83 FR 12864 - Internet Communication Disclaimers and Definition of “Public Communication”
FEDERAL ELECTION COMMISSION Federal Register Volume 83, Issue 58 (March 26, 2018)
Federal Register Volume 83, Issue 58 (March 26, 2018)
| Page Range | 12864-12881 | |
| FR Document | 2018-06010 |
[Federal Register Volume 83, Number 58 (Monday, March 26, 2018)] [Proposed Rules] [Pages 12864-12881] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-06010] ======================================================================== Proposed Rules Federal Register ________________________________________________________________________ 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. ======================================================================== Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules [[Page 12864]] FEDERAL ELECTION COMMISSION 11 CFR Parts 100 and 110 [Notice 2018-06] Internet Communication Disclaimers and Definition of ``Public Communication'' AGENCY: Federal Election Commission. ACTION: Notice of proposed rulemaking. ----------------------------------------------------------------------- SUMMARY: The Federal Election Commission requests comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The Commission is undertaking this rulemaking in light of technological advances since the Commission last revised its rules governing internet disclaimers in 2006, and questions from the public about the application of those rules to internet communications. The Commission's goal is to promulgate a rule that in its text and interpretation recognizes the paramount importance of providing the public with the clearest disclosure of the payor or sponsor of these public communications on the internet. Both proposals are intended to give the American public easy access to information about the persons paying for and candidates authorizing these internet communications, pursuant to the Federal Election Campaign Act. Both proposals would continue to require disclaimers for certain internet communications, and both would allow certain internet communications to provide disclaimers through alternative technology. The proposals differ, however, in their approach. The Commission requests comment on all elements of both proposals. The two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule. The Commission also requests comment on proposed changes to the definition of ``public communication.'' The Commission has not made any final decisions on any of the issues or proposals presented in this rulemaking. DATES: Comments must be received on or before May 25, 2018. The Commission will hold a public hearing on this notice on June 27, 2018. Anyone wishing to testify at such a 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 website at http://sers.fec.gov/fosers/rulemaking.htm?pid=74739. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 1050 First St. NE, Washington, DC 20463. Each commenter must provide, at a minimum, his or her first name, last name, city, and state; comments without this information will not be accepted. 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 website 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, or 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, (202) 694-1650 or (800) 424-9530. SUPPLEMENTARY INFORMATION: The Commission is proposing to revise its regulations at 11 CFR 100.26 and 110.11 regarding disclaimers on communications placed for a fee on the internet. The Commission may provide illustrative examples on the Commission's website during the comment period. A. Rulemaking History 1. Definition of ``Public Communication'' The Commission published a Notice of Proposed Rulemaking (``Technology NPRM'') in the Federal Register on November 2, 2016.\1\ The Technology NPRM comment period ended on December 2, 2016. The Commission received four comments in response to the Technology NPRM.\2\ --------------------------------------------------------------------------- \1\ Technological Modernization, 81 FR 76416 (Nov. 2, 2016). \2\ The Commission also received four comments in response an earlier stage of the technology rulemaking. See Technological Modernization, 78 FR 25635 (May 2, 2013). To review those proposals and other Commission rulemaking documents, including comments received, visit http://sers.fec.gov/fosers/rulemaking.htm?pid=84652. --------------------------------------------------------------------------- One of the proposals in the Technology NPRM was to update the definition of ``public communication'' at 11 CFR 100.26. Section 100.26 currently defines ``public communication'' as excluding all internet communications, ``other than communications placed for a fee on another person's website.'' When the Commission promulgated this definition in 2006, it focused on websites because that was the predominant means of paid internet advertising at the time. The Commission analogized paid advertisements on websites to the forms of mass communication enumerated in the definition of ``public communication'' in the Federal Election Campaign Act, 52 U.S.C. 30101-46 (``the Act''), because ``each lends itself to distribution of content through an entity ordinarily owned or controlled by another person.'' internet Communications, 71 FR 18589, 18594 (Apr. 12, 2006) (``2006 internet E&J''); 52 U.S.C. 30101(22). The Commission proposed to update the definition by adding communications placed for a fee on another person's ``internet-enabled device or application.'' The purpose of the proposed change was to reflect post-2006 changes in internet technology \3\-- [[Page 12865]] such as the development of mobile applications (``apps'') on smartphones and tablets, smart TV devices, interactive gaming dashboards, e-book readers, and wearable network-enabled devices such as smartwatches and headsets--and to make the regulatory text more adaptable to the development of future technologies. The Commission asked several questions about its proposed change, including whether the term ``internet-enabled device or application'' is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received; whether there is a better way to refer to them; and whether it would help to provide examples of such paid media. --------------------------------------------------------------------------- \3\ See Amy Schatz, In Hot Pursuit of the Digital Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/articles/SB10001424052702303812904577299820064048072 (showing screenshots of 2012 presidential committee advertisements on Hulu and noting another campaign's purchase of advertisements on Pandora internet radio); Tanzina Vega, The Next Political Battleground: Your Phone, CNN (May 29, 2015, 6:44 a.m.), www.cnn.com/2015/05/29/politics/2016-presidential-campaigns-mobile-technology (noting that ``voters should expect more political ads as they scroll through their phones next year--much as they'll be bombarded with ads on television,'' including ads using geolocation to target ``potential voters who may have downloaded the candidate's app''). Indeed, a recent study has shown that 19% of Americans access the internet exclusively or mostly through their smartphones as opposed to desktop or laptop computers. See Pew Research Ctr., U.S. Smartphone Use in 2015, at 3 (2015), www.pewinternet.org/files/2015/03/PI_Smartphones_0401151.pdf. --------------------------------------------------------------------------- The Commission received only one comment in response to this aspect of the Technology NPRM.\4\ The comment generally supported the proposed revision to the definition of ``public communication'' in section 100.26.\5\ --------------------------------------------------------------------------- \4\ See Campaign Legal Center and Democracy 21, Comment on REG 2013-01 (Technological Modernization) (Dec. 2, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354002. \5\ The comment also urged the Commission to amend 11 CFR 100.26 ``to make clear that any expenditure beyond a de minimis amount for internet communications is not exempt from the definition of `public communication.''' Id. at 2. --------------------------------------------------------------------------- The Commission has decided to reintroduce the proposed change to the definition of ``public communication'' in this rulemaking for the limited purpose of determining whether the term ``internet-enabled device or application'' is a sufficiently clear and technically accurate way to refer to the various media through which paid internet communications can be sent and received. The term is closely tied to the internet communication disclaimer requirements.\6\ --------------------------------------------------------------------------- \6\ The definition of ``public communication'' is also relevant to the coordination rules, 11 CFR 109.21(c), and financing limitations, e.g., 11 CFR 100.24(b)(3), 300.32(a)(1)-(2), 300.71. --------------------------------------------------------------------------- 2. Internet Communication Disclaimers On October 13, 2011, the Commission published in the Federal Register an Advance Notice of Proposed Rulemaking (``ANPRM'') soliciting comment on whether to modify disclaimer requirements at 11 CFR 110.11 for certain internet communications, or to provide exceptions thereto, consistent with the Act.\7\ The Commission received eight comments in response. Six 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. --------------------------------------------------------------------------- \7\ See internet Communication Disclaimers, 76 FR 63567 (Oct. 13, 2011). --------------------------------------------------------------------------- On October 18, 2016, the Commission solicited additional comment in light of legal and technological developments during the five years since the ANPRM was published.\8\ The Commission received six comments during the reopened comment period, all but one of which supported updating the disclaimer rules. Commenters, however, differed on whether the Commission should allow modified disclaimers for all online advertisements or exempt paid advertisements on social media platforms from the disclaimer requirements. --------------------------------------------------------------------------- \8\ See internet Communication Disclaimers; Reopening of Comment Period and Notice of Hearing, 81 FR 71647 (Oct. 18, 2016). The Commission postponed the hearing announced in that notice because few commenters expressed interest in participating. As noted above, the Commission will hold a hearing on the proposals in this notice on June 27, 2018. --------------------------------------------------------------------------- On October 10, 2017, the Commission again solicited additional comment in light of recent legal, factual, and technological developments.\9\ During this reopened comment period, the Commission received submissions from 149,772 commenters (including persons who signed on to others' comments), of which 147,320 indicated support for updating or strengthening the disclaimer rules or other government action; 2,262 indicated opposition to such efforts; and 190 did not indicate a discernable preference.\10\ --------------------------------------------------------------------------- \9\ See internet Communication Disclaimers; Reopening of Comment Period, 82 FR 46937 (Oct. 10, 2017); see also internet Communication Disclaimers; Extension of Comment Period, 82 FR 52863 (Nov. 15, 2017) (explaining Commission's extension of comment period for one business day due to technological difficulties). \10\ Commission staff read and categorized each comment in one of three broad categories: Support, oppose, or neutral. ``Support'' included comments supporting more stringent disclaimer rules; favoring ``transparency''; opposing application of the small items or impracticable exceptions to online advertisements; opposing advertising by foreign nationals; opposing Russian interference in the 2016 election; or supporting the ``Honest Ads Act'' or any of its components. See S. 1989, 115th Cong. (2017). ``Oppose'' included comments opposing any rulemaking; opposing more stringent disclaimer rules; supporting application of the small items or impracticable exceptions to online advertising; supporting modified disclaimers in lieu of full disclaimers; opposing any restriction of speech, ``infringement'' of constitutional rights, or ``censorship''; or reminding the Commission to read the Constitution. ``Neutral'' included comments recognizing the value of disclaimers, but noting the difficulty of providing disclaimers online; recommending modified disclaimers in some, but not all, circumstances; appearing to make contradictory statements in support or opposition; presenting unclear statements of preferred action, such as ``do the right thing''; or commenting off topic, such as on net neutrality. Comments addressing specific aspects of the current or proposed rules are discussed below, as appropriate. --------------------------------------------------------------------------- After considering the comments from all three comment periods and additional deliberation, the Commission now seeks comment on the proposed changes described in this notice. Other than the issues specified in this notice, the Commission does not, in this rulemaking, propose changes to any other rules adopted by the Commission in the internet Communications rulemaking of 2006. B. Current Statutory and Regulatory Framework Concerning Disclaimers 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; see also Disclaimers, Fraudulent Solicitations, Civil Penalties, and Personal Use of Campaign Funds, 67 FR 76962, 76962 (Dec. 13, 2002) (``2002 Disclaimer E&J''). The Supreme Court has recognized that disclaimer requirements may burden political speech, and thus must bear a substantial relation to a sufficiently important governmental interest. See Citizens United v. FEC, 558 U.S. 310, 366-67 (2010) (``Citizens United'') (citing Buckley v. Valeo, 424 U.S. 1, 64, 66 (1976) (``Buckley'')). The Court has found that the government's interest in mandating such disclaimers justifies the accompanying burden on political speech. For example, in approving the disclaimers at issue in Citizens United, the Court explained, ``[d]isclaimer and disclosure requirements may burden the ability to speak, but they impose no ceiling on campaign- related activities and do not prevent anyone from speaking. The Court has subjected these requirements to exacting scrutiny, which requires a substantial relation between the disclosure requirement and a sufficiently important governmental interest.'' Id. (internal quotation marks and alterations removed). The Court also held that disclaimers ``provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking,'' and stated that identifying the sources of advertising enables people ``to evaluate the arguments to which they are being subjected.'' Id. at 368 (internal quotations and alterations removed). [[Page 12866]] 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). Under existing regulations, the term ``public communication'' does not include internet communications other than ``communications placed for a fee on another person's website.'' 11 CFR 100.26. 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 websites of political committees available to the general public'' also must have disclaimers. 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 52 U.S.C. 30120(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, an authorized committee of the candidate, or an agent of either. 11 CFR 110.11(b)(2); see also 52 U.S.C. 30120(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 52 U.S.C. 30120(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). While the Act and Commission regulations impose specific requirements for communications that are ``printed'' or that appear on radio or television, they do not specify additional requirements for disclaimers on internet advertisements. Compare 11 CFR 110.11(c)(1) (general ``clear and conspicuous'' requirement for all disclaimers), with 11 CFR 110.11(c)(2)-(4) (additional requirements for printed, radio, and television disclaimers) and 52 U.S.C. 30120(c)-(d) (specifications for printed, radio, and television disclaimers). Commission regulations set forth 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) (``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) (``impracticable exception''). C. Application of the Disclaimer Requirements to Internet Communications 1. Development of Current Rule That Paid Internet Advertisements Require Disclaimers The Commission first addressed disclaimers on internet communications in two 1995 advisory opinions regarding the application of the Act to internet solicitations of campaign contributions. See Advisory Opinion 1995-35 (Alexander for President); Advisory Opinion 1995-09 (NewtWatch PAC).\11\ The Commission determined that internet solicitations are ``general public political advertising'' \12\ 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 (Alexander for President) at 2 (characterizing conclusion in Advisory Opinion 1995-09 (NewtWatch PAC)). Later that year, the Commission stated in a rulemaking that ``internet communications and solicitations that constitute general public political advertising require disclaimers,'' adding that ``[t]hese communications and others that are indistinguishable in all material aspects from those addressed in [Advisory Opinion 1995-09 (NewtWatch PAC)] will now be subject to'' the disclaimer requirement. See Communications Disclaimer Requirements, 60 FR 52069, 52071 (Oct. 5, 1995). --------------------------------------------------------------------------- \11\ Documents related to Commission advisory opinions are available on the Commission's website at www.fec.gov/data/legal/advisory-opinions/. \12\ At the time, 11 CFR 110.11 explicitly applied to ``general public political advertising.'' The current rule uses the term ``public communication'' as defined at 11 CFR 100.26, which includes ``general public political advertising.'' --------------------------------------------------------------------------- The Bipartisan Campaign Reform Act of 2002, Public Law 107-155, 116 Stat. 81 (2002) (``BCRA''), added specificity to the disclaimer requirements (including ``stand by your ad'' requirements for certain radio and television communications), expanded the scope of communications covered by the disclaimer requirements, and defined a new term, ``public communication,'' that did not reference the internet. See 52 U.S.C. 30101(22), 30120; see also 2002 Disclaimer E&J, 67 FR at 76962. The Commission promulgated rules to implement BCRA's changes to the disclaimer provisions of the Act and the new statutory definition of ``public communication.'' See 2002 Disclaimer E&J, 67 FR at 76962; Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money, 67 FR 49064, 49111 (July 29, 2002) (``Non-Federal Funds E&J''). The 2002 rules incorporated the term ``public communication'' to describe the general reach of the disclaimer rules and applied the disclaimer requirements to political committees' websites and distribution of more than 500 substantially similar unsolicited emails. Other than these two specific types of internet-based activities by political committees, however, internet communications were excluded from the regulatory definition of ``public communication'' and, therefore, outside the scope of the disclaimer requirements that apply to public communications. See 2002 Disclaimer E&J, 67 FR at 76963-64; Non-Federal Funds E&J, 67 FR at 49111. In 2006, after a court challenge to the regulatory definition of ``public communication,'' the Commission revised its rules to include internet communications ``placed for a fee on another person's website'' in the definition of ``public communication'' and, therefore, within the scope of the disclaimer rule. See 2006 internet E&J, 71 FR at 18594; see also Shays v. FEC, 337 F. Supp. 2d 28 (D.D.C. 2004) (holding, among other things, that Commission could not wholly exclude internet activity from the definition of ``public communication''). The Commission explained that, under the revised 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 website, the person paying makes a `public communication.''' 2006 internet E&J, 71 FR at 18593-94. Furthermore, the Commission explained that ``the [[Page 12867]] placement of advertising on another person's website for a fee includes all potential forms of advertising, such as banner advertisements, streaming video, popup advertisements, and directed search results.'' \13\ Id.; see also id. at 18608 n.52 (noting that, as used in a different context, ``terms `website' and `any internet or electronic publication' are meant to encompass a wide range of existing and developing technology'' including ``social networking software''). Thus, since 2006, Commission regulations have required disclaimer information to be included in certain paid internet advertisements. --------------------------------------------------------------------------- \13\ But ``when the search results are displayed as a result of the normal function of a search engine, and not based on any payment for the display of a result, the search results are not forms of `general public political advertising,' '' and ``where a search engine returns a website hyperlink in its normal course, and features the same hyperlink separately as the result of a paid sponsorship arrangement, the latter is a `public communication' while the former is not.'' 2006 internet E&J, 71 FR at 18594 n.28. --------------------------------------------------------------------------- 2. Application of Disclaimer Rule to ``Small'' Internet Communications The Commission has been asked on a number of occasions about the application of the disclaimer requirement to internet communications, including small, character- or space-limited internet communications such as banner advertisements; social media text, video, or image advertisements; and directed search results. The queries center on whether the communications are exempt from the disclaimer requirements under the impracticable or small items exceptions at 11 CFR 110.11(f)(1) or whether they may incorporate technological modifications to satisfy the disclaimer requirements.\14\ --------------------------------------------------------------------------- \14\ See Advisory Opinion 2017-12 (Take Back Action Fund); Advisory Opinion 2010-19 (Google); see also Advisory Opinion Request, Advisory Opinion 2013-18 (Revolution Messaging) (Sept. 11, 2013); Advisory Opinion Request, Advisory Opinion 2011-09 (Facebook) (Apr. 26, 2011). In addition to the advisory opinion requests concerning internet advertisements, another advisory opinion request asked the Commission to apply the impracticable exception in support of truncating a political committee's name in disclaimers on its mass emails and on its website. See Advisory Opinion 2013-13 (Freshman Hold'em JFC et al.) at n.4. --------------------------------------------------------------------------- The Commission has applied the small items exception to the general disclaimer requirements in situations where there are ``technological limitations on both the size and the length of information'' that can be contained based on the small physical size of the item or an external technological constraint. Advisory Opinion 2007-33 (Club for Growth PAC) at 3 (declining to extend small items exception to spoken disclaimer requirement); see also Advisory Opinion 1980-42 (Hart for Senate Campaign Committee) (applying the exception to concert tickets); Advisory Opinion 2002-09 (Target Wireless) (applying the exception to character-limited ``short message service,'' or SMS, communications distributed through a non-internet-based wireless telecommunications network); 11 CFR 110.11(f)(1)(i). In the Target Wireless advisory opinion, the Commission considered whether disclaimers were required on paid content distributed via SMS communications through a non-internet- based wireless telecommunications network. At the time the Commission issued that advisory opinion, technology limited SMS content to 160 text-only characters per message; SMS messages could not include images; wireless telephone carriers contractually required consumers to pay a flat fee for a certain number of SMS messages that consumers could receive; and content longer than 160 text characters would be sent over multiple messages, which might not be received consecutively. Advisory Opinion 2002-09 (Target Wireless) at 2. The Commission concluded that the small items exception applied to paid SMS messages, noting ``that the SMS technology places similar limits on the length of a political advertisement as those that exist with bumper stickers.'' Id. at 4. The Commission has not exempted any disclaimers under the small items exception in the 15 years since it issued the Target Wireless advisory opinion. The Commission discussed the small items exception in Advisory Opinion 2007-33 (Club for Growth PAC), which concerned whether an advertiser could ``dispense with'' or ``truncate'' the required disclaimers in 10- and 15-second television advertisements. The Commission concluded that the advertisements did not qualify for the small items exception. The related impracticable exception at 11 CFR 110.11(f)(1)(ii) exempts from the disclaimer requirement advertisements displayed via skywriting, water towers, and wearing apparel, as well as ``other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.'' The list of communications in the rule is not exhaustive. The Commission has not, however, applied the impracticable exception to a situation beyond those listed in section 110.11(f)(1)(ii). See Advisory Opinion 2007-33 (Club for Growth PAC) (determining that ``physical or technological limitations'' in 10- and 15-second television advertisements do not qualify for impracticable exception); Advisory Opinion 2004-10 (Metro Networks) (determining that ``live read'' traffic report sponsorship messages, delivered by reporters from mobile units and aircraft, did not present ``specific physical and technological limitations'' to qualify for impracticable exception); see also Advisory Opinion 2013-13 (Freshman Hold'em JFC et al.) at n.4 (concluding that ``emails and web pages . . . are not electronic communications in which the inclusion of disclaimers may be inherently impracticable.''). Nonetheless, in Advisory Opinion 2004-10 (Metro Networks), the Commission recognized that, although the ``physical and technological limitations'' of a communication medium may ``not make it impracticable to include a disclaimer at all,'' technological or physical limitations may extend to ``one particular aspect of the disclaimer'' requirements. Advisory Opinion 2004-10 (Metro Networks) at 3. In such circumstances, the Commission concluded that a disclaimer was required but permitted modifications or adaptations of the technologically or physically limited aspects of the communication medium. See id. at 3-4 (concluding that reporters reading sponsorship message live from aircraft or mobile units could read stand by your ad language, rather than candidate who was not physically present). The Commission was first asked to apply the small items exception or impracticable exception to text-limited internet advertisements in 2010. Google proposed to sell AdWords search keyword advertisements limited to 95 text characters; the proposed advertisements would not include disclaimers but would link to a landing page (the purchasing political committee's website) on which users would see a disclaimer. See Advisory Opinion 2010-19 (Google). The Commission concluded that Google's proposed AdWords program ``under the circumstances described . . . [was] not in violation of the Act or Commission regulations,'' but the advisory opinion did not answer whether Google AdWords ads would qualify for the small items or impracticable exception. Id. at 2. In response to two subsequent advisory opinion requests concerning the possible application of the small items exception or impracticable exception to small internet advertisements, the Commission was unable to issue advisory opinions by the required four affirmative votes. See Advisory Opinion Request, Advisory Opinion 2011-09 (Facebook) (Apr. 26, [[Page 12868]] 2011) (concerning application of exceptions to zero-to-160 text character ads with thumbnail size images); Advisory Opinion Request, Advisory Opinion 2013-18 (Revolution Messaging) (Sept. 11, 2013) (concerning application of exceptions to mobile banner ads). Finally, the Commission considered an advisory opinion request in 2017 asking whether paid image and video ads on Facebook ``must . . . include all, some, or none of the disclaimer information specified by 52 U.S.C. 30120(a).'' Advisory Opinion Request at 4, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). The Commission issued an opinion concluding that the proposed Facebook image and video advertisements ``must include all of the disclaimer information'' specified by the Act, but, in reaching this conclusion, Commissioners relied on two different rationales, neither of which garnered the required four affirmative votes. Advisory Opinion 2017-12 (Take Back Action Fund) at 1. D. Proposed Revision to the Definition of ``Public Communication'' at 11 CFR 100.26 As discussed above, the Commission proposed in the Technology NPRM to revise the definition of ``public communication'' in 11 CFR 100.26 to include communications placed for a fee on another person's ``internet-enabled device or application,'' in addition to communications placed for a fee on another person's website. Disclaimers are required for any ``public communication'' that contains express advocacy or solicits a contribution, and for all public communications by political committees. The Commission wants to make sure that any change to the definition of ``public communication'' in 11 CFR 100.26 is appropriate as applied in the disclaimer rule, given the complexities of internet advertising and the rapid pace of technological change. Commenters in this rulemaking have offered insight into, as one described it, the ``myriad of options for advertising via different media and different platforms online.'' \15\ Since the Commission's 2006 internet rulemaking, the focus of internet activity has shifted from blogging, websites, and listservs \16\ to social media networks (Facebook, Twitter, and LinkedIn), media sharing networks (YouTube, Instagram, and Snapchat), streaming applications (Netflix, Hulu), and mobile devices and applications. Other significant developments include augmented and virtual reality \17\ and the ``Internet of Things'': Wearable devices (smart watches, smart glasses), home devices (Amazon Echo), virtual assistants (Siri, Alexa), smart TVs and other smart home appliances.\18\ One commenter noted, ``[a]s consumers move toward virtual and augmented reality services, wearable technology, screenless assistants, and other emerging technologies, there is every reason to predict that advertisers will demand the ability to reach voters and customers on those technologies, and, in turn, new advertising configurations that have not yet been imagined will be developed.'' \19\ --------------------------------------------------------------------------- \15\ Computer & Communications Industry Association, Comment at 9 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358503. \16\ 2006 Internet E&J at 18590-91; see also Asian Americans Advancing Justice, et al., Comment at 5 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=371144 (``In 2006, blogging was at its height, and it seemed as if everyone would have his or her own blog.''). \17\ See Computer & Communications Industry Association, Comment at 9. \18\ See Asian Americans Advancing Justice, et al., Comment at 7 (also noting potential for political advertising on ``smart refrigerators''). \19\ Google, Comment at 4-5 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358482. --------------------------------------------------------------------------- Accordingly, the Commission is reopening the definition of ``public communication'' in 11 CFR 100.26 for the limited purpose of determining whether revising the definition to include communications placed for a fee on another person's ``internet-enabled device or application,'' in addition to communications placed for a fee on another person's website, would be a clear and technically accurate way to refer to the various media through which paid internet communications can be and will be sent and received. The Commission invites comment on this proposal. Is it clear from the proposed language that both the placement-for-a-fee requirement and the third-party requirement would apply to websites, internet-enabled devices, and internet applications? In this rulemaking, the Commission is not considering any change to the definition of ``public communication'' other than the terminology that should replace ``website'' as used in the definition. E. Proposed Revision to the Disclaimer Rules at 11 CFR 110.11 Technological developments over the past 15 years have rendered much current internet advertising distinguishable from the non- internet-based SMS advertisements to which the Commission applied the small items exception in Advisory Opinion 2002-09 (Target Wireless) and from the internet advertisements the Commission considered in promulgating the disclaimer regulations in 2002. As Facebook explained in a comment on this rulemaking, ``[w]hen Facebook submitted its request for an advisory opinion in 2011, ads on Facebook were small and had limited space for text. Ad formats available on Facebook have expanded dramatically since that time.'' \20\ Indeed, many internet advertisements today include video, audio, and graphic components in addition to the text components considered in the Target Wireless advisory opinion. See, e.g., Advisory Opinion Request, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). Moreover, today, commercial internet advertisements are subject to other federal regulatory disclosure regimes.\21\ Are the different degrees of First Amendment protection afforded political speech as opposed to commercial speech relevant to any consideration of other agencies' disclosure regimes? \22\ --------------------------------------------------------------------------- \20\ Facebook noted that some of its ads ``continue to be limited in size, with text limitations or truncations based on format and placement of the ad,'' but that other formats ``allow for additional creative flexibility.'' Facebook, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358468 (citing Facebook, Facebook Ads Guide, https://www.facebook.com/business/ads-guide (last visited Mar. 15, 2018)); see also Fidji Simo, An Update on Facebook Ads, Facebook Newsroom (June 6, 2013), https://newsroom.fb.com/news/2013/06/an-update-on-facebook-ads/ (announcing reconfiguration of ad products); Google, Comment at 3 (noting that the ``types and varieties of digital advertisements that political advertisers create and place throughout the web has grown exponentially since 2011.''). \21\ See CMPLY, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358493 (noting that regulatory disclaimer and disclosure requirements ``have been addressed in similar contexts for marketing, financial and pharmaceutical, without those regulators exempting disclosures in social media channels''). \22\ See Buckley, 424 U.S. at 14 (``Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression in order `to assure (the) unfettered interchange of ideas for the bringing about of political and social changes desired by the people.' '') (citation omitted); Sorrell v. IMS Health Inc., 564 U.S. 552, 579 (2011) (``[G]overnment's legitimate interest in protecting consumers from `commercial harms' explains `why commercial speech can be subject to greater governmental regulation than noncommercial speech' '') (citations omitted); Citizens United, 558 U.S. at 329 (``[P]olitical speech . . . is central to the meaning and purpose of the First Amendment.''). --------------------------------------------------------------------------- As noted above, the Commission's regulations have required disclaimer information to be included in certain paid internet advertisements since 2006. Spending on digital political advertising grew almost eightfold just between 2012 and 2016, from $159 million to $1.4 [[Page 12869]] billion.\23\ Many commenters expressed the view that the need for internet communication disclaimers has grown along with spending on internet political advertising.\24\ As one commenter wrote, ``[T]he increasing prominence of online election expenditures makes the failure to update campaign finance laws to adequately cover the internet more dangerous with every cycle.'' \25\ The dramatic growth in political advertising on the internet highlights the need for regulatory clarity in this area. As one commenter noted, ``[w]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears.'' \26\ Other commenters noted that the importance and value of political advertising disclaimers do not vary when new forms of communication emerge.\27\ --------------------------------------------------------------------------- \23\ See Borrell Associates, The Final Analysis: Political Advertising in 2016, https://www.borrellassociates.com/industry-papers/free-summaries/borrell-2016-political-advertising-analysis-exec-sum-jan-2017-detail (subscription required). \24\ See, e.g., Sunlight Foundation, Comment at 1 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=360854 (``The FEC and Congress should act to ensure disclosures and disclaimers are neither discretionary nor uneven . . . [D]isclaimers and disclosures don't mean renouncing business or chilling speech, any more than has been the case for TV or radio stations.''). \25\ Brennan Center for Justice, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358487. \26\ Institute for Free Speech, Comment at 3 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358495 (quoting Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 790 (2011)). \27\ See, e.g., BMore Indivisible, Comment at 5 (Nov. 9, 2017) http://sers.fec.gov/fosers/showpdf.htm?docid=358504 (stating that ``[p]roviding disclaimers o[n] internet and app advertising is an extension of the role the FEC has historically performed for traditional media. Online media advertising transparency is increasingly essential as Americans turn to the internet as their primary source of information''). --------------------------------------------------------------------------- Thus, the Commission is proposing to add regulatory provisions clarifying, for various types of paid internet public communications, the disclaimers required and, in certain circumstances, when a paid internet communication may employ a modified approach to the disclaimer requirements. As explained below, the Commission offers two proposals. They differ in approach. Alternative A proposes to apply the full disclaimer requirements that now apply to radio and television communications to public communications distributed over the internet with audio or video components. Alternative A also proposes to apply the type of disclaimer requirements that now apply to printed public communications to text and graphic public communications distributed over the internet. Finally, Alternative A would allow certain small text or graphic public communications distributed over the internet to satisfy the disclaimer requirements through an ``adapted disclaimer.'' Alternative B proposes to treat internet communications differently from communications in traditional media. Alternative B would require disclaimers on internet communications to be clear and conspicuous and to meet the same general content requirement as other disclaimers, without imposing the additional disclaimer requirements that apply to print, radio, and television communications. Alternative B also proposes to allow certain paid internet advertisements to satisfy the disclaimer requirements through an adapted disclaimer, depending on the amount of space or time necessary for a clear and conspicuous disclaimer as a percentage of the overall advertisement. In the event that an advertisement could not provide a disclaimer even through a technological mechanism, Alternative B proposes to create an exception to the disclaimer requirement specifically for paid internet advertisements. The Commission requests comment on all elements of both proposals. The two proposals need not be considered as fixed alternatives; commenters are encouraged to extract the best elements of each, or suggest improvements or alternatives, to help the Commission fashion the best possible rule. 1. Proposed Disclaimer Requirements for Communications Distributed Over the Internet--Organization Both Alternative A and Alternative B propose to add new paragraph (c)(5) to 11 CFR 110.11. New paragraph (c)(5) in each proposal would provide specific disclaimer requirements for internet communications. This approach would be consistent with the current structure of the disclaimer rule at 11 CFR 110.11, which categorizes disclaimer requirements by the form of communication on which they appear. In the first paragraph of Alternative B's proposed section (c)(5), Alternative B proposes to define the term ``internet communications.'' Alternative A does not propose to introduce or define this term. Alternative B's proposed paragraph (c)(5)(i)(A) defines ``internet communications'' as email of more than 500 substantially similar communications when sent by a political committee; internet websites of political committees available to the general public; and ``internet public communications'' as defined in paragraph (c)(5)(i)(B). Alternative B's proposed paragraph (c)(5)(i)(B) defines ``internet public communication,'' in turn, as any communication placed for a fee on another person's website or internet-enabled device or application. Alternative B's proposed definition of ``internet communication'' is intended to capture all communications distributed via the internet that are subject to the disclaimer requirement. See 11 CFR 110.11(a)(1)-(3). Alternative B's proposed definition of ``internet public communication'' is intended to capture all online ``public communications,'' as defined in 11 CFR 100.26. Are the proposed definitions sufficiently broad to encompass new technologies? Are they platform-neutral? Should the definition of ``internet public communication'' include a reference to virtual reality, social networking, or internet platforms? Both Alternative A and Alternative B propose to define additional terms: ``adapted disclaimer,'' ``technological mechanism,'' and ``indicator.'' These terms are discussed below. 2. Disclaimer Requirements for Video and Audio Communications Distributed Over the Internet As described below, Alternative A proposes to extend the specific requirements for disclaimers on radio and television communications to public communications distributed over the internet with audio or video components. Under Alternative A, such audio and video internet public communications would also be required to satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B likewise proposes to require that radio and television communications distributed over the internet must satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B would not extend any additional disclaimer requirements to such communications. a. Alternative A--Proposed 11 CFR 110.11(c)(5)(ii) As noted above, the Act and Commission regulations impose specific requirements for disclaimers on radio and television communications. See 52 U.S.C. 30120(d); 11 CFR 110.11(c)(3)-(4). These requirements vary, depending on whether a candidate or another person pays for or authorizes the communication. Radio communications paid for or authorized by a candidate must include [[Page 12870]] an audio statement spoken by the candidate, identifying the candidate and stating that the candidate has approved the communication. 11 CFR 110.11(c)(3)(i). Radio communications that are not paid for or authorized by a candidate must include an audio statement identifying the person paying for the communication and that that person ``is responsible for the content of this advertising.'' 11 CFR 110.11(c)(4)(i). Television, broadcast, cable, or satellite communications paid for or authorized by a candidate must include a statement by the candidate, identifying the candidate and stating that the candidate has approved the communication, either through a full-screen view of the candidate making the statement or by a voice-over accompanied by a ``clearly identifiable photographic or similar image'' of the candidate; these communications must also include a similar statement ``in clearly readable writing'' at the end of the communication. 11 CFR 110.11(c)(3)(ii)-(iii). Television, broadcast, cable, or satellite communications that are not paid for or authorized by a candidate must include the audio statement required by 11 CFR 110.11(c)(4)(i) and conveyed by a ``full-screen view of a representative'' of the person making the statement or in a voice-over by such person; these communications must also include a similar statement ``in clearly readable writing'' at the end of the communication. 11 CFR 110.11(c)(4)(ii)-(iii).\28\ --------------------------------------------------------------------------- \28\ The Commission previously extended the ``stand by your ad'' requirements to communications transmitted through broadcast, cable, or satellite transmission. See 2002 Disclaimer E&J, 67 FR at 76963 (referring to ``the Commission's judgment that it would be unsupportable to require a disclaimer for a television communication that was broadcast, while not requiring a disclaimer for the same communication merely because it was carried on cable or satellite''). --------------------------------------------------------------------------- As noted above, internet advertisements may be in the form of audio or video communications, or may incorporate audio or video elements.\29\ Alternative A is based on the premise that these advertisements are indistinguishable from offline advertisements that may be distributed on radio or television, broadcast, cable, or satellite in all respects other than the medium of distribution.\30\ Moreover, because the audio and video components of internet communications with these elements do not contain ``character'' restrictions, Alternative A proposes to apply parameters to such communications akin to the parameters in which disclaimers must appear on radio and television advertisements rather than the conditions that may constrain ``printed'' materials on which a disclaimer must appear. --------------------------------------------------------------------------- \29\ See, e.g., 5 Advertising Trends from the 2016 Presidential Election, Pandora for Brands (Dec. 8, 2016), http://pandoraforbrands.com/insight/5-advertising-trends-from-the-2016-presidential-election (urging readers ``[t]o learn how Pandora can help amplify your next political campaign''); Amy Schatz, In Hot Pursuit of the Digital Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/articles/SB10001424052702303812904577299820064048072 (showing screenshots of 2012 presidential committee advertisements on Hulu and noting another campaign's purchase of advertisements on Pandora internet radio); see also Advisory Opinion Request at 4, Advisory Opinion 2017-12 (Take Back Action Fund) (Oct. 31, 2017). \30\ See, e.g., Electronic Privacy Information Center, Comment at 3 (Nov. 3, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358477 (urging extension of broadcast communication disclaimer requirements to ``analogous'' communication online); Rep. John Sarbanes et al., Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358505 (noting belief of 18 Members of Congress that ``it is past time for the Commission to take action to harmonize disclaimer requirements for paid internet communications, regardless of size, on internet platforms with advertisements served on other media, such as broadcast television or radio''); accord 2006 Internet E&J, 71 FR at 18609 (``The Commission has consistently viewed online, internet-based dissemination of news stories, commentaries, and editorials to be indistinguishable from offline television and radio broadcasts, newspapers, magazines and periodical publications for the purposes of applying the media exemption under the Act''); but see Software and Information Industry Association, Comment at 3 (Nov. 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358508 (``Digital advertising is inherently more diverse than a simple transition of similar content from print or broadcast television.''). --------------------------------------------------------------------------- Accordingly, in Alternative A, the Commission proposes to provide that public communications distributed over the internet with audio or video components are treated, for purposes of the disclaimer rules, the same as ``radio'' or ``television'' communications. The Commission, in Alternative A, proposes to do so in proposed paragraph (c)(5)(ii), which would incorporate the existing requirements at 11 CFR 110.11(c)(3) and (4) that apply to radio, television, broadcast, cable, and satellite communications, because those provisions have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications. Moreover, by applying the specifications for radio and television communications to audio and video communications distributed over the internet, the proposed regulations would ensure that internet audio ads could air on radio and internet video ads could air on television without having to satisfy different disclaimer requirements. Alternative A's proposed paragraph (c)(5)(ii) would provide that a ``public communication distributed over the internet with audio but without video, graphic, or text components'' must include the statement described in 11 CFR 110.11(c)(3)(i) and (iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate. Alternative A's proposals concerning audio communications (like Alternative A's proposals for video, text, and graphic internet communications discussed below) incorporate the term ``public communication,'' as it exists or may be amended, to make clear that these provisions neither expand nor contract the scope of the disclaimer rules set forth at 11 CFR 110.11(a). The proposed reference to ``a public communication distributed over the internet with an audio component but without video, graphic, or text components'' (like the reference to the ``internet'' in Alternative A's proposals for video, text, and graphic internet communications discussed below) is intended to encompass advertisements on websites as well as those distributed on other internet-enabled or digital devices or applications; for audio internet advertisements, these would include communications on podcasts, internet radio stations, or app channels.\31\ The proposed reference to a ``public communication distributed over the internet'' is not intended to alter the definition of ``public communication,'' as defined in 11 CFR 100.26. Is this clear, or should the Commission include a cross-reference in the regulatory text? Moreover, so as to hew most closely to the ``radio'' provisions that Alternative A incorporates, the proposed amendments regarding ``audio'' internet communications are intended to apply to those communications with only an audio component. The Commission proposes to address communications with any ``video, graphic, or text components'' separately, as explained below. --------------------------------------------------------------------------- \31\ See Software and Information Industry Association, Comment at 3 (``in-app advertising has become one of the fastest-growing mobile ad mediums''). --------------------------------------------------------------------------- Alternative A's proposed paragraph (c)(5)(ii) would also provide that a ``public communication distributed over the internet with a video component'' must include the statement described in 11 CFR 110.11(c)(3)(ii)-(iv) if authorized by a candidate, or the statement described in 11 CFR 110.11(c)(4) if not authorized by a candidate. Because this proposal is intended to encompass video public communications on websites, apps, and streaming video services, Alternative A's proposed new paragraph (c)(5)(ii) [[Page 12871]] would apply to a video that a political committee pays to run as a ``pre-roll'' video on the YouTube app or appear in a promoted YouTube.com search result, but would not apply to the same video posted for free on YouTube.com (since a communication not placed for a fee would not be a ``public communication'').\32\ Unlike traditional television, broadcast, cable, or satellite ads, however, video advertisements placed online may include non-video components such as separate text, or graphic fields. The proposed rule regarding internet video ads thus would differ from the existing television, broadcast, cable, and satellite provisions in that the proposed rule would apply even if the communication also included non-video components. --------------------------------------------------------------------------- \32\ See Google, Comment at 3 (describing Google ad products on YouTube). --------------------------------------------------------------------------- This aspect of Alternative A would not explicitly address small audio or video internet ads. The Commission proposes to take this approach to hew Alternative A's proposed rules on audio and video ads as closely as possible to the existing disclaimer provisions for advertisements transmitted by radio, television, broadcast, cable, and satellite, which do not, in paragraphs (c)(3) or (4), account for ``small'' advertisements. Should new technology develop that would render the provision of a disclaimer on a particular type of audio or video internet communication impracticable, the Commission anticipates that, as with current TV and radio ads, such circumstances could be addressed in an advisory opinion seeking to exempt such a communication from the disclaimer requirements.\33\ --------------------------------------------------------------------------- \33\ See 11 CFR 112.1 (describing advisory opinion requests); see also Advisory Opinion 2007-33 (Club for Growth PAC) (considering and rejecting request to apply small items exception to disclaimers in 10- and 15-second television advertisements). --------------------------------------------------------------------------- The Commission seeks comment as to whether these proposals accurately describe audio and video communications over the internet, regardless of the electronic or digital platforms on which they may be distributed. For example, does the Commission need to clarify or expand the term ``internet''? Similarly, does the Commission need to clarify the term ``video'' to address whether an advertisement with a GIF is a communication ``with a video component'' or one with a ``graphic'' component? Similarly, should the Commission expressly include or exclude from the term ``video'' static (i.e., non-moving) paid digital advertisements in dynamic (i.e., moving) environments such as ``billboard'' ads inside interactive gaming systems, or virtual-reality and augmented-reality platforms? \34\ --------------------------------------------------------------------------- \34\ See, e.g., Steve Gorman, Obama Buys First Video Game Campaign Ads, Reuters, Oct. 17, 2008, https://www.reuters.com/article/us-usa-politics-videogames/obama-buys-first-video-game-campaign-ads-idUSTRE49EAGL20081017 (showing example of static court- side ad in dynamic basketball gaming environment). --------------------------------------------------------------------------- The Commission also welcomes comment on any aspect of these proposals, including the approach towards the exceptions and, more generally, the advisability of treating audio and video internet communications in the manner that radio, television, broadcast, cable, and satellite communications are treated. b. Alternative B--Proposed Paragraph (c)(5)(ii) The proposals in Alternative B are premised on the internet as a ``unique medium of . . . communication[]'' \35\ that poses ``unique challenges with respect to advertising disclosures.'' \36\ Although advertisements on the internet may often look or sound like television or radio advertisements, several commenters focused on the differences between internet advertising and advertising on more traditional forms of media. As one stated, ``[d]igital advertising is inherently more diverse than a simple transition of similar content from print or broadcast television. It comes in many different formats presented across a wide range of technology platforms with screen size ranging from large to very small.'' \37\ Another commenter noted that, ``[i]n addition to character-limited ads that just feature text, there are banner ads with images and text, video ads with text, and audio ads that also feature a corresponding interactive image or video on an app.'' \38\ A third commented on the ``nearly infinite range . . . of possible combinations of hardware, software, add-ons, screen sizes and resolutions, individualized settings, and other factors . . . can affect the display of a political communication'' on the internet.\39\ ``Content that is optimized for viewing on phones, tablets, and other mobile devices is distinct from content that appears on a desktop or laptop computer.'' \40\ The ``ways people physically interact with content also vary by medium (e.g., a user can `rollover' content on a desktop screen to see more information, but may not use a mouse or view rollovers on a mobile device).'' \41\ In addition, internet advertisements can vary significantly in duration. Internet ads can last for as little as ``fifteen seconds . . . or even shorter,'' and entire ad campaigns can last for as little as ``a few days or just a few hours for events like flash sales.'' \42\ Moreover, ``[p]aid advertising on the internet is constantly evolving in nature.'' \43\ --------------------------------------------------------------------------- \35\ Public Citizen and Free Speech for People, Comment at 3 (Nov. 1, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358485 (expressing the view that ``disclaimers on all forms of on-line paid campaign advertising are practical and pose little inconvenience'' to sponsors or recipients); see also id. at 1 (referring to ``the unique medium of internet communications'' in urging Commission to proceed with rulemaking). \36\ Software & Information Industry Association, Comment at 3. \37\ Id. \38\ Computer & Communications Industry Association, Comment at 9. \39\ Coolidge-Reagan Foundation, Comment at 5 (Nov. 8, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358499. \40\ Facebook, Comment at 2. \41\ Id. \42\ Computer & Communications Industry Association, Comment at 11. \43\ Public Citizen and Free Speech for People, Comment at 3; see also American Federation of Labor and Congress of Industrial Organizations, et al., Comment at 2 (Dec. 19, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354341 (``Since the technology of the internet is rapidly changing, and will likely continue to do so indefinitely, the Commission's rules in this area must be sufficiently flexible and principle-focused so they do not become obsolete in short order.''). --------------------------------------------------------------------------- Given the rapid pace of technological change and an inability to forecast the future, the revisions to the disclaimer rules proposed in Alternative B are intended to recognize the differences between the internet and traditional forms of media like newspapers, radio, and television.\44\ Thus, Alternative B's proposed paragraph (c)(5)(ii) would require disclaimers on internet communications to meet the general content requirements in 11 CFR 110.11(b) and the general ``clear and conspicuous'' requirement of 11 CFR 110.11(c)(1), but not the additional ``stand by your ad'' requirements for radio and television communications.\45\ --------------------------------------------------------------------------- \44\ See Center for Competitive Politics, Comment at 3 (Dec. 19, 2016), http://sers.fec.gov/fosers/showpdf.htm?docid=354344; see also Campaign Solutions, Comment at 1 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=365826 (``As new and disruptive technologies change the way we interact with technology and consume media, we are sometimes unable to anticipate the format of political advertising.''); Computer & Communications Industry Association, Comment at 13 (``Campaigns are constantly trying new methods to appeal to new voters, and political campaign communication and advertising methods change with every election cycle. As technology develops, new forms of advertising could become available.''). \45\ See Electronic Frontier Foundation, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358498; see also Google, Comment at 4 (``unlike broadcast advertising, which involves an advertiser providing a static advertisement to the broadcaster that is the same ad every time it airs, digital ads can be dynamic''); Coolidge-Reagan Foundation, Comment at 4 (``Any internet-related regulations should afford speakers maximum flexibility in satisfying any applicable disclaimer requirements, rather than being tied to specific forms of communication that may become superseded or outmoded.''). But see supra n.30 and comments cited therein. --------------------------------------------------------------------------- [[Page 12872]] The Act requires all disclaimers to provide payment and authorization information, regardless of the form that the communication may take, but imposes additional ``stand by your ad'' requirements only on television and radio communications.\46\ Does the Commission have the legal authority to extend those requirements to internet communications? \47\ If so, should the Commission exercise that authority? Or, as a practical matter, do the differences between internet advertising and radio and television advertising make the ``stand by your ad'' requirements a poor fit for audio and video public communications on the internet? Some commenters in this rulemaking indicated that the internet is a continuously evolving advertising medium with a wide range of platforms, formats, displays, duration, and interactivity. Are the ``stand by your ad'' requirements for television and radio communications overly inflexible by comparison? \48\ For example, television advertisements must have both spoken and written disclaimers. One commenter estimated that the spoken disclaimer can take five or more seconds to deliver,\49\ and the Act requires the written disclaimer to appear ``in a clearly readable manner . . . for a period of at least 4 seconds.'' \50\ Is it reasonable to impose these requirements on paid internet advertisements? \51\ Should audio or video internet ads that are very short be required to provide full ``stand by your ad'' disclaimer information, as the Commission has decided in the television advertising context? \52\ Does requiring a candidate or other individual representing the payor to claim responsibility for a communication by image or voice-over (as is currently required for radio and television communications) impose an additional burden on the person making the communication? Is this the type of obligation that courts have approved in television and radio advertising? What additional information, if any, does this requirement convey to a reader, viewer, or listener about the source of the communication? --------------------------------------------------------------------------- \46\ Compare 52 U.S.C. 30120(d) (imposing ``stand by your ad'' requirements on radio and television communications only) with 30104 (requiring Commission to make disclosure reports publicly available on internet), 30112 (requiring Commission to maintain central site on internet). \47\ The recently introduced Honest Ads Act would amend the Act by requiring, among other things, disclaimers on internet communications to comply with the same ``stand by your ad'' requirements as radio and television communications. See S. 1989, 115th Cong. Sec. 7(b) (2017). \48\ See, e.g., 52 U.S.C. 30120(d)(1)(B) (requiring television advertisement authorized by candidate to provide disclaimer through ``unobscured, full-screen view of the candidate making the statement, or the candidate in voice-over, accompanied by a clearly identifiable photographic or similar image of the candidate,'' and ``in writing at the end of the communication in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds''), 30120(d)(2) (requiring television advertisement not authorized by candidate to provide disclaimer ``conveyed by an unobscured, full-screen view of a representative of the political committee or other person making the statement, or by a representative of such political committee or other person in voice- over, and shall also appear in a clearly readable manner with a reasonable degree of color contrast between the background and the printed statement, for a period of at least 4 seconds''). \49\ See Computer & Communications Industry Association, Comment at 11. \50\ 52 U.S.C. 30120(d)(1)(B)(ii), (d)(2) (emphasis added); see also 11 CFR 110.11(c)(3)(iii)(B), (c)(4)(iii)(B). \51\ See Computer & Communications Industry Association, Comment at 11 (stating that audio advertisements on internet ``could be fifteen seconds in length or even shorter'' and urging Commission to ``avoid rigidly extending broadcast radio spoken-word disclaimer requirements for radio to online platforms''). \52\ See Advisory Opinion 2007-33 (Club for Growth PAC) (requiring full stand-by-your-ad disclaimers in 10- and 15-second television advertisements). --------------------------------------------------------------------------- 3. Disclaimer Requirements for Text and Graphic Communications Distributed Over the Internet As described below, Alternative A proposes to extend to text and graphic public communications distributed over the internet that lack any video component the specific requirements for disclaimers on printed public communications. Under Alternative A, such text and graphic public communications would also be required to satisfy the general requirements that apply to all public communications requiring disclaimers. Alternative B proposes to require all public communications distributed over the internet, including text and graphic public communications, to satisfy the general requirements that apply to all public communications requiring disclaimers, and does not propose to extend any additional disclaimer requirements to such communications. a. Alternative A i. Proposed 11 CFR 110.11(c)(5)(i) Internet advertisements may be in the form of text, image, and other graphic elements with audio but without video components; such advertisements come ``in all shapes and sizes.'' \53\ --------------------------------------------------------------------------- \53\ Google, Comment at 5 (describing ad products on the Google Display Network); see also Advisory Opinion Request 2017-12 (Take Back Action Fund) at 4. --------------------------------------------------------------------------- Alternative A proposes to adapt the existing requirements at 11 CFR 110.11(c)(2) that apply to printed communications because they have been in operation for 15 years and are, therefore, familiar to persons paying for, authorizing, and distributing communications. Alternative A's proposed new paragraph (c)(5)(i) would provide that a ``public communication distributed over the internet with text or graphic components but without any video component'' must contain a disclaimer that is of ``sufficient type size to be clearly readable by the recipient of the communication,'' a requirement adapted from 11 CFR 110.11(c)(2)(i). Alternative A's proposed paragraph (c)(5)(i) would further specify this ``text size'' requirement by providing that a ``disclaimer that appears in letters at least as large as the majority of the other text in the communication satisfies the size requirement.'' Finally, Alternative A's proposed paragraph (c)(5)(i) would require that a disclaimer be displayed ``with a reasonable degree of color contrast between the background and the text of the disclaimer,'' a requirement the proposal indicates would be satisfied if the disclaimer ``is displayed in black text on a white background or if the degree of color contrast between the background and the text of the disclaimer is no less than the color contrast between the background and the largest text used in the communication.'' These proposals are adapted from 11 CFR 110.11(c)(2)(iii). ii. Text or Graphic Internet Communications With Video or Audio Components The proposal in Alternative A regarding a public communication distributed over the internet ``with text or graphic components but without any video component'' is intended to work in conjunction with Alternative A's video proposal discussed above; under the operation of both of these parts of Alternative A, an internet communication that contains both text or graphic elements and a video component would be subject only to the specific disclaimer rules applicable to television, broadcast, cable, and satellite communications that are incorporated into Alternative A's proposed paragraph (c)(5)(ii). The Commission seeks [[Page 12873]] comment on this proposal. In particular, the Commission seeks comment regarding how users interact with internet advertisements that contain both text or graphic and video elements. Is it common for users to view only the printed or video components of an internet advertisement that contains both? Should the Commission require that such communications include at least an adapted disclaimer, see below, on the face of the text or graphic element? Do such adapted disclaimers provide adequate transparency? How important is it for adapted disclaimers to provide information sufficient to identify the communication's payor on the communication's face? Would a hyperlink in a communication be a reliable way to identify the payor or could hyperlinks prove to be transient? Could an indicator be used to defeat disclosure by linking to, for example, goo.gl/nRk1H1 at publication and then, once a complaint is filed with the Commission, to an actual political committee's website? Should the Commission consider other approaches, such as allowing political committees to identify themselves in adapted disclaimers with their FEC Committee ID numbers? Should or could the Commission require the hyperlinks on the adapted disclaimers of political committees to connect to the committees' fec.gov pages? \54\ Should the Commission adopt rules that require a disclaimer to be included on either the text and graphic portion or the video portion of an internet advertisement, or on both portions, depending on the proportion of the advertisement that contains each type of content? Alternatively, should the rules allow an advertiser the choice between the ``television'' or ``text and graphic'' communication disclaimer rules for an internet communication that contains both video and text or graphic components? --------------------------------------------------------------------------- \54\ For example: https://www.fec.gov/data/committee/C00580100/?tab=about-committee, where ``C00580100'' is the organization's Committee ID. --------------------------------------------------------------------------- Similarly, under the operation of the ``text or graphic'' and audio proposals in Alternative A, an internet communication that contains both text and graphic elements and an audio, but not a video, component, would be subject to the specific disclaimer rules applicable only to text or graphic communications. Alternative A does not propose to include such communications in the proposed ``audio'' rules because such advertisements appear more like text or graphic communications than ``radio'' ones. The Commission seeks comment on this proposal. In particular, and as with the proposal above, the Commission seeks comment regarding how users interact with internet advertisements that contain both text or graphic and audio elements. Is it common for users only to view the printed components or listen to the audio components of an internet advertisement that contains both? Should the Commission instead consider such advertisements under the ``audio'' proposals discussed above? Should the Commission require that such communications include both ``radio'' and text or graphic disclaimers? Should the Commission adopt rules that require disclaimer to be included in either the ``text or graphic'' or audio portion of an internet advertisement, or on both portions, depending on the proportion of the advertisement that contains each type of content? Alternatively, should the rules allow an advertiser the choice between the ``radio'' or ``text or graphic'' communication disclaimer rules for an internet communication that contains both audio and text or graphic components? iii. Text and Graphic Internet Communication Disclaimer Text Size Safe Harbor Alternative A proposes to establish a ``safe harbor'' provision identifying disclaimer text size--``letters at least as large as the majority of the other text in the communication''--that clearly satisfies the rule. This would track the current approach for ``printed'' materials. See 2002 Disclaimer E&J, 67 FR 76965 (describing current 12-point type safe harbor for printed communication disclaimers); cf. Advisory Opinion 1995-09 (NewtWatch PAC) at 2 (approving disclaimer on political committee's website that was ``printed in the same size type as much of the body of the communication''). The Commission recognizes that some text or graphic internet communications may not have a ``majority'' text size. The possible diversity of text sizes in internet text and graphic communications is, in this respect, similar to text size diversity in printed communications currently addressed in 11 CFR 110.11(c)(2)(i). As the Commission explained when adopting the current safe harbor in lieu of a strict size requirement, ``the vast differences in the potential size and manner of display of larger printed communications would render fixed type-size examples ineffective and inappropriate.'' 2002 Disclaimer E&J, 67 FR 76965. Thus, for internet communications with text or graphic components that are not included in the proposed text-size safe harbor, the intent behind Alternative A is that questions of whether a disclaimer is of sufficient type size to be clearly readable would be ``determined on a case-by-case basis, taking into account the vantage point from which the communication is intended to be seen or read as well as the actual size of the disclaimer text,'' as they are under the current rule for printed materials. Id. Would the use of metrics minimize the need for case-by-case determinations? b. Alternative B--Proposed 11 CFR 110.11(c)(5)(ii) Alternative B proposes to treat graphic, text, audio, and video communications on the internet equally for disclaimer purposes. Under proposed paragraph (c)(5)(ii) in Alternative B, disclaimers for all such communications would have to meet the general content requirement of 11 CFR 110.11(b) and be ``clear and conspicuous'' under 11 CFR 110.11(c)(1), including disclaimers for graphic and text communications on the internet. Thus, the disclaimers would have to be ``presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identity of the person or political committee that paid for and, where required, that authorized the communication,'' 11 CFR 110.11(c)(1). Under Alternative B, disclaimers could not be difficult to read or hear, and their placement could not be easily overlooked. Id. Is Alternative B's proposal to treat internet communications differently from print, radio, and TV communications for disclaimer purposes a reasonable approach to address current internet advertisements and future developments in internet communications? Alternative B does not propose to create any safe harbors. The intent behind Alternative B is to establish objective criteria that would cover all situations and minimize the need for case-by-case determinations. Would safe harbors nonetheless be helpful in interpreting and applying the proposed rule? Or do safe harbors tend to become the de facto legal standard applied in advisory opinions and enforcement actions? 4. Adapted Disclaimers for Public Communications Distributed Over the Internet Alternatives A and B both propose that some public communications distributed over the internet may satisfy [[Page 12874]] the disclaimer requirement by an ``adapted disclaimer,'' which includes an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism that leads to a full disclaimer, rather than by providing a full disclaimer on the face of the communication itself. Some aspects of both proposals are similar, and some are different, in ways highlighted below. The discussion in this section explains the Commission's alternative proposals for when a public communication distributed over the internet may utilize an adapted disclaimer. Alternative A allows the use of an adapted disclaimer when a full disclaimer cannot fit on the face of a text or graphic internet communication due to technological constraints. Alternative B allows the use of an adapted disclaimer when a full disclaimer would occupy more than a certain percentage of any internet public communication's available time or space. Under Alternative B, the first tier of an adapted disclaimer would require the identification of the payor plus an indicator on the face of the communication. Alternative B's second tier adapted disclaimer would require only an indicator on the face of the communication. a. Alternative A--Proposed 11 CFR 110.11(c)(5)(i)(A): When a Communication May Use Technological Adaptations While current text and graphic internet advertisements are akin in many respects to analog printed advertisements, material differences between them remain. Most significant among these differences are the availability of ``micro'' sized text and graphic internet advertisements and the interactive capabilities of advertisements over the internet.\55\ To ensure the disclaimer rules remain applicable to new forms of internet advertising that may arise, while also reducing the need for serial revisions to Commission regulations in light of such developments, Alternative A proposes adopting a provision specifically addressing those text and graphic internet advertisements that cannot, due to external character or space constraints, practically include a full disclaimer on the face of the communication. See Advisory Opinion 2004-10 (Metro Networks) at 3 (concluding that modifications or adaptations to disclaimers may be permissible in light of technologically or physically limited aspects of a communication). --------------------------------------------------------------------------- \55\ See Public Citizen and Free Speech for People, Comment at 3 (noting that paid online communications by ``bots'' ``can be very short and seamlessly integrated into social conversations. Absent disclaimers, such messages are not likely to be perceived as paid messages''); see also Spot-On, Comment at 8 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358480 (noting that ``all [online] ads link to some sort of web page or presence''). --------------------------------------------------------------------------- Accordingly, under Alternative A's proposed paragraph (c)(5)(i)(A), a ``public communication distributed over the internet with text or graphic components but without any video component'' that, ``due to external character or space constraints,'' cannot fit a required disclaimer must include an ``adapted disclaimer.'' This provision would explain the circumstances under which a communication may use technological adaptations, describe how the adaptations must be presented, and provide examples of the adaptations. Under Alternative A, the determination of whether a public communication distributed over the internet with text or graphic components but without any video component cannot fit a full disclaimer is intended to be an objective one. That is, the character or space constraints intrinsic to the technological medium are intended to be the relevant consideration, not the communication sponsor's subjective assessment of the ``difficulty'' or ``burden'' of including a full disclaimer. As the Supreme Court has held in the context of broadcast advertisements, the government's informational interest is sufficient to justify disclaimer requirements even when a speaker claims that the inclusion of a disclaimer ``decreases both the quantity and effectiveness of the group's speech.'' Citizens United, 558 U.S. at 368. Alternative A is built upon the proposition that the informational interest relied upon by the Supreme Court with respect to broadcast communications is equally implicated in the context of text and graphic public communications distributed over the internet. Alternative A's reference to ``external character or space constraints'' is intended to codify the approach to those terms as the Commission has discussed them in the context of the small items and impracticable exceptions discussed above. See, e.g., Advisory Opinion 2007-33 (Club for Growth PAC) at 3 (contrasting lack of ``physical or technological limitations'' constraining 10- and 15-second television advertisements with ``overall limit'' and ``internal limit'' on size or length of SMS ads); Advisory Opinion 2004-10 (Metro Networks) at 3 (discussing ``physical and technological limitations'' of ad read live from helicopter). This approach to determining when a communication cannot fit a required disclaimer--rather than by the particular size of the communication as measured by pixels, number of characters, or other measurement--is intended to minimize the need for serial revisions to Commission regulations as internet technology may evolve. Should existing or newly developed internet advertising opportunities raise questions as to whether a particular communication may fit a disclaimer, the intent behind Alternative A is that such questions may be addressed in an advisory opinion context.\56\ Would this approach provide sufficient clarity about the application of the disclaimer requirement, and the disclaimer exceptions, to particular communications? Should Alternative A, if adopted, preclude the use of the small items and impracticable exceptions for internet public communications? --------------------------------------------------------------------------- \56\ See 11 CFR 112.1. --------------------------------------------------------------------------- Does the ``external character or space constraints'' approach provide sufficiently clear guidance in light of existing technology or technological developments that may occur? Is it clear what ``cannot fit'' means in the proposed rule? Should the Commission adopt a safe harbor indicating that ads with particular pixel size, character limit, or other technological characteristic may use adapted disclaimers? Or do safe harbors tend to become the de facto legal standard in advisory opinions and enforcement actions? If the Commission were to adopt either a bright-line rule or a safe harbor based on pixel size, character limit, or other technological characteristic, what should those technological limits be? Does the ``external character or space constraints'' wording make clear that business decisions to sell small ads that are not constrained by actual technological limitations do not justify use of an adapted disclaimer? Are there circumstances under which requiring a full disclaimer to appear on the face of an internet ad would cause the speaker to curtail his or her message, or purchase a larger ad, or run the ad on a different platform? Are there circumstances under which such a requirement would discourage the speaker from running the ad at all? Is there anything about advertising on the internet that would warrant a different conclusion than courts have reached in upholding the Act's disclaimer requirements on political advertising in other media? [[Page 12875]] b. Alternative B--Proposed 11 CFR 110.11(c)(5)(ii)-(iv): When a Communication May Use Technological Adaptations In applying the disclaimer rules to internet public communications, Alternative B proposes to allow any form of paid internet advertisement--including audio and video ads--to utilize an adapted disclaimer under certain conditions.\57\ Alternative B proposes to establish a bright-line rule to help speakers determine for themselves when they may utilize an adapted disclaimer.\58\ The ``bright line'' is determined by the amount of time or space necessary to provide a full disclaimer in an internet public communication as a percentage of the overall communication.\59\ Proposed paragraph (c)(5)(iii) in Alternative B suggests ``ten percent of the time or space in an internet communication'' as the appropriate amount. If the amount of time or space necessary for a clear and conspicuous disclaimer exceeds ten percent, then the speaker may, under Alternative B, provide an adapted disclaimer. Is ten percent a reasonable figure, or is it too high or too low? \60\ Should the Commission adopt a different benchmark for allowing political speakers to use available technology to provide disclaimers for their internet public communications? Is Alternative B's proposed approach sufficiently clear to enable speakers to administer it for themselves rather than seek advisory opinions before engaging in political advertising online? --------------------------------------------------------------------------- \57\ Neither Alternative proposes to allow political committees to provide disclaimers through a technological mechanism for their email of more than 500 substantially similar communications or their internet websites available to the general public. \58\ See, e.g., Facebook, Comment at 3 (encouraging ``a regulatory approach that provides advertisers flexibility to meet their disclaimer obligations in innovative ways that take full advantage of the technological advances in communication the internet makes possible''); Campaign Legal Center and Democracy 21, Comment at 2 (Nov. 14, 2011), http://sers.fec.gov/fosers/showpdf.htm?docid=98749 (``Innovation, not exemption, is the answer.''); American Federation of Labor and Congress of Industrial Organizations et al., Comment at 2 (``[R]ules in this area must be . . . flexible and principle-focused . . . . The challenge is to achieve both public informational goals and provide sufficient clarity to speakers about the rules so there is both informed compliance and predictable enforcement''); Computer & Communications Industry Association, Comment at 14 (``CCIA cautions against regulatory action that does not allow for flexible solutions''); Software & Information Industry Association, Comment at 4 (urging ``a flexible and diverse set of transparency practices that evolve and innovate as digital content offerings and advertising profiles continue to evolve''). \59\ Commission regulations also apply a time-space approach to attributing expenditures for publications and broadcast communications to more than one candidate. See 11 CFR 106.1(a). \60\ Some commenters suggested different levels at which providing a disclaimer becomes unduly burdensome. See Cause of Action, Comment at 4-5 (Nov. 14, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=98750 (explaining that California's disclaimer requirement, ``while minimal, still takes around 15% of a Google advertisement,'' which ``carr[ies] a high cost of character space, even to the point of overshadowing the communication itself''); Center for Competitive Politics, Comment at 4 (urging the Commission to ``excuse disclaimers in any internet advertising product where the number of characters needed for a disclaimer would exceed 4% of the characters available in the advertising product, exclusive of those reserved for the ad's title'') (internal quotations omitted); Institute for Free Speech, Comment at 4 (same); see also American Federation of Labor and Congress of Industrial Organizations, et al., Comment at 2 (``In no case should the disclaimer rules compel a diminution of the speaker's message itself in order to accommodate the disclaimer; and, that principle should determine whether or not an internet advertisement . . . may omit the full, statutorily required language, and instead link to a disclaimer as the routine solution.''). Certain aspects of Federal Communications Commission rules employ a bright line for certain political advertisement sponsorship statements. See, e.g., 47 CFR 73.1212 (requiring sponsors of political advertising broadcast via television to be identified with letters that are equal to or greater than 4% of the vertical picture height). --------------------------------------------------------------------------- To provide clarity in determining whether a speaker may utilize an adapted disclaimer, proposed paragraph (c)(5)(ii) in Alternative B also proposes objective standards for use in measuring time and space. For internet public communications consisting of text, graphics, or images, Alternative B proposes to use characters or pixels. For internet public communications consisting of audio and video, Alternative B proposes to use seconds. These proposals are based on the Commission's experience with such communications in the advisory opinion context.\61\ The Commission has limited expertise in the technical aspects of internet advertising, however. Are the proposed metrics of characters, pixels, and seconds a reasonable way to measure space and time in paid internet advertisements? If they are, then are they sufficiently flexible to remain relevant as technology changes, or are they likely to become obsolete? Should the rule, instead, specify a percentage of space or time without identifying the units of measurement? Would that provide sufficient clarity for speakers to be able to determine for themselves when they can utilize an adapted disclaimer? The Commission also seeks comment on how it should measure the time and space that a disclaimer occupies on an internet advertisement containing both text or graphic and audio or video elements. Should the Commission's disclaimer regulations explicitly address such advertisements? If so, how? Additionally, how should the Commission measure pixels, characters, and seconds in an advertisement that may expand or change, such as those with scrolling, frame, carousel, or similar features? Should the Commission incorporate in the rule specifications for these internet advertisement features? --------------------------------------------------------------------------- \61\ See Advisory Opinion 2017-12 (Take Back Action Fund); Advisory Opinion Request 2013-18 (Revolution Messaging), Advisory Opinion Request 2011-09 (Facebook); Advisory Opinion 2010-19 (Google). --------------------------------------------------------------------------- 5. How Adaptations Must Be Presented on the Face of the Advertisement The discussion in this section explains the Commission's alternative proposals for what information must be included on the face of an advertisement that utilizes an adapted disclaimer. Both Alternatives A and B propose that an internet public communication that provides an adapted disclaimer must provide some information on the face of the advertisement, and both alternatives require such information to be clear and conspicuous and to provide notice that further disclaimer information is available through the technological mechanism. Alternative A proposes one method of presenting an adapted disclaimer, and Alternative B proposes two methods, in a tiered approach. Alternative A's approach would require, on the face of the advertisement, the payor's name plus an ``indicator'' that would give notice that further information is available. Alternative B proposes a two-tiered approach. Under its first tier, Alternative B would require, on the face of the advertisement, identification of the payor plus an ``indicator.'' Tier one of Alternative B differs from Alternative A in only one material aspect: Alternative B would allow, in lieu of a payor's full name, for a payor to be identified by a clearly recognized identifier such as an abbreviation or acronym. Under its second tier, Alternative B would require, on the face of the advertisement, only an ``indicator''; neither the payor's name nor an identifier would be required under tier two of Alternative B. Alternatives A and B use similar definitions of ``adapted disclaimer'' and ``indicator.'' a. Alternative A--One Tier: Name Plus Indicator Alternative A's proposed rule would explain that an ``adapted disclaimer'' means ``an abbreviated disclaimer on the face of a communication in conjunction with an indicator through which a reader can locate the full disclaimer required'' under 11 CFR [[Page 12876]] 110.11(c)(5)(i). The proposal would further clarify that the adapted disclaimer ``must indicate the person or persons who paid for the communication in letters of sufficient size to be clearly readable by a recipient of the communication.'' Alternative A is proposing that adapted disclaimers include a payor's name on the face of the communication for several reasons. First, the inclusion of such information would signal to a recipient that the communication is, indeed, a paid advertisement. This is especially important on the internet where paid content can be targeted to a particular user and appear indistinguishable from the unpaid content that user views, unlike traditional media like radio or television, where paid content is transmitted to all users in the same manner and is usually offset in some way from editorial content.\62\ Second, the inclusion of the payor's name would allow persons viewing the communication on any device, even if the recipient does not view the full disclaimer, to know ``the person or group who is speaking'' and could, therefore, assist voters in identifying the source of advertising so they are better ``able to evaluate the arguments to which they are being subjected.'' Citizens United, 558 U.S. at 368 (internal quotations and alterations removed). Alternative A is based on the premise that a technological mechanism to reach a full disclaimer provided by shortened URL and without the payor's name would not provide, on the face of the communication, the same informational value.\63\ Third, some commenters suggested that the Commission and the public not rely on social media platforms' voluntary efforts \64\ to identify paid communications (such as by a tag that a communication is ``paid,'' ``sponsored,'' or ``promoted'').\65\ As a preliminary matter, the Commission lacks any enforcement mechanism to ensure compliance with such voluntary efforts, which, by definition, may be modified or abandoned at any time. In addition, tags that identify whether an advertisement is ``paid,'' ``sponsored,'' or ``promoted,'' do not necessarily identify who paid, sponsored, or promoted the advertisement,\66\ and even that limited information may disappear when a paid communication is shared with other social media users. --------------------------------------------------------------------------- \62\ See, e.g., Center for Digital Democracy, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358502 (noting that ``native advertising'' online ``purposefully blurs the distinctions between editorial content and advertising''); Twitter, Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358496 (noting that, absent paid ``Promoted'' tag, Promoted Tweets ``look and act just like regular Tweets''); Electronic Privacy Information Center, Comment at 4 (``Online platforms use algorithms to target ads with a level of granularity that has not been possible before''). \63\ See Electronic Privacy Information Center, Comment at 3 (explaining that ``URL shortening tools such as goo.gl and bit.ly can take lengthy hyperlinks and reduce them to just a few characters. This would allow an ad with character limitations to provide a URL that linked to a full disclaimer.''). \64\ See, e.g., BMore Indivisible, Comment at 5 (stating that ``Given the history of technology and social media companies--and their nearly total reliance on advertising for corporate profits -- the American people and the FEC cannot rely on them to regulate themselves when it comes to disclosing the source of political advertisements. Legislative action is uncertain and may be incomplete. The FEC must act to fully regulate internet political advertising disclaimers''); Center for American Progress, Comment at 2-3 (Nov. 9, 2017) http://sers.fec.gov/fosers/showpdf.htm?docid=358489 (stating that ``To some extent, these companies have already taken steps toward proving more transparency for online political ads. While we commend those efforts, they are no substitute for action by the FEC. Such efforts vary from one company to another, with no consistent mechanism for enforcement and no meaningful guidance for new entrants. Clear and consistent rules should be in place for all technology companies, to ensure adequate transparency both now and in the future''). \65\ See, e.g., Twitter, Comment at 2 (describing ``promoted'' tweet label); Rob Goldman, Update on Our Advertising Transparency and Authenticity Efforts, Facebook Newsroom (Oct. 27, 2017), https://newsroom.fb.com/news/2017/10/update-on-our-advertising-transparency-andauthenticity-efforts/ (indicating that, starting in summer 2018, Facebook ``advertisers will have to include a disclosure in their election-related ads, which reads: `Paid for by.' ''). \66\ See Electronic Frontier Foundation, Comment at 4 (noting current ability to ``publish anonymous election related advertisements on Facebook via an advertising account linked to a pseudonymous Facebook page''). --------------------------------------------------------------------------- To further help voters evaluate the message, Alternative A proposes to require that information about the payor be of a size to ``be clearly readable.'' As with the size requirements for text and graphic internet communications described above, Alternative A intends that questions of whether a disclaimer is of sufficient type size to be clearly readable would be ``determined on a case-by-case basis, taking into account the vantage point from which the communication is intended to be seen or read as well as the actual size of the disclaimer text,'' as they are under the current rule. 2002 Disclaimer E&J, 67 FR 76965. Would a case-by-case ``clearly readable'' standard provide sufficient guidance to advertisers regarding the necessary size of an adapted disclaimer? As a component of adapted disclaimers, Alternative A proposes to require the use of an ``indicator,'' which it defines in proposed paragraph (c)(5)(i)(B) as ``any visible or audible element of an internet communication that is presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice that further disclaimer information is available by a technological mechanism. An indicator is not clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked.'' Alternative A adds in proposed paragraph (c)(5)(i)(B): ``[a]n indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons.'' What are the advantages and disadvantages of this approach? What would be the advantages and disadvantages of the Commission's designing and promulgating a single indicator to be used across all media and platforms? b. Alternative B--Two Tiers: Indicator Plus Payor Identification or Indicator-Only Alternative B's proposed paragraph (c)(5)(ii) would explain that an ``adapted disclaimer'' means ``an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism by which a reader can locate the disclaimer satisfying the general requirements'' of 11 CFR 110.11(b) and (c)(1). Alternative B proposes a two-tiered approach to the information that must be presented on the face of an internet public communication utilizing an adapted disclaimer. Under Alternative B's first tier, in proposed paragraph (c)(5)(iii), an adapted disclaimer consists of an abbreviated disclaimer that includes an ``indicator'' and identifies the payor by full name or by ``a clearly recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known,'' in lieu of the full name. Under Alternative B's second tier, in proposed paragraph (c)(5)(iv) described below, an adapted disclaimer consists of an abbreviated disclaimer that need include only an ``indicator.'' Under both tiers--indicator-plus-payor identification and indicator-only--the internet public communication would have to provide a full disclaimer through a technological mechanism, described below.\67\ --------------------------------------------------------------------------- \67\ Given that Alternative B would allow payors to use a technological mechanism to provide disclaimers for any form of paid public communication on the internet, including audio and video communcations, it proposes to require the payor's name to be ``clear and conspicuous'' rather than ``clearly readable,'' as under Alternative A. --------------------------------------------------------------------------- Under the first tier, described in proposed paragraph (c)(5)(iii), an advertisement could identify the payor by the payor's full name or by a clearly [[Page 12877]] recognized abbreviation, acronym, or other unique identifier by which the payor is commonly known. Thus, for example, if the Democratic Senatorial Campaign Committee were to pay for a Facebook advertisement, the advertisement could state that it was paid for by the DSCC, @DSCC, or DSCC.org, while providing the committee's full name in a disclaimer through a technological mechanism, as described below. This flexibility is intended to address internet public communications that might not otherwise conveniently or practicably accommodate the payor's name, such as character-limited ads, or where the payor's name is unusually lengthy, or where the payor wishes to use the ad to promote its social media brand.\68\ --------------------------------------------------------------------------- \68\ See, e.g., Advisory Opinion Request, Advisory Opinion 2010- 19 (Google) (Aug. 5, 2010) (asking to include URL to payor's website in lieu of disclaimer in severely character-limited internet ads, with disclaimer on landing page); Advisory Opinion Request, Advisory Opinion 2013-13 (Freshman Hold'Em JFC et al.) (Aug. 21, 2013) (asking to use shortened form of name and URL in disclaimer, where joint fundraising committee-payor's name included names of 18 participating committees); Advisory Opinion Request, Advisory Opinion 2017-05 (Great America PAC, et al.) (June 2, 2017) (asking to use payor's Twitter handle in disclaimers). --------------------------------------------------------------------------- This proposal is modeled after a longstanding provision in the Commission's regulations that allows a separate segregated fund to include in its name a ``clearly recognized abbreviation or acronym by which [its] connected organization is commonly known.'' 11 CFR 102.14(c). The Commission seeks comment on whether the proposal provides sufficient clarity for a payor to determine whether there is a ``clearly recognized'' abbreviation, acronym, or other unique identifier by which the payor is ``commonly known.'' Should the Commission prescribe standards for use in making that determination? Is there a risk of confusion if two groups are commonly known by the same acronym, or does ready access to a full disclaimer (no more than one technological step away) help to alleviate any potential for confusion? Does the potential for confusion increase if the person viewing or listening to a political advertisement is unfamiliar with the person or group sponsoring the ad? If so, does ready access to the full disclaimer through a technological mechanism help to alleviate any such risk? Under the second tier, described in proposed paragraph (c)(5)(iv), Alternative B would allow a speaker to include only an ``indicator'' on the face of an internet public communication, if the space or time necessary for a clear and conspicuous tier-one adapted disclaimer under proposed paragraph (c)(5)(iii) would exceed a certain percentage of the overall communication, and provide the full disclaimer through a technological mechanism. Under Alternative B, the term ``indicator'' has the same meaning under both the first and second tiers, as described further below. Again, Alternative B's second tier proposes to use ten percent as the determining figure and to measure ``time or space'' in terms of characters, pixels, and seconds. Is ten percent a reasonable figure, or is it too high or too low? Are characters, pixels, and seconds reasonable metrics? How should characters, pixels, or seconds be determined when an internet public communication combines text, graphic, and video elements, such as an ad with text fields surrounding a video or a GIF? Alternative B's proposed paragraph (c)(5)(ii)(B) clarifies the ``abbreviated disclaimer'' information aspect of the ``adapted disclaimer'' definition in proposed paragraph (c)(5)(ii). It would require the abbreviated disclaimer on the face of a communication to be presented in a clear and conspicuous manner. An abbreviated disclaimer would not be clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked. Proposed paragraph (c)(5)(i)(D) provides that an ``indicator'' is any visible or audible element of an internet public communication that gives notice to persons reading, observing, or listening to the communication that they may read, observe, or listen to a disclaimer satisfying the general requirements of 11 CFR 110.11(b) and (c)(1) through a technological mechanism.\69\ Under Alternative B, an indicator may take any form, including words (such as ``paid for by'' or ``sponsored by''), a website URL, or an image, sound, symbol, or icon. For example, under Alternative B a severely character-limited public internet communication could include an indicator stating ``Paid for by,'' ``Paid by,'' ``Sponsored by,'' ``Ad by,'' or providing the URL to the payor's website, if a reader could move his or her cursor over the words or link to a landing page and see the full disclaimer.\70\ Would this proposal promote disclosure and transparency by addressing extremely space- or time-constrained paid internet ads? Does an indicator alone provide sufficient guidance that the full disclaimer is available through a technological mechanism? Would this proposal help to ensure that voters have easy access to the full statutorily prescribed disclaimer for more online communications, while providing greater flexibility to political advertisers on the internet? Or would an indicator that takes the form of a hyperlink, for example, be prone to manipulation? Should the Commission require an indicator to take a specific form or to include specific language? --------------------------------------------------------------------------- \69\ The proposed reference to the person ``observing'' an internet communication derives from the existing requirement that ``[a] disclaimer . . . must be presented in a clear and conspicuous manner, to give the reader, observer, or listener adequate notice of the identify of the person or political committee that paid for and . . . authorized the communication.'' 11 CFR 110.11(c)(1) (emphasis added). As used in Alternative B, it is intended to be synonymous with ``viewer.'' \70\ This provision is similar to the existing regulatory allowance for disclaimers on printed communications, which generally provides that ``[t]he disclaimer need not appear on the front or cover page of the communication as long as it appears within the communication.'' 11 CFR 110.11(c)(2)(iv). --------------------------------------------------------------------------- In their comments on the ANPRM, Google and Twitter said that they intend to require each political advertisement on their platforms to bear a special designation that will allow viewers to obtain additional information about the sponsor of the ad.\71\ Should the Commission allow sponsors of extremely space- or time-limited paid internet advertisements to use platform-provided designations as their indicators, if such disclaimers meet all of the requirements for providing a disclaimer through a technological mechanism? Or do the limitations inherent in platform-provided designations, discussed above, argue against doing so? In any event, under Alternative B, the responsibility for ensuring that the disclaimer provided through a technological mechanism complies with the disclaimer requirement would remain with the person paying for the communication, and would not fall on the internet platform hosting it. --------------------------------------------------------------------------- \71\ Google, Comment at 1, 6-7, 11-12 (explaining ``Why This Ad'' icon for election-related advertisements on Search, YouTube, and Display); Twitter, Comment at 4 (explaining ``political ad indicator'' for ``electioneering ads'' on Twitter); see also Facebook, Comment at 3 (``[A]llowing ads to include an icon or other obvious indicator that more information about an ad is available via quick navigation (like a single click) would give clear guidance on how to include disclaimers in new technologies as they are developed.''). --------------------------------------------------------------------------- 6. Adaptations Utilizing One-Step Technological Mechanism Alternatives A and B both propose that a technological mechanism used to provide access to a full disclaimer must do so within one step. [[Page 12878]] a. Alternative A--Associated With ``Indicator'' in Advertisement Because the provision of an ad payor's name is necessary but not always sufficient to meet the Act's disclaimer requirement,\72\ Alternative A requires a mechanism to provide the additional required information. Alternative A's proposed paragraph (c)(5)(i)(A) would specify that the technological mechanism used to provide the full disclaimer must be ``associated with'' the indicator and allow a recipient of the communication to locate the full disclaimer ``by navigating no more than one step away from the adapted disclaimer.'' This means that the additional technological step should be apparent in the context of the communication and the disclaimer, once reached, should be ``clear and conspicuous'' and otherwise satisfy the full requirements of 11 CFR 110.11(c). Moreover, this proposed requirement is intended to notify a recipient of the communication that further information about or from the payor is available and that the recipient may find that information with minimal investment of additional effort.\73\ Thus, for example, a hyperlink underlying the ``paid for'' language would be ``associated with'' the full disclaimer at the landing page located one step away from the communication and to which the link leads. One commenter suggested that ``the Commission should allow people and entities subject to disclaimer requirements to satisfy them through any reasonable technological means'' rather than through a particular technology.\74\ Should the Commission explicitly include a requirement that a technological mechanism be ``reasonable'' or can the reasonableness requirement for such mechanisms be assumed? --------------------------------------------------------------------------- \72\ See, e.g., 52 U.S.C. 30120(a) (requiring payment and authorization statements and, if not authorized by a candidate, a payor's street address, telephone number, or ``World Wide Web'' address); Hearing Before the Subcomm. on Privileges and Elections of the S. Comm. on Rules and Admin., 94th Cong. 141 (1976) (testimony of Antonin Scalia, Asst. Att'y Gen'l) (testifying, in response to question about proposal to amend Act to require payor name and authorization statement, that ``[t]he principle seems to me a good one'' that ``seems to me like a sensible provision'' to minimize risk that ``candidate's campaign can be run by somebody other than the candidate''). \73\ See, e.g., MCCI, Comment at 2 (Nov. 12, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=360063 (asking, rhetorically, ``Who doesn't know how to click a link in an ad?'' in arguing for short word like ``ad'' or ``paid'' with hyperlink by which readers ``will ultimately be able to track material back to its source''). \74\ Coolidge-Reagan Foundation, Comment at 4. --------------------------------------------------------------------------- b. Alternative B--Associated With Adapted Disclaimer Alternative B's proposed paragraph (c)(5)(i)(C) defines the term ``technological mechanism'' as any use of technology that enables the person reading, observing, or listening to an internet public communication to read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) without navigating more than one step away from the internet public communication, and is associated with an adapted disclaimer as provided in proposed 11 CFR 110.11(c)(5)(ii). Thus, by definition, the technological mechanism must be ``associated with'' the abbreviated disclaimer on the face of the internet communication itself, and must not require the person reading, observing, or listening to an internet communication to navigate more than one step away to read, observe, or listen to the disclaimer. The additional technological step under Alternative B should be apparent in the context of the communication, and the disclaimer provided through alternative technical means must be ``clear and conspicuous'' under 11 CFR 110.11(c)(1). Should a technological mechanism be deemed to be ``associated with'' the abbreviated disclaimer on the face of an internet public communication if the person reading, observing, or listening to the communication can read, observe, or listen to a disclaimer by clicking anywhere on the communication? If a person can access the full disclaimer by clicking anywhere on a communication, should the abbreviated disclaimer even be required on the face of the communication? Are there circumstances where an adapted disclaimer would be preferable to a full disclaimer, even if the full disclaimer would take up ten percent or less of the time or space in the internet public communication? 7. Examples of Technological Mechanisms in Adapted Disclaimers Alternatives A and B provide similar lists of possible technological mechanisms. a. Alternative A--Illustrative List of Mechanisms Alternative A provides a list of examples of ``technological mechanisms for the provision of the full disclaimer'' including, but not limited to, ``hover-over mechanisms, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page with the full disclaimer.'' This illustrative list incorporates examples of one-step technological mechanisms the Commission has seen utilized by advisory opinion requestors and other federal and state agency disclosure regulations.\75\ The list is intended to provide guidance while retaining flexibility for advertisers to utilize other existing technological mechanisms or new mechanisms that may arise in the future. --------------------------------------------------------------------------- \75\ See, e.g., Advisory Opinion 2010-19 (Google) (addressing proposal to provide disclaimer by hyperlink to landing page containing full disclaimer); Fed. Trade Comm'n, .com Disclosures: How to Make Effective Disclosures in Digital Advertising 10 (2013), https://www.ftc.gov/system/files/documents/plain-language/bus41-dot-com-disclosures-information-about-online-advertising.pdf (permitting disclosure to ``be provided by using a hyperlink''); id. at 12 (allowing ``mouse-over'' display if effective on mobile devices); id. at 13-14 (allowing disclosures by pop ups and interstitial pages); id. at 16 (allowing scrolling text or rotating panels in space-constrained banner ad to present required disclosures); Cal. Code Regs. tit. 2, sec. 18450.4(b)(3)(G)(1) (permitting ``link to a web page with disclosure information''); id. at (b)(3)(G)(1) (allowing disclaimer ``displayed via rollover display''); Md. Code. Regs. 33.13.07(D)(2)(b)(i) (permitting ``viewer to click'' and be ``taken to a landing or home page'' with disclaimer); see also First Gen. Counsel's Report at 5 n.19, MUR 6911 (Frankel) (noting respondent committee's claim that ``its Twitter profile contains a link to the campaign's website that contains a disclaimer''); Interactive Advertising Bureau, Comment at 3 (Nov. 10, 2017), http://sers.fec.gov/fosers/showpdf.htm?docid=358484 (advocating a rule allowing for flexibility in disclaimer provision, such as by click through links); CMPLY, Comment at 2-3 and 9-11 (describing several ``short-form'' disclosure solutions within character-limited social media platforms). --------------------------------------------------------------------------- Should the Commission allow advertisers to include different parts of a full disclaimer in different frames or components of text or graphic internet advertisements (such as a disclaimer split between two character-limited text fields, one above an image and one below)? Several commenters noted the importance of ensuring that disclaimers are visible across devices or platforms and expressed concern that some technological mechanisms may not be functional across all devices or platforms.\76\ Should the Commission incorporate into the rule a requirement that any technological mechanism used must be accessible by all recipients of that communication, including those [[Page 12879]] accessing the communication on mobile devices? --------------------------------------------------------------------------- \76\ See, e.g., Asian Americans Advancing Justice, et al., Comment at 9-11 (presenting statistics showing that persons of color are more likely to consume information on internet than television and are more likely to do so via mobile devices than display (desktop) platforms); CMPLY, Comment at 2 (noting that `` `roll over' or `hover' disclosures . . . have significant limitations in social media platforms and . . . do not function within the user interfaces of mobile devices, where the majority of social media engagement takes place and where we have seen the largest increases in internet and broadband usage''). --------------------------------------------------------------------------- b. Alternative B--Illustrative List of Mechanisms Alternative B's proposed paragraph (c)(5)(i)(C) provides the same examples of technological mechanisms as Alternative A, with two exceptions. First, because Alternative B does not limit the use of technological mechanisms to internet communications with text or graphic components and anticipates that technology will develop to enable speakers to provide future disclaimers in ways that might not be available today, it includes ``voice-over'' as an example. Second, Alternative B proposes to refer to ``mouse-over'' and ``roll-over'' as examples, in addition to ``hover-over.'' Are these additional references useful, or are they already subsumed under ``hover-over''? Should the list of examples be further expanded or refined? 8. Proposed Exceptions to Disclaimer Rules for Internet Public Communications a. Alternative A No Proposal. b. Alternative B Alternative B proposes to codify a preference for including full disclaimers in paid internet advertisements, with alternative approaches available utilizing technological mechanisms. Although Alternative B is intended to make it easier for internet communications to meet the disclaimer requirement, some internet public communications might not be able to comply with the disclaimer requirement, either now or as technology and advertising practices change. Thus, Alternative B proposes to exempt from the disclaimer requirement any internet public communication that can provide neither a disclaimer in the communication itself nor an adapted disclaimer as provided in proposed paragraph (c)(5). The proposed exception in Alternative B is intended to replace the small items and impracticable exceptions for internet public communication, so that the small items and impracticable exceptions would no longer apply to such communications. The small items and impracticable exceptions both predate the digital age, and the Commission has faced challenges in applying them to internet communications. Despite several requests, the Commission has issued only one advisory opinion in which a majority of Commissioners agreed that a disclaimer exception applied to digital communications. See Advisory Opinion 2002-09 (Target Wireless). Statements by individual Commissioners indicate a difference of opinion regarding the application of the exceptions to internet communications.\77\ --------------------------------------------------------------------------- \77\ See Advisory Opinion 2017-12 (Take Back Action Fund), Concurring Statement of Commissioner Ellen L. Weintraub (Dec. 21, 2017), Concurring Statement of Vice Chair Caroline C. Hunter and Commissioners Lee E. Goodman and Matthew S. Petersen (Dec. 14, 2017); Advisory Opinion Request 2013-18 (Revolution Messaging), Statement for the Record by Vice Chair Ann M. Ravel, Commissioner Steven T. Walther, and Commissioner Ellen L. Weintraub (Feb. 27, 2014); Advisory Opinion 2010-19 (Google), Concurring Statement of Chairman Matthew S. Petersen (Dec. 30, 2010), Statement for the Record by Commissioner Caroline C. Hunter (Dec. 17, 2016), and Concurring Statement of Vice Chair Cynthia L. Bauerly, Commissioner Steven T. Walther, and Commissioner Ellen L. Weintraub (Dec. 16, 2010). --------------------------------------------------------------------------- Alternative B's proposed paragraph (f)(1)(iv) exempts from the disclaimer requirement any paid internet advertisement that cannot provide a disclaimer in the communication itself nor an adapted disclaimer under proposed paragraph (c)(5). Is the exception as currently proposed sufficiently clear? The proposed exception provides as an example static banner ads on small internet-enabled mobile devices that cannot link to a landing page controlled by the person paying for the communication.\78\ Do such ads exist? Should Alternative B's proposed exception apply to advertisements that technically can link to a website with a full disclaimer but do not do so? Does the Commission have statutory authority to adopt exceptions to the disclaimer requirements? --------------------------------------------------------------------------- \78\ The Commission considered static banner ads on small internet-enabled mobile devices in Advisory Opinion Request 2013-18 (Revolution Messaging). In that advisory opinion request, the requestor asked the Commission to recognize small (320 x 50 pixels) static banner ads on smartphones as exempt from the disclaimer requirement under the ``small items'' exception. The Commission did not approve a response by the required four affirmative votes. --------------------------------------------------------------------------- If the Commission adopts either the single-tier adapted disclaimer approach of Alternative A or the two-tier approach of Alternative B, would there be a need to exempt any internet public communications from the disclaimer requirement? Or would the adaptations adequately address any technological limitations? Would adopting any new exception to the disclaimer requirement for internet public communications lead to manipulation and abuse of the exception? If so, what can the Commission do to minimize the risk of manipulation and abuse, and enhance disclosure? Conversely, if the Commission decides not to adopt a new exception for internet public communications, what effect would that decision have on political discourse on the internet? Could such a decision, coupled with uncertainty over the application of the existing exceptions to internet public communications, potentially chill political speech on the internet? F. Conclusion The Commission welcomes comment on any aspect of Alternatives A and B. Additionally, the Commission seeks comment addressing how differences between online platforms, providers, and presentations may affect the application of any of the proposed disclaimer rules for text, graphic, video, and audio internet advertisements in Alternative A, or for internet public communications generally in Alternative B. Among other topics, the Commission seeks comment on whether the ability to zoom or otherwise expand the size of some digital communications affects any of these proposals. Similarly, the Commission seeks comment on the interaction between the proposed definition of ``public communication'' and the proposed disclaimer rules in Alternatives A and B. The Commission is particularly interested in comment detailing the challenges and opportunities persons have experienced in complying with (and receiving disclosure from) similar state and federal disclaimer or disclosure regimes. 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, the Commission welcomes comment on whether the proposed rules allow for flexibility to address future technological developments while honoring the important function of providing disclaimers to voters. Certification of No Effect Pursuant to 5 U.S.C. 605(b) (Regulatory Flexibility Act) The Commission certifies that the attached proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. The proposed rules would clarify and update existing regulatory language, codify certain existing Commission precedent regarding internet communications, and provide political committees and other entities with more flexibility in meeting the Act's disclaimer requirements. The proposed rules would not impose new [[Page 12880]] recordkeeping, reporting, or financial obligations on political committees or commercial vendors. The Commission therefore certifies that the proposed rules, if adopted, would not have a significant economic impact on a substantial number of small entities. List of Subjects 11 CFR Part 100 Elections. 11 CFR Part 110 Campaign funds, Political committees and parties. For the reasons set out in the preamble, the Federal Election Commission proposes to amend 11 CFR parts 100 and 110, as follows: PART 100--SCOPE AND DEFINITIONS (52 U.S.C. 30101) 0 1. The authority citation for part 100 continues to read as follows: Authority: 52 U.S.C. 30101, 30104, 30111(a)(8), and 30114(c). Sec. 100.26 [Amended] 0 2. Amend Sec. 100.26 by removing ``website'' and adding in its place ``website or internet-enabled device or application''. PART 110--CONTRIBUTION AND EXPENDITURE LIMITATIONS AND PROHIBITIONS 0 3. The authority citation for part 110 continues to read as follows: Authority: 52 U.S.C. 30101(8), 30101(9), 30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, 30118, 30120, 30121, 30122, 30123, 30124, and 36 U.S.C. 510. Alternative A 0 4. In Sec. 110.11, add paragraph (c)(5) to read as follows: Sec. 110.11 Communications; advertising; disclaimers (52 U.S.C. 30120). * * * * * (c) * * * (5) Specific requirements for internet communications. In addition to the general requirements of paragraphs (b) and (c)(1) of this section, a disclaimer required by paragraph (a) of this section that appears on a public communication distributed over the internet must comply with the following: (i) A public communication distributed over the internet with text or graphic components but without any video component must contain a disclaimer that is of sufficient type size to be clearly readable by the recipient of the communication. A disclaimer that appears in letters at least as large as the majority of the other text in the communication satisfies the size requirement of this paragraph. A disclaimer under this paragraph must be displayed with a reasonable degree of color contrast between the background and the text of the disclaimer. A disclaimer satisfies the color contrast requirement of this paragraph if it is displayed in black text on a white background or if the degree of color contrast between the background and the text of the disclaimer is no less than the color contrast between the background and the largest text used in the communication. (A) A public communication distributed over the internet with text or graphic components but without any video component that, due to external character or space constraints, cannot fit a required disclaimer must include an adapted disclaimer. For purposes of this paragraph, an adapted disclaimer means an abbreviated disclaimer on the face of a communication in conjunction with an indicator through which a reader can locate the full disclaimer required by paragraph (c)(5)(i). The adapted disclaimer must indicate the person or persons who paid for the communication in letters of sufficient size to be clearly readable by a recipient of the communication. The technological mechanism in an adapted disclaimer must be associated with the indicator and must allow a recipient of the communication to locate the full disclaimer by navigating no more than one step away from the adapted disclaimer. Technological mechanisms for the provision of the full disclaimer include, but are not limited to, hover-over mechanisms, pop-up screens, scrolling text, rotating panels, or hyperlinks to a landing page with the full disclaimer. (B) As used in paragraph (c)(5), an indicator is any visible or audible element of an internet communication that is presented in a clear and conspicuous manner to give the reader, observer, or listener adequate notice that further disclaimer information is available by a technological mechanism. An indicator is not clear and conspicuous if it is difficult to see, read, or hear, or if the placement is easily overlooked. An indicator may take any form including, but not limited to, words, images, sounds, symbols, and icons. (ii) A public communication distributed over the internet with an audio component but without video, graphic, or text components must include the statement described in paragraphs (c)(3)(i) and (iv) of this section if authorized by a candidate, or the statement described in paragraph (c)(4) of this section if not authorized by a candidate. A public communication distributed over the internet with a video component must include the statement described in paragraphs (c)(3)(ii)-(iv) of this section if authorized by a candidate, or the statement described in paragraph (c)(4) of this section if not authorized by a candidate. * * * * * Alternative B 0 5. Amend Sec. 110.11 as follows: 0 a. Add paragraph (c)(5). 0 b. Add paragraph (f)(1)(iv). The additions read as follows: Sec. 110.11 Communications; advertising; disclaimers (52 U.S.C. 30120). * * * * * (c) * * * (5) Specific requirements for internet communications. (i) For purposes of this section: (A) The term internet communication means electronic mail of more than 500 substantially similar communications when sent by a political committee; all internet websites of political committees available to the general public; and any internet public communication as defined in paragraph (c)(5)(i)(B) of this section; (B) The term internet public communication means any communication placed for a fee on another person's website or internet-enabled device or application; (C) The term technological mechanism refers to any use of technology that enables the person reading, observing, or listening to an internet public communication to read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section without navigating more than one step away from the internet public communication, and is associated with an adapted disclaimer as provided in paragraph (c)(5)(ii) of this section. A technological mechanism may take any form including, but not limited to, hover-over; mouse-over; voice-over; roll-over; pop-up screen; scrolling text; rotating panels; and click-through or hyperlink to a landing page; and (D) The term indicator refers to any visible or audible element of an internet public communication that gives notice to persons reading, observing, or listening to the internet public communication that they may read, observe, or listen to a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section through a technological mechanism. An indicator may take any form including, [[Page 12881]] but not limited to, words such as ``Paid for by,'' ``Paid by,'' ``Sponsored by,'' or ``Ad by''; website URL; image; sound; symbol; and icon. (ii) Every internet communication for which a disclaimer is required by paragraph (a) of this section must satisfy the general requirements of paragraphs (b) and (c)(1) of this section, except an internet public communication may include an adapted disclaimer under the circumstances described in paragraphs (c)(5)(iii)-(c)(5)(iv) of this section. For purposes of this paragraph, an adapted disclaimer means an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism by which a reader can locate the disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section. Any internet public communication that includes an adapted disclaimer must comply with the following: (A) The internet public communication must provide a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section through a technological mechanism as described in paragraph (c)(5)(i)(C) of this section. (B) The internet public communication must present the abbreviated disclaimer on the face of the communication in a clear and conspicuous manner. An abbreviated disclaimer is not clear and conspicuous if it is difficult to read, hear, or observe, or if the placement is easily overlooked. (C) For an internet public communication consisting of text, graphics, or images, time or space must be measured in [characters or pixels]. (D) For an internet public communication consisting of audio or video, time or space must be measured in [seconds]. (iii) If the time or space required for a disclaimer satisfying the general requirements of paragraphs (b) and (c)(1) of this section would exceed [ten] percent of the time or space in an internet public communication, then the abbreviated disclaimer on the face of the communication must include an indicator and identify the person who paid for the internet public communication by the person's full name or by a clearly recognized abbreviation, acronym, or other unique identifier by which the person is commonly known. (iv) If the time or space required for an abbreviated disclaimer under paragraph (c)(5)(iii) of this section would exceed [ten] percent of the time or space in the internet public communication, then the abbreviated disclaimer on the face of the communication must include an indicator. * * * * * (f) Exceptions. (1) * * * (iv) Any internet public communication that cannot provide a disclaimer on the face of the internet public communication itself nor an adapted disclaimer as provided in paragraph (c)(5) of this section, such as a static banner ad on a small internet-enabled device that cannot link to a landing page of the person paying for the internet public communication. The provisions of paragraph (f)(1)(i)-(iii) of this section do not apply to internet public communications. * * * * * On behalf of the Commission, Dated: March 20, 2018. Caroline C. Hunter, Chair, Federal Election Commission. [FR Doc. 2018-06010 Filed 3-23-18; 8:45 am] BILLING CODE 6715-01-P
![12864
Proposed Rules Federal Register
Vol. 83, No. 58
Monday, March 26, 2018
This section of the FEDERAL REGISTER proposed changes to the definition of A. Rulemaking History
contains notices to the public of the proposed ‘‘public communication.’’ The
issuance of rules and regulations. The 1. Definition of ‘‘Public
Commission has not made any final
purpose of these notices is to give interested Communication’’
decisions on any of the issues or
persons an opportunity to participate in the proposals presented in this rulemaking. The Commission published a Notice
rule making prior to the adoption of the final of Proposed Rulemaking (‘‘Technology
rules. DATES: Comments must be received on NPRM’’) in the Federal Register on
or before May 25, 2018. The November 2, 2016.1 The Technology
Commission will hold a public hearing NPRM comment period ended on
FEDERAL ELECTION COMMISSION on this notice on June 27, 2018. Anyone December 2, 2016. The Commission
wishing to testify at such a hearing must received four comments in response to
11 CFR Parts 100 and 110
file timely written comments and must the Technology NPRM.2
[Notice 2018–06] include in the written comments a One of the proposals in the
request to testify. Technology NPRM was to update the
Internet Communication Disclaimers
and Definition of ‘‘Public ADDRESSES: All comments must be in definition of ‘‘public communication’’ at
Communication’’ writing. Commenters are encouraged to 11 CFR 100.26. Section 100.26 currently
submit comments electronically via the defines ‘‘public communication’’ as
AGENCY: Federal Election Commission. Commission’s website at http:// excluding all internet communications,
ACTION: Notice of proposed rulemaking. sers.fec.gov/fosers/rulemaking.htm? ‘‘other than communications placed for
pid=74739. Alternatively, commenters a fee on another person’s website.’’
SUMMARY: The Federal Election When the Commission promulgated this
Commission requests comment on two may submit comments in paper form,
addressed to the Federal Election definition in 2006, it focused on
alternative proposals to amend its
Commission, Attn.: Neven F. websites because that was the
regulations concerning disclaimers on
Stipanovic, Acting Assistant General predominant means of paid internet
public communications on the internet
Counsel, 1050 First St. NE, Washington, advertising at the time. The Commission
that contain express advocacy, solicit
DC 20463. Each commenter must analogized paid advertisements on
contributions, or are made by political
provide, at a minimum, his or her first websites to the forms of mass
committees. The Commission is
name, last name, city, and state; communication enumerated in the
undertaking this rulemaking in light of
comments without this information will definition of ‘‘public communication’’
technological advances since the
not be accepted. All properly submitted in the Federal Election Campaign Act,
Commission last revised its rules
governing internet disclaimers in 2006, comments, including attachments, will 52 U.S.C. 30101–46 (‘‘the Act’’), because
and questions from the public about the become part of the public record, and ‘‘each lends itself to distribution of
application of those rules to internet the Commission will make comments content through an entity ordinarily
communications. The Commission’s available for public viewing on the owned or controlled by another
goal is to promulgate a rule that in its Commission’s website and in the person.’’ internet Communications, 71
text and interpretation recognizes the Commission’s Public Records Office. FR 18589, 18594 (Apr. 12, 2006) (‘‘2006
paramount importance of providing the Accordingly, commenters should not internet E&J’’); 52 U.S.C. 30101(22).
public with the clearest disclosure of provide in their comments any The Commission proposed to update
the payor or sponsor of these public information that they do not wish to the definition by adding
communications on the internet. make public, such as a home street communications placed for a fee on
Both proposals are intended to give address, personal email address, date of another person’s ‘‘internet-enabled
the American public easy access to birth, phone number, social security device or application.’’ The purpose of
information about the persons paying number, or driver’s license number, or the proposed change was to reflect post-
for and candidates authorizing these any information that is restricted from 2006 changes in internet technology 3—
internet communications, pursuant to disclosure, such as trade secrets or
1 Technological Modernization, 81 FR 76416
the Federal Election Campaign Act. commercial or financial information
(Nov. 2, 2016).
Both proposals would continue to that is privileged or confidential. 2 The Commission also received four comments
require disclaimers for certain internet FOR FURTHER INFORMATION CONTACT: Mr. in response an earlier stage of the technology
communications, and both would allow Neven F. Stipanovic, Acting Assistant rulemaking. See Technological Modernization, 78
certain internet communications to FR 25635 (May 2, 2013). To review those proposals
General Counsel, or Ms. Jessica and other Commission rulemaking documents,
provide disclaimers through alternative Selinkoff, Attorney, (202) 694–1650 or including comments received, visit http://
technology. The proposals differ, (800) 424–9530. sers.fec.gov/fosers/rulemaking.htm?pid=84652.
however, in their approach. The 3 See Amy Schatz, In Hot Pursuit of the Digital
Commission requests comment on all SUPPLEMENTARY INFORMATION: The Voter, Wall St. J., Mar. 23, 2012, www.wsj.com/
sradovich on DSK3GMQ082PROD with PROPOSALS
elements of both proposals. The two Commission is proposing to revise its articles/SB1000142405270230381290457729982006
4048072 (showing screenshots of 2012 presidential
proposals need not be considered as regulations at 11 CFR 100.26 and 110.11 committee advertisements on Hulu and noting
fixed alternatives; commenters are regarding disclaimers on another campaign’s purchase of advertisements on
encouraged to extract the best elements communications placed for a fee on the Pandora internet radio); Tanzina Vega, The Next
of each, or suggest improvements or internet. The Commission may provide Political Battleground: Your Phone, CNN (May 29,
2015, 6:44 a.m.), www.cnn.com/2015/05/29/
alternatives, to help the Commission illustrative examples on the politics/2016-presidential-campaigns-mobile-
fashion the best possible rule. The Commission’s website during the technology (noting that ‘‘voters should expect more
Commission also requests comment on comment period. political ads as they scroll through their phones
VerDate Sep<11>2014 18:14 Mar 23, 2018 Jkt 244001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\26MRP1.SGM 26MRP1](https://thefederalregister.org/doc/83_FR_12922/page/1.svg)
![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12865
such as the development of mobile exceptions thereto, consistent with the After considering the comments from
applications (‘‘apps’’) on smartphones Act.7 The Commission received eight all three comment periods and
and tablets, smart TV devices, comments in response. Six of the additional deliberation, the Commission
interactive gaming dashboards, e-book commenters agreed that the Commission now seeks comment on the proposed
readers, and wearable network-enabled should update the disclaimer rules changes described in this notice. Other
devices such as smartwatches and through a rulemaking, though than the issues specified in this notice,
headsets—and to make the regulatory commenters differed on how the the Commission does not, in this
text more adaptable to the development Commission should do so. rulemaking, propose changes to any
of future technologies. The Commission On October 18, 2016, the Commission other rules adopted by the Commission
asked several questions about its solicited additional comment in light of in the internet Communications
proposed change, including whether the legal and technological developments rulemaking of 2006.
term ‘‘internet-enabled device or during the five years since the ANPRM
application’’ is a sufficiently clear and was published.8 The Commission B. Current Statutory and Regulatory
technically accurate way to refer to the received six comments during the Framework Concerning Disclaimers
various media through which paid reopened comment period, all but one A ‘‘disclaimer’’ is a statement that
internet communications can be sent of which supported updating the must appear on certain communications
and received; whether there is a better disclaimer rules. Commenters, however, to identify who paid for it and, where
way to refer to them; and whether it differed on whether the Commission applicable, whether the communication
would help to provide examples of such should allow modified disclaimers for was authorized by a candidate. 52
paid media. all online advertisements or exempt
U.S.C. 30120(a); 11 CFR 110.11; see also
The Commission received only one paid advertisements on social media
Disclaimers, Fraudulent Solicitations,
comment in response to this aspect of platforms from the disclaimer
Civil Penalties, and Personal Use of
the Technology NPRM.4 The comment requirements.
On October 10, 2017, the Commission Campaign Funds, 67 FR 76962, 76962
generally supported the proposed
again solicited additional comment in (Dec. 13, 2002) (‘‘2002 Disclaimer E&J’’).
revision to the definition of ‘‘public
light of recent legal, factual, and The Supreme Court has recognized that
communication’’ in section 100.26.5
The Commission has decided to technological developments.9 During disclaimer requirements may burden
reintroduce the proposed change to the this reopened comment period, the political speech, and thus must bear a
definition of ‘‘public communication’’ Commission received submissions from substantial relation to a sufficiently
in this rulemaking for the limited 149,772 commenters (including persons important governmental interest. See
purpose of determining whether the who signed on to others’ comments), of Citizens United v. FEC, 558 U.S. 310,
term ‘‘internet-enabled device or which 147,320 indicated support for 366–67 (2010) (‘‘Citizens United’’)
application’’ is a sufficiently clear and updating or strengthening the (citing Buckley v. Valeo, 424 U.S. 1, 64,
technically accurate way to refer to the disclaimer rules or other government 66 (1976) (‘‘Buckley’’)).
various media through which paid action; 2,262 indicated opposition to The Court has found that the
internet communications can be sent such efforts; and 190 did not indicate a government’s interest in mandating
and received. The term is closely tied to discernable preference.10 such disclaimers justifies the
the internet communication disclaimer accompanying burden on political
requirements.6 7 See internet Communication Disclaimers, 76 FR
speech. For example, in approving the
63567 (Oct. 13, 2011). disclaimers at issue in Citizens United,
2. Internet Communication Disclaimers 8 See internet Communication Disclaimers;
Reopening of Comment Period and Notice of
the Court explained, ‘‘[d]isclaimer and
On October 13, 2011, the Commission Hearing, 81 FR 71647 (Oct. 18, 2016). The disclosure requirements may burden the
published in the Federal Register an Commission postponed the hearing announced in ability to speak, but they impose no
Advance Notice of Proposed that notice because few commenters expressed ceiling on campaign-related activities
Rulemaking (‘‘ANPRM’’) soliciting interest in participating. As noted above, the
Commission will hold a hearing on the proposals
and do not prevent anyone from
comment on whether to modify in this notice on June 27, 2018. speaking. The Court has subjected these
disclaimer requirements at 11 CFR 9 See internet Communication Disclaimers; requirements to exacting scrutiny,
110.11 for certain internet Reopening of Comment Period, 82 FR 46937 (Oct. which requires a substantial relation
communications, or to provide 10, 2017); see also internet Communication
Disclaimers; Extension of Comment Period, 82 FR
between the disclosure requirement and
52863 (Nov. 15, 2017) (explaining Commission’s a sufficiently important governmental
next year—much as they’ll be bombarded with ads extension of comment period for one business day interest.’’ Id. (internal quotation marks
on television,’’ including ads using geolocation to due to technological difficulties).
target ‘‘potential voters who may have downloaded
and alterations removed). The Court
10 Commission staff read and categorized each
the candidate’s app’’). Indeed, a recent study has also held that disclaimers ‘‘provide the
comment in one of three broad categories: Support,
shown that 19% of Americans access the internet oppose, or neutral. ‘‘Support’’ included comments electorate with information and insure
exclusively or mostly through their smartphones as supporting more stringent disclaimer rules; favoring that the voters are fully informed about
opposed to desktop or laptop computers. See Pew
Research Ctr., U.S. Smartphone Use in 2015, at 3
‘‘transparency’’; opposing application of the small the person or group who is speaking,’’
items or impracticable exceptions to online and stated that identifying the sources
(2015), www.pewinternet.org/files/2015/03/PI_ advertisements; opposing advertising by foreign
Smartphones_0401151.pdf. nationals; opposing Russian interference in the of advertising enables people ‘‘to
4 See Campaign Legal Center and Democracy 21,
2016 election; or supporting the ‘‘Honest Ads Act’’ evaluate the arguments to which they
Comment on REG 2013–01 (Technological or any of its components. See S. 1989, 115th Cong. are being subjected.’’ Id. at 368 (internal
Modernization) (Dec. 2, 2016), http://sers.fec.gov/ (2017). ‘‘Oppose’’ included comments opposing any
sradovich on DSK3GMQ082PROD with PROPOSALS
fosers/showpdf.htm?docid=354002. quotations and alterations removed).
rulemaking; opposing more stringent disclaimer
5 The comment also urged the Commission to
rules; supporting application of the small items or
amend 11 CFR 100.26 ‘‘to make clear that any impracticable exceptions to online advertising; recommending modified disclaimers in some, but
expenditure beyond a de minimis amount for supporting modified disclaimers in lieu of full not all, circumstances; appearing to make
internet communications is not exempt from the disclaimers; opposing any restriction of speech, contradictory statements in support or opposition;
definition of ‘public communication.’’’ Id. at 2. ‘‘infringement’’ of constitutional rights, or presenting unclear statements of preferred action,
6 The definition of ‘‘public communication’’ is ‘‘censorship’’; or reminding the Commission to read such as ‘‘do the right thing’’; or commenting off
also relevant to the coordination rules, 11 CFR the Constitution. ‘‘Neutral’’ included comments topic, such as on net neutrality. Comments
109.21(c), and financing limitations, e.g., 11 CFR recognizing the value of disclaimers, but noting the addressing specific aspects of the current or
100.24(b)(3), 300.32(a)(1)–(2), 300.71. difficulty of providing disclaimers online; proposed rules are discussed below, as appropriate.
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With some exceptions, the Act and CFR 110.11(c)(1) (general ‘‘clear and Communications Disclaimer
Commission regulations require conspicuous’’ requirement for all Requirements, 60 FR 52069, 52071 (Oct.
disclaimers for public communications: disclaimers), with 11 CFR 110.11(c)(2)– 5, 1995).
(1) Made by a political committee; (2) (4) (additional requirements for printed, The Bipartisan Campaign Reform Act
that expressly advocate the election or radio, and television disclaimers) and of 2002, Public Law 107–155, 116 Stat.
defeat of a clearly identified federal 52 U.S.C. 30120(c)–(d) (specifications 81 (2002) (‘‘BCRA’’), added specificity
candidate; or (3) that solicit a for printed, radio, and television to the disclaimer requirements
contribution. 52 U.S.C. 30120(a); 11 CFR disclaimers). (including ‘‘stand by your ad’’
110.11(a). Under existing regulations, Commission regulations set forth requirements for certain radio and
the term ‘‘public communication’’ does limited exceptions to the general television communications), expanded
not include internet communications disclaimer requirements. For example, the scope of communications covered
other than ‘‘communications placed for disclaimers are not required for by the disclaimer requirements, and
a fee on another person’s website.’’ 11 communications placed on ‘‘[b]umper defined a new term, ‘‘public
CFR 100.26. In addition to these internet stickers, pins, buttons, pens, and similar communication,’’ that did not reference
public communications, ‘‘electronic small items upon which the disclaimer the internet. See 52 U.S.C. 30101(22),
mail of more than 500 substantially cannot be conveniently printed.’’ 11 30120; see also 2002 Disclaimer E&J, 67
similar communications when sent by a CFR 110.11(f)(1)(i) (‘‘small items FR at 76962. The Commission
political committee . . . and all internet exception’’). Nor are disclaimers promulgated rules to implement BCRA’s
websites of political committees required for ‘‘[s]kywriting, water towers, changes to the disclaimer provisions of
available to the general public’’ also wearing apparel, or other means of the Act and the new statutory definition
must have disclaimers. 11 CFR displaying an advertisement of such a of ‘‘public communication.’’ See 2002
110.11(a). nature that the inclusion of a disclaimer Disclaimer E&J, 67 FR at 76962;
The content of the disclaimer that would be impracticable.’’ 11 CFR Prohibited and Excessive Contributions:
must appear on a given communication 110.11(f)(1)(ii) (‘‘impracticable Non-Federal Funds or Soft Money, 67
depends on who authorized and paid exception’’). FR 49064, 49111 (July 29, 2002) (‘‘Non-
for the communication. If a candidate, Federal Funds E&J’’). The 2002 rules
C. Application of the Disclaimer
an authorized committee of a candidate, incorporated the term ‘‘public
Requirements to Internet
or an agent of either pays for and communication’’ to describe the general
Communications
authorizes the communication, then the reach of the disclaimer rules and
disclaimer must state that the 1. Development of Current Rule That applied the disclaimer requirements to
communication ‘‘has been paid for by Paid Internet Advertisements Require political committees’ websites and
the authorized political committee.’’ 11 Disclaimers distribution of more than 500
CFR 110.11(b)(l); see also 52 U.S.C. The Commission first addressed substantially similar unsolicited emails.
30120(a)(1). If a public communication disclaimers on internet communications Other than these two specific types of
is paid for by someone else, but is in two 1995 advisory opinions regarding internet-based activities by political
authorized by a candidate, an the application of the Act to internet committees, however, internet
authorized committee of a candidate, or solicitations of campaign contributions. communications were excluded from
an agent of either, then the disclaimer See Advisory Opinion 1995–35 the regulatory definition of ‘‘public
must state who paid for the (Alexander for President); Advisory communication’’ and, therefore, outside
communication and that the Opinion 1995–09 (NewtWatch PAC).11 the scope of the disclaimer requirements
communication is authorized by the The Commission determined that that apply to public communications.
candidate, an authorized committee of internet solicitations are ‘‘general public See 2002 Disclaimer E&J, 67 FR at
the candidate, or an agent of either. 11 political advertising’’ 12 and, as such, 76963–64; Non-Federal Funds E&J, 67
CFR 110.11(b)(2); see also 52 U.S.C. they ‘‘are permissible under the [Act] FR at 49111.
30120(a)(2). If the communication is not provided that certain requirements, In 2006, after a court challenge to the
authorized by a candidate, an including the use of appropriate regulatory definition of ‘‘public
authorized committee of a candidate, or disclaimers, are met.’’ Advisory Opinion communication,’’ the Commission
an agent of either, then the disclaimer 1995–35 (Alexander for President) at 2 revised its rules to include internet
must ‘‘clearly state the full name and (characterizing conclusion in Advisory communications ‘‘placed for a fee on
permanent street address, telephone Opinion 1995–09 (NewtWatch PAC)). another person’s website’’ in the
number, or World Wide Web address of Later that year, the Commission stated definition of ‘‘public communication’’
the person who paid for the in a rulemaking that ‘‘internet and, therefore, within the scope of the
communication, and that the communications and solicitations that disclaimer rule. See 2006 internet E&J,
communication is not authorized by any constitute general public political 71 FR at 18594; see also Shays v. FEC,
candidate or candidate’s committee.’’ 11 advertising require disclaimers,’’ adding 337 F. Supp. 2d 28 (D.D.C. 2004)
CFR 110.11(b)(3); see also 52 U.S.C. that ‘‘[t]hese communications and (holding, among other things, that
30120(a)(3). others that are indistinguishable in all Commission could not wholly exclude
Every disclaimer ‘‘must be presented material aspects from those addressed in internet activity from the definition of
in a clear and conspicuous manner, to [Advisory Opinion 1995–09 ‘‘public communication’’). The
give the reader, observer, or listener (NewtWatch PAC)] will now be subject Commission explained that, under the
adequate notice of the identity’’ of the revised definition, ‘‘when someone such
sradovich on DSK3GMQ082PROD with PROPOSALS
to’’ the disclaimer requirement. See
communication’s sponsor. 11 CFR as an individual, political committee,
110.11(c)(1). While the Act and 11 Documents related to Commission advisory labor organization or corporation pays a
Commission regulations impose specific opinions are available on the Commission’s website fee to place a banner, video, or pop-up
requirements for communications that at www.fec.gov/data/legal/advisory-opinions/. advertisement on another person’s
12 At the time, 11 CFR 110.11 explicitly applied
are ‘‘printed’’ or that appear on radio or website, the person paying makes a
to ‘‘general public political advertising.’’ The
television, they do not specify current rule uses the term ‘‘public communication’’
‘public communication.’’’ 2006 internet
additional requirements for disclaimers as defined at 11 CFR 100.26, which includes E&J, 71 FR at 18593–94. Furthermore,
on internet advertisements. Compare 11 ‘‘general public political advertising.’’ the Commission explained that ‘‘the
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12867
placement of advertising on another requirement); see also Advisory advertisements do not qualify for
person’s website for a fee includes all Opinion 1980–42 (Hart for Senate impracticable exception); Advisory
potential forms of advertising, such as Campaign Committee) (applying the Opinion 2004–10 (Metro Networks)
banner advertisements, streaming video, exception to concert tickets); Advisory (determining that ‘‘live read’’ traffic
popup advertisements, and directed Opinion 2002–09 (Target Wireless) report sponsorship messages, delivered
search results.’’ 13 Id.; see also id. at (applying the exception to character- by reporters from mobile units and
18608 n.52 (noting that, as used in a limited ‘‘short message service,’’ or aircraft, did not present ‘‘specific
different context, ‘‘terms ‘website’ and SMS, communications distributed physical and technological limitations’’
‘any internet or electronic publication’ through a non-internet-based wireless to qualify for impracticable exception);
are meant to encompass a wide range of telecommunications network); 11 CFR see also Advisory Opinion 2013–13
existing and developing technology’’ 110.11(f)(1)(i). In the Target Wireless (Freshman Hold’em JFC et al.) at n.4
including ‘‘social networking advisory opinion, the Commission (concluding that ‘‘emails and web pages
software’’). Thus, since 2006, considered whether disclaimers were . . . are not electronic communications
Commission regulations have required required on paid content distributed via in which the inclusion of disclaimers
disclaimer information to be included in SMS communications through a non- may be inherently impracticable.’’).
certain paid internet advertisements. internet-based wireless Nonetheless, in Advisory Opinion
telecommunications network. At the 2004–10 (Metro Networks), the
2. Application of Disclaimer Rule to time the Commission issued that Commission recognized that, although
‘‘Small’’ Internet Communications advisory opinion, technology limited the ‘‘physical and technological
The Commission has been asked on a SMS content to 160 text-only characters limitations’’ of a communication
number of occasions about the per message; SMS messages could not medium may ‘‘not make it impracticable
application of the disclaimer include images; wireless telephone to include a disclaimer at all,’’
requirement to internet carriers contractually required technological or physical limitations
communications, including small, consumers to pay a flat fee for a certain may extend to ‘‘one particular aspect of
character- or space-limited internet number of SMS messages that the disclaimer’’ requirements. Advisory
communications such as banner consumers could receive; and content Opinion 2004–10 (Metro Networks) at 3.
advertisements; social media text, video, longer than 160 text characters would be In such circumstances, the Commission
or image advertisements; and directed sent over multiple messages, which concluded that a disclaimer was
search results. The queries center on might not be received consecutively. required but permitted modifications or
whether the communications are Advisory Opinion 2002–09 (Target adaptations of the technologically or
exempt from the disclaimer Wireless) at 2. The Commission physically limited aspects of the
requirements under the impracticable or concluded that the small items communication medium. See id. at 3–4
small items exceptions at 11 CFR exception applied to paid SMS (concluding that reporters reading
110.11(f)(1) or whether they may messages, noting ‘‘that the SMS sponsorship message live from aircraft
incorporate technological modifications technology places similar limits on the or mobile units could read stand by
to satisfy the disclaimer requirements.14 length of a political advertisement as your ad language, rather than candidate
The Commission has applied the those that exist with bumper stickers.’’ who was not physically present).
small items exception to the general Id. at 4. The Commission was first asked to
disclaimer requirements in situations The Commission has not exempted apply the small items exception or
where there are ‘‘technological any disclaimers under the small items impracticable exception to text-limited
limitations on both the size and the exception in the 15 years since it issued internet advertisements in 2010. Google
length of information’’ that can be the Target Wireless advisory opinion. proposed to sell AdWords search
contained based on the small physical The Commission discussed the small keyword advertisements limited to 95
size of the item or an external items exception in Advisory Opinion text characters; the proposed
technological constraint. Advisory 2007–33 (Club for Growth PAC), which advertisements would not include
Opinion 2007–33 (Club for Growth concerned whether an advertiser could disclaimers but would link to a landing
PAC) at 3 (declining to extend small ‘‘dispense with’’ or ‘‘truncate’’ the page (the purchasing political
items exception to spoken disclaimer required disclaimers in 10- and 15- committee’s website) on which users
second television advertisements. The would see a disclaimer. See Advisory
13 But ‘‘when the search results are displayed as Commission concluded that the Opinion 2010–19 (Google). The
a result of the normal function of a search engine, advertisements did not qualify for the Commission concluded that Google’s
and not based on any payment for the display of small items exception. proposed AdWords program ‘‘under the
a result, the search results are not forms of ‘general The related impracticable exception at circumstances described . . . [was] not
public political advertising,’ ’’ and ‘‘where a search
engine returns a website hyperlink in its normal
11 CFR 110.11(f)(1)(ii) exempts from the in violation of the Act or Commission
course, and features the same hyperlink separately disclaimer requirement advertisements regulations,’’ but the advisory opinion
as the result of a paid sponsorship arrangement, the displayed via skywriting, water towers, did not answer whether Google
latter is a ‘public communication’ while the former and wearing apparel, as well as ‘‘other AdWords ads would qualify for the
is not.’’ 2006 internet E&J, 71 FR at 18594 n.28.
14 See Advisory Opinion 2017–12 (Take Back
means of displaying an advertisement of small items or impracticable exception.
Action Fund); Advisory Opinion 2010–19 (Google); such a nature that the inclusion of a Id. at 2.
see also Advisory Opinion Request, Advisory disclaimer would be impracticable.’’ In response to two subsequent
Opinion 2013–18 (Revolution Messaging) (Sept. 11, The list of communications in the rule advisory opinion requests concerning
sradovich on DSK3GMQ082PROD with PROPOSALS
2013); Advisory Opinion Request, Advisory is not exhaustive. The Commission has the possible application of the small
Opinion 2011–09 (Facebook) (Apr. 26, 2011). In
addition to the advisory opinion requests
not, however, applied the impracticable items exception or impracticable
concerning internet advertisements, another exception to a situation beyond those exception to small internet
advisory opinion request asked the Commission to listed in section 110.11(f)(1)(ii). See advertisements, the Commission was
apply the impracticable exception in support of Advisory Opinion 2007–33 (Club for unable to issue advisory opinions by the
truncating a political committee’s name in
disclaimers on its mass emails and on its website.
Growth PAC) (determining that required four affirmative votes. See
See Advisory Opinion 2013–13 (Freshman Hold’em ‘‘physical or technological limitations’’ Advisory Opinion Request, Advisory
JFC et al.) at n.4. in 10- and 15-second television Opinion 2011–09 (Facebook) (Apr. 26,
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![12868 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
2011) (concerning application of to social media networks (Facebook, (Target Wireless) and from the internet
exceptions to zero-to-160 text character Twitter, and LinkedIn), media sharing advertisements the Commission
ads with thumbnail size images); networks (YouTube, Instagram, and considered in promulgating the
Advisory Opinion Request, Advisory Snapchat), streaming applications disclaimer regulations in 2002. As
Opinion 2013–18 (Revolution (Netflix, Hulu), and mobile devices and Facebook explained in a comment on
Messaging) (Sept. 11, 2013) (concerning applications. Other significant this rulemaking, ‘‘[w]hen Facebook
application of exceptions to mobile developments include augmented and submitted its request for an advisory
banner ads). virtual reality 17 and the ‘‘Internet of opinion in 2011, ads on Facebook were
Finally, the Commission considered Things’’: Wearable devices (smart small and had limited space for text. Ad
an advisory opinion request in 2017 watches, smart glasses), home devices formats available on Facebook have
asking whether paid image and video (Amazon Echo), virtual assistants (Siri, expanded dramatically since that
ads on Facebook ‘‘must . . . include all, Alexa), smart TVs and other smart home time.’’ 20 Indeed, many internet
some, or none of the disclaimer appliances.18 One commenter noted, advertisements today include video,
information specified by 52 U.S.C. ‘‘[a]s consumers move toward virtual audio, and graphic components in
30120(a).’’ Advisory Opinion Request at and augmented reality services, addition to the text components
4, Advisory Opinion 2017–12 (Take wearable technology, screenless considered in the Target Wireless
Back Action Fund) (Oct. 31, 2017). The assistants, and other emerging advisory opinion. See, e.g., Advisory
Commission issued an opinion technologies, there is every reason to Opinion Request, Advisory Opinion
concluding that the proposed Facebook predict that advertisers will demand the 2017–12 (Take Back Action Fund) (Oct.
image and video advertisements ‘‘must ability to reach voters and customers on 31, 2017). Moreover, today, commercial
include all of the disclaimer those technologies, and, in turn, new internet advertisements are subject to
information’’ specified by the Act, but, advertising configurations that have not other federal regulatory disclosure
in reaching this conclusion, yet been imagined will be regimes.21 Are the different degrees of
Commissioners relied on two different developed.’’ 19 First Amendment protection afforded
rationales, neither of which garnered the Accordingly, the Commission is political speech as opposed to
required four affirmative votes. reopening the definition of ‘‘public commercial speech relevant to any
Advisory Opinion 2017–12 (Take Back communication’’ in 11 CFR 100.26 for consideration of other agencies’
Action Fund) at 1. the limited purpose of determining disclosure regimes? 22
whether revising the definition to As noted above, the Commission’s
D. Proposed Revision to the Definition include communications placed for a regulations have required disclaimer
of ‘‘Public Communication’’ at 11 CFR fee on another person’s ‘‘internet- information to be included in certain
100.26 enabled device or application,’’ in paid internet advertisements since 2006.
addition to communications placed for Spending on digital political advertising
As discussed above, the Commission grew almost eightfold just between 2012
a fee on another person’s website,
proposed in the Technology NPRM to and 2016, from $159 million to $1.4
would be a clear and technically
revise the definition of ‘‘public
accurate way to refer to the various
communication’’ in 11 CFR 100.26 to 20 Facebook noted that some of its ads ‘‘continue
media through which paid internet
include communications placed for a to be limited in size, with text limitations or
communications can be and will be sent
fee on another person’s ‘‘internet- truncations based on format and placement of the
and received. The Commission invites ad,’’ but that other formats ‘‘allow for additional
enabled device or application,’’ in
comment on this proposal. Is it clear creative flexibility.’’ Facebook, Comment at 3 (Nov.
addition to communications placed for 13, 2017), http://sers.fec.gov/fosers/showpdf.htm?
from the proposed language that both
a fee on another person’s website. docid=358468 (citing Facebook, Facebook Ads
the placement-for-a-fee requirement and Guide, https://www.facebook.com/business/ads-
Disclaimers are required for any ‘‘public
the third-party requirement would guide (last visited Mar. 15, 2018)); see also Fidji
communication’’ that contains express Simo, An Update on Facebook Ads, Facebook
apply to websites, internet-enabled
advocacy or solicits a contribution, and Newsroom (June 6, 2013), https://newsroom.fb.com/
devices, and internet applications? In
for all public communications by news/2013/06/an-update-on-facebook-ads/
this rulemaking, the Commission is not (announcing reconfiguration of ad products);
political committees. The Commission
considering any change to the definition Google, Comment at 3 (noting that the ‘‘types and
wants to make sure that any change to varieties of digital advertisements that political
of ‘‘public communication’’ other than
the definition of ‘‘public advertisers create and place throughout the web has
the terminology that should replace grown exponentially since 2011.’’).
communication’’ in 11 CFR 100.26 is
‘‘website’’ as used in the definition. 21 See CMPLY, Comment at 2 (Nov. 9, 2017),
appropriate as applied in the disclaimer
http://sers.fec.gov/fosers/showpdf.htm?
rule, given the complexities of internet E. Proposed Revision to the Disclaimer docid=358493 (noting that regulatory disclaimer
advertising and the rapid pace of Rules at 11 CFR 110.11 and disclosure requirements ‘‘have been addressed
technological change. in similar contexts for marketing, financial and
Technological developments over the pharmaceutical, without those regulators exempting
Commenters in this rulemaking have past 15 years have rendered much disclosures in social media channels’’).
offered insight into, as one described it, current internet advertising 22 See Buckley, 424 U.S. at 14 (‘‘Discussion of
the ‘‘myriad of options for advertising distinguishable from the non-internet- public issues and debate on the qualifications of
via different media and different candidates are integral to the operation of the
based SMS advertisements to which the system of government established by our
platforms online.’’ 15 Since the Commission applied the small items Constitution. The First Amendment affords the
Commission’s 2006 internet rulemaking, exception in Advisory Opinion 2002–09 broadest protection to such political expression in
sradovich on DSK3GMQ082PROD with PROPOSALS
the focus of internet activity has shifted order ‘to assure (the) unfettered interchange of ideas
from blogging, websites, and listservs 16 for the bringing about of political and social
was at its height, and it seemed as if everyone
changes desired by the people.’ ’’) (citation omitted);
would have his or her own blog.’’).
17 See Computer & Communications Industry
Sorrell v. IMS Health Inc., 564 U.S. 552, 579 (2011)
15 Computer & Communications Industry
(‘‘[G]overnment’s legitimate interest in protecting
Association, Comment at 9 (Nov. 9, 2017), http:// Association, Comment at 9. consumers from ‘commercial harms’ explains ‘why
sers.fec.gov/fosers/showpdf.htm?docid=358503. 18 See Asian Americans Advancing Justice, et al.,
commercial speech can be subject to greater
16 2006 Internet E&J at 18590–91; see also Asian Comment at 7 (also noting potential for political governmental regulation than noncommercial
Americans Advancing Justice, et al., Comment at 5 advertising on ‘‘smart refrigerators’’). speech’ ’’) (citations omitted); Citizens United, 558
(Nov. 13, 2017), http://sers.fec.gov/fosers/ 19 Google, Comment at 4–5 (Nov. 9, 2017), http:// U.S. at 329 (‘‘[P]olitical speech . . . is central to the
showpdf.htm?docid=371144 (‘‘In 2006, blogging sers.fec.gov/fosers/showpdf.htm?docid=358482. meaning and purpose of the First Amendment.’’).
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12869
billion.23 Many commenters expressed proposes to apply the type of disclaimer general public; and ‘‘internet public
the view that the need for internet requirements that now apply to printed communications’’ as defined in
communication disclaimers has grown public communications to text and paragraph (c)(5)(i)(B). Alternative B’s
along with spending on internet graphic public communications proposed paragraph (c)(5)(i)(B) defines
political advertising.24 As one distributed over the internet. Finally, ‘‘internet public communication,’’ in
commenter wrote, ‘‘[T]he increasing Alternative A would allow certain small turn, as any communication placed for
prominence of online election text or graphic public communications a fee on another person’s website or
expenditures makes the failure to distributed over the internet to satisfy internet-enabled device or application.
update campaign finance laws to the disclaimer requirements through an Alternative B’s proposed definition of
adequately cover the internet more ‘‘adapted disclaimer.’’ ‘‘internet communication’’ is intended
dangerous with every cycle.’’ 25 The Alternative B proposes to treat to capture all communications
dramatic growth in political advertising internet communications differently distributed via the internet that are
on the internet highlights the need for from communications in traditional subject to the disclaimer requirement.
regulatory clarity in this area. As one media. Alternative B would require See 11 CFR 110.11(a)(1)–(3). Alternative
commenter noted, ‘‘[w]hatever the disclaimers on internet communications B’s proposed definition of ‘‘internet
challenges of applying the Constitution to be clear and conspicuous and to meet public communication’’ is intended to
to ever-advancing technology, the basic the same general content requirement as capture all online ‘‘public
principles of freedom of speech and the other disclaimers, without imposing the communications,’’ as defined in 11 CFR
press, like the First Amendment’s additional disclaimer requirements that 100.26. Are the proposed definitions
command, do not vary when a new and apply to print, radio, and television sufficiently broad to encompass new
different medium for communication communications. Alternative B also technologies? Are they platform-
appears.’’ 26 Other commenters noted proposes to allow certain paid internet neutral? Should the definition of
that the importance and value of advertisements to satisfy the disclaimer ‘‘internet public communication’’
political advertising disclaimers do not requirements through an adapted include a reference to virtual reality,
vary when new forms of communication disclaimer, depending on the amount of social networking, or internet platforms?
emerge.27 space or time necessary for a clear and Both Alternative A and Alternative B
Thus, the Commission is proposing to conspicuous disclaimer as a percentage propose to define additional terms:
add regulatory provisions clarifying, for of the overall advertisement. In the ‘‘adapted disclaimer,’’ ‘‘technological
various types of paid internet public event that an advertisement could not mechanism,’’ and ‘‘indicator.’’ These
communications, the disclaimers provide a disclaimer even through a terms are discussed below.
required and, in certain circumstances, technological mechanism, Alternative B
2. Disclaimer Requirements for Video
when a paid internet communication proposes to create an exception to the
and Audio Communications Distributed
may employ a modified approach to the disclaimer requirement specifically for
paid internet advertisements. Over the Internet
disclaimer requirements.
As explained below, the Commission The Commission requests comment As described below, Alternative A
offers two proposals. They differ in on all elements of both proposals. The proposes to extend the specific
approach. two proposals need not be considered as requirements for disclaimers on radio
Alternative A proposes to apply the fixed alternatives; commenters are and television communications to
full disclaimer requirements that now encouraged to extract the best elements public communications distributed over
apply to radio and television of each, or suggest improvements or the internet with audio or video
communications to public alternatives, to help the Commission components. Under Alternative A, such
communications distributed over the fashion the best possible rule. audio and video internet public
internet with audio or video communications would also be required
1. Proposed Disclaimer Requirements
components. Alternative A also to satisfy the general requirements that
for Communications Distributed Over
apply to all public communications
the Internet—Organization
23 See Borrell Associates, The Final Analysis:
requiring disclaimers. Alternative B
Political Advertising in 2016, https://www.borrell Both Alternative A and Alternative B likewise proposes to require that radio
associates.com/industry-papers/free-summaries/ propose to add new paragraph (c)(5) to
borrell-2016-political-advertising-analysis-exec- and television communications
sum-jan-2017-detail (subscription required). 11 CFR 110.11. New paragraph (c)(5) in distributed over the internet must
24 See, e.g., Sunlight Foundation, Comment at 1 each proposal would provide specific satisfy the general requirements that
(Nov. 13, 2017), http://sers.fec.gov/fosers/ disclaimer requirements for internet apply to all public communications
showpdf.htm?docid=360854 (‘‘The FEC and communications. This approach would
Congress should act to ensure disclosures and
requiring disclaimers. Alternative B
disclaimers are neither discretionary nor uneven
be consistent with the current structure would not extend any additional
. . . [D]isclaimers and disclosures don’t mean of the disclaimer rule at 11 CFR 110.11, disclaimer requirements to such
renouncing business or chilling speech, any more which categorizes disclaimer communications.
than has been the case for TV or radio stations.’’). requirements by the form of
25 Brennan Center for Justice, Comment at 3 (Nov.
communication on which they appear. a. Alternative A—Proposed 11 CFR
13, 2017), http://sers.fec.gov/fosers/showpdf.htm? 110.11(c)(5)(ii)
docid=358487.
In the first paragraph of Alternative
26 Institute for Free Speech, Comment at 3 (Nov. B’s proposed section (c)(5), Alternative As noted above, the Act and
9, 2017), http://sers.fec.gov/fosers/showpdf.htm? B proposes to define the term ‘‘internet Commission regulations impose specific
docid=358495 (quoting Brown v. Entm’t Merchs. communications.’’ Alternative A does requirements for disclaimers on radio
sradovich on DSK3GMQ082PROD with PROPOSALS
Ass’n, 564 U.S. 786, 790 (2011)). not propose to introduce or define this
27 See, e.g., BMore Indivisible, Comment at 5
and television communications. See 52
(Nov. 9, 2017) http://sers.fec.gov/fosers/
term. Alternative B’s proposed U.S.C. 30120(d); 11 CFR 110.11(c)(3)–
showpdf.htm?docid=358504 (stating that paragraph (c)(5)(i)(A) defines ‘‘internet (4). These requirements vary, depending
‘‘[p]roviding disclaimers o[n] internet and app communications’’ as email of more than on whether a candidate or another
advertising is an extension of the role the FEC has 500 substantially similar person pays for or authorizes the
historically performed for traditional media. Online
media advertising transparency is increasingly
communications when sent by a communication.
essential as Americans turn to the internet as their political committee; internet websites of Radio communications paid for or
primary source of information’’). political committees available to the authorized by a candidate must include
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![12870 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
an audio statement spoken by the advertisements that may be distributed internet with audio but without video,
candidate, identifying the candidate and on radio or television, broadcast, cable, graphic, or text components’’ must
stating that the candidate has approved or satellite in all respects other than the include the statement described in 11
the communication. 11 CFR medium of distribution.30 Moreover, CFR 110.11(c)(3)(i) and (iv) if authorized
110.11(c)(3)(i). Radio communications because the audio and video by a candidate, or the statement
that are not paid for or authorized by a components of internet communications described in 11 CFR 110.11(c)(4) if not
candidate must include an audio with these elements do not contain authorized by a candidate.
statement identifying the person paying ‘‘character’’ restrictions, Alternative A Alternative A’s proposals concerning
for the communication and that that proposes to apply parameters to such audio communications (like Alternative
person ‘‘is responsible for the content of communications akin to the parameters A’s proposals for video, text, and
this advertising.’’ 11 CFR 110.11(c)(4)(i). in which disclaimers must appear on graphic internet communications
Television, broadcast, cable, or radio and television advertisements discussed below) incorporate the term
satellite communications paid for or rather than the conditions that may ‘‘public communication,’’ as it exists or
authorized by a candidate must include constrain ‘‘printed’’ materials on which may be amended, to make clear that
a statement by the candidate, a disclaimer must appear. these provisions neither expand nor
identifying the candidate and stating Accordingly, in Alternative A, the contract the scope of the disclaimer
that the candidate has approved the Commission proposes to provide that rules set forth at 11 CFR 110.11(a). The
communication, either through a full- public communications distributed over proposed reference to ‘‘a public
screen view of the candidate making the the internet with audio or video communication distributed over the
statement or by a voice-over components are treated, for purposes of internet with an audio component but
accompanied by a ‘‘clearly identifiable the disclaimer rules, the same as without video, graphic, or text
photographic or similar image’’ of the ‘‘radio’’ or ‘‘television’’ components’’ (like the reference to the
candidate; these communications must communications. The Commission, in ‘‘internet’’ in Alternative A’s proposals
also include a similar statement ‘‘in Alternative A, proposes to do so in for video, text, and graphic internet
clearly readable writing’’ at the end of proposed paragraph (c)(5)(ii), which communications discussed below) is
the communication. 11 CFR would incorporate the existing intended to encompass advertisements
110.11(c)(3)(ii)–(iii). Television, requirements at 11 CFR 110.11(c)(3) and on websites as well as those distributed
broadcast, cable, or satellite (4) that apply to radio, television, on other internet-enabled or digital
communications that are not paid for or broadcast, cable, and satellite devices or applications; for audio
authorized by a candidate must include communications, because those internet advertisements, these would
the audio statement required by 11 CFR provisions have been in operation for 15 include communications on podcasts,
110.11(c)(4)(i) and conveyed by a ‘‘full- years and are, therefore, familiar to internet radio stations, or app
screen view of a representative’’ of the persons paying for, authorizing, and channels.31 The proposed reference to a
person making the statement or in a distributing communications. Moreover, ‘‘public communication distributed over
voice-over by such person; these by applying the specifications for radio the internet’’ is not intended to alter the
communications must also include a and television communications to audio definition of ‘‘public communication,’’
similar statement ‘‘in clearly readable and video communications distributed as defined in 11 CFR 100.26. Is this
writing’’ at the end of the over the internet, the proposed clear, or should the Commission include
communication. 11 CFR regulations would ensure that internet a cross-reference in the regulatory text?
audio ads could air on radio and Moreover, so as to hew most closely to
110.11(c)(4)(ii)–(iii).28
internet video ads could air on the ‘‘radio’’ provisions that Alternative
As noted above, internet
television without having to satisfy A incorporates, the proposed
advertisements may be in the form of
different disclaimer requirements. amendments regarding ‘‘audio’’ internet
audio or video communications, or may Alternative A’s proposed paragraph
incorporate audio or video elements.29 communications are intended to apply
(c)(5)(ii) would provide that a ‘‘public
Alternative A is based on the premise to those communications with only an
communication distributed over the
that these advertisements are audio component. The Commission
indistinguishable from offline 30 See, e.g., Electronic Privacy Information Center,
proposes to address communications
Comment at 3 (Nov. 3, 2017), http://sers.fec.gov/ with any ‘‘video, graphic, or text
28 The Commission previously extended the
fosers/showpdf.htm?docid=358477 (urging components’’ separately, as explained
‘‘stand by your ad’’ requirements to extension of broadcast communication disclaimer below.
communications transmitted through broadcast, requirements to ‘‘analogous’’ communication
cable, or satellite transmission. See 2002 Disclaimer
Alternative A’s proposed paragraph
online); Rep. John Sarbanes et al., Comment at 2
E&J, 67 FR at 76963 (referring to ‘‘the Commission’s (Nov. 9, 2017), http://sers.fec.gov/fosers/ (c)(5)(ii) would also provide that a
judgment that it would be unsupportable to require showpdf.htm?docid=358505 (noting belief of 18 ‘‘public communication distributed over
a disclaimer for a television communication that Members of Congress that ‘‘it is past time for the the internet with a video component’’
was broadcast, while not requiring a disclaimer for Commission to take action to harmonize disclaimer
the same communication merely because it was
must include the statement described in
requirements for paid internet communications,
carried on cable or satellite’’). regardless of size, on internet platforms with 11 CFR 110.11(c)(3)(ii)–(iv) if authorized
29 See, e.g., 5 Advertising Trends from the 2016 advertisements served on other media, such as by a candidate, or the statement
Presidential Election, Pandora for Brands (Dec. 8, broadcast television or radio’’); accord 2006 Internet described in 11 CFR 110.11(c)(4) if not
2016), http://pandoraforbrands.com/insight/5- E&J, 71 FR at 18609 (‘‘The Commission has authorized by a candidate.
advertising-trends-from-the-2016-presidential- consistently viewed online, internet-based
election (urging readers ‘‘[t]o learn how Pandora can dissemination of news stories, commentaries, and Because this proposal is intended to
sradovich on DSK3GMQ082PROD with PROPOSALS
help amplify your next political campaign’’); Amy editorials to be indistinguishable from offline encompass video public
Schatz, In Hot Pursuit of the Digital Voter, Wall St. television and radio broadcasts, newspapers, communications on websites, apps, and
J., Mar. 23, 2012, www.wsj.com/articles/SB100014 magazines and periodical publications for the streaming video services, Alternative
24052702303812904577299820064048072 (showing purposes of applying the media exemption under
screenshots of 2012 presidential committee the Act’’); but see Software and Information A’s proposed new paragraph (c)(5)(ii)
advertisements on Hulu and noting another Industry Association, Comment at 3 (Nov. 13,
campaign’s purchase of advertisements on Pandora 2017), http://sers.fec.gov/fosers/showpdf.htm? 31 See Software and Information Industry
internet radio); see also Advisory Opinion Request docid=358508 (‘‘Digital advertising is inherently Association, Comment at 3 (‘‘in-app advertising has
at 4, Advisory Opinion 2017–12 (Take Back Action more diverse than a simple transition of similar become one of the fastest-growing mobile ad
Fund) (Oct. 31, 2017). content from print or broadcast television.’’). mediums’’).
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12871
would apply to a video that a political ‘‘billboard’’ ads inside interactive for viewing on phones, tablets, and
committee pays to run as a ‘‘pre-roll’’ gaming systems, or virtual-reality and other mobile devices is distinct from
video on the YouTube app or appear in augmented-reality platforms? 34 content that appears on a desktop or
a promoted YouTube.com search result, The Commission also welcomes laptop computer.’’ 40 The ‘‘ways people
but would not apply to the same video comment on any aspect of these physically interact with content also
posted for free on YouTube.com (since proposals, including the approach vary by medium (e.g., a user can
a communication not placed for a fee towards the exceptions and, more ‘rollover’ content on a desktop screen to
would not be a ‘‘public generally, the advisability of treating see more information, but may not use
communication’’).32 Unlike traditional audio and video internet a mouse or view rollovers on a mobile
television, broadcast, cable, or satellite communications in the manner that device).’’ 41 In addition, internet
ads, however, video advertisements radio, television, broadcast, cable, and advertisements can vary significantly in
placed online may include non-video satellite communications are treated. duration. Internet ads can last for as
components such as separate text, or b. Alternative B—Proposed Paragraph little as ‘‘fifteen seconds . . . or even
graphic fields. The proposed rule (c)(5)(ii) shorter,’’ and entire ad campaigns can
regarding internet video ads thus would last for as little as ‘‘a few days or just
differ from the existing television, The proposals in Alternative B are a few hours for events like flash
broadcast, cable, and satellite provisions premised on the internet as a ‘‘unique sales.’’ 42 Moreover, ‘‘[p]aid advertising
in that the proposed rule would apply medium of . . . communication[]’’ 35 on the internet is constantly evolving in
even if the communication also that poses ‘‘unique challenges with nature.’’ 43
included non-video components. respect to advertising disclosures.’’ 36 Given the rapid pace of technological
This aspect of Alternative A would Although advertisements on the internet change and an inability to forecast the
not explicitly address small audio or may often look or sound like television future, the revisions to the disclaimer
video internet ads. The Commission or radio advertisements, several rules proposed in Alternative B are
proposes to take this approach to hew commenters focused on the differences intended to recognize the differences
Alternative A’s proposed rules on audio between internet advertising and between the internet and traditional
and video ads as closely as possible to advertising on more traditional forms of forms of media like newspapers, radio,
the existing disclaimer provisions for media. As one stated, ‘‘[d]igital and television.44 Thus, Alternative B’s
advertisements transmitted by radio, advertising is inherently more diverse proposed paragraph (c)(5)(ii) would
television, broadcast, cable, and than a simple transition of similar require disclaimers on internet
satellite, which do not, in paragraphs content from print or broadcast communications to meet the general
(c)(3) or (4), account for ‘‘small’’ television. It comes in many different content requirements in 11 CFR
advertisements. Should new technology formats presented across a wide range of 110.11(b) and the general ‘‘clear and
develop that would render the provision technology platforms with screen size conspicuous’’ requirement of 11 CFR
of a disclaimer on a particular type of ranging from large to very small.’’ 37 110.11(c)(1), but not the additional
audio or video internet communication Another commenter noted that, ‘‘[i]n ‘‘stand by your ad’’ requirements for
impracticable, the Commission addition to character-limited ads that radio and television communications.45
anticipates that, as with current TV and just feature text, there are banner ads
radio ads, such circumstances could be with images and text, video ads with 40 Facebook, Comment at 2.
addressed in an advisory opinion text, and audio ads that also feature a 41 Id.
seeking to exempt such a corresponding interactive image or 42 Computer & Communications Industry
video on an app.’’ 38 A third commented Association, Comment at 11.
communication from the disclaimer 43 Public Citizen and Free Speech for People,
requirements.33 on the ‘‘nearly infinite range . . . of Comment at 3; see also American Federation of
The Commission seeks comment as to possible combinations of hardware, Labor and Congress of Industrial Organizations, et
whether these proposals accurately software, add-ons, screen sizes and al., Comment at 2 (Dec. 19, 2016), http://
describe audio and video resolutions, individualized settings, and sers.fec.gov/fosers/showpdf.htm?docid=354341
(‘‘Since the technology of the internet is rapidly
communications over the internet, other factors . . . can affect the display changing, and will likely continue to do so
regardless of the electronic or digital of a political communication’’ on the indefinitely, the Commission’s rules in this area
platforms on which they may be internet.39 ‘‘Content that is optimized must be sufficiently flexible and principle-focused
distributed. For example, does the so they do not become obsolete in short order.’’).
44 See Center for Competitive Politics, Comment
Commission need to clarify or expand 34 See, e.g., Steve Gorman, Obama Buys First
at 3 (Dec. 19, 2016), http://sers.fec.gov/fosers/
the term ‘‘internet’’? Similarly, does the Video Game Campaign Ads, Reuters, Oct. 17, 2008,
https://www.reuters.com/article/us-usa-politics- showpdf.htm?docid=354344; see also Campaign
Commission need to clarify the term videogames/obama-buys-first-video-game- Solutions, Comment at 1 (Nov. 9, 2017), http://
‘‘video’’ to address whether an campaign-ads-idUSTRE49EAGL20081017 (showing sers.fec.gov/fosers/showpdf.htm?docid=365826
(‘‘As new and disruptive technologies change the
advertisement with a GIF is a example of static court-side ad in dynamic
way we interact with technology and consume
communication ‘‘with a video basketball gaming environment).
35 Public Citizen and Free Speech for People,
media, we are sometimes unable to anticipate the
component’’ or one with a ‘‘graphic’’ Comment at 3 (Nov. 1, 2017), http://sers.fec.gov/
format of political advertising.’’); Computer &
component? Similarly, should the Communications Industry Association, Comment at
fosers/showpdf.htm?docid=358485 (expressing the 13 (‘‘Campaigns are constantly trying new methods
Commission expressly include or view that ‘‘disclaimers on all forms of on-line paid to appeal to new voters, and political campaign
exclude from the term ‘‘video’’ static campaign advertising are practical and pose little communication and advertising methods change
inconvenience’’ to sponsors or recipients); see also
(i.e., non-moving) paid digital id. at 1 (referring to ‘‘the unique medium of internet
with every election cycle. As technology develops,
advertisements in dynamic (i.e., new forms of advertising could become available.’’).
sradovich on DSK3GMQ082PROD with PROPOSALS
communications’’ in urging Commission to proceed 45 See Electronic Frontier Foundation, Comment
moving) environments such as with rulemaking).
at 2 (Nov. 9, 2017), http://sers.fec.gov/fosers/
36 Software & Information Industry Association,
showpdf.htm?docid=358498; see also Google,
32 See Google, Comment at 3 (describing Google Comment at 3. Comment at 4 (‘‘unlike broadcast advertising, which
37 Id.
ad products on YouTube). involves an advertiser providing a static
33 See 11 CFR 112.1 (describing advisory opinion 38 Computer & Communications Industry
advertisement to the broadcaster that is the same ad
requests); see also Advisory Opinion 2007–33 (Club Association, Comment at 9. every time it airs, digital ads can be dynamic’’);
for Growth PAC) (considering and rejecting request 39 Coolidge-Reagan Foundation, Comment at 5 Coolidge-Reagan Foundation, Comment at 4 (‘‘Any
to apply small items exception to disclaimers in 10- (Nov. 8, 2017), http://sers.fec.gov/fosers/ internet-related regulations should afford speakers
and 15-second television advertisements). showpdf.htm?docid=358499. Continued
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the disclaimer requirement by an disclaimer on the face of the helicopter). This approach to
‘‘adapted disclaimer,’’ which includes communication. See Advisory Opinion determining when a communication
an abbreviated disclaimer on the face of 2004–10 (Metro Networks) at 3 cannot fit a required disclaimer—rather
the communication in conjunction with (concluding that modifications or than by the particular size of the
a technological mechanism that leads to adaptations to disclaimers may be communication as measured by pixels,
a full disclaimer, rather than by permissible in light of technologically or number of characters, or other
providing a full disclaimer on the face physically limited aspects of a measurement—is intended to minimize
of the communication itself. Some communication). the need for serial revisions to
aspects of both proposals are similar, Accordingly, under Alternative A’s Commission regulations as internet
and some are different, in ways proposed paragraph (c)(5)(i)(A), a technology may evolve. Should existing
highlighted below. ‘‘public communication distributed over or newly developed internet advertising
The discussion in this section the internet with text or graphic opportunities raise questions as to
explains the Commission’s alternative components but without any video whether a particular communication
proposals for when a public component’’ that, ‘‘due to external
may fit a disclaimer, the intent behind
communication distributed over the character or space constraints,’’ cannot
Alternative A is that such questions may
internet may utilize an adapted fit a required disclaimer must include
be addressed in an advisory opinion
disclaimer. Alternative A allows the use an ‘‘adapted disclaimer.’’ This provision
context.56 Would this approach provide
of an adapted disclaimer when a full would explain the circumstances under
disclaimer cannot fit on the face of a which a communication may use sufficient clarity about the application
text or graphic internet communication technological adaptations, describe how of the disclaimer requirement, and the
due to technological constraints. the adaptations must be presented, and disclaimer exceptions, to particular
Alternative B allows the use of an provide examples of the adaptations. communications? Should Alternative A,
adapted disclaimer when a full Under Alternative A, the if adopted, preclude the use of the small
disclaimer would occupy more than a determination of whether a public items and impracticable exceptions for
certain percentage of any internet public communication distributed over the internet public communications?
communication’s available time or internet with text or graphic Does the ‘‘external character or space
space. Under Alternative B, the first tier components but without any video constraints’’ approach provide
of an adapted disclaimer would require component cannot fit a full disclaimer sufficiently clear guidance in light of
the identification of the payor plus an is intended to be an objective one. That existing technology or technological
indicator on the face of the is, the character or space constraints developments that may occur? Is it clear
communication. Alternative B’s second intrinsic to the technological medium what ‘‘cannot fit’’ means in the
tier adapted disclaimer would require are intended to be the relevant proposed rule? Should the Commission
only an indicator on the face of the consideration, not the communication adopt a safe harbor indicating that ads
communication. sponsor’s subjective assessment of the with particular pixel size, character
‘‘difficulty’’ or ‘‘burden’’ of including a limit, or other technological
a. Alternative A—Proposed 11 CFR full disclaimer. As the Supreme Court
110.11(c)(5)(i)(A): When a characteristic may use adapted
has held in the context of broadcast disclaimers? Or do safe harbors tend to
Communication May Use Technological advertisements, the government’s
Adaptations become the de facto legal standard in
informational interest is sufficient to advisory opinions and enforcement
While current text and graphic justify disclaimer requirements even actions? If the Commission were to
internet advertisements are akin in when a speaker claims that the adopt either a bright-line rule or a safe
many respects to analog printed inclusion of a disclaimer ‘‘decreases harbor based on pixel size, character
advertisements, material differences both the quantity and effectiveness of limit, or other technological
between them remain. Most significant the group’s speech.’’ Citizens United,
among these differences are the characteristic, what should those
558 U.S. at 368. Alternative A is built
availability of ‘‘micro’’ sized text and technological limits be? Does the
upon the proposition that the
graphic internet advertisements and the ‘‘external character or space
informational interest relied upon by
interactive capabilities of constraints’’ wording make clear that
the Supreme Court with respect to
advertisements over the internet.55 To business decisions to sell small ads that
broadcast communications is equally
ensure the disclaimer rules remain implicated in the context of text and are not constrained by actual
applicable to new forms of internet graphic public communications technological limitations do not justify
advertising that may arise, while also distributed over the internet. use of an adapted disclaimer? Are there
reducing the need for serial revisions to Alternative A’s reference to ‘‘external circumstances under which requiring a
Commission regulations in light of such character or space constraints’’ is full disclaimer to appear on the face of
developments, Alternative A proposes intended to codify the approach to those an internet ad would cause the speaker
adopting a provision specifically terms as the Commission has discussed to curtail his or her message, or
addressing those text and graphic them in the context of the small items purchase a larger ad, or run the ad on
internet advertisements that cannot, due and impracticable exceptions discussed a different platform? Are there
to external character or space above. See, e.g., Advisory Opinion circumstances under which such a
constraints, practically include a full 2007–33 (Club for Growth PAC) at 3 requirement would discourage the
(contrasting lack of ‘‘physical or speaker from running the ad at all? Is
sradovich on DSK3GMQ082PROD with PROPOSALS
55 See Public Citizen and Free Speech for People,
technological limitations’’ constraining there anything about advertising on the
Comment at 3 (noting that paid online 10- and 15-second television internet that would warrant a different
communications by ‘‘bots’’ ‘‘can be very short and
seamlessly integrated into social conversations. advertisements with ‘‘overall limit’’ and conclusion than courts have reached in
Absent disclaimers, such messages are not likely to ‘‘internal limit’’ on size or length of upholding the Act’s disclaimer
be perceived as paid messages’’); see also Spot-On, SMS ads); Advisory Opinion 2004–10 requirements on political advertising in
Comment at 8 (Nov. 9, 2017), http://sers.fec.gov/ other media?
fosers/showpdf.htm?docid=358480 (noting that ‘‘all
(Metro Networks) at 3 (discussing
[online] ads link to some sort of web page or ‘‘physical and technological
presence’’). limitations’’ of ad read live from 56 See 11 CFR 112.1.
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b. Alternative B—Proposed 11 CFR Should the Commission adopt a audio or video elements. Should the
110.11(c)(5)(ii)–(iv): When a different benchmark for allowing Commission’s disclaimer regulations
Communication May Use Technological political speakers to use available explicitly address such advertisements?
Adaptations technology to provide disclaimers for If so, how? Additionally, how should
In applying the disclaimer rules to their internet public communications? the Commission measure pixels,
internet public communications, Is Alternative B’s proposed approach characters, and seconds in an
Alternative B proposes to allow any sufficiently clear to enable speakers to advertisement that may expand or
form of paid internet advertisement— administer it for themselves rather than change, such as those with scrolling,
including audio and video ads—to seek advisory opinions before engaging frame, carousel, or similar features?
utilize an adapted disclaimer under in political advertising online? Should the Commission incorporate in
certain conditions.57 Alternative B To provide clarity in determining the rule specifications for these internet
proposes to establish a bright-line rule whether a speaker may utilize an advertisement features?
to help speakers determine for adapted disclaimer, proposed paragraph
(c)(5)(ii) in Alternative B also proposes 5. How Adaptations Must Be Presented
themselves when they may utilize an on the Face of the Advertisement
adapted disclaimer.58 The ‘‘bright line’’ objective standards for use in measuring
time and space. For internet public The discussion in this section
is determined by the amount of time or
communications consisting of text, explains the Commission’s alternative
space necessary to provide a full
graphics, or images, Alternative B proposals for what information must be
disclaimer in an internet public
proposes to use characters or pixels. For included on the face of an
communication as a percentage of the
internet public communications advertisement that utilizes an adapted
overall communication.59 Proposed
consisting of audio and video, disclaimer. Both Alternatives A and B
paragraph (c)(5)(iii) in Alternative B
Alternative B proposes to use seconds. propose that an internet public
suggests ‘‘ten percent of the time or
These proposals are based on the communication that provides an
space in an internet communication’’ as
Commission’s experience with such adapted disclaimer must provide some
the appropriate amount. If the amount
communications in the advisory information on the face of the
of time or space necessary for a clear
opinion context.61 The Commission has advertisement, and both alternatives
and conspicuous disclaimer exceeds ten
limited expertise in the technical require such information to be clear and
percent, then the speaker may, under
aspects of internet advertising, however. conspicuous and to provide notice that
Alternative B, provide an adapted
Are the proposed metrics of characters, further disclaimer information is
disclaimer. Is ten percent a reasonable
pixels, and seconds a reasonable way to available through the technological
figure, or is it too high or too low? 60
measure space and time in paid internet mechanism. Alternative A proposes one
57 Neither Alternative proposes to allow political advertisements? If they are, then are method of presenting an adapted
committees to provide disclaimers through a they sufficiently flexible to remain disclaimer, and Alternative B proposes
technological mechanism for their email of more relevant as technology changes, or are two methods, in a tiered approach.
than 500 substantially similar communications or they likely to become obsolete? Should Alternative A’s approach would
their internet websites available to the general require, on the face of the
public.
the rule, instead, specify a percentage of
58 See, e.g., Facebook, Comment at 3 (encouraging space or time without identifying the advertisement, the payor’s name plus an
‘‘a regulatory approach that provides advertisers units of measurement? Would that ‘‘indicator’’ that would give notice that
flexibility to meet their disclaimer obligations in provide sufficient clarity for speakers to further information is available.
innovative ways that take full advantage of the be able to determine for themselves Alternative B proposes a two-tiered
technological advances in communication the
internet makes possible’’); Campaign Legal Center when they can utilize an adapted approach. Under its first tier,
and Democracy 21, Comment at 2 (Nov. 14, 2011), disclaimer? The Commission also seeks Alternative B would require, on the face
http://sers.fec.gov/fosers/showpdf.htm? comment on how it should measure the of the advertisement, identification of
docid=98749 (‘‘Innovation, not exemption, is the time and space that a disclaimer the payor plus an ‘‘indicator.’’ Tier one
answer.’’); American Federation of Labor and
Congress of Industrial Organizations et al., occupies on an internet advertisement of Alternative B differs from Alternative
Comment at 2 (‘‘[R]ules in this area must be . . . containing both text or graphic and A in only one material aspect:
flexible and principle-focused . . . . The challenge Alternative B would allow, in lieu of a
is to achieve both public informational goals and 4 (urging the Commission to ‘‘excuse disclaimers in payor’s full name, for a payor to be
provide sufficient clarity to speakers about the rules any internet advertising product where the number
so there is both informed compliance and
identified by a clearly recognized
of characters needed for a disclaimer would exceed
predictable enforcement’’); Computer & 4% of the characters available in the advertising
identifier such as an abbreviation or
Communications Industry Association, Comment at product, exclusive of those reserved for the ad’s acronym. Under its second tier,
14 (‘‘CCIA cautions against regulatory action that title’’) (internal quotations omitted); Institute for Alternative B would require, on the face
does not allow for flexible solutions’’); Software & Free Speech, Comment at 4 (same); see also
Information Industry Association, Comment at 4
of the advertisement, only an
American Federation of Labor and Congress of
(urging ‘‘a flexible and diverse set of transparency Industrial Organizations, et al., Comment at 2 (‘‘In ‘‘indicator’’; neither the payor’s name
practices that evolve and innovate as digital content no case should the disclaimer rules compel a nor an identifier would be required
offerings and advertising profiles continue to diminution of the speaker’s message itself in order under tier two of Alternative B.
evolve’’). to accommodate the disclaimer; and, that principle
59 Commission regulations also apply a time-
Alternatives A and B use similar
should determine whether or not an internet
space approach to attributing expenditures for advertisement . . . may omit the full, statutorily definitions of ‘‘adapted disclaimer’’ and
publications and broadcast communications to required language, and instead link to a disclaimer ‘‘indicator.’’
more than one candidate. See 11 CFR 106.1(a). as the routine solution.’’). Certain aspects of Federal
60 Some commenters suggested different levels at Communications Commission rules employ a bright a. Alternative A—One Tier: Name Plus
sradovich on DSK3GMQ082PROD with PROPOSALS
which providing a disclaimer becomes unduly line for certain political advertisement sponsorship Indicator
burdensome. See Cause of Action, Comment at 4– statements. See, e.g., 47 CFR 73.1212 (requiring
5 (Nov. 14, 2017), http://sers.fec.gov/fosers/ sponsors of political advertising broadcast via Alternative A’s proposed rule would
showpdf.htm?docid=98750 (explaining that television to be identified with letters that are equal explain that an ‘‘adapted disclaimer’’
California’s disclaimer requirement, ‘‘while to or greater than 4% of the vertical picture height). means ‘‘an abbreviated disclaimer on
minimal, still takes around 15% of a Google 61 See Advisory Opinion 2017–12 (Take Back
the face of a communication in
advertisement,’’ which ‘‘carr[ies] a high cost of Action Fund); Advisory Opinion Request 2013–18
character space, even to the point of overshadowing (Revolution Messaging), Advisory Opinion Request
conjunction with an indicator through
the communication itself’’); Center for Competitive 2011–09 (Facebook); Advisory Opinion 2010–19 which a reader can locate the full
Politics, Comment at (Google). disclaimer required’’ under 11 CFR
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110.11(c)(5)(i). The proposal would communications (such as by a tag that that is presented in a clear and
further clarify that the adapted a communication is ‘‘paid,’’ conspicuous manner, to give the reader,
disclaimer ‘‘must indicate the person or ‘‘sponsored,’’ or ‘‘promoted’’).65 As a observer, or listener adequate notice that
persons who paid for the preliminary matter, the Commission further disclaimer information is
communication in letters of sufficient lacks any enforcement mechanism to available by a technological mechanism.
size to be clearly readable by a recipient ensure compliance with such voluntary An indicator is not clear and
of the communication.’’ efforts, which, by definition, may be conspicuous if it is difficult to see, read,
Alternative A is proposing that modified or abandoned at any time. In or hear, or if the placement is easily
adapted disclaimers include a payor’s addition, tags that identify whether an overlooked.’’ Alternative A adds in
name on the face of the communication advertisement is ‘‘paid,’’ ‘‘sponsored,’’ proposed paragraph (c)(5)(i)(B): ‘‘[a]n
for several reasons. First, the inclusion or ‘‘promoted,’’ do not necessarily indicator may take any form including,
of such information would signal to a identify who paid, sponsored, or but not limited to, words, images,
recipient that the communication is, promoted the advertisement,66 and even sounds, symbols, and icons.’’ What are
indeed, a paid advertisement. This is that limited information may disappear the advantages and disadvantages of this
especially important on the internet when a paid communication is shared approach? What would be the
where paid content can be targeted to a with other social media users. advantages and disadvantages of the
particular user and appear To further help voters evaluate the Commission’s designing and
indistinguishable from the unpaid message, Alternative A proposes to promulgating a single indicator to be
content that user views, unlike require that information about the payor used across all media and platforms?
traditional media like radio or be of a size to ‘‘be clearly readable.’’ As
television, where paid content is with the size requirements for text and b. Alternative B—Two Tiers: Indicator
transmitted to all users in the same graphic internet communications Plus Payor Identification or Indicator-
manner and is usually offset in some described above, Alternative A intends Only
way from editorial content.62 Second, that questions of whether a disclaimer is Alternative B’s proposed paragraph
the inclusion of the payor’s name would of sufficient type size to be clearly (c)(5)(ii) would explain that an ‘‘adapted
allow persons viewing the readable would be ‘‘determined on a disclaimer’’ means ‘‘an abbreviated
communication on any device, even if case-by-case basis, taking into account disclaimer on the face of the
the recipient does not view the full the vantage point from which the communication in conjunction with a
disclaimer, to know ‘‘the person or communication is intended to be seen technological mechanism by which a
group who is speaking’’ and could, or read as well as the actual size of the reader can locate the disclaimer
therefore, assist voters in identifying the disclaimer text,’’ as they are under the satisfying the general requirements’’ of
source of advertising so they are better current rule. 2002 Disclaimer E&J, 67 FR 11 CFR 110.11(b) and (c)(1).
‘‘able to evaluate the arguments to 76965. Would a case-by-case ‘‘clearly Alternative B proposes a two-tiered
which they are being subjected.’’ readable’’ standard provide sufficient approach to the information that must
Citizens United, 558 U.S. at 368 guidance to advertisers regarding the be presented on the face of an internet
(internal quotations and alterations necessary size of an adapted disclaimer? public communication utilizing an
removed). Alternative A is based on the As a component of adapted adapted disclaimer. Under Alternative
premise that a technological mechanism disclaimers, Alternative A proposes to B’s first tier, in proposed paragraph
to reach a full disclaimer provided by require the use of an ‘‘indicator,’’ which (c)(5)(iii), an adapted disclaimer
shortened URL and without the payor’s it defines in proposed paragraph consists of an abbreviated disclaimer
name would not provide, on the face of (c)(5)(i)(B) as ‘‘any visible or audible that includes an ‘‘indicator’’ and
the communication, the same element of an internet communication identifies the payor by full name or by
informational value.63 Third, some ‘‘a clearly recognized abbreviation,
the source of political advertisements. Legislative acronym, or other unique identifier by
commenters suggested that the action is uncertain and may be incomplete. The
Commission and the public not rely on FEC must act to fully regulate internet political which the payor is commonly known,’’
social media platforms’ voluntary advertising disclaimers’’); Center for American in lieu of the full name. Under
efforts 64 to identify paid Progress, Comment at 2–3 (Nov. 9, 2017) http:// Alternative B’s second tier, in proposed
sers.fec.gov/fosers/showpdf.htm?docid=358489
(stating that ‘‘To some extent, these companies have
paragraph (c)(5)(iv) described below, an
62 See, e.g., Center for Digital Democracy,
already taken steps toward proving more adapted disclaimer consists of an
Comment at 2 (Nov. 9, 2017), http://sers.fec.gov/ transparency for online political ads. While we abbreviated disclaimer that need
fosers/showpdf.htm?docid=358502 (noting that commend those efforts, they are no substitute for include only an ‘‘indicator.’’ Under both
‘‘native advertising’’ online ‘‘purposefully blurs the action by the FEC. Such efforts vary from one
distinctions between editorial content and company to another, with no consistent mechanism
tiers—indicator-plus-payor
advertising’’); Twitter, Comment at 2 (Nov. 9, 2017), for enforcement and no meaningful guidance for identification and indicator-only—the
http://sers.fec.gov/fosers/showpdf.htm? new entrants. Clear and consistent rules should be internet public communication would
docid=358496 (noting that, absent paid ‘‘Promoted’’ in place for all technology companies, to ensure have to provide a full disclaimer
tag, Promoted Tweets ‘‘look and act just like regular adequate transparency both now and in the
Tweets’’); Electronic Privacy Information Center, future’’). through a technological mechanism,
Comment at 4 (‘‘Online platforms use algorithms to 65 See, e.g., Twitter, Comment at 2 (describing described below.67
target ads with a level of granularity that has not ‘‘promoted’’ tweet label); Rob Goldman, Update on Under the first tier, described in
been possible before’’). Our Advertising Transparency and Authenticity proposed paragraph (c)(5)(iii), an
63 See Electronic Privacy Information Center, Efforts, Facebook Newsroom (Oct. 27, 2017),
Comment at 3 (explaining that ‘‘URL shortening https://newsroom.fb.com/news/2017/10/update-on-
advertisement could identify the payor
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tools such as goo.gl and bit.ly can take lengthy our-advertising-transparency-andauthenticity- by the payor’s full name or by a clearly
hyperlinks and reduce them to just a few characters. efforts/ (indicating that, starting in summer 2018,
This would allow an ad with character limitations Facebook ‘‘advertisers will have to include a 67 Given that Alternative B would allow payors to
to provide a URL that linked to a full disclaimer.’’). disclosure in their election-related ads, which use a technological mechanism to provide
64 See, e.g., BMore Indivisible, Comment at 5 reads: ‘Paid for by.’ ’’). disclaimers for any form of paid public
(stating that ‘‘Given the history of technology and 66 See Electronic Frontier Foundation, Comment communication on the internet, including audio
social media companies—and their nearly total at 4 (noting current ability to ‘‘publish anonymous and video communcations, it proposes to require
reliance on advertising for corporate profits — the election related advertisements on Facebook via an the payor’s name to be ‘‘clear and conspicuous’’
American people and the FEC cannot rely on them advertising account linked to a pseudonymous rather than ‘‘clearly readable,’’ as under Alternative
to regulate themselves when it comes to disclosing Facebook page’’). A.
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12877
recognized abbreviation, acronym, or and conspicuous tier-one adapted disclaimer.70 Would this proposal
other unique identifier by which the disclaimer under proposed paragraph promote disclosure and transparency by
payor is commonly known. Thus, for (c)(5)(iii) would exceed a certain addressing extremely space- or time-
example, if the Democratic Senatorial percentage of the overall constrained paid internet ads? Does an
Campaign Committee were to pay for a communication, and provide the full indicator alone provide sufficient
Facebook advertisement, the disclaimer through a technological guidance that the full disclaimer is
advertisement could state that it was mechanism. Under Alternative B, the available through a technological
paid for by the DSCC, @DSCC, or term ‘‘indicator’’ has the same meaning mechanism? Would this proposal help
DSCC.org, while providing the under both the first and second tiers, as to ensure that voters have easy access to
committee’s full name in a disclaimer described further below. Again, the full statutorily prescribed disclaimer
through a technological mechanism, as Alternative B’s second tier proposes to for more online communications, while
described below. This flexibility is use ten percent as the determining providing greater flexibility to political
intended to address internet public figure and to measure ‘‘time or space’’ advertisers on the internet? Or would an
communications that might not in terms of characters, pixels, and indicator that takes the form of a
otherwise conveniently or practicably seconds. Is ten percent a reasonable hyperlink, for example, be prone to
accommodate the payor’s name, such as figure, or is it too high or too low? Are manipulation? Should the Commission
character-limited ads, or where the characters, pixels, and seconds
require an indicator to take a specific
payor’s name is unusually lengthy, or reasonable metrics? How should
form or to include specific language?
where the payor wishes to use the ad to characters, pixels, or seconds be
promote its social media brand.68 determined when an internet public In their comments on the ANPRM,
This proposal is modeled after a communication combines text, graphic, Google and Twitter said that they intend
longstanding provision in the and video elements, such as an ad with to require each political advertisement
Commission’s regulations that allows a text fields surrounding a video or a GIF? on their platforms to bear a special
separate segregated fund to include in Alternative B’s proposed paragraph designation that will allow viewers to
its name a ‘‘clearly recognized (c)(5)(ii)(B) clarifies the ‘‘abbreviated obtain additional information about the
abbreviation or acronym by which [its] disclaimer’’ information aspect of the sponsor of the ad.71 Should the
connected organization is commonly ‘‘adapted disclaimer’’ definition in Commission allow sponsors of
known.’’ 11 CFR 102.14(c). The proposed paragraph (c)(5)(ii). It would extremely space- or time-limited paid
Commission seeks comment on whether require the abbreviated disclaimer on internet advertisements to use platform-
the proposal provides sufficient clarity the face of a communication to be provided designations as their
for a payor to determine whether there presented in a clear and conspicuous indicators, if such disclaimers meet all
is a ‘‘clearly recognized’’ abbreviation, manner. An abbreviated disclaimer of the requirements for providing a
acronym, or other unique identifier by would not be clear and conspicuous if disclaimer through a technological
which the payor is ‘‘commonly known.’’ it is difficult to see, read, or hear, or if mechanism? Or do the limitations
Should the Commission prescribe the placement is easily overlooked. inherent in platform-provided
standards for use in making that Proposed paragraph (c)(5)(i)(D)
designations, discussed above, argue
determination? Is there a risk of provides that an ‘‘indicator’’ is any
against doing so? In any event, under
confusion if two groups are commonly visible or audible element of an internet
Alternative B, the responsibility for
known by the same acronym, or does public communication that gives notice
ensuring that the disclaimer provided
to persons reading, observing, or
ready access to a full disclaimer (no through a technological mechanism
listening to the communication that
more than one technological step away) complies with the disclaimer
they may read, observe, or listen to a
help to alleviate any potential for requirement would remain with the
disclaimer satisfying the general
confusion? Does the potential for person paying for the communication,
requirements of 11 CFR 110.11(b) and
confusion increase if the person viewing and would not fall on the internet
(c)(1) through a technological
or listening to a political advertisement platform hosting it.
mechanism.69 Under Alternative B, an
is unfamiliar with the person or group
indicator may take any form, including 6. Adaptations Utilizing One-Step
sponsoring the ad? If so, does ready
words (such as ‘‘paid for by’’ or Technological Mechanism
access to the full disclaimer through a
‘‘sponsored by’’), a website URL, or an
technological mechanism help to Alternatives A and B both propose
image, sound, symbol, or icon. For
alleviate any such risk? example, under Alternative B a severely that a technological mechanism used to
Under the second tier, described in
character-limited public internet provide access to a full disclaimer must
proposed paragraph (c)(5)(iv),
communication could include an do so within one step.
Alternative B would allow a speaker to
indicator stating ‘‘Paid for by,’’ ‘‘Paid
include only an ‘‘indicator’’ on the face
by,’’ ‘‘Sponsored by,’’ ‘‘Ad by,’’ or 70 This provision is similar to the existing
of an internet public communication, if
providing the URL to the payor’s regulatory allowance for disclaimers on printed
the space or time necessary for a clear communications, which generally provides that
website, if a reader could move his or
‘‘[t]he disclaimer need not appear on the front or
68 See, e.g., Advisory Opinion Request, Advisory
her cursor over the words or link to a cover page of the communication as long as it
Opinion 2010–19 (Google) (Aug. 5, 2010) (asking to landing page and see the full appears within the communication.’’ 11 CFR
include URL to payor’s website in lieu of disclaimer 110.11(c)(2)(iv).
in severely character-limited internet ads, with 71 Google, Comment at 1, 6–7, 11–12 (explaining
sradovich on DSK3GMQ082PROD with PROPOSALS
69 The proposed reference to the person
disclaimer on landing page); Advisory Opinion ‘‘observing’’ an internet communication derives ‘‘Why This Ad’’ icon for election-related
Request, Advisory Opinion 2013–13 (Freshman from the existing requirement that ‘‘[a] disclaimer advertisements on Search, YouTube, and Display);
Hold’Em JFC et al.) (Aug. 21, 2013) (asking to use . . . must be presented in a clear and conspicuous Twitter, Comment at 4 (explaining ‘‘political ad
shortened form of name and URL in disclaimer, manner, to give the reader, observer, or listener indicator’’ for ‘‘electioneering ads’’ on Twitter); see
where joint fundraising committee-payor’s name adequate notice of the identify of the person or also Facebook, Comment at 3 (‘‘[A]llowing ads to
included names of 18 participating committees); political committee that paid for and . . . include an icon or other obvious indicator that
Advisory Opinion Request, Advisory Opinion authorized the communication.’’ 11 CFR more information about an ad is available via quick
2017–05 (Great America PAC, et al.) (June 2, 2017) 110.11(c)(1) (emphasis added). As used in navigation (like a single click) would give clear
(asking to use payor’s Twitter handle in Alternative B, it is intended to be synonymous with guidance on how to include disclaimers in new
disclaimers). ‘‘viewer.’’ technologies as they are developed.’’).
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![12878 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
a. Alternative A—Associated With b. Alternative B—Associated With technological mechanisms the
‘‘Indicator’’ in Advertisement Adapted Disclaimer Commission has seen utilized by
Alternative B’s proposed paragraph advisory opinion requestors and other
Because the provision of an ad payor’s federal and state agency disclosure
name is necessary but not always (c)(5)(i)(C) defines the term
‘‘technological mechanism’’ as any use regulations.75 The list is intended to
sufficient to meet the Act’s disclaimer provide guidance while retaining
of technology that enables the person
requirement,72 Alternative A requires a flexibility for advertisers to utilize other
reading, observing, or listening to an
mechanism to provide the additional existing technological mechanisms or
internet public communication to read,
required information. Alternative A’s new mechanisms that may arise in the
observe, or listen to a disclaimer
proposed paragraph (c)(5)(i)(A) would satisfying the general requirements of future.
specify that the technological paragraphs (b) and (c)(1) without
mechanism used to provide the full Should the Commission allow
navigating more than one step away advertisers to include different parts of
disclaimer must be ‘‘associated with’’ from the internet public
the indicator and allow a recipient of a full disclaimer in different frames or
communication, and is associated with components of text or graphic internet
the communication to locate the full an adapted disclaimer as provided in
disclaimer ‘‘by navigating no more than advertisements (such as a disclaimer
proposed 11 CFR 110.11(c)(5)(ii). Thus, split between two character-limited text
one step away from the adapted by definition, the technological
disclaimer.’’ This means that the fields, one above an image and one
mechanism must be ‘‘associated with’’
additional technological step should be below)? Several commenters noted the
the abbreviated disclaimer on the face of
apparent in the context of the importance of ensuring that disclaimers
the internet communication itself, and
communication and the disclaimer, must not require the person reading, are visible across devices or platforms
once reached, should be ‘‘clear and observing, or listening to an internet and expressed concern that some
conspicuous’’ and otherwise satisfy the communication to navigate more than technological mechanisms may not be
full requirements of 11 CFR 110.11(c). one step away to read, observe, or listen functional across all devices or
Moreover, this proposed requirement is to the disclaimer. The additional platforms.76 Should the Commission
intended to notify a recipient of the technological step under Alternative B incorporate into the rule a requirement
communication that further information should be apparent in the context of the that any technological mechanism used
about or from the payor is available and communication, and the disclaimer must be accessible by all recipients of
that the recipient may find that provided through alternative technical that communication, including those
information with minimal investment of means must be ‘‘clear and conspicuous’’
additional effort.73 Thus, for example, a under 11 CFR 110.11(c)(1). Should a 75 See, e.g., Advisory Opinion 2010–19 (Google)
technological mechanism be deemed to (addressing proposal to provide disclaimer by
hyperlink underlying the ‘‘paid for’’ hyperlink to landing page containing full
language would be ‘‘associated with’’ be ‘‘associated with’’ the abbreviated disclaimer); Fed. Trade Comm’n, .com Disclosures:
the full disclaimer at the landing page disclaimer on the face of an internet How to Make Effective Disclosures in Digital
located one step away from the public communication if the person Advertising 10 (2013), https://www.ftc.gov/system/
reading, observing, or listening to the files/documents/plain-language/bus41-dot-com-
communication and to which the link disclosures-information-about-online-
leads. One commenter suggested that communication can read, observe, or advertising.pdf (permitting disclosure to ‘‘be
‘‘the Commission should allow people listen to a disclaimer by clicking provided by using a hyperlink’’); id. at 12 (allowing
and entities subject to disclaimer anywhere on the communication? If a ‘‘mouse-over’’ display if effective on mobile
person can access the full disclaimer by devices); id. at 13–14 (allowing disclosures by pop
requirements to satisfy them through ups and interstitial pages); id. at 16 (allowing
clicking anywhere on a communication, scrolling text or rotating panels in space-
any reasonable technological means’’
should the abbreviated disclaimer even constrained banner ad to present required
rather than through a particular
be required on the face of the disclosures); Cal. Code Regs. tit. 2, sec.
technology.74 Should the Commission communication? Are there 18450.4(b)(3)(G)(1) (permitting ‘‘link to a web page
explicitly include a requirement that a circumstances where an adapted
with disclosure information’’); id. at (b)(3)(G)(1)
technological mechanism be (allowing disclaimer ‘‘displayed via rollover
disclaimer would be preferable to a full display’’); Md. Code. Regs. 33.13.07(D)(2)(b)(i)
‘‘reasonable’’ or can the reasonableness disclaimer, even if the full disclaimer (permitting ‘‘viewer to click’’ and be ‘‘taken to a
requirement for such mechanisms be would take up ten percent or less of the landing or home page’’ with disclaimer); see also
assumed? First Gen. Counsel’s Report at 5 n.19, MUR 6911
time or space in the internet public (Frankel) (noting respondent committee’s claim that
communication? ‘‘its Twitter profile contains a link to the
72 See, e.g., 52 U.S.C. 30120(a) (requiring payment
campaign’s website that contains a disclaimer’’);
and authorization statements and, if not authorized 7. Examples of Technological Interactive Advertising Bureau, Comment at 3 (Nov.
by a candidate, a payor’s street address, telephone Mechanisms in Adapted Disclaimers 10, 2017), http://sers.fec.gov/fosers/showpdf.htm?
number, or ‘‘World Wide Web’’ address); Hearing docid=358484 (advocating a rule allowing for
Before the Subcomm. on Privileges and Elections of Alternatives A and B provide similar flexibility in disclaimer provision, such as by click
the S. Comm. on Rules and Admin., 94th Cong. 141 lists of possible technological through links); CMPLY, Comment at 2–3 and 9–11
(1976) (testimony of Antonin Scalia, Asst. Att’y mechanisms. (describing several ‘‘short-form’’ disclosure
Gen’l) (testifying, in response to question about solutions within character-limited social media
proposal to amend Act to require payor name and a. Alternative A—Illustrative List of platforms).
authorization statement, that ‘‘[t]he principle seems 76 See, e.g., Asian Americans Advancing Justice,
to me a good one’’ that ‘‘seems to me like a sensible
Mechanisms
et al., Comment at 9–11 (presenting statistics
provision’’ to minimize risk that ‘‘candidate’s Alternative A provides a list of showing that persons of color are more likely to
sradovich on DSK3GMQ082PROD with PROPOSALS
campaign can be run by somebody other than the consume information on internet than television
candidate’’).
examples of ‘‘technological mechanisms
and are more likely to do so via mobile devices than
73 See, e.g., MCCI, Comment at 2 (Nov. 12, 2017), for the provision of the full disclaimer’’ display (desktop) platforms); CMPLY, Comment at
http://sers.fec.gov/fosers/showpdf.htm? including, but not limited to, ‘‘hover- 2 (noting that ‘‘ ‘roll over’ or ‘hover’ disclosures . . .
docid=360063 (asking, rhetorically, ‘‘Who doesn’t over mechanisms, pop-up screens, have significant limitations in social media
know how to click a link in an ad?’’ in arguing for scrolling text, rotating panels, or platforms and . . . do not function within the user
short word like ‘‘ad’’ or ‘‘paid’’ with hyperlink by interfaces of mobile devices, where the majority of
which readers ‘‘will ultimately be able to track hyperlinks to a landing page with the social media engagement takes place and where we
material back to its source’’). full disclaimer.’’ This illustrative list have seen the largest increases in internet and
74 Coolidge-Reagan Foundation, Comment at 4. incorporates examples of one-step broadband usage’’).
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![12880 Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules
recordkeeping, reporting, or financial communication satisfies the size (c)(4) of this section if not authorized by
obligations on political committees or requirement of this paragraph. A a candidate. A public communication
commercial vendors. The Commission disclaimer under this paragraph must be distributed over the internet with a
therefore certifies that the proposed displayed with a reasonable degree of video component must include the
rules, if adopted, would not have a color contrast between the background statement described in paragraphs
significant economic impact on a and the text of the disclaimer. A (c)(3)(ii)–(iv) of this section if
substantial number of small entities. disclaimer satisfies the color contrast authorized by a candidate, or the
requirement of this paragraph if it is statement described in paragraph (c)(4)
List of Subjects displayed in black text on a white of this section if not authorized by a
11 CFR Part 100 background or if the degree of color candidate.
Elections. contrast between the background and * * * * *
the text of the disclaimer is no less than
11 CFR Part 110 the color contrast between the Alternative B
Campaign funds, Political committees background and the largest text used in ■ 5. Amend § 110.11 as follows:
and parties. the communication. ■ a. Add paragraph (c)(5).
(A) A public communication ■ b. Add paragraph (f)(1)(iv).
For the reasons set out in the
distributed over the internet with text or The additions read as follows:
preamble, the Federal Election
graphic components but without any
Commission proposes to amend 11 CFR § 110.11 Communications; advertising;
video component that, due to external
parts 100 and 110, as follows: disclaimers (52 U.S.C. 30120).
character or space constraints, cannot fit
a required disclaimer must include an * * * * *
PART 100—SCOPE AND DEFINITIONS
adapted disclaimer. For purposes of this (c) * * *
(52 U.S.C. 30101) (5) Specific requirements for internet
paragraph, an adapted disclaimer means
■ 1. The authority citation for part 100 an abbreviated disclaimer on the face of communications. (i) For purposes of this
continues to read as follows: a communication in conjunction with section:
an indicator through which a reader can (A) The term internet communication
Authority: 52 U.S.C. 30101, 30104, means electronic mail of more than 500
30111(a)(8), and 30114(c). locate the full disclaimer required by
paragraph (c)(5)(i). The adapted substantially similar communications
§ 100.26 [Amended] disclaimer must indicate the person or when sent by a political committee; all
■ 2. Amend § 100.26 by removing persons who paid for the internet websites of political committees
‘‘website’’ and adding in its place communication in letters of sufficient available to the general public; and any
‘‘website or internet-enabled device or size to be clearly readable by a recipient internet public communication as
application’’. of the communication. The defined in paragraph (c)(5)(i)(B) of this
technological mechanism in an adapted section;
PART 110—CONTRIBUTION AND disclaimer must be associated with the (B) The term internet public
EXPENDITURE LIMITATIONS AND indicator and must allow a recipient of communication means any
PROHIBITIONS the communication to locate the full communication placed for a fee on
disclaimer by navigating no more than another person’s website or internet-
■ 3. The authority citation for part 110 enabled device or application;
continues to read as follows: one step away from the adapted
disclaimer. Technological mechanisms (C) The term technological
Authority: 52 U.S.C. 30101(8), 30101(9), for the provision of the full disclaimer mechanism refers to any use of
30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, include, but are not limited to, hover- technology that enables the person
30118, 30120, 30121, 30122, 30123, 30124, reading, observing, or listening to an
and 36 U.S.C. 510.
over mechanisms, pop-up screens,
scrolling text, rotating panels, or internet public communication to read,
Alternative A hyperlinks to a landing page with the observe, or listen to a disclaimer
full disclaimer. satisfying the general requirements of
■ 4. In § 110.11, add paragraph (c)(5) to
(B) As used in paragraph (c)(5), an paragraphs (b) and (c)(1) of this section
read as follows:
indicator is any visible or audible without navigating more than one step
§ 110.11 Communications; advertising; element of an internet communication away from the internet public
disclaimers (52 U.S.C. 30120). that is presented in a clear and communication, and is associated with
* * * * * conspicuous manner to give the reader, an adapted disclaimer as provided in
(c) * * * observer, or listener adequate notice that paragraph (c)(5)(ii) of this section. A
(5) Specific requirements for internet further disclaimer information is technological mechanism may take any
communications. In addition to the available by a technological mechanism. form including, but not limited to,
general requirements of paragraphs (b) An indicator is not clear and hover-over; mouse-over; voice-over; roll-
and (c)(1) of this section, a disclaimer conspicuous if it is difficult to see, read, over; pop-up screen; scrolling text;
required by paragraph (a) of this section or hear, or if the placement is easily rotating panels; and click-through or
that appears on a public communication overlooked. An indicator may take any hyperlink to a landing page; and
distributed over the internet must form including, but not limited to, (D) The term indicator refers to any
comply with the following: words, images, sounds, symbols, and visible or audible element of an internet
(i) A public communication icons. public communication that gives notice
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distributed over the internet with text or (ii) A public communication to persons reading, observing, or
graphic components but without any distributed over the internet with an listening to the internet public
video component must contain a audio component but without video, communication that they may read,
disclaimer that is of sufficient type size graphic, or text components must observe, or listen to a disclaimer
to be clearly readable by the recipient of include the statement described in satisfying the general requirements of
the communication. A disclaimer that paragraphs (c)(3)(i) and (iv) of this paragraphs (b) and (c)(1) of this section
appears in letters at least as large as the section if authorized by a candidate, or through a technological mechanism. An
majority of the other text in the the statement described in paragraph indicator may take any form including,
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![Federal Register / Vol. 83, No. 58 / Monday, March 26, 2018 / Proposed Rules 12881
but not limited to, words such as ‘‘Paid communication must include an • Hand Delivery/Courier: Comment
for by,’’ ‘‘Paid by,’’ ‘‘Sponsored by,’’ or indicator. Intake, Consumer Financial Protection
‘‘Ad by’’; website URL; image; sound; * * * * * Bureau, 1700 G Street NW, Washington,
symbol; and icon. (f) Exceptions. DC 20552.
(ii) Every internet communication for (1) * * * Instructions: The Bureau encourages
which a disclaimer is required by (iv) Any internet public the early submission of comments. All
paragraph (a) of this section must satisfy communication that cannot provide a submissions must include the document
the general requirements of paragraphs disclaimer on the face of the internet title and docket number. Please note the
(b) and (c)(1) of this section, except an public communication itself nor an number of the topic on which you are
internet public communication may adapted disclaimer as provided in commenting at the top of each response
include an adapted disclaimer under the paragraph (c)(5) of this section, such as (you do not need to address all topics).
circumstances described in paragraphs a static banner ad on a small internet- Because paper mail in the Washington,
(c)(5)(iii)–(c)(5)(iv) of this section. For enabled device that cannot link to a DC area and at the Bureau is subject to
purposes of this paragraph, an adapted landing page of the person paying for delay, commenters are encouraged to
disclaimer means an abbreviated the internet public communication. The submit comments electronically. In
disclaimer on the face of the provisions of paragraph (f)(1)(i)–(iii) of general, all comments received will be
communication in conjunction with a this section do not apply to internet posted without change to http://
technological mechanism by which a public communications. www.regulations.gov. In addition,
reader can locate the disclaimer * * * * * comments will be available for public
satisfying the general requirements of inspection and copying at 1700 G Street
paragraphs (b) and (c)(1) of this section. On behalf of the Commission,
Dated: March 20, 2018.
NW, Washington, DC 20552, on official
Any internet public communication that business days between the hours of 10
includes an adapted disclaimer must Caroline C. Hunter,
a.m. and 5 p.m. eastern time. You can
comply with the following: Chair, Federal Election Commission.
make an appointment to inspect the
(A) The internet public [FR Doc. 2018–06010 Filed 3–23–18; 8:45 am] documents by telephoning 202–435–
communication must provide a BILLING CODE 6715–01–P 7275.
disclaimer satisfying the general
requirements of paragraphs (b) and All submissions in response to this
(c)(1) of this section through a request for information, including
BUREAU OF CONSUMER FINANCIAL attachments and other supporting
technological mechanism as described PROTECTION
in paragraph (c)(5)(i)(C) of this section. materials, will become part of the public
(B) The internet public record and subject to public disclosure.
12 CFR Chapter X
communication must present the Proprietary information or sensitive
abbreviated disclaimer on the face of the [Docket No. CFPB–2018–0012] personal information, such as account
communication in a clear and numbers or Social Security numbers, or
Request for Information Regarding the names of other individuals, should not
conspicuous manner. An abbreviated Bureau’s Inherited Regulations and
disclaimer is not clear and conspicuous be included. Submissions will not be
Inherited Rulemaking Authorities edited to remove any identifying or
if it is difficult to read, hear, or observe,
or if the placement is easily overlooked. AGENCY: Bureau of Consumer Financial contact information.
(C) For an internet public Protection. FOR FURTHER INFORMATION CONTACT:
communication consisting of text, ACTION: Request for information. Thomas L. Devlin and Kristin
graphics, or images, time or space must McPartland, Senior Counsels, Office of
be measured in [characters or pixels]. SUMMARY: The Bureau of Consumer Regulations, at 202–435–7700. If you
(D) For an internet public Financial Protection (Bureau) is seeking require this document in an alternative
communication consisting of audio or comments and information from electronic format, please contact CFPB_
video, time or space must be measured interested parties to assist the Bureau in Accessibility@cfpb.gov.
in [seconds]. considering whether, consistent with its
SUPPLEMENTARY INFORMATION: Congress
(iii) If the time or space required for statutory authority to prescribe rules
established the Bureau in the Dodd-
a disclaimer satisfying the general pursuant to the Federal consumer
Frank Wall Street Reform and Consumer
requirements of paragraphs (b) and financial laws, the Bureau should
Protection Act (Dodd-Frank Act) and
(c)(1) of this section would exceed [ten] amend the regulations or exercise the
therein set forth the Bureau’s purpose,
percent of the time or space in an rulemaking authorities that it inherited
objectives, and functions.1 Pursuant to
internet public communication, then the from certain other Federal agencies.
that Act, on July 21, 2011, the
abbreviated disclaimer on the face of the DATES: Comments must be received by
‘‘consumer financial protection
communication must include an June 25, 2018. functions’’ previously vested in certain
indicator and identify the person who ADDRESSES: You may submit responsive other Federal agencies transferred to the
paid for the internet public information and other comments,
communication by the person’s full identified by Docket No. CFPB–2018– 1 Public Law 111–203, 124 Stat. 2081 (2010)
name or by a clearly recognized 0012, by any of the following methods: (codified at 15 U.S.C. 1693a et seq.). Section 1021
abbreviation, acronym, or other unique • Electronic: Go to http:// of the Dodd-Frank Act states that the Bureau shall
identifier by which the person is www.regulations.gov. Follow the seek to implement and, where applicable, enforce
sradovich on DSK3GMQ082PROD with PROPOSALS
commonly known. Federal consumer financial law consistently for the
instructions for submitting comments. purpose of ensuring that all consumers have access
(iv) If the time or space required for • Email: FederalRegisterComments@ to markets for consumer financial products and
an abbreviated disclaimer under cfpb.gov. Include Docket No. CFPB– services and that markets for consumer financial
paragraph (c)(5)(iii) of this section 2018–0012 in the subject line of the products and services are fair, transparent, and
would exceed [ten] percent of the time message. competitive. Section 1021 also authorized the
Bureau to exercise its authorities under Federal
or space in the internet public • Mail: Comment Intake, Consumer consumer financial law for the purposes of ensuring
communication, then the abbreviated Financial Protection Bureau, 1700 G that, with respect to consumer financial products
disclaimer on the face of the Street NW, Washington, DC 20552. and services, five specific objectives are met.
VerDate Sep<11>2014 18:14 Mar 23, 2018 Jkt 244001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\26MRP1.SGM 26MRP1](https://thefederalregister.org/doc/83_FR_12922/page/18.svg)
Document Created: 2018-03-24 01:00:09
Document Modified: 2018-03-24 01:00:09
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Notice of proposed rulemaking. | |
| Dates | Comments must be received on or before May 25, 2018. The Commission will hold a public hearing on this notice on June 27, 2018. Anyone wishing to testify at such a hearing must file timely written comments and must include in the written comments a request to testify. | |
| Contact | Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, (202) 694-1650 or (800) 424-9530. | |
| FR Citation | 83 FR 12864 | |
| CFR Citation | 11
CFR
100 11 CFR 110 | |
| CFR Associated | Elections; Campaign Funds and Political Committees and Parties |
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