Federal Election Commission Main Page
February 18, 1983
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1982-58
Mr. Edwin W. Miller
P.O.B. Publishing Company
P.O. Box 810
Wayne, Michigan 48184
Dear Mr. Miller:
This responds to your letters of November 4, 1982 and
January 12, 1983, with enclosures, requesting an advisory opinion
concerning application of the Federal Election Campaign Act of
1971, as amended ("the Act"), to the publication in P.O.B.
magazine of a solicitation for contributions to the political
action committee of the American Congress on Surveying and
Mapping/National Society of Professional Surveyors ("ACSM PAC").
Your letters, including the enclosures with the January 12
letter, set forth the following relevant facts. P.O.B. is
published every two months by P.O.B. Publishing Company ("PubCo")
which is a profit corporation organized under Michigan law; it is
also a wholly owned subsidiary of Technical Advisors, Inc.
("TAI"). PubCo was originally a business name for TAI, but was
organized as a separate corporation in 1981. Advertising in
P.O.B. accounted for 86.5% of PubCo's income in 1981-82, and
P.O.B. is the only publication of PubCo. In addition, TAI1/
contributed the amount of $27,535 to PubCo's income in 1981-82.
1/TAI provides computing, drafting, and time-sharing services to
surveyors, civil engineers and land developers. It is a stock
corporation organized under Michigan law.
P.O.B. is distributed free of charge to persons in the United
States2/ who are "qualified members of the surveying and mapping
community." Your request explains that criteria have not been
set up to determine who qualifies for a free subscription.
Anyone who fills out and returns a card (inserted in each issue
of P.O.B.) is placed on your mailing list. This card contains
eight requests for data, with numerous subcategories, that relate
to the type of position and employment that the respondent holds
in the surveying and mapping fields. P.O.B.'s original mailing
list was compiled from published state lists of Registered Land
Surveyors and from lists of registrants at annual meetings of
state surveyors societies.
With respect to the involvement of P.O.B., PubCo, and TAI in
activities of the American Congress on Surveying and Mapping
("ACSM"), your request presents various facts and comments. TAI,
the parent corporation of PubCo, is one of approximately 95 firms
that are sustaining members of ACSM. ACSM membership includes,
inter alia, three member organizations: the National Society of
Professional Surveyors ("NSPS"), the American Association for
Geodetic Surveying, and the American Cartographic Association.
The connected organization of ACSM/PAC is identified on FEC Form
1 as the American Congress on Surveying and Mapping/National
Society of Professional Surveyors. ACSM is a nonprofit
corporation and is incorporated under the laws of the District of
Columbia. You estimate that less than 20% of those who receive
P.O.B. are members of ACSM/NSPS.3/ P.O.B., you state, is "not
affiliated or associated with ACSM/NSPS" and is the "major,
independent publication in the surveying and mapping
community...". You also explain that the proposed contribution
solicitation for ACSM/PAC would be published in P.O.B.
"independent of and without the authority of the PAC."
2/Individuals located in foreign countries must subscribe to
P.O.B. at rates ranging from $18 to $34 per year. There are
presently 50 such paying subscribers. Total circulation for the
October-November 1982 issue was 56,239 and 57,011 for the
December-January 1983 issue.
3/The bylaws of both ACSM and NSPS require concurrent membership
in both organizations, and dues for both are billed on a unified
basis; that is, dues statements are issued by ACSM and include
dues amounts payable to ACSM and to the relevant member
organizations (e.g. NSPS) of ACSM.
Notwithstanding these assertions, the facts presented in
your request demonstrate that P.O.B is, in essence, a trade
publication and promotional vehicle for ACSM and its member
organizations, primarily NSPS. The facts that undergird this
conclusion are evident from the two most recent issues of P.O.B.
and from your letter of January 12, 1983. You state that
ACSM/NSPS is the "principal source of news for P.O.B." To carry
out this informing function, P.O.B. maintains a "close working
relationship with ACSM and NSPS officers and staff." Both recent
issues of P.O.B. include a calendar of future meetings sponsored
by state nd regional components of ACSM. The October-November
issue describes an awards program sponsored by NSPS and sets
forth the nomination procedure for the awards, pages 32 and 34.
The December-January issue includes a major feature covering
eight pages wherein various candidates for national and regional
offices in ACSM and NSPS are pictured and respond to questions
posed by P.O.B. The December issue also includes a promotional
notice advocating membership in ACSM, page 39-E, as well as an
ACSM membership application with instructions, pages 55 and 56.
Also included, at page 43, is an informational report on the
contributions made by ACSM/PAC to Federal candidates in the 1982
elections.
Accordingly, given the specialized nature of P.O.B. both as
to its advertising and editorial content and its targeted
readership, and also in view of its avowed purpose to be the
principal source of information concerning ACSM affairs and to
promote ACSM membership by annually circulating membership
applications, the Commission concludes that PubCo and P.O.B. are
subject to the same limitations on contribution solicitations as
apply to ACSM/NSPS itself and to ACSM/NSPS PAC. See generally 2
U.S.C. SS 441b(b)(4), 11 CFR 114.7 and 114.8.
Under the Act, a corporate membership organization such as
ACSM may solicit voluntary contributions from its individual
members to a separate segregated fund that will be used for
political purposes. 2 U.S.C. S6 441b(b)(4)(C), 11 CFR 114.7(a).
While the Commission has permitted a corporate membership
organization (including a trade association) to publish a
solicitation for contributions in the organization's magazine,
such publication was permitted only when the distribution beyond
the permissible class of persons that could be lawfully solicited
for political contributions was "isolated, incidental, and
inadvertent." See, Advisory Opinion 1978-97, and compare
Advisory Opinions 1979-50, and 1980-139, copies enclosed.
Specifically, in Advisory Opinion 1980-139, the Commission
concluded that where a solicitation was to appear in a magazine
which had a circulation outside of the organization's membership
of 20%, then such a solicitation was prohibited by the Act even
though the magazine and the organization proposed to undertake
certain precautionary measures to avoid the acceptance of
contributions from individuals who were not members of the
organization. In this case you estimate that over 80% of those
who receive P.O.B. are not members of ACSM/NSPS.4/ Thus, P.O.B.
may not be used as a means of soliciting contributions for ACSM
PAC.
In concluding that P.O.B. may not publish the solicitation
for ACSM/PAC, the Commission is of the opinion that the
relationship between PubCo and ASCM/NSPS is significant. Under
these circumstances, as discussed above, the Commission views
P.O.B. magazine as the functional equivalent of an ACSM/NSPS
"in-house" magazine. As such PubCo and P.O.B. would be subject
to the restrictions imposed by 2 U.S.C. SS 441b(b)(4) with respect
to whom ACSM or ACSM PAC may solicit for political contributions
to ACSM/PAC.
The situation in this opinion is distinguishable from the
facts presented in Advisory Opinion 1980-109, copy enclosed. In
that opinion, an independent publishing company, not having any
coordinating functions or cooperative relationship with any
membership organization or trade association which had
solicitation restrictions imposed upon it under 2 U.S.C. SS 441b,
sought permission to publish a solicitation for contributions on
behalf of a Federal candidate. On the facts there presented, the
Commission concluded that the news story exception to the
definition of expenditure permitted the printing of a
contribution solicitation for the candidate in the periodical
without a corporate contribution resulting therefrom. See,
Advisory Opinion 1980-109, and 2 U.S.C. SS 431(9)(B)(i); see also
Advisory Opinion 1980-90, copy enclosed.
4/ While some recipients of P.O.B. may be members of ACSM through
member organizations other than NSPS, it still appears that
approximately 78% of the circulation of P.O.B. goes outside the
membership of ACSM. P.O.B. has a current circulation of 57,000
and ACSM has a membership of 12,700 according to the 1983 edition
of the Encyclopedia of Associations.
This response constitutes an advisory opinion concerning
application of the Act, or regulations prescribed by the
Commission, to the specific transaction or activity set forth in
your request. See 2 U.S.C. SS 437f.