Broadcast Advertisement Disclosures Regulations

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Contents

Introduction

This article was inspired in part by the Oct. 14, 2010 NPR article,"'Nonpolitical' Groups Target Democrats In Ad Blitz."  It provides the relevant regulations regarding broadcast, cable, and satellite political advertisements.  There are links to the relevant sections of the U.S. Code as well as the Code of Federal Regulations.  Each relevant section provided is accompanied by a short excerpt from the regulation and some have short summaries listed.  A few major highlights:

  • Broadcasting stations may lose their station license for restricting a legally qualified candidate's access to or reasonable purchase of broadcast time
  • Candidates are entitled to the lowest rates the station offers
  • No station can endorse a candidate for public office or treat two candidates for the same office differently
  • Candidate must identify  themselves in their statement as well as certify that they will not directly reference another candidate
  • Broadcasting licensee must maintain a complete record of a broadcast time request for a minimum of two years
  • If someone pays for a broadcast, that person must be announced at the same time as the broadcast

Oct. 2011 Updates

This issue has again come to the forefront with an Oct. 26, 2011, Politico article, "Political Advertising Data May Go Online."

The Federal Communications Commission is expected to vote Thursday on a notice of proposed rule making that could require broadcasters to post information about political ads and other data on the Internet. Broadcasters have long been required to keep such data in a “public file,” but the paperwork is usually available only to people who trek down to their local station and take a look.

The FCC is holding an Open Meeting on Oct. 27, 2011, to discuss (among other issues):

Modernizing Television Broadcaster Requirement to Make Information Available to the Public: The Commission will consider an Order on Reconsideration of the 2007 Enhanced Disclosure Report and Order and a Further Notice of Proposed Rulemaking proposing to replace television broadcast stations' public files with online public files to be hosted by the Commission.

The agenda for the Open Meeting is listed here.

Relevant Rulemaking:

10-141 FCC Enables Carriers to Replace Paper Filings with Online Filings

In June 2010, the Commission launched the Data Innovation Initiative to continue to modernize and streamline how the Commission collects, uses, and disseminates data. As part of that initiative, as well as an agency-wide transition from paper to electronic filing, this Report and Order enables all tariff filers to file tariffs electronically over the Internet, using the Electronic Tariff Filing System (ETFS). Currently, only incumbent local exchange carriers (LECs) file their tariffs and associated documents using the ETFS. The ETFS has improved the usefulness of tariff filings for filers, the public, and the Commission. ETFS reduces the burden of filing tariffs for small carriers and allows them to save many of the costs associated with manual filing. Electronic filing also will create a more open, transparent and efficient flow of information to the public. It will benefit the public, carriers, and the Commission by creating a uniform system that provides online access to all carrier tariffs filed with the Commission.

Order on Reconsideration and Further Notice of Proposed Rulemaking - Oct. 27, 2011

In this Order on Reconsideration and Further Notice of Proposed Rulemaking we take steps to modernize the way television broadcasters inform the public about how they are serving their communities. We vacate the prior Report and Order, thereby resolving pending petitions for reconsideration of that order, re-codify the public file rules in existence prior to adoption of the Report and Order, and seek comment on the proposals set forth below. Our goals in this proceeding are to make information concerning broadcast service more accessible to the public by taking advantage of current technology, thereby improving dialogue between broadcast stations and the communities they serve, and if possible reduce the compliance burdens on broadcasters. This item also seeks to further the goal of modernizing the Commission’s processes and expeditiously transitioning from paper to digital technology in order to create efficiencies and reduce costs both for government and the private sector.

Some additional background that may be relevant when reconsidering this issue is the report submitted by the FCC Working Group on the Information Needs of Communities, delivered June 9, 2011.

Advocacy Letter: May 4, 2010 -- Public Interest Public Airwaves Coalition Urges FCC to Immediately Implement Advanced Disclosure Order for Broadcasters

Today, the Public Interest Public Airwaves Coalition urged Federal Communications Commission (FCC) Chair Julius Genachowski to take immediate steps to make effective the online public file rule adopted more than two years ago requiring commercial television stations to make their public inspection files available on their web sites. The Public Interest Public Airwaves Coalition includes the Benton Foundation, the Campaign Legal Center, the Media Access Project, the New America Foundation, Common Cause, the Office of Communication Inc. of the United Church of Christ, and the United States Conference of Catholic Bishops.

Relevant Sections of the Communications Act of 1934

Section 312 [47 U.S.C. §312] Administrative Sanctions

Broadcasting stations may lose their station license for restricting a legally qualified candidate's access to or reasonable purchase of broadcast time

(a) The Commission may revoke any station license or construction permit – (7) for willful or repeated failure to allow reasonable access to or to permit purchase of reasonable amounts of time for the use of a broadcasting station, other than a non-commercial educational broadcast station, by a legally qualified candidate for Federal elective office on behalf of his candidacy.

Section 315 [47 U.S.C. §315] Facilities for Candidates for Public Office

If a legally qualified candidate for public office is permitted to use a broadcasting station, the licensee must afford equal opportunities to all other candidates for that office.  Candidates are only entitled to lower rates provided that they do not make a direct reference to another candidate for the same office.  Licensee must maintain a political record with relevant information about the broadcast that is put together as soon as possible and maintained for at least 2 years.

(a) If any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provision of this section. No obligation is hereby imposed under this subsection upon any licensee to allow the use of its station by any such candidate.
CONTENT OF BROADCASTS –
(A) IN GENERAL. – In the case of a candidate for Federal office, such candidate shall not be entitled to receive the rate under paragraph (1)(A) for the use of any broadcasting station unless the candidate provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office, in any broadcast using the rights and conditions of access under this Act, unless such reference meets the requirements of subparagraphs (C) or (D).
(B) LIMITATIONS ON CHARGES. – If a candidate for Federal office (or any authorized committee of such candidate) makes a reference described in subparagraph (A) in any broadcast that does not meet the requirements of subparagraph (C) or (D), such candidate shall not be entitled to receive the rate under paragraph (1)(A) for such broadcast or any other broadcast during any portion of the 45-day and 60-day periods described in paragraph (1)(A), that occur on or after the date of such broadcast, for election to such office.
(C) TELEVISION BROADCASTS. – A candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds – (i) a clearly identifiable photographic or similar image of the candidate; and (ii) 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.
(D) RADIO BROADCASTS. – A candidate meets the requirements of this subparagraph if, in the case of a radio broadcast, the broadcast includes a personal audio statement by the candidate that identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast. (E) CERTIFICATION. – Certifications under this section shall be provided and certified as accurate by the candidate (or any authorized committee of the candidate) at the time of purchase.
(e) POLITICAL RECORD. – (1) IN GENERAL. – A licensee shall maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that – (A) is made by or on behalf of a legally qualified candidate for public office; or (B) communicates a message relating to any political matter of national importance, including – (i) a legally qualified candidate; (ii) any election to Federal office; or (iii) a national legislative issue of public importance.
(2) CONTENTS OF RECORD. – A record maintained under paragraph (1) shall contain information regarding –
(A) whether the request to purchase broadcast time is accepted or rejected by the licensee;
(B) the rate charged for the broadcast time;
(C) the date and time on which the communication is aired;
(D) the class of time that is purchased;
(E) the name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable);
(F) in the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate, and the treasurer of such committee; and
(G) in the case of any other request, the name of the person purchasing the time, the name, address, and phone number of a contact person for such person, and a list of the chief executive officers or members of the executive committee or of the board of directors of such person. (3) TIME TO MAINTAIN FILE. – The information required under this subsection shall be placed in a political file as soon as possible and shall be retained by the licensee for a period of not less than 2 years.

Section 317 [47 U.S.C. §317] Announcement with Respect to Certain Matter Broadcast

If someone pays for a broadcast in any way, that person responsible for payment must be announced at the same time as the broadcast.

(a) (1) All matter broadcast by any radio station for which any money, service, or other valuable consideration is directly or indirectly paid, or promised to or charged or accepted by, the station so broadcasting, from any person, shall, at the time the same is so broadcast, be announced as paid for or furnished, as the case may be, by such person: Provided, That “service or other valuable consideration” shall not include any service or property furnished without charge or at a nominal charge for use on, or in connection with, a broadcast unless it is so furnished in consideration for an identification in a broadcast of any person, product, service, trademark, or brand name beyond an identification which is reasonably related to the use of such service or property on the broadcast.
(2) Nothing in this section shall preclude the Commission from requiring that an appropriate announcement shall be made at the time of the broadcast in the case of any political program or any program involving the discussion of any controversial issue for which any films, records, transcriptions, talent, scripts, or other material or service of any kind have been furnished, without charge or at a nominal charge, directly or indirectly, as an inducement to the broadcast of such program.

Section 335 [47 U.S.C. §335] Direct Broadcast Satellite Service Obligations

Establishing public service obligations for broadcast satellite providers.

PROCEEDING REQUIRED TO REVIEW DBS RESPONSIBILITIES. – The Commission shall, within 180 days after the date of enactment of this section, initiate a rulemaking proceeding to impose, on providers of direct broadcast satellite service, public interest or other requirements for providing video programming. Any regulations prescribed pursuant to such rulemaking shall, at a minimum, apply the access to broadcast time requirement of section 312(a)(7) and the use of facilities requirements of section 315 to providers of direct broadcast satellite service providing video programming. Such proceeding also shall examine the opportunities that the establishment of direct broadcast satellite service provides for the principle of localism under this Act, and the methods by which such principle may be served through technological and other developments in, or regulation of, such service.

Section 399 [47 U.S.C. §399] Support of Political Candidates Prohibited

No noncommercial educational broadcasting station may support or oppose any candidate for public office.

Section 399B [47 U.S.C. §399B] Offering of certain services, facilities, or products by public broadcasting stations

No public broadcast station may allow any person to broadcast an advertisement using their facilities.

For purposes of this section, the term “advertisement” means any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended –
(1) to promote any service, facility, or product offered by any person who is engaged in such offering for profit;
(2) to express the views of any person with respect to any matter of public importance or interest; or
(3) to support or oppose any candidate for political office.
(b) (1) Except as provided in paragraph (2), each public broadcast station shall be authorized to engage in the offering of services, facilities, or products in exchange for remuneration.
(2) No public broadcast station may make its facilities available to any person for the broadcast of any advertisement.

Relevant Sections of FCC Rules on Broadcast

Section 73.1212 [47 CFR §73.1212] Sponsorship identification; list retention; related requirements

(d) In the case of any political broadcast matter or any broadcast matter involving the discussion of a controversial issue of public importance for which any film, record, transcription, talent, script, or other material or service of any kind is furnished, either directly or indirectly, to a station as an inducement for broadcasting such matter, an announcement shall be made both at the beginning and conclusion of such broadcast on which such material or service is used that such film, record, transcription, talent, script, or other material or service has been furnished to such station in connection with the transmission of such broadcast matter: Provided, however, That in the case of any broadcast of 5 minutes' duration or less, only one such announcement need be made either at the beginning or conclusion of the broadcast.
(e) The announcement required by this section shall, in addition to stating the fact that the broadcast matter was sponsored, paid for or furnished, fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity by whom or on whose behalf such payment is made or promised, or from whom or on whose behalf such services or other valuable consideration is received, or by whom the material or services referred to in paragraph (d) of this section are furnished. Where an agent or other person or entity contracts or otherwise makes arrangements with a station on behalf of another, and such fact is known or by the exercise of reasonable diligence, as specified in paragraph (b) of this section, could be known to the station, the announcement shall disclose the identity of the person or persons or entity on whose behalf such agent is acting instead of the name of such agent. Where the material broadcast is political matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the broadcast matter, the station shall, in addition to making the announcement required by this section, require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, association or other unincorporated group, or other entity shall be made available for public inspection at the location specified by the licensee under § 73.3526 of this chapter. If the broadcast is originated by a network, the list may, instead, be retained at the headquarters office of the network or at the location where the originating station maintains its public inspection file under § 73.3526 of this chapter. Such lists shall be kept and made available for a period of two years.

Section 73.1941 [47 CFR §73.1941] Equal Opportunities

(a) General requirements. Except as other-wise indicated in § 73.1944, no station licensee is required to permit the use of its facilities by any legally qualified candidate for public office, but if any licensee shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such licensee shall have no power of censorship over the material broadcast by any such candidate.
(e) Discrimination between candidates. In making time available to candidates for public office, no licensee shall make any discrimination between candidates in practices, regulations, facilities, or services for or in connection with the service rendered pursuant to this part, or make or give any preference to any candidate for public office or subject any such candidate to any prejudice or disadvantage; nor shall any licensee make any contract or other agreement which shall have the effect of permitting any legally qualified candidate for any public office to broadcast to the exclusion of other legally qualified candidates for the same public office.

Section 73.1942 [47 CFR §73.1942] Candidate rates

(i) A candidate shall be charged no more per unit than the station charges its most favored commercial advertisers for the same classes and amounts of time for the same periods. Any station practices offered to commercial advertisers that enhance the value of advertising spots must be disclosed and made available to candidates on equal terms. Such practices include but are not limited to any discount privileges that affect the value of advertising, such as bonus spots, time-sensitive make goods, preemption priorities, or any other factors that enhance the value of the announcement.
(iii) Stations may establish and define their own reasonable classes of immediately preemptible time so long as the differences between such classes are based on one or more demonstrable benefits associated with each class and are not based solely upon price or identity of the advertiser. Such demonstrable benefits include, but are not limited to, varying levels of preemption protection, scheduling flexibility, or associated privileges, such as guaranteed time-sensitive make goods. Stations may not use class distinctions to defeat the purpose of the lowest unit charge requirement. All classes must be fully disclosed and made available to candidates.
(iv) Stations may establish reasonable classes of preemptible with notice time so long as they clearly define all such classes, fully disclose them and make available to candidates.
(v) Stations may treat non-preemptible and fixed position as distinct classes of time provided that stations articulate clearly the differences between such classes, fully disclose them, and make them available to candidates.

Section 73.1942 [47 CFR §73.1942] Candidate Rates

(a) Charges for use of stations. The charges, if any, made for the use of any broadcasting station by any person who is a legally qualified candidate for any public office in connection with his or her campaign for nomination for election, or election, to such office shall not exceed: (1) During the 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the station for the same class and amount of time for the same period. (i) A candidate shall be charged no more per unit than the station charges its most favored commercial advertisers for the same classes and amounts of time for the same periods. Any station practices offered to commercial advertisers that enhance the value of advertising spots must be disclosed and made available to candidates on equal terms. Such practices include but are not limited to any discount privileges that affect the value of advertising, such as bonus spots, time-sensitive make goods, preemption priorities, or any other factors that enhance the value of the announcement.

Section 73.1943 [47 CFR §73.1943] Political File

(a) Every licensee shall keep and permit public inspection of a complete and orderly record (political file) of all requests for broadcast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the licensee of such requests, and the charges made, if any, if the request is granted. The "disposition" includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased. (b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file. (c) All records required by this paragraph shall be placed in the political file as soon as possible and shall be retained for a period of two years. As soon as possible means immediately absent unusual circumstances.

Section 73.1944 [47 CFR §73.1944] Reasonable Access

(a) Section 312(a)(7) of the Communications Act provides that the Commission may revoke any station license or construction permit for willful or repeated failure to allow reasonable access to, or to permit purchase of, reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy. (b) Weekend Access. For purposes of providing reasonable access, a licensee shall make its facilities available for use by federal candidates on the weekend before the election if the licensee has provided similar access to commercial advertisers during the year preceding the relevant election period. Licensees shall not discriminate between candidates with regard to weekend access.

Relevant Sections of FCC Rules on Cable TV

Section 76.205 [47 CFR §76.205] Origination cablecasts by legally qualified candidates for public office; equal opportunities

No cable television system is required to permit the use of its facilities by any legally qualified candidate for public office, but if any system shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such system shall have no power of censorship over the material broadcast by any such candidate...

Section 76.206 [47 CFR §76.206] Candidate Rates

The charges, if any, made for the use of any system by any person who is a legally qualified candidate for any public office in connection with his or her campaign for nomination for election, or election, to such office shall not exceed: (1) During the 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the system for the same class and amount of time for the same period....

Section 76.1611 [47 CFR §76.1611[1]] Political cable rates and classes of time

If a system permits a candidate to use its cablecast facilities, the system shall disclose to all candidates information about rates, terms, conditions and all value-enhancing discount privileges offered to commercial advertisers.

Section 25.701 [47 CFR §25.701] Public interest obligations

(b)(3)(i) Political Broadcasting Requirements.  DBS providers must comply with Section 312(a)(7) of the Communications Act of 1934, as amended, by allowing reasonable access to, or permitting purchase of reasonable amounts of time for, the use of their facilities by a legally qualified candidate for federal elective office on behalf of his or her candidacy.
(b)(4) Use of facilities; equal opportunities. DBS providers must comply with Section 315 of the Communications Act of 1934, as amended, by providing equal opportunities to legally qualified candidates for DBS origination programming.
(c)(A) Candidate Rates.  A candidate shall be charged no more per unit than the DBS provider charges its most favored commercial advertisers for the same classes and amounts of time for the same periods. Any facility practices offered to commercial advertisers that enhance the value of advertising spots must be disclosed and made available to candidates upon equal terms. Such practices include but are not limited to any discount privileges that affect the value of advertising, such as bonus spots, time sensitive make goods, preemption priorities, or any other factors that enhance the value of the announcement.
(d) Political file. Each DBS provider shall keep and permit public inspection of a complete and orderly political file and shall prominently disclose the physical location of the file, and the telephonic and electronic means to access the file.
(1) The political file shall contain, at a minimum:
(i) A record of all requests for DBS origination time, the disposition of those requests, and the charges made, if any, if the request is granted. The “disposition” includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased; and
(ii) A record of free time provided if free time is provided for use by or on behalf of candidates.

(2) DBS providers shall place all records required by this section in a file available to the public as soon as possible and shall be retained for a period of four years until December 31, 2006, and thereafter for a period of two years.

(3) DBS providers shall make available, by fax, e-mail, or by mail upon telephone request, photocopies of documents in their political files and shall assist callers by answering questions about the contents of their political files. Provided, however, that if a requester prefers access by mail, the DBS provider shall pay for postage but may require individuals requesting documents to pay for photocopying. To the extent that a DBS provider places its political file on its website, it may refer the public to the website in lieu of mailing photocopies. Any material required by this section to be maintained in the political file must be made available to the public by either mailing or website access or both.

Section 76.1615 [47 CFR §76.1615] Sponsorship identification

(d) The announcement required by this section shall, in addition to stating the fact that the origination cablecasting matter was sponsored, paid for or furnished, fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity by whom or on whose behalf such payment is made or promised, or from whom or on whose behalf such services or other valuable consideration is received, or by whom the material or services referred to in paragraph (c) of this section are furnished. Where an agent or other person or entity contracts or otherwise makes arrangements with a cable television system operator on behalf of another, and such fact is known or by the exercise of reasonable diligence, as specified in paragraph (b) of this section, could be known to the system operator, the announcement shall disclose the identity of the person or persons or entity on whose behalf such agent is acting instead of the name of such agent.

Section 76.1701 [47 CFR §76.1701] Political file

(a) Every cable television system shall keep and permit public inspection of a complete and orderly record (political file) of all requests for cablecast time made by or on behalf of a candidate for public office, together with an appropriate notation showing the disposition made by the system of such requests, and the charges made, if any, if the request is granted. The "disposition" includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased.
(b) When free time is provided for use by or on behalf of candidates, a record of the free time provided shall be placed in the political file.
(c) All records required by this paragraph shall be placed in the political file as soon as possible and shall be retained for a period of two years. As soon as possible means immediately absent unusual circumstances.
(d) Where origination cablecasting material is a political matter or matter involving the discussion of a controversial issue of public importance and a corporation, committee, association or other unincorporated group, or other entity is paying for or furnishing the matter, the system operator shall, in addition to making the announcement required by § 76.1616(a), require that a list of the chief executive officers or members of the executive committee or of the board of directors of the corporation, committee, association or other unincorporated group, or other entity shall be made available for public inspection at the local office of the system. Such lists shall be kept and made available for a period of two years.

Section 76.1715 [47 CFR §76.1715] Sponsorship identification

Whenever sponsorship announcements are omitted pursuant to §76.1615(f) of subpart T, the cable television system operator shall observe the following conditions:
(a) Maintain a list showing the name, address, and (where available) the telephone number of each advertiser;
(b) Make this list available to members of the public who have a legitimate interest in obtaining the information contained in the list.

Relevant Sections of FCC Rules on Direct Broadcast Satellite

Section 25.701 [47 CFR §25.701] Public Interest Obligations

(a) DBS providers are subject to the public interest obligations set forth in paragraphs (b), (c), (d), (e) and (f) of this section. (b) Political broadcasting requirements—
(1) Legally qualified candidates for public office for purposes of this section are as defined in 47 CFR §73.1940.
(2) DBS origination programming is defined as programming (exclusive of broadcast signals) carried on a DBS facility over one or more channels and subject to the exclusive control of the DBS provider.
(3) Reasonable access. (i) DBS providers must comply with Section 312(a)(7) of the Communications Act of 1934, as amended, by allowing reasonable access to, or permitting purchase of reasonable amounts of time for, the use of their facilities by a legally qualified candidate for federal elective office on behalf of his or her candidacy. (ii) Weekend access. For purposes of providing reasonable access, DBS providers shall make facilities available for use by federal candidates on the weekend before the election if the DBS provider has provided similar access to commercial advertisers during the year preceding the relevant election period. DBS providers shall not discriminate between candidates with regard to weekend access.
(4) Use of facilities; equal opportunities. DBS providers must comply with Section 315 of the Communications Act of 1934, as amended, by providing equal opportunities to legally qualified candidates for DBS origination programming. (i) General requirements. Except as otherwise indicated in section 25.701(b)(3), no DBS provider is required to permit the use of its facilities by any legally qualified candidate for public office, but if a DBS provider shall permit any such candidate to use its facilities, it shall afford equal opportunities to all other candidates for that office to use such facilities. Such DBS provider shall have no power of censorship over the material broadcast by any such candidate. Appearance by a legally qualified candidate on any: (A) Bona fide newscast; (B) Bona fide news interview; (C) Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary); or (D) On the spot coverage of bona fide news events (including, but not limited to political conventions and activities incidental thereto) shall not be deemed to be use of a DBS provider’s facility (section 315(a) of the Communications Act.)
(ii) Uses. As used in this section and §25.701©, the term “use” means a candidate appearance (including by voice or picture) that is not exempt under paragraphs 25.701(b)(3)(i)(A) through (i)(D) of this section.
(iii) Timing of Request. A request for equal opportunities must be submitted to the DBS provider within 1 week of the day on which the first prior use giving rise to the right of equal opportunities occurred: Provided, however, That where the person was not a candidate at the time of such first prior use, he or she shall submit his or her request within 1 week of the first subsequent use after he or she has become a legally qualified candidate for the office in question.
(iv) Burden of proof. A candidate requesting equal opportunities of the DBS provider or complaining of noncompliance to the Commission shall have the burden of proving that he or she and his or her opponent are legally qualified candidates for the same public office.
(v) Discrimination between candidates. In making time available to candidates for public office, no DBS provider shall make any discrimination between candidates in practices, regulations, facilities, or services for or in connection with the service rendered pursuant to this part, or make or give any preference to any candidate for public office or subject any such candidate to any prejudice or disadvantage; nor shall any DBS provider make any contract or other agreement that shall have the effect of permitting any legally qualified candidate for any public office to use DBS origination programming to the exclusion of other legally qualified candidates for the same public office.
(c) Candidate rates.
(1) Charges for use of DBS facilities. The charges, if any, made for the use of any DBS facility by any person who is a legally qualified candidate for any public office in connection with his or her campaign for nomination for election, or election, to such office shall not exceed: (i) During the 45 days preceding the date of a primary or primary runoff election and during the 60 days preceding the date of a general or special election in which such person is a candidate, the lowest unit charge of the DBS provider for the same class and amount of time for the same period.
(A) A candidate shall be charged no more per unit than the DBS provider charges its most favored commercial advertisers for the same classes and amounts of time for the same periods. Any facility practices offered to commercial advertisers that enhance the value of advertising spots must be disclosed and made available to candidates upon equal terms. Such practices include but are not limited to any discount privileges that affect the value of advertising, such as bonus spots, time sensitive make goods, preemption priorities, or any other factors that enhance the value of the announcement.
(B) The commission recognizes non preemptible, preemptible with notice, immediately preemptible and run of schedule as distinct classes of time.
(C) DBS providers may establish and define their own reasonable classes of immediately preemptible time so long as the differences between such classes are not based solely upon price or identity of the advertiser. Such demonstrable benefits include, but are not limited to, varying levels of preemption protection, scheduling flexibility, or associated privileges, such as guaranteed time sensitive make goods. DBS providers may not use class distinctions to defeat the purpose of the lowest unit charge requirement. All classes must be fully disclosed and made available to candidates.
(D) DBS providers may establish reasonable classes of preemptible with notice time so long as they clearly define all such classes, fully disclose them and make them available to candidates.
(E) DBS providers may treat non preemptible and fixed position as distinct classes of time provided that they articulate clearly the difference between such classes, fully disclose them, and make them available to candidates.
(F) DBS providers shall not establish a separate, premium priced class of time sold only to candidates. DBS providers may sell higher priced non premptible or fixed time to candidates if such a class of time is made available on a bona fide basis to both candidates and commercial advertisers, and provided such class is not functionally equivalent to any lower priced class of time sold to commercial advertisers.
(G) [Reserved]
(H) Lowest unit charge may be calculated on a weekly basis with respect to time that is sold on a weekly basis, such as rotations through particular programs or dayparts. DBS providers electing to calculate the lowest unit charge by such a method must include in that calculation all rates for all announcements scheduled in the rotation, including announcements aired under long term advertising contracts. DBS providers may implement rate increases during election periods only to the extent that such increases constitute “ordinary business practices,” such as seasonal program changes or changes in audience ratings.
(I) DBS providers shall review their advertising records periodically throughout the election period to determine whether compliance with this section requires that candidates receive rebates or credits. Where necessary, DBS providers shall issue such rebates or credits promptly.
(J) Unit rates charged as part of any package, whether individually negotiated or generally available to all advertisers, must be included in the lowest unit charge calculation for the same class and length of time in the same time period. A candidate cannot be required to purchase advertising in every program or daypart in a package as a condition for obtaining package unit rates.
(K) DBS providers are not required to include non cash promotional merchandising incentives in lowest unit charge calculations; provided, however, that all such incentives must be offered to candidates as part of any purchases permitted by the system. Bonus spots, however, must be included in the calculation of the lowest unit charge calculation.
(L) Make goods, defined as the rescheduling of preempted advertising, shall be provided to candidates prior to election day if a DBS provider has provided a time sensitive make good during the year preceding the pre election periods, respectively set forth in paragraph (c)(1)(i) of this section, to any commercial advertiser who purchased time in the same class.
(M) DBS providers must disclose and make available to candidates any make good policies provided to commercial advertisers. If a DBS provider places a make good for any commercial advertiser or other candidate in a more valuable program or daypart, the value of such make good must be included in the calculation of the lowest unit charge for that program or daypart. (ii) At any time other than the respective periods set forth in paragraph (c)(1)(i) of this section, DBS providers may charge legally qualified candidates for public office no more than the charges made for comparable use of the facility by commercial advertisers. The rates, if any, charged all such candidates for the same office shall be uniform and shall not be rebated by any means, direct or indirect. A candidate shall be charged no more than the rate the DBS provider would charge for comparable commercial advertising. All discount privileges otherwise offered by a DBS provider to commercial advertisers must be disclosed and made available upon equal terms to all candidates for public office.
(2) If a DBS provider permits a candidate to use its facilities, it shall make all discount privileges offered to commercial advertisers, including the lowest unit charges for each class and length of time in the same time period and all corresponding discount privileges, available on equal terms to all candidates. This duty includes an affirmative duty to disclose to candidates information about rates, terms, conditions and all value enhancing discount privileges offered to commercial advertisers, as provided herein. DBS providers may use reasonable discretion in making the disclosure; provided, however, that the disclosure includes, at a minimum, the following information:
(i) A description and definition of each class of time available to commercial advertisers sufficiently complete enough to allow candidates to identify and understand what specific attributes differentiate each class;
(ii) A description of the lowest unit charge and related privileges (such as priorities against preemption and make goods prior to specific deadlines) for each class of time offered to commercial advertisers;
(iii) A description of the DBS provider’s method of selling preemptible time based upon advertiser demand, commonly known as the “current selling level,” with the stipulation that candidates will be able to purchase at these demand generated rates in the same manner as commercial advertisers;
(iv) An approximation of the likelihood of preemption for each kind of preemptible time; and
(v) An explanation of the DBS provider’s sale practices, if any, that are based on audience delivery, with the stipulation that candidates will be able to purchase this kind of time, if available to commercial advertisers.
(3) Once disclosure is made, DBS providers shall negotiate in good faith to actually sell time to candidates in accordance with the disclosure.
(d) Political file.
Each DBS provider shall keep and permit public inspection of a complete and orderly political file and shall prominently disclose the physical location of the file, and the telephonic and electronic means to access the file.
(1) The political file shall contain, at a minimum: (i) A record of all requests for DBS origination time, the disposition of those requests, and the charges made, if any, if the request is granted. The “disposition” includes the schedule of time purchased, when spots actually aired, the rates charged, and the classes of time purchased; and (ii) A record of free time provided if free time is provided for use by or on behalf of candidates.
(2) DBS providers shall place all records required by this section in a file available to the public as soon as possible and shall be retained for a period of four years until December 31, 2006, and thereafter for a period of two years.
(3) DBS providers shall make available, by fax, e-mail, or by mail upon telephone request, photocopies of documents in their political files and shall assist callers by answering questions about the contents of their political files. Provided, however, that if a requester prefers access by mail, the DBS provider shall pay for postage but may require individuals requesting documents to pay for photocopying. To the extent that a DBS provider places its political file on its website, it may refer the public to the website in lieu of mailing photocopies. Any material required by this section to be maintained in the political file must be made available to the public by either mailing or website access or both.
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