FCC Pressed on Political Ad Disclosures

Agency Hears it from Both Sides over Identifying PAC Backers
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In a marathon FCC oversight hearing in the Senate Commerce Committee Tuesday, the commissioners were hammered and probed on a host of issues from media ownership and universal service reform to the just-approved T-Mobile/MetroPCS merger, cable deregulation retransmission consent, and political ad disclosures.

During the hearing, all the commissioners committed to trying to expedite the incentive auctions, though not all were certain the FCC could make its self-imposed 2014 deadline.

One of the more pointed exchanges involved the FCC's enforcement of advertising disclosure rules for political spots.

Sen. Bill Nelson spent his allotted time on that issue alone. He asked whether the FCC commissioners were willing to use their disclosure authority to require identifying not only the PACs and other groups paying for ads, but the underlying funders "hiding behind the Committee for God, Mother and Country." Congress attempted but failed to mandate such sponsorship IDs in legislation (the DISCLOSE Act) that failed to pass this year. "You have the statory power," he said. "You don't have to do what we failed to do four years ago, to pass the disclosure act."

He pointed out that in the Citizens United Supreme Court decision that lifted a ban on corporate and union funding of campaign ads, a majority of justices (8 of 9) said that disclosure was the less restrictive alternative to what they saw as a ban on speech. "That would indicate that the court was looking approvingly on disclosure."

The reaction from the commissioners was mixed. All the commissioners said disclosure was a good thing. FCC Chairman Julius Genachowski called it a "First Amendment-friendly, powerful tool," and pointed out that the FCC last year adopted a rule requiring the political files of some stations to be posted online. He said the next step would be to assess that role out, consider the issues raised, including Nelson's, and proceed from there.

Nelson pointed out that legislation that did pass two years ago requires on-air identification of all advertisers, and that the FCC has the authority to decide how to do that. Genachowski said that the FCC should look into "going more deeply into who the actual funders are."

The commissioners also all agreed that the FCC should enforce its rules, but Commissioner Ajit Pai suggested it was unclear whether disclosures applied beyond the groups to the underlying funders, while Commissioner Robert McDowell said there were a number of issues involved in such a decision, including whether the Federal Election Commission or the FCC is the right forum, and whether broadcasters should be the enforcers on these groups.

Both Pai and McDowell also pointed to the difficulty of fitting a series of funders into a TV ad of limited duration. He also pointed to a 2012 GAO report that found the FCC should update its sponsorship guidance to broadcasters, something he supports.

Commissioner Jessica Rosenworcel was the most unqualified supporter of Nelson's. "I will make it easy for you. Yes. Sunlight is the best disinfectant and we should look at our rules and make sure they are updated." Commissioner Clyburn said she would be willing to work with Nelson if the FCC weren't doing something it should be.

Republican Senator Ted Cruz of Texas suggested that stepping into the disclosure fight was something the FCC should not be doing.

He cautioned the commissioners that the FCC had a long tradition of nonpartisanship, which could be at risk. Pointing to the deep political divisions over the DISCLOSE Act, he said: "Were the commission to endeavor through rulemaking to end-run Congress and adopt a rule that would perceived [certainly by his Republican colleagues] as overtly partisan, doing so could well undermine the integrity and imperil the independence of the commission.

Notable for its absence was any questioning about media violence--although committee Chairman Jay Rockefeller (D-W.Va.) did touch on the issue.

The chairman closed out his questioning by saying that he had a question for Genachowski on violence, but then added "you can't do anything about it, and my time has run out."

He touched on it again at the end of the hearing, saying "I could go on to violence, but I know what you would say and I know what I would answer." What they would say, he explained, was that they did not have the authority to regulate violence. What he said is that he will continue to work on the issue.