Federal Election Commission Main Page
April 1, 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2004-07
Elizabeth Kingsley, Esq.
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M Street, N.W.
Suite 600
Washington, DC 20036
Dear Ms. Kingsley:
This responds to your letters dated January 16 and
February 5, 2004, requesting an advisory opinion on behalf
of Music Television ("MTV"), MTV Networks, Viacom, Inc., and
Viacom International, Inc., concerning the application of
the Federal Election Campaign Act of 1971, as amended ("the
Act"), and Commission regulations to certain planned
activities during the 2003-2004 election cycle.
Background
You state that Viacom, Inc. ("Viacom") is a global
media company and that Viacom International, Inc. is a
wholly-owned subsidiary of Viacom. You further explain that
MTV Networks is a division of Viacom International and owns
and operates several cable television programming services,
including MTV.
MTV will be conducting what it is calling a
"Prelection." This will involve an online survey of young
people to determine who they think should be President of
the United States. Persons who want to participate in the
Prelection must sign-up online at either
www.chooseorlose.com, or www.mtv.com. It might be possible
for persons to sign-up using a toll-free telephone number.
On- and off-air promotion of the Prelection will be
done in conjunction with MTV's Movie Awards and Video Music
Awards, and with concerts, grassroots initiatives, and
online.1 Such promotion may include on-air communications
encouraging young people to sign-up for the Prelection,
celebrities suggesting young people participate in the
Prelection, incentives tied to signing-up and/or "voting" in
the Prelection, emails, and linking to other websites. You
state that it is likely that names and/or images of major
presidential candidates will be used on-air to encourage
participation.
You state that voter education will be a critical part
of the Prelection. The voter education activities
envisioned are: incorporating information on presidential
candidates compiled by Project Vote Smart on the
Chooseorlose.com website, links to the presidential
candidates' websites, and links to nonpartisan sources of
information on the web. You may ask participating
candidates to submit statements or position papers to MTV
for either on-air or online usage.
"Voting" in the Prelection will take place online and
potentially via the toll-free number for at least several
days around the end of September and early October 2004.
The Prelection results would be announced shortly
thereafter, but not later than November 2, 2004. Two
different sets of results will be derived: "total voters,"
meaning the total number of people who "voted" in the
Prelection regardless of age, resident status, or confirmed
address; and "confirmed voters," meaning the total number of
people who "voted" in the Prelection, are U.S. citizens 18
to 30 years old, and have been verified to live at a
specific address. Both sets of numbers will be published on
the Internet and announced on the air.
You further state that the results of the Prelection
might be reported as the "vote" of MTV's audience, or as an
endorsement of a presidential candidate by MTV News. In
this latter instance, MTV would use its audience to function
as its editorial board.
Prelection participants will receive follow-up messages
encouraging them to vote in the November general election
and to continue to educate themselves about the candidates.
These messages will be sent to all participants who are
registered to vote in the general election, regardless of
whom they "voted" for in the Prelection. These messages may
refer to the results and/or analysis of the Prelection, but
will not in any way be coordinated with any candidate or
political party or political committee.
You state that, with the exception of the possible
announcement of an editorial endorsement, none of MTV's
communications in connection with the Prelection will
expressly advocate the election or defeat of any candidate.
You state that MTV's corporate advertisers and sponsors
will have no role in determining who the recipient of MTV
News' endorsement will be. Advertisers and sponsors may
choose to run advertisements on MTV during Prelection
programming, just as with any of MTV's other programming,
but they will not be given the ability to control any of the
content or other elements of that programming. Some of the
corporate sponsors will use some of that paid time to
encourage participation in the Prelection. MTV will also
solicit corporate sponsors who will be identified in various
Prelection promotions and materials as sponsors of the
project.
Questions Presented
You ask whether various proposed activities will
constitute corporate contributions, expenditures, or
electioneering communications, and whether certain responses
would differ if the communications contained an
acknowledgement of MTV's corporate sponsors.
Legal Analysis and Conclusions
The Act prohibits "any corporation whatever" from
making any contribution or expenditure in connection with a
Federal election. 2 U.S.C. 441b(a). The Act and Commission
regulations define the terms "contribution" and
"expenditure" to include any gift of money or "anything of
value" for the purpose of influencing a Federal election,
but exempt any cost "incurred in covering or carrying a news
story, commentary, or editorial by any broadcast station
(including a cable television operator, programmer, or
producer), . . . unless the facility is owned or controlled
by any political party, political committee, or candidate."
2 U.S.C. 431(9)(B)(i); 11 CFR 100.73 and 100.132.2 The Act
and Commission regulations also include a similar exemption
at 2 U.S.C. 434(f)(3)(B)(i) and 11 CFR 100.29(c)(2) with
respect to electioneering communications. Unless an
exception exists, a corporation may not make communications
to the general public that expressly advocate the election
or defeat of a clearly identified Federal candidate. See,
generally, 11 CFR 114.4(c).
The Courts and the Commission, in considering the scope
of the press exemption, have concluded that several factors
must be present for the press exemption to apply. First,
the entity engaging in the activity must be a press entity
as described by the Act and Commission regulations. See
Advisory Opinions 2003-34, 2000-13, 1998-17, 1996-48, 1996-
41, 1996-16 and advisory opinions cited therein. Second, an
application of the press exemption depends upon the two-part
framework presented in Reader's Digest Association v. FEC,
509 F. Supp. 1210, 1215 (S.D.N.Y. 1981): (1) Whether the
press entity is owned or controlled by a political party,
political committee, or candidate; and (2) Whether the press
entity is acting as a press entity in conducting the
activity at issue (i.e., whether the entity is acting in its
"legitimate press function"). See also FEC v. Phillips
Publishing, 517 F. Supp. 1308, 1312-1313 (D.D.C. 1981);
Advisory Opinions 2000-13, 1996-48, and 1982-44.
In Reader's Digest, the court noted that "if [the
magazine] was acting in its magazine publishing function,
if, for example, the dissemination of the tape to television
stations was to publicize the issue of the magazine
containing the . . . article, then it would seem that the
exemption is applicable." 509 F. Supp. at 1215. In
Phillips Publishing, a mailing soliciting subscriptions to a
biweekly newsletter contained, inter alia, a one-page
combination subscription form and "opinion poll" that
referred to a clearly identified candidate for Federal
office. The court found that, because "the purpose of the
solicitation letter was to publicize [the newsletter] and
obtain new subscribers, both of which are normal, legitimate
press functions, the press exemption applies." 517 F. Supp.
at 1313.
In MUR 3657 (Multimedia Cablevision), Multimedia, a
cable television provider, broadcast an editorial over its
cable systems urging the defeat of a clearly identified
candidate for Federal office. Multimedia also inserted
fliers into its subscribers' cable bills that urged the
defeat of that Federal candidate. The Commission concluded
that the broadcasts were covered by the press exemption, but
that the distribution of the fliers violated 2 U.S.C.
441b(a) because Multimedia was "acting in a manner unrelated
to its cablecasting function" when it produced and
distributed the fliers. See MUR 3657, General Counsel's
Report dated May 25, 1994; Certification of Commission
Action dated June 8, 1994.
We now turn to your questions as to whether the
following activities would be corporate contributions,
expenditures or electioneering communications and,
therefore, would violate 2 U.S.C. 441b:
1) Expending funds for the production or promotion costs
of the Prelection.
Because MTV is a press entity that is not owned or
controlled by any political party, political committee, or
candidate, the costs it incurs in covering or carrying a
news story, commentary, or editorial are exempt from the
definitions of "contribution" and "expenditure." The
Commission considers funds expended to produce or promote
the Prelection to be exempt from the definitions of
"contribution" and "expenditure," and thus MTV will not
violate 2 U.S.C. 441b by expending funds for these purposes.
See 11 CFR 100.73 and 100.132.
2) Broadcasting Prelection activities.
The broadcasting of Prelection activities constitutes
"covering or carrying a news story, commentary, or
editorial," and thus falls within the exemptions in
2 U.S.C. 431(9)(B)(i) and 434(f)(3)(B)(i) and would not
violate 2 U.S.C. 441b.
3) Promoting and encouraging participation in the
Prelection, through communications made on air, via the web,
or at events.
Promoting and encouraging participation in the
Prelection would publicize the program and would be within
MTV's legitimate press function. See Reader's Digest,
509 F. Supp. at 1215; Phillips Publishing, 517 F. Supp. at
1313. Accordingly, the press exemption would apply and such
activity would not violate 2 U.S.C. 441b.
4) Providing election-related educational materials online
or as part of community events across the country.
Providing election-related educational materials via
MTV's website is within MTV's legitimate press functions
because the news media disseminate their news stories,
commentaries or editorials, and information relating to
their news stories, commentaries or editorials, through
their websites in addition to their broadcast and/or print
outlets, and because these materials will be distributed in
conjunction with the Prelection. Providing election-related
educational materials at community events, however, does not
qualify as a press function because this activity is not one
typically performed by a press entity. In McConnell v FEC,
the Supreme Court noted that the media exemption is "narrow"
and "does not afford carte blanche to media companies
generally to ignore FECA's provisions." McConnell v. FEC,
540 U.S. , 124 S.Ct. 619, 697 (2003). Because the
dissemination of information at community events is not
within MTV's press function, the media exemption would not
apply and MTV would be acting as a corporate entity when
engaging in such activity. Thus, when providing voter
registration and get-out-the-vote information at community
events, MTV may not expressly advocate the election or
defeat of a clearly identified candidate or political party.
Likewise, MTV may provide voter guides that comply with
11 CFR 114.4(c)(5).
5) Conducting on-air interviews or providing air time in
equal amounts to all qualifying candidates to encourage
informed participation in the Prelection.
You state that presidential candidates "may be asked to
be interviewed on air, or they may be provided given amounts
of air time, to address specific issues that young people
have selected via MTV research or polling." You further
state that each qualifying presidential candidate will be
afforded "an equal opportunity" to make his or her views
known.
In Advisory Opinion 1987-8, the Commission concluded
that interviews of candidates conducted for a magazine
series and a television series were within the news story
exemption. Consequently, MTV may conduct on-air interviews
of candidates and that activity would not be a contribution
or expenditure under 2 U.S.C. 441b. The exemption would
cover submissions of candidate position papers that are made
public by MTV in the context of its online broadcasting or
through its website.
In Advisory Opinion 1998-17, the Commission determined
that an incorporated cable television provider could offer
free air-time to Federal candidates without the donated air-
time constituting a prohibited corporate in-kind
contribution. The Commission "view[ed] the proposed
activity as falling within the category of commentary, which
includes the concept of guest commentary." Advisory Opinion
1998-17; see also Advisory Opinion 1982-44 ("In the opinion
of the Commission, `commentary' was intended to allow third
persons access to the media to discuss issues"). In
approving the proposed donation of air-time in Advisory
Opinion 1998-17, the Commission noted that its conclusion
was based upon the understanding that the air-time would be
provided to the candidates on an equal basis and in
accordance with the applicable provisions of the
Communications Act, 47 U.S.C. 315(a) and (b), and Federal
Communications Commission ("FCC") regulations.
Consistent with these advisory opinions, the Commission
concludes that MTV's proposal to interview candidates "on-
the-air" and/or to provide air-time for candidates to
discuss issues fall within the media exception, provided
that MTV will comply with all of the applicable requirements
of the Communications Act and FCC regulations. Furthermore,
MTV may use statements or position papers submitted by
participating candidates on-air or online if the statements
or position papers are part of a news story, commentary or
editorial. See 11 CFR 109.23(b)(3).
6) Announcing and publicizing the results of the
Prelection on air, via the web, or through other methods,
whether or not they are framed as an endorsement by MTV
News.
Announcing and publicizing the Prelection results via a
cable broadcast constitutes "covering or carrying a news
story, commentary, or editorial," regardless of whether the
Prelection results are framed as an endorsement. Thus the
costs associated with such activity would not violate
2 U.S.C. 441b. As noted above, websites are a common
feature of many media organizations. The Commission
considers posting news stories, commentaries, and editorials
on a press entity's website to be within the entity's
legitimate press functions. Accordingly, posting this
information on MTV's website would not violate 2 U.S.C.
441b.
The Commission concludes that MTV's proposal to
announce and publicize the Prelection results via electronic
mail or text messages, contemporaneous with the on-air
broadcast of the results and the display of the results on
MTV's website would cause the electronic mails and text
messages to fall within the press exemption. As noted
above, application of the press exemption turns on whether
an activity is typically performed by a press entity. The
Commission's understanding is that the media is increasingly
using electronic mails and text messages to disseminate
breaking news stories, weather and sports information, and
stock market information. The Commission therefore views
MTV's proposal as consistent with established industry
practice and therefore within the press exemption.
7) Sending follow-up messages to Prelection participants
that refer to the results of the Prelection to encourage
them to vote in the general election.
The Commission understands that the follow-up
communications to Prelection participants would be sent via
electronic mail or text messages some time after the results
of the Prelection have already been announced. Given that
these communications by themselves will not constitute
promotion or publicizing of the Prelection programming, and
given that these communications will be directed only to
Prelection participants whose voting preferences have
already been ascertained by MTV, the follow-up
communications would not fall within the press exemption.
See MUR 3657; see also Phillips Publishing, 517 F. Supp. at
1313. Accordingly, such messages are corporate
get-out-the-vote activities subject to 11 CFR 114.4(c)(2).3
To the extent that the follow-up messages contain express
advocacy, such messages would violate 2 U.S.C. 441b.
8) Sending follow-up messages to Prelection participants
that do not refer to an endorsement or the Prelection
results but contain a general encouragement to vote.
Any encouragement to vote made to the general public
that does not expressly advocate the election or defeat of a
clearly identified candidate or a political party is
permissible under 11 CFR 114.4(c)(2).
With respect to acknowledgements of MTV's corporate
sponsors in any of the follow-up messages described in
questions 6 through 8 above, the analysis above already
categorizes MTV's actions as either permissible or
impermissible activity. Where such activity is permissible,
MTV may acknowledge its corporate sponsors.
Finally, the Commission concludes that none of the
activities that you propose would constitute an
electioneering communication. The definition of an
"electioneering communication" applies only to broadcast,
satellite or radio communications that are publicly
distributed for a fee. 11 CFR 100.29. Thus, any of your
proposed activity that does not involve a broadcast,
satellite or radio communication, or is publicly distributed
free of charge, would not be an electioneering
communication. See 11 CFR 100.29(c)(1). Additionally, any
broadcast, satellite or radio communication that MTV
undertakes as part of its press functions is exempt from the
definition of electioneering communication. 2 U.S.C.
434(f)(3)(B)(i); 11 CFR 100.29(c)(2).
The Commission expresses no opinion regarding the
applicability of the Communications Act of 1934, or of
regulations promulgated by the Federal Communications
Commission, to the proposed activities because those
questions are outside the Commission's jurisdiction.
This response constitutes an advisory opinion
concerning the application of the Act and Commission
regulations to the specific transactions or activities set
forth in your request. See 2 U.S.C. 437f. The Commission
emphasizes that, if there is a change in any of the facts or
assumptions presented, and such facts or assumptions are
material to a conclusion presented in this advisory opinion,
then the requestor may not rely on that conclusion as
support for its proposed activity.
Sincerely,
(signed)
Bradley A. Smith
Chairman
Enclosures: (AOs 2003-34, 2000-13, 1998-17, 1996-48, 1996-
41, 1996-16, 1987-8,
1982-44)
_______________________________
1 Your letters do not describe the specific grassroots
programming and initiatives that will be used to promote the
Prelection.
2 You have orally confirmed that none of the requestors
(Viacom, Inc.; Viacom International, Inc.; MTV Networks; or
MTV) is owned or controlled by any candidate, political
party, or political committee.
3 The Commission is currently undertaking a rulemaking that
may affect the analysis of such messages under 11 CFR 114.4.
See Notice of Proposed Rulemaking, Political Committee
Status, 69 FR 11736, 11743 (Mar. 11, 2004).