While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.
The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28. January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.
In most states, there will be a separate primary window in which contenders for seats in the US House of Representatives will be selected. A third of the Senate is also up for election – meaning primaries in most of those states. Plus there will be primaries for state and local elections – and in some states municipal primaries and elections may be held at times different than those for the US Congress and even different from other state offices. For each of these primaries held at different times, there will be a window during which lowest until charges will apply, but only to those candidates running in the race to be decided in that particular election.
As we have noted before (see our articles here and here), state and local candidates do not need to be sold time by broadcast stations – the “reasonable access” rules don’t apply. But once a station decides to sell them advertising time, all of the other political rules apply – including lowest unit rates. The right to these rates cannot be waived by state and local candidates.
Even before the windows open in your state, your station needs to engage in significant planning to make sure that you are charging candidates the correct rates and observing all of the other political advertising rules. We’ve written about some of those issues here. Reasonable access and equal opportunities apply even outside the window. That means that federal candidates have a right to buy time on your stations, even outside the window. Once they buy time, the “no censorship” rules apply (see our articles here and here), meaning that you cannot censor a candidate’s message. Equal opportunities means that if you sell ads to one candidate, you must sell them to another. And if you have a candidate on the air outside of an exempt program (see our articles here and here on exempt programs), you must give the other candidate equal time if they request it within 7 days. That goes for on-air appearances of station employees who decide to run for office (see our articles here, here and here) and for commercial advertisers who appear in their own spots and become political candidates (see our article here).
Third party ads, from PACs, political parties and other advocacy groups will no doubt accompany the increase in candidate spending. These ads, while not entitled to lowest unit charges, nevertheless present their own unique challenges. As these ads can be edited or rejected based on their content, stations can theoretically have liability for their content if that content is defamatory or raises other legal issues (see our article here on dealing with challenges to the truth of these third-party political ads). Plus, the FCC’s recent decision about the public file obligations that go with third-party political ads (and other federal issue ads) provide yet another layer of complexity for broadcasters (see our articles here and here).
These are just some of the issues that stations will need to deal with as the election season kicks into high gear. So study up, get prepared, and do your best to cope with the upcoming onslaught of political advertising that may be coming your way.
Courtesy Broadcast Law Blog
