[Federal Register Volume 61, Number 80 (Wednesday, April 24, 1996)]
[Rules and Regulations]
[Pages 18049-18052]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10038]
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FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 110 and 114
[Notice 1996-11]
Candidate Debates and News Stories
AGENCY: Federal Election Commission.
ACTION: Final rule and transmittal of regulations to Congress.
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SUMMARY: The Federal Election Commission is issuing revised regulations
governing candidate debates and new stories produced by cable
television organizations. These regulations implement the provisions of
the Federal Election Campaign Act (FECA) which exempt news stories from
the definition of expenditure under certain conditions. The revisions
indicate that cable television programmers, producers and operators may
cover or stage candidate debates in the same manner as broadcast and
print news media. The rules also restate Commission policy that news
organizations may not stage candidate debates if they are owned or
controlled by any political party, political committee or candidate.
DATES: Further action, including the publication of a document in the
Federal Register announcing an effective date, will be taken after
these regulations have been before Congress for 30 legislative days
pursuant to 2 U.S.C. 438(d).
FOR FURTHER INFORMATION CONTACT:
Ms. Susan E. Propper, Assistant General Counsel, or Ms. Rosemary C.
Smith, Senior Attorney, 999 E Street NW., Washington, DC 20463, (202)
219-3690 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Commission is publishing today the final
text of revisions to its regulations at 11 CFR 100.7(b)(2),
100.8(b)(2), 110.13 and 114.4(f) regarding news stories and candidate
debates produced by cable television operators, programmers and
producers. The revised rules also address candidate debates sponsored
by news organizations owned or controlled by candidates, political
parties and political committees. These provisions implement 2 U.S.C.
431(9) and 441b, provisions of the Federal Election Campaign Act of
1971, as amended (the Act or FECA), 2 U.S.C. 431 et seq.
On February 1, 1996, the Commission issued a Notice of Proposed
Rulemaking (NPRM) in which it sought comments on proposed revisions to
these regulations. 61 FR 3621 (Feb. 1, 1996). Four written comments
were received from the Internal Revenue Service (IRS), the Federal
Communications Commission (FCC), Turner Broadcasting System, Inc.
(Turner), and the National Cable Television Association, Inc. (NCTA). A
public hearing on these changes was scheduled for March 20, 1996. The
hearing was subsequently canceled when the Commission received no
requests to testify.
Section 438(d) of Title 2, United States Code, requires that any
rules or regulations prescribed by the Commission to carry out the
provisions of Title 2 of the United States Code be transmitted to the
Speaker of the House of Representatives and the President of the Senate
30 legislative days before they are finally promulgated. These
regulations were transmitted to Congress on April 18, 1996.
Explanation and Justification for 11 CFR 100.7(b)(2), Sec. 100.8(b)(2),
Sec. 110.13, and Sec. 114.4(f)
The FECA generally prohibits corporations from making contributions
or expenditures in connection with any election. 2 U.S.C. 441b.
However, the definition of ``expenditure'' in section 431(9) indicates
that news stories, commentaries, and editorials distributed through the
facilities of any broadcast station, newspaper, magazine, or other
periodical publication are not considered to be expenditures unless the
facilities are owned or controlled by a political party, political
committee, or candidate. 2 U.S.C. 431(9)(B)(i). This statutory
exemption forms the basis for the Commission's long-standing
regulations at 11 CFR 100.7(b)(2) and 100.8(b)(2) exempting such
communications from the definitions of contribution and expenditure.
Section 431(9) is also the basis underlying sections 110.13 and
114.4(f), which permit broadcasters and bona fide print media to stage
candidate debates under certain conditions.
The Commission has decided to expand the types of media entities
that may stage candidate debates under sections 110.13 and 114.4 to
include cable television operators, programmers and producers. Hence,
revised sections 110.13(a)(2) and 114.4(f) allows these types of cable
organizations to stage debates under the same terms and conditions as
other media organizations such as broadcasters, and bona fide print
media organizations. New language in sections 110.13, 100.7(b)(2) and
100.8(b)(2) also permits cable organizations, acting in their capacity
as news media, to cover or carry candidate debates staged by other
groups. Examples of the types of programming that the Federal
Communications Commission considers to be bona fide newscasts and news
interview programs are provided in The Law of Political Broadcasting
and Cablecasting: A Political Primer, 1984 ed., Federal Communications
Commission, at p. 1994-99.
The revised rules are consistent with the intent of Congress not
``to limit or burden in any way the first amendment freedoms of the
press * * *.'' H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974).
In Turner Broadcasting System, Inc. v. Federal Communications
Commission, ______ U.S. ______, 114 S.
[[Page 18050]]
Ct. 2445, 2456 (1994), the Supreme Court recognized that cable
operators and cable programmers ``engage in and transmit speech, and
they are entitled to the protection of the speech and press provisions
of the First Amendment.''
The 1974 legislative history of the FECA also indicates that in
exempting news stories from the definition of ``expenditure,'' Congress
intended to assure ``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).
Although the cable television industry was much less developed when
Congress express this intent, it is reasonable to conclude that cable
operators, programmers and producers, when operating in their capacity
as news producers and distributors, would be precisely the type of
``other media'' appropriately included within this exemption. For these
reasons, the Commission has decided to allow cable operators,
programmers and producers to act as debate sponsors.
The Internal Revenue Service found no conflict with the Internal
Revenue Code or regulations thereunder. The Federal Communications
Commission stated that the proposed amendments regarding candidate
debates and news stories are not inconsistent with the FCC's policies
in implementing the Communications Act of 1934, and appear to
complement and further the FCC's regulatory scheme and goals. Two other
commenters supported the Commission's efforts to confirm that the
FECA's exemption applies to candidate debates, news, commentary and
editorial programming produced and distributed by cable news
organizations. These commenters stated they felt any other course of
action would present serious Constitutional problems under the First
Amendment. They also argued that the Commission's interpretation is
consistent with the statutory framework established by Congress when it
enacted the 1974 Amendments to the FECA, and would serve the public
interest.
The NPRM sought comments on whether there are distinctions between
cable operators, programmers and producers that should be considered in
determining which of these types of organizations may stage candidate
debates, and in determining which of these organizations are bona fide
news organizations entitled to the press exemption. It also asked if
there other types of cable new organizations that should be included as
debate sponsors. One commenter stated that the Commission should
confirm that the FECA's exemption applies to cable operators and cable
networks as well as to independent producers of news, commentary and
editorials they carry. Under the new regulations, the exemption applies
to each of these entities. The commenter also urged the Commission to
expand the list of permissible debate sponsors and bona fide news media
to include regional, state and national trade associations whose
members are cable operators and programmers. The role of trade
associations was not addressed in the NPRM and is beyond the scope of
this rulemaking.
The revised rules are also consistent with Advisory Opinion 1982-
44, in which the Commission concluded that the press exemption
permitted Turner Broadcasting System, Inc. to donate free cable cast
time to the Republican and Democratic National Committees without
making a prohibited corporate contribution. The cablecast programming
on ``super satellite'' television station, WTBS in Atlanta, Georgia,
was to be provided to a network of cable system operators. The
Commission stated inter alia that ``the distribution of free time to
both political parties is within the broadcaster's legitimate broadcast
function and, therefore, within the purview of the press exemption.''
AO 1982-44.
The courts have examined the application of the press exemption in
section 431(9)(B)(i) on several occasions. See e.g., Readers Digest
Ass'n v. FEC, 509 F. Supp. 1210 (S.D.N.Y. 1981); FEC v. Phillips
Publishing Company, Inc., 517 F. Supp. 1308 (D.D.C. 1981); and Federal
Election Commission v. Multimedia Cablevision, Inc., Civ. Action No.
94-1520-MLB, slip op. (D. Kan. Aug. 15, 1995). In Readers Digest, the
court articulated a two part test ``on which the exemption turns:
whether the press entity is owned by the political party or candidate
and whether the press entity was acting as a press entity in making the
distribution complained of. ``Readers Digest, at p. 1215. The first
prong is discussed more fully below. With regard to the second prong,
the court stated that ``the statute would seem to exempt only those
kinds of distribution that fall broadly within the press entity's
legitimate press function.'' Id. at 1214. The Commission believes a
cable operator, producer or programmer can satisfy this standard if it
follows the same guidelines as other news media follow when they stage
candidate debates. For example, it must invite at least two candidates
and refrain from promoting or advancing one over the other(s).
The Commission is also adding language to sections 100.7(b)(2) and
100.8(b)(2) indicating that the news story exception in 2 U.S.C. 431(9)
allows cable operators, producers and programmers to exercise
legitimate press functions by covering or carrying news stories,
commentaries and editorials in accordance with the same guidelines that
apply to the print or broadcast media. For example, they are subject to
the same provisions regarding ownership by candidates and political
parties as are broadcasters or print media. The public comments
regarding these changes are summarized above.
The approach taken in the new rules regarding cable television
entities avoids conflict with the FCC's application of the equal
opportunity requirements under the Communications Act of 1934. Section
315(a) of the Communications Act requires that broadcast station
licensees, including cable television operators, who permit any legally
qualified candidate to use a broadcasting station, must afford equal
opportunities to all other such candidates for that office in the use
of that broadcasting station. 47 U.S.C. 315(a). However, the equal
opportunity requirement is not triggered if the broadcasting station
airs a bona fide newscast, bona fide news interview, bona fide news
documentary or on-the-spot coverage of bona fide news events (including
political conventions). 47 U.S.C. 315(a)(1)-(4). In 1975, the FCC
decided that broadcasts of debates between political candidates would
be exempt from the equal opportunities requirement as on-the-spot
coverage of bona fide news events where, inter ailia, the broadcaster
exercised a reasonable, good faith judgment that it was newsworthy, and
not for the purpose of giving political advantage to any candidate. See
The Law of Political Broadcasting and Cablecasting: A Political Primer,
1984 ed., Federal Communications Commission, at p. 1502. This ruling
was expanded in 1983 to permit broadcaster-sponsorship of candidate
debates. Id. Similarly, in 1992, the FCC ruled that independently
produced bona fide news interview programs qualify for exemption from
the equal opportunities requirement of the Communications Act. In
Matter of Request for Declaratory Ruling That Independently Produced
Bona Fide News Interview Programs Qualify for the Equal Opportunities
Exemption Provided in Section 315(a)(2) of the Communications Act, FCC
92-288 (July 15, 1992).
The third change in the revised rules is the addition of language
in paragraph (a)(2) of section 110.13 regarding ownership of
organizations staging candidate debates. Broadcast, cable and
[[Page 18051]]
print media organizations may not stage candidate debates if they are
owned or controlled by a political party, political committee or
candidate. This policy was not stated in the previous candidate debate
rules, although it was included in the 1979 Explanation and
Justification for those rules. See 44 F.R. 76735 (December 27, 1979).
It is based on 2 U.S.C. 431(9)(B)(i), which specifies that the news
story exemption does not apply to media entities that are owned or
controlled by a political party, political committee or candidate.
Please note that this new language applies only to media corporations,
and thus does not change the rules in 11 CFR 110.13 regarding candidate
debates staged by nonprofit corporations described in section 501(c)(3)
or (c)(4) of the Internal Revenue Code. None of the commenters
specifically addressed this change in the regulations.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
The attached final rules will not, if promulgated, have a
significant economic impact on a substantial number of small entities.
The basis for this certification is that any small entities affected
are already required to comply with the requirements of the Act in
these areas.
List of Subjects
11 CFR Part 100
Elections.
11 CFR Part 110
Campaign funds, Political candidates, Political committees and
parties.
11 CFR Part 114
Business and industry, Elections, Labor.
For the reasons set out in the preamble, Subchapter A, 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, 438(a)(8)
2. Part 100 is amended by revising paragraph (b)(2) of section
100.7 to read as follows:
Sec. 100.7 Contribution (2 U.S.C. 431(8)).
* * * * *
(b) * * *
(2) Any cost incurred in covering or carrying a news story,
commentary, or editorial by any broadcasting station (including a cable
television operator, programmer or producer), newspaper, magazine, or
other periodical publication is not a contribution unless the facility
is owned or controlled by any political party, political committee, or
candidate, in which case the costs for 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, is not a contribution.
* * * * *
3. Part 100 is amended by revising paragraph (b)(2) of section
100.8 to read as follows:
Sec. 100.8 Expenditure (2 U.S.C. 431(9)).
* * * * *
(b) * * *
(2) Any cost incurred in covering or carrying a new story,
commentary, or editorial by any broadcasting station (including a cable
television operator, programmer or producer), newspaper, magazine, or
other periodical publication is not an expenditure unless the facility
is owned or controlled by any political party, political committee, or
candidate, in which case the costs for 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 account
which give reasonably equal coverage to all opposing candidates in the
circulation or listening area, is not an expenditure.
* * * * *
PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS
4. The authority citation for Part 110 continues to read as
follows:
Authority: 2 U.S.C. 431(8), 431(9), 432(c)(2), 437d(a)(8),
438(a)(8), 441a, 441b, 441d, 441e, 441f, 441g and 441h.
5. Part 110 is amended by revising section 110.13 to read as
follows:
Sec. 110.13 Candidate debates.
(a) Staging organizations. (1) Nonprofit organizations described in
26 U.S.C. 501 (c)(3) or (c)(4) and which do not endorse, support, or
oppose political candidates or political parties may stage candidate
debates in accordance with this section and 11 CFR 114.4(f).
(2) Broadcasters (including a cable television operator, programmer
or producer), bona fide newspapers, magazines and other periodical
publications may stage candidate debates in accordance with this
section and 11 CFR 114.4(f), provided that they are owned or controlled
by a political party, political committee or candidate. In addition,
broadcasters (including a cable television operator, programmer or
producer), bona fide newspapers, magazines and other periodical
publications, acting as press entities, may also cover or carry
candidate debates in accordance with 11 CFR 100.7 and 100.8.
(b) Debate structure. The structure of debates staged in accordance
with this section and 11 CFR 114.4(f) is left to the discretion of the
staging organizations(s), provided that:
(1) Such debates include at least two candidates; and
(2) The staging organization(s) does not structure the debates to
promote or advance one candidate over another.
(c) Criteria for candidate selection. For all debates, staging
organization(s) must use pre-established objective criteria to
determine which candidates may participate in a debate. For general
election debates, staging organizations(s) shall not use nomination by
a particular political party as the sole objective criterion to
determine whether to include a candidate in a debate. For debates held
prior to a primary election, caucus or convention, staging
organizations may restrict candidate participation to candidates
seeking the nomination of one party, and need not stage a debate for
candidates seeking the nomination of any other political party or
independent candidates.
PART 114--CORPORATE AND LABOR ORGANIZATION ACTIVITY
6. The authority citation for Part 114 continues to read as
follows:
Authority: 2 U.S.C. 431(8)(B), 431(9)(B), 432, 437d(a)(8),
438(a)(8), and 441b.
7. Part 114 is amended by revising paragraph (f) of section 114.4.
to read as follows:
Sec. 114.4 Disbursements for communications beyond the restricted
class in connection with a Federal election.
* * * * *
(f) Candidate debates.
(1) A nonprofit organization described in 11 CFR 110.13(a)(1) may
use its own funds and may accept funds donated by corporations or labor
organizations under paragraph (f)(3) of this section to defray costs
incurred in staging candidate debates held in accordance with 11 CFR
110.13.
(2) A broadcaster (including a cable television operator,
programmer or producer), bona fide newspaper,
[[Page 18052]]
magazine or other periodical publication may use its own funds to
defray costs incurred in staging public candidate debates held in
accordance with 11 CFR 110.13.
(3) A corporation or labor organization may donate funds to
nonprofit organizations qualified under 11 CFR 110.13(a)(1) to stage
candidate debates held in accordance with 11 CFR 110.13 and 114.4(f).
* * * * *
Dated: April 18, 1996.
Lee Ann Elliott,
Chairman.
[FR Doc. 96-10038 Filed 4-23-96; 8:45 am]
BILLING CODE 6715-01-M
