Section 317 of the Communications Act (47 U.S.C. § 317) requires on-air identification of the sponsors of all advertisements, political as well as commercial. Explaining the rules it wrote to implement the statute, the FCC stipulated years ago that political ads must “fully and fairly disclose the true identity of the person or persons, or corporation, committee, association or other unincorporated group, or other entity” paying for them. “Listeners are entitled to know by whom they are being persuaded,” the Commission said.
A “petition for rulemaking” is currently pending at the FCC calling on the Commission to issue new rules requiring meaningful disclosure of the identity of those purchasing commercials relating to the election of candidates and other controversial issues of public importance. As the rulemaking request states, “current sponsorship identification rules are obsolete, and do not ensure effective disclosure in the case of many political advertisements.”
Sponsorship identification requirements have been in the law since 1927, and there have been no significant updates to the sponsorship rules since the 1960s. Currently, FCC sponsorship identification rules nominally require that broadcasters disclose on-air the “true identity” of the sponsors of broadcast messages. The rules apply to all sponsored programming on television and radio. For political commercials, the name of the sponsor’s chief executive officers or a list of its executive committee or directors is to be placed in the broadcasting station’s public file. Special provisions apply to commercials paid for by a candidate or official campaign committee.
The reason current rules are inadequate is that in an unpublished 1979 staff decision the FCC staff agreed that a licensee could be considered reasonably diligent in fulfilling its duty to find the real sponsors of a political ad if the “named organization claimed it had editorial control, regardless of the sources of its funds.” As the rulemaking petition states, “the fundamental mistake in this approach is “the idea that sponsorship is largely determined by who claims to have editorial control of the commercial message, rather than who pays.” As a practical matter, the rulemaking petition states, “broadcasters have no way to determine if an advertiser has editorial control, and requiring third parties to demonstrate who has editorial control poses an insuperable barrier to complainants, who lack the ability to investigate or rebut claims to the contrary.”
Because the Section 317 statute is already in place, all that is needed is a modest updating of FCC rules to ensure that viewers are able to know where all that money is coming from. Using the normal FCC notice-and-comment process, this needn’t take longer than 90 days.
The FCC should enact updated rules to require that sponsorship identification is made based on who is actually paying for a message. Also, the current rules for what broadcasters are required to keep in the public files should be updated to reflect these new practices. The FCC should also require broadcasters to obtain sworn statements from political advertisers as to their largest sources of funding and place them in the station’s public file. The Commission is made up of five members meaning three votes in favor of the rulemaking petition can carry the day for disclosure—and democracy.
At a time when many people are “learning” more about election campaigns from political ads than from the consolidated media companies that have fired thousands of reporters and crippled hundreds of newsrooms, the fissures in our democracy will only widen unless anonymous money is brought to account. It is time to bring our campaigns and our country into the bright sunlight of full disclosure.
Press the FCC, under their existing statutory authority, to adopt new, updated rules requiring more accurate sponsorship identification of political advertisements on television.