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What Every Station What Every Station Should Know Should Know About Political About Political Advertising Advertising
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Page 1: What Every Station Should Know About Political Advertising.

What Every Station What Every Station Should Know Should Know

About Political AdvertisingAbout Political Advertising

Page 2: What Every Station Should Know About Political Advertising.

What’s NewWhat’s New

• Petition for Declaratory Ruling- Named State Broadcasters- Google/dMarc, Bid4Spots and

Softwave Media Exchange- Interim?

Page 3: What Every Station Should Know About Political Advertising.

Wisconsin Right to LifeWisconsin Right to Life• June 15, 2007 Supreme Court Decision

FEC vs. Wisconsin Right to Life, Inc.

• Loosened restrictions on TV and Radio ads that corporations and labor unions can finance prior to an election

• “No Other Reasonable Interpretation” Standard

• Redefines Electioneering Communications

Page 4: What Every Station Should Know About Political Advertising.

Electioneering CommunicationsElectioneering Communications

• Electioneering communications are any broadcast, cable or satellite programming that refer to a federal candidate, are aired within 60 days prior to a general election or within 30 days prior to a primary election and reach 50,000 or more persons.

• What this means for stations

Page 5: What Every Station Should Know About Political Advertising.

Refresher CourseRefresher Course

• Reasonable Access

• Equal Opportunities

• Lowest Unit Charge

• Sponsorship ID and BCRA

• Public File

Page 6: What Every Station Should Know About Political Advertising.

Reasonable AccessReasonable Access

• Stations must sell time to federal candidates

• Applies during the entire campaign

• Stations cannot set up front limits on the amounts or type of time that candidates can buy

• But, stations may reject unreasonable requests and negotiate with candidates

Page 7: What Every Station Should Know About Political Advertising.

Carter-MondaleCarter-Mondale Factors Factors

• How much time the candidate has already bought

• The amount of disruption the buy would create

• The potential for equal opportunities demands from other candidates

• The timing of the request

Reasonable access requests must be evaluated using 4 factors:

Page 8: What Every Station Should Know About Political Advertising.

State & Local CandidatesState & Local Candidates

• State and local candidates have no right of access

• Stations may exclude some or all state and local candidate ads

Page 9: What Every Station Should Know About Political Advertising.

State & Local CandidatesState & Local Candidates• Stations can take ads from some races

and not others

• Stations can limit the number of ads

• Stations can restrict the dayparts for state and local ads

• But, stations must make “discount classes” available and equal opportunities and lowest unit charge rules apply

Page 10: What Every Station Should Know About Political Advertising.

Equal OpportunitiesEqual Opportunities• Does not require equal time, just equal

right (i.e., pay for pay and free for free)

• Triggered by any non-exempt use

• Applies only to candidates in the same race

• Candidates must request equal opportunities within 7 days

Page 11: What Every Station Should Know About Political Advertising.

What type of programs are What type of programs are exempt?exempt?

• Bona fide newscasts

• Bona fide news interview programs

• Bona fide documentaries

• On-the-spot coverage of bona fide news events includes station-sponsored debates and some free time offers

Page 12: What Every Station Should Know About Political Advertising.

Political RatesPolitical Rates• Apply to all races – federal, state and local

• Issue ads do not receive political rates

• Party ads are only entitled to political rates if the party is one of the candidate’s authorized committees

- if a party or other ad supporting a candidate is an “independent expenditure,” political rates are not required

Page 13: What Every Station Should Know About Political Advertising.

Lowest Unit ChargeLowest Unit Charge• Since 1991, the most important

requirement is disclosure

• A station’s political rates are determined by the rates it offers commercial advertisers

• Stations must tell candidates about all relevant information and rates offered to commercial advertisers

Page 14: What Every Station Should Know About Political Advertising.

Disclosure StatementDisclosure Statement• Stations should have a written disclosure

statement

• It should be given to every candidate or agency requesting political time

• Don’t just copy the disclosure statement you used last election – check to see if it still accurately describes your sales practices

Page 15: What Every Station Should Know About Political Advertising.

What to Include in What to Include in Calculating the LUCCalculating the LUC

• All paid spots• All contracts in effect during the political

window or available to commercial advertisers

• Paid PSAs which are aired for commercial advertisers

• The value of “bonus” spots must be included in the LUC; this includes bonus spots that air outside the window

Page 16: What Every Station Should Know About Political Advertising.

What to Exclude from the LUCWhat to Exclude from the LUC

• Spots for which no payment is received

• Pure barter spots

• Per-inquiry spots

• Bonuses for non-profit organizations and the government

• De minimis value-added incentives or incentives that would imply a station endorsement

Page 17: What Every Station Should Know About Political Advertising.

PackagesPackages

• Candidates do not have to buy a package to benefit from the package rate

• Every spot in every package must be valued

• Package prices may be allocated on the contract or in a signed and dated internal memo

• If a station does not allocate, FCC will assume all spots have an equal value

Page 18: What Every Station Should Know About Political Advertising.

Calculating the LUC – IncentivesCalculating the LUC – Incentives

• Non-cash merchandise and promotional incentives do not have to be factored into the LUC

• They must be offered to candidates on the same basis as to commercial advertisers

• Incentives of de minimis value or which imply endorsement do not have to be offered to candidates

Page 19: What Every Station Should Know About Political Advertising.

Preemptible TimePreemptible Time

• Stations which offer commercial advertisers separate levels of preemptible time may treat each level as a separate class

• Stations may offer candidates “fixed time” so long as that class is offered to commercial advertisers

• Stations which sell time on an auction basis have only one class of preemptible time

Page 20: What Every Station Should Know About Political Advertising.

Candidate-Only Discount ClassCandidate-Only Discount Class

• Stations may create a non-preemptible class of time for candidates only

• If occasional spots clear below the candidate discount rate, no rebate is required

Page 21: What Every Station Should Know About Political Advertising.

Changes in RatesChanges in Rates

• If a contract with a commercial advertiser expires during the window, the LUC may change

• Rate changes which are part of a station’s “ordinary business practices” will affect the LUC

• Rates may vary due to changed ratings, seasonal demand, etc.

Page 22: What Every Station Should Know About Political Advertising.

Issue AdsIssue Ads

• Do not qualify for political rates

• Stations are liable for defamation and may censor

• Must have sponsor ID

• No requirement to offer or give time to opponents

Page 23: What Every Station Should Know About Political Advertising.

Issue AdsIssue Ads• Public file must show that station aired ads

• May have to show date and times aired and rates if the ad includes a “message relating to any political matter of national importance”

• Must include a list of officers, directors, or committee members of sponsoring organization

• Stations should be careful about misleading sponsor identifications

Page 24: What Every Station Should Know About Political Advertising.

Sponsor IdentificationSponsor Identification• All spots must have a sponsor ID• The ID must state that the ad is “paid for” or

“sponsored by” the entity actually paying for the time

• Candidate spots paid for by someone other than the candidate must state whether they are authorized by the candidate

• Ads for federal candidates that refer to opponents have new BCRA ID requirements

Page 25: What Every Station Should Know About Political Advertising.

Sponsor IdentificationSponsor Identification

• If a spot comes in without an FCC-required ID, the station must add it to the spot

• A station-added ID may obliterate part of the ad

• A spot that arrives without an ID may be aired once without penalty – the ID must be inserted for all subsequent airings

Page 26: What Every Station Should Know About Political Advertising.

Sponsor Identification – TVSponsor Identification – TV

• TV political spots must have a visual sponsor ID

• It must air for at least 4 seconds

• The ID must be in letters equal to 4% of the screen height or 20 scan lines

• BCRA added additional requirements, particularly for ads that refer to opponents

Page 27: What Every Station Should Know About Political Advertising.

Speaking of BCRA …Speaking of BCRA …• Bipartisan Campaign Reform Act

• All significant provisions upheld by Supreme Court in December 2003

• Many provisions apply to candidates & stations are not obliged to enforce them

• FCC will not adopt new rules; will not punish broadcasters who exercise good faith discretion

Page 28: What Every Station Should Know About Political Advertising.

Stand by Your AdStand by Your Ad• To obtain the LUC, federal candidates or

their authorized committees must certify in writing to stations that:the political programming they will air does not contain a reference to an opposing candidate, OR

if there is a reference to an opposing candidate, the spots will contain additional disclosures

Page 29: What Every Station Should Know About Political Advertising.

Example- Ref. Opposition But Example- Ref. Opposition But Not Advocating Not Advocating

Election/Defeat (Radio)Election/Defeat (Radio)

• At the end of the programming, an audio statement by the candidate identifying him or herself, the office being sought and that the candidate approved the broadcast

• Sponsor ID Chart

Page 30: What Every Station Should Know About Political Advertising.

““Stand by Your Ad”Stand by Your Ad”

• Does it have to be a negative reference?

• How often should candidates certify?BCRA says “at the time of purchase”

NAB suggests obtaining a certification for each buy

• Do stations have to check the accuracy of candidate certifications?

Page 31: What Every Station Should Know About Political Advertising.

What Happens if a Candidate What Happens if a Candidate Doesn’t Certify?Doesn’t Certify?

• Loses LUC for the remainder of the campaign

• FCC staff says that if a candidate loses the LUC for the primary, he/she can get it back for the election

• FEC Deadlock• BCRA suggests that candidates would

lose the LUC on all stations, but no way to enforce that

Page 32: What Every Station Should Know About Political Advertising.

Political FilePolitical File• Important because this is the only source

of information for candidates about their opposition’s appearances

• Stations may not respond to “blind” requests for avails or time

• FCC excludes political file from telephone access rule and new enhanced disclosure rule

Page 33: What Every Station Should Know About Political Advertising.

Political File Must IncludePolitical File Must Include• All requests for time (but not simple rate

inquiries)

• The nature and disposition of the request (i.e., how did the station respond?)

• The rates charged

• The dates and times spots aired

• Any other non-exempt uses

Page 34: What Every Station Should Know About Political Advertising.

Political FilePolitical File• Information must be placed in the file “as

soon as possible”

• Stations may provide exact times when spots aired upon request

• Stations must keep information in the political file for 2 years

Page 35: What Every Station Should Know About Political Advertising.

ResourcesResources

• NAB Members can call the NAB Legal Hotline at 866 682 0276

• Be Sure to Utilize Your Station Counsel

• PB-16 and Political Broadcast Catechism are available at www.nabstore.com