FCC Clarifies Portions of Political File Policy
The full FCC unanimously approved a reconsideration order clarifying some aspects of the agency’s previous clarification of its political file rules (see 2003300046). As industry sought, the regulator clarified that the political advertising reporting policies it instituted in October apply only to third-party issue ads, not candidate ads. The agency said it will use “a standard of reasonableness and good faith” in judging whether broadcasters are complying with rules for commercials in determining whether the spots trigger disclosure obligations, concern a national issue, or appropriately use acronyms or abbreviations. All other issues raised in recon petitions by NAB and broadcasters including Scripps and Meredith are “pending,” said a footnote.
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Meredith General Counsel Joshua Pila emailed that his company is reviewing the order and is pleased the FCC clarified it will use a reasonableness standard. Commissioner Mike O’Rielly said he suspects "we will have to revisit this issue again, and those potentially captured in this web of compelled speech should know that I intend to be appropriately suspicious of any draft FCC enforcement effort on this matter.”
Several attorneys told us the recon order’s focus on only some of the broadcasters' complaints is a sign it was easier to get an eighth-floor consensus on those items. One lawyer said broadcasters don’t expect other action on the political file matters soon and will be largely satisfied with the current order.
The order sows further confusion about when stations need to spell out acronyms for organizations buying issue ads such as the AARP, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman, who represents transparency groups in the proceeding. The order says the FCC will hold broadcasters to a good faith standard on when to use acronyms to identify organizations. Schwartzman said it creates uncertainty. He chastised the agency over timing. “When public interest groups file a complaint, it takes years for the commission to act,” he said. The initial broadcaster political file complaints were filed in 2014, he said. Industry got a recon order in months, he said. The FCC 8th floor seems to care more about helping companies than about helping the public, said Schwartzman.
Broadcasters had raised several objections to the rules that weren't addressed. State broadcast associations said the FCC requirements are too burdensome and would lead to stations listing every possible issue an ad might address. Broadcast commenters and Tech Freedom said the requirements are unconstitutional, an issue also raised by O’Rielly. His statement cited the First Amendment twice.
O’Rielly also echoed broadcaster comments in criticizing the way the October political file policy was implemented, without a notice and comment proceeding. “We effectively prevented ex parte conversations with all affected broadcasters, who had little to no knowledge of the end result’s content or breadth," he said. "They were not permitted to provide counterarguments.”
The recon order makes “no determination” on arguments by transparency organizations such as Campaign Legal Center that the policy didn’t need further clarification and the new rules should apply to candidate commercials. The original October order was associated with several political file complaints against broadcasters such as Scripps, but none of those complaints involved candidate ads, Tuesday’s order said. “In the absence of any complaint providing a basis to consider applying the rulings more broadly,” the FCC isn’t ruling on the argument, the recon order said.
"This wise clarification will lead to better outcomes for the public and not mire broadcasters in ‘gotcha’ advocacy complaints," said NAB. "Broadcasters are committed to providing the public with complete and transparent files, and today's order achieves that in a fair and even-handed fashion."