In a recent Order, the FCC's Media Bureau admonished the licensees of two Georgia television stations in response to complaints alleging violations of the FCC's political file rules. According to the FCC, the stations failed to sufficiently comply with record-keeping obligations in response to several political ad sales made in 2017.
Pursuant to the Bipartisan Campaign Reform Act of 2002 (often referred to as "BCRA" or the "McCain-Feingold Act"), broadcasters are required to keep and make available extensive records of purchases and requests for purchases of advertising time if the advertisement communicates a message relating to a "political matter of national importance". Section 315(e) of the Communications Act of 1934, which was amended by BCRA, states that ads that trigger such disclosure include those that relate to legally qualified federal candidates and elections to federal office, as well as "national legislative issues" of public importance.
The FCC clarified these requirements in a recent Memorandum Opinion and Order ("Clarifying Order"), explaining that stations must disclose all such candidates, elections and issues referenced in an ad, rather than selectively choosing which to disclose. Stations must keep these records up to date and open to the public in their "political file", which is available online as part of a station's Public Inspection File.
The Order admonishing the Georgia stations was in response to six complaints jointly filed by a pair of watchdog organizations in 2017. Due to the similarity of the allegations, the FCC decided to resolve them together. Three complaints were lodged against each of the licensees, and involved the same three ads that had run on both stations. Each ad was sponsored by a different, though ideologically similar, national political organization, and all addressed the then-ongoing campaign for the local Congressional District for the U.S. House of Representatives. One of the ads had referenced a candidate for the House seat, and another referenced the issue of lower taxes. While the complainants acknowledged that the stations had uploaded certain records of the ads to their respective political files, they alleged these records were inadequate because they lacked sufficient detail about the ads.
Upon reviewing the stations' political files, the FCC admonished both stations, noting that the records in question were flawed because they failed to include the political matters of national importance referenced in the ads.
One station argued that its placement of its paperwork in the subfolder "U.S. House" clearly indicated to the public that the ad dealt with the upcoming election for the local district's Congressional House seat. At the same time, the station acknowledged that it may have incorrectly completed its disclosure form for the ad purchase, but also noted that the particular form it used is voluntary and not required by law. In response, the FCC determined that the station's subfolder name did not adequately disclose the election discussed in the ad, and noted that while stations are free to use a disclosure form of their choice, the disclosure must still contain the information required by law.
The second station acknowledged that its records regarding the three ads were incomplete, but maintained that its omissions were inadvertent and that the missing details did not cause any public harm because the subject of each ad was "self-evident" and "obvious". Like the first station, this station made the argument that its use of a commonly-used disclosure form was purely voluntary, but fared no better with the FCC than the first station had. The FCC concluded that the subject of the ads was not self-evident, and that specific harm to the public need not be demonstrated as long as there is a finding that the station willfully or repeatedly failed to upload the required information.
Despite the rule violations, the FCC declined to fine the stations because the stations' conduct predated the release of its Clarifying Order regarding similar violations by other stations.
Relevant to this proceeding, the National Association of Broadcasters ("NAB") has filed a Petition for Reconsideration challenging the original Clarifying Order and another FCC action related to it. In it, the NAB argued that the FCC violated the Administrative Procedure Act by improperly adopting new rules outside of a traditional rulemaking proceeding. The NAB also challenged as overbroad the FCC's definition of a "political matter of national importance", and raised First Amendment questions about the constitutionality of these rules.
Despite that pending challenge, the FCC clearly intends to enforce these rules as now clarified. As the political season heats up, stations should keep in mind that they are now on notice of these "clarified" political file obligations, and should not assume the FCC will be as forgiving going forward.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.