On Friday, the FCC showed released two decisions – both dealing with a handful of inadvertent violations of the Commission’s rules on advertising directed to children. In one case, a licensee admitted in its license renewal application 4 violations of the rules and was fined $8,000. In another, the licensee admitted 8 violations, received no fine at all, instead being only admonished for its errors. Why the difference?
The FCC justified the difference in treatment based on the nature of the violations. In reality, the station that did not receive any fine actually broadcast more commercial material in excess of the limits on the amount of advertising permitted in children’s program than did the station that was fined. The reason – “program length commercials.” These are instances where, in a commercial message, a character from the surrounding program appears. In that situation, the FCC considers the entire program as a commercial, and thus the violation is considered much more serious than a mere overage in the time limits on commercial material in children’s programs. The station that received the fine had 3 program length commercials, while the station that was not fined simply ran more commercial matter than permitted by the rules – and did not have any program length commercials. But are these distinctions really justified?
In some instances, where commercials feature a character from the surrounding program, the Commission fears that the children in the audience will not be able to the differentiate between the commercial message and the program. In some cases, this fear may well be justified. But at least in one instance in the recent case, this connection is hard to fathom. The ad in question was for an electronic game and featured one character from the program – but only a partial view for one second, hardly enough time to notice much less to create the confusion with the program matter.
Other than that, the fined station had two other program length commercials and one other violation in the eight year renewal period – while the station that was not fined had 8 violation – which the FCC determined were “de minimis,” or essentially insignificant. All of those violations were equally the result of human error which, as the FCC seems to have recognized in one case but not the other, can be expected. So human error is permitted in one instance but not the other.
Thus, the lesson to be learned from these cases seems to be that if you inadvertently make an error, make sure that you err on the length of the commercials that you run, not on a program length commercial. So plan your inadvertent errors carefully.