FCC Clarifies Political File Disclosure Requirements

The FCC has clarified certain political file disclosure requirements under the Bipartisan Campaign Reform Act of 2002 (BCRA). The clarifications resulted from complaints filed in 2014 by two public interest groups that alleged that 11 television stations failed to include certain information in their political files.

The FCC clarified certain information that broadcasters must include in their political files for political candidate and issue ads that are subject to BCRA—political ads purchased by legally qualified candidates and ads that communicate a message relating to any political matter of national importance. Significantly, the FCC clarified that stations are expected to list all political matters of national importance referenced in each ad, including the names of all legally qualified candidates for Federal office mentioned in the ad and the office they are seeking. For example, an advertisement may refer to both a legally qualified candidate and a national legislative issue. If so, the information that a station places in the political file for that ad must list both the candidate’s name and all issues referenced.

Under BCRA, “political matters of national importance” include but are not limited to legally qualified candidates, any election to Federal office, and national legislative issues of public importance. The FCC explained that to meet this standard, a broadcast message must be political in nature and be of national importance. The FCC clarified that BCRA only covers ads relating to legally qualified candidates for Federal office, and that national legislative issues are issues for which bills have been introduced in Congress. However, the FCC made clear that an ad discussing any political issue that is the subject to controversy or discussion at a national level would trigger the BCRA political file requirements. Broadcasters should note that although the BCRA requirements only cover ads for federal candidates, other FCC rules require stations to include in their political files similar information for political ads purchased by or on behalf of state and local candidates.

The FCC also clarified that stations are required to make reasonable efforts to obtain the names of the members of the executive committee or board of directors of any entity purchasing time for issue advertisements that address political matters of national importance. Generally, stations require advertisers to include this information on either the NAB’s PB-18 form or on a similar form. If political advertisers or their agencies fail to provide the information on the forms, or list only one officer or director, broadcasters are now required to ask the advertiser for a full listing of board members or to confirm that there is only one officer or director.

The FCC provided specific examples of conduct that would violate the political file requirement and be subject to enforcement action, including:

• Failing to indicate in the political file that an ad for a gubernatorial candidate that references the candidate’s stance on immigration reform addresses the issue of immigration.

• Failing to include in the political file information about an advertisement that references a legally qualified federal candidate, but not the specific election. A reference to either a legally qualified candidate or a specific election triggers public file disclosure obligations.

• Failing to identify the candidate referenced and the issue of national debt limits for an ad opposing that candidate and referencing the candidate’s lobbying for specific earmarks "at a time of record national debt."

• Describing an ad as simply "American Crossroads advertisement" without any additional information. BCRA requires the identification of any and all "political matters of national importance" referenced in the ad, and the names of legally qualified candidates mentioned in the ad.

• Failing to disclose an IRS rulemaking proceeding referenced in an ad. A federal agency rulemaking is a matter of national political importance.

• Failing to ask whether there are additional board members, if a PB-18 Form lists only one member of a PAC board of directors. Information in the political file must include the names of all members of an organization’s executive committee.

If you would like more information about the FCC’s recent clarifications or have questions about political file requirements in general, please contact any attorney in our office.