FCC101: Election Season Reminders
Noncommercial Educational (NCE) broadcast stations, which include LPFM stations, have some unique rules and laws that apply to them that do not apply to commercial stations.
Even though we are very well into this year’s election season and with the ever changing political climate which is further complicated by the rhetoric that is coming out from both sides, it’s time to just give a quick reminder of good practices for noncommercial full-service and LPFM stations.
Equal Opportunities vs. The Fairness Doctrine
§73.1941 of the FCC Rules (which also applies to LPFM per §73.801) states if a broadcast station (both commercial and noncommercial) provides the use of its facility for a legally qualified candidate for public office, it must also provide an equal opportunity for all other candidates to use such facilities. This means if you have a 15 minute interview for Candidate A, you must also make an offer to Candidate B to come on the air for a 15 minute interview. Candidate B has the right to refuse, but at least the offer was made. The rule also specifically states that you are not required to have political candidates on the air at all. Therefore, if Candidate A asks to come on the air, you can say no, and you do not have to offer anything to Candidate B.
There are exceptions to the equal opportunity rule. An appearance by a legally qualified candidate on a bona-fide newscast, a bona-fide news interview, a bona-fide news documentary nor in connection with on-the-spot bona-fide news coverage of events (such as political conventions) is not deemed to be a use of the broadcast facility where equal opportunities must be afforded. (See §315(a) of the Communications Act)
There is a myth that is lingering that the Equal Opportunities rule was repealed in the early 1980s. This is not correct. The myth confuses the Equal Opportunities rule with the Fairness Doctrine that existed until the Reagan Administration. The Fairness Doctrine requires broadcasters to editorialize on local issues and must present the airing of opposing views at the request of a party opposed to the editorial. This is far different than the Equal Opportunities rule.
Remember, as a broadcast licensee, you do have the right to say no to the original request to come on the station. But if you do that, you have to say no to all of the candidates. Also, if the station initiates the request for one candidate to come on the station, it must afford it to all candidates.
Finally, the Equal Opportunities rule may create complexities for stations that have an on-air talent who has declared themselves as a candidate. To avoid any of these complexities, especially if you know that their opponent has really bad taste in music, you need to bench your candidate talent until after the election is over.
Underwriting and Politics
While the commercial broadcast space is flooded with paid political advertisements from candidates and from political action committees (PACs), it’s nice to know that you can go below 92 or to your favorite LPFM station to escape the mudslinging.
With that, we remind all noncommercial educational stations (full-service and LPFM) that they cannot acknowledge underwriting from a political candidate. This is one of the three definitions of a “commercial” as stated in §399b of the Communications Act. Remember, Congress considers the following to be commercials:
To promote any service, facility, or product offered by any person who is engaged in such offering for profit,
To express the views of any person with respect to any matter of public importance or interest, and
To support or oppose any candidate for political office.
In addition, you cannot sell time to any business or anyone else for copy like this:
“Programming on WVWA-LP is made possible through the support of Joe’s Crab Shack at 123 Main Street who reminds you to get out and vote next Tuesday.”
This type of message does not violate the third point of §399b, but instead, the second one. Stations can, without any connection to any type of underwriting support encourage people to vote on Election Day. (This is not considered a “call to action”, which is prohibited in the copy of underwriting acknowledgements.)
Station Endorsements are Prohibited
While we say that it is OK for a station to make an announcement without any underwriting influence to encourage people to vote, NCE/LPFM stations are prohibited from saying who to vote for or against. This can be found in §399 of the Communications Act. Such endorsements may also violate federal and state tax laws relating to nonprofit organizations.
Political File
Candidates may not always know that a noncommercial radio station (including LPFM) cannot accept paid political advertising. Therefore, a station can be approached by a candidate on behalf of that candidate or by a PAC or other entity wishing to communicate a message about a national legislative issue of public importance. If your station is approached, you need to review §73.1943 of the rules regarding the political file.
Even though a NCE/LPFM station cannot accept paid announcements, they must still make a record of the contact in their political file to indicate that the request was rejected. If a station does provide free time to a candidate (subject to the Equal Opportunities rule), those details should also be noted in the political file.
Full service NCE stations will upload their political file information to the FCC’s Online Public Inspection File (OPIF) system. Since LPFM stations do not have access to OPIF, they will need to keep it in their station records. While the rules require the records be retained for two years, REC always recommends retaining the records for either two years or until after the next renewal application grant has been finalized (normally 30 days after grant unless a Petition for Reconsideration is filed), whichever is greater.
That’s It!
Hopefully, this quick guide helps you understand the dos and don’ts of handling political content outside of the bona-fide news environment. Again, it’s OK for a station to and its our duty as Americans to encourage people to get out and vote or to vote by mail where available.
This information has not been reviewed by an attorney. Please use this advice at your own risk. For bona fide legal advice, please seek the services of a qualified communications attorney.