This is an interesting development.

Revolution Messaging Asks FEC to Exempt Mobile Ads from Disclaimer Requirement 

Politicians and commercial advertisers appear to be parting company on the usefulness of notices on small-screen devices. While commercial marketers continue to work with federal lawmakers on a "notice and consent" privacy paradigm, including on small screen devices, marketers for politicians and political ideas would like to see the "Paid for by ..." incantation scrapped on small screen devices.

In a Sept. 11 letter to the Federal Elections Commission, political marketer Revolution Messaging asked the FEC to exempt politicians from the legal requirement that all public communications include a disclaimer indicating the source of the message. Revolution Messaging argued that it is technologically impossible to legibly display the legally required disclaimer in such a small space.¹

Federal election law requires that disclaimers be clear and conspicuous; however, there are exemptions for small items such as bumper stickers, buttons and pens (11 C.F.R. Sec. 110.11(f)(1)(i)), and where providing the disclaimer would otherwise be "impracticable" (11 C.F.R. Sec. 110.11(f)(1)(ii)).

According to Revolution Messaging:

Revolution Messaging has been contracted to place and provide mobile advertisements by various clients, including federal committees and labor organizations. some of these clients wish to use mobile advertising for independent expenditures as defined by 2 U.S.C. 431 (17). Although some of Revolution Messaging's clients mobile advertisements will link to sites which contain a disclaimer, some will not.

Revolution Messaging has encountered several mobile advertising vendors that refuse to accept these ads unless a disclaimer is included. As discussed below, given the physical size constraints of the mobile advertisements and the technology involved, it is not possible to include a disclaimer that complies with Commission regulations in these advertisements. Thus, these clients will be prevented from placing mobile advertisements that contain express advocacy unless the Commission clarifies that these small mobile advertisements are exempt from disclaimer requirements.

Revolution Messaging asked the FEC to issue an advisory opinion declaring that messaging to smart phones falls under the "bumper sticker and pens" exemption or the "impracticable" exemption to federal election laws. Further, Revolution Messaging contended, the FEC should not attempt to write a shortened alternative disclosure because it would be impossible to create a legible disclaimer given current screen sizes and other technological constraints.

This request is worth watching. In view of the ubiquity of smartphones, and the prominence they have in the information diet of their users, it appears that the exemption being sought here would have a sweeping effect on political communications.

It's worth noting that, in the area of privacy disclosures, the Federal Trade Commission has rejected the idea of eliminating disclosures for small-screen, mobile devices. In fact, just the opposite. The FTC's February 2013 report, Mobile Privacy Disclosures: Building Trust Through Transparency, is brimming with suggestions on how marketers should convey privacy information to consumers using small screen devices. And, of course, short form privacy notices are encouraged if not required by federal law in several areas, such as health and financial information. Nobody yet is arguing that privacy notices should be eliminated for small screen users.

By Thomas O'Toole

Follow @tjotoole