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RECEIVED

FEC MAIL ROOM

CTIA

Building

The

Cellular Taleoommunleatlone

Bradley Litchfield, Esq.

2002 AUG

Wireless Future,. Senior Vice President for

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Internet Aeeoelatlon

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Associate General Counsel for Policy
Office of the General Counsel
Federal Election Commission
999EStreet,NW
Washington, DC 20463

Re:

Request of Target Wireless for an Exemption from the Disclosure

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. JR.

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Requirement of 2 U.S.C. S 441d

Dear Mr. Litchfield:

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August 19,2002

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Michael F. Altschul

Policy and Administration and

General Counsel

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Pursuant to 11

C.F.R.

§ 112.3(a), the Cellular Telecommunications & Internet
Association (CTIA)1 supports the request by Target Wireless seeking an exemption of
certain disclosure requirements under the disclaimer exception, 11

C.F.R.

§ 110.11(a)(6),

for the distribution of political advertising to Commercial Mobile Radio Service

("CMRS") subscribers who have "opted-in" to receive such messages on their wireless

devices using Short Message Service ("SMS"). Accordingly, CTIA urges the Federal
Election Commission to issue an advisory opinion stating that the disclaimer exception
logically applies to political advertising using SMS text messages.

As Target Wireless describes in its Request for an Advisory Opinion, CMRS

SMS permits subscribers to send and receive short text messages using wireless devices.
At present, each SMS message is limited to 160 characters.2 Accordingly, the provisions
of 2 U.S.C. § 441d(a) and 11

C.F.R.

§ 110.11(a)(1), which require, inter alia, that a

communication advocating the election or defeat of a candidate through public political

1

CTIA is the international organization of the wireless communications
industry for both wireless carriers and manufacturers. Membership in the association
covers all Commercial Mobile Radio Service ("CMRS") providers and manufacturers,
including cellular, broadband PCS, ESMR, as well as providers and manufacturers of
wireless data services and products.

2

While different wireless technologies and devices have different text messaging
capabilities, all platforms support 160 character messages, making this the de facto SMS
standard for text messages in the United States.

1250 Connecticut

Avenue.

NW Suite 800 Washington. DC 20036 202.736.3248 phone [phone] fax www.wow-com.com

advertising must be accompanied by a clear and conspicuous disclaimer to give the
reader notice of the identity of the party who paid for the communication, would be
impractical considering the length of the mandated disclaimer. Fortunately, the Federal
Election Commission's rules provide for an exception to the disclosure requirement for
advertising where the disclosure would be impracticable due to the relative size of the
disclaimer to the advertisement. See 11

In the Twentieth Century, the Commission applied this exception to skywriting,
and advertising on small items, such as pens and pencils, where a disclaimer would be
impractical. CTIA urges the Federal Election Commission to extend this exception to
SMS text messages.3 Given the severe limitations on the length of

this Twenty-First Century wireless messaging technology is similar to the types of

advertising previously excepted under 11
political candidates will not be able to take advantage of
Americans who subscribe to CMRS offerings.

As the Association of National Advertisers observed in its August 12,2002, letter
in support of the Target Wireless request, any effort by the government to restrict either
political or commercial speech must be "narrowly
substantial government interest to satisfy significant First Amendment concerns. See

Central
York,

any restriction, including overly burdensome disclosure requirements that effectively can
preclude certain forms of speech.

Hudson

447 U.S. 557 (1980). With respect to political speech, the government must justify

Gas and

Electric

C.F.R.

C.F.R.

Corporation

§ 110.11(a)(6).

SMS

text messages,

§ 110.11(a)(6). Absent such a ruling,
SMS

to reach the 135 million

tailored"

v.

Public Service Commission of New

to reasonably address a

Because SMS text messaging comes within the scope of the disclaimer exception,
and because overly burdensome disclosure requirements implicate important First
Amendment considerations, CTIA supports the request by Target Wireless seeking an

exemption of certain disclosure requirements under the disclaimer exception, 11

110.11(a)(6), for the distribution of political advertising to Commercial Mobile Radio
Service

wireless devices using Short Message Service ("SMS"). Accordingly, CTIA urges the
Federal Election Commission to issue an advisory opinion stating that the disclaimer
exception logically applies to political advertising using SMS text messages.

3

Target suggests, in the alternative, that if the Commission does not fully except
the disclosure requirement, it could limit the disclosure information to a phone number or
Internet address where the recipient of the message could receive more information
concerning the sponsor of the message.

("CMRS")

subscribers who have

"opted-in"

M

to receive such messages on their

Sincerely,

bincerei

Michael Altschul ^v.

C.F.R.

§