Marketplace Tech Blogs

Why federal regulations don’t apply to online political campaign ads

Molly Wood, Stephanie Hughes, and Shaheen Ainpour Mar 6, 2018

Among the list of banned advertising on Facebook you’ll find the usual suspects: guns, drugs, porn etc. Also on that list? Bad grammar, and recently added, cryptocurrencies. When it comes to political campaign ads however, the rules are few and far between. Unlike television, radio and print ads, online campaign ads don’t face federal regulations. Marketplace Tech host Molly Wood spoke with Phil Weiser, a professor of law and telecommunications at the University of Colorado and candidate for state attorney general, about the state of online advertising. The following is an edited transcript of their conversation. 

Phil Weiser: There is not a developed regulatory program over internet-based platforms. If you look on TV, there are certain words you can’t see on television, public TV, because the FCC licenses broadcasts license, but in the case of Facebook or Twitter there’s no licensing, there’s no oversight. There aren’t any developed rules.

Molly Wood: And advertising is not considered free speech, right? Sometimes I see this described as a bit of a free speech debate but that doesn’t necessarily apply to commercial advertising does it? 

Weiser: Well, this is a really important area of the law that is still somewhat in flux. The question is whether commercial speech advertising is entitled to the same level of protection as, let’s say, political speech. 

Wood: Well, we know that Facebook in particular has banned certain types of ads — tobacco, drug-related products, weapons and also cryptocurrency. Can broadcasters do the same thing on television or radio? 

Weiser: Generally there is some discretion that parties have about placing ads. The one major exception is political advertising, where the FCC, the Federal Communications Commission, actually has rules requiring the provision of political ads and they give people even certain privilege rates if they do so on broadcast. With respect to Facebook, again, they’re in a somewhat law-free zone. 

Wood: Right. And in fact we’ve been hearing in the last couple of weeks some debate about whether certain campaigns paid more or less, that the Trump campaign may have paid more than the Clinton campaign to advertise on the social network. Would that be legal on TV? 

Weiser: TV. It’s very clear. You have to offer the best available rate for political advertising, that has to be done in a very transparent and equal fashion. With respect to Facebook, there’s no transparency. And we don’t really know what sorts of ranges are being made. Who is buying the ads? How much they’re paying? That’s now being debated in Congress. Mark Warner, for example, has a bill saying that Facebook should be subject to some of the same rules that happens on TV. So the political ads are transparent and that they’re also fair, in terms of who has to pay how much. 

Wood: You know if you look historically have we always been a little bit reactive in this way? Nobody necessarily saw the potential power of Facebook maybe even including Mark Zuckerberg, and now you know the medium has to exist for a while before we get to the rules around ads.

Weiser: Absolutely. If you look back to radio, TV, these technologies developed and regulation followed. Were you to try to regulate before technology develops, it’s really hard to have any idea what you’re doing, so there’s inevitably a lag before something becomes socially significant. 

Wood: What’s the plus side? You know, is there an upside to saying we are going to change the way these rules work? You know, we talk about the unintended consequences in the negative. But, is there upside to what’s happening now? 

Weiser: There’s absolutely an upside which is anytime you get to reconsider from first principles what the rules should be, that can lead you to make better decisions. And so, if there’s a broader debate about what sorts of advertising is allowed on these platforms—what sort of oversight we can have—you can get to better results. 


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