Challenge FCC's 'Political File' Rule in Court
Key Charge: FCC order requiring online posting of “political file” was
arbitrary and capricious and in violation of the First Amendment, NAB says in
filing with the U.S. Court of Appeals for the District of Columbia.
Impact: FCC Media Bureau Chief Bill Lake said in April, when the FCC
approved the new rules, that the goal was to implement the new requirements in
time for the 2012 election cycle, but the broadcasters' suit could delay that
By Paul Barbagallo
The National Association of Broadcasters filed suit against the Federal
Communications Commission in federal appeals court to vacate the commission's
order requiring television broadcasters to make available online all records
detailing when political commercials air, in which markets, and how much each
campaign paid for each ad ((NAB v. FCC, D.C. Cir., 12-1225,
In a petition for review filed late May 21 in the U.S. Court of Appeals for
the District of Columbia, the broadcasters argued that the FCC's action
infringes on their first Amendment free-speech rights, exceeds statutory
authority, and is “arbitrary and capricious.”
“In the FCC order, the commission decided to adopt a requirement that all
television broadcasters (but not their competitors in the video marketplace)
publish political advertising-related information, including advertising rates
the stations charge to political candidates and political 'issue advertisers,'
on a government web site. The commission's changes to broadcasters' disclosure
obligations and other operations, as well as other action taken in the FCC
order, will directly and adversely impact NAB and the broadcasters whose
interests it represents,” the group wrote in the two-page filing.
TV stations already are required by law to maintain such records, but only on
paper. The requirement to post the “political file” online will apply initially
only to station affiliates of the four largest U.S. networks in the top 50
designated market areas, which the FCC estimates will be 200 stations. The rest
of the roughly 1,800 stations will have until July 1, 2014, to comply with the
For the FCC, the order is part of an ongoing agency-wide effort to digitize
records and to introduce more transparency in government.
Under Section 315 of the Communications Act, amended by the Bipartisan
Campaign Reform Act of 2002, broadcasters are required to keep a “political
file” reflecting 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
Perhaps most important, the political file 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
Neither the Communications Act nor the Bipartisan Campaign Reform Act,
however, give the FCC direction on whether these records could, or should, be
The Federal Election Commission already maintains online records on political
advertising, but only “electioneering communications”--ads referring to
candidates--and independent expenditures--ads advocating for the election or
defeat of a candidate.
Generally, the information available on the FEC's website provides an overall
look at how much money campaigns spend. The information available in
broadcasters' political files is far more granular, and potentially more useful,
but is more difficult to access because interested parties must travel to each
TV station to inspect the documents.
One issue that is likely to emerge in court proceedings is which agency--the
FCC or FEC--should oversee online records on political ads.
In a March filing with the FCC, the NAB said the Bipartisan Campaign Reform
Act, widely known as McCain-Feingold, only permits the agency to “compile and
maintain” information on its web site about electioneering communications, which
are defined as televised issue advertising by corporations or unions that refers
to a “clearly identified” federal candidate in the weeks before a primary or
The FCC still regulates broadcasters' hard-copy political files. Currently,
members of the public who want access to the records must go to each local TV
station in person.
Responding to the NAB's petition, an FCC spokesman said the agency would
defend the order in court.
“The public file rules are a common-sense update by the FCC to move from
paper to online access to public information in the digital age,” the spokesman
said in an emailed statement. “The rules are consistent with Congress's
directive to ensure public availability while providing cost-savings for
Corie Wright, senior policy counsel for media activist group Free Press, said
the lawsuit against the rule is nothing more than an attempt to “stall an
important and overdue transparency initiative.”
“The FCC decision to put the political files online will bring broadcasters
into the 21st century, and will make already public information more easily
accessible to everyone,” Wright said in a statement. “The FCC made the right
decision and is on firm legal ground.”
For the National Association of Broadcasters' petition, visit http://op.bna.com/der.nsf/r?Open=sbay-8ujpcm.