Revisions to Political Programming and Recordkeeping Rules, 48942-48952 [2021-17754]
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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules
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(3) * * *
(i) All officer endorsements as master
on vessels of less than 500 GT in ocean
service.
(ii) All officer endorsements for
master or mate (pilot) of towing vessels
for service on near-coastal waters,
except apprentice mate (steersman) of
towing vessels.
(iii) All officer endorsements for
master or mate (pilot) of towing vessels
for service on Great Lakes, except
apprentice mate (steersman) of towing
vessels.
(iv) All officer endorsements as
master or mate (pilot) of towing vessels
for service on inland waters or Western
Rivers, except apprentice mate
(steersman) of towing vessels.
(A) The Coast Guard will accept a
Coast Guard approved modified basic
firefighting course, which is the basic
firefighting training described in
paragraph (h)(3) of this section modified
to only cover the equipment, fire
prevention procedures, and firefighting
operations required on towing vessels
on inland waters or Western Rivers
routes required in 46 CFR parts 140 and
142. A mariner who completes this
modified basic firefighting course will
be issued an endorsement that is
restricted to inland waters or Western
Rivers.
(B) To increase in scope to Great
Lakes, near-coastal or oceans, the
applicant will be required to complete
the firefighting course appropriate to the
route sought.
*
*
*
*
*
(l) Restrictions. The Coast Guard may
modify the service, training, and
examination requirements in this part to
satisfy the unique qualification
requirements of an applicant or distinct
group of mariners. The Coast Guard may
also lower the age requirement for
OUPV applicants. The authority granted
by an officer endorsement will be
restricted to reflect any modifications
made under the authority of this
paragraph (l).
Dated: August 16, 2021.
J.W. Mauger,
Rear Admiral, U.S. Coast Guard, Assistant
Commandant for Prevention Policy.
[FR Doc. 2021–17945 Filed 8–31–21; 8:45 am]
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47 CFR Parts 25, 73, and 76
[MB Docket No. 21–293; FCC 21–91; FR ID
43007]
Revisions to Political Programming
and Recordkeeping Rules
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the
Commission proposes to update its
political programming and
recordkeeping rules for broadcast
licensees, cable television system
operators, Direct Broadcast Satellite
(DBS) service providers, and Satellite
Digital Audio Radio Service (SDARS)
licensees. The Commission proposes to
update its political programming rules
by adding the use of social media and
the creation of a campaign website to
the existing list of activities that may be
considered in determining whether an
individual running as a write-in
candidate has made a ‘‘substantial
showing’’ of his or her bona fide
candidacy. The Commission also
proposes to update its political
recordkeeping rules by incorporating
provisions which were adopted in the
Bipartisan Campaign Reform Act of
2002.
SUMMARY:
Comments are due on or before
October 1, 2021; reply comments are
due on or before October 18, 2021.
ADDRESSES: You may submit comments,
identified by MB Docket No. 21–293, by
any of the following methods:
• Electronic Filers: Comments may be
filed electronically using the internet by
accessing the ECFS: https://apps.fcc.gov/
ecfs/.
• Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing.
• Filings can be sent by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701.
• U.S. Postal Service first-class,
Express, and Priority mail must be
addressed to 45 L Street NE,
Washington, DC 20554.
• Effective March 19, 2020, and until
further notice, the Commission no
DATES:
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longer accepts any hand or messenger
delivered filings. This is a temporary
measure taken to help protect the health
and safety of individuals, and to
mitigate the transmission of COVID–19.1
• During the time the Commission’s
building is closed to the general public
and until further notice, if more than
one docket or rulemaking number
appears in the caption of a proceeding,
paper filers need not submit two
additional copies for each additional
docket or rulemaking number; an
original and one copy are sufficient.
People with Disabilities. To request
materials in accessible formats for
people with disabilities (braille, large
print, electronic files, audio format),
send an email to fcc504@fcc.gov or call
the Consumer and Governmental Affairs
Bureau at (202) 418–0530.
FOR FURTHER INFORMATION CONTACT: For
additional information on this
proceeding, contact Gary Schonman,
Special Counsel, Federal
Communications Commission, Media
Bureau, Policy Division, Political
Programming Staff, at Gary.Schonman@
fcc.gov or 202–418–1795.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Notice of
Proposed Rulemaking (NPRM), FCC 21–
91, adopted on August 3, 2021, and
released on August 4, 2021. The full text
of this document is available for public
inspection and copying via ECFS at
https://apps.fcc.gov/ecfs and the FCC’s
website at https://docs.fcc.gov/public/
attachments/FCC-21-91A1.pdf.
Documents will be available
electronically in ASCII, Microsoft Word,
and/or Adobe Acrobat. Alternative
formats are available for people with
disabilities (Braille, large print,
electronic files, audio format), by
sending an email to fcc504@fcc.gov or
calling the Commission’s Consumer and
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Synopsis
In this Notice of Proposed
Rulemaking (NPRM), we propose to
update our political programming and
recordkeeping rules for broadcast
licensees, cable television system
operators, Direct Broadcast Satellite
(DBS) service providers, and Satellite
Digital Audio Radio Service (SDARS)
licensees. While the agency has strived
to update its guidance to reflect changes
in law and campaign practices, it has
not undertaken a formal review to
1 See FCC Announces Closure of FCC
Headquarters Open Window and Change in HandDelivery Policy, Public Notice, 35 FCC Rcd 2788
(2020).
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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules
update the political programming and
recordkeeping rules since 1991.2 Given
the substantial growth of such
programming in recent years,3 the
updates proposed in this item are
intended to conform our rules with
statutory amendments, increase
transparency, and account for modern
campaign practices.
We propose two revisions to our
political programming and
recordkeeping rules.4 First, consistent
with modern campaign practices, we
propose to revise the definition of
‘‘legally qualified candidate for public
office’’ to add the use of social media
and creation of a campaign website to
the existing list of activities that may be
considered in determining whether an
individual running as a write-in
candidate has made a ‘‘substantial
showing’’ of his or her bona fide
candidacy.5 Second, we propose to
revise the Commission’s political file
rules to conform with the Bipartisan
Campaign Reform Act of 2002 (BCRA),
which included within the political file
requirements any request for the
purchase of advertising time that
‘‘communicates a message relating to
any political matter of national
importance’’ (i.e., issue ads) and specify
the records that must be maintained.6
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I. Background
In addition to the First Amendment
protections afforded to material aired by
Commission licensees and regulatees,
political programming receives
additional, special protections. Congress
has recognized the great importance of
political programming in the United
States by passing laws to ensure that
those who run for elective office have
access to broadcast and other platforms
so that they may inform citizens of their
positions on critical issues of the day.
Political Programming Obligations.
Political programming obligations for
2 Codification of the Commission’s Political
Programming Policies, MM Docket No. 91–168,
Report and Order, 7 FCC Rcd 678 (1991) (1991
Political Programming Order).
3 John Haltiwanger, Americans are Already
Exhausted with the 2020 Election, and it’s Just
Getting Started. Other Countries Have Laws
Limiting the Length of Campaigns (Feb. 10, 2020),
https://www.businessinsider.com/us-presidentialelections-are-absurdly-long-compared-rest-of-world2020-2 (explaining that the 2020 U.S. Presidential
election would last approximately 1,194 days); Karl
Evers-Hillstrom, Most Expensive Ever: 2020
Election Cost $14.4 Billion (Feb. 11, 2021), https://
www.opensecrets.org/news/2021/02/2020-cyclecost-14p4-billion-doubling-16/ (2020 campaign
spending doubled the amount in 2016).
4 Information in a station’s political file is
available to the public on the Commission-hosted
website at https://publicfiles.fcc.gov/.
5 47 CFR 73.1940(f), 76.5(q).
6 Public Law 107–155, § 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
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certain Commission licensees and
regulatees are set forth in sections
312(a)(7) and 315 of the
Communications Act of 1934, as
amended (Act).7 Section 312(a)(7)
requires broadcast licensees to give
legally qualified candidates for federal
office ‘‘reasonable access’’ to their
facilities, or to permit them to purchase
‘‘reasonable amounts of time on behalf
of their candidacy. .’’ 8 Section 312(a)(7)
of the Act also applies to SDARS
licensees 9 and DBS service providers,10
but it is not applicable to cable system
operators.11 Under section 315(a), if a
broadcast licensee permits one legally
qualified candidate for a public office to
use its station, it must afford all other
candidates for that office an ‘‘equal
opportunity’’ to use the station.12
Section 315(b) provides that, during
certain periods before an election,
legally qualified candidates are entitled
to ‘‘the lowest unit charge of the station
for the same class and amount of time
for the same period.’’ 13 The
requirements in section 315 also apply
to cable system operators,14 SDARS
licensees,15 and DBS service
providers.16 The entitlements embodied
in sections 312(a)(7) and 315 of the Act
7 47
U.S.C. 312(a)(7), 315.
U.S.C. 312(a)(7). See 47 CFR 73.1944.
9 See Establishment of Rules and Policies for the
Digital Audio Radio Satellite Service in the 2310–
2360 MHz Frequency Band, IB Docket No. 95–91,
Gen. Docket No. 90–357, Report and Order
Memorandum Opinion and Order and Further
Notice of Proposed Rulemaking, 12 FCC Rcd 5754,
5792, para. 92 (1997) (extending the political
programming provisions in sections 312(a)(7) and
315 of the Act to SDARS licensees); 47 CFR
25.702(a)–(b).
10 See Implementation of Section 25 of the Cable
Television Consumer Protection and Competition
Act of 1992, Direct Broadcast Satellite Public
Interest Obligations, MM Docket No. 93–205, Report
and Order, 13 FCC Rcd 23254 (1998) (DBS Public
Interest Obligations Report and Order) (establishing
rules applying the political programming rules in
sections 312(a)(7) and 315 of the Act to DBS service
providers, in accordance with section 335 of the
Act), recon. denied, Memorandum Opinion and
Order on Reconsideration of the First Report and
Order, 19 FCC Rcd 5854 (2003) (Order on
ReconsIderation), Order on ReconsIderation
vacated and superseded by Second Order on
Reconsideration of First Report and Order, 19 FCC
Rcd 5647 (2004) (DBS Public Interest Obligations
Sua Sponte ReconsIderation); 47 CFR 25.701(b)–(d).
11 See 1991 Political Programming Order, 7 FCC
Rcd at 679, para. 4.
12 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
13 47 U.S.C. 315(b). Pursuant to section 315(b)(1)
14 Section 315(c) of the Act defines the term
‘‘broadcasting station’’ as including cable television
systems and the terms ‘‘licensee’’ and ‘‘station
licensee’’ as including cable operators. 47 U.S.C.
315(c) (‘‘For purposes of this section—(1) the term
‘broadcasting station’ includes a community
antenna television system; and (2) the terms
‘licensee’ and ‘station licensee’ when used with
respect to a community antenna television system
mean the operator of such system.’’).
15 See supra note 8.
16 See supra note 9.
8 47
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48943
are available only to persons who have
achieved the status of ‘‘legally qualified
candidate.’’ 17
The Communications Act does not
define the term ‘‘legally qualified
candidate,’’ and therefore the
Commission has adopted a definition, as
reflected in § 73.1940.18 Generally, an
individual seeking election (other than
for President or Vice President) must
publicly announce his or her intention
to run for office,19 must be qualified to
hold the office for which he or she is a
candidate,20 and must have qualified for
a place on the ballot or have publicly
committed himself or herself to seeking
election by the write-in method.21 If
seeking election by the write-in method,
the individual, in addition to being
eligible under applicable law to be a
write-in candidate, must make a
‘‘substantial showing’’ that he or she is
a bona fide candidate for the office
being sought.22 Section 73.1940(f) of the
Commission’s rules specifies the
requirements to demonstrate a
‘‘substantial showing’’ of a bona fide
candidacy by providing a nonexclusive
list of activities commonly associated
with political campaigning.
Political Recordkeeping Obligations.
The political recordkeeping
requirements serve to reinforce the
statutory protections for political
programming. The Commission first
adopted rules requiring broadcast
stations to maintain public inspection
files documenting requests for political
advertising time more than 80 years
ago.23 It is crucial that stations maintain
political files that are complete and up
to date because the information in them
directly affects, among other things, the
statutory rights of opposing candidates
to request equal opportunities under
section 315(a) of the Act and present
their positions to the public prior to an
election.2324 Additionally, these files
enable the public to verify that licensees
have complied with their obligations
relating to use of their facilities by
candidates for political office and to
17 While section 312(a)(7) applies only to legally
qualified candidates for federal office, section 315
applies to all candidates for elective office, whether
federal, state, or local.
18 47 CFR 73.1940. Section 76.5(q) of the
Commission’s rules includes an identical definition
of ‘‘legally qualified candidates for public office’’
used for purposes of the political programming
rules governing cable systems. Id. § 76.5(q). The
definition of ‘‘legally qualified candidates for public
office’’ set forth in section 73.1940 also applies for
purposes of the political programming obligations
of DBS providers and SDARS licensees. Id.
§§ 25.701(b)(1), 25.702(a).
19 Id. § 73.1940(a)(1).
20 Id. § 73.1940(a)(2).
21 Id. §§ 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
22 Id. § 73.1940(b)(2).
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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules
obtain information about entities
sponsoring candidate and issue
advertisements.25 The Commission also
has applied political file rules to cable
television system operators,24 DBS
providers,25 and SDARS licensees,26
finding that the rationale for imposing
such requirements on broadcasters
similarly applies to these entities.
In 2002, Congress enacted the BCRA,
which amended section 315 of the
Act.27 The BCRA added new section
315(e) to codify the Commission’s
existing political file obligations by
requiring that information regarding any
request to purchase advertising time
that ‘‘is made on behalf of a legally
qualified candidate for public office’’ be
placed in the political file.28 In addition,
the BCRA expanded the political file
requirements to include any request to
purchase political advertising time that
‘‘communicates a message relating to
any political matter of national
importance.’’ 29 Specifically, section
315(e)(1) of the Act requires licensees to
make available for public inspection a
complete record of each request for the
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25 Review
of the Commission’s Rules Regarding
the Main Studio and Local Public Inspection Files
of Broadcast Television and Radio Stations, MM
Docket No. 97–138, Report and Order, 13 FCC Rcd
15691, 15716, para. 54 (1998). In order for the
public to verify that licensees have complied with
their obligations, the public can visit a particular
station or other entity’s political file on the
Commission-hosted website https://
publicfiles.fcc.gov/.
24 Amendment of Part 76 of the Commission’s
Rules and Regulations Relative to Obligations of
Cable Television Systems to Maintain Public
Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72,
para. 1 (1974); 47 CFR 76.1701.
25 Section 335 of the Act imposes public interest
obligations on DBS providers and requires the
Commission, at a minimum, to apply the access to
broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to
DBS providers. 47 U.S.C. 335(a). The Commission
adopted rules requiring DBS providers to abide by
political file obligations similar to those
requirements placed on terrestrial broadcasters and
cable systems in order to assist in evaluations of
compliance with the political programming rules
and to enable competing candidates to review other
candidates’ advertising access and rates. DBS Public
Interest Obligations Report and Order, 13 FCC Rcd
at 23271, para. 41; DBS Public Interest Obligations
Sua Sponte ReconsIderation, 19 FCC Rcd at 5561,
para. 35; 47 CFR 25.701(d).
26 Expansion of Online Public File Obligations to
Cable and Satellite TV Operators and Broadcast
and Satellite Radio Licensees, MB Docket No. 14–
217, Report and Order, 31 FCC Rcd 526, 537–38,
paras. 26–27 (2016) (Expansion of Online Public
File Obligations); Applications for Consent to the
Transfer of Control of Licenses, XM Satellite Radio
Holdings Inc., Transferor, to Sirius Satellite Radio
Inc., Transferee, MB Docket No. 07–57,
Memorandum Opinion and Order and Report and
Order, 23 FCC Rcd 12348, 12415, para. 146 (2008);
47 CFR 25.702(b).
27 Public Law 107–155, 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
28 47 U.S.C. 315(e)(1).
29 Id.
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purchase of broadcast time by or on
behalf of a legally qualified candidate
and by or on behalf of any other entity
whose ad communicates a message
relating to any political matter of
national importance.
A licensee shall maintain, and make
available for public inspection, a
complete record of a request to purchase
broadcast time that—
(A) is made by or on behalf of a
legally qualified candidate for public
office; or
(B) communicates a message relating
to any political matter of national
importance, including—(i) a legally
qualified candidate; 30
The BCRA, at section 315(e)(2) of the
Act,31 also specifies the kinds of records
that must be maintained in political
files, and it provides, at section
315(e)(3) of the Act, that ‘‘[t]he
information required by [section 315(e)]
shall be placed in a political file as soon
as possible and shall be retained by the
licensee for a period of not less than 2
years.’’ 32
II. Discussion
A. ‘‘Substantial Showing’’ for Write-In
Candidates
In order to update our rules to make
them consistent with present-day
campaign practices, we propose to
amend §§ 73.1940(f) and 76.5(q) of the
Commission’s rules to add the use of
social media and creation of a campaign
website to the list of activities that a
broadcast licensee or cable operator may
consider in determining whether an
individual who is running as a write-in
candidate has made a ‘‘substantial
showing’’ of his or her candidacy.33 The
proposed amendment would recognize
both activities as among the practices
that are now commonly associated with
political campaigning.
Only those individuals who have
achieved the status of ‘‘legally qualified
candidate’’ are entitled to avail
themselves of the benefits and privileges
bestowed by the political programming
rules, including the reasonable access,34
30 The reference to ‘‘licensee’’ in section 315(e)(1)
includes broadcast licensees and cable system
operators, SDARS licensees, and DBS service
providers engaged in origination programming. See
47 CFR 76.5(p), 76.1701, 25.701, 25.702.
31 47 U.S.C. 315(e)(2).
32 Id. Section 315(e)(3). See infra para. 15.
33 47 CFR 73.1940(f), 76.5(q). As we explain
above, the definition of ‘‘legally qualified
candidates for public office’’ set forth in section
73.1940 also applies for purposes of the political
programming obligations of DBS providers and
SDARS licensees. Id. §§ 25.701(b)(1), 25.702(a).
Thus, the analysis and discussion here as well as
revisions to the definition in section 73.1940 would
apply to these entities as well.
34 47 U.S.C. 312(a)(7); 47 CFR 73.1944.
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equal opportunities,35 and lowest unit
charge provisions.36 If seeking election
by the write-in method, an individual,
in addition to being eligible under
applicable law to be a write-in
candidate, must make a ‘‘substantial
showing’’ that he or she is a bona fide
candidate for the office being sought.37
Questions as to whether an individual
who is running as a write-in candidate
has made a ‘‘substantial showing’’
ordinarily arise when such individual
approaches a broadcast station or cable
system and makes a request to purchase
time in furtherance of his or her
candidacy or seeks to avail himself or
herself of equal opportunities.38
Sections 73.1940(f) and 76.5(q) define
what it means to make a ‘‘substantial
showing’’ by listing various activities
that are commonly associated with
political campaigning, including
‘‘making campaign speeches,
distributing campaign literature, issuing
press releases, [and] maintaining a
campaign headquarters.’’ 39
At the time our current rules were
drafted, social media and campaign
websites did not exist. Media coverage
of recent campaigns on the national,
state, and local levels indicates that the
use of social media has become an
activity that bona fide candidates
routinely use to solicit support,
financial contributions, and votes.40
35 47
U.S.C. 315(a); 47 CFR 73.1941, 76.205.
U.S.C. 315(b); 47 CFR 73.1942, 76.206.
37 Id. Sections 73.1940(b)(2), 76.5(q)(2).
38 47 U.S.C. 315(a).
39 47 CFR 73.1940(f), 76.5(q)(5). The Media
Bureau has long required that an individual
claiming to be a ‘‘legally qualified candidate’’ by the
write-in method bears the burden of demonstrating
that he or she has made a ‘‘substantial showing’’ of
a bona fide candidacy. See, e.g., Complaint of
Michael Stephen Levinson, 87 FCC 2d 433, 435
(Broadcast Bur. 1980) (‘‘The burden is on [the
potential candidates] to establish to the stations
from which [they] seek broadcast time under
Section 312 that [they] have ‘engaged to a
substantial degree in activities commonly
associated with political campaigning.’ ’’). Further,
the Media Bureau has held that a broadcaster’s or
cable operator’s determination as to whether a
potential write-in candidate has satisfied the
‘‘substantial showing’’ requirement is entitled to
deference, provided the determination is reasonable
and made in good faith. See Complaint by Michael
Levinson Against Station WXXI–TV, Rochester,
New York, 1 FCC Rcd 1305 (MMB 1986) (Michael
Levinson) (‘‘This agency will review the licensee’s
decision only to determine if it was unreasonable
or made in bad faith.’’); Complaint of Douglas S.
Kraegar Against Radio Station WTLB Utica, New
York, 87 FCC 2d 751, 753 (Broadcast Bur. 1980) (‘‘A
licensee has the discretion to make a good faith
judgment as to the bona fide qualifications of a
write-in candidate.’’). Cf., CBS, Inc. v. FCC, 453 U.S.
367, 387 (1981) (‘‘If broadcasters take the
appropriate factors into account and act reasonably
and in good faith, their decisions will be entitled
to deference even if the Commission’s analysis
would have differed in the first instance.’’).
40 See, e.g., Lata Nott, Political Advertising on
Social Media Platforms (June 26, 2020), https://
36 47
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Federal Register / Vol. 86, No. 167 / Wednesday, September 1, 2021 / Proposed Rules
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Recent articles reveal that bona fide
political campaigns use major social
media platforms to advertise, connect
with supporters, and fundraise 41 and
that such engagement in social media
use, for example, by creating a Twitter
or Facebook account, typically increases
donations for new politicians.42 For
instance, reports of the most recent
election reflect that candidates garnered
support by posting photographs and
hosting chats on Instagram.43 In
addition, social media platforms enable
political campaigns to build support by
disseminating campaign updates 44 and
targeting advertisements to potential
voters,45 and they provide sophisticated
tools to regularly measure user
engagement.46
www.americanbar.org/groups/crsj/publications/
human_rights_magazine_home/voting-in-2020/
political-advertising-on-social-media-platforms/;
Daniel Kreiss, Regina G. Lawrence, and Shannon C.
McGregor, In Their Own Words: Political
Practitioner Accounts of CandIdates, Audiences,
Affordances, Genres, and Timing in Strategic Social
Media Use, 35 Pol. Commc’n 26, 12–13 (2018)
(finding that each social media platform, with
different audiences and capabilities, provides ‘‘a
primary way for candidates to introduce themselves
to vastly dispersed constituencies and build their
support among potential volunteers, donors, and
voters’’).
41 See, e.g., Maria Petrova, Ananya Sen, and Pinar
Yildirim, Social Media and Political Contributions:
The Impact of New Technology on Political
Competition, Management Science, 7–8 (2020)
(Petrova, Social Media and Political Contributions);
Daniel Kreiss and Shannon C. McGregor,
Technology Firms Shape Political Communication:
The Work of Microsoft, Facebook, Twitter, and
Google with Campaigns During the 2016 U.S.
PresIdential Cycle, 35 Pol. Commc’n, 158–59 (2018).
42 Petrova, Social Media and Political
Contributions, at 28.
43 University of Pennsylvania Knowledge @
Wharton, How Social Media Is Shaping Political
Campaigns (Aug. 17, 2020), https://
knowledge.wharton.upenn.edu/article/how-socialmedia-is-shaping-political-campaigns/.
44 See Petrova, Social Media and Political
Contributions, at 5, 26–27 (‘‘[M]ore frequent and
more informative tweets (e.g., including links to
websites, responding to news fast, or more antiestablishment Tweets) are associated with receiving
higher contributions after adopting Twitter.’’).
45 See, e.g., Google Transparency Report Help
Center, Political Advertising on Google FAQs,
https://support.google.com/transparencyreport/
answer/9575640#zippy=%2Cwhat-targetingcriteria-can-be-used-for-election-ads (last visited
May 25, 2021); Snapchat Business Help Center,
Audience Insights, https://businesshelp.snapchat.
com/s/article/audience-insights?language=en_US&_
ga=2.101326145.1539846222.16218797961506173507.1621879796 (last visited May 25,
2021).
46 See, e.g., Facebook Business Help Center,
About Breakdowns, Metrics, and Filtering in Ads
Reporting, https://www.facebook.com/business/
help/264160060861852 (last visited May 25, 2021)
(Ads Reporting allows advertisers to analyze
demographic metrics including country, region, and
designated market region); Google Ads Help, About
Measuring Geographic Performance, https://
support.google.com/google-ads/answer/
2453994?hl=en (last visited May 25, 2021) (Report
Editor generates reports, which can show
performance of ads targeted by location).
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In order that our rules reflect ordinary
campaign practices, we propose to add
the use of social media for the purpose
of promoting or furthering a campaign
for public office to the list of recognized
campaign activities in §§ 73.1940(f) and
76.5(q). We seek comment on this
proposal and the types of campaignrelated activities for which social media
could be used in demonstrating a
substantial showing of a bona fide
candidacy. For instance, a candidate
might use social media to raise funds,
solicit votes, share policy positions, and
engage in digital dialogues with voters.
We note that we are not proposing that
social media presence alone would be
sufficient to support a status of ‘‘legally
qualified candidate’’ but that it would
be an additional indicator of activities
commonly associated with political
campaigning needed to make substantial
showing of a bona fide candidacy.
We also propose to add creation of a
campaign website to the list of
recognized campaign activities in
§§ 73.1940(f) and 76.5(q). Recent articles
indicate that campaign websites, like
social media platforms, are used by
candidates to connect to a wide
audience of potential voters
instantaneously and facilitate direct
communication and fundraising.47
Accordingly, we tentatively conclude
that adding the creation of a campaign
website to the list of recognized
activities is justified for the same
reasons provided in support of
including use of social media. We again
note that a website alone would not be
sufficient to support a status of ‘‘legally
qualified candidate’’ but that it would
be an additional indicator of activities
commonly associated with political
campaigning needed to make substantial
showing of a bona fide candidacy. We
seek comment on this conclusion and
the proposal.
Finally, we seek comment on whether
other activities consistent with modern
campaign practices, such as the use of
digital marketing and advertising,
should be added to the list of recognized
campaign activities in §§ 73.1940(f) and
47 See, e.g., Dick Morris, Direct Democracy and
the internet, 34 Loy. L.A. L. Rev. 1033 (2000); Diana
Owen, New Media and Political Campaigns, The
Oxford Handbook of Pol. Commc’n (2014). (since
2008, campaigns have used websites to incorporate
interactive applications and link to their social
media accounts); Elisa Shearer, Pew Research
Center, CandIdates’ Social Media Outpaces Their
websites and Emails As An Online Campaign News
Sources (2016), https://www.pewresearch.org/facttank/2016/07/20/candidates-social-mediaoutpaces-their-websites-and-emails-as-an-onlinecampaign-news-source/ (while candidates’ social
media posts outpace campaign websites as a source
of online campaign news, campaign websites are
also an important source of online campaign
information).
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76.5(q). If additional activities are
included, should the substantial
showing analysis involve any limiting
factors, such as requiring that the
marketing and advertising be directed
toward persons in areas where votes are
being solicited?
B. Implementation of the BCRA and
Section 315 of the Act
We propose to revise the political file
rules for broadcast licensees, cable
operators, DBS providers, and SDARS
licensees to bring them into conformity
with the BCRA and section 315(e) of the
Act.48 As discussed above, in 2002,
Congress enacted the BCRA, which,
among other things, adopted new
section 315(e) of the Act.49 While the
Commission has advised relevant
parties consistent with the
recordkeeping requirements embodied
in section 315(e), the rules were not
updated. Therefore, the changes that we
are proposing today would conform our
rules to the statutory requirements.
Specifically, section 315(e)(1) codifies
the requirement that information
regarding any request to purchase
advertising time that ‘‘is made on behalf
of a legally qualified candidate for
public office,’’ also known as candidate
ads, be placed in the political file. It also
specifies that the political
recordkeeping obligations include any
request for the purchase of advertising
time that ‘‘communicates a message
relating to any political matter of
national importance,’’ also known as
issue ads.50 Section 315(e)(2) identifies
the specific records that must be placed
in political files for both candidate ads
and issue ads that communicate a
message relating to a political matter of
national importance.51 These records
include whether the request to purchase
broadcast time has been accepted or
rejected, information about the
advertisement(s), and information about
the advertiser. The Commission’s
political file rules for broadcast
licensees, cable television system
operators, DBS providers, and SDARS
licensees currently require these entities
to maintain for public inspection only
those records that relate to requests for
time by or on behalf of candidates for
public office.54 These rules make no
mention of the obligation specified in
section 315(e)(1)(B) of the Act to also
maintain records of requests for time
about issue ads that communicate a
48 47 U.S.C. 315(e); 47 CFR 25.701(d), 25.702(b),
73.1943, 76.1701.
49 Public Law 107–155, § 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
50 47 U.S.C. 315(e)(1)(a) through (b).
51 47 U.S.C. 315(e)(2).
54 47 CFR 25.701(d), 25.702(b), 73.1943, 76.1701.
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message relating to any political matter
of national importance. Our rules
therefore do not fully reflect all of the
statutory requirements. We propose to
revise the political file rules for these
entities to conform with the language in
sections 315(e)(1) and (e)(2) of the Act.
Specifically, we propose to revise these
rules to require these entities to
maintain in their online political
inspection files not only records of each
request for advertising time that is made
by or on behalf of a legally qualified
candidate for public office, but also for
each request for advertising time that
‘‘communicates a message relating to
any political matter of national
importance.’’ 52 In addition, we propose
to revise our rules to list the specific
records that must be maintained in
online political files for both candidate
ads and issue ads, consistent with list
enumerated in section 315(e)(2). These
proposed revisions would implement
Congress’s directive in the BCRA and
ensure our political recordkeeping rules
reflect statutory requirements. We seek
comment on this proposal.53
C. Cost-Benefit Analysis
Finally, we seek comment on the
benefits and costs associated with
adopting the proposed changes. In
addition to any benefits to the public at
large, are there also benefits to industry
through clarification of the obligations
on licensees and regulatees? We also
seek comment on any potential costs
that would be imposed on licensees and
regulatees if we adopt the proposals
contained in this NPRM. In this regard,
we note that the proposed changes
would largely conform our rules to the
requirements of the statute. Comments
should be accompanied by specific data
and analysis supporting claimed costs
and benefits.
III. Procedural Matters
Ex Parte Rules—Permit-But-Disclose.
The proceeding this Notice initiates
shall be treated as a ‘‘permit-butdisclose’’ proceeding in accordance
with the Commission’s ex parte rules.54
Persons making ex parte presentations
must file a copy of any written
presentation or a memorandum
summarizing any oral presentation
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52 47
U.S.C. 315(e)(1)(B).
note that section 315(e)(3) of the Act
provides that ‘‘[t]he information required by
[section 315(e)] shall be placed in a political file as
soon as possible and shall be retained by the
licensee for a period of not less than 2 years.’’ 47
U.S.C. 315(e)(3). Our existing political file rules
already include this requirement. 47 CFR
25.701(d)(2), 25.702(b)(2), 73.1943(c), 76.1701(c).
Therefore, we need not propose changes to these
rules to implement section 315(e)(3).
54 47 CFR 1.1200 et seq.
53 We
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within two business days after the
presentation (unless a different deadline
applicable to the Sunshine period
applies). Persons making oral ex parte
presentations are reminded that
memoranda summarizing the
presentation must (1) list all persons
attending or otherwise participating in
the meeting at which the ex parte
presentation was made, and (2)
summarize all data presented and
arguments made during the
presentation. If the presentation
consisted in whole or in part of the
presentation of data or arguments
already reflected in the presenter’s
written comments, memoranda, or other
filings in the proceeding, the presenter
may provide citations to such data or
arguments in his or her prior comments,
memoranda, or other filings (specifying
the relevant page and/or paragraph
numbers where such data or arguments
can be found) in lieu of summarizing
them in the memorandum. Documents
shown or given to Commission staff
during ex parte meetings are deemed to
be written ex parte presentations and
must be filed consistent with rule
1.1206(b). In proceedings governed by
rule 1.49(f) or for which the
Commission has made available a
method of electronic filing, written ex
parte presentations and memoranda
summarizing oral ex parte
presentations, and all attachments
thereto, must be filed through the
electronic comment filing system
available for that proceeding, and must
be filed in their native format (e.g., .doc,
.xml, .ppt, searchable .pdf). Participants
in this proceeding should familiarize
themselves with the Commission’s ex
parte rules.
Initial Regulatory Flexibility Act
Analysis. The Regulatory Flexibility Act
of 1980, as amended (RFA), requires
that a regulatory flexibility analysis be
prepared for notice and comment
rulemaking proceedings, unless the
agency certifies that ‘‘the rule will not,
if promulgated, have a significant
economic impact on a substantial
number of small entities.’’ 55 The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ In addition, the term
‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act.56 A
55 5
U.S.C. 603.
Section 601(3) (adopting by reference the
definition of ‘‘small business concern’’ in 15 U.S.C.
632). Pursuant to the RFA, the statutory definition
of a small business applies ‘‘unless an agency, after
consultation with the Office of Advocacy of the
Small Business Administration and after
56 Id.
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‘‘small business concern’’ is one which:
(1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
Small Business Administration (SBA).57
With respect to this Notice of
Proposed Rulemaking, an Initial
Regulatory Flexibility Analysis (IRFA)
under the RFA is contained in
Appendix B. Written public comments
are requested on the IFRA and must be
filed in accordance with the same filing
deadlines as comments on this Notice of
Proposed Rulemaking, with a distinct
heading designating them as responses
to the IRFA. In addition, a copy of this
Notice of Proposed Rulemaking and the
IRFA will be sent to the Chief Counsel
for Advocacy of the SBA and will be
published in the Federal Register.
Paperwork Reduction Act. This
document proposes new or modified
information collection requirements.
The Commission, as part of its
continuing effort to reduce paperwork
burdens and pursuant to the Paperwork
Reduction Act of 1995, Public Law 104–
13, invites the general public and the
Office of Management and Budget
(OMB) to comment on these information
collection requirements. In addition,
pursuant to the Small Business
Paperwork Relief Act of 2002, Public
Law 107–198, see 44 U.S.C. 3506(c)(4),
we seek specific comment on how we
might further reduce the information
collection burden for small business
concerns with fewer than 25 employees.
Initial Regulatory Flexibility Act
Analysis
As required by the Regulatory
Flexibility Act of 1980, as amended
(RFA),58 the Commission has prepared
this Initial Regulatory Flexibility
Analysis (IRFA) of the possible
significant economic impact on small
entities of the policies and rules
proposed in this NPRM. The
Commission requests written public
comments on this IRFA. Comments
must be identified as responses to the
IRFA and must be filed by the deadlines
for comments specified in the NPRM.
The Commission will send a copy of the
NPRM, including this IRFA, to the Chief
Counsel for Advocacy of the Small
opportunity for public comment, establishes one or
more definitions of such term which are
appropriate to the activities of the agency and
publishes such definition(s) in the Federal
Register.’’ 5 U.S.C. 601(3).
57 15 U.S.C. 632.
58 5 U.S.C. 603. The RFA, 5 U.S.C. 601–612, has
been amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA), Public
Law 104–121, Title II, 110 Stat. 857 (1996). The
SBREFA was enacted as Title II of the Contract with
America Advancement Act of 1996 (CWAAA).
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Business Administration (SBA).59 In
addition, the NPRM and IRFA (or
summaries thereof) will be published in
the Federal Register.60
Need for, and Objectives of, the
Proposed Rules
While the agency has strived to
update its guidance to reflect changes in
law and campaign practices, it has not
undertaken a formal review to update
the political programming and
recordkeeping rules since 1991.61 Given
the substantial growth of political media
messaging in recent years,62 the updates
proposed in this item are intended to
conform our rules with statutory
amendments, reflect existing practices
and guidance,63 and account for modern
campaign practices.
Sections 312(a)(7) and 315 of the
Communications Act of 1934, as
amended (Act), set forth the political
programming obligations of broadcast
licensees and other Commission
regulatees.64 Section 312(a)(7) requires
59 5
U.S.C. 603(a).
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60 Id.
61 Codification of the Commission’s Political
Programming Policies, MM Docket No. 91–168,
Report and Order, 7 FCC Rcd 678 (1991) (1991
Political Programming Order).
62 John Haltiwanger, Americans are Already
Exhausted with the 2020 Election, and it’s Just
Getting Started. Other Countries Have Laws Limited
the Length of Campaigns (Feb. 10, 2020), https://
www.businessinsider.com/us-presidential-electionsare-absurdly-long-compared-rest-of-world-2020-2
(explaining that the 2020 U.S. Presidential election
would last approximately 1,194 days); Karl EversHillstrom, Most Expensive Ever: 2020 Election Cost
$14.4 Billion (Feb. 11, 2021), https://
www.opensecrets.org/news/2021/02/2020-cyclecost-14p4-billion-doubling-16/ (2020 campaign
spending doubled the amount in 2016).
63 The Commission has a longstanding practice of
providing informal guidance to broadcasters and
other regulatees regarding their political
programming and related recordkeeping obligations
and working with industry representatives to foster
compliance.
64 47 U.S.C. 312(a)(7), 315. The Commission has
concluded that section 312(a)(7) does not apply to
cable operators. 1991 Political Programming Order,
7 FCC Rcd at 679, para. 4. Section 315(c) of the Act
defines the term ‘‘broadcasting station’’ as including
cable television systems and the terms ‘‘licensee’’
and ‘‘station licensee’’ as including cable operators.
47 U.S.C. 315(c) (‘‘For purposes of this section—(1)
the term ‘broadcasting station’ includes a
community antenna television system; and (2) the
terms ‘licensee’ and ‘station licensee’ when used
with respect to a community antenna television
system mean the operator of such system.’’). Thus,
the requirements of section 315 apply to cable
operators as well as broadcast licensees. In 1997,
the Commission extended the political
programming provisions in sections 312(a)(7) and
315 of the Act to SDARS licensees. Establishment
of Rules and Policies for the Digital Audio Radio
Satellite Service in the 2310–2360 MHz Frequency
Band, IB Docket No. 95–91, Gen. Docket No. 90–
357, Report and Order Memorandum Opinion and
Order and Further Notice of Proposed Rulemaking,
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broadcast licensees to give legally
qualified candidates for federal office
‘‘reasonable access’’ to their facilities, or
to permit them to purchase ‘‘reasonable
amounts of time.’’ 65 Under section
315(a), if a broadcast licensee, cable
operator, or other regulatee permits one
legally qualified candidate for a public
office to use its station, it must afford all
other candidates for that office an
‘‘equal opportunity’’ to use the station.66
Section 315(b) provides that, during
certain periods before an election,
legally qualified candidates are entitled
to ‘‘the lowest unit charge of the station
or cable system for the same class and
amount of time for the same period.’’ 67
The entitlements embodied in sections
312(a)(7) and 315 of the Act are
available only to persons who have
achieved the status of ‘‘legally qualified
candidate.’’ 68
Section 73.1940 of the Commission’s
rules defines who is a ‘‘legally qualified
candidate for public office.’’ 69
Generally, an individual seeking
election (other than for President or
Vice President) must publicly announce
his or her intention to run for office,70
must be qualified to hold the office for
which he or she is a candidate,71 and
must have qualified for a place on the
ballot or have publicly committed
himself or herself to seeking election by
12 FCC Rcd 5754, 5792, para. 92 (1997); 47 CFR
25.702(a)–(b). In 1998, in accordance with section
335 of the Act, 47 U.S.C. 335, the Commission
established rules applying the political
programming rules in sections 312(a)(7) and 315 of
the Act to DBS service providers. Implementation
of Section 25 of the Cable Television Consumer
Protection and Competition Act of 1992, Direct
Broadcast Satellite Public Interest Obligations, MM
Docket No. 93–205, Report and Order, 13 FCC Rcd
23254 (1998) (DBS Public Interest Obligations
Report and Order), recon. denied, Memorandum
Opinion and Order on Reconsideration of the First
Report and Order, 19 FCC Rcd 5854 (2003) (Order
on ReconsIderation), Order on ReconsIderation
vacated and superseded by Second Order on
Reconsideration of First Report and Order, 19 FCC
Rcd 5647 (2004) (DBS Public Interest Obligations
Sua Sponte ReconsIderation); 47 CFR 25.701(b)–(d).
65 47 U.S.C. 312(a)(7). See 47 CFR 73.1944.
66 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
67 47 U.S.C. 315(b). See 47 CFR 73.1942, 76.206.
68 While section 312(a)(7) applies only to legally
qualified candidates for federal office, section 315
applies to all candidates for elective office, whether
federal, state, or local.
69 47 CFR 73.1940. Section 76.5(q) of the
Commission’s rules includes an identical definition
of ‘‘legally qualified candidates for public office’’
used for purposes of the political programming
rules governing cable systems. Id. § 76.5(q). The
definition of ‘‘legally qualified candidates for public
office’’ set forth in section 73.1940 also applies for
purposes of the political programming obligations
of DBS providers and SDARS licensees. Id.
§§ 25.701(b)(1), 25.702(a).
70 Id. § 73.1940(a)(1).
71 Id. § 73.1940(a)(2).
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48947
the write-in method.72 If seeking
election by the write-in method, the
individual, in addition to being eligible
under applicable law to be a write-in
candidate, must make a ‘‘substantial
showing’’ that he or she is a bona fide
candidate for the office being sought.73
Section 73.1940(f) of the Commission’s
rules specifies the requirements to
demonstrate a ‘‘substantial showing’’ of
a bona fide candidacy by providing a
nonexclusive list of activities commonly
associated with political campaigning.
The political recordkeeping
requirements serve to reinforce the
statutory protections for political
programming. The Commission first
adopted rules requiring broadcast
stations to maintain public inspection
files documenting requests for political
advertising time more than 80 years
ago.77 It is crucial that stations maintain
political files that are complete and up
to date because the information in them
directly affects, among other things, the
statutory rights of opposing candidates
to request equal opportunities under
section 315(a) of the Act and present
their positions to the public prior to an
election.74 Additionally, these files
enable the public to verify that licensees
have complied with their obligations
relating to use of their facilities by
candidates for political office and to
obtain information about entities
sponsoring candidate and issue
advertisements.75 The Commission also
has applied political file rules to cable
television system operators,76 DBS
72 Id. §§ 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
73 Id. § 73.1940(b)(2).
77 See 3 FR 1691 (1938).
74 Pursuant to section 73.1941(c) of the Rules,
candidates have one week from an opponent’s
initial ‘‘use’’ to request equal opportunities. 47 CFR
73.1941(c). The failure by a station to promptly
upload information about each ‘‘use’’ denies
requesting candidates the notice they need to assert
their statutory rights to equal opportunities in a
timely manner. Standardized and Enhanced
Disclosure Requirements for Television Broadcast
Licensee Public Interest Obligations, MM Docket
Nos. 00–168 and 00–44, Second Report and Order,
27 FCC Rcd 4535, 4562, para. 55 (2012).
75 Review of the Commission’s Rules Regarding
the Main Studio and Local Public Inspection Files
of Broadcast Television and Radio Stations, MM
Docket No. 97–138, Report and Order, 13 FCC Rcd
15691, 15716, para. 54 (1998).
76 Amendment of Part 76 of the Commission’s
Rules and Regulations Relative to Obligations of
Cable Television Systems to Maintain Public
Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72,
para. 1 (1974); 47 CFR 76.1701.
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providers,77 and SDARS licensees,78
finding that the rationale for imposing
such requirements on broadcasters
similarly applies to these entities.
In 2002, Congress enacted the
Bipartisan Campaign Reform Act
(BCRA), which amended section 315 of
the Act.79 The BCRA added new section
315(e) to codify the Commission’s
existing political file obligations by
requiring that information regarding any
request to purchase advertising time
that ‘‘is made on behalf of a legally
qualified candidate for public office’’ be
placed in the political file.80 In addition,
the BCRA expanded the political file
requirements to include any request to
purchase political advertising time that
‘‘communicates a message relating to
any political matter of national
importance.’’ 81 Specifically, section
315(e)(1) of the Act requires licensees to
make available for public inspection a
complete record of each request for the
purchase of broadcast time by or on
behalf of a legally qualified candidate
and by or on behalf of any other entity
whose ad communicates a message
relating to any political matter of
national importance.82
The BCRA also specified the records that
must be maintained in political files.
Specifically, section 315(e)(2) requires
licensees to place in their political files
information that includes whether the
request to purchase broadcast time has been
accepted or rejected, information about the
advertisement(s), and information about the
advertiser.
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Section 315(e)(3) of the Act provides
that ‘‘[t]he information required by
77 Section 335 of the Act imposes public interest
obligations on DBS providers and requires the
Commission, at a minimum, to apply the access to
broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to
DBS providers. 47 U.S.C. 335(a). The Commission
adopted rules requiring DBS providers to abide by
political file obligations similar to those
requirements placed on terrestrial broadcasters and
cable systems in order to assist in evaluations of
compliance with the political programming rules
and to enable competing candidates to review other
candidates’ advertising access and rates. DBS Public
Interest Obligations Report and Order, 13 FCC Rcd
at 23271, para. 41; DBS Public Interest Obligations
Sua Sponte ReconsIderation, 19 FCC Rcd at 5561,
para. 35; 47 CFR 25.701(d).
78 Expansion of Online Public File Obligations to
Cable and Satellite TV Operators and Broadcast
and Satellite Radio Licensees, MB Docket No.
14.217, Report and Order, 31 FCC Rcd 526, 537–
38, paras. 26–27 (2016); Applications for Consent to
the Transfer of Control of Licenses, XM Satellite
Radio Holdings Inc., Transferor, to Sirius Satellite
Radio Inc., Transferee, MB Docket No. 07–57,
Memorandum Opinion and Order and Report and
Order, 23 FCC Rcd 12348, 12415, para. 146 (2008);
47 CFR 25.702(b).
79 Public Law 107–155, 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
80 47 U.S.C. 315(e)(1).
81 Id.
82 Id. Section 315(e)(1).
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[section 315(e)] shall be placed in a
political file as soon as possible and
shall be retained by the licensee for a
period of not less than 2 years.’’ 87
The NPRM proposes to revise the
definition of ‘‘legally qualified
candidate for public office’’ to add the
use of social media and creation of a
campaign website to the existing list of
activities that may be considered in
determining whether an individual
running as a write-in candidate has
made a ‘‘substantial showing’’ of his or
her bona fide candidacy.83 The NPRM
also proposes to revise the
Commission’s political file rules to
conform with BCRA’s amendment to
Section 315(e) of the Act, which
included within the political file
requirements any request for the
purchase of advertising time that
‘‘communicates a message relating to
any political matter of national
importance’’ (i.e., issue ads) and specify
the records that must be maintained.84
Additionally, the proposed revisions
would specify the records that must be
maintained in political files.
Legal Basis
The proposed action is authorized
under sections 151, 154(i), 154(j), 303(r),
307, 312, 315,335, and 403 of the
Communications Act of 1934, as
amended, 47 U.S.C. 151, 154(i), 154(j),
303(r), 307, 312, 315, 335, and 403.
Description and Estimate of the Number
of Small Entities to Which the Proposed
Rules Will Apply
The RFA directs agencies to provide
a description of, and where feasible, an
estimate of the number of small entities
that may be affected by the proposed
rule revisions, if adopted.85 The RFA
generally defines the term ‘‘small
entity’’ as having the same meaning as
the terms ‘‘small business,’’ ‘‘small
organization,’’ and ‘‘small governmental
jurisdiction.’’ 86 In addition, the term
87 Id.
Section 315(e)(3).
Section 315(e)(3).
84 Public Law 107–155, section 504, 116 Stat. 81
(2002) (codified at 47 U.S.C. 315(e)).
85 5 U.S.C. 603(b)(3).
86 5 U.S.C. 601(6); see infra note 38 (explaining
the definition of ‘‘small business’’ under 5 U.S.C.
601(3)); see 5 U.S.C. 601(4) (defining ‘‘small
organization’’ as ‘‘any not-for-profit enterprise
which is independently owned and operated and is
not dominant in its field, unless an agency
establishes, after opportunity for public comment,
one or more definitions of such term which are
appropriate to the activities of the agency and
publishes such definition(s) in the Federal
Register’’); 5 U.S.C. 601(5) (defining ‘‘small
governmental jurisdiction’’ as ‘‘governments of
cities, counties, towns, townships, villages, school
districts, or special districts, with a population of
less than fifty thousand, unless an agency
establishes, after opportunity for public comment,
one or more definitions of such term which are
88 Id.
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‘‘small business’’ has the same meaning
as the term ‘‘small business concern’’
under the Small Business Act (SBA).87
A small business concern is one which:
(1) Is independently owned and
operated; (2) is not dominant in its field
of operation; and (3) satisfies any
additional criteria established by the
SBA.88 Below, we provide a description
of such small entities, as well as an
estimate of the number of such small
entities, where feasible.
Television Broadcasting. This U.S.
Economic Census category ‘‘comprises
establishments primarily engaged in
broadcasting images together with
sound.’’ 89 These establishments operate
television broadcast studios and
facilities for the programming and
transmission of programs to the
public.90 These establishments also
produce or transmit visual programming
to affiliated broadcast television
stations, which in turn broadcast the
programs to the public on a
predetermined schedule. Programming
may originate in their own studio, from
an affiliated network, or from external
sources. The SBA has created the
following small business size standard
for such businesses: Those having $41.5
million or less in annual receipts.91
According to the 2012 Economic Census
(when the SBA’s size standard was set
at $38.5 million or less in annual
receipts), 751 firms in the small
business size category operated in that
year. Of that number, 656 had annual
receipts of $25 million or less, 25 had
annual receipts between $25 million
and $49,999,999 and 70 had annual
receipts of $50 million or more.92 Based
on this data, we estimate that the
appropriate to the activities of the agency and
which are based on such factors as location in rural
or sparsely populated areas or limited revenues due
to the population of such jurisdiction, and
publishes such definition(s) in the Federal
Register’’).
87 5 U.S.C. 601(3) (adopting by reference the
definition of ‘‘small business concern’’ in 15 U.S.C.
632(a)(1)). Pursuant to 5 U.S.C. 601(3), the statutory
definition of a small business applies ‘‘unless an
agency, after consultation with the Office of
Advocacy of the Small Business Administration
and after opportunity for public comment,
establishes one or more definitions of such term
which are appropriate to the activities of the agency
and publishes such definition(s) in the Federal
Register.’’ Id.
88 15 U.S.C. 632(a)(1)–(2)(A).
89 U.S. Census Bureau, 2017 NAICS Definitions,
‘‘515120 Television Broadcasting,’’ https://
www.census.gov./cgi-bin/sssd/naics/naicsrch.
90 Id.
91 13 CFR 121.201; 2012 NAICS code 515120.
92 U.S. Census Bureau, Table No. EC1251SSSZ4,
Information: Subject Series—Establishment and
Firm Size: Receipts Size of Firms for the United
States: 2012 (515120 Television Broadcasting).
https://factfinder.census.gov/faces/tableservices/jsf/
pages/productview.xhtml?pid=ECN_2012_US_
51SSSZ4&prodType=table.
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majority of commercial television
broadcast stations are small entities
under the applicable size standard.
Additionally, the Commission has
estimated the number of licensed
commercial television stations to be
1,374.93 Of this total, 1,263 stations (or
92%) had revenues of $41.5 million or
less in 2019, according to Commission
staff review of the BIA Kelsey Inc.
Media Access Pro Television Database
(BIA) on July 30, 2020, and therefore
these stations qualify as small entities
under the SBA definition. In addition,
the Commission estimates the number
of noncommercial educational
television stations to be 384.94 The
Commission does not compile and does
not have access to information on the
revenue of NCE stations that would
permit it to determine how many such
stations would qualify as small entities.
There are also 386 Class A stations.95
Given the nature of this service, the
Commission presumes that all of these
stations qualify as small entities under
the applicable SBA size standard.
Radio Broadcasting. This U.S.
Economic Census category ‘‘comprises
establishments primarily engaged in
broadcasting aural programs by radio to
the public.’’ 96 Programming may
originate in the establishment’s own
studio, from an affiliated network, or
from external sources. The SBA has
created the following small business
size standard for such businesses: Those
having $41.5 million or less in annual
receipts.97 According to Economic
Census data for 2012 (when the SBA’s
size standard was set at $38.5 million or
less in annual receipts), 2,849 firms in
this category operated in that year.98 Of
that number, 2,806 operated with
annual receipts of less than $25 million
per year, 17 with annual receipts
between $25 million and $49,999,999
million and 26 with annual receipts of
$50 million or more.99 Based on this
data, we estimate that the majority of
commercial radio broadcast stations
93 Broadcast Station Totals as of March 31, 2021,
News Release (MB Apr. 5, 2021) (Mar. 31, 2021
Broadcast Station Totals), https://www.fcc.gov/
document/broadcast-station-totals-march-31-2021.
94 Id.
95 Id.
96 U.S. Census Bureau, 2017 NAICS Definitions,
‘‘515112 Radio Stations,’’ https://www.census.gov./
cgi-bin/sssd/naics/naicsrch.
97 13 CFR 121.201; 2017 NAICS code 515112.
98 U.S. Census Bureau, U.S. Census Bureau, Table
No. EC1251SSSZ4, Information: Subject Series—
Establishment and Firm Size: Receipts Size of Firms
for the United States: 2012 (515112 Radio Stations)
https://factfinder.census.gov/bkmk/table/1.0/en/
ECN/2012_US/51SSSZ4//naics∼515112|.
99 Id.
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were small under the applicable SBA
size standard.
The Commission has estimated the
number of licensed commercial AM
radio stations to be 4,546 and the
number of commercial FM radio
stations to be 6,682 for a total of 11,228
commercial stations.100 Of this total,
11,266 stations (or 99%) had revenues
of $41.5 million or less in 2019,
according to Commission staff review of
the BIA Kelsey Inc. Media Access Pro
Television Database (BIA) on July 30,
2020, and therefore these stations
qualify as small entities under the SBA
definition. In addition, there were 4,213
noncommercial, educational (NCE) FM
stations. The Commission does not
compile and does not have access to
information on the revenue of NCE
stations that would permit it to
determine how many such stations
would qualify as small entities.
We note, however, that in assessing
whether a business concern qualifies as
‘‘small’’ under the above definition,
business (control) affiliations 101 must
be included. Our estimate, therefore,
likely overstates the number of small
entities that might be affected by our
action, because the revenue figure on
which it is based does not include or
aggregate revenues from affiliated
companies. In addition, another element
of the definition of ‘‘small business’’
requires that an entity not be dominant
in its field of operation. We are unable
at this time to define or quantify the
criteria that would establish whether a
specific television broadcast station is
dominant in its field of operation.
Accordingly, the estimate of small
businesses to which the rules may apply
does not exclude any radio or television
station from the definition of a small
business on this basis and is therefore
possibly over-inclusive. An additional
element of the definition of ‘‘small
business’’ is that the entity must be
independently owned and operated.
Because it is difficult to assess these
criteria in the context of media entities,
the estimate of small businesses to
which the rules may apply does not
exclude any radio or television station
from the definition of a small business
on this basis and similarly may be overinclusive.
Cable Companies and Systems (Rate
Regulation Standard) The Commission
has also developed its own small
business size standards for the purpose
of cable rate regulation. Under the
100 Mar.
31, 2021 Broadcast Station Totals.
concerns] are affiliates of each
other when one concern controls or has the power
to control the other or a third party or parties
controls or has the power to control both.’’ 13 CFR
21.103(a)(1).
101 ‘‘[Business
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Commission’s rules, a ‘‘small cable
company’’ is one serving 400,000 or
fewer subscribers nationwide.102
Industry data indicates that, of the 777
cable companies currently operating in
the United States, 766 serve 400,000 or
fewer subscribers.103 Additionally,
under the Commission’s rules, a ‘‘small
system’’ is a cable system serving 15,000
or fewer subscribers.104 According to
industry data, there are currently 4,336
active cable systems in the United
States.105 Of this total, 3,650 cable
systems have fewer than 15,000
subscribers.106 Thus, the Commission
believes that the vast majority of cable
companies and cable systems are small
entities.
Cable System Operators (Telecom Act
Standard). The Communications Act of
1934, as amended, also contains a size
standard for small cable system
operators, which is ‘‘a cable operator
that, directly or through an affiliate,
serves in the aggregate fewer than one
percent of all subscribers in the United
States and is not affiliated with any
entity or entities whose gross annual
revenues in the aggregate exceed
$250,000,000.’’ 107 As of 2019, there
were approximately 48,646,056 basic
cable video subscribers in the United
States.108 Accordingly, an operator
serving fewer than 486,460 subscribers
shall be deemed a small operator if its
annual revenues, when combined with
the total annual revenues of all its
affiliates, do not exceed $250 million in
the aggregate.109 Based on available
data, we find that all but five cable
operators are small entities under this
102 47 CFR 76.901(d). The Commission
determined that this size standard equates
approximately to a size standard of $100 million or
less in annual revenues. Implementation of Sections
of the Cable Television Consumer Protection and
Competition Act of 1992: Rate Regulation, MM
Docket Nos. 93–215 and 92–266, Sixth Report and
Order and Eleventh Order on Reconsideration, 10
FCC Rcd 7393, 7408, para. 28 (1995).
103 See S&P Global Market Intelligence,
MediaCensus, Operator Subscribers by Geography:
National Report, Subscribers by Operator, https://
platform.mi.spglobal.com/web/client?auth=inherit#
industry/mediaCensusHome (last visited Jul. 28,
2020).
104 47 CFR 76.901(c).
105 See S&P Global Market Intelligence,
MediaCensus, Operator Subscribers by Geography:
Headend by Headend Report, Subscribers by
Headend, https://platform.mi.spglobal.com/web/
client?auth=inherit#industry/mediaCensusHome
(last visited Jul. 28, 2020).
106 Id.
107 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(e).
108 S&P Global Market Intelligence, U.S. Cable
Subscriber Highlights, Basic Subscribers(actual)
2019, U.S. Cable MSO Industry Total, see also U.S.
Multichannel Industry Benchmarks, U.S. Cable
Industry Benchmarks, Basic Subscribers 2019Y,
https://platform.marketintelligence.spglobal.com.
109 47 CFR 76.901(e).
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size standard.110 We note that the
Commission neither requests nor
collects information on whether cable
system operators are affiliated with
entities whose gross annual revenues
exceed $250 million.111 Therefore, we
are unable at this time to estimate with
greater precision the number of cable
system operators that would qualify as
small cable operators under the
definition in the Communications Act.
Direct Broadcast Satellite (DBS)
Service. DBS service is a nationally
distributed subscription service that
delivers video and audio programming
via satellite to a small parabolic dish
antenna at the subscriber’s location. For
the purposes of economic classification,
establishments providing satellite
television distribution services using
facilities and infrastructure that they
operate are included in the Wired
Telecommunications Carriers
industry.112 The Wired
Telecommunications Carriers industry
comprises establishments primarily
engaged in operating and/or providing
access to transmission facilities and
infrastructure that they own and/or
lease for the transmission of voice, data,
text, sound, and video using wired
telecommunications networks.
Transmission facilities may be based on
a single technology or combination of
technologies. Establishments in this
industry use the wired
telecommunications network facilities
that they operate to provide a variety of
services, such as wired telephony
services, including VoIP services, wired
(cable) audio and video programming
distribution; and wired broadband
internet services.113 The SBA
determines that a wireline business is
small if it has fewer than 1,500
employees.114 Economic census data for
2012 indicate that 3,117 wireline
companies were operational during that
year. Of that number, 3,083 operated
with fewer than 1,000 employees.115
110 S&P Global Market Intelligence, Top Cable
MSOs as of 12/2019, https://platform.market
intelligence.spglobal.com. The five cable operators
all had more than 486,460 basic cable subscribers.
111 The Commission does receive such
information on a case-by-case basis if a cable
operator appeals a local franchise authority’s
finding that the operator does not qualify as a small
cable operator pursuant to § 76.901(e) of the
Commission’s rules. See 47 CFR 76.910(b).
112 See 2017 NAICS Definition, ‘‘517311 Wired
Telecommunications Carriers,’’ https://
www.census.gov/cgi-bin/sssd/naics/naicsrch?code=
517311&search=2017%20NAICS%20Search (last
accessed Jul. 27, 2020).
113 Id.
114 13 CFR 121.201 (NAICS Code 517311).
115 See Information: Subject Series—Estab and
Firm Size: Employment Size of Firms for the U.S.:
2012, 2012 Economic Census of the United States,
TableID: EC1251SSSZ5, https://data.census.gov/
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Based on that data, we conclude that the
majority of wireline firms are small
under the applicable standard.
However, currently only two entities
provide DBS service, which requires a
great deal of capital for operation:
DIRECTV (owned by AT&T) and DISH
Network.116 According to industry data,
DIRECTV and DISH serve 14,831,379
and 8,957,469 subscribers respectively,
and count the third and fourth most
subscribers of any multichannel video
distribution system in the U.S.117 Given
the capital required to operate a DBS
service, its national scope, and the
approximately one-third share of the
video market controlled by these two
companies,118 we presume that neither
would qualify as a small business.
Satellite Radio. The rules proposed in
this NPRM would affect the sole,
current U.S. provider of satellite radio
(SDARS) services, Sirius-XM, which
offers subscription services. Sirius-XM
reported revenue of $5.78 billion and a
net income of $1.1 billion in 2018.119 In
light of these figures, we believe it is
unlikely that this entity would be
considered small.
Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements
Reporting Requirements. The NPRM
does not propose any new or modified
reporting requirements.
Recordkeeping Requirements. The
NPRM proposes to revise the political
file rules, consistent with the BCRA’s
amendment to section 315(e) of the Act,
to reflect statutory requirements that
broadcast licensees, cable television
system operators, DBS providers, and
SDARS licensees are obligated to
maintain in their online political
inspection files records of each request
for advertising time that ‘‘is made on
behalf of a legally qualified candidate
cedsci/table?q=EC1251&hidePreview=true&
table=EC1251SSSZ5&tid=ECNSIZE2012.
EC1251SSSZ5&lastDisplayedRow=28# (last
accessed Jul. 27, 2020) (NAICS Code 517110
applied at the time of the 2012 Economic Census).
116 See Communications Marketplace Report et
al., GN Docket No. 18–231 et al., Report, 33 FCC
Rcd 12558, 12597, paras. 50–51 (2018).
117 See S&P Global Market Intelligence,
MediaCensus, Operator Subscribers by Geography:
National Report, Subscribers by Operator, https://
platform.mi.spglobal.com/web/client?auth=inherit#
industry/mediaCensusHome (last visited Jul. 31,
2020).
118 See S&P Global Market Intelligence, Global
Multichannel Top Operators, U.S., https://
platform.mi.spglobal.com/web/client?auth=inherit#
industry/multichannelIndustryBenchmarks (last
visited Jul. 31, 2020) (There were approximately
63,650,261 total multichannel subscribers in the
U.S. in 2019).
119 See https://s1.q4cdn.com/750174072/files/
doc_financials/2019/ar/2fb89e07-9f09-4e20-be799e194d70cd5e.pdf.
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for public office’’ and each request for
advertising time that ‘‘communicates a
message relating to any political matter
of national importance’’ (i.e., issue ads).
In addition, the NPRM proposes to list
the specific records that must be
maintained in political files.
Other Compliance Requirements. The
NPRM proposes to revise the political
programming rules to add the use of
social media to the list of activities that
a broadcast licensee or cable operator
may consider in determining whether
an individual who is running as a writein candidate has made a ‘‘substantial
showing’’ of his or her candidacy.
Steps Taken To Minimize Significant
Economic Impact on Small Entities, and
Significant Alternatives Considered
The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
for small entities.120
The proposed revisions to the
political file rules to implement the
BCRA would largely codify existing
Commission policy and guidance. Thus,
we expect that these revisions, if
adopted, would not impose significant
new recordkeeping burdens on small
entities. We also seek comment on
possible modifications to the proposed
revisions to the political file rules to
lessen any burdens on small entities.
In addition, we anticipate that the
proposal to add the use of social media
to the list of activities that may be
considered in determining whether an
individual who is running as a write-in
candidate has made a ‘‘substantial
showing’’ of his or her candidacy would
only benefit small entities by providing
additional guidance on how to make
such determinations.
Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rule
None.
Ordering Clauses
Accordingly, it is ordered that,
pursuant to the authority contained in
120 See
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sections 1, 4(i), 4(j), 303, 307, 312, 315,
335, and 403 of the Communications
Act, 47 U.S.C 151, 154(i), 154(j), 303,
307, 312, 315, 335, and 403, this Notice
of Proposed Rulemaking is adopted.
It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice, including the Initial
Regulatory Flexibility Analysis, to the
Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects
47 CFR Parts 25
Radio, Reporting and recordkeeping
requirements, Telecommunications.
47 CFR Part 73
Cable television, Education, Radio,
Reporting and recordkeeping
requirements, Telecommunications
47 CFR Part 76
Cable television, internet, Reporting
and recordkeeping requirements,
Telecommunications
Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer, Office of the
Secretary.
Proposed Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
parts 25, 73, and 76 as follows:
PART 25—SATELLITE
COMMUNICATIONS
1. The authority citation for part 25
continues to read as follows:
■
Authority: 47 U.S.C. 154, 301, 302, 303,
307, 309, 310, 319, 332, 605, and 721, unless
otherwise noted.
§ 25.702 Other SDARS Public interest
obligations.
2. Amend § 25.701 by revising
paragraph (d) to read as follows:
■
*
§ 25.701 Other DBS Public interest
obligations.
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*
*
*
*
*
(d) Political File. (1) Each DBS
operator engaged in origination
programming shall maintain, and make
available for public inspection, a
complete record of a request to purchase
broadcast time that:
(i) Is made by or on behalf of a legally
qualified candidate for public office; or
(ii) Communicates a message relating
to any political matter of national
importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of
public importance.
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(2) Contents of record. A record
maintained under this paragraph shall
contain information regarding:
(i) Whether the request to purchase
broadcast time is accepted or rejected by
the licensee;
(ii) The rate charged for the broadcast
time;
(iii) The date and time on which the
communication is aired;
(iv) The class of time that is
purchased;
(v) The name of the candidate to
which the communication refers and the
office to which the candidate is seeking
election, the election to which the
communication refers, or the issue to
which the communication refers (as
applicable);
(vi) In the case of a request made by,
or on behalf of, a candidate, the name
of the candidate, the authorized
committee of the candidate, and the
treasurer of such committee; and
(vii) In the case of any other request,
the name of the person purchasing the
time, the name, address, and phone
number of a contact person for such
person, and a list of the chief executive
officers or members of the executive
committee or of the board of directors of
such person.
(3) When free time is provided for use
by or on behalf of candidates, a record
of the free time provided shall be placed
in the political file.
(4) All records required by this
paragraph shall be placed in the online
political file as soon as possible and
shall be retained for a period of two
years. As soon as possible means
immediately absent unusual
circumstances.
*
*
*
*
*
■ 3. Amend § 25.702 by revising
paragraph (b) to read as follows:
*
*
*
*
(b) Political File. (1) Each SDARS
licensee engaged in origination
programming shall maintain, and make
available for public inspection, a
complete record of a request to purchase
broadcast time that:
(i) Is made by or on behalf of a legally
qualified candidate for public office; or
(ii) Communicates a message relating
to any political matter of national
importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of
public importance.
(2) Contents of record. A record
maintained under this paragraph shall
contain information regarding:
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48951
(i) Whether the request to purchase
broadcast time is accepted or rejected by
the licensee;
(ii) The rate charged for the broadcast
time;
(iii) The date and time on which the
communication is aired;
(iv) The class of time that is
purchased;
(v) The name of the candidate to
which the communication refers and the
office to which the candidate is seeking
election, the election to which the
communication refers, or the issue to
which the communication refers (as
applicable);
(vi) In the case of a request made by,
or on behalf of, a candidate, the name
of the candidate, the authorized
committee of the candidate, and the
treasurer of such committee; and
(vii) In the case of any other request,
the name of the person purchasing the
time, the name, address, and phone
number of a contact person for such
person, and a list of the chief executive
officers or members of the executive
committee or of the board of directors of
such person.
(3) When free time is provided for use
by or on behalf of candidates, a record
of the free time provided shall be placed
in the political file.
(4) All records required by this
paragraph shall be placed in the online
political file as soon as possible and
shall be retained for a period of two
years. As soon as possible means
immediately absent unusual
circumstances.
*
*
*
*
*
PART 73—RADIO BROADCAST
SERVICES
4. The authority citation for part 73
continues to read as follows:
■
Authority: 47 U.S.C. 154, 155, 301, 303,
307, 309, 310, 334, 336, 339.
5. Amend § 73.1940 by revising
paragraph (f) to read as follows:
■
§ 73.1940 Legally qualified candidates for
public office.
*
*
*
*
*
(f) The term ‘‘substantial showing’’ of
a bona fide candidacy as used in
paragraphs (b), (d) and (e) of this section
means evidence that the person
claiming to be a candidate has:
(1) Satisfied the requirements under
applicable law to run as a write-in (such
as registering, collecting signatures,
paying fees, etc.); and
(2) Has engaged to a substantial
degree in activities commonly
associated with political campaigning.
Such activities normally would include
making campaign speeches, distributing
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campaign literature, issuing press
releases, maintaining a campaign
committee, establishing campaign
headquarters (even though the
headquarters in some instances might be
the residence of the candidate or his or
her campaign manager), creating a
campaign website, and using social
media for the purpose of promoting or
furthering a campaign for public office.
Not all of the listed activities are
necessarily required in each case to
demonstrate a substantial showing, and
there may be activities not listed herein
which would contribute to such a
showing.
■ 6. Amend § 73.1943 by revising
paragraph (a), redesignating paragraphs
(b) and (c) as paragraphs (c) and (d), and
adding new paragraph (b) to read as
follows:
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§ 73.1943
Political file.
(a) A licensee shall maintain, and
make available for public inspection, a
complete record of a request to purchase
broadcast time that:
(1) Is made by or on behalf of a legally
qualified candidate for public office; or
(2) Communicates a message relating
to any political matter of national
importance, including:
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of
public importance.
(b) Contents of record. A record
maintained under paragraph (a) of this
section shall contain information
regarding:
(1) Whether the request to purchase
broadcast time is accepted or rejected by
the licensee;
(2) The rate charged for the broadcast
time;
(3) The date and time on which the
communication is aired;
(4) The class of time that is
purchased;
(5) The name of the candidate to
which the communication refers and the
office to which the candidate is seeking
election, the election to which the
communication refers, or the issue to
which the communication refers (as
applicable);
(6) In the case of a request made by,
or on behalf of, a candidate, the name
of the candidate, the authorized
committee of the candidate, and the
treasurer of such committee; and
(7) In the case of any other request,
the name of the person purchasing the
time, the name, address, and phone
number of a contact person for such
person, and a list of the chief executive
officers or members of the executive
VerDate Sep<11>2014
16:23 Aug 31, 2021
Jkt 253001
committee or of the board of directors of
such person.
*
*
*
*
*
PART 76—MULTICHANNEL VIDEO
AND CABLE TELEVISION SERVICE
7. The authority citation for part 76
continues to read as follows:
■
Authority: 47 U.S.C. 151, 152, 153, 154,
301, 302, 302a, 303, 303a, 307, 308, 309, 312,
315, 317, 325, 338, 339, 340, 341, 503, 521,
522, 531, 532, 534, 535, 536, 537, 543, 544,
544a, 545, 548, 549, 552, 554, 556, 558, 560,
561, 571, 572, 573.
8. Amend § 76.5 by revising paragraph
(q)(5) to read as follows:
■
§ 76.5
Definitions.
*
*
*
*
*
(q) * * *
(5) The term ‘‘substantial showing’’ of
a bona fide candidacy as used in
paragraph (q) (2), (3), and (4) of this
section means evidence that the person
claiming to be a candidate has:
(i) Satisfied the requirements under
applicable law to run as a write-in (such
as registering, collecting signatures,
paying fees, etc.); and
(ii) Has engaged to a substantial
degree in activities commonly
associated with political campaigning.
Such activities normally would include
making campaign speeches, distributing
campaign literature, issuing press
releases, maintaining a campaign
committee, establishing campaign
headquarters (even though the
headquarters in some instances might be
the residence of the candidate or his or
her campaign manager), creating a
campaign website, and using social
media for the purpose of promoting or
furthering a campaign for public office.
Not all of the listed activities are
necessarily required in each case to
demonstrate a substantial showing, and
there may be activities not listed herein
which would contribute to such a
showing.
*
*
*
*
*
■ 9. Amend § 76.1701 by revising
paragraph (a), redesignating paragraphs
(b) through (d) as paragraphs (c) through
(e), and adding new paragraph (b) to
read as follows:
§ 76.1701
Frm 00035
Fmt 4702
[FR Doc. 2021–17754 Filed 8–31–21; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 64
[WC Docket No. 12–375; DA 21–978; FR
ID 44950]
Rates for Interstate Inmate Calling
Services
Federal Communications
Commission.
ACTION: Proposed rule; extension of
comment period.
AGENCY:
In this document, the Federal
Communications Commission is
extending the time to file comments and
reply comments in this proceeding in
order to afford interested parties
sufficient time to prepare them.
DATES: Comments are due on or before
September 27, 2021. Reply Comments
are due on or before October 27, 2021.
ADDRESSES: You may submit comments,
identified by WC Docket No. 12–375, by
any of the following methods:
SUMMARY:
Political file.
(a) Every cable television system
operator engaged in origination
programming shall maintain, and make
available for public inspection, a
complete record of a request to purchase
broadcast time that:
(1) Is made by or on behalf of a legally
qualified candidate for public office; or
(2) Communicates a message relating
to any political matter of national
importance, including:
PO 00000
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of
public importance.
(b) Contents of record. A record
maintained under paragraph (a) of this
section shall contain information
regarding:
(1) Whether the request to purchase
broadcast time is accepted or rejected by
the licensee;
(2) The rate charged for the broadcast
time;
(3) The date and time on which the
communication is aired;
(4) The class of time that is
purchased;
(5) The name of the candidate to
which the communication refers and the
office to which the candidate is seeking
election, the election to which the
communication refers, or the issue to
which the communication refers (as
applicable);
(6) In the case of a request made by,
or on behalf of, a candidate, the name
of the candidate, the authorized
committee of the candidate, and the
treasurer of such committee; and
(7) In the case of any other request,
the name of the person purchasing the
time, the name, address, and phone
number of a contact person for such
person, and a list of the chief executive
officers or members of the executive
committee or of the board of directors of
such person.
*
*
*
*
*
Sfmt 4702
E:\FR\FM\01SEP1.SGM
01SEP1
]]>Agencies
[Federal Register Volume 86, Number 167 (Wednesday, September 1, 2021)]
[Proposed Rules]
[Pages 48942-48952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17754]
=======================================================================
-----------------------------------------------------------------------
FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 25, 73, and 76
[MB Docket No. 21-293; FCC 21-91; FR ID 43007]
Revisions to Political Programming and Recordkeeping Rules
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this document, the Commission proposes to update its
political programming and recordkeeping rules for broadcast licensees,
cable television system operators, Direct Broadcast Satellite (DBS)
service providers, and Satellite Digital Audio Radio Service (SDARS)
licensees. The Commission proposes to update its political programming
rules by adding the use of social media and the creation of a campaign
website to the existing list of activities that may be considered in
determining whether an individual running as a write-in candidate has
made a ``substantial showing'' of his or her bona fide candidacy. The
Commission also proposes to update its political recordkeeping rules by
incorporating provisions which were adopted in the Bipartisan Campaign
Reform Act of 2002.
DATES: Comments are due on or before October 1, 2021; reply comments
are due on or before October 18, 2021.
ADDRESSES: You may submit comments, identified by MB Docket No. 21-293,
by any of the following methods:
Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: https://apps.fcc.gov/ecfs/.
Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19.\1\
---------------------------------------------------------------------------
\1\ See FCC Announces Closure of FCC Headquarters Open Window
and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788
(2020).
---------------------------------------------------------------------------
During the time the Commission's building is closed to the
general public and until further notice, if more than one docket or
rulemaking number appears in the caption of a proceeding, paper filers
need not submit two additional copies for each additional docket or
rulemaking number; an original and one copy are sufficient.
People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to [email protected] or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Gary Schonman, Special Counsel, Federal
Communications Commission, Media Bureau, Policy Division, Political
Programming Staff, at [email protected]cc.gov or 202-418-1795.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 21-91, adopted on August 3, 2021,
and released on August 4, 2021. The full text of this document is
available for public inspection and copying via ECFS at https://apps.fcc.gov/ecfs and the FCC's website at https://docs.fcc.gov/public/attachments/FCC-21-91A1.pdf. Documents will be available electronically
in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are
available for people with disabilities (Braille, large print,
electronic files, audio format), by sending an email to [email protected]
or calling the Commission's Consumer and Governmental Affairs Bureau at
(202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
In this Notice of Proposed Rulemaking (NPRM), we propose to update
our political programming and recordkeeping rules for broadcast
licensees, cable television system operators, Direct Broadcast
Satellite (DBS) service providers, and Satellite Digital Audio Radio
Service (SDARS) licensees. While the agency has strived to update its
guidance to reflect changes in law and campaign practices, it has not
undertaken a formal review to
[[Page 48943]]
update the political programming and recordkeeping rules since 1991.\2\
Given the substantial growth of such programming in recent years,\3\
the updates proposed in this item are intended to conform our rules
with statutory amendments, increase transparency, and account for
modern campaign practices.
---------------------------------------------------------------------------
\2\ Codification of the Commission's Political Programming
Policies, MM Docket No. 91-168, Report and Order, 7 FCC Rcd 678
(1991) (1991 Political Programming Order).
\3\ John Haltiwanger, Americans are Already Exhausted with the
2020 Election, and it's Just Getting Started. Other Countries Have
Laws Limiting the Length of Campaigns (Feb. 10, 2020), https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2 (explaining that the 2020 U.S.
Presidential election would last approximately 1,194 days); Karl
Evers-Hillstrom, Most Expensive Ever: 2020 Election Cost $14.4
Billion (Feb. 11, 2021), https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/ (2020 campaign spending
doubled the amount in 2016).
---------------------------------------------------------------------------
We propose two revisions to our political programming and
recordkeeping rules.\4\ First, consistent with modern campaign
practices, we propose to revise the definition of ``legally qualified
candidate for public office'' to add the use of social media and
creation of a campaign website to the existing list of activities that
may be considered in determining whether an individual running as a
write-in candidate has made a ``substantial showing'' of his or her
bona fide candidacy.\5\ Second, we propose to revise the Commission's
political file rules to conform with the Bipartisan Campaign Reform Act
of 2002 (BCRA), which included within the political file requirements
any request for the purchase of advertising time that ``communicates a
message relating to any political matter of national importance''
(i.e., issue ads) and specify the records that must be maintained.\6\
---------------------------------------------------------------------------
\4\ Information in a station's political file is available to
the public on the Commission-hosted website at https://publicfiles.fcc.gov/.
\5\ 47 CFR 73.1940(f), 76.5(q).
\6\ Public Law 107-155, Sec. 504, 116 Stat. 81 (2002) (codified
at 47 U.S.C. 315(e)).
---------------------------------------------------------------------------
I. Background
In addition to the First Amendment protections afforded to material
aired by Commission licensees and regulatees, political programming
receives additional, special protections. Congress has recognized the
great importance of political programming in the United States by
passing laws to ensure that those who run for elective office have
access to broadcast and other platforms so that they may inform
citizens of their positions on critical issues of the day.
Political Programming Obligations. Political programming
obligations for certain Commission licensees and regulatees are set
forth in sections 312(a)(7) and 315 of the Communications Act of 1934,
as amended (Act).\7\ Section 312(a)(7) requires broadcast licensees to
give legally qualified candidates for federal office ``reasonable
access'' to their facilities, or to permit them to purchase
``reasonable amounts of time on behalf of their candidacy. .'' \8\
Section 312(a)(7) of the Act also applies to SDARS licensees \9\ and
DBS service providers,\10\ but it is not applicable to cable system
operators.\11\ Under section 315(a), if a broadcast licensee permits
one legally qualified candidate for a public office to use its station,
it must afford all other candidates for that office an ``equal
opportunity'' to use the station.\12\ Section 315(b) provides that,
during certain periods before an election, legally qualified candidates
are entitled to ``the lowest unit charge of the station for the same
class and amount of time for the same period.'' \13\ The requirements
in section 315 also apply to cable system operators,\14\ SDARS
licensees,\15\ and DBS service providers.\16\ The entitlements embodied
in sections 312(a)(7) and 315 of the Act are available only to persons
who have achieved the status of ``legally qualified candidate.'' \17\
---------------------------------------------------------------------------
\7\ 47 U.S.C. 312(a)(7), 315.
\8\ 47 U.S.C. 312(a)(7). See 47 CFR 73.1944.
\9\ See Establishment of Rules and Policies for the Digital
Audio Radio Satellite Service in the 2310-2360 MHz Frequency Band,
IB Docket No. 95-91, Gen. Docket No. 90-357, Report and Order
Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking, 12 FCC Rcd 5754, 5792, para. 92 (1997) (extending the
political programming provisions in sections 312(a)(7) and 315 of
the Act to SDARS licensees); 47 CFR 25.702(a)-(b).
\10\ See Implementation of Section 25 of the Cable Television
Consumer Protection and Competition Act of 1992, Direct Broadcast
Satellite Public Interest Obligations, MM Docket No. 93-205, Report
and Order, 13 FCC Rcd 23254 (1998) (DBS Public Interest Obligations
Report and Order) (establishing rules applying the political
programming rules in sections 312(a)(7) and 315 of the Act to DBS
service providers, in accordance with section 335 of the Act),
recon. denied, Memorandum Opinion and Order on Reconsideration of
the First Report and Order, 19 FCC Rcd 5854 (2003) (Order on
ReconsIderation), Order on ReconsIderation vacated and superseded by
Second Order on Reconsideration of First Report and Order, 19 FCC
Rcd 5647 (2004) (DBS Public Interest Obligations Sua Sponte
ReconsIderation); 47 CFR 25.701(b)-(d).
\11\ See 1991 Political Programming Order, 7 FCC Rcd at 679,
para. 4.
\12\ 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
\13\ 47 U.S.C. 315(b). Pursuant to section 315(b)(1)
\14\ Section 315(c) of the Act defines the term ``broadcasting
station'' as including cable television systems and the terms
``licensee'' and ``station licensee'' as including cable operators.
47 U.S.C. 315(c) (``For purposes of this section--(1) the term
`broadcasting station' includes a community antenna television
system; and (2) the terms `licensee' and `station licensee' when
used with respect to a community antenna television system mean the
operator of such system.'').
\15\ See supra note 8.
\16\ See supra note 9.
\17\ While section 312(a)(7) applies only to legally qualified
candidates for federal office, section 315 applies to all candidates
for elective office, whether federal, state, or local.
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The Communications Act does not define the term ``legally qualified
candidate,'' and therefore the Commission has adopted a definition, as
reflected in Sec. 73.1940.\18\ Generally, an individual seeking
election (other than for President or Vice President) must publicly
announce his or her intention to run for office,\19\ must be qualified
to hold the office for which he or she is a candidate,\20\ and must
have qualified for a place on the ballot or have publicly committed
himself or herself to seeking election by the write-in method.\21\ If
seeking election by the write-in method, the individual, in addition to
being eligible under applicable law to be a write-in candidate, must
make a ``substantial showing'' that he or she is a bona fide candidate
for the office being sought.\22\ Section 73.1940(f) of the Commission's
rules specifies the requirements to demonstrate a ``substantial
showing'' of a bona fide candidacy by providing a nonexclusive list of
activities commonly associated with political campaigning.
---------------------------------------------------------------------------
\18\ 47 CFR 73.1940. Section 76.5(q) of the Commission's rules
includes an identical definition of ``legally qualified candidates
for public office'' used for purposes of the political programming
rules governing cable systems. Id. Sec. 76.5(q). The definition of
``legally qualified candidates for public office'' set forth in
section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a).
\19\ Id. Sec. 73.1940(a)(1).
\20\ Id. Sec. 73.1940(a)(2).
\21\ Id. Sec. Sec. 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
\22\ Id. Sec. 73.1940(b)(2).
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Political Recordkeeping Obligations. The political recordkeeping
requirements serve to reinforce the statutory protections for political
programming. The Commission first adopted rules requiring broadcast
stations to maintain public inspection files documenting requests for
political advertising time more than 80 years ago.\23\ It is crucial
that stations maintain political files that are complete and up to date
because the information in them directly affects, among other things,
the statutory rights of opposing candidates to request equal
opportunities under section 315(a) of the Act and present their
positions to the public prior to an election.\2324\ Additionally, these
files enable the public to verify that licensees have complied with
their obligations relating to use of their facilities by candidates for
political office and to
[[Page 48944]]
obtain information about entities sponsoring candidate and issue
advertisements.\25\ The Commission also has applied political file
rules to cable television system operators,\24\ DBS providers,\25\ and
SDARS licensees,\26\ finding that the rationale for imposing such
requirements on broadcasters similarly applies to these entities.
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\25\ Review of the Commission's Rules Regarding the Main Studio
and Local Public Inspection Files of Broadcast Television and Radio
Stations, MM Docket No. 97-138, Report and Order, 13 FCC Rcd 15691,
15716, para. 54 (1998). In order for the public to verify that
licensees have complied with their obligations, the public can visit
a particular station or other entity's political file on the
Commission-hosted website https://publicfiles.fcc.gov/.
\24\ Amendment of Part 76 of the Commission's Rules and
Regulations Relative to Obligations of Cable Television Systems to
Maintain Public Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72, para. 1 (1974); 47
CFR 76.1701.
\25\ Section 335 of the Act imposes public interest obligations
on DBS providers and requires the Commission, at a minimum, to apply
the access to broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to DBS providers.
47 U.S.C. 335(a). The Commission adopted rules requiring DBS
providers to abide by political file obligations similar to those
requirements placed on terrestrial broadcasters and cable systems in
order to assist in evaluations of compliance with the political
programming rules and to enable competing candidates to review other
candidates' advertising access and rates. DBS Public Interest
Obligations Report and Order, 13 FCC Rcd at 23271, para. 41; DBS
Public Interest Obligations Sua Sponte ReconsIderation, 19 FCC Rcd
at 5561, para. 35; 47 CFR 25.701(d).
\26\ Expansion of Online Public File Obligations to Cable and
Satellite TV Operators and Broadcast and Satellite Radio Licensees,
MB Docket No. 14-217, Report and Order, 31 FCC Rcd 526, 537-38,
paras. 26-27 (2016) (Expansion of Online Public File Obligations);
Applications for Consent to the Transfer of Control of Licenses, XM
Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio
Inc., Transferee, MB Docket No. 07-57, Memorandum Opinion and Order
and Report and Order, 23 FCC Rcd 12348, 12415, para. 146 (2008); 47
CFR 25.702(b).
---------------------------------------------------------------------------
In 2002, Congress enacted the BCRA, which amended section 315 of
the Act.\27\ The BCRA added new section 315(e) to codify the
Commission's existing political file obligations by requiring that
information regarding any request to purchase advertising time that
``is made on behalf of a legally qualified candidate for public
office'' be placed in the political file.\28\ In addition, the BCRA
expanded the political file requirements to include any request to
purchase political advertising time that ``communicates a message
relating to any political matter of national importance.'' \29\
Specifically, section 315(e)(1) of the Act requires licensees to make
available for public inspection a complete record of each request for
the purchase of broadcast time by or on behalf of a legally qualified
candidate and by or on behalf of any other entity whose ad communicates
a message relating to any political matter of national importance.
---------------------------------------------------------------------------
\27\ Public Law 107-155, 504, 116 Stat. 81 (2002) (codified at
47 U.S.C. 315(e)).
\28\ 47 U.S.C. 315(e)(1).
\29\ Id.
---------------------------------------------------------------------------
A licensee shall maintain, and make available for public
inspection, a complete record of a request to purchase broadcast time
that--
(A) is made by or on behalf of a legally qualified candidate for
public office; or
(B) communicates a message relating to any political matter of
national importance, including--(i) a legally qualified candidate; \30\
---------------------------------------------------------------------------
\30\ The reference to ``licensee'' in section 315(e)(1) includes
broadcast licensees and cable system operators, SDARS licensees, and
DBS service providers engaged in origination programming. See 47 CFR
76.5(p), 76.1701, 25.701, 25.702.
---------------------------------------------------------------------------
The BCRA, at section 315(e)(2) of the Act,\31\ also specifies the
kinds of records that must be maintained in political files, and it
provides, at section 315(e)(3) of the Act, that ``[t]he information
required by [section 315(e)] shall be placed in a political file as
soon as possible and shall be retained by the licensee for a period of
not less than 2 years.'' \32\
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\31\ 47 U.S.C. 315(e)(2).
\32\ Id. Section 315(e)(3). See infra para. 15.
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II. Discussion
A. ``Substantial Showing'' for Write-In Candidates
In order to update our rules to make them consistent with present-
day campaign practices, we propose to amend Sec. Sec. 73.1940(f) and
76.5(q) of the Commission's rules to add the use of social media and
creation of a campaign website to the list of activities that a
broadcast licensee or cable operator may consider in determining
whether an individual who is running as a write-in candidate has made a
``substantial showing'' of his or her candidacy.\33\ The proposed
amendment would recognize both activities as among the practices that
are now commonly associated with political campaigning.
---------------------------------------------------------------------------
\33\ 47 CFR 73.1940(f), 76.5(q). As we explain above, the
definition of ``legally qualified candidates for public office'' set
forth in section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a). Thus, the analysis and
discussion here as well as revisions to the definition in section
73.1940 would apply to these entities as well.
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Only those individuals who have achieved the status of ``legally
qualified candidate'' are entitled to avail themselves of the benefits
and privileges bestowed by the political programming rules, including
the reasonable access,\34\ equal opportunities,\35\ and lowest unit
charge provisions.\36\ If seeking election by the write-in method, an
individual, in addition to being eligible under applicable law to be a
write-in candidate, must make a ``substantial showing'' that he or she
is a bona fide candidate for the office being sought.\37\
---------------------------------------------------------------------------
\34\ 47 U.S.C. 312(a)(7); 47 CFR 73.1944.
\35\ 47 U.S.C. 315(a); 47 CFR 73.1941, 76.205.
\36\ 47 U.S.C. 315(b); 47 CFR 73.1942, 76.206.
\37\ Id. Sections 73.1940(b)(2), 76.5(q)(2).
---------------------------------------------------------------------------
Questions as to whether an individual who is running as a write-in
candidate has made a ``substantial showing'' ordinarily arise when such
individual approaches a broadcast station or cable system and makes a
request to purchase time in furtherance of his or her candidacy or
seeks to avail himself or herself of equal opportunities.\38\ Sections
73.1940(f) and 76.5(q) define what it means to make a ``substantial
showing'' by listing various activities that are commonly associated
with political campaigning, including ``making campaign speeches,
distributing campaign literature, issuing press releases, [and]
maintaining a campaign headquarters.'' \39\
---------------------------------------------------------------------------
\38\ 47 U.S.C. 315(a).
\39\ 47 CFR 73.1940(f), 76.5(q)(5). The Media Bureau has long
required that an individual claiming to be a ``legally qualified
candidate'' by the write-in method bears the burden of demonstrating
that he or she has made a ``substantial showing'' of a bona fide
candidacy. See, e.g., Complaint of Michael Stephen Levinson, 87 FCC
2d 433, 435 (Broadcast Bur. 1980) (``The burden is on [the potential
candidates] to establish to the stations from which [they] seek
broadcast time under Section 312 that [they] have `engaged to a
substantial degree in activities commonly associated with political
campaigning.' ''). Further, the Media Bureau has held that a
broadcaster's or cable operator's determination as to whether a
potential write-in candidate has satisfied the ``substantial
showing'' requirement is entitled to deference, provided the
determination is reasonable and made in good faith. See Complaint by
Michael Levinson Against Station WXXI-TV, Rochester, New York, 1 FCC
Rcd 1305 (MMB 1986) (Michael Levinson) (``This agency will review
the licensee's decision only to determine if it was unreasonable or
made in bad faith.''); Complaint of Douglas S. Kraegar Against Radio
Station WTLB Utica, New York, 87 FCC 2d 751, 753 (Broadcast Bur.
1980) (``A licensee has the discretion to make a good faith judgment
as to the bona fide qualifications of a write-in candidate.''). Cf.,
CBS, Inc. v. FCC, 453 U.S. 367, 387 (1981) (``If broadcasters take
the appropriate factors into account and act reasonably and in good
faith, their decisions will be entitled to deference even if the
Commission's analysis would have differed in the first instance.'').
---------------------------------------------------------------------------
At the time our current rules were drafted, social media and
campaign websites did not exist. Media coverage of recent campaigns on
the national, state, and local levels indicates that the use of social
media has become an activity that bona fide candidates routinely use to
solicit support, financial contributions, and votes.\40\
[[Page 48945]]
Recent articles reveal that bona fide political campaigns use major
social media platforms to advertise, connect with supporters, and
fundraise \41\ and that such engagement in social media use, for
example, by creating a Twitter or Facebook account, typically increases
donations for new politicians.\42\ For instance, reports of the most
recent election reflect that candidates garnered support by posting
photographs and hosting chats on Instagram.\43\ In addition, social
media platforms enable political campaigns to build support by
disseminating campaign updates \44\ and targeting advertisements to
potential voters,\45\ and they provide sophisticated tools to regularly
measure user engagement.\46\
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\40\ See, e.g., Lata Nott, Political Advertising on Social Media
Platforms (June 26, 2020), https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/voting-in-2020/political-advertising-on-social-media-platforms/; Daniel Kreiss, Regina G.
Lawrence, and Shannon C. McGregor, In Their Own Words: Political
Practitioner Accounts of CandIdates, Audiences, Affordances, Genres,
and Timing in Strategic Social Media Use, 35 Pol. Commc'n 26, 12-13
(2018) (finding that each social media platform, with different
audiences and capabilities, provides ``a primary way for candidates
to introduce themselves to vastly dispersed constituencies and build
their support among potential volunteers, donors, and voters'').
\41\ See, e.g., Maria Petrova, Ananya Sen, and Pinar Yildirim,
Social Media and Political Contributions: The Impact of New
Technology on Political Competition, Management Science, 7-8 (2020)
(Petrova, Social Media and Political Contributions); Daniel Kreiss
and Shannon C. McGregor, Technology Firms Shape Political
Communication: The Work of Microsoft, Facebook, Twitter, and Google
with Campaigns During the 2016 U.S. PresIdential Cycle, 35 Pol.
Commc'n, 158-59 (2018).
\42\ Petrova, Social Media and Political Contributions, at 28.
\43\ University of Pennsylvania Knowledge @Wharton, How Social
Media Is Shaping Political Campaigns (Aug. 17, 2020), https://knowledge.wharton.upenn.edu/article/how-social-media-is-shaping-political-campaigns/.
\44\ See Petrova, Social Media and Political Contributions, at
5, 26-27 (``[M]ore frequent and more informative tweets (e.g.,
including links to websites, responding to news fast, or more anti-
establishment Tweets) are associated with receiving higher
contributions after adopting Twitter.'').
\45\ See, e.g., Google Transparency Report Help Center,
Political Advertising on Google FAQs, https://support.google.com/transparencyreport/answer/9575640#zippy=%2Cwhat-targeting-criteria-can-be-used-for-election-ads (last visited May 25, 2021); Snapchat
Business Help Center, Audience Insights, https://businesshelp.snapchat.com/s/article/audience-insights?language=en_US&_ga=2.101326145.1539846222.1621879796-1506173507.1621879796 (last visited May 25, 2021).
\46\ See, e.g., Facebook Business Help Center, About Breakdowns,
Metrics, and Filtering in Ads Reporting, https://www.facebook.com/business/help/264160060861852 (last visited May 25, 2021) (Ads
Reporting allows advertisers to analyze demographic metrics
including country, region, and designated market region); Google Ads
Help, About Measuring Geographic Performance, https://support.google.com/google-ads/answer/2453994?hl=en (last visited May
25, 2021) (Report Editor generates reports, which can show
performance of ads targeted by location).
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In order that our rules reflect ordinary campaign practices, we
propose to add the use of social media for the purpose of promoting or
furthering a campaign for public office to the list of recognized
campaign activities in Sec. Sec. 73.1940(f) and 76.5(q). We seek
comment on this proposal and the types of campaign-related activities
for which social media could be used in demonstrating a substantial
showing of a bona fide candidacy. For instance, a candidate might use
social media to raise funds, solicit votes, share policy positions, and
engage in digital dialogues with voters. We note that we are not
proposing that social media presence alone would be sufficient to
support a status of ``legally qualified candidate'' but that it would
be an additional indicator of activities commonly associated with
political campaigning needed to make substantial showing of a bona fide
candidacy.
We also propose to add creation of a campaign website to the list
of recognized campaign activities in Sec. Sec. 73.1940(f) and 76.5(q).
Recent articles indicate that campaign websites, like social media
platforms, are used by candidates to connect to a wide audience of
potential voters instantaneously and facilitate direct communication
and fundraising.\47\ Accordingly, we tentatively conclude that adding
the creation of a campaign website to the list of recognized activities
is justified for the same reasons provided in support of including use
of social media. We again note that a website alone would not be
sufficient to support a status of ``legally qualified candidate'' but
that it would be an additional indicator of activities commonly
associated with political campaigning needed to make substantial
showing of a bona fide candidacy. We seek comment on this conclusion
and the proposal.
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\47\ See, e.g., Dick Morris, Direct Democracy and the internet,
34 Loy. L.A. L. Rev. 1033 (2000); Diana Owen, New Media and
Political Campaigns, The Oxford Handbook of Pol. Commc'n (2014).
(since 2008, campaigns have used websites to incorporate interactive
applications and link to their social media accounts); Elisa
Shearer, Pew Research Center, CandIdates' Social Media Outpaces
Their websites and Emails As An Online Campaign News Sources (2016),
https://www.pewresearch.org/fact-tank/2016/07/20/candidates-social-media-outpaces-their-websites-and-emails-as-an-online-campaign-news-source/ (while candidates' social media posts outpace campaign
websites as a source of online campaign news, campaign websites are
also an important source of online campaign information).
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Finally, we seek comment on whether other activities consistent
with modern campaign practices, such as the use of digital marketing
and advertising, should be added to the list of recognized campaign
activities in Sec. Sec. 73.1940(f) and 76.5(q). If additional
activities are included, should the substantial showing analysis
involve any limiting factors, such as requiring that the marketing and
advertising be directed toward persons in areas where votes are being
solicited?
B. Implementation of the BCRA and Section 315 of the Act
We propose to revise the political file rules for broadcast
licensees, cable operators, DBS providers, and SDARS licensees to bring
them into conformity with the BCRA and section 315(e) of the Act.\48\
As discussed above, in 2002, Congress enacted the BCRA, which, among
other things, adopted new section 315(e) of the Act.\49\ While the
Commission has advised relevant parties consistent with the
recordkeeping requirements embodied in section 315(e), the rules were
not updated. Therefore, the changes that we are proposing today would
conform our rules to the statutory requirements. Specifically, section
315(e)(1) codifies the requirement that information regarding any
request to purchase advertising time that ``is made on behalf of a
legally qualified candidate for public office,'' also known as
candidate ads, be placed in the political file. It also specifies that
the political recordkeeping obligations include any request for the
purchase of advertising time that ``communicates a message relating to
any political matter of national importance,'' also known as issue
ads.\50\ Section 315(e)(2) identifies the specific records that must be
placed in political files for both candidate ads and issue ads that
communicate a message relating to a political matter of national
importance.\51\ These records include whether the request to purchase
broadcast time has been accepted or rejected, information about the
advertisement(s), and information about the advertiser. The
Commission's political file rules for broadcast licensees, cable
television system operators, DBS providers, and SDARS licensees
currently require these entities to maintain for public inspection only
those records that relate to requests for time by or on behalf of
candidates for public office.\54\ These rules make no mention of the
obligation specified in section 315(e)(1)(B) of the Act to also
maintain records of requests for time about issue ads that communicate
a
[[Page 48946]]
message relating to any political matter of national importance. Our
rules therefore do not fully reflect all of the statutory requirements.
We propose to revise the political file rules for these entities to
conform with the language in sections 315(e)(1) and (e)(2) of the Act.
Specifically, we propose to revise these rules to require these
entities to maintain in their online political inspection files not
only records of each request for advertising time that is made by or on
behalf of a legally qualified candidate for public office, but also for
each request for advertising time that ``communicates a message
relating to any political matter of national importance.'' \52\ In
addition, we propose to revise our rules to list the specific records
that must be maintained in online political files for both candidate
ads and issue ads, consistent with list enumerated in section
315(e)(2). These proposed revisions would implement Congress's
directive in the BCRA and ensure our political recordkeeping rules
reflect statutory requirements. We seek comment on this proposal.\53\
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\48\ 47 U.S.C. 315(e); 47 CFR 25.701(d), 25.702(b), 73.1943,
76.1701.
\49\ Public Law 107-155, Sec. 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
\50\ 47 U.S.C. 315(e)(1)(a) through (b).
\51\ 47 U.S.C. 315(e)(2).
\54\ 47 CFR 25.701(d), 25.702(b), 73.1943, 76.1701.
\52\ 47 U.S.C. 315(e)(1)(B).
\53\ We note that section 315(e)(3) of the Act provides that
``[t]he information required by [section 315(e)] shall be placed in
a political file as soon as possible and shall be retained by the
licensee for a period of not less than 2 years.'' 47 U.S.C.
315(e)(3). Our existing political file rules already include this
requirement. 47 CFR 25.701(d)(2), 25.702(b)(2), 73.1943(c),
76.1701(c). Therefore, we need not propose changes to these rules to
implement section 315(e)(3).
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C. Cost-Benefit Analysis
Finally, we seek comment on the benefits and costs associated with
adopting the proposed changes. In addition to any benefits to the
public at large, are there also benefits to industry through
clarification of the obligations on licensees and regulatees? We also
seek comment on any potential costs that would be imposed on licensees
and regulatees if we adopt the proposals contained in this NPRM. In
this regard, we note that the proposed changes would largely conform
our rules to the requirements of the statute. Comments should be
accompanied by specific data and analysis supporting claimed costs and
benefits.
III. Procedural Matters
Ex Parte Rules--Permit-But-Disclose. The proceeding this Notice
initiates shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules.\54\ Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
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\54\ 47 CFR 1.1200 et seq.
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Initial Regulatory Flexibility Act Analysis. The Regulatory
Flexibility Act of 1980, as amended (RFA), requires that a regulatory
flexibility analysis be prepared for notice and comment rulemaking
proceedings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' \55\ The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' In
addition, the term ``small business'' has the same meaning as the term
``small business concern'' under the Small Business Act.\56\ A ``small
business concern'' is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).\57\
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\55\ 5 U.S.C. 603.
\56\ Id. Section 601(3) (adopting by reference the definition of
``small business concern'' in 15 U.S.C. 632). Pursuant to the RFA,
the statutory definition of a small business applies ``unless an
agency, after consultation with the Office of Advocacy of the Small
Business Administration and after opportunity for public comment,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\57\ 15 U.S.C. 632.
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With respect to this Notice of Proposed Rulemaking, an Initial
Regulatory Flexibility Analysis (IRFA) under the RFA is contained in
Appendix B. Written public comments are requested on the IFRA and must
be filed in accordance with the same filing deadlines as comments on
this Notice of Proposed Rulemaking, with a distinct heading designating
them as responses to the IRFA. In addition, a copy of this Notice of
Proposed Rulemaking and the IRFA will be sent to the Chief Counsel for
Advocacy of the SBA and will be published in the Federal Register.
Paperwork Reduction Act. This document proposes new or modified
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens and pursuant to the
Paperwork Reduction Act of 1995, Public Law 104-13, invites the general
public and the Office of Management and Budget (OMB) to comment on
these information collection requirements. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we seek specific comment on how we might further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
Initial Regulatory Flexibility Act Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),\58\ the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities of the policies and rules proposed in this NPRM. The
Commission requests written public comments on this IRFA. Comments must
be identified as responses to the IRFA and must be filed by the
deadlines for comments specified in the NPRM. The Commission will send
a copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small
[[Page 48947]]
Business Administration (SBA).\59\ In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.\60\
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\58\ 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, has been amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996). The
SBREFA was enacted as Title II of the Contract with America
Advancement Act of 1996 (CWAAA).
\59\ 5 U.S.C. 603(a).
\60\ Id.
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Need for, and Objectives of, the Proposed Rules
While the agency has strived to update its guidance to reflect
changes in law and campaign practices, it has not undertaken a formal
review to update the political programming and recordkeeping rules
since 1991.\61\ Given the substantial growth of political media
messaging in recent years,\62\ the updates proposed in this item are
intended to conform our rules with statutory amendments, reflect
existing practices and guidance,\63\ and account for modern campaign
practices.
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\61\ Codification of the Commission's Political Programming
Policies, MM Docket No. 91-168, Report and Order, 7 FCC Rcd 678
(1991) (1991 Political Programming Order).
\62\ John Haltiwanger, Americans are Already Exhausted with the
2020 Election, and it's Just Getting Started. Other Countries Have
Laws Limited the Length of Campaigns (Feb. 10, 2020), https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2 (explaining that the 2020 U.S.
Presidential election would last approximately 1,194 days); Karl
Evers-Hillstrom, Most Expensive Ever: 2020 Election Cost $14.4
Billion (Feb. 11, 2021), https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/ (2020 campaign spending
doubled the amount in 2016).
\63\ The Commission has a longstanding practice of providing
informal guidance to broadcasters and other regulatees regarding
their political programming and related recordkeeping obligations
and working with industry representatives to foster compliance.
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Sections 312(a)(7) and 315 of the Communications Act of 1934, as
amended (Act), set forth the political programming obligations of
broadcast licensees and other Commission regulatees.\64\ Section
312(a)(7) requires broadcast licensees to give legally qualified
candidates for federal office ``reasonable access'' to their
facilities, or to permit them to purchase ``reasonable amounts of
time.'' \65\ Under section 315(a), if a broadcast licensee, cable
operator, or other regulatee permits one legally qualified candidate
for a public office to use its station, it must afford all other
candidates for that office an ``equal opportunity'' to use the
station.\66\ Section 315(b) provides that, during certain periods
before an election, legally qualified candidates are entitled to ``the
lowest unit charge of the station or cable system for the same class
and amount of time for the same period.'' \67\ The entitlements
embodied in sections 312(a)(7) and 315 of the Act are available only to
persons who have achieved the status of ``legally qualified
candidate.'' \68\
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\64\ 47 U.S.C. 312(a)(7), 315. The Commission has concluded that
section 312(a)(7) does not apply to cable operators. 1991 Political
Programming Order, 7 FCC Rcd at 679, para. 4. Section 315(c) of the
Act defines the term ``broadcasting station'' as including cable
television systems and the terms ``licensee'' and ``station
licensee'' as including cable operators. 47 U.S.C. 315(c) (``For
purposes of this section--(1) the term `broadcasting station'
includes a community antenna television system; and (2) the terms
`licensee' and `station licensee' when used with respect to a
community antenna television system mean the operator of such
system.''). Thus, the requirements of section 315 apply to cable
operators as well as broadcast licensees. In 1997, the Commission
extended the political programming provisions in sections 312(a)(7)
and 315 of the Act to SDARS licensees. Establishment of Rules and
Policies for the Digital Audio Radio Satellite Service in the 2310-
2360 MHz Frequency Band, IB Docket No. 95-91, Gen. Docket No. 90-
357, Report and Order Memorandum Opinion and Order and Further
Notice of Proposed Rulemaking, 12 FCC Rcd 5754, 5792, para. 92
(1997); 47 CFR 25.702(a)-(b). In 1998, in accordance with section
335 of the Act, 47 U.S.C. 335, the Commission established rules
applying the political programming rules in sections 312(a)(7) and
315 of the Act to DBS service providers. Implementation of Section
25 of the Cable Television Consumer Protection and Competition Act
of 1992, Direct Broadcast Satellite Public Interest Obligations, MM
Docket No. 93-205, Report and Order, 13 FCC Rcd 23254 (1998) (DBS
Public Interest Obligations Report and Order), recon. denied,
Memorandum Opinion and Order on Reconsideration of the First Report
and Order, 19 FCC Rcd 5854 (2003) (Order on ReconsIderation), Order
on ReconsIderation vacated and superseded by Second Order on
Reconsideration of First Report and Order, 19 FCC Rcd 5647 (2004)
(DBS Public Interest Obligations Sua Sponte ReconsIderation); 47 CFR
25.701(b)-(d).
\65\ 47 U.S.C. 312(a)(7). See 47 CFR 73.1944.
\66\ 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
\67\ 47 U.S.C. 315(b). See 47 CFR 73.1942, 76.206.
\68\ While section 312(a)(7) applies only to legally qualified
candidates for federal office, section 315 applies to all candidates
for elective office, whether federal, state, or local.
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Section 73.1940 of the Commission's rules defines who is a
``legally qualified candidate for public office.'' \69\ Generally, an
individual seeking election (other than for President or Vice
President) must publicly announce his or her intention to run for
office,\70\ must be qualified to hold the office for which he or she is
a candidate,\71\ and must have qualified for a place on the ballot or
have publicly committed himself or herself to seeking election by the
write-in method.\72\ If seeking election by the write-in method, the
individual, in addition to being eligible under applicable law to be a
write-in candidate, must make a ``substantial showing'' that he or she
is a bona fide candidate for the office being sought.\73\ Section
73.1940(f) of the Commission's rules specifies the requirements to
demonstrate a ``substantial showing'' of a bona fide candidacy by
providing a nonexclusive list of activities commonly associated with
political campaigning.
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\69\ 47 CFR 73.1940. Section 76.5(q) of the Commission's rules
includes an identical definition of ``legally qualified candidates
for public office'' used for purposes of the political programming
rules governing cable systems. Id. Sec. 76.5(q). The definition of
``legally qualified candidates for public office'' set forth in
section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a).
\70\ Id. Sec. 73.1940(a)(1).
\71\ Id. Sec. 73.1940(a)(2).
\72\ Id. Sec. Sec. 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
\73\ Id. Sec. 73.1940(b)(2).
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The political recordkeeping requirements serve to reinforce the
statutory protections for political programming. The Commission first
adopted rules requiring broadcast stations to maintain public
inspection files documenting requests for political advertising time
more than 80 years ago.\77\ It is crucial that stations maintain
political files that are complete and up to date because the
information in them directly affects, among other things, the statutory
rights of opposing candidates to request equal opportunities under
section 315(a) of the Act and present their positions to the public
prior to an election.\74\ Additionally, these files enable the public
to verify that licensees have complied with their obligations relating
to use of their facilities by candidates for political office and to
obtain information about entities sponsoring candidate and issue
advertisements.\75\ The Commission also has applied political file
rules to cable television system operators,\76\ DBS
[[Page 48948]]
providers,\77\ and SDARS licensees,\78\ finding that the rationale for
imposing such requirements on broadcasters similarly applies to these
entities.
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\77\ See 3 FR 1691 (1938).
\74\ Pursuant to section 73.1941(c) of the Rules, candidates
have one week from an opponent's initial ``use'' to request equal
opportunities. 47 CFR 73.1941(c). The failure by a station to
promptly upload information about each ``use'' denies requesting
candidates the notice they need to assert their statutory rights to
equal opportunities in a timely manner. Standardized and Enhanced
Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations, MM Docket Nos. 00-168 and 00-44, Second Report
and Order, 27 FCC Rcd 4535, 4562, para. 55 (2012).
\75\ Review of the Commission's Rules Regarding the Main Studio
and Local Public Inspection Files of Broadcast Television and Radio
Stations, MM Docket No. 97-138, Report and Order, 13 FCC Rcd 15691,
15716, para. 54 (1998).
\76\ Amendment of Part 76 of the Commission's Rules and
Regulations Relative to Obligations of Cable Television Systems to
Maintain Public Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72, para. 1 (1974); 47
CFR 76.1701.
\77\ Section 335 of the Act imposes public interest obligations
on DBS providers and requires the Commission, at a minimum, to apply
the access to broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to DBS providers.
47 U.S.C. 335(a). The Commission adopted rules requiring DBS
providers to abide by political file obligations similar to those
requirements placed on terrestrial broadcasters and cable systems in
order to assist in evaluations of compliance with the political
programming rules and to enable competing candidates to review other
candidates' advertising access and rates. DBS Public Interest
Obligations Report and Order, 13 FCC Rcd at 23271, para. 41; DBS
Public Interest Obligations Sua Sponte ReconsIderation, 19 FCC Rcd
at 5561, para. 35; 47 CFR 25.701(d).
\78\ Expansion of Online Public File Obligations to Cable and
Satellite TV Operators and Broadcast and Satellite Radio Licensees,
MB Docket No. 14.217, Report and Order, 31 FCC Rcd 526, 537-38,
paras. 26-27 (2016); Applications for Consent to the Transfer of
Control of Licenses, XM Satellite Radio Holdings Inc., Transferor,
to Sirius Satellite Radio Inc., Transferee, MB Docket No. 07-57,
Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348,
12415, para. 146 (2008); 47 CFR 25.702(b).
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In 2002, Congress enacted the Bipartisan Campaign Reform Act
(BCRA), which amended section 315 of the Act.\79\ The BCRA added new
section 315(e) to codify the Commission's existing political file
obligations by requiring that information regarding any request to
purchase advertising time that ``is made on behalf of a legally
qualified candidate for public office'' be placed in the political
file.\80\ In addition, the BCRA expanded the political file
requirements to include any request to purchase political advertising
time that ``communicates a message relating to any political matter of
national importance.'' \81\ Specifically, section 315(e)(1) of the Act
requires licensees to make available for public inspection a complete
record of each request for the purchase of broadcast time by or on
behalf of a legally qualified candidate and by or on behalf of any
other entity whose ad communicates a message relating to any political
matter of national importance.\82\
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\79\ Public Law 107-155, 504, 116 Stat. 81 (2002) (codified at
47 U.S.C. 315(e)).
\80\ 47 U.S.C. 315(e)(1).
\81\ Id.
\82\ Id. Section 315(e)(1).
The BCRA also specified the records that must be maintained in
political files. Specifically, section 315(e)(2) requires licensees
to place in their political files information that includes whether
the request to purchase broadcast time has been accepted or
rejected, information about the advertisement(s), and information
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about the advertiser.
Section 315(e)(3) of the Act provides that ``[t]he information
required by [section 315(e)] shall be placed in a political file as
soon as possible and shall be retained by the licensee for a period of
not less than 2 years.'' \87\
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\87\ Id. Section 315(e)(3).
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The NPRM proposes to revise the definition of ``legally qualified
candidate for public office'' to add the use of social media and
creation of a campaign website to the existing list of activities that
may be considered in determining whether an individual running as a
write-in candidate has made a ``substantial showing'' of his or her
bona fide candidacy.\83\ The NPRM also proposes to revise the
Commission's political file rules to conform with BCRA's amendment to
Section 315(e) of the Act, which included within the political file
requirements any request for the purchase of advertising time that
``communicates a message relating to any political matter of national
importance'' (i.e., issue ads) and specify the records that must be
maintained.\84\ Additionally, the proposed revisions would specify the
records that must be maintained in political files.
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\88\ Id. Section 315(e)(3).
\84\ Public Law 107-155, section 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
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Legal Basis
The proposed action is authorized under sections 151, 154(i),
154(j), 303(r), 307, 312, 315,335, and 403 of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 307, 312, 315,
335, and 403.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rule revisions, if adopted.\85\ The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \86\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act (SBA).\87\ A small business concern is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.\88\ Below, we provide a description of such
small entities, as well as an estimate of the number of such small
entities, where feasible.
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\85\ 5 U.S.C. 603(b)(3).
\86\ 5 U.S.C. 601(6); see infra note 38 (explaining the
definition of ``small business'' under 5 U.S.C. 601(3)); see 5
U.S.C. 601(4) (defining ``small organization'' as ``any not-for-
profit enterprise which is independently owned and operated and is
not dominant in its field, unless an agency establishes, after
opportunity for public comment, one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register''); 5 U.S.C. 601(5)
(defining ``small governmental jurisdiction'' as ``governments of
cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand,
unless an agency establishes, after opportunity for public comment,
one or more definitions of such term which are appropriate to the
activities of the agency and which are based on such factors as
location in rural or sparsely populated areas or limited revenues
due to the population of such jurisdiction, and publishes such
definition(s) in the Federal Register'').
\87\ 5 U.S.C. 601(3) (adopting by reference the definition of
``small business concern'' in 15 U.S.C. 632(a)(1)). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' Id.
\88\ 15 U.S.C. 632(a)(1)-(2)(A).
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Television Broadcasting. This U.S. Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' \89\ These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public.\90\ These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $41.5 million or less in annual receipts.\91\ According to
the 2012 Economic Census (when the SBA's size standard was set at $38.5
million or less in annual receipts), 751 firms in the small business
size category operated in that year. Of that number, 656 had annual
receipts of $25 million or less, 25 had annual receipts between $25
million and $49,999,999 and 70 had annual receipts of $50 million or
more.\92\ Based on this data, we estimate that the
[[Page 48949]]
majority of commercial television broadcast stations are small entities
under the applicable size standard.
---------------------------------------------------------------------------
\89\ U.S. Census Bureau, 2017 NAICS Definitions, ``515120
Television Broadcasting,'' https://www.census.gov./cgi-bin/sssd/
naics/naicsrch.
\90\ Id.
\91\ 13 CFR 121.201; 2012 NAICS code 515120.
\92\ U.S. Census Bureau, Table No. EC1251SSSZ4, Information:
Subject Series--Establishment and Firm Size: Receipts Size of Firms
for the United States: 2012 (515120 Television Broadcasting).
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.
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Additionally, the Commission has estimated the number of licensed
commercial television stations to be 1,374.\93\ Of this total, 1,263
stations (or 92%) had revenues of $41.5 million or less in 2019,
according to Commission staff review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on July 30, 2020, and therefore
these stations qualify as small entities under the SBA definition. In
addition, the Commission estimates the number of noncommercial
educational television stations to be 384.\94\ The Commission does not
compile and does not have access to information on the revenue of NCE
stations that would permit it to determine how many such stations would
qualify as small entities. There are also 386 Class A stations.\95\
Given the nature of this service, the Commission presumes that all of
these stations qualify as small entities under the applicable SBA size
standard.
---------------------------------------------------------------------------
\93\ Broadcast Station Totals as of March 31, 2021, News Release
(MB Apr. 5, 2021) (Mar. 31, 2021 Broadcast Station Totals), https://www.fcc.gov/document/broadcast-station-totals-march-31-2021.
\94\ Id.
\95\ Id.
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Radio Broadcasting. This U.S. Economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public.'' \96\ Programming may originate in the
establishment's own studio, from an affiliated network, or from
external sources. The SBA has created the following small business size
standard for such businesses: Those having $41.5 million or less in
annual receipts.\97\ According to Economic Census data for 2012 (when
the SBA's size standard was set at $38.5 million or less in annual
receipts), 2,849 firms in this category operated in that year.\98\ Of
that number, 2,806 operated with annual receipts of less than $25
million per year, 17 with annual receipts between $25 million and
$49,999,999 million and 26 with annual receipts of $50 million or
more.\99\ Based on this data, we estimate that the majority of
commercial radio broadcast stations were small under the applicable SBA
size standard.
---------------------------------------------------------------------------
\96\ U.S. Census Bureau, 2017 NAICS Definitions, ``515112 Radio
Stations,'' https://www.census.gov./cgi-bin/sssd/naics/naicsrch.
\97\ 13 CFR 121.201; 2017 NAICS code 515112.
\98\ U.S. Census Bureau, U.S. Census Bureau, Table No.
EC1251SSSZ4, Information: Subject Series--Establishment and Firm
Size: Receipts Size of Firms for the United States: 2012 (515112
Radio Stations) https://factfinder.census.gov/bkmk/table/1.0/en/ECN/
2012_US/51SSSZ4//naics~515112[verbar].
\99\ Id.
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The Commission has estimated the number of licensed commercial AM
radio stations to be 4,546 and the number of commercial FM radio
stations to be 6,682 for a total of 11,228 commercial stations.\100\ Of
this total, 11,266 stations (or 99%) had revenues of $41.5 million or
less in 2019, according to Commission staff review of the BIA Kelsey
Inc. Media Access Pro Television Database (BIA) on July 30, 2020, and
therefore these stations qualify as small entities under the SBA
definition. In addition, there were 4,213 noncommercial, educational
(NCE) FM stations. The Commission does not compile and does not have
access to information on the revenue of NCE stations that would permit
it to determine how many such stations would qualify as small entities.
---------------------------------------------------------------------------
\100\ Mar. 31, 2021 Broadcast Station Totals.
---------------------------------------------------------------------------
We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations \101\ must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
another element of the definition of ``small business'' requires that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific television broadcast station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which the rules may apply does not exclude any radio or television
station from the definition of a small business on this basis and is
therefore possibly over-inclusive. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. Because it is difficult to assess
these criteria in the context of media entities, the estimate of small
businesses to which the rules may apply does not exclude any radio or
television station from the definition of a small business on this
basis and similarly may be over-inclusive.
---------------------------------------------------------------------------
\101\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has the power to control both.''
13 CFR 21.103(a)(1).
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Cable Companies and Systems (Rate Regulation Standard) The
Commission has also developed its own small business size standards for
the purpose of cable rate regulation. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers
nationwide.\102\ Industry data indicates that, of the 777 cable
companies currently operating in the United States, 766 serve 400,000
or fewer subscribers.\103\ Additionally, under the Commission's rules,
a ``small system'' is a cable system serving 15,000 or fewer
subscribers.\104\ According to industry data, there are currently 4,336
active cable systems in the United States.\105\ Of this total, 3,650
cable systems have fewer than 15,000 subscribers.\106\ Thus, the
Commission believes that the vast majority of cable companies and cable
systems are small entities.
---------------------------------------------------------------------------
\102\ 47 CFR 76.901(d). The Commission determined that this size
standard equates approximately to a size standard of $100 million or
less in annual revenues. Implementation of Sections of the Cable
Television Consumer Protection and Competition Act of 1992: Rate
Regulation, MM Docket Nos. 93-215 and 92-266, Sixth Report and Order
and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408, para.
28 (1995).
\103\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: National Report, Subscribers by Operator,
https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome (last visited Jul. 28, 2020).
\104\ 47 CFR 76.901(c).
\105\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: Headend by Headend Report, Subscribers by
Headend, https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome (last visited Jul. 28,
2020).
\106\ Id.
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Cable System Operators (Telecom Act Standard). The Communications
Act of 1934, as amended, also contains a size standard for small cable
system operators, which is ``a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than one percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' \107\ As of 2019, there were approximately 48,646,056
basic cable video subscribers in the United States.\108\ Accordingly,
an operator serving fewer than 486,460 subscribers shall be deemed a
small operator if its annual revenues, when combined with the total
annual revenues of all its affiliates, do not exceed $250 million in
the aggregate.\109\ Based on available data, we find that all but five
cable operators are small entities under this
[[Page 48950]]
size standard.\110\ We note that the Commission neither requests nor
collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million.\111\
Therefore, we are unable at this time to estimate with greater
precision the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.
---------------------------------------------------------------------------
\107\ 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(e).
\108\ S&P Global Market Intelligence, U.S. Cable Subscriber
Highlights, Basic Subscribers(actual) 2019, U.S. Cable MSO Industry
Total, see also U.S. Multichannel Industry Benchmarks, U.S. Cable
Industry Benchmarks, Basic Subscribers 2019Y, https://platform.marketintelligence.spglobal.com.
\109\ 47 CFR 76.901(e).
\110\ S&P Global Market Intelligence, Top Cable MSOs as of 12/
2019, https://platform.marketintelligence.spglobal.com. The five
cable operators all had more than 486,460 basic cable subscribers.
\111\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to Sec. 76.901(e) of the Commission's rules. See 47 CFR
76.910(b).
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Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic dish antenna at
the subscriber's location. For the purposes of economic classification,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
the Wired Telecommunications Carriers industry.\112\ The Wired
Telecommunications Carriers industry comprises establishments primarily
engaged in operating and/or providing access to transmission facilities
and infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or combination of technologies. Establishments in this industry use the
wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution; and wired broadband internet services.\113\ The SBA
determines that a wireline business is small if it has fewer than 1,500
employees.\114\ Economic census data for 2012 indicate that 3,117
wireline companies were operational during that year. Of that number,
3,083 operated with fewer than 1,000 employees.\115\ Based on that
data, we conclude that the majority of wireline firms are small under
the applicable standard. However, currently only two entities provide
DBS service, which requires a great deal of capital for operation:
DIRECTV (owned by AT&T) and DISH Network.\116\ According to industry
data, DIRECTV and DISH serve 14,831,379 and 8,957,469 subscribers
respectively, and count the third and fourth most subscribers of any
multichannel video distribution system in the U.S.\117\ Given the
capital required to operate a DBS service, its national scope, and the
approximately one-third share of the video market controlled by these
two companies,\118\ we presume that neither would qualify as a small
business.
---------------------------------------------------------------------------
\112\ See 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517311&search=2017%20NAICS%20Search (last
accessed Jul. 27, 2020).
\113\ Id.
\114\ 13 CFR 121.201 (NAICS Code 517311).
\115\ See Information: Subject Series--Estab and Firm Size:
Employment Size of Firms for the U.S.: 2012, 2012 Economic Census of
the United States, TableID: EC1251SSSZ5, https://data.census.gov/cedsci/table?q=EC1251&hidePreview=true&table=EC1251SSSZ5&tid=ECNSIZE2012.EC1251SSSZ5&lastDisplayedRow=28# (last accessed Jul. 27, 2020) (NAICS
Code 517110 applied at the time of the 2012 Economic Census).
\116\ See Communications Marketplace Report et al., GN Docket
No. 18-231 et al., Report, 33 FCC Rcd 12558, 12597, paras. 50-51
(2018).
\117\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: National Report, Subscribers by Operator,
https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome (last visited Jul. 31, 2020).
\118\ See S&P Global Market Intelligence, Global Multichannel
Top Operators, U.S., https://platform.mi.spglobal.com/web/client?auth=inherit#industry/multichannelIndustryBenchmarks (last
visited Jul. 31, 2020) (There were approximately 63,650,261 total
multichannel subscribers in the U.S. in 2019).
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Satellite Radio. The rules proposed in this NPRM would affect the
sole, current U.S. provider of satellite radio (SDARS) services,
Sirius-XM, which offers subscription services. Sirius-XM reported
revenue of $5.78 billion and a net income of $1.1 billion in 2018.\119\
In light of these figures, we believe it is unlikely that this entity
would be considered small.
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\119\ See https://s1.q4cdn.com/750174072/files/doc_financials/2019/ar/2fb89e07-9f09-4e20-be79-9e194d70cd5e.pdf.
---------------------------------------------------------------------------
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Reporting Requirements. The NPRM does not propose any new or
modified reporting requirements.
Recordkeeping Requirements. The NPRM proposes to revise the
political file rules, consistent with the BCRA's amendment to section
315(e) of the Act, to reflect statutory requirements that broadcast
licensees, cable television system operators, DBS providers, and SDARS
licensees are obligated to maintain in their online political
inspection files records of each request for advertising time that ``is
made on behalf of a legally qualified candidate for public office'' and
each request for advertising time that ``communicates a message
relating to any political matter of national importance'' (i.e., issue
ads). In addition, the NPRM proposes to list the specific records that
must be maintained in political files.
Other Compliance Requirements. The NPRM proposes to revise the
political programming rules to add the use of social media to the list
of activities that a broadcast licensee or cable operator may consider
in determining whether an individual who is running as a write-in
candidate has made a ``substantial showing'' of his or her candidacy.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\120\
---------------------------------------------------------------------------
\120\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------
The proposed revisions to the political file rules to implement the
BCRA would largely codify existing Commission policy and guidance.
Thus, we expect that these revisions, if adopted, would not impose
significant new recordkeeping burdens on small entities. We also seek
comment on possible modifications to the proposed revisions to the
political file rules to lessen any burdens on small entities.
In addition, we anticipate that the proposal to add the use of
social media to the list of activities that may be considered in
determining whether an individual who is running as a write-in
candidate has made a ``substantial showing'' of his or her candidacy
would only benefit small entities by providing additional guidance on
how to make such determinations.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
None.
Ordering Clauses
Accordingly, it is ordered that, pursuant to the authority
contained in
[[Page 48951]]
sections 1, 4(i), 4(j), 303, 307, 312, 315, 335, and 403 of the
Communications Act, 47 U.S.C 151, 154(i), 154(j), 303, 307, 312, 315,
335, and 403, this Notice of Proposed Rulemaking is adopted.
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Parts 25
Radio, Reporting and recordkeeping requirements,
Telecommunications.
47 CFR Part 73
Cable television, Education, Radio, Reporting and recordkeeping
requirements, Telecommunications
47 CFR Part 76
Cable television, internet, Reporting and recordkeeping
requirements, Telecommunications
Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer, Office of the Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 25, 73, and 76
as follows:
PART 25--SATELLITE COMMUNICATIONS
0
1. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319,
332, 605, and 721, unless otherwise noted.
0
2. Amend Sec. 25.701 by revising paragraph (d) to read as follows:
Sec. 25.701 Other DBS Public interest obligations.
* * * * *
(d) Political File. (1) Each DBS operator engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(i) Is made by or on behalf of a legally qualified candidate for
public office; or
(ii) Communicates a message relating to any political matter of
national importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of public importance.
(2) Contents of record. A record maintained under this paragraph
shall contain information regarding:
(i) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(ii) The rate charged for the broadcast time;
(iii) The date and time on which the communication is aired;
(iv) The class of time that is purchased;
(v) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(vi) In the case of a request made by, or on behalf of, a
candidate, the name of the candidate, the authorized committee of the
candidate, and the treasurer of such committee; and
(vii) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
(3) When free time is provided for use by or on behalf of
candidates, a record of the free time provided shall be placed in the
political file.
(4) All records required by this paragraph shall be placed in the
online political file as soon as possible and shall be retained for a
period of two years. As soon as possible means immediately absent
unusual circumstances.
* * * * *
0
3. Amend Sec. 25.702 by revising paragraph (b) to read as follows:
Sec. 25.702 Other SDARS Public interest obligations.
* * * * *
(b) Political File. (1) Each SDARS licensee engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(i) Is made by or on behalf of a legally qualified candidate for
public office; or
(ii) Communicates a message relating to any political matter of
national importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of public importance.
(2) Contents of record. A record maintained under this paragraph
shall contain information regarding:
(i) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(ii) The rate charged for the broadcast time;
(iii) The date and time on which the communication is aired;
(iv) The class of time that is purchased;
(v) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(vi) In the case of a request made by, or on behalf of, a
candidate, the name of the candidate, the authorized committee of the
candidate, and the treasurer of such committee; and
(vii) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
(3) When free time is provided for use by or on behalf of
candidates, a record of the free time provided shall be placed in the
political file.
(4) All records required by this paragraph shall be placed in the
online political file as soon as possible and shall be retained for a
period of two years. As soon as possible means immediately absent
unusual circumstances.
* * * * *
PART 73--RADIO BROADCAST SERVICES
0
4. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
5. Amend Sec. 73.1940 by revising paragraph (f) to read as follows:
Sec. 73.1940 Legally qualified candidates for public office.
* * * * *
(f) The term ``substantial showing'' of a bona fide candidacy as
used in paragraphs (b), (d) and (e) of this section means evidence that
the person claiming to be a candidate has:
(1) Satisfied the requirements under applicable law to run as a
write-in (such as registering, collecting signatures, paying fees,
etc.); and
(2) Has engaged to a substantial degree in activities commonly
associated with political campaigning. Such activities normally would
include making campaign speeches, distributing
[[Page 48952]]
campaign literature, issuing press releases, maintaining a campaign
committee, establishing campaign headquarters (even though the
headquarters in some instances might be the residence of the candidate
or his or her campaign manager), creating a campaign website, and using
social media for the purpose of promoting or furthering a campaign for
public office. Not all of the listed activities are necessarily
required in each case to demonstrate a substantial showing, and there
may be activities not listed herein which would contribute to such a
showing.
0
6. Amend Sec. 73.1943 by revising paragraph (a), redesignating
paragraphs (b) and (c) as paragraphs (c) and (d), and adding new
paragraph (b) to read as follows:
Sec. 73.1943 Political file.
(a) A licensee shall maintain, and make available for public
inspection, a complete record of a request to purchase broadcast time
that:
(1) Is made by or on behalf of a legally qualified candidate for
public office; or
(2) Communicates a message relating to any political matter of
national importance, including:
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of public importance.
(b) Contents of record. A record maintained under paragraph (a) of
this section shall contain information regarding:
(1) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(2) The rate charged for the broadcast time;
(3) The date and time on which the communication is aired;
(4) The class of time that is purchased;
(5) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(6) In the case of a request made by, or on behalf of, a candidate,
the name of the candidate, the authorized committee of the candidate,
and the treasurer of such committee; and
(7) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
* * * * *
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
7. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
8. Amend Sec. 76.5 by revising paragraph (q)(5) to read as follows:
Sec. 76.5 Definitions.
* * * * *
(q) * * *
(5) The term ``substantial showing'' of a bona fide candidacy as
used in paragraph (q) (2), (3), and (4) of this section means evidence
that the person claiming to be a candidate has:
(i) Satisfied the requirements under applicable law to run as a
write-in (such as registering, collecting signatures, paying fees,
etc.); and
(ii) Has engaged to a substantial degree in activities commonly
associated with political campaigning. Such activities normally would
include making campaign speeches, distributing campaign literature,
issuing press releases, maintaining a campaign committee, establishing
campaign headquarters (even though the headquarters in some instances
might be the residence of the candidate or his or her campaign
manager), creating a campaign website, and using social media for the
purpose of promoting or furthering a campaign for public office. Not
all of the listed activities are necessarily required in each case to
demonstrate a substantial showing, and there may be activities not
listed herein which would contribute to such a showing.
* * * * *
0
9. Amend Sec. 76.1701 by revising paragraph (a), redesignating
paragraphs (b) through (d) as paragraphs (c) through (e), and adding
new paragraph (b) to read as follows:
Sec. 76.1701 Political file.
(a) Every cable television system operator engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(1) Is made by or on behalf of a legally qualified candidate for
public office; or
(2) Communicates a message relating to any political matter of
national importance, including:
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of public importance.
(b) Contents of record. A record maintained under paragraph (a) of
this section shall contain information regarding:
(1) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(2) The rate charged for the broadcast time;
(3) The date and time on which the communication is aired;
(4) The class of time that is purchased;
(5) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(6) In the case of a request made by, or on behalf of, a candidate,
the name of the candidate, the authorized committee of the candidate,
and the treasurer of such committee; and
(7) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
* * * * *
[FR Doc. 2021-17754 Filed 8-31-21; 8:45 am]
BILLING CODE 6712-01-P
