No, Ice Hockey and Figure Skating are Not the Same Thing

Public Knowledge is 100% incorrect on their request to the FCC to “protect text message fundraising” because they are mixing TWO very different issues together.

To be extremely clear, the carriers will allow fundraising via SMS (or texts). There is no effort to stop this practice. As we all remember from the 2010 Haiti earthquake, fundraising via text is increasingly a popular practice and one that can be incredibly successful for a variety of causes. And let's remember that the 2008 presidential campaigns used text messaging to engage with prospective voters across the country.

The questions that the carriers have had, which CTIA has submitted on their behalf, have to do with carrier billing and collection. This is a completely separate practice that has a different set of rules than text fundraising.

It’s the equivalent of saying ice hockey and figure skating are the same thing since they both take place on an ice rink.

First, Public Knowledge seems to forget that the U.S. Congress passed the Federal Election Campaign Act of 1971, which is why the FEC has been leading the effort on this issue. Per the U.S. Congress, the FEC is responsible for interpreting and enforcing the campaign finance rules.

Second, anyone can clearly understand why the carriers would want to know who is responsible and how to handle situations such as the ones we asked the FEC for additional information on. For example:

• CTIA provided my smartphone. How would a carrier know that the donation I made on the employer-provided device was me and not my employer?
• How could a carrier certify that a text donation made on my wife’s mobile device was made by my wife and certify that I hadn’t used all five phones on my family plan to circumvent the dollar limit on anonymous contributions?

The FEC understood these concerns and addressed them in their advisory opinion. Here are CTIA’s questions and a summary of the key provisions in the FEC’s Advisory Opinion:

1. Who is responsible for determining the eligibility of a contributor?

2. Who is responsible for ensuring compliance with:

(1) the $50 monthly limit on contributions;

(2) the recordkeeping obligations for contributions in excess $200;

(3) the limitation of one short code per campaign?

“CTIA and the wireless service providers provide political committees with the means to raise contributions by text messaging, but it is political committees that are solely responsible for ensuring that the contributions are lawful under the Act and Commission regulations. 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.”

3. Would deviations from normal business practices constitute “in-kind” political contributions?

“Yes, deviations from normal business practices could constitute “in-kind” contributions, where CTIA and the wireless service providers provide such a discount to a political committee as a result of preferential treatment outside of a business relationship; CTIA and the wireless service providers’ proposal [to charge carriers’ usual and normal commercial rates for processing contributions by text message, and to incorporate in their agreements with connection aggregators industry standards for consumer best practices and other consumer protection requirements as well as monitoring and enforcing compliance with these standards], however, would not result in their making an in-kind contribution. The Act and Commission regulations prohibit corporations from making a contribution in connection with a Federal election.” …  “A corporation may not, however, provide a discount to a political committee “where a political committee [is] accorded preferential treatment different from other customers, or the treatment [is] outside of a business relationship.”

4. May wireless service providers establish criteria for determining eligibility for these campaigns or are wireless service providers obligated to make these programs available to every political candidate and/or committee?

“The eligibility criteria proposed by the wireless service providers are consistent with the Act and Commission regulations.”

“Wireless service providers propose ‘to establish objective business criteria that are specific to political contribution text messaging campaign’ [for example, based upon commercial considerations, such as projected volume of transactions or demonstrated approval ratings].  [Wireless carriers] may decide, for commercial reasons, to accept only proposals from some political committees and not others.”

“… Accordingly, the Commission concludes that the wireless service providers may establish such commercial eligibility requirements.”

5. Does anything in Advisory Opinion 2012-17 (m-Qube) require changes in the way wireless service providers process payments to connection aggregators?

“No, nothing in Advisory Opinion 2012-17 (m-Qube) requires changes in the way that wireless service providers process payments to connection aggregators.  In their ordinary course of business, wireless service providers typically issue refunds to wireless service subscribers if business reasons warrant (such as if the subscriber disputes a charge on a bill), and these refunds may reduce the service providers’ payments to connection aggregators.  Wireless service providers may also terminate, delay or suspend payments to enforce their agreements with connection aggregators.  … Thus, nothing in Advisory Opinion 2012-17 (m-Qube) requires wireless service providers to change the way that they process payments to connection aggregators including when aggregators employ factoring arrangements with participating political committees.”