The earthquake in Haiti has caused many to look for ways to help – including broadcasters. While many broadcasters are already pitching in to do their part to aide relief efforts, noncommercial broadcasters are, in some cases, limited in what they can do. Noncommercial stations cannot raise funds, even for other noncommercial groups, if that fundraising "substantially alters or suspends regular programming" of the station. Under these rules, NCE ("Noncommercial educational) stations are thus forbidden to hold a telethon or other pledge drive that suspends normal programming where the proceeds would go to a third party – even a nonprofit third party group. Thus, recognizing the magnitude of the tragedy in Haiti, the FCC has agreed to grant liberal waivers of these policies, issuing a public notice announcing that NCE stations wishing to conduct such efforts can simply file an electronic request, by email, with certain supervisors in the Media Bureau’s Audio and Video divisions, setting out the nature of the programming, its length, and the beneficiary.
We obviously applaud the FCC’s rapid response on this issue. But we note that it is interesting that the Public Notice states that applicants for one of these waivers also must state whether the special fund-raising effort is part of the station’s normal fundraising, or if it is a separate program. The public notice does not mention that noncommercial stations can make fundraising appeals for third parties under the current FCC policies, as long as those appeals do not suspend or interfere with normal station programming. It would seem to me that such appeals would permit a DJ on an NCE station, in a normal programming break, to urge listeners to contribute to the Red Cross or some other charity, or for a regularly scheduled talk show on a station to feature a discussion of the situation in Haiti and of how people can assist with disaster relief, without needing any specific approval of the FCC. The key to whether a waiver of the FCC policies is necessary is whether there is a substantial alteration or suspension of the normal programming of the station.
In many ways, the whole rule against third-party fundraising for nonprofit groups seems to be a relic of another era. When first adopted, the FCC had very strict rules on promotions or even acknowledgments of any business or entity that provided anything of value to the noncommercial station in exchange for on-air mentions. With a recognition that noncommercial stations did need to raise funds to survive, through "enhanced underwriting" and other changes, many of those restrictions have eased over the last 30 years. The prohibition against doing promotional announcements for other noncommercial entities has been totally lifted – so that NCE stations can essentially run sponsored promos for the activities of other nonprofit entities. Why, if you can promote the activities of another nonprofit on the air, even in exchange for consideration from the nonprofit, a NCE station cannot also fund raise for that same nonprofit entity seems a mystery.
Last year, on the FCC’s periodic announcement of matters circulating among the Commissioners for consideration, there was a notation of a proposal to change the policies on NCE stations fundraising for third party organizations. As I represent many NCE stations, I made some inquiry among other lawyers who represent noncommercial entities, and no one really seemed to know where that proposal for change originated, or what it entailed. One hopes that the FCC does liberalize these rules so that, whether in the event of disasters like that in Haiti, or to simply promote the good works of other charitable organizations in its service area, NCE stations can freely serve the public and promote these activities without the need for prior FCC approval.
Update – The NAB has prepared PSAs for stations to use to promote Haiti relief efforts. See their press release here, with links to the PSAs.