[Federal Register Volume 76, Number 198 (Thursday, October 13, 2011)]
[Proposed Rules]
[Pages 63567-63569]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26414]


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FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2011-14]


Internet Communication Disclaimers

AGENCY: Federal Election Commission.

ACTION: Advance Notice of Proposed Rulemaking.

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SUMMARY: The Federal Election Commission requests comments on whether 
to begin a rulemaking to revise its regulations concerning disclaimers 
on certain Internet communications and, if so, what changes should be 
made to those rules. The Commission intends to review the comments 
received as it decides what revisions, if any, it will propose making 
to these rules.

DATES: Comments must be received on or before November 14, 2011. The 
Commission will determine at a later date whether to hold a public 
hearing on this Notice. If a hearing is to be held, the Commission will 
publish a notice in the Federal Register announcing the date and time 
of the hearing.

ADDRESSES: All comments must be in writing. Comments may be submitted 
electronically via the Commission's Web site at http://www.fec.gov/fosers. Commenters are encouraged to submit comments electronically to 
ensure timely receipt and consideration. Alternatively, comments may be 
submitted in paper form. Paper comments must be sent to the Federal 
Election Commission, Attn.: Amy L. Rothstein, Assistant General 
Counsel, 999 E Street, NW., Washington, DC 20463. All comments must 
include the full name and postal service address of the commenter, and 
of each commenter if filed jointly, or they will not be considered. The 
Commission will post comments on its Web site at the conclusion of the 
comment period.

FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant 
General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street, NW., 
Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: The Federal Election Commission is 
publishing this Advance Notice of Proposed Rulemaking seeking comments 
on whether and how the Commission should revise its rules at 11 CFR 
110.11 regarding disclaimers on Internet communications. Specifically, 
the Commission is considering whether to modify the disclaimer 
requirements for certain Internet communications, or to provide 
exceptions thereto, consistent with the Federal Election Campaign Act, 
2 U.S.C. 431 et seq., as amended (``the Act''). In the event the 
Commission adopts a final rule on this issue, given the timeframe of 
the current election cycle, the Commission does not anticipate the rule 
would become effective for the 2011-2012 election cycle.

1. Current Statutory and Regulatory Framework

    Under the Act and Commission regulations, a ``disclaimer'' is a 
statement that must appear on certain communications to identify who 
paid for them and, where applicable, whether the communications were 
authorized by a candidate. 2 U.S.C. 441d(a); 11 CFR 110.11. See also 
Explanation and Justification for Final Rules on Disclaimers, 
Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign 
Funds, 67 FR 76962, 76962 (Dec. 13, 2002) (``2002 Disclaimer E&J'').\1\ 
With some exceptions, the Act and Commission regulations require 
disclaimers for public communications: (1) Made by a political 
committee; (2) that expressly advocate the election or defeat of a 
clearly identified Federal candidate; or (3) that solicit a 
contribution. 2 U.S.C. 441d(a); 11 CFR 110.11(a). In addition to public 
communications by political committees, ``electronic mail of more than 
500 substantially similar communications when sent by a political 
committee * * * and all Internet Web sites of political committees 
available to the general public'' also must have disclaimers. 11 CFR 
110.11(a).
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    \1\ Documents related to Commission rulemakings are available at 
http://www.fec.gov/fosers.
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    While the term ``public communication'' generally does not include 
Internet communications, it does include ``communications placed for a 
fee on another person's Web site.''

[[Page 63568]]

11 CFR 100.26. Thus, communications placed for a fee on another 
person's Web site are subject to the disclaimer requirements. See 11 
CFR 110.11(a).
    The content of the disclaimer that must appear on a given 
communication depends on who authorized and paid for the communication. 
If a candidate, an authorized committee of a candidate, or an agent of 
either pays for and authorizes the communication, then the disclaimer 
must state that the communication ``has been paid for by the authorized 
political committee.'' 11 CFR 110.11(b)(l); see also 2 U.S.C. 
441d(a)(1). If a public communication is paid for by someone else, but 
is authorized by a candidate, an authorized committee of a candidate, 
or an agent of either, then the disclaimer must state who paid for the 
communication and that the communication is authorized by the 
candidate, authorized committee of the candidate, or an agent of 
either. 11 CFR 110.11(b)(2); see also 2 U.S.C. 441d(a)(2). If the 
communication is not authorized by a candidate, an authorized committee 
of a candidate, or an agent of either, then the disclaimer must 
``clearly state the full name and permanent street address, telephone 
number, or World Wide Web address of the person who paid for the 
communication, and that the communication is not authorized by any 
candidate or candidate's committee.'' 11 CFR 110.11(b)(3); see also 2 
U.S.C. 441d(a)(3). Every disclaimer ``must be presented in a clear and 
conspicuous manner, to give the reader, observer, or listener adequate 
notice of the identity'' of the communication's sponsor. 11 CFR 
110.11(c)(1).
    Commission regulations contain limited exceptions to the general 
disclaimer requirements. For example, disclaimers are not required for 
communications placed on ``[b]umper stickers, pins, buttons, pens, and 
similar small items upon which the disclaimer cannot be conveniently 
printed.'' 11 CFR 110.11(f)(1)(i) (the ``small items exception''). Nor 
are disclaimers required for ``[s]kywriting, water towers, wearing 
apparel, or other means of displaying an advertisement of such a nature 
that the inclusion of a disclaimer would be impracticable.'' 11 CFR 
110.11(f)(1)(ii) (the ``impracticable exception''). See also Advisory 
Opinion 2002-09 (Target Wireless).

2. Recent Developments Concerning Internet Advertisements

    The Commission recently considered two advisory opinion requests 
seeking to exempt from the disclaimer requirements, under the small 
items or impracticable exceptions, certain advertisements placed for a 
fee on another person's Web site. In the first of these advisory 
opinion requests, Google, Inc. asked the Commission if it could sell 
text advertisements consisting of approximately 95 characters to 
candidates and political committees if those advertisements did not 
include disclaimers. Google proposed that users would see a disclaimer 
by clicking on the advertisement and viewing the disclaimer on the 
advertisement's landing page. See Advisory Opinion Request 2010-19 
(Google).\2\ While the Commission did not agree on the reason for its 
decision, it concluded that such advertisements were not in violation 
of the Act. See Advisory Opinion 2010-19 (Google).
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    \2\ Documents related to Commission advisory opinions are 
available at http://www.fec.gov/searchao.
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    In the second advisory opinion request on this issue, Facebook 
asked if its small, character-limited advertisements (ranging from zero 
to 160 characters) qualified for either the small items or 
impracticable exception to the disclaimer requirements. See Advisory 
Opinion Request 2011-09 (Facebook). The Commission could not approve an 
answer by the required four affirmative votes and therefore was unable 
to render an advisory opinion to Facebook.
    In the course of considering these advisory opinion requests, the 
Commission received one comment from the public urging the Commission 
to undertake a rulemaking to address the disclaimer requirements in 
light of technological developments in Internet advertising. The 
Commission is now considering whether to issue an NPRM to propose 
amending its rules in this area. The Commission seeks to provide ``much 
needed flexibility to ensure that the regulated community is able to 
take advantage of rapidly evolving technological innovations, while 
ensuring that `necessary precautions' are in place.'' Advisory Opinion 
2007-30 (Dodd); see also Advisory Opinion 1999-09 (Bradley) (explaining 
that it is the Commission's practice to ``interpret[] the Act and its 
regulations in a manner consistent with contemporary technological 
innovations * * * where the use of the technology would not compromise 
the intent of the Act or regulations.''). The Supreme Court has 
explained that the disclaimers required by 2 U.S.C. 441d ``provide the 
electorate with information and insure that the voters are fully 
informed about the person or group who is speaking.'' Citizens United 
v. FEC, 130 S.Ct. 876, 915, 78 U.S.L.W. 4078 (2010) (internal 
quotations and alterations removed). Given the development and 
proliferation of the Internet as a mode of political communication, and 
the expectation that continued technological advances will further 
enhance the quantity of information available to voters online and 
through other technological means, the Commission welcomes comments on 
whether and how it should amend its disclaimer requirements for public 
communications on the Internet to provide flexibility consistent with 
their purpose.

3. Commission Regulations Concerning Internet Communications

    The Commission has long recognized the vital role of the Internet 
and electronic communications in election campaigns. The Commission 
first addressed Internet disclaimers in 1995 when it stated that 
``Internet communications and solicitations that constitute general 
public political advertising require disclaimers.'' See Explanation and 
Justification for Final Rules on Communications Disclaimer 
Requirements, 60 FR 52069, 52071 (Oct. 5, 1995) (``1995 Disclaimer 
E&J'').
    That same year, the Commission considered two advisory opinion 
requests regarding the application of the Act to Internet solicitations 
of campaign contributions. See Advisory Opinions 1995-35 (Alexander for 
President) and 1995-09 (NewtWatch). The Commission determined that 
Internet solicitations are general public political advertisements and, 
as such, they ``are permissible under the [Act] provided that certain 
requirements, including the use of appropriate disclaimers, are met.'' 
Advisory Opinion 1995-35 (NewtWatch).
    In 2002, Congress enacted the Bipartisan Campaign Reform Act of 
2002, Public Law 107-155, 116 Stat. 81 (2002) (``BCRA''). In BCRA, 
Congress added new specificity to the disclaimer requirements, expanded 
the scope of communications covered by the disclaimer requirements, and 
enacted ``stand by your ad'' requirements. Congress also added a new 
definition of the term ``public communication.'' See 2 U.S.C. 431(22) 
and 441d; see also 2002 Disclaimer E&J, 67 FR at 76962.
    In implementing BCRA, the Commission promulgated a new definition 
of ``public communication'' that excluded all communications over the 
Internet. See Explanation and Justification for Final Rules on 
Prohibited and Excessive Contributions: Non-Federal Funds or Soft 
Money, 67 FR 49064, 49111 (July 29, 2002). The

[[Page 63569]]

Commission also promulgated new rules to implement BCRA's changes to 
the disclaimer provisions of the Act. See 2002 Disclaimer E&J, 67 FR at 
76962. The new rules applied disclaimer requirements to political 
committee Web sites and the distribution of more than 500 substantially 
similar unsolicited e-mails. Other than these two specific types of 
Internet-based activities, however, Internet communications were not 
subject to the disclaimer requirements. Id. at 76963-64.
    The Commission adopted its current rules governing Internet 
communications in 2006 in response to the decision of the U.S. District 
Court for the District of Columbia in Shays v. FEC. See Shays v. FEC, 
337 F.Supp.2d 28 (D.D.C. 2004) (``Shays I''); see also Explanation and 
Justification for Final Rules on Internet Communications, 71 FR 18589, 
18589 (Apr. 12, 2006) (``2006 Internet E&J''). That decision held, 
among other things, that the Commission could not wholly exclude 
Internet activity from the definition of ``public communication.''
    Following the Shays I decision, the Commission added ``Internet 
communications placed on another person's Web site for a fee'' to the 
regulatory definition of ``public communication.'' See 11 CFR 100.26. 
Under the new definition, ``when someone such as an individual, 
political committee, labor organization or corporation pays a fee to 
place a banner, video, or pop-up advertisement on another person's Web 
site, the person paying makes a `public communication.' '' 2006 
Internet E&J at 18594. Furthermore, ``the placement of advertising on 
another person's Web site for a fee includes all potential forms of 
advertising, such as banner advertisements, streaming video, popup 
advertisements, and directed search results.'' Id. At the same time, 
however, the Commission confirmed that the ``vast majority of Internet 
communications * * * remain free from campaign finance regulation.'' 
Id. at 18590. Because the disclaimer requirement ``incorporate[d] the 
revised definition of `public communication,' '' Internet 
communications placed for a fee on another person's Web site became 
subject to the disclaimer requirement. Id. at 18589-90; see also id. at 
18594.

4. Possible Revisions to Commission Regulations

    The Commission invites comments that address the ways that 
campaigns, political committees, voters, and others are using, or may 
soon use, the Internet and other technologies, including applications 
for mobile devices (``apps''), to disseminate and receive campaign and 
other electoral information. The Commission also invites commenters to 
address the ways in which the Internet and other technologies present 
challenges in complying with the disclaimer requirements under the 
existing rules.
    The Commission is interested in comments that address possible 
modifications, such as by technological alternatives, to the current 
disclaimer requirements. For example, the California Fair Political 
Practices Commission (``CFPPC'') recently amended its regulations 
regarding paid campaign advertisements to address the issue of 
disclaimers in electronic media advertisements that are limited in 
size. See Cal. Code Regs. tit. 2, sec. 18450.4 (effective December 
2010). Instead of exempting all small communications from the 
disclaimer requirements, CFPPC's new regulation provides that small 
advertisements may use technological features such as rollover 
displays, links to a Web page, or ``other technological means'' to meet 
the requirements. Id. at sec. 18450.4(b)(3)(G)(1). The California 
regulation contains the following examples of ``limited'' size 
advertisements: a ``micro bar,'' a ``button ad,'' a paid text 
advertisement under 500 characters, or a small picture or graphic link. 
Id. The California regulation further provides that, ``In electronic 
media advertisements whose size, space, or character limit constraints 
(i.e., SMS text message) render it impracticable to include the full 
disclosure information * * * the candidate or committee sending the 
mass mailing may provide abbreviated advertisement disclosure 
containing at least the committee's [Fair Political Practices 
Commission number] and when technologically possible a link to the Web 
page on the Secretary of State's Web site displaying the committee's 
campaign finance information, if applicable.'' Id. at sec. 
18450.4(b)(3)(G)(4). Should the Commission consider abbreviated 
advertisement disclosure for Internet advertisements? The Commission 
invites comments that explore the technological and physical 
characteristics that would define a ``small'' Internet advertisement.
    In the Google and Facebook advisory opinion requests discussed 
above, the facts indicated that some Internet advertisements link to a 
Web site or Web page that contains a disclaimer that complies with the 
Act and Commission regulations. Should the Commission consider allowing 
such a link, by itself, to satisfy the disclaimer requirement? If so, 
how should the Commission approach disclaimer requirements for links in 
advertisements that direct persons to Web sites without disclaimers or 
to Web sites owned or operated by persons other than the person paying 
for the advertisement?
    The Commission is also interested in commenters' data or 
experiences in purchasing, selling, or distributing small or character-
limited advertisements online. The Commission is interested in comments 
relating to the appropriate application of either the small items or 
impracticable exception from the disclaimer requirements to small or 
character-limited Internet advertisements. The Commission is also 
interested in comments addressing the possibility of developing a new 
exception for small or character-limited Internet advertisements that 
might be more appropriate for the medium than the existing regulatory 
exceptions. The Commission is interested in learning what proportion of 
Internet political advertising might be affected by such a disclaimer 
exception. The Commission is also interested in comments addressing 
what role Internet media providers' usual and normal advertising model 
should play in the Commission's consideration of disclaimer 
requirements.
    Finally, the Commission welcomes comments on any other aspect of 
the issues addressed in this Notice. Given the speed at which 
technological advances are developing, the Commission welcomes comments 
that address possible regulatory approaches that might minimize the 
need for serial revisions to the Commission's rules in order to adapt 
to new or emerging Internet technology in the future. Additionally, the 
Commission invites comment on whether there are other regulations that 
the Commission should consider revising in light of new or emerging 
Internet technology.

     Dated: October 6, 2011.

    On behalf of the Commission.
Cynthia L. Bauerly,
Chair, Federal Election Commission.
[FR Doc. 2011-26414 Filed 10-12-11; 8:45 am]
BILLING CODE 6715-01-P