What Broadcast Stations Should Be Thinking About Now, Before the Lowest Unit Rate Windows Open
By David Oxenford on
This week’s political primaries in Texas are but the first of many more election contests that will occur between now and November. Already, we are receiving client calls about the political rules, how they should be applied, and what stations should be considering in anticipation of the upcoming elections. I’ve discussed the general FCC issues to be considered by broadcasters in many different ways. In January, I conducted a webinar for two state broadcast associations on these issues, following a similar webinar that I conducted with the head of the FCC’s office of political programming back in November for about 20 additional state associations. The slides from the most recent webinar are available here. Our firm also has available a Guide to Political Broadcasting, here, that provides information about many topics that come up in this area every year. But, with the election still months away, and in many states primaries that don’t occur until the summer, are there issues that broadcasters should be considering today?
Yes – there are many such issues that broadcasters should be considering immediately. As we wrote here prior to the last Presidential election, it is important to start planning early for an election. As that article details, and as set out in our Political Broadcasting guide, there is much planning for lowest unit rates that needs to take place now – before the actual windows (45 days before the primary and 60 days before the general election) in which those rates apply. Stations are likely selling advertising schedules that will run during the windows later this year, and they are putting together advertising packages that will be offered to commercial advertisers during the window. Consideration needs to be given now as to how that advertising will be treated to avoid unwanted lowest unit rate implications during the window.
As that article and another that we wrote here make clear, there are many other issues that stations need to be considering outside the windows, as once a candidate is legally qualified, virtually all of the other political rules apply. A candidate becomes legally qualified once they have filed the necessary paperwork to qualify for a place on the ballot (and, in some cases, to write-in candidates as well – see our article here). Once they are legally qualified, the reasonable access, equal opportunities, sponsorship and disclosure rules, including all public file rules, apply.
So, for candidates for Federal offices, reasonable access requirements apply as soon as a candidate is legally qualified. That means that the candidate is entitled to have access for advertising in all classes and dayparts on all commercial stations. While there may be a bit more flexibility in providing that access early in a campaign than there is closer to Election Day as there are more opportunities to provide that access, nevertheless stations need to pay attention to candidate requests. See our article here for more information about reasonable access.
Equal opportunities also apply as soon as a candidate is legally qualified. So if you sell advertising time to one candidate in a political race (local, state or Federal as equal opportunities apply to all candidates for public office – see our article here), you have to provide equal access to all opposing candidates. Free time must also be provided to one candidate if given to another outside of an exempt program (exempt programs including bona fide news and news interview programs – see our article about these consideration, written before the last Presidential election here).
Other equal time issues arise in connection with employees of the station who decide to become candidates – even for local office. See our article here. Equal opportunities issues can also arise in connection with a local advertiser who appears in his or her own commercials, and decides to become a candidate for political office. See our article here for some issues to consider if this situation arises in your market.
In addition to these matters, political file issues arise well before the opening of the political window. For candidates, once they have become legally qualified, any “use” by that candidate needs to be noted in the public file (a “use” being an appearance on the station of the candidate’s recognizable voice or likeness outside of an exempt program). Issue advertising – both state and Federal – also has political file disclosure obligations that arise outside of political windows (with Federal issues advertising having much greater disclosure obligations almost identical to those of candidates). With all new political documents now needing to be uploaded to the online public files of both radio and TV stations, these political files are subject to much more public (and FCC) scrutiny.
These are but some of the issues broadcasters should be thinking about in what is likely to be a very active political year. You should be talking with your station’s attorney and sales staff now to make sure that everyone is ready to take care of the potential tidal wave of political advertising that may be arriving in the coming months, without running afoul of FCC rules.
