FCC Clarifies Political Broadcasting Public File Disclosure for Issue Ads

For stations that accept issues ads, two recent decisions by the FCC warrant your attention to be sure you’re now properly disclosing the ads in the station’s online public file. The decisions can be found here and here.

The decisions concern Section 315 of the Communications Act, which requires that when a non-candidate group makes an offer to buy an ad about Federal issues, the station must disclose in its public file the same information that it would normally disclose for a candidate ad (i.e., was the ad accepted, class of time purchased, schedule of spots, price paid, and exact times spots aired). In addition, a station must also disclose the candidate or issue discussed in the ad. On this point, Section 315 requires disclosure for any ad discussing a “political matter of national importance” and as examples, cites (a) any discussion of any candidate for office, (b) any discussion of any election for a Federal office, and (c) any national legislative issue of public importance.

The FCC’s recent decisions clarify that the disclosure requirement for ads discussing “any candidate for office” is triggered when the candidate mentioned is a candidate for Federal political office. The FCC also notes that a “national legislative issue of public importance” means an issue currently pending in legislation before Congress. But the FCC also notes that even if an issue is not currently pending before Congress, it could still be a “political matter of national importance.” The decision then requires that all such issues in an ad be identified by the broadcaster in its public file disclosure. This will require stations to review an ad to be sure that the public file disclosure is complete. Stations should not simply rely on what a group identifies as an issue in the ad, but must undertake their own review.

The FCC also clarified a station’s responsibility in connection with the requirement that stations disclose in the public file executive officers or directors of groups offering issue ads. If a station only receives one name in response to its question for identification of officers/directors, or otherwise suspects that the disclosure is inadequate, the station must ask more questions to determine whether there are more officers/directors than are disclosed by the group. Though the FCC doesn’t require it, stations in this situation should document their efforts to request more officer/director info from the sponsoring organization or advertising agency. That way, if a complaint is filed, the station can defend itself.

Unlike a rule change, which must go through certain administrative hoops to become effective, these are clarifications that are effective now. Stations should therefore begin complying with this guidance immediately.