Wireless carriers ask for wide latitude from FEC

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Wireless carriers want the Federal Election Commission to give them broad discretion when it comes to determining which political committees would be eligible to receive donations via text message.

In a response submitted to the FEC on Tuesday, CTIA offered a broad outline of the criteria wireless carriers would use when vetting political committees for text-to-donate digital short codes and services.

At an open meeting of the FEC last week, commissioners requested the wireless industry trade group shed more light on what the approval process would look like. One of the issues before commissioners is whether offering the service to one political committee over another would constitute an illegal “in kind” donation on the part of the wireless provider.    

“When determining the eligibility of political committees, [carriers] will need to look at a wide variety of criteria, which may include factors such as a candidate’s viability, whether a candidate is on the ballot, or whether the candidate’s views may cause harm to the wireless service provider’s brand,” reads CTIA’s response.

CTIA acknowledges that while the decisions on eligibility would be purely commercial, they could be misconstrued in certain cases if the FEC doesn’t adjust some of the language from its recent draft advisory opinion.  

The draft AO that was the focus of last week’s meeting stipulates that in order to avoid triggering an in-kind donation, eligibility requirements must be “based on commercial, rather than political, considerations”. The language was one of the major points of debate. The trade group wants the FEC to allow vetting “regardless of the eligibility criteria used.”

An alternate text-to-donate proposal submitted by the mobile firm Revolution Messaging has not yet been addressed by the commission. It seeks significant changes in the system the FEC has already approved and encourages the commission to not allow wireless carriers the ability to determine which political committees would be eligible for the service.    

CTIA’s comment also notes that candidates might be denied in order to “avoid promoting hatred” and that the FEC’s definition of an “in kind” contribution does not include a refusal of services. Wireless providers also want to ensure that liability for determining donor eligibility rests “solely” with political committees; some political committees want more responsibility placed on the aggregator instead.

“Whether CTIA wants it or not, the only way to have these contributions is to make sure political committee treasurers are given more information by the wireless industry,” says Steve Hoersting, counsel at DB Capitol Strategies. Hoersting took lead in preparing a public comment filed by National Defense Committee PAC on the recent m-Qube draft opinion. Along with affiliate National Defense PAC, the committees want to extend text message donations to soldiers deployed overseas and their families.

Hoersting argues that the short code system originally approved by the FEC doesn’t provide political committees with the info they need to adequately fulfill reporting requirements.

“In the alternative, the Commission should impose greater compliance responsibilities on the connection aggregators to ensure that committee treasurers can be confident in the information they receive from their vendors and to reduce the staggering compliance costs,” reads National Defense PAC’s latest public comment, also submitted Tuesday.

The PAC maintains that only presidential campaigns and national party committees have the resources to handle the compliance burden that would be placed on committee treasurers.

“Basically, if you rush this, it’s going to be a disaster and an open invitation to unchecked fraud,” says Dan Backer, principal attorney at DB Capitol Strategies. “We hope the FEC takes the time to conduct a proper rule-making to prevent that from happening.”

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