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

72405 

Vol. 88, No. 202 

Friday, October 20, 2023 

1See 52 U.S.C. 30120(a); 11 CFR 110.11(a). 

2See 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). 

5See 11 CFR 110.11(c)(3)(iii)(A), (c)(4)(iii)(A). 

6Petition at 1. 

7 Id. at 9–12, 13–31. 

8Rulemaking Petition; Size of Letters in 

Disclaimers, 84 FR 3344 (Feb. 12, 2019). 

9Of 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). 

10National Association of Broadcasters, 

Comment. 

11 Id. at 1–2. 

12 Id. at 5. 

13 Id. at 6. 

14A. Spencer, Comment; S. Tinsley, Comment. 

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. 

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

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

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 highdefinition 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

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

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

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. 

A comment filed by a nonpartisan, 

nonprofit organization supported the 

Petition. The comment asserted that 


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72406 Federal Register / Vol. 88, No. 202 / Friday, October 20, 2023 / Proposed Rules 

15 Institute for Free Speech, Comment at 2. 

16 Id. 

17 Id. at 3. 

18 47 CFR 73.1212(a)(2)(ii). 

19See 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. 

21The 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. 

1See 52 U.S.C. 30108(a); see also 11 CFR part 

112. 

2 11 CFR 112.5. 

3See 52 U.S.C. 30108(a); 11 CFR 112.4(a) and (b). 

4The Commission must respond to a person who 

submits an incomplete AOR or one that does not 

qualify under 11 CFR 112.1(b) within 10 days to 

‘‘specify the deficiencies in the request.’’ 11 CFR 

112.1(d). 

5See 52 U.S.C. 30108(a); 11 CFR 112.4(a) and (b). 

6 Id. Candidates are entitled to receive a response 

to a AOR within 20 days if the request is made 

within 60 days of an election in which the 

candidate is participating and it presents a specific 

transaction or activity related to the election that 

may invoke the 20 day period if the connection is 

explained in the request. See 52 U.S.C. 30108(a)(2); 

11 CFR 112.4(b). Further, the Commission has an 

informal process under which it may, upon request, 

issue an opinion within 30 days under certain 

circumstances. See Notice of New Advisory 

Opinion Procedures and Explanation of Existing 

Procedures, 74 FR 32160 (July 7, 2009). 

7See 52 U.S.C. 30108(d); see also11 CFR 112.3. 

8See Revision to Advisory Opinion Comment 

Procedure, 58 FR 62259 (Nov. 26, 1993); Notice of 

Advisory Opinion Procedure, 74 FR 32160 (July 7, 

2009). The Commission endeavors to release at least 

one draft AO at least one week in advance. Drafts 

that are not available by the one-week deadline are 

required to be identified as ‘‘late submitt[ed]’’ and 

subject to additional procedural requirements 

before the Commission may consider them. See 

Comm’n Dir. No. 17 (effective date May 6, 2021), 

available at https://www.fec.gov/resources/cmscontent/documents/directive_17.pdf. 

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

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

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 

FEDERAL ELECTION COMMISSION 

11 CFR Part 112 

[NOTICE 2023–16] 

Advisory Opinion Comment 

Procedures 

AGENCY: Federal Election Commission. 

ACTION: Notification of disposition of 

Petition for Rulemaking. 

SUMMARY: The Commission announces 

its disposition of a Petition for 

Rulemaking. The Petition asked the 

Commission to modify its regulation on 

written comments on advisory opinion 

requests to provide time for the public 

to comment on drafts of advisory 

opinions before the Commission votes 

on the drafts. For the reasons described 

in detail below, the Commission is not 

initiating a rulemaking at this time. 

DATES: October 20, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Robert M. Knop, Assistant General 

Counsel, or Mr. Evan R. Christopher, 

Attorney, 1050 First Street NE, 

Washington, DC 20463, (202) 694–1650 

or (800) 424–9530. 

SUPPLEMENTARY INFORMATION: The 

Federal Election Campaign Act (the 

‘‘Act’’), 52 U.S.C. 30101–45, authorizes 

the Commission to issue advisory 

opinions on written questions about the 

applicability of the Act or Commission 

regulations to a specific transaction or 

activity that the requesting person plans 

to undertake or is presently undertaking 

and intends to undertake in the future.1

The persons involved in the specific 

activity described in the request, as well 

as any person involved in an activity 

‘‘which is indistinguishable in all its 

material aspects’’ from the specific 

activity described in the request, may 

rely on the advisory opinion to avoid 

sanction by the Commission for 

engaging in that activity.2

The Act and Commission regulations 

require the Commission to respond to 

all requests for advisory opinions.3 The 

Commission must respond to any 

advisory opinion request (‘‘AOR’’) that 

is complete and qualified under 11 CFR 

112.1(b) 4 with either a formal advisory 

opinion (‘‘AO’’) or notice that the 

Commission was unable to issue an AO 

with the required minimum of four 

affirmative votes.5 The Commission 

must publicize receipt of a complete 

and qualified AOR and formally 

respond within 20 or 60 days of 

receiving a complete AOR.6

Requestors and interested persons are 

provided several opportunities to 

participate in the Commission’s AOR 

process. First, the Act requires that the 

Commission provide a 10-day window 

for public comment on complete, 

qualified, AORs before the Commission 

issues a formal response.7 Second, 

beginning provisionally in 1993 and 

adopted formally in 2009, it is the 

Commission’s policy to seek comments 

on drafts of advisory opinions, which it 

endeavors to release at least one week 

before the meeting at which it will 

consider the AOR and any draft AOs.8

Third, the Commission allows an AOR 

requestor to ask to appear before the 

Commission to answer questions about 

the AOR at the open meeting at which 

the Commission considers the AOR and 


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