[Federal Register Volume 82, Number 194 (Tuesday, October 10, 2017)]
[Proposed Rules]
[Pages 46937-46938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21706]


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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. 82, No. 194 / Tuesday, October 10, 2017 / 
Proposed Rules

[[Page 46937]]



FEDERAL ELECTION COMMISSION

11 CFR Part 110

[Notice 2017-12]


Internet Communication Disclaimers; Reopening of Comment Period

AGENCY: Federal Election Commission.

ACTION: Reopening of comment period.

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SUMMARY: On October 13, 2011, the Federal Election Commission published 
an Advance Notice of Proposed Rulemaking (``ANPRM'') seeking comment on 
whether to begin a rulemaking to revise its regulations concerning 
disclaimers on certain internet communications and, if so, on what 
changes should be made to those rules. On October 18, 2016, the 
Commission reopened the comment period to receive additional comments 
in light of legal and technological developments since that document 
was published. The Commission has decided to again reopen the comment 
period to receive additional comments in light of developments since 
that document was published. The Commission is not seeking comment on, 
nor does it propose changes to, any other rules adopted by the 
Commission in the Internet Communications rulemaking of 2006.

DATES: The comment period for the ANPRM published October 13, 2011 (76 
FR 63567) is reopened. Comments must be received on or before November 
9, 2017.

ADDRESSES: All comments must be in writing. Commenters are encouraged 
to submit comments electronically via the Commission's Web site at 
www.fec.gov/netdisclaimers or at http://www.fec.gov/fosers, reference 
REG 2011-02. Alternatively, commenters may submit comments in paper 
form, addressed to the Federal Election Commission, Attn.: Neven F. 
Stipanovic, Acting Assistant General Counsel, 999 E Street NW., 
Washington, DC 20463.
    Each commenter must provide, at a minimum, his or her first name, 
last name, city, state, and zip code. All properly submitted comments, 
including attachments, will become part of the public record, and the 
Commission will make comments available for public viewing on the 
Commission's Web site and in the Commission's Public Records Office. 
Accordingly, commenters should not provide in their comments any 
information that they do not wish to make public, such as a home street 
address, personal email address, date of birth, phone number, social 
security number, driver's license number, or any information that is 
restricted from disclosure, such as trade secrets or commercial or 
financial information that is privileged or confidential.

FOR FURTHER INFORMATION CONTACT: Mr. Neven F. Stipanovic, Acting 
Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E 
Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: On October 13, 2011, the Commission 
published in the Federal Register an ANPRM seeking comment on whether 
and how to revise the rules at 11 CFR 110.11 regarding disclaimers on 
internet communications.\1\ Specifically, the Commission was 
considering whether to modify the disclaimer requirements for certain 
internet communications, or to provide exceptions thereto, consistent 
with the Federal Election Campaign Act, 52 U.S.C. 30101-46 (``the 
Act''). The Commission received seven substantive comments in response 
to the ANPRM. All but one of the commenters agreed that the Commission 
should update the disclaimer rules through a rulemaking, though 
commenters differed on how the Commission should do so.
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    \1\ See Internet Communication Disclaimers, 76 FR 63567 (Oct. 
13, 2011).
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    As discussed in the ANPRM, a ``disclaimer'' is a statement that 
must appear on certain communications to identify who paid for it and, 
where applicable, whether the communication was authorized by a 
candidate. 52 U.S.C. 30120(a); 11 CFR 110.11. With some exceptions, the 
Act and Commission regulations require disclaimers for public 
communications: (1) made by a political committee; (2) that expressly 
advocate the election or defeat of a clearly identified federal 
candidate; or (3) that solicit a contribution. U.S.C. 30120(a); 11 CFR 
110.11(a). While the term ``public communication'' generally does not 
include internet communications, it does include ``communications 
placed for a fee on another person's Web site.'' 11 CFR 100.26.\2\ In 
addition to these internet public communications, ``electronic mail of 
more than 500 substantially similar communications when sent by a 
political committee . . . and all Internet Web sites of political 
committees available to the general public'' also must have 
disclaimers. 11 CFR 110.11(a).
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    \2\ The Commission is currently proposing amendments intended to 
modernize a number of regulations, including 11 CFR 100.26. To 
review those proposals and other Commission rulemaking documents, 
visit http://www.fec.gov/fosers, reference REG 2013-01.
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    Commission regulations set forth certain exceptions to the general 
disclaimer requirements. For example, disclaimers are not required for 
communications placed on ``[b]umper stickers, pins, buttons, pens, and 
similar small items upon which the disclaimer cannot be conveniently 
printed.'' 11 CFR 110.11(f)(1)(i) (the ``small items exception''). Nor 
are disclaimers required for ``[s]kywriting, water towers, wearing 
apparel, or other means of displaying an advertisement of such a nature 
that the inclusion of a disclaimer would be impracticable.'' 11 CFR 
110.11(f)(1)(ii) (the ``impracticable exception'').
    As discussed in the ANPRM, some internet advertisements are so 
character-limited that providing all the disclaimer information 
required by the Act may take up much of the available ad characters. 
See Advisory Opinion 2010-19 (Google) (describing 95-character search 
result advertisements); cf. Advisory Opinion Request 2011-09 (Facebook) 
(describing several categories of advertisements ranging from zero to 
160 characters).\3\ However, the ANPRM noted that technological options 
may allow for the display of disclaimers when a user ``hovers'' or 
``rolls'' over the advertisement, or on the landing page to which the 
user is taken after clicking the advertisement.\4\
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    \3\ Documents related to Commission advisory opinions are 
available on the Commission's Web site.
    \4\ See, e.g., Contents of Disclosure Statements. Advertisement 
Disclosure, Cal. Code Regs. tit. 2, sec. 18450.4(b)(3)(G)(1) 
(California small internet ad disclosure rule discussed in ANPRM).

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[[Page 46938]]

    After publication of the ANPRM, the Commission considered these 
issues in new factual contexts. See, e.g., Advisory Opinion Request 
2013-18 (Revolution Messaging) (asking whether ``banner ads'' viewed on 
mobile phones, either in Web site or app, required disclaimers); MUR 
6911 (Frankel) (considering whether candidates' and political parties' 
Twitter profiles and individual tweets required disclaimers).\5\ Also, 
after the ANPRM was published, at least one additional state joined 
California in adopting regulations to address small internet 
advertisements.\6\
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    \5\ Documents related to Commission enforcement matters under 
review (MURs) are available on the Commission's Web site.
    \6\ See Electronic Media, Requirements, Md. Code Regs. 
33.13.07.02(D)(2)(b).
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    In light of these and other legal and technological developments, 
the Commission reopened the comment period on October 18, 2016, seeking 
comments addressing persons' experiences in complying with (and 
receiving disclosure from) these state rules as well as other 
disclosure regimes.\7\ The Commission sought comments that addressed:
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    \7\ See Internet Communication Disclaimers; Reopening of Comment 
Period and Notice of Hearing, 81 FR 71647 (Oct. 18, 2016). In the 
document, the Commission also indicated it would hold a hearing on 
February 1, 2017. However, because few commenters expressed interest 
in the hearing, the Commission postponed it.
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    <bullet> How campaigns, parties, and other political committees, 
voters, and others disseminate and receive electoral information via 
the internet and other technologies, including any data or experiences 
in purchasing, selling, or distributing small or character-limited 
advertisements on Web sites, apps, and mobile devices;
    <bullet> any challenges in complying with the existing disclaimer 
rules as applied to internet communications;
    <bullet> the technological or other characteristics that might 
define a ``small'' internet advertisement;
    <bullet> how a disclaimer requirement or exception for ``small'' 
internet advertisements might be implemented;
    <bullet> the informational benefits of disclaimers on internet 
communications to assist voters in identifying the source of 
advertising so they are better ``able to evaluate the arguments to 
which they are being subjected''; \8\
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    \8\ Citizens United v. FEC, 558 U.S. 310, 368 (2010) (quoting 
First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 
(1978)).
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    <bullet> the informational benefits of disclaimers on internet 
communications, including Web sites and social media pages, to avoid 
voter confusion and reduce the incidence of solicitations that appear 
to be for candidates but are actually for non-candidate committees; and
    <bullet> the extent to which the Commission's consideration of 
disclaimer requirements should take into account current or anticipated 
models of internet advertising.
    The Commission received six comments during the reopened comment 
period, all but one of which supported updating the disclaimer rules. 
Commenters, however, differed on whether the Commission should adopt 
technological modifications to disclaimer requirements for all online 
advertisements or exempt paid advertisements on social media platforms 
from the disclaimer requirements.
    Since the close of the latest comment period, the Commission has 
again considered disclaimer requirements as applied to online 
communications by American citizens.\9\ In light of recent developments 
since the close of the latest comment period, the Commission is 
interested in receiving further comments on whether and how to revise 
its rules regarding disclaimers on certain internet communications. The 
Commission seeks additional comments addressing the bullet points above 
and any issues discussed in the ANPRM; the Commission is particularly 
interested in comments addressing advertisements on internet-enabled 
applications and devices (such as apps, eReaders, and wearable 
technology). Given the speed at which technological advances are 
developing, the Commission welcomes comments that address possible 
regulatory approaches that might minimize the need for serial revisions 
to the Commission's rules in order to adapt to new or emerging 
technologies.
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    \9\ See, e.g., Advisory Opinion 2017-05 (Great America PAC et 
al.) (concerning whether committees' Twitter profile pages require 
disclaimers and how committees may use Twitter handles in 
disclaimers).

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    Dated: October 3, 2017.

    On behalf of the Commission.
Steven T. Walther,
Chairman, Federal Election Commission.
[FR Doc. 2017-21706 Filed 10-6-17; 8:45 am]
 BILLING CODE 6715-01-P