Political Ad File Admonishments Seen Leading to Broadcaster Compliance; Next FCC Could Revisit
The FCC Media Bureau admonishment Friday evening of Scripps Media and several other broadcasters for violating political advertising disclosure rules is likely to lead to other broadcasters taking care to more closely follow the rules, though no fines were levied, said broadcast and public interest lawyers in interviews. The admonishment orders included clarifications of bureau expectations for how forms disclosing the sources of funding for political ads should be filled out. Georgetown Law Institute for Public Representation Senior Counselor Andrew Schwartzman said that would make it harder for stations to use “evasive legal arguments” to avoid following the rules going forward.
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Those clarifications could change if the next FCC revisits the matter, which Commissioners Ajit Pai and Mike O’Rielly indicated was likely since the admonishments were released on delegated authority over their objections. “Given that we agreed with much of the substance of the orders as written, we were optimistic that the Commissioners would have been able to reach consensus on these items,” Pai and O’Rielly said in an emailed statement. “Sadly, we were never given that chance and these orders thus will need to be revisited in the new Administration,” Pai and O’Rielly said. “It is disappointing that even in its final days, Commission leadership continues to lean on the crutch of delegated authority while excluding Commissioners from the process.”
The orders “simply resolve pending complaints consistent with the Communications Act and the Commission’s rules. They do not adopt new rules,” an FCC spokesman told us. “All of the Commissioners were given advance notice of this order,” the spokesman said. “We believe the public’s right to know is best served when broadcasters fully comply with existing law regarding record-keeping applicable to candidate and issue advertisements.” Both political parties support political ad disclosure, Schwartzman said. The change in administrations at the FCC won’t soften the effect of the admonishments in getting broadcasters to comply with political file rules, Schwartzman said.
The orders issued Friday involved 11 violations filed in 2014 (see 1405130044) and 16 complaints filed against Scripps' WCPO-TV Cincinnati in September (see 1609260077). According to the complaints, the political ad filings in question don’t include all the information the FCC requires. They’re supposed to include the names of candidates or issues, the election involved, a list of the buyer’s executive officers, and the rate and the date and time on which the spot ran. But much of that information was either missing or incorrect in the filings in question, a number of transparency groups that filed the complaints said. The bureau acknowledged that the filings were deficient and admonished the licensees but said it wouldn’t take enforcement action since the broadcasters involved argued the requirements for filling out the form were unclear.
Alongside the admonishments, the bureau issued clarifications of those requirements, and said since the rule had now been clarified, future violations would be subject to enforcement. “We place entities subject to these requirements on notice that, going forward, they will be subject to enforcement action for willful and/or repeated failure to comply with their political file obligations, as clarified here,” it said.
The clarifications say political ad filings need to include “the names of all candidates (and the offices to which they are seeking election), all elections, and all national legislative issues of public importance to which the communication refers” and licensees need to disclose “all of the chief executive officers or members of the executive committee or board of directors” of entities seeking political commercial time. The bureau also clarified that “an issue need not be subject to pending or proposed legislation in order to be considered a ‘national legislative issue of public importance.’” Ads on national issues are required to be disclosed as such under the FCC’s rules. Though a broadcast attorney familiar with political advertising matters said the FCC’s admonishments likely would cause broadcasters to take care to fill out the political ad filings correctly, the clarifications present some difficulties. Many large political advertisers -- such as national party committees -- buy large chunks of ad time in advance, before the content of the ads is known. That could make it difficult for licensees to fill out the disclosure forms in more detail, the lawyer said. Those sorts of details are what the next FCC could revisit, the expert said.
“This is a victory for transparency and accountability,” said Meredith McGehee, strategic adviser for the Campaign Legal Center, in a statement. “The FCC, through these orders, indicates that it takes the public file requirement of the Communications Act seriously." “Transparency is what the law requires and democracy demands,” said Michael Copps, former FCC commissioner and Common Cause special adviser, in the release: “Good on the Commission for taking this important step to disclosing secret money."
"We agree that the public deserves full transparency on the issues related to political ads and the funders of those messages," emailed Scripps Senior Vice President-Broadcasting Brian Lawlor. The FCC admonished Scripps for only two of the 16 complaints against its Cincinnati station, Lawlor noted. "We hold ourselves to a very high standard and will continue to perfect our systems so that we remain fully compliant to all of the FCC’s political policies."