Broadcast Advertising

Broadcast advertising is one of the most important tools used by candidates to share their message with voters. In 2006, over $2 billion was spent on campaign broadcast advertising. The “equal opportunities” requirement found in Section 315 of the 1934 Communications Act requires broadcast television stations to provide advertising time to all legally qualified candidates who seek it.

“Legally qualified” candidates are defined under Section 315 as those who meet the legal requirements for candidacy, have publicly announced their intention to run for office, and have qualified for a place on the ballot or publicly committed to running as a write-in candidate.

Section 315 does not mandate that broadcasters provide equal time to each candidate, but rather that they give them the opportunity to purchase advertising time at a time of day when the ad is likely to be seen by the same number and type of people. Broadcasters must charge candidates their lowest advertising rate during the 45 days before a primary and 60 days before a general election, and they are not permitted to censor or alter the content of candidates’ ads.

To qualify for advertising access under Section 315, candidates must identify themselves at the end of the ad and state their approval of it. The funding source of the ad must also be revealed.

Section 315 does not prevent wealthy candidates from buying more advertising time than their opponents, nor does it require equal access for non-major or independent candidates.

Previously, broadcasters could refuse to provide advertising time to any political candidate and still be in compliance. In 1971, Congress adopted Section 312(a)(7), which states that broadcasters could lose their license if they do not provide “reasonable access” to advertising for federal candidates. Section 312(a)(7) does not apply to state or local candidates.

A comprehensive list of FCC regulations regarding political broadcast advertising can be found at http://www.fcc.gov/mb/policy/political/candrule.htm. Although this guide is intended for broadcasters, it is a helpful resource for candidates when determining their legal rights.

The Broadcast Law Blog is published by the national law firm of Davis Wright Tremaine. It covers a wide variety of broadcast issues, including technical information and industry regulations of little relevance to political candidates. However, it offers helpful information about political broadcasting during the 2006 midterm elections. Topics include the FCC’s ruling that California Governor Arnold Schwarzenegger’s appearance on the “Tonight Show” was a bona fide news interview, and therefore exempt from the equal opportunities requirement.

The Aspen Institute, a nonprofit policy research organization, includes links to numerous articles about broadcasting and the public interest, including political broadcasting. Although the authors focus on digital broadcasting, “Part I: Law and Policy” and “Part III: Political Broadcasting” are both relevant to new candidates. “Government-Created Scarcity: Thinking About Broadcast Regulation and the First Amendment” by Tracy Westen in Part I offers a comprehensive overview of broadcast legal history in the U.S. This may be more information than a new candidate desires, but it explains the rationale for current broadcast regulations regarding political speech. Part III includes proposals for expanding candidate media access and political programming in digital broadcasting.

The University of Oklahoma’s Political Communication Center houses the world’s largest collection of political broadcast advertising. Its website provides little information about political advertising regulations, but its library of 80,000 political ads dating back to 1936 for radio and 1950 for television is a potentially helpful and interesting resource for new candidates. Ads can be viewed under the “Links to Spots Online” heading.

Links

Text of the “equal opportunities” requirement in Section 315 of the 1934 Communications Act: http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000315----000-.html

“Administrative sanctions” in Section 312(a)(7) of the 1934 Communications Act: http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000312----000-.html

FCC’s “Statutes and Rules on Candidate Appearances & Advertising”: http://www.fcc.gov/mb/policy/political/candrule.htm

Broadcast Law Blog: http://www.broadcastlawblog.com/archives/cat-political-broadcasting.html and http://www.broadcastlawblog.com/

Aspen Institute: Digital Broadcasting and the Public Interest

University of Oklahoma’s Political Communication Center: http://www.ou.edu/pccenter/