Broadcasters are not required to affirmatively investigate the identity of entities purchasing political advertising time, the FCC’s Media Bureau has reaffirmed. In a letter dismissing complaints against two television stations, FCC political chief Bobby Baker stated that, “unless 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.”
The complaints were filed by the Institute for Public Representation on behalf of the Campaign Legal Center, the Sunlight Foundation, and Common Cause against television stations WJLA-TV, Washington, D.C., and KGW(TV), Portland, Oregon. Both of the affected stations had recently been sold by their longtime owners: WJLA-TV from Allbritton Communications to Sinclair Broadcast Group and KGW(TV) from Belo Corp. to Sander Media LLC. The complaints involved advertisements sponsored by Super PACs. In the case of WJLA, the advertisement in the Virginia governor’s race indicated that it was sponsored by NextGen Climate Action Committee (NextGen). KGW, meanwhile, broadcast an advertisement in a U.S. Senate race indicating that it was sponsored by American Principles Fund (APF). But the complaints alleged that merely naming NextGen and APF as the sponsor of each ad was not sufficient.
Section 317(a) of the Communications Act requires that the “person” paying for matter broadcast by a television or radio station be announced at the time of the broadcast. Section 317(c) requires that a broadcaster “exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make” the required disclosure. Section 73.1212(e) of the FCC’s rules, meanwhile, states that the announcement should “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.”
Relying on the “reasonable diligence” and “true identity” language, the complaints alleged that the stations should have done more to determine the source of funding for NextGen and APF. According to the complaint against WJLA, “Tom Steyer was the sole donor to NextGen through November 2013,” contributing $9.3 million of his own wealth to NextGen. The complaint cited a WJLA news report about Steyer’s planned involvement in the race and a report by a sister publication about Steyer’s role in NextGen as proof that the station should have conducted additional diligence to identify Steyer as the sponsor of the ads. As to APF, the complaint alleged that Sean Fieler contributed “98.6% of APF’s total receipts” as of April 2014, and therefore that it was “misleading to claim that APF [was] the only relevant name that must be disclosed.”
In dismissing the complaints, the Bureau stated that it was balancing “the ‘reasonable diligence’ obligations of broadcasters in identifying the sponsor of an advertisement with the sensitive First Amendment interests present here.” Of note, however, the Bureau stated that it might have pursued the matter “if the complainants had approached the stations directly to furnish them with evidence calling into question that the identified sponsors were the true sponsors.”
The complaints reflect the most recent effort by public interest groups to require additional disclosure about how political advertisements are funded following the Supreme Court’s decision in Citizens United v. Federal Election Commission. Earlier this year, the Campaign Legal Center and Sunlight Foundation filed complaints against eleven other broadcasters regarding alleged shortcomings in the political advertising disclosures contained in online station political files, which remain pending.