Section IV

FCC and FEC rules, as well as Ohio law, require certain identification of the sponsor of political advertising. Below is a summary of these sponsorship identification requirements.

A. General FCC Sponsorship Identification Requirements

The FCC’s rules, adopted pursuant to the Communications Act, require any political advertisement or other sponsored material to identify (1) whether the material was sponsored, paid for, or furnished, either in whole or in part, and (2) who paid for it. An example of a proper identification is, “Paid for by the John Doe Campaign Committee.” Specifically, the FCC’s sponsorship identification rule provides as follows:

• Television Spots Must Have Visual Sponsor Identification: In the case of any television advertisement concerning candidates for public office, the sponsorship identification announcement must be visual. The visual identification must (1) contain letters equal to or greater than 4% of the “vertical picture height,” and (2) have the words appear for at least 4 consecutive seconds. On the other hand, issue ads that do not reference a candidate for public office are not required to adhere to the 4% / 4 seconds sponsorship ID Nonetheless, such issue ads must meet all other sponsorship ID requirements.

• Specific Language: The sponsorship identification announcement must include the language of either “Paid for by . . .” or “Furnished by . . .” or “Sponsored by . . .” — whichever the case may be. Thus, an announcement that merely states “By The Committee To Elect John Doe” or “State Citizens for John Doe” would be inadequate unless that is the actual name of the advertiser. In television commercials and programming, the sponsorship identification cannot be abbreviated.

• Clearly Identify the Sponsor: The individual, committee, association, corporation, union, or other organization or group that pays for the time must be clearly identified. Thus, an announcement that only states, “This is a paid political broadcast,” would be unacceptable. The name of the sponsoring group or committee identified on the air must correspond to the name of the group or committee that appears on the contract for the purchase of the broadcast Problems can arise when a group’s name does not, in fact, identify a specific person, group of people, or entity. For example, the FCC has held unacceptable an identification that read:

“Paid for by ‘A Lot of People Who Would Like to See Joe Doe Elected to the United States Senate.’ ”
or
“Paid for by ‘People Who Care about Ohio.’ ”

• The above problems may be avoided by simply inserting the words “Committee,” “Organization,” or “Group” before the name of the sponsoring entity. For example, the following announcements would be proper:

“Paid for by an organization titled: ‘A Lot of People Who Would Like to See John Doe Elected to the United States Senate.’ ”
or
“Paid for by an organization titled: ‘People Who Care about Ohio.’ ”

• Avoiding Acronyms: As discussed below in Section VI.B, in the context of stations’ political file record-keeping obligations the FCC has stated that stations should not identify the name of an entity placing an advertisement by using an acronym unless it is “commonly recognized” or sufficiently “widespread” for the “the general public . . . to be aware of what organization that acronym represents.”

• True Identity of Sponsor: If the true identity of the sponsor of a political advertisement is a person or entity other than the named sponsor (i.e., other than the person or entity who purchased the advertisement) — and if that fact is reasonably known to the station — the station must disclose the true identity of the sponsor. FCC staff has in the past (specifically, in 1996) applied this rule to require a station to identify a third-party entity as the true sponsor where such entity both funded the advertisement and maintained exclusive control over its editorial content. More recently, however, in 2014, FCC staff stated that, “unless otherwise furnished with credible, unrefuted evidence that a sponsor is acting at the direction of a third party, the broadcaster may rely on the plausible assurances of the person(s) paying for the time that they are the true sponsor.” Various groups have filed complaints with the FCC seeking to require stations to investigate and disclose major contributors to political committees as the “true sponsors” of advertisements purchased by the political committees. To date, the Commission has not acted on those complaints and has not otherwise required stations to investigate and disclose donors to political committees as sponsors. Stations that receive similar complaints may wish to consult with their legal counsel about an appropriate response.

• Placement of Sponsor Identification: If the length of the sponsored broadcast is five minutes or less, only one announcement is required, and it may be made at either the beginning or the conclusion of the broadcast. If the broadcast is more than five minutes long, a sponsorship identification announcement must be made at both the beginning and the conclusion of the broadcast. As discussed in Section VI.B, BCRA has different and additional requirements for federal candidates’ spots subject to BCRA.

• Computing Sponsor Identification Time: If a station normally considers sponsorship identification announcements to be part of the time bought by a regular commercial advertiser, the time required for the sponsorship identification message for a candidate’s announcement or program is treated the same — i.e., within the allotted time for the candidate’s announcement or program. Thus, if in a 30-second spot announcement the requisite sponsorship identification message lasts five seconds, the remaining announcement must be limited to 25 seconds. Of course, stations may not discriminate among candidates in this respect.

• Candidate Furnished Material for Newscasts: If a candidate, or his or her campaign supporters, provides a station with audio or video material about the candidate for the purpose of inducing its broadcast in news or other programs, FCC rules require the station to (1) announce that the material was furnished and (2) identify the name of the person or group who furnished The requirement does not apply to “printed” matter, such as printed news releases or printed speeches, that might be supplied to stations by candidates or campaign workers.

• Station’s Responsibility: It is the responsibility of the station to determine that all program material complies with the FCC’s sponsorship identification rules. If the spot does not comply, the station must add or substitute the required announcement — this is an exception to the no censorship requirement for “uses.” The broadcaster may not refuse to broadcast a spot if the identification is inadequate; rather, the broadcaster must run the spot and provide a proper sponsorship identification — even if the station’s video slide or audio voice overlaps the content of the candidate’s ad. The FCC takes sponsorship identification very seriously; in 2016, a broadcaster entered into a consent decree under which it agreed to pay the Commission a $540,000 fine for its station’s failure to include complete sponsor identification language on 178 issue advertisements.

• Stations Can Request Advance Submissions: Stations can request, but cannot require, a candidate to submit spots in advance to determine if the candidate has complied with the sponsorship identification rules. If there is not sufficient time to pre-screen a spot and the station cannot add the proper identification in time, it may run the advertisement without the proper identification and make the necessary modifications by the next business day.

B. “Stand By Your Ad” Disclosure Requirements for Federal Candidates

General Rules for Television and Radio Ads
In an effort to reduce the use of negative advertisements by candidates for federal office, federal law requires federal candidates to meet certain requirements in order to be entitled to receive the “lowest unit charge” for advertisements referring to their opponents. To qualify for the “lowest unit charge” during the applicable 45- or 60-day political window, a candidate for federal office must provide a written certification to the broadcast station at the time of purchase stating that the ads will not mention any opponent unless the following conditions are satisfied:

• Both radio and television advertisements must include a personal audio statement by the candidate that (i) identifies the candidate and the office the candidate is seeking and (ii) indicates that the candidate has approved the broadcast. A television advertisement must also simultaneously include, at the end of the ad, for a period no less than 4 seconds, (x) a clearly identifiable photographic or similar image of the candidate; and (y) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate’s authorized committee paid for the broadcast.

Stations should require federal candidates who seek the “lowest unit charge” to provide a written certification that their ads will not refer to an opponent unless the applicable conditions listed above are met. If a federal candidate does not provide such a certification, stations may deny a federal candidate the “lowest unit charge” for all ad buys until the candidate provides the required written certification.

Although broadcasters are responsible for obtaining the required certification, the responsibility for complying with the disclosure requirement falls on the candidates themselves. Stations should not alter candidate commercials to bring them into compliance with the “stand by your ad” requirements.

Note that the federal “stand by your ad” disclosure requirement applies when a federal candidate makes “direct reference” to an opponent in an ad. Any such reference, regardless of whether the reference is positive or negative in nature, is sufficient to trigger the disclosure requirement.

This requirement can easily create uncertainty. For example, is an ad that references “my opponent” a “direct reference” subject to the “stand by your ad” requirement? We believe that such a reference would constitute a “direct reference” under BCRA, but one could imagine a host of other, more oblique, references that are clearly intended to evoke a candidate’s opponent but which do not mention the candidate by name. Stations will wish to consult with legal counsel before denying the “lowest unit charge” to a candidate based on a candidate’s potential “stand by your ad” violation.

Note: It should also be emphasized that the federal “stand by your ad” requirement does not apply to candidates for state or local office.

Effect of Noncompliant Ads on a Federal Candidate’s Entitlement to LUC
Stations should take special care to determine whether an advertisement subject to BCRA’s “stand by your ad” requirements satisfies the sponsorship identification requirements discussed above. There is an open, unresolved question whether, under federal election law, a broadcaster would be making an illegal, corporate in-kind contribution if the broadcaster sold advertising at the “lowest unit charge” to a candidate who failed to comply with the “stand by your ad” disclosure requirements and, therefore, was not entitled to the “lowest unit charge.” (In fact, the FEC has, in non-binding, draft advisory opinions, previously reached opposing conclusions twice on this issue.)

Given the uncertainty and possibility for controversy in this area regarding the “lowest unit charge,” stations may wish to consult with legal counsel if they are asked to extend the “lowest unit charge” for broadcast advertisements that fail to comply with the “stand by your ad” disclosure requirements. Stations should also be sure to receive and maintain, at the time of purchase, a written certification from the federal candidate stating that the candidate’s advertisements will not directly refer to an opponent unless the appropriate disclaimers required by the federal “stand by your ad” law are included.

C. FEC Disclosure Requirements for Federal Elections

Ads concerning candidates for federal office are subject to additional FEC requirements. Broadcast stations are NOT primarily responsible for compliance with FEC disclosure requirements; instead, federal candidates, committees, and third-party advertisers are primarily responsible. Nonetheless, station familiarity with these rules can help stations assist political advertisers in assessing the adequacy of sponsorship identification tags.

Triggers for FEC Disclosure
The FEC’s disclosure requirements apply to any communication — i.e., any broadcast spot, message, or program — that satisfies either of the following criteria:

• The communication is paid for or furnished by a “political ” The Supreme Court has limited the FEC’s definition of a “political committee” to encompass only those organizations controlled by a candidate (e.g., a candidate’s campaign committee) or whose “major purpose” is the nomination or election of a candidate (e.g., a political action committee, or PAC). (Note that a disclaimer is required for any communication paid or furnished by a “political committee” — the communication does not need to expressly advocate the election or defeat of a clearly identified federal candidate or solicit a contribution, unlike in the category set forth in the next bullet point.)

or

• The communication is paid for by any corporation, union, association, organization, or individual that (i) expressly advocates the election or defeat of a clearly identified federal candidate, (ii) solicits any political contributions, or (iii) refers to a clearly identified candidate for federal office and is made within 60 days before a general, special, or run-off election or 30 days before a primary election.

FEC Disclosure Requirements
When either of the above criteria is satisfied, different kinds of announcements are required, depending on whether the advertising is (1) paid for and authorized by a federal candidate, (2) authorized by a federal candidate but paid for by another entity, or (3) paid for by a third-party and not authorized by a federal candidate. Below is a summary of these requirements.

• Candidate Sponsored or Authorized Ads

• Ads Paid for and Authorized by a Federal Candidate: Where the broadcast message or program is authorized by a federal candidate or his or her authorized committee, the broadcast must (1) clearly state that the broadcast has been paid for by the person or organization that paid for the broadcast, and (2) include a statement by the candidate that identifies the candidate and states that the candidate has approved the broadcast.

For example, the broadcast should say: “Paid for by [Name of candidate, committee, or other organization]. I’m [Name of candidate] and I approved this ad.”

• Ads Paid for by a Third Party but Authorized by a Federal Candidate: If the advertisement is paid for by other persons but authorized by a candidate or a candidate’s political committee or agents, the advertisement must (1) clearly state that the broadcast has been paid for by such other persons and is authorized by such authorized political committee, and (2) include a statement by the candidate that identifies the candidate and states that the candidate has approved the broadcast.

For example, the broadcast should say: “Paid for by [Name of organization that paid for the advertisement] and authorized by [Name of federal candidate or candidate’s committee]. I’m [Name of candidate] and I approved this ad.”

• Special Additional Requirements for Television Ads: In the case of a television advertisement, the candidate’s statement that he or she approves the ad must be conveyed by an unobscured, full-screen view of a representative of the candidate making the statement, or the candidate in voice-over accompanied by a clearly identifiable photographic or similar image of the candidate. Also, the statement must be in writing, at the end of the ad, in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds.

• Third-Party Ads Not Authorized by a Candidate

• General Requirements: Where the broadcast is not authorized by any candidate or any candidate’s authorized committee, the ad must (1) clearly state the name and permanent street address, telephone number, or World Wide Web address of the sponsor; (2) state that the ad is not authorized by any candidate or candidate’s committee; and (3) include an audio statement indicating that the sponsor is responsible for the content of the advertisement.

For example, the broadcast should say: “Paid for by [Name and permanent street address, telephone number, or World Wide Web address of sponsor/payor] and not authorized by any candidate or candidate’s committee. [Name of sponsor] is responsible for the content of this advertising.”

• Special Additional Requirements for Television Ads: In the case of a television advertisement, the audio statement above must be conveyed by an unobscured, full-screen view of a representative of the organization making the statement, or a representative of the organization in a voice-over. A similar written statement must also be included at the end of the ad, in a clearly readable manner that is at least 4 percent of the vertical picture height, has a reasonable degree of color contrast between the background and the statement, and is visible for at least 4 seconds.

D. Special Ohio Sponsorship Identification Requirements

Ohio state laws regarding sponsorship disclosures in political advertisements changed in 2014 to more closely resemble the federal requirements, but there are some remaining broadcaster obligations that go beyond those of the federal sponsorship identification rules. Stations should consult with legal counsel if they have questions or concerns about the applicability of Ohio’s requirements to any particular advertisement.

1. General Disclosure Requirement

2. Additional Disclosures for Independent Expenditures

3. Ohio’s Imposition of Disclosure Obligations on Broadcasters