David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. Stations need to review each class of time sold on their station, find the lowest rate charged to a commercial advertiser for a spot of the same class that is running at the same time that the candidate wants to buy a spot, and make sure that lowest rate will be what the candidate is charged. There are obviously many other issues that come up in the political broadcasting process. He has represented broadcasters and webcasters before the…. The laws regarding political broadcasting are extremely complicated and legal conclusions are very fact-dependent so you need to talk to your own attorney for specific advice on situations that arise at your station. Instead, the package must be broken down by the station into a price per spot for each class of spot that is contained in the package. The laws regarding political broadcasting are extremely complicated and legal conclusions are very fact-dependent so you need to talk to your own attorney for specific advice on situations that arise at your station.

These are just some of the myriad issues that arise in computing lowest unit rates. Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. As of the publication of this Advisory, all TV political file documents going back two years and most radio political file documents going back two years are online. Central to understanding and complying with the political rules is the concept of a candidate’s “use” of a broadcast station. Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies. Any class of spots that run in a unique time period, with a unique rotation or unique rights attached to it (e.g., different levels of preemptibility, different make-good rights, etc.) Even at the smallest radio station, there are probably several different classes of advertising spots. Under federal law for federal candidates, these purchases will be by political parties and subject to political campaign donation limitations (known as “hard money”). A party political broadcast (also known, in pre-election campaigning periods, as a party election broadcast) is a television or radio broadcast made by a political party. However, the FCC allowed certain smaller, small market, and noncommercial radio stations a longer period of time to move their pre-March 1, 2018 political documents online. Talk to your own attorney if you are faced with that issue. of the political broadcasting rules, in most circumstances, a candidate must: Publicly announce his or her candidacy.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens – of lowest unit rates,with one lowest unit rate for each class of time in each daypart. As a general rule, stations may not discriminate between candidates for the same office as to station use, the amount of time given or sold, or in any other meaningful way. Back in August, we highlighted some of the many issues in computing lowest unit charges (or “lowest unit rates”) for political candidates which are in effect during the window for the November elections that went into effect on September 4. In this last month before the election, as political advertising ramps up and each party fights over those few undecided viewers, we wanted to bring to your attention a video that I did for the Indiana Broadcasters Association discussing the various issues that arise in determining lowest unit rates.

We recommend that you obtain separate legal advice. Other than the station, only the FCC will see this allocation if they decide to conduct some sort of audit. In modern political elections, where PACs, Super PACs and other non-candidate interest groups are buying a significant amount of political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Because of the transition to online political files, broadcasters must be even more diligent to ensure that all political documents are timely created and uploaded. This website uses cookies to maximize your experience and help us improve it. These include: Other articles that deal with other political broadcasting subjects can be found on our blog by clicking on these links:  equal opportunities, reasonable access, the no-censorship provision that governs candidate ads, and the potential for station liability for untruthful statements made in third party ads. Unfortunately, many of those who have suddenly gained ready access to stations’ political files do not understand the political rules and may allege that a station’s political file is missing required information when the political file is in fact complete. For these stations, their political files are not required to be completely online until March 1, 2020. See our past articles on this topic here and here. The Indiana Broadcasters have produced several other videos in which I explain some of the basics of the political broadcasting rules. We wrote more about this process of allocating spots in a package here. Stations need to be familiar with these rules and apply them accurately through the lowest unit rate windows. The FCC’s rules and policies are fairly complicated when it comes to political broadcasting, and the answers to many questions are highly dependent on the specific facts at hand. One question that still comes up with surprising regularity is whether these rates apply to state and local candidates, as well as federal candidates. While the FCC has not formally ruled on it, it appears that some states have similar state laws that allow third parties to buy spots that are authorized by a candidate and may be entitled to lowest unit rates. And our articles here, here, here and here on the new requirements for the identification in the public file of all the issues mentioned in any advertising on federal political issues or candidates. This allocation is done in an internal station record, which does not need to go into the public file and does not need to be revealed to the candidate. Stations must adopt and meticulously apply political broadcasting policies that are consistent with the Communications Act and the FCC’s rules, including the all-important requirement that stations fully and accurately disclose in writing their rates, classes of advertising, and sales practices to candidates. (b) Political broadcasting requirements— (1) Legally qualified candidates for public office for purposes of this section are as defined in 47 CFR §73.1940. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years. For instance, there will be different rates for spots running in morning drive than for those spots that run in the middle of the night. Political files must contain a station’s political documentation for the past two years. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. Even in the same time period, there can be preemptible and non-preemptible time, each with different costs, thus making them different classes of time, each with its own lowest unit rate. While this Advisory outlines the political broadcasting rules in general terms, application of the rules can be quite fact-specific and there are many additional aspects of the rules too numerous to address within this Advisory. These elements of the law ensure that broadcast facilities are available to candidates for federal office, that broadcasters treat competing candidates equally, and that stations provide candidates with the same rates offered to their most-favored commercial advertisers during specified periods prior to an election.

Broadcast stations must meet a broad range of federal mandates, and must therefore familiarize themselves with this regulatory area, ensuring they have adequate policies and practices in place and that they monitor legislative, FCC, and Federal Election Commission developments for changes in the law. Also, see our article here about the obligations for the political file required as part of the online public file, and the importance that the FCC puts on that file.

Candidates cannot be forced to buy single-station packages to get lowest unit rates. Read More: Political Broadcasting Advisory, © 2001–2020 Pillsbury Winthrop Shaw Pittman LLP. All of these materials are just a summary of the basics in each of these areas. Under federal law, stations can charge these advertisers anything that the station wants for non-candidate ads – no need to stick to lowest unit rates. More FCC Consent Decrees for Political File Violations – Issues to Watch in the Last Weeks of the Election, This Week in Regulation for Broadcasters: September 12, 2020 to September 18, 2020, Sponsorship of Political Advertising On-Air and On-Line – A Video Presentation and a Congressional Research Service Study, Lowest Unit Rate Window for the November Election Opens on September 4 – Thoughts on Computing Your Lowest Unit Charges to Political Candidates, Identifying the Legal Issues in Using Digital and Social Media – A Video Webinar, we highlighted some of the many issues in computing, Political Broadcasting Guide, available here, https://www.indianabroadcasters.org/iba-news/ibas-washington-attorney-details-new-political-inspection-file-requirements/, https://www.indianabroadcasters.org/iba-news/political-advertising-requirements-with-iba-washington-counsel-david-oxenford/, potential for station liability for untruthful statements made in third party ads, our article here about the obligations for the political file, This Week in Regulation for Broadcasters: October 10, 2020 to October 16, 2020, Music in Podcasts – As Podcasts Shut Down Following Infringement Notices, Looking at the Required Music Rights, This Week in Regulation for Broadcasters:  October 3, 2020 to October 9, 2020, FCC Announces Plans to Authorize All-Digital AM Radio at October 27 Open Meeting.
Even if the picture or recognizable voice of the candidate that the PAC is supporting appears in the ad, spots that are sponsored by an independent organization not authorized by the candidate do not get lowest unit rates (note, however, that spots purchased by independent groups featuring the voice or picture of the candidate may trigger public file and equal opportunities obligations for the station if the station decides to run those spots). His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules. So, in the same time period (e.g., morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (such as spots sold specifically for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period). Meet the qualifications to hold the office being …

As we wrote back in August, lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. More than fifteen years after the adoption of the Bipartisan Campaign Reform Act (“BCRA”) of 2002, popularly known as “McCain-Feingold,” Congress’s and the Federal Communications Commission’s interest in political broadcasting and political advertising practices remains undiminished. Stations are not required to sell advertising time to state and local candidates, but if they do, lowest unit rates apply. By using this site you indicate your consent to this.

Stations must adopt and meticulously apply political broadcasting policies that are consistent with the Communications Act and the FCC’s rules, including the all-important requirement that stations fully and accurately disclose in writing their rates, classes of … Many of the political broadcasting regulations are grounded in the “Reasonable Access,” “Equal Opportunities,” and “Lowest Unit Charge” provisions of the Communications Act. It is therefore important for stations to understand their obligations so they are able to quickly respond to such allegations before they generate formal FCC complaints.


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