FEDERAL ELECTION COMMISSION WASHINGTON, D.C.

 

January 11, 2024 

ADVISORY OPINION 2023-10 

Caleb P. Burns, Esq. 

Andrew G. Woodson, Esq. 

Wiley Rein LLP 

2050 M St NW 

Washington, DC 20036 

Dear Messrs. Burns and Woodson: 

 We are responding to your advisory opinion request on behalf of Sony Pictures 

Television Inc. regarding the application of the Federal Election Campaign Act, 52 U.S.C. 

§§ 30101-45 (the “Act”), and Commission regulations to the production and distribution of a 

fictional entertainment program that includes a candidate for U.S. Senate. The Commission 

concludes that, under the facts presented here, the requestor’s production and distribution of The 

Good Doctor, a fictional entertainment program, is exempt from regulation under the Act’s 

media exemption. 

Background 

The facts presented in this advisory opinion are based on your letter received on 

November 6, 2023, and publicly available information.

Sony Pictures Television Inc. (“Sony”) is a subsidiary of Sony Pictures Entertainment 

Inc., a global media company incorporated in Delaware, headquartered in Culver City, 

California, and whose operations include motion picture production, acquisition, and 

distribution; television production, acquisition, and distribution; digital content creation and 

distribution; operation of studio facilities; and development of new entertainment products, 

services and technology.1

 You state that Sony Pictures Entertainment Inc. is not owned or 

controlled by any political party, political committee, or candidate.2

1

 Advisory Opinion Request (“AOR”) at AOR001. 

2

 Id. 
AO 2023-10 (Sony Pictures Television) 

Page 2

Since 2017, Sony has produced and distributed a fictional television show called The 

Good Doctor.

3

 Sony distributes older episodes of the show in syndication to local television 

stations across the country, as well as through a major online streaming platform and the Armed 

Forces Network. 4

 Mr. Hill Harper has played a regular character on the show since its 

inception.5

 

On July 10, 2023, Mr. Harper filed as a candidate in the 2024 Democratic primary to 

represent Michigan in the U.S. Senate.6 You state that no past or planned episodes of The Good 

Doctor refer to Mr. Harper’s candidacy, nor do they advocate for his election.7 Mr. Harper’s 

name only appears on the show in the credit sequence at the opening of each episode.8

Further, you state that all of Sony’s distribution agreements, whether with ABC, Hulu, or 

individual stations, predate Mr. Harper’s decision to run for office, and that Sony has no plans to 

distribute The Good Doctor with any greater frequency in Michigan than it did prior to the 

announcement of Mr. Harper’s candidacy.9 Mr. Harper does not have any input or control over 

how Sony distributes The Good Doctor; he is merely an actor who portrays a character on the 

show.10

Question Presented

Is Sony’s production and distribution of a fictional entertainment program that includes a 

candidate for U.S. Senate as a cast member exempt from regulation under the Act’s media 

exemption? 

Legal Analysis 

The Commission determines that, yes, under the facts described in the request, Sony’s 

production and distribution of a fictional entertainment program that includes a candidate for 

U.S. Senate as a cast member is exempt from regulation under the Act’s media exemption. 

3

 AOR002. 

4

 Id. 

5

 Id. 

6

 Statement of Candidacy of Frank Eugene Hill Harper, filed July 10, 2023, https://docquery.fec.gov/cgibin/forms/S4MI00553/1710574/. 

7

 AOR002.

8

 Id. 

9

 Id. 

10 AOR002. 
AO 2023-10 (Sony Pictures Television) 

Page 3

The Act and Commission regulations define the terms “contribution” and “expenditure” 

to include any gift of money or “anything of value” for the purpose of influencing a federal 

election.11 An electioneering communication is defined as a broadcast, cable, or satellite 

communication that refers to a clearly-identified federal candidate, is not coordinated with a 

candidate, is disseminated within 30 days of a primary or 60 days of a general election, and is 

targeted to the candidate’s electorate.

12

However, the Act and Commission regulations provide for a set of exclusions to these 

definitions known as the “press exemption” or the “media exemption.”13 The Act states that

“[t]he term ‘expenditure’ does not include . . . any news story, commentary, or editorial 

distributed through the facilities of any broadcasting station, newspaper, magazine, or other 

periodical publication, unless such facilities are owned or controlled by any political party, 

political committee, or candidate.”14 Commission regulations further stipulate that neither a 

“contribution” nor an “expenditure” results from “[a]ny cost incurred in covering or carrying a 

news story, commentary, or editorial by any broadcasting station (including a cable television 

operator, programmer or producer) . . . unless the facility is owned or controlled by any political 

party, political committee, or candidate[.]”15 Similarly, Commission regulations exempt from 

the definition of “electioneering communication” any communication that “[a]ppears in a news 

story, commentary or editorial distributed through the facilities of any broadcast, cable or 

satellite television or radio station, unless such facilities are owned or controlled by any political 

party, political committee, or candidate.”16 Thus, costs and communications coming within this 

exemption are not contributions, expenditures, or electioneering communications under the Act 

or Commission regulations. 

The legislative history of the press exemption indicates that Congress did not intend to 

“limit or burden in any way the First Amendment freedoms of the press and of association.”17 

The exemption was enacted to “[assure] the unfettered right of the newspapers, TV networks, 

and other media to cover and comment on political campaigns.”18 Six years later, in 1980, the 

Commission observed in an advisory opinion that the media exemption applies to publications 

“containing articles of news, information, opinion or entertainment.”19

11 52 U.S.C. §§ 30101(8)(A)(i), (9)(A)(i); 11 C.F.R. §§ 100.52(a), 100.111(a). 

12 52 U.S.C. § 30104(f)(3); 11 C.F.R. § 100.29(a).

13 For the purposes of this opinion, the terms “press” and “media” are used interchangeably.

14 52 U.S.C. § 30101(9)(B)(i). 

15 11 C.F.R. §§ 100.73, 100.132.

16 11 C.F.R. § 100.29(c)(2). 

17 H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974).

18 Id. 

19 Advisory Opinion 1980-109 (Hansen) (this language was cited by the Commission in 2006, see Internet 

Communications, 71 Fed. Reg. 18,589, 18, 610 (Apr. 12, 2006)).
AO 2023-10 (Sony Pictures Television) 

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The Commission has historically conducted a two-step analysis to determine whether the 

media exemption applies. First, the Commission asks whether the entity engaging in the activity 

is a press or media entity.20 Second, the Commission applies the two-part analysis presented in 

Reader’s Digest Association v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981), which requires 

it to determine: 

(A) Whether the entity is owned or controlled by a political party, political 

committee, or candidate; and 

(B) Whether the entity is acting as a press entity in conducting the activity at issue 

(i.e., whether the press entity is acting in its “legitimate press function”).21

1. Sony is a Media Entity 

The Act and Commission regulations exclude from the definition of contribution and 

expenditure costs for content produced by “any broadcasting station (including a cable television 

operator, programmer or producer).”22 Excluded from the definition of “electioneering 

communication” is any communication that “[a]ppears in a news story, commentary or editorial 

distributed through the facilities of any broadcast, cable or satellite television or radio station.”23 

In advisory opinions from 1980 and 2003, the Commission concluded that both an entertainment 

periodical and a fictional television show were covered by the media exemption.24 25 The 

Commission thus concludes that Sony is a media entity because it regularly produces television 

programming, including fictional entertainment, for distribution via broadcast and cable 

television. 

2. The Two-Part Reader’s Digest Test

(A)Sony is not Owned or Controlled by a Political Party, Political Committee, or 

Candidate 

 

20 See, e.g., Advisory Opinions 2011-11 (Colbert), 2005-16 (Fired Up!), 1996-16 (Bloomberg), and 1980-90 

(Atlantic Richfield).

21 See also FEC v. Phillips Publ’g, 517 F. Supp. 1308, 1312-13 (D.D.C. 1981); Advisory Opinions 2007-20 

(XM Radio), 2005-19 (Inside Track), 2005-16 (Fired Up!), and 2004-07 (MTV).

22 52 U.S.C. § 30101(9)(B)(i); 11 C.F.R. §§ 100.73, 100.132. 

23 11 C.F.R. § 100.29(c)(2).

24 Advisory Opinion 1980-109 (Hansen) (quoted later by the Commission in a 2006 rulemaking, see Internet 

Communications, 71 Fed. Reg. 18,589, 18, 610 (Apr. 12, 2006)).

25 Advisory Opinion 2003-34 (Showtime).
AO 2023-10 (Sony Pictures Television) 

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The requestor states that its parent company, Sony Pictures Entertainment Inc., is neither

owned nor controlled by a political party, political committee, or candidate.26 The Commission 

assumes this also means that no political party, political committee, or candidate owns or 

controls any of the entities in Sony’s entire ownership chain, including the ultimate parent 

corporation. 

(B) Sony is Acting in its Legitimate Press Function 

The Commission considers two factors in determining whether a press or media entity is 

acting in its legitimate press function. They are (1) whether the press entity’s materials are 

available to the general public, and (2) whether the materials are comparable in form to those 

ordinarily issued by the press entity.27

In looking at these two factors, the Commission has also considered whether a press 

entity’s press function is “distinguishable from active participation in core campaign or 

electioneering functions.”28 While the press exemption covers press or media activity, it does 

not cover campaign activity, even if the campaign activity is conducted by a press entity.29 

The Commission concludes that Sony’s production of The Good Doctor is part of its 

legitimate press function under the above factors. The materials that Sony produces are 

available to the general public as they are widely distributed via network television stations and 

major streaming platforms. The Good Doctor is comparable to materials ordinarily issued by 

Sony as it is a serial fictional program similar in form, function, and distribution method to the 

numerous other television shows the company has produced.30 Finally, there is no indication 

that Sony’s production, distribution, and marketing of The Good Doctor are campaign activities. 

The only mention of the candidate is his name in the credits and the candidate does not have 

input on business, advertising, or distribution decisions related to the show. Distribution 

agreements predate Mr. Harper’s candidacy, and the requestor has no plans to distribute The 

Good Doctor with any greater frequency in Michigan than it did prior to the announcement of 

Mr. Harper’s candidacy. The Commission also assumes that Sony will continue to use its regular 

production facilities and staff for The Good Doctor. 

26 AOR001.

27 See Advisory Opinions 2011-11 (Colbert); 2005-16 (Fired Up!) (citing FEC v. Mass. Citizens for Life 

(“MCFL”), 479 U.S. 238, 251 (1986)); and 2000-13 (iNEXTV).

28 Advisory Opinion 2008-14 (Melothé) at 5. 

29 See MCFL, 479 U.S. at 251 (recognizing “the distinction of campaign flyers from regular publications”); 

Reader’s Digest Ass’n, 509 F. Supp. at 1214 (the press exemption would not apply where, “for example, on Election 

Day a partisan newspaper hired an army of incognito propaganda distributors to stand on street corners denouncing 

allegedly illegal acts of a candidate and sent sound trucks through the streets blaring the same denunciations, all in a 

manner unrelated to the sale of its newspapers”); see also McConnell v. FEC, 540 U.S. 93, 208 (2003) (commenting 

that the press exemption “does not afford carte blanche to media companies generally to ignore [the Act’s]

provisions”). 

30 Sony, Explore Our Titles, https://www.sonypictures.com/tv-allshows. 
AO 2023-10 (Sony Pictures Television) 

Page 6

Conclusion

After applying the aforementioned factors, the Commission concludes that Sony’s 

production and distribution of The Good Doctor falls within the bounds of the Act’s media 

exemption. 

This response constitutes an advisory opinion concerning the application of the Act and 

Commission regulations to the specific transaction or activity set forth in your request.31 The 

Commission emphasizes that, if there is a change in any of the facts or assumptions presented, 

and such facts or assumptions are material to a conclusion presented in this advisory opinion, the 

requestor may not rely on that conclusion as support for its proposed activity. Any person 

involved in any specific transaction or activity that is indistinguishable in all its material aspects 

from the transaction or activity with respect to which this advisory opinion is rendered may rely 

on this advisory opinion.32 Please note that the analysis or conclusions in this advisory opinion 

may be affected by subsequent developments in the law including, but not limited to, statutes, 

regulations, advisory opinions, and case law. Any advisory opinions cited herein are available 

on the Commission’s website.

On behalf of the Commission, 

Sean J. Cooksey, 

Chairman

31 See 52 U.S.C. § 30108.

32 See id. § 30108(c)(1)(B).