As the road to the November 8, 2022, general midterm election heats up, we’ve received an increasing number of reports from stations who have received advertising orders from Members of Congress paid for with so-called “franked funds.” Such “franked” advertisements have the potential to raise various, nuanced issues under the FCC’s political broadcasting and sponsorship identification rules. This brief e-memorandum is intended to provide a bit of context about what to do—and to flag items to consider—if your station receives an advertising order paid for with “franked funds.”
What is “franking?”
The so-called franking privilege has existed in the U.S. since colonial times. Historically, the franking privilege permitted Members of Congress to transmit mail to their constituents without the postage that would otherwise be required. The franking privilege was designed so that Members of Congress could convey information to their constituents about the operations of government and policy issues before Congress.
Over the years, the franking privilege has expanded and contracted and, currently, has been interpreted in a manner extending to communications via TV and radio. There are numerous qualifications placed on how Members of Congress are supposed to use franked funds. Among other things, franked funds are not supposed to be used: (1) “fewer than 60 days immediately before the date of any primary or general election in which the Member is a candidate for reelection” or “for any other public office;” or (2) to “solicit political support for the sender or any other person or any political party, or a vote or financial assistance for any candidate for any public office.”
Broadcaster considerations when receiving orders for “franked” ads
As noted above, advertisements paid for with franked funds have the potential to raise numerous nuanced FCC compliance issues. Below, we’ve outlined a brief list of FCC-related issues that stations may wish to consider when it comes to ads that are purchased with franked dollars. However, we strongly encourage any station with questions regarding franked ads to contact their communications counsel for advice regarding their particular factual circumstances and/or to call the OAB’s FCC Hotline for more information regarding these matters.
Political File Recordkeeping
It is quite possible that a franked ad a station receives will trigger the statutory and FCC political file recordkeeping rules, As a reminder, broadcasters have an obligation to generate and upload to their online public inspection file specified records whenever a request for time is made for a message relating to “any political matter of national importance,” including any legally qualified candidate for public office and/or national legislative issue of public importance. Because franked ads may relate to a legally qualified candidate for public office (e.g., a Member of Congress currently seeking reelection) and/or a national legislative issue of public importance (e.g., recently adopted or pending legislation, federal programs available to constituents of the congressional representative, etc.), such ads may trigger a station’s political file recordkeeping obligations.
In addition, franked ads may constitute a “use” by a legally qualified candidate for public office sufficient to trigger “equal opportunities” obligations. Recall that, for purposes of the FCC’s “equal opportunities” provision, a use occurs when (1) a legally qualified candidate for public office (2) makes a non-exempt positive appearance (3) on the air (4) where the candidate’s voice or picture is identified or “readily identifiable” by the listening or viewing audience. Because it is not required for a candidate to discuss her or his candidacy in order to trigger the equal opportunities provision, a candidate’s voice or picture in a franked ad may trigger opposing candidates’ entitlement to equal opportunities.
Franked advertisements are not paid for directly by the Member of Congress or her or his authorized campaign committee; instead, such ads are paid for via congressional “franking” funds allocated to the Member. As stations are well aware, the FCC’s sponsorship identification rules require that whenever a station directly or indirectly receives consideration to air programming the station must announce: (1) that such programming is sponsored, paid for, or furnished (as applicable), either in whole or in part; and (2) by whom or on whose behalf such consideration was supplied. The funding source for “franked” ads makes sponsorship identification analysis more nuanced than in the case of a typical commercial or political advertisement, and so stations should thoughtfully consider the sponsorship identification component of any franked advertisement.
No Lowest Unit Charge As noted in the preceding sections, franked ads are not paid for by a legally qualified candidate for public office or his or her authorized committee and are not supposed to promote the candidate’s election. As a result, the FCC’s lowest unit charge provisions are not triggered.
Legal bulletin provided by Brooks, Pierce, McLendon, Humphrey & Leonard, LLP.