AO 2005-19: Radio program qualifies for press exemption

An incorporated production company may broadcast a radio program that references clearly identified federal candidates, even if it airs within 30 days of a primary election or 60 days of a general election in the jurisdiction in which those candidates are running, because its proposed activities fall within the press exemption. The bans on corporate contributions, expenditures and electioneering communications would not apply.

Background

Commission regulations define an “electioneering communication” (EC) as any broadcast, cable, or satellite communication that:

• Refers to a clearly identified candidate for federal office;
• Is publicly distributed within 60 days before a general, special or runoff election for the office sought by the candidate, or within 30 days before a primary or preference election; and
• Is targeted to the relevant electorate, in the case of a candidate for Senate or the House of Representatives. 2 U.S.C. 434(f)(3) and 11 CFR 100.29(a).

A communication is targeted to the relevant electorate if it can be received by 50,000 or more persons in a House candidate’s district or Senate candidate’s state.

Corporations are generally prohibited from making or financing ECs. However, the EC definition exempts communications that appear in “a news story, commentary, or editorial distributed through the facilities of any broadcast, cable, or satellite television or radio station.” If these facilities are owned or controlled by a political party, political committee or candidate, additional restrictions apply. 11 CFR 100.29(c)(2).

Analysis

Emil Franzi operates Paradigm Shift Productions, a for-profit corporation that produces and purchases airtime for The Inside Track, a political talk show Mr. Franzi hosts on an Arizona radio station. Paradigm Shift sells advertising time on the program to recoup its costs. On the show, Mr. Franzi plans to interview Arizona House and Senate candidates, accept comments and questions from callers and discuss candidates. The program will reach a potential audience of 400,000 people, including at least 50,000 people in both Arizona’s Seventh and Eighth Congressional Districts. The broadcasts would air within 30 days of the Arizona primary election and/or 60 days of the general election.

While broadcasts that mention Arizona Senate candidates or Seventh and Eighth District House candidates would appear to otherwise satisfy the definition of EC, the Commission determined that The Inside Track qualifies for the press exemption.

The Commission has applied a two-step analysis to determine whether the press exemption applies. First the Commission asks whether the entity engaging in the activity is a press entity. (See, for example, AOs 2005-16, 2004-07, 2003-34, 2000-13 and 1998-17.) Second, in determining the scope of the exemption, the Commission considers whether the press entity is owned or controlled by a political party, political committee, or candidate, and whether the press entity is acting as a press entity in conducting the activity at issue.

Paradigm Shift Productions is a business that regularly produces a radio program disseminating news stories, commentary and/or editorials. It buys airtime to broadcast the program and resells some of that airtime for third party advertisements. Paradigm Shift Productions is not owned or controlled by any political entity, and is acting in its legitimate press function when distributing the radio program. As such, it qualifies for the press exemption and may finance the programs described in its request. The proposed activities would not violate the Act’s prohibition on corporate contributions and expenditures because of the similar press exemption contained in 2 U.S.C. 431(9)(B)(i). See also 11 CFR 100.73 and 11 CFR 100.132.

Concurring Opinion

On January 3, 2006, Commissioners Scott Thomas and Danny McDonald issued a concurring opinion.

Date Issued: December 8, 2005; Length: 8 pages