Broadcasters, NCTA Want Changes to FCC Political File Policy

The FCC’s clarification of political file rules creates new, subjective disclosure obligations that aren’t backed up in the law, burden companies and raise First Amendment questions, said broadcasters, network affiliates and NCTA in comments posted Tuesday in docket 19-363 supporting NAB’s petition for reconsideration (see 1911180068). “This decision will harm the entire local advertising ecosystem and burden the speech of political and nonpolitical advertisers alike,” said a joint filing from Gray Television, E.W. Scripps, Meredith, Block Communications and WBOC. Transparency groups including Campaign Legal Center, Sunlight Foundation and Common Cause disagree. “Any possible burden” is “clearly outweighed by the benefits of public disclosure,” the groups said.

“Something will have to give, and the casualties will be political advertisers, non-political advertisers and viewers alike,” said the filing from Gray, Block and other broadcasters. The agency’s clarification of the disclosure rules will force broadcasters to spend additional time reviewing political ad sales, and err on the side of reporting everything, broadcasters said. “Staff will have to read and analyze the content of every third-party ad,” said broadcast attorney Jack Goodman in comments filed on his own behalf. “If a state issue ad, on its face, has nothing to do with any federal election, what should a broadcaster hoping to avoid liability do? Report the ad,” said a joint filing from the affiliate stations of Fox, CBS, ABC and NBC. “The timing could not be worse for the kind of imprecision and perverse incentives that the Clarification Orders have injected into the political advertising ecosystem.”

The U.S. Supreme Court indicated in a previous ruling that the FCC’s disclosure rules could be vulnerable to legal challenge if they're overbroad, said several commenters. The FCC’s clarification could face First Amendment challenges if it isn’t changed, said Gray, Block and other broadcasters. A recent ruling against Maryland in the 4th U.S. Circuit Court of Appeals “provides a road map on how a court would review such a challenge,” said the joint broadcaster filing (see 1912270043). “Notably, the Maryland law imposed far less burdens than the FCC created in the Political File Order,” said Goodman.

“There is no merit” to suggestions that the FCC’s clarification “somehow raises constitutional concerns,” said the joint filing from transparency groups. “The Supreme Court has repeatedly upheld the Commission’s disclosure requirements against First Amendment challenges" brought by the NAB.

The transparency groups also disputed broadcaster complaints about the increased burden imposed by the rules. “It is a relatively simple matter for station personnel to determine if an ad identifies a qualified candidate for public office and/or communicates a message regarding ‘a national legislative issue of public importance,’” said the filing. Assessment of the burden on broadcasters should also take into account that “stations make large sums of money from political ads,” the groups said. "If stations find the reporting requirements too burdensome, they are not required to air political ads.” Some broadcaster filings said the FCC’s clarification will chill political speech.

Several commenters said the FCC should have held a public comment period before clarifying the rules. Not doing so meant the new policies offer few considerations for MVPDs, said NCTA. The FCC “failed to account at all for how these new standards would apply to cable operators, which face additional compliance challenges,” NCTA said. The new policies are "an overly strict standard that fails to account for the frenetic pace of political advertising sales during the heat of an election.”

The agency should reconsider the policy changes and apply a “good faith” standard to station efforts to identify the issues and candidates in political ads, said the affiliate groups. The agency should clarify that ads in state and local elections aren’t subject to federal disclosure rules and that candidate ads don’t fall under the disclosure rules for issue ads, several broadcast commenters said. Making such changes would restore certainty in the FCC’s rules, the affiliate group said. “Without them, the Commission’s Rules will remain over broad and vague -- and will likely be subject to challenge in the courts.”