NAB, TV Groups Challenge FCC Order On Political File Complaints


In a Memorandum Opinion & Order adopted by the FCC’s on Oct. 2 but withheld from release until Oct. 16, some 11 complaints against commercial TV stations owned by such companies as Nexstar Media Group, The E.W. Scripps Co., FOX, NBC, CBS, Hearst Television and Graham Media Group were resolved.

Or so we thought. Hearst, Graham Media, Nexstar, FOX and Scripps were joined by TEGNA and the NAB in submitting a petition for reconsideration of the Order.

Now, the Media Bureau is seeking public comment on this reconsideration request.

The MO&O resulted from complaints brought to the Commission’s attention by the Campaign Legal Center and Sunlight Foundation regarding the stations’ maintenance of political files.  As individual complaints targeting each broadcast company raised similar issues, consideration of them was consolidated by the FCC.

The principal focus of these complaints involves the obligations Congress added via the
Bipartisan Campaign Reform Act of 2002 (BCRA), which are codified in sections 315(e)(1)(B), (e)(2)(E), and (e)(2)(G) of the Communications Act of 1934, as amended.

The latter two provisions identify the specific information that is required to be placed in a political file with respect to requests to purchase advertising time if, pursuant to section
315(e)(1)(B), the advertising communicates a message relating to any political matter of national importance.

Some of the stations named in the complaint failed to make disclosures in a manner
that was consistent with specific clarifications. Among them is a requirement that for each request to purchase political advertising time that triggers disclosure obligations
under section 315(e)(1)(B) of the Act, licensees must, pursuant to section 315(e)(2)(E),
disclose in their political files all political matters of national importance, including the
names of all legally qualified candidates for federal office (and the offices to which they are
seeking election), all elections to federal office, and all national legislative issues of public
importance, to which the communication refers.

However, the FCC declined to take enforcement action with respect to those instances of noncompliance where the particular requirements were not sufficiently clear prior to the
clarifications provided in its Memorandum Opinion & Order, or where stations disclosed some, but not all, of the information required by the statute based on “a misreading of the statutory language.”

As such, the FCC placed the following stations on notice that, going forward, they will be subject to enforcement action for willful and/or repeated failure to comply with their political file obligations, clarified in the MO&O:

  • FOX O&O WTVT-13 in Tampa-St. Petersburg
  • Nexstar-owned NBC affiliate WFLA-8 in Tampa, a former Media General station
  • NBC O&O WTVJ-6 in Miami-Fort Lauderdale
  • ABC O&O WTVD-11 in Raleigh-Durham
  • CBS O&O WWJ-62 in Detroit
  • The E.W. Scripps Co.’s ABC affiliate KNXV-15 in Phoenix
  • Hearst Television’s politically influential ABC affiliate in Manchester, N.H., WMUR-9
  • Graham Media Group flagship WDIV-4, the NBC affiliate in Detroit
  • FOX O&O KMSP-9 in Minneapolis
  • TEGNA-owned NBC affiliate WCNC-36 in Charlotte
  • The E.W. Scripps Co.’s ABC affiliate in Denver, KMGH-7

However, the FCC admonished the licensees of eight of the 11 stations for their willful and/or repeated violations of section 315(e) of the Act “for actions where their conduct violated the clear mandate of the statute.”

Those stations are WTVT (for maintaining a record in its political file for a Democratic Congressional Campaign Committee advertisement that did not disclose any political matters of national importance that were communicated in the ad); WFLA-TV (for the station’s conduct in maintaining a record in its political file for a National Republican
Congressional Committee (NRCC) advertisement that did not disclose any political matters of national importance communicated in the ad); WTVJ (for a LIBRE Initiative ad); WTVD (for an American Crossroads ad); WWJ-TV (for a Senate Majority PAC ad); KNXV-TV (for a House Majority PAC ad); WMUR-TV (for an Americans for Prosperity ad); and WDIV-TV (also for an Americans for Prosperity ad).

While the Commissioners were largely unanimous, and vocal, in their views on the matter, that didn’t deter the broadcast TV companies’ legal counsel and Rick Kaplan, the NAB’s General Counsel, from filing a Nov. 15 reconsideration request with the FCC.

They request, among other things, that the Commission narrow its interpretation of the term “political matter of national importance” set forth in 47 U.S.C. §315(e)(1)(B) by specifying that this term applies only to a message “directed to or about national political actors in a position to take national political action on the matter” and by excluding from the term’s definition “advertisements about state and local candidates and races.”

They also want the FCC to eliminate the requirement that stations identify all “political matters of national importance” that are referenced in each issue ad and instead require stations to make “reasonable, good faith efforts to disclose the topics that are the focus of political ads.”

Further, the station groups and NAB argue that the Commission should modify the Order to permit broadcasters to exercise their good faith judgment in using acronyms to identify sponsors of advertisements under 47 U.S.C. §315(e)(2)(G).

Lastly, the petitioners assert that the Commission should have sought public comment to inform its statutory interpretations in the MO&O and request that the Commission seek comment on the Petition.

That’s exactly what it is now doing. Interested parties will need to reference MB Docket No. 19-363 — and wait for the Federal Register to print the item.

Once that is done, Comments and Oppositions are due within 30 days of this release.

Replies are due 45 days after release.

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