The last time the Federal Communications Commission updated its political programming and recordkeeping rules in 1991 most people probably thought the internet was something used by fisherman. But much as changed during the past three decades and Acting FCC Chair Jessica Rosenworcel thinks the time has come to make some revisions. When the Commission meets in August, it will vote on whether to advance a rulemaking proposal that includes provisions that may make it easier for some federal candidates to qualify for lowest unit rate on their broadcast ads.
One update under consideration would be to the Commission’s rules that dictate the sorts of activities broadcasters need to consider when determining whether an individual running as a write-in candidate has made a “substantial showing” of their candidacy. That designation is critical, since for federal candidates it would allow them to qualify for lowest unit rate provisions.
The FCC is proposing that stations add the use of social media and creation of a campaign website to the list of activities that are used. The list already includes things commonly associated with political campaigns, like making speeches, distributing campaign literature, issuing press releases, and opening a campaign headquarters.
“At the time our current rules were drafted, social media and campaign websites did not exist,” the draft order (MB Docket No. 21-293) says. But the FCC has tentatively concluded that in today’s political climate, they have become activities that bona fide candidates routinely use to solicit support, financial contributions, and votes. “Social media platforms enable political campaigns to build support by disseminating campaign updates46 and targeting advertisements to potential voters, and they provide sophisticated tools to regularly measure user engagement,” the draft order says.
Yet based on the ease of creating a social media account, the FCC has also tentatively concluded that alone would not be enough to support a status of “legally qualified candidate.” It says it would only be “an additional indicator” combined with other activities. One issue it is undecided on is whether the marketing and advertising done by the candidate in question must be directed toward local voters, or whether it can have a national scope.
Under a federal law adopted in 1971, radio and television stations must charge qualified candidates for federal office their lowest ad rates in the weeks leading up to the election. While it creates a paperwork headache for stations, the rule has also not stopped radio and TV from banking billions of dollars in political advertising revenue through the years.
Expanded Recordkeeping Requirements
The FCC is also looking at some updates to the recordkeeping rules that it has tentatively concluded are needed in order to bring its regulations into alignment with the Bipartisan Campaign Reform Act passed by Congress in 2002. It would require that information regarding any request to purchase advertising for any legally qualified candidate be placed in a station’s online public file. The update would also specify that the political recordkeeping obligations include any request for the purchase of time for issue ads for “any political matter of national importance.”
The information that a station would need to put in the public inspection file would include the rate charged for the broadcast time, the date and time when the commercial aired, the class of time that is purchased, and the name of the candidate and the office they are running for.
Stations would also need to collect some information in case someone requests it – such as information about a candidate’s authorized committee including its executive officers, and the name, address and telephone number of the person purchasing the time. That information would need to be placed in a political file as soon as possible and would need to remain there for at least two years.
The draft proposal points out the FCC has already been directing stations to do much of what the recordkeeping rule changes entail, and the changes would simply put on the books what has become common practice.
With a 2-2 deadlock on the Commission, the proposal avoids any of the more controversial ideas that have circulated. It is scheduled to vote on whether to launch the proceeding at its Aug. 5 meeting.