Political Political BroadcastingBroadcasting

Broadcasters AssociationBroadcasters Association© Womble Carlyle 2007

Political BroadcastingPolitical Broadcasting

It pays to know the rulesIt pays to know the rules

Political Rules in a NutshellPolitical Rules in a Nutshell• A broadcast licensee must provide to A broadcast licensee must provide to LEGALLY LEGALLY

QUALIFIEDQUALIFIED political candidates for federal office political candidates for federal office (President, Vice President, U.S. Congress) (President, Vice President, U.S. Congress) REASONABLE ACCESSREASONABLE ACCESS..

• When a legally qualified candidate makes a When a legally qualified candidate makes a USE USE of a broadcast facility during a of a broadcast facility during a NON-EXEMPT NON-EXEMPT PROGRAMPROGRAM, then an opposing candidate is entitled , then an opposing candidate is entitled to make a to make a REQUESTREQUEST for for EQUAL EQUAL OPPORTUNITIESOPPORTUNITIES..

• Certain uses may qualify for the station’s Certain uses may qualify for the station’s LOWEST LOWEST UNIT CHARGEUNIT CHARGE. A full . A full DISCLOSUREDISCLOSURE of the of the station’s selling practices must be made to all station’s selling practices must be made to all political advertisers.political advertisers.

Nutshell (cont.)Nutshell (cont.)• All uses must be free from All uses must be free from CENSORSHIPCENSORSHIP, and , and

must bear the proper must bear the proper SPONSORSHIP SPONSORSHIP IDENTIFICATIONIDENTIFICATION and and BCRA BCRA statement.statement.

• Each request for a use of the station’s facilities, and Each request for a use of the station’s facilities, and the disposition of that request, must be recorded in the disposition of that request, must be recorded in the station’s the station’s POLITICAL FILE.POLITICAL FILE.

• The The FAIRNESS DOCTRINEFAIRNESS DOCTRINE has been repealed. has been repealed. Court invalidated Court invalidated POLITICAL EDITORIALS, POLITICAL EDITORIALS, PERSONAL ATTACKS PERSONAL ATTACKS corollaries. corollaries.

• Stations are still subject to Stations are still subject to NEWS DISTORTION NEWS DISTORTION rulerule

• BCRA BCRA requires some 3requires some 3rdrd party ads be noted in the party ads be noted in the political file.political file.

Who is a Who is a Legally Qualified Candidate?Legally Qualified Candidate?

What is a Candidate “Use”What is a Candidate “Use”Why is it important?Why is it important?

Candidate AccessCandidate Access

Access to Specific Programs? Access to Specific Programs?

Non-Standard LengthsNon-Standard Lengths

How do the Rules differ for How do the Rules differ for State and Local CandidatesState and Local Candidates

Deadlines Deadlines andand

Weekend Weekend Access to StationAccess to Station

Equal OpportunitiesEqual Opportunities§ 315 Communications Act§ 315 Communications Act

Are Any Programs or Times Are Any Programs or Times Exempt from Equal Exempt from Equal

Opportunities?Opportunities?

Exempt ProgramsExempt Programs• Bona fide newscastsBona fide newscasts

• Bona fide news interview Bona fide news interview programsprograms

• Bona fide documentariesBona fide documentaries

• On-the-spot coverage of On-the-spot coverage of bona fide news events bona fide news events (includes station-(includes station-sponsored debates)sponsored debates)

Content that Conflicts with LawContent that Conflicts with Law

What about Problem Ads ?? What about Problem Ads ??

CensorshipCensorship&&

Prior Review Prior Review

RatesRates

Political RatesPolitical Rates

Lowest Unit ChargeLowest Unit ChargeWINDOWSWINDOWS

20082008

CaliforniaCaliforniaPRIMARIES - 2008PRIMARIES - 2008

February 5, 2008 February 5, 2008

(LUC Begins December 22, 2007)(LUC Begins December 22, 2007)

StatePresidential

PrimaryState

Primary

State Runoff Primary (if necessary)

General Election

Federal Offices State

U.S. Senate

U.S. Representative

Governor

California February 5 June 3 N/A No 53 No

LUC Begins December 22 April 19

GENERAL ELECTIONGENERAL ELECTION

NOVEMBER 4, 2008NOVEMBER 4, 2008

LUC BEGINSLUC BEGINS

SEPTEMBER 5, 2008SEPTEMBER 5, 2008

Lowest Unit ChargeLowest Unit Charge

The The lowest price chargedlowest price charged for any individual for any individual unitunit of of

time sold in the time sold in the same class, same class, in the same length and in the same length and program or daypartprogram or daypart that that

runs within the Lowest Unit runs within the Lowest Unit Charge windowCharge window

Charges Inside the Political Charges Inside the Political Window:Window:

• Maxim:Maxim: The political advertiser must be The political advertiser must be treated no worse than a station’s MOST treated no worse than a station’s MOST FAVORED ADVERTISER.FAVORED ADVERTISER.

• Even though buying only a single spot Even though buying only a single spot spots, treat as your spots, treat as your bestbest and and highest highest volumevolume advertiser year in and out. advertiser year in and out.

Who is entitled to LUC?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

Classes of TimeClasses of Time

Preemptible TimePreemptible Time

Special PoliticalSpecial PoliticalClass of TimeClass of Time

ororCandidate DiscountCandidate Discount

RotationsRotations

Package PlansPackage Plans

What to Include in the LUC ?What to Include in the LUC ?

What to Exclude From the What to Exclude From the LUC ?LUC ?

Network Exception ?Network Exception ?

Rate Increases or Decreases:Rate Increases or Decreases:

Agency and Rep Agency and Rep CommissionsCommissions

Specific ProgramsSpecific Programs

Sold Out Time ?Sold Out Time ?

Production FacilitiesProduction Facilities

Make GoodsMake Goods

Time Sensitive Make GoodsTime Sensitive Make Goods

Three Most important Rules of Three Most important Rules of Political BroadcastingPolitical Broadcasting

Disclose !!!Disclose !!!

Disclose !!!Disclose !!!

Disclose !!!Disclose !!!

Disclosure StatementDisclosure Statement

Political AdvertisingPolitical AdvertisingDisclosure StatementDisclosure Statement

Preemption ~~~~~Preemption ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Time Categories ~Time Categories ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~Weekends ~~~~~~Weekends ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

What Must Disclosure What Must Disclosure Statement Include ?Statement Include ?

Sponsor IdentificationSponsor Identification

Bipartisan Campaign Reform ActBipartisan Campaign Reform Act

Sponsorship IDSponsorship ID

Bipartisan Campaign Reform ActBipartisan Campaign Reform Act

Lowest Unit ChargeLowest Unit Charge

Federal Candidate CertificateFederal Candidate Certificate

BCRA ID - RadioBCRA ID - Radio

What’s Wrong withWhat’s Wrong withThis Radio Ad?This Radio Ad?

The Right Way !The Right Way !

BCRA ID - TelevisionBCRA ID - Television

What’s Wrong withWhat’s Wrong withThis TV Ad?This TV Ad?

What’s Wrong withWhat’s Wrong withThis TV Ad?This TV Ad?

What’s the IssueWhat’s the Issue

• BCRA applies to the Candidate, BCRA applies to the Candidate, not the broadcasternot the broadcaster

• Consequence is loss of Consequence is loss of entitlement to LUC

• Claims against the Broadcaster – illegal campaign contribution

LIABILITYLIABILITY

• Civil Liability – FEC EnforcementCivil Liability – FEC Enforcement– Up to 200% of amount involvedUp to 200% of amount involved– 300% to 1000% of amount involved 300% to 1000% of amount involved

for conduit schemesfor conduit schemes

• Criminal Liability -- DOJCriminal Liability -- DOJ– $2 to $25K: Fine &/or Up to 1 yr$2 to $25K: Fine &/or Up to 1 yr– $25K and Up: Fine &/or Up to 5 yrs$25K and Up: Fine &/or Up to 5 yrs

The TranscriptThe Transcript

• Commissioner WeintraubCommissioner Weintraub– I didn’t measure to make sure it was exactly I didn’t measure to make sure it was exactly

80 percent as our regulations provide but if 80 percent as our regulations provide but if not it was pretty darn close.not it was pretty darn close.

– And I didn’t think there could possibly be And I didn’t think there could possibly be any confusion that he was the guy at issue any confusion that he was the guy at issue who was making the disclaimerwho was making the disclaimer

• So: Comm Act Violation: ??So: Comm Act Violation: ??• BCRA violation – illegal contribution?BCRA violation – illegal contribution?• Pretty darn close standardPretty darn close standard

Third Party Candidate SpotsThird Party Candidate Spots

Third Party Issues SpotsThird Party Issues Spots

ADVANCE PAYMENTADVANCE PAYMENT

Credit Must Be Offered If:Credit Must Be Offered If:

PoliticalPoliticalFileFile

Contents of Political FileContents of Political File

RecordkeepingRecordkeepingRetention PeriodRetention Period

Electioneering Electioneering CommunicationsCommunications

Congress attempts to stop end-run Congress attempts to stop end-run around express advocacy test around express advocacy test

through “sham issue ads”through “sham issue ads”

What are Electioneering What are Electioneering CommunicationsCommunications

• Broadcast, cable or satellite Broadcast, cable or satellite communicationscommunications

• Refer to a clearly identified candidate for Refer to a clearly identified candidate for Federal officeFederal office

• Publicly distributed within sixty days Publicly distributed within sixty days before a general election orbefore a general election or

• thirty days before a primary electionthirty days before a primary election• Targeted to the relevant electorate Targeted to the relevant electorate

Electioneering Communications Electioneering Communications Before Wisconsin Right to LifeBefore Wisconsin Right to Life

No corporate or union funding if:No corporate or union funding if:– Ad refers to a candidate for federal officeAd refers to a candidate for federal office– Ad runs 60 days before general election; 30 Ad runs 60 days before general election; 30

days before primarydays before primary– Broadcast, cable, or satelliteBroadcast, cable, or satellite– Targeted to 50,000 or more of candidate’s Targeted to 50,000 or more of candidate’s

potential voterspotential voters

• Effectively Thrown out by Wisconsin Effectively Thrown out by Wisconsin Right To LifeRight To Life

Electioneering Communications Electioneering Communications After Wisconsin Right to LifeAfter Wisconsin Right to Life

• WRTL's ads may reasonably be WRTL's ads may reasonably be interpreted as something other interpreted as something other than an appeal to vote for or than an appeal to vote for or against a specific candidateagainst a specific candidate

• they are not the functional they are not the functional equivalent of express advocacyequivalent of express advocacy

Electioneering CommunicationsElectioneering Communications

• A communication is the “functional A communication is the “functional equivalent of express advocacy” only if equivalent of express advocacy” only if it “is susceptible of no reasonable it “is susceptible of no reasonable interpretation other than as an appeal to interpretation other than as an appeal to vote for or against a specific candidate.” vote for or against a specific candidate.”

• So as long as its not a call to vote for or So as long as its not a call to vote for or against a candidate, its fair game inside against a candidate, its fair game inside and outside the BCRA windows.and outside the BCRA windows.

What’s Not Covered?What’s Not Covered?

• Print, Internet, Telephone, Print, Internet, Telephone, BillboardsBillboards

© Womble Carlyle 2004 - 2006

Politics and the Internet Politics and the Internet Pew Research CenterPew Research Center

HD & Dedicated ChannelsHD & Dedicated Channels

• XM POTUS 08 ChannelXM POTUS 08 Channel• Radio channel dedicated exclusively to the Radio channel dedicated exclusively to the

2008 presidential election 2008 presidential election • Everyone with XM radioEveryone with XM radio

– XM subscribers or notXM subscribers or not– news updates, candidate interviews, complete news updates, candidate interviews, complete

speeches, debate coverage, latest polling speeches, debate coverage, latest polling results, fundraising status, and live call-in results, fundraising status, and live call-in shows. Non traditional media outlets, such as shows. Non traditional media outlets, such as bloggers and podcasters & C-SPANbloggers and podcasters & C-SPAN

HD & Dedicated ChannelsHD & Dedicated Channels

• XM POTUS 08 ChannelXM POTUS 08 Channel• Radio channel dedicated exclusively to the Radio channel dedicated exclusively to the

2008 presidential election 2008 presidential election • Everyone with XM radioEveryone with XM radio

– XM subscribers or notXM subscribers or not– news updates, candidate interviews, complete news updates, candidate interviews, complete

speeches, debate coverage, latest polling speeches, debate coverage, latest polling results, fundraising status, and live call-in results, fundraising status, and live call-in shows. Non traditional media outlets, such as shows. Non traditional media outlets, such as bloggers and podcasters & C-SPANbloggers and podcasters & C-SPAN

POTUS 08POTUS 08

• AlsoAlso– provide free airtimeprovide free airtime

• presidential candidates, orpresidential candidates, or• representatives to speak to voters representatives to speak to voters

– Candidate Full Editorial ControlCandidate Full Editorial Control

• Full ComplianceFull Compliance– §315, §312(a)(7), No censorship or filter§315, §312(a)(7), No censorship or filter– Subject to certain access guidelinesSubject to certain access guidelines

• For pay, time limits, profanityFor pay, time limits, profanity

XM is a Press EntityXM is a Press Entity

• On a regular basis, produces a program that On a regular basis, produces a program that disseminates news stories, commentary, disseminates news stories, commentary, and/or editorialsand/or editorials

• Neither XM nor POTUS ’08 is owned or Neither XM nor POTUS ’08 is owned or controlled by any political party, political controlled by any political party, political committee, or candidatecommittee, or candidate

• the Candidate Supplied Content is a form of the Candidate Supplied Content is a form of “guest commentary” “guest commentary”

• the provision of free airtime to qualified the provision of free airtime to qualified presidential candidates constitutes “covering or presidential candidates constitutes “covering or carrying a news story, commentary, or carrying a news story, commentary, or editorial.” editorial.”

FEC RulingFEC Ruling

• XM and POTUS 08 are exempt from XM and POTUS 08 are exempt from prohibited corporate contributions and prohibited corporate contributions and expenditures under the press expenditures under the press exemptionexemption

• none of XM’s POTUS ’08 satellite none of XM’s POTUS ’08 satellite radio broadcasts will constitute an radio broadcasts will constitute an electioneering communicationelectioneering communication

Required DisclaimerRequired Disclaimer

• Candidate POTUS ’08 Candidate POTUS ’08 – a disclaimer that clearly statesa disclaimer that clearly states

• paid for by the candidate’s authorized paid for by the candidate’s authorized committeecommittee

• Presented in a clear & conspicuous Presented in a clear & conspicuous mannermanner

• BCRA Stand-by-You-Ad statementBCRA Stand-by-You-Ad statement

Political AdsPolitical Ads

• Send MPEG and MP3Send MPEG and MP3

• gskall@wcsr.comgskall@wcsr.com

• Gregg Skall —Gregg Skall — CBA Washington Counsel CBA Washington Counsel202-857-4441 202-857-4441 gskall@wcsr.comgskall@wcsr.com1-877-4 FCC LAW1-877-4 FCC LAW

• Bobby Baker : Hope Cooper — Bobby Baker : Hope Cooper — FCC Political Programming BranchFCC Political Programming Branch202-418-1440202-418-1440robert.baker@fcc.govrobert.baker@fcc.gov ; ; hope.cooper@fcc.govhope.cooper@fcc.gov

www.fcc.gov/mb/policy/political/www.fcc.gov/mb/policy/political/• NAB Legal Department NAB Legal Department

(NAB Member Stations Only) —(NAB Member Stations Only) — 202-429-5430202-429-5430

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TIME FOR YOUR TIME FOR YOUR QUESTIONSQUESTIONS