KENTUCKY BROADCASTERS ASSOCIATION

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KENTUCKY BROADCASTERS ASSOCIATION 2014

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KENTUCKY BROADCASTERS ASSOCIATION. 2014. 2014 Midterm Elections. Kentucky Senate race could top $100 million. Washington Post. A Refresher Course. Political Windows Apply to Lowest Unit Charge. - PowerPoint PPT Presentation

Transcript of KENTUCKY BROADCASTERS ASSOCIATION

Page 1: KENTUCKY  BROADCASTERS ASSOCIATION

KENTUCKY BROADCASTERS

ASSOCIATION

2014

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2014 Midterm Elections

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Kentucky Senate race could top $100 million

• Washington Post

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A Refresher Course

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Political WindowsApply to Lowest Unit Charge

Indiana Opens Sat 3/22 Primary Tues 5/6OHIO OPENS Sat 3/22 Primary Tues 5/6

Kentucky Opens sat 4/5 Primary Tues 5/20Tennessee Opens Mon 6/23 Primary Thrs 8/7

GENERAL ELECTION WINDOW OPENSFRIDAY SEPTEMBER 5

ELECTION IS TUESDAY NOV 4

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The Prime Commandment

Thou Shall Call Bobby Baker

(202) 418-1417

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Who Gets The Benefits of the political broadcasting rules?

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Legally Qualified Candidates

Has publicly announced his or her intention to run for office

Is qualified under applicable law to hold the office (e.g., is 25 years old if running for the U.S. House), and

Has qualified for a place on the ballot or is actively running as a write-in candidate

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A Candidate “Use”

• A “use” is a candidate appearance by an identifiable voice or picture – the FCC accepts stations’ reasonable judgment whether an appearance is identifiable

• Only “positive” appearances by candidates are “uses”

• The appearance does not have to be controlled or approved by the candidate

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If a spot is a “use”

• It triggers equal opportunities

• It is entitled to political rates if it is sponsored by a candidate or an authorized committee (unless a federal candidate fails to certify)

• Station has no liability for libel or defamation

• It cannot be censored by the station

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Candidate Access

• Federal candidates (President, Vice President, U.S. Senate, U.S. House) are entitled to “reasonable access”

• State and local candidates have no rights of access to broadcast stations

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Reasonable Access

• Stations must sell time to federal candidates

• Applies during the entire campaign

• Stations cannot set up front limits on the amounts or type of time that candidates can buy

• But, stations may reject unreasonable requests and negotiate with candidates

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Carter-Mondale Factors

Reasonable access requests must be evaluated using 4 factors:

• How much time the candidate has already bought• The amount of disruption the buy would create• The potential for equal opportunities demands from

other candidates• The timing of the request

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Access to Programs

• Federal candidates can be excluded from news• Stations can exclude candidates from some or all

news programs, or parts of news programs (and the SuperBowl!)

• They may not be excluded from any other category of programs

• But, they do not have a right of access to any particular program, day or daypart

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Non-Spot Length Programs

• Federal candidates are entitled to program-length time, even during prime time

• FCC in 1999 reversed its earlier ruling – stations cannot categorically deny federal candidates the right to odd-length spots• Requests for odd-length time periods must be

evaluated under the Carter-Mondale factors

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State & Local Candidates

• State and local candidates have no right of access

• Stations may exclude some or all state and local candidate ads

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State & Local Candidates

• Stations can take ads from some races and not others

• Stations can limit the number of ads

• Stations can restrict the dayparts for state and local ads

• But, stations must make “discount classes” available and equal opportunities and lowest unit charge rules apply

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Equal Opportunities

• Does not require equal time, just equal right (i.e., pay for pay & free for free)

• Triggered by any non-exempt use

• Applies only to candidates in the same race

• Candidates must request equal opportunities within 7 days

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What type of programs are exempt?

• Bona fide newscasts

• Bona fide news interview programs

• Bona fide documentaries

• On-the-spot coverage of bona fide news events• includes station-sponsored debates and some free

time offers

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Employee Candidates

• Equal opportunities obligation is only for the amount of time the employee is actually on the air

• Make sure all on-air talent inform station before filing for office

• Stations can seek waivers or agreements from opposing candidates

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Political Rates• Apply to all races – federal, state & local

• Issue ads do not receive political rates

• Party ads are only entitled to political rates if the party is one of the candidate’s authorized committees• if a party or other ad supporting a candidate is an

“independent expenditure,” political rates are not required

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Political Rates• Lowest unit charge (LUC) applies during the

political “window”• 45 days before a primary• 60 days before a general election

• Comparable rates must be offered outside of the “window”

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Lowest Unit Charge

• Since 1991, the most important requirement is disclosure

• A station’s political rates are determined by the rates it offers commercial advertisers

• Stations must tell candidates about all relevant information and rates offered to commercial advertisers

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Disclosure Statement

• Stations should have a written disclosure statement

• It should be given to every candidate or agency requesting political time

• Don’t just copy the disclosure statement you used last election – check to see if it still accurately describes your sales practices

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Disclosure Statement

• You don’t have to make candidates read it

• You must update your disclosure statement as conditions change• make sure your rep firm has the latest

version

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What to Include in Calculating the LUC

• All paid spots

• All contracts in effect during the political window or available to commercial advertisers

• Paid PSAs which are aired for commercial advertisers

• The value of “bonus” spots must be included in the LUC• this includes bonus spots that air outside the window

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What to Exclude from the LUC:

• Spots for which no payment is received

• Pure barter spots

• Per-inquiry spots

• Bonuses for non-profit organizations and the government

• De minimis value-added incentives or incentives that would imply a station endorsement

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Packages

• Candidates do not have to buy a package to benefit from the package rate

• Every spot in every package must be valued

• Package prices may be allocated on the contract or in a signed and dated internal memo

• If a station does not allocate, FCC will assume all spots have an equal value

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Credit and Internet Policies

• Stations should extend to candidates the same credit policies they afford commercial advertisers

• The FCC’s rules do not apply to the Internet

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Calculating the LUC – Incentives

• Non-cash merchandise and promotional incentives do not have to be factored into the LUC

• They must be offered to candidates on the same basis as to commercial advertisers

• Incentives of de minimis value or which imply endorsement do not have to be offered to candidates

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Preemptible Time

• Stations which offer commercial advertisers separate levels of preemptible time may treat each level as a separate class

• Stations may offer candidates “fixed time” so long as that class is offered to commercial advertisers

• Stations which sell time on an auction basis have only one class of preemptible time

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Candidate-Only Discount Class

• Stations may create a non-preemptible class of time for candidates only

• This class must give candidates a meaningful discount not available to commercial advertisers – usually, this means a rate below the effective selling level

• If occasional spots clear below the candidate discount rate, no rebate is required

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Agencies and Reps

• Stations which price time on a commissionable basis must offer time on a “net” basis to candidates without agencies

• Reps’ commissions are paid by the station and do not affect the LUC

• So: candidates pay agency commissions and stations pay reps

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Changes in Rates

• If a contract with a commercial advertiser expires during the window, the LUC may change

• Rate changes which are part of a station’s “ordinary business practices” will affect the LUC

• Rates may vary due to changed ratings, seasonal demand, etc.

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Issue Ads

• Do not qualify for political rates

• Stations are liable for defamation and may censor

• Must have sponsor ID• No requirement to offer

or give time to opponents

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Issue Ads

• Public file must show that station aired ads• may have to show date and times aired and rates if

the ad includes a “message relating to any political matter of national importance”

• must include a list of officers, directors, or committee members of sponsoring organization

• Stations should be careful about misleading sponsor identifications

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What is “a message relating to any political matter of national importance?”

• it includes at least spots relating to:• a legally qualified candidate• any election to federal office• a national legislative issue of public importance

• Stations should review ad copy to determine whether additional public file rules apply

• Ensure your PB-18 is correctly filled out

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Sponsor Identification

• All spots must have a sponsor ID• The ID must state that the ad is “paid for” or

“sponsored by” the entity actually paying for the time

• Candidate spots paid for by someone other than the candidate must state whether they are authorized by the candidate

• Ads for federal candidates that refer to opponents have BCRA ID requirements

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Sponsor Identification

• If a spot comes in without an FCC-required ID, the station must add it to the spot

• A station-added ID may obliterate part of the ad

• A spot that arrives without an ID may be aired once without penalty – the ID must be inserted for all subsequent airings

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Sponsor Identification – TV

• TV political spots must have a visual sponsor ID

• It must air for at least 4 seconds

• The ID must be in letters equal to 4% of the screen height or 20 scan lines

• BCRA added additional requirements, particularly for ads that refer to opponents

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Speaking of BCRA …

• Bipartisan Campaign Reform Act

• All significant provisions upheld by Supreme Court in December 2003 – Except with respect to advertisements by corporations and unions under Citizen’s United

• Many provisions apply to candidates & stations are not obliged to enforce them

• FCC will not adopt new rules; will not punish broadcasters who exercise good faith discretion

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Stand by Your Ad”

• To obtain the LUC, federal candidates or their authorized committees must certify in writing to stations that:• the political programming they will air does not

contain a reference to an opposing candidate, or• if there is a reference to an opposing candidate, the

spots will contain additional disclosures

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Sounds Simple?Sponsor ship Ident ifi cat ion at -a-gl ance

Is this a “USE” by a federal candidate or the federal candidate’s authorized committee?

YES NO

Does the programming advocate the election or defeat of a federal candidate or

solicit any campaign contributions? State/Local candidates and Third Party/Issue Advertisers

NO YES Does the programming advocate the election or defeat of a federal candidate or solicit any campaign contributions?

Radio TV

YES NO

Programming purchaser is responsible for ensuring that the spot: 1) States that the programming is not authorized by any federal candidate, and 2) Includes the aural statement “______is responsible for the content of this advertising” (FEC enforced)

Federal candidates and/or the candidate’s authorized committee must ensure that: The political programming includes an audio statement by the candidate identifying himself/herself and stating that the candidate approved the broadcast and that the candidate and/or the candidate’s authorized committee has paid for the broadcast. (if the broadcast refers to an opposing candidate in any manner, it must also identify the office being sought). (FEC enforced)

Federal candidates and/or the candidate’s authorized committee must ensure that: the political programming identifies the candidate on whose behalf time was purchased, state that the candidate approved the broadcast, and state that the broadcast has been paid for by the candidate and/or the candidate’s authorized committee. This can be achieved by one of two ways: 1) The candidate making the statement in an unobscured, full-screen view (at least 80%); or

2) 2) A candidate voice-over, accompanied by a clearly identifiable photograph or similar image of the candidate. There must also be a written presentation of the same statement at the end of the political programming “in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least four seconds.” (FEC enforced)

3)

Does the programming refer to an opposing candidate for the same office?

YES NO

For Radio Federal candidates and/or the candidate’s authorized committee must ensure that there is an audio statement voiced by the candidate identifying him or herself, the office being sought, and that the candidate has approved the broadcast. (BCRA Candidate Requirement)

For Television Federal candidates and/or the candidate’s authorized committee must ensure that, at the end of the political programming, and for a minimum of four seconds, there is a clearly identifiable photographic or similar image of the sponsoring candidate while simultaneously a clearly readable printed statement is displayed stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast. (BCRA Candidate Requirement)

In order for federal candidates to receive LUC, stations must receive federal candidate certification at the time programming is purchased.

Prior to airing – Stations must ensure that the political programming must explicitly state that it was “paid for” or “sponsored by” the entity purchasing the time. TV spots must have a visual ID with letters at least 4% vertical height (20 standard lines) and air at least 4 seconds against contrasting background. (FCC enforced)

For state and local candidates, stations should check with their state election officials to determine if there are specific state or local sponsor ID requirements.

and

and and

Copyright © 2004 by the National Association of Broadcasters. May Not Be Copied, Reproduced, or Distributed Without Express Permission.

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“Stand by Your Ad”

• Does it have to be a negative reference?

• How often should candidates certify?• BCRA says “at the time of purchase”• NAB suggests obtaining a certification for each buy

• Do stations have to check the accuracy of candidate certifications?

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What Happens if … … a Candidate Doesn’t Certify?

• Loses LUC for the remainder of the campaign

• FCC staff says that if a candidate loses the LUC for the primary, he/she can get it back for the election

• FEC Deadlock

• BCRA suggests that candidates would lose the LUC on all stations, but no way to enforce that• how about stations in a local group

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Political File

• Important because this is the only source of information for candidates about their opposition’s appearances

• Stations may not respond to “blind” requests for avails or time

• FCC excludes political file from telephone access rule for public file information

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Political File Must Include:

• All requests for time (but not simple rate inquiries)

• The nature and disposition of the request (i.e., how did the station respond?)

• The rates charged

• The dates and times spots aired

• Any other non-exempt uses

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Political File

• Information must be placed in the file “as soon as possible”

• Stations may provide exact times when spots aired upon request

• Stations must keep information in the political file for 2 years

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Online Political File – TV

• Beginning July 1, All TV Stations will be required to post their political material in their FCC’s online public file (absent FCC action)

• This applies to new material, all political material prior to July 1 (e.g. primary) should be retained at the station’s public file for the 2 year period

• Stations should start to familiarize themselves with the FCC’s folder/naming practices

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Questions?

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LEGAL HOTLINES

Dawn Sciarrino

Sciarrino & SHubert, [email protected]

(202) 350-9658

ANN BOBECk NAB

[email protected] (202) 429-5456