The irresistible force met the immovable object Thursday, as the Federal Election Commission deadlocked again on whether disclaimer requirements applied to advertisements displayed through new technologies. The deadlock left no clear path toward a common understanding of the disclaimer requirements, with the Democratic-selected Commissioners contending that the law permits no exception for mobile phone ads, and the Republican Commissioners contending that applying the requirements would violate the law and burden speech. Advisory Opinion Request 2013-18, submitted by Revolution Messaging LLC, dealt with so-called “banner advertisements” appearing at the bottom of a smartphone screen. (Revolution Messaging LLC is a political consulting firm that crafts and places digital advertisements for Democrats and progressives.) Commission regulations apply the disclaimer requirements generally to public communications, including Internet communications that are placed for a fee. But they contain exceptions for “small items,” and for advertisements where “inclusion of a disclaimer would be impracticable.”
The Commission originally took up the request at its January 16th meeting. While the Republican-appointed Commissioners argued that mobile advertisements fell within the exceptions, the Democratic-appointed Commissioners contended that neither exception applied, and were unwilling to support an opinion that might appear to create a blanket exemption from the rules. The Commission postponed a final vote so that Revolution Messaging could submit an amendment to its request, presenting additional facts that might break the logjam and allow the Commission to issue an opinion on the narrow facts presented. Revolution Messaging proposed to “identify the advertiser” in its mobile phone ads by linking to its website or including its name or logo. But at Thursday’s public meeting, the Democratic-appointed Commissioners stressed that these steps were inadequate, and that while a disclaimer might not need to be included on the banner ad itself, it must at least be included on the website to which the banner ad linked.