With the broadcast and cable news (and the monologs of TV talk show hosts) already dominated by discussions of the 2016 elections, broadcasters thoughts may be turning to that election and the expected flood of money that may come into the political process. We are, after all, only two months away from the first ballots in Iowa and New Hampshire. But dreams of big political spending should not be distracting broadcasters from thinking about their political broadcasting obligations under FCC rules and the Communications Act, and from making plans for compliance with those rules. I’ve already conducted one seminar on political broadcasting obligations with the head of the FCC’s Office of Political Broadcasting, several months ago, for the Iowa Broadcasters Association, and we will be doing another, a webcast for about 20 state broadcast associations on December 17 (hosted by the Michigan Broadcasters, see their announcement here). Check with your state broadcast association to see if they are participating in the webcast, as we should be covering many of the political broadcasting legal issues of importance to broadcasters.

Stations in Iowa have been receiving buys from Presidential candidates and PACs and other third-party groups since this past summer, and that spending is sure to increase in these last few weeks before the 2016 start of the primaries and caucuses. What should stations in Iowa and in other states be thinking about now to get ready for the 2016 elections?

We have written about some of the issues that broadcasters should already be considering in our Political Broadcasting Guide. Obviously, one of the primary issues is lowest unit rates - as those rates become effective 45 days before the primaries (or before any caucus which is open to members of the general public). Thus, the lowest unit charges for Presidential campaigns will start in the early states later this month, and roll across the country early next year as the other primaries and caucuses draw near. In addition to our Political Broadcasting Guide, we wrote about other issues you should be considering in determining your lowest unit rates here, here.

In addition to the question of rate for political ads, stations should be thinking about access for political candidates. Especially in the early primary and caucus states, with so many candidates for the Republican nomination, spot availability may become tight in the weeks leading up to the actual voting. But, as long as a candidate does not sit on their rights, equal opportunities requires that candidates have a right to respond to their opponents in equal amounts of broadcast time, and reasonable access requires that you make available time to all Federal candidates in reasonable amounts. But reasonable access does not require that you provide a candidate with all the time that they request (see our article here). As well-funded candidates come in to stations now to request big ad buys later in the political season, stations should consider whether they really want to sell those candidates all the time that they ask for - knowing that some of the less financially secure candidates may be delaying their buys until the last days before the primary. You’ll need to fit in those late-arriving candidates, so make sure you have sufficient advertising inventory in reserve to make room for their commercials.

Moreover, there are issues about free time for candidates. As we’ve written before, the FCC has determined that most interview programs where the content is under station control - even those that have little news value on the normal day - are deemed “news interview programs” exempt from equal time rules if they routinely cover issues of public importance. Bona fide news programming is also exempt from equal time. Thus, equal time is normally only an issue in making sure that all candidates have equal opportunities to buy spot time, and in those rare circumstances where a candidate appears on a purely entertainment program. In these days of media overload, candidates are looking for these nontraditional means of exposure in broadcast programming. So use care if a candidate appears as a character on a scripted TV show, or walks into the announcing booth at a local football game asking to do the play by play for a few minutes, or (especially when dealing with state and local candidates) where the candidate is themselves a host of a broadcast program - as, depending on how they are handled, all could give rise to equal opportunity claims.

Another area where broadcasters need to pay attention is in connection with third party ads dealing with Federal issues. Sometimes the ads are subtle digs at the positions that a potential candidate is taking (“call Congressman X and tell him that he should stop voting for bills that are bankrupting the country”), and sometimes they are more direct attacks on the potential candidate. Sometimes they don’t directly address a particular politician at all, but are instead directed at an issue being debated in Congress. In any case, if the ads are dealing with Federal candidates or other issues being considered by the US House of Representatives or Senate, then they are Federal issue ads on which the station must maintain full public file information, similar to that which is kept for any candidate advertising – the full schedule of advertising that is to be run, the class of time sold, the sponsor of the ad, and even the price that was paid for the spots (see our post here on the public file requirements for Federal issue ads).

We have also written, here, about issues concerning the content of these third-party ads, as stations can potentially have liability for defamatory content in those ads if the stations know or have reason to believe that the ads are in fact false. Candidates who are attacked may be calling stations asking that ads from PACs and other third-parties be pulled from the airwaves, and stations need to have plans in place to be ready to evaluate and deal with such claims. While third-party ads do not get lowest unit rates, these ads can be more problematic than candidate ads as they do potentially force stations to be judges of the truth of the content of those ads. Candidate-sponsored ads, on the other hand, cannot be censored, so stations have no liability for the content of those ads.

Finally, with the election fast approaching, even stations not in early primary states should start planning for the election season. Some stations are no doubt already selling long-term contracts that will still be in effect during the primary season. Stations should be considering how to allocate the purchase price of these long-term contracts to reflect their actual seasonal value - rather than simply booking them as having a flat rate throughout the entire year - including the pre-election lowest unit rate periods. As we wrote in our Political Broadcasting Guide, the FCC allows you, in internal station documents, to allocate for lowest unit rate purposes, the purchase price of a long-term contract in a manner different than shown on invoices given to commercial clients, as long as that allocation more accurately reflects the seasonal value of the spots sold, adds up to the total purchase price of the package, and is not done simply to avoid the lowest unit rate periods. Consult with your attorney to make sure that you properly apply this process, but it could save you money in the long term.

These are but a few of the political issues that broadcasters should be considering. So tune into our December webcast for more information about some of the political issues about which you should be thinking or check out our Political Broadcasting Guide, or those prepared by the NAB and many other organizations representing broadcasters. These rules are complex, so you can never do enough preparation.