Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

Kenneth Reisenfeld Moderates Panel During Washington Arbitration Week

Taylor Bloom Presents Ad Tech Privacy Year in Review for California Lawyers Association

ADventures in Law

Getting the Most out of Brand Partnerships with Artists . . . Lawfully

Health Law Update

What a Second Trump Administration Could Mean for Tobacco Industry Regulations

The Federal Communications Commission’s (FCC or the Commission) recent updates to its broadcast political file rules requiring approval of the Office of Management and Budget (OMB) will now take effect on July 5, 2022. In a <a href="https://www.fcc.gov/document/fcc-adopts-updated-political-programming-and-record-keeping-rules" target="_blank" rel="noopener">Report and Order</a> released Jan. 25, 2022, the Commission adopted amendments to its political file rules to conform with the Bipartisan Campaign Reform Act of 2002 (BCRA) (codified at 47 U.S.C. § 315(e)), which extended the FCC’s political file requirements to records of each request for advertising time that “communicates a message relating to any political matter of national importance.” Although the Commission provided guidance to broadcasters regarding the BCRA’s requirements following its adoption in 2002, the Commission did not previously update its political file rules to conform with the BCRA.  The Report and Order also revised the definition of “legally qualified candidate” to add the use of social media and the creation of a campaign website to the list of activities that may be considered in determining whether an individual running as a write-in candidate has made a “substantial showing” of his or her bona fide candidacy. These changes, however, previously took effect on March 14, 2022, as they did not require OMB approval.  Political File Rule Amendments  Through the Report and Order, the Commission revised Section 73.1943(a) and (b) of its rules (47 C.F.R. § 73.1943(a) and (b)) to specify that broadcasters must maintain in their stations’ online public inspection files (OPIFs) not only records of each request for advertising time that is made by or on behalf of a legally qualified candidate for public office but also records of each request for advertising time that communicates a message relating to any political matter of national importance, as the BCRA requires. The Commission also updated its political file rules to conform with the BCRA’s list of the particular records that must be maintained in station OPIFs for both candidate ads and issue ads.  Under the BCRA, and now under the FCC’s amended political file rules, broadcasters must maintain the following records in their stations’ OPIFs regarding political advertising:  <ul> 	<li>Whether the request to purchase broadcast time is accepted or rejected by the licensee.</li> 	<li>The rate charged for the broadcast time.</li> 	<li>The date and time on which the communication is aired.</li> 	<li>The class of time that is purchased.</li> 	<li>The name of the candidate to which the communication refers and the office to which the candidate is seeking election, the election to which the communication refers, or the issue to which the communication refers (as applicable).</li> 	<li>In the case of a request made by, or on behalf of, a candidate, the name of the candidate, the authorized committee of the candidate and the treasurer of such committee.</li> 	<li>In the case of any other request, the name of the person purchasing the time; the name, address and phone number of a contact person for such person; and a list of the chief executive officers or members of the executive committee or of the board of directors of such person.</li> </ul>  These formalistic changes to Section 73.1943(a) and (b) of the FCC’s rules, which broadcasters already had to comply with under the BCRA, will now be effective as of July 5, 2022, following OMB’s approval of the rule changes.  Changes to Definition of ‘Legally Qualified Candidate for Public Office’  The Report and Order also revised the definition of “legally qualified candidate for public office” to add the use of social media and campaign websites to the list of activities that a broadcaster may consider in determining whether an individual running as a write-in candidate has made a substantial showing of his bona fide candidacy.  A broadcaster’s political programming obligations under Sections 312(a)(7) and 315 of the Communications Act of 1934, as amended (the Communications Act) (47 U.S.C. §§ 312(a)(7) and 315) – such as reasonable access, equal opportunity, lowest unit charge, etc. – apply only when individuals have demonstrated that they are a legally qualified candidate for public office. To be a legally qualified candidate, an individual must (1) publicly announce his or her intention to run for office; (2) be qualified to hold the office for which he or she is a candidate; and (3) have qualified for a place on the ballot or have publicly committed himself or herself to seeking election via the write-in method.  Individuals seeking election under the write-in method must – in addition to otherwise being legally eligible to be a write-in candidate – make a substantial showing that he or she is a bona fide candidate for the office being sought. Section 73.1940(f) of the Commission’s rules (47 C.F.R. § 73.1940(f)) provides that a “substantial showing” of bona fide candidacy means evidence that the person claiming to be a candidate “has engaged to a substantial degree in activities commonly associated with political campaigning,” including, but not limited to, making campaign speeches, distributing campaign literature, issuing press releases and maintaining a campaign committee and headquarters.  Accordingly, the Commission has added usage of social media and campaign websites to the list of activities a person may undertake in demonstrating that he or she is a bona fide candidate. Usage of social media or a campaign website, however, is not sufficient alone to demonstrate bona fide candidacy. Accordingly, social media presence and the creation of campaign websites are merely additional indicators of bona fide candidacy and are not determinative factors. This means that individuals claiming to be bona fide candidates must also demonstrate to broadcasters campaign activities other than social media usage and creation of campaign websites in order to be considered legally qualified candidates sufficient to trigger a broadcaster’s political advertising obligations under Sections 312(a)(7) and 315 of the Communications Act.  Should you have any questions please contact Dan Kirkpatrick at 202.820.1758 | <a href="mailto:dkirpatrick@bakerlaw.com">dkirpatrick@bakerlaw.com</a>, Davina Sashkin at 202.820.1759 | <a href="mailto:dsashkin@bakerlaw.com">dsashkin@bakerlaw.com</a>, or Keenan Adamchak at 202.820.1772 | <a href="mailto:kadamchak@bakerlaw.com">kadamchak@bakerlaw.com</a>

FCC’S New Political Files Rules Effective July 5, 2022

Featured Insights

Related Services

Featured Insights