On January 18, the lowest unit charge window for Presidential primaries or caucuses begins in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia. The LUC window opened on January 15 for South Carolina’s Democratic primary and will open on January 23 for stations in Puerto Rico. Soon behind, on January 25, lowest unit charge windows for presidential contests open in Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), and Washington State. The window opens on January 27 in the US Virgin Islands and West Virginia. January 29th is the opening of the window for contests in Guam (R), N. Mariana Islands (D) and Wyoming (R).
In these windows, when broadcasters sell time to candidates for ads in connection with the races to be decided on these dates, 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 LUC (or LUR for “lowest unit rate”) window in these states is just the beginning of the political windows that will be opening across the country for Presidential primaries and caucuses, as well as for Congressional races and state and local offices. These political 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.
In most states, the Presidential contests will have separate primary windows from other political contests that will be decided in the general election in November. In many states, there will be primaries in the Spring or Summer in which nominees will be selected for seats in the US House of Representatives, for contested Senate seats, and for state and local offices. In some states there may be entirely different timing for municipal primaries and elections. For each of these primaries held at different times, there will be a window during which lowest unit charges will apply, but only to those candidates running in the race to be decided in that particular election. Be sure to stay on top of all of these election dates in your station’s service area.
As we have noted before (see our articles here and here), advertising time does not need to be sold to state and local candidates by broadcast stations – the “reasonable access” rules don’t apply. But once a station decides to sell time to these candidates, 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. Equal opportunities mean 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).
Once legally qualified candidates buy time, inside or outside the political window, the “no censorship” rules apply (see our articles here and here), meaning that you cannot censor a candidate’s message. Because a station cannot censor a candidate’s ad, in almost all cases, they must run the spot unaltered with the message that the candidate has decided to convey, even if the station questions its truthfulness. But that means that the station has no liability for the candidate ad.
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. 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
