Broadcasters Fight Political Ad Disclosure Changes

Say it will hurt campaign speech as well as their bottom lines
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With billions of political ad dollars on the line, broadcasters are working hard to make sure a new FCC ruling does not take even a little bite out of their share of that likely record political pie.

At an NYC Television Week panel in New York, Kantar’s Campaign Media Analysis Group VP and general manager Steven Passwaiter said he expected the broadcast, cable and digital take from the 2020 election cycle to be a “relatively mind-blowing” $5.7 billion, with local TV expected to be the biggest beneficiary by far.

Kantar’s Campaign Media Analysis Group VP and general manager Steven Passwaiter

Kantar’s Campaign Media Analysis Group VP and general manager Steven Passwaiter

That is one of the reasons why broadcasters want the FCC to loosen up when it comes to the reporting requirements for political ads, rules they say could lead to them having to turn down political ad dollars.

The reporting obligation stems from the Bipartisan Campaign Reform Act, but the FCC has discretion in how it interprets the requirements in its rules implementing that law.

The FCC’s Media Bureau has sought comment on a petition by major broadcast groups and the National Association of Broadcasters to narrow the agency's political ad disclosure requirements, giving stakeholders six weeks or so to comment on or oppose the petition. The latter is essentially a given by campaign finance reform groups who have long been trying to get the FCC to tighten the rules on disclosures of issue ads that broadcasters must post in their public files.

The National Association of Broadcasters joined with Hearst Television, Graham Media Group, Nexstar Media Group, Fox Television Stations, Tegna and E.W. Scripps to ask the FCC to decrease the number of ads that require such disclosures and the number of disclosures per ad, all of which station personnel have to identify and report to the FCC.

The broadcasters have petitioned the FCC to reconsider its October order resolving complaints against broadcast groups for failure to properly identify those issue ads. Putting an exclamation point on the issue, the commission on Dec. 3 admonished two more stations for the same violations.

As part of that original order, the FCC spelled out those public-file disclosure obligations in a way broadcasters have said makes it tougher for them to accept issue ads because of the work involved in making sure they are properly disclosed.

According to FCC documents, broadcasters want to narrow and clarify the interpretation of “issue of national importance” by specifying that the term applies only to national political actors in a position to take nationwide action.

They also want the FCC to eliminate the mandate that stations identify all political matters of national importance referenced in each ad, and instead only require them to make a “reasonable, good faith” effort to disclose topics that are the “focus” of the ad. They also want the freedom to use their own judgment about when using an acronym rather than spelling out the name in the disclosures that are required.

Mistakes Could Mean Sanctions

Broadcasters argue that the FCC’s rules could lead to them turning down campaign ads due to the threat of sanction if they fail to identify an issue.

“Mistakes can yield significant penalties,” broadcasters told the FCC. “Some stations may consider limiting the number of political ads, such as issue advertisements or certain state and local candidate races that they now accept, given this new high likelihood and cost of making a mistake.”

They said not only will this hurt station revenues, but political speech, since advertisers won’t be able to get their message out as broadly as they otherwise could.

The Campaign Legal Center, Sunlight Foundation, Common Cause and the Benton Institute for Broadband & Society have signaled opposition to the broadcaster petition. They were the groups that filed the disclosure complaints against the stations.

Broadcasters are mindful of that extra set of eyes on their disclosures.

“While stations will make a good-faith effort to comply, they will do so under the watchful ‘Monday morning quarterbacking eye’ of groups like the complainants who can cherry-pick instances where an issue or two may be overlooked,” broadcasters said.

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