By David Oxenford
Davis, Wright and Tremaine LLP
In the last few weeks, I’ve been asked several times by broadcasters whether an ad should be considered an “issue ad.” Usually, the ad in question deals with some sort of faintly controversial issue, and the broadcaster seems torn about how to classify the ad. In many ways, the answer is almost irrelevant as, other than some public file obligations, whether or not an ad is an issue ad has little practical significance.
Issue ads are not entitled to special rates – lowest unit rates are reserved for candidate ads. They are not entitled to special placement in broadcast schedules.
As there is no Fairness Doctrine, there isn’t even a requirement that you treat both sides of an issue in the same fashion (except perhaps, where a Fairness obligation may still arise if the issue being discussed is a candidate in an election, when the last remnant of Fairness, the Zapple Doctrine, has not officially been declared dead). So why worry about whether or not something is an issue ad?
The principal reason is the public file. Commission rules require that the sponsor of an issue ad be identified in a broadcaster’s public file, along with the sponsor’s principal officers or directors. This is required for any ad dealing with a controversial issue of public importance. The ad does not need to deal with a political issue, or one to be considered by a government body. Any controversial issue of public importance merits the public file treatment. For ads dealing with a “federal issue”, one to be considered by the US Congress, any Federal administrative agency or any other branch of the United States government, additional disclosures need to be made in the file (which we have listed before), setting out all the information that you would need to provide with respect to a candidate ad – including the price paid for the ad and the schedule on which the ad will run.
It has been suggested to me that an issue ad needs to be identified so as to decide whether the ad needs to have a “paid for” or “sponsored by” tag at the end to identify its sponsor. In fact, any ad where the sponsor of the ad is unclear – even a pure commercial ad needs to have a “paid for” or “sponsored by tag.” For instance, a few years ago, a station was fined when a local chamber of commerce was buying time to promote all the businesses in its town, and the chamber was never identified in the ad – much less as the sponsor of that ad. When the ad is for a product, and the maker of the product is that sponsor, the Commission considers the identification of the product to be sufficient sponsorship identification. But where the actual sponsor is someone else, and it is not clear from the ad who the sponsor is, a broadcaster is required to identify that sponsor.
So, in considering whether a spot is an issue ad, why go through the trouble of worrying too much about it. If it deals with something that looks controversial, err on the side of caution. Consider it an issue ad, place notice in your public file, and go on with your business!