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FCC opens inquiry into Entercom radio stations over campaign ad charges

The Federal Communications Commission is looking into a claim that several Entercom Communications radio stations here overcharged a congressional candidate for ads she purchased in 2018.

The complaint made to the FCC contends the stations charged the candidate a higher rate than that paid by commercial advertisers such as law firms and auto dealerships, in violation of federal law. However, the name included in the email, Jackie Drost, does not match that of any candidate for Congress here or elsewhere.

In letters of inquiry sent to Entercom, the agency has asked the company to provide documentation on paid advertising and unpaid issue ads aired on WBEN-AM, WGR-AM, WTSS-FM and four other local stations.

Entercom, in its response, acknowledged that it had not posted required information about last year's campaigns on its website until January but said this was an inadvertent error and denied any violation of federal law.

Grand Island Supervisor Nathan McMurray this week also received an anonymous note at Town Hall claiming he was charged too much for ads he ran on the stations during his unsuccessful campaign against Rep. Chris Collins last fall.

"These are very serious allegations, and we need to see where they go to," McMurray said in an interview.

In an emailed statement, Entercom acknowledged the investigation, saying: "We are working directly with the FCC on this matter. We will not be commenting further."

The airwaves used by TV and radio stations to broadcast their content are viewed as a public utility, or public trust, and as a result are highly regulated, said Mark Bartholomew, a University at Buffalo law professor.

"I think they should be worried," he said of Entercom. "Nobody likes to be the target of a government investigation. The FCC has powers to levy fines."

Federal communications law governs who must be given access to TV and radio airtime, how much they should pay and how that use of airtime should be documented, according to the Fletcher, Heald & Hildreth law firm's CommLawBlog. Some provisions of federal law, such as the "equal time" rule that requires all candidates for the same office to have the same access to the airwaves at the same cost, are more familiar.

But others aren't as well-known. The McMurray campaign, for example, last year accused Collins of violating federal law by not including a disclaimer at the end of a TV ad that ran for a full four seconds.

In TV ad, Collins' fleeting image could cost him

The complaint filed Dec. 13 hinges on the "lowest unit charge" rule, which means that stations can't gouge political candidates for airtime and must charge the lowest rate available to any advertiser at the time the candidate booked the ad. This rule is in effect only during certain periods before primary day and Election Day.

The complaint accuses Entercom radio stations of charging a congressional candidate identified as Jackie Drost four or five times what the stations charged businesses for the same air time.

In an email, the person urged the FCC to seek invoices for the rates charged to Cellino and Barnes, Mavis Discount Tire and other commercial advertisers.

The email, which did not identify a political party for Drost, did not accuse Entercom of providing the opponent, who wasn't named, with cheaper airtime. The Buffalo News emailed the account used to file the FCC complaint but did not receive a reply.

The FCC responded to the Drost complaint by writing to Entercom on Jan. 28. The FCC letter states agency employees were unable to verify the complaint because WBEN, WGR and WTSS did not post any records of requests for political ad time in 2018 online and may have "willfully and repeatedly" violated federal law requiring this documentation.

The agency sought this information for the three stations by Feb. 28.

Entercom's Feb. 28 response said it had no record of Drost seeking airtime. Further, because the company also found no record of her running for Congress it contends she was not an eligible candidate and therefore Entercom did not run afoul of the "lowest unit charge" rule.

The company posted the 2018 political records, including invoices of the rates charged to various local candidates for Congress, State Assembly and other offices, on Jan. 28, the date it received the FCC letter.

"Unfortunately, due to an inadvertent oversight the procedures broke down here with respect to the stations’ political file," wrote Laura M. Berman, Entercom's senior counsel.

The FCC sent a follow-up letter on March 5 expanding its inquiry. The agency added Entercom stations WLKK-FM, WWWS-AM, WWKB-AM and WKSE-FM to the case.

The FCC is now seeking information on both paid candidate ads and "non-candidate issue ads" for all seven stations. It set an April 4 deadline for a response.

Hardwick, an Erie County legislator and Canisius College political scientist who previously hosted a political talk show on WBEN, said he never had any concerns of paying an exorbitant rate when he bought political ads from an Entercom station. He said the station employees are well-versed in the rules they must work under.

The closest and highest-profile local congressional race in 2018 pitted Collins, the incumbent Clarence Republican, against the Democrat McMurray.

Collins narrowly won his re-election fight in the Republican-dominated district, despite an indictment on federal insider trading charges, which he is fighting.

Candidate ad invoices provided by Entercom to the FCC show Collins and McMurray paid the same rates for ads of the same length running at the same time, a Buffalo News review found.

For example, on Nov. 5, the day before Election Day, both campaigns paid $110 each for one-minute ads that aired between 4 and 9 p.m. on WBEN.

Entercom did not provide documentation for how much commercial advertisers paid for their ads.

McMurray told The News he played no role in the FCC complaint.

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