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.

After the Commission meeting, the Democratic-selected Commissioners issued an unusual public statement defending their position.  They contended that the “small items” exception did not apply as a matter of law, because it “was intended to encompass only advertising on physical items”; that the “impracticable” exception did not apply because “there are no physical or technological limitations which prevent the provision of a complete disclaimer”; and that “any allegation that requiring mobile phone ads to contain disclaimers significantly limits political speech is clearly without merit.”  In a Tweet after the meeting, Commissioner Ann Ravel said: “Innovation, not exemption, is the answer.”

Thus the Commission remains unable to muster four votes as to how to apply disclaimer requirements, last rewritten five years before the first release of the iPhone, to an ever-growing array of digital advertisements.  While an advisory opinion would have provided a legal shield against future Commission enforcement, the Commission’s deadlock signals that the agency lacks the four votes necessary to initiate an enforcement action against ads like those in the request.

The Commission was set to consider another advisory opinion request at today’s meeting from the Solano County United Democratic Central Committee, but that request will be considered at the Commission’s next meeting, to be held on March 6th. Two advisory opinion requests are pending at this time. No rulemakings are open for comment.