Watch for Congressional “Franking” Ads in the Last Weeks Before the Pre-Election Period – The FCC Political Broadcasting Implications

We have been receiving numerous calls from broadcasters about “franking” ads from Congressional representatives running for reelection.  Congress each year allows its members to spend certain amounts of money to communicate with their constituents.  This was traditionally done through mailings, which Congressional representatives could send through the US mail without any postage charges (hence the name “franking” deriving from a French word for “free”).  This privilege was later extended to allow the representatives to use broadcast media, but stations are paid for such spots.  These franking messages cannot be used for political messages, and the messages cannot be run during the 60 days before any election.  They tend to talk about how Congressional staff can help constituents with problems accessing government benefits or about how government programs can help residents in their districts.  But just because the messages are not in and of themselves political does not mean that the messages do not have implications under the FCC’s political broadcasting rules.

These franking ads are almost always voiced by the representative (for radio) or have a visual appearance of the representative (for TV).  If the representative is running for reelection, and has qualified for a place on the ballot (for a primary or general election) or will run as a bona fide write-in candidate (see our post here about write-in candidates), then the ads can have FCC political broadcasting implications.  As with any other appearance of a legally qualified candidate on the air outside an exempt program (exempt programs being news or news interview programs or documentaries not about the candidate – see our article here), the recognizable voice or image of a candidate is a “use” by that candidate that triggers equal opportunities for opposing candidates. As we wrote here about advertisers who appear in their company’s commercials and then decide to run for political office, those uses need to be noted in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). The use would also trigger equal opportunities, meaning that any opposing candidate can request an equivalent amount of airtime.  But that does not necessarily mean that a station needs to reject these franking ads.

As these franking ads are paid spots, where the station is receiving money to air the ad (and not an unpaid one like a candidate appearance in a free PSA), the “use” in a paid message likely gives rise to equal opportunities for other opposing candidates to buy time on the station. If the station has plenty of commercial inventory and does not mind selling additional spots (beyond what the opposing candidates have already bought) to the opposing candidates in equal amounts to the franking ads, where those opposing candidates can run political messages, running the franking ad does not present issues. But if inventory is tight, and the station has already met its reasonable access obligations to opposing federal candidates, the station may want to limit the franking ads featuring the re-election candidate, as airing those spots featuring the voice or image of the candidate would require the station to provide equal time to the opposing candidates upon request.

This is one take on some of the political broadcasting issues that can arise from the increasingly common uses of franking ads by Congressional candidates.  But this is just our take, and we don’t know of any specific FCC rulings on the issue, so the Commission’s ultimate guidance may be different.  In these last couple of weeks that Congressional money can be used for running these franking ads, stations should be on the lookout for their airing, and consider the political advertising implications.  The Congressional offices themselves do not necessarily understand the FCC implications of these ads.  Each station should discuss these issues with their own attorneys to get the full run-down of all the ramifications of running a franking ad featuring a legally qualified candidate for political office.

Courtesy Broadcast Law Blog