[Federal Register Volume 81, Number 201 (Tuesday, October 18, 2016)]
[Proposed Rules]
[Pages 71647-71648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-25103]



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FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2016-13]


Internet Communication Disclaimers; Reopening of Comment Period 
and Notice of Hearing

AGENCY: Federal Election Commission.

ACTION: Reopening of comment period and notice of hearing.

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SUMMARY: On October 13, 2011, the Federal Election Commission published 
an Advance Notice of Proposed Rulemaking (``ANPRM'') seeking comment on 
whether to begin a rulemaking to revise its regulations concerning 
disclaimers on certain internet communications and, if so, on what 
changes should be made to those rules. The Commission has decided to 
reopen the comment period to receive additional comments in light of 
legal and technological developments since that notice was published. 
The Commission is also announcing a public hearing.

DATES: The comment period for the ANPRM published October 13, 2011 (76 
FR 63567) is reopened. Comments must be received on or before December 
19, 2016. The Commission will hold a hearing on these issues on 
February 1, 2017. Anyone wishing to testify at the hearing must file 
timely written comments and must include in the written comments a 
request to testify.

ADDRESSES: All comments must be in writing. Commenters are encouraged 
to submit comments electronically via the Commission's Web site at 
http://www.fec.gov/fosers, reference REG 2011-02, or by email to 
[email protected]. Alternatively, commenters may submit 
comments in paper form, addressed to the Federal Election Commission, 
Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 999 E 
Street NW., Washington, DC 20463.
    Each commenter must provide, at a minimum, his or her first name, 
last name, city, state, and zip code. All properly submitted comments, 
including attachments, will become part of the public record, and the 
Commission will make comments available for public viewing on the 
Commission's Web site and in the Commission's Public Records Office. 
Accordingly, commenters should not provide in their comments any 
information that they do not wish to make public, such as a home street 
address, personal email address, date of birth, phone number, social 
security number, driver's license number, or any information that is 
restricted from disclosure, such as trade secrets or commercial or 
financial information that is privileged or confidential.

FOR FURTHER INFORMATION CONTACT: Mr. Neven F. Stipanovic, Acting 
Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E 
Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On October 13, 2011, the Commission 
published in the Federal Register an ANPRM seeking comment on whether 
and how to revise the rules at 11 CFR 110.11 regarding disclaimers on 
internet communications.\1\ Specifically, the Commission was 
considering whether to modify the disclaimer requirements for certain 
internet communications, or to provide exceptions thereto, consistent 
with the Federal Election Campaign Act, 52 U.S.C. 30101-46 (``the 
Act''). The Commission received seven substantive comments in response 
to the ANPRM. All but one of the commenters agreed that the Commission 
should update the disclaimer rules through a rulemaking, though 
commenters differed on how the Commission should do so. In light of 
subsequent legal and technological developments, the Commission is 
reopening the comment period and will hold a hearing.
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    \1\ See Internet Communication Disclaimers, 76 FR 63567 (Oct. 
13, 2011).
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    As discussed in the ANPRM, a ``disclaimer'' is a statement that 
must appear on certain communications to identify who paid for it and, 
where applicable, whether the communication was authorized by a 
candidate. 52 U.S.C. 30120(a); 11 CFR 110.11. 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. 52 U.S.C. 30120(a); 11 
CFR 110.11(a). 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.'' 11 CFR 100.26.\2\ In 
addition to these internet public communications, ``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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    \2\ The Commission is currently proposing amendments intended to 
modernize a number of regulations, including 11 CFR 100.26. To 
review those proposals and other Commission rulemaking documents, 
visit http://www.fec.gov/fosers, reference REG 2013-01.
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    Commission regulations set forth certain 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'').
    As discussed in the ANPRM, some internet advertisements are so 
character-limited that providing all the disclaimer information 
required by the Act may take up much of the available ad characters. 
See Advisory Opinion 2010-19 (Google) (describing 95-character search 
result advertisements); cf. Advisory Opinion Request 2011-09 (Facebook) 
(describing several categories of advertisements ranging from zero to 
160 characters).\3\ However, the ANPRM noted that technological options 
may allow for the display of disclaimers when a user ``hovers'' or 
``rolls'' over the advertisement, or on the landing page to which the 
user is taken after clicking the advertisement.\4\
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    \3\ Documents related to Commission advisory opinions are 
available at www.fec.gov/searchao.
    \4\ See, e.g., Contents of Disclosure Statements. Advertisement 
Disclosure, Cal. Code Regs. tit. 2, sec. 18450.4(b)(3)(G)(1) 
(California small internet ad disclosure rule discussed in ANPRM).
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    Since the publication of the ANPRM, the Commission has considered 
these issues in new factual contexts. See, e.g., Advisory Opinion 
Request 2013-18 (Revolution Messaging) (asking whether ``banner ads'' 
viewed on mobile phones, either in Web site or app, required 
disclaimers); MUR 6911 (Frankel) (considering whether candidates' and 
political parties' Twitter profiles and individual tweets required 
disclaimers). The Commission seeks comments on how the issues and 
possible approaches discussed in the ANPRM might or might not apply to 
these new technological presentations. The Commission also notes that, 
since the ANPRM was published, at least one additional state has joined 
California in adopting regulations to address small internet 
advertisements.\5\ The Commission seeks comments addressing persons' 
experiences in complying with (and

[[Page 71648]]

receiving disclosure from) these state rules as well as other 
disclosure regimes. The Commission is also interested in comments that 
address:
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    \5\ See Electronic Media, Requirements, Md. Code Regs. 
33.13.07.02(D)(2)(b).
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     How campaigns, parties, and other political committees, 
voters, and others disseminate and receive electoral information via 
the internet and other technologies, including any data or experiences 
in purchasing, selling, or distributing small or character-limited 
advertisements on Web sites, apps, and mobile devices;
     any challenges in complying with the existing disclaimer 
rules as applied to internet communications;
     the technological or other characteristics that might 
define a ``small'' internet advertisement;
     how a disclaimer requirement or exception for ``small'' 
internet advertisements might be implemented;
     the informational benefits of disclaimers on internet 
communications to assist voters in identifying the source of 
advertising so they are better ``able to evaluate the arguments to 
which they are being subjected''; \6\
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    \6\ Citizens United v. FEC, 558 U.S. 310, 368 (2010) (quoting 
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 
(1978)).
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     the informational benefits of disclaimers on internet 
communications, including Web sites and social media pages, to avoid 
voter confusion and reduce the incidence of solicitations that appear 
to be for candidates but are actually for non-candidate committees; and
     the extent to which the Commission's consideration of 
disclaimer requirements should take into account current or anticipated 
models of internet advertising.
    The Commission also invites additional comments on any issues 
discussed in the ANPRM and is particularly interested in comments 
addressing advertisements on internet-enabled applications and devices 
(such as apps, eReaders, and wearable technology). 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 technologies.

    On behalf of the Commission.

    Dated: October 7, 2016.
Matthew S. Petersen,
Chairman, Federal Election Commission.
[FR Doc. 2016-25103 Filed 10-17-16; 8:45 am]
BILLING CODE 6715-01-P