Political File Clarity Doesn't Portend Big Broadcaster Changes

Now, it's clear that some radio and TV political ads on federal campaigns must disclose sufficient information about who sponsors them, not just identification that's so generic it doesn't provide any specificity. Three of the five FCC members issued concurring statements along these lines or seeking further revamps, with another member also backing that.

Andrew Schwartzman heard from industry that since the 2017 Media Bureau order on the complaints, stations have been diligent about compliance. Through Georgetown University's Institute for Public Representation, he represented Campaign Legal Center and Sunlight Foundation, which brought the original complaints in 2014 against 11 stations.

Broadcast industry officials at the NAB Show told us they don't see this as much of a change to existing rules. Commissioner Mike O'Rielly agreed. What's most important is how the policy is applied going forward, he said in an interview. A broadcast lawyer said the industry is trying to be in compliance and that Media Bureau order, even though it was rescinded less than a month later, was seen as a valid road map that's generally followed. NAB didn't comment.

The agency admonished Scripps for a "willful violation" of political file rules at WCPO-TV Cincinnati on a request to buy political ad time. The agency said it wasn't acting on 15 other ads subject of complaints because either the political file wasn't deficient or rules weren't clear until the accompanying clarifications order. "We're less concerned about a scalp on the wall" than the message about compliance, Schwartzman said. Scripps didn't comment Thursday.

Meredith McGehee, formerly Campaign Legal Center policy director and now Issue One executive director, told us the Scripps decision wasn't a surprise and "could have been much worse," with the FCC walking back Media Bureau admonishment (see 1701090064) and finding no violations. She called the admonishment "a finger wag" that could be a weak motivator for future compliance. The paired orders "set the standard" for compliance and could help establish better rules for online political advertising -- an area that, compared with political advertising in the broadcast realm, is "a disaster," she said. The bureau order was among a slew of actions by the outgoing Chairman Tom Wheeler administration that were reversed in the early days of the Ajit Pai administration (see 1702030070).

Rescinding the bureau order seemed to reflect Pai's feeling it's significant enough to have warranted full commission review, and the bureau order coming out days before the new administration, said broadcast lawyer Howard Liberman of Wilkinson Barker in an interview.

Now, any request to buy ad time involving political matters of national importance or legally qualified candidates for federal office must be disclosed in broadcast political files, said the new order. Broadcasters also must disclose all the CEOs or executive committee directors of "any person seeking political advertising time," and are obliged to inquire if only one name is submitted, it said. The order also clarified what's meant by "legally qualified candidate" and "political matter of national importance."

The FCC didn't take enforcement action against any of the 11 stations for failing to do disclosures in line with the clarifications. It admonished eight stations for "willful and/or repeated violations" of the Communications Act that "violated the clear mandate of the statute." They're WTVT and WFLA-TV of Tampa; WTVJ, Miami; WTVD Durham, North Carolina; WWJ-TV and WDIV-TV of Detroit; KNXV-TV Phoenix; and WMUR-TV, Manchester, New Hampshire.

O'Rielly's concurrence to the clarification order said he had constitutional concerns about some of the political file statutory requirements, but the FCC's approach was better than alternatives that would create uncertainty for stations acting in good faith. He said the order "creates a clearer structure that hopefully opens the door to consistent enforcement across future Commissions, while perhaps even injecting a level of regulatory humility."

The clarification "makes known that broadcasters should err on the side of disclosing more about the political advertisements that they air, rather than less," Commissioner Geoffrey Starks said. He said the agency misread the Communications Act in limiting its read of "legally qualified candidate" to candidates seeking federal office. Commissioner Jessica Rosenworcel called the clarification order "a reasonable attempt to modernize our policies."

Numerous parties said the FCC's next step needs to be making the political files machine searchable and sortable. Rosenworcel spent much of her concurrence repeating her argument for making political files searchable, sortable and downloadable. Past FCC accomplishments in promoting political ad transparency will become moot "if our filing system is stuck in the analog age."

Starks agrees with Rosenworcel that public files should be searchable by users and machine readable for documents. Asked about his stance on this issue after a Schools, Health & Libraries Broadband Coalition speech Thursday (see 1910170024) that included his saying he plans to speak out on election security (see 1910170053), Starks cited his fellow Democratic commissioner's statement on public and political files: "I do agree with that. That's probably a best practice as well." Pai's office didn't comment.

McGehee said there also should be better rules on disclosure of the identity of funding sources of ads. That's so actual funders of ads instead of ad buyers are named.

Neither order articulates the challenge broadcasters sometimes face of ad agencies not supplying all the needed information during a busy time of year for ad sales, Liberman said. Broadcasters now can use the clarification to show ad agencies what information is required, he said.