Advisory Opinion 05-03

     This Advisory Opinion responds to a person who asked whether costs incurred by certain cable television access organizations to produce, promote, and help broadcast programs on community cable television for candidates are in-kind contributions to the candidates.

     The Campaign Spending Commission ("Commission") responds in the negative.

     We understand that Akaku, Na Leo ‘O Hawaii, Inc., ‘Olelo and Ho’ike are "access organizations"1 providing community access cable television programs.2 The organizations offered broadcast time to all candidates and used their employees to produce, promote, and create DVDs for several programs, which were broadcast on cable television featuring candidates who accepted the offer.3

     A "contribution" includes any gift, deposit of money, or anything of value made by any person for the purpose of influencing an election for a Hawaii elective public or constitutional office (emphasis added).4 The Commission interprets this term broadly and anything of value is a contribution, unless an exemption exists.

     The current factual situation involving access organizations that offered broadcast time to all candidates and provided the same services to all candidates who accepted is analogous to the facts presented in prior Advisory Opinions where the Commission determined that there was no contribution when:

• An Internet provider hosted web-sites for a candidate, other candidates, and individuals without charge;5 and
• A person who hosted or sponsored candidates’ forums meets the requirements of Advisory Opinion No. 02-08, including a requirement to provide a similar opportunity to appear for all candidates for that office.6

     Moreover, the Federal Election Commission ("FEC") provides a "press exemption" which exempts from the definition of a contribution any cost "incurred in covering or carrying a news story, commentary, or editorial by any broadcast station (including a cable television operator, programmer, or producer), . . . unless the facility is owned or controlled by any political party, political committee, or candidate."7 The Commission has previously relied upon the FEC’s laws and rules for guidance.8

     The application of the press exemption depends upon a two-part framework: (1) Whether the press entity is owned or controlled by a political party, political committee, or candidate; and (2) Whether the press entity is acting as a press entity in conducting the activity at issue (i.e., whether the entity is acting in its "legitimate press function").9

     The access organizations are nonprofit organizations that are not controlled by a political party, political committee, or candidate. No facts were presented in the opinion request or in the investigation by the Commission’s staff that indicated the access organizations were not engaged in a legitimate press function.

     Based upon the prior Advisory Opinions and the FEC’s press exemption, the Commission concludes that no contributions were made by the access organizations to the candidates under the factual circumstances described in this Advisory Opinion and no disclosure reports have to be filed with the Commission.

     The Commission provides this Advisory Opinion as a means of stating its current interpretation of the Hawaii Election Campaign Contributions and Expenditures laws provided under HRS section 11-191, et seq. and the administrative rules of the Commission provided in chapter 2-14, Hawaii Administrative Rules. The Commission may adopt, revise, or revoke this Advisory Opinion upon the enactment of amendments to the Hawaii Revised Statutes or the adoption of administrative rules by the Commission.

Dated: Honolulu, Hawaii, March 9, 2005.

CAMPAIGN SPENDING COMMISSION

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Paul Kuramoto
Vice-Chair

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Steven E. Olbrich
Commissioner

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Gino L. Gabrio
Commissioner

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Dean Robb
Commissioner

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1 "Access organization" means any nonprofit organization designated by the director (of commerce and consumer affairs) to oversee the development, operation, supervision, management, production, or broadcasting of programs for any channels obtained under section 440G-8, and any officers, agents, and employees of such an organization with respect to matters within the course and scope of their employment by the access organization. See section 440G-3, Hawaii Revised Statutes (HRS).

2 "In exchange for the use of valuable public rights-of-way, cable franchise holders are required to set aside channels for public, education and government uses ("PEG"). Public access channels are often the video equivalent of the speaker’s soap box or the electronic parallel to the printed leaflet. They contribute to an informed citizenry in many ways, whether through giving a voice to those who might otherwise not have one, though bringing educational opportunities to our homes, or by showing our local and state governments at work." Department of Commerce and Consumer Affairs’ Plan for Public, Education, and Government Access, January 2004.

3 E.g., "Candidates in Focus" and "Candidates Debate" were broadcast on `Olelo; "Teledemocracy (2002) and Access Democracy (2004) were broadcast on Ho`ike.

4 "Contribution" means:
(1) A gift, subscription, deposit of money or anything of value, or cancellation of a debt or legal obligation and includes the purchase of tickets to fundraisers for the purpose of:
(A) Influencing the nomination for election, or election, of any person to office:
(B) Influencing the outcome of any question or issue that appears or is reasonably certain to appear on the ballot at the next applicable election described in subparagraph (A); or
(C) Use by any party or committee for the purposes set out in subparagraph (A) or (B);
(2) The payment, by any person political party, or any other entity other than a candidate or committee, of compensation for the personal services or services of another person that are rendered to the candidate or committee without charge or at an unreasonably low charge for the purposes set out in paragraph (1)(A), (1)(B), or (1)(C);
(3) A contract, promise, or agreement to make a contribution; provided that notwithstanding this paragraph and paragraphs (1) and (2), the term "contributions" shall not include services or portions thereof voluntarily provided without reasonable compensation by individuals to or in behalf of a candidate or committee; or
(4) Notwithstanding paragraphs (1), (2), and (3), a candidate’s expenditure of the candidate’s own funds or the making of a loan or advance in the pursuit of the candidate’s campaign shall not be a contribution for the purpose of this subpart but shall nevertheless be reportable as a campaign receipt. See section 11-191, HRS.

5 Advisory Opinion No. 00-06.

6 The requirements discussed in Advisory Opinion No. 02-08 are:

That the candidate, candidate's representative or party representative shall not accept contributions before, during or after the appearance while at the meeting, convention or other function, but may leave campaign materials or envelopes for members of the audience or attendees;
Any person or entity sponsoring or hosting the event shall not, either orally or in writing, solicit or direct or control contributions by members of the audience to any candidate or party in conjunction with any appearance by any candidate or party representative, and shall not facilitate the making of contributions to any such candidate or party;
Any person or entity sponsoring or hosting the event shall not, in conjunction with any candidate, or candidate's representative appearance, expressly advocate the election or defeat of any clearly identified candidate(s) or candidates of a clearly identified political party and shall not promote or encourage express advocacy by the members of the audience or attendees;
No candidate, candidate's representative or party representative shall be provided with more time or a substantially better location than other candidates, candidates' representatives or party representatives who appear, unless the sponsor or host is able to demonstrate that it is clearly impractical to provide all candidates, candidates' representatives and party representatives with similar times or locations;
Any coordination with each candidate, candidate's agent, and candidate's authorized committee(s) may include discussions of the structure, format and timing of the candidate appearance and the candidate's positions on issues, but shall not include discussions of the candidate's plans, projects, or needs relating to the campaign;
Representatives of the news media may be present during the appearance of the candidate, candidate's representative or the party representative; and
The sponsor or host may not reproduce or distribute candidate campaign material.

7 "Any cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication is not a contribution unless the facility is owned or controlled by any political party, political committee, or candidate, in which case the costs for a news story:
(a) That represents a bona fide news account communicated in a publication of general circulation or on a licensed broadcasting facility; and
(b) That is part of a general pattern of campaign-related news accounts that give reasonably equal coverage to all opposing candidates in the circulation or listening area, is not a contribution." See Title 11 Code of Federal Regulations, section 100.73

Congress intended to preserve the traditional role of the press with respect to campaigns: "[I]t is not the intent of the Congress in the present legislation to limit or burden in any way the first amendment freedoms of the press and of association. Thus [the exemption] assures the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974).

8 Advisory Opinion No. 2004-05; and Advisory Opinion No. 98-15.

9 Reader's Digest Association v. FEC, 509 F. Supp. 1210, 1215 (S.D.N.Y. 1981) (the statute "would not seem to exempt any dissemination or distribution using the press entity’s personnel or equipment, not matter how unrelated to its press function. If for example, on Election Day a partisan newspaper hired an army of incognito propaganda distributors to stand on street corners denouncing allegedly illegal acts of a candidate and sent sound trucks through the streets blaring the same denunciations, all in a manner unrelated to the sale of its newspapers, this activity would not come within the press exemption."); FEC Advisory Opinion 1980-90 (news story exemption was not available to a corporation producing and distributing to broadcast stations videotaped interviews with presidential candidates because the corporation was not engaged in the normal press-business activity of covering and commenting on political campaigns).