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The "communication" referred to must be "in" the news story, etc-not in an accompanying advertisement on the station-to be eligible or this particular exemption
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of Sholk, Steven H.
Sent: Thu 6/17/2004 10:22 AM
To: Beth Kingsley; James Cooper; election-law@majordomo.lls.edu
Cc:
Subject: RE: "Fahrenheit 9/11" and electioneering communications
The statute in 2 USC Section 434(f)(3)(B)(i) contains an exception to
electioneering communication for "a communication appearing in a news
story, commentary, or editorial distributed through the facilities of
any broadcasting station, unless such facilities are owned or controlled
by any political party, political committee, or candidate." The
regulation,
11 CFR Section 100.29(c)(2), is similarly phrased.
Isn't the issue whether the author or sponsor of the advertising, a
movie
distributor, is eligible for the exception? The exception is granted to
any
news story or commentary distributed through a media outlet. Thus, the
media
outlet must only be the distributor of the communication, rather than
the author
or sponsor of the communication. Under this analysis, a movie
distributor
that advertises in a bona fide media outlet is eligible for the
exception.
Therefore, the distributor of Fahrenheit 9/11 can advertise on
television
and qualify for the exception.
Steven H. Sholk, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102-5496
(973) 596-4639 (Phone)
(973) 639-6338 (Fax)
ssholk@gibbonslaw.com (e-mail)
-----Original Message-----
From: Beth Kingsley [mailto:bkingsley@harmoncurran.com]
Sent: Thursday, June 17, 2004 9:25 AM
To: Sholk, Steven H.; James Cooper; election-law@majordomo.lls.edu
Subject: RE: "Fahrenheit 9/11" and electioneering communications
I agree Reader's Digest is helpful in determining when the exemption
applies to an acknowledged news media outlet. But isn't there a real
question as to whether a movie distributor qualifies as a "broadcasting
station (including a cable television operator, programmer or producer),
newspaper, magazine, or other periodical publication"? As far as I can
recall, there's not a lot of precedent, AOs or cases, on the scope of
the exemption in terms of covered entities. MCFL's newsletter was found
not to qualify, but (without going back and checking) I do not believe
it was because MCFL couldn't have published a news periodical, just that
it had not done so on the facts of the case.
Elizabeth Kingsley
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M St., NW
Suite 600
Washington, DC 20036
202-328-3500
> -----Original Message-----
> From: Sholk, Steven H. [mailto:SSholk@gibbonslaw.com]
> Sent: Wednesday, June 16, 2004 6:25 PM
> To: James Cooper; election-law@majordomo.lls.edu
> Subject: RE: "Fahrenheit 9/11" and electioneering communications
>
>
> The MTV FEC Advisory Opinion, 2004-7, provides some guidance.
> The FEC notes that the media exemption to the definition
> of contribution and expenditure is similar to the exemption
> of 100.29(c)(2) for electioneering communications. The FEC
> noted as follows:
>
> In Reader's Digest, the court noted that "if [the magazine]
> was acting in its magazine publishing function, if, for example,
> the dissemination of the tape to television stations was to
> publicize the issue of the magazine containing the ... article,
> then it would seem that the exemption is applicable." 509
> F. Supp. at 1215. In Phillips Publishing, a mailing soliciting
> subscriptions to a biweekly newsletter contained, inter alia, a
> one-page combination subscription form and "opinion poll" that
> referred to a clearly identified candidate for Federal office.
> The court found that, because "the purpose of the solicitation
> letter was to publicize [the newsletter] and obtain new subscribers,
> both of which are normal, legitimate press functions, the press
> exemption applies." 517 F. Supp. at 1313.
>
> Steven H. Sholk, Esq.
> Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
> One Riverfront Plaza
> Newark, New Jersey 07102-5496
> (973) 596-4639 (Phone)
> (973) 639-6338 (Fax)
> ssholk@gibbonslaw.com (e-mail)
>
>
> -----Original Message-----
> From: owner-election-law_gl@majordomo.lls.edu
> [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of James
> Cooper
> Sent: Wednesday, June 16, 2004 5:24 PM
> To: election-law@majordomo.lls.edu
> Subject: Re: "Fahrenheit 9/11" and electioneering communications
>
>
> I don't see how § 100.29(c) or §100.132 would exempt a movie
> distributor
> conducting an "unprecedented" (note: I highlight this word
> to focus on
> §100.132(b) and not for any hidden bias) advertising campaign from
> adhering to the electioneering communications provisions.
>
> Are there any court cases dealing with §100.132 that are relevant to
> this situation?
>
>
> §100.29(c) Electioneering communication does not include any
> communication that:
>
> (2) 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. A news story
> distributed through a broadcast, cable, or satellite
> television or radio
> station owned or controlled by any political party, political
> committee,
> or candidate is neverthless exempt if the news story meets the
> requirements described in 11 CFR 100.132(a) and (b);
>
>
> §100.132 News story, commentary, or editorial by the media.
>
> Any cost incurred incovering or carrying a news story,
> commentary or
> editorial by any broadcasting station (including a cable television
> operator, programmer or producer), newspaper, magazine, or other
> periodical publication is not an expenditure unless the facility is
> owned or controlled by any political party, political committee, or
> candidate, in which case the costs for a news story:
> (a) That represents a bona fide news account communicated in a
> publication of general circulation or on a licensed broadcasting
> facility; and
> (b) That is part of a general pattern of campaign-related news account
> that give reasonably equal coverage to all opposing candidates in the
> circulation or listening area, is not an expenditure.
>
>
>
>
>
>
>
> -----Original Message-----
> From: "Jeffrey MA Hauser"<jmh248@nyu.edu>
> Sent: 6/16/04 3:38:04 PM
> To: "James Cooper"<JPCooper3@yahoo.com>
> Cc:
> "election-law@majordomo.lls.edu"<election-law@majordomo.lls.edu>
> Subject: Re: "Fahrenheit 9/11" and electioneering communications
>
> Being as the linked article states that the "unprecedented $10
> million advertising budget" is "peanuts compared with the $40 million
> marketing budgets of Hollywood blockbusters," I think we can tell the
> intention of this post.
>
> {yes, it's the highest ever for a documentary, but that's akin to
> being the most successful fourth party ever; and if "unprecedented"
> refers to theatrical releases with a political agenda, I'd ask what
> budget "The Passion" had for advertising, or, for that
> matter, "The Day
> After Tomorrow." (Actually, let's hope Fahrenheit 9/11 is better than
> those movies....)}
>
> But, without the text of BCRA or the regulations handy, I do have
> some substantive questions:
>
> (1) Why wouldn't pre-existing movie companies, and, for that
> matter, an established documentarian, fall within the "media"
> exception?
> Movies are a "medium;" I mean, it would seem ludicrous to believe that
> ads for theatrical distribution would be treated differently than ads
> for television release. (e.g., HBO often runs ads for its original
> productions on other networks, and I would assume that an ad
> for an HBO
> production that referenced Bush or Kerry would be fine; same
> with, say,
> an ad for the Daily Show that sampled its satire of Bush}
>
> (2) Doesn't the freedom of the press come into play here in a
> fashion slightly distinct from freedom of speech concerns? My vague
> recollection from college Con Law (somehow or another, 1st Am wasn't
> part of my law school Con Law class) is that there is little doctrinal
> distinction between the clauses, but I've often thought that such a
> collapsed doctrine is difficult to defend, being as it renders the
> amendment needlessly redundant.
>
> If freedom of the press is relevant... I'd also suggest that one
> could (which is definite than should) distinguish
> pre-existing elements
> of the press from institutions expressly created to get
> around the law,
> e.g., NRANews. Sometimes, judicial (and administrative, in
> the case of
> the FEC) reluctance to perform difficult fact based inquiries into
> intent leads to ridiculously over or under inclusive doctrines.
>
> . ----- Original Message -----
> From: James Cooper <JPCooper3@yahoo.com>
> Date: Wednesday, June 16, 2004 2:56 pm
> Subject: "Fahrenheit 9/11" and electioneering communications
> > Would the electioneering communications provisions of BCRA,
> > essentially in effect on June 26 for the duration of this
> > presidential campaign due to the timing of the DNC and GOP
> > conventions, prevent the distributors of "Fahrenheit 9/11" from
> > spending any of its of unprecedented $10 million advertising
> > budget on television/radio spots that picture or even
> mention the
> > President?
> > I don?t see any exemptions in §100.29(c) that would permit such
> > activity.
> > (Link to advertising story is below:)
> > http://www.usatoday.com/life/movies/news/2004-06-15-fahrenheit-
> > marketing_x.htm
> >
> This Electronic Message contains privileged client attorney
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> Griffinger
> & Vecchione. The information is intended to be for the use of the
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>
>
This Electronic Message contains privileged client attorney
communications from the law firm of Gibbons, Del Deo, Dolan, Griffinger
& Vecchione. The information is intended to be for the use of the
addressee only. If you are not the addressee, note that any disclosure,
copy, distribution or use of the contents of this message is prohibited.
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