[grc] FCC reg re "call to action"

[Paul Bame]

The "call to action" phrase I usually hear associated with underwriting,
and I believe the NFCB handbook (rumored to be undergoing an update)
probably covers that pretty clearly, as have others in this thread. The way
I simplify it is that the "voice of the station" cannot be used to induce
profit making. A station /can/ call people to action to donate to the
station, which is a nonprofit, and with limitations can call people to
action to support other nonprofits -- dollar amounts, prizes, "we're the
best", all is allowed (however many stations do not allow their voice to
induce support for /any/ other organizations -- keeps things simpler and
less likely to step over the line).

For political stuff, my simplification is that the "voice of the station"
cannot do /any/ electioneering. Voter education and urging people to vote
(but not which way to vote) or to share their opinion with lawmakers (but
not what their opinion should be) is fine.

Whether a station carries Pacifica or Fox will educate voters to a certain
perspective of course.

Legitimate guests can call to action -- the traveling musician in an
interview can urge people to attend their show complete with prices, prizes
etc etc (the interviewer should not amplify those bits however). Political
candidates and their supporters, when they are guests or covered in news,
can demand that people vote for them etc. This is easily abused (only
invite guests from your favorite political party), and can go over the line
where a guest becomes an editorialist (voice of the station), and then
there's equal time etc. Tricky stuff at the edges.

While people are in control of the station -- e.g. they are programmers --
they are the voice of the station, and that includes hosts of syndicated
programming. They cannot /not/ be the voice of the station during those
times. They can't say their opinion is not that of the station and then do
electioneering or advertising. Technically they can do so as guests on
other people's shows, because then they are not the voice of the station,
but in a listener's ears that distinction may not be made, which is why
many stations silence their programmers who are also political candidates,
during election season.

I'm not a lawyer, and this is a complex and ever-changing area so don't
trust me... but I can refer people to trusted communications attorneys who
may need one.

##
Paul (he/him) (pablito) Bame
Engineering Director, Philadelphia, Prometheus Radio Project
<http://prometheusradio.org/>
215.727.9620 x2 / 970.988.3849


On Sun, Feb 6, 2022 at 12:51 AM Tim Požar via grc <grc at maillist.peak.org>
wrote:

> Sounds like there is a mixing of a couple of concerns here.
>
> What non-profits can / can't do in calling for political action. This
> will have an impact on how you are seen by your state and the feds as a
> non-profit.  What kind of organization you are.  Can you lobby?, etc.
>
> As the IRS says...
>
>         In general, no organization may qualify for section 501(c)(3)
>         status if a substantial part of its activities is attempting to
>         influence legislation (commonly known as lobbying).  A 501(c)(3)
>         organization may engage in some lobbying, but too much
>         lobbying activity risks loss of tax-exempt status.
>
> What a non-commercial station can do for a calling for action for an
> underwriting announcement. As a non-commercial station you can't tell
> folks to go out and buy that car, go down to dine at a restaurant etc.
> You can identify an underwriter such as name, street and telephone
> number, but you can't describe them as "the best" or tell folks to check
> them out as they are a supporter of the station.
>
> Tim
>
> On 2/5/22 7:32 PM, Kim Kaufman via grc wrote:
> > Thanks. Pacifica has FCC counsel, of course, but as the board Treasurer
> for KPFK I can’t incur any legal costs. Wanted to check with the collective
> wisdom here first.
> >
> >
> >
> > Kim
> >
> >
> >
> > From: Philip Tymon <philiptymon at gmail.com>
> > Sent: Saturday, February 5, 2022 6:21 PM
> > To: Kim Kaufman <kim.kaufman at att.net>
> > Cc: Tracy Rosenberg <tracy at media-alliance.org>; Ken Freedman <
> kenfmu at gmail.com>; GRC <grc at maillist.peak.org>
> > Subject: Re: [grc] FCC reg re "call to action"
> >
> >
> >
> > As others have said, the phrase "call to action" derives from the
> underwriting realm. It has nothing to do with politics or anything like
> that.
> >
> >
> > As others have also said, the station itself cannot endorse a political
> candidate or spend an excessive amount of time supporting a specific
> candidate or legislation.
> > (As an aside, stations are allowed to "editorialize", but very few, if
> any, actually do--- it's almost always more trouble than it's worth. There
> was a regulation that banned most NCE's from editorializing, but it was
> overturned by the Supreme Court.)
> >
> >
> >
> > But, usually, as far as I know, specific programmers can endorse
> candidates, support legislation, urge people to go to demonstrations, etc.
> as long as it is very clear that they speak for themselves and are not
> speaking "officially" for the station as a whole. And as long as what they
> are  advocating is legal. And as long as this sort of stuff is not
> "excessive", thereby endangering your non-profit status.
> >
> > In any specific situation, it is really best if you consult a lawyer who
> specializes in FCC work, especially for non-commercial stations (even if it
> is an IRS situation, they will likely know the regs). If you don't have a
> regular FCC lawyer, it might be worth establishing a relationship with one.
> They can help steer you clear of big trouble.
> >
> >
> > Regarding your other concern, anyone can sue anyone for pretty much
> anything. All you have to do is file a piece of paper in court. And, yes,
> it is a pain in the ass if you get sued, no matter how stupid or ridiculous
> the lawsuit is.
> >
> > The real question, then, is would such a lawsuit be taken seriously.
> Probably not--- I've never heard of anything like that ever happening. But,
> these days, you just never know. Nothing would surprise me.
> >
> > So, I really don't think anyone on here can give you a definitive
> answer. There is certainly no "law" against it, I'm sure plenty of people
> on radio and TV, NCE or not, have urged people to attend rallies,
> demonstrations, etc. As long as you don't urge people to engage in violence
> or other illegal activities, I don't think it's illegal.
> >
> > The best advice I can give would be to consult with your FCC attorney,
> any local attorney you might have or use (regarding local law in your state
> or city) and your insurance company. Probably most important is your
> insurance company to be sure that if someone does sue you, you're covered
> and they will either provide an attorney or cover any legal fees.
> >
> > You might also contact NFCB to see if they have any advice.
> >
> > Regarding insurance, I have been sued a number of times, both personally
> and in the context of being a station manager The majority of the suits
> have been nuisance suits-- but having insurance for such events is
> critical. You simply cannot handle such things on your own, and the
> technicalities and paperwork and time involved are beyond the ability of
> anyone but a regularly practicing attorney to handle. And if, God forbid,
> you lose-- well, it could bankrupt you. If you're insured, you just turn it
> over to your insurance company lawyer and they handle everything. In most
> cases, after about a year of back and forth the insurance company will
> settle the nuisance suit for a very small amount, it is much cheaper than
> fighting it in court.
> >
> >
> >
> > Good luck.
> >
> >
> >
> >
> >
> >
> >
> > On Sat, Feb 5, 2022 at 5:24 PM Kim Kaufman via grc <
> grc at maillist.peak.org <mailto:grc at maillist.peak.org> > wrote:
> >
> > I don’t want to get into the specifics of the issue but it is definitely
> not an underwriting issue Probably more IRS problem.
> >
> >
> >
> > Further, I was told, related but not the same as the issue I’m dealing
> with, is that a “call to action” could provide legal liability if a host
> tells listeners to go to, say, a demonstration, and if there was, say,
> violence, and the listener got hurt. They could sue Pacifica for telling
> them to go. Who knows where the lawsuit might go but it would obviously
> cost time and money to deal with.
> >
> >
> >
> > Thanks for all the suggestions.
> >
> >
> >
> > Kim
> >
> >
> >
> > From: Tracy Rosenberg <tracy at media-alliance.org <mailto:
> tracy at media-alliance.org> >
> > Sent: Saturday, February 5, 2022 4:39 PM
> > To: Ken Freedman <kenfmu at gmail.com <mailto:kenfmu at gmail.com> >
> > Cc: Kim Kaufman <kim.kaufman at att.net <mailto:kim.kaufman at att.net> >;
> GRC <grc at maillist.peak.org <mailto:grc at maillist.peak.org> >
> > Subject: Re: [grc] FCC reg re "call to action"
> >
> >
> >
> > And it is important to say that the IRS rule mostly focuses on
> candidates, not on legislation or policy. Hypothetically, if you spent
> literally the majority of your time as a 501c3 working on legislation, you
> >
> > would be running afoul of 501c3 regulations, but there is literally no
> scenario where a radio station could possibly do that. So the key for radio
> stations is not to endorse or oppose particular candidates.
> >
> >
> >
> > The FCC prohibitions are part of the underwriting rules and mostly
> relate to sponsorships and commercial call to actions. In other words,
> underwritten announcements are not supposed to constitute
> >
> > specific calls to buy products so they don't sound too much like
> commercials. So the nexus is a remuneration to the station related to the
> announcement. A call to action makes it sound very activisty, but
> >
> > that is really not what the FCC is talking about. They are talking about
> underwritten announcements.
> >
> >
> >
> > - Tracy
> >
> >
> >
> > On Sat, Feb 5, 2022 at 4:33 PM Ken Freedman via grc <
> grc at maillist.peak.org <mailto:grc at maillist.peak.org>  <mailto:
> grc at maillist.peak.org <mailto:grc at maillist.peak.org> > > wrote:
> >
> > Hi Kim -
> >
> > I think what you’re referring to is an IRS and not an FCC rule. The IRS
> prohibits 501-c-3 organizations from spending a significant amount of time
> or money trying to effect elections or legislation.
> >
> > Ken Freedman
> >
> > Sent. From. Phone.
> >
> >> On Feb 5, 2022, at 5:40 PM, Kim Kaufman via grc <grc at maillist.peak.org
> <mailto:grc at maillist.peak.org>  <mailto:grc at maillist.peak.org <mailto:
> grc at maillist.peak.org> > > wrote:
> >>
> >> Hi all -
> >>
> >> My understanding is that NCE's can't do "call to action" things,
> especially around fed legislation. Does anyone know the FCC reg for this or
> where to find it?
> >>
> >> Thank you.
> >>
> >> Kim Kaufman
> >> KPFK LSB Treasurer
> >>
> >>
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