Red Alert:  FCC Zooms in on Political File Compliance

As part of investigations dating back to 2019, the FCC recently concluded that stations owned by six large groups had violated its rules requiring public file disclosure related to political advertising. Due to COVID-19 impacts, the FCC declined to impose monetary fines, but each station group entered into consent decrees that require a series of compliance and reporting actions over the next few years to ensure that the political ad information is properly and timely placed in station public files.  For stations that routinely run political advertising, it’s worth reviewing one of the consent decrees to see the scope of the additional compliance requirements agreed to – all of which will take a significant amount of time and require detailed documentation.

Four more Consent Decrees have followed those six, and we have just received word that more than 200 stations have also just received emails noting political file noncompliance issues in connection with license renewal.  Those emails, sent by FCC staffers, include a draft consent decree, a deadline to sign it in exchange for getting license renewal grants, no fine, but language in the email that says the decree terms will not be altered.  From contact with other attorneys practicing before the FCC, it appears that these consent decree emails do not distinguish between situations where only a few political ad requests were uploaded late, versus others with a consistent problem.

Let’s review the rule requirements.  The FCC’s rule requires stations to place specific information in the political section of the online public file — each request for time made by or on behalf of a candidate for public office; notations showing the disposition of such request (rejected or accepted), date/time spots are scheduled to be aired (and after airing, the date/time aired), the rate charged, and the class or classes of time purchased.  The name of the candidate and authorized committee, and the treasurer of the committee must also be included. If free time is provided to candidates, stations must upload information about the time, date and length of time that a candidate appeared on the station (except for an exempt appearance, i.e., in a news story).

The time of the upload is critical, and appears to be the focus of the FCC’s recent enforcement efforts. The information should be uploaded as soon as requests are made/orders placed or a use is made of the station. The rule says “as soon as possible” and defines that as “immediately absent unusual circumstances,” which enables opposing candidates to obtain information quickly and make decisions about their own responsive ad buys.  Some believe that in hotly contested races, computer “bots” may be being used to scan a station’s political file for activity to assist candidates or campaigns in responsive ad buys. These can spawn complaints on timeliness of uploaded information.

Issue ads also require political file uploads.  For all local and state issue ads, the name of the group and its executive officers or directors must be placed in the political file (the rate charged does not have to be disclosed).  For federal elections, a third party attack/support ad or an ad dealing with an issue of national importance requires political file disclosure of the name of the group, officers/directors, name/address/phone number of a contact person, each request to purchase time, accepted/rejected status, rate charged, date/time spots are scheduled to be aired and actually aired, name of the candidate to which the spot refers and office sought (for an issue ad, the issue to which the spot refers).

Be vigilant. If your station’s renewal has not come up yet, get ready by reviewing your political file to see if required uploads are timely (if they’re not, take notes on which ones are late as that will need to be disclosed in the renewal application).  The materials that are required in the political file do not have to stay there forever – retention is for a period of two years – so remove anything from the political file that is greater than two years old.

If you have questions about station political ad or public file requirements, we are available to assist.