Federal Election Commission Main Page
Washington, DC 20463
December 6, 1996
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
ADVISORY OPINION 1996-48
Bruce D. Collins, Esq.
Corporate Vice President and General Counsel
National Cable Satellite Corporation
400 North Capitol St., N.W.
Suite 650
Washington, D.C. 20015
Dear Mr. Collins:
This responds to your letter dated November 7, 1996,
which requests an advisory opinion on behalf of the
National Cable Satellite Corporation (ONCSCO) concerning
application of the Federal Election Campaign Act of 1971,
as amended ("the Act"), and Commission regulations to
NCSC's proposed broadcast of various candidate campaign
materials.
NCSC is a nonprofit corporation created by the cable
television industry. It was formed to provide information
and public affairs programming throughout the United States
on a 24-hour per day basis via two cable television
networks, C-SPAN and C-SPAN 2 ("C-SPAN Networks"). Your
request describes NCSC's proposed broadcast of candidate
video biographies and campaign commercials as a part of its
regular news and public affairs programming on the C-SPAN
Networks.
You indicate that the Mission Statement of C-SPAN makes
clear that the role of the C-SPAN Networks "is to provide the
public with balanced, unfiltered news and information about
the development of public policy and the role of federal,
state and local governments (including both Houses of
Congress), in the development of that policy." As an
integral part of this public affairs programming, you state
that NCSC plans to produce a series of television programs
covering congressional and presidential elections to be aired
on the C-SPAN Networks. Your letter further indicates that
NCSC's in-depth coverage of Federal elections "includes
candidate appearances and debates, discussions with pollsters
and media experts about the campaigns, and viewer call-in
programs."
NCSC plans to obtain from the campaigns video
biographies of the candidates and campaign commercials, and
to air them at no charge to the candidates as part of two
programs, "Road to the Capital" and "Road to the White
House." During the programs, the video material will be
introduced by a narrative explaining that it is a campaign
commercial or video. The size of the video image on the
screen will be reduced to allow space for written text
beneath the image identifying it as a campaign commercial.
NCSC believes these biographies and commercials to be
newsworthy, and believes that airing them will assist viewers
in understanding the complex policy issues being discussed by
the candidates. The candidates and their campaign committees
will have no control over the timing or context in which the
campaign commercials and video biographies are broadcast by
the C-SPAN Networks.
You ask whether, given these facts and circumstances,
the news and commentary exception in the Act would permit
NCSC to air Federal candidate video biographies and campaign
commercials as part of its regular news and public affairs
programming.
The Act and Commission regulations define the terms
OcontributionO and "expenditure" to include any gift of money
or anything of value made by any person for the purpose of
influencing any election for Federal office. 2 U.S.C.
431(8)(A)(i) and 431(9)(A)(i); 11 CFR 100.7(a)(1) and
100.8(a)(1). See also 2 U.S.C. 441b(b)(2) and
11 CFR 114.1(a)(1) (providing a similar definition of
"contribution or expenditure" with respect to corporate
contributions). The term OpersonO includes a corporation. 2
U.S.C. 431(11). Furthermore, with certain exceptions, the
Act and Commission regulations prohibit a corporation,
including a nonprofit corporation, from making contributions
or expenditures in connection with any Federal election. 2
U.S.C. 441b(a) and 11 CFR 114.2(b). The Act specifically
exempts from the definition of "expenditure":
any news story, commentary, or editorial distributed
through the
facilities of any broadcasting station, newspaper,
magazine, or other
periodical publication, unless such facilities are owned
or controlled
by any political party, political committee, or
candidate.
2 U.S.C. 431(9)(B)(i).
Commission regulations similarly exclude from the
definitions of contribution and expenditure "[a]ny cost
incurred in covering or carrying a news story, commentary, or
editorial by any broadcasting station, newspaper, magazine,
or other periodical publication." 11 CFR 100.7(b)(2) and
100.8(b)(2). According to the legislative history of
this "press exemption," Congress intended to preserve the
traditional role of the press with respect to campaigns:
[I]t is not the intent of the Congress in the present
legislation to limit or
burden in any way the first amendment freedoms of the
press and of
association. Thus [the exemption] assures the
unfettered right of the
newspapers, TV networks, and other media to cover and
comment on
political campaigns.
H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974).
Several factors must be present to conclude that NCSC's
proposed activity falls within the press exemption of 2
U.S.C. 431(9)(B)(i). First, NCSC must be a press entity as
described by the Act and regulations. See Advisory Opinions
1996-41, 1996-16 and opinions and cases cited therein.
Furthermore, in previously applying the press exemption, the
Commission cited two criteria, based on the statutory
exemption, that would be relevant to determining the scope of
the press exemption. These are (1) whether the press entity
is owned by a political party, political committee, or
candidate, and (2) whether the press entity is acting as a
press entity in performing the media activity.1 Advisory
Opinion 1982-44 (citing Reader's Digest Association v.
Federal Election Commission, 509 F. Supp. 1210, 1215
(S.D.N.Y. 1981)).
NCSC and the C-SPAN Networks qualify as press entities,
as set forth in the exemption. The Commission recently
revised its regulations to make clear that cable television
programmers, producers and operators are considered
broadcasters within the meaning of the press exemption. See
61 Fed. Reg. 18049 (April 24, 1996). Through the C-SPAN
Networks, NCSC serves as a non-commercial producer and
provider of 24-hour a day programming devoted to news,
commentary and editorials. There is no indication that NCSC
or the C-SPAN Networks are owned or controlled, in whole or
in part, by any political party, political committee, or
candidate.
In producing "Road to the Capital," "Road to the White
House," and other news, commentary and editorial programming,
NCSC would retain control over the context in which campaign
commercials and candidate biographies are used. Moreover,
NCSC would take the affirmative steps described above to
ensure that viewers do not conclude that the airing of such
materials constitutes an endorsement by the C-SPAN Networks
of the candidates depicted. Thus, the use of campaign-
produced advertising and biographical materials does not
alter the basic nature of the programs as news stories,
editorials or commentaries. These materials would be aired
because they have significant news value, and because they
assist viewers in understanding the complex issues discussed
by the candidates. Neither the campaign committees nor the
candidates would have the ability to determine when or how
their election advocacy messages are presented to the
viewers. This conclusion is not altered by your statement
that NCSC is not supported by advertising revenues, and would
not charge a fee for the airing of the campaign materials
used in the above-described programming.
Based on the foregoing, the Commission concludes that
NCSC and the C-SPAN Networks are press entities that will be
acting in their capacities as press entities when producing
and carrying the above-described programming. The
dissemination of candidate video biographies and campaign
commercials as part of the programming you have proposed
would therefore be permissible under the Act.
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. 437f.
Sincerely,
(signed)
Lee Ann Elliott
Chairman
Enclosures (AOs 1996-41, 1996-16, and 1982-44)
_______________________________
1 Commission regulations provide that, in the event the
facilities are owned or controlled by a political party,
political committee, or candidate, the exemption would still
apply to the cost of a news story "(i) which represents a
bona fide news account communicated in a publication of
general circulation or on a licensed broadcasting facility,
and (ii) which is part of a general pattern of campaign-
related news accounts which give reasonably equal coverage to
all opposing candidates in the circulation or listening area
..." 11 CFR 100.7(b)(2) and 100.8(b)(2).