Lawyer Article
Gregg Skall Lays Out Why The Next Few Weekends Might Not Be Days Off For Broadcasters
October 24, 2012
WASHINGTON, D.C. - If the past is any teacher, as Election Day draws closer media outlets will be flooded with last-minute attack and response political advertising. The weekend before the election will be particularly important to the candidates, who typically produce new ads daily by this point.
It is during this harried time that some in station management can find themselves wondering just how much access they must provide to political time-buyers in the weekend before the election and Election Day itself.
Fortunately, there are some clear FCC rulings to provide broadcasters with guidance on these issues.
During the 1990 election there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. Clarifying this requirement in the 1991 Political Programming Policies Statement , the Commission stated that if a station had provided access to any commercial advertiser for purposes of “arranging and providing programming” i.e., taken an order from any commercial advertiser, on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election. However, the broadcaster is not required to provide any services to the political advertiser/time-buyer that are more extensive than the range of services previously provided to any commercial advertiser.
For example, if access had been given to the commercial advertiser only to deliver or change copy, then those are the only services that need be afforded to candidates. If a station can prove that it has not sold time on weekends during the past year, it can justify a refusal to sell time to political candidates on the weekend before the election. However, a station that has done this just once for a favored advertiser (like a store running a holiday promotion or a theatre promoting a movie premiere), the station must be prepared to process political advertising requests on the weekend before the election.
Note: the equal opportunities doctrine does not apply to this type of station service. That doctrine applies only to a candidate’s actual response to a prior “use,” or appearance on the station by an opposing candidate for the same office; not to the sale or use of facilities of the licensee.
Remember, however, that a station cannot discriminate between candidates. Thus, even if it has not taken an order from any commercial advertiser on a weekend during the previous year, if the station offers weekend sales opportunities to one candidate, the station must also accept weekend sales from all opposing candidates for the same office.
What About Election Day Itself?
Election Day is a different beast altogether. The Commission allows each station to adopt its own policy regarding whether it will accept new candidate advertisements on election day, even from those seeking federal elective office who are otherwise entitled to reasonable access under section 312(a)(7) of the Communications Act. Here too, however, the station cannot discriminate, and if it decides to take a new Election Day order from a candidate, it must also take new orders from all opposing candidates for the same office.
For federal office candidates, the station’s policy must apply to all federal candidates equally, that is; once any federal candidate is allowed to purchase advertising on Election Day, then all federal candidates must be afforded such access as well.
About the author
Mr. Skall regularly represents broadcasting stations in their regulatory dealings with the Federal Communications Commission in their commercial business dealings. He is a frequent author on broadcasting and the law and is published in Radio Business Report/Television Business Report and AllAccess, where his column “FCC Uncensored” is a regular feature. Follow Gregg on Twitter @Commlaw.
It is during this harried time that some in station management can find themselves wondering just how much access they must provide to political time-buyers in the weekend before the election and Election Day itself.
Fortunately, there are some clear FCC rulings to provide broadcasters with guidance on these issues.
During the 1990 election there was some confusion as to whether station personnel must be available to process orders for political time on the weekend before the election. Clarifying this requirement in the 1991 Political Programming Policies Statement , the Commission stated that if a station had provided access to any commercial advertiser for purposes of “arranging and providing programming” i.e., taken an order from any commercial advertiser, on a weekend even once during the previous year, then it must be available to sell time to political advertisers on the weekend before the election. However, the broadcaster is not required to provide any services to the political advertiser/time-buyer that are more extensive than the range of services previously provided to any commercial advertiser.
For example, if access had been given to the commercial advertiser only to deliver or change copy, then those are the only services that need be afforded to candidates. If a station can prove that it has not sold time on weekends during the past year, it can justify a refusal to sell time to political candidates on the weekend before the election. However, a station that has done this just once for a favored advertiser (like a store running a holiday promotion or a theatre promoting a movie premiere), the station must be prepared to process political advertising requests on the weekend before the election.
Note: the equal opportunities doctrine does not apply to this type of station service. That doctrine applies only to a candidate’s actual response to a prior “use,” or appearance on the station by an opposing candidate for the same office; not to the sale or use of facilities of the licensee.
Remember, however, that a station cannot discriminate between candidates. Thus, even if it has not taken an order from any commercial advertiser on a weekend during the previous year, if the station offers weekend sales opportunities to one candidate, the station must also accept weekend sales from all opposing candidates for the same office.
What About Election Day Itself?
Election Day is a different beast altogether. The Commission allows each station to adopt its own policy regarding whether it will accept new candidate advertisements on election day, even from those seeking federal elective office who are otherwise entitled to reasonable access under section 312(a)(7) of the Communications Act. Here too, however, the station cannot discriminate, and if it decides to take a new Election Day order from a candidate, it must also take new orders from all opposing candidates for the same office.
For federal office candidates, the station’s policy must apply to all federal candidates equally, that is; once any federal candidate is allowed to purchase advertising on Election Day, then all federal candidates must be afforded such access as well.
About the author
Mr. Skall regularly represents broadcasting stations in their regulatory dealings with the Federal Communications Commission in their commercial business dealings. He is a frequent author on broadcasting and the law and is published in Radio Business Report/Television Business Report and AllAccess, where his column “FCC Uncensored” is a regular feature. Follow Gregg on Twitter @Commlaw.
This document is intended as an informational reminder and does not constitute legal advice. If you have any questions or would like to discuss a particular situation, please contact Womble Carlyle Sandridge & Rice, LLP. The purpose of this article is to provide general information about significant legal developments and should not be construed as legal advice on any specific facts and circumstances.
