[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 [www.gpo.gov]
[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

[[Page 72405]]



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

[[Page 72406]]

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, http://www.fec.gov/fosers/ (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