4-0 FCC Vote Expected on Political Ad Order

An FCC draft order on largely administrative changes to political advertising rules is considered noncontroversial and could be approved unanimously even before the agency’s Jan. 27 open meeting, said broadcast and FCC officials in interviews. The item’s docket, 21-293, shows no activity since October. The NPRM version was unanimously approved before commissioners’ August meeting (see 2108040058).

The draft order would formally require information on political issue ads to be included in broadcaster online public files, syncing up the agency’s written rules with the text of the 2002 Bipartisan Campaign Reform Act. The Media Bureau has required such information in public files since the BCRA but until this draft order hadn’t updated the text of FCC political file rules to match. The required records include the rate charged for the broadcast time, the issue and election that are the subject of the ad, and similar details. "These revisions ensure that the political recordkeeping rules fully and accurately reflect statutory requirements," said the draft order, and "will foster greater transparency about the entities sponsoring candidate and issue ads."

Broadcasters have been complying for years, so the draft order’s approval wouldn’t mean any changes for them or their attorneys, said Shainis & Peltzman broadcast lawyer Steve Lovelady. The changes “do not dramatically affect the existing political broadcasting practices of broadcasters,” blogged Wilkinson Barker's David Oxenford.

The draft order would also include political campaign websites and campaign use of social media among the activities stations should take into account when deciding if a write-in candidate for office is eligible for candidate political ad rates and other benefits. The online presence of a write-in candidate would be an additional indication a candidate is “bona fide” but wouldn’t be determinative, the draft order said. That’s in line with a suggestion from NAB, which was one of the few commenters on the item at the NPRM stage. Write-in candidates “bear the burden of proving they are legally qualified,” and “a broadcaster’s reasonable, good faith determination whether a candidate is legally qualified is entitled to deference,” NAB said.

The write-in requirements are intended to insulate broadcasters from having to provide special ad rates to nonserious candidates, attorneys said (see 2107290053). The FCC’s list of activities is “illustrative and not exhaustive” and stations were likely already considering online activities when considering such candidates, Oxenford said. Write-in candidates seeking political ad rates are relatively rare, Lovelady said: “I don’t think I’ve ever had anyone ask me about it.”