Broadcasters Pile On in Support of NAB Political Ad File Petition

The FCC’s new political ad file rules would burden broadcasters, swamp transparency advocates in irrelevant disclosures, and may be unconstitutional, said NAB, America's Communications Association, state broadcast associations and station groups. Their replies were filed in docket 19-363 by Tuesday night’s deadline in support of NAB’s petition for reconsideration. The rules cross “a constitutional line,” said Tech Freedom, comparing them to the fairness doctrine.

There was one opposition. The Campaign Legal Center, Common Cause and others disagreed with the other stakeholders. “Disclosure is important so that the public knows who paid for the ad,” said CLC and its allies.

Broadcaster arguments about constitutionality “lack any merit” said the transparency groups, which also included the Sunlight Foundation, Issue One and Benton Institute for Broadband and Society. The Supreme Court said the FCC’s disclosure requirements are constitutional, they said. Broadcaster arguments that a recent case in the 4th U.S. Circuit Court of Appeals (see 1912270043) affirms their objections to the rules should be dismissed because the ruling exempted broadcasters, the groups said: “The Fourth Circuit, in fact, took pains to distinguish the Maryland law from the FCC’s political advertising requirements.” Wednesday, there was a hearing on that state's law (see 2001290054).

The political file policy is “far more burdensome" than the Supreme Court deems permissible, filed state broadcast associations. Suggestions by the transparency groups that stations could avoid those burdens by not accepting political ads help the industry case, NAB said. If complying is so hard that stations decrease access for political candidates, “that supports finding the revised rules contrary to the First Amendment,” NAB said. “Given that CLC, et al. have no experience complying with the political file rules, the FCC should be skeptical of their non-fact-based claims about the burdens.”

The regulations “are a prime example of why ‘rulemaking through adjudication’ is such a bad idea,” said TechFreedom. The FCC didn’t retroactively apply the new political ad policies, and that’s a sign that they are really new rules rather than bureau-level policy adjustments, it said. Announcing the changes in a narrow complaint proceeding kept the FCC from addressing how they affect small cable operators, ACA said.

CLC et al. opposed broadcaster calls for the FCC to clarify that ads involving state and local elections don’t require disclosure even if they refer to a national issue: “The public’s need to know who paid for an ad addressing a political matter of national importance does not change simply because the ad also mentions a local or state candidate.” Congress never referred to state or local elections when crafting the underlying statute, said the Independent Television Group and NAB.

Stations seeking to avoid violations will “list every conceivable issue that an ad might address, and probably... describe the same issue in different ways to reduce the risk that there will be complaints that an issue was mischaracterized,” said ITG. Watchdog groups will be swamped with “lengthy lists of every candidate depicted in a group picture” and inconsistent descriptions gathered by “gun‐shy station personnel” concerned at any hint of a national issue, wrote Alpha Media, Entravision, Salem Media, other TV station owners and the Radio Television Digital News Association. They said FCC clarifications “present a textbook example of regulation entirely divorced from the actual world."