Political Broadcast/Cablecast Obligations Contained in Campaign Reform Act Approved by Supreme Court
Yesterday (December 10), the U.S. Supreme Court approved most provisions of the former McCain-Feingold Campaign Finance Bill, now known as the Bipartisan Campaign Reform Act of 2002 (“BCRA”). Although the BCRA contains many complex provisions relating to “soft money” expenditures and generally amends the Federal Election Campaign Act, it also amends Section 315 of the Communications Act with regard to political advertising. Specifically, the BCRA imposes additional requirements for federal candidates to be entitled to lowest unit charge rates and creates additional public file requirements for broadcasters and cable operators alike. Since the BCRA is now in effect for the upcoming primaries and elections, it is important to be aware of the applicable provisions.
LOWEST UNIT CHARGE PROVISIONS
Section 315(b) of the Communications Act is amended to impose conditions on federal candidates seeking to take advantage of lowest unit charge (“LUC”) rates. Specifically, candidates for federal office must now provide written certifications when placing spots within the LUC periods (60 days before election; 45 days before primary), stating that the spot makes no direct reference to another candidate for the same office. Alternatively, the candidate can certify that a TV spot ends with a photograph or similar image of the candidate and a printed statement to the effect that the candidate approves of the spot and that his or her authorized campaign committee paid for the spot. The photograph and statement must be shown for at least four seconds. A radio spot must include a personal audio statement by the candidate, including the candidate’s name, office sought, and that the candidate has approved the spot. In other words, inclusion of the specified identification (“ID”) material at the end of the spot allows the candidate to run a negative campaign ad against an opposing candidate, without jeopardizing LUC rates.
Practically speaking, the BCRA’s ID requirements are not materially different than the FCC’s current sponsorship identification rules, including the requirement for a four second TV ID. The primary difference is the BCRA’s photo ID requirement. Certification forms complying with the BCRA will likely be written broadly to cover both contingencies, i.e., that the candidate has not made any reference to an opposing candidate or that the spot complies with the BCRA’s ID requirements.
PUBLIC FILE REQUIREMENTS
Section 504 of the BCRA adds a new subsection to Section 315 of the Communications Act specifying records that need to go into the station’s or system’s political file. Specifically, the BCRA requires records of any request to purchase time made 1) by or on behalf of a legally qualified candidate for public office; or 2) by anyone who “communicates a message relating to any political matter of national importance,” including a) legally qualified candidate, b) any election to federal office; or c) a “national legislative issue of public importance.” The records kept must include the following information:
1) Whether the request to purchase time is accepted or rejected.
2) The rate charged.
3) Date(s) and time(s) on which the spot airs.
4) Class of time purchased.
5) Name of candidate to which the spot refers and office sought; the election to which the spot refers; or the issue to which the spot refers (as applicable).
6) If the request is made by or on behalf of a candidate, that candidate’s name, the name of his/her authorized campaign committee and its treasurer.
7) If the spot is not placed by a candidate, the name of the person purchasing time, the name, address and phone number of a contact person and a list of the chief executive officers, members of executive committee or board of directors, as appropriate.
These records are required to be maintained in the political file for two years. In the case of candidate requests for time, the Act essentially follows current FCC rules, adding only the identification of the candidate who is attacked in a negative ad. The records for spots concerning political matters of national importance are not materially different from the Commission’s current requirements to keep lists of sponsorship ID information for such ads. However, the information specified in numbers 1 through 4 above formerly applied to political candidates only, and the ID requirements in number 5 are new.
Please contact us if you have any questions regarding these requirements.