Political Ads: Final Tips From The Lawyer

Thirty-three days before Election Day and due largely to the Citizens United and Speech Now court rulings earlier this year, demand for TV and radio political ad time is on track to shatter all records. Experts put total spending at $3 billion. In the one week ending Sept. 28, groups independent of candidates — such as the pro-Republican Club for Growth and American Crossroads, and the pro-Democratic Emily’s List — spent $4 million. 

Never before have independent groups — among them corporations and labor unions — been allowed to spend without limit on ads attacking or supporting specific candidates, and right through Election Day. Congressional legislation to curtail that, supported by the president, is unlikely to pass this year. 

Also for the first time, enough states now allow early voting that a third or more of votes may be cast before Election Day. In Florida, ballots have already been mailed to voters, and a liberal group called Progress Florida is telling them to “vote in your pajamas.” So ad time demand began early this year and is likely to continue or increase, including new requests for time, up to Nov. 2.

These unprecedented factors are fueling different campaign strategies than in the past, more attack ads and station inventory issues that may worsen during the next 33 days.

To assist stations to meet their FCC and other obligations to candidates and their authorized committees, while also accommodating new demand from independent groups, here are some points to keep in mind and that have generated questions this political season:

All legally qualified candidates — federal, state and local — and their authorized committees are entitled to the lowest unit charge (LUC) for the ads they buy, as long as the ad is a “use.” An ad is a use when the candidate appears in it by recognizable voice or image. Stations may require proof that a committee is actually candidate-authorized. For federal candidates only, to receive LUC they must provide a written certification to the station at the time of the buy indicating that their ads do not refer to an opposing candidate unless the ad includes the required “stand by your ad” disclosure (the buying candidate stating name, office sought and “I approved this message.”)

No ads by non-candidates are entitled to LUC, even if a candidate appears in them.

For purposes of calculating LUC, high-interest NFL games can be considered a separate class of time. Each class of time has its own LUC.

The sale of time to candidates by a station’s affiliated network does not affect the station’s LUC for local station candidate ads. But federal candidates’ right of reasonable access applies to network-sold time on candidate request, and triggers equal opportunities for opponents.

To honor federal candidates’ unique right to “reasonable access” to air time, stations should avoid telling them that time is “sold out.” The FCC recognizes almost no “sold out” situations for federal candidates, and a “sold out” response can be a shortcut to an FCC complaint. If inventory is a problem when a federal candidate requests time, stations should negotiate a reasonable compromise with the candidate to try to come as close as possible to what the candidate requests. This includes offering the federal candidate alternative times, lengths, dayparts and programs that yield audience exposure similar to what the federal candidate seeks. For example, a federal candidate wanting to buy 30-minute segments could be offered six 5-minute segments. News is the only type of programming from which a federal candidate’s ads may be excluded.

State and local candidates have no right of access to time. Stations may choose which if any state and local races to sell time for. If station policy is to sell to certain state and local races, and inventory is a problem in the next 33 days, a station may discontinue selling some or all state or local candidate time, if all equal opportunities requirements have been met for each race. As a practical matter, though, stations should consider the impact of discontinuation in hotly contested, highly newsworthy contests.

Between now and Nov. 2, all ads by federal, state and local candidates or their authorized committees trigger equal opportunities for legally qualified opposing candidates. Stations can require candidates to prove they’re legally qualified if that’s questionable. 

Station censorship of candidate ads is not permitted no matter how offensive the ad is. Stations cannot be liable for their content. Stations can add a neutral audience advisory at the beginning or end (or both) of an objectionable candidate ad, to indicate that the station is required by federal law to run the ad and/or that audience members including children may be offended by the content.

No station is required to accept any political ads by a non-candidate. LUC never is required for “third-party” ads. Stations can decline to run such ads for any or no reason. Stations may also require that content be altered to remove false, defamatory or otherwise offensive material. They may also require “channeling” ads to a time the station deems appropriate in the public interest (for instance, to the 10 p.m. to 6 a.m. “safe harbor” when children are presumed by the FCC to be less likely to be viewing). Stations can be liable for the content of third-party ads and can require substantiation of claims in them before running them. If a candidate attacked in a third-party ad claims the ad is false, the station should require substantiation and may suspend broadcast of the ad pending it. Stations may also investigate ad claims. These steps may be necessary to avoid station liability for defamation and other potential claims.

In Citizens United the Supreme Court upheld disclosure requirements of the BCRA (Bipartisan Campaign Reform Law). Among these is that any third-party ad that refers to a federal candidate and is not authorized by a candidate or his/her committee must include, “[Full name] is responsible for the content of this advertising” and the paying party’s permanent street address, phone number or Web address and that the communication is not authorized by any candidate or candidate committee. This must be said clearly and be shown for at least four seconds. Also, if the paying party is a corporation or union, the party must provide a list of its chief executive officers or executive committee or board members for the station public file.

Stations have discretion whether to accept political ads to run on Election Day. If they run, LUC applies.

If a station has allowed a commercial advertiser, on any weekend during the year before the election, to change ad copy or buy time, the station must allow the same “perks” to candidates during the weekend before the election.

The federal access right, equal opportunities and LUC do not apply to station website advertising. But if a station offers packages of on-air and website political ads, it must do so equally for opposing candidates.

Stations should be guided by their overall obligation to operate in the public interest. Communications Act Section 315 requires broadcasters to afford reasonable opportunity for the discussion of conflicting views on issues of public importance, which include elections. So if ad spending is lopsided in favor or against a candidate, the station should consider covering the contest in news so that opposing views are aired.

The above is necessarily a partial list of items for the next 33 days. Those days could be fast and furious. Resolution of questions or disputes can be very fact-specific, and stations should consider consulting counsel.

At the FCC, political broadcast staff lawyers are available by phone to assist candidates, groups, stations and their counsel to resolve disputes over political advertising amicably.

Lyndsey M. Grunewald, a recent graduate of Georgetown University Law Center, contributed to this column.

This column on TV law and regulation by Michael D. Berg, a veteran Washington communications lawyer and the principal in the Law Office of Michael D. Berg, appears periodically. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at 2101 L Street, N.W., Suite 1000 Washington, D.C. 20037; [email protected]; or 202-530-8560. Read more of Berg’s Legal Memos here.

Note: This column provides general guidance only and is not a substitute for individualized legal advice for particular situations.