This column is about big money: perhaps $2.6 billion in TV political ad spending in 2008 in federal, state and local races, from president to the local sheriff. Why so much? For starters, the unprecedented early heavy volume of presidential candidate advertising in 2007, the large number of candidates for that and other offices and polls showing voters as restive, undecided and eager for change (i.e., perhaps persuadable by TV advertising.)

To many in television, a downside of this historic opportunity is the web of political advertising regulation. Knowing and navigating it can empower stations to maximize election-year revenue, accommodate commercial and political advertisers and minimize advertiser complaints, refunds to candidates and FCC enforcement. 

In other elections, December would be too early for a column on this subject. But not this time around. The 45-day, lowest-unit-charge period for primary elections is already underway in several states, including Michigan, South Carolina and, of course, New Hampshire and Iowa. It starts Dec. 15 for Florida and Dec. 22 for the many Super Tuesday states with Feb. 5 primaries (California, New York, Illinois, among others). Some primary dates may still change.

To address this extraordinary situation, this column focuses on six areas that have been generating questions to the FCC and station lawyers. Later columns on other aspects of election law will follow in 2008.

1. The effect of Internet ad sale sites on lowest unit charge.

The FCC needs to decide a June 2007 petition to clarify whether lowest unit charges required for legally qualified candidates must reflect the low prices of airtime sold by many stations through Internet sales representatives like SoftWave, Bid4Spots/EBay and DmarcBroadcasting/Google. On these Web sites, advertisers indicate what they're willing to pay for unsold time on a large “unwired network” of stations represented by the Web site proprietor. Stations can accept the bids online. 

During pre-election periods (45 days before primaries/caucuses, 60 days before general elections) stations must offer their “lowest unit charge”—the best rate that is in effect then for the most favored commercial advertiser—to legally qualified candidates for public office who appear in their own ads (i.e., candidate “uses”). Candidates are entitled to these rates even if they buy only a single spot and the commercial rate is based on volume.  

The pending legal issue is whether an earlier FCC policy exempting network-generated sales from individual station lowest unit charge calculations applies to the Internet arrangements. The expected ruling could affect many stations and candidates as use of the sites is increasing.

2. The anticipated increase in corporate and union requests for non-candidate, “issue ad” time.

Last month, a Federal Election Commission rule change allowed corporations and labor unions to use their own funds for political issue ads run during the 30 days before primaries and 60 days before general elections. These ads can name federal candidates if they stop short of directly supporting or opposing them. The change reflects a Supreme Court ruling, covered in this column last summer, striking down a former ad financing ban.

The FEC change applies directly to corporations, unions and ad producers, not stations or the FCC. But stations should prepare for more issue ad requests from more sources than previously. 

Issue ads are unlike candidate “uses,” which are bought by a legally qualified candidate or his/her campaign committee and the candidate appears “positively” in the ad in support of his/her election for at least 4 seconds. Stations do not have to sell issue ads at all, can charge any rate they choose, and equal time does not apply. (Note that a negative appearance of a candidate—in an ad by an opposing candidate or group—is not a “use” and does not trigger “use” obligations). Stations may also censor (e.g., require changes to) non-candidate ads. 

Not so for uses. They cannot be censored, and stations cannot be liable legally (e.g., for libel) for their contents.   

3. Employees who become candidates.  

A station is not legally required to take an anchor off the air if he or she decides to run for Congress. But certain regulations do kick in when the employee becomes a “legally qualified candidate.” That happens when the employee (or any candidate) has done all of the following: publicly announced, met the legal requirements for the position (e.g., minimum age) and met the local requirements, which vary even for federal candidates, to qualify for listing on the local voting place's ballot or as write-ins.

Once an employee meets these tests, his or her air time must be timed and noted in the public file. Opposing candidates can request equal opportunities within seven days of each employee appearance.  If the employee did not pay for the time, “equal” means free. Note that the subject matter of the | More …