Legal Bulletins


The OAB, through its FCC and Ohio counsel, provides updates on current issues and regulatory changes that impact broadcasters.

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Commission Adopts Minor Changes to Political Programming Rules

As part of the FCC’s agenda for its January 2022 open meeting, the Commission adopted a Report and Order (the “Order”) revising several of its political programming rules in relatively minor ways.  The revisions generally reflect preexisting station practices that simply hadn’t yet been formally written into the FCC’s rules.  The areas targeted by the FCC’s recent rule revisions are stations’ recordkeeping practices and the criteria relevant to whether an individual running as a write-in candidate qualifies as a “legally qualified candidate for public office.


As broadcasters are well aware, various statutory and FCC rules govern many of the specifics related to requests to purchase political advertising time, particularly when those requests are either (1) made by or on behalf of a “legally qualified candidate” or (2) communicate a message relating to “any political matter of national importance.”  Those political broadcasting rules have been in the spotlight for the last several years—particularly those relating to broadcasters’ political file recordkeeping obligations—as the full Commission has issued several Orders “clarifying” aspects of the rules and the Media Bureau has entered into consent decrees with broadcasters both large and small for what the Bureau has viewed to be deficient political file recordkeeping compliance.

Among the FCC’s many, various political broadcasting rules, the two directly affected by the Order are: (1) stations’ recordkeeping obligations related to requests for advertising time by a third-party (i.e., by someone other than a legally qualified candidate or the candidate’s authorized campaign committee) that communicates a message relating to any political matter of national importance (i.e., national “issue” ads); and (2) the criteria relevant to whether an individual running as a write-in candidate has made a “substantial showing” of bona fide candidacy sufficient to qualify as a “legally qualified candidate” for purposes of relevant law and FCC rules (e.g., the “lowest unit charge,” “equal opportunities,” and “reasonable access” rules).

The Order’s Minor Rule Revisions

As noted above, the minor revisions adopted in the Order generally mirror existing station practices and therefore are unlikely to surprise stations.  For example, the Order’s revisions to the FCC’s political file recordkeeping rules simply harmonize the Commission’s rules with broadcasters’ pre-existing statutory obligations (adopted in 2002) to retain and upload relevant records for national third-party issue ads.  Put differently, stations still must retain and timely upload to their political files the following information relating to requests for time for national third-party issue ads: whether the request to purchase broadcast time is accepted or rejected by the station; the rate charged for the broadcast time; the date and time on which the advertisement is aired; the class of time that is purchased; all political matters of national importance to which the advertisement refers; and the name of the person or entity purchasing the time, including the name, address, and phone number of a contact person for such purchaser and a list of the chief executive officers or members of the executive committee or of the board of directors of such purchaser.

The Order’s other primary revision brings into the digital era the analysis regarding whether an individual running as a write-in candidate has made a “substantial showing” of bona fide candidacy sufficient to qualify as a “legally qualified candidate.”  Specifically, the Order finds both use of social media and creation of a campaign website to be criteria relevant to that determination.  The Order therefore adds those online items to the Commission’s preexisting, non-exclusive criteria, which include: “evidence that the person claiming to be a candidate has engaged to a substantial degree in activities commonly associated with political campaigning,” including “making campaign speeches, distributing campaign literature, issuing press releases, maintaining a campaign committee, and establishing campaign headquarters.”  As examples of how the new criteria might apply, the Order notes that “social media activities that may support a substantial showing of a bona fide candidacy include the use of social media to fundraise, solicit votes, share policy positions, and engage in digital dialogues with voters.”  The Order emphasizes, however, that online presence is insufficient—standing alone—to constitute a “substantial showing,” and formally codifies that nuance into the updated rule: “[t]he creation of a campaign website and the use of social media shall be additional indicators of a bona fide candidacy, not determinative factors, and such digital activities must be combined with other activities commonly associated with political campaigning that are conducted in substantial portions of the relevant geographic area.”

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With the 2022 political season rapidly heating up, we encourage you to promptly and regularly review your station’s political file recordkeeping and general political programming obligations to assist with compliance.  And, when you do, please take note of the above-described rule updates.

Legal bulletin provided by Brooks, Pierce, McLendon, Humphrey & Leonard, LLP


This Legal Update should in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances. Therefore, you should consult with legal counsel concerning any specific set of facts or circumstances. The information provided through this update does not constitute legal advice from the OAB or its legal counsel and does not establish an attorney-client relationship between any member and OAB legal counsel.