AO 2005-16: Press exception applied to websites

The costs that Fired Up, LLC (Fired Up), incurs to cover or carry news stories, commentary or editorials on its web sites are encompassed by the press exception, and therefore do not constitute “expenditures” or “contributions” under the Federal Election Campaign Act (the Act) and Commission regulations.

Background

Fired Up is a for-profit limited liability company that intends to establish and maintain up to 15 state-specific websites in the coming year. Currently, Fired Up maintains three state-specific websites and one website aimed at national issues. Fired Up describes the content on the websites, which generally consist of commentary on, quotes from, and summaries of, news articles appearing on other websites, as “unabashedly progressive.” The websites also contain original news reporting. Fired Up is not owned or controlled by any political party, political committee or candidate.

Founded by former Senator Jean Carnahan, Democratic Party activist Roy Temple and computer consultant and software designer Scott Sorrel, Fired Up currently has no paid employees, but plans to hire staff as revenue permits. Mr. Temple provides most of the content for the websites and exercises final editorial, and formatting control.

Access to Fired Up’s websites is free and available without registration; however, registered users of each web site may post comments directly on that website and receive a complimentary weblog.

Analysis

The Act and FEC regulations define “contribution” and “expenditure” to include “anything of value made by any person for the purpose of influencing” a federal election. 2 U.S.C. §431(8)(A)(i) and (9)(A)(i). Costs incurred in covering or carrying news stories, editorials and commentary by any broadcasting station¹, newspaper, magazine or other periodical publication are exempt from these definitions, unless the facility is owned or controlled by a political party, political committee, or candidate. 11 CFR 100.73 and 100.132; 2 U.S.C. 431(9)(B)(i). This exception is commonly known as the “press exception.”

To be eligible for the press exception, the entity must satisfy the Commission’s two-step analysis. (See, for example, AOs 1996-16 and 2000-13.) First, the Commission asks whether the entity qualifies as a press entity. Second, the Commission considers whether the entity is owned or controlled by a candidate, political committee or political party; and whether the entity is acting as a press entity in conducting the activity at issue. Two considerations in applying this analysis include whether the entity’s materials are available to the general public and are comparable in form to those ordinarily issued by the entity. It is important to note, however, that any entity otherwise eligible for the press exception would not lose its eligibility merely because of lack of objectivity in a news story, commentary or editorial, even if the news story, commentary or editorial expressly advocates the election or defeat of a clearly identified federal candidate.

The Commission found that Fired Up qualifies as a press entity. Its websites are available to the general public and are the online equivalent of a newspaper, magazine or other periodical publication described in the Act and Commission regulations. A primary function of the websites is to provide news and information to readers. Fired Up retains editorial control, produces many of the stories that appear on the websites and exercises day-to-day control over all content. Reader comments are similar to letters to the editor.

Moreover, Fired Up is neither owned nor controlled by any political party, political committee or candidate. The operation of its websites is at the core of its activities as a press entity.

Thus, as a qualified press entity, the costs Fired Up incurs to cover or carry a news story, commentary or editorial on its websites are exempt from the definitions of “contribution” and “expenditure.”

Concurring opinion

Commissioners Scott Thomas and Danny McDonald issued a concurring opinion on November 29, 2005.

Date issued: November 18, 2005; Length: 6 pages.

¹ This includes any cable television operator, programmer or producer.