2007 cba political

© Womble Carlyle 2004 - 2006

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• The The FAIRNESS DOCTRINEFAIRNESS DOCTRINE has been repealed. has been repealed.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.


Legally Qualified CandidateLegally Qualified Candidate

• Must have announced intention to runMust have announced intention to run

• Must be qualified under state law to Must be qualified under state law to hold the officehold the office

• Has qualified under state law to be on Has qualified under state law to be on the ballot the ballot oror is qualified for a write-in is qualified for a write-in candidatecandidate

• Presidential candidates must be Presidential candidates must be qualified in the state or in ten statesqualified in the state or in ten states


The Key Element of Political The Key Element of Political Broadcasting Is a Candidate Broadcasting Is a Candidate

“Use”“Use”• A “use” is a positive candidate A “use” is a positive candidate

appearance by an appearance by an identifiableidentifiable voice or picture for at least 4 voice or picture for at least 4 sec.sec.

• The appearance does The appearance does notnot have have to be controlled or approved by to be controlled or approved by the candidatethe candidate


Federal Candidates Are Federal Candidates Are Entitled to Reasonable Entitled to Reasonable

AccessAccess• Applies during entire campaignApplies during entire campaign

• Stations cannot set limits on amount or Stations cannot set limits on amount or type of time that candidates can buytype of time that candidates can buy

• Stations may reject unreasonable Stations may reject unreasonable requests and negotiate with candidatesrequests and negotiate with candidates

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


Program Access Program Access (Federal Candidates)(Federal Candidates)

• Must be offered prime time, program timeMust be offered prime time, program time

• May be excluded from newsMay be excluded from news

• May May notnot be excluded from any other be excluded from any other category of programscategory of programs

– Not necessarily when they want – Subject to Not necessarily when they want – Subject to negotiationnegotiation

• Stations must consider odd program Stations must consider odd program lengthslengths


Non-Standard LengthsNon-Standard Lengths

• Stations are required to negotiate with federal Stations are required to negotiate with federal candidates for the sale of non-standard length candidates for the sale of non-standard length spots and program-length segments, spots and program-length segments, regardless of whether they have sold such regardless of whether they have sold such lengths in the past.lengths in the past.

• If not previously sold, rates can take into If not previously sold, rates can take into account lost revenue, including any diminution account lost revenue, including any diminution of revenue due to lost ratings for immediately of revenue due to lost ratings for immediately following programs.following programs.


State and Local CandidatesState and Local Candidates

• Stations can take ads from some races Stations can take ads from some races and not othersand not others

• Stations can limit the number of adsStations can limit the number of ads• Stations can restrict dayparts in which Stations can restrict dayparts in which

ads will runads will run• Stations must make all “discount Stations must make all “discount

classes” availableclasses” available• Equal Opportunities, Lowest Unit Equal Opportunities, Lowest Unit

Charge and No Censorship applyCharge and No Censorship apply


DeadlinesDeadlinesAccess to PersonnelAccess to Personnel

• Weekend Access – Not before the electionWeekend Access – Not before the election– political advertisers -- only to the extent provided political advertisers -- only to the extent provided

to commercial advertisers at any time during the to commercial advertisers at any time during the previous yearprevious year

– If weekend access is provided only for modifying If weekend access is provided only for modifying copy and canceling spots, that is all that need be copy and canceling spots, that is all that need be given candidatesgiven candidates

• Final weekend before the electionFinal weekend before the election– Required: giving candidates access to station Required: giving candidates access to station

personnel to purchase and schedule spots may be personnel to purchase and schedule spots may be necessary to permit candidates to exercise their necessary to permit candidates to exercise their equal opportunities rightsequal opportunities rights


Equal OpportunitiesEqual Opportunities

• Applies when candidate becomes Applies when candidate becomes legally qualifiedlegally qualified

• Applies to candidates in same raceApplies to candidates in same race

• Candidates must request equal Candidates must request equal opportunities within seven daysopportunities within seven days

• Triggered by non-exempt useTriggered by non-exempt use


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)


ContentContent

• Can you refuse to air a political “use” Can you refuse to air a political “use” which is in conflict with another federal which is in conflict with another federal statute, such as a use that is indecent?statute, such as a use that is indecent?– obscene?obscene?

• TALK TO YOUR LAWYER FIRST!TALK TO YOUR LAWYER FIRST!• You are free to reject political ads which You are free to reject political ads which

do not contain a “use”do not contain a “use”– Because stations have the power of Because stations have the power of

censorship in such situations, they are not censorship in such situations, they are not immune to libel and defamation actions immune to libel and defamation actions based on such advertisingbased on such advertising


Subject of UseSubject of Use

• Because of the no-censorship Because of the no-censorship provision, a candidate may use the provision, a candidate may use the time as he or she sees fit time as he or she sees fit –– not not required to discuss his or her required to discuss his or her candidacycandidacy

• What about Problem AdsWhat about Problem Ads


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


No CensorshipNo Censorship

Farmers Educational and Cooperative Union of Farmers Educational and Cooperative Union of America v. WDAY, Inc.America v. WDAY, Inc. 360 U.S. 525, 1959 360 U.S. 525, 1959

• ““. . . the licensee has consistently been . . . the licensee has consistently been denied “power of censorship” in the area of denied “power of censorship” in the area of political broadcasts.” political broadcasts.” §315§315

• ““Since the power of censorship of political Since the power of censorship of political broadcasts is prohibited it must follow as a broadcasts is prohibited it must follow as a corollary that the mandate prohibiting corollary that the mandate prohibiting censorship includes the privilege of immunity censorship includes the privilege of immunity from liability for defamatory statements made from liability for defamatory statements made by the speaker” by the speaker” citing the ND Supreme Courtciting the ND Supreme Court


Prior ReviewPrior Review

• Stations Stations may askmay ask to review political to review political advertising in advance to ensure:advertising in advance to ensure:– That it constitutes a “use” by the candidate, andThat it constitutes a “use” by the candidate, and– That the ad contains the necessary sponsorship That the ad contains the necessary sponsorship

identification, andidentification, and– That it does not exceed the agreed length.That it does not exceed the agreed length.

• Candidate not required to comply – 1 bite Candidate not required to comply – 1 bite rulerule

• When requesting a script or tape for such a When requesting a script or tape for such a review, inform the candidate you are review, inform the candidate you are prohibited from censoring the materialprohibited from censoring the material


• Legally qualified candidates are entitled Legally qualified candidates are entitled to purchase time for a use at rates to purchase time for a use at rates COMPARABLECOMPARABLE to those charged other to those charged other advertisers outside the 60 & 45 day advertisers outside the 60 & 45 day periods. periods.

• Stations may never discriminate against Stations may never discriminate against a candidate or charge more than would a candidate or charge more than would be charged any other advertiser for be charged any other advertiser for advertising or other station services. advertising or other station services.

RatesRates


Political RatesPolitical Rates• Apply to all races — federal, state & localApply to all races — federal, state & local

• Lowest unit charge applies during political Lowest unit charge applies during political “window”“window”

– 45 days before a primary or caucus45 days before a primary or caucus

– 60 days before a general or special election60 days before a general or special election

• Use must be in connection with the Use must be in connection with the campaigncampaign


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• If the candidate’s voice or image does not appear, the

spot does not qualify• Commercials purchased by non-authorized 3rd parties

do not qualify• Ballot issue ads and “issue” ads do not qualify

• LUC applies to ALL legally qualified candidates.

• State and local candidates and federal candidates.


Example Classes of Time:Example Classes of Time:• Fixed or fixed PositionFixed or fixed Position - Guaranteed to run - Guaranteed to run

on date and time.on date and time.

• Non-preemptibleNon-preemptible - Not subject to - Not subject to preemption.preemption.

• Preemptible with NoticePreemptible with Notice - Preemptible only - Preemptible only after notice by a specific time.after notice by a specific time.

• Immediately Preemptible w/o NoticeImmediately Preemptible w/o Notice - - Preemptible at any time.Preemptible at any time.

• Run of Schedule Run of Schedule - Preemptible spot can be - Preemptible spot can be scheduled at any time by station w/o prior scheduled at any time by station w/o prior notice.notice.


Preemptible:Preemptible:• Commercial advertisers may “take a significant Commercial advertisers may “take a significant

prospective risk of nonclearance” to pay lessprospective risk of nonclearance” to pay less

• Stations may establish their own reasonable Stations may establish their own reasonable classes of preemptible timeclasses of preemptible time

– Not made up for politicalNot made up for political– Not based solely on price or identity of the Not based solely on price or identity of the

advertiseradvertiser– Demonstrable benefit to advertiserDemonstrable benefit to advertiser– Different obligations on stationDifferent obligations on station


Preemptible TimePreemptible Time• Stations may treat separate Stations may treat separate

levels of preemptible time as levels of preemptible time as separate classesseparate classes

• Stations that sell all time on an Stations that sell all time on an “auction” basis “auction” basis maymay have only have only one class of preemptible timeone class of preemptible time


Special PoliticalSpecial PoliticalClasses of Time:Classes of Time:

• Stations may offer a special “Stations may offer a special “candidate fixed time” fixed time”

– Special class of non-preemptible (more valuable to political Special class of non-preemptible (more valuable to political advertiser)advertiser)

– truly distinguishable from the preemptibletruly distinguishable from the preemptible

– DiscountedDiscounted no more expensive than commercial preemptible no more expensive than commercial preemptible with with genuine riskgenuine risk of preemption of preemption

• News AdjacenciesNews Adjacencies: Only when guaranteed adjacent : Only when guaranteed adjacent andand banned from inside news programming banned from inside news programming

• No more than news program itselfNo more than news program itself• Different than broader rotation that Different than broader rotation that happens happens to butt the to butt the

newsnews


Rotations:Rotations:• Distinctly different rotations may be Distinctly different rotations may be

separate classes of time.separate classes of time.

• TestTest

– Are the separate rotations consistent Are the separate rotations consistent with normal selling practices, andwith normal selling practices, and

– based on objective criteria (audience based on objective criteria (audience size, demographics, etc.)size, demographics, etc.)


Rotations:Rotations:

• Week to week variations OKWeek to week variations OK

• BUTBUT

– Must honor the LUC during the weekMust honor the LUC during the week– Political advertiser pays no more than Political advertiser pays no more than

the lowest cost spot running in that the lowest cost spot running in that weekweek


Package Plans:Package Plans:

• Package plans or bonus spots are Package plans or bonus spots are notnot considered a separate classconsidered a separate class

– Package within a class is just a volume Package within a class is just a volume discountdiscount

– Package containing spots in multiple Package containing spots in multiple classes &/or dayparts may be allocatedclasses &/or dayparts may be allocated

– Packages may be allocated over length of Packages may be allocated over length of the runthe run

– Document prices assigned to each spotDocument prices assigned to each spot


What to Include in the LUC:What to Include in the LUC:

• All spots paid by commercial advertisersAll spots paid by commercial advertisers

• Value of packages and bonus spotsValue of packages and bonus spots

• All contracts in effect during the political All contracts in effect during the political windowwindow

• Paid PSAs by Commercial AdvertisersPaid PSAs by Commercial Advertisers

• Fire Sale RatesFire Sale Rates


What to Exclude From the What to Exclude From the LUC:LUC:

• Barter spotsBarter spots

• Per-inquiry spotsPer-inquiry spots

• Bonuses for charitable and non-Bonuses for charitable and non-profit organizationsprofit organizations

• Billboards & Program sponsorshipsBillboards & Program sponsorships


What to Exclude From the What to Exclude From the LUC:LUC:

• Technical or audience-delivery make Technical or audience-delivery make goodsgoods

• Value-added incentivesValue-added incentives

– BUT: Must be offered on the same basisBUT: Must be offered on the same basis

• The Network ExceptionThe Network Exception


Network ExceptionNetwork Exception

• Compensation received by each station Compensation received by each station affiliate not affect own LUCaffiliate not affect own LUC

• Network “use” will trigger equal Network “use” will trigger equal opportunity on every affiliateopportunity on every affiliate

• If network itself doesn’t offer equal If network itself doesn’t offer equal opportunity, station mustopportunity, station must

• Softwave Media Exchange Softwave Media Exchange • GoogleGoogle


• Request for declaratory judgment at FCCRequest for declaratory judgment at FCC


Rate Increases or Decreases:Rate Increases or Decreases:

• Before the Political WindowBefore the Political Window

– Be careful: ads may run in the Be careful: ads may run in the WindowWindow

• During the Political WindowDuring the Political Window

– If normal practice based on Audience If normal practice based on Audience ratings, seasonal program changes or ratings, seasonal program changes or time sold on weekly rotation, on a time sold on weekly rotation, on a weekly basis.weekly basis.


Agency and Rep Agency and Rep CommissionsCommissions

• Stations that price time on a Stations that price time on a commissionable basis must offer commissionable basis must offer time on a “net” basis to candidates time on a “net” basis to candidates without agencieswithout agencies

• Reps’ commissions are paid by the Reps’ commissions are paid by the station and do not affect the LUCstation and do not affect the LUC


Specific Programs:Specific Programs:

• Programs can differ on program by Programs can differ on program by program basisprogram basis

• If station treats programs this way, each If station treats programs this way, each program may be considered a separate program may be considered a separate rotation (or daypart)rotation (or daypart)


Sold Out Time?Sold Out Time?• Daypart or Particular ProgramDaypart or Particular Program

– Provide access to comparable opportunities within Provide access to comparable opportunities within

• Preemptible TimePreemptible Time– Only if all preemptible spots within a class were sold Only if all preemptible spots within a class were sold

at same rate (flat or auction ceiling) & then may be at same rate (flat or auction ceiling) & then may be bumped only by a more expensive bumped only by a more expensive classclass. .

– If advertiser can preempt with If advertiser can preempt with a higher price within a higher price within same classsame class -- Not sold out!! -- Not sold out!!

– Total Auction selling = NEVER SOLD OUTTotal Auction selling = NEVER SOLD OUT


Production Facilities:Production Facilities:

• LUC does not applyLUC does not apply• Station may charge standard rates.Station may charge standard rates.

• BUTBUT

– Cannot discriminate between political Cannot discriminate between political advertisers.advertisers.• E.g. Free production to only oneE.g. Free production to only one


Make Goods:Make Goods:Not included in LUC, Not included in LUC, BUTBUT::

• Must run in same rotation period or may Must run in same rotation period or may set new LUC for a more expensive set new LUC for a more expensive period for that weekperiod for that week

• Audience Short Fall Make Goods sold to Audience Short Fall Make Goods sold to Political:Political:

– Audience info may not be availableAudience info may not be available– Provide a prompt rebate or offer Provide a prompt rebate or offer

make good for subsequent electionmake good for subsequent election


Time Sensitive Make Goods:Time Sensitive Make Goods:

• In the last 12 mos. if you promise In the last 12 mos. if you promise preempted make good, same class of preempted make good, same class of time, within a specific time frame (time, within a specific time frame ( i.e.,i.e., holiday sale). . . . . Then . . . . .holiday sale). . . . . Then . . . . .

• Political make good must run before the Political make good must run before the electionelection


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

Disclose !!!Disclose !!!




Disclosure StatementDisclosure Statement• Should be in writingShould be in writing

• Should be provided to every Should be provided to every candidate or agency requesting candidate or agency requesting political time (inside or outside the political time (inside or outside the political windows)political windows)

• Stations do not have to ensure that Stations do not have to ensure that candidates read the disclosure candidates read the disclosure statementstatement

• Will change during the political Will change during the political seasonseason

Political AdvertisingPolitical AdvertisingDisclosure StatementDisclosure Statement

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


Disclosure Statement Must Disclosure Statement Must Include:Include:

• Time classes available to advertisersTime classes available to advertisers

• Anticipated LUC or comparable rate for Anticipated LUC or comparable rate for each classeach class

• Make good policiesMake good policies

• Preemptible time practicesPreemptible time practices

• Any other sales practicesAny other sales practices


Sponsor IdentificationSponsor Identification

• All spots must have a proper sponsor IDAll spots must have a proper sponsor ID

• Must use “paid for” or “sponsored by”Must use “paid for” or “sponsored by”

• Spots paid for by someone other than Spots paid for by someone other than the candidate must state whether they the candidate must state whether they are authorized by the candidate (FEC)are authorized by the candidate (FEC)

• TV — Four seconds; four percent of TV — Four seconds; four percent of screen height (20 scan lines)screen height (20 scan lines)


Bipartisan Campaign Reform ActBipartisan Campaign Reform Actof 2002of 2002

• BCRA Sponsorship IDBCRA Sponsorship ID• Applies Applies onlyonly to Federal races to Federal races

– Ads refer to opponentAds refer to opponent– To receive LUCTo receive LUC

• Candidate must be identified, and the Candidate must be identified, and the following required following required candidate candidate statement statement must be made:must be made:

they authorized or approved the broadcast they authorized or approved the broadcast and that the spot was paid for by the and that the spot was paid for by the candidate or his authorized campaign candidate or his authorized campaign committeecommittee


Bipartisan Campaign Reform ActBipartisan Campaign Reform Act

Federal candidates – to qualify for LUCFederal candidates – to qualify for LUC– must supply stations with a certificate re: must supply stations with a certificate re:

references to opposing candidatesreferences to opposing candidates– certified by the candidate or his authorized certified by the candidate or his authorized

committeecommittee– Candidates failing to comply are Candidates failing to comply are not not

eligibleeligible for lowest unit rates for the for lowest unit rates for the remainder of the election periodremainder of the election period

• The certificate portion is curable but failure to The certificate portion is curable but failure to make make stand-by-your-adstand-by-your-ad statement is not! statement is not!


Federal Candidate CertificateFederal Candidate Certificate

• Must state that the candidate will not make Must state that the candidate will not make direct reference to an opposing candidate in direct reference to an opposing candidate in his advertisinghis advertising

• Unless, at the end of the spot, there is a Unless, at the end of the spot, there is a 4 4 sec. +sec. + statement statement– the spot was authorized by the candidate andthe spot was authorized by the candidate and– paid for by him or his authorized committee and paid for by him or his authorized committee and – Statement that candidate approved the adStatement that candidate approved the ad– TV spots -- clearly identifiable image of candidate TV spots -- clearly identifiable image of candidate

and clearly readable written statement and and clearly readable written statement and approved the adapproved the ad


BCRA ID – Radio – Campaign ActBCRA ID – Radio – Campaign Act

• An audio statement by the An audio statement by the candidate in which the candidate candidate in which the candidate identifies himself and states that he identifies himself and states that he approves of the broadcastapproves of the broadcast


BCRA ID – Radio – Comm ActBCRA ID – Radio – Comm Act

• An audio statement of the An audio statement of the candidate in which the candidate candidate in which the candidate identifies himself, identifies himself, states the office states the office he is running forhe is running for, states that he , states that he approves of the broadcastapproves of the broadcast


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


What’s Wrong WithWhat’s Wrong WithThis Radio Ad?This Radio Ad?


What’s Right AboutWhat’s Right AboutThis Radio Ad?This Radio Ad?


BCRA ID – Television – Comm ActBCRA ID – Television – Comm Act

• Either:Either:– A full-screen view of the candidate identifying himself A full-screen view of the candidate identifying himself

and making the required statement, and making the required statement, oror– A candidate voiceover an imageA candidate voiceover an image

• the candidate identifies himselfthe candidate identifies himself• makes the required statementmakes the required statement

– Identifies himself and approves message, ANDIdentifies himself and approves message, AND– The candidate’s authorized committee paid for the broadcastThe candidate’s authorized committee paid for the broadcast

• A A clearly identifiable imageclearly identifiable image of the candidate ( of the candidate (80%80% of of screen height); screen height);

• andand, in either case:, in either case:A clearly readable written statement of the same A clearly readable written statement of the same information (4% of height, 4 seconds, w/ reasonable color information (4% of height, 4 seconds, w/ reasonable color contrast)contrast)


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


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 Spots – BCRAThird Party Spots – BCRA• Third party spots which advocate the election or Third party spots which advocate the election or

defeat of federal candidates, or which solicit defeat of federal candidates, or which solicit campaign contributions, must contain the following:campaign contributions, must contain the following:– A statement that the spot is not authorized by any A statement that the spot is not authorized by any

candidate; andcandidate; and– Audio statement: “____ is responsible for the content of Audio statement: “____ is responsible for the content of

this advertising” this advertising” • Blank identifies political committee or who paid for the Blank identifies political committee or who paid for the

broadcast, any organization connected with the payor, and broadcast, any organization connected with the payor, and a permanent street address, tel no. & wwwa permanent street address, tel no. & www

– For TV, an unobscured full-screen view of a For TV, an unobscured full-screen view of a representative of the committee or person making the representative of the committee or person making the statement plus the text of the statement (4 sec.; color statement plus the text of the statement (4 sec.; color contrast)contrast)


Third Party Issues Spots – FCCThird Party Issues Spots – FCC• Where the material broadcast is:Where the material broadcast is:

– political matter or political matter or – controversial issue of public importance, and of public importance, and– a corporation, committee, association or other a corporation, committee, association or other

unincorporated group, or other entity is paying for or unincorporated group, or other entity is paying for or furnishing the broadcast matterfurnishing the broadcast matter

• the station shall, in addition, require that a list of the station shall, in addition, require that a list of the chief executive officers or members of the the chief executive officers or members of the executive committee or of the board of directors of executive committee or of the board of directors of the corporation, committee, etc the corporation, committee, etc

• shall be made available for public inspection at the shall be made available for public inspection at the location specified by the licensee location specified by the licensee


ADVANCE PAYMENTADVANCE PAYMENT

• For federal candidates, stations For federal candidates, stations can require payment no more than can require payment no more than seven daysseven days in advance in advance

• For state and local races, station’s For state and local races, station’s commercial advance payment commercial advance payment policies applypolicies apply


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

• Candidate or agency has Candidate or agency has established credit relationship with established credit relationship with the station, the station, andand

• Candidate or agency assumes Candidate or agency assumes responsibility for payment, responsibility for payment, andand

• Station would give credit to similar Station would give credit to similar commercial advertisercommercial advertiser


Political FilePolitical File§73.1943§73.1943

• The name of the candidate The name of the candidate requesting time (not rate inquiries) requesting time (not rate inquiries)

• The nature and disposition of the The nature and disposition of the request – whether accepted or request – whether accepted or rejectedrejected

• The rate chargedThe rate charged• All other non-exempt usesAll other non-exempt uses• Keep information for two yearsKeep information for two years• For politicalFor political, do not have to , do not have to

respond to telephone inquiriesrespond to telephone inquiries


Contents of Political FileContents of Political File

• Date and time airedDate and time aired• Class of time purchasedClass of time purchased• Name of candidate to which the spot Name of candidate to which the spot

refers, the office sought, or the issue to refers, the office sought, or the issue to which the spot referswhich the spot refers

• In the case of a candidate request, In the case of a candidate request, name of the candidate, authorized name of the candidate, authorized committee, and treasurer of the committee, and treasurer of the committeecommittee


Political File Contents, cont.Political File Contents, cont.

• Any other political request:Any other political request:– The name of the person or entity The name of the person or entity

purchasing the time,purchasing the time,– The name, address and phone The name, address and phone

number of a contact person, andnumber of a contact person, and– A list of the chief executive officers, A list of the chief executive officers,

members of the executive members of the executive committee or of the board of committee or of the board of directors of such entity. directors of such entity.


RecordkeepingRecordkeeping

• Maintained for two yearsMaintained for two years• Covers each message relating to a Covers each message relating to a

political matter of national importance, political matter of national importance, includingincluding– A legally qualified candidate;A legally qualified candidate;– Any election to federal office; orAny election to federal office; or– A national legislative issue of public A national legislative issue of public

importance.importance.


Ads and Ads and Other CommunicationsOther Communications

Activities of othersActivities of others

Ideas for Ideas for Enhanced Selling & NTREnhanced Selling & NTR


Outside GroupsOutside Groups


Who can pay for a campaign ad? Who can pay for a campaign ad? What is off limits? What is off limits?

Federal PACs -- no limit Federal PACs -- no limit

Individuals -- No limit, butIndividuals -- No limit, but• Over certain limits must reportOver certain limits must report

Corporations (including non-profits) and Corporations (including non-profits) and Unions – no treasury funds for:Unions – no treasury funds for:

Express advocacyExpress advocacy

Electioneering communicationsElectioneering communications


What is express advocacy?What is express advocacy?

• In 1976, Supreme Court:In 1976, Supreme Court:speech that “expressly advocates” the speech that “expressly advocates” the election or defeat of a candidate. election or defeat of a candidate.

• Bright line between advocating a Bright line between advocating a candidate and advocating for an issue candidate and advocating for an issue

• Became known as “magic words” test -- Became known as “magic words” test -- “vote for,” “defeat,” “re-elect” “vote for,” “defeat,” “re-elect”


Almost 30 years laterAlmost 30 years later

• Supreme Court: Express advocacy test has Supreme Court: Express advocacy test has proved “functionally meaningless”proved “functionally meaningless”

• ““Call and tell” ads. Call and tell” ads.

• “… “… And though he talks about protecting And though he talks about protecting children, Yellowtail failed to make his own children, Yellowtail failed to make his own child support payments – then voted child support payments – then voted against child support enforcement. Call Bill against child support enforcement. Call Bill Yellowtail. Tell him to support family Yellowtail. Tell him to support family values.”values.”


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© 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


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


www.wcsr.com/telecomwww.wcsr.com/telecom


Political AdsPolitical Ads

• Send MPEG and MP3Send MPEG and MP3

• [email protected]@wcsr.com

mailto:[email protected]


• Gregg Skall —Gregg Skall — CBA Washington Counsel CBA Washington Counsel202-857-4441 202-857-4441 [email protected]@wcsr.com1-877-4 FCC LAW1-877-4 FCC LAW

• Bobby Baker : Hope Cooper — Bobby Baker : Hope Cooper — FCC Political Programming BranchFCC Political Programming [email protected]@fcc.gov ; ; [email protected]@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




http://www.fcc.gov/mb/policy/political/


Gregg P. SkallGregg P. SkallWomble Carlyle Sandridge & Rice LLCWomble Carlyle Sandridge & Rice LLC

Washington, D.C.Washington, D.C.

(202) 857-4441(202) 857-4441


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TIME FOR YOUR TIME FOR YOUR QUESTIONSQUESTIONS

Gregg Skall

Womble Carlyle

202-857-4441

[email protected]

2007 cba political

News & Politics