Public radio and television stations are weighing the opportunities and risks of accepting political advertising following a federal court ruling that found an existing ban on such ads violates the First Amendment, and that running them would not undermine public broadcasting’s mission.
The decision by the Ninth Circuit Court of Appeals in California comes as candidates and political action groups are stockpiling millions of dollars for an election year advertising blitz expected to break records. While the ruling applies only to California and eight other western states, it could set a precedent, forcing public broadcasters nationwide to grapple with whether political ads would alienate listeners and viewers they depend on for donations.
“This opens a family-sized can of worms for public broadcasting stations,’’ said John Carroll, a professor of mass communication at Boston University, who often contributes media analysis on WBUR-FM, the state’s largest public radio station. “There’s a ton of political money out there. They want some of that. But they have to weigh that revenue against the potential fallout.’’
In a statement, WBUR general manager Charles Kravetz said the station “is not making any changes to its policy regarding political ads.’’ But, he added, “We’ll continue to monitor this, and discuss its implications for WBUR and public radio.’’
Similarly, Jeanne Hopkins, spokeswoman for rival WGBH-FM, said that the station is still studying the ruling - which could conceivably end up before the US Supreme Court on appeal - but that it doesn’t anticipate accepting political ads.
“The trusted relationship we have with our audiences and the environment we create for our programs is vitally important,’’ Hopkins said.
For politicians, however, the chance to reach a public broadcasting audience would be “a dream come true,’’ according to Michael Goldman, a local consultant to Democrats. Because the Boston radio market is dominated by conservative talk show hosts, such as WTTK-FM’s Michael Graham and WRKO-AM’s Howie Carr, Goldman said, there aren’t many options for moderate or liberal candidates who want to advertise on talk-radio.
Adding public stations to the mix would be “better than Christmas, better than winning the lottery,’’ he said, because their audiences generally favor Democrats.
Political advertising of all kinds is expected to reach $4.9 billion in 2012, according to Wells Fargo Securities LLC media analyst Marci Ryvicker, up 16 percent over 2010 and 27 percent over the 2008 election year.
Laura Martin, an entertainment and Internet analyst for New York investment bank Needham & Co., said spending on political ads on local TV stations alone is expected to reach about $3.2 billion.
“Political advertising could definitely mean incremental revenue for public broadcasting stations,’’ Martin said. “We’re expecting a record year in political advertising, and it will continue to rise.’’
The Federal Communications Commission, which regulates radio and television stations, referred inquiries about the case to the Department of Justice. The Justice Department said it was reviewing the matter and would have no comment.
Even if the ruling survives appeals, however, many observers doubt that public broadcasters will venture into the minefield of political advertising.
“Remember, these stations are officially noncommercial,’’ Carroll said. “Many listeners think they shouldn’t be taking any ads at all.’’
Several West Coast public broadcasting stations that would be affected by the ruling did not return calls.
Richard Malawista, executive director of broadcasting at New England Public Radio stations WFCR-FM and WNNZ-FM in Amherst, said he’s comfortable with current regulations for advertising, which stations prefer to call underwriting. Accepting political ads would bring “complications we don’t really need,’’ Malawista said.
Tom Thomas, co-chief executive of the Station Resource Group, a Washington-based strategy and policy organization that advises public media, said he has heard from a number of stations about the ruling. All of them are waiting for the case to play out, Thomas said, but none have expressed an eagerness to start selling political ads even if it becomes permissible.
“Public broadcasters are acutely aware that the public trust is their most important asset,’’ he said. “Study after study has confirmed that. That sets them apart from the rest of the media landscape.’’
Public broadcasting stations such as WBUR and WGBH are funded through a combination of public and private grants, donations and on-air “underwriting announcements,’’ which are governed by broad rules set by the FCC and more detailed guidelines from national networks, including the Public Broadcasting Service and National Public Radio. Among the requirements for underwriting: no comparative claims, no specific prices; no inducements from sponsors (like free coffee mugs), and no calls to action (“pick up the phone’’).
Last week’s court decision, which caught most public broadcasting outlets by surprise, came about when the Minority Television Project, licensee of KMTP-TV in San Francisco, was fined $10,000 by the FCC for violating the prohibition against noncommercial stations carrying paid advertising for commercial entities. A Ninth Circuit Court of Appeals panel ruled 2-to-1 that those types of ads can rightfully be banned, but that political and public issue spots should be allowed.
“Public issue and political advertisements pose no threat of ‘commercialization,’ ’’ Judge Carlos T. Bea wrote in the majority opinion.
Clifford Harrington, a partner and chairman of the communications practice in the Washington, D.C., office of Pillsbury Winthrop Shaw Pittman LLP, said federal regulators and the Justice Department will probably seek a review of the ruling by a larger panel of Ninth Circuit judges, or ask the Supreme Court to take up the case.
Either way, Harrington said, applying the California decision nationally will be an “uphill battle.’’
Howard Liberman, a communications lawyer and a partner with the Washington law firm Drinker, Biddle & Reath LLP, who represents WERS-FM, Emerson College’s noncommercial radio station, said that if a review by the larger panel of judges is denied, public broadcasting stations outside the California court’s jurisdiction could ask the FCC to stop enforcing the ban on political advertising so that the agency would have a consistent policy nationwide.
“The argument would be that it doesn’t make sense to allow a political campaign to take an ad on a San Francisco public radio station, and not allow them to take an ad on a Boston public radio station,’’ Liberman said.