1

Before the

FEDERAL COMMUNICATIONS COMMISSION

Washington, DC 20554

Complaint of

Campaign Legal Center and Sunlight

Foundation

Against

American Broadcasting Company, licensee of

WTVD-TV, Durham, NC

For Violations of the Communications Act

§ 315 and FCC Regulation § 73.1212

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To: Enforcement Bureau

COMPLAINT

The Campaign Legal Center and the Sunlight Foundation file this complaint regarding

violations of the Communications Act and the Federal Communications Commission’s (“FCC”)

regulations by the American Broadcasting Company (“ABC”), licensee of WTVD-TV. In April

2014, WTVD-TV ran a political ad sponsored by American Crossroads. The station failed to

disclose in its online political file information about American Crossroads and the ad as required

by the Communications Act and the FCC’s regulations.

I. Facts

A. Parties

The Campaign Legal Center is a nonpartisan, nonprofit organization that promotes

awareness and enforcement of political broadcasting laws. The Campaign Legal Center’s

mission is to represent the public interest in the enforcement of media and campaign laws.

Through public education, advocacy for federal rulemaking proceedings, and congressional

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action, the Campaign Legal Center seeks to shape political broadcasting policies and promote

effective enforcement of the public interest obligations of the media.1

The Sunlight Foundation is a nonpartisan nonprofit that advocates for open government

globally and uses technology to make government more accountable to all. Sunlight

accomplishes these goals at municipal, federal, and international levels by building tools that

empower democratic participation and by working with policymakers and civil society

organizations to employ a technology-centric and transparency-oriented approach to their work.

The Sunlight Foundation has built tools that empower individuals and journalists to better and

more easily understand political spending across the United States, which depend on data found

within broadcast stations' political files and elsewhere.2

WTVD-TV is an ABC-owned and operated station in Durham, North Carolina. Durham

is part of the 24th largest Designated Market Area in the country, serving more than 1.1 million

households.3 ABC is wholly owned by the Walt Disney Company. The Walt Disney Company is

headquartered in Burbank, California, and is one of the largest media conglomerates in the

world, operating in film, broadcast and cable television, theater, music, and entertainment.4

B. The Advertisement

In April 2014, WTVD-TV broadcast a political ad purchased by American Crossroads

entitled “Guts.”5 American Crossroads is a political advocacy group and Super PAC

1 See Campaign Legal Center, http://www.campaignlegalcenter.org (last visited Apr. 2, 2014).

2 For instance, Political Ad Sleuth and Ad Hawk are two such tools. See Political Ad Sleuth,

http://politicaladsleuth.com (a searchable database created from FCC online public file

documents); Ad Hawk, http://adhawk.sunlightfoundation.com (a mobile app allowing

identification of political ads). 3 Local Television Market Universe Estimates, The Nielsen Company (2013),

http://www.tvb.org/media/file/TVB_Market_Profiles_Nielsen_TVHH_DMA_Ranks_2013-

2014.pdf. 4 The Walt Disney Company, Company Overview, http://thewaltdisneycompany.com/about-

disney/company-overview (last visited Apr. 3, 2014). 5 Sean Sullivan, Crossroads launches major ad buy for Thom Tillis in North Carolina,

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headquartered in Washington, D.C., that promotes limited government and free enterprise.6

Although American Crossroads does not disclose its donors, it is widely known to be closely

associated with Republican strategist Karl Rove.7

“Guts” refers to candidates Kay Hagan and Thom Tillis. Since 2009, Kay Hagan served

as a Democratic U.S. Senator for North Carolina, and is running for reelection. Tillis is running

in the primary election to become the Republican challenger for the same seat. The American

Crossroads ad, transcribed below, discusses the Affordable Care Act, national debt, and voter ID

laws.8 The ad explicitly supports Tillis and his stance on those issues.

[Narrator:] We know where they [Hagan and Obama] stand. Their Obamacare deception. Addicted to out of control spending and debt. Attacking our common sense voter ID law. Thom Tillis, true to our values, as speaker eliminated a $2.5 billion deficit and cut taxes. The conservative guts to replace Obamacare with honest health care reforms. Protect our voter ID law. Thom Tillis, North Carolina values for a change. [On-screen: “Vote for Thom Tillis.”]

The contract included in Exhibit B shows that American Crossroads spent $32,700 (including an

agency commission of $4,905) to broadcast this ad on WTVD-TV for the week of April 1, 2014.

Washington Post (Apr. 1, 2014), http://www.washingtonpost.com/blogs/post-

politics/wp/2014/04/01/crossroads-launches-major-ad-buy-for-thom-tillis-in-north-

carolina/?wprss=rss_politics&clsrd. A copy of this article is attached as Exhibit A. Exhibit A

also contains screenshots of the ad. The ad may be viewed at

https://www.youtube.com/watch?v=PEkXpx53Ivc. 6American Crossroads, About–Who We Are, http://www.americancrossroads.org/about (last

visited Apr. 2, 2014). 7 E.g., Byron Tau, Karl Rove Groups Raised $6.1 Million in 2013, Politico (Jan. 31, 2014),

http://www.politico.com/story/2014/01/karl-rove-super-pac-american-crossroads-crossroads-gps-

victory-project-fundraising-102961.html. 8 See Mark Binker, Rove-Affiliated American Crossroads Airs Ads for Tillis, WRAL (Apr. 1,

2014), http://www.wral.com/rove-affiliated-american-crossroads-airs-ads-for-tillis/13529282/;

Sean Sullivan, supra note 5.

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American Crossroads plans to spend $1.1 million on television advertising leading up to the May

6, 2014 primary election.9

II. Argument

The American Crossroads ad triggers WTVD-TV’s political file disclosure requirements

in the Communications Act and the FCC’s regulations. WTVD-TV, however, has failed to

disclose the required information.

A. The Communications Act and the FCC’s regulation requirements.

When broadcasters run political ads, they must meet specific disclosure requirements set

forth in § 315(e) of the Communications Act and in part 73 of the FCC rules.

Section 315(e)(1) of the Communications Act requires that broadcast licensees maintain

records regarding any request to purchase broadcast time that “communicates a message relating

to any political matter of national importance, including (i) a legally qualified candidate; (ii) any

election to Federal office; or (iii) a national legislative issue of public importance.”10

For such requests, the licensee must disclose “the name of the candidate to which the

communication refers and the office to which the candidate is seeking election, the election to

which the communication refers, or the issue to which the communication refers (as

applicable).”11

The licensee must disclose a list of the purchaser’s “chief executive officers or

members of the executive committee or of the board of directors.”12

Similarly, FCC regulations require licensees to disclose information about paid

broadcasts if those broadcasts concern a “political matter” or discuss a “controversial issue of

public importance,” and the ad is paid for by “a corporation, committee, association or other

9 Id.

10 47 USC § 315(e)(1)(B)(i)–(iii) (2014).

11 Id. § 315(e)(2)(E).

12 Id. § 315(e)(2)(G).

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unincorporated group, or other entity.”13

In such cases, the FCC also requires a “list of the chief

executive officers or members of the executive committee or of the board of directors, committee

association or other unincorporated group or other entity.”14

B. The American Crossroads ad triggers the disclosure requirements of § 315(e)(2)

of the Communications Act and § 73.1212(e) of the FCC’s regulations.

WTVD-TV’s airing of “Guts” triggers the disclosure requirements of § 315(e)(2) of the

Communications Act and § 73.1212(e) of the FCC’s rules for three reasons. First, the ad refers to

two different legally qualified candidates—Senator Hagan and Thom Tillis. Hagan, a Democrat,

is the incumbent Senator running for reelection. She maintains a campaign website where she

provides daily updates, press releases, and collects donations.15

She raised over $6.8 million for

her campaign by the start of the 2014 election year.16

Tillis, who is currently the Speaker of the

House in the North Carolina state legislature, is running to become the Republican candidate for

Senator in the contested May 6 primary election. Tillis maintains a public campaign website

where he provides regular updates, issues press releases, and collects donations.17

Tillis raised

$1.3 million in 2014 for his campaign.18

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47 CFR § 73.1212(e). See also id. § 73.1943. Currently, a station in the top-50 designated

market areas and affiliated with a top-four network must upload its political file to the FCC’s

online database; however, all television stations will be required to do so beginning in July 2014.

Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public

Interest Obligations, Second Report and Order, 27 FCC Rcd 4535, 4536–37 (2012). 14

47 CFR § 73.1212(e). 15

See Kay Hagan, http://www.kayhagan.com/ (last visited Apr. 16, 2014). 16

John Frank, Morning Memo: Hagan Posts Another $2M Fundraising Quarter, News Observer

(Jan. 21, 2014), http://www.newsobserver.com/2014/01/21/3551507/morning-memo-hagan-

posts-another.html. 17

See Thom Tillis, http://thomtillis.com/ (last visited Apr. 3, 2014) 18

Patrick O’Connor, Thom Tillis Gets Cash Boost in North Carolina Senate Fight, WSJ (Apr. 7,

2014), http://blogs.wsj.com/washwire/2014/04/07/thom-tillis-gets-cash-boost-in-north-carolina-

senate-fight/.

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Second, the ad refers to an election. As indicated above, the ad encourages viewers to

“Vote for Thom Tillis.”19

This references the North Carolina primary election to be held on May

6, 2014.

Third, the ad communicates a message relating to both a “national legislative issue of

public importance” and a “controversial issue of public importance” for purposes of the

Communications Act and the FCC’s regulations. The ad refers to the Affordable Care Act, the

national debt, and voter ID laws. The Affordable Care Act is the quintessential legislative and

controversial issue of public importance: it was President Obama’s key initiative and has been

the subject of numerous court challenges, including at the Supreme Court. The national debt is

also a national and controversial issue; the budget has become the center of attention in many

discussions, including in the October 2013 U.S. government shutdown.20

Voter ID laws also

present a controversial issue of public importance nationally. Although such laws are

promulgated at the state level, many states either have such laws or are considering them.21

The

laws affect voter turnout in national elections and implicate a fundamental civil right.22

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A screenshot of this language is in Exhibit B. 20

Kevin Carmichael, U.S. Congress Remains Divided in Budget Showdown, Globe and Mail

(Sept. 30, 2013), http://www.theglobeandmail.com/news/world/us-congress-remains-divided-in-

budget-showdown/article14620528/ 21

According to a March 24, 2014 update by the National Conference of State Legislatures,

“[v]oter ID continues to be a high-profile issue in many state legislatures in 2014, although not

as active as in the previous three years. In 2013, 30 states considered voter ID legislation. In

2012, legislation was introduced in 32 states. In 2011, 34 states considered voter ID legislation.

For 2014, 24 states have proposals to create new voter ID requirements, or amend existing voter

ID laws.” NCSL, Voter Identification Requirements, http://www.ncsl.org/research/elections-and-

campaigns/voter-id.aspx (last visited Apr. 21, 2014). 22

E.g., George E. Curry, Bill Clinton Says Voter ID Laws Undermine Civil Rights Progress,

New Pittsburgh Courier (Apr. 16, 2014), http://newpittsburghcourieronline.com/2014/04/16/bill-

clinton-says-voter-id-laws-undermine-civil-rights-progress/.

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C. WTVD-TV failed to disclose the information required by law.

WTVD-TV disclosed the following regarding the sale of airtime for “Guts”: a contract,

which discloses rates, dates, and times in compliance with section 315(e)(2)(A)-(D); and the

National Association of Broadcasters (NAB) Form PB-18, “Agreement Form for Non-

Candidate/Issue Advertisements.” Copies of both are included in Exhibit B.

The NAB form asks whether the ad communicates a “message relating to any political

matter of national importance.” If yes, then the form asks for disclosure of the candidate and

office, election, and/or issue referred to by the ad. The form names the “Affordable Care Act” as

an example of a “national legislative issue[s] of public importance.” Even though “Guts”

communicates a political message of national importance, WTVD-TV did not even answer the

question. The station failed to disclose the name of the candidate and office sought, the election,

and the issue referred to by the ad, despite being specifically prompted to do so by the NAB

form. These sections were simply left blank.

Similarly, WTVD-TV failed to list the chief executive officer or members of the

executive committee or the board. The station did provide, in the wrong section of the NAB

form, the name of American Crossroads’ Treasurer, Margee Clancy. Even if this were in the

correct section, it would be insufficient to satisfy the legal requirement to include the chief

executive officers or members of the board of directors. Thus, WTVD-TV failed to disclose the

information required by the Communications Act and the FCC’s regulations.

Conclusion

The Communications Act and FCC rules are intended to inform the public about the

amount of spending and source of funding when broadcast stations air paid programming

concerning candidates, elections, and political matters of public importance. WTVD-TV has

failed to disclose this important information. Thus, the Campaign Legal Center and the Sunlight

Foundation respectfully request that the FCC take prompt action to ensure that this information is

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made available to the public through WTVD-TV’s public file. We further request that the FCC

take other measures, such as assessing forfeitures and issuing a Public Notice reminding

broadcast stations of their obligations, to ensure that this and other broadcast stations include all

of the legally required disclosures in the future.

Of counsel:

Matthew J. Dulac

Georgetown Law Student

Dated: May 1, 2014

Respectfully submitted,

Eric G. Null

Angela J. Campbell

Andrew Jay Schwartzman

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Avenue, NW

Suite 312

Washington, DC 20001

(202) 662-9535

Counsel for Campaign Legal Center

and Sunlight Foundation

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Exhibit A

The following screenshots are from the American Crossroads ad, available at:

https://www.youtube.com/watch?v=PEkXpx53Ivc.

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This screenshot is of the same ad, showing Thom Tillis.

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Crossroads launches major ad buy for Thom Tillis in North Carolina

Sean Sullivan, Washington Post

April 1, 2014, at 10:47 AM

http://www.washingtonpost.com/blogs/post-politics/wp/2014/04/01/crossroads-launches-major-

ad-buy-for-thom-tillis-in-north-carolina/?wprss=rss_politics&clsrd

The GOP-aligned super PAC American Crossroads launched a major ad campaign in North

Carolina on Tuesday with a commercial supporting state House Speaker Thom Tillis (R) as he

runs in a contested Republican primary for U.S. Senate.

The new ad, which contrasts Tillis with Sen. Kay Hagan (D-N.C.), is the first commercial in a a

four-week, $1.1 million Crossroads buy leading up to the May 6 primary. A candidate must win

more than 40 percent to secure the nomination without a runoff, which Crossroads appears to

want Tillis to avoid.

The ad tethers Hagan to Obama on health care and the state's voter ID law before pivoting to a

defense of the Republican's record on the same issues.

"Thom Tillis. True to our values," says the narrator.

The ad marks the second time in recent weeks Crossroads has hit the airwaves on behalf of a

Republican running in a contested Senate primary. In Alaska, the group unveiled an ad

supporting former state attorney general Dan Sullivan (R), The Washington Post reported last

week. The commercial featured former secretary of state Condoleezza Rice vouching for

Sullivan.

Tillis is the frontrunner for the GOP nomination, the scant public polling on the GOP race

reveals. He faces lesser-known contenders running to his right, such a physician Greg Brannon

(R) and Baptist minister Mark Harris (R).

North Carolina has emerged as a central focus of both parties in the battle for the Senate, and

GOP groups have blitzed the airwaves. Americans for Prosperity, a group backed by the

billionaire Koch brothers, has already spent more than $7.2 million in the race. Through the

middle of last week, Republican ad spending had outpaced Democratic money by about $6

million.

"It's pretty unbelievable for Karl Rove to spend over a million dollars to praise Thom Tillis'

'values,' which as we saw last year include giving a tax cut to the wealthy while 80 percent of

North Carolina families pay more," said Hagan spokeswoman Sadie Weiner, in response to the

new ad.

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Exhibit B

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