Public interest groups are actively watching broadcast political advertising which could make this a very interesting year for broadcasters. The Sunlight Foundation, which only two months ago filed complaints against 11 television stations for alleged inadequacies in their online political files(see our summary here), has now filed two new complaints alleging that television stations violated FCC rules in recent elections by not identifying the true sponsor of political ads. In each complaint, Sunlight alleged that ads were tagged as having been sponsored by Political Action Committees, but in each case the true sponsor who should have been identified was the wealthy individual who had contributed all of the funds to the PAC. Sunlight’s press release about the complaints is available here, and contains links to the complaints themselves. Is this complaint valid?
The complaint focuses on the language in Section 317 of the Communications Act which requires that when a station broadcasts any content and “consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person,” that person must be identified. While it seems clear from FCC precedent that person does not mean individual person, as corporations or other legal entities can certainly be sponsors, the compliant submits that this situation is different. Why? Because, the petitioners argue, the PACs involved in these cases (one supporting a Republican candidate, the other supporting a Democrat) were effectively each an alter ego for a single individual who provided all the funds for the PAC. But how is the TV station supposed to know?
The petitioners state that the stations should have known, either from their own news operations or from any sort of minimal online research, that the PACs really were just a way for these individuals to buy TV ads to support the candidates they were backing. The Complaints claim, relying on the language of Section 317, that the station has a duty of investigation, citing this language:
The licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section
In the 30 years that I have been practicing before the FCC, I can recall only one case where the FCC required that broadcaster look behind the named sponsor of a political ad – and that was more on a prospective, limited basis. That involved a group running ads against an anti-smoking initiative in Oregon, where pro-initiative supported were able to demonstrate that the group really had no independent existence – that it was just a couple of lobbyists for a tobacco company that were running the group, with all of the money coming from a single tobacco company for which the lobbyists worked, and the group had no other existence.
In today’s case, one wonders if the same facts really apply, as the PACs appear to have been duly organized and registered with the Federal Election Commission. And, here, the Complaints are not asking that the stations run a disclaimer prospectively, as the elections with which they deal are already over. Instead, they either seem to be seeking penalties against the stations involved, or more likely, a determination that would put other stations on alert to investigate situations like this in the upcoming elections in November of this year.
Certainly, any finding that there is a duty to investigate even properly registered PACs and other advocacy organizations will place a burden on broadcasters – especially smaller broadcasters who don’t have the resources to check every ad and research every sponsor to determine if there is any indication who is the true party behind the group. Stations have enough issues just getting the information already required to be placed in their online public file from many of these organizations. To have to go beyond that, and make calls as to what is a full disclosure and what is not seems to inject these stations into the political process and potentially chill political speech. And where does any such obligation end? What if, instead of one individual, each of these PACs had been funded by two individuals? Would each have to be identified? How about if it was 10 individuals? Where are the lines drawn?
Many public interest groups have long been seeking to require more disclosure about the funding of political advertising. See, for instance, our summary (here and here) of the DISCLOSE Act, legislation proposed years ago that would have mandated greater disclosure of the sources of political funding. But imposing the obligation to be a political money detective on individual broadcasters does not seem to be the solution. Instead, any solution should be one imposed by legislation requiring more detailed disclosure to the FEC, who can make that information public.
Of course, we will see what the FCC does with these complaints. But these complaints also highlight again the need for TV broadcasters to be vigilant about keeping up with their online public file – as the public interest groups are clearly watching this election very closely. For more about the online political file, see our post here with a link to a presentation that we did on those obligations. For more on the political rules generally, see our Political Broadcasting Guide, available here.