skip navigation
  • FEC Record: Advisory opinions

AO 2015-10: Counting cable and satellite subscribers for definition of electioneering communication in presidential primary states

November 5, 2015

In determining whether televised advertisements reach enough viewers to qualify as "electioneering communications," 21st Century Fox may exclude its cable and satellite customers whose subscription packages do not provide access to the sports networks on which the ads will air.

Background

21st Century Fox owns and operates a number of regional sports networks (RSN) that televise sporting events to cable and satellite customers within the RSN’s local market. Customers elsewhere may subscribe to a supplemental package to access RSNs from all over the country, but cannot view an RSN from outside of their own region without purchasing such a package.

21st Century Fox plans to sell advertising time on RSNs for campaign-related communications, including ads that refer to clearly identified presidential primary candidates and air in states shortly before their respective presidential primaries. Since subscribers who reside both within and outside those states will see the ads, the company asks how it should determine whether a communication can be received by 50,000 or more persons and thereby qualifies as an electioneering communication.

Analysis
Under the Act and Commission regulations, an electioneering communication is any broadcast, cable, or satellite communication that refers to a clearly identified federal candidate and is “public distributed.” 52 U.S.C. § 30104(f)(3)(A)(i); 11 CFR 100.29(a). In regard to presidential primary candidates, a communication is "publicly distributed" when it is disseminated through television, radio, cable or satellite and can be received by 50,000 or more persons in a state within 30 days of its primary election. 11 CFR 100.29(b)(3).

Formula for determining cable/satellite viewership. To determine whether cable or satellite viewership meets the 50,000 person threshold, the number of subscribers within a state, "or a part thereof," is multiplied by the current national average household size (determined by the Census Bureau). 11 CFR 100.29(b)(7)(ii). However, if a cable or satellite system does not carry the network that runs the ad, that system’s subscribers need not be counted.

Conclusion
21st Century Fox may exclude from electioneering communication calculations cable or satellite customers who do not subscribe to a package that includes the RSNs, as those customers could not receive the communication. The formula, described above, would apply only to those customers in the state who subscribe to a package that includes RSNs. If the result of that calculation shows that the communication could not be received by 50,000 or more persons in a state(s) holding a presidential primary election within 30 days, the ad would not constitute an electioneering communication. 11 CFR 100.29(b)(3)(ii)(A).

Date issued 10/30/2015; 3 pages

Resources:

  • Author 
    • Dorothy Yeager
    • Sr. Communications Specialist