LEGAL MEMO BY MICHAEL D. BERG

What If The Political Ads Just Keep Coming?

Although there will not be many ads attacking candidates next year, third parties inspired by their recent election experience can, and perhaps many will, continue to do “issue advertising” outside election seasons. Legally, stations have far more flexibility in handling third-party ads than candidate ads, but also far more potential exposure to liability for the ads’ content. Here's what stations need to know.

The on-air political campaign season that ended last Tuesday will long be remembered for many things — among them the amounts spent on ads (between $3 billion and $4.2 billion, depending on whom you ask); the Tea Party wins and losses; and the number, frequency and ferocity of ads attacking candidates and ballot issues. 

Many of those attack ads were placed and paid for by non-candidate “third parties” freed by Supreme Court rulings earlier this year to spend without limit up to Election Day. The content of many third-party ads stirred controversy. Their targets complained to stations of falsity or fraud. Stations had to decide how to respond.

Although there will not be many ads attacking candidates next year, third parties inspired by their recent election experience can, and perhaps many will, continue to do “issue advertising” outside election seasons.

Urging viewers or listeners to contact their elected officials to oppose or support proposed legislation is but one potential example. Health care reform, the economy, immigration and many other issues are likely to be hotly contested and widely debated for the foreseeable future, given the results on Nov. 2. Corporations, unions, “super PACs” and others with a recently-reinforced acquired taste for the political ad market may want to keep at it.

Legally, stations have far more flexibility in handling third-party ads than candidate ads, but also far more potential exposure to liability for the ads’ content.

No station is required to accept any third-party political (or non-political) ad. Stations can decline to run them for any or no reason. Lowest unit charge (LUC), which applies only to candidate ads during the 45 days before a primary election and 60 days before a general election, never applies to third-party ads.

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Stations may also require that non-candidate ad content be altered to remove false, defamatory or otherwise offensive or inappropriate material.

Censorship is allowed, in contrast to candidate “uses,” which stations cannot censor no matter what’s in them. Or they can “channel” ads to certain time slots, such as the 10 p.m.-to-6 a.m. “safe harbor,” when the FCC presumes that children are less likely to be in the audience.

Station licenses are granted in the “public interest,” and stations are expected to exercise reasonable judgment about what that requires of them with respect to advertising.

Because stations have this flexibility, they are not insulated from liability for third-party content, as they are for the candidate ads that stations cannot censor or channel. Stations can require substantiation of claims in ads by noncandidate advertisers before running them, or, once the ads have aired, if a station has reason to question — such as a complaint — an ad’s veracity.

Stations may also investigate ad claims, and generally should do so where the truth of an ad is called into question and the station is on notice of a potential problem. Stations can (and usually should) stop airing an ad pending substantiation or investigation of an ad claim. 

When to take these steps, and for how long, are case-by-case judgments, and consultation with station counsel is advisable. These steps may be necessary to avoid station liability for defamation and other potential claims.

Stations are not expected to be guarantors of the truth or accuracy of everything in every ad. On the other hand, a station with reason to suspect that an ad is false or deceptive or fraudulent is obligated to act — such as by requiring substantiation, investigating, pulling the ad — and the FCC generally defers to station good faith judgments if such steps are taken. These steps are also appropriate with respect to the Federal Trade Commission, which deals with deceptive advertising more often than the FCC.

Here are some other things you should keep in mind:

Licensee judgments about what is in the public interest usually are deferred to by the FCC if reasonable. Communications Act Section 315 requires stations to afford reasonable opportunity for discussion of conflicting views on issues of public importance. If only one side of a public issue is the subject of third party ads, a station should consider covering all sides in news programming.

Stations may let the ads run and take the risks; decline to run the ads at all or stop them at any time; ask the advertiser to indemnify them in writing against money damages that might be awarded by a court against a station in a defamation suit or other type of litigation; investigate an ad’s claims; and/or require substantiation from the advertiser of the facts alleged.. 

The FCC’s sponsorship identification rules applicable to commercial product and services advertising also apply to issue ads. They should identify who actually paid for the ad, using the language “paid for by” or “sponsored by.” The ID must reflect the person or entity that paid, even if another name is used in the transaction or elsewhere. In addition to audio the ID must be displayed visually in letters of at least 4% vertical height and on the air for at least four seconds against a contrasting background.

The Bipartisan Campaign Reform Act still requires that station public files contain the following for issue ads: a record of each request for issue ad time; whether the station accepted or rejected the ad wholly or in part; the rate charged; dates and times of broadcast; class of time; what issue is discussed in the ad; and, for the person or entity buying the ads, name, address, phone number of a contact person, and a list of the chief executive officers, board of directors or other officials of the buyer of the time for the spots. The court rulings against political ad spending limits did not overturn such disclosure requirements.

So in the period ahead, reap the benefits, and comply with the obligations, of post-election political broadcasting.  In doing so, stations will also be serving their audiences.


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.


Comments (4)

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Scott McDaniel says:

November 5, 2010 at 10:35 am

Well we all know the coffers across the corporate world of American broadcasting today will welcome the potential for more advertising dollars. There is also a possible healthy outcome for the electorate-at-large whereas we could experience public discourse of issues that otherwise would pass like ships in the night within the walls of an elected body. Conversely we could be deluged in false and deceptive on-air promotions from unknown entities. It is a fine line to walk with so much decision making power placed in the hands of the management at any one broadcaster. The potential for the dollars to be earned for airing any one side of an issue could be tempting to a management team that looks only to the bottom line, versus the overall good of the community they serve. This is a new uncharted sea, and the watch dogs better have their waterwings well inflated for the potential tsunamis ahead.
Peter Bright

Jill Hatzioannou says:

November 5, 2010 at 2:07 pm

I think that there will be one more election cycle for this outpouring of mostly unregulated and anonymous spending. One side took full advantage of the ramifications of the Supreme Court ruling during this election, they were successful and they will have little incentive to apply any restrictions. I suspect that the other side has taken note and in 2012 there will be a lot more money spent on ‘issue’ advertising. I also expect it to result in a remarkably vile and vicious campaign season where the carnage will be widespread among all sides of the political spectrum, the public left even more disgusted with the process and the polarization of the country unprecedented. Perhaps the wounds suffered on all sides will lead to efforts to rebottle the genie. Then again, maybe not. Perhaps those left standing will be too invested in the outcome to recognize the damage it has caused.

Lindsey King says:

November 5, 2010 at 3:03 pm

I just say “Bring it!” No rate regulation for Issue and I will take the money to the bank.

Brian Bussey says:

November 9, 2010 at 4:49 pm

The US Supreme Court has just facilitated the method for which the Anit-Christ will rise. Many Americans believed his number was ’43 or ’44 and may other Americans believe her number will be ’45. Any number you assign him or her, we are screwed.


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