[Federal Register Volume 71, Number 50 (Wednesday, March 15, 2006)]
[Proposed Rules]
[Page 13306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2551]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 71, No. 50 / Wednesday, March 15, 2006 / 
Proposed Rules  

[[Page 13306]]



FEDERAL ELECTION COMMISSION

11 CFR Part 109

[Notice 2006-5]


Coordinated Communications

AGENCY: Federal Election Commission.

ACTION: Supplemental notice of proposed rulemaking; re-opening of 
comment period.

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SUMMARY: The Federal Election Commission is making public data related 
to its ongoing rulemaking regarding coordinated communications and is 
re-opening the public comment period for the Notice of Proposed 
Rulemaking (``NPRM'') published on December 14, 2005. The Commission 
requests additional comments on alternatives presented in the NPRM in 
light of data regarding the timing of campaign advertising in recent 
elections. No final decision has been made by the Commission on the 
issues presented in this rulemaking. Further information is provided in 
the supplementary information that follows.

DATES: Comments must be received on or before March 22, 2006.

ADDRESSES: All comments must be in writing, must be addressed to Mr. 
Brad C. Deutsch, Assistant General Counsel, and must be submitted in 
either e-mail, facsimile, or paper copy form. Commenters are strongly 
encouraged to submit comments by e-mail or fax to ensure timely receipt 
and consideration. E-mail comments must be sent to either 
[email protected] or submitted through the Federal eRegulations 
Portal at http://www.regulations.gov. If e-mail comments include an 
attachment, the attachment must be in either Adobe Acrobat (.pdf) or 
Microsoft Word (.doc) format. Faxed comments must be sent to (202) 219-
3923, with paper copy follow-up. Paper comments and paper copy follow-
up of faxed comments must be sent to the Federal Election Commission, 
999 E Street, NW., Washington, DC 20463. All comments must include the 
full name and postal service address of the commenter or they will not 
be considered. The Commission will post comments on its Web site after 
the comment period ends.

FOR FURTHER INFORMATION CONTACT: Mr. Brad C. Deutsch, Assistant General 
Counsel, Mr. Ron B. Katwan or Ms. Esa L. Sferra, Attorneys, 999 E 
Street, NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On December 14, 2005, the Commission 
published a Notice of Proposed Rulemaking (``NPRM'') proposing to amend 
its current rules at 11 CFR 109.21 that set forth a three-prong test 
for determining whether a communication is a coordinated communication, 
and therefore an in-kind contribution to a candidate, a candidate's 
authorized committee, or a political party committee. 70 FR 73946 (Dec. 
14, 2005). The NPRM proposed seven different alternatives for revising 
the content prong of the coordinated communications test in response to 
the decisions in Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) 
(``Shays District''), aff'd, Shays v. FEC, 414 F.3d 76 (D.C. Cir. 2005) 
(``Shays Appeal'') (pet. for reh'g en banc denied Oct. 21, 2005) (No. 
04-5352). In Shays Appeal, the Court of Appeals invalidated one aspect 
of the content prong--the 120-day time frame--because the court 
believed that the Commission had not provided an adequate explanation 
and justification under the Administrative Procedure Act. Shays Appeal 
at 100. The Court of Appeals emphasized that justifying the 120-day 
time frame (or any other time frame) requires the Commission to 
undertake a factual inquiry to determine the appropriate time frame 
regarding ``election-related advocacy.'' Id. at 102.
    The Court of Appeals ordered the Commission to consider carefully 
certain questions in promulgating new rules, including: ``Do candidates 
in fact limit campaign-related advocacy to the four months surrounding 
elections, or does substantial election-related communication occur 
outside that window? Do congressional, senatorial, and presidential 
races--all covered by this rule--occur on the same cycle, or should 
different rules apply to each?'' Shays Appeal, 414 F.3d at 102.
    In the NPRM, the Commission specifically requested that commenters 
submit empirical data showing the time period before an election during 
which campaign communications generally occur. NPRM at 73949. None of 
the commenters on this rulemaking provided empirical data in response 
to the Commission's request. One joint comment did provide, however, a 
compilation of selected campaign advertisements run before certain 
elections that took place during several recent election cycles.
    The Commission held a public hearing on this rulemaking on January 
25-26, 2006, at which eighteen commenters testified. At the close of 
the hearings, the Commission still had not received any empirical data 
regarding the timing of campaign advertisements.
    Therefore, the Commission is issuing this Supplemental Notice of 
Proposed Rulemaking (``SNPRM'') to invite comment on data that the 
Commission has now licensed from TNS Media Intelligence/CMAG. These 
data, which can be accessed from the Commission's Web site at http://www.fec.gov/law/law_rulemakings.shtml#coordinated, provide information 
regarding television advertising spots run by Presidential, Senate, and 
House candidates during the 2004 election cycle. The Commission has 
also provided graphical representations of these data, which are also 
available at this Web site address.
    This SNPRM also re-opens the comment period for this rulemaking. 
The Commission seeks additional comment, in light of the information 
presented by these data, on the issues and questions raised in the NPRM 
regarding the content prong time frame. See NPRM at 73948-52. Comments 
are due on or before March 22, 2006.

    Dated: March 8, 2006.
Michael E. Toner,
Chairman, Federal Election Commission.
[FR Doc. 06-2551 Filed 3-14-06; 8:45 am]
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