Federal Election Commission Main Page
April 30, 2004
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 2004-10
Tom Fanning
National Director of Marketing
Metro Networks Communications, Inc.
8403 Colesville Road, 15th Floor
Silver Spring, MD 20910
Dear Mr. Fanning:
This responds to your letters dated January 27,
2004 and March 15, 2004, on behalf of Metro Networks,
Inc. ("Metro Networks") requesting an advisory opinion
concerning the application of the "stand by your ad"
disclaimer requirements in the Federal Election
Campaign Act of 1971, as amended ("the Act"), and
Commission regulations to Metro Networks' "live read"
radio communications paid for by Federal candidates.
Background
Metro Networks is a national company that provides
more than 2,000 radio stations throughout the United
States with live traffic, news, sports and weather
reports. In exchange for providing these live reports,
Metro Networks generates revenue by including a ten-
second "live read" sponsorship message that is sold by
Metro Networks and read by a Metro Networks reporter at
the end of the traffic, news, sports, or weather
report. An "opening mention" precedes the actual
report and also identifies the person purchasing the
sponsorship message.
You intend to market the ten-second sponsorship
messages to Federal candidates, and you provide the
following example of a sponsorship message paid for by
a Federal candidate and imbedded in a traffic report:
[Opening Mention:]
This traffic report is brought to you by the
committee to elect Candidate ABC.
[Traffic Report:]
Traffic is jammed on 1-95 heading to the Wilson
Bridge . . . [rest of traffic report].
[Live read 10-Second Sponsorship Message:]
Candidate ABC has waged war on the terrorists who
want to take away America's liberties. But the
job is not done. Support Candidate ABC for re-
election. Paid for by the committee to re-elect
candidate ABC.]
You indicate that the live broadcasting of the
reports with embedded sponsorship messages increases
the value of the sponsorship messages to Metro
Networks' sponsoring clients. You assert, however,
that the live nature of the reports and the limitations
of your broadcasting equipment would make it
"physically impossible" for Metro Networks to include
any statement spoken by a candidate himself or herself.
You explain that the reports are "produced live in
[Metro Networks] studios and from mobile units and
aircraft with [Metro Networks] reporters interacting
live in real time" with the "on air talent" of radio
stations. You indicate that a Metro Networks reporter
would be able to read a statement for a sponsoring
candidate, but is not equipped to play a recorded voice
of a candidate.
Question Presented
Under the facts and circumstances described above,
may a Metro Networks reporter, rather than the Federal
candidate authorizing a sponsorship message, read the
required "stand by your ad" statement?
Legal Analysis and Conclusions
Yes, a Metro Networks reporter may read the "stand
by your ad" statement for the reasons explained below.
BCRA expanded the Act's disclaimer requirements
applicable to radio advertisements authorized by
Federal candidates. See 2 U.S.C. 441d(d)(1)(A); BCRA,
sec. 311(2), 116 Stat. at 105-06; 11 CFR 110.11.
Because you request guidance regarding radio messages
authorized by Federal candidates, the sponsorship
message you describe in your request would require a
disclaimer that complies with the "general content
requirements" of 11 CFR 110.11(b)(1), the
"specifications for all disclaimers" in 11 CFR
110.11(c)(1), and the "specific requirements for radio
and television communications authorized by candidates"
in 11 CFR 110.11(c)(3). Radio advertisements
authorized by a candidate must include "an audio
statement by the candidate" that identifies the
candidate and states that he or she has approved the
communication. 11 CFR 110.11(c)(3)(i). This is
colloquially known as a "stand by your ad" requirement
because it directly associates the candidate with the
message he or she has authorized. There is no
requirement that the message be read live in real time
by the candidate, but the candidate must speak the
required authorization statement. Id. For example,
one acceptable statement provided in the regulations
is: "My name is [insert name of candidate]. I am
running for [insert Federal office sought], and I
approved this message." 11 CFR 110.11(c)(3)(iv)(B).
The Commission, however, has long recognized that
in certain circumstances it is impracticable to provide
a full disclosure statement in the prescribed manner.
An exception at 11 CFR 110.11(f)(1)(ii) covers
skywriting, water towers, wearing apparel, or other
means of displaying an advertisement when full
application of the disclaimer requirement would be
"impracticable."
In Advisory Opinion 2004-1, addressing the "stand
by your ad" requirement for a television communication
authorized by two Federal candidates, the Commission
permitted one candidate to speak for both candidates so
long as the approval statement conveyed that both
candidates approved the advertisement. See also
Advisory Opinion 1994-13 (pre-BCRA video slate
advertisement featuring 10 different candidates and
ballot measures required only one disclaimer indicating
that the slate was "paid for by the candidates and
committees identified in the slate," rather than a
number of separate disclaimer statements.)
The specific physical and technological
limitations you describe do not make it impracticable
to include a disclaimer at all. Rather, the
impracticability caused by these limitations extends
only to one particular aspect of the disclaimer
otherwise required by section 110.11, specifically that
the provision requiring the approving candidate himself
or herself to speak the "stand-by-your-ad" statement.
11 CFR 110.11(c)(3). Thus, the Commission concludes
that a disclaimer is required, but that it would be
permissible for a Metro Networks reporter to speak for
the candidate, or candidates, who authorized the
advertisement.1 As in Advisory Opinion 2004-1, this
approach is practical and as faithful as possible to
the "stand by your ad" statute while avoiding
unnecessary burdens on political speech that could
result from a rigid application of all disclaimer
provisions in all instances.
For the purposes of the script you provide in your
request, the statement provided in the regulations as
an example at 11 CFR 110.11(c)(3)(iv)(B) could be
adapted and, in combination with the statement required
by 11 CFR 110.11(b), read by the Metro Networks
reporter as follows: "Paid for by the committee to re-
elect candidate ABC. ABC approved this message."
This response constitutes an advisory opinion
concerning the 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 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 2004-1, 1994-13)
_______________________________
1 The Commission assumes for the purposes of this
request that the Federal candidate would not be
physically present with the reporter, and thus would
not be available to read the statement.