In a decision granting the license renewal of a noncommercial radio station, the FCC’s Media Bureau addressed a number of interesting issues – including the requirements for noncommercial underwriting announcements, whether PSAs meet a station’s public service obligations, and the ability of stations to run cigarette ads in historical radio programs from early radio days. These issues all came up in a decision to renew the station’s license despite a petition from a former manager alleging that the station had violated a number of Commission rules or policies – a petition raising all of these issues.

The $3000 fine that the FCC proposes to levy on the station was for what the FCC found to be improper underwriting announcements. Two different issues were found to violate FCC standards – one fairly straightforward, one less so. The relatively easy issue was whether the underwriting announcement by a musical group stating that it was voted “Canada’s #1 bluegrass band” made a qualitative claim. The station argued that the #1 claim was simply a statement of fact based on the vote in Canada. The FCC, not surprisingly,  found that the “#1” label, no matter how it was derived, was a qualitative claim and thus prohibited as part of an underwriting acknowledgment on a noncommercial station.   Such announcements cannot be commercial in nature – meaning that they cannot contain a call to action, price information or qualitative claims about the products or services offered by the sponsor.  See articles that we have previously written on underwriting issues: here and here and here, as well as a presentation on that issue that is discussed here.

The underwriting issue that was a bit more novel was the finding that two different announcements that listed services provided by sponsors were too detailed in listing the products that they offered. One announcement for a roofing company stated that it offered “custom metal roofing, siding, hardware, trim, insulation, trusses, and perma felt paper.” An ad for a garden store stated that it featured “bulk and bag mulch, peat moss, potting soil, bulk top soil, and decorative borders. . . .pickup and delivery.” The proposition set out in this case was that “excessively detailed menus of multiple product/service offerings by underwriters exceed the type of information that would enable listeners to identify supporters of noncommercial programming.” The issue was not that the sponsorship acknowledgment stated what an underwriter did in a promotional manner, but instead that it was too detailed in the objective recitation of the services or products offered by the sponsor. So, while an underwriting announcement may, in a non-promotional way, mention a product or service provided by an underwriter, the announcement apparently, at some point, becomes an issue when too many products or services are listed. Where the line is between a permissible description of the business of the company and an impermissible “detailed menu” is left unclear.

The next interesting issue – for both commercial and noncommercial broadcasters – is the question of whether Public Service Announcements can satisfy a licensee’s public service obligations. Every broadcast station has an obligation to serve the public interest, though how that service requirement is met is not entirely clear.  The Commission here admonished the station for meeting its public service obligations solely through PSAs during the last 6 months of its renewal term. The decision makes clear that, while PSAs do serve the public interest and can be issue-responsive programming, they cannot by themselves be the sole source of such programming. Instead, stations need to address the issues that face their community in some fashion other than PSAs to fully meet their public interest obligations.  So do news, public affairs, or some other more detailed discussion of issues of importance to your community – don’t just rely on PSAs to address any issue that you identify. 

Finally, the decision addressed the issue of whether stations can run old-time radio programs that contain authentic cigarette commercials. This is a question that comes up from time to time, and it has come up again in this case, and still has no answer. In this decision, the Commission acknowledged that noncommercial stations can run old time radio programs with commercials in them (where the station is not paid for the commercial but instead is running them just for historical purposes as they were embedded in the original program). But, if those embedded commercials are for cigarettes, all bets are off. The Commission cited a policy statement from 20 years ago that said that these old-time programs, with commercials, can be broadcast, but that the opinion specifically exempts programs with ads for cigarettes, on which it offered no opinion. In this case, the Commission adopts the same position of that old policy statement – saying that the issue is one for the Department of Justice to consider, and refers the matter to the DOJ. The FCC is not charged with the authority to implement the laws contained in the Public Health Cigarette Smoking Act of 1969 against on-air cigarette ads. Instead, prosecution under the statute is left to the DOJ, which uses it very infrequently. The FCC does not answer the question here, but instead sends the question of whether these old ads are permissible to the DOJ where it may or may not ever be addressed. So, once again, stations are left with no firm idea as to whether these old-time radio programs, with cigarette ads, can legally run on the air.