Section II

Section II. Candidate Advertising: Obligations Incurred by a Station From a “Use” by a “Legally Qualified” Candidate

Whether a candidate is “legally qualified” and whether an appearance by the candidate constitutes a “use” of a broadcast station’s facilities, as those terms are defined by the FCC, are of critical importance in determining a station’s legal responsibilities. If there is a “use” of a broadcast station by a “legally qualified” candidate: (1) his or her opponents are entitled to “equal opportunities”; (2) at certain times, a station can only charge the candidate the “lowest unit charge”; (3) a station must provide “reasonable access” to candidates for federal office; and (4) a station may not censor the advertisement.

A. Who Is a “Legally Qualified” Candidate?

Generally, a candidate is “legally qualified” if he or she meets all three of the following criteria: (1) has publicly announced his or her candidacy for the office, (2) either has qualified for a place on the ballot or has made a substantial showing of genuine candidacy, and (3) is qualified under the applicable federal, state, or local law to hold the office (if elected).

For a write-in candidate (i.e., a candidate that is running for office but whose name will not appear on the ballot), various factors must be considered to determine whether the candidate has made the required “substantial showing” of genuine candidacy, including the candidate’s physical and digital political campaign activity. For digital political campaign activity, in January 2022 the FCC revised its rules to expressly include as factors relevant to the “substantial showing” analysis use of social media and creation of a campaign website, although neither are, without more, considered “determinative.”

The person claiming to be a legally qualified candidate bears the burden of establishing that he or she meets the FCC’s definition of a “legally qualified candidate.” The FCC has said that it will defer to a broadcaster’s reasonable good faith determination as to whether or not the person alleging status as a legally qualified candidate has met their burden.

Candidates for President or Vice President of the United States (or primary election candidates for nomination for the office of President or Vice President) will be considered legally qualified in all states if they have qualified for the ballot in at least 10 states. Also, except in the case of candidates for President or Vice President, a person seeking nomination to any public office by means of a convention, caucus, or similar procedure will not be considered legally qualified until 90 days before the convention or caucus is to begin.

Whether votes cast for an individual legally “count” in an election is a matter of state law. The Ohio Secretary of State’s office should be able to assist you with questions concerning whether a particular candidate is eligible and qualified to serve if elected.

B. Rates for Candidate Advertising — “Lowest Unit Charge” (aka LUC aka LUR)

1. What Is a “Use” for Purposes of the “Lowest Unit Charge” Rules?

In general, political candidates are entitled to the “lowest unit charge” for a “use” of a broadcast station during “lowest unit charge” windows. A “use” for purposes of the “lowest unit charge” provision is defined by the FCC as an appearance that: (1) is non- exempt (i.e., not exempt from equal opportunities obligations); (2) is by a legally qualified candidate; (3) is one in which the candidate’s voice or likeness is identified or is identifiable; (4) is purchased by the candidate or the candidate’s campaign committee or authorized agent, and (5) promotes the candidate’s election or the defeat of the candidate’s opponent(s). This differs from the definition of “use” in the equal opportunities context because, for example, a corporate ad supporting a candidate and containing an image of that candidate would not be entitled the “lowest unit charge,” even though the ad might trigger an equal opportunities claim from the candidate’s opponent.

2. The “Lowest Unit Charge” or LUC (a/k/a Lowest Unit Rate or LUR)

Under the “lowest unit charge” requirement, during the 45-day period preceding the date of a primary or primary run-off election and during the 60-day period preceding the date of a general or special election, the charges made for candidate advertising purchased by “legally qualified” candidates for federal, state, and local offices may not exceed the station’s “lowest unit charge” for the same class and amount of time for the same time period. (Note, however, that stations do not have to extend the “lowest unit charge” to federal candidates unless certain “stand by your ad” conditions required by federal law are satisfied, as explained in Section IV.B.)

The lowest unit charge periods for Ohio’s 2024 primary and general midterm elections are as follows:

• For the primary elections scheduled for March 19, 2024, the 45-day “lowest unit charge” period begins on February 3, 2024.

• For the general elections scheduled for November 5, 2024, the 60-day “lowest unit charge” period begins on September 6, 2024.

The “lowest unit charge” applies only to advertisements (i) in which a candidate makes a non-exempt appearance by voice or image, (ii) that are paid for by a candidate’s official campaign committee or paid for by another political committee and coordinated with and/or authorized by the candidate who appears in the ad, and (iii) are made in connection with the candidate’s campaign. Generally, third-party organizations that purchase advertisements advocating the election or defeat of a particular candidate are not entitled to the “lowest unit charge,” even if the candidate’s voice or likeness appears on the spot and would otherwise qualify as a “use.” This would include advertisements by SuperPACs, trade associations, tax-exempt organizations, and other third-party organizations funded by corporations and unions that are allowed to advocate for or against a legally qualified candidate. Such third-party advertisements are not entitled to the “lowest unit charge” because the advertisements are not purchased by a candidate or on behalf of a candidate.

The only non-candidate political advertisements that may qualify for “lowest unit charge” are spots purchased by political parties on behalf of candidates where the candidate has formally authorized the spot (or, in rare circumstances for state or local candidates, validly coordinated ads). FCC staff has informally taken the position that an advertisement sponsored by the candidate’s political party in which the candidate appears is entitled to the “lowest unit charge,” provided the expenditure is expressly authorized by the candidate. According to FCC staff, stations receiving a buy from a political party seeking LUC should request evidence of written authorization that the ad is purchased on behalf of the candidate.

The FCC has interpreted the “lowest unit charge” requirement as follows:

Best Quantity Discount: The term “lowest unit charge” means, essentially, that a station must extend its most favorable “quantity” discount to a candidate even though the candidate does not purchase time in large quantities. Put another way, a candidate is entitled to a station’s most favorable volume or frequency discount even if the candidate purchases only one spot announcement or only one unit of time. To illustrate, if a station charges $100 for a one-time, fixed position 30-second spot announcement in prime time, but charges only $80 per spot for a schedule of 1,000 fixed position 30-second spot announcements in prime time, a candidate purchasing only one fixed position 30-second spot announcement in prime time may be charged no more than $80.

Same “Class,” “Amount,” and “Period”: The “lowest unit charge” requirement does not mean that a station must sell prime time or drive time at a non-prime time or non-drive time rate. Nor does it mean that “fixed position” announcements must be sold at “run-of-schedule” or “preemptible” rates. In the case of television, the FCC has treated individual programs as separate “periods” of time. The “lowest unit charge” requirement applies only to charges made for the same “class” and “amount” of time for the same “period.” Thus, a candidate who purchases a fixed position announcement in drive time may be charged the same rate charged other advertisers for a fixed position announcement in drive time — except the candidate is entitled to the benefit of a frequency discount even though he or she might not be purchasing enough time to otherwise qualify for it.

Includes Election Day: The 45- and 60-day “lowest unit charge” periods, technically, do not include election day. However, FCC staff has indicated that if a station chooses to sell time on election day, it must sell that time at the “lowest unit charge.”

Determined from Rate Card (or Actual Rates Charged): The “lowest unit charge” is determined from a station’s rate card or from the rates actually charged by a station if they differ from the rate card — whichever is lower for the same class, amount, and period.

Rate Increases: Stations may increase their rates within the 45- and 60- day “lowest unit charge” periods preceding elections to reflect normal seasonal adjustments or increased ratings following audience surveys. For example, if a television station normally changes from lower summer to higher fall rates on October 1, the station’s “lowest unit charge” from September 9 to September 30 would be based on its summer rate, and its “lowest unit charge” from October 1 through the election would be based on its higher fall rates. The Commission also recognizes that weekly program or rotation prices may vary from week to week. Stations must calculate the “lowest unit charge” for weekly rotations solely on the basis of spots that ran during the relevant week, even if some of the spots were the result of contracts that are in effect over the course of several weekly rotations.

National/Local Rate Distinctions: National and local rate distinctions for political candidates are not permitted during the period in which the “lowest unit charge” is in effect.

Credit and Advance Payment: Generally, a station must extend credit to a candidate if the station would extend credit to a similarly situated commercial advertiser. If an advertising agency qualifies for credit under the station’s credit policies, a station may require the agency to accept legal responsibility for payment of a candidate’s account before extending credit to the agency. A station may require cash in advance from a candidate only if the station would require cash in advance from a commercial advertiser under comparable circumstances. Note that a station cannot require a candidate for federal office to pay more than seven days in advance of the time the first spot in a schedule is to run.

Make-Goods: Timely make-goods should be provided to candidates if a station has provided a timely make-good to any commercial advertiser during the year preceding the “lowest unit charge” window. Also, make- goods for candidate advertising must air before the election if the station would so treat its most-favored commercial advertiser when time is of the essence. Make-goods must be included when stations calculate the “lowest unit charge,” with the exception of make-goods furnished to meet contracted-for promises of certain audience numbers, demographics, or ratings. Thus, if a make-good runs in a normally more expensive time period, then it will become the “lowest unit charge” for that time period if the original spot was purchased for less than the lowest-price spot in the same time period and same class and amount of time. Accordingly, make-goods should run within the same time slot as originally scheduled. When a make-good is necessitated by certain errors (e.g., a technical issue that causes an issue with the originally-scheduled spot) or when a make-good is furnished to meet contracted-for promises of certain audience numbers, demographics, or ratings, then LUR is not affected. When make-goods are provided to meet a promise of audience delivery and pertinent audience information is not ascertainable until after an election, the station should either provide a prompt rebate or offer a make-good in connection with any subsequent election in which the candidate may be running.

Rebates/Credits: The charge is determined by the “lowest unit charge” in effect at the time of the broadcast. Thus, if the price of a spot or program should be lower at the time of actual broadcast than the price for which the candidate might have contracted in advance, the candidate would be entitled to a rebate or credit. If a station sells all immediately preemptible time in an auction-like manner, candidates may buy expensive spots to ensure non-preemption, but are entitled to a rebate equal to the difference between the amount paid by the candidate for his or her spot and the amount paid for the lowest-priced spot in the same class that actually ran in the same time period or day part. Stations, therefore, must review their program logs periodically during the election period to determine whether rebates are required, and they should issue such rebates or credits promptly.

Only for Charges Made for Purchase of Broadcast Time: The “lowest unit charge” provision applies only to charges made for the purchase of over-the-air broadcast time — it does not include charges for candidate advertising on a station’s digital assets, nor does it include charges customarily made by stations for production services, such as taping, filming, etc. For those services, candidates may be charged regular commercial rates.

“Pod Exclusivity” Not Required: Even if a station supplies “pod exclusivity” for its commercial advertisers, stations are not required to supply “pod exclusivity” to candidate advertisers. FCC staff has recognized that “pod exclusivity” would collide with candidates’ “equal opportunities” rights and that such exclusivity would unduly shrink the amount of time available for political candidates.

Package Plans/Bonus Spots: If a station sells an advertiser a package of spots, bonus spots, and other “value added” benefits at a total package price, it must, for political rate purposes, prepare a contemporaneous written memorandum allocating a value to every component of the package. In particular, all bonus (reduced charge or no-charge) spots sold as part of a package buy must be considered part of the buy and stations must allocate some reasonable value to them. In so doing, the value of the so-called paid portions of the order will be lower than their stated value (and the bonus spots will have a value that is higher than the $0 charge that is associated with them during the package negotiation). This is an important concept for stations to understand because it almost always has “lowest unit charge” implications.

Merchandising Incentives: Merchandising items of de minimis value (e.g., coffee mugs) or promotional items that imply a relationship between the station and the candidate (e.g., bumper stickers including an advertiser’s name and the station’s logo) need not be offered to candidates or figured into the “lowest unit charge.” Merchandising incentives of a significant value, such as a Caribbean cruise for purchasing a specified amount of advertising, must be disclosed and offered to candidates on the same terms as offered to commercial advertisers.

“Billboards” and Program Sponsorships: A station need not offer “billboards” and program sponsorships to candidates, nor must it factor them into “lowest unit charge” computations.

Paid PSAs: Sponsored public service announcements (“PSAs”), such as a recycling spot which only has an advertiser logo at the end, also need not be offered to political candidates. However, if PSAs come as part of a package, as with bonus spots (and unlike billboards and program sponsorships), the station should assign some value to such PSAs when determining the value of other spots in the same contract for “lowest unit charge” purposes. A station should set forth, in a written memorandum prepared at the same time the contract is signed, how it assigned value to the PSAs.

Bonus Spots for Non-Profit Organizations: FCC staff takes the view that “bonus” spots for non-profit groups, including charitable organizations and governmental agencies, do not count for “lowest unit charge” purposes. The full Commission has not ruled on this issue.

Trade Outs and Barter Arrangements: Station trade outs and barter arrangements are not used in computing the “lowest unit charge.”

Agency Commissions and Discounts: A station’s “lowest unit charge” is calculated based not on what the station charges, but on what the station receives for commercials that actually air. As a result, a station’s “lowest unit charge” will be affected (and lowered) if a candidate purchases time from a station through an advertising agency and the station gives the agency its regular commission. To illustrate, if a five- minute program costs $100 and the advertising agency gets the customary 15% commission, a candidate purchasing the program through an agency must pay $100. However, the station’s payment of the 15% commission to the agency effectively reduces the “lowest unit charge” for the spot; if a candidate purchases the same time directly from the station without the agency, the station must charge only the “net” price it received for the other spot — the candidate purchasing on his or her own, without an agency, would have to pay only $85. In contrast, though, the FCC has held that commissions that a station might pay to its outside “sales representatives” or “rep firms” are not to be treated in the same manner as commissions paid to an advertising agency. Thus, a political candidate who purchased directly from the station and not through a station’s outside rep firm would not be entitled to a discount equal in amount to the commission normally paid to the outside rep firm.

Weekly Rotations: The Commission will treat distinctly different rotations as separate classes of time for purposes of calculating the “lowest unit charge,” without regard to whether the rotations overlap. Rotations are “distinctly different” if they have meaningful differences in value to an advertiser, are consistent with the station’s normal selling practices, and are based upon objective criteria such as varying audience size. Thus, a 6:00 a.m. to 9:00 a.m. rotation could be treated as a separate period of time from a 6:00 a.m. to 3:00 p.m. rotation if the above criteria are met.

Run-of-Schedule Spots: If a station sells run-of-schedule (“ROS”) spots to its commercial advertisers, it must make ROS spots available to a candidate upon request. However, the candidate who elects to purchase ROS time gets only what he or she buys —ROS spots — with all the uncertainties that go with that particular class of time.

Classes of Preemptible Time: A station may have different identifiable classes of preemptible spots so long as (a) each class has a different associated, predictable likelihood of preemption and/or other protection against preemption (i.e., 2 days’ notice, 24 hours’ notice, 2 hours’ notice, etc.) and/or different make-good privileges; (b) the system is applied fairly to all advertisers during both election and non-election periods; and (c) all classes of spots are disclosed to candidates.

• Candidate-Only Class of Non-Preemptible Time: A station may make available a special, discounted, candidate-only class of non-preemptible time which would confer a greater benefit to candidates than that afforded to commercial advertisers. Such a rate is acceptable so long as (a) a commercial advertiser who buys preemptible time at that same rate runs a genuine risk of preemption; (b) commercial advertisers cannot buy any time that is, in reality, the functional equivalent of the special candidate- only class of time; and (c) the station discloses and offers all preemptible rates to candidates, describing the likelihood of preemption for other preemptible rates. There are numerous points to consider when providing a “candidate-only” class of time. This is a very complex issue and stations should not undertake the establishment of a “candidate-only” class of time without first conferring with legal counsel.

• News Adjacency Spots: Stations may exclude candidate ads from news programming. If a station does not sell candidate advertising within its news but instead offers a special class of “news adjacency” spots, such spots cannot be priced higher for candidates than the lowest priced spot run within the newscast itself. If the station has no special class of news adjacency spots, a candidate who purchases time in a program or a time period adjacent to the news may be charged the regular rate applicable to that time period, even if that rate is higher than the rate charged for spots within the news.

Sold-Out Time: A station may refuse to sell a non-federal candidate time in a particular program or day part on the ground that the station is sold out. In the case of candidates for federal office, the same applies so long as the federal candidate is provided “reasonable access” to the station’s overall schedule. If a particular preemptible class is not sold in an auction-like manner and is sold out, in order for a candidate to obtain clearance, the station may require the candidate to purchase a higher class of preemptible time, or fixed time if there is not a higher preemptible class. A candidate cannot require a station to preempt a spot by paying the same price charged for the spot that is being preempted unless doing so is the only way for the station to meet its “equal opportunities” or “reasonable access” obligations. However, if the station has a class of immediately preemptible time and sells it in an auction-like manner, the station may not say that it is sold out to force candidates to purchase non-preemptible spots, since a higher offer for the immediately preemptible time would enable the candidate’s spot to clear. Under this type of sales practice, candidates may buy more expensive spots to ensure clearance but are entitled to a refund as described above in the discussion of rebates and credits (i.e., if a spot of the same class, amount, and time period clears at a lower rate).

3. Candidate Advertising Outside LUC Windows: “Comparable” Rates

Stations are not required to extend the “lowest unit charge” to candidate advertising outside the 45-day period prior to a primary or primary run-off election or 60- day period prior to a general or special election. Outside those “lowest unit charge” windows, the rates charged by stations for “uses” by candidates may not exceed the rates charged to commercial advertisers for “comparable” time.

In practice, the distinction can be confusing. For example, if Candidate A purchased and used time outside the 45- or 60-day period preceding an election at a rate based on “comparable use,” and Candidate B, for the same office, purchased and used time within the 45- or 60-day period preceding the election at the “lowest unit charge,” the FCC has held that the “equal opportunities” and non-discrimination provisions of federal law would not require that Candidate A be given a refund to the extent charges for his or her time exceeded the charges paid by Candidate B for his or her time.

Outside the period during which the “lowest unit charge” applies, a station is allowed to charge national rates to national candidates and local rates to local candidates, but only if the station makes a similar distinction for commercial advertisers. This result is different from the result during “lowest unit charge” windows when (as noted above) stations are not allowed to distinguish between national and local candidates for rate purposes.

Similarly, outside the period during which the “lowest unit charge” applies, a station that customarily provides an agency commission to advertising agencies is not required to extend a commission or discount to candidates purchasing time directly from the station without an agency. This result is different from the result during “lowest unit charge” windows when (as discussed above) stations are required to subtract agency commissions from their candidate advertising rates when selling spots to candidates that are not buying through an agency.

4. Special Ohio Rate Even When There Is No “Use”

Ohio law (Ohio Rev. Code § 3517.13(H)) appears to extend the scope of the “lowest unit charge” requirement beyond the limitations imposed by the FCC. This statute, read literally, would require stations to extend the FCC’s “lowest unit charge” to purchases by candidates and candidate committees, even though the candidate may not appear in the ad. (Note: We use the qualifying term “appear” because there are no definitive case rulings.)

At all other times outside the federal 45-day or 60-day periods, a station, under Ohio law, cannot charge a candidate or a “campaign committee” a rate that is in excess of the normal rate charged other advertisers for comparable advertising. A station in violation of the statute may be fined up to $100 dollars for each violation.

This Ohio “lowest unit charge” requirement applies to all candidates qualified for placement on the official ballot of a primary, general, or special election. The Ohio Secretary of State (the governmental body that oversees state elections laws) has taken the position that its requirements also apply to federal candidates to the extent the Ohio requirements are not preempted by federal law.

A strong argument can be made that the “lowest unit charge” provisions of Ohio law are preempted by federal law. To our knowledge, however, the Ohio statute has not been challenged in a court case, and a more definitive answer to the question must await litigation.

5. Dealing with Complaints Concerning Advertising Rates

Candidates may complain if they suspect a station has not provided them with the “lowest unit charge.” Such a complaint may be informal (a phone call to the station or the FCC, a written demand, etc.), or it may involve a formal written complaint to the FCC. In order to invoke the FCC’s enforcement procedure, the candidate must do more than merely accuse the station of overcharging — but not much more.

To minimize the risks and burdens associated with a formal FCC complaint, stations should follow these guidelines in addressing candidate complaints:

• If a station receives a candidate’s letter demanding the rebate of alleged overcharges, the station should immediately consult with legal counsel.

• Prompt response should be provided to the candidate, as failure to respond promptly to such a letter may provoke the candidate into filing a formal complaint with the FCC.

• In order to respond to a written inquiry or complaint concerning overcharges, the station should evaluate the specific allegations made by the candidate. The station should determine if it actually did overcharge the candidate — if so, refund the overage immediately with an explanation of how the mistake occurred.

• In other circumstances, usually in response to a formal complaint, a station may opt to conduct an internal audit. This should not be done without advance consultation with legal counsel to ensure that the audit is performed in compliance with legal requirements and in a manner to minimize legal risk. Recognize, however, that full internal audits can be time consuming and expensive as they involve a review of all advertising sold to the particular candidate and other advertisers in the time periods and an evaluation of whether the price charged the candidate was the “lowest unit charge.”

As part of the station’s due diligence to ensure compliance with the “lowest unit charge” requirements, ongoing review of rates charged political advertisers should be conducted throughout the election period. The FCC has suggested that a weekly review would be sufficient. These ongoing reviews will enable the station to determine if an overcharge has occurred and to refund all overcharges in a timely fashion.

C. “Reasonable Access” for Federal Candidates

Section 312 of the Communications Act requires stations to provide federal candidates with “reasonable access” to their broadcast facilities.

Only Federal Candidates; and Free Time Not Required
The “reasonable access” requirement pertains only to “legally qualified” federal candidates — which means candidates for the offices of President and Vice President, the U.S. Senate, and the U.S. House of Representatives. “Reasonable access” does not require stations to give free time to federal candidates — it simply means that a station cannot have a policy of refusing to sell or provide a “reasonable” amount of time to federal candidates.

When the Campaign Has Begun
Stations are not required to provide “reasonable access” to federal candidates until the campaign has “begun.” However, it is not always clear when the campaign for a particular office has, in fact, begun. The FCC requires stations to provide federal candidates access to their facilities, at a minimum, during “lowest unit charge” windows — 45 days before a primary or primary run-off election and 60 days before a general or special election. The FCC has also indicated that a presidential campaign may begin and “reasonable access” obligations may attach as early as one year prior to an election. The determination about when a campaign has begun will, of course, depend on the facts of each individual federal candidate’s campaign.

A broadcaster must make a reasonable, good-faith determination whether a campaign has begun. According to the FCC, a station should consider the following factors in determining whether a particular campaign has “begun”:

• Have other candidates formally announced their candidacies?
• Has the candidate established a campaign organization and is it engaged in campaign activities?
• Are fundraising activities being held for the candidate?
• Is the candidate making speeches and otherwise engaging in traditional campaign activities?
• Has there been media coverage of the candidate’s campaign activities?
• Has the delegate selection process begun?

The presence of all of the above factors would indicate that a campaign has begun. However, the absence of a particular factor does not necessarily mean that a campaign has not begun. The FCC considers each circumstance on a case-by-case basis. For that reason, stations must be especially sensitive to their obligations to federal candidates and exercise great care in responding to their requests for time.

“Reasonable Access” Does Not Mean “All Access, All the Time”
If a station determines that a federal candidate’s campaign has begun, it must then exercise reasonable, good faith judgment in determining whether / to what extent to grant the federal candidate’s request for time. The FCC has provided the following guidelines for stations to consider when responding to federal candidate requests for time:

• The station should consider the needs of the candidate as expressed by the candidate / candidate’s buyer.

• The station may consider the potential for disruption of other programming that would result from granting the request. However, the FCC has said that the fact that a station might have to make some changes in its program schedule is not a sufficient basis for denying a request unless the changes would have a “substantial disruptive impact” on the station’s overall programming.

• The station may consider the amount of time previously provided to the candidate. The greater the amount of time previously provided, the more justification the station would have for denying the request.

• The station may consider whether it wants to provide a reasonable amount of free time or whether it wants only to permit purchases of reasonable amounts of time.

• The station may consider the impact that a grant of the request to purchase time may have on its “equal opportunities” obligations to other candidates.

• The station may consider the timing of the request. The amount of advance notice given by the candidate is a factor in evaluating the reasonableness of the For example, assume that a candidate for federal office in a crowded primary (say, six opposing candidates) made her first request to purchase an extensive schedule of 30- and 60-second spots only two weeks prior to the primary election, and the schedule was to run the week before the primary election. Taking into consideration the timing of the request and the multiple “equal opportunities” implications (because of the several opposing candidates) for the station, it would be reasonable for the station to negotiate the buy downward instead of accommodating it in its entirety. In other words, the federal candidate might have to accept a smaller schedule than originally desired.

More Nuances About “Reasonable Access” for Federal Candidates
A federal candidate must have access to the same choices as a commercial advertiser — spots of various lengths, classes, and periods — whether the time is sold or provided by the station at no charge. The FCC has thus interpreted the “reasonable access” requirement as follows:

• Denials of Access Requests Must Be Well-Reasoned: A station may not deny access to a federal candidate unless the station has a well- reasoned, well-documented explanation for denying the candidate’s request. Factors to consider are those mentioned above, including (i) the likelihood of subsequent requests by other candidates; (ii) the potential disruption of regular programming; and (iii) the amount of advertising time previously sold to the candidate. It is insufficient to deny access simply because the federal candidate’s request for time does not fit into the station’s normal format.

• Non-Standard Length Political Spots: A station cannot refuse a request by a federal candidate for political advertising time solely on the ground that the station does not sell or program such lengths of time (i.e., in increments other than those the station either sold commercial advertisers or programmed during the one-year period preceding an election). Rather, the station must respond to each request on an individualized basis. In deciding whether to refuse a request for a non-standard length spot, a station must consider (i) the amount of time previously sold to the candidate; (ii) the disruptive impact on regular programming; (iii) the likelihood of opposing candidates making “equal opportunities” requests; and (iv) the timing of the request. Stations should not refuse a federal candidate’s request for a non-standard length of time without assessing these factors and conferring with legal counsel.

• Federal Candidates Are Entitled to the Same Physical Access and Privileges as Commercial Advertisers: A federal candidate must have physical access and privileges identical to that of commercial advertisers during the year prior to the relevant “lowest unit charge” window. For example, if a station has at any time during the year made its facilities available to any commercial advertiser on weekends to arrange and provide programming, that station must provide, upon request, similar services to federal candidates on the weekend before the election. Similarly, if the station remained open on a weekend to change copy but not to accept orders, the station need only make personnel available to change copy for candidate If a station has not provided such services to commercial advertisers in the prior year, it need not provide them to federal candidates.

• Federal Candidates Not Entitled to Specific Times or Specific Programs: A federal candidate is not entitled to place an ad within a particular show on the station’s schedule. However, a station cannot place a flat ban on the sale of time in any programming except the news.

• Newscasts: As noted above, federal candidates are not entitled to buy time during a regular newscast or in any other specific program as part of their “reasonable access” Stations may, in their discretion, exclude federal candidates from certain news programs (for example, it would be permissible for a station to carry candidate spots on noon news programs and not evening news programs) or from certain parts of a news program (for example, during “hard news” and not during weather and sports). However, stations must make access available to news adjacencies. Candidate appearances during programs that are exempt from the “equal opportunities” requirements (e.g., newscasts, news documentaries, etc.) do not by themselves satisfy the requirement of “reasonable access.”

• Prime Time and Drive Time Spots: Stations may not have a blanket policy of refusing to sell or give prime time or drive time programming to federal candidates. Rather, federal candidate advertising must be negotiated on a case-by-case basis, reflecting what is reasonable under the The FCC has said that federal candidates have a right to purchase some prime time or drive time programming if they so desire.

• Border Stations (Multi-State Contours): If a station puts a signal over two or more states, it must provide “reasonable access” to all federal candidates whose districts are at least partially within the station’s principal service contour — noise-limited contour for DTV; Grade B for analog TV; 1 mV/m for FM; and 0.5 mV/m for AM.

• Dealing with Multiple Federal Candidates: The FCC has said that where a station is besieged by more requests for time from federal candidates than it can “reasonably” accommodate, the station might:

“meet with candidates in an effort to work out the problem of reasonable access………. Such conferences might cover, among other things, the subjects of the amount of time that the station proposes to sell or give candidates, the amount and types of its other programming, and the amount of advertising it proposes to sell to commercial advertisers.”

The Commission has recognized that where there are multiple candidates running for federal office who would be entitled to access, spot announcements — in lieu of program time — may be adequate.

• Non-Federal Candidates: With respect to non-federal candidates, the FCC has said that stations may determine (using their own good faith judgment) which political races are of greatest interest and significance to the people in their service area and “may refuse to sell time to candidates for less important offices.” However, the FCC has long taken the position that broadcasters have a public interest obligation to inform their audiences about important local It would be prudent for any station that refuses to sell time to non-federal candidates to ensure that important state and local races are adequately covered in other programming in order to comply with its fundamental public interest obligations as a licensee. A station that decides to sell time to non-federal candidates may impose limits on the length and number of spots it will sell. However, “equal opportunities” and “lowest unit charge” requirements (as well as no- censorship and record-keeping obligations) are fully applicable to a station’s sale of time to non-federal candidates.

D. No-Censorship Provision: Stations Cannot Censor Candidate Advertising

No-Censorship Provision, in General
It is critical to remember that, unless the material broadcast is legally “obscene” or “indecent,” a station may not censor candidate advertising even if it is defamatory, inflammatory, or otherwise offensive to the community or even if it infringes upon a third party’s intellectual property. This concept applies with equal force to federal and non-federal candidates. The FCC has said “the public interest is best served by permitting the expression of any views that do not involve a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” That said, as discussed below, the FCC does permit stations to broadcast an audience advisory concerning material in candidate advertising that is potentially disturbing to children. The following advisory would be acceptable: “The following paid political advertisement contains material that may be disturbing to children. Viewer discretion is advised.”

Stations Cannot Channel or Funnel Offensive Candidate Advertising to Late Hours
The FCC ruled in 1994 that television broadcasters could “channel” candidate advertising containing graphic abortion imagery to times when children were less likely to be in the audience, but the Commission’s ruling was reversed by a court on appeal. The court held that stations cannot funnel candidate advertising to later hours because doing so violates both the “reasonable access” rights in the case of federal candidates and the no-censorship and “equal opportunities” provisions of the Communications Act as to both federal and non-federal candidates. Nonetheless, a station may still precede its airing of such a program with a neutrally worded viewer advisory.

Obscene / Indecent Content in Candidate Advertising
There is an apparent conflict between the no-censorship provisions in Section 315 of the Communications Act and certain sections of the Federal Criminal Code that make it a crime to broadcast obscene or indecent material over the radio, television, or on cable television. The conflict places broadcasters in a difficult position. FCC staff, in response to an inquiry from a member of Congress, has stated that a broadcaster may be criminally liable for the broadcast of “obscene” material contained in candidate advertising. Thus, FCC staff concluded that it is permissible for a station to review candidate advertising to determine if the content is obscene or indecent and to edit or reject the spot if it contains legally indecent or obscene material in order to avoid criminal liability.

Stations May Request Advance Copies of Candidate Ads
The “no censorship” provision has, in general, been held to prohibit broadcast stations from requiring candidates to submit scripts in advance of broadcast or to sign indemnification agreements. However, stations may reasonably request advance copies of video content and/or scripts for the following purposes: (1) in the case of a video file, to determine whether the candidate’s picture or voice appears in the spot; (2) to measure the length of time for the purpose of computing the “lowest unit charge” and/or the station’s “equal opportunities” obligation; (3) to ensure that the sponsorship identification requirements (discussed further below) are met; and (4) to make a reasonable determination concerning whether the matter to be broadcast is “obscene” or “indecent.” In addition, a station may request a video file to determine if the spot is, in terms of its technical characteristics, of acceptable broadcast quality. However, a station may not refuse to broadcast a spot simply because its technical characteristics and quality are inadequate.

Stations Are Not Liable for Defamatory Content in Candidate Advertising
Because stations are prohibited by law from censoring defamatory material in a candidate commercial, the U.S. Supreme Court has held that broadcasters are not liable for defamatory statements made over-the-air by candidates. However, the prohibition against censorship applies only to candidate advertising. Thus, a station may — and indeed could be subject to liability if it did not — censor defamatory material contained in non-candidate/issue ads. The prohibition against censorship also does not apply to statements made by a candidate’s representatives or supporters, which, as a result of the Supreme Court’s Citizens United ruling, may include corporations, trade associations, labor unions, SuperPACs, and other organizations that may engage in political speech that supports or opposes a candidate.

A Note About Issue Ads
The question frequently arises concerning the extent to which a broadcaster may be held legally responsible by the FCC (separate and apart from defamation law) for false statements of fact contained in third-party issue advertising or political advertising that does not meet the definition of candidate advertising. While a broadcaster has a general public interest responsibility not to broadcast commercial advertising that he or she knows to be false, the FCC has given broadcasters considerable discretion with respect to political programming, including issue ads. Indeed, the FCC has said it will not intervene in cases involving allegations of false and misleading issue ads or candidate ads. See also Section III related to issue ads.

E. Equal Opportunities

1. What Triggers a Station’s “Equal Opportunities” Obligations?

A “Use” for “Equal Opportunities,” in General
When there is a candidate “use” of a broadcast station, the possibility exists that an opposing candidate will make an “equal opportunities” demand. A candidate “use” for purposes of the “equal opportunities” provision is generally defined by the FCC as:

A non-exempt (see Section II.E.3 for a list of “exempt” appearances);
positive appearance (as distinguished from, for example, a third-party attack ad against a candidate);
on the air;
where the legally qualified candidate’s voice or picture is identified or “readily identifiable” by the audience.

In radio ads, if a candidate simply reads the sponsorship tag and is identified as the person reading the tag, or if the candidate is not expressly identified but the candidate’s voice is identifiable to a substantial segment of the community, the ad constitutes a “use.” In the case of television ads, a photo of the candidate in the ad is sufficient to qualify the ad as a “use.” This is one of the reasons candidates will often tag their commercials with a brief appearance or voice-over.

It is not necessary for the candidate to discuss or promote his or her candidacy for his or her appearance to constitute a “use” for purposes of “equal opportunities.” Thus, for example, a report to constituents (not otherwise qualifying for an exemption from the “equal opportunities” requirement) by an incumbent member of the federal House of Representatives who is legally qualified and running for re-election would entitle his or her opponents to “equal opportunities” even if the Member never mentions his or her candidacy during the program. Also, the broadcast of a television show, movie, PSA, or commercial advertisement in which a candidate appears by image or voice would be considered a “use” for purposes of “equal opportunities.” The mere mention of the candidate’s name (in audio or on-screen) without the candidate actually appearing (by voice or image) does not constitute a “use” that would trigger “equal opportunities.”

For “equal opportunities” purposes, any non-exempt, positive appearance of the candidate is a “use,” even when the appearance is not expressly authorized by the candidate. For example, an endorsement by a third party not connected with the candidate’s campaign committee — even if the ad is not authorized by the candidate and is deemed harmful by him or her because of the nature of the endorsers — is a “use.” On the other hand, a disparaging or negative use of a candidate’s voice or picture, for example, by a candidate’s opponent, would not be considered a “use” for “equal opportunities” purposes. (To further illustrate the point: If Candidate A places an advertisement attacking Candidate B, the station would not be required to afford “equal opportunities” to Candidate B’s opponents notwithstanding the fact that Candidate B’s voice or picture appeared in the attack ad placed by Candidate A.)

Third-Party Issue Ads and “Uses”
Questions sometimes arise — particularly with third-party ads or other programming not sponsored by a candidate — as to whether an appearance of the candidate is sufficient to constitute a “use” to trigger “equal opportunities” for the candidate’s opponent(s). For example, a third-party ad (e.g., an ad sponsored by a SuperPAC or labor union) may contain a positive audio or video appearance of a candidate without the candidate’s consent or authorization. (In fact, federal and many state laws prohibit corporations, unions, and third-party organizations from “coordinating” the content of their advertisements with campaigns and political parties.) Further, questions arise as to whether a “brief” or “fleeting” appearance of the candidate in such advertisements or other programming is sufficient to constitute a “use” sufficient to trigger “equal opportunities.” The resolution of these questions regarding candidate appearances in third-party advertisements is highly fact- specific and should be discussed with FCC counsel.

Special Issues with Station Talent
Another nuance is presented when a station’s staff announcer or other on-air talent becomes a legally qualified candidate and continues regular on-air appearances in which the candidate is identified or readily identifiable. When this occurs, the talent’s legally qualified opponent(s) may be entitled to the same amount of free air time in comparable time periods pursuant to the “equal opportunities” requirement. If a station employee becomes a legally qualified candidate, the station has three options:

Remove the employee from the air for the duration of his or her candidacy;

Leave the employee on the air and be prepared to give free time to his or her opponent upon request (an opposing candidate must make this request within seven days of the employee’s on-air appearance, and the station is under no obligation to inform the opponent of such appearances other than by placement of a notation of the use in the station’s political file); or

Obtain a waiver from the employee’s opponents stating that the opponents waive any “equal opportunities” rights they may acquire as a result of appearances by the employee during the normal performance of his or her station duties. An opposing candidate is under no obligation to agree to such a waiver and usually will not.

2. “Equal Opportunities” — The Specifics

When a broadcast station permits a “legally qualified” candidate for public office to “use” its facilities, the station must afford “equal opportunities,” often referred to as “equal time,” to all other opposing candidates for that office. Appearances by candidates on network or syndicated programs will also trigger the “equal opportunities” requirement. In such cases, complying with the “equal opportunities” rule is ultimately the station’s obligation if the network or syndicator does not provide opponents “equal opportunities” upon a proper request.

“Equal Opportunities” Applies to All Public Offices and Elections
The “equal opportunities” requirement applies in elections for all public offices, including federal, state, regional, county, and municipal offices. Similarly, the law covers all public elections, including primary, general, run-off, and special elections.

Candidates Must Be Opposing Candidates
A candidate acquires a right to equal time only when a triggering appearance is made by an “opposing” candidate. Thus, an appearance by a Republican candidate for sheriff would not give rise to equal time by a Democratic candidate for Congress — the candidates are not “opposing” candidates.

Similarly, a candidate in a “primary” election for the Democratic nomination for Governor would not be entitled to equal time by reason of the appearance of a candidate that seeks nomination in the Republican primary for Governor. Because each candidate is seeking nomination by a different political party in a different primary election, they are not “opposing” candidates.

“Equal Opportunities” Means Equal Opportunities 
Once a station adopts a policy of selling or giving time, it may not discriminate in any way among opposing candidates. A station, upon timely demand, must afford “equal opportunities” to all opposing candidates for the same office. This requirement applies to the availability of broadcast time and the desirability of the specific time period, the use of production facilities, the extension of credit, and the application of technical requirements.

For example, if a station decides during a general election to sell 30 minutes of “prime time” to X, a legally qualified candidate for Governor, then the station must, if timely demand is made, sell 30 minutes of prime time to Y and Z if they are also legally qualified candidates for Governor running in the same election. While a station is not required to provide opposing candidates with time at the same time of day and on the same day of the week as the initial candidate’s use, the station must offer time segments that can be expected to reach a comparable audience.

To make ample provision for equal time where there is a large field of candidates, stations will often limit in advance the amount of time sold or given for certain state and local offices. A station’s decision to do so, provided it does not discriminate among competing candidates, will generally be upheld as reasonable.

Except in the case of federal candidates, who have “reasonable access” rights, there is no specific requirement that stations either sell or give time to any political candidate. The law simply requires that once time is either sold or given, each candidate for the same office must, on request, be afforded “equal opportunities” to make use of the station’s facilities.

A Timely Request Must Be Made for “Equal Opportunities”
A candidate’s right to “equal opportunities” arises only when a timely request is made. Such requests must be made within seven days of an appearance by an opposing candidate (the request can also be made in advance of an appearance if directed to a specific future use known at the time of the request). Except for the limited exceptions discussed below, stations have no obligation to notify candidates when time has been sold or given to other candidates. However, as discussed later, stations must ensure that records of free time and notations of all requests for time are timely uploaded to the station’s online political file, which is part of the station’s OPIF. Failure to promptly place notification of a use in the political file may extend the seven-day period due to lack of proper notice.

If a station chooses to pro-actively tell a candidate that it has sold time to one or more of his or her opponents, it must provide the same information to all opponents. Also, if a station initially told candidates that it would not sell time on Election Day, but then does sell or give time on that day to a candidate, the station must notify opposing candidates to give them a reasonable opportunity to request equal time. A station may not discriminate in any way in its dealings with candidates.

“Equal opportunities” rights cannot be “daisy chained”; that is, an initial “use” triggers the seven-day period in which all responsive “equal opportunities” requests must be made. For example, let’s say that X, Y, and Z are all legally qualified candidates for Governor. X broadcasts an announcement (a “use”) to which Y makes a timely “equal opportunities” request, but Z fails to do so. Z is barred from responding within seven days of Y’s responsive use, because Z was required to respond to the first prior use that triggered the right of equal opportunities, which, in this example, was X’s use.

The FCC has held that stations may be justified in rejecting a candidate’s “eleventh hour” request for equal time. The Commission has said that if a candidate, during the closing days of an election, “sits” on his or her rights and does not make a request for equal time until a day or two before the election, a station may limit the amount of time sold if (1) granting the request would seriously interfere with the station’s duty to program in the public interest, or (2) granting the request would give the last- minute purchaser an unfair advantage over opposing candidates by allowing him or her to saturate broadcast time during the last few days before an election. This FCC policy applies to both federal and non-federal candidates. Note that the rule may be applied in a slightly different manner for federal candidates. If a federal candidate “sits” on his or her rights, the Commission has indicated that the candidate may still be entitled to purchase some amount of time as a result of the “reasonable access” law.

Free “Uses”; How to Handle
Free or unpaid uses by a legally qualified candidate for office will give rise to an opposing candidate’s “equal opportunities” right to the same amount of free time on the station. Consequently, free and unpaid uses need to be managed carefully. These free uses may arise from routine, non-exempt programming when a legally qualified candidate appears — for example, appearances in shows such as Saturday Night Live, feature-length movies, PSAs, local county commissioner community updates, and the like. If station on-air talent becomes a legally qualified candidate, “equal opportunities” will arise with every appearance. See the above discussion of Special Issues with Talent in Section II.E.1 for more information.

To adequately alert opposing candidates of their entitlement to “equal opportunities” in the event of a free use by a legally qualified candidate, the station must generate documentation of the free use and upload this documentation to the political file section of the station’s OPIF. Requests for “equal opportunities” based on a free use are subject to the same timeliness (and other) requirements as all other “equal opportunities” requests — a request must be made within seven days. Failure to timely upload a notation of the free use in the online political file may extend the seven-day period due to lack of proper notice. See Section VI.D for additional information.

3. Exemptions: Some Appearances Are Exempt from the “Equal Opportunities” Requirement

Even if the broadcast constitutes a “use” by a “legally qualified” candidate, the “equal opportunities” requirement of Section 315 does not apply to an appearance by a candidate in any of the following types of programming:

(1) Bona fide newscasts, including specialized news shows (such as “Entertainment Tonight” and “Inside Edition”);

(2) Bona fide news interview programs that are regularly scheduled in which newsworthy guests are occasionally featured and the host controls the interview process (e.g., “Matter of Fact,” “Meet the Press,” “Face the Nation,” “Today,” “Good Morning America,” and even the interview portion of shows like “The Tonight Show”);

(3) Bona fide news documentaries if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary; and

(4) On-the-spot coverage of bona fide news events including, but not limited to, political conventions and related incidental activities.

The FCC has ruled that the broadcast of a debate between candidates qualifies as “on-the-spot coverage of a bona fide news event,” provided that (1) the decision to broadcast a debate is a bona fide journalistic decision and the format of the debate is determined by the station or an independent third party; (2) there are structural safeguards to ensure that no candidate will be favored or disfavored in the broadcast; and (3) all station decisions are based on bona fide news judgments — there must be reasonable, objective standards for deciding which candidates to include and which to exclude. Reversing a previous ruling, the Commission also has made clear that political candidate debates that are sponsored by broadcast stations are exempt from the equal opportunities requirement. Therefore, stations that air debates meeting the three factors listed above do not have to comply with the “equal opportunities” requirement.

Similarly, the FCC has also ruled that special programs featuring candidate interviews and candidate discussions qualify as “on-the-spot-coverage of a bona fide news event,” provided that the decision to broadcast the special programs is a bona fide journalistic decision based on bona fide news judgments and that there are structural safeguards designed to avoid favoritism towards a candidate. The “on-the-spot” element of the news event exemption is not lost when programming is taped and shown at some later date, so long as the broadcast is of a “reasonably recent event.” Many stations use this ruling to provide “free time” to candidates for the discussion of public issues.     These interviews and discussions may be aired in increments of 5, 15, or even 30 minutes.