Tag Archive: Federal Communications Commission


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.

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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