t want to act as “gatekeepers.”  In more detail, I said that broadcasters don’t want to be in the position of being the arbiter of what ads are "truthful enough" to run and which ones should be rejected.  In the political world, the concept of “truth” is often in the eyes of the beholder. Whether a candidate a “big-spending liberal” or not is not a claim that cannot be factually evaluated. Even in cases where the import of specific legislation is involved, or questions of what a piece of legislation accomplishes or the purposes underlying its adoption can be seen by different people in the political world from very different perspectives, making determinations about “truth” very difficult.  In the eyes of some, a legislative act may be motivated by a desire to respond to constituent desires, but in the eyes of others that same act may be motivated by caving in to special interests or as part of some vast conspiracy to undermine the American way.  In most cases, broadcasters are reluctant to draw lines as to when an ad is truthful enough to run on the air and when it is not – instead leaving the debate over the "truth" to the marketplace of ideas. If someone thinks that an ad is untrue, they can buy their own ad and spell out their position on the issue. (See this article from the Denver Post  complementing TV stations on fact-checking and making their results available for the public to check on the veracity of political ads).  But does that station need to worry about liability for the third-party ad?

This question arises all the time. A station runs a third-party ad, and the politician who is being attacked by the ad will contact the station – demanding that the station pull the ad for its alleged untruthfulness. Sometimes that request for the removal of the ad comes from an attorney with some vague (or sometimes not so vague) threat of a legal action against the station if it continues to run the ad. Unlike candidate ads (where the station cannot censor the ad and thus the station must reject all requests to pull a candidate ad, and can continue to run the ad without liability), the station makes a choice when it runs a third-party ad. Ads that are not run by the candidate's official campaign committee (or by a political party with explicit authority and coordinated with the candidate), can be rejected based on their content – or for any other reason that the station may have – or for no reason at all (subject, potentially, to the Zapple doctrine about which we wrote here, which might require that some ads from supporters of an opposing candidate be run, though not necessarily any specific ad).

Because stations make a decision as to whether or not they are going to run a third-party ad, they theoretically have liability if the ad is untrue and the station continues to run the ad when it has been challenged by a candidate or another party attacked in the ad. As stations have potential liability for the content of these third-party ads, why aren’t more of these ads pulled from the airwaves when complaints arrive about their truthfulness? For the same reason cited above – it is very difficult to determine when a political claim is untrue, and only verifiably untrue ads are likely to lead to station liability.

In most cases, the risk of liability for a station running a political ad is relatively low. The most likely source of liability is for some sort of defamation contained in an ad. But candidates for office are “public figures” under the NY Times v. Sullivan standard, the standard set by a Supreme Court decision finding that a public figure must meet a much higher standard of proof to justify any claim. For there to be liability, not only must a plaintiff show that the statement that he or she is complaining about is untrue, but also that the station ran the ad either knowing that it was untrue or that the station otherwise acted with “malice” – e.g. they should have known that the statements made in the ad were untrue.  In most cases, a station will only have reason to believe a political ad is untrue if they were put on notice of the untruth, and they will face liability only if they continued to run the ad once they knew or should have known that it was untrue and legally damaging to the person being attacked.   For there to be any sort of liability, the false claims made in the ad must be factual, not opinion. In most cases, minor inaccuracies in a statement will not lead to liability if the gist of the statement is accurate.

Most routine campaign claims are unlikely to lead to liability – unless they make specific claims about the character or integrity of the candidate. If a candidate is accused of some sort of personal indiscretion, a crime or specific instances of dishonesty, the station needs to be especially careful running the ad without some demonstration that the ad is true. This kind of allegation is the type that can, if false, lead to liability. But for most of the typical campaign claims about what a candidate’s election will mean for the public in the future, or some interpretation of what his or her voting record means, liability is very difficult to prove. Nevertheless, the station should ask for substantiation of any claim made in a third-party ad either when the station believes it to be untrue or when it receives a claim that statements in the ad are untrue.

Once the information supporting the ad is provided, the station must evaluate whether there is any basis for the claim.  The station needs to determine whether the ad is demonstrably untrue.  What is then done with the ad may call for a nuanced determination as to whether there is any real likelihood of liability, or whether the station simply is uncomfortable with the ad as prepared. In some cases, the station may just not like the ad - and it is justified in pulling the ad for those reasons alone (see, for instance, when one station in Iowa decided to refuse to run the Colbert SuperPAC ads).  Other stations may have more tolerance for risk.  On close questions, where there are statements that seem to be false, and where they attack a candidate for some personal characteristics, it’s probably time to call counsel to see whether or not you should pull the ad. While liability for a broadcast station for the content of a third-party political ad is not common, it is also not unheard of – so stations need to approach this area with care.

For more in our series on the political broadcasting rules, see our articles on lowest unit rates, equal opportunities, and reasonable access. 

How can political attack ads get away with taking out-of-context statements of the candidates that they are attacking, and twisting these statements to convey meanings that were never intended by the candidate who first uttered the words? And how can political ads take a single line of an incredibly complex piece of legislation and use that legislation to allege that a candidate has violated some core belief that the candidate espouses on the campaign trail? Do stations have liability for these attack ads, and must they react when the candidate being attacked asks that the ad be pulled? In the fourth of our series of political broadcasting refreshers (following those on lowest unit rates, equal opportunities, and reasonable access), we’ll address the question of the no censorship provision of the rules and what rights stations have to deal with the content of political ads.

Starting with the basics, the FCC rules (stemming from Section 315 of the Communications Act) prohibit broadcasters from censoring the content of advertising that is a “use” by a candidate. Essentially, that means that the broadcaster cannot reject an ad that is sponsored by the candidate or the candidate’s official campaign committee, if that ad has the recognizable voice or image of the candidate somewhere in the course of the ad. No matter how outrageous the statement of the candidate may be, the station cannot refuse to run the ad (with the limited instance of ads that are legally obscene or which otherwise may violate some Federal felony statute). So, even if an ad by a candidate may be totally untrue in claims made about the candidate’s opponent, or even if it could give rise to other civil liability (for instance if it is defamatory or a copyright violation), the station cannot refuse to run the ad.

Stations are often the recipients of letters from the candidate being attacked asking that the ad be taken down, and threatening legal action if the ad is not removed from the airwaves. Stations cannot by law take down these ads based on their content, and thus have to refuse these requests. But stations don’t need to fear legal liability for running such ads, as the Supreme Court has held that, as the station cannot refuse the ad, it has no liability for the content of the ad. So candidates who are defamed by their opponents ads, or a copyright holder whose intellectual property is used by a candidate without permission, cannot sustain a suit against the station. Instead, their action is against the candidate who produced the ad.  See our articles here and here for more on this topic. This is much different than the situation where such claims arise in the ads of third parties (PACs, SuperPACs, Labor Unions, religious organizations or most political party advertising not specifically coordinated with the candidate). We’ll write about those ads later this week.

The no censorship provision can put the station into uncomfortable positions, having to run ads that may have messages that the station does not endorse, and sometime running ads that the majority of its listeners find offensive. From time to time, we have seen candidates run for Federal office so that they can reasonable access to airtime on a station, effectively compelling stations to run at least some of their ads, then conveying a hateful or disturbing message. We’ve seen it by candidates espousing racist messages, or those who air graphic anti-abortion ads in times where children may be watching (such ads not being legally obscene). As we have written before, in this crazy world of political broadcasting, station have to run such ads, though they can air a disclaimer prior to the ad that the ad is a paid political message that the station has an obligation to run unedited, and that it does not reflect the views of the station, and some may find it offensive. In doing so, stations probably should run that same disclaimer on milder ads of the candidates competing with the candidate who runs the offensive spot, just to avoid equal opportunities issues.

No censorship applies to state and local candidates as well as Federal candidates. As we wrote the week before last, reasonable access does not apply to state and local candidates.  Stations do not need to sell time to candidates in any of these local races. But once a station does, it needs to apply the no censorship provision to all candidates in the race, just as equal opportunities and lowest unit rates apply to all candidates whose spots are accepted by a station.

Our next article will deal with the ads of third parties and how the “no censorship” provision does not apply to them. Thus, stations need to proceed more carefully when the content of these third-party ads is challenged.

In recent days, we’ve been writing about political broadcasting topics in anticipation of the November election. We provided a refresher on the basics of lowest unit charges on Monday, and equal opportunities on Wednesday.  Today, we’ll look at reasonable access – how much time must stations sell to political candidates (or give to them if they would rather meet their obligations through free time, which few stations are willing to do). Reasonable access requires broadcasters to make reasonable amounts of time available to candidates for Federal office – in all classes and dayparts on all commercial broadcast stations (noncommercial stations were exempted by Congress about a decade ago when candidates started to demand free time on these stations). With the expected onslaught of political advertising coming up in most battleground states, stations fearful of having to devote all of their commercial time to election advertising wonder just how much time is reasonable?

The FCC leaves the determination as to what is “reasonable” to the reasonable discretion of the station, as long as access is provided to all classes and dayparts on the station.  The discretion, though, is to be exercised in coordination with the political candidates themselves. For Federal candidates, stations should not put up-front limits (e.g. in a political rate card or on a political disclosure statement) as to how many spots they will sell to any Federal candidate in any specified period of time. Instead, stations are supposed to engage in a give and take with the candidate, accessing the candidate’s needs and desires and weighing them against the needs of the station to provide advertising to other clients.  After hearing the needs of the candidates, it is up to the station to reach a determination as to what is reasonable. If stations give candidates at least some access to all classes and dayparts on their stations, even if it is not as much as the candidate wants, stations have traditionally been given the benefit of the doubt by the FCC.

In assessing what is reasonable, stations can look at a number of factors. The factors include the number of other races in a station’s coverage area, the amount of time that the candidate has already purchased, the timing of the request, and the demands for time by other non-political advertisers. Thus, stations in a rural area that covers a single Congressional district may have obligations to provide more time to any single candidate than stations in a major metropolitan area, where there may be multiple Federal Congressional races each seeking access.  The amount of time that needs to be provided to any single candidate may also be less very close to the election, when the demand from other candidates is likely to be the greatest.  Stations do not need to provide wall-to-wall political advertising. 

The only daypart where an exception is made is news - where the FCC has said that stations do not need to provide candidates access to their newscasts.  They can provide that access, or they can provide access only to certain portions of the newscasts.  This exception was provided as the FCC feared that some political ads could be confused with news content.  However, full-time news stations cannot use this exception to totally exempt themselves from reasonable access - as all broadcast stations have a statutory obligation to provide some access.  Nor can a company that owns a cluster of radio stations take Federal political ads on only certain stations.  While a station owner might think that a candidate may not really want to buy a particular music station, if the candidate demands access to that station, reasonable access must be provided even if the owner believes that the ads would be more appropriate on their news-talk station.   

It is a common misconception that candidates can come in and demand the exact time that they want for their ads – getting placement on specific programs on specific days and even at specific times. In fact, stations have much discretion to direct candidate’s ads to times comparable to that requested by the candidates, and to manage access to particular programs on particular days, as long as the station, during the course of the election, accords some access to all classes and dayparts. By offering the candidate a spot in next week’s episode of a popular program if this week’s episode is sold out, or by placing the ad in a program that offers a similar audience, the obligation to the candidate can be met.

Like many other areas in political broadcasting, this is not an easy dance, and the devil is in the details, but with practice and diligence, a station can manage the process. One thing that makes the process somewhat easier is that state and local candidates do not have a right of reasonable access. As we have written before, while stations can afford time to state and local candidates (and, if they do, all other political rules apply including lowest unit rates and equal opportunities), stations do not have to provide such access. Stations can refuse to sell time to candidates in particular races (as long as they treat all candidates in the same race in the same way), while selling time to other state and local races.  Stations can also limit state and local candidates to specific days or dayparts, again with the caveat that all candidates for the same race are treated in the same way. As there is no right of access for state and local candidates, stations can establish up-front limits on the amount of time that they sell to these candidates -setting limits on the number of spots per day or per daypart that they will sell in particular state and local races.  

Next week in our series on the FCC's political broadcasting rules, we'll start with an article on the no censorship requirement, which will include an explanation of why we see so many ads making claims that we know are making claims that are simply not true.

Now that we are in the political window, we’re doing a series on the basics of the FCC’s political broadcasting rules. On Monday, we covered lowest unit charges. Today’s topic is equal opportunities. Many think of this as a straight-forward issue – just requiring that you provide equal time to competing candidates. But the nuances are what makes equal opportunities much more complicated.

At its most basic level, stations are supposed to treat competing candidates in the same way. Most people think of the issues arising to the extent that stations need to give time to all candidates for an office when they give any candidate air time. In most cases, the free airtime given by stations is not an issue, as there are many programs and appearances by candidates that are exempt from equal time. For instance, the appearance of a candidate in a regularly scheduled bona fide news or news interview program, or in on-the-spot coverage of a news event, is exempt from equal time. As we’ve written before many times (e.g. here and here), that exemption has been broadened to include any program on a station that is editorially under the control of the station, that does not use time for a partisan purpose (but uses some good faith quasi-journalist or newsworthiness discretion as to who to include in the program), and which regularly covers issues in the station’s service area. The exemption has been interpreted to include programs as diverse as Entertainment Tonight, The Howard Stern Show, and Phil Donahue. For most station, any program that features talk (whether it be a radio morning show or a local TV program), and which from time to time interviews newsmakers, can also interview candidates without having to deal with equal time issues. Thus, concerns about giving free equal time usually only arise when a candidate appears in some scripted entertainment program (like in the days that Ronald Reagan and Arnold Schwarzenegger movies were pulled from TV stations whenever they ran for office), or perhaps in a sports program (though the recent appearances of Presidential candidates in football pre-game shows demonstrates that, even in some sports programs, the interview of a candidate may not give rise to any equal time issue). But there are other places that the equal opportunities doctrine is still important.

The employee candidate, for instance, can still give rise to equal time issues. An on-air employee of the station who decides to run for political office (whether it be a local office like the school board or town council or some bigger political office), creates an obligation for the station to give equal time to every opposing candidate, if the opposing candidate asks for equal time within 7 days of the candidate’s on-air appearance – even when the employee-candidate does not mention his political race. We’ve written about this issue before, and how stations are faced with the dilemma of either risking having to give equal time for opposing candidates (who can make a political pitch even if the employee-candidate was just doing the weather or play-by-play on a sportscast), having to take the candidate off the air, or having to work out a deal with opposing candidates to waive their equal time rights. And this issue, like all equal opportunities issues, arises once a candidate is legally qualified, not just in the 45 and 60 day political windows.

Political debates have been considered, in recent years, as being exempt from equal opportunities as on-the-spot coverage of a bona fide news event, even if the station itself is organizing the debate. But, as we have written before (here and here), the decision as to which candidates to include must be made based on some defined standards to judge the newsworthiness of candidates, basing the decision on meeting some pre-defined standing in the polls or some other defined criteria other than party affiliation – and can’t be used to exclude independent or minor party candidates just because the station only wants to include the major parties. Issues about what to do when one candidate decides not to show up also present interesting issues (see our article here).

But, for this political season, the equal opportunities issue that may give rise to the most issues for stations is in the scheduling of candidate advertising. With the spending in the upcoming election expected to break all previous records and where, in “battleground states”, it seems like every ad break for the last several months has already been taken up by political advertising, stations must be careful about overscheduling political advertising for one side or the other. As a candidate has the right to match his or her opponent’s advertising schedule if they request the time within 7 days, if a station lets one candidate in a race buy too much time in the weeks immediately preceding an election, when an opposing candidate gets a last minute surge of money and comes to the station to match the first candidate’s schedule, the station may have to preempt other advertisers (or even programs), or risk contractual issues by trying to void the agreement with the first candidate, in order to meet its equal time obligations.  So sell candidate schedules with an eye toward making sure that you have availability to schedule equal time spots from opposing candidates in the waning days of an election.

As we said with lowest unit rates, this summary just scratches the surface on equal time issues – as in practice there are many nuances of these rules that make their application more complicated than they seem (and, as set forth above, they are already pretty complicated). Watch for our next article on “reasonable access” – how much time stations must provide to political candidates.

Now that the Democratic and Republican conventions are over and the candidates begin the final sprint to the November 6 elections, the political broadcasting season goes into overdrive. Effective last Friday, lowest unit rates are in effect. In this year which will probably break all records for political spending, is your station ready to comply with all of the political rules? We thought that we’d provide a series of articles on some of the basics of the FCC political broadcasting rules, to make sure that your station is prepared to deal with the most common issues that arise in a political season.  Today, as the lowest unit charges have just kicked in, we’ll hit some of the common questions that we get about these rates.  In coming days, we'll address other areas of the FCC's political rules.

Essentially, lowest unit charges guarantee that, in the 45 days before a primary and the 60 days before a general election, candidates get the lowest rate  in any class of advertising time for a spot in that class that is then running on the station. Candidates get the benefit of all volume discounts without having to buy in volume – i.e. the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class.  But there are so many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates. Even on the smallest radio station, there are probably several different classes of spots.  For instance, there will be different rates for spots that run in morning drive and spots that run in the middle of the night. For each of these time periods with different rates, that class of time has a different lowest unit rate. On television stations, there are often classes based not only on daypart, but even down to the individual program. Each rotation on the station is its own class, with its own lowest unit rates (e.g. a 6 AM to noon rotation is a different class than a 6 AM to 6 PM rotation, which is different from a 24 hour rotator – and each can have its own lowest unit rate). Even in the same time period, there can be preemptible and non-preemptible time, each forming a different class with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or having different rights attached to it (e.g. different levels of preemptibility, different make-good rights, etc.), has a different lowest unit rate.

One question on which we’ve written many times before, is one that still comes up with surprising regularity – that is whether these rates apply to state and local candidates, as well as Federal candidates. Indeed they do – so if your station is running advertising for candidates for mayor or city council; or for governor or the state senate; or even for the board of education, municipal court judge, or state attorney general – they and any other candidate in any public election gets lowest unit rates. See our past articles on this topic here and here.

In this season where PACs, Super PACs and other non-candidate interest groups are buying much political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Stations can charge these advertisers anything that the station wants – no need to stick to lowest unit rates.

We are hearing that stations are facing the one exception to the above paragraph, where political parties are requesting lowest unit charges. In some cases, parties may in fact be entitled to these rates – but only where they are using specific types of donations subject to political campaign limitations, and where the advertising purchases are authorized and “coordinated” with a candidate (and, in Federal races, where the spots make that coordination clear with the “I approved this message tag”). Not all party spots are entitled to this treatment – only this special class of coordinated expenditures – and stations are entitled to get written confirmation from the party or the candidate that the expenditures are coordinated under the election laws. If not coordinated, the parties get charged the same as any other third-party organization.

Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates cannot be forced to buy packages on stations to get low unit rates. Instead, the package must be broken down by the station into a price per spot.  That is done by allocating the package price to the various spots of each class that are contained in the package. Then the allocated rates, on a unit basis, are compared to other spots of the same class that have been sold on the station to determine if the spots from this package have any impact on the station’s lowest unit rates. This allocation is done in an internal station record, which does not need to go into the file, and does not need to be revealed to the candidate.  Other than the station, only the FCC will see it should they do some sort of inspection.  We wrote more about this process of allocating spots in a package here.

And these are just some of the myriad issues that arise in computing lowest unit rates. Stations need to be familiar with these rules, and apply them accurately through the remainder of the lowest unit rate window. Watch for our next installment on political broadcasting basics – when we write about equal opportunities.

 The Online Public File for television stations is now a reality. While appeals of the imposition of the rules remain pending, both the FCC and the US Court of Appeals denied stays of the August 2 effective date for the new requirements, so full-power and Class A television stations should now be complying with the new obligations to maintain their public files online. The Online Public File is hosted by the FCC, and uses the FCC’s newly created system for uploading, storing and accessing the documents. So far, the system seems to be functioning with a minimum of problems, though one or two glitches have been reported here and there.

Documents that stations file with the FCC are supposed to be uploaded to the Online Public File automatically by the FCC, so individual stations do not need to worry about importing them into the new system. We have heard that this may not have occurred in every instance, so stations should check their files to be sure that the proper uploading has in fact occurred. Other documents will need to be uploaded by the stations themselves, and stations will also be responsible for maintaining and monitoring the file, and deleting documents when their retention is no longer required.

Just what are the requirements for the new online public file? The FCC has put out its own Frequently Asked Questions, available here. There are many other questions that will no doubt arise over time.  We have tried to do our own summary of the obligations as we know them in the answers to common questions that we are getting about the obligations under the new rules.  Those questions and answers are set out below.

What Stations are Subject to the New Rules?

All television stations, both commercial and noncommercial, must comply with the new rules. This includes Class A TV stations, but not Low Power TV or TV translator stations.

Radio is not subject to the rules – yet. The FCC has said that they plan to expand the rules to radio at some point in the future, but want the experience dealing with TV stations first.

Where Do You Go To Get Access to the Online File?

Station access is available at https://stationaccess.fcc.gov/. The public gains access to the various station files by going here: https://stations.fcc.gov/

What Documents Will the FCC Post on the Online File?

All documents that are electronically submitted to the FCC, and which must be placed in the public file under current rules, will be automatically posted by the FCC onto a station’s Online Public File. This will include documents such as the station’s Biennial Ownership Report, Children’s Television Quarterly Reports, License Renewal Applications, and Construction Permit Applications. The FCC will also post a copy of the FCC license for the station, and a copy of the Public and Broadcasting, A Procedure Manual, the FCC publication that all stations need to keep in their files.

What Documents Must the Station Upload?

Other documents currently required to be in the Public File will have to be posted by the station. This will include, most prominently Quarterly Issues Programs Lists and Annual Equal Employment Opportunity Program reports. Other documents that must be uploaded include: Time Brokerage and Joint Sales Agreements; quarterly certifications on meeting commercial limits for children’s television programming; must carry/retransmission consent elections; and contracts and other documents that must be filed with the FCC (e.g. network affiliation agreements, articles of incorporation or by-laws, agreements like options or rights of first refusal that relate to future ownership of a station, and other contracts that limit the operational decisions of broadcast stations). But the most voluminous requirement, particularly in an election year, will be to upload political broadcasting material (starting with Large stations, as described below).

Is There Other Information that A Station Needs to Provide for its Online Public File?

In addition to the documents referenced above, a station needs to provide in the Online Public File the location of its main studio and the telephone number for the station. The Online Public File will also need to contain the email address of a contact person at the station who can answer questions about the public file.

What Should Have Happened on the August 2 Effective Date?

On August 2, all stations must start to place all new public file material into their online public files instead of in their physical files (except as noted below). For “Large” stations (Big 4 Network Affiliates in the Top 50 markets), this includes all political file materials. For smaller stations – those outside the Top 50 markets and those which are not affiliates of the Big 4 networks – no political file material needs to be placed in the file until July 1, 2014.

What Does the Effective Date Mean as a Practical Matter?

Obviously, for Large stations, the impact is immediate – in connection with the need to upload political materials. For other stations, the impact is less immediate. Unless, soon after the Effective Date, a station has a complaint filed against it, correspondence with the FCC that needs to be included in the public file, or a new contract or agreement that would need to be filed with the FCC, the first real need to upload documents will be in early October. Quarterly Issues Programs lists need to be uploaded for all stations by October 10, and Annual EEO Public File reports need to be uploaded in states that have an October 1 anniversary date for their required license renewal filing.

When Do Documents that Were Created Before the Effective Date

Need to Be Uploaded to the Online Public File?

All stations need to upload past public file documents (except past political file documents and letters/e-mails from the public) onto their online public file within 6 months of the effective date – or by February 2, 2013. This would include past Quarterly Issues Programs Lists (back to the beginning of the current renewal period) and past Annual EEO Public Inspection File Reports, also to be maintained for the entire license period and up through the FCC’s grant of the station’s next renewal application.

The only exception is for political file documents created before the Effective Date. These documents do not need to be uploaded into the online file. As such documents need only be retained for two years, many of these documents will quickly be irrelevant.

What is Included in the Political File?

In the FCC’s order adopting the obligation for the Online Public File, the FCC refers to the political file only by reference to Section 73.1943 of the rules. That section of the rules deals only with the required information about the sale of time to candidates themselves and the information that needs to be posted about such purchases.

Commonly, most stations talk about the “political file” more broadly, including information about third party purchases on Federal issues (including Federal elections), which is covered in Section 315 of the Communications Act and not in the Commission’s rules. Some also look to Section 73.1212, where there are public file disclosure obligations for non-Federal issues of public importance. The FCC has been back and forth on this issue, but is seemingly now taking the position that all of this kind of documentation about third-party purchases on political campaigns is part of the station’s “political file.” But this advice has changed several times, so stations need to consult with their own counsel about this ambiguity in the new rules.

After the Effective Date, What Paper Public File Records Must be Retained?

Letters and emails from the public written to stations about their operations must be kept in a paper file. The FCC decided that these letters and emails could infringe on individual privacy if posted online. Thus, these communications will not be uploaded to the Online Public File, but instead retained in a paper file at the station throughout the current license term and up through the next renewal.

Political files created before the Effective Date must be retained in the paper file for two years.

Do Stations Need to Keep Back-up Files?

For the most part, stations do not need to be able to recreate the public file documents uploaded to the new Online Public File, as the Commission's system has been designed to provide redundancy to minimize downtime.  However, because of the time sensitive nature of political file information, the station must have political information available for inspection in the event that there was to be some failure of the new system. These political back-up documents do not need to be maintained in a public file, but stations should keep them in some internal records in case they are needed. The FCC has indicated that stations will be able to “mirror” the station’s online public file onto a local station server each day, and in this way maintain a daily backup of the station’s political file. Stations should insure that they are taking steps to have this back-up documentation of the political file available in case it is needed.

Do Stations Need to Remove Documents from the Online File?

While the FCC will automatically upload FCC applications and other FCC filings to the Online Public file, the FCC will not automatically remove these FCC submissions from the online file once the required retention period has passed. Stations need to do maintenance of the online public file on their own, removing files that no longer need to be retained.

Do Stations Need to Publicize the Existence of the Online Public File?

A link to the station’s Online Public File must be placed on a station’s website. The station’s website also must list the name and contact information for a person at the station who can assist the disabled with accessing the online public file. While the FCC will be responsible for any technology on the site necessary for accessibility, the station must still be prepared to assist those that need help in accessing the site.

* * * * * * * *

The Online Public file will be reevaluated by the FCC in the coming years. That is, of course, if it survives the appeals currently being prosecuted against it. While the FCC and the Courts have not stayed the effective date of these new public file rules, the appeals at both levels continue. So start complying with the new rules – but watch the news to see what developments may occur in the near future. And look for updates on the other issues that certainly will arise once people begin to use the system.

Updated: 8/14/2012, 5:00 PM EDT to correct the answer to the Question on the Back-up files that stations need to maintain to reflect that only political files need to be available immediately in the event of a failure of the Commission's system. 

Does a broadcast station need to book a political ad buy for an agency purporting to be representing a candidate, but refusing to reveal who that candidate is? We’ve recently received this question from a number of broadcast stations in a number of states, as agencies seemingly are jockeying to tie up valuable commercial time in advance of what is likely to be a hotly contested election in November. This seems to be happening particularly with stations that have coverage areas that include parts of certain “swing states” in the Presidential election, or in states with crucial Congressional or Senatorial elections. It seems to us that, unless and until you know that there is a real candidate, there is no obligation for a station to book time for a hypothetical candidate or candidate to be named later.

Booking time for an unknown candidate raises numerous issues for a station. How can a station account for the sale of that time in its political file? If it doesn’t know who the candidate is, it can’t place the required information (which includes the candidate’s name) into the political file. Booking time for a political candidate gives rise to equal opportunities obligations, even outside the 45 and 60 days political windows. How can you determine to whom you owe equal time when the station itself doesn’t even know who the candidate is? And, if the agency even refuses to reveal if it is a Federal or state campaign for which it plans to buy time, making time available to an agency on behalf of an unknown candidate that turns out to be a state candidate may cause the station, through the application of equal opportunities, to have to sell time for a race to which it did not intend to provide access, or to open up dayparts to that state race when it did not intend to offer those dayparts to state candidates. In fact, without knowing the candidate, how can the station assess whether the candidate is legally qualified, or that the time is being purchased by an authorized candidate committee? 

A more difficult question involves giving out rates to agencies that don’t reveal the name of the candidate on whose behalf they are acting. Many stations may be willing to send out their political rate card and disclosure statement to an agency, even if they don’t know who the candidate is, in order to curry favor with the agency when the time actually comes for that agency to buy spots. Other stations may be more reluctant to do so as they don’t want to be sending detailed information about their least expensive rates to just anyone.  Of course, individual lowest unit rates may be available in the station’s public file (and soon, for TV stations, online). But that will reveal only specific rates for specific buys, not all rates for all of the station’s principal classes and dayparts as will be revealed in a full disclosure statement. The Commission has never declared the political rate card or a written political disclosure statement to be public documents that have to be provided to anyone who asks. In fact, the Commission has never even required that they be in writing – though most stations follow good practice and do put them in writing to ensure that they make the same disclosure to all candidates who ask, as required by the Commission.

Neither of these is an easy question, and these thoughts are just for stations to ponder in making decisions on these types of early political season calls. Stations should always check with their own counsel on questions like this – especially if faced with an insistent buyer who refuses to identify the candidate for whom they are buying.

In recent days we have seen political action committees (PACs) claiming they are "prohibited" from running political ads in primary states due to "new rules" regarding "electioneering communications."  As explained below, these claims are incorrect.  What they are really doing is trying to avoid the need to reveal the identity of their contributors, following a US District Court decision in March.

Under Federal Election law, an "electioneering communication" is a broadcast, cable or satellite communication that refers to a clearly identified candidate for federal office within 30 days of a primary or 60 days of an election, targeted to 50,000 or more people in the state or district the candidate seeks to represent. For President and Vice Presidential candidates, an "electioneering communication" is one that can be received by 50,000 or more people within 30 days of a state primary or the nominating convention.

By federal statute, sponsors of "electioneering communications" must disclose the names and addresses of each donor who contributed $1000 or more to the sponsoring organization. This is is the provision that led to the US District Court decision at issue.

The Federal Election Commission (FEC) enacted a rule requiring disclosure of donors whose donation was made "for the purpose of furthering electioneering communications."  Maryland Rep. Chris Van Hollen challenged this rule on grounds that it created a loophole in the law.  According to Van Hollen, fewer than 10% of the contributors to electioneering communications in 2010 were disclosed to the FEC.

The US District Court agreed with Van Hollen, holding that the statute requires disclosure of ALL contributors of $1000 or more to organizations placing "electioneering communications," even if the contributions were not made for the specific purpose of funding the electioneering communication.  The number of contributors that would need to be disclosed under this ruling could be quite high, particularly since the US Supreme Court allowed corporations and unions to fund independent electioneering communications in its landmark 2009 Citizens United case discussed here.

 So, while some PACs erroneously claim they are "prohibited" from running electioneering communications due to a recent "FCC" ruling, the truth is that they do not want to subject themselves to the broad disclosure requirements established in the Van Hollen case.  The case is on appeal to the DC Circuit, so we should soon know whether the FEC or the US District Court was right in their respective interpretations of the disclosure statute.

In the meantime, "electioneering communications" can be avoided by not referring to a specific candidate, by avoiding states where primaries are to occur within 30 days or by communicating the message to fewer than 50,000 people.  While these ads will still be considered "independent expenditures" that have their own FEC reporting requirements, they are not nearly as burdensome as those recently imposed by the court on "electioneering communications."

This past week's political news seemed to be all about Donald Trump and his possible run for the Presidency - and his plans to announce his intent to run on the season finale of The Apprentice.  When, a week ago, we wrote about the President declaring his candidacy, there was little interest in our post, and there seemed to be little news attention in general to that announcement.  But when Donald Trump started making noise about his possible Presidential run, and his plans to announce his intent on the season finale of The Apprentice in May, our phones started ringing, asking how can he do that?  My partner David Silverman was quoted in a Huffington Post article, while my analysis was misunderstood in a Hollywood Reporter legal blog (see why I was misunderstood below).  But the question remains - can Trump continue on The Apprentice while signaling his interest in running for President?

In fact, there is no FCC rule that prohibits a broadcaster from giving airtime to a political candidate on any kind of program, as long as they are willing to provide equal time to opposing candidates.  There may be other legal issues involved in giving time to a candidate as it may in effect be a deemed a campaign contribution to the candidate (an issue apparently for PACs as well, as explained by that legal scholar Steven Colbert, here), but the FCC's equal time rules don't prohibit the appearance of a candidate on an entertainment program, they only demand that the stations that broadcast the program give equal amounts of time to opposing candidates who ask for it - if the opponents ask for it within 7 days of the candidate's appearance.  And that is often the first issue - will the opposing candidate ask for it?  None of the Republicans asked when cable networks continued to run episodes of Law and Order featuring Fred Thompson, even after Thompson declared his candidacy for the Republican nomination.  Nor did other candidates request time after there was a parade of candidate appearances on Saturday Night Live during the last election (see our post on this pattern of candidates passing on their equal time rights).  But would a Trump declaration of a candidacy on The Apprentice even face that minimal risk?  Probably not.

For a broadcasters to be forced to honor a request for equal opportunities (or equal time as many call it), there must be a "legally qualified candidate" to make the request.  We'll look at that issue in a moment.  But even more fundamentally, there must be a legally qualified candidate who makes the appearance that triggers the requests for equal opportunity.  And, right now, Trump is not a legally qualified candidate, and one wonders whether he ever will be.  Years ago, when Howard Stern was the King of New York radio, he for weeks claimed that he was running for Governor of New York - and started aggressively campaigning for the job on his morning radio show.  Why did the opposing candidates (who were at the time, I believe, Mario Cuomo and George Pataki), not get equal time on the radio stations on which the Stern program was broadcast?  Because he never became a legally qualified candidate.  He talked on and on about running but, when the time came to file the necessary papers to qualify for a place on the ballot, he passed, and dropped his campaign.  That same ting seemed to happen with that aforementioned legal scholar, Mr. Colbert, and his intent to run in the South Carolina presidential primary in 2008 (see our post here).

In addition to Trump not being a legally qualified candidate, there may well be no other candidates yet ready to claim any equal opportunity rights, as there currently are no other declared candidates, who have filed papers with the FEC declaring their candidacy, to qualify as official candidates. There has been lots of discussion about exploratory campaign committees - but few if any real candidates.  What about the President you might ask?  Good question - but right now, we are, at most, in the run up to the primaries - not to the general election.  In the primaries, Mr Trump (who has indicated interest in running for the Republican nomination) would be opposed only by Republicans - not by the President.  So only the Republican candidates could request equal time during the primary season.

And even if some candidate officially declares between now and the last episode of The Apprentice, there still might not be an obligation.  Again, we are focused on equal time to candidates before a particular election.  And right now there is not a single election looming - but instead a series of primaries, each with their own filing dates and qualification requirements.  In fact, with many of the "primaries" actually being in the form of caucuses (which are subject to political rules), there might not even be formal, legal ways to register for a "place on the ballot" so to speak.  So it may come down to a subjective decision as to whether a candidate has done enough in a state to be considered a bona fide candidate.  While, once a Presidential candidate becomes legally qualified in 10 states, FCC rules deem him qualified for purposes of equal time, reasonable access and lowest unit rates, there is not much law on how a candidate gets to be qualified in some of these states - and it is likely the simple declaration that "I'm running" doesn't do it.  Usually some form of petition and filing fee may be necessary - which may or may not be accomplished at the same time as the declaration of candidacy.  If there are no formal papers to be filed, an active election effort in the state would be required to establish a candidacy - and it's unlikely that any quasi-candidate has done enough in any state (or certainly in 10 states) to meet that standard.

And what did the Hollywood Reporter blog get wrong?  They quoted me as saying that there were no cases deciding that a candidate appearance in an entertainment program triggered equal opportunities, when there have been such cases.  In fact, the FCC tried to change the rules to eliminate the need to offer equal time in such situations, soon after stations were forced to stop running Bedtime for Bonzo during the Reagan campaigns.  But the FCC backed down from that change when faced with a challenge filed in the Court of Appeals arguing that Section 315 of the Communications Act exempted from equal opportunities only very specific classes of broadcast programs (essentially news and news interview programs, an exemption that we've written much about, see, for instance, our post here), and entertainment programs were not among the exemptions.  So obviously there are cases that hold that candidate appearances in entertainment programs are covered by equal opportunities (including cases about comedian Pat Paulsen, who also became a legally qualified candidate, and the movie Storm Warning starring Ronald Reagan).  Perhaps they confused it with another issue which does remain unresolved -  which we also wrote about in connection with the Fred Thompson/Law and Order situation, whether cable television networks are covered by the rule, or only local origination by particular cable systems (certain FCC officials had said, at the time of the Fred Thompson situation, that the FCC was ready to extend the rule to cable networks, but no formal ruling to that effect has been issued).

All in all, the Donald appears to be able to go on making all the noise that he wants about running for President - perhaps in hope that it will not be just the Gary Busey fans who'll be watching the final episode of the Apprentice, but the political junkies as well.  Anything to drive ratings or the birth of the next political superstar?  Here, the old maxim "stay tuned" is quite appropriate.

With the President declaring his candidacy for reelection in 2012, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process.  But visions of next year's elections should not be distracting broadcasters from their current political broadcasting obligations.  I've received many calls this year about whether broadcasters need to provide lowest unit rates to candidates in the races that are going on in 2011 - including many municipal elections and some special elections to fill various political posts.  As we have written before, if a station decides to sell time to a political candidate in a local race, that sale must be at the lowest unit charge for the class of time sold during the 45 days before a primary and the 60 days before the general election.  While state and local candidates need not be afforded the "reasonable access" that applies to Federal candidates, that merely means that stations do not need to sell these candidates any advertising time at all, or that stations may limit the purchase by state and local candidates to only the dayparts during which the station has more inventory.  But once the time is sold to one candidate in a race, most other political rules - including lowest unit charges, equal opportunities and the no censorship rule, all apply to the local candidate's spots.

With the President now filing to become a candidate, and many Republican candidates likely to be filing soon, what obligations are imposed on stations?  For the most part, there is no effect on the rates to be charged to candidates or their campaign committees - those rates only become effective 45 days before the primaries - so the lowest unit charges for Presidential campaigns likely will not kick in until very late this year, or early next, for the early Presidential primaries and caucuses in states like Iowa and New Hampshire. But, as candidates become legally qualified, there will be reasonable access and equal opportunities obligations that will arise.  Candidates for President can request reasonable access to all classes and dayparts - even outside the 45 and 60 day windows before a primary and general election, respectively.  In the case of a Presidential campaign, a candidate becomes legally qualified in all states once he has become legally qualified in 10 states. There may be few Democrats who are to likely to challenge the President, so equal opportunities will most likely be a major issue only on the Republican side.  And, as we've written before, the FCC has determined that most interview programs where the content is under station control - even those that have little news value on the normal day - are deemed "news interview programs" exempt from equal time rules.  Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program (e.g. as a character on a scripted TV show) or where the candidate is themselves a host of a broadcast program - and usually stations ensure that the candidates are long gone from hosting programs once they formally declare that they are running for a political office

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues.  Already, in many contested Congressional districts around the country, there are ad being run sponsored by various political action committees and other interest groups -targeting potential candidates for the House of Representatives or the Senate. Sometimes the ads are subtle digs at the positions that a potential candidate is taking ("call Congressman X and tell him that he should stop voting for bills that are bankrupting the country"), and sometimes they are more direct attacks on the potential candidate.  Sometimes they don't directly address a particular politician at all, but are instead directed at an issue being debated in Congress.  And sometimes, as reportedly happened just recently, they ask callers to tell a Congressman to vote in a particular way on an issue where he has already voted in the way the ad requests.  In any case, if the ads are dealing with Federal candidates or other issues being considered by the US House of Representatives or Senate, then they are Federal issue ads on which the station must maintain full public file information, similar to that which is kept for any candidate advertising - the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our post here on the public file requirements for Federal issue ads).

Finally, with the 2012 election fast approaching, stations should start planing for the election season.  Some stations are no doubt already selling long-term contracts that will still be in effect during the primary season.  Stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value - rather than simply booking them as having a flat rate throughout the entire year - including the pre-election lowest unit rate periods. As we wrote in our Political Broadcasting Guide, the FCC allows you, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods.  Consult with your attorney to make sure that you properly apply this process, but it could save you money in the long term.  For other things that you should be thinking about in preparation for the election, check out our Political Broadcasting Guide. 

Many broadcasters, both television and radio, have been running the NAB spots on the Future of Television.  Those spots contain a description of the service available from local television stations and the new technologies that over-the-air television are in the process of deploying, and end with the suggestion that the Future of Broadcast Television lies in "technology not regulation from Washington DC."  Obviously, these ads are geared to address some of the many legislative and administrative issues facing TV broadcasters - including the proposals to take back some of the TV spectrum for wireless broadband uses.  Given that these spots could be arguably be seen as addressing Federal issues, to be safe, they should be identified as issue ads in stations' public inspection files, and appropriate information about those spots should be placed in the files.

The NAB, in announcing the availability of these spots, suggested this same precaution.  We've written before about issue ads, and the need to place notations in the public file about these ads. For instance, when stations ran ads on the broadcast performance royalty, we suggested that same treatment (and proponents of the royalty complained that broadcasters might not be making such notations).  What needs to go in the public file?  As the issues are Federal ones (as opposed to state and local issues that have lesser disclosure obligations), the requirements are similar to those that apply to political candidates. 

Specifically, when a station receives any request for time to address any issue dealing with a Federal matter (one to be considered by Congress, the President or any US government agency), the public file entry should include:

• If the request to purchase time is accepted or rejected
• If the ads are accepted, the dates on which the ad is run
• The rates charged by the station (or in the case of the NAB spots, that there was no charge but the ads themselves were furnished at no charge)
• Class of time purchased
• The issue to which the ad refers
• The name of the purchaser of the advertising time including:
  • The name, address and phone number of a contact person
  • A list of the chief executive officers or members of the executive committee or board of directors of the sponsoring organization.

Remember - issue ads don't implicate equal time or lowest unit rates - so taking these ads from the NAB should not be an issue for the station in terms of triggering any obligations for spots taking a contrary view.  But note the broadcast of these issue ads in your public file just to avoid any issues about whether "issue ad" obligations were met.