Tag Archive: FCC


Public Broadcasting and Political Advertisements: Ninth Circuit Decides FCC Ban Violates Free Speech

The 9th United States Circuit Court of Appeals in San Francisco has made the decision that the First Amendment’s free speech clause was violated by the Federal Communications Commission’s ban on political advertising on radio stations and public television.  In the main opinion, Judge Carlos Bea wrote, “Public issue and political speech in particular is at the very core of the First Amendment’s protection.”  He continued to state that “public issues and political advertisements pose no threat of ‘commercialization’ and that such advertisements do not encourage viewers to buy commercial goods and services.”  The rules laid out by the FCC banning for-profit advertising were kept intact by the court.

The FCC argued the government has an interest in airing educational programming and that these programs often run on Public Broadcasting stations.  The court found that the FCC ban was too broad and that the educational nature of the programming would not be threatened by lifting the ban on political advertising.

Norman Ornstein, at the American Enterprise Institute, said the decision could “fundamentally change the character of public television and radio.” He said that this would occur by letting political and other organizations with deep-pockets to begin “swooping” onto the public airwaves to spread their messages.

The Federal Communications Commission (FCC) is actively promoting a proposal that would require local television stations to post information about political advertising on an FCC central website. Local television stations are currently required to maintain public files at their offices for inspection by members of the public. The files normally include information about programming, staffing, and spending on political advertisements. The problem is that few people know about the filing requirement and therefore very few people access the files. The FCC proposal seeks to provide broader access to the public by requiring the television stations to upload the files to an FCC-operated website. Critics assert that the change would be an unnecessary financial burden for local stations and does not clearly benefit the public. However, advocates for the proposal claim that the requirement will make it easier to access public information and provides greater transparency about the political advertisements during political campaigns. In addition, the FCC notes that initial uploading of the files will cost less than $1,000 for most television stations and will save television stations money in the long run by avoiding printing and storage costs. The FCC is expected to vote on the proposal at an April 27 meeting and it seems likely that the measure will pass.

The recent Rush Limbaugh controversy has generated two interesting developments in media law. The controversy began about two weeks ago when Limbaugh referred to Sandra Fluke, a Georgetown law student, as a “prostitute” and a “slut” after she testified to congressional Democrats regarding the health care mandate’s coverage of birth control. Shortly after her testimony, Limbaugh said on his talk radio show, “What does it say about the college coed … who goes before a congressional committee and essentially says that she must be paid to have sex? It makes her a slut, right? It makes her a prostitute. She wants to be paid to have sex.” The first interesting development in media law is that Gloria Allred is leading an effort for Limbaugh to be charged with defamation over the comments. Allred, a well-known celebrity lawyer, recently sent a letter to the Palm Beach County Attorney’s Office saying prosecutors should consider charging Limbaugh under an 1883 law making it a misdemeanor to question a woman’s chastity. Allred explains, “He [Limbaugh] has personally targeted her and vilified her, and he should have to bear the consequences of his extremely outrageous, tasteless and damaging conduct.” The second development is that Jane Fonda, Gloria Steinem, and Robin Morgan are calling for the Federal Communications Commission (FCC) to prevent Limbaugh from continuing his show. In a recent editorial, the three activists argued that if enough listeners complain about Limbaugh, then the stations that carry him could be denied license renewal. One commentator notes that the FCC effort is likely futile because (1) it is logistically difficult based on the nature of the FCC license renewal process; (2) the effort would raise serious First Amendment concerns; and (3) the effort could create a political backlash.

The FCC and the Sports Blackout Rule

The Federal Communications Commission (FCC) is considering a proposal that would eliminate the sports blackout rule which bars cable and satellite systems from carrying a sporting event that is blacked out on local broadcast television stations. In other words, a local broadcaster is required to black out a game because tickets didn’t sell out 72 hours in advance. Unfortunately, this rule usually means that fans are not allowed to watch that game any other way. This rule has been in effect for 36 years and is aimed at ensuring that enough fans attend games. February 13 marked the last day for the FCC to receive comments. The FCC has reportedly received about 100 comments; an overwhelming majority of the comments favor eliminating the rule. The Sports Fans Coalition, a nonprofit fan advocacy organization, and other public interest groups filed a petition for rulemaking asking the FCC to eliminate the blackout rule. The petition asserted that sports economics and the technological means of distributing games have rendered these [blackout] rules obsolete.” Sports Fans Coalition Executive Director Brian Frederick argues that the blackout rule punishes “fans who physically cannot attend games or who cannot afford to go and they decrease fan interest, thus compounding the problem.” National Football League (NFL) Commissioner Roger Goodell has defended the policy by noting that the NFL only had 16 blackouts in 2011. In addition, Goodell has noted that the NFL is required to balance between making games available on free TV with encouraging fans to come to the stadium. Perhaps a reasonable compromise the FCC should consider is to reduce the 72 hour requirement to 48 or 24 hours. The announcement of the FCC’s decision is not certain and the agency does not have a deadline to act.

Role of Censorship on “The Late Late Show with Craig Ferguson”

Craig Ferguson is the host of CBS’ “The Late Late Show with Craig Ferguson” which airs weeknights at 12:35/11:35p.m (central). Ferguson, born in Glasgow, Scotland, began his career in the entertainment world as a drummer in several Scottish punk bands. After discovering his talent as a comedian, the British Broadcasting Corporation gave Ferguson his own TV show, entitled,  “The Ferguson Theory.” Ferguson moved to the United States and gained fame in America by acting on The Drew Carey Show during 1996-2004. After acting on the Carey show, he began hosting “The Late Late Show” in 2005 as a successor to Craig Kilborn. Ferguson’s monologue style is unique because he uses a free style, off-the-cuff approach. The humor of The Late Late Show comes from his strong Scottish accent combined with the unpredictable and ridiculous delivery of his jokes. During the monologue and interviews with guests, Ferguson will do and say almost anything to get a laugh and is completely unaffected by the fact that some people may be offended by his behavior. The latest episode of The Late Late Show with Craig Ferguson aired on Tuesday, November, 16, 2010, and was full of his typical style of comedy. Throughout the episode, Ferguson made several jokes and used terms that raise the issue of censorship and tolerance of offensive words on television.

There are a number of factors that determine whether words are considered profane compared to words that are acceptable to say on television. Some of these factors include the type of network, genre of the show, and time of day it airs. A combination of these factors will determine whether the Federal Communication Commission regulates the content of the programs or not. The FCC was established by the Communications Act of 1934 and regulates under Title 47 of the Code of Federal Regulations. The type of network factor comes into play here because the FCC’s jurisdiction only applies to broadcast networks, such as CBS, Fox, ABC, and NBC, and does not cover cable or restricted-access networks, like BRAVO or HBO. The FCC’s enforcement process begins by allowing the public to file complaints about potential obscene, indecent, or profane material aired on television. The FCC examines each complaint and if it contains sufficient information to suggest a possible violation, an investigation will begin. After the investigation, the FCC determines whether the material is obscene, indecent or profane, and if so, the Enforcement Bureau issues a Notice of Apparent Liability to the broadcaster. The broadcaster is given an opportunity to respond to the notice by the Commissioner. The Commission reviews the complaint, along with the response, and decides whether to grant or deny it. If the complaint is granted, the Commission may issue sanctions to the broadcaster for violation of its policies.

Material that rises to the level of obscenity is always prohibited on television, regardless of what time and in what context it airs . Indecent and profane material does not rise to the level of being “obscene” and is only prohibited by the FCC during the hours of 6am-10pm. Civil enforcement of these requirements rests with the FCC, and is an important part of the FCC’s overall responsibilities. Indecent or profane material aired on broadcast networks after 10pm are not prohibited under the regulation of the FCC. However, most networks institute self-censorship policies for late-night programs. Broadcasters often choose to censor material without being forced to do so out of fear of losing advertisers or to give deference to the the sensibilities of viewers. Indecent material is prohibited throughout the day and during prime time hours, due largely because of the children that may be subjected to the material. Indecent material and adult content are not prohibited during what is referred to as “Safe Harbor.” Safe harbor, known as “watershed” in countries other than the U.S., is the time period in television  during which “adult content” may be shown. Adult content is an image or language depicting or referring to explicit sexual intercourse, graphic violence, drug use, or the use of strong language. The Supreme Court established this Safe Harbor principle in the 1978 case, FCC v. Pacifica. In the U.S., Safe Harbor time begins at 10:00pm and ends at 6:00am for all time zones. Networks need to be mindful of the time zone aspect of these rules because each of the 4 U.S. time zones enters its Safe Harbor at 10pm in its local time. Thus, network affiliates need to ensure that the same show airing at 10pm in one zone does not fall outside the Safe Harbor in another zone.

Since the Late Late Show with Craig Ferguson airs at such a late hour, it falls under Safe Harbor and indecent material aired during this time is not subject to the rules of the FCC. CBS engages in the self-censorship of Ferguson’s show, which is evidenced by the bleeping out of curse words spoken by Ferguson or his guests. TV shows have been bleeping-out profane words for years, but some shows are beginning to intentionally include swear words and later bleeping them out for comedic effect. Whenever profanity is used on “The Late Late Show,” the person’s mouth is covered up by a country’s flag and is bleeped by a phrase from that particular country. An example of this can be seen from Tuesday’s show when Ferguson uses a swear word and his mouth is covered by a French national flag and is bleeped by the phrase “Oooh-la-la.”

Ferguson makes it obvious during his monologue that CBS is concerned with the language and content of the material of his program. An example of this from Tuesday’s episode is when Ferguson makes references to city of Bangkok and Lake Titicaca. The only reason he mentions these places is for the mere fact that the words sound like “cock” and “titty”, slang terms referring to parts of the body. Ferguson then makes jokes by rhyming words with the terms “testicles” and “vagina” After making these ridiculous jokes, Ferguson looks to the side of the stage and tells the person in charge of censoring what he says on the show, “It’s a real place/thing and you can’t touch me.” Ferguson also frequently says “CBS cares” and “I expect your letters” after he makes comments or jokes that he knows will offend some viewers. Ferguson is aware that he may be offensive to some viewers, but that does not stop him from saying exactly what he wants within the bounds of the self-imposed limits CBS places on his show.

By using common scientific terminology for body parts and referring to actual places, Ferguson avoids the risk of saying anything that can get him in trouble with CBS. Also, the shows use of “bleeping” curse words is just one example of the ways actors or programs can come up with creative ways to include edgy, controversial material without getting in trouble by its network or the FCC. Another way networks do this is by using grawlixes, which are symbols that take the place of the letters of a curse word. An example of this in television can be seen in the title of the CBS show, “$#*! My Dad Says.” Minced oaths are also commonly used as euphemisms to avoid swearing. An example of a minced oath is the term “fugly” which combines the offensive “F” word with the word “ugly.” These methods are all creative ways  broadcasters get indecent material into programs without violating the FCC or its own censorship rules. These methods are sometimes refered to as “veiled expletives.” Series often use veiled expletives because harsher language adds to the believability and reality of a situation, such as in crime dramas and reality shows. Whether the network is strategically placing expletives in material to add to the comedy, drama, or reality of the program, it is a common tool being used in television to stretch the bounds of censorship.

Obvious Product Placement in Top Chef: Just Desserts

The Bravo Channel is known for its use of product placement in its series “Top Chef” and the first season of “Top Chef: Just Desserts” is no different. Several advertisements are present in each episode of the series, but in the October 27th episode titled “Dessert Wars” there was a particularly obvious example of product placement.

After a long day of preparation for the elimination challenge, the contestants return to their apartment. The scene then cuts to an image of a hand opening the freezer with a half-gallon of Breyer’s ice cream on the shelf. The next clip shows a hand grabbing a Godiva chocolate bar from a candy basket. However, there is no reference to these products and the contestants are never shown eating either product or even discussing it. The advertisements for these 2 products are so awkwardly placed in the episode that it leads to the suspicion that the hands shown are not even the hands of the actual contestants. It is pretty obvious that these 2 clips were added after the filming of the show and are meant to be strategic product advertisements. However, it would be more useful for Breyer’s or Godiva if the episode actually showed the contestants consuming the ice cream or the candy being advertised.

This leads to the issue of product placement in television. The Top Chef series ranks high on Nielsen’s list of most effective product placements. The Nielson Company is a global leader in providing research, ratings, and data for all types of media. In 2008, Nielson spend 2.25 million dollars to acquire IAG Research, a company that measures the effectiveness of advertising and product placement on over 210K episodes and over 250K commercial executions. Nielson IAG conducts thousands of surveys daily to measure viewer’s engagement and the effectiveness of every advertisement, product placement and sponsorship in primetime across all broadcast and major cable networks. These scores represent an audience’s level of awareness for the product placement, whether the exposure created positive or negative feelings toward the brand, and whether it raised interest to purchase that product. With the use of Nielson’s IAG research, an advertising company can target its products directly to its most receptive audience.

For 2009, 3 products advertised on Top Chef made Nielson’s top 10 list for the most effective product placements on brand opinion. The show also ranked #7 in the top 10 programs with product placement activity. The series relies heavily on product placement and brand integration for the challenges and tasks in each episode and several companies utilize a combination of product integration to advertise products during the show. Dawn hand care, Albertsons supermarkets, and Breyer’s are all examples of companies that air commercials, place products in scenes of the show, and have banners on the homepage of the Top Chef: Just Desserts website. Due to the success of this show’s product placement, it is no shock that many companies use the show as a vehicle to advertise.

With the increasing popularity of digital recording devices, many viewers are forwarding through the 30-second commercial spots. Advertising within television episodes is increasing drastically due to this trend. This raises the issue of if and how the government should manage advertisers. The Federal Communications Commission currently regulates sponsored programming under the Communications Act of 1934 and requires broadcasters to disclose to viewers if any content of the broadcast has been made in exchange for money, services, or other valuable consideration. These “sponsorship identification rules” are applied and enforced by the FCC in the context of product placement. Broadcasters typically comply with the FCC’s regulations by making a single disclosure at the end of the program that states the sponsors’ name or product. The Federal Trade Commission is only responsible for the regulation of product placements that include false or misleading objective, material claims about products. Consumer protection activists argue that the government should creates more stringent restrictions to prevent deceptive advertising techniques. However, commercial speech is protected by the First Amendment and more stringent regulations would likely violate broadcasters’ and advertisers’ rights. The government should not regulate at the cost of violating the Constitutional right of free expression, especially if the existing regulations are sufficient to address the potential deceptive nature of product placements. The government’s purpose in regulating product placements is to clearly identify any commercial sponsor to television viewers in order to avoid deception. With such blatant advertising as seen in the most recent episode of the newest Top Chef series, it is hard to imagine a viewer who will not realize such blatant product placements.


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