FEDERAL ELECTION COMMISSION

Washington, DC 20463

MEMORANDUM

TO:

FROM:

DATE:

SUBJECT:

The Commission 

Office of the Commission Secretary 

September 28 2022

AO 2022-20 (Maggie for NH) Comment on 

Draft A and B

Attached is AO 2022-20 (Maggie for NH) Comment on Draft A and B. This 

will be discussed on the Open Meeting of September 29, 2022.

Attachment 
September 28, 2022

BY ELECTRONIC MAIL DELIVERY

The Honorable Allen Dickerson, Chair

Federal Election Commission

1050 First Street NE

Washington, DC 20463 

Re: Comments Regarding Advisory Opinion 2022-20 Drafts A and B

Dear Chair Dickerson:

We submit these comments on behalf of Maggie for NH (the “Committee”) regarding Drafts A

and B of Advisory Opinion 2022-20. The conclusion reached by Draft B is consistent with the 

plain text and purpose of 11 C.F.R. §§ 100.26 and 109.21, as well as with the Commission’s 

precedent regarding general public political advertising. We urge the Commission to vote to 

adopt Draft B. 

Both Draft A and Draft B agree that the crux of the question presented is whether short-code text 

messages constitute “general public political advertising.” Draft B analyzes the question by 

beginning with the plain text meaning of the term and, consistent with Commission precedent, 

asking whether in sending the text messages the Committee is paying to advertise to the general 

public. As Draft B accurately describes, participants in the Committee’s short code text 

messaging program opt into receiving text messages from the Committee, and therefore “have 

sought out the speaker and speech through a forum controlled by the” Committee.1 This contrasts 

with communications the Commission has generally found to constitute general public political 

advertising, which are disseminated “through a medium controlled, and to an audience 

established, by a third party.”2 Participants in the Committee’s short code program are not part of 

an audience established or controlled by an intermediary (e.g., subscribers to a newspaper or 

viewers of a television show), and they are not receiving communications targeted to the general 

public. Instead, the participants have each elected to receive communications from the 

Committee on an individual basis. For these reasons, as Draft B correctly concludes, the short 

code text messages described in the request cannot constitute general public political advertising, 

and in turn also cannot constitute public communications under the Act and Commission 

regulations.

In contrast to this approach, Draft A does not ask whether the text messages are being advertised 

to the general public; rather, it asks whether there is any payment to an intermediary involved. 

1 FEC Adv. Op. 2022-20, Draft B at 7.

2

Id.
September 28, 2022

Page 2

2

This has never been the Commission’s test, and in fact, such a test directly contradicts existing 

Commission regulations. Furthermore, Draft A is premised on a fundamental misconception 

regarding internet communications. The draft asserts that:

[t]o implement its short code text messaging program, Maggie for NH relies upon and pays 

(directly or indirectly) multiple intermediaries, including the entity from which it leases its 

short code, a text messaging vendor, and cellular carriers. Each of these third parties provides 

critical technologies, infrastructure, and expertise necessary for Maggie for NH to 

disseminate communications to its supporters using short code messaging technology.3

The draft then contrasts the use of these intermediaries with websites, which purportedly “do[] 

not incur transactional fees or require the material participation of intermediaries to communicate 

with visitors to the site.”4 However, this statement is fundamentally inaccurate. Contrary to Draft 

A’s assertions, very similar intermediaries are required to make websites accessible to recipients:

• Just as short code numbers must be leased from vendors, website domain names must be 

leased or purchased from vendors.5

• Just as short code messages require a text messaging vendor in order to be sent from a 

campaign through carrier networks,6 websites require a hosting service in order to be 

made accessible by a campaign to visitors on the internet, and ongoing software and 

coding support to adjust content.

7

• And just as short code messages require cellular carrier networks and infrastructure to be 

disseminated to individual recipients, websites require DNS servers8that 

“point[]...website visitors toward the correct IP address,” and internet service providers 

that allow visitors to actually access those websites.9

Each of these “third parties [also] provides critical technologies, infrastructure, and expertise 

necessary for” a campaign to make its website accessible to visitors. And yet a website is plainly 

3 FEC Adv. Op. 2022-20, Draft A at 7

4

Id. at 8.

5 See, e.g., HP, What Is Web Hosting and How Does It Work? (Sept. 18, 2020), https://www.hp.com/usen/shop/tech-takes/what-is-web-hosting; Google Domains, https://domains.google/ (listing annual fees to lease a 

domain name); BlueHost, Buy Domain Name, https://www.bluehost.com/domains (same). 

6 See, e.g., What U.S. wireless carriers support Tatango?, https://help.tatango.com/en/articles/1678960-what-u-swireless-carriers-support-tatango; Twilio, What carriers are supported on Twilio short codes?, 

https://help.tatango.com/en/articles/1678960-what-u-s-wireless-carriers-support-tatango.

7 See, e.g., HP, What Is Web Hosting and How Does It Work? (Sept. 18, 2020), https://www.hp.com/usen/shop/tech-takes/what-is-web-hosting.

8 See Dave Johnson, What is a DNS Server, Business Insider (Feb. 16, 2021), 

https://www.businessinsider.com/guides/tech/what-is-a-dns-server (“A Domain Name System (DNS) server is a 

fundamental part of the backbone of the internet — without it, it would be impossible to use a web browser to find 

websites...[w]hen you ask your computer to load a website, the DNS server matches the website's name with the 

right IP address. This lets your computer find and load it properly.”).

9

Id.; see also What is a DNS and how does it affect my internet use?, 

https://www.plus.net/broadband/discover/what-is-dns-and-how-does-it-affect-my-internet/. 
September 28, 2022

Page 3

3

not general public political advertising under the law – so the mere use of the basic technological 

infrastructure that is necessary for any type of cellular or digital communications cannot, as Draft 

A suggests, be sufficient to render such communications general public political advertising.

Rather, per Commission precedent, the key question in determining whether a communication 

constitutes general public political advertising is whether a committee “is paying for access to an 

established audience using a forum controlled by another person, rather than using a forum that 

he or she controls to establish his or her own audience.”10 Here, the use of short code text 

messaging falls squarely into the latter category; the Committee is sending messages to a list that 

it owns, consisting of recipients who have proactively elected to receive the Committee’s 

message on an individual basis.

For the reasons described above, we respectfully request that the Commission approve Draft B 

and confirm that the short code text messages described in the AOR are not public 

communications, and therefore under the Act and Commission regulations would not constitute 

in-kind contributions to the other committees listed on the Committee’s “split-it” fundraising 

pages.

Very truly yours,

Jacquelyn Lopez

Varoon Modak

Counsel to Maggie for NH

10 FEC, Internet Communications, 71 Fed. Reg. 18589, 18594-95 (Apr. 12, 2006).