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Broadcasters Ask Appeals Court For Stay of FCC Political File Rules

Friday, July 13, 2012
By Paul Barbagallo

The National Association of Broadcasters has asked a federal appeals court to stay a Federal Communications Commission rule requiring television stations to post to the internet information about political ad buys.

In an emergency motion filed with the U.S. Court of Appeals for District of Columbia Circuit late July 10, the association said its member TV stations will suffer “irreparable harm” if the FCC begins enforcing the rule, which is scheduled to take effect on Aug. 2.

The National Association of Broadcasters (NAB) filed a lawsuit challenging the rules in D.C. Circuit Court in May, and is seeking a stay pending judicial review.

“This case satisfies the requirements for a stay,” NAB wrote. “The association is likely to succeed on the merits because the FCC engaged in arbitrary and capricious decision-making by disregarding the competitive harm that is likely to result from the order and departing from the provisions of the Bipartisan Campaign Reform Act of 2002.”

Television stations are required by law to maintain--and make available to the public--such information on political ad spending, but only in hard copy, which can be time-consuming and cumbersome for members of the public.

Absent a favorable court ruling, the NAB claims that its members will be disadvantaged in the competition for political and commercial advertising, as their “non-broadcast competitors” will be able to determine “in a matter of seconds” exactly what prices local broadcast stations are charging for specific spots.

“The order compels television stations to post the prices for specific advertisements to a public website immediately after the sales occur,” the NAB noted. “The balance of hardships and the public interest also favor a stay because the likely harm from requiring immediate posting of detailed price information about specific advertising sales outweighs the benefits of such a requirement.”

Under Section 315 of the Communications Act, as amended by the Bipartisan Campaign Reform Act of 2002, broadcasters' “political files”--as they are known in the statute--must reflect all requests “made by or on behalf of a legally qualified candidate for public office” or that “communicates messages relating to any political matter of national importance, including a legally qualified candidate, any election to federal office, or a national legislative issue of public importance.”

The political file also reveals how the television station responded to such requests--if a request was granted and, if so, the schedule of the times purchased, the times that the spots actually aired, the rates charged, the “classes” of time purchased, and whether a station granted any free time to a candidate.

NAB: No Mandate to Post Online
According to the NAB, nothing in either the Communications Act or Bipartisan Campaign Reform Act, known as McCain-Feingold, directs the FCC to be a “central online repository” of campaign information; the Federal Election Commission should be, the NAB argues.

If the court sides with the FCC, as of Aug. 2, the rules will apply to television station affiliates of the four largest U.S. networks in the top 50 designated market areas, which the agency estimates will be 200 stations. The rest of the roughly 1,800 stations will have until July 1, 2014, to comply, which would leave the ad buys in many areas of swing states, especially smaller and midsize media markets, still offline. Despite this, major broadcasters' political files still will be available online prior to the 2012 elections.

Broadcasters are estimated to earn $2.5 billion in political advertising in 2012--up 62.5 percent over 2008, according to a report by SNL Kagan, a media industry analyst.


For the NAB motion, visit http://www.nab.org/documents/newsRoom/pdfs/071012_political_file_motion_to_stay.pdf.


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