Get ready for more challenges to issue ads that you may be receiving this election season. The FCC’s Media Bureau today released a brief decision on the Sunlight Foundation’s complaint petition against two TV stations concerning the proper sponsorship identification for ads by Political Action Committees. We wrote about those complaints when they were filed back in July, here. The complaints, arising from elections that took place last year, targeted two PACs that each had single individuals who had donated substantially all of the money that was raised by the PAC. Sunlight claimed that the stations should have tagged as the true sponsors of the ads the individuals who had provided virtually all of the money for the PACs. Sunlight alleged that these stations should have known who the true sponsors of the ads were, based on news reports that were run on the stations talking about the individuals who had funded the PACs. Instead, the stations had run sponsorship identifications identifying only the PACs as the sponsors of the ads.
In today’s action, the Bureau dismissed the complaints. However, the Bureau did not find Sunlight’s allegations to be incorrect. Instead, the complaints were dismissed because Sunlight never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election. The Bureau stated that it was using its “prosecutorial discretion” not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election.
As we wrote when we first covered these complaints, the allegations are similar to those made 20 years ago in a case involving an anti-smoking initiative in Oregon, where the FCC determined that a tobacco company should have been identified as the sponsor of the ads opposing an anti-smoking ballot initiative, when the company provided all of the funding to the committee that was the purported sponsor, and where the committee’s officers were tobacco company lobbyists. That Oregon decision was cited in today’s ruling. It is, as far as I know, the first time that the FCC has determined that the Oregon case could be applied beyond its narrow facts in the 20 years since it was decided.
After today’s decision, you can bet that stations will see more requests to look behind the sponsorship identification provided for political ads by PACs, as opposing groups will seek to have stations identify the “true sponsor” of those ads. This may add one more burden to the issues that broadcasters already face in making decisions about running “issue ads.” It may not always be easy to determine where the money behind a PAC comes from. From the vagueness of the decision today, it also is not clear in what cases the donors should be identified as the true sponsors and when the PAC itself is properly identified as the sponsor. It really is impossible to determine what the FCC meant by its suggestion that broadcasters may have more obligations to dig into the true sponsor of a PAC ad. Does it really mean that the broadcaster needs to identify as the sponsor of an ad the principal funding source of a PAC if that source is an individual? What percentage of the PAC’s funding has to come from one person before that identification requirement would be triggered? Does this ruling only apply where there is but one significant financier of the PAC, or can it apply if there is a limited group of people funding the PAC, where all need to be identified? If so, how limited a group? And what is the station supposed to do if it gets an allegation that a PAC is funded by a single individual, but the station has no way to determine if that is true or not? All these questions are left unresolved by today’s decision – and it is unclear when, if ever, the station will actually need to go behind the sponsorship identification provided by a PAC. But you can be sure that this is not the last that we have heard on this issue, as it will likely be used as a tool to make broadcasters think twice about taking third-party political advertising money.