Proposed Rule2023-23122
Size of Letters in Disclaimers
Primary source
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
October 20, 2023
Issuing agencies
Federal Election Commission
Abstract
The Commission announces its disposition of a Petition for Rulemaking filed on December 4, 2018, by Extreme Reach. The Petition asks the Commission to amend its regulation on the size of letters in disclaimers in certain television advertisements such that the required letter size for advertisements broadcast in high definition would be reduced. Because changing the Commission's regulations as requested in the Petition would create a direct conflict with regulations of the Federal Communications Commission, the Commission is not initiating a rulemaking at this time.
Full Text
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<title>Federal Register, Volume 88 Issue 202 (Friday, October 20, 2023)</title>
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[Federal Register Volume 88, Number 202 (Friday, October 20, 2023)]
[Proposed Rules]
[Pages 72405-72406]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23122]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 /
Proposed Rules
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FEDERAL ELECTION COMMISSION
11 CFR Part 110
[NOTICE 2023-17]
Size of Letters in Disclaimers
AGENCY: Federal Election Commission.
ACTION: Notification of disposition of Petition for Rulemaking.
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SUMMARY: The Commission announces its disposition of a Petition for
Rulemaking filed on December 4, 2018, by Extreme Reach. The Petition
asks the Commission to amend its regulation on the size of letters in
disclaimers in certain television advertisements such that the required
letter size for advertisements broadcast in high definition would be
reduced. Because changing the Commission's regulations as requested in
the Petition would create a direct conflict with regulations of the
Federal Communications Commission, the Commission is not initiating a
rulemaking at this time.
DATES: October 20, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Amy L. Rothstein, Assistant
General Counsel, or Mr. Anthony T. Buckley, Attorney, 1050 First Street
NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.
SUPPLEMENTARY INFORMATION: The Federal Election Campaign Act, 52 U.S.C.
30101-45 (the ``Act''), and Commission regulations generally require
public communications to feature disclaimers if they are made by a
political committee, expressly advocate the election or defeat of a
clearly identified Federal candidate, or solicit contributions.\1\ The
information these disclaimers must contain depends on whether the
public communications were authorized or funded by a Federal candidate,
an authorized committee of a Federal candidate, or an agent of
either.\2\ Every disclaimer must appear in a clear and conspicuous
manner to provide the reader, observer, or listener adequate notice of
who paid for or authorized the communication.\3\ A disclaimer is not
clear and conspicuous if it is difficult to read or hear or if its
placement is easily overlooked.\4\
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\1\ See 52 U.S.C. 30120(a); 11 CFR 110.11(a).
\2\ See 52 U.S.C. 30120(d); 11 CFR 110.11(b), (c).
\3\ 52 U.S.C. 30120(c), (d); 11 CFR 110.11(c).
\4\ 11 CFR 110.11(c).
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Disclaimers on public communications transmitted through television
or any broadcast, cable, or satellite transmission must meet certain
additional requirements. Notably, the disclaimer must appear in letters
equal to or greater than four percent of the communication's vertical
picture height.\5\
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\5\ See 11 CFR 110.11(c)(3)(iii)(A), (c)(4)(iii)(A).
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On December 4, 2018, the Commission received a Petition for
Rulemaking from Extreme Reach (the ``Petition''). The Petition asks the
Commission to amend 11 CFR 110.11(c)(3)(iii)(A) in two respects: (1) to
specify that the four percent vertical picture height requirement
applies only to the standard definition format; and (2) to add a
separate requirement for the high-definition format where letters must
be equal to or greater than two percent of the vertical picture height.
The Petition argues that the Commission's current four-percent
minimum standard for disclaimers on high-definition-resolution
television advertisements is outdated. The Petition asserts that the
four-percent standard reflects a period when television was broadcast
only in standard definition; that most television advertising currently
is in high-definition resolution; and that the current industry
standard size of a normal disclaimer is 22 pixels, or only about two
percent of the vertical picture height, using high-definition
resolution.\6\ The Petition includes a copy of a publication of the
International Telecommunication Union and the disclaimer portions of
advertising guidelines from the ABC, CBS, and NBC television networks
to support its claims.\7\
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\6\ Petition at 1.
\7\ Id. at 9-12, 13-31.
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The Commission published a Notification of Availability on February
12, 2019, asking for public comment on the Petition.\8\ The Commission
received 27 comments from 26 commenters in response: One comment
supported the Petition; the remaining comments opposed the Petition.\9\
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\8\ Rulemaking Petition; Size of Letters in Disclaimers, 84 FR
3344 (Feb. 12, 2019).
\9\ Of the comments opposing the petition, one was submitted by
an organization, and the remaining 25 were submitted by individuals
(one of whom submitted two comments).
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The comments opposing the Petition asserted several reasons for
doing so. One such comment, submitted by a nonprofit trade association
whose members include television stations and broadcast networks,
asserted that modifying the regulation would force broadcasters to
reject FEC-compliant political advertising to avoid violating Federal
Communications Commission (``FCC'') rules.\10\ The comment stated that
FCC regulations require the sponsor of televised political ads to be
identified ``with letters equal to or greater than four percent of the
vertical picture height,'' leading to an ``untenable conflict'' if the
FEC revised its regulation.\11\ The comment also contended that
reducing the size of the letters might result in unreadable disclaimers
for some viewers because whether a viewer can read a disclaimer will
depend on ``the mechanism for receiving the broadcast signal (e.g.,
over the air, through a cable system), the device used for displaying
the ad (e.g., an older analog television receiver, a 65-inch HD
television) and the visual acuity of the viewer.'' \12\ Further, the
comment disputed the Petition's claim that a two-percent standard would
be consistent with current industry guidelines. The comment noted that
only one of the three network guidelines submitted with the Petition
specifies 22 scanlines as a minimum height to assure legibility.\13\
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\10\ National Association of Broadcasters, Comment.
\11\ Id. at 1-2.
\12\ Id. at 5.
\13\ Id. at 6.
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The remaining comments opposing the Petition were filed by
individuals. Of these, two stated that the proposed standard
contradicts the purpose of the disclaimer requirement in the Act, which
they described as ``provid[ing] transparency'' and ``ensur[ing] voters
are well-informed.'' \14\ The remaining comments were primarily
concerned that the two-percent standard would make disclaimers harder
to read.
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\14\ A. Spencer, Comment; S. Tinsley, Comment.
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A comment filed by a nonpartisan, nonprofit organization supported
the Petition. The comment asserted that
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most televisions in use today ``are significantly larger than those of
the 1970's when [the Act] was enacted, and even than the televisions of
the early 2000's when [the Bipartisan Campaign Reform Act] was
enacted.'' \15\ Consequently, the comment stated, ``[w]hile still
proportionally 4% of the screen, the disclaimer itself has
significantly increased in size, and will continue to increase as
screen size grows.'' \16\ The comment further asserted that ``the
disclaimer visibility proposed in the Petition can easily be seen and
read by the human eye.'' \17\
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\15\ Institute for Free Speech, Comment at 2.
\16\ Id.
\17\ Id. at 3.
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After considering the comments received, the Commission has decided
not to initiate a rulemaking at this time. The Petition's proposal that
the Commission reduce the minimum permissible size of disclaimers on
political advertisements appearing in high-definition format to just
two percent of the vertical picture height would create a conflict
between the Commission's regulations and the FCC's regulation requiring
broadcasters under the FCC's jurisdiction to carry disclaimers on
televised political advertisements ``with letters equal to or greater
than four percent of the vertical picture height.'' \18\ Indeed, the
Commission adopted the minimum four-percent disclaimer standard in 1995
precisely to be consistent with the FCC's four-percent standard.\19\ As
the Commission recognized in that rulemaking, ``the FCC and not the FEC
has authority over these technical requirements'' for broadcasters.\20\
Further, neither the Petition nor the public comments provided a
compelling reason for the Commission to depart from its current minimum
four-percent standard.\21\
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\18\ 47 CFR 73.1212(a)(2)(ii).
\19\ See Communications Disclaimer Requirements, 60 FR 52069,
52071 (Oct. 5, 1995) (noting that ``the FCC conducted a lengthy
rulemaking, in which the FEC participated, before deciding that the
current standards were appropriate'').
\20\ Id. Thus, even if this Commission were to revise its
standard, disclaimers on advertisements falling within the FCC's
jurisdiction would still be subject to the FCC's minimum four-
percent size requirement.
\21\ The Petition does not provide information supporting its
contention that there is an industry standard for the size of
letters in disclaimers, or that the standard is or should be two
percent of the vertical picture height. Only one of the three
network advertising guidelines submitted with the Petition has
established 22 pixels as a minimum size for disclaimers. Petition at
3-6. Moreover, as this is a minimum standard, a disclaimer appearing
at greater than 22 pixels would be consistent with that guideline.
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For the above reasons, the Commission therefore declines to
commence a rulemaking to revise its regulation on the size of letters
in disclaimers on television ads at 11 CFR 110.11(c)(3)(iii)(A).
Copies of the comments and the Petition for Rulemaking are
available on the Commission's website, <a href="http://www.fec.gov/fosers/">http://www.fec.gov/fosers/</a> (REG
2018-05 Size of Letters in Disclaimers (2018)), and at the Commission's
Public Records Office, 1050 First Street NE, Washington, DC 20002,
Monday through Friday between the hours of 9 a.m. and 5 p.m.
Dated: October 16, 2023.
On behalf of the Commission.
Dara Lindenbaum,
Chair, Federal Election Commission.
[FR Doc. 2023-23122 Filed 10-19-23; 8:45 am]
BILLING CODE 6715-01-P
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