Political Programming and Recordkeeping Rules, 7748-7756 [2022-02484]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 87, Number 28 (Thursday, February 10, 2022)]
[Rules and Regulations]
[Pages 7748-7756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02484]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 25, 73, and 76

[MB Docket No. 21-293; FCC 22-5; FR ID 69577]


Political Programming and Recordkeeping Rules

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Commission updates the 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 revisions conform the political programming and recordkeeping rules 
with statutory requirements, reflect modern campaign practices, and 
increase transparency.

DATES: Effective March 14, 2022, except for the amendments to 
Sec. Sec.  25.701(d), 25.702(b), 73.1943, and 76.1701, which are 
delayed indefinitely. The Commission will publish a document in the 
Federal Register announcing the effective date.

FOR FURTHER INFORMATION CONTACT: For additional information, contact 
Kathy Berthot, [email protected], of the Media Bureau, Policy 
Division, (202) 418-7454.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order, FCC 22-5, adopted and released on January 25, 2022. This 
document will be available via ECFS, https://www.fcc.gov/cgb/ecfs/. 
Documents will be available electronically in ASCII, 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).

Paperwork Reduction Act of 1995 Analysis

    This document contains new or modified information collection 
requirements. The Commission, as part of its continuing effort to 
reduce paperwork burdens, will invite the general public and the OMB to 
comment on the information collection requirements contained in the 
amendments to Sec. Sec.  25.701(d), 25.702(b), 73.1943(a) and (b), and 
76.1701(a) and (b), in a separate Federal Register document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13, see 
44 U.S.C. 3507. 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 
previously sought specific comment on how we might further reduce the 
information collection burden for small business concerns with fewer 
than 25 employees.

Congressional Review Act

    The Commission has determined, and the Administrator of the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
concurs, that this rule is ``non-major'' under the Congressional Review 
Act, 5 U.S.C. 804(2). The Commission will send a copy of this Report 
and Order to Congress and the Government Accountability Office pursuant 
to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Synopsis

I. Introduction

    1. In this Report and Order, we 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. We 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. We also 
amend our political file rules consistent with the Bipartisan Campaign 
Reform Act of 2002 (BCRA), which extends the Commission's political 
file requirements to 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 specifies the records that 
must be maintained. These updates, which are consistent with the 
proposals set forth in the Notice of Proposed Rulemaking (NPRM) in this 
proceeding, not only conform our rules with statutory requirements, 
they also reflect modern campaign practices and increase transparency.

II. Background

    2. In recognition of the critical role that political programming 
plays in keeping the electorate informed, Congress has long established 
specific requirements governing political programming. These 
requirements ensure that candidates for elective office have access to 
broadcast facilities and certain other media platforms and foster 
transparency about entities sponsoring advertisements.
    3. 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), 47 U.S.C. 312(a)(7), 315. 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.'' Section 312(a)(7) of the Act 
also applies to SDARS licensees and DBS service providers, but it does 
not apply to cable system operators. 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. 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.'' 
The equal opportunity and lowest unit charge requirements also apply to 
cable system operators, SDARS licensees, and DBS service providers. The 
entitlements afforded by Sections 312(a)(7) and 315 of the Act are 
available only to individuals who have achieved the status of ``legally 
qualified candidate.''
    4. The Communications Act does not define the term ``legally 
qualified candidate,'' but the Commission has adopted a definition and 
codified it in Section 73.1940. Generally, in order to be considered a 
``legally qualified candidate,'' an individual must publicly announce 
his or her intention to run for office, must be qualified to hold the 
office for which he or she is a candidate,

[[Page 7749]]

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. 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. Section 73.1940(f) of the 
Commission's rules establishes the requirements for making a 
``substantial showing'' of a bona fide candidacy. The term 
``substantial showing'' of a bona fide candidacy means ``evidence that 
the person claiming to be a candidate has engaged to a substantial 
degree in activities commonly associated with political campaigning.'' 
Such activities include making campaign speeches, distributing campaign 
literature, issuing press releases, maintaining a campaign committee, 
and establishing campaign headquarters.
    5. Political Recordkeeping Obligations. The political recordkeeping 
requirements are integral to ensuring compliance with the statutory 
protections for political programming. The Commission initially adopted 
rules requiring broadcast stations to maintain public inspection files 
documenting requests for political advertising time more than 80 years 
ago. The Commission subsequently extended political file rules to cable 
television system operators, DBS providers, and SDARS licensees. 
Requiring these entities to maintain complete and up to date political 
files is critical because the information in these files 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. In 
addition, the political files allow the public to verify that 
Commission licensees and regulatees 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.
    6. In 2002, Congress enacted the BCRA, which amended Section 315 of 
the Act. The BCRA added a 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. The BCRA also 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,'' (i.e., issue ads). Additionally, Section 
315(e)(2) of the Act specifies the kinds of records that must be 
maintained in political files, and 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.''
    7. In August 2021, the Commission adopted an NPRM proposing to 
update the political programming and recordkeeping rules. The NPRM 
proposed to revise the definition of ``legally qualified candidate'' 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. The NPRM 
also proposed to revise the political file rules to conform with 
Section 315(e), as amended by the BCRA. Only three comments were 
submitted in response to the NPRM. The National Association of 
Broadcasters (NAB) supports adding the use of social media and the 
creation of a campaign website to the list of activities that may be 
taken into account in determining whether a write-in candidate has made 
a substantial showing that he or she is a ``legally qualified candidate 
for public office'' but submits that certain conditions should apply. 
Kenia Trujillo (Trujillo) raises concerns that adding the use of social 
media to this list would make it too easy for anyone to obtain status 
as a ``legally qualified candidate for public office.'' Canal Partners 
Media, LLC (Canal Partners) asserts that broadcast licensees often 
refuse to comply with the political file obligations, which makes it 
difficult to monitor their compliance with the political programming 
requirements. No reply comments were submitted.

III. Discussion

A. Substantial Showing for Write-In Candidates

    8. We adopt our proposal and update the definition of ``legally 
qualified candidate for public office'' in Sections 73.1940 and 76.5(q) 
of the Commission's rules to add the use of social media and the 
creation of a campaign website to the list of activities that a 
broadcast licensee or cable operator may take into account in 
determining whether an individual running as a write-in candidate has 
made a ``substantial showing'' of his or her bona fide candidacy. As we 
explain above, only those individuals who have achieved the status of 
``legally qualified candidate'' may avail themselves of the benefits 
bestowed by the political programming rules, including the reasonable 
access, equal opportunities, and lowest unit charge provisions. An 
individual seeking elective office using the write-in method must, in 
addition to being eligible under applicable law to be a write-in 
candidate, make a ``substantial showing'' that he or she is a bona fide 
candidate for the office. Sections 73.1940(f) and 76.5(q)(5) 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.''
    9. We conclude that adding the use of social media and the creation 
of a campaign website to the list of activities that may be taken into 
account in determining whether there has been a ``substantial showing'' 
of a bona fide candidacy will ensure that our definition of ``legally 
qualified candidate'' more accurately reflects modern campaign 
practices. As stated above, NAB supports this revision. In so doing, it 
``agree[s] with the FCC that modern candidates routinely use social 
media and campaign websites to share their views and solicit votes and 
financial contributions.'' Recent articles reinforce that bona fide 
political campaigns use major social media platforms, such as Twitter, 
Facebook, and Instagram, to share campaign updates, communicate with 
voters, advertise, solicit support, and fundraise, and that such 
engagement in social media use typically increases donations for new 
politicians. In addition, social media platforms enable political 
campaigns, especially for new or lesser known candidates, to build 
support by disseminating campaign updates and targeting advertisements 
to potential voters, and they provide sophisticated tools to regularly 
measure user engagement. It also has become common practice for bona 
fide candidates to use campaign websites to connect to a wide audience 
of potential voters and facilitate direct communication and 
fundraising. No commenters challenged or rebutted the proposition that 
candidates today regularly use social media and campaign websites to 
connect with voters or the articles and media reports cited in the NPRM 
to support that proposition. We therefore

[[Page 7750]]

conclude that revising the definition of ``legally qualified 
candidates'' to add the use of social media and the creation of a 
campaign website to the list of activities that may be considered in 
determining whether there has been a ``substantial showing'' of a bona 
fide candidacy is consistent with modern campaign practices.
    10. Some examples of social media activities that may support a 
substantial showing of a bona fide candidacy include the use of social 
media to fundraise, solicit votes, share policy positions, and engage 
in digital dialogues with voters. These examples are intended to be 
illustrative, rather than an exhaustive list of the social media 
activities that may be relied upon in making a substantial showing of a 
bona fide candidacy. Other campaign-related uses of social media may be 
taken into account in determining whether an individual has made a 
substantial showing that he or she is a ``legally qualified 
candidate.''
    11. We emphasize that the use of social media and campaign websites 
alone will not be sufficient to support a finding that an individual 
has made a substantial showing that he or she is a ``legally qualified 
candidate.'' As NAB points out, ``given the simplicity of creating and 
running a social media account or website, certain stipulations should 
apply to ensure the legitimacy of candidates. Otherwise, any individual 
with a Facebook, Twitter or Instagram account could claim status as a 
legally qualified candidate . . . .'' Accordingly, as proposed in the 
NPRM, social media presence and campaign websites will be treated as 
additional indicators of activities commonly associated with political 
campaigning that may be relied on to make a substantial showing of a 
bona fide candidacy, not as determinative factors. At NAB's suggestion, 
we include language in the substantial showing rules that specifically 
states that ``[t]he creation of campaign websites and the use of social 
media shall be additional indicators of a bona fide candidacy, not 
determinative factors.'' We therefore reject concerns raised by 
Trujillo that the addition of social media to the list of activities 
that supports a substantial showing for a write-in candidate could 
allow anyone to rely solely on social media and campaign websites to 
obtain status as a ``legally qualified candidate for public office.''
    12. We agree with NAB that only digital activities that are 
directly related to the campaign should be counted toward the requisite 
substantial showing. The definition of ``legally qualified candidate'' 
set forth in our rules states that ``the term substantial showing of a 
bona fide candidacy . . . means evidence that the person claiming to be 
a candidate has engaged to a substantial degree in activities commonly 
associated with political campaigning.'' In the NPRM, we proposed to 
add to the list of activities commonly associated with political 
campaigning ``creating a campaign website, and using social media for 
the purpose of promoting or furthering a campaign for public office.'' 
This language, which we are including in the final rules, makes clear 
that only digital activities that are campaign-related should be taken 
into account in determining whether there has been a substantial 
showing of a bona fide candidacy.
    13. We agree with NAB that digital activities like social media and 
campaign websites must be combined with campaign activities conducted 
in the relevant geographic area to substantiate a candidate's ``genuine 
interest in elective office,'' ``given the simplicity of creating and 
running a social media account or website.'' Therefore, we are 
including language in the revised substantial showing rules that 
specifically states that ``[t]he creation of a campaign website and the 
use of social media shall be additional indicators of a bona fide 
candidacy, not determinative factors, and that such digital activities 
must be combined with other activities commonly associated with 
political campaigning that are conducted in substantial portions of the 
relevant geographic area'' (e.g., establishing a campaign headquarters, 
making campaign speeches, participating in debates, appearances at 
community events, and distributing campaign literature). We note that 
the NPRM contemplated a similar geographic limitation in seeking 
comment on whether to add any other activities consistent with modern 
campaign practices, such as digital marketing and advertising, to the 
list of recognized campaign activities, specifically asking whether the 
substantial showing analysis should ``involve any limiting factors, 
such as requiring that the marketing and advertising be directed toward 
persons in areas where votes are being solicited.'' We find that the 
requirement that digital activities like social media and campaign 
websites must be combined with campaign activities conducted in the 
relevant geographic area is an appropriate and necessary limitation on 
our original proposal to ensure a candidate's legitimacy when relying 
on social media and campaign websites. We will consider what 
constitutes the ``relevant geographic area'' on a case-by-case basis. 
In general, however, the ``relevant geographic area'' will consist of 
the legislative, congressional, or other electoral district in which 
the candidate is soliciting votes from eligible voters.
    14. NAB requests that we amend our substantial showing rules to 
specify that write-in candidates ``bear the burden of demonstrating the 
substantial showing required'' to be a legally qualified candidate, and 
that a Commission licensee or regulatee's ``reasonable, good faith 
determination as to whether a candidate has fulfilled this requirement 
is entitled to deference.'' We agree with these interpretations and 
note that the Media Bureau has long interpreted the Commission's 
substantial showing rules in this manner. Given the dearth of comments 
on this question, including from political candidates and the public, 
we decline to amend our rules. However, we will address these issues 
based on the facts and circumstances of each particular case in keeping 
with this interpretation.
    15. Additionally, we decline to add any other activities consistent 
with modern campaign practices, such as the use of digital marketing 
and advertising, to the list of recognized campaign activities in 
Sections 73.1940(f) and 76.5(q)(5) of our rules. No commenter expressly 
supported or even addressed the addition of other such activities to 
the list of recognized campaign activities set forth in the rules. In 
the absence of any support or comment in the record on this issue, we 
conclude that the addition of other activities to the list is not 
warranted at this time.

B. Implementation of the BCRA and Section 315 of the Act

    16. We adopt our proposal and amend the political file rules for 
broadcast licensees, cable operators, DBS providers, and SDARS 
licensees consistent with the BCRA and Section 315(e) of the Act. No 
commenter objects to this update. Enacted in 2002, the BCRA, among 
other things, added a new Section 315(e) of the Act. Section 
315(e)(1)(A) codifies the Commission's long-standing requirement that 
records of a request to purchase advertising time that ``is made on 
behalf of a legally qualified candidate for public office,'' known as a 
candidate ad, be maintained in the political file. Section 315(e)(1)(B) 
extends political recordkeeping obligations to records of a request for 
the purchase of advertising time that ``communicates a message relating 
to any political matter of national importance,'' known as an issue ad.

[[Page 7751]]

Section 315(e)(2) identifies the specific records that must be placed 
in political files for both candidate and issue ads. These records 
include (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. Although the Commission has 
provided guidance on political recordkeeping consistent with these 
statutory requirements following their adoption in 2002, the political 
file rules were not previously updated to reflect these statutory 
requirements.
    17. We accordingly revise the political file rules for broadcast 
licensees, cable television system operators, DBS providers, and SDARS 
licensees to bring them into conformity with Section 315(e) of the Act. 
Specifically, we revise our rules to require these entities to maintain 
in their online political 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 records of each request for 
advertising time that ``communicates a message relating to any 
political matter of national importance.'' Additionally, we amend the 
rules to specify the particular records that must be maintained in 
online political files for both candidate ads and issue ads, consistent 
with the list set forth in Section 315(e)(2). These revisions ensure 
that the political recordkeeping rules fully and accurately reflect 
statutory requirements. Further, these revisions will foster greater 
transparency about the entities sponsoring candidate and issue ads.
    18. We do not believe this is the appropriate proceeding to address 
Canal Partners' proposed interpretation of the phrase ``a message 
relating to any political matter of national importance'' in Section 
315(e)(1)(B). Canal Partners asserts that ``licensees regularly refuse 
to comply with their public-disclosure obligations'' and urges the 
Commission to make clear that ``the phrase `a message relating to any 
political matter of national importance' should be interpreted broadly 
in favor of full disclosure and transparency and that licensees must 
act fairly, sensibly, honestly, and without any intent to seek 
commercial advantage when deciding whether to place information in 
their public political files.'' Canal Partners makes allegations 
against two broadcast stations to support its assertion that licensees 
regularly refuse to comply with their public-disclosure obligations.
    19. As an initial matter, we decline to address this issue as we 
did not seek comment on the interpretation of this phrase in the NPRM. 
Even assuming that there was misconduct by the two stations referenced 
by Canal Partners, we see no need to adopt a rule on this issue at this 
time. The Commission addresses complaints on their individual merits. 
To the extent that Canal Partners maintains that licensees regularly 
refuse to comply with their political file obligations, specific 
allegations of such misconduct are properly addressed through the 
complaint process. Furthermore, the Commission recently clarified the 
standard of review of broadcasters' compliance with their political 
file disclosure obligations. Specifically, the Commission clarified 
that the agency will apply a standard of reasonableness and good faith 
decision-making with respect to the efforts of broadcasters to comply 
with their obligations under Section 315(e) of the Act. To the extent 
that Canal Partners challenges the Commission's clarifications, we find 
that challenge is an untimely petition for reconsideration of that 
prior order and accordingly we decline to adopt it.

C. Cost-Benefit Analysis

    20. We conclude that to the extent that the revised rules impose 
any costs on Commission licensees and regulatees, such costs will be 
minimal and are outweighed by the benefits to the public of the revised 
rules. No commenters explicitly addressed the costs and benefits of the 
proposed rules or provided specific data and analysis supporting 
claimed costs and benefits in response to the NPRM. As noted above, 
however, NAB states that the revision to the definition of ``legally 
qualified candidates'' will not drastically alter current industry 
practices because broadcasters already consider digital activities in 
determining whether an individual has established that he or she is a 
bona fide candidate. In addition, the revisions to the political file 
rules merely conform our rules to longstanding statutory requirements 
and the Commission has provided licensees and regulatees guidance on 
political recordkeeping consistent with these statutory requirements 
since their adoption in 2002. Thus, we expect that any costs imposed by 
the updated rules will be minimal and outweighed by the public benefits 
of transparency and clarity.

Final Regulatory Flexibility Act Analysis

    21. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Initial Regulatory Flexibility Analysis (IRFA) was 
incorporated into the NPRM released in this proceeding. The Federal 
Communications Commission (Commission) sought written public comment on 
the proposals in the NPRM, including comment on the IRFA. The 
Commission received no comments on the IRFA. This Final Regulatory 
Flexibility Analysis (FRFA) conforms to the RFA.

A. Need for, and Objectives of, the Report and Order

    22. The Report and Order updates the 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 to conform 
these rules with modern campaign practices and statutory requirements 
and increase transparency. The Report and Order revises 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 
campaign-related 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 Report 
and Order makes clear that social media presence and campaign websites 
will be treated as additional indicators of activities commonly 
associated with political campaigning needed to make substantial 
showing of a bona fide candidacy, not as determinative factors, and 
such digital activities must be combined with other activities commonly 
associated with political campaigning that are conducted in substantial 
portions of the relevant geographic area.
    23. The Report and Order also amends the political file rules 
consistent with the Bipartisan Campaign Reform Act of 2002 (BCRA), 
which extends the Commission's political file requirements to any 
request for the purchase of

[[Page 7752]]

advertising time that ``communicates a message relating to any 
political matter of national importance'' (i.e., issue ads) and 
specifies the records that must be maintained. The Report and Order 
revises the rules to require that broadcast licensees, cable operators, 
DBS providers, and SDARS licensees maintain in their online political 
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 records of each request for advertising time that 
``communicates a message relating to any political matter of national 
importance.'' Further, the Report and Order amends the rules to specify 
that the following record must be placed in online political files for 
both candidate ads and issue ads:

    (1) Whether the request to purchase advertising time is accepted 
or rejected by the licensee or regulatee;
    (2) the rate charged for the advertising 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.

B. Summary of Significant Issues Raised in Response to the IRFA

    24. No comments were filed in response to the IRFA.

C. Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration

    25. Pursuant to the Small Business Jobs Act of 2010, the Commission 
is required to respond to any comments filed by the Chief Counsel for 
Advocacy of the Small Business Administration (SBA), and to provide a 
detailed statement of any change made to the proposed rules as a result 
of those comments. The Chief Counsel did not file any comments in 
response to the proposed rules in this proceeding.

D. Description and Estimate of the Number of Small Entities To Which 
the Rules Will Apply

    26. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that entities 
that may be affected by the proposed rules, if adopted. 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. 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. The rules proposed herein will directly affect small television 
broadcast stations. Below, we provide a description of these small 
entities, as well as an estimate of the number of such small entities, 
where feasible.
    27. The rules adopted herein will directly affect small television 
broadcast stations. Below, we provide a description of these small 
entities, as well as an estimate of the number of such small entities, 
where feasible.
    28. Television Broadcasting. This U.S. Economic Census category 
``comprises establishments primarily engaged in broadcasting images 
together with sound.'' These establishments operate television 
broadcast studios and facilities for the programming and transmission 
of programs to the public. 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. 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. Based on this data, we estimate that the majority of commercial 
television broadcast stations are small entities under the applicable 
size standard.
    29. Additionally, the Commission has estimated the number of 
licensed commercial television stations to be 1,372. 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. 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 385 Class A stations. Given 
the nature of this service, the Commission presumes that all of these 
stations qualify as small entities under the applicable SBA size 
standard.
    30. Radio Broadcasting. This U.S. Economic Census category 
``comprises establishments primarily engaged in broadcasting aural 
programs by radio to the public.'' 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. 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. 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. Based on 
this data, we estimate that the majority of commercial radio broadcast 
stations were small under the applicable SBA size standard.
    31. The Commission has estimated the number of licensed commercial 
AM radio stations to be 4,519 and the number of commercial FM radio 
stations to be 6,682 for a total of 11,201 commercial stations. 
According to Commission staff review of the BIA Kelsey Inc. Media 
Access Pro Television Database (BIA) on July 30, 2020, 99% of 
commercial radio stations had revenues of $41.5 million or less in 
2019, and therefore these stations qualify as small entities under the 
SBA definition. In addition, there were 4,211 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.

[[Page 7753]]

    32. We note, however, that in assessing whether a business concern 
qualifies as ``small'' under the above definition, business (control) 
affiliations 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.
    33. 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. Industry data indicates that, of the 777 cable companies 
currently operating in the United States, 766 serve 400,000 or fewer 
subscribers. Additionally, under the Commission's rules, a ``small 
system'' is a cable system serving 15,000 or fewer subscribers. 
According to industry data, there are currently 4,336 active cable 
systems in the United States. Of this total, 3,650 cable systems have 
fewer than 15,000 subscribers. Thus, the Commission believes that the 
vast majority of cable companies and cable systems are small entities.
    34. 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.'' As of 2019, there were 
approximately 48,646,056 basic cable video subscribers in the United 
States. 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. Based on available data, we find that 
all but five cable operators are small entities under this size 
standard. 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. 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.
    35. 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. 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. The SBA determines 
that a wireline business is small if it has fewer than 1,500 employees. 
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. 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. 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. 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, we presume that neither would 
qualify as a small business.
    36. Satellite Radio. Sirius-XM, which offers subscription services, 
is the sole, current U.S. provider of satellite radio (SDARS) services, 
Sirius-XM. Sirius-XM reported revenue of $8.04 billion and a net income 
of $131 million in 2020. In light of these figures, we believe it is 
unlikely that this entity would be considered small

E. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small Entities

    37. In this section, we identify the reporting, recordkeeping, and 
other compliance requirements adopted in the Report and Order and 
consider whether small entities are affected disproportionately by any 
such requirements.
    38. Reporting Requirements. The Report and Order does not adopt any 
new or modified reporting requirements.
    39. Recordkeeping Requirements. The Report and Order revises the 
political file rules, consistent with the BCRA's amendment to Section 
315(e) of the Act, to reflect the 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 Report and Order revises the political file 
rules to list the specific records that must be maintained in political 
files.
    40. Other Compliance Requirements. The Report and Order revises the 
political programming rules to add the use of social media and the 
creation of campaign websites 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 
bona fide candidacy.

[[Page 7754]]

F. Steps Taken To Minimize Significant Economic Impact on Small 
Entities and Significant Alternatives Considered

    41. 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 and reporting requirements under the rule for such 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.''
    42. The Report and Order revises the political programming and 
political file rules to bring them into conformity with modern campaign 
practices and statutory requirements. As discussed below, the updates 
are not expected to significantly impact small entities.
    43. The changes in the Recordkeeping Requirements merely conform 
our rules with the statutory requirements in Section 315(e) of the Act, 
which was added in 2002 by the BCRA. The Commission has provided 
guidance on political recordkeeping consistent with these statutory 
requirements since their adoption in 2002. The revisions ensure that 
the political file rules fully and accurately reflect the statutory 
requirements.
    44. The changes in the Compliance Requirements conform with modern 
campaign practices. NAB states that these changes will not drastically 
alter current industry practices because broadcasters already consider 
digital activities in determining whether an individual has made a 
substantial showing that he or she is a bona fide candidate.

G. Report to Congress

    45. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to be sent to Congress pursuant to the 
Congressional Review Act. In addition, the Commission will send a copy 
of the Report and Order, including this FRFA, to the Chief Counsel for 
Advocacy of the SBA. The Report and Order and FRFA (or summaries 
thereof) will also be published in the Federal Register.

Ordering Clauses

    46. Accordingly, it is ordered, pursuant to the authority contained 
in Sections 1, 4(i), 4(j), 303, 307, 312, 315, and 335 of the 
Communications Act, as amended, 47 U.S.C 151, 154(i), 154(j), 303, 307, 
312, 315, and 335, that this Report and Order is adopted.
    47. It is further ordered that the Commission's rules are hereby 
amended as set forth below.
    48. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center, shall send a 
copy of this Report and Order including the Regulatory Flexibility 
Analysis, to the Chief Counsel for Advocacy of the Small Business 
Administration.

List of Subjects in 47 CFR Parts 25, 73, and 76

    Cable television, Political candidates, Radio, Reporting and 
recordkeeping requirements, Satellites, Television.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 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.


0
2. Delayed indefinitely, 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 adverting 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) A record maintained under this paragraph shall contain 
information regarding:
    (i) Whether the request to purchase advertising time is accepted or 
rejected by the DBS operator;
    (ii) The rate charged for the advertising 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 public file hosted by the Commission 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. Delayed indefinitely, 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) 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

[[Page 7755]]

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) n 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 public file hosted by the Commission 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, 303, 309, 310, 334, 336, and 339.


0
5. Effective March 14, 2022, 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 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. The creation of 
a campaign website and the use of social media shall be additional 
indicators of a bona fide candidacy, not determinative factors, and 
such digital activities must be combined with other activities commonly 
associated with political campaigning that are conducted in substantial 
portions of the relevant geographic area.

0
6. Delayed indefinitely, amend Sec.  73.1943 by revising paragraph (a), 
redesignating paragraphs (b) and (c) as paragraphs (c) and (d), and 
adding new paragraph (b).
    The revision and addition 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) A record maintained under paragraph (a) 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, 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. Effective March 14, 2022, 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 paragraphs (q)(2) through (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. The creation of 
a campaign website and the use of social media shall be additional 
indicators of a bona fide candidacy, not determinative factors, and 
such digital activities must be combined with other activities commonly 
associated with political campaigning that are conducted in substantial 
portions of the relevant geographic area.
* * * * *

0
9. Delayed indefinitely, amend Sec.  76.1701 by revising paragraph (a), 
redesignating paragraphs (b) through (d) as paragraphs (c) through (e), 
and adding new paragraph (b).
    The revision and addition read as follows:

[[Page 7756]]

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 cablecast 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) A record maintained under paragraph (a) shall contain 
information regarding:
    (1) Whether the request to purchase cablecast time is accepted or 
rejected by the cable television system operator;
    (2) The rate charged for the cablecast 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 whih 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. 2022-02484 Filed 2-9-22; 8:45 am]
BILLING CODE 6712-01-P