sunlight foundation fcc complaint against wtvd durham
TRANSCRIPT
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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
Complaint of
Campaign Legal Center and Sunlight
Foundation
Against
American Broadcasting Company, licensee of
WTVD-TV, Durham, NC
For Violations of the Communications Act
§ 315 and FCC Regulation § 73.1212
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To: Enforcement Bureau
COMPLAINT
The Campaign Legal Center and the Sunlight Foundation file this complaint regarding
violations of the Communications Act and the Federal Communications Commission’s (“FCC”)
regulations by the American Broadcasting Company (“ABC”), licensee of WTVD-TV. In April
2014, WTVD-TV ran a political ad sponsored by American Crossroads. The station failed to
disclose in its online political file information about American Crossroads and the ad as required
by the Communications Act and the FCC’s regulations.
I. Facts
A. Parties
The Campaign Legal Center is a nonpartisan, nonprofit organization that promotes
awareness and enforcement of political broadcasting laws. The Campaign Legal Center’s
mission is to represent the public interest in the enforcement of media and campaign laws.
Through public education, advocacy for federal rulemaking proceedings, and congressional
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action, the Campaign Legal Center seeks to shape political broadcasting policies and promote
effective enforcement of the public interest obligations of the media.1
The Sunlight Foundation is a nonpartisan nonprofit that advocates for open government
globally and uses technology to make government more accountable to all. Sunlight
accomplishes these goals at municipal, federal, and international levels by building tools that
empower democratic participation and by working with policymakers and civil society
organizations to employ a technology-centric and transparency-oriented approach to their work.
The Sunlight Foundation has built tools that empower individuals and journalists to better and
more easily understand political spending across the United States, which depend on data found
within broadcast stations' political files and elsewhere.2
WTVD-TV is an ABC-owned and operated station in Durham, North Carolina. Durham
is part of the 24th largest Designated Market Area in the country, serving more than 1.1 million
households.3 ABC is wholly owned by the Walt Disney Company. The Walt Disney Company is
headquartered in Burbank, California, and is one of the largest media conglomerates in the
world, operating in film, broadcast and cable television, theater, music, and entertainment.4
B. The Advertisement
In April 2014, WTVD-TV broadcast a political ad purchased by American Crossroads
entitled “Guts.”5 American Crossroads is a political advocacy group and Super PAC
1 See Campaign Legal Center, http://www.campaignlegalcenter.org (last visited Apr. 2, 2014).
2 For instance, Political Ad Sleuth and Ad Hawk are two such tools. See Political Ad Sleuth,
http://politicaladsleuth.com (a searchable database created from FCC online public file
documents); Ad Hawk, http://adhawk.sunlightfoundation.com (a mobile app allowing
identification of political ads). 3 Local Television Market Universe Estimates, The Nielsen Company (2013),
http://www.tvb.org/media/file/TVB_Market_Profiles_Nielsen_TVHH_DMA_Ranks_2013-
2014.pdf. 4 The Walt Disney Company, Company Overview, http://thewaltdisneycompany.com/about-
disney/company-overview (last visited Apr. 3, 2014). 5 Sean Sullivan, Crossroads launches major ad buy for Thom Tillis in North Carolina,
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headquartered in Washington, D.C., that promotes limited government and free enterprise.6
Although American Crossroads does not disclose its donors, it is widely known to be closely
associated with Republican strategist Karl Rove.7
“Guts” refers to candidates Kay Hagan and Thom Tillis. Since 2009, Kay Hagan served
as a Democratic U.S. Senator for North Carolina, and is running for reelection. Tillis is running
in the primary election to become the Republican challenger for the same seat. The American
Crossroads ad, transcribed below, discusses the Affordable Care Act, national debt, and voter ID
laws.8 The ad explicitly supports Tillis and his stance on those issues.
[Narrator:] We know where they [Hagan and Obama] stand. Their Obamacare deception. Addicted to out of control spending and debt. Attacking our common sense voter ID law. Thom Tillis, true to our values, as speaker eliminated a $2.5 billion deficit and cut taxes. The conservative guts to replace Obamacare with honest health care reforms. Protect our voter ID law. Thom Tillis, North Carolina values for a change. [On-screen: “Vote for Thom Tillis.”]
The contract included in Exhibit B shows that American Crossroads spent $32,700 (including an
agency commission of $4,905) to broadcast this ad on WTVD-TV for the week of April 1, 2014.
Washington Post (Apr. 1, 2014), http://www.washingtonpost.com/blogs/post-
politics/wp/2014/04/01/crossroads-launches-major-ad-buy-for-thom-tillis-in-north-
carolina/?wprss=rss_politics&clsrd. A copy of this article is attached as Exhibit A. Exhibit A
also contains screenshots of the ad. The ad may be viewed at
https://www.youtube.com/watch?v=PEkXpx53Ivc. 6American Crossroads, About–Who We Are, http://www.americancrossroads.org/about (last
visited Apr. 2, 2014). 7 E.g., Byron Tau, Karl Rove Groups Raised $6.1 Million in 2013, Politico (Jan. 31, 2014),
http://www.politico.com/story/2014/01/karl-rove-super-pac-american-crossroads-crossroads-gps-
victory-project-fundraising-102961.html. 8 See Mark Binker, Rove-Affiliated American Crossroads Airs Ads for Tillis, WRAL (Apr. 1,
2014), http://www.wral.com/rove-affiliated-american-crossroads-airs-ads-for-tillis/13529282/;
Sean Sullivan, supra note 5.
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American Crossroads plans to spend $1.1 million on television advertising leading up to the May
6, 2014 primary election.9
II. Argument
The American Crossroads ad triggers WTVD-TV’s political file disclosure requirements
in the Communications Act and the FCC’s regulations. WTVD-TV, however, has failed to
disclose the required information.
A. The Communications Act and the FCC’s regulation requirements.
When broadcasters run political ads, they must meet specific disclosure requirements set
forth in § 315(e) of the Communications Act and in part 73 of the FCC rules.
Section 315(e)(1) of the Communications Act requires that broadcast licensees maintain
records regarding any request to purchase broadcast time that “communicates a message relating
to any political matter of national importance, including (i) a legally qualified candidate; (ii) any
election to Federal office; or (iii) a national legislative issue of public importance.”10
For such requests, the licensee must disclose “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).”11
The licensee must disclose a list of the purchaser’s “chief executive officers or
members of the executive committee or of the board of directors.”12
Similarly, FCC regulations require licensees to disclose information about paid
broadcasts if those broadcasts concern a “political matter” or discuss a “controversial issue of
public importance,” and the ad is paid for by “a corporation, committee, association or other
9 Id.
10 47 USC § 315(e)(1)(B)(i)–(iii) (2014).
11 Id. § 315(e)(2)(E).
12 Id. § 315(e)(2)(G).
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unincorporated group, or other entity.”13
In such cases, the FCC also requires a “list of the chief
executive officers or members of the executive committee or of the board of directors, committee
association or other unincorporated group or other entity.”14
B. The American Crossroads ad triggers the disclosure requirements of § 315(e)(2)
of the Communications Act and § 73.1212(e) of the FCC’s regulations.
WTVD-TV’s airing of “Guts” triggers the disclosure requirements of § 315(e)(2) of the
Communications Act and § 73.1212(e) of the FCC’s rules for three reasons. First, the ad refers to
two different legally qualified candidates—Senator Hagan and Thom Tillis. Hagan, a Democrat,
is the incumbent Senator running for reelection. She maintains a campaign website where she
provides daily updates, press releases, and collects donations.15
She raised over $6.8 million for
her campaign by the start of the 2014 election year.16
Tillis, who is currently the Speaker of the
House in the North Carolina state legislature, is running to become the Republican candidate for
Senator in the contested May 6 primary election. Tillis maintains a public campaign website
where he provides regular updates, issues press releases, and collects donations.17
Tillis raised
$1.3 million in 2014 for his campaign.18
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47 CFR § 73.1212(e). See also id. § 73.1943. Currently, a station in the top-50 designated
market areas and affiliated with a top-four network must upload its political file to the FCC’s
online database; however, all television stations will be required to do so beginning in July 2014.
Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations, Second Report and Order, 27 FCC Rcd 4535, 4536–37 (2012). 14
47 CFR § 73.1212(e). 15
See Kay Hagan, http://www.kayhagan.com/ (last visited Apr. 16, 2014). 16
John Frank, Morning Memo: Hagan Posts Another $2M Fundraising Quarter, News Observer
(Jan. 21, 2014), http://www.newsobserver.com/2014/01/21/3551507/morning-memo-hagan-
posts-another.html. 17
See Thom Tillis, http://thomtillis.com/ (last visited Apr. 3, 2014) 18
Patrick O’Connor, Thom Tillis Gets Cash Boost in North Carolina Senate Fight, WSJ (Apr. 7,
2014), http://blogs.wsj.com/washwire/2014/04/07/thom-tillis-gets-cash-boost-in-north-carolina-
senate-fight/.
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Second, the ad refers to an election. As indicated above, the ad encourages viewers to
“Vote for Thom Tillis.”19
This references the North Carolina primary election to be held on May
6, 2014.
Third, the ad communicates a message relating to both a “national legislative issue of
public importance” and a “controversial issue of public importance” for purposes of the
Communications Act and the FCC’s regulations. The ad refers to the Affordable Care Act, the
national debt, and voter ID laws. The Affordable Care Act is the quintessential legislative and
controversial issue of public importance: it was President Obama’s key initiative and has been
the subject of numerous court challenges, including at the Supreme Court. The national debt is
also a national and controversial issue; the budget has become the center of attention in many
discussions, including in the October 2013 U.S. government shutdown.20
Voter ID laws also
present a controversial issue of public importance nationally. Although such laws are
promulgated at the state level, many states either have such laws or are considering them.21
The
laws affect voter turnout in national elections and implicate a fundamental civil right.22
19
A screenshot of this language is in Exhibit B. 20
Kevin Carmichael, U.S. Congress Remains Divided in Budget Showdown, Globe and Mail
(Sept. 30, 2013), http://www.theglobeandmail.com/news/world/us-congress-remains-divided-in-
budget-showdown/article14620528/ 21
According to a March 24, 2014 update by the National Conference of State Legislatures,
“[v]oter ID continues to be a high-profile issue in many state legislatures in 2014, although not
as active as in the previous three years. In 2013, 30 states considered voter ID legislation. In
2012, legislation was introduced in 32 states. In 2011, 34 states considered voter ID legislation.
For 2014, 24 states have proposals to create new voter ID requirements, or amend existing voter
ID laws.” NCSL, Voter Identification Requirements, http://www.ncsl.org/research/elections-and-
campaigns/voter-id.aspx (last visited Apr. 21, 2014). 22
E.g., George E. Curry, Bill Clinton Says Voter ID Laws Undermine Civil Rights Progress,
New Pittsburgh Courier (Apr. 16, 2014), http://newpittsburghcourieronline.com/2014/04/16/bill-
clinton-says-voter-id-laws-undermine-civil-rights-progress/.
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C. WTVD-TV failed to disclose the information required by law.
WTVD-TV disclosed the following regarding the sale of airtime for “Guts”: a contract,
which discloses rates, dates, and times in compliance with section 315(e)(2)(A)-(D); and the
National Association of Broadcasters (NAB) Form PB-18, “Agreement Form for Non-
Candidate/Issue Advertisements.” Copies of both are included in Exhibit B.
The NAB form asks whether the ad communicates a “message relating to any political
matter of national importance.” If yes, then the form asks for disclosure of the candidate and
office, election, and/or issue referred to by the ad. The form names the “Affordable Care Act” as
an example of a “national legislative issue[s] of public importance.” Even though “Guts”
communicates a political message of national importance, WTVD-TV did not even answer the
question. The station failed to disclose the name of the candidate and office sought, the election,
and the issue referred to by the ad, despite being specifically prompted to do so by the NAB
form. These sections were simply left blank.
Similarly, WTVD-TV failed to list the chief executive officer or members of the
executive committee or the board. The station did provide, in the wrong section of the NAB
form, the name of American Crossroads’ Treasurer, Margee Clancy. Even if this were in the
correct section, it would be insufficient to satisfy the legal requirement to include the chief
executive officers or members of the board of directors. Thus, WTVD-TV failed to disclose the
information required by the Communications Act and the FCC’s regulations.
Conclusion
The Communications Act and FCC rules are intended to inform the public about the
amount of spending and source of funding when broadcast stations air paid programming
concerning candidates, elections, and political matters of public importance. WTVD-TV has
failed to disclose this important information. Thus, the Campaign Legal Center and the Sunlight
Foundation respectfully request that the FCC take prompt action to ensure that this information is
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made available to the public through WTVD-TV’s public file. We further request that the FCC
take other measures, such as assessing forfeitures and issuing a Public Notice reminding
broadcast stations of their obligations, to ensure that this and other broadcast stations include all
of the legally required disclosures in the future.
Of counsel:
Matthew J. Dulac
Georgetown Law Student
Dated: May 1, 2014
Respectfully submitted,
Eric G. Null
Angela J. Campbell
Andrew Jay Schwartzman
Institute for Public Representation
Georgetown University Law Center
600 New Jersey Avenue, NW
Suite 312
Washington, DC 20001
(202) 662-9535
Counsel for Campaign Legal Center
and Sunlight Foundation
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Exhibit A
The following screenshots are from the American Crossroads ad, available at:
https://www.youtube.com/watch?v=PEkXpx53Ivc.
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Crossroads launches major ad buy for Thom Tillis in North Carolina
Sean Sullivan, Washington Post
April 1, 2014, at 10:47 AM
http://www.washingtonpost.com/blogs/post-politics/wp/2014/04/01/crossroads-launches-major-
ad-buy-for-thom-tillis-in-north-carolina/?wprss=rss_politics&clsrd
The GOP-aligned super PAC American Crossroads launched a major ad campaign in North
Carolina on Tuesday with a commercial supporting state House Speaker Thom Tillis (R) as he
runs in a contested Republican primary for U.S. Senate.
The new ad, which contrasts Tillis with Sen. Kay Hagan (D-N.C.), is the first commercial in a a
four-week, $1.1 million Crossroads buy leading up to the May 6 primary. A candidate must win
more than 40 percent to secure the nomination without a runoff, which Crossroads appears to
want Tillis to avoid.
The ad tethers Hagan to Obama on health care and the state's voter ID law before pivoting to a
defense of the Republican's record on the same issues.
"Thom Tillis. True to our values," says the narrator.
The ad marks the second time in recent weeks Crossroads has hit the airwaves on behalf of a
Republican running in a contested Senate primary. In Alaska, the group unveiled an ad
supporting former state attorney general Dan Sullivan (R), The Washington Post reported last
week. The commercial featured former secretary of state Condoleezza Rice vouching for
Sullivan.
Tillis is the frontrunner for the GOP nomination, the scant public polling on the GOP race
reveals. He faces lesser-known contenders running to his right, such a physician Greg Brannon
(R) and Baptist minister Mark Harris (R).
North Carolina has emerged as a central focus of both parties in the battle for the Senate, and
GOP groups have blitzed the airwaves. Americans for Prosperity, a group backed by the
billionaire Koch brothers, has already spent more than $7.2 million in the race. Through the
middle of last week, Republican ad spending had outpaced Democratic money by about $6
million.
"It's pretty unbelievable for Karl Rove to spend over a million dollars to praise Thom Tillis'
'values,' which as we saw last year include giving a tax cut to the wealthy while 80 percent of
North Carolina families pay more," said Hagan spokeswoman Sadie Weiner, in response to the
new ad.