AO 2023-10: Fictional entertainment program qualifies for the media exemption
Sony Pictures Television Inc.’s (Sony) production and distribution of a fictional entertainment program that includes a candidate for U.S. Senate as a cast member is exempt from regulation under the Federal Election Campaign Act’s (the Act) media exemption.
Background
Since 2017, Sony, a subsidiary of the global media company Sony Pictures Entertainment Inc., has produced and distributed a fictional television show called The Good Doctor. On July 10, 2023, Hill Harper, a regular on the show since its inception, filed as a candidate for Michigan’s U.S. Senate seat. Mr. Harper’s candidacy was not written into the show and his name only appears in the show’s credit sequence at the beginning of each episode.
All of Sony’s distribution agreements predate Mr. Harper’s decision to run for office, and Sony has no plans to distribute this show with any greater frequency in Michigan than it did prior to Mr. Harper’s candidacy. Mr. Harper is simply an actor on the show and has no input or control over how Sony distributes The Good Doctor.
Analysis
The Act excludes from the definition of expenditure “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.” Commission regulations further stipulate that neither a contribution nor an expenditure result from "any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer)…unless the facility is owned or controlled by any political party, political committee, or candidate." Similarly, Commission regulations exclude from the definition of electioneering communication any communication that “appears in a news story, commentary or editorial distributed through the facilities of any broadcast, cable or satellite television or radio station, unless such facilities are owned or controlled by any political party, political committee, or candidate.” Together these exclusions are known as the "press exemption" or "media exemption."
To determine whether the media exemption applies, the Commission uses a two-step analysis. First, the Commission determines whether the entity engaging in the activity is a media entity within the meaning of the Act and Commission regulations. Second, the Commission determines whether the entity is owned or controlled by a political party, political committee, or candidate and whether the entity is acting in its capacity as a media entity in conducting the activity.
In the first step of the analysis, the Commission found that Sony is a media entity because it regularly produces television programming, including fictional entertainment, for distribution via broadcast and cable television.
In the second step of the analysis, the Commission found that Sony is acting within its legitimate press function. It is not owned or controlled by a political party, political committee, or candidate and that when producing The Good Doctor, Sony makes it available to the general public via network television and major streaming platforms. Moreover, Sony’s production of The Good Doctor is comparable to numerous other television shows it has produced in that it is a serial fictional program and similar in form, function, and distribution method.
Since Sony qualifies as a media entity and is not owned or controlled by any political party, political committee, or candidate and it is engaged in activity that is part of its legitimate press function, the Commission concluded that Sony’s production and distribution of The Good Doctor falls within the bounds of the Act’s media exemption.
Date issued: January 11, 2024; Length: 6 pages
Citations
Regulations
11 C.F.R. § 100.29
Electioneering Communication
11 C.F.R. § 100.73
Exceptions to Contributions. News story, commentary, or editorial by the media
11 C.F.R. § 100.132
Exceptions to Expenditures. News story, commentary, or editorial by the media