1	Political Broadcasting
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3	Political Broadcasting It pays to know the rules
4	Political Rules in a Nutshell A broadcast licensee must provide to LEGALLY QUALIFIED political candidates for federal office (President, Vice President, U.S. Congress) REASONABLE ACCESS. When a legally qualified candidate makes a USE of a broadcast facility during a NON-EXEMPT PROGRAM, then an opposing candidate is entitled to make a REQUEST for EQUAL OPPORTUNITIES. Certain uses may qualify for the station’s LOWEST UNIT CHARGE. A full DISCLOSURE of the station’s selling practices must be made to all political advertisers.
5	Nutshell (cont.) All uses must be free from CENSORSHIP, and must bear the proper SPONSORSHIP IDENTIFICATION and BCRA statement. Each request for a use of the station’s facilities, and the disposition of that request, must be recorded in the station’s POLITICAL FILE. The FAIRNESS DOCTRINE has been repealed. Court invalidated POLITICAL EDITORIALS, PERSONAL ATTACKS corollaries. Stations are still subject to NEWS DISTORTION rule BCRA requires some 3^rd party ads be noted in the political file.
6	Legally Qualified Candidate Must have announced intention to run Must be qualified under state law to hold the office Has qualified under state law to be on the ballot or is qualified for a write-in candidate Presidential candidates must be qualified in the state or in ten states
7	The Key Element of Political Broadcasting Is a Candidate “Use” A “use” is a positive candidate appearance by an identifiable voice or picture for at least 4 sec. The appearance does not have to be controlled or approved by the candidate
8	Federal Candidates Are Entitled to Reasonable Access Applies during entire campaign Stations cannot set limits on amount or type of time that candidates can buy Stations may reject unreasonable requests and negotiate with candidates Stations need not respond to “blind” requests for avails or time
9	Program Access (Federal Candidates) Must be offered prime time, program time May be excluded from news May not be excluded from any other category of programs Not necessarily when they want – Subject to negotiation Stations must consider odd program lengths
10	Non-Standard Lengths Stations are required to negotiate with federal candidates for the sale of non-standard length spots and program-length segments, regardless of whether they have sold such lengths in the past. If not previously sold, rates can take into account lost revenue, including any diminution of revenue due to lost ratings for immediately following programs.
11	State and Local Candidates Stations can take ads from some races and not others Stations can limit the number of ads Stations can restrict dayparts in which ads will run Stations must make all “discount classes” available Equal Opportunities, Lowest Unit Charge and No Censorship apply
12	Deadlines Access to Personnel Weekend Access – Not before the election political advertisers -- only to the extent provided to commercial advertisers at any time during the previous year If weekend access is provided only for modifying copy and canceling spots, that is all that need be given candidates Final weekend before the election Required: giving candidates access to station personnel to purchase and schedule spots may be necessary to permit candidates to exercise their equal opportunities rights
13	Equal Opportunities Applies when candidate becomes legally qualified Applies to candidates in same race Candidates must request equal opportunities within seven days Triggered by non-exempt use
14	Exempt Programs Bona fide newscasts Bona fide news interview programs Bona fide documentaries On-the-spot coverage of bona fide news events (includes station-sponsored debates)
15	Content Can you refuse to air a political “use” which is in conflict with another federal statute, such as a use that is indecent? obscene? TALK TO YOUR LAWYER FIRST! You are free to reject political ads which do not contain a “use” Because stations have the power of censorship in such situations, they are not immune to libel and defamation actions based on such advertising
16	Subject of Use Because of the no-censorship provision, a candidate may use the time as he or she sees fit – not required to discuss his or her candidacy What about Problem Ads
17	What about Problem Ads ??
18	What about Problem Ads ??
19	No Censorship Farmers Educational and Cooperative Union of America v. WDAY, Inc. 360 U.S. 525, 1959 “. . . the licensee has consistently been denied “power of censorship” in the area of political broadcasts.” §315 “Since the power of censorship of political broadcasts is prohibited it must follow as a corollary that the mandate prohibiting censorship includes the privilege of immunity from liability for defamatory statements made by the speaker” citing the ND Supreme Court
20	Prior Review Stations may ask to review political advertising in advance to ensure: That it constitutes a “use” by the candidate, and That the ad contains the necessary sponsorship identification, and That it does not exceed the agreed length. Candidate not required to comply – 1 bite rule When requesting a script or tape for such a review, inform the candidate you are prohibited from censoring the material
21	Rates Legally qualified candidates are entitled to purchase time for a use at rates COMPARABLE to those charged other advertisers outside the 60 & 45 day periods. Stations may never discriminate against a candidate or charge more than would be charged any other advertiser for advertising or other station services.
22	Political Rates Apply to all races — federal, state & local Lowest unit charge applies during political “window” 45 days before a primary or caucus 60 days before a general or special election Use must be in connection with the campaign
23	Lowest Unit Charge WINDOWS 2008
24	California PRIMARIES - 2008 February 5, 2008 (LUC Begins December 22, 2007)
25	GENERAL ELECTION NOVEMBER 4, 2008 LUC BEGINS SEPTEMBER 5, 2008
26	Lowest Unit Charge
27	Charges Inside the Political Window: Maxim: The political advertiser must be treated no worse than a station’s MOST FAVORED ADVERTISER.
28	Who is entitled to LUC? Only “uses” authorized by legally qualified candidate’s campaign in connection with the campaign are entitled to lowest unit charge If the candidate’s voice or image does not appear, the spot does not qualify Commercials purchased by non-authorized 3^rd parties do not qualify Ballot issue ads and “issue” ads do not qualify LUC applies to ALL legally qualified candidates. State and local candidates and federal candidates.
29	Example Classes of Time: Fixed or fixed Position - Guaranteed to run on date and time. Non-preemptible - Not subject to preemption. Preemptible with Notice - Preemptible only after notice by a specific time. Immediately Preemptible w/o Notice - Preemptible at any time. Run of Schedule - Preemptible spot can be scheduled at any time by station w/o prior notice.
30	Preemptible: Commercial advertisers may “take a significant prospective risk of nonclearance” to pay less Stations may establish their own reasonable classes of preemptible time Not made up for political Not based solely on price or identity of the advertiser Demonstrable benefit to advertiser Different obligations on station
31	Preemptible Time Stations may treat separate levels of preemptible time as separate classes Stations that sell all time on an “auction” basis may have only one class of preemptible time
32	Special Political Classes of Time: Stations may offer a special “candidate fixed time” Special class of non-preemptible (more valuable to political advertiser) truly distinguishable from the preemptible Discounted no more expensive than commercial preemptible with genuine risk of preemption News Adjacencies: Only when guaranteed adjacent and banned from inside news programming No more than news program itself Different than broader rotation that happens to butt the news
33	Rotations: Distinctly different rotations may be separate classes of time. Test Are the separate rotations consistent with normal selling practices, and based on objective criteria (audience size, demographics, etc.)
34	Rotations: Week to week variations OK BUT Must honor the LUC during the week Political advertiser pays no more than the lowest cost spot running in that week
35	Package Plans: Package plans or bonus spots are not considered a separate class Package within a class is just a volume discount Package containing spots in multiple classes &/or dayparts may be allocated Packages may be allocated over length of the run Document prices assigned to each spot
36	What to Include in the LUC: All spots paid by commercial advertisers Value of packages and bonus spots All contracts in effect during the political window Paid PSAs by Commercial Advertisers Fire Sale Rates
37	What to Exclude From the LUC: Barter spots Per-inquiry spots Bonuses for charitable and non-profit organizations Billboards & Program sponsorships
38	What to Exclude From the LUC: Technical or audience-delivery make goods Value-added incentives BUT: Must be offered on the same basis The Network Exception
39	Network Exception Compensation received by each station affiliate not affect own LUC Network “use” will trigger equal opportunity on every affiliate If network itself doesn’t offer equal opportunity, station must Softwave Media Exchange Google
40	"Request for declaratory judgment at..." Request for declaratory judgment at FCC
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42	Rate Increases or Decreases: Before the Political Window Be careful: ads may run in the Window During the Political Window If normal practice based on Audience ratings, seasonal program changes or time sold on weekly rotation, on a weekly basis.
43	Agency and Rep Commissions Stations that price time on a commissionable basis must offer time on a “net” basis to candidates without agencies Reps’ commissions are paid by the station and do not affect the LUC
44	Specific Programs: Programs can differ on program by program basis If station treats programs this way, each program may be considered a separate rotation (or daypart)
45	Sold Out Time? Daypart or Particular Program Provide access to comparable opportunities within é Preemptible Time Only if all preemptible spots within a class were sold at same rate (flat or auction ceiling) & then may be bumped only by a more expensive class. If advertiser can preempt with a higher price within same class -- Not sold out!! Total Auction selling = NEVER SOLD OUT
46	Production Facilities: LUC does not apply Station may charge standard rates. BUT Cannot discriminate between political advertisers. E.g. Free production to only one
47	Make Goods: Not included in LUC, BUT: Must run in same rotation period or may set new LUC for a more expensive period for that week Audience Short Fall Make Goods sold to Political: Audience info may not be available Provide a prompt rebate or offer make good for subsequent election
48	Time Sensitive Make Goods: In the last 12 mos. if you promise preempted make good, same class of time, within a specific time frame (i.e., holiday sale). . . . . Then . . . . . Political make good must run before the election
49	Three Most important Rules of Political Broadcasting Disclose !!! Disclose !!! Disclose !!!
50	Disclosure Statement Should be in writing Should be provided to every candidate or agency requesting political time (inside or outside the political windows) Stations do not have to ensure that candidates read the disclosure statement Will change during the political season
51	Disclosure Statement Must Include: Time classes available to advertisers Anticipated LUC or comparable rate for each class Make good policies Preemptible time practices Any other sales practices
52	Sponsor Identification All spots must have a proper sponsor ID Must use “paid for” or “sponsored by” Spots paid for by someone other than the candidate must state whether they are authorized by the candidate (FEC) TV — Four seconds; four percent of screen height (20 scan lines)
53	Bipartisan Campaign Reform Act of 2002 BCRA Sponsorship ID Applies only to Federal races Ads refer to opponent To receive LUC Candidate must be identified, and the following required candidate statement must be made: they authorized or approved the broadcast and that the spot was paid for by the candidate or his authorized campaign committee
54	Bipartisan Campaign Reform Act Federal candidates – to qualify for LUC must supply stations with a certificate re: references to opposing candidates certified by the candidate or his authorized committee Candidates failing to comply are not eligible for lowest unit rates for the remainder of the election period The certificate portion is curable but failure to make stand-by-your-ad statement is not!
55	Federal Candidate Certificate Must state that the candidate will not make direct reference to an opposing candidate in his advertising Unless, at the end of the spot, there is a 4 sec. + statement the spot was authorized by the candidate and paid for by him or his authorized committee and Statement that candidate approved the ad TV spots -- clearly identifiable image of candidate and clearly readable written statement and approved the ad
56	BCRA ID – Radio – Campaign Act An audio statement by the candidate in which the candidate identifies himself and states that he approves of the broadcast
57	BCRA ID – Radio – Comm Act An audio statement of the candidate in which the candidate identifies himself, states the office he is running for, states that he approves of the broadcast
58	What’s Wrong with This Radio Ad?
59	What’s Wrong With This Radio Ad?
60	What’s Right About This Radio Ad?
61	BCRA ID – Television – Comm Act Either: A full-screen view of the candidate identifying himself and making the required statement, or A candidate voiceover an image the candidate identifies himself makes the required statement Identifies himself and approves message, AND The candidate’s authorized committee paid for the broadcast A clearly identifiable image of the candidate (80% of screen height); and, in either case: A clearly readable written statement of the same information (4% of height, 4 seconds, w/ reasonable color contrast)
62	What’s Wrong with This TV Ad?
63	What’s Wrong with This TV Ad?
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65	What’s the Issue BCRA applies to the Candidate, not the broadcaster Consequence is loss of entitlement to LUC Claims against the Broadcaster – illegal campaign contribution
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68	The Transcript Commissioner Weintraub I didn’t measure to make sure it was exactly 80 percent as our regulations provide but if not it was pretty darn close. And I didn’t think there could possibly be any confusion that he was the guy at issue who was making the disclaimer So: Comm Act Violation: ?? BCRA violation – illegal contribution? Pretty darn close standard
69	Third Party Spots – BCRA Third party spots which advocate the election or defeat of federal candidates, or which solicit campaign contributions, must contain the following: A statement that the spot is not authorized by any candidate; and Audio statement: “____ is responsible for the content of this advertising” Blank identifies political committee or who paid for the broadcast, any organization connected with the payor, and a permanent street address, tel no. & www For TV, an unobscured full-screen view of a representative of the committee or person making the statement plus the text of the statement (4 sec.; color contrast)
70	Third Party Issues Spots – FCC Where the material broadcast is: political matter or controversial issue of public importance, and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the broadcast matter the station shall, in addition, require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, etc shall be made available for public inspection at the location specified by the licensee
71	ADVANCE PAYMENT For federal candidates, stations can require payment no more than seven days in advance For state and local races, station’s commercial advance payment policies apply
72	Credit Must Be Offered If: Candidate or agency has established credit relationship with the station, and Candidate or agency assumes responsibility for payment, and Station would give credit to similar commercial advertiser
73	Political File §73.1943 The name of the candidate requesting time (not rate inquiries) The nature and disposition of the request – whether accepted or rejected The rate charged All other non-exempt uses Keep information for two years For political, do not have to respond to telephone inquiries
74	Contents of Political File Date and time aired Class of time purchased Name of candidate to which the spot refers, the office sought, or the issue to which the spot refers In the case of a candidate request, name of the candidate, authorized committee, and treasurer of the committee
75	Political File Contents, cont. Any other political request: The name of the person or entity purchasing the time, The name, address and phone number of a contact person, and A list of the chief executive officers, members of the executive committee or of the board of directors of such entity.
76	Recordkeeping Maintained for two years Covers each message relating to a political matter of national importance, including A legally qualified candidate; Any election to federal office; or A national legislative issue of public importance.
77	Ads and Other Communications Activities of others
78	Outside Groups
79	Who can pay for a campaign ad? What is off limits? Federal PACs -- no limit Individuals -- No limit, but Over certain limits must report Corporations (including non-profits) and Unions – no treasury funds for: Express advocacy Electioneering communications
80	What is express advocacy? In 1976, Supreme Court: speech that “expressly advocates” the election or defeat of a candidate. Bright line between advocating a candidate and advocating for an issue Became known as “magic words” test -- “vote for,” “defeat,” “re-elect”
81	Almost 30 years later Supreme Court: Express advocacy test has proved “functionally meaningless” “Call and tell” ads. “… And though he talks about protecting children, Yellowtail failed to make his own child support payments – then voted against child support enforcement. Call Bill Yellowtail. Tell him to support family values.”
82	Electioneering Communications Congress attempts to stop end-run around express advocacy test through “sham issue ads”
83	What are Electioneering Communications Broadcast, cable or satellite communications Refer to a clearly identified candidate for Federal office Publicly distributed within sixty days before a general election or thirty days before a primary election Targeted to the relevant electorate
84	Electioneering Communications Before Wisconsin Right to Life No corporate or union funding if: Ad refers to a candidate for federal office Ad runs 60 days before general election; 30 days before primary Broadcast, cable, or satellite Targeted to 50,000 or more of candidate’s potential voters Effectively Thrown out by Wisconsin Right To Life
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86	Electioneering Communications After Wisconsin Right to Life WRTL's ads may reasonably be interpreted as something other than an appeal to vote for or against a specific candidate they are not the functional equivalent of express advocacy
87	Electioneering Communications A communication is the “functional equivalent of express advocacy” only if it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” So as long as its not a call to vote for or against a candidate, its fair game inside and outside the BCRA windows.
88	What’s Not Covered? Print, Internet, Telephone, Billboards
89	Politics and the Internet Pew Research Center
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91	HD & Dedicated Channels XM POTUS 08 Channel Radio channel dedicated exclusively to the 2008 presidential election Everyone with XM radio XM subscribers or not news updates, candidate interviews, complete speeches, debate coverage, latest polling results, fundraising status, and live call-in shows. Nontraditional media outlets, such as bloggers and podcasters & C-SPAN
92	HD & Dedicated Channels XM POTUS 08 Channel Radio channel dedicated exclusively to the 2008 presidential election Everyone with XM radio XM subscribers or not news updates, candidate interviews, complete speeches, debate coverage, latest polling results, fundraising status, and live call-in shows. Nontraditional media outlets, such as bloggers and podcasters & C-SPAN
93	POTUS 08 Also provide free airtime presidential candidates, or representatives to speak to voters Candidate Full Editorial Control Full Compliance §315, §312(a)(7), No censorship or filter Subject to certain access guidelines For pay, time limits, profanity
94	XM is a Press Entity On a regular basis, produces a program that disseminates news stories, commentary, and/or editorials Neither XM nor POTUS ’08 is owned or controlled by any political party, political committee, or candidate the Candidate Supplied Content is a form of “guest commentary” the provision of free airtime to qualified presidential candidates constitutes “covering or carrying a news story, commentary, or editorial.”
95	FEC Ruling XM and POTUS 08 are exempt from prohibited corporate contributions and expenditures under the press exemption none of XM’s POTUS ’08 satellite radio broadcasts will constitute an electioneering communication
96	Required Disclaimer Candidate POTUS ’08 a disclaimer that clearly states paid for by the candidate’s authorized committee Presented in a clear & conspicuous manner BCRA Stand-by-You-Ad statement
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98	www.wcsr.com/telecom
99	Political Ads Send MPEG and MP3 gskall@wcsr.com
100	"Gregg Skall — CBA Washington..." Gregg Skall — CBA Washington Counsel 202-857-4441 gskall@wcsr.com 1-877-4 FCC LAW Bobby Baker : Hope Cooper — FCC Political Programming Branch 202-418-1440 robert.baker@fcc.gov ; hope.cooper@fcc.gov www.fcc.gov/mb/policy/political/ NAB Legal Department (NAB Member Stations Only) — 202-429-5430
101	"Gregg P" Gregg P. Skall Womble Carlyle Sandridge & Rice LLC Washington, D.C. (202) 857-4441
102	TIME FOR YOUR QUESTIONS