Federal Election Commission should consider rewriting its propose...

Federal Election Commission should consider rewriting its proposed rulemaking on electioneering communications “so as to avoid the possibility of overbroad enforcement of the statute and constitutional challenge to it,” FCC said in comments to FEC. FEC is considering portion of Bipartisan Campaign Reform Act (BCRA) passed earlier this year involving political announcements on broadcast, cable and satellite systems. Act itself is under multiple constitutional challenges already, and several FEC commissioners said at hearing last week (CD Aug 29 p1) that much of their work in rulemaking might be rendered moot by court. FCC’s concern was fact that FEC was supposed to regulate only electioneering communications reaching more than 50,000 people. FCC Mass Media Bureau Chief Ken Ferree wrote that whenever data on potential viewership or listenership were “incomplete or ambiguous, the process should err on the side of permitting the communications to take place without restriction, rather than the opposite.” Otherwise, Ferree wrote, rule could be “deemed unconstitutionally overbroad.” His primary concern in his 3 pages of comments was burden FEC was looking at placing on FCC in terms of creating online database of electioneering communications. BCRA designates FCC for creating that database as part of agency’s Web site, but Ferree said he wanted “to make clear that this undertaking could be extraordinarily complex and will require the expenditure of substantial resources in terms of time, money and personnel.” Among burdens: (1) FCC would have to integrate population information, congressional and state boundary geographic information, and service area data for broadcast, cable and satellite systems. (2) New technology would have to be acquired to create database, as existing databases couldn’t be used because they contained much proprietary information that FCC couldn’t disclose. (3) New forms and electronic filing systems would be needed, which would “require spending significant funds.” Ferree said he was confident agency could meet BCRA requirement, but emphasized that FEC’s rulemaking must “simplify the task as much as possible.” He also said rulemaking sought comment on how to define reach of given communications, and asked that FCC be allowed to make that determination, “based upon our expertise and available data resources.”