Sticking points remain on text-to-donate

The wireless industry’s willingness to set up a political text-to-donate regime may hinge on its ability to dictate which federal campaign committees are eligible for the service.   

That was among the major points of discussion Thursday at an open hearing of the Federal Election Commission, during which commissioners heard from lawyers for wireless aggregator m-Qube and CTIA, the wireless industry trade group.   

In June, the commission approved a text-to-donate proposal from m-Qube and Armour Media, but wireless carriers have since expressed a litany of concerns over compliance and eligibility and have requested clarity from the commission. For campaigns that were hoping to accept contributions via text message before November, Thursday’s FEC meeting didn’t exactly inspire confidence.       

The FEC released a draft advisory opinion ahead of its open meeting, parts of which should ease some of the concerns wireless carriers have expressed about allowing donations via text. Campaign committees, not wireless vendors, will be responsible for determining the eligibility of text contributors based on information forwarded to the committee by aggregators, according to the draft AO, which was in response to a request from m-Qube and Armour.

Also up for discussion Thursday was a separate advisory opinion request submitted by CTIA. The industry group’s AOR asks whether wireless providers will be required to make text-to-donate programs available to all candidates and political committees, or whether providers can establish their own criteria for which campaigns will be eligible. Carriers want to limit participation—possibly excluding fringe candidates or political committees altogether—if the FEC consents.

One concern expressed Thursday was over to how to ensure the determination on eligibility by wireless providers isn’t motivated by politics.     

“I can see a situation where a wireless service provider only wants to take candidates polling at a high level because they’ve got capacity to pull in a higher volume of contributions,” Caleb Burns, the attorney representing CTIA, told commissioners. “You’re right, that’s a political consideration but it’s not the determinative factor; it’s a commercial factor that’s going to be used to apply that political consideration.”  

One of the thorniest issues that emerged Thursday was on the question of whether allowing providers to determine which political committees could accept donations via text would constitute an in-kind donation on the part of the wireless provider. In its draft advisory opinion, the commission said it would not “so long as the requirements are based on commercial, rather than political, considerations.”   

However, commissioners acknowledged that the language on commercial versus political is something that requires further examination. Republican Commissioner Don McGahn offered this hypothetical for wireless providers: suppose a candidate identifying with “say the Nazi Party, Communist Party, white supremacist party” wanted to take advantage of donations via text message.  

“But it turns out that, as soon as that gets out, the corporate boycott operation kicks into high gear on various clients,” said McGahn. “You then say, ‘Gee, we don’t want to touch this.’ In the eyes of the people on the ballot it’s for political reasons. From where I sit, it’s purely for commercial reasons.”

Commissioners asked m-Qube and CTIA to supply more detail on the criteria carriers would use to determine the eligibility of campaign committees. The parties will respond to the FEC within the draft advisory opinion’s 10-day comment window.    

“The carriers are still considering whether they want to get into this business at all,” said Burns, explaining the wireless industry’s concern over a possible mandate that it must offer text-to-donate to any political committee that asks.      

A new text-to-donate proposal submitted earlier this week by the mobile firm Revolution Messaging was not on the FEC’s open meeting agenda Thursday, but it seeks significant changes in the system the commission has already approved and encourages the FEC to not allow wireless carriers the ability to determine which political committees would be eligible for the service.

In its advisory opinion request, Revolution Messaging argues that the m-Qube proposal will not enable political committees to make “widespread use of text messaging as a means of fundraising.” The mobile company wants wireless users to be able to contribute more than $50 per billing cycle to federal political committees, and it proposes that multiple federal committees share a premium short code by which they could accept donations via text.

Additonal reporting by Shane D’Aprile.