FECA exempts much press coverage from regulation. It excludes from the definitions of contribution, expenditure, and electioneering communication any communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless such facilities are owned or controlled by any political party, political committee, or candidate.
The FEC takes the position that press entities are entitled to this exemption if they meet the statutory requirements and they are acting in their usual press capacity when they publish. The latter requirement stems from a 1981 case questioning whether the widespread distribution by Reader's Digest magazine of a video tape about Senator Edward Kennedy fell within the press exemption or represented a corporate political expenditure.
In Readers Digest Association v. FEC (509 F.Supp. 1210), a court held that the FEC could investigate whether the Readers Digest Association was acting in its capacity as a magazine publisher in distributing the tape in order to determine whether the press exemption was applicable. The FEC later determined not to take any action against Reader's Digest.
The FEC has not yet dealt with a number of issues relating to the press exemption, including whether and how it applies to Internet-based speech. Should an Internet publisher have to take advertising and have a news page like AOL or MSN, or be an affiliate of a print or broadcast media organization, like WashingtonPost.com or CNN.com, to enjoy the exemption? Should the exemption apply to bloggers or perhaps to anyone with a website? Does the exemption apply to paid advertising for a news story or commentary?
In FEC Advisory Opinion 1982-44, the Commissioner did indicate, that it was prepared to take a broad view of what constitutes commentary in the exemption, stating that:
"Although the statute and regulations do not define commentary, the Commission is of the view that commentary cannot be limited to the broadcaster. In the opinion of the Commission, commentary was intended to allow the third persons access to the media to discuss issues. The statute and regulations do not define the issues permitted to be discussed or the format in which they are to be presented under the commentary exemption nor do they set a time limit as to the length of the commentary."
