Reading the trade press and the blogs, one would think that the Tim Tebow ad that will reportedly air during the Super Bowl presented novel, controversial legal issues. In fact, while we haven’t seen the ad, from what we’ve read, there do not seem to be significant legal issues – most particularly ones that arise from an FCC perspective. The word is that this ad is pro-life, telling his mother’s story of why she decided to have her child after a medical recommendation that she not, and how that child grew up to be a famous quarterback. Where are the FCC legal issues? Even were this ad to explicitly address a "controversial issue of public importance", like the abortion debate, and even were stations running the ad not willing to take ads from pro-choice groups (and there is no indication that this sort of rejection of opposing viewpoints has occurred), as the debates earlier this year on the airwaves and over cable channels made clear, there is no longer any Fairness Doctrine enforced by the FCC. Thus, there is no FCC requirement for stations having to give equal time to competing sides of any particular issue (even when the Fairness Doctrine existed, there was never an obligation for strict equal time – a broadcast station just needed to, in some manner, present both sides of an issue).
At most, were the ad to advocate some specific Federal action, there might trigger an FCC obligation for stations that carry the ad to place a note in their public file about the ad and the amount paid to run it (see our post here), but otherwise the issue seems to be a tempest in a teapot. Since the abolition of the Fairness Doctrine, broadcasters have been assumed to be able to exercise their own editorial discretion to decide what serves their audience and what doesn’t. In the vast majority of cases, no one bats an eye. But combine celebrity, the Super Bowl and a reference to a political hot-button issue, and you have a media controversy – even though there is no legal one. So, unless the ad has some content that no one seems to be contemplating, the folks at the FCC should be able to relax and simply watch the game (assuming no clothing malfunctions or similar unexpected events – which we will leave to another post on another day…)