On October 19, 2017, Democratic Senator Amy Klobuchar of Minnesota introduced a bill, co-sponsored by Sens. Mark Warner (D-VA) and John McCain (R-AZ), aimed at regulating online political advertising. The bill, dubbed the “Honest Ads Act,” would require online platforms to identify the purchasers of certain political ads, maintain a “public file” containing specific information about ads referencing candidates and issues of national importance, and make “reasonable efforts” to ensure that political ads are not “directly or indirectly” purchased by a foreign national or foreign entity. Under the bill, broadcasters would also be required to make such reasonable efforts.
Accordingly, if enacted, the bill would not only impose new reporting and disclosure obligations on platforms like Facebook, Google and Twitter, but would also impact broadcasters that sell political ads on their websites. Now, therefore, may be a good time for a reminder about the political broadcasting rules that currently apply to political advertising on station websites.
Today, internet advertising is not subject to FCC regulations or the political broadcasting provisions of the Communications Act. Therefore, concepts such as lowest unit charge, equal opportunities, and reasonable access are not applicable for online advertising.
FEC rules, however, do apply to political advertising on the internet. FEC regulations require internet advertising for federal candidates or elections to be sold at standard rates. Discounts should not be given to candidates unless those discounts are made available to regular commercial advertisers on the same terms. Any favorable treatment for a political candidate could be construed as an in‐kind campaign contribution. The FEC also requires clear and conspicuous sponsorship identification disclosures on internet advertisements that relate to a federal candidate or elections. Those disclosures must state whether or not the advertising was authorized and/or paid for by a candidate. In addition, many states have similar requirements for ads relating to state and local candidates or ballot propositions.
We will continue to monitor the Honest Ads Act as it moves (or doesn’t move) through Congress. Check this blog for updates.