Coordinated Political Advertising...And The FCC Public File
August 26, 2014
It's hard to believe! We're close to the 2014 mid-term elections and already the 2016 presidential political season is taking aim at us. Polarized and polarizing politics envelop us more each day, and leading the foray is heated-issue advertising; so much so that it has become a major revenue stream for broadcasters of all stripes. A recent story about just one television station reported a single-issue advertising buy in the neighborhood of $750,000!
Because issue advertising can be sold by broadcasters at full rate, it is an important source of revenue, but also an area with many legal implications that can cause real problems for broadcasters. Note, for example, earlier this year the Campaign Legal Center and Sunlight Foundation filed complaints with the FCC against 11 broadcast television stations for failure to publicly disclose legally-required information about sponsors of political ads they aired this year. The complaints stem from reviews of the stations' online political files, which exposed widespread noncompliance with the disclosure requirements. See the Press Release Here.
Where is all this money coming from? Federal law and regulations have long prevented candidates, their campaigns and parties from evading contribution limits by having other supporters pay for campaign activity directly – for instance, by paying for a television ad crafted that was actually by the campaign. However, it may come as a surprise to the novice that, in some cases, and for a limited time, coordinated spending between a candidate's campaign and coordinated campaign spins are permitted under the Federal Election Commission regulations.
However, make no mistake, outside of those limited opportunities, coordinated campaign spending is illegal, and FEC investigations focusing on prohibited "coordination" are typically lengthy and intrusive. As intermediaries, radio and television stations, as well as media producers and buyers, do not face liability when coordination occurs. However, the risks are still significant of being drawn into long and complicated investigations through subpoenas and depositions that can be expensive and time consuming.
Even worse, there is potential FCC liability for broadcasters who do not properly report sponsorship or maintain all the public file information required by Section 315(d) of the Communications Act. 315(d) obligates licensees to report in the stations local public file ALL advertising that relates to a political issue of national importance, including sponsorship identification and details. In some instances of coordinated spending, advertisers have balked at providing the station with this information, leaving the station with the Hobson's choice of forgoing the buy or risk FCC violations. And, don't forget: the FCC political public file must now be online at the FCC's website for ALL television stations, where it is easily researched from anywhere in the U.S., or for that matter, anywhere in the world.
The disclosure is not minimal and it's required whenever time is purchased and the message relates to a political matter of national importance. For anyone, candidate or not, proposing to discuss a national legislative issue of public importance, the public file must contain all the following information:
- whether the request was accepted or rejected,
- the charge for the broadcast time,
- the date and time the communication is aired,
- the class of time purchased,
- the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election or the issue to which the communications refers, and in the case of an issue ad, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or the board of directors of such person.
On occasion time buyers have balked at providing the necessary information and threaten to pull a major purchase from the station to keep that information from reaching the public file. Stations should be on guard against such efforts because the Communications Act is clear that the public has a right to see this information. A failure to comply with the direct mandate of the Communications Act could result in severe fines, at worse, including designation of the license for a revocation hearing.
Note that the federal election law does allow limited political party coordinated expenditure directly on behalf of candidates. For example, for the 2014 mid-term elections, coordinated party expenditures are permitted, depending upon the state, up to as much as $2,755,200 for Senate and $94,500 for House nominees. A chart with respect to the amounts allowed can be found at chart. More information on coordinated party expenditures can be found in the Campaign Guide for Political Party Committees located on that webpage, along with a state-by-state guide regarding the limits.
The problem for those seeking to monitor coordinated spending is how to identify it and police it. The challenge for the FEC and watchdog groups and opposing candidates is to prevent political consultants from serving as conduits of valuable information between campaigns and third-party spenders without stifling the political process or limiting access to consultants necessary for successful campaigns. To police this many have started to monitor the FCC online political file, as is illustrated by the Campaign Legal Center and Sunlight Foundation.
With proper legal guidance and planning, it is still possible for third-party groups to advertise based on information obtained from candidates or their parties and directly intercede in a campaign by promoting or attacking issues of direct relevance to the opposing candidate. Unfortunately, the FCC political file has become a resource for political watchdogs, and broadcasters can get caught in the crossfire if they do not watch carefully to make sure that the proper information is posted to their public files.
This column is provided for general information purposes only and should not be relied upon as legal advice pertaining to any specific factual situation. Legal decisions should be made only after proper consultation with a legal professional of your choosing.