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.

Proposed Rules Federal Register

6590 

Vol. 75, No. 27 

Wednesday, February 10, 2010 

1The Commission is reevaluating a number of 

other regulations in light of the Citizens United 

decision and intends to begin a separate rulemaking 

to address these other regulations. Commenters will 

have an opportunity to address these other issues 

at that time. 

FEDERAL ELECTION COMMISSION 

11 CFR Parts 100 and 109 

[Notice 2010–01] 

Coordinated Communications 

AGENCY: Federal Election Commission. 

ACTION: Supplemental Notice of 

Proposed Rulemaking. 

SUMMARY: The Federal Election 

Commission is issuing a Supplemental 

Notice of Proposed Rulemaking for the 

Notice of Proposed Rulemaking on 

Coordinated Communications published 

on October 21, 2009, in order to elicit 

comments addressing the impact of the 

Supreme Court’s decision in Citizens 

United v. FEC. The Commission is also 

announcing a public hearing on the 

proposed rules regarding coordinated 

communications. No final decision has 

been made by the Commission on the 

issues presented in this rulemaking. 

DATES: Comments must be received on 

or before February 24, 2010. The hearing 

will be held on Tuesday and 

Wednesday, March 2 and 3, 2010 and 

will begin at 10 a.m. Anyone wishing to 

testify at the hearing must file written 

comments by the due date and must 

include a request to testify in the 

written comments. Any person who 

requested to testify in written comments 

received by the Commission prior to the 

deadline for the initial comment period 

need not request to testify again. 

ADDRESSES: All comments must be in 

writing, addressed to Ms. Amy L. 

Rothstein, Assistant General Counsel, 

and submitted in either electronic, 

facsimile or paper form. Commenters 

are strongly encouraged to submit 

comments electronically to ensure 

timely receipt and consideration. 

Electronic comments should be sent to 

CoordinationShays3@fec.gov. If the 

electronic comments include an 

attachment, the attachment must be in 

Adobe Acrobat (.pdf) or Microsoft Word 

(.doc) format. Faxed comments should 

be sent to (202) 219–3923, with paper 

follow-up. Paper comments and paper 

follow-up of faxed comments should be 

sent to the Federal Election 

Commission, 999 E Street, NW., 

Washington, DC 20463. All comments 

must include the full name and postal 

service address of the commenter or 

they will not be considered. The 

Commission will post comments on its 

website after the comment period ends. 

The hearing will be held in the 

Commission’s ninth floor meeting room, 

999 E Street, NW., Washington, DC. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Amy L. Rothstein, Assistant General 

Counsel, Ms. Jessica Selinkoff, or Ms. 

Joanna Waldstreicher, Attorneys, 999 E 

Street, NW., Washington, DC 20463, 

(202) 694–1650 or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: On 

October 21, 2009, the Commission 

published a Notice of Proposed 

Rulemaking (‘‘NPRM’’) proposing 

possible changes to the ‘‘coordinated 

communication’’ regulations at 11 CFR 

109.21 in response to the decision of the 

Court of Appeals for the District of 

Columbia Circuit in Shays v. FEC, 528 

F.3d 914 (D.C. Cir. 2008) (‘‘Shays III 

Appeal’’). See Notice of Proposed 

Rulemaking on Coordinated 

Communications, 74 FR 53893 (Oct. 21, 

2009). The deadline for comments on 

the NPRM was January 19, 2010. In the 

NPRM, the Commission stated that it 

would announce the date of a hearing at 

a later date. 

I. Extension of Comment Period 

Two days after the close of the 

NPRM’s comment period, on January 

21, 2010, the Supreme Court issued its 

decision in Citizens United v. FEC, No. 

08–205 (U.S. Jan. 21, 2010), available at 

http://www.fec.gov/law/litigation/ 

cu_sc08_opinion.pdf. Citizens United 

may raise issues relevant to the 

coordinated communications 

rulemaking. Therefore, the Commission 

is re-opening the comment period for 

this rulemaking. The Commission seeks 

additional comment as to the effect of 

the Citizens United decision on the 

proposed rules, issues, and questions 

raised in the NPRM and in this 

Supplemental Notice of Proposed 

Rulemaking (‘‘SNPRM’’).1 Comments are 

due on or before February 24, 2010. 

a. General Considerations 

In response to Shays III Appeal, the 

Commission’s NPRM proposed four 

alternatives for revising the content 

prong of the coordinated 

communications test, three alternatives 

for revising the conduct prong of the 

coordinated communications test, two 

alternative definitions of ‘‘promote, 

support, attack, or oppose’’ (‘‘PASO’’), 

and two safe harbors. 

The Commission seeks comments on 

the effect of the Citizens United decision 

on the Commission’s proposals in the 

NPRM. The Commission asks broadly 

whether commenters believe Citizens 

United affects any aspect of the 

proposed rules and also asks specific 

questions regarding certain aspects of 

the proposed rules. 

In concluding that ‘‘independent 

expenditures, including those made by 

corporations, do not give rise to 

corruption or the appearance of 

corruption,’’ the Court explained that 

‘‘ ‘[t]he absence of prearrangement and 

coordination of an expenditure with the 

candidate or his agent not only 

undermines the value of the 

expenditure to the candidate, but also 

alleviates the danger that expenditures 

will be given as a quid pro quo for 

improper commitments from the 

candidate.’ ’’ Citizens United, slip op. at 

41–42 (quoting Buckley v. Valeo, 424 

U.S. 1, 47 (1976)). Does this statement 

suggest the need for a more robust 

coordination rule because the presence 

of prearrangement and coordination 

may result in, or provide the 

opportunity for, quid pro quo 

corruption? 

The Court further held that the 

governmental interest in ‘‘[l]aws that 

burden political speech’’ is ‘‘limited to 

quid pro quo corruption,’’ and that 

‘‘[i]ngratiation and access, in any event, 

are not corruption.’’ Citizens United, slip 

op. at 43, 45. In light of these statements 

in Citizens United, is one of the 

governmental interests asserted in Shays 

III-Appeal for a stricter coordinated 

communications rule—i.e., to prevent 

third-party sponsors of communications 

from ingratiating themselves with 

Federal candidates (528 F.3d at 925)— 

still valid after Citizens United? Or, was 

the Court’s holding limited to the 

independent expenditures that were at 


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Federal Register / Vol. 75, No. 27 / Wednesday, February 10, 2010 / Proposed Rules 6591 

issue in Citizens United? Given that 

coordination was not at issue in Citizens 

United, did the Court’s mention of 

coordination suggest, in any way, that a 

different governmental interest would 

justify regulating non-party speech that 

may be coordinated? 

Now that Citizens United permits 

additional entities, such as public 

corporations and labor organizations, to 

make independent expenditures, does 

the proposed rule on coordinated 

communications adequately address 

those organizations? 

b. Content Standards 

The Commission seeks comment on 

the effect, if any, of the Citizens United 

decision on the proposed content 

standards. What effect does the decision 

have on the proposed Modified WRTL 

content standard, including the 

proposal’s ‘‘functional equivalent of 

express advocacy’’ test? See, e.g., NPRM, 

74 FR at 53902. Should any parts of 11 

CFR 114.15 be included in such a test, 

or is Section 114.15 simply inapplicable 

after Citizens United? Does the 

‘‘functional equivalent of express 

advocacy’’ standard still provide a 

potentially useful coordinated 

communications content standard to 

address the Shays III-Appeal court’s 

concerns? Should the Commission 

devise alternative criteria for the 

Modified WRTL content standard, or 

does the Court’s discussion of the 

Commission’s ‘‘two part, 11-factor 

balancing test to implement WRTL’s 

ruling’’ indicate a general disapproval of 

such an approach? Citizens United, slip 

op. at 18 (referring to FEC v. Wis. Right 

to Life, Inc., 551 U.S. 449 (2007) 

(‘‘WRTL’’)). Are any additional criteria 

necessary at all, or should the 

Commission simply rely on the 

Modified WRTL standard as articulated 

in the proposed rule text? Did the 

Court’s application of the test to Hillary: 

The Movie demonstrate that the Court’s 

‘‘functional equivalent of express 

advocacy’’ standard is sufficiently 

workable without further explanation? 

Additionally, the Commission seeks 

further comment on the examples given 

in the NPRM—both those in the 

proposed PASO definitions and those to 

which the proposed PASO and 

Modified WRTL content standards may 

or may not apply—in light of Citizens 

United. See Citizens United, slip op. at 

3, 20–21, and 52–54; see also NPRM, 74 

FR at 53903–04 and 53911–12. The 

Commission also seeks comment on the 

application of the proposed content 

standard alternatives to the 

communications at issue in Citizens 

United. See Citizens United, slip op. at 

3, 52–54. What impact, if any, does the 

Court’s conclusion that Hillary: The 

Movie is ‘‘the functional equivalent of 

express advocacy’’ have on the 

Commission’s coordinated 

communications rules and in particular 

to the application of the ‘‘express 

advocacy’’ content standard outside the 

90/120-day windows? Does the analysis 

change when the ‘‘functional equivalent 

of express advocacy’’ is not being 

applied to a communication in order to 

strike down a speech prohibition, as in 

Citizens United, but rather to restrict 

certain speech, as in the proposed 

coordination rules? See, e.g., Citizens 

United, slip op. at 10 (‘‘First 

Amendment standards, however, ‘must 

give the benefit of any doubt to 

protecting rather than stifling speech’ ’’) 

(quoting WRTL, 551 U.S. at 469). Is 

there anything in the opinion to suggest 

that the Court intended its conclusion, 

that Hillary: The Movie is ‘‘the 

functional equivalent of express 

advocacy’’ to apply only in limited 

contexts? 

Are the proposed PASO definitions 

sufficiently clear and unambiguous so 

as not to require ‘‘intricate case-by-case 

determinations’’ or to require 

prospective speakers to seek guidance 

from the Commission as to whether 

their proposed speech would be 

coordinated? Id. at 12. Do Citizens 

United and WRTL provide a 

constitutional limit on the reach of the 

proposed PASO standard? Are any 

content standards broader than express 

advocacy or its functional equivalent 

permissible after Citizens United, or are 

these the only standards that the Court 

has concluded are sufficiently clear? In 

light of the Supreme Court’s statements 

that the PASO components ‘‘give the 

person of ordinary intelligence a 

reasonable opportunity to know what is 

prohibited,’’ McConnell v. FEC, 540 U.S. 

93, 170 n.64 (2003), and that any rule 

must ‘‘eschew the open-ended roughand-tumble of factors,’’ Citizens United, 

slip op. at 19 (quoting WRTL, 551 U.S. 

at 469), should the Commission adopt a 

PASO content standard without a 

definition? In the absence of a 

definition, would the rule provide 

specific enough guidance to prospective 

speakers? Would such a rule be 

enforceable by the Commission? 

More generally, how should the 

Commission conduct investigations in 

enforcement actions arising from 

allegations of coordination? Does the 

Court’s holding in Citizens United that 

corporations have a First Amendment 

right to make independent expenditures 

raise concerns about investigating 

potentially coordinated 

communications that do not exist in 

other contexts? Would investigations to 

determine whether a communication is 

independent or coordinated (and thus a 

contribution), chill protected speech? 

To avoid such a risk, should the 

Commission require a heightened 

standard (e.g., requiring more 

particularity or specificity) in any 

complaint alleging coordination before 

opening an enforcement proceeding? 

Should such a heightened complaint 

standard be adopted with, or regardless 

of, any revised content standard? Would 

such a heightened complaint standard 

impair the Commission’s ability to 

investigate allegations of contributions 

via coordination? Does anything in the 

Act (particularly 2 U.S.C. 437g(a)) 

authorize or preclude the Commission 

from adopting a heightened complaint 

standard for coordination allegations? If 

the Commission may not require a 

heightened complaint standard for 

coordination allegations, would that 

then preclude the application of a 

broader content standard? Why? 

c. Safe Harbors 

Additionally, the NPRM proposes safe 

harbors that would exempt certain 

communications sponsored by 501(c)(3) 

organizations or candidates’ businesses 

from being treated as coordinated. 

NPRM, 74 FR at 53907–53910. Are these 

proposed safe harbors consistent with 

the Citizens United decision? See, e.g., 

slip op. at 24 (‘‘Prohibited too, are 

restrictions distinguishing among 

different speakers, allowing speech by 

some but not others.’’). Should the 

proposed safe harbors apply broadly 

regardless of the types of entities 

involved? For example, should there be 

a safe harbor from the coordination 

rules for any public communication in 

which a candidate for Federal office 

expresses or seeks support for any type 

of organization, or for a position on a 

public policy or legislative proposal 

espoused (or opposed) by that 

organization? Similarly, should the safe 

harbor for commercial transactions 

include any public communication in 

which a candidate for Federal office 

proposes any type of commercial 

transaction, regardless of whether it is 

for a business that the candidate owns 

or operates, or whether the business 

existed prior to the candidacy? Would 

such safe harbors be overbroad or 

undermine the efficacy of the rule? 

d. Consequences of Court’s Media 

Exemption Analysis 

In Citizens United, the Court stated, 

‘‘There is no precedent supporting laws 

that attempt to distinguish between 

corporations which are deemed to be 

exempt as media corporations and those 

which are not,’’ and ‘‘[t]his differential 


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treatment [between corporations with 

and without media outlets] cannot be 

squared with the First Amendment.’’ 

Slip op. at 37. Does the Court’s analysis 

of the media exemption affect the 

proposed rule changes, or the 

coordination rules generally? If so, how? 

II. Notice of Hearing 

The Commission announces that a 

hearing will be held on Tuesday, March 

2, 2010 and Wednesday, March 3, 2010 

(see DATES and ADDRESSES, above). The 

witnesses will be those individuals who 

indicated in their timely comments, 

whether to the NPRM published on 

October 21, 2009 or to this notice, that 

they wish to testify at the hearing. 

Individuals who plan to attend and 

require special assistance, such as sign 

language interpretation or other 

reasonable accommodations, should 

contact the Commission Secretary’s 

office at (202) 694–1040, at least 72 

hours prior to the hearing date. 

Dated: February 5, 2010. 

On behalf of the Commission, 

Matthew S. Petersen, 

Chairman, Federal Election Commission. 

[FR Doc. 2010–2973 Filed 2–9–10; 8:45 am] 

BILLING CODE 6715–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2009–1153; Airspace 

Docket No. 09–ACE–13] 

Proposed Amendment of Class E 

Airspace; Emmetsburg, IA 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: This action proposes to 

amend Class E airspace at Emmetsburg, 

IA. Additional controlled airspace is 

necessary to accommodate new 

Standard Instrument Approach 

Procedures (SIAPs) at Emmetsburg 

Municipal Airport, Emmetsburg, IA. 

The FAA is taking this action to 

enhance the safety and management of 

Instrument Flight Rules (IFR) operations 

for SIAPs at the airport. 

DATES: 0901 UTC. Comments must be 

received on or before March 29, 2010. 

ADDRESSES: Send comments on this 

proposal to the U.S. Department of 

Transportation, Docket Operations, 1200 

New Jersey Avenue SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. You must 

identify the docket number FAA–2009– 

1153/Airspace Docket No. 09–ACE–13, 

at the beginning of your comments. You 

may also submit comments through the 

Internet at http://www.regulations.gov. 

You may review the public docket 

containing the proposal, any comments 

received, and any final disposition in 

person in the Dockets Office between 9 

a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The 

Docket Office (telephone 1–800–647– 

5527), is on the ground floor of the 

building at the above address. 

FOR FURTHER INFORMATION CONTACT: 

Scott Enander, Central Service Center, 

Operations Support Group, Federal 

Aviation Administration, Southwest 

Region, 2601 Meacham Blvd, Fort 

Worth, TX 76137; telephone: (817) 321– 

7716. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

Interested parties are invited to 

participate in this proposed rulemaking 

by submitting such written data, views, 

or arguments, as they may desire. 

Comments that provide the factual basis 

supporting the views and suggestions 

presented are particularly helpful in 

developing reasoned regulatory 

decisions on the proposal. Comments 

are specifically invited on the overall 

regulatory, aeronautical, economic, 

environmental, and energy-related 

aspects of the proposal. 

Communications should identify both 

docket numbers and be submitted in 

triplicate to the address listed above. 

Commenters wishing the FAA to 

acknowledge receipt of their comments 

on this notice must submit with those 

comments a self-addressed, stamped 

postcard on which the following 

statement is made: ‘‘Comments to 

Docket No. FAA–2009–1153/Airspace 

Docket No. 09–ACE–13.’’ The postcard 

will be date/time stamped and returned 

to the commenter. 

Availability of NPRMs 

An electronic copy of this document 

may be downloaded through the 

Internet at http://www.regulations.gov. 

Recently published rulemaking 

documents can also be accessed through 

the FAA’s Web page at http:// 

www.faa.gov/airports_airtraffic/ 

air_traffic/publications/ 

airspace_amendments/. 

You may review the public docket 

containing the proposal, any comments 

received, and any final disposition in 

person in the Dockets Office (see 

‘‘ADDRESSES’’ section for address and 

phone number) between 9 a.m and 5 

p.m., Monday through Friday, except 

Federal holidays. An informal docket 

may also be examined during normal 

business hours at the office of the 

Central Service Center, 2601 Meacham 

Blvd, Fort Worth, TX 76137. 

Persons interested in being placed on 

a mailing list for future NPRM’s should 

contact the FAA’s Office of Rulemaking 

(202) 267–9677, to request a copy of 

Advisory Circular No. 11–2A, Notice of 

Proposed Rulemaking Distribution 

System, which describes the application 

procedure. 

The Proposal 

This action proposes to amend Title 

14, Code of Federal Regulations (14 

CFR), Part 71 by adding additional Class 

E airspace extending upward from 700 

feet above the surface for SIAPs 

operations at Emmetsburg Municipal 

Airport, Emmetsburg, IA. Controlled 

airspace is needed for the safety and 

management of IFR operations at the 

airport. 

Class E airspace areas are published 

in Paragraph 6005 of FAA Order 

7400.9T, dated August 27, 2009, and 

effective September 15, 2009, which is 

incorporated by reference in 14 CFR 

71.1. The Class E airspace designation 

listed in this document would be 

published subsequently in the Order. 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore, (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a Regulatory Evaluation 

as the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this rule, 

when promulgated, will not have a 

significant economic impact on a 

substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the U.S. Code. Subtitle 1, 

Section 106 describes the authority of 

the FAA Administrator. Subtitle VII, 

Aviation Programs, describes in more 

detail the scope of the agency’s 

authority. This rulemaking is 

promulgated under the authority 

described in Subtitle VII, Part A, 

Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 


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