The FCC this week issued an Order reconsidering some of the issues addressed in its October 2019 orders (which we summarized here) interpreting its political advertising rules. Those October interpretations required that broadcasters who run ads addressing federal issues must include in the political file, maintained as part of their online public file, information about all of the candidates and issues discussed in such ads, not just the most prominent issue or candidate it discusses. The October ruling also required that stations inquire of issue advertisers (or their agencies) about the names of the chief executive officers or members of their boards of directors if the station is provided with only one name, as the rules require the disclosure of all of the officers or directors of such organizations and the FCC assumes that most of these groups have more than one officer or director. The October rulings also warned stations against the use of acronyms in their public file where such abbreviations could be misleading to the general public when they view the political file.
The reconsideration addressed two aspects of the October ruling. First, it made clear that the ruling applied only to federal issue ads, not to ads bought by candidates or their authorized campaign committees. That seemed to be clear from other statements made by the FCC and its staff (see our article here) but the reconsideration makes it explicit.
The second aspect of the reconsideration was a statement that the FCC is looking for good-faith efforts of stations to comply. The October decision had some troubling language that suggested that the FCC was expecting stations to provide uniformity of public file disclosures as to the issues discussed in this advertising, which suggested some sort of strict compliance requirement. In fact, even lawyers have been disagreeing about how to characterize some of the issues discussed in some of these federal issue ads. For example, if an ad discusses both the Border wall and immigration, is that a discussion of two aspects of the immigration issue or are they two separate issues that must be listed separately on the disclosure form? What about issues that are addressed only by implication without being specifically mentioned – or candidates who are being attacked subtly, without use of their name? Recognizing that there is room for judgement on many of these issues, the reconsideration order indicates that the FCC is looking for good-faith efforts at compliance by licensees.
The FCC also indicates that good faith is the standard for the use of acronyms in public file disclosures. In some cases, the public will clearly know to whom an abbreviation refers – like the NRA. In such circumstances, where the licensee in its good faith judgment determines that the abbreviation will be known to most reasonable people, the abbreviation can be used instead of the full name, e.g., National Rifle Association would not need to be spelled out. But it seems prudent for stations to be cautious and use full legal names wherever possible, even though the FCC decision now allows good faith judgements as to when abbreviations may be appropriate.
The FCC refused to go farther in its ruling. It is not at this time reconsidering the requirement for identifying all candidates and issues mentioned in any issue ad, nor the requirement to try to find out if there is more than one member of the board or executive officers of a sponsor. So, for now, stations need to continue to comply with these requirements. But stations should be at least somewhat reassured that, if they are legitimately trying to comply, the FCC will credit their good faith attempts.
Courtesy Broadcast Law Blog
