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I had an interesting question this week – asking why beer companies won’t advertise on radio stations with younger demographics.  Was it a law or just a marketing decision?  What I found is that it is a little of both.  While there are no laws specifically prohibiting the advertising of beer on radio stations with younger audiences, the Federal Trade Commission and Congress have been very concerned about all alcohol advertising, especially advertising that appears to encourage under-aged drinking. Thus, to avoid regulation, the Beer Institute has adopted voluntary standards that require its members to advertise only on radio stations which have an audience that is at least 70% comprised of those older than the legal drinking age. 

The FTC has periodically issued reports on advertising for alcoholic beverages, the last report having been issued in 2003.  Appendix D to that report contains the Beer Institute guidelines.  As set forth in those guidelines, the industry looks to audience demographics, by daypart, in deciding whether or not its members should buy time on a particular station.  If the Arbitron or similar ratings data shows 30% or more of a station’s audience in a given daypart is under 21, then there will be no advertising in that daypart on the station. Continue Reading Britney and No Beer – Why Beer Companies Don’t Advertise on Radio Stations With Young Demos

At last Thursday’s Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate’s positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television – after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We’ve already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit’s decision throwing out the FCC’s fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.Continue Reading One Sign That Broadcasters Are About to Become Political Footballs – Obama Suggests Shorter Broadcast License Terms and Less Consolidation

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?Continue Reading Plan Your Inadvertent Errors Carefully – A Fine for Children’s Television Violations May be at Stake

This past week, former Senator Fred Thompson created a committee to explore a run for the Presidency.  In every article written about the former Senator, like one recently run in the Washington Post, mention is made of his current broadcasting career – his role on Law and Order and as a guest host on Paul Harvey’s radio program.  And all the articles assume that the campaign will result in the termination of these roles, and also present issues about the broadcast and cablecast of reruns of Law and Order episodes and old movies in which he appeared.  In some cases, that is true.  In others, it remains to be seen.  But the potential candidacy does offer a good opportunity for a review of the equal time obligations of broadcasters under FCC rules.

"Equal time" or "equal opportunities" require that broadcast stations give treat candidates for the same political race in an even-handed fashion.  If they sell time to one candidate, they have to give the other candidate equal opportunities to buy the same amount of time in programs reaching roughly the same size audience.  If time is provided to a candidate without charge, and the candidate’s on-air appearance is outside of a news or news interview programs and is not part of on-the-spot coverage of a news event, then the broadcaster must make equal time available to the opposing candidate, if that candidate requests it within 7 days of the use by the first candidate.

However, none of these obligations arise until a candidate is legally qualified – essentially when he or she has filed the necessary papers to obtain a place on the ballot in accordance with the governing law of the jurisdiction in which the election will be held.  In Thompson’s case, as he has not even officially announced that he is running, he is not yet a legally qualified candidate, so for the time being, there is no issue with the continued airing of the programs in which he appears.  Continue Reading Law and Order: Equal Opportunites – The FCC Implications of Fred Thompson’s Possible Presidential Bid

Three of the FCC Commissioners have responded to the Congressional inquiry about the Commission’s rules regarding junk food advertising about which we wrote here.  This inquiry was initiated by Congressman Ed Markey, Chairman of the House of Representatives Subcommittee on Telecommunications and the Internet. The Congressman’s letter had urged the FCC to move quickly to implement rules limiting the advertising of unhealthy food aired during broadcasting directed to children.  The Commissioners’ responses uniformly indicate the potential for regulation, depending in part on the outcome of the activities of the industry Task Force formed at the initiation of, and with the participation by, the FCC and Congress. See our reports on the formation of the Task Force, here.  The Commissioners all note that should the Task Force fail to conclude that the industry has achieved satisfactory results through self-regulation, FCC proceedings might be required to insure that children are not unduly exposed to junk food advertisements. 

Two commissioners, Chairman Martin and Commissioner Tate, responded jointly, and indicated that the FCC could explore regulation of unhealthy food, perhaps looking at guidelines adopted in other countries as a model for US regulation.  These Commissioners’ statement even address the issue of regulating children’s programming on cable television networks, where they claim that there is much exposure to ads for junk food.  These statements make clear that this is not just an issue for the broadcast industry.Continue Reading Commission Responds to Congressional Inquiry on Children’s Junk Food Ads

In a letter to FCC Chairman Martin and Commissioners Copps and Tate, Congressman Edward Markey, head of the House of Representatives Subcommittee on Telecommunications and the Internet, has asked that the FCC take strong steps to restrict the advertising of unhealthy food in children’s television programs.  While applauding voluntary efforts promised by some broadcasters to include in their children’s programing more Public Service Announcements (PSAs) for healthy eating, Congressman Markey urged the FCC to do more by cutting in half to 6 minutes per hour the amount of permissible advertising in children’s programming , and by finding that a station had not met its obligations to broadcast educational and informational programming directed to children if the station aired ads for unhealthy foods during a program which would otherwise qualify as a toward meeting the station’s obligations.

The letter from Congressman Markey, while citing efforts in other countries to enforce similar regulations, does not address basic issues with each of his proposals.  First, if sponsorship of children’s programming is cut in half, won’t that also cut the incentive of broadcasters to air such programs?  Cutting sponsorship to the bone would seem to guarantee that broadcasters will do the absolute minimum amount of children’s programming required, so that they can air programs where there are no advertising restrictions.

These requirements would also seem to make broadcasters into the food police.  Broadcasters will have to educate themselves as to the nutritional qualities of various food products to make sure that nothing impermissible gets on the air.  And where will lines be drawn?  Could a station safely advertise a fast food store if the ads featured only the salads sold by the store – even where that store might also sell not so healthy alternatives?  If definitions are drawn by numerical limits on contents such as sugar, salt and fat (as suggested by the letter), will these limits necessarily lead to advertising the most healthy foods?  Will broadcasters be forced to substitute for parents in making decisions about what their children will eat?

Continue Reading Congress Urges New Children’s Television Regulation