Federal Election Commission Main Page
August 23, 2002
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2002-09
Diana Hartstein, Esq.
Caplin & Drysdale
One Thomas Circle, NW
Suite 1100
Washington, DC 20005
Dear Ms. Hartstein:
This refers to your letters dated August 5, 2002 (with an
enclosure), July 25, 2002, June 13, 2002, and May 14, 2002 (with an
enclosure), requesting an advisory opinion concerning the
application of the Federal Election Campaign Act, as amended ("the
Act") and Commission regulations to the distribution of political
advertisements through wireless telecommunications networks.
BACKGROUND
You state that your client, Target Wireless ("Target"),
provides content, which you define as "politics, news, sports,
etc.," through wireless telecommunications networks and Internet
service providers to subscribers of wireless PCS digital
telephones. One of Target's primary sources of revenue is
advertising. Target has been contacted by candidates and
political parties about paying Target to send political advertising
to wireless digital telephone subscribers. However, you assert
that Target is currently unable to provide this service because
Target is uncertain whether the Commission's disclaimer
requirements would apply to these communications. You conclude
that, because the available technology limits the length of content-
and-advertising communications, the Commission should exempt these
communications from its disclaimer requirements.
With regard to the specific technology involved, you state
that, in the United States, all wireless carriers employ "Short
Messaging Service" ("SMS") technology. You describe SMS as
follows: a wireless customer has the option of subscribing to a
content-based information system that permits the delivery and
receipt of content and e-mail messages. The content and e-mail
messages are displayed as short messages on a liquid crystal
display, which serves as the digital screen on each wireless
telephone. In order to receive content, customers enter into
contracts for SMS messages with wireless telephone carriers. The
contracts require customers to pay a flat price for a certain
number of minutes per month. August 5, 2002 letter, p. 2.
Target envisions that political advertisers would sponsor
content, such as sports scores or information about news events,
which would appear on subscribers' telephone screens, along with a
political message, such as "Kids are Winners with Smith" (May 14,
2002 letter, page 3). You note, however, that, due to
technological limitations, SMS messages are limited to 160
characters per screen, with "characters" including letters,
symbols, spaces, punctuations marks, and single digits. August 5,
2002 letter, p. 2.
You maintain that providing disclaimers with the political
advertisements, as generally required by 11 CFR 110.11, will
prevent candidates for Federal office and others from using
wireless media for political advertising. For example, you point
out that a disclaimer such as "Paid for by the Republican National
Committee" consumes 45 characters and that a longer disclaimer such
as "Paid for by the Fisherman's Union PAC and not authorized by any
candidate or candidate's committee" consumes 98 characters. May
14, 2002 letter, p. 4. In the latter case, only 62 characters
would remain for the advertisement itself and for the accompanying
content.
On page 1 of your June 13, 2002 letter, you assert that it is
not feasible to provide for two continuous pages of political
advertising, including content and disclaimers. On pp. 1-2 of your
August 5, 2002 letter, you explain that, because an SMS two-page
message is treated as two separate messages, the chances that the
two pages would arrive in tandem are remote. Further, you state
that, as SMS technology becomes more popular, the likelihood that
both pages of a two-page message will arrive in tandem will
decrease. Finally, you point out that contracts for SMS messages
require consumers to pay a flat fee for a certain number of
minutes. Thus, the second page of a two-page message would consume
additional time and would cost consumers money.
You also note that the Commission's regulations concerning
disclaimers on television advertisements state that disclaimers are
considered "clear and conspicuous" if the disclaimers appear in
letters "equal to or greater than four (4) percent of the vertical
screen height . . ." 11 CFR 110.11(a)(5)(iii). In contrast, you
point out that even a relatively short disclaimer, such as "Paid
for by Smith for Congress" uses 30 of the available 160 characters,
or approximately 18% of the available characters.
You assert that, given the limited space available with SMS
delivery to wireless digital telephones, requiring disclaimers
would "constructively estop new media agencies, wireless providers
and candidates for public office from utilizing wireless media . .
. when implementing advertising initiatives for candidates."
February 25, 2002 letter, p. 3. You conclude that either the
disclaimer exception listed at 11 CFR 110.11(a)(6)(i), which
includes certain small items, or the exception listed at 11 CFR
110.11(a)(6)(ii), which includes methods of advertising where a
disclaimer would be "impracticable," should apply. Therefore, you
ask that Target's proposed content-plus-political advertising
proposal be exempted from the Commission's disclaimer requirements
under 11 CFR 110.11(a)(6)(i) or (ii). As an alternative, you
suggest that the political advertisements could either include a
web link to the sponsor's identification, such as www.sponsor.com,
or a toll-free telephone number so that individuals who read the
messages could determine the identify of the sponsor. (Presumably,
the sponsor identification would contain the requisite disclaimer.)
ACT AND COMMISSION REGULATIONS
The following discussion is based on the Act, as recently
amended by the Bipartisan Campaign Reform Act ("BCRA"), Pub. L. No.
107-155, and the Commission's current regulations.
Current Regulations
Whenever any person makes an expenditure to finance
communications expressly advocating the election or defeat of a
clearly identified candidate or soliciting any contribution, and
does so through various types of mass media (e.g., a broadcasting
station) or via "any other type of general public political
advertising," the communication is required to include a statement
of sponsorship or disclaimer. 2 U.S.C. 441d, 11 CFR 110.11. The
disclaimer must clearly state if the communication has been paid
for and authorized by a candidate, or the candidate's authorized
political committee. If the communication is paid for by other
persons but authorized by a candidate (including an authorized
political committee of a candidate or its agents), the disclaimer
shall clearly state that the communication is paid for by those
other persons and authorized by such authorized political
committee. On the other hand, if the communication is not
authorized by a candidate (including an authorized political
committee of a candidate or its agents), the disclaimer shall
clearly state the name of the person who paid for the communication
and state that it is not authorized by any candidate or the
candidate's committee. 2 U.S.C. 441d; 11 CFR 109.3, 110.11(a)(1),
and 110.11(a)(5).
Some exceptions to the Commission's disclaimer requirements
are listed at 11 CFR 110.11(a)(6)(i) and (ii). These exceptions
include 11 CFR 110.11(a)(6)(i), which covers bumper stickers, pins,
buttons, pens, and other similar small items upon which a
disclaimer cannot be conveniently printed, and 11 CFR
110.11(a)(6)(ii), which covers skywriting, watertowers, wearing
apparel, and other methods of displaying political advertising and
other means of advertising where displaying a disclaimer would be
"impracticable."
Bipartisan Campaign Reform Act
In BCRA, Congress has mandated additional disclaimer
requirements.1 First, the disclaimer requirements will apply to
"any" communication financed by a political committee through any
type of general public political advertising, not just those that
expressly advocate the election or defeat of a clearly identified
candidate, or that solicit any contribution. 2 U.S.C. 441d(a).
Second, all persons who finance electioneering communications will
be subject to the provisions of 2 U.S.C. 441d(a).2 Third, for
communications that are not authorized by a candidate, an
authorized political committee of a candidate, or its agents, under
BCRA, disclaimers will have to include the "permanent street
address, telephone number or World Wide Web address of the person
who paid for the communication." 2 U.S.C. 441d(a)(3).
ANALYSIS
Based on the facts presented, the Commission concludes that
the disclaimer exception at 11 CFR 110.11(a)(6)(i) applies to your
request.3 By virtue of their size, the "small" items listed in 11
CFR 110.11(a)(6)(i), such as bumper stickers, pins, buttons, and
pens are limited in the size and length of the messages that they
are able to contain. Similarly, the wireless telephone screens
that you have described have limits on both the size and the length
of the information that can be conveyed. Indeed, the Commission
notes that the SMS technology places similar limits on the length
of a political advertisement as those that exist with bumper
stickers.
Because the Commission has concluded that the disclaimer
exception at 11 CFR 110.11(a)(6)(i) applies, it does not analyze
Target's proposal under disclaimer exception 11 CFR
110.11(a)(6)(ii), which covers skywriting, watertowers, wearing
apparel, and other methods of displaying political advertising and
other means of advertising where displaying a disclaimer would be
"impracticable."
This response constitutes an advisory opinion concerning
application of the Act and Commission regulations to the specific
transaction or activity set forth in your request. See 2 U.S.C.
437f. The Commission emphasizes that if any of the material
circumstances proposed change, the conclusion herein would not
apply.
Sincerely,
(signed)
Karl J. Sandstrom
Vice-Chairman
_______________________________
1 BCRA's "disclaimer" provisions will not take effect until
November 6, 2002.
2 An electioneering communication "means any broadcast, cable,
or satellite communication which refers to a clearly identified
candidate for federal office" and "is made within 60 days before a
general, special, or runoff election for the office sought by the
candidate, or 30 days before a primary or preference election, or a
convention or caucus of a political party that has authority to
nominate a candidate, for the office sought by the candidate; and
in the case of a communication which refers to a candidate for an
office other than President or Vice President, is targeted to the
relevant electorate." 2 U.S.C. 434(f)(3)(A)(i).
3 The Commission notes that Target suggested in its request
certain alternatives to allow recipients to ascertain the identity
of the sponsors of political messages (a telephone or website
reference). Nothing in this opinion would preclude Target's use of
these approaches.