With primaries in some states happening every bit presently equally March, the 2022 ballot cycle is certain to exist contentious and hard-fought. Now is the time for broadcasters to review their systems to ensure that they will be in compliance with the FCC's political advertisement requirements. At present that all broadcast stations are required to identify political files online, it will be increasingly important for all radio and television stations to ensure compliance with the political broadcasting rules – non just the substantive rules but the recordkeeping portions every bit well. A little-advanced planning can go a long way in making this election flavour run smoothly (and, ideally, profitably) for your station.

Photo past Elliott Stallion courtesy of the Creative Commons License

The FCC's political broadcast rules by and large cover: 1) who is entitled to access to broadcast advertising time; two) how much they pay for that fourth dimension; and 3) disclosure and recordkeeping requirements. We'll look at each of those areas below but nosotros highly encourage stations with questions to contact their communications counsel. The FCC'south rules and policies are adequately complicated when information technology comes to political broadcasting, and the answers to many questions are highly dependent on the specific facts at mitt.

Fundamental to understanding and complying with the political rules is the concept of a candidate's "apply" of a broadcast station. As we will delve into in greater detail below, the "use" of a broadcast station by a candidate triggers several potential obligations. Therefore, information technology is important to know every bit a threshold matter: a) when someone is a candidate and b) when they are considered to have made a "apply" of a station.

Who is a "candidate"?

  • To be considered a candidate a person must:
  • take announced his/her intention to run;
  • be qualified to hold the office he/she is running for; and
  • be qualified to be on the election or exist eligible to be a write-in candidate.

What is a "use"?

In general, a "use" is any positive advent of a candidate whose vocalisation or likeness is either identified or is readily identifiable. The appearance in question does not need to be canonical by the candidate or the candidate's commission to be considered a "employ" – 3rd-political party ads may trigger a "use," every bit can appearances in entertainment programming. The candidate's advent on the station must exist "positive," so a 3rd political party attack advertizement confronting a candidate would non be considered a "use" past that candidate.

Candidate appearances in certain types of programming practise non count equally "uses." For example, appearances by a candidate on "bona fide" news, in news interviews, or documentary programs are not considered "uses." Thus, coverage of a "bona fide" news event, such as a contend or candidacy announcement, does not plant a "apply" fifty-fifty if the candidate is featured prominently in that coverage.

What candidates are entitled to "reasonable admission" and what access is "reasonable"?

The FCC's rules (and the Communications Deed) provide that "legally qualified" candidates for federal offices (e.chiliad., President, Vice President, Firm and Senate) are entitled to "reasonable access" to commercial broadcast stations for the broadcast of advertising. This means that, equally a general rule, commercial broadcasters must make time available to candidates for federal offices. Demands for "reasonable admission" can but come from a candidate or his/her authorized campaign committee. Third party advertisers and "issue advertisers" practise not accept reasonable admission rights and, as discussed below, neither do candidates for state and local offices.

Photograph past Jomar courtesy of the Artistic Eatables Licence

Although a federal candidate's reasonable admission rights ensure admission to a broadcast station's airtime, federal candidates practice not accept the right to demand time during specific programs or solar day-parts. In addition, stations may choose to exclude political advertising from news programming. Merely, beyond those limited exceptions, the station must offer federal candidates "reasonable" access to the station'southward full schedule.

Precisely what degree of "access" is "reasonable" is not e'er easily adamant. Since federal candidates enjoy considerable discretion to tailor their campaigns as they see fit, stations should avert setting flat limits on the total amount or types/classes of fourth dimension available to federal candidates. Questions near what is "reasonable" in any given circumstance may need to exist referred to legal counsel. In any upshot, in view of the articulate requirement that federal candidates be afforded "reasonable admission," stations should do some advanced planning about the amount of fourth dimension probable to be required to reasonably accommodate political advertising. (For such planning, it is patently wise to consider the number of candidates competing for the various federal offices, since a "use" by ane candidate can trigger "equal time" claims by others running for the same part.)

In contrast to federal candidates, candidates for country and local office (eastward.yard., mayor, county council, schoolhouse board, etc.) are not entitled to "reasonable access." Thus, a station tin choose not to sell any time to whatsoever candidate for a particular state or local office. BUT if the station does sell time to ane candidate for a item not-federal office, other candidates for that office will be entitled to insist on "equal opportunities" (see below). If a large number of candidates are vying for one item non-federal role, selling time to one candidate for that part could upshot in multiple demands for "equal time" from that candidate'due south competitors, which could in plow seriously reduce the station's commercial inventory. That being the instance, stations should consider, in advance, the not-federal political races for which advertising time will be made available. Once that determination has been fabricated, whatsoever restrictions should be included in the station's disclosure statements (run across below) – and consistently applied.

What are "equal opportunities"?

All candidates for the same role must be treated in an equal style. This rule – known as the "equal opportunities" or "equal time" dominion – applies to both federal and non-federal (i.e., state and local) candidates; it is not restricted to a express period of fourth dimension before the ballot. The dominion is triggered by a "use" of a station by a legally qualified candidate. Once a legally qualified candidate for a given office makes a "use" of a station, all other legally qualified candidates for the same office are entitled to the opportunity to make equal apply of the station. That is, the station must make the same amount and kind of time available at the same toll.

In social club to take advantage of this rule, a candidate seeking equal time must request it within seven days of the opposing candidate'due south triggering "apply" of the station. A station is not obligated to notify opposing candidates when a "use" is made but, as described below, information technology must document all uses in its political files, which are now part of the station's online public inspection file. If a station does not post such documentation to its public files in a timely manner, the seven-twenty-four hours deadline for equal time claims may be extended.

The equal opportunities dominion tin can go a serious issue when on-air talent wishes to run for office. All of that person's appearances on the station later becoming "legally qualified" count every bit complimentary uses of the station. Similarly, if an actor or other entertainment personality becomes a legally qualified candidate, the broadcast of movies, TV shows or other material in which the actor/personality is identifiable would also count as gratuitous uses. Such uses would obligate the station to give equal amounts of gratis fourth dimension to all opposing candidates.

Equal time claims can also become a serious issue in the final days before an election, when some stations may demand to monitor their bachelor commercial inventory closely to ensure that they are able to adapt equal time demands from candidates.

Photo past Samuel Schneider courtesy of the Creative Commons License

What is "lowest unit accuse" and when does that use?

Possibly the most troublesome question for many stations is the question of the rate that may be charged for political advertizement. All legally qualified candidates for any political office – state, local or federal – are entitled to the "everyman unit charge" (LUC) (or "lowest unit rate") during the 45 days before a primary election and the 60 days prior to a general ballot. (The 45/60 day periods are often referred to as "LUC windows.")

In full general, the LUC is the everyman rate charged to any other advertiser for the same class and amount of fourth dimension for the same fourth dimension period, including all discounts and bonus spots. Every bit a practical thing, political candidates are to exist treated as the "most favored" advertiser during the LUC windows. This favorable treatment is available only to candidates or their authorized campaign committees for "uses" by the candidate; it is not available to any 3rd-political party advertisers, including political activeness committees, citizens groups and the similar. Equally explained below, federal candidates also must make an affirmative certification that their advertisements see certain criteria to qualify for the LUC.

Determining the verbal amount of the LUC for any detail candidate order tin can be tricky. It depends on what the candidate is ownership (e.g., ROS vs. fixed position, preemptible vs. non-preemptible, etc.). A station must as well take into account other factors that affect advertising rates charged to its non-political customers, such as twenty-four hours-role, discounts given for big purchases, the value of "bonus spots," etc. Most stations will have more than i LUC depending on the diverse classes of time sold on the station during the LUC window.

Because the calculation of the LUC tin be circuitous, stations should begin considering the issue well in accelerate of the LUC window, and should consult with legal counsel equally necessary.

What are "Disclosure Statements" and are stations required to take them?

A disclosure statement is a written summary of the station's ad rates and policies. Ordinarily, it should describe the classes of time available to advertisers, the LUC for each course, any make-skillful policies, policies on the preemption of ads, and any other sales practices or information that would be relevant to advertisers. The station should provide the disclosure statement to any candidate, agency, or group requesting political fourth dimension (within or exterior of the LUC window). Of form, disclosure statements should be updated as oftentimes equally necessary during the election flavour to ensure accuracy and stations should be certain to comply with whatever policies set forth in the statements.

The FCC'due south rules exercise not require that stations prepare written disclosure statements. Nevertheless, disclosure statements provide both station sales staffs and prospective advertisers a clear guide to the factors relevant to whatsoever advertising purchase; they besides tend to limit subsequently-the-fact disputes. In addition, the process of preparing a consummate disclosure statement forces the station to consider and resolve, in accelerate of the election season, a number of practical questions (eastward.m., whether to refuse to sell time to candidates for certain not-federal offices).

What sponsorship identification requirements apply to political ads?

All political advertizement must include some form of sponsorship identification. Specifically, when a political advertizement is run, at that place must exist a statement that the advertisement was "paid for" or "sponsored past" the group or person actually purchasing the ad time. If the advertiser provides the station with a pre-produced spot that does not include the required sponsorship ID, the station must add this language on its ain accord (if necessary, it can do so over the content of the spot – no free time need be provided, and this type of addition is exempt from the usual non-censorship rules that apply to candidate advertizement). For goggle box ads, the statement must be visual, run for at least four seconds, and occupy at to the lowest degree 4 percent of the screen.

Ads for federal candidates also must run into a variety of boosted requirements imposed by the Bipartisan Campaign Reform Act (BCRA). If the advertizement refers to an opposing candidate, BCRA requires that a argument be spoken by the candidate who is purchasing the time and that the advertizement identifies the candidate and the function sought. BCRA requires that the candidate land that a) he or she approves the circulate and b) he or she (or his/her campaign committee) paid for the ad. Television ads must also display a clearly identifiable image of the candidate.

BCRA likewise requires that federal candidates, or their authorized committees, provide a broadcast station with a written certification stating whether or non the advertisement refers to another candidate for the same office. If it does refer to another candidate, the certification must state that the advertizement volition comply with the "stand by your advertisement" annunciation requirements as described to a higher place. This certification must exist provided to the circulate station when the time is purchased. If the certification is not provided, the station is not obligated to give the candidate the LUC.

Photo by Ally Aubry courtesy of the Artistic Eatables License

If the ad advocates the ballot or defeat of a specific candidate and is paid for or sponsored by a third party, the ad must clearly point whether it was or was non authorized by a candidate. That is, the sponsor identification statement must include both the "paid for" or "sponsored by" linguistic communication and the "authorized past" or "not authorized by" a particular candidate or campaign committee language. If information technology is non authorized, there must exist an additional sound statement that the proper name of the entity purchasing the ad "is responsible for the content of this advert." This is in addition to relevant state law, which may require more.

Can a station revise the content of a political "use"?

When a legally qualified candidate for office makes a "use" of a station, the station is Not permitted to censor or otherwise alter the candidate'due south message in any way (other than by adding a missing sponsorship identification). While some political uses may contain content which the station might ordinarily choose non to circulate, the station cannot alter the apply at all. However, the station is protected from whatsoever liability that may result from the candidate's message. This "no censorship" provision applies only to candidate advertising and not to third party advertising. Thus, stations need to take potential liability into account when deciding whether to accept such 3rd political party ads.

What records demand to be kept with respect to political ad?

The FCC's political file dominion requires stations to maintain, and allow public inspection of, records of all requests for political time. With the advent of the online public file requirements now applicable to all broadcast stations, these materials will now be available for review by anyone with internet access. The records placed in the political file must include details of:

  • the nature and disposition of all requests;
  • the schedule of fourth dimension provided or purchased;
  • the classes of time involved;
  • the rates charged; and
  • contact information of the purchaser.

In addition to the FCC'southward political file requirements, BCRA requires that the broadcaster's public file contain all requests for time by anyone (including non-candidates) who seeks to communicate a message that refers either to: ane) a legally qualified candidate; or 2) any election to federal office; or 3) a national legislative issue of public importance. Because the political file is oftentimes reviewed past parties seeking "equal opportunities," it is important for stations to go along the political file up-to-date at all times. ( Note : since the political file is bachelor online for inspection past the public, care should exist taken to remove or redact any confidential information, such as credit carte du jour or bank check numbers that might otherwise exist included in the materials placed in the file.)

As noted above, this is a thumbnail overview of the political broadcasting rules. We too invite readers to review our house's archived webinar from January that was presented with the FCC'southward Bobby Baker and Gary Schonman on the political broadcasting rules. In the coming weeks and months, stations should review the rules in item and confirm that their disclosure statements and station policies in place are up-to-date. Every bit election season approaches, station management should ensure that all sales personnel are well-informed about the substantive rules and the recordkeeping obligations related to political broadcasting.

In one case the political advertisement season begins in earnest, questions and controversies tin arise quickly. Those questions and controversies can be complicated and require conscientious analysis. Don't hesitate to call us for help at 703-812-0400.