The Federal Communications Commission ("FCC") recently released a Memorandum Opinion and Order ("MO&O") that both clarifies and increases the public file obligations relating to political ads aired by broadcasters or via cable TV or DBS. The MO&O focuses on the public file obligations created by the 2002 Bipartisan Campaign Reform Act ("BCRA"). Specifically, BCRA amended Section 315 of the Communications Act to require a public file record of any ad that "communicates a message relating to any political matter of national importance."

The recordkeeping obligations imposed by BCRA for such ads mirror those previously established by the FCC for political candidate ads, specifically:

  • (A) whether the request to purchase broadcast time is accepted or rejected by the licensee;
  • (B) the rate charged for the broadcast time;
  • (C) the date and time on which the communication is aired;
  • (D) the class of time that is purchased;
  • (E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);
  • (F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and
  • (G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.

Section 315 gives examples of three types of political ads that qualify as a "political matter of national importance," creating the need for the recordkeeping requirements specified above. They include ads for 1) a "legally qualified candidate"; 2) "any election to federal office"; and 3) "a national legislative issue of public importance." The FCC's MO&O provides the Commission's interpretation of this provision. The key points are as follows:

  • Most significantly, the public file record of a qualifying political ad must include the names of ALL legally qualified candidates mentioned in the ad; ALL political matters of national importance mentioned in the ad; and ALL national legislative issues of public importance referred to in the ad;
  • BCRA's detailed recordkeeping requirement for "national legislative issue[s] of national importance" refers to legislation that is currently pending before Congress, but not if mentioned in a commercial ad (e.g., an ad for wheelchairs that mentions Medicare);
  • A "political matter of national importance" may also include issues that are not the subject of pending federal legislation; and
  • The obligation to provide a list of the chief executive officers, members of the executive committee or board of directors of an organization sponsoring a third party political ad requires broadcasters and cable/DBS operators to ask if a complete list of those persons has been provided if given the name of one person only.

Additionally, in a separate Order, the FCC clarified that public file records should include the full names of candidates and sponsoring committees. For example, DSCC would be insufficient to identify the Democratic Senatorial Campaign Committee.

The FCC's Orders also analyze specific political ads that ran on numerous stations. The most significant takeaway from these Orders is the obligation imposed on broadcasters, cable operators and DBS providers to specify ALL political matters of national importance mentioned in political ads, even if the ad is for a state or local candidate. For example, if the ad mentions a state candidate's stance on immigration reform, that issue would have to be noted in the public file record for the ad.

However, the FCC's Orders discussed above do not change the recordkeeping requirements for political issue ads that do not mention either a candidate for office or a federal political issue. If the ad concerns only a state or local political issue or issues (e.g., a statewide bond proposal to benefit public schools), the public file record need only contain the fact that an ad aired about the specific issue(s) and the names of the chief executive officers, executive committee or board of directors of the sponsoring organization. But if only one name is provided, an inquiry should be made as to whether there are others, in accordance with the FCC's MO&O described above.

Although the 2019 statewide elections are upon us, the FCC's recent interpretation of BCRA's recordkeeping requirements applies to the upcoming primaries and elections in 2020 and beyond.

This article was originally featured as a communications advisory on on November 04, 2020. Our editors have chosen to feature this article here for its coinciding subject matter.