Internet Communication Disclaimers, 63567-63569 [2011-26414]
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Issued in Washington, DC, on October 5,
2011.
LaTanya R. Butler,
Acting Deputy Committee Management
Officer.
[FR Doc. 2011–26479 Filed 10–12–11; 8:45 am]
BILLING CODE 6450–01–P
FEDERAL ELECTION COMMISSION
11 CFR Part 110
[Notice 2011–14]
Internet Communication Disclaimers
Federal Election Commission.
Advance Notice of Proposed
Rulemaking.
AGENCY:
ACTION:
The Federal Election
Commission requests comments on
whether to begin a rulemaking to revise
its regulations concerning disclaimers
on certain Internet communications
and, if so, what changes should be made
to those rules. The Commission intends
to review the comments received as it
decides what revisions, if any, it will
propose making to these rules.
DATES: Comments must be received on
or before November 14, 2011. The
Commission will determine at a later
date whether to hold a public hearing
on this Notice. If a hearing is to be held,
the Commission will publish a notice in
the Federal Register announcing the
date and time of the hearing.
ADDRESSES: All comments must be in
writing. Comments may be submitted
electronically via the Commission’s
Web site at https://www.fec.gov/fosers.
Commenters are encouraged to submit
comments electronically to ensure
timely receipt and consideration.
Alternatively, comments may be
submitted in paper form. Paper
comments must be sent to the Federal
Election Commission, Attn.: Amy L.
Rothstein, Assistant General Counsel,
999 E Street, NW., Washington, DC
20463. All comments must include the
full name and postal service address of
the commenter, and of each commenter
if filed jointly, or they will not be
considered. The Commission will post
comments on its Web site at the
conclusion of the comment period.
SUMMARY:
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Ms.
Amy L. Rothstein, Assistant General
Counsel, or Ms. Jessica Selinkoff,
Attorney, 999 E Street, NW.,
Washington, DC 20463, (202) 694–1650
or (800) 424–9530.
SUPPLEMENTARY INFORMATION: The
Federal Election Commission is
publishing this Advance Notice of
Proposed Rulemaking seeking
comments on whether and how the
Commission should revise its rules at 11
CFR 110.11 regarding disclaimers on
Internet communications. Specifically,
the Commission is considering whether
to modify the disclaimer requirements
for certain Internet communications, or
to provide exceptions thereto, consistent
with the Federal Election Campaign Act,
2 U.S.C. 431 et seq., as amended (‘‘the
Act’’). In the event the Commission
adopts a final rule on this issue, given
the timeframe of the current election
cycle, the Commission does not
anticipate the rule would become
effective for the 2011–2012 election
cycle.
FOR FURTHER INFORMATION CONTACT:
1. Current Statutory and Regulatory
Framework
Under the Act and Commission
regulations, a ‘‘disclaimer’’ is a
statement that must appear on certain
communications to identify who paid
for them and, where applicable, whether
the communications were authorized by
a candidate. 2 U.S.C. 441d(a); 11 CFR
110.11. See also Explanation and
Justification for Final Rules on
Disclaimers, Fraudulent Solicitations,
Civil Penalties, and Personal Use of
Campaign Funds, 67 FR 76962, 76962
(Dec. 13, 2002) (‘‘2002 Disclaimer
E&J’’).1 With some exceptions, the Act
and Commission regulations require
disclaimers for public communications:
(1) Made by a political committee; (2)
that expressly advocate the election or
defeat of a clearly identified Federal
candidate; or (3) that solicit a
contribution. 2 U.S.C. 441d(a); 11 CFR
110.11(a). In addition to public
communications by political
committees, ‘‘electronic mail of more
than 500 substantially similar
communications when sent by a
political committee * * * and all
Internet Web sites of political
committees available to the general
public’’ also must have disclaimers. 11
CFR 110.11(a).
While the term ‘‘public
communication’’ generally does not
include Internet communications, it
does include ‘‘communications placed
for a fee on another person’s Web site.’’
1 Documents related to Commission rulemakings
are available at https://www.fec.gov/fosers.
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11 CFR 100.26. Thus, communications
placed for a fee on another person’s Web
site are subject to the disclaimer
requirements. See 11 CFR 110.11(a).
The content of the disclaimer that
must appear on a given communication
depends on who authorized and paid
for the communication. If a candidate,
an authorized committee of a candidate,
or an agent of either pays for and
authorizes the communication, then the
disclaimer must state that the
communication ‘‘has been paid for by
the authorized political committee.’’ 11
CFR 110.11(b)(l); see also 2 U.S.C.
441d(a)(1). If a public communication is
paid for by someone else, but is
authorized by a candidate, an
authorized committee of a candidate, or
an agent of either, then the disclaimer
must state who paid for the
communication and that the
communication is authorized by the
candidate, authorized committee of the
candidate, or an agent of either. 11 CFR
110.11(b)(2); see also 2 U.S.C.
441d(a)(2). If the communication is not
authorized by a candidate, an
authorized committee of a candidate, or
an agent of either, then the disclaimer
must ‘‘clearly state the full name and
permanent street address, telephone
number, or World Wide Web address of
the person who paid for the
communication, and that the
communication is not authorized by any
candidate or candidate’s committee.’’ 11
CFR 110.11(b)(3); see also 2 U.S.C.
441d(a)(3). Every disclaimer ‘‘must be
presented in a clear and conspicuous
manner, to give the reader, observer, or
listener adequate notice of the identity’’
of the communication’s sponsor. 11 CFR
110.11(c)(1).
Commission regulations contain
limited exceptions to the general
disclaimer requirements. For example,
disclaimers are not required for
communications placed on ‘‘[b]umper
stickers, pins, buttons, pens, and similar
small items upon which the disclaimer
cannot be conveniently printed.’’ 11
CFR 110.11(f)(1)(i) (the ‘‘small items
exception’’). Nor are disclaimers
required for ‘‘[s]kywriting, water towers,
wearing apparel, or other means of
displaying an advertisement of such a
nature that the inclusion of a disclaimer
would be impracticable.’’ 11 CFR
110.11(f)(1)(ii) (the ‘‘impracticable
exception’’). See also Advisory Opinion
2002–09 (Target Wireless).
2. Recent Developments Concerning
Internet Advertisements
The Commission recently considered
two advisory opinion requests seeking
to exempt from the disclaimer
requirements, under the small items or
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impracticable exceptions, certain
advertisements placed for a fee on
another person’s Web site. In the first of
these advisory opinion requests, Google,
Inc. asked the Commission if it could
sell text advertisements consisting of
approximately 95 characters to
candidates and political committees if
those advertisements did not include
disclaimers. Google proposed that users
would see a disclaimer by clicking on
the advertisement and viewing the
disclaimer on the advertisement’s
landing page. See Advisory Opinion
Request 2010–19 (Google).2 While the
Commission did not agree on the reason
for its decision, it concluded that such
advertisements were not in violation of
the Act. See Advisory Opinion 2010–19
(Google).
In the second advisory opinion
request on this issue, Facebook asked if
its small, character-limited
advertisements (ranging from zero to
160 characters) qualified for either the
small items or impracticable exception
to the disclaimer requirements. See
Advisory Opinion Request 2011–09
(Facebook). The Commission could not
approve an answer by the required four
affirmative votes and therefore was
unable to render an advisory opinion to
Facebook.
In the course of considering these
advisory opinion requests, the
Commission received one comment
from the public urging the Commission
to undertake a rulemaking to address
the disclaimer requirements in light of
technological developments in Internet
advertising. The Commission is now
considering whether to issue an NPRM
to propose amending its rules in this
area. The Commission seeks to provide
‘‘much needed flexibility to ensure that
the regulated community is able to take
advantage of rapidly evolving
technological innovations, while
ensuring that ‘necessary precautions’ are
in place.’’ Advisory Opinion 2007–30
(Dodd); see also Advisory Opinion
1999–09 (Bradley) (explaining that it is
the Commission’s practice to
‘‘interpret[] the Act and its regulations
in a manner consistent with
contemporary technological innovations
* * * where the use of the technology
would not compromise the intent of the
Act or regulations.’’). The Supreme
Court has explained that the disclaimers
required by 2 U.S.C. 441d ‘‘provide the
electorate with information and insure
that the voters are fully informed about
the person or group who is speaking.’’
Citizens United v. FEC, 130 S.Ct. 876,
2 Documents related to Commission advisory
opinions are available at https://www.fec.gov/
searchao.
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915, 78 U.S.L.W. 4078 (2010) (internal
quotations and alterations removed).
Given the development and
proliferation of the Internet as a mode
of political communication, and the
expectation that continued
technological advances will further
enhance the quantity of information
available to voters online and through
other technological means, the
Commission welcomes comments on
whether and how it should amend its
disclaimer requirements for public
communications on the Internet to
provide flexibility consistent with their
purpose.
3. Commission Regulations Concerning
Internet Communications
The Commission has long recognized
the vital role of the Internet and
electronic communications in election
campaigns. The Commission first
addressed Internet disclaimers in 1995
when it stated that ‘‘Internet
communications and solicitations that
constitute general public political
advertising require disclaimers.’’ See
Explanation and Justification for Final
Rules on Communications Disclaimer
Requirements, 60 FR 52069, 52071 (Oct.
5, 1995) (‘‘1995 Disclaimer E&J’’).
That same year, the Commission
considered two advisory opinion
requests regarding the application of the
Act to Internet solicitations of campaign
contributions. See Advisory Opinions
1995–35 (Alexander for President) and
1995–09 (NewtWatch). The Commission
determined that Internet solicitations
are general public political
advertisements and, as such, they ‘‘are
permissible under the [Act] provided
that certain requirements, including the
use of appropriate disclaimers, are met.’’
Advisory Opinion 1995–35
(NewtWatch).
In 2002, Congress enacted the
Bipartisan Campaign Reform Act of
2002, Public Law 107–155, 116 Stat. 81
(2002) (‘‘BCRA’’). In BCRA, Congress
added new specificity to the disclaimer
requirements, expanded the scope of
communications covered by the
disclaimer requirements, and enacted
‘‘stand by your ad’’ requirements.
Congress also added a new definition of
the term ‘‘public communication.’’ See
2 U.S.C. 431(22) and 441d; see also 2002
Disclaimer E&J, 67 FR at 76962.
In implementing BCRA, the
Commission promulgated a new
definition of ‘‘public communication’’
that excluded all communications over
the Internet. See Explanation and
Justification for Final Rules on
Prohibited and Excessive Contributions:
Non-Federal Funds or Soft Money, 67
FR 49064, 49111 (July 29, 2002). The
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Commission also promulgated new
rules to implement BCRA’s changes to
the disclaimer provisions of the Act. See
2002 Disclaimer E&J, 67 FR at 76962.
The new rules applied disclaimer
requirements to political committee
Web sites and the distribution of more
than 500 substantially similar
unsolicited e-mails. Other than these
two specific types of Internet-based
activities, however, Internet
communications were not subject to the
disclaimer requirements. Id. at 76963–
64.
The Commission adopted its current
rules governing Internet
communications in 2006 in response to
the decision of the U.S. District Court
for the District of Columbia in Shays v.
FEC. See Shays v. FEC, 337 F.Supp.2d
28 (D.D.C. 2004) (‘‘Shays I’’); see also
Explanation and Justification for Final
Rules on Internet Communications, 71
FR 18589, 18589 (Apr. 12, 2006) (‘‘2006
Internet E&J’’). That decision held,
among other things, that the
Commission could not wholly exclude
Internet activity from the definition of
‘‘public communication.’’
Following the Shays I decision, the
Commission added ‘‘Internet
communications placed on another
person’s Web site for a fee’’ to the
regulatory definition of ‘‘public
communication.’’ See 11 CFR 100.26.
Under the new definition, ‘‘when
someone such as an individual, political
committee, labor organization or
corporation pays a fee to place a banner,
video, or pop-up advertisement on
another person’s Web site, the person
paying makes a ‘public
communication.’ ’’ 2006 Internet E&J at
18594. Furthermore, ‘‘the placement of
advertising on another person’s Web site
for a fee includes all potential forms of
advertising, such as banner
advertisements, streaming video, popup
advertisements, and directed search
results.’’ Id. At the same time, however,
the Commission confirmed that the
‘‘vast majority of Internet
communications * * * remain free from
campaign finance regulation.’’ Id. at
18590. Because the disclaimer
requirement ‘‘incorporate[d] the revised
definition of ‘public communication,’ ’’
Internet communications placed for a
fee on another person’s Web site became
subject to the disclaimer requirement.
Id. at 18589–90; see also id. at 18594.
4. Possible Revisions to Commission
Regulations
The Commission invites comments
that address the ways that campaigns,
political committees, voters, and others
are using, or may soon use, the Internet
and other technologies, including
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applications for mobile devices
(‘‘apps’’), to disseminate and receive
campaign and other electoral
information. The Commission also
invites commenters to address the ways
in which the Internet and other
technologies present challenges in
complying with the disclaimer
requirements under the existing rules.
The Commission is interested in
comments that address possible
modifications, such as by technological
alternatives, to the current disclaimer
requirements. For example, the
California Fair Political Practices
Commission (‘‘CFPPC’’) recently
amended its regulations regarding paid
campaign advertisements to address the
issue of disclaimers in electronic media
advertisements that are limited in size.
See Cal. Code Regs. tit. 2, sec. 18450.4
(effective December 2010). Instead of
exempting all small communications
from the disclaimer requirements,
CFPPC’s new regulation provides that
small advertisements may use
technological features such as rollover
displays, links to a Web page, or ‘‘other
technological means’’ to meet the
requirements. Id. at sec.
18450.4(b)(3)(G)(1). The California
regulation contains the following
examples of ‘‘limited’’ size
advertisements: a ‘‘micro bar,’’ a ‘‘button
ad,’’ a paid text advertisement under
500 characters, or a small picture or
graphic link. Id. The California
regulation further provides that, ‘‘In
electronic media advertisements whose
size, space, or character limit
constraints (i.e., SMS text message)
render it impracticable to include the
full disclosure information * * * the
candidate or committee sending the
mass mailing may provide abbreviated
advertisement disclosure containing at
least the committee’s [Fair Political
Practices Commission number] and
when technologically possible a link to
the Web page on the Secretary of State’s
Web site displaying the committee’s
campaign finance information, if
applicable.’’ Id. at sec.
18450.4(b)(3)(G)(4). Should the
Commission consider abbreviated
advertisement disclosure for Internet
advertisements? The Commission
invites comments that explore the
technological and physical
characteristics that would define a
‘‘small’’ Internet advertisement.
In the Google and Facebook advisory
opinion requests discussed above, the
facts indicated that some Internet
advertisements link to a Web site or
Web page that contains a disclaimer that
complies with the Act and Commission
regulations. Should the Commission
consider allowing such a link, by itself,
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63569
to satisfy the disclaimer requirement? If
so, how should the Commission
approach disclaimer requirements for
links in advertisements that direct
persons to Web sites without
disclaimers or to Web sites owned or
operated by persons other than the
person paying for the advertisement?
The Commission is also interested in
commenters’ data or experiences in
purchasing, selling, or distributing small
or character-limited advertisements
online. The Commission is interested in
comments relating to the appropriate
application of either the small items or
impracticable exception from the
disclaimer requirements to small or
character-limited Internet
advertisements. The Commission is also
interested in comments addressing the
possibility of developing a new
exception for small or character-limited
Internet advertisements that might be
more appropriate for the medium than
the existing regulatory exceptions. The
Commission is interested in learning
what proportion of Internet political
advertising might be affected by such a
disclaimer exception. The Commission
is also interested in comments
addressing what role Internet media
providers’ usual and normal advertising
model should play in the Commission’s
consideration of disclaimer
requirements.
Finally, the Commission welcomes
comments on any other aspect of the
issues addressed in this Notice. Given
the speed at which technological
advances are developing, the
Commission welcomes comments that
address possible regulatory approaches
that might minimize the need for serial
revisions to the Commission’s rules in
order to adapt to new or emerging
Internet technology in the future.
Additionally, the Commission invites
comment on whether there are other
regulations that the Commission should
consider revising in light of new or
emerging Internet technology.
Dated: October 6, 2011.
On behalf of the Commission.
Cynthia L. Bauerly,
Chair, Federal Election Commission.
[FR Doc. 2011–26414 Filed 10–12–11; 8:45 am]
BILLING CODE 6715–01–P
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Agencies
[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Proposed Rules]
[Pages 63567-63569]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-26414]
=======================================================================
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Part 110
[Notice 2011-14]
Internet Communication Disclaimers
AGENCY: Federal Election Commission.
ACTION: Advance Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Election Commission requests comments on whether
to begin a rulemaking to revise its regulations concerning disclaimers
on certain Internet communications and, if so, what changes should be
made to those rules. The Commission intends to review the comments
received as it decides what revisions, if any, it will propose making
to these rules.
DATES: Comments must be received on or before November 14, 2011. The
Commission will determine at a later date whether to hold a public
hearing on this Notice. If a hearing is to be held, the Commission will
publish a notice in the Federal Register announcing the date and time
of the hearing.
ADDRESSES: All comments must be in writing. Comments may be submitted
electronically via the Commission's Web site at https://www.fec.gov/fosers. Commenters are encouraged to submit comments electronically to
ensure timely receipt and consideration. Alternatively, comments may be
submitted in paper form. Paper comments must be sent to the Federal
Election Commission, Attn.: Amy L. Rothstein, Assistant General
Counsel, 999 E Street, NW., Washington, DC 20463. All comments must
include the full name and postal service address of the commenter, and
of each commenter if filed jointly, or they will not be considered. The
Commission will post comments on its Web site at the conclusion of the
comment period.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street, NW.,
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Federal Election Commission is
publishing this Advance Notice of Proposed Rulemaking seeking comments
on whether and how the Commission should revise its rules at 11 CFR
110.11 regarding disclaimers on Internet communications. Specifically,
the Commission is considering whether to modify the disclaimer
requirements for certain Internet communications, or to provide
exceptions thereto, consistent with the Federal Election Campaign Act,
2 U.S.C. 431 et seq., as amended (``the Act''). In the event the
Commission adopts a final rule on this issue, given the timeframe of
the current election cycle, the Commission does not anticipate the rule
would become effective for the 2011-2012 election cycle.
1. Current Statutory and Regulatory Framework
Under the Act and Commission regulations, a ``disclaimer'' is a
statement that must appear on certain communications to identify who
paid for them and, where applicable, whether the communications were
authorized by a candidate. 2 U.S.C. 441d(a); 11 CFR 110.11. See also
Explanation and Justification for Final Rules on Disclaimers,
Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign
Funds, 67 FR 76962, 76962 (Dec. 13, 2002) (``2002 Disclaimer E&J'').\1\
With some exceptions, the Act and Commission regulations require
disclaimers for public communications: (1) Made by a political
committee; (2) that expressly advocate the election or defeat of a
clearly identified Federal candidate; or (3) that solicit a
contribution. 2 U.S.C. 441d(a); 11 CFR 110.11(a). In addition to public
communications by political committees, ``electronic mail of more than
500 substantially similar communications when sent by a political
committee * * * and all Internet Web sites of political committees
available to the general public'' also must have disclaimers. 11 CFR
110.11(a).
---------------------------------------------------------------------------
\1\ Documents related to Commission rulemakings are available at
https://www.fec.gov/fosers.
---------------------------------------------------------------------------
While the term ``public communication'' generally does not include
Internet communications, it does include ``communications placed for a
fee on another person's Web site.''
[[Page 63568]]
11 CFR 100.26. Thus, communications placed for a fee on another
person's Web site are subject to the disclaimer requirements. See 11
CFR 110.11(a).
The content of the disclaimer that must appear on a given
communication depends on who authorized and paid for the communication.
If a candidate, an authorized committee of a candidate, or an agent of
either pays for and authorizes the communication, then the disclaimer
must state that the communication ``has been paid for by the authorized
political committee.'' 11 CFR 110.11(b)(l); see also 2 U.S.C.
441d(a)(1). If a public communication is paid for by someone else, but
is authorized by a candidate, an authorized committee of a candidate,
or an agent of either, then the disclaimer must state who paid for the
communication and that the communication is authorized by the
candidate, authorized committee of the candidate, or an agent of
either. 11 CFR 110.11(b)(2); see also 2 U.S.C. 441d(a)(2). If the
communication is not authorized by a candidate, an authorized committee
of a candidate, or an agent of either, then the disclaimer must
``clearly state the full name and permanent street address, telephone
number, or World Wide Web address of the person who paid for the
communication, and that the communication is not authorized by any
candidate or candidate's committee.'' 11 CFR 110.11(b)(3); see also 2
U.S.C. 441d(a)(3). Every disclaimer ``must be presented in a clear and
conspicuous manner, to give the reader, observer, or listener adequate
notice of the identity'' of the communication's sponsor. 11 CFR
110.11(c)(1).
Commission regulations contain limited exceptions to the general
disclaimer requirements. For example, disclaimers are not required for
communications placed on ``[b]umper stickers, pins, buttons, pens, and
similar small items upon which the disclaimer cannot be conveniently
printed.'' 11 CFR 110.11(f)(1)(i) (the ``small items exception''). Nor
are disclaimers required for ``[s]kywriting, water towers, wearing
apparel, or other means of displaying an advertisement of such a nature
that the inclusion of a disclaimer would be impracticable.'' 11 CFR
110.11(f)(1)(ii) (the ``impracticable exception''). See also Advisory
Opinion 2002-09 (Target Wireless).
2. Recent Developments Concerning Internet Advertisements
The Commission recently considered two advisory opinion requests
seeking to exempt from the disclaimer requirements, under the small
items or impracticable exceptions, certain advertisements placed for a
fee on another person's Web site. In the first of these advisory
opinion requests, Google, Inc. asked the Commission if it could sell
text advertisements consisting of approximately 95 characters to
candidates and political committees if those advertisements did not
include disclaimers. Google proposed that users would see a disclaimer
by clicking on the advertisement and viewing the disclaimer on the
advertisement's landing page. See Advisory Opinion Request 2010-19
(Google).\2\ While the Commission did not agree on the reason for its
decision, it concluded that such advertisements were not in violation
of the Act. See Advisory Opinion 2010-19 (Google).
---------------------------------------------------------------------------
\2\ Documents related to Commission advisory opinions are
available at https://www.fec.gov/searchao.
---------------------------------------------------------------------------
In the second advisory opinion request on this issue, Facebook
asked if its small, character-limited advertisements (ranging from zero
to 160 characters) qualified for either the small items or
impracticable exception to the disclaimer requirements. See Advisory
Opinion Request 2011-09 (Facebook). The Commission could not approve an
answer by the required four affirmative votes and therefore was unable
to render an advisory opinion to Facebook.
In the course of considering these advisory opinion requests, the
Commission received one comment from the public urging the Commission
to undertake a rulemaking to address the disclaimer requirements in
light of technological developments in Internet advertising. The
Commission is now considering whether to issue an NPRM to propose
amending its rules in this area. The Commission seeks to provide ``much
needed flexibility to ensure that the regulated community is able to
take advantage of rapidly evolving technological innovations, while
ensuring that `necessary precautions' are in place.'' Advisory Opinion
2007-30 (Dodd); see also Advisory Opinion 1999-09 (Bradley) (explaining
that it is the Commission's practice to ``interpret[] the Act and its
regulations in a manner consistent with contemporary technological
innovations * * * where the use of the technology would not compromise
the intent of the Act or regulations.''). The Supreme Court has
explained that the disclaimers required by 2 U.S.C. 441d ``provide the
electorate with information and insure that the voters are fully
informed about the person or group who is speaking.'' Citizens United
v. FEC, 130 S.Ct. 876, 915, 78 U.S.L.W. 4078 (2010) (internal
quotations and alterations removed). Given the development and
proliferation of the Internet as a mode of political communication, and
the expectation that continued technological advances will further
enhance the quantity of information available to voters online and
through other technological means, the Commission welcomes comments on
whether and how it should amend its disclaimer requirements for public
communications on the Internet to provide flexibility consistent with
their purpose.
3. Commission Regulations Concerning Internet Communications
The Commission has long recognized the vital role of the Internet
and electronic communications in election campaigns. The Commission
first addressed Internet disclaimers in 1995 when it stated that
``Internet communications and solicitations that constitute general
public political advertising require disclaimers.'' See Explanation and
Justification for Final Rules on Communications Disclaimer
Requirements, 60 FR 52069, 52071 (Oct. 5, 1995) (``1995 Disclaimer
E&J'').
That same year, the Commission considered two advisory opinion
requests regarding the application of the Act to Internet solicitations
of campaign contributions. See Advisory Opinions 1995-35 (Alexander for
President) and 1995-09 (NewtWatch). The Commission determined that
Internet solicitations are general public political advertisements and,
as such, they ``are permissible under the [Act] provided that certain
requirements, including the use of appropriate disclaimers, are met.''
Advisory Opinion 1995-35 (NewtWatch).
In 2002, Congress enacted the Bipartisan Campaign Reform Act of
2002, Public Law 107-155, 116 Stat. 81 (2002) (``BCRA''). In BCRA,
Congress added new specificity to the disclaimer requirements, expanded
the scope of communications covered by the disclaimer requirements, and
enacted ``stand by your ad'' requirements. Congress also added a new
definition of the term ``public communication.'' See 2 U.S.C. 431(22)
and 441d; see also 2002 Disclaimer E&J, 67 FR at 76962.
In implementing BCRA, the Commission promulgated a new definition
of ``public communication'' that excluded all communications over the
Internet. See Explanation and Justification for Final Rules on
Prohibited and Excessive Contributions: Non-Federal Funds or Soft
Money, 67 FR 49064, 49111 (July 29, 2002). The
[[Page 63569]]
Commission also promulgated new rules to implement BCRA's changes to
the disclaimer provisions of the Act. See 2002 Disclaimer E&J, 67 FR at
76962. The new rules applied disclaimer requirements to political
committee Web sites and the distribution of more than 500 substantially
similar unsolicited e-mails. Other than these two specific types of
Internet-based activities, however, Internet communications were not
subject to the disclaimer requirements. Id. at 76963-64.
The Commission adopted its current rules governing Internet
communications in 2006 in response to the decision of the U.S. District
Court for the District of Columbia in Shays v. FEC. See Shays v. FEC,
337 F.Supp.2d 28 (D.D.C. 2004) (``Shays I''); see also Explanation and
Justification for Final Rules on Internet Communications, 71 FR 18589,
18589 (Apr. 12, 2006) (``2006 Internet E&J''). That decision held,
among other things, that the Commission could not wholly exclude
Internet activity from the definition of ``public communication.''
Following the Shays I decision, the Commission added ``Internet
communications placed on another person's Web site for a fee'' to the
regulatory definition of ``public communication.'' See 11 CFR 100.26.
Under the new definition, ``when someone such as an individual,
political committee, labor organization or corporation pays a fee to
place a banner, video, or pop-up advertisement on another person's Web
site, the person paying makes a `public communication.' '' 2006
Internet E&J at 18594. Furthermore, ``the placement of advertising on
another person's Web site for a fee includes all potential forms of
advertising, such as banner advertisements, streaming video, popup
advertisements, and directed search results.'' Id. At the same time,
however, the Commission confirmed that the ``vast majority of Internet
communications * * * remain free from campaign finance regulation.''
Id. at 18590. Because the disclaimer requirement ``incorporate[d] the
revised definition of `public communication,' '' Internet
communications placed for a fee on another person's Web site became
subject to the disclaimer requirement. Id. at 18589-90; see also id. at
18594.
4. Possible Revisions to Commission Regulations
The Commission invites comments that address the ways that
campaigns, political committees, voters, and others are using, or may
soon use, the Internet and other technologies, including applications
for mobile devices (``apps''), to disseminate and receive campaign and
other electoral information. The Commission also invites commenters to
address the ways in which the Internet and other technologies present
challenges in complying with the disclaimer requirements under the
existing rules.
The Commission is interested in comments that address possible
modifications, such as by technological alternatives, to the current
disclaimer requirements. For example, the California Fair Political
Practices Commission (``CFPPC'') recently amended its regulations
regarding paid campaign advertisements to address the issue of
disclaimers in electronic media advertisements that are limited in
size. See Cal. Code Regs. tit. 2, sec. 18450.4 (effective December
2010). Instead of exempting all small communications from the
disclaimer requirements, CFPPC's new regulation provides that small
advertisements may use technological features such as rollover
displays, links to a Web page, or ``other technological means'' to meet
the requirements. Id. at sec. 18450.4(b)(3)(G)(1). The California
regulation contains the following examples of ``limited'' size
advertisements: a ``micro bar,'' a ``button ad,'' a paid text
advertisement under 500 characters, or a small picture or graphic link.
Id. The California regulation further provides that, ``In electronic
media advertisements whose size, space, or character limit constraints
(i.e., SMS text message) render it impracticable to include the full
disclosure information * * * the candidate or committee sending the
mass mailing may provide abbreviated advertisement disclosure
containing at least the committee's [Fair Political Practices
Commission number] and when technologically possible a link to the Web
page on the Secretary of State's Web site displaying the committee's
campaign finance information, if applicable.'' Id. at sec.
18450.4(b)(3)(G)(4). Should the Commission consider abbreviated
advertisement disclosure for Internet advertisements? The Commission
invites comments that explore the technological and physical
characteristics that would define a ``small'' Internet advertisement.
In the Google and Facebook advisory opinion requests discussed
above, the facts indicated that some Internet advertisements link to a
Web site or Web page that contains a disclaimer that complies with the
Act and Commission regulations. Should the Commission consider allowing
such a link, by itself, to satisfy the disclaimer requirement? If so,
how should the Commission approach disclaimer requirements for links in
advertisements that direct persons to Web sites without disclaimers or
to Web sites owned or operated by persons other than the person paying
for the advertisement?
The Commission is also interested in commenters' data or
experiences in purchasing, selling, or distributing small or character-
limited advertisements online. The Commission is interested in comments
relating to the appropriate application of either the small items or
impracticable exception from the disclaimer requirements to small or
character-limited Internet advertisements. The Commission is also
interested in comments addressing the possibility of developing a new
exception for small or character-limited Internet advertisements that
might be more appropriate for the medium than the existing regulatory
exceptions. The Commission is interested in learning what proportion of
Internet political advertising might be affected by such a disclaimer
exception. The Commission is also interested in comments addressing
what role Internet media providers' usual and normal advertising model
should play in the Commission's consideration of disclaimer
requirements.
Finally, the Commission welcomes comments on any other aspect of
the issues addressed in this Notice. Given the speed at which
technological advances are developing, the Commission welcomes comments
that address possible regulatory approaches that might minimize the
need for serial revisions to the Commission's rules in order to adapt
to new or emerging Internet technology in the future. Additionally, the
Commission invites comment on whether there are other regulations that
the Commission should consider revising in light of new or emerging
Internet technology.
Dated: October 6, 2011.
On behalf of the Commission.
Cynthia L. Bauerly,
Chair, Federal Election Commission.
[FR Doc. 2011-26414 Filed 10-12-11; 8:45 am]
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