CLC Rulemaking Comments Urge FEC to Act on Dangerously Outdated Disclaimer Laws

Windows for different websites stacked on top of each other showing Instagram, Facebook, YouTube and Google ads

For the seventh time in five years, CLC filed rulemaking comments urging the Federal Election Commission (FEC) to act on REG 2011-02: Internet Communication Disclaimers. This rulemaking has been languishing for almost a decade, during which time the FEC’s regulation of political advertising—especially digital ads—has become dangerously outdated.

CLC’s comments highlight a growing problem caused by the FEC’s inaction: the explosion of unregulated political advertisements on connected television (CTV).

CTV, also known as digital or streaming television, refers to online video streaming services—such as Roku, Hulu, Netflix, Disney+, Tubi, and Amazon Prime Video—and the devices on which we watch them, including smart televisions and streaming sticks.

This new medium has grown exponentially in recent years, while traditional cable television has seen huge declines. Today, “[t]here are now more US households with a connected TV than those with a traditional pay-TV connection.” Roughly 80 percent of American households have at least one connected television service in their home, and almost half of American households have three or more.

Advertisers—including political campaigns—have also made the switch to connected television. In 2020, political campaigns spent more than $100 million on ads on CTV, including $60 million spent just by Joe Biden’s presidential campaign. Former President Trump’s campaign, which began reserving connected television ad slots in early 2019, indicated that CTV “channels have always been a part of our strategy.”

Advertising on connected television is particularly appealing to campaigns because it combines the best of both cable television and digital media—the look and trustworthiness of traditional television (often in the form of a non-skippable ad) combined with the nimbleness and targeting capability of digital media.

The problem is: there is little to no transparency around political advertisements on CTV, nor any disclaimer requirement.

This lack of transparency disadvantages voters, who are deprived of information about the interests behind advertisements seeking to influence their vote. It has also led to an uneven landscape of regulation, where current FEC rules require disclaimers on ads viewed on cable, but not when the same ad on the same network is viewed through an online streaming service. Such inconsistency cannot continue.

Connected television has obliterated the traditional divide between television and digital media, underscoring how outdated the FEC’s disclaimer rules are, and the need for action now to ensure the transparency of political advertisements on this burgeoning medium.

Congress has charged the FEC with administering, interpreting, and enforcing disclaimer laws. But for a decade now, the Commission has failed to act on REG 2011-02, thumbing its nose at American voters by refusing to address the explosion of digital advertisements, including those on connected television.

The FEC must act to ensure that disclaimers on political advertisements—which benefit the American people—are the default, not the exception.

Alex is a CLC legal fellow
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