2011-07-15 - WRITTEN OPINIONS

2011-07-15. WRITTEN OPINIONS

GARY O. BARTLETT

Executive Director

MAILING ADDRESS:

P.O. BOX 27255

RALEIGH, NC 27611-7255

July 15,2011

Mr. John O. Moore

c/o Mr. Josh Boberg

3493-A South Evans Street

Greenville, North Carolina 27835

Re: Request for Advisory Opinion

Dear Mr. Moore:

Thank you for your recent request that the office of the Executive Director provide an advisory opinion pursuant to N.C. Gen. Stat. § 163-278.23 regarding compliance with Article 22A of Subchapter VIII of the North Carolina General Statutes.

By letter and emails to Kim Strach on May 11th, June 27th, July 6thand July 13, 2011, you and your attorney, Mr. Josh Boberg, have requested guidance as to whether your work on radio and television has campaign finance implications with respect to your candidacy for mayor of the Town of Greenville.

From a campaign finance perspective, the question raised by the facts you've provided is whether the circumstances of your radio or television work bring such activity within the meaning of "electioneering communications."

Such a determination is now significant to persons involved in local campaigns in North Carolina because of recently enacted legislation that extends the scope of "electioneering communications" provisions to apply to municipal elections.1

If an electioneering communication is coordinated with a candidate, the cost of that communication is considered an in-kind contribution to the candidate. If the source or sources paying for the communication are not eligible to contribute directly to candidates, or if the source is eligible to contribute but the cost of the communication causes the $4,000 contribution limitation to be exceeded, such contribution is rendered impermissible.

Relevant statutes for the purpose of this opinion include N.C.G.S. § 163-278.6(8j), which describes the type of communications that are deemed to be electioneering communications,2 and

1 Session law 2010-170, ratified July 10, 2010.

N.C.G.S. § 163-278.6(8k), which describes those communications that are not deemed to be electioneering communications.3

According to information you provided, you host two television programs and a radio music show, and also appear in radio and television commercials for Greenville Toyota.

Your attorney, Mr. Boberg, has confirmed with Kim Strach that the Greenville Toyota commercials do not mention any election, candidacy, political party, opposing candidate or voting by the general public, nor do the ads take a position on the candidate's character or qualifications or fitness for office, and further, the ads do propose a commercial transaction. Therefore, according to paragraph (e) of § 163-278.6(8k), your commercials for Greenville Toyota do not constitute electioneering communications.

You also appear on the television shows, Carolina Outdoor Journal and DownEast Today.

2 N.C.G.S. § 163-278.6(8j) "The term "electioneering communication" means any broadcast, cable, or satellite communication, or mass mailing, or telephone bank that has all the following characteristics:

a. Refers to a clearly identified candidate for elected office.

b. Is aired or transmitted within 60 days of the time set for absentee voting to begin pursuant to G.S. 163-227.2 in an election for that office.

c. May be received by either:

1. 50,000 or more individuals in the State in an election for a statewide office or 7,500 or more individuals in any other election if in the form of broadcast, cable, or satellite communication.

2. 20,000 or more households, cumulative per election, in a statewide election or 2,500 households, cumulative per election, in any other election if in the form of mass mailing or telephone bank.

3 N.C.G.S. § 163-278.6(8k) "The term "electioneering communication" does not include any of the following:

a. A communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station, unless those facilities are owned or controlled by any political party, political committee, or candidate.

b. A communication that constitutes an expenditure or independent expenditure under this Article.

c. A communication that constitutes a candidate debate or forum conducted pursuant to rules adopted by the Board or that solely promotes that debate or forum and is made by or on behalf of the person sponsoring the debate or forum.

d. A communication made while the General Assembly is in session which, incidental to advocacy for or against a specific piece of legislation pending before the General Assembly, urges the audience to communicate with a member or members of the General Assembly concerning that piece of legislation or a solicitation of others as defined in G.S. 120C-100(a)(13) properly reported under Chapter 120C of the General Statutes.

e. A communication that meets all of the following criteria:

1. Does not mention any election, candidacy, political party, opposing candidate, or voting by the general public.

2. Does not take a position on the candidate's character or qualifications and fitness for office.

3. Proposes a commercial transaction.

f. A public opinion poll conducted by a news medium, as defined in G.S. 8-53 f.11(a)(3), conducted by an organization whose primary purpose is to conduct or publish opinion polls, or contracted for by a person to be conducted by an organization whose primary purpose is to conduct or publish public opinion polls. This sub-subdivision shall not apply to a push poll. For the purpose of this sub-subdivision, "push poll" shall mean the political campaign technique in which an individual or organization attempts to influence or alter the view of respondents under the guise of conducting a public opinion poll.

g. A communication made by a news medium, as defined in G.S. 8-53.11(a)(3), if the communication is in print.

According to descriptions provided by your attorney, Josh Boberg, by email to Kim Strach on July 6,2011, Carolina Outdoor Journal is a show (which I am a viewer) about fishing in North Carolina that airs on UNC TV, you are paid for your participation by Joe Albea Productions, Inc., and each season of the show is taped in advance. According to the same email, DownEast Today airs daily on WITN TV 7.2. Your services are not compensated, but are contracted through an agreement between ADNET Tutt Productions and Moore Marketing and Advertising. The hour-long talk show is pre-recorded at least a week in advance, and addresses themes of local interest such as civic clubs and community events.

Finally, you host a radio music show called Sock Hop on WNCT FM, which is a program that encourages listeners to phone in music requests. This show airs live on 107.9 WNCT FM on Friday nights from 6:00 pm until 11:00 pm. By letter dated July 13, 2011, you advise that you produce and sell advertising for the show, and that you control all content that is aired by taping the phoned requests to determine suitability for broadcast.

Based on this information and the provisions of N.C.G.S. § 163-278.6(8k)(a), it is my opinion that your work on the programs Carolina Outdoor Journal, DownEast Today and the Sock Hop on WNCT FM does not constitute electioneering communication. The content of the shows are properly described as "communication appearing in a news story, commentary or editorial distributed through the facilities of [a] broadcasting station," and such facilities are not "owned or controlled by any political party, political committee or candidate."

This opinion is based upon the information provided by you and your attorney. If any information should change, you should consult with our office to ensure that this opinion would still be binding. Finally, this opinion will be filed with the Codifier of Rules to be published unedited in the North Carolina Register and the North Carolina Administrative Code.

If you have any further questions, please contact me or Kim Strach, Deputy Director-Campaign Finance.

Sincerely,

@#22#@

Gary O. Bartlett

Executive Director

cc: Julian Mann, Codifier of Rules

Josh Boberg

Susan Nichols

Don Wright

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