By: David Oxenford, Wilkinson Barker Knauer, LLP
Last week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.
Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station.
So, basically, the complaints do not appear to allege that the stations failed to put information into their file sufficient for the public to evaluate who was sponsoring the ads, what the sponsors were paying, or how many ads were being run – information only required for Federal issue ads (ads of national importance) and not ads that addressed local issues. Instead, the complaints allege that the stations were in violation of the rules because a box on a form that is not even required by the FCC was checked incorrectly.
These complaints seem to harken back to a set of similar complaints resolved by the FCC last year, admonishing a number of TV stations for not inquiring more when incomplete information was provided by issue advertisers on a political disclosure form (see our article here on that decision). The new Commission, as one of its first acts, rescinded that decision seemingly because it was made by the Media Bureau and not the full Commission (see our article here). Since the rescission, the FCC has not issued further guidance on the issues raised in the complaints. Perhaps these complaints will trigger action on those pending matters from the FCC. But, regardless of the outcome, the complaints teach broadcasters two things – first, they need to be questioning the information provided by issue advertisers on their advertising disclosure forms to make sure that information is accurate and complete, and second, that stations political files are being watched. With the political file being online for all TV stations and for big market radio stations (and, by March 1 of next year, for all radio stations – see our article here), any of these watchdog organizations can scan the public file for inconsistencies and inaccuracies from the privacy of their own home or office, without the station ever knowing. This places a premium on stations being complete and accurate with all of their disclosures.
For more information about political advertising issues, see our Guide to Political Advertising Issues, here.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
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