Advisories
Political Advertising Considerations for the Upcoming Midterm Elections
By
David M. Silverman
09.20.18
We are now within the 60-day political “window” prior to the midterm elections coming up on November 6, 2018. What this means to broadcasters and cable operators is that any legally qualified candidate for public office---federal, state or local—is entitled to the broadcaster’s or cable operator’s lowest unit charge or LUC for (1) the same “class” of time (e.g. preemptible or nonpreemptible); (2) the same amount of time (e.g. 30 seconds); and (3) the same time period (e.g. prime time). The lowest unit charge is based on the lowest rate provided to commercial advertisers advertising under the same three criteria.
There are many laws and rules applicable to political advertising, including the “no censorship” and “equal opportunities” clauses of Section 315 of the Communications Act. The primary benefit of the “no censorship” clause is that no broadcast station or cable operator is responsible for anything said in a candidate “use” ad and, therefore, cease and desist letters from opposing candidates pertaining to such ads can be ignored. In order to be a candidate use ad, however, the ad must be sponsored by the candidate or the candidate’s coordinated campaign committee, AND the ad must contain the identifiable voice or image of the sponsoring candidate.
“Equal opportunities” means that any non-negative appearance by a legally qualified candidate entitles that candidate’s legally qualified opponents to run counter-advertising. A non-negative appearance includes not only advertising for or on behalf of a candidate, but also appearances by a candidate as an actor or otherwise, unless the appearance is in a bona fide news program which is exempt from the obligation to provide equal opportunities.
All political ads, whether sponsored by a candidate or a third party, must contain sponsorship identification, consisting of the words “paid for” or “sponsored by.” The Bipartisan Campaign Reform Act or BCRA created additional sponsorship obligations on federal candidates, including the “stand by your ad” obligations. Although Section 315 incorporates BCRA to include the “stand by your ad” requirements for the federal candidate to be entitled to LUC rates, the FCC has informally taken the position that federal candidates can still be given LUC to avoid potential discrimination issues, even if the ad does not strictly comply with the requirement to include the “stand by your ad” disclaimer at the end of the ad.
States have also begun adding their own sponsorship ID, financial disclosure, public file and other requirements applicable to political candidate and issue ads running within that state. These requirements are not preempted by federal law so long as they do not attempt to change or override any of the federal law requirements. Examples of such state laws include the California DISCLOSE Act which imposes additional disclosure requirements in political ads; as well as similar laws in Washington and Maryland, among others. The Washington State Attorney General recently sued Facebook and Google, alleging that they failed to both keep and make publicly available political advertising records required by that state’s laws.
Accordingly, we have developed an up-to-date survey of political advertising laws in all 50 states. This survey can be provided on a state-by-state basis or for all 50 states, as needed. Please contact us for cost information or if you have any questions concerning either federal or state political advertising law requirements.
There are many laws and rules applicable to political advertising, including the “no censorship” and “equal opportunities” clauses of Section 315 of the Communications Act. The primary benefit of the “no censorship” clause is that no broadcast station or cable operator is responsible for anything said in a candidate “use” ad and, therefore, cease and desist letters from opposing candidates pertaining to such ads can be ignored. In order to be a candidate use ad, however, the ad must be sponsored by the candidate or the candidate’s coordinated campaign committee, AND the ad must contain the identifiable voice or image of the sponsoring candidate.
“Equal opportunities” means that any non-negative appearance by a legally qualified candidate entitles that candidate’s legally qualified opponents to run counter-advertising. A non-negative appearance includes not only advertising for or on behalf of a candidate, but also appearances by a candidate as an actor or otherwise, unless the appearance is in a bona fide news program which is exempt from the obligation to provide equal opportunities.
All political ads, whether sponsored by a candidate or a third party, must contain sponsorship identification, consisting of the words “paid for” or “sponsored by.” The Bipartisan Campaign Reform Act or BCRA created additional sponsorship obligations on federal candidates, including the “stand by your ad” obligations. Although Section 315 incorporates BCRA to include the “stand by your ad” requirements for the federal candidate to be entitled to LUC rates, the FCC has informally taken the position that federal candidates can still be given LUC to avoid potential discrimination issues, even if the ad does not strictly comply with the requirement to include the “stand by your ad” disclaimer at the end of the ad.
States have also begun adding their own sponsorship ID, financial disclosure, public file and other requirements applicable to political candidate and issue ads running within that state. These requirements are not preempted by federal law so long as they do not attempt to change or override any of the federal law requirements. Examples of such state laws include the California DISCLOSE Act which imposes additional disclosure requirements in political ads; as well as similar laws in Washington and Maryland, among others. The Washington State Attorney General recently sued Facebook and Google, alleging that they failed to both keep and make publicly available political advertising records required by that state’s laws.
Accordingly, we have developed an up-to-date survey of political advertising laws in all 50 states. This survey can be provided on a state-by-state basis or for all 50 states, as needed. Please contact us for cost information or if you have any questions concerning either federal or state political advertising law requirements.