FED E R AL E 1. E CT I 0 N C 0 M M IS S I 0 N 

Washington. DC 20463 

Ni EM 0 RAND U M 

TO: The Cornmission 

Staff Director 

General Coilnsel ”\ \

tu 

FROM: W. DoveAieneshe Ferebee-Vines 

Acting Secretary of the Commission 

DATE: February I4,2GrjG 

SGBJECT: Staienwnt of Reasons far MIIR 4,689 

Attached is a copy of the Statement of Reasons for MilJR 4689 

signed by CIxiirrnan Darryl R. Wold Cornmissioner Ann Elliott 

Cornmissioner David M. Mason and Commissioner Karl ?. Sandstrom. 

This was received in the Commission Secretary’s Office on Monday. 

February 14, 2600 at 12:13 p.m. 

cc: Vincent J. Convery Jr. 

Press Office 

Pubiic lnformatiori 

Public Records 

Attachments 
In the hlattes of 

The Honorable Koi~ert K Dormail, et 81. 

MUR 4689 

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On .+iist 24, 1999. the Comnissiu!: considerod rh: Gencral Counsel's Rcport 10 

find rcason to heiieve that the Hor.orahir Robcrt I(.. Dornan Salem Radio Net\vorks and 

ARC Radio NetLvorks violared 2 U.S.C. @;ltb. For the reasons set forth below. \ye 

rqjecred the recomnendaiions. 

This casc involved the broadcast of se,verd natio~~alil-s~ndica!ed radio sho\vs 

guest hosted b? <ormer Corigessnian Doman. The quest ion foi tho Con?mission was 

whether these constituted prohihitcd corpome contrikwions from the stations. 10 Mr. 

Doman. in Yiolaiion of 2 U.S.C. 644lb. 

The General Counsel argued that the purpose of the hroadcasts \vas. ai least in 

part. 10 influence Mr. Doman's elcction to federal office, and rhat rhe stations, by 

ailowing hini IG broadcas! without restriction as to the content of his shoiv. had made 

prohibited corporaie contnbutions. (First General Counsel's Report. pp. 1 1 -IS.) 

As this c3sr: inidved t.he hr:xidcast ofallcgcd!? federal election influericing 

niaterial. u'e began our enalysis b!; csaniining the htts in light ofthe "press cscmption."' 

I See additional Statenwnt of Commissioner ?.lawn addrsssing the ISSW iii tiis matter 11: wore detail. ' The respondents raised the defense that their activiry *.vas protected by the "press exemptton" bund in 

$431(9J(B)(i) ofthe Act. which iias its foundstion in the First Amendment to the Constitution (see HR Rep. 

Nrr. 93-1239, p. 4 (1>74). explaining the pti'posr ofdopililg this nrowsion in the Aci). An "rxpenditurc" 

as defined ~n the FEC'A does tior include "any news srcy, corniiientary. or editorial distributed through thr 

facilities of any broadcasting station. newspaper, magazine. L?: other periodical publication. tinless such 

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After analSzing the facts and applying thc reles.mt law, we concluded that the 

press exempiion u-as applicablt and that no prohibi:ed corporate contributions Xvere 

made. 

11. ANALYSlS 

TI-- sccond prong is also satis5,cd becausc it appears :\:at the entities were acting 

ir; their capacity as inembers of the med:;! in presenting [he piogl-ams in question. The 

propinis at issue are those that featureti :A- Uonian as the guest host on rhrci. different 

radio talk shoivs in 1997. Each of the iiixc talk shows was nationally syndicated and ran 

in most of the t.op radio markers. The shows generklly featured cornmentar?; on political 

topics. inreniavs with political figures. and interaction with caiiers. There is no 

indication that the formats. distribulion. or other aspects of production were any diffCrent 

ivhen Mr. Domari was a guest host than they were when the regular host XIS prescnt. 

(Compare FK v. Mu.s.mhttserrs C'iii-eusjbr L$c (1 986) 37? US. 238. 750-25 I. holding 

rhat a "special edition" of a ne\sspaper ",vas not entitled to the press exemption because of 

i?s substantial difference in production and distnbution from the iegular editions oi" that 
newspaper.) It tilerefore appears that the progams were within the press exemption 

provided in $43 l('-?KB)(i) for "commenra8. .-1 

Bccause ii does not appear :hi Mr. Doman \vas in:.itcd io w~e as a gucsi host 

becatise of any possible carididac).. thc Comniisrion's analysis in tiiree xivisor!, q-hioris 

relied on by the General Coiinscl's Kepon, .4d\'iso~ Opinions 1.000- 16. 1990-4 i . ;<rid 

1996-4s. in which the ~:'cnirnis;ic-n re\,i?i:ed prq<wd fonnats in dcremiiniiig ii.hcllier 

particular programs featurins canciidatcs fell \viiliin th+' press exemption. is not applicable 

!o this matter. (Sre FGC Repon. p. IO.) in addition. the fact tha? thi. Commission 

approved cenain proprain ibmiars 3s prcserited in aiit.iso3 opinion requests cannot bc 

construed as imposing, fernat restrictions on broadcasters gerierally. 

Since it appears that the acrivitirs conip!ained of ale I:mected b)' the prcss 

eserriptio::i, the Canmission lacks subject nist!er jurisdiction over the activity and is 

.- ______ 

This conclusion is conp:sient ~Iin rtut which t!ie Commission rcached in Advisop Opinion 19SZ-14: 

"Although the statute and regula!ions do nom define 'cornrne;itar,..' the Conimisiion is of the \;en iha! 

commcntaq cannot be lirnirrd !o the broadcaster. The escrnpwn alrcody includes the ternr 'editorial' which 

applies specitically to the b:oadcasw's point oi' view In the opinion of the Comnnussion. 'cornnvntary' was 

ir:!endcd IO allow rhr third persons access !D rhc nxdia IO discuss ISSCCS. The statuic and reyulaiions do not 

define Khe iksues permined to be discussed or the formix in which the). arc to br prcsenicd under the 

'comlenraq" rsemplion nor do lhey Set a time liRlil as to the length ol'rhe conuncnrar)." 

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