A Primer on Political Speech and Broadcasting
There is no speech more important than that of one citizen asking another for her vote. Congress has enacted a series of provisions addressing how broadcasters and cable operators treat candidates. With the 2014 primary season now under way, this is a good time to review those requirements.
Actually, the term in the law is “equal opportunity.” In theory, whenever a legally qualified candidate appears on over-the-air TV or radio, opposing candidates are entitled to request a similar amount of time in a similar time period. (The law also applies to locally-originated cable programming, mainly commercials. References here to “broadcasters” includes local cable as well.)
There are four important exceptions, or exemptions:
- bona fide newscasts,
- bona fide news interviews,
- bona fide news documentaries (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), and
- on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto).
In the 1970's and 1980's, the Federal Communications Commission expanded its interpretation of the four exemptions to the law so that, in practice, the equal opportunities provision is mainly applied only to candidates’ commercials. These days, the principal way that the law comes into play other than for commercials is when local radio talk show hosts run for office. In that situation, since opposing candidates are entitled to equal opportunities, the talk show hosts must generally go off the air until the election.
A common source of controversy arises when stations broadcast debates which do not include all candidates. (The Nixon/Kennedy debates in 1960 required special Congressional legislation suspending the equal opportunities law.) FCC decisions in the 1970's and 1980's have largely eliminated equal opportunities requirements for debates. As a result, broadcasters are now free to carry debates limited to candidates they deem newsworthy without incurring an equal opportunity obligation.
The equal opportunity right is not self-executing. A candidate whose opponent appears on the air must request time within seven days in order to receive an equal opportunity.
The “Zapple Doctrine”
There is a special addition to the equal opportunity rule called the “Zapple Doctrine,” which is named after a Congressional staffer whose inquiry prompted its promulgation. (If that name seems odd, it can also be referred to by its more formal name, the “quasi-equal opportunity principle.”
The “Zapple Doctrine” applies when supporters of a major party candidate purchases or receives air time. Supporters of the opposing candidate can request similar treatment. This provision is designed to preclude evasion of the equal opportunities rule by using proxies of a favored candidate.
Years ago, it was common for station management to endorse candidates on the air, much as newspapers do on their editorial page. That rarely happens any more.
Until 2001, stations were obliged to offer reply time to other candidates. A federal court threw out this rule on First Amendment grounds.
Candidates may not be censored by the broadcaster. This means that even offensive or libelous commercials purchased by candidates must be run. The Supreme Court has held that since broadcasters may not censor candidates, they are not liable for libel or defamation in candidate appearances. (At least in theory, the candidate is still liable.)
This no censorship provision does not apply to commercials purchased by third-party PACs or other groups. Thus, it is increasingly common for candidates or their supporters to complain to broadcasters that a commercial is false or deceptive and demand that it not be run. Since broadcasters are liable for these non-candidate commercials, they tend to take these charges seriously enough to conduct their own review of the content.
Federal candidates are entitled to “reasonable access.” This means that they are entitled to purchase “reasonable” amounts of time, and that time be made available to them at all times of the day. They also have the right to specify the length of time they wish to purchase; this is increasingly important because many broadcasters prefer to sell only 15 second, 30 second and one minute commercials. A federal candidate wishing to purchase two or three minutes for a “biography” or longer issue discussion, or a half hour for a speech should be able to do so. (The FCC has ruled that the “reasonable access” law does not apply to cable.)
State and local candidates do not have similar rights. Thus, a broadcaster can refuse to sell any time for a state or local race, set a cap on how much time will be sold, or limit the sale of such commercials to daytime or some other time period. (However, under the “equal opportunities” provision, if a broadcaster makes time available to one state or local candidate, it must do so for all.)
“Lowest unit charge”
By far the most complicated aspect of the FCC’s political broadcasting regulations revolve around the requirement that candidates need only pay the “lowest unit charge” for airtime. This gives them a substantial discount, allowing them to pay what the station’s largest volume year-round advertiser might pay. At the time the requirement was first adopted in 1971, stations generally had simple rate systems, with three or four “classes” of time, such as daytime, prime time and “run of schedule” rates which allowed the station to place an ad whenever there was an opening. As the sale of air time has become a much more complicated process in recent decades, calculation of the lowest unit charge, with the significant benefit it confers, has become an extremely complex matter.
Notwithstanding the convoluted process of implementation, the basic requirement of the law is straightforward. A candidate’s ad qualifies only if the candidate’s voice (for radio) or likeness (for TV) appears. During the 45 days before a primary or a primary runoff, and during the 60 days before a general or special election, a candidate is entitled to pay “the lowest unit charge of the station for the same class and amount of time for the same time period.” (At other times, candidates may be charged “comparable” rates, i.e., no price gouging.)
It is important to recognize that PACs and other supporters or opponents of candidates are not entitled to the lowest unit charge. Because they pay full retail price, the explosion of these so-called independent expenditures has been a bonanza for broadcasters and cable operators. This is creating a new problem. As explained above, local politicians are not absolutely entitled to buy time under the “reasonable access” provision for federal candidates. Increasingly, broadcasters are choosing not to sell time for local races, where they may only assess the lowest unit charge to candidates, because they can sell the same time at full price to deep-pocketed PACs.
Under the Communications Act, broadcasters must disclose on air who paid for a commercial. One important reform was enacted in 1992, when the FCC addressed abuses by requiring a minimum size (four percent of the vertical height of the picture) and duration (four seconds) of a TV disclosure “concerning candidates for public office.”
Identification of the sponsors who are not candidates is a longstanding problem which has grown to be of great significance in recent years. Groups buying ads for elections, including ballot issues, usually give themselves a generic or positive sounding name (for example, “Citizens for Low Taxes”). FCC rules, however, require that broadcasters and cable operators
fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity by whom or on whose behalf such payment is made or promised,...
Enforcement of this provision has proven to be very difficult, and in practice, broadcasters and cable systems have not been required to determine the “true identity” of who is paying for a commercial even though they are technically required to “exercise reasonable diligence to obtain” this information. Public interest groups have been pressing for enforcement of this obligation, and for new FCC rules specifying that those paying for commercials are properly identified.
There are special on-air disclosure requirements for ads by federal candidates. Under the Bipartisan Campaign Reform Act of 2002 (“BCRA”), a federal candidate must also include a statement of approval in her ad. The exact language varies for radio and TV, but for TV, there must be a verbal statement by the candidate that she approved the ad, a view of the candidate at least 80 percent of screen height and a visual text statement of approval and name of the sponsoring committee. (For radio, the candidate must identify herself, the office for which she is running and state that she approves of the ad. The radio commercial must also state that the candidate’s committee has paid for the ad.)
Broadcasters have always been required to place certain information about their political commercials in a public file. For candidate ads, the political file should contain:
- whether a request for time was accepted or rejected.
- the rate charged.
- the date and time the spot was scheduled to air, and, later, when it actually aired.
- the rate class purchases.
- for a request by a candidate, the name of the candidate, authorized committee and treasurer.
- the time, date and length of any non-exempt unpaid appearances.
For groups buying time about state and local issues, the public file must contain information about who purchased the time, including the name of the group and the names of its executive officer or board of directors.
BCRA has imposed additional public file requirements for groups buying time in connection with a federal election or dealing with a federal issue. For such purchases, the public file should contain essentially the same information as is required for candidate ads.
After years of effort, public interest groups succeeded in obtaining an important new requirement. As of August, 2012, stations in the 50 largest TV and radio markets must now upload the contents of their public files, including their political flies, to the Internet. As of June 1, 2014, this requirement will be extended to all stations.
If you want to see the political files of your local station, you can view the FCC’s political file portal at https://stations.fcc.gov/.
The easy availability of stations’ public files has proven to be a significant benefit. Public interest groups, local and national, have been able to obtain a great deal of useful information about the electoral process. Reporters have been especially avid users of this information, and it has become commonplace for the press to report on spending developments using the contents of political files.
In the wake of Supreme Court rulings that have allowed far more money into the electoral process, the protections afforded by the measures discussed here are more important than ever. While equal treatment of candidates and increased disclosure and transparency will not stop ever greater political spending, these protections give important rights to candidates and allow the public some small degree of insight into how our democracy functions.