Why Federal and State Issue Ads Have Different Broadcast Public File Requirements

Recently, I’ve received many calls from broadcasters about the FCC public file obligations for issue ads (those ads not bought by legally qualified candidates or their authorized committees) – particularly concerning the different treatment between issue ads dealing with federal candidates or federal matters, and those dealing with state and local matters.  There was much controversy about the public file requirements for federal issue ads over the last two years – resulting in an FCC clarification that we wrote about here and here, making clear that the public file obligation for federal issue ads include the requirement that a station’s public file disclosures include a list of all of the federal candidates and issues mentioned in the ad.  The FCC also imposed an affirmative obligation on the broadcaster to confirm with the federal issue advertiser that it does not have multiple executive officers or directors if the advertiser only provides one individual’s name.  These obligations are in addition to the requirement that stations upload to their public file, within one business day of when an order for a federal issue ad is received, information about the order, including the price to be paid for the ads and the schedule that the buyer is requesting.  Whether or not the order for ads addressing a federal issue is accepted by the station also must be uploaded to the public file.

There are different requirements for state and local issue ads, about which we wrote last year here.  Issue ads that do not deal with federal issues do not trigger any obligation to upload information about the price and schedule of an ad to a station’s online public file.  Nor do state and local issue ads trigger the obligation to list every candidate and issue mentioned in the ad.  But they do still require the public file identification of the sponsor of the ad, and the executive officers or directors of the sponsor when the sponsor is not an individual.  Thus, ads dealing with state and local matters – like state ballot issues, or local zoning controversies, or even ads that attack or support state or local candidates (when those ads are not bought by a candidate-authorized committee and do not address any federal issue) – only require the identification of the ad sponsor and its officers or directors in a document uploaded to the station’s political file.  Why the difference?

The rules requiring the disclosure of the price and schedule information about federal issue ads, and the public file identification of the issues discussed in those ads, were adopted about 20 years ago as part of the Bipartisan Campaign Reform Act (BCRA) which applied only to federal candidates and elections.  These rules are set forth in Section 315(e) of the Communications Act.  They require public file disclosures about any candidate for public office and for any ad that “communicates a message relating to any political matter of national importance,” or what we commonly refer to as a “federal issue ad.”  In its recent decisions, the FCC made clear that federal issue ads deal with issues pending before Congress or any federal government agency, any election of a federal candidate, or any other widely debated national issue even if not currently pending before Congress in pending legislation.  For more, see our article here.  It was only recently that these statutory obligations in Section 315 have been incorporated into the FCC rules themselves (see our articles here and here) – but they still apply only to ads dealing with federal issues and candidates.

While Section 315 does not extend these rules to state and local issue ads, the obligation to list the executive officers or directors of the sponsor of any ad on a controversial issue of public importance does apply to these non-federal issue ads.  The section of the FCC rules dealing with sponsorship identification – Section 73.1212(e) – requires the public file disclosure of the executive officers and directors of any issue that deals with a “political matter or matter involving the discussion of a controversial issue of public importance.”  This requirement is not limited to federal issue ads (and predates BCRA by decades), so it is a station’s obligation to include this information in their public file for any issue ad – no matter whether it is federal, state or local in nature.

For more information on the broadcaster’s requirements for uploads of political advertising information to the online public file, see this video that I prepared for the Indiana Broadcasters Association.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.