RBR+TVBR INFOCUS
WASHINGTON, D.C. — The 2020 election is expected to attract more than $8 billion in media spending. The FCC will be the forum for resolving complaints engendered by hyper-partisan campaigning.
FCC enforcement decisions will be shaped by Bobby Baker, the head of the Media Bureau’s Political Programming Office who holds the title of Assistant Chief of the Media Bureau’s Policy Division.
Thanks to the efforts of prominent Washington-based communications law attorney Erwin Krasnow, Baker agreed to provide RBR+TVBR an exclusive behind-the-scenes look at how the Commission’s Political Programming Office processes candidate complaints and enforces the FCC’s rules governing political programming and advertising.
Krasnow, who serves as counsel to Foster Garvey (formerly Garvey Schubert Barer) and is the author of several books and articles on political broadcast law, interviewed Baker on RBR+TVBR‘s behalf.
The questions posed to Baker are designed to assist both broadcasters and cable operators, as well as candidates for public office in dealing with the FCC. “The good news is that his answers show that the FCC places its focus on expedited resolution, not on punishment,” Krasnow notes.
Erwin Krasnow: How long have you been working on political programming matters at the FCC?
Bobby Baker: Except for 8 years managing recording artists in the 1970s, and before that a brief stint in the FCC’s first cable television bureau, I have spent the rest of my career at the FCC. I have been the head of the Commission’s political shop for 25 years.
Erwin: What was the first major matter you worked on?
Bobby: During my first year serving on the political programming staff, I participated in drafting an FCC decision that ruled on the complaint that President Jimmy Carter’ filed against the major television networks for their refusal to sell his campaign 30-minute program length blocks during prime-time television to announce the launch of his reelection campaign. The decision granting the complaint made its way through the federal court system and in 1981 the Supreme Court affirmed every principle we established with respect the rights of federal candidates to reasonable access. That was a very exciting time for me and other members of the staff. And the reasonable access principles established by the Commission just under 40 years ago have survived the test of time and remain the bedrock factors to be used in analyzing reasonable access complaints.
Erwin: How has the Political Programming Office transformed the way it handles complaints?
Bobby: Early on in my career, I witnessed the inefficiency of the way that the staff processed inquiries and complaints that were submitted in phone calls and letters – -at that time, there were no emails, texts, or cell phones! Then, the major issues for broadcasters and cable system operators were the amount of access they needed to provide candidates, how to meet their equal time obligations, what programming qualified as bona fide news programming exempt from equal opportunities and sponsorship identification. And, of course, questions were raised on a daily basis concerning the proper calculation of the rates that could be charged to legally qualified candidates. I became increasingly concerned about our inability to provide answers in real time and to do so, in a simple non-legal language format – – ideally on the same day as requested.
Erwin: How was the decision-making process changed?
Bobby: We now employ an informal problem-solving technique. Because of the efficiency of that approach, we have steadily reduced a staff that averaged 10-15 attorneys who spent the lion’s share of their time writing orders, letter-rulings and other formal documents.
Erwin: What is the current size of your staff?
Bobby: We have reduced the size of our staff to three attorneys and have found that the skeletal staff is able to navigate the same territory without much difficulty. Of course, there are situations where it is not possible to resolve complaints in a matter of hours or days – – or in situations where the damage has already been done. Those matters total about 50 in 25 years, as opposed to 50 Orders in a single election period.
Erwin: What are the benefits of your informal approach?
Bobby: In my opinion, the informal mediation approach is the way good government should operate, especially where time is so very critical. To the affected parties. Since the people we deal with have grown accustomed to a user-friendly interaction with us, a true level of trust has evolved. Stations, cable systems, and their attorneys, believe it or not, are generally candid with us because they believe we are not out to get their companies or clients. And we aren’t reluctant to speculate about the “right approach” even where the facts are novel. This allows folks to operate even when novel facts are at issue without the need to get a formal declaration from the FCC.
Erwin: How do you publicize the best way of dealing with the Political Programming Office?
Bobby: We do an extensive amount of outreach to educate the entities we regulate on how to avoid potential legal minefields. And because the political process involves heightened time-sensitive limitations, we feel that it is our responsibility to bring resolution and understanding to the various sides of each equation with all due speed. And this informal mediation and the lightning speed of providing answers is the bedrock philosophy we live by — and it works very well indeed!
Erwin: What advice would you give to broadcasters, cable operators and candidates regarding emerging technology for targeting a specific selected audience?
Bobby: This question has generated a large number of inquiries. Perhaps needless to say, much has changed in political advertising since the beginning of my career! The advent of new advanced ways to micro-target a desired audience continue to evolve through new technological methods for buying time, such as programmatic and addressable technology to target and micro-target an audience for most efficient vote getting and messaging strategies. And as these new methods for buying time surface, we have continued to treat them as separate classes of time for purposes of calculating lowest unit charges. This is not any different from my vantage point than the old school treatment of more rudimentary classes of time like preemptible and non-preemptible as separate classes of time, each with their own lowest unit charge. So, as new techniques for reaching an audience are developed, we will try to stay abreast of them and keep it simple. Should any of your readers want to run by any ideas about emerging technology, I encourage them to contact us by phone or email via the contact info you’ve provided in this article.
Erwin: How has non-candidate issue advertising impacted the political regulatory environment?
Bobby: In 1980, at the beginning of my career, we saw the very early stages of highly partisan non-candidate issue advertising. Flash forward to today where at the federal election-level we often see the expenditures by non-candidate issue advertisers at greater levels than by the candidates themselves. So-called “super PACs” tagging themselves to a number of federal candidates are changing the dynamics of many federal races. For our regulated industries, this is a substantial and beneficial perk since the broadcasters and cable operators are not limited by any rate restrictions as they are when dealing with legally qualified candidates.
Erwin: What has been the impact of the proliferation of issue advertising?
Bobby: The growth of issue advertising is obviously good for the industry’s bottom line. Of course, because unlike the prohibition against censorship of a legally qualified candidate’s advertising, with issue advertising broadcasters and cable operators are permitted to insist on editing the content of the ad or rejecting certain issue advertising in its entirety. As such, stations and systems need to be mindful of their potential exposure to lawsuits. This is really the same as their normal scrutiny of programming on their stations or systems 24/7, checking, for example, for potential defamatory statements, copyright infringement, indecency or obscenity. We are happy to discuss any aspect of this area recognizing it can be tricky.
Erwin: The world of digital advertising is growing rapidly. Does your office play any role in this area?
Bobby: There are no FCC regulations directly applicable to the world of digital political advertising. That being said, it has become an increasingly important component of political persuasion, and we continue to field many inquiries about whether there are any FCC rules or policies that govern In 1980, no one could anticipate the scope of the digital world space we are now witnessing. And it is having a significant impact on expenditures by candidates and issue advertisers. Only 10 years ago, the amount of expenditure allocated for digital by political advertisers was a fraction of today’s digital advertising budgets. We have been informed by a number of buying agencies that federal candidate and issue budgets are allocating as much as 20-30% of their overall ad expenditures to digital placement. And we are told those numbers are within the ballpark for a number of hotly contested state races. When fundraising messaging is included in the amount, it can be even greater and certainly is a major piece of most budgets. And it seems to be a pretty sure bet that these numbers will continue to grow.
Erwin: What is the impact of social media platforms?
Bobby: While it appears that much of these budgets are allocated for advertising on unregulated social media platforms such as Facebook and Google, stations and cable operators do see activity on their websites for streaming advertising airing on their stations or systems to the respective websites. So, to the extent we get inquiries about these issues, we’ve made it clear that should stations or cable systems prefer to not make anything in their digital space available to candidates or issue advertisers, that determination is totally within their discretion.
What is the best way of contacting the Political Office? Bobby can be reached directly at 202-418-1417 and by mobile phone almost any time, including weekends, at 202-253-8419. Email may be sent to [email protected].
