New FCC Rules on Write-In Candidates to Go Into Effect March 14

WASHINGTON — Broadcast stations will have to take a few additional steps in assessing political advertising from purported write-in candidates beginning March 14, including conducting a review of the candidates’ social media presence and whether they’ve created campaign websites.

The measures, outlined in a Federal Register notice, are intended to help determine if a candidate has made a “substantial showing” of a bona fide candidacy. Such a showing is necessary to show a write-in candidate is entitled to take advantage of the Federal Communication Commission’s political broadcasting rules.

Generally speaking, these rules govern the circumstances under which broadcast stations air politically related advertisements.

They include ensuring that legally qualified candidates for federal office have “reasonable access” to buying advertising time on commercial stations; that qualified federal, state and local candidates have “equal opportunities” to have their views heard on the air; that candidate-sponsored ads are not being wrongly censored; and that broadcast stations maintain online political files for public inspection.

The second change going into effect is more a matter of bookkeeping, conforming FCC rules to the requirements of the Paperwork Reduction Act.

In this case the new rules will require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance. This rule will be effective after additional review to assess the rule’s compliance with the Paperwork Reduction Act.

What it boils down to is it’s not enough to simply declare oneself a write-in candidate if one wants to qualify for protection under FCC rules. The facts set forth by the purported candidate determine the seriousness of their campaign.

So, what factors can a broadcaster look at to determine if a write-in candidate has met the “substantial showing” of a bona fide candidacy?

They include whether the candidate is actively getting out and campaigning, making speeches or appearing at rallies and the like. It also takes into account whether they’ve opened a campaign headquarters and have volunteers passing out literature or putting up yard signs.

The new rules also add social media activity and a campaign website to the factors to be considered.

In doing so, the FCC notes in the Federal Register that the National Association of Broadcasters supports this revision.

“In so doing, it agree[s] with the FCC that modern candidates routinely use social media and campaign websites to share their views and solicit votes and financial contributions.

“Recent articles reinforce that bona fide political campaigns use major social media platforms, such as Twitter, Facebook and Instagram, to share campaign updates, communicate with voters, advertise, solicit support and fundraise, and that such engagement in social media use typically increases donations for new politicians,” the agency says.

“In addition, social media platforms enable political campaigns, especially for new or lesser known candidates, to build support by disseminating campaign updates and targeting advertisements to potential voters, and they provide sophisticated tools to regularly measure user engagement,” the notice continues, adding, “It also has become common practice for bona fide candidates to use campaign websites to connect to a wide audience of potential voters and facilitate direct communication and fundraising.”

One interesting wrinkle spelled out in an FCC Fact Sheet and the order itself is that in order to be considered a legally qualified candidate, some real world activity is required. A write-in candidate can’t simply show up on the web alone and hope to be taken seriously under the law.

As the FCC noted, again referencing a statement by the National Association of Broadcasters, “Given the simplicity of creating and running a social media account or website, certain stipulations should apply to ensure the legitimacy of candidates. Otherwise, any individual with a Facebook, Twitter or Instagram account could claim status as a legally qualified candidate. …

“At NAB’s suggestion, we include language in the substantial showing rules that specifically states that ‘[t]he creation of campaign websites and the use of social media shall be additional indicators of a bona fide candidacy, not determinative factors,’” the agency said.

Further, the rule places the burden of demonstrating that a write-in candidate should be considered legally qualified squarely on the candidate’s shoulders.

It also states that should a dispute arise, the broadcaster’s good faith evaluation of whether the candidate qualifies should be shown deference by the agency.

“It should be noted that [the agency’s] Media Bureau has long interpreted the commission’s substantial showing rules in this manner,” the FCC said. “Given the dearth of comments on this question [when comment was sought on the proposed rule], including from political candidates and the public, we decline to amend our rules.

“However, we will address these issues based on the facts and circumstances of each particular case in keeping with this interpretation,” the agency added.

Another wrinkle to note is that the agency declined to add digital marketing and advertising to the list of recognized modern campaign practices.

“No commenter [on the proposed rule] expressly supported or even addressed the addition of other such activities to the list of recognized campaign activities set forth in the rules. In the absence of any support or comment in the record on this issue, we conclude that the addition of other activities to the list is not warranted at this time,” the FCC said.

Dan can be reached at [email protected] and at https://twitter.com/DanMcCue