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#520 minutes

Equal time, lowest unit prices, and how a touring music man becomes the FCC's political ad guy

With the midterm elections fast approaching, political ads are sure to be flooding your TVs and radios. The Federal Election Commission certainly has plenty of work to do, but what role will the FCC play, given that radio and television are under its jurisdiction? Evan is joined by Bobby Baker, Assistant Division Chief of the Policy Division in the FCC's Media Bureau. They discuss the FCC's political ad rules—from equal time and opportunity to lowest unit prices to the always-exciting paperwork requirements. And how did Bobby go from being a touring music man in the 70s and 80s to running point at the FCC on political ad regulations? (Disclaimer)

Transcript: 

MR. SWARZTRAUBER: Welcome to More than 7 Dirty Words, the Official FCC Podcast. I'm Evan Swarztrauber.

With the mid-term elections fast approaching political ads are sure to be flooding your TVs and radios. And the Federal Election Commission certainly has plenty of work to do and a big role but what about the FCC, this Agency, given that, you know, cable TV, over the air TV and radio are under this Agency's jurisdiction, what role does the FCC play in election ads?

Joining me to discuss all that is Bobby Baker. He is the Assistant Division Chief of the Policy Division in the FCC's Media Bureau. That's a bit of a mouthful. Thank you, Bobby, for joining the show.

MR. BAKER: My pleasure.

MR. SWARZTRAUBER: So, to start off how did you end up being "the guy" at the FCC when it comes to political ads? I understand you had a bit of an unorthodox path getting here. You started at the FCC right out of law school,but then got a little bored which I'm shocked. I'm absolutely shocked that you found it boring. And then you went on the road in the music business.

MR. BAKER: I did. I did for almost eight years.

MR. SWARZTRAUBER: And then, I guess, you didn't bored of that. That's not why you came back to the Agency.

MR. BAKER: No, I wanted to get bored after awhile. It was very exciting --

MR. SWARZTRAUBER: Flying too close to the sun?

MR. BAKER: Exactly, exactly, from both my wife and myself. And fortunately I'm still married which is an indication it was a good thing to get out.

MR. SWARZTRAUBER: Well, that's good on that but, yes, 70s and 80s that must have been quite a crazy time in the music biz.

MR. BAKER: Yes, It was crazy as can be.

MR. SWARZTRAUBER: And then, you know, you came back and, I guess, got a little bit bored and, you know, I found it amusing that essentially the closest thing you could find at the FCC to the fast life of the music biz was doing the political ad regulations. So, I guess that's what passes for being on the road with a band in the telecom world.

MR. BAKER: There are tremendous similarities between the music business and politics. Those guys and women are out on the road and they're doing lots of things from day to day going from town to town and I had years in the music business where I was in 150 places in a year. And I did that for three or four years and that's when I got out.

MR. SWARZTRAUBER: Yes. I guess you can say being on tour is like running for office in a way.

MR. BAKER: Yes. There are some great rock and roll songs about being on the road.

MR. SWARZTRAUBER: Well, there you go. So, you know, depending on people's familiarity they might know a little bit about Federal election law, you know. They might be familiar with the phrase that they hear at the end of a commercial that says essentially, I'm John Doe or Jane Doe and I approve this message. And, you know, they might connect that with some type of regulation. But they might not be aware of the FCC's role in this whole, you know, election regime. So, where do the rules come from, you know.

Briefly, the FCC is a creature of statute, you know --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- created by Congress and all of our rules are kind of traced back to Congress in a way. So, where do these rules that we have come from?

MR. BAKER: They come from Congress and it's not surprising but in 1927 which is the inauguration of regulation of broadcasting which at that time was just radio. There was no television. There certainly was no cable without television.

MR. SWARZTRAUBER: Right.

MR. BAKER: And so the political advertising was exclusively a phenomena that was on radio and it was considered a very powerful media at that particular point in time. And so among the very first things Congress did in enacting that first regulation was to enact an equal opportunities provision which is almost word for word the same as the provision is today some, you know, 91 years later.

MR. SWARZTRAUBER: Wow.

MR. BAKER: And it's indicative of the fact that Congress saw broadcasting as a powerful and potential advantaging media --

MR. SWARZTRAUBER: Right.

MR. BAKER: -- and it could also be a tremendous disadvantage in media. So, they were very careful to try to protect themselves in enacting that particular provision which just guarantees that if they have the funds and their opponents buy time that they're guaranteed that they can get on station to get comparable placement in classes of time and that kind of thing.

MR. SWARZTRAUBER: Gotcha. And then, you know, categorizing the buckets of issues that we kind of deal with in this space chatting with you before the show we kind of got rules about the cost of that and that goes to that equal opportunities. How do stations decide or what are they allowed to decide to charge a candidate --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- whether it's on radio or TV?

MR. BAKER: There are windows of time. We're in one right now, 60 days in front of general election periods and 45 days in front of primaries. Candidates are supposed to be given what the statute calls comparable rates. It's a little less finite than what the window time is. But basically what it requires is that stations not overcharge candidates, not charge them more than they would charge a normal commercial advertiser coming in off the street.

What happens when those windows come into play like they are now is that then the Congress decided it wanted to be able to step into the shoes of advertisers who got the very best deal. So, if it was Budweiser or Proctor and Gamble or in local stations time periods it's often a car dealer --

MR. SWARZTRAUBER: Right.

MR. BAKER: -- local kinds of businesses. Whoever buys the most advertising over the course of 365 days typically gets discount bulk rates for that. And they wanted to be able to buy just a few spots but be able to get the same treatment that the person that buys year round gets.

MR. SWARZTRAUBER: Right. Because in general, I guess, if you're buying almost anything in bulk whether it's groceries or something else --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- you're going to get a better rate but I guess if you're only campaigning for a certain amount of time and this window is so short you're not going to get bulk rates unless they come in and tell you you have to do that. So, if you want to run three ads you might get that at the same rate that a major advertiser, a major customer gets per ad over the course of a year.

MR. BAKER: That's correct.

MR. SWARZTRAUBER: And then are there any other wrinkles in there. Is that pretty much it. I mean --

MR. BAKER: Well, other than the notion of equal opportunities which was to protect themselves in terms of being able to get the access that they're opponents got, they began to add new things as time went on and they amended the same Act, the Equal Opportunities provision in 1959 and added four news exemptions which allow stations to put candidates into bonafide news programming of different categories without having to provide equal opportunities to competing candidates. The reason for that is that even though candidates like the idea of equal opportunities they knew that the newsrooms were being chilled by the idea that if they put one of these people into the news they may, you know, in Presidential elections there's sometimes 10/15 candidates. A lot of fringe candidates, third parties and so forth. All of them if they're legally qualified would have the rights under the equal opportunity rule. So, in 1959 they added those four news exemptions which cover newscasts, news interview programs, on the spot coverage of bonafide news events which has come to include debates and news documentaries as long as the appearance of candidates is incidental to what the documentary is about.

MR. SWARZTRAUBER: Gotcha. So, as long as it's not a paid spot, if I'm just sitting down with a news anchor that's not going to count and then they don't have to run around tracking down every candidate.

MR. BAKER: Right.

MR. SWARZTRAUBER: -- making sure they bring them on for the same exact amount of time which, I guess, the idea behind that was to give some editorial freedom to the news --

MR. BAKER: Precisely.

MR. SWARZTRAUBER: -- cover the elections the way they'd like to.

Now, you mentioned the third parties and, you know, some more fringe than others and that kind of gets to this cost issue because, you know, if you're a Democrat or Republican you come in and say I'd like the, you know, best unit price, there's probably not a lot of discussion there. It's pretty straightforward.

MR. BAKER: Right.

MR. SWARZTRAUBER: But how does that get a little bit more interesting as you go down the ballot and you start getting to some of these folks that might not be running state-wide in a state-wide election or they barely made it on or didn't make it on are there some interesting, you know, wrinkles there in terms of who is allowed to ask for this favorable price?

MR. BAKER: Well, anybody who is legally qualified and that can mean one of two things. You've either done the normal kind of paperwork and filings with a jurisdiction in which you want to run in which case you get certified for being on the ballot. And once you're on that ballot then you're a legally qualified candidate as far as we're concerned.

When you get to the fringe level I'd say probably the great majority of them are write-in candidates and so absent the certification process which is an easy way for stations to be sure that they're dealing with people that are actually ballot qualified --

MR. SWARZTRAUBER: That's objective, right, just like --

MR. BAKER: That's objective.

MR. SWARZTRAUBER: -- you got the signatures, yes.

MR. BAKER: But the write-in candidates analysis at least on our part is very subjective in that they need to provide us with sufficient amount of information that indicates they're doing what candidates do. They're giving speeches, they've got campaign materials, they have campaign headquarters and the kinds of things that are indicative of being a candidate.

Now, at this moment in time that's probably a severe process of being rethought because we just had a Presidential election campaign where the successful person running for President used social media in ways that will indicate, I think, for a lot of people a much different way of campaigning. I mean, he spent, the President spent far less money than most people who run for President and most of his opponents in the primary season because he was adept at using media the way he did, social media.

MR. SWARZTRAUBER: Right. So, I mean, how do you make those decisions? I mean, that's part of the reason why you might be on the phone a lot with some of these candidates who are saying, well, I gave "X" number of speeches but I didn't do this or I sent around a bunch of mailers but I didn't do that. I mean, that can get kind of tricky how to make those kinds of decisions, right?

MR. BAKER: It can. When they're running and we've had a number of people who say are running for a state-wide race. They say they're a write-in candidate for the U.S. Senate. Unless they can show us that the activities that we would consider to be the normal activities of a candidate, unless they can show that they were doing that throughout a state then they'll be unsuccessful. So, if they're just local in nature but they're running for state-wide office and they've not been out of their local region and they haven't covered 90 percent of the state they'll be unsuccessful in persuading us that they meet the test.

MR. SWARZTRAUBER: But as you've said, the Internet kind of brings an interesting question there --

MR. BAKER: Yes.

MR. SWARZTRAUBER: -- because you can now basically be all over the world even if you're just not physically all over the world. You're sitting in your office sending out Tweets, sending out Facebook posts and you might be reaching everybody in your state in theory --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- but you haven't done those other more retail politics type of activities like getting on the road.

MR. BAKER: Exactly. Now, there was a guy and I can't remember his name now but he was running -- I think he's a Harvard professor and he announced that he was going to run in the primaries, the Democratic primaries, and he was indicating that he wanted to use nothing but social media and he was going to -- and apparently he was very adept at it himself and familiar with it and but then he dropped out.

MR. SWARZTRAUBER: Right.

MR. BAKER: But one of these days it's going to be tested.

MR. SWARZTRAUBER: Right. Now, the other category which is a favorite topic of almost any Government agency is paperwork. There's a lot of paperwork that goes into this space, both things that the broadcasters themselves had to keep track of but also the candidates and the campaign. So, what are some of those requirements and do those also come from the same statute as the equality opportunities law?

MR. BAKER: They were promulgated because of the statute. And so the files at stations which used to be in the paper form and so people who were interested in finding out what their opponents had done was primarily those files in the beginning were primarily a place where the candidates and their operatives could figure out what was going on, what their opposition was doing, what kind of time they were buying, you know, what time period were they interested in and that kind of thing because to get equal opportunities the way our rules have been formulated you have to ask for the time within seven days of any of the appearances that your opponents make. So, if you have not bothered to look at the file and you go say eight days after an entire schedule has run you're out of luck. So, in order to get that kind of information that gives you the ability to knowingly know what's up and so you can ask for time accordingly you need to be aware of the information. What the Commission has now done and we inaugurated it back in 2012 is an online file that we host that the stations upload their materials into and so now, for example, a consultant or an operative for a Presidential campaign can sit at their desk and navigate the United States by going from market to market within a separate market, look at individual stations and surfing around and having at their fingertips the kind of information that they used to have to bicycle around, send, you know, they often send college students in and they would photocopy pieces of a file. And so it was very inefficient and so to bring us into the 21st century this is what we've done.

MR. SWARZTRAUBER: Now, there's a large spectrum of stations in this country. You have, you know, high revenue stations in large metro areas that might be very familiar with rules and regulations and have the lawyers on hand and can do it very easily. Then you may have some very small radio and TV stations maybe in a small town or rural community. Have you found that some stations struggle to meet these requirements or in your time doing this is it mostly easy enough to understand or not a lot of screwups?

MR. BAKER: Well, some of the things have gotten easier for them, for broadcasters and the cable people in that there's now software that can, for example, in the lowest unit charged period which used to be kind of a struggle, how am I going to figure out what the very best rate I've given for a certain kind of time and a certain day part and so forth, there apparently now is software that make that pretty rudimentary where they can get to sort of the bottom line of that kind of thing.

The smaller market stations who I deal with a lot because they don't have the advantage of having lawyers to respond to them and they can't afford it and so that's one of the things that we provide. And I think as you and I discussed earlier today, my primary goal as I see it at the Commission which is completely different from my predecessors is not to be a cop and not to punish people if at all possible to avoid. And so --

MR. SWARZTRAUBER: You're there to help.

MR. BAKER: I'm there to help and what's happened because of that is that now the lawyers in Washington and the lawyers all over the country who have dealt with me, the stations who have dealt with me, the lawyers for the networks, you name it, they trust me. They know I don't write things down, I mean, to the extent that I'm going to say, oh, you did what. And often times people tell me about stuff they're doing that's inconsistent with what they're supposed to be doing and I tell them, you know, you really have to stop doing that and fix it and everything will be fine.

So that what's happened is that over the course of almost 25 years that I've been in charge we've had probably 40 to 50 formal complaints that we needed to resolve.

When I worked under my predecessor who was much more oriented towards enforcement we would have that many in any given election period.

MR. SWARZTRAUBER: Wow.

MR. BAKER: So, we've, you know, we've eliminated a couple thousand potential disputes and those disputes are inefficient for many reasons. Certainly they waste the resources of the FCC. My office used to have 15 attorneys when I first started. It's now down to two people, myself and a very, very skillful lawyer who works with me. But because of the way we handle things almost everything that comes our way gets resolved same day, maybe a day or two later. Those same things in a regime where you're looking for formal complaints to percolate up you can often get your answer after the election. So, for the candidates and the people who are, you know, looking to the stations and cable systems and so forth it's of no use whatsoever. They're not interested in punishing anybody. They just want to get access. They want to get the kind of rates that they've been entitled to under the law and so we've done a lot of that. It actually is -- and I do a lot of outreach. I'm on the road not as much as I used to be.

MR. SWARZTRAUBER: Yes, this is an outward facing role as opposed to maybe some others at the agency and --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- I guess your time in the music industry might of --

MR. BAKER: Yes, and I --

MR. SWARZTRAUBER: -- given you people skills.

MR. BAKER: And earlier on when I had much more energy for that kind of a thing, I mean, I would do California, do five cities in five days. We, you know, would fly from place to place. And I would do it with a couple of local lawyers from here that the same kinds of people that I deal with all the time but there are about six or seven, they consider themselves part of a cult and we all sit around and talk about political programming issues.

MR. SWARZTRAUBER: It's certainly a very specific area now given that you've dealt with so many people over so many years in different states, different cities, different political parties, different fringe candidates, you've got to have a couple favorite stories and, of course, being in this role there are some funny examples maybe and some less funny ones where people are mad at you and threatened you and it's obviously unacceptable --

MR. BAKER: Right.

MR. SWARZTRAUBER: -- but to keep things light do you have a favorite example of your time of something that is maybe amusing or interesting or illuminating to try to make this maybe difficult arcane subject accessible to the listener?

MR. BAKER: I do have one. I was just talking with a friend about it. He's an attorney that I used to work with and at one point because I got so tired of dealing with the same -- he was a very wacky guy. And he was kind of sweet in his wackiness and he ran for office every single time period. So, in other words, he would be -- he's run for local office when there weren't mid-terms and so the in between years he'd run for president in other years. And he could never ever make the cut as to what the showing required. He never qualified for ballot qualification. So, he was one of those folks that had to rely on what he could tell us he had done which was almost always almost nothing.

So, one of the times he was running for President when I called him, he lives with his mother, and so apparently he has us on speaker and I said, you know, we can't help you. And so I guess his mother heard it so I hear in the background she said, now it's time for you to get a job. But he's an interesting character. I still deal with him on occasion.

MR. SWARZTRAUBER: Well, it's nice that she had to say that and not you because that might have been stepping outside your narrow role in that conversation.

MR. BAKER: Right, right.

MR. SWARZTRAUBER: Well, I'd be remiss if I didn't mention that given the service that you performed and, of course, you know, going from, you know, enforcing and really getting on top of people and punishing them for screwing up the rules to helping them comply with the rules it's a completely different situation. I think that fits very squarely within the mission of the FCC public service in providing essentially a resource to some of those smaller candidates or smaller stations that don't have resources and that's part of public service.

And in 2013 the Federal Communications Bar Association, aka FCBA for those of us in the DC telecom world, awarded you the Excellence in Government award so congratulations five years after the fact on that. But it's been an absolute pleasure to talk to you and thank you for sharing your expertise here on the show.

MR. BAKER: My pleasure.

MR. SWARZTRAUBER: Well, that's it for this episode of More Than 7 Dirty Words. My guest has been Bobby Baker, Assistant Division Chief of the Policy Division in the FCC's Media Bureau.

Thanks for joining.

MR. BAKER: My pleasure.

MR. SWARZTRAUBER: Find us wherever you get your podcasts, whether that's Apple Podcast, Google Play, Stitcher, anywhere else. Leave us a review if you like what you hear or if you don't, we appreciate feedback of any kind.

Find me at Twitter @EvanS_FCC. You can find more information about the FCC in the podcast at FCC.gov. See you next time.