On Monday, the FCC issued a $4,000 fine to a cable operator for the use of a so-called Video News Release, or VNR, in a news segment focusing on consumer issues. The facts in this case are very similar to the facts in dozens of other inquiries involving broadcast television stations that remain pending before the Commission, and this decision could very well signal the beginning of a number of forfeitures aimed at cracking down on the (until recently) common practice of using video material provided for free by third-parties without providing attribution or a sponsorship identification. The decision was issued by the Enforcement Bureau and not the full Commission, and goes to lengths to explain that the sponsorship rules apply to cablecasting material aired by cable operators, and that the use of even a free video (i.e. with no consideration promised or paid to the cable operator or broadcaster) can require a sponsorship ID, even if no political or controversial issue is involved.
In this case, a cable network aired potions of video from a VNR produced on behalf of a product called "Nelson’s Rescue Sleep." No consideration was given or promised to the cable operator, but the VNR was provided to the cable operator for free. The sponsorship ID rules typically come into play when money, services, or other valuable consideration is given in exchange for airing the particular material. Normally, the phrase "services or other valuable consideration" does not typically include services or property furnished without charge or at a nominal fee, such as the VNR. In this case, however, the FCC concluded that the video was furnished in consideration for the product being identified to a degree greater than what was reasonably related to the use of the product or service in the broadcast. The VNR was included in a news segment about non-prescription sleep aids, but the segment did not contain any other sleep-aid products. And (because it was a VNR for the product itself) the segment dwelled on and discussed at length the underlying product "Nelson’s Rescue Sleep." Citing to a 44-year old FCC Public Notice that provided guidance to broadcasters in the early 1960s about the sponsorship ID rules, the FCC found that the use of the VNR in this situation obviated the exception for free material and that a sponsorship identification should have been included. A copy of the FCC’s decision is available here.
The FCC’s forfeiture order was adopted exactly one year to the day that the material was aired by the cable operator, and thus, seems to have been issued now so as to avoid the possibility that the statute of limitations prevent the Commission from issuing a fine. Although this is the first such VNR fine against either a cable operator or television broadcaster, it seems likely that more such decisions will be forthcoming. Indeed, Commissioner Adelstein, who has championed this novel interpretation of the sponsorship identification rules, was quick to issue a statement applauding the Enforcement Bureau for its decision. Given that the decision seems to cross into the territory of a cable operator’s or broadcaster’s editorial and journalistic discretion protected by the First Amendment, one can imagine that the cable operator (and any broadcasters fined in the future) will attack vigorously the FCC’s interpretation of its sponsorship ID rules with respect to VNRs.
UPDATE: On Thursday (September 27, 2007), the Commission issued a further decision involving the same cable operator, fining the operator an additional $16,000 for four more VNR incidents similar to the one discussed above. In each instance, the cable operator included video that was received for free in a program aired on the system without attribution or a sponsorship identification. The Commission concluded that the free video clips contained extensive images, discussion, and mention of the particular product, which triggered the sponsorship ID rules. A copy of that decision is available here.
In a related item, two key members of Congress released a letter today praising Chairman Martin’s recent comments regarding product placement in television and encouraging him to commence a proceeding looking into the practice. According to Congressmen Ed Markey and Henry Waxman, the use of product placement on television is on the rise as stations try to combat the "Tivo effect" of viewers by-passing traditional commercials. A copy of the letter is available here, and it will be interesting to see how the Commission approaches the issue.