Rulemaking Petition; Size of Letters in Disclaimers

AGENCY:

Federal Election Commission.

ACTION:

Rulemaking petition; notification of availability.

SUMMARY:

On December 4, 2018, the Federal Election Commission received a Petition for Rulemaking asking the Commission to amend the existing regulation pertaining to the size of letters in disclaimers on television ads. The Commission seeks comments on the petition.

DATES:

Comments must be submitted on or before April 15, 2019.

ADDRESSES:

All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's website at http://sers.fec.gov/fosers/,, reference REG 2018-05. Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Robert M. Knop, Assistant General Counsel, 1050 First Street NE, Washington, DC 20463.

Each commenter must provide, at a minimum, his or her first name, last name, city, and state. 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 website 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, or 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. Robert M. Knop, Assistant General Counsel, or Mr. Tony Buckley, Attorney, Office of the General Counsel, 1050 First Street NE, Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION:

With some exceptions, the Federal Election Campaign Act, 52 U.S.C. 30101-45, and Commission regulations require disclaimers for public communications that are made by a political committee, that expressly advocate the election or defeat of a clearly identified federal candidate, or that solicit contributions. See 52 U.S.C. 30120(a); 11 CFR 110.11(a). The information those disclaimers must include vary depending on whether the communications were authorized or paid for by a candidate, an authorized committee, or an agent of either. See 52 U.S.C. 30120(d); 11 CFR 110.11(b) and (c). All disclaimers must be presented in a clear and conspicuous manner to give the readers, observers, or listeners, adequate notice of who paid for or authorized the communication. 52 U.S.C. 30120(c) and (d); 11 CFR 110.11(c).

Disclaimers on communications transmitted via television or through any broadcast, cable or satellite transmission are subject to certain additional requirements. Among those requirements, such communications made by political committees (whether or not authorized or paid for by a candidate) must carry a written disclaimer in letters equal to or greater than four percent of the communication's vertical picture height. See 52 U.S.C. 30120(d); 11 CFR 110.11(c)(3)(iii)(A), (4)(iii)(A).

On December 4, 2018, the Commission received a Petition for Rulemaking from Extreme Reach (“Petition”) asking the Commission to amend 11 CFR 110.11(c)(3)(iii)(A). The Petition contends that the current standard for TV ads is outdated due to the fact that it was promulgated during a period when television was broadcast in standard definition, rather than the current high definition.

The Petition cites a publication of the International Telecommunication Union, Petition at 13-31, to support its assertion that high definition is the current standard for television broadcasts. The Petition also includes the disclaimer portions of advertising guidelines from the ABC, CBS, and NBC television networks. Petition at 44-47. According to the Petition, these guidelines support the contention that the current industry guidelines for a normal disclaimer size is 22 pixels (approximately two percent of the vertical picture height) using high definition resolution. Petition at 2. The Petition also includes screen shots purporting to show how a disclaimer appears in high definition under the four percent standard, and how a disclaimer appears in high definition using the proposed two percent standard. In light of this, the Petition asks the Commission to open a rulemaking to revise “[the Commission's regulation] to add a separate requirement for [high definition] where letters must be equal to or greater than two (2) percent of the vertical picture height and specify that the four (4) percent of the vertical picture height requirement only applies to [standard definition].”

The Commission seeks comments on the Petition. The public may inspect the Petition on the Commission's website at http://sers.fec.gov/fosers/,, or in the Commission's Public Records Office, 1050 First Street NE, 12th Floor, Washington, DC 20463, Monday through Friday, from 9 a.m. to 5 p.m.

The Commission will not consider the Petition's merits until after the comment period closes. If the Commission decides that the Petition has merit, it may begin a rulemaking proceeding. The Commission will announce any action that it takes in the Federal Register.