Ogo’s new radio ad appears not to comply with FCC’s “lowest unit charge” rule

Jim Ogonowski has a new radio ad that talks a lot about immigration and about Niki Tsongas.  Surprise!  You can listen to it here.

The content is utterly predictable and uninteresting (immigration! Niki! oogity boogity!) — except for the last few seconds, which contain the familiar disclaimer, spoken by Ogo:

I’m Jim Ogonowski, and I approve this message.

Problem: that’s not enough.  In addition to the Federal Election Commission, the Federal Communications Commission also regulates election-related radio and TV advertising.  And the Ogo ad appears to be out of compliance with section 315(b) of the Federal Communications Act (47 USC s. 315(b)).  That section provides that political advertising must receive the special “lowest unit charge” rate, provided that the ad complies with the following requirements (emphasis mine):

(2)  Content of broadcasts

(A) In general

In the case of a candidate for Federal office, such candidate shall not be entitled to receive the [lowest unit charge] rate under paragraph (1)(A) for the use of any broadcasting station unless the candidate provides written certification to the broadcast station that the candidate (and any authorized committee of the candidate) shall not make any direct reference to another candidate for the same office, in any broadcast using the rights and conditions of access under this chapter, unless such reference meets the requirements of subparagraph (C) or (D)….

(D)  Radio broadcasts

A candidate meets the requirements of this subparagraph if, in the case of a radio broadcast, the broadcast includes a personal audio statement by the candidate that identifies the candidate, the office the candidate is seeking, and indicates that the candidate has approved the broadcast.

Ogo didn’t say in the ad that he was running for Congress, so he’s not entitled to the “lowest unit charge” for this radio ad.  Highly technical?  You bet.  But them’s the rules.

As far as I can tell, non-compliance with this FCC statute isn’t punishable by a fine, but it does appear that it might end up costing the Ogo campaign extra money, since the radio stations running the ad would be entitled to charge more than the lowest unit charge.

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43 Comments . Leave a comment below.
  1. Oh no.

  2. Olson still there?

    And who's running the communications for his campaign?

    An amateur mistake, releasing an ad that's not up to spec.

  3. David, you aren't a lawyer are you?

    Neither of the paragraphs that you cited suggested that a broadcasting outlet is forbidden to charge the Ogonowski campaign the "lowest unit charge" rate.  The cited paragraphs merely state that the campaign is entitled to the "lowest unit charge" rate only if he or she fulfills certain requirements. 

    There is a substantial, and not so subtle, difference.

    • it's observations like that

      that make me like you even if you are an Arschloch sometimes. 

    • Did I say $quot;forbidden$quot;?

      No.  I said that Ogo is not "entitled" -- i.e., he may not demand -- the lowest unit charge.  Which means that the radio stations may charge him more.  Then again, they may not.  That's why I said the slip-up "might end up costing the Ogo campaign extra money."  Because it might, but then again it might not. 

      I thought that was pretty clear.

      • So this is earth shaking news?

        Any updates on Mrs. Tsongas wardrobe or coiff today?

      • No, you said that...

        Ogo's new radio ad appears not to comply with FCC requirements

        ...Note your own headline.  Your point is somewhat silly.  If you want to suggest that broadcast outlets that charged the Ogonowski campaign the lowest unit charge may be granting the campaign an in-kind campaign contribution (which is how I took it), that would be an issue for the Federal Elections Commission. 

        If you want to suggest that the Ogonowski campaign was defrauding the broadcast outlets into charging the campaign the lowest unit charge when they might not be entitled to it, it strikes me that the broadcast outlets have lawyers who could determine whether or not that was correct.

        If you are trying to suggest that broadcast outlets can't try to negotiate a higher rate, what makes you believe that they didn't try to?  But that the broadcast outlets had unsold ad time and were quite willing to sell the time to the Ogonowski campaign at their lowest rate?

        Just what are you trying to suggest?  Or are you merely interested in damning by inuendo?

        • I take it,then,

          that your only complaint is with the headline.  You concede (as you must) that the body of the post is accurate.

          As for what I'm "suggesting," I'm not "suggesting" anything beyond what I stated in the post.  Your hypotheses are just that -- your hypotheses.  If you want to find out which (if any) of them is accurate, I suggest you get in touch with the Ogo campaign and the stations running the ad.

          • btw,

            in light of CMD's post below, I've edited the headline.

            • It would be more honest if you were to...

              ...show your edits to your headline.  Some of the comments are with respect to the original headline.

              • html doesn't work

                in headlines, so I can't show strikethrough.  And there's a character limit, so I can't both keep the old text and show the new.  You've got the original in your post; readers can figure it out.

                • Append an * (asterisk) to the headline

                  and show the amended headline in text.  It seriously isn't that difficult.

                  I've noticed that more than a few people here and elsewhere have adopted some of the conventions that I've--well, not so much invented, but adopted.

                  Unless there is an acknowledgement of an update, the discussion gets to be terribly confusing.

                  • $quot;It seriously isn't that difficult.$quot;

                    Nor is it that important.  I noted the update in the comments; anyone who cares enough to read the comments will find it perfectly obvious what happened.  And, IMHO, footnotes are a serious disease of legal writing (my former boss, Justice Breyer, almost never uses them).  I find their migration into blogging a truly unfortunate development, and I do not plan to encourage it.

          • Let's analyze this, David

            From your post

            (i)As far as I can tell, non-compliance with this FCC statute isn't punishable by a fine, (ii)but it does appear that it might end up costing the Ogo campaign extra money, (iii) since the radio stations running the ad would be entitled to charge more than the lowest unit charge.

            (i) Possibly; I haven't studied FCC regulations, but irrelevant to the point

            (ii) Maybe, but doubtful; see below

            (iii) The operative issue; if the Ogonowski campaign negotiated the ad rates with the broadcast outlet, it it clear beyond peradventure that the radio stations would not be entitled to charge more than the lowest unit charge if that's what they agreed to.  And, since the ads were obviously known to the stations before they broadcast them (it strains credulity to believe that a broadcast outlet would broadcast something before previewing it), and further since they could have run the Ogonowski request for the "lowest unit charge" issue by their (the stations') lawyers before they agreed to run the ads at those rates, it is clear that they were not defrauded in agreeing to the rates. 

            It may be that the radio stations running the ad would be entitled to try to charge more than the lowest unit charge, what evidence do you have that they did not agree to charge the lowest unit charge?

            So, tell me again, what's the issue?  What are you trying to suggest?

            Regarding the headline issue, I'm sorry, but you are obviously incorrect that I take it,then, that your only complaint is with the headline but your headline is part of your post.  But it should be obvious that I tend to truncating headlines and continue them in the text and that is one way that I avoid--um--ambiguity. 

            Irrespective of that, if your only interest was in telling us about the Federal Communications Act, that might be moderately interesting.  But--since you brought Ogonowski into your FCA tutorial--that was obviously not your intention.  So, just what was your intention in your post, if not to damn by inuendo?

            • As I said,

              I'm not suggesting anything beyond what's in the post.  You can read into it whatever you want.

              • Am I correct in presuming that...

                ...you intended nothing more than to provide a tutorial on the Federal Communications Act?  I'm sorry but that strains credulity, particularly since you linked your tutorial to the Ogonowski campaign, and you have made it clear that you are a Tsongas supporter.*

                Whatever.  The election results will probably be known by 10PM tomorrow night.  Complaining about these things now is a waste of time.

                *I'm in Barney's district, so to me all of this discussion is nothing more than an intellectual exercise.  Hint, though, you might want to consider what your point is before you post a post.

  4. Just another example of a slipshod campaign

    But considering the candidate can't even articulate his position on one of the most compelling issues of the day (that would be health insurance for children) it's not really surprising.

    Good news for Massachusetts radio stations, however: they should be able to demand more for the spots, and will if they are good businesspeople.

    They can use the extra revenues to help them pay for the out of control health care costs the Bush administration has allowed to spiral progressively higher.

  5. $quot;I'm Niki Tsongas, and I approved this message$quot;

    I just went to the Tsongas website, and listened to the video of the 'he's just like George Bush' commercial that she has embedded there.  She says EXACTLY what Jim O. says.  She ALSO doesn't say she's running for Congress.

    So, is this a bonanza for advertisers across the board?

    • Fixed

      So, is this a bonanza for advertisers pedants across the board?


    • No, because Niki's ad is in compliance.

      TV ads are subject to subparagraph (C), not (D) ((D) applies only to radio).

      (C)  Television broadcasts A candidate meets the requirements of this subparagraph if, in the case of a television broadcast, at the end of such broadcast there appears simultaneously, for a period no less than 4 seconds- (i) a clearly identifiable photographic or similar image of the candidate; and (ii) a clearly readable printed statement, identifying the candidate and stating that the candidate has approved the broadcast and that the candidate's authorized committee paid for the broadcast.

      Hey, I don't write the rules.

  6. Headline is accurate but misleading

    Unless I'm missing something, the connotation of that headline is that the Ogonowski campiagn violated some election regulations.

    Upon reading the article, it appears that the campaign may or may not have violated regulations, depending on what they demanded as a rate for ther spot.  We don't know what they demanded, or what they paid.  Indeed, since the spot ran, it is at least somewhat reasdonable to assume that the station was satisfied with what was paid.

    So the real context is that the Ogonowski campiagn may have violated some regulation, but probably not.  In any event, they may have cost themselves money.

    The headline is accurate, but misleading.

  7. Unless you provide some proof

    that Jim did actually get the lowest charge whatever under the FCC, then your entire post is moot.

    • Nonsense.

      I'm simply pointing out that there's a safe harbor in the FCC law; that Ogo doesn't appear to have complied with it; that he's therefore not entitled to lowest unit charge; and that the non-compliance "might" cost his campaign some extra bucks.

      Just a friendly observation.  Nothing more.

  8. * Here

    Namedropping are we?

    And, IMHO, footnotes are a serious disease of legal writing (my former boss, Justice Breyer, almost never uses them).

    You might want to disabuse yourself of your infatuation with Breyer's lack of infatuation with footnotes.  Footnotes, endnotes, or citations to references, are heavily used in most professional scientific papers, books even in the popular science press, and I could go on.  I've even used footnotes or endnotes in documents that I have written and that the federal government has published.  If the text of the footnote/endnote that was originally in a narrative, may be intrusive of the narrative, it should be moved to a footnote/endnote.

    Regarding I noted the update in the comments some of us don't read all of the comments.  Not even here.  That is why I suggest using asterisks to indicate some kind of update.

    • Infatuation with footnotes?

      are you implying you have a footnote fetish?

      • I don't have a foot fetish...

        but I investigate footnotes and endnotes of particularly science texts fairly closely.  Odd for a lawyer, I suppose.

        I notice that David has given up trying to explain his point.

        • I've explained it

          over and over.  You just won't accept it.  Your problem, not mine.  There's only so many times I care to bang my head against a brick wall.

          • Can you let my account delete my own comments

            like yours can?

            • No.

              Only admins can delete comments.  But if you want to delete one of your comments, let me know.

              The one of mine that I deleted (entitled "...") just contained tags to close errant html that ended up italicizing everything.  I later put those tags in my comment upthread, so the later one wasn't necessary.

      • Would that be $quot;referencaphilia?$quot;

        Sounds like a dreadful perversion to me.

  9. If Ogo can't minimize campaign costs which are easily understood,

    how is he going to minimize the waste of taxpayer money?  This, I think, is the importance of this post.

  10. Hey, I got a $quot;4$quot; from SchoolZombie!

    Things are looking up!

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