Section I. Summary and “Definitional” Overview of Main Legal Concepts
Before diving into the details and nuances of political advertising law contained in this guide, here’s a brief introductory discussion of important concepts that are discussed in much greater detail throughout this guide.
This guide uses the term “political advertising” to refer in the aggregate to both candidate advertising and issue advertising. In other words, the term “political advertising” is not intended to be interchangeable with either the category of commercials known as “candidate advertising” or the category of commercials known as “issue advertising” — it is intended to be a shorthand way to refer to both of those categories together in this guide. Because there are different legal obligations and restrictions that apply to “candidate advertising” and “issue advertising” respectively, it is important never to inadvertently use “political advertising” as a synonym for either of the distinct categories of “candidate advertising” or “issue advertising.”
For purposes of this guide — and discussions with stakeholders involved in the political advertising ecosystem — the term “candidate advertising” refers to advertising (i) in which a candidate appears, (ii) that qualifies for “lowest unit charge” (“LUC,” also sometimes called lowest unit rate or “LUR”) during the LUC windows, (iii) that cannot be censored by stations, and (iv) that is paid for by a candidate’s official campaign committee or is paid for by another political committee and is coordinated with and/or authorized by the candidate who appears in the ad. Generally, candidate advertising is purchased by the candidate’s own official campaign committee or by a political party (or “arm” of a political party, such as a state or local chapter of a political party).
In short, “issue advertising” is all political advertising that does not meet the above description of “candidate advertising.” More specifically, “issue advertising” involves program material that addresses controversial issues of public importance — often, but not always, referring to candidates for public office, current office-holders, constitutional rights/limitations, legislative/regulatory policies, and/or ballot issues. Generally, issue advertising is advertising purchased by a third-party political advertiser (i.e., someone other than a candidate or his or her campaign committee), including but not limited to SuperPACs, trade associations, political parties, corporations, unions, and certain tax-exempt organizations. All issue advertising must comply with the FCC’s rules on sponsorship identification and sponsorship list retention, and federal issue ads must also comply with certain additional FCC record-keeping requirements.
When a timely request is made, a broadcast station must provide an “equal opportunity” to “legally qualified” candidates for the same office. The “equal opportunities” requirement applies to appearances or “uses” (in audio or visually) by legally qualified candidates but, generally, not to appearances or uses by spokespersons for or representatives of candidates; and the mere mention of the name (in audio or visually) of a candidate does not trigger equal opportunities. Candidate appearances in or on certain news programs, news documentaries, and regularly scheduled news interview shows are exempt from the “equal opportunities” provision. More detail about “equal opportunities” is in Section II.E.
“Lowest unit charge” / “lowest unit rate”
The rates a broadcast station may charge for the “use” of the station’s facilities by a “legally qualified” candidate (whether for federal, state, or local office) are subject to federal and state regulation. Subject to greater detail discussed in Section II.B, the fundamental premise is that during the 45-day period before a primary or primary run-off election and during the 60-day period before a general or special election, the rate a station may charge a candidate for a broadcast “use” may not exceed the station’s “lowest unit charge” (sometimes also referred to as the “lowest unit rate”) for the same class and amount of time for the same time period. This means, in short, that a station must extend to a candidate its most favorable “volume” or “quantity” discount for advertisements broadcast during these windows of time even if the candidate does not purchase time in large quantities. For “uses” outside the 45-day or 60-day periods, a station may charge a candidate a rate “comparable” to that charged to regular commercial advertisers. Additionally, outside of the 45-day or 60-day periods, a station cannot charge a candidate a rate that exceeds the charges made to other advertisers for comparable use of the The Bipartisan Campaign Reform Act of 2002 (BCRA) makes the availability of the “lowest unit charge” for certain kinds of ads by federal candidates subject to additional “stand by your ad” requirements, which are discussed in Section IV.B.
“Reasonable access” for federal candidates
As further discussed in Section II.C, stations must afford “reasonable access” to “legally qualified” candidates for federal office for “use” of the station’s broadcast facilities — effectively, this means that stations are required to take candidate advertising for federal candidates. Candidates for federal office include candidates for President and Vice President, the U.S. Senate, and the U.S. House of Representatives. The “reasonable access” provision does not apply to state and local candidates, and stations are not required by law to sell time to such candidates. Nonetheless, when stations do elect to sell time to state and local candidates, the equal opportunities and “lowest unit charge” rules apply.
If an advertisement or program constitutes a “use” by a “legally qualified candidate,” stations may not censor the content, even if it is libelous, inflammatory, or otherwise offensive to the community — unless the content is legally “obscene” or “indecent.” Because stations are, in general, prohibited by law from censoring material if the broadcast constitutes a “use” by a candidate, the U.S. Supreme Court has held that broadcasters are not liable for on-air statements —libelous or otherwise — made by candidates.
Specific, on-the-air identification of the sponsor of political ads (i.e., the entity(ies) or person(s) who paid for it), including announcements or programs that do not constitute a “use,” is required under Federal Communications Commission (FCC or Commission) and Federal Election Commission (FEC) rules, as well as Ohio law. In short, all broadcast political advertising must include a statement identifying who paid for it, and in some instances, whether the advertising is authorized by a particular candidate. Please note: In December 2022, the FEC adopted new sponsorship disclosure requirements for digital political ads that went into effect in March 2023, and while stations will generally not be held liable for violation of those new requirements, stations should nevertheless become familiar with the new requirements (which are discussed in Section VII.B).
Political disclosure statement
The FCC requires stations to make certain disclosures about their rates and sales policies and practices (including classes of time, preemption priorities, makegood policies, etc.) to all prospective political advertisers who express a desire to purchase air time.
Compliant FCC political record keeping is one of the most important regulatory responsibilities of station personnel involved in the sale of political advertising. Failure to maintain compliant records may result in FCC investigation and penalties; during the 2019 – 2023 FCC renewal cycle, hundreds of stations were found by the FCC to have violated the political record- keeping rules to varying degrees and were penalized and burdened with additional reporting requirements, additional training requirements, and additional regulatory risk.
Digital political advertising
Historically (as of September 2023), the FCC has not regulated candidate or issue advertising sold on a station’s digital assets. Thus, the equal opportunities, reasonable access, lowest unit charge, and no- censorship provisions do not apply to digital political advertising. On the other hand, election laws regarding sponsorship identification apply to various political advertisements online, and campaign finance laws prohibiting corporate contributions to candidates could potentially apply to digital platforms that favor one candidate over another in the purchase of digital political advertising. There are also special rules regarding liability for online political advertising content. As discussed in detail in Section VII, the federal Communications Decency Act provides immunity to website operators in certain circumstances for content created or developed by third parties, and the Digital Millennium Copyright Act provides limited safe harbors for copyright liability. Moreover, because there are no safe harbors from trademark, false endorsement, or right of publicity claims arising from online political advertising, stations must be diligent with respect to content that could implicate such claims. Finally, certain digital platforms, including social media sites, impose their own requirements and limitations with which stations must be familiar.
A more detailed discussion of these foundational political broadcasting principles follows.