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Who Deserves Lowest Unit Rates? Florida Broadcasters Ask FCC To Clarify The Rules.

If the early jostling among presidential candidates is any indication, the 2024 political season could be an active one for advertising by the end of this year. Yet a question hangs in the air about who qualifies for lowest unit rates, says the Florida Association of Broadcasters. Now it has asked the Federal Communications Commission to clarify the rules to help radio and television stations navigate the upcoming political ad onslaught.

What is clear is that under federal law, local radio and TV stations charge qualified candidates for political office the lowest unit rate for advertising time within 45 days of a primary election and within 60 days of a general election. It means that stations need to charge qualified candidates the same rate that they give to their most-favored commercial advertisers during the two periods leading up to an election. But the Florida Association of Broadcasters (FAB) says an unexpected back-and-forth last August has raised doubts about how far those rules go.

Berkshire Hathaway-owned WPLG-TV Miami was contacted last summer by a political committee which alleged that the television station was breaking the law by failing to give the committee the lowest unit rate for the ad time it was purchasing within 30 days of a primary election. According to FAB’s attorney, Francisco Montero, the committee claimed that the advertisement in question was authorized by a political candidate and that entitled it to receive the lowest unit rate.

FAB disagreed and asked Florida Secretary of State Cord Byrd to request an advisory opinion on whether its members are in fact required to make air time available to PACs at the lowest unit rate, based on a Florida state law provision that requires broadcasters to make air time available to candidates for public office at the lowest unit rate “to the extent permitted by federal law.” Rather than put in a request to Washington, the Secretary of State’s office responded by saying that since the Florida law plainly says that the lowest unit rate for air time be made available to candidates, without any mention of political committees, the lowest unit rate requirement applies only to candidates themselves, not to political committees.

FAB is now directly asking the FCC to “clearly articulate” the situations in which committees for state and local candidates for political office are entitled to lowest unit rate, clarifying that lowest unit rate rules apply only to committees that would qualify as authorized committees under Federal Election Commission rules. “The FCC has exclusive jurisdiction for issuing a final determination of the question regarding which, if any, political committees are entitled to lowest unit rate in state and local elections,” Montero writes in a petition for declaratory ruling.

Past Ruling Caused Uncertainty

The fuzziness in the rules is centered on a section of a 1991 declaratory ruling by the FCC that said the lowest unit rates applies to a candidate “and any authorized committee of the candidate” and defines “authorized committee” by referencing to the FEC rules, which apply only to candidates for federal office. Montero says it left uncertainty regarding which state and local campaign committees are entitled to lowest unit rate.

“FEC rules distinguish between types of committees by distinguishing between principal candidate committees, authorized committees, and all other committees. However, not all states adopt similar distinctions, instead treating all political committees the same. In such states, including Florida, the applicability of lowest unit rate rules is not entirely clear,” Montero tells the FCC. He says FAB is seeking a ruling to make it clear when a committee in a state or local campaign is entitled to the benefit of lowest unit rate.

Rather than opening up a new class of committees to get the lowest unit rate, FAB argues that only committees that are actually affiliated with a single political candidate should qualify for the lowest unit rate rule – a benefit which Montero argues is meant to benefit candidates and the committees they utilize to act on their behalf, not any other committees that may exist during a political campaign. “The FCC should distinguish between committees that are not affiliated with a candidate for political office from those that are by using the FEC’s definition of authorized committees and clarifying that only those committees that would be authorized under that definition qualify for lowest unit rate, whether those committees are affiliated with candidates for federal or state or local office,” he says.

Florida broadcasters have long made lowest unit rate available to political parties or affiliated committees under state law. Montero tells the FCC that broadcasters are not looking to change that practice.

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