FCC Releases Report and Order Updating Political Programming and Recordkeeping Rules

On January 25, 2022, the FCC released a Report and Order (“Order”) that makes two updates to the political programming and recordkeeping rules for broadcast licensees, cable television system operators, Direct Broadcast Satellite service providers, and Satellite Digital Audio Radio Service licensees.  First, the Order updates the definition of “legally qualified candidate for public office” in sections 73.1940 and 76.5(a) of the FCC’s rules to include the use of social media and the creation of a campaign website to the list of activities that a broadcast licensee or cable operator may take into account in determining whether an individual running as a write-in candidate has made a substantial showing of his or her bona fide candidacy.  Thus, under the new rules, broadcasters may consider the use of social media to fundraise, solicit votes, share policy positions, and engage in digital dialogues with voters, and the creation of a campaign website, among other similar activities, to determine whether the individual is a bona fide candidate for office.  Only digital activities that are directly related to the campaign may count toward the requisite substantial showing.  In addition, these digital activities alone are insufficient; they must be combined with campaign activities conducted in the relevant geographic area to substantiate their genuine interest in elective office.  The write in candidate will bear the burden of demonstrating the substantial showing and licensees’ reasonable, good faith determination as to whether a candidate has fulfilled this requirement will be entitled to deference.

Second, the Order updates the political file rules to make them consistent with the Bipartisan Campaign Reform Act of 2002, which extended the FCC’s political file requirements to any request for the purchase of advertising time that communicates a message relating to any political matter of national importance (i.e. issue ads).  The Order revises the rules to require broadcasters and other licensees to maintain in their online political files not only records of requests for advertising time by or on behalf of a legally qualified candidate for public office, but also for advertising time that communicates a message relating to any political matter of national importance.  Thus, broadcasters must include in their political file all the records identified in Section 315(e)(2) for issue ads, including whether the request was accepted or rejected, the rate charged, the date and time the ad was aired, the class of time purchased, the issue to which the communication refers, and the name and contact of the individual or organization purchasing the ad.

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