[Federal Register Volume 67, Number 205 (Wednesday, October 23, 2002)]
[Rules and Regulations]
[Pages 65212-65218]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26483]


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FEDERAL ELECTION COMMISSION

11 CFR Part 100

[Notice 2002-21]


FCC Database on Electioneering Communications

AGENCY: Federal Election Commission.

ACTION: Interim final rules with requests for comments.

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SUMMARY: The Federal Election Commission is promulgating interim final 
rules regarding electioneering communications, which are certain 
television and radio communications that refer to a clearly identified 
Federal candidate and that are targeted to the relevant electorate 
within 60 days before a general election or within 30 days

[[Page 65213]]

before a primary election for Federal office. These interim final rules 
implement a portion of the Bipartisan Campaign Reform Act of 2002 
(``BCRA''), which adds to the Federal Election Campaign Act new 
provisions regarding ``electioneering communications.'' BCRA defines 
electioneering communications to mean certain communications that can 
be received by 50,000 or more persons in the State or district that a 
candidate seeks to represent. The interim final rules: Identify the Web 
site of the Federal Communications Commission (``FCC'') as the 
appropriate place to acquire information as to whether a communication 
will be capable of being received by 50,000 persons; allow those who 
make communications to rely on information on the FCC's Web site to 
determine whether their communications will be capable of being 
received by 50,000 or more persons in a given area; set out the 
formulae to be used to determine whether a communication can be 
received by 50,000 or more persons; and specify three ways that a 
person can demonstrate that a communication did not reach 50,000 
persons in a particular Congressional district or State, if the FCC 
database is silent on the matter. Further information is provided in 
the Supplementary Information that follows.

DATES: These rules are effective on November 22, 2002. Comments must be 
received on or before January 21, 2003.

ADDRESSES: All comments should be addressed to Ms. Mai T. Dinh, Acting 
Assistant General Counsel, and must be submitted in either electronic 
or written form. Electronic mail comments should be sent to 
[email protected] and must include the full name, electronic mail 
address, and postal service address of the commenter. Electronic mail 
comments that do not contain the full name, electronic mail address, 
and the postal service address of the commenter will not be considered. 
Faxed comments should be sent to (202) 219-3923, with printed copy 
follow-up to ensure legibility. Written comments and printed copies of 
faxed comments should be sent to Federal Election Commission, 999 E 
Street, NW., Washington, DC 20463. Commenters are strongly encouraged 
to submit comments electronically to ensure timely receipt and 
consideration. The Commission will make every effort to post public 
comments on its Web site within ten business days of the close of the 
comment period.

FOR FURTHER INFORMATION CONTACT: Ms. Mai T. Dinh, Acting Assistant 
General Counsel, or Mr. Anthony T. Buckley, Attorney, 999 E Street, 
NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Bipartisan Campaign Reform Act of 2002, 
Pub. L. 107-155, 116 Stat. 81 (Mar. 27, 2002), contains extensive and 
detailed amendments to the Federal Election Campaign Act of 1971, as 
amended, 2 U.S.C. 431 et seq. Among these amendments are provisions in 
Title 2 of BCRA that address electioneering communications. The 
Commission published a Notice of Proposed Rulemaking (``NPRM'') on 
which these interim final rules are based in the Federal Register on 
August 7, 2002. 67 FR 51,131 (Aug. 7, 2002). Written comments were due 
by August 21, 2002 for those who wished to testify or by August 29, 
2002 for all other commenters. The names of commenters and their 
comments are available at http://www.fec.gov/register.htm under 
``Electioneering Communications.'' The Commission held a public hearing 
on the NPRM on August 28 and 29, 2002, at which it heard testimony from 
12 witnesses. Transcripts of the hearing are available at http://www.fec.gov/register.htm under ``Electioneering Communications.''\1\
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    \1\ Oral testimony at the Commission's public hearing and 
written comments are both considered ``comments'' in this document.
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    The Electioneering Communications NPRM had several components, 
including the definition of ``electioneering communication''; the 
prohibitions on corporations and labor organizations from making 
disbursements for electioneering communications, with limited 
exceptions; the reporting requirements; and the database that will be 
developed and maintained by the Federal Communications Commission 
(``FCC'') to determine whether a communication reaches 50,000 persons 
in the relevant Congressional district or State.
    Throughout this rulemaking, the Commission and the FCC have 
recognized that the creation of the FCC database will be a difficult 
and complicated undertaking, given the statutory deadline for 
promulgation of rules implementing BCRA.\2\ For the Commission, the 
difficulties reside not in the development of the database, but in 
determining the various ways that communications can be distributed and 
the options for measuring how many persons can receive them. Therefore, 
the Commission is separating the final rules addressing the FCC 
database from the final rules on Electioneering Communications so that 
it may continue to receive and consider comments and information on the 
FCC database.
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    \2\ Section 402(c)(1) of BCRA establishes a general deadline of 
270 days for the Commission to promulgate regulations to carry out 
BCRA. The President of the United States signed BCRA into law on 
March 27, 2002, so the 270-day deadline is December 22, 2002. The 
interim final rules do not apply to any runoff elections required by 
the results of the November 5, 2002 general election. 2 U.S.C. 431 
note.
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    Under the Administrative Procedures Act, 5 U.S.C. 553(d), and the 
Congressional Review of Agency Rulemaking Act, 5 U.S.C. 801(a)(1), 
agencies must submit final rules to the Speaker of the House of 
Representatives and the President of the Senate and publish them in the 
Federal Register at least 30 calendar days before they take effect. The 
interim final rules on the FCC database on electioneering 
communications were transmitted to Congress on October 11, 2002.

Explanation and Justification

Introduction

    BCRA at 2 U.S.C. 434(f)(3) defines a new term, ``electioneering 
communications.'' This term includes broadcast, cable, or satellite 
communications: (1) That refer to a clearly identified Federal 
candidate; (2) that are transmitted within certain time periods before 
a primary or general election; and (3) that are ``targeted to the 
relevant electorate,'' that is, the relevant Congressional district or 
State. A communication is ``targeted to the relevant electorate'' if it 
can be received by 50,000 or more persons in the Congressional district 
or State.\3\
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    \3\ See the Electioneering Communications Final Rules, which are 
promulgated in conjunction with these interim final rules, for the 
implementation of the definition of ``electioneering 
communication.''
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    Pursuant to section 201(b) of BCRA,\4\ the FCC ``shall compile and 
maintain any information (that this Commission] may require to carry 
out [the electioneering communications disclosure requirements of 
BCRA,) and shall make such information available to the public on the 
(FCC's) Web site.'' These requirements are necessary to promote 
compliance with the disclosure and funding requirements in the new law 
regarding electioneering communications. Those who wish to make 
communications that meet the content, timing, and medium requirements 
of the electioneering communication definition must be able to easily 
determine whether the radio or television stations, cable systems, or 
satellite systems on which they wish to publicly distribute their 
communications will reach 50,000 or more persons in the State (U.S. 
Senate

[[Page 65214]]

candidates or presidential primary candidates) or Congressional 
district (U.S. House of Representatives candidates) in which the 
candidate mentioned in the communication is running.
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    \4\ This section of BCRA has not been codified.
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11 CFR 100.29(b)(6)--Information Available on the FCC Web Site
    In the NPRM, the Commission described some of the search 
capabilities that will be necessary and some features that would be 
helpful on the FCC's Web site, as well as some contemplated for the 
Commission's own Web site. The Commission also posed a number of 
questions related to the techniques for determining whether a 
communication will reach 50,000 or more persons in a Congressional 
district or State. The NPRM invited comments on what additional 
information, Web site features, or search options should be made 
available. Finally, the NPRM stated that the final rule would list the 
types of information that the FCC determines it will provide on its Web 
site.
    The Media Bureau of the Federal Communications Commission provided 
comments on these issues, as did ten other commenters. The FCC 
acknowledges that BCRA requires it to create, maintain and make 
available to the public on its Web site a database of information 
necessary to determine if a communication can be received by 50,000 or 
more persons in any Congressional district or State. The FCC emphasized 
that ``this undertaking could be extraordinarily complex and will 
require the expenditure of substantial resources in terms of time, 
money, and personnel.'' The FCC cautioned that, at a minimum, this 
database will involve the integration of information regarding the 
population and the geography of Congressional districts and State 
boundaries, and that it could also require the FCC to examine ``more 
detailed information relating to the specific programming services 
transmitted or carried by each broadcast station, cable system, and 
satellite system in the country.''
    The FCC also stated that the ``creation and maintenance of a 
database that complies with * * * BCRA will be, no matter what the 
details, a large and difficult undertaking.'' The FCC provided 
numerical data that underscore the magnitude of its task, noting that, 
as of June 30, 2002, there are 8450 FM radio stations, 4811 AM radio 
stations, and 1712 full-power analog television stations operating in 
the United States, and that as of August 27, 2002, there are 516 
digital television stations, 10,500 cable systems, and several 
satellite providers. Because of the nature of this task, the FCC asked 
this Commission to craft rules that will simplify the task to the 
extent possible. The FCC sought flexibility and discretion to implement 
the database based upon its expertise and available data, so that it 
will be able to provide the public with the information as quickly and 
accurately as possible.
    One commenter argued that the proposal in the NPRM regarding what 
information should be available on the FCC Web site was not sufficient. 
This commenter suggested that the Commission also require the FCC ``to 
compile and maintain a database, available on the World Wide Web, of 
certain information that has to be collected anyway under section 504 
of the BCRA.'' Section 504 of BCRA, amends the Communications Act of 
1934 to require broadcast licensees to maintain certain records 
regarding requests to purchase broadcast time for the purpose of 
communicating a message of a political nature. See 47 U.S.C. 315(e).
    Eight commenters either stated specifically that they supported the 
database concept as described in the NPRM, or by their comments, 
appeared to support it. One commenter urged the Commission to defer to 
the FCC's determination of the specifics of how the database should 
operate.
    In order to provide the FCC with the most flexibility possible, the 
Commission has decided not to include in the final rule any additional 
requirements as to the types of information to be made available on the 
FCC's Web site. Instead, the interim final rule lists only what is 
required by BCRA: the FCC's Web site will provide information that will 
permit those who wish to make communications to determine easily 
whether the radio or television stations, cable systems, or satellite 
systems through which they wish to publicly distribute their 
communications will reach 50,000 or more persons in a particular State 
or Congressional district, and, therefore, whether they are required to 
file statements of electioneering communications with the Federal 
Election Commission. Due to the stated challenge the FCC is facing in 
creating this Web site database, and because section 504 of BCRA 
includes information unrelated to electioneering communications, the 
Commission does not believe it is appropriate to require the FCC to 
include such information in its database.
    The Commission also received comments on the statement in the 
proposed rule at Sec.  100.29(b)(5) that reliance on the FCC 
information will be a complete defense to a charge that a communication 
was capable of being received by 50,000 or more persons, and that as a 
result, the communication met the definition of an ``electioneering 
communication.'' All of the commenters who addressed this topic agreed 
that reliance on the information provided on the FCC Web site should be 
sufficient, and many of them believed it should be a complete defense 
to any liability arising under BCRA. One commenter argued that the 
Commission should permit challenges to the information provided on the 
FCC Web site. Another commenter argued that, if the database cannot 
state whether a communication transmitted over a particular outlet 
reaches 50,000 or more persons, then it should be presumed to not reach 
50,000 or more persons. Another commenter argued that the Commission 
should announce that it will not entertain complaints of violations 
until the technological issues are resolved and the targeting 
information is available as proposed.
    Under the interim final rules at 11 CFR 100.29(b)(6)(i), if the FCC 
database indicates that a communication cannot be received by 50,000 or 
more persons in a particular Congressional district or State, then such 
information shall be a complete defense against any charge that such 
communication constitutes an electioneering communication with respect 
to that particular district or State, as long as such information is 
posted on the FCC's Web site on or before the date the communication is 
publicly distributed.
    The proposed rule in the NPRM would have stated that a defense 
involving the information on the FCC Web site would be available if the 
person making the communication relied on the information prior to the 
public distribution of the communication. The interim final rule 
removes the reliance requirement. The information on the FCC Web site 
is intended to state objective facts regarding the reach of broadcast 
systems and networks, and cable and satellite systems. These facts are 
true regardless of whether the person making the communication knew of 
them or intended to make an electioneering communication.
    However, the Commission is concerned that the FCC database may not 
be able to provide information for every possible system or network, or 
may not be operational in time for any special elections in 2003 when 
such information might be necessary. In those situations, paragraphs 
(b)(6)(ii)(A) through (C) set out three ways a person

[[Page 65215]]

can establish a defense to a charge that a communication reached 50,000 
or more persons in a particular district or State.
    The first method is if the person reasonably relied on written 
documentation obtained from the entity publicly distributing the 
communication, stating that the communication cannot be received by 
50,000 or more persons in the specified Congressional district (for 
U.S. House of Representatives candidates) or State (for U.S. Senate 
candidates or presidential primary candidates).
    The second method is if the communication is not publicly 
distributed on a broadcast station, radio station or cable system 
located, in whole or in part, in any Metropolitan Area (MA). For many 
years, the Commission has used the Office of Management and Budget's 
(OMB) definition of MA in other portions of the Commission's 
regulations governing national convention host committee financing. See 
11 CFR 9008.52(c)(2) (``For purposes of this section, any business 
(including any branch of a national or regional chain, a franchise, or 
a licensed dealer) or labor organization or other organization with 
offices or facilities located within the Metropolitan Area (MA) of the 
convention city shall be considered local.'') See also Explanation and 
Justification, 59 FR 33,610 (June 29, 1994). Because MAs contain at 
least 50,000 inhabitants under OMB's definition, a communication aired 
or transmitted by an entity outside of any such areas in the specified 
district or State will not be presumed to reach 50,000 persons.
    The third method is if the person making the communication 
reasonably believes that the communication cannot be received by 50,000 
or more persons in the relevant Congressional district or State. Such 
belief must be reasonably based on information in possession of the 
maker of the communication prior to or at the time the communication is 
made. For example, if a person engaged a media buyer to secure 
broadcast time, and that media buyer reasonably informed that person 
that the communication would not reach 50,000 persons in the relevant 
Congressional district or State, then that would result in a reasonable 
belief as to the reach of the communication.
    To assure persons that the information on the FCC Web site is 
reliable, the Commission encourages the FCC to establish a date by 
which all information on the Web site will be considered correct and 
unchangeable for a coming election cycle, and to post that date on its 
Web site.
11 CFR 100.29(b)(7)--Determining Whether a Communication Can Be 
Received by 50,000 or More Persons
    In the NPRM, the Commission also sought comments on how the term 
``persons'' should be interpreted for purposes of determining the 
required potential audience for electioneering communications. See 2 
U.S.C. 434(f)(3)(C). The term ``person'' is defined in 2 U.S.C. 431(11) 
and in current Commission regulations at 11 CFR 100.10 to mean an 
individual, partnership, association, corporation, labor organization 
and any other organization or group of persons. The NPRM suggested that 
persons other than individuals should be excluded because partnerships 
and other legal entities are, by definition, not part of the ``relevant 
electorate.'' Therefore, limiting ``persons'' to individuals or natural 
persons was proposed.
    All nine commenters who addressed this issue favored construing 
``persons'' to mean natural persons or individuals. Several commenters 
thought the term should be further limited to include only persons who 
are, as described by the commenters, either voting-age citizens, 
registered voters, eligible voters, or those entitled to vote.
    In reviewing what this provision is intended to accomplish, the 
Commission has determined that attempting to define ``person'' by 
itself is not the best approach. Rather, the Commission has determined 
that the more appropriate course is to define the term ``can be 
received by 50,000 or more persons,'' because this phrase is a more 
accurate reflection of the concept Congress sought to address in BCRA. 
This approach enables the Commission, with the assistance of the FCC, 
to employ varying factors to determine whether a communication has the 
necessary audience for it to be considered an electioneering 
communication. Due to the nature of the technologies involved, 
precision is not always feasible in measuring how many persons in a 
particular Congressional district or State can receive a television or 
radio communication. Nor is it required by BCRA, which only employs a 
more or less than 50,000 persons standard.
    In adopting this approach, the Commission is, in effect, assessing 
the number of individuals without attempting to determine how many of 
them may be registered voters or eligible voters. The Commission is 
concerned that to attempt to further define the universe of individuals 
is not required by BCRA and could seriously and unnecessarily 
complicate the effort to provide information in a timely manner.
    The Commission has identified several methodologies that are 
included in the interim final rules in 11 CFR 100.29(b)(7)(i)(A) 
through (H) to determine whether a communication meets BCRA's audience 
standard in a particular Congressional district or State. While these 
methodologies cannot achieve complete precision, the Commission 
believes they could aid in reliably and objectively determining whether 
a communication can be received by 50,000 or more persons in a 
Congressional district or State, as required by BCRA.
    The Commission has ascertained that there are a number of different 
situations that will involve various calculations and configurations to 
make this determination. Some communications are broadcast by 
television stations, radio stations, or networks. These broadcast 
signals may also be redistributed by cable or satellite systems. Other 
communications appear on a single cable system, which may involve more 
than one cable franchise. Still other communications appear on cable 
networks (CNN, FOX News, USA, for example) that are publicly 
distributed via cable and satellite. Because Congressional districts 
are the most problematic, the discussion of the methodologies herein 
will address them specifically. Points made in this discussion can be 
extrapolated to apply statewide for Senate and presidential primary 
elections.
    For over-the-air television broadcasters, broadcast contours appear 
to be the best way to gauge viewership. Thus, if a Congressional 
district lies entirely within a Grade B broadcast contour, the 
potential viewership of that station would be the population of that 
district.
    A broadcast contour is the geographic line within which the 
broadcast signal is at a particular strength. For example, the line 
demarcating the Grade B contour represents the area where fifty percent 
of the population can receive the signal, and fifty percent cannot. The 
Commission understands that the FCC is capable of comparing the 
geographic sweep of broadcast contours, state boundaries and 
Congressional districts. Contours are a construction, not a geographic 
certainty; use of contours will both under- and over-count an audience. 
Nevertheless, based on the technology, contours are the most reliable, 
readily available measure of audiences that ``can receive'' a broadcast 
signal and, according to the FCC, are regularly relied upon in that 
agency and in the telecommunications industry.

[[Page 65216]]

    Using population figures is consistent with the Commission's 
previously stated proposal, and was supported by a number of 
commenters, who agreed that ``persons'' should mean natural persons. 
Subscribers of cable or satellite television within the broadcast 
contour are not counted in the interim final rules at 11 CFR 
100.29(b)(7)(i)(E), as that would result in the double-counting of 
certain persons. If a communication is simultaneously broadcast on a 
network, where multiple stations broadcasting the same material each 
reach a portion of the Congressional district, the populations within 
those portions must be combined to determine whether a communication 
reaches 50,000 or more persons. This method is found in the interim 
final rules at 11 CFR 100.29(b)(7)(i)(F)(1).
    For a broadcast station with Grade B broadcast contours that do not 
cover an entire Congressional district, one way to determine the 
relevant viewership is to first ascertain the population within that 
portion of the district within the broadcast contour. With respect to 
the remaining portion of the district, a calculation must be made of 
the viewership of cable and satellite television that retransmit the 
broadcast station, and that result is added to the first number to 
determine whether the 50,000-person threshold is met. This method is 
found in the interim final rules at 11 CFR 100.29(b)(7)(i)(F)(2).
    When determining viewership of a cable system or satellite system, 
the number of subscribers to each system provides a baseline. However, 
it is unlikely that the number of subscribers exactly equals 
viewership--inevitably, in many households where one person is the 
subscriber, there will be several people who are viewers. Accordingly, 
the interim rules in 11 CFR 100.29(b)(7)(ii) use a multiplier to 
account for this fact. One multiplier that could be used is the current 
average U.S. household size, which at present is 2.62 persons. See 
Jason Fields and Lynne M. Casper, America's Families and Living 
Arrangements: March 2000, Current Population Reports, P20-537, U.S. 
Census Bureau, Washington, DC, 2001. All cable and satellite systems 
carrying the broadcast channel and operating within the district or 
State must be considered.
    Thus, in the hypothetical described above, if the Congressional 
district is served by a cable system, and it is determined that 10,000 
of the cable system's subscribers reside outside of the broadcast 
contour but within the Congressional district, then 26,200 (2.62 x 
10,000) persons are added to the population within the contour to 
determine if the communication can be received by 50,000 or more 
persons.
    With respect to communications publicly distributed solely on cable 
or satellite systems, the same sort of calculations described above 
must be made under the interim final rules at 11 CFR 100.29(b)(7)(i)(G) 
and (H). With respect to cable television networks, the Commission 
notes that not all cable systems carry all cable networks. 
Nevertheless, for the sake of simplicity, the interim final rules 
assume that every cable and satellite system carries every cable 
network, and calculations are based on this assumption. This creates a 
rebuttable presumption as to the reach of a particular cable network, 
which may be overcome by demonstrating that the cable system in 
question did not carry that network at the time a communication was 
transmitted. This rebuttable presumption is set forth in the interim 
final rules at 11 CFR 100.29(b)(7)(iii).
    With respect to communications publicly distributed via AM or FM 
radio stations, each of these media have their own terminology for the 
reach of over-the-air signals, which are reflected in the interim final 
rules at 11 CFR 100.29(b)(7)(i)(A) through (D). The analysis involved 
with these communications is similar to that for over-the-air only 
television broadcast stations. Information regarding the term used for 
FM stations, ``primary service contour,'' can be found on the FCC's Web 
site at: http://www.fcc.gov/mb/audio/fmclasses.html. With respect to AM 
stations, the FCC's rules at 47 CFR part 73 describe the various 
classes of radio stations and the types of service areas (primary and/
or secondary) that are applicable to them. The Commission's rules at 11 
CFR 100.29(b)(7)(i)(C) and (D) use the phrase ``outward service area'' 
to address the fact that some stations may have a reach further than a 
primary service area.
    Several commenters addressed whether the regulations should require 
aggregation of recipients of the same communication from multiple 
outlets and, if so, whether the regulations should aggregate 
substantially similar communications for this purpose. Theoretically, 
one communication could be publicly distributed via several small 
outlets, each of which reaches fewer than 50,000 persons in the 
relevant area, but in the aggregate reach 50,000 or more persons in the 
relevant area. The commenters agreed that the size of radio and 
television audiences might eliminate this concern as a practical 
matter. The commenters generally favored a potential audience measure 
that considers the viewers or listeners of each station separately and 
does not aggregate those figures, except in one instance. For example, 
the commenters argued that if the identical television advertisement is 
separately broadcast on three broadcast stations, each of which reaches 
slightly fewer than 50,000 distinct individuals in the relevant area, 
no electioneering communication should result. (This example assumes 
the broadcast stations are not also distributed on a cable or satellite 
system serving the relevant area.)
    Similarly, some of the commenters argued that if a cable system has 
45,000 viewers in the relevant area and if it distributes an ad on 
several of the channels under its control--a news channel, a sports 
channel, and a lifestyle channel, for example--no electioneering 
communication could result as none of these distributions would be 
available to 50,000 or more persons in the relevant area. The only 
instance in which audience aggregation was supported by the commenters 
was if a television communication is simultaneously distributed by a 
network programming provider on multiple broadcast stations, then the 
combined potential audiences of all the broadcast stations along with 
any individuals who can receive the stations on a cable or satellite 
system should be analyzed to determine if 50,000 or more individuals in 
the relevant area can receive the communication. If so, then an 
electioneering communication would result, assuming the timing and 
content requirements are also met. The interim final rules take this 
approach.
    These interim final rules represent an initial effort by the 
Commission to provide clear guidance to the Federal Communications 
Commission and to those who would make electioneering communications, 
as to how to determine whether a communication can be received by 
50,000 or more persons. The Commission seeks comments on whether this 
approach is appropriate. Additionally, the Commission seeks comments on 
whether it should defer to the Federal Communications Communication to 
determine whether a communication can be received by 50,000 or more 
persons within a Congressional district or State. The Commission also 
seeks comments on whether the various formulae it has adopted for 
making these calculations are reasonable. The Commission is especially 
interested in comments addressing any alternative means of 
accomplishing the same task.

[[Page 65217]]

Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory 
Flexibility Act)

    The Commission certifies that these interim final rules do not have 
a significant economic impact on a substantial number of small 
entities. The basis of this certification is that these rules do not 
require any small entity to take any action or incur any cost.

List of Subjects in 11 CFR Part 100

    Elections.


    For the reasons set out in the preamble, subchapter A of chapter I 
of title 11 of the Code of Federal Regulations is amended as follows:

PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)

    1. The authority citation for part 100 continues to read as 
follows:

    Authority: 2 U.S.C. 431, 434, and 438(a)(8).


    2. Section 100.29 is amended by adding paragraphs (b)(6) and (b)(7) 
to read as follows:


Sec.  100.29  Electioneering communication (2 U.S.C. 437(f)).

* * * * *
    (b) * * *
    (6) (i) Information on the number of persons in a Congressional 
district or State that can receive a communication publicly distributed 
by a television station, radio station, a cable television system, or 
satellite system, shall be available on the Federal Communications 
Commission's Web site, http://www.fcc.gov. A link to that site is 
available on the Federal Election Commission's Web site, http://www.fec.gov. If the Federal Communications Commission's Web site 
indicates that a communication cannot be received by 50,000 or more 
persons in the specified Congressional district or State, then such 
information shall be a complete defense against any charge that such 
communication constitutes an electioneering communication, so long as 
such information is posted on the Federal Communications Commission's 
Web site on or before the date the communication is publicly 
distributed.
    (ii) If the Federal Communications Commission's Web site does not 
indicate whether a communication can be received by 50,000 or more 
persons in the specified Congressional district or State, it shall be a 
complete defense against any charge that a communication reached 50,000 
or more persons when the maker of a communication:
    (A) Reasonably relies on written documentation obtained from the 
broadcast station, radio station, cable system, or satellite system 
that states that the communication cannot be received by 50,000 or more 
persons in the specified Congressional district (for U.S. House of 
Representatives candidates) or State (for U.S. Senate candidates or 
presidential primary candidates);
    (B) Does not publicly distribute the communication on a broadcast 
station, radio station, or cable system, located in any Metropolitan 
Area in the specified Congressional district (for U.S. House of 
Representatives candidates) or State (for U.S. Senate candidates or 
presidential primary candidates); or
    (C) Reasonably believes that the communication cannot be received 
by 50,000 or more persons in the specified Congressional district (for 
U.S. House of Representatives candidates) or State (for U.S. Senate 
candidates or presidential primary candidates).
    (7) (i) Can be received by 50,000 or more persons means--
    (A) In the case of a communication transmitted by an FM radio 
broadcast station or network, where the Congressional district or State 
lies entirely within the station's or network's protected or primary 
service contour, that the population of the Congressional district or 
State is 50,000 or more; or
    (B) In the case of a communication transmitted by an FM radio 
broadcast station or network, where a portion of the Congressional 
district or State lies outside of the protected or primary service 
contour, that the population of the part of the Congressional district 
or State lying within the station's or network's protected or primary 
service contour is 50,000 or more; or
    (C) In the case of a communication transmitted by an AM radio 
broadcast station or network, where the Congressional district or State 
lies entirely within the station's or network's most outward service 
area, that the population of the Congressional district or State is 
50,000 or more; or
    (D) In the case of a communication transmitted by an AM radio 
broadcast station or network, where a portion of the Congressional 
district or State lies outside of the station's or network's most 
outward service area, that the population of the part of the 
Congressional district or State lying within the station's or network's 
most outward service area is 50,000 or more; or
    (E) In the case of a communication appearing on a television 
broadcast station or network, where the Congressional district or State 
lies entirely within the station's or network's Grade B broadcast 
contour, that the population of the Congressional district or State is 
50,000 or more; or
    (F) In the case of a communication appearing on a television 
broadcast station or network, where a portion of the Congressional 
district or State lies outside of the Grade B broadcast contour--
    (1) That the population of the part of the Congressional district 
or State lying within the station's or network's Grade B broadcast 
contour is 50,000 or more; or
    (2) That the population of the part of the Congressional district 
or State lying within the station's or network's broadcast contour, 
when combined with the viewership of that television station or network 
by cable and satellite subscribers within the Congressional district or 
State lying outside the broadcast contour, is 50,000 or more; or
    (G) In the case of a communication appearing exclusively on a cable 
or satellite television system, but not on a broadcast station or 
network, that the viewership of the cable system or satellite system 
lying within a Congressional district or State is 50,000 or more; or
    (H) In the case of a communication appearing on a cable television 
network, that the total cable and satellite viewership within a 
Congressional district or State is 50,000 or more.
    (ii) Cable or satellite television viewership is determined by 
multiplying the number of subscribers within a Congressional district 
or State, or a part thereof, as appropriate, by the current national 
average household size, as determined by the Bureau of the Census.
    (iii) A determination that a communication can be received by 
50,000 or more persons based on the application of the formula at 
paragraph (b)(7)(i)(G) or (H) of this section shall create a rebuttable 
presumption that may be overcome by demonstrating that--
    (A) One or more cable or satellite systems did not carry the 
network on which the communication was publicly distributed at the time 
the communication was publicly distributed; and
    (B) Applying the formula to the remaining cable and satellite 
systems results in a determination that the cable network or systems 
upon which the communication was publicly distributed could not be 
received by 50,000 persons or more.
* * * * *


[[Page 65218]]


    Dated: October 11, 2002.
David M. Mason,
Chairman, Federal Election Commission.
[FR Doc. 02-26483 Filed 10-22-02; 8:45 am]
BILLING CODE 6715-01-P