[Federal Register Volume 61, Number 22 (Thursday, February 1, 1996)]
[Proposed Rules]
[Pages 3621-3623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1969]
=======================================================================
-----------------------------------------------------------------------
FEDERAL ELECTION COMMISSION
11 CFR Parts 100, 110 and 114
[Notice 1996-2]
Candidate Debates and News Stories
AGENCY: Federal Election Commission.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Election Commission is seeking comments on
proposed revisions to its regulations governing candidate debates and
news 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 proposed rules would 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 would 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. No final decisions
have been made by the Commission on any of the proposed revisions
contained in this Notice. Further information is provided in the
supplementary information which follows.
DATES: Comments must be received on or before March 4, 1996. The
Commission will hold a hearing on March 20, 1996 at 10:00 a.m. Persons
wishing to testify should so indicate in their written comments.
ADDRESSES: Comments must be made in writing and addressed to: Ms. Susan
E. Propper, Assistant General Counsel, 999 E Street, N.W., Washington,
D.C. 20463. The hearing will be held in the Commission's ninth floor
meeting room, 999 E Street, N.W. Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Ms. Susan E. Propper, Assistant
General Counsel, or Rosemary C. Smith, Senior Attorney (202) 219-3690
or (800) 424-9530.
SUPPLEMENTARY INFORMATION: 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 ``news story'' exemption forms the basis for the
Commission's long-standing regulations at 11 CFR 100.7(b)(2),
100.8(b)(2), as well as the provisions of 11 CFR 110.13 and 114.4(f)
which permit broadcasters and bona fide print media to stage candidate
debates under certain conditions.
The Commission is now seeking comments on expanding 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, proposed sections 110.13(a)(2) and 114.4(f) would
allow 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) would also permit 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. 1494-99.
The proposed rules would be consistent with the intent of Congress
not ``to limit or burden in any way the first amendment freedom 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. 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 expressed this intent, it would be 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 is proposing to allow cable
operators, programmers and producers to act as debate sponsors.
However, the Commission seeks comments on whether there are
distinctions between cable operators, programmers and producers that
should be considered in determining when it is appropriate for these
types of organizations to stage candidate debates. In addition, are
there other types of cable news organizations that should be included
as debate sponsors?
The proposed rules would also be 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 also examined the application of the press
exemption in section 431(9)(B)(i). 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). In Reader's 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 could satisfy this standard if
it follows
[[Page 3622]]
the same guidelines as other debate sponsors. For example, it would be
required to invite at least two candidates and refrain from promoting
or advancing one over the other(s).
The Commission is also proposing to add language to sections
100.7(a)(2) and 100.8(a)(2) to provide 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 would be subject to the same provisions regarding ownership by
candidates and political parties as are broadcasters or print media. As
noted above, however, comments are sought on whether there are
distinctions between cable operators, programmers and producers that
should be considered in determining which of these organizations are
bona fide news organizations entitled to the press exemption.
The approach taken in the proposed rules regarding cable television
entities would avoid conflict with the Federal Communication
Commission'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 Federal Communications Commission
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 alia, 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 broadcastersponsorship of
candidate debates. Id. Similarly, in 1992, the Federal Communications
Commission 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 proposed rules would be the addition of
language indicating that broadcast, cable and print media
organizations, may not stage candidate debates if they are owned or
controlled by a political party, political committee or candidate. This
policy is not stated in the current candidate debate rules, although it
was included in the 1979 explanation and justification for these 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 would not change
the rules in 11 CFR 110.13 regarding candidate debates staged by
nonprofit corporations under sections 501(c)(3) or (c)(4) of the
Internal Revenue Code.
The Commission welcomes comments on the foregoing proposed
amendments to 11 CFR 100.7, 100.8, 110.13 and 114.4(f) and the issues
raised in this notice.
Certification of No Effect Pursuant to 5 U.S.C. 605(b) [Regulatory
Flexibility Act]
These proposed 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, it is proposed to amend
Subchapter A, Chapter I of Title 11 of the Code of Federal Regulations
as follows:
PART 100--SCOPE AND DEFINITIONS (2 U.S.C. 431)
1. The authority citation for Part 100 would continue to read as
follows:
Authority: 2 U.S.C. 431, 438(a)(8).
2. Section 100.7 would be amended by revising paragraph (b)(2) 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. Section 100.8 would be amended by revising paragraph (b)(2) to
read as follows:
Sec. 100.8 Expenditure (2 U.S.C. 431(9)).
* * * * *
(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 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 accounts
which give reasonably equal coverage to all opposing candidates in the
circulation or listening area, is not an expenditure.
* * * * *
[[Page 3623]]
PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS
4. The authority citation for Part 110 would continue 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. Section 110.13 is revised 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 not 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 organization(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 organization(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 would continue 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 would be amended by revising paragraph (f) of
Sec. 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, 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: January 26, 1996.
Lee Ann Elliott,
Chairman.
[FR Doc. 96-1969 Filed 1-31-96; 8:45 am]
BILLING CODE 6715-01-P
