Proposed Rule2021-17754
Revisions to Political Programming and Recordkeeping Rules
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 1, 2021
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Commission proposes to update its political programming and recordkeeping rules for broadcast licensees, cable television system operators, Direct Broadcast Satellite (DBS) service providers, and Satellite Digital Audio Radio Service (SDARS) licensees. The Commission proposes to update its political programming rules by adding the use of social media and the creation of a campaign website to the existing list of activities that may be considered in determining whether an individual running as a write-in candidate has made a "substantial showing" of his or her bona fide candidacy. The Commission also proposes to update its political recordkeeping rules by incorporating provisions which were adopted in the Bipartisan Campaign Reform Act of 2002.
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<title>Federal Register, Volume 86 Issue 167 (Wednesday, September 1, 2021)</title>
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[Federal Register Volume 86, Number 167 (Wednesday, September 1, 2021)]
[Proposed Rules]
[Pages 48942-48952]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-17754]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Parts 25, 73, and 76
[MB Docket No. 21-293; FCC 21-91; FR ID 43007]
Revisions to Political Programming and Recordkeeping Rules
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Commission proposes to update its
political programming and recordkeeping rules for broadcast licensees,
cable television system operators, Direct Broadcast Satellite (DBS)
service providers, and Satellite Digital Audio Radio Service (SDARS)
licensees. The Commission proposes to update its political programming
rules by adding the use of social media and the creation of a campaign
website to the existing list of activities that may be considered in
determining whether an individual running as a write-in candidate has
made a ``substantial showing'' of his or her bona fide candidacy. The
Commission also proposes to update its political recordkeeping rules by
incorporating provisions which were adopted in the Bipartisan Campaign
Reform Act of 2002.
DATES: Comments are due on or before October 1, 2021; reply comments
are due on or before October 18, 2021.
ADDRESSES: You may submit comments, identified by MB Docket No. 21-293,
by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19.\1\
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\1\ See FCC Announces Closure of FCC Headquarters Open Window
and Change in Hand-Delivery Policy, Public Notice, 35 FCC Rcd 2788
(2020).
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<bullet> During the time the Commission's building is closed to the
general public and until further notice, if more than one docket or
rulemaking number appears in the caption of a proceeding, paper filers
need not submit two additional copies for each additional docket or
rulemaking number; an original and one copy are sufficient.
People with Disabilities. To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#3a5c59590f0a0e7a5c5959145d554c"><span class="__cf_email__" data-cfemail="b0d6d3d3858084f0d6d3d39ed7dfc6">[email protected]</span></a> or call the
Consumer and Governmental Affairs Bureau at (202) 418-0530.
FOR FURTHER INFORMATION CONTACT: For additional information on this
proceeding, contact Gary Schonman, Special Counsel, Federal
Communications Commission, Media Bureau, Policy Division, Political
Programming Staff, at <a href="/cdn-cgi/l/email-protection#a7e0c6d5de89f4c4cfc8c9cac6c9e7c1c4c489c0c8d1"><span class="__cf_email__" data-cfemail="692e081b10473a0a010607040807290f0a0a470e061f">[email protected]</span></a> or 202-418-1795.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM), FCC 21-91, adopted on August 3, 2021,
and released on August 4, 2021. The full text of this document is
available for public inspection and copying via ECFS at <a href="http://apps.fcc.gov/ecfs">http://apps.fcc.gov/ecfs</a> and the FCC's website at <a href="https://docs.fcc.gov/public/attachments/FCC-21-91A1.pdf">https://docs.fcc.gov/public/attachments/FCC-21-91A1.pdf</a>. Documents will be available electronically
in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are
available for people with disabilities (Braille, large print,
electronic files, audio format), by sending an email to <a href="/cdn-cgi/l/email-protection#a7c1c4c4929793e7c1c4c489c0c8d1"><span class="__cf_email__" data-cfemail="264045451316126640454508414950">[email protected]</span></a>
or calling the Commission's Consumer and Governmental Affairs Bureau at
(202) 418-0530 (voice), (202) 418-0432 (TTY).
Synopsis
In this Notice of Proposed Rulemaking (NPRM), we propose to update
our political programming and recordkeeping rules for broadcast
licensees, cable television system operators, Direct Broadcast
Satellite (DBS) service providers, and Satellite Digital Audio Radio
Service (SDARS) licensees. While the agency has strived to update its
guidance to reflect changes in law and campaign practices, it has not
undertaken a formal review to
[[Page 48943]]
update the political programming and recordkeeping rules since 1991.\2\
Given the substantial growth of such programming in recent years,\3\
the updates proposed in this item are intended to conform our rules
with statutory amendments, increase transparency, and account for
modern campaign practices.
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\2\ Codification of the Commission's Political Programming
Policies, MM Docket No. 91-168, Report and Order, 7 FCC Rcd 678
(1991) (1991 Political Programming Order).
\3\ John Haltiwanger, Americans are Already Exhausted with the
2020 Election, and it's Just Getting Started. Other Countries Have
Laws Limiting the Length of Campaigns (Feb. 10, 2020), <a href="https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2">https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2</a> (explaining that the 2020 U.S.
Presidential election would last approximately 1,194 days); Karl
Evers-Hillstrom, Most Expensive Ever: 2020 Election Cost $14.4
Billion (Feb. 11, 2021), <a href="https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/">https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/</a> (2020 campaign spending
doubled the amount in 2016).
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We propose two revisions to our political programming and
recordkeeping rules.\4\ First, consistent with modern campaign
practices, we propose to revise the definition of ``legally qualified
candidate for public office'' to add the use of social media and
creation of a campaign website to the existing list of activities that
may be considered in determining whether an individual running as a
write-in candidate has made a ``substantial showing'' of his or her
bona fide candidacy.\5\ Second, we propose to revise the Commission's
political file rules to conform with the Bipartisan Campaign Reform Act
of 2002 (BCRA), which included within the political file requirements
any request for the purchase of advertising time that ``communicates a
message relating to any political matter of national importance''
(i.e., issue ads) and specify the records that must be maintained.\6\
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\4\ Information in a station's political file is available to
the public on the Commission-hosted website at <a href="https://publicfiles.fcc.gov/">https://publicfiles.fcc.gov/</a>.
\5\ 47 CFR 73.1940(f), 76.5(q).
\6\ Public Law 107-155, Sec. 504, 116 Stat. 81 (2002) (codified
at 47 U.S.C. 315(e)).
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I. Background
In addition to the First Amendment protections afforded to material
aired by Commission licensees and regulatees, political programming
receives additional, special protections. Congress has recognized the
great importance of political programming in the United States by
passing laws to ensure that those who run for elective office have
access to broadcast and other platforms so that they may inform
citizens of their positions on critical issues of the day.
Political Programming Obligations. Political programming
obligations for certain Commission licensees and regulatees are set
forth in sections 312(a)(7) and 315 of the Communications Act of 1934,
as amended (Act).\7\ Section 312(a)(7) requires broadcast licensees to
give legally qualified candidates for federal office ``reasonable
access'' to their facilities, or to permit them to purchase
``reasonable amounts of time on behalf of their candidacy. .'' \8\
Section 312(a)(7) of the Act also applies to SDARS licensees \9\ and
DBS service providers,\10\ but it is not applicable to cable system
operators.\11\ Under section 315(a), if a broadcast licensee permits
one legally qualified candidate for a public office to use its station,
it must afford all other candidates for that office an ``equal
opportunity'' to use the station.\12\ Section 315(b) provides that,
during certain periods before an election, legally qualified candidates
are entitled to ``the lowest unit charge of the station for the same
class and amount of time for the same period.'' \13\ The requirements
in section 315 also apply to cable system operators,\14\ SDARS
licensees,\15\ and DBS service providers.\16\ The entitlements embodied
in sections 312(a)(7) and 315 of the Act are available only to persons
who have achieved the status of ``legally qualified candidate.'' \17\
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\7\ 47 U.S.C. 312(a)(7), 315.
\8\ 47 U.S.C. 312(a)(7). See 47 CFR 73.1944.
\9\ See Establishment of Rules and Policies for the Digital
Audio Radio Satellite Service in the 2310-2360 MHz Frequency Band,
IB Docket No. 95-91, Gen. Docket No. 90-357, Report and Order
Memorandum Opinion and Order and Further Notice of Proposed
Rulemaking, 12 FCC Rcd 5754, 5792, para. 92 (1997) (extending the
political programming provisions in sections 312(a)(7) and 315 of
the Act to SDARS licensees); 47 CFR 25.702(a)-(b).
\10\ See Implementation of Section 25 of the Cable Television
Consumer Protection and Competition Act of 1992, Direct Broadcast
Satellite Public Interest Obligations, MM Docket No. 93-205, Report
and Order, 13 FCC Rcd 23254 (1998) (DBS Public Interest Obligations
Report and Order) (establishing rules applying the political
programming rules in sections 312(a)(7) and 315 of the Act to DBS
service providers, in accordance with section 335 of the Act),
recon. denied, Memorandum Opinion and Order on Reconsideration of
the First Report and Order, 19 FCC Rcd 5854 (2003) (Order on
ReconsIderation), Order on ReconsIderation vacated and superseded by
Second Order on Reconsideration of First Report and Order, 19 FCC
Rcd 5647 (2004) (DBS Public Interest Obligations Sua Sponte
ReconsIderation); 47 CFR 25.701(b)-(d).
\11\ See 1991 Political Programming Order, 7 FCC Rcd at 679,
para. 4.
\12\ 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
\13\ 47 U.S.C. 315(b). Pursuant to section 315(b)(1)
\14\ Section 315(c) of the Act defines the term ``broadcasting
station'' as including cable television systems and the terms
``licensee'' and ``station licensee'' as including cable operators.
47 U.S.C. 315(c) (``For purposes of this section--(1) the term
`broadcasting station' includes a community antenna television
system; and (2) the terms `licensee' and `station licensee' when
used with respect to a community antenna television system mean the
operator of such system.'').
\15\ See supra note 8.
\16\ See supra note 9.
\17\ While section 312(a)(7) applies only to legally qualified
candidates for federal office, section 315 applies to all candidates
for elective office, whether federal, state, or local.
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The Communications Act does not define the term ``legally qualified
candidate,'' and therefore the Commission has adopted a definition, as
reflected in Sec. 73.1940.\18\ Generally, an individual seeking
election (other than for President or Vice President) must publicly
announce his or her intention to run for office,\19\ must be qualified
to hold the office for which he or she is a candidate,\20\ and must
have qualified for a place on the ballot or have publicly committed
himself or herself to seeking election by the write-in method.\21\ If
seeking election by the write-in method, the individual, in addition to
being eligible under applicable law to be a write-in candidate, must
make a ``substantial showing'' that he or she is a bona fide candidate
for the office being sought.\22\ Section 73.1940(f) of the Commission's
rules specifies the requirements to demonstrate a ``substantial
showing'' of a bona fide candidacy by providing a nonexclusive list of
activities commonly associated with political campaigning.
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\18\ 47 CFR 73.1940. Section 76.5(q) of the Commission's rules
includes an identical definition of ``legally qualified candidates
for public office'' used for purposes of the political programming
rules governing cable systems. Id. Sec. 76.5(q). The definition of
``legally qualified candidates for public office'' set forth in
section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a).
\19\ Id. Sec. 73.1940(a)(1).
\20\ Id. Sec. 73.1940(a)(2).
\21\ Id. Sec. Sec. 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
\22\ Id. Sec. 73.1940(b)(2).
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Political Recordkeeping Obligations. The political recordkeeping
requirements serve to reinforce the statutory protections for political
programming. The Commission first adopted rules requiring broadcast
stations to maintain public inspection files documenting requests for
political advertising time more than 80 years ago.\23\ It is crucial
that stations maintain political files that are complete and up to date
because the information in them directly affects, among other things,
the statutory rights of opposing candidates to request equal
opportunities under section 315(a) of the Act and present their
positions to the public prior to an election.\2324\ Additionally, these
files enable the public to verify that licensees have complied with
their obligations relating to use of their facilities by candidates for
political office and to
[[Page 48944]]
obtain information about entities sponsoring candidate and issue
advertisements.\25\ The Commission also has applied political file
rules to cable television system operators,\24\ DBS providers,\25\ and
SDARS licensees,\26\ finding that the rationale for imposing such
requirements on broadcasters similarly applies to these entities.
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\25\ Review of the Commission's Rules Regarding the Main Studio
and Local Public Inspection Files of Broadcast Television and Radio
Stations, MM Docket No. 97-138, Report and Order, 13 FCC Rcd 15691,
15716, para. 54 (1998). In order for the public to verify that
licensees have complied with their obligations, the public can visit
a particular station or other entity's political file on the
Commission-hosted website <a href="https://publicfiles.fcc.gov/">https://publicfiles.fcc.gov/</a>.
\24\ Amendment of Part 76 of the Commission's Rules and
Regulations Relative to Obligations of Cable Television Systems to
Maintain Public Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72, para. 1 (1974); 47
CFR 76.1701.
\25\ Section 335 of the Act imposes public interest obligations
on DBS providers and requires the Commission, at a minimum, to apply
the access to broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to DBS providers.
47 U.S.C. 335(a). The Commission adopted rules requiring DBS
providers to abide by political file obligations similar to those
requirements placed on terrestrial broadcasters and cable systems in
order to assist in evaluations of compliance with the political
programming rules and to enable competing candidates to review other
candidates' advertising access and rates. DBS Public Interest
Obligations Report and Order, 13 FCC Rcd at 23271, para. 41; DBS
Public Interest Obligations Sua Sponte ReconsIderation, 19 FCC Rcd
at 5561, para. 35; 47 CFR 25.701(d).
\26\ Expansion of Online Public File Obligations to Cable and
Satellite TV Operators and Broadcast and Satellite Radio Licensees,
MB Docket No. 14-217, Report and Order, 31 FCC Rcd 526, 537-38,
paras. 26-27 (2016) (Expansion of Online Public File Obligations);
Applications for Consent to the Transfer of Control of Licenses, XM
Satellite Radio Holdings Inc., Transferor, to Sirius Satellite Radio
Inc., Transferee, MB Docket No. 07-57, Memorandum Opinion and Order
and Report and Order, 23 FCC Rcd 12348, 12415, para. 146 (2008); 47
CFR 25.702(b).
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In 2002, Congress enacted the BCRA, which amended section 315 of
the Act.\27\ The BCRA added new section 315(e) to codify the
Commission's existing political file obligations by requiring that
information regarding any request to purchase advertising time that
``is made on behalf of a legally qualified candidate for public
office'' be placed in the political file.\28\ In addition, the BCRA
expanded the political file requirements to include any request to
purchase political advertising time that ``communicates a message
relating to any political matter of national importance.'' \29\
Specifically, section 315(e)(1) of the Act requires licensees to make
available for public inspection a complete record of each request for
the purchase of broadcast time by or on behalf of a legally qualified
candidate and by or on behalf of any other entity whose ad communicates
a message relating to any political matter of national importance.
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\27\ Public Law 107-155, 504, 116 Stat. 81 (2002) (codified at
47 U.S.C. 315(e)).
\28\ 47 U.S.C. 315(e)(1).
\29\ Id.
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A licensee shall maintain, and make available for public
inspection, a complete record of a request to purchase broadcast time
that--
(A) is made by or on behalf of a legally qualified candidate for
public office; or
(B) communicates a message relating to any political matter of
national importance, including--(i) a legally qualified candidate; \30\
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\30\ The reference to ``licensee'' in section 315(e)(1) includes
broadcast licensees and cable system operators, SDARS licensees, and
DBS service providers engaged in origination programming. See 47 CFR
76.5(p), 76.1701, 25.701, 25.702.
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The BCRA, at section 315(e)(2) of the Act,\31\ also specifies the
kinds of records that must be maintained in political files, and it
provides, at section 315(e)(3) of the Act, that ``[t]he information
required by [section 315(e)] shall be placed in a political file as
soon as possible and shall be retained by the licensee for a period of
not less than 2 years.'' \32\
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\31\ 47 U.S.C. 315(e)(2).
\32\ Id. Section 315(e)(3). See infra para. 15.
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II. Discussion
A. ``Substantial Showing'' for Write-In Candidates
In order to update our rules to make them consistent with present-
day campaign practices, we propose to amend Sec. Sec. 73.1940(f) and
76.5(q) of the Commission's rules to add the use of social media and
creation of a campaign website to the list of activities that a
broadcast licensee or cable operator may consider in determining
whether an individual who is running as a write-in candidate has made a
``substantial showing'' of his or her candidacy.\33\ The proposed
amendment would recognize both activities as among the practices that
are now commonly associated with political campaigning.
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\33\ 47 CFR 73.1940(f), 76.5(q). As we explain above, the
definition of ``legally qualified candidates for public office'' set
forth in section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a). Thus, the analysis and
discussion here as well as revisions to the definition in section
73.1940 would apply to these entities as well.
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Only those individuals who have achieved the status of ``legally
qualified candidate'' are entitled to avail themselves of the benefits
and privileges bestowed by the political programming rules, including
the reasonable access,\34\ equal opportunities,\35\ and lowest unit
charge provisions.\36\ If seeking election by the write-in method, an
individual, in addition to being eligible under applicable law to be a
write-in candidate, must make a ``substantial showing'' that he or she
is a bona fide candidate for the office being sought.\37\
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\34\ 47 U.S.C. 312(a)(7); 47 CFR 73.1944.
\35\ 47 U.S.C. 315(a); 47 CFR 73.1941, 76.205.
\36\ 47 U.S.C. 315(b); 47 CFR 73.1942, 76.206.
\37\ Id. Sections 73.1940(b)(2), 76.5(q)(2).
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Questions as to whether an individual who is running as a write-in
candidate has made a ``substantial showing'' ordinarily arise when such
individual approaches a broadcast station or cable system and makes a
request to purchase time in furtherance of his or her candidacy or
seeks to avail himself or herself of equal opportunities.\38\ Sections
73.1940(f) and 76.5(q) define what it means to make a ``substantial
showing'' by listing various activities that are commonly associated
with political campaigning, including ``making campaign speeches,
distributing campaign literature, issuing press releases, [and]
maintaining a campaign headquarters.'' \39\
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\38\ 47 U.S.C. 315(a).
\39\ 47 CFR 73.1940(f), 76.5(q)(5). The Media Bureau has long
required that an individual claiming to be a ``legally qualified
candidate'' by the write-in method bears the burden of demonstrating
that he or she has made a ``substantial showing'' of a bona fide
candidacy. See, e.g., Complaint of Michael Stephen Levinson, 87 FCC
2d 433, 435 (Broadcast Bur. 1980) (``The burden is on [the potential
candidates] to establish to the stations from which [they] seek
broadcast time under Section 312 that [they] have `engaged to a
substantial degree in activities commonly associated with political
campaigning.' ''). Further, the Media Bureau has held that a
broadcaster's or cable operator's determination as to whether a
potential write-in candidate has satisfied the ``substantial
showing'' requirement is entitled to deference, provided the
determination is reasonable and made in good faith. See Complaint by
Michael Levinson Against Station WXXI-TV, Rochester, New York, 1 FCC
Rcd 1305 (MMB 1986) (Michael Levinson) (``This agency will review
the licensee's decision only to determine if it was unreasonable or
made in bad faith.''); Complaint of Douglas S. Kraegar Against Radio
Station WTLB Utica, New York, 87 FCC 2d 751, 753 (Broadcast Bur.
1980) (``A licensee has the discretion to make a good faith judgment
as to the bona fide qualifications of a write-in candidate.''). Cf.,
CBS, Inc. v. FCC, 453 U.S. 367, 387 (1981) (``If broadcasters take
the appropriate factors into account and act reasonably and in good
faith, their decisions will be entitled to deference even if the
Commission's analysis would have differed in the first instance.'').
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At the time our current rules were drafted, social media and
campaign websites did not exist. Media coverage of recent campaigns on
the national, state, and local levels indicates that the use of social
media has become an activity that bona fide candidates routinely use to
solicit support, financial contributions, and votes.\40\
[[Page 48945]]
Recent articles reveal that bona fide political campaigns use major
social media platforms to advertise, connect with supporters, and
fundraise \41\ and that such engagement in social media use, for
example, by creating a Twitter or Facebook account, typically increases
donations for new politicians.\42\ For instance, reports of the most
recent election reflect that candidates garnered support by posting
photographs and hosting chats on Instagram.\43\ In addition, social
media platforms enable political campaigns to build support by
disseminating campaign updates \44\ and targeting advertisements to
potential voters,\45\ and they provide sophisticated tools to regularly
measure user engagement.\46\
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\40\ See, e.g., Lata Nott, Political Advertising on Social Media
Platforms (June 26, 2020), <a href="https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/voting-in-2020/political-advertising-on-social-media-platforms/">https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/voting-in-2020/political-advertising-on-social-media-platforms/</a>; Daniel Kreiss, Regina G.
Lawrence, and Shannon C. McGregor, In Their Own Words: Political
Practitioner Accounts of CandIdates, Audiences, Affordances, Genres,
and Timing in Strategic Social Media Use, 35 Pol. Commc'n 26, 12-13
(2018) (finding that each social media platform, with different
audiences and capabilities, provides ``a primary way for candidates
to introduce themselves to vastly dispersed constituencies and build
their support among potential volunteers, donors, and voters'').
\41\ See, e.g., Maria Petrova, Ananya Sen, and Pinar Yildirim,
Social Media and Political Contributions: The Impact of New
Technology on Political Competition, Management Science, 7-8 (2020)
(Petrova, Social Media and Political Contributions); Daniel Kreiss
and Shannon C. McGregor, Technology Firms Shape Political
Communication: The Work of Microsoft, Facebook, Twitter, and Google
with Campaigns During the 2016 U.S. PresIdential Cycle, 35 Pol.
Commc'n, 158-59 (2018).
\42\ Petrova, Social Media and Political Contributions, at 28.
\43\ University of Pennsylvania Knowledge @Wharton, How Social
Media Is Shaping Political Campaigns (Aug. 17, 2020), <a href="https://knowledge.wharton.upenn.edu/article/how-social-media-is-shaping-political-campaigns/">https://knowledge.wharton.upenn.edu/article/how-social-media-is-shaping-political-campaigns/</a>.
\44\ See Petrova, Social Media and Political Contributions, at
5, 26-27 (``[M]ore frequent and more informative tweets (e.g.,
including links to websites, responding to news fast, or more anti-
establishment Tweets) are associated with receiving higher
contributions after adopting Twitter.'').
\45\ See, e.g., Google Transparency Report Help Center,
Political Advertising on Google FAQs, <a href="https://support.google.com/transparencyreport/answer/9575640#zippy=%2Cwhat-targeting-criteria-can-be-used-for-election-ads">https://support.google.com/transparencyreport/answer/9575640#zippy=%2Cwhat-targeting-criteria-can-be-used-for-election-ads</a> (last visited May 25, 2021); Snapchat
Business Help Center, Audience Insights, <a href="https://businesshelp.snapchat.com/s/article/audience-insights?language=en_US&_ga=2.101326145.1539846222.1621879796-1506173507.1621879796">https://businesshelp.snapchat.com/s/article/audience-insights?language=en_US&_ga=2.101326145.1539846222.1621879796-1506173507.1621879796</a> (last visited May 25, 2021).
\46\ See, e.g., Facebook Business Help Center, About Breakdowns,
Metrics, and Filtering in Ads Reporting, <a href="https://www.facebook.com/business/help/264160060861852">https://www.facebook.com/business/help/264160060861852</a> (last visited May 25, 2021) (Ads
Reporting allows advertisers to analyze demographic metrics
including country, region, and designated market region); Google Ads
Help, About Measuring Geographic Performance, <a href="https://support.google.com/google-ads/answer/2453994?hl=en">https://support.google.com/google-ads/answer/2453994?hl=en</a> (last visited May
25, 2021) (Report Editor generates reports, which can show
performance of ads targeted by location).
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In order that our rules reflect ordinary campaign practices, we
propose to add the use of social media for the purpose of promoting or
furthering a campaign for public office to the list of recognized
campaign activities in Sec. Sec. 73.1940(f) and 76.5(q). We seek
comment on this proposal and the types of campaign-related activities
for which social media could be used in demonstrating a substantial
showing of a bona fide candidacy. For instance, a candidate might use
social media to raise funds, solicit votes, share policy positions, and
engage in digital dialogues with voters. We note that we are not
proposing that social media presence alone would be sufficient to
support a status of ``legally qualified candidate'' but that it would
be an additional indicator of activities commonly associated with
political campaigning needed to make substantial showing of a bona fide
candidacy.
We also propose to add creation of a campaign website to the list
of recognized campaign activities in Sec. Sec. 73.1940(f) and 76.5(q).
Recent articles indicate that campaign websites, like social media
platforms, are used by candidates to connect to a wide audience of
potential voters instantaneously and facilitate direct communication
and fundraising.\47\ Accordingly, we tentatively conclude that adding
the creation of a campaign website to the list of recognized activities
is justified for the same reasons provided in support of including use
of social media. We again note that a website alone would not be
sufficient to support a status of ``legally qualified candidate'' but
that it would be an additional indicator of activities commonly
associated with political campaigning needed to make substantial
showing of a bona fide candidacy. We seek comment on this conclusion
and the proposal.
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\47\ See, e.g., Dick Morris, Direct Democracy and the internet,
34 Loy. L.A. L. Rev. 1033 (2000); Diana Owen, New Media and
Political Campaigns, The Oxford Handbook of Pol. Commc'n (2014).
(since 2008, campaigns have used websites to incorporate interactive
applications and link to their social media accounts); Elisa
Shearer, Pew Research Center, CandIdates' Social Media Outpaces
Their websites and Emails As An Online Campaign News Sources (2016),
<a href="https://www.pewresearch.org/fact-tank/2016/07/20/candidates-social-media-outpaces-their-websites-and-emails-as-an-online-campaign-news-source/">https://www.pewresearch.org/fact-tank/2016/07/20/candidates-social-media-outpaces-their-websites-and-emails-as-an-online-campaign-news-source/</a> (while candidates' social media posts outpace campaign
websites as a source of online campaign news, campaign websites are
also an important source of online campaign information).
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Finally, we seek comment on whether other activities consistent
with modern campaign practices, such as the use of digital marketing
and advertising, should be added to the list of recognized campaign
activities in Sec. Sec. 73.1940(f) and 76.5(q). If additional
activities are included, should the substantial showing analysis
involve any limiting factors, such as requiring that the marketing and
advertising be directed toward persons in areas where votes are being
solicited?
B. Implementation of the BCRA and Section 315 of the Act
We propose to revise the political file rules for broadcast
licensees, cable operators, DBS providers, and SDARS licensees to bring
them into conformity with the BCRA and section 315(e) of the Act.\48\
As discussed above, in 2002, Congress enacted the BCRA, which, among
other things, adopted new section 315(e) of the Act.\49\ While the
Commission has advised relevant parties consistent with the
recordkeeping requirements embodied in section 315(e), the rules were
not updated. Therefore, the changes that we are proposing today would
conform our rules to the statutory requirements. Specifically, section
315(e)(1) codifies the requirement that information regarding any
request to purchase advertising time that ``is made on behalf of a
legally qualified candidate for public office,'' also known as
candidate ads, be placed in the political file. It also specifies that
the political recordkeeping obligations include any request for the
purchase of advertising time that ``communicates a message relating to
any political matter of national importance,'' also known as issue
ads.\50\ Section 315(e)(2) identifies the specific records that must be
placed in political files for both candidate ads and issue ads that
communicate a message relating to a political matter of national
importance.\51\ These records include whether the request to purchase
broadcast time has been accepted or rejected, information about the
advertisement(s), and information about the advertiser. The
Commission's political file rules for broadcast licensees, cable
television system operators, DBS providers, and SDARS licensees
currently require these entities to maintain for public inspection only
those records that relate to requests for time by or on behalf of
candidates for public office.\54\ These rules make no mention of the
obligation specified in section 315(e)(1)(B) of the Act to also
maintain records of requests for time about issue ads that communicate
a
[[Page 48946]]
message relating to any political matter of national importance. Our
rules therefore do not fully reflect all of the statutory requirements.
We propose to revise the political file rules for these entities to
conform with the language in sections 315(e)(1) and (e)(2) of the Act.
Specifically, we propose to revise these rules to require these
entities to maintain in their online political inspection files not
only records of each request for advertising time that is made by or on
behalf of a legally qualified candidate for public office, but also for
each request for advertising time that ``communicates a message
relating to any political matter of national importance.'' \52\ In
addition, we propose to revise our rules to list the specific records
that must be maintained in online political files for both candidate
ads and issue ads, consistent with list enumerated in section
315(e)(2). These proposed revisions would implement Congress's
directive in the BCRA and ensure our political recordkeeping rules
reflect statutory requirements. We seek comment on this proposal.\53\
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\48\ 47 U.S.C. 315(e); 47 CFR 25.701(d), 25.702(b), 73.1943,
76.1701.
\49\ Public Law 107-155, Sec. 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
\50\ 47 U.S.C. 315(e)(1)(a) through (b).
\51\ 47 U.S.C. 315(e)(2).
\54\ 47 CFR 25.701(d), 25.702(b), 73.1943, 76.1701.
\52\ 47 U.S.C. 315(e)(1)(B).
\53\ We note that section 315(e)(3) of the Act provides that
``[t]he information required by [section 315(e)] shall be placed in
a political file as soon as possible and shall be retained by the
licensee for a period of not less than 2 years.'' 47 U.S.C.
315(e)(3). Our existing political file rules already include this
requirement. 47 CFR 25.701(d)(2), 25.702(b)(2), 73.1943(c),
76.1701(c). Therefore, we need not propose changes to these rules to
implement section 315(e)(3).
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C. Cost-Benefit Analysis
Finally, we seek comment on the benefits and costs associated with
adopting the proposed changes. In addition to any benefits to the
public at large, are there also benefits to industry through
clarification of the obligations on licensees and regulatees? We also
seek comment on any potential costs that would be imposed on licensees
and regulatees if we adopt the proposals contained in this NPRM. In
this regard, we note that the proposed changes would largely conform
our rules to the requirements of the statute. Comments should be
accompanied by specific data and analysis supporting claimed costs and
benefits.
III. Procedural Matters
Ex Parte Rules--Permit-But-Disclose. The proceeding this Notice
initiates shall be treated as a ``permit-but-disclose'' proceeding in
accordance with the Commission's ex parte rules.\54\ Persons making ex
parte presentations must file a copy of any written presentation or a
memorandum summarizing any oral presentation within two business days
after the presentation (unless a different deadline applicable to the
Sunshine period applies). Persons making oral ex parte presentations
are reminded that memoranda summarizing the presentation must (1) list
all persons attending or otherwise participating in the meeting at
which the ex parte presentation was made, and (2) summarize all data
presented and arguments made during the presentation. If the
presentation consisted in whole or in part of the presentation of data
or arguments already reflected in the presenter's written comments,
memoranda, or other filings in the proceeding, the presenter may
provide citations to such data or arguments in his or her prior
comments, memoranda, or other filings (specifying the relevant page
and/or paragraph numbers where such data or arguments can be found) in
lieu of summarizing them in the memorandum. Documents shown or given to
Commission staff during ex parte meetings are deemed to be written ex
parte presentations and must be filed consistent with rule 1.1206(b).
In proceedings governed by rule 1.49(f) or for which the Commission has
made available a method of electronic filing, written ex parte
presentations and memoranda summarizing oral ex parte presentations,
and all attachments thereto, must be filed through the electronic
comment filing system available for that proceeding, and must be filed
in their native format (e.g., .doc, .xml, .ppt, searchable .pdf).
Participants in this proceeding should familiarize themselves with the
Commission's ex parte rules.
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\54\ 47 CFR 1.1200 et seq.
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Initial Regulatory Flexibility Act Analysis. The Regulatory
Flexibility Act of 1980, as amended (RFA), requires that a regulatory
flexibility analysis be prepared for notice and comment rulemaking
proceedings, unless the agency certifies that ``the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities.'' \55\ The RFA generally defines the term ``small
entity'' as having the same meaning as the terms ``small business,''
``small organization,'' and ``small governmental jurisdiction.'' In
addition, the term ``small business'' has the same meaning as the term
``small business concern'' under the Small Business Act.\56\ A ``small
business concern'' is one which: (1) Is independently owned and
operated; (2) is not dominant in its field of operation; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).\57\
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\55\ 5 U.S.C. 603.
\56\ Id. Section 601(3) (adopting by reference the definition of
``small business concern'' in 15 U.S.C. 632). Pursuant to the RFA,
the statutory definition of a small business applies ``unless an
agency, after consultation with the Office of Advocacy of the Small
Business Administration and after opportunity for public comment,
establishes one or more definitions of such term which are
appropriate to the activities of the agency and publishes such
definition(s) in the Federal Register.'' 5 U.S.C. 601(3).
\57\ 15 U.S.C. 632.
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With respect to this Notice of Proposed Rulemaking, an Initial
Regulatory Flexibility Analysis (IRFA) under the RFA is contained in
Appendix B. Written public comments are requested on the IFRA and must
be filed in accordance with the same filing deadlines as comments on
this Notice of Proposed Rulemaking, with a distinct heading designating
them as responses to the IRFA. In addition, a copy of this Notice of
Proposed Rulemaking and the IRFA will be sent to the Chief Counsel for
Advocacy of the SBA and will be published in the Federal Register.
Paperwork Reduction Act. This document proposes new or modified
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens and pursuant to the
Paperwork Reduction Act of 1995, Public Law 104-13, invites the general
public and the Office of Management and Budget (OMB) to comment on
these information collection requirements. In addition, pursuant to the
Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44
U.S.C. 3506(c)(4), we seek specific comment on how we might further
reduce the information collection burden for small business concerns
with fewer than 25 employees.
Initial Regulatory Flexibility Act Analysis
As required by the Regulatory Flexibility Act of 1980, as amended
(RFA),\58\ the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities of the policies and rules proposed in this NPRM. The
Commission requests written public comments on this IRFA. Comments must
be identified as responses to the IRFA and must be filed by the
deadlines for comments specified in the NPRM. The Commission will send
a copy of the NPRM, including this IRFA, to the Chief Counsel for
Advocacy of the Small
[[Page 48947]]
Business Administration (SBA).\59\ In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.\60\
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\58\ 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612, has been amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), Public Law 104-121, Title II, 110 Stat. 857 (1996). The
SBREFA was enacted as Title II of the Contract with America
Advancement Act of 1996 (CWAAA).
\59\ 5 U.S.C. 603(a).
\60\ Id.
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Need for, and Objectives of, the Proposed Rules
While the agency has strived to update its guidance to reflect
changes in law and campaign practices, it has not undertaken a formal
review to update the political programming and recordkeeping rules
since 1991.\61\ Given the substantial growth of political media
messaging in recent years,\62\ the updates proposed in this item are
intended to conform our rules with statutory amendments, reflect
existing practices and guidance,\63\ and account for modern campaign
practices.
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\61\ Codification of the Commission's Political Programming
Policies, MM Docket No. 91-168, Report and Order, 7 FCC Rcd 678
(1991) (1991 Political Programming Order).
\62\ John Haltiwanger, Americans are Already Exhausted with the
2020 Election, and it's Just Getting Started. Other Countries Have
Laws Limited the Length of Campaigns (Feb. 10, 2020), <a href="https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2">https://www.businessinsider.com/us-presidential-elections-are-absurdly-long-compared-rest-of-world-2020-2</a> (explaining that the 2020 U.S.
Presidential election would last approximately 1,194 days); Karl
Evers-Hillstrom, Most Expensive Ever: 2020 Election Cost $14.4
Billion (Feb. 11, 2021), <a href="https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/">https://www.opensecrets.org/news/2021/02/2020-cycle-cost-14p4-billion-doubling-16/</a> (2020 campaign spending
doubled the amount in 2016).
\63\ The Commission has a longstanding practice of providing
informal guidance to broadcasters and other regulatees regarding
their political programming and related recordkeeping obligations
and working with industry representatives to foster compliance.
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Sections 312(a)(7) and 315 of the Communications Act of 1934, as
amended (Act), set forth the political programming obligations of
broadcast licensees and other Commission regulatees.\64\ Section
312(a)(7) requires broadcast licensees to give legally qualified
candidates for federal office ``reasonable access'' to their
facilities, or to permit them to purchase ``reasonable amounts of
time.'' \65\ Under section 315(a), if a broadcast licensee, cable
operator, or other regulatee permits one legally qualified candidate
for a public office to use its station, it must afford all other
candidates for that office an ``equal opportunity'' to use the
station.\66\ Section 315(b) provides that, during certain periods
before an election, legally qualified candidates are entitled to ``the
lowest unit charge of the station or cable system for the same class
and amount of time for the same period.'' \67\ The entitlements
embodied in sections 312(a)(7) and 315 of the Act are available only to
persons who have achieved the status of ``legally qualified
candidate.'' \68\
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\64\ 47 U.S.C. 312(a)(7), 315. The Commission has concluded that
section 312(a)(7) does not apply to cable operators. 1991 Political
Programming Order, 7 FCC Rcd at 679, para. 4. Section 315(c) of the
Act defines the term ``broadcasting station'' as including cable
television systems and the terms ``licensee'' and ``station
licensee'' as including cable operators. 47 U.S.C. 315(c) (``For
purposes of this section--(1) the term `broadcasting station'
includes a community antenna television system; and (2) the terms
`licensee' and `station licensee' when used with respect to a
community antenna television system mean the operator of such
system.''). Thus, the requirements of section 315 apply to cable
operators as well as broadcast licensees. In 1997, the Commission
extended the political programming provisions in sections 312(a)(7)
and 315 of the Act to SDARS licensees. Establishment of Rules and
Policies for the Digital Audio Radio Satellite Service in the 2310-
2360 MHz Frequency Band, IB Docket No. 95-91, Gen. Docket No. 90-
357, Report and Order Memorandum Opinion and Order and Further
Notice of Proposed Rulemaking, 12 FCC Rcd 5754, 5792, para. 92
(1997); 47 CFR 25.702(a)-(b). In 1998, in accordance with section
335 of the Act, 47 U.S.C. 335, the Commission established rules
applying the political programming rules in sections 312(a)(7) and
315 of the Act to DBS service providers. Implementation of Section
25 of the Cable Television Consumer Protection and Competition Act
of 1992, Direct Broadcast Satellite Public Interest Obligations, MM
Docket No. 93-205, Report and Order, 13 FCC Rcd 23254 (1998) (DBS
Public Interest Obligations Report and Order), recon. denied,
Memorandum Opinion and Order on Reconsideration of the First Report
and Order, 19 FCC Rcd 5854 (2003) (Order on ReconsIderation), Order
on ReconsIderation vacated and superseded by Second Order on
Reconsideration of First Report and Order, 19 FCC Rcd 5647 (2004)
(DBS Public Interest Obligations Sua Sponte ReconsIderation); 47 CFR
25.701(b)-(d).
\65\ 47 U.S.C. 312(a)(7). See 47 CFR 73.1944.
\66\ 47 U.S.C. 315(a). See 47 CFR 73.1941, 76.205.
\67\ 47 U.S.C. 315(b). See 47 CFR 73.1942, 76.206.
\68\ While section 312(a)(7) applies only to legally qualified
candidates for federal office, section 315 applies to all candidates
for elective office, whether federal, state, or local.
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Section 73.1940 of the Commission's rules defines who is a
``legally qualified candidate for public office.'' \69\ Generally, an
individual seeking election (other than for President or Vice
President) must publicly announce his or her intention to run for
office,\70\ must be qualified to hold the office for which he or she is
a candidate,\71\ and must have qualified for a place on the ballot or
have publicly committed himself or herself to seeking election by the
write-in method.\72\ If seeking election by the write-in method, the
individual, in addition to being eligible under applicable law to be a
write-in candidate, must make a ``substantial showing'' that he or she
is a bona fide candidate for the office being sought.\73\ Section
73.1940(f) of the Commission's rules specifies the requirements to
demonstrate a ``substantial showing'' of a bona fide candidacy by
providing a nonexclusive list of activities commonly associated with
political campaigning.
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\69\ 47 CFR 73.1940. Section 76.5(q) of the Commission's rules
includes an identical definition of ``legally qualified candidates
for public office'' used for purposes of the political programming
rules governing cable systems. Id. Sec. 76.5(q). The definition of
``legally qualified candidates for public office'' set forth in
section 73.1940 also applies for purposes of the political
programming obligations of DBS providers and SDARS licensees. Id.
Sec. Sec. 25.701(b)(1), 25.702(a).
\70\ Id. Sec. 73.1940(a)(1).
\71\ Id. Sec. 73.1940(a)(2).
\72\ Id. Sec. Sec. 73.1940(a)(3), 73.1940(b)(1), and
73.1940(b)(2).
\73\ Id. Sec. 73.1940(b)(2).
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The political recordkeeping requirements serve to reinforce the
statutory protections for political programming. The Commission first
adopted rules requiring broadcast stations to maintain public
inspection files documenting requests for political advertising time
more than 80 years ago.\77\ It is crucial that stations maintain
political files that are complete and up to date because the
information in them directly affects, among other things, the statutory
rights of opposing candidates to request equal opportunities under
section 315(a) of the Act and present their positions to the public
prior to an election.\74\ Additionally, these files enable the public
to verify that licensees have complied with their obligations relating
to use of their facilities by candidates for political office and to
obtain information about entities sponsoring candidate and issue
advertisements.\75\ The Commission also has applied political file
rules to cable television system operators,\76\ DBS
[[Page 48948]]
providers,\77\ and SDARS licensees,\78\ finding that the rationale for
imposing such requirements on broadcasters similarly applies to these
entities.
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\77\ See 3 FR 1691 (1938).
\74\ Pursuant to section 73.1941(c) of the Rules, candidates
have one week from an opponent's initial ``use'' to request equal
opportunities. 47 CFR 73.1941(c). The failure by a station to
promptly upload information about each ``use'' denies requesting
candidates the notice they need to assert their statutory rights to
equal opportunities in a timely manner. Standardized and Enhanced
Disclosure Requirements for Television Broadcast Licensee Public
Interest Obligations, MM Docket Nos. 00-168 and 00-44, Second Report
and Order, 27 FCC Rcd 4535, 4562, para. 55 (2012).
\75\ Review of the Commission's Rules Regarding the Main Studio
and Local Public Inspection Files of Broadcast Television and Radio
Stations, MM Docket No. 97-138, Report and Order, 13 FCC Rcd 15691,
15716, para. 54 (1998).
\76\ Amendment of Part 76 of the Commission's Rules and
Regulations Relative to Obligations of Cable Television Systems to
Maintain Public Inspection Files and Permit System Inspections,
Docket No. 19948, Report and Order, 48 FCC 2d 72, para. 1 (1974); 47
CFR 76.1701.
\77\ Section 335 of the Act imposes public interest obligations
on DBS providers and requires the Commission, at a minimum, to apply
the access to broadcast time requirement of section 312(a)(7) and
the use of facilities requirements of section 315 to DBS providers.
47 U.S.C. 335(a). The Commission adopted rules requiring DBS
providers to abide by political file obligations similar to those
requirements placed on terrestrial broadcasters and cable systems in
order to assist in evaluations of compliance with the political
programming rules and to enable competing candidates to review other
candidates' advertising access and rates. DBS Public Interest
Obligations Report and Order, 13 FCC Rcd at 23271, para. 41; DBS
Public Interest Obligations Sua Sponte ReconsIderation, 19 FCC Rcd
at 5561, para. 35; 47 CFR 25.701(d).
\78\ Expansion of Online Public File Obligations to Cable and
Satellite TV Operators and Broadcast and Satellite Radio Licensees,
MB Docket No. 14.217, Report and Order, 31 FCC Rcd 526, 537-38,
paras. 26-27 (2016); Applications for Consent to the Transfer of
Control of Licenses, XM Satellite Radio Holdings Inc., Transferor,
to Sirius Satellite Radio Inc., Transferee, MB Docket No. 07-57,
Memorandum Opinion and Order and Report and Order, 23 FCC Rcd 12348,
12415, para. 146 (2008); 47 CFR 25.702(b).
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In 2002, Congress enacted the Bipartisan Campaign Reform Act
(BCRA), which amended section 315 of the Act.\79\ The BCRA added new
section 315(e) to codify the Commission's existing political file
obligations by requiring that information regarding any request to
purchase advertising time that ``is made on behalf of a legally
qualified candidate for public office'' be placed in the political
file.\80\ In addition, the BCRA expanded the political file
requirements to include any request to purchase political advertising
time that ``communicates a message relating to any political matter of
national importance.'' \81\ Specifically, section 315(e)(1) of the Act
requires licensees to make available for public inspection a complete
record of each request for the purchase of broadcast time by or on
behalf of a legally qualified candidate and by or on behalf of any
other entity whose ad communicates a message relating to any political
matter of national importance.\82\
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\79\ Public Law 107-155, 504, 116 Stat. 81 (2002) (codified at
47 U.S.C. 315(e)).
\80\ 47 U.S.C. 315(e)(1).
\81\ Id.
\82\ Id. Section 315(e)(1).
The BCRA also specified the records that must be maintained in
political files. Specifically, section 315(e)(2) requires licensees
to place in their political files information that includes whether
the request to purchase broadcast time has been accepted or
rejected, information about the advertisement(s), and information
---------------------------------------------------------------------------
about the advertiser.
Section 315(e)(3) of the Act provides that ``[t]he information
required by [section 315(e)] shall be placed in a political file as
soon as possible and shall be retained by the licensee for a period of
not less than 2 years.'' \87\
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\87\ Id. Section 315(e)(3).
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The NPRM proposes to revise the definition of ``legally qualified
candidate for public office'' to add the use of social media and
creation of a campaign website to the existing list of activities that
may be considered in determining whether an individual running as a
write-in candidate has made a ``substantial showing'' of his or her
bona fide candidacy.\83\ The NPRM also proposes to revise the
Commission's political file rules to conform with BCRA's amendment to
Section 315(e) of the Act, which included within the political file
requirements any request for the purchase of advertising time that
``communicates a message relating to any political matter of national
importance'' (i.e., issue ads) and specify the records that must be
maintained.\84\ Additionally, the proposed revisions would specify the
records that must be maintained in political files.
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\88\ Id. Section 315(e)(3).
\84\ Public Law 107-155, section 504, 116 Stat. 81 (2002)
(codified at 47 U.S.C. 315(e)).
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Legal Basis
The proposed action is authorized under sections 151, 154(i),
154(j), 303(r), 307, 312, 315,335, and 403 of the Communications Act of
1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 307, 312, 315,
335, and 403.
Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply
The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rule revisions, if adopted.\85\ The RFA
generally defines the term ``small entity'' as having the same meaning
as the terms ``small business,'' ``small organization,'' and ``small
governmental jurisdiction.'' \86\ In addition, the term ``small
business'' has the same meaning as the term ``small business concern''
under the Small Business Act (SBA).\87\ A small business concern is one
which: (1) Is independently owned and operated; (2) is not dominant in
its field of operation; and (3) satisfies any additional criteria
established by the SBA.\88\ Below, we provide a description of such
small entities, as well as an estimate of the number of such small
entities, where feasible.
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\85\ 5 U.S.C. 603(b)(3).
\86\ 5 U.S.C. 601(6); see infra note 38 (explaining the
definition of ``small business'' under 5 U.S.C. 601(3)); see 5
U.S.C. 601(4) (defining ``small organization'' as ``any not-for-
profit enterprise which is independently owned and operated and is
not dominant in its field, unless an agency establishes, after
opportunity for public comment, one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register''); 5 U.S.C. 601(5)
(defining ``small governmental jurisdiction'' as ``governments of
cities, counties, towns, townships, villages, school districts, or
special districts, with a population of less than fifty thousand,
unless an agency establishes, after opportunity for public comment,
one or more definitions of such term which are appropriate to the
activities of the agency and which are based on such factors as
location in rural or sparsely populated areas or limited revenues
due to the population of such jurisdiction, and publishes such
definition(s) in the Federal Register'').
\87\ 5 U.S.C. 601(3) (adopting by reference the definition of
``small business concern'' in 15 U.S.C. 632(a)(1)). Pursuant to 5
U.S.C. 601(3), the statutory definition of a small business applies
``unless an agency, after consultation with the Office of Advocacy
of the Small Business Administration and after opportunity for
public comment, establishes one or more definitions of such term
which are appropriate to the activities of the agency and publishes
such definition(s) in the Federal Register.'' Id.
\88\ 15 U.S.C. 632(a)(1)-(2)(A).
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Television Broadcasting. This U.S. Economic Census category
``comprises establishments primarily engaged in broadcasting images
together with sound.'' \89\ These establishments operate television
broadcast studios and facilities for the programming and transmission
of programs to the public.\90\ These establishments also produce or
transmit visual programming to affiliated broadcast television
stations, which in turn broadcast the programs to the public on a
predetermined schedule. Programming may originate in their own studio,
from an affiliated network, or from external sources. The SBA has
created the following small business size standard for such businesses:
Those having $41.5 million or less in annual receipts.\91\ According to
the 2012 Economic Census (when the SBA's size standard was set at $38.5
million or less in annual receipts), 751 firms in the small business
size category operated in that year. Of that number, 656 had annual
receipts of $25 million or less, 25 had annual receipts between $25
million and $49,999,999 and 70 had annual receipts of $50 million or
more.\92\ Based on this data, we estimate that the
[[Page 48949]]
majority of commercial television broadcast stations are small entities
under the applicable size standard.
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\89\ U.S. Census Bureau, 2017 NAICS Definitions, ``515120
Television Broadcasting,'' <a href="http://www.census.gov">http://www.census.gov</a>./cgi-bin/sssd/
naics/naicsrch.
\90\ Id.
\91\ 13 CFR 121.201; 2012 NAICS code 515120.
\92\ U.S. Census Bureau, Table No. EC1251SSSZ4, Information:
Subject Series--Establishment and Firm Size: Receipts Size of Firms
for the United States: 2012 (515120 Television Broadcasting).
<a href="https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table">https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table</a>.
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Additionally, the Commission has estimated the number of licensed
commercial television stations to be 1,374.\93\ Of this total, 1,263
stations (or 92%) had revenues of $41.5 million or less in 2019,
according to Commission staff review of the BIA Kelsey Inc. Media
Access Pro Television Database (BIA) on July 30, 2020, and therefore
these stations qualify as small entities under the SBA definition. In
addition, the Commission estimates the number of noncommercial
educational television stations to be 384.\94\ The Commission does not
compile and does not have access to information on the revenue of NCE
stations that would permit it to determine how many such stations would
qualify as small entities. There are also 386 Class A stations.\95\
Given the nature of this service, the Commission presumes that all of
these stations qualify as small entities under the applicable SBA size
standard.
---------------------------------------------------------------------------
\93\ Broadcast Station Totals as of March 31, 2021, News Release
(MB Apr. 5, 2021) (Mar. 31, 2021 Broadcast Station Totals), <a href="https://www.fcc.gov/document/broadcast-station-totals-march-31-2021">https://www.fcc.gov/document/broadcast-station-totals-march-31-2021</a>.
\94\ Id.
\95\ Id.
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Radio Broadcasting. This U.S. Economic Census category ``comprises
establishments primarily engaged in broadcasting aural programs by
radio to the public.'' \96\ Programming may originate in the
establishment's own studio, from an affiliated network, or from
external sources. The SBA has created the following small business size
standard for such businesses: Those having $41.5 million or less in
annual receipts.\97\ According to Economic Census data for 2012 (when
the SBA's size standard was set at $38.5 million or less in annual
receipts), 2,849 firms in this category operated in that year.\98\ Of
that number, 2,806 operated with annual receipts of less than $25
million per year, 17 with annual receipts between $25 million and
$49,999,999 million and 26 with annual receipts of $50 million or
more.\99\ Based on this data, we estimate that the majority of
commercial radio broadcast stations were small under the applicable SBA
size standard.
---------------------------------------------------------------------------
\96\ U.S. Census Bureau, 2017 NAICS Definitions, ``515112 Radio
Stations,'' <a href="http://www.census.gov">http://www.census.gov</a>./cgi-bin/sssd/naics/naicsrch.
\97\ 13 CFR 121.201; 2017 NAICS code 515112.
\98\ U.S. Census Bureau, U.S. Census Bureau, Table No.
EC1251SSSZ4, Information: Subject Series--Establishment and Firm
Size: Receipts Size of Firms for the United States: 2012 (515112
Radio Stations) https://factfinder.census.gov/bkmk/table/1.0/en/ECN/
2012_US/51SSSZ4//naics~515112[verbar].
\99\ Id.
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The Commission has estimated the number of licensed commercial AM
radio stations to be 4,546 and the number of commercial FM radio
stations to be 6,682 for a total of 11,228 commercial stations.\100\ Of
this total, 11,266 stations (or 99%) had revenues of $41.5 million or
less in 2019, according to Commission staff review of the BIA Kelsey
Inc. Media Access Pro Television Database (BIA) on July 30, 2020, and
therefore these stations qualify as small entities under the SBA
definition. In addition, there were 4,213 noncommercial, educational
(NCE) FM stations. The Commission does not compile and does not have
access to information on the revenue of NCE stations that would permit
it to determine how many such stations would qualify as small entities.
---------------------------------------------------------------------------
\100\ Mar. 31, 2021 Broadcast Station Totals.
---------------------------------------------------------------------------
We note, however, that in assessing whether a business concern
qualifies as ``small'' under the above definition, business (control)
affiliations \101\ must be included. Our estimate, therefore, likely
overstates the number of small entities that might be affected by our
action, because the revenue figure on which it is based does not
include or aggregate revenues from affiliated companies. In addition,
another element of the definition of ``small business'' requires that
an entity not be dominant in its field of operation. We are unable at
this time to define or quantify the criteria that would establish
whether a specific television broadcast station is dominant in its
field of operation. Accordingly, the estimate of small businesses to
which the rules may apply does not exclude any radio or television
station from the definition of a small business on this basis and is
therefore possibly over-inclusive. An additional element of the
definition of ``small business'' is that the entity must be
independently owned and operated. Because it is difficult to assess
these criteria in the context of media entities, the estimate of small
businesses to which the rules may apply does not exclude any radio or
television station from the definition of a small business on this
basis and similarly may be over-inclusive.
---------------------------------------------------------------------------
\101\ ``[Business concerns] are affiliates of each other when
one concern controls or has the power to control the other or a
third party or parties controls or has the power to control both.''
13 CFR 21.103(a)(1).
---------------------------------------------------------------------------
Cable Companies and Systems (Rate Regulation Standard) The
Commission has also developed its own small business size standards for
the purpose of cable rate regulation. Under the Commission's rules, a
``small cable company'' is one serving 400,000 or fewer subscribers
nationwide.\102\ Industry data indicates that, of the 777 cable
companies currently operating in the United States, 766 serve 400,000
or fewer subscribers.\103\ Additionally, under the Commission's rules,
a ``small system'' is a cable system serving 15,000 or fewer
subscribers.\104\ According to industry data, there are currently 4,336
active cable systems in the United States.\105\ Of this total, 3,650
cable systems have fewer than 15,000 subscribers.\106\ Thus, the
Commission believes that the vast majority of cable companies and cable
systems are small entities.
---------------------------------------------------------------------------
\102\ 47 CFR 76.901(d). The Commission determined that this size
standard equates approximately to a size standard of $100 million or
less in annual revenues. Implementation of Sections of the Cable
Television Consumer Protection and Competition Act of 1992: Rate
Regulation, MM Docket Nos. 93-215 and 92-266, Sixth Report and Order
and Eleventh Order on Reconsideration, 10 FCC Rcd 7393, 7408, para.
28 (1995).
\103\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: National Report, Subscribers by Operator,
<a href="https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome">https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome</a> (last visited Jul. 28, 2020).
\104\ 47 CFR 76.901(c).
\105\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: Headend by Headend Report, Subscribers by
Headend, <a href="https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome">https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome</a> (last visited Jul. 28,
2020).
\106\ Id.
---------------------------------------------------------------------------
Cable System Operators (Telecom Act Standard). The Communications
Act of 1934, as amended, also contains a size standard for small cable
system operators, which is ``a cable operator that, directly or through
an affiliate, serves in the aggregate fewer than one percent of all
subscribers in the United States and is not affiliated with any entity
or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' \107\ As of 2019, there were approximately 48,646,056
basic cable video subscribers in the United States.\108\ Accordingly,
an operator serving fewer than 486,460 subscribers shall be deemed a
small operator if its annual revenues, when combined with the total
annual revenues of all its affiliates, do not exceed $250 million in
the aggregate.\109\ Based on available data, we find that all but five
cable operators are small entities under this
[[Page 48950]]
size standard.\110\ We note that the Commission neither requests nor
collects information on whether cable system operators are affiliated
with entities whose gross annual revenues exceed $250 million.\111\
Therefore, we are unable at this time to estimate with greater
precision the number of cable system operators that would qualify as
small cable operators under the definition in the Communications Act.
---------------------------------------------------------------------------
\107\ 47 U.S.C. 543(m)(2); see also 47 CFR 76.901(e).
\108\ S&P Global Market Intelligence, U.S. Cable Subscriber
Highlights, Basic Subscribers(actual) 2019, U.S. Cable MSO Industry
Total, see also U.S. Multichannel Industry Benchmarks, U.S. Cable
Industry Benchmarks, Basic Subscribers 2019Y, <a href="https://platform.marketintelligence.spglobal.com">https://platform.marketintelligence.spglobal.com</a>.
\109\ 47 CFR 76.901(e).
\110\ S&P Global Market Intelligence, Top Cable MSOs as of 12/
2019, <a href="https://platform.marketintelligence.spglobal.com">https://platform.marketintelligence.spglobal.com</a>. The five
cable operators all had more than 486,460 basic cable subscribers.
\111\ The Commission does receive such information on a case-by-
case basis if a cable operator appeals a local franchise authority's
finding that the operator does not qualify as a small cable operator
pursuant to Sec. 76.901(e) of the Commission's rules. See 47 CFR
76.910(b).
---------------------------------------------------------------------------
Direct Broadcast Satellite (DBS) Service. DBS service is a
nationally distributed subscription service that delivers video and
audio programming via satellite to a small parabolic dish antenna at
the subscriber's location. For the purposes of economic classification,
establishments providing satellite television distribution services
using facilities and infrastructure that they operate are included in
the Wired Telecommunications Carriers industry.\112\ The Wired
Telecommunications Carriers industry comprises establishments primarily
engaged in operating and/or providing access to transmission facilities
and infrastructure that they own and/or lease for the transmission of
voice, data, text, sound, and video using wired telecommunications
networks. Transmission facilities may be based on a single technology
or combination of technologies. Establishments in this industry use the
wired telecommunications network facilities that they operate to
provide a variety of services, such as wired telephony services,
including VoIP services, wired (cable) audio and video programming
distribution; and wired broadband internet services.\113\ The SBA
determines that a wireline business is small if it has fewer than 1,500
employees.\114\ Economic census data for 2012 indicate that 3,117
wireline companies were operational during that year. Of that number,
3,083 operated with fewer than 1,000 employees.\115\ Based on that
data, we conclude that the majority of wireline firms are small under
the applicable standard. However, currently only two entities provide
DBS service, which requires a great deal of capital for operation:
DIRECTV (owned by AT&T) and DISH Network.\116\ According to industry
data, DIRECTV and DISH serve 14,831,379 and 8,957,469 subscribers
respectively, and count the third and fourth most subscribers of any
multichannel video distribution system in the U.S.\117\ Given the
capital required to operate a DBS service, its national scope, and the
approximately one-third share of the video market controlled by these
two companies,\118\ we presume that neither would qualify as a small
business.
---------------------------------------------------------------------------
\112\ See 2017 NAICS Definition, ``517311 Wired
Telecommunications Carriers,'' <a href="https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517311&search=2017%20NAICS%20Search">https://www.census.gov/cgi-bin/sssd/naics/naicsrch?code=517311&search=2017%20NAICS%20Search</a> (last
accessed Jul. 27, 2020).
\113\ Id.
\114\ 13 CFR 121.201 (NAICS Code 517311).
\115\ See Information: Subject Series--Estab and Firm Size:
Employment Size of Firms for the U.S.: 2012, 2012 Economic Census of
the United States, TableID: EC1251SSSZ5, <a href="https://data.census.gov/cedsci/table?q=EC1251&hidePreview=true&table=EC1251SSSZ5&tid=ECNSIZE2012.EC1251SSSZ5&lastDisplayedRow=28#">https://data.census.gov/cedsci/table?q=EC1251&hidePreview=true&table=EC1251SSSZ5&tid=ECNSIZE2012.EC1251SSSZ5&lastDisplayedRow=28#</a> (last accessed Jul. 27, 2020) (NAICS
Code 517110 applied at the time of the 2012 Economic Census).
\116\ See Communications Marketplace Report et al., GN Docket
No. 18-231 et al., Report, 33 FCC Rcd 12558, 12597, paras. 50-51
(2018).
\117\ See S&P Global Market Intelligence, MediaCensus, Operator
Subscribers by Geography: National Report, Subscribers by Operator,
<a href="https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome">https://platform.mi.spglobal.com/web/client?auth=inherit#industry/mediaCensusHome</a> (last visited Jul. 31, 2020).
\118\ See S&P Global Market Intelligence, Global Multichannel
Top Operators, U.S., <a href="https://platform.mi.spglobal.com/web/client?auth=inherit#industry/multichannelIndustryBenchmarks">https://platform.mi.spglobal.com/web/client?auth=inherit#industry/multichannelIndustryBenchmarks</a> (last
visited Jul. 31, 2020) (There were approximately 63,650,261 total
multichannel subscribers in the U.S. in 2019).
---------------------------------------------------------------------------
Satellite Radio. The rules proposed in this NPRM would affect the
sole, current U.S. provider of satellite radio (SDARS) services,
Sirius-XM, which offers subscription services. Sirius-XM reported
revenue of $5.78 billion and a net income of $1.1 billion in 2018.\119\
In light of these figures, we believe it is unlikely that this entity
would be considered small.
---------------------------------------------------------------------------
\119\ See <a href="https://s1.q4cdn.com/750174072/files/doc_financials/2019/ar/2fb89e07-9f09-4e20-be79-9e194d70cd5e.pdf">https://s1.q4cdn.com/750174072/files/doc_financials/2019/ar/2fb89e07-9f09-4e20-be79-9e194d70cd5e.pdf</a>.
---------------------------------------------------------------------------
Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements
Reporting Requirements. The NPRM does not propose any new or
modified reporting requirements.
Recordkeeping Requirements. The NPRM proposes to revise the
political file rules, consistent with the BCRA's amendment to section
315(e) of the Act, to reflect statutory requirements that broadcast
licensees, cable television system operators, DBS providers, and SDARS
licensees are obligated to maintain in their online political
inspection files records of each request for advertising time that ``is
made on behalf of a legally qualified candidate for public office'' and
each request for advertising time that ``communicates a message
relating to any political matter of national importance'' (i.e., issue
ads). In addition, the NPRM proposes to list the specific records that
must be maintained in political files.
Other Compliance Requirements. The NPRM proposes to revise the
political programming rules to add the use of social media to the list
of activities that a broadcast licensee or cable operator may consider
in determining whether an individual who is running as a write-in
candidate has made a ``substantial showing'' of his or her candidacy.
Steps Taken To Minimize Significant Economic Impact on Small Entities,
and Significant Alternatives Considered
The RFA requires an agency to describe any significant alternatives
that it has considered in reaching its proposed approach, which may
include the following four alternatives (among others): (1) The
establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance or reporting requirements under the rule for small entities;
(3) the use of performance, rather than design, standards; and (4) an
exemption from coverage of the rule, or any part thereof, for small
entities.\120\
---------------------------------------------------------------------------
\120\ See 5 U.S.C. 603(c).
---------------------------------------------------------------------------
The proposed revisions to the political file rules to implement the
BCRA would largely codify existing Commission policy and guidance.
Thus, we expect that these revisions, if adopted, would not impose
significant new recordkeeping burdens on small entities. We also seek
comment on possible modifications to the proposed revisions to the
political file rules to lessen any burdens on small entities.
In addition, we anticipate that the proposal to add the use of
social media to the list of activities that may be considered in
determining whether an individual who is running as a write-in
candidate has made a ``substantial showing'' of his or her candidacy
would only benefit small entities by providing additional guidance on
how to make such determinations.
Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rule
None.
Ordering Clauses
Accordingly, it is ordered that, pursuant to the authority
contained in
[[Page 48951]]
sections 1, 4(i), 4(j), 303, 307, 312, 315, 335, and 403 of the
Communications Act, 47 U.S.C 151, 154(i), 154(j), 303, 307, 312, 315,
335, and 403, this Notice of Proposed Rulemaking is adopted.
It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center, shall send a
copy of this Notice, including the Initial Regulatory Flexibility
Analysis, to the Chief Counsel for Advocacy of the Small Business
Administration.
List of Subjects
47 CFR Parts 25
Radio, Reporting and recordkeeping requirements,
Telecommunications.
47 CFR Part 73
Cable television, Education, Radio, Reporting and recordkeeping
requirements, Telecommunications
47 CFR Part 76
Cable television, internet, Reporting and recordkeeping
requirements, Telecommunications
Federal Communications Commission.
Cecilia Sigmund,
Federal Register Liaison Officer, Office of the Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR parts 25, 73, and 76
as follows:
PART 25--SATELLITE COMMUNICATIONS
0
1. The authority citation for part 25 continues to read as follows:
Authority: 47 U.S.C. 154, 301, 302, 303, 307, 309, 310, 319,
332, 605, and 721, unless otherwise noted.
0
2. Amend Sec. 25.701 by revising paragraph (d) to read as follows:
Sec. 25.701 Other DBS Public interest obligations.
* * * * *
(d) Political File. (1) Each DBS operator engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(i) Is made by or on behalf of a legally qualified candidate for
public office; or
(ii) Communicates a message relating to any political matter of
national importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of public importance.
(2) Contents of record. A record maintained under this paragraph
shall contain information regarding:
(i) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(ii) The rate charged for the broadcast time;
(iii) The date and time on which the communication is aired;
(iv) The class of time that is purchased;
(v) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(vi) In the case of a request made by, or on behalf of, a
candidate, the name of the candidate, the authorized committee of the
candidate, and the treasurer of such committee; and
(vii) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
(3) When free time is provided for use by or on behalf of
candidates, a record of the free time provided shall be placed in the
political file.
(4) All records required by this paragraph shall be placed in the
online political file as soon as possible and shall be retained for a
period of two years. As soon as possible means immediately absent
unusual circumstances.
* * * * *
0
3. Amend Sec. 25.702 by revising paragraph (b) to read as follows:
Sec. 25.702 Other SDARS Public interest obligations.
* * * * *
(b) Political File. (1) Each SDARS licensee engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(i) Is made by or on behalf of a legally qualified candidate for
public office; or
(ii) Communicates a message relating to any political matter of
national importance, including:
(A) A legally qualified candidate;
(B) Any election to Federal office; or
(C) A national legislative issue of public importance.
(2) Contents of record. A record maintained under this paragraph
shall contain information regarding:
(i) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(ii) The rate charged for the broadcast time;
(iii) The date and time on which the communication is aired;
(iv) The class of time that is purchased;
(v) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(vi) In the case of a request made by, or on behalf of, a
candidate, the name of the candidate, the authorized committee of the
candidate, and the treasurer of such committee; and
(vii) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
(3) When free time is provided for use by or on behalf of
candidates, a record of the free time provided shall be placed in the
political file.
(4) All records required by this paragraph shall be placed in the
online political file as soon as possible and shall be retained for a
period of two years. As soon as possible means immediately absent
unusual circumstances.
* * * * *
PART 73--RADIO BROADCAST SERVICES
0
4. The authority citation for part 73 continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303, 307, 309, 310, 334,
336, 339.
0
5. Amend Sec. 73.1940 by revising paragraph (f) to read as follows:
Sec. 73.1940 Legally qualified candidates for public office.
* * * * *
(f) The term ``substantial showing'' of a bona fide candidacy as
used in paragraphs (b), (d) and (e) of this section means evidence that
the person claiming to be a candidate has:
(1) Satisfied the requirements under applicable law to run as a
write-in (such as registering, collecting signatures, paying fees,
etc.); and
(2) Has engaged to a substantial degree in activities commonly
associated with political campaigning. Such activities normally would
include making campaign speeches, distributing
[[Page 48952]]
campaign literature, issuing press releases, maintaining a campaign
committee, establishing campaign headquarters (even though the
headquarters in some instances might be the residence of the candidate
or his or her campaign manager), creating a campaign website, and using
social media for the purpose of promoting or furthering a campaign for
public office. Not all of the listed activities are necessarily
required in each case to demonstrate a substantial showing, and there
may be activities not listed herein which would contribute to such a
showing.
0
6. Amend Sec. 73.1943 by revising paragraph (a), redesignating
paragraphs (b) and (c) as paragraphs (c) and (d), and adding new
paragraph (b) to read as follows:
Sec. 73.1943 Political file.
(a) A licensee shall maintain, and make available for public
inspection, a complete record of a request to purchase broadcast time
that:
(1) Is made by or on behalf of a legally qualified candidate for
public office; or
(2) Communicates a message relating to any political matter of
national importance, including:
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of public importance.
(b) Contents of record. A record maintained under paragraph (a) of
this section shall contain information regarding:
(1) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(2) The rate charged for the broadcast time;
(3) The date and time on which the communication is aired;
(4) The class of time that is purchased;
(5) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(6) In the case of a request made by, or on behalf of, a candidate,
the name of the candidate, the authorized committee of the candidate,
and the treasurer of such committee; and
(7) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
* * * * *
PART 76--MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE
0
7. The authority citation for part 76 continues to read as follows:
Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303,
303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503,
521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548,
549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
0
8. Amend Sec. 76.5 by revising paragraph (q)(5) to read as follows:
Sec. 76.5 Definitions.
* * * * *
(q) * * *
(5) The term ``substantial showing'' of a bona fide candidacy as
used in paragraph (q) (2), (3), and (4) of this section means evidence
that the person claiming to be a candidate has:
(i) Satisfied the requirements under applicable law to run as a
write-in (such as registering, collecting signatures, paying fees,
etc.); and
(ii) Has engaged to a substantial degree in activities commonly
associated with political campaigning. Such activities normally would
include making campaign speeches, distributing campaign literature,
issuing press releases, maintaining a campaign committee, establishing
campaign headquarters (even though the headquarters in some instances
might be the residence of the candidate or his or her campaign
manager), creating a campaign website, and using social media for the
purpose of promoting or furthering a campaign for public office. Not
all of the listed activities are necessarily required in each case to
demonstrate a substantial showing, and there may be activities not
listed herein which would contribute to such a showing.
* * * * *
0
9. Amend Sec. 76.1701 by revising paragraph (a), redesignating
paragraphs (b) through (d) as paragraphs (c) through (e), and adding
new paragraph (b) to read as follows:
Sec. 76.1701 Political file.
(a) Every cable television system operator engaged in origination
programming shall maintain, and make available for public inspection, a
complete record of a request to purchase broadcast time that:
(1) Is made by or on behalf of a legally qualified candidate for
public office; or
(2) Communicates a message relating to any political matter of
national importance, including:
(i) A legally qualified candidate;
(ii) Any election to Federal office; or
(iii) A national legislative issue of public importance.
(b) Contents of record. A record maintained under paragraph (a) of
this section shall contain information regarding:
(1) Whether the request to purchase broadcast time is accepted or
rejected by the licensee;
(2) The rate charged for the broadcast time;
(3) The date and time on which the communication is aired;
(4) The class of time that is purchased;
(5) The name of the candidate to which the communication refers and
the office to which the candidate is seeking election, the election to
which the communication refers, or the issue to which the communication
refers (as applicable);
(6) In the case of a request made by, or on behalf of, a candidate,
the name of the candidate, the authorized committee of the candidate,
and the treasurer of such committee; and
(7) In the case of any other request, the name of the person
purchasing the time, the name, address, and phone number of a contact
person for such person, and a list of the chief executive officers or
members of the executive committee or of the board of directors of such
person.
* * * * *
[FR Doc. 2021-17754 Filed 8-31-21; 8:45 am]
BILLING CODE 6712-01-P
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