Will the real political advertiser please stand up?
Back in July, the Campaign Legal Center, Common Cause and the Sunlight Foundation, represented by Georgetown Law’s Institute for Public Representation, filed complaints with the FCC against two television stations — KGW and WJLA. Both stations had broadcast political advertisements that claimed generically named issue-advocacy groups were their sponsors.
Problem is, the ads weren’t telling the whole truth — and we asked the FCC to put a stop to it. KGW ran an ad that said it was paid for by the American Principles Fund (APF) — but 98.6 percent of APF’s funding comes from Sean Fieler.
WJLA, meanwhile, ran an ad from NextGen Climate — a group that until recently was solely funded by Tom Steyer (and even now, he makes up the vast majority of its funding).
Sunlight’s argument, summarized and simplified, is that if someone dresses up as Batman, he or she shouldn’t get to claim Batman is the one spamming attack ads and issue ads. Swap out Batman for super PAC, and you’ve got the drift. The legal argument here is that Section 317 of the Communications Act, as we said in our complaints, requires broadcast licensees to determine the identity of the “person” sponsoring any political advertisement. The law also requires broadcasters to use “reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with [the ad], information to enable” the broadcaster to make the on-air disclosure. (Here’s a link to the law — (c) is where the quote’s from.)
The FCC didn’t agree with us. Specifically, the Media Bureau decided we hadn’t presented enough evidence that the stations knew the ads were identifying someone other than the “true identit[ies]” of the ads’ sponsors. The bureau noted that we provided some evidence for WJLA (whose employees had actually previously reported that Steyer was about to dump a ton of money into the market). The report is WJLA’s own research on the guy who truly sponsored the WJLA ad. The Media Bureau’s response tells us that this incredible self-contradiction still satisfies the “reasonable diligence” requirement discussed above. I don’t think I’ve seen a worm that could dig its way under that bar.
Bonus point: The Media Bureau’s decision was informed by “the need to balance the ‘reasonable diligence’ obligations of broadcasters in identifying the sponsor of an advertisement with the sensitive First Amendment interests presented here.” Further, if we had gone directly to the stations to tell them what they could have found out through a simple Google search (note the immense wealth that these ads create for the stations), the bureau’s approach “might have been different.”
By the Media Bureau’s reading, how hard is it to fail the “reasonable diligence” test? This is NextGen Climate’s “About Us” page:
Seriously, this super PAC’s page — titled “WHO WE ARE” — proceeds to only describe Tom Steyer.
Needless to say, we are appealing this — or in FCC terms, we filed an application for review on Oct. 2. We’re evaluating how worthwhile it would be to test the Media Bureau’s claim that its approach “might have been different” had we gone to the broadcasters and done its job first, but those would be new proceedings.
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Here’s the application for review from Sunlight and its fellow complainants:
