FEC Opens Door for Texting Contributions to Political Campaigns
CTIA and carriers won a victory at the Federal Election Commission, which handed down an advisory order saying carriers are not responsible for enforcing election laws when they lease smart codes used to make contributions to a political campaign. Jan Baran, an election law expert at Wiley Rein who represented CTIA on the issue, called it a “good decision” that allows carriers to move forward on working with campaigns to process electronic contributions.
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The FEC effectively reversed a 2010 advisory opinion (http://xrl.us/bnkuik) that “placed a lot of compliance responsibilities on the carriers,” Baran said in an interview. “This opinion makes it clear that all compliance obligations are on candidates and committees.” Baran said carriers will have to decide individually how to proceed. “The carriers are reviewing the opinion to make sure there are no other unanswered questions,” he said. “Whether these services will be offered will be a decision that each individual carrier will have to make."
"In sum, CTIA and the wireless service providers provide political committees with the means to raise contributions by text messaging, but it is the political committees that are solely responsible for ensuring that the contributions are lawful under the Act and Commission regulations,” the opinion said (http://xrl.us/bnkuh8). “CTIA and the wireless service providers are therefore not responsible for determining the eligibility of a contributor or for ensuring compliance with (1) the $50 monthly limit on contributions; (2) the recordkeeping obligations for contributions in excess of $200; and (3) the limitation of one short code per campaign.”
Carriers “intend to follow their normal and usual commercial practices for issuing and administering short codes for use by political committees and for processing political contributions,” the opinion said. It stressed this point, saying that if carriers offered lower rates to some candidates that could constitute an “in-kind” contribution. Many who lease codes are “connection aggregators and application providers who lease short codes on behalf of their content provider clients,” the opinion said. Carriers expect to charge them their standard rates based on “commercial factors, including, among other things, the dollar amounts of the transactions and the number of transactions made,” the document said.
The FEC acknowledged the difficulty carriers would have policing contributions to political campaigns. “Because wireless service providers propose to use only their customary business practices, they cannot guarantee that users will contribute only $50 or less per month to a single political committee or otherwise account for mobile phone numbers that have incurred $200 in charges to a political committee in a calendar year,” the FEC said. “Moreover, although wireless service providers maintain records of their subscribers’ names, addresses, and the phone numbers of the wireless users associated with each account, they do not organize or process subscriber information based on a subscriber’s status as an individual, corporation, or other type of organization or entity, or by the subscriber’s nationality.”