NAB says FCC lacks mandate to impose online political file


NAB / National Association of BroadcastersLately there has been a hue and cry to have broadcasters make information about political advertising placements available not only in their public files, but online as well as the FCC moves ahead with enhanced disclosure and online public file proceedings. But NAB points out that the Bipartisan Campaign Reform Act of 2002 expressly states that the Federal Election Commission is the appropriate online repository for political advertising disclosure.

NAB stated, “In Section 501 of BCRA, Congress directed the FEC to ‘make a designation, statement, report, or notification that is filed with the Commission under this Act available for inspection by the public in the offices of the Commission and accessible to the public on the Internet not later than 48 hours (or not later than 24 hours in the case of a designation, statement, report, or notification filed electronically) after receipt by the Commission.’”

NAB went on to note several other FEC responsibilities, and noted that the only FCC responsibility was to assist FEC where it was a repository of information needed by FEC to fulfill its task.

After listing the FEC responsibilities, NAB noted, “By contrast, in establishing the obligation of broadcasters to collect and make available political records under BCRA, Congress referred only to making such records ‘available for public inspection.’  With respect to the obligations imposed on broadcasters, Congress did not impose any associated obligation to make such records available on the Internet (either through a station- or FCC-hosted website).”

NAB said that when Congress manifestly places a requirement on one entity (FEC) and not another (the broadcast community), it must be presumed that this was its deliberate intent.

Therefore, the FCC has no authority to impose a requirement on broadcasters to place political advertising information online, absent further instructions from Congress.

NAB goes on to list the vast amount of backround information on financial sources that political advertisers must disclose to the FEC, and notes that no similar divulgence of information to broadcasters is required, more evidence that Congress does not expect broadcasters to police political advertising.

NAB repeated some of its own earlier-stated practical concerns. “As NAB explained previously, maintenance of the political file ‘requires very significant time and personnel resources,’ especially during busy political seasons. Moreover, ‘designing an online database system that is, at once, sufficiently flexible to accommodate the myriad ways broadcasters sell and document political advertisements and yet still useful to candidates, advertisers and members of the public, will be an extremely challenging task.”