The FCC's Investigation of "Subliminal Techniques:"

From the Sublime to the Absurd

Press Statement

September 19, 2000

Harold Furchtgott-Roth

Commissioner

Federal Communications Commission

A casual observer of media coverage over the past week of an
advertisement, sponsored by the Republican National Committee, might
reasonably come to the following four conclusions:

-   The advertisement clearly violates well-established FCC rules.

```{=html}
<!-- -->
```
-   The advertisement contains what the FCC has determined to be a
    "subliminal" message.

```{=html}
<!-- -->
```
-   The FCC has authority to regulate advertisers, such as the
    Republican National Committee.

```{=html}
<!-- -->
```
-   The FCC's investigation of this matter is both ordinary and routine.

None of these conclusions is correct.

The FCC has no formal rules on "subliminal" advertising.

The FCC has no formal rules on the use of "subliminal perception"
techniques. In fact, the Commission appears to have addressed the issue
only twice. In 1974, the agency issued a policy statement that the use
of "subliminal perception" is "contrary to the public interest." But
policy statements are not enforceable rules. Nor would it be appropriate
for the Commission to fine a person for failure to comply with a policy
statement.

Since 1974, there has been only one instance in which the Commission has
received and acted on a "subliminal" message complaint. In that matter,
KMEZ(FM) a radio station in Dallas, Texas, was merely "admonished for
its repeated transmission of subliminal messages on November 19, 1987"
during an anti-smoking program on behalf of the American Cancer Society.

The FCC has no rules on what is, or is not, a "subliminal" message.
Consequently, there is no basis for it to determine whether *any*
advertisement contains a "subliminal" message.

In the past 26 years, the FCC has acted upon only one complaint about
"subliminal" techniques in television. It has never before considered
such a complaint in the context of political advertising. Consequently,
there is no precedent, much less clear and established rules, to guide
the Commission's evaluation of a complaint about "subliminal" messages
in a political advertisement on television. There is certainly no basis
for Commissioners or Commission employees to speculate regarding what
Commission standards might be for "subliminal techniques" in a political
television advertisement. In short, the Commission has no basis even for
drawing a conclusion about whether the commercial sponsored by the
Republican National Committee comes within the category of "subliminal
perception" techniques.

The Commission has no authority to regulate advertisers, such as the
Republican National Committee.

Federal law authorizes the FCC to regulate its licensees, such as
broadcasters. The Commission does not regulate advertisers. Thus, to the
extent that the Commission's 1974 policy statement on "subliminal
techniques" has any force, it is only with respect to *broadcasters*.
Consistent with this principle, the 1974 statement plainly places the
responsibility of compliance on broadcast licensees, not advertisers.

The FCC action is neither ordinary nor routine.

Last Friday, the FCC sent letters to a large number of broadcast
licensees, directing the broadcasters to submit information on the
broadcasting of the advertisement placed by the Republican National
Committee by the end of this week. The letter makes no mention of the
unusual, if not unprecedented, nature of both the complaint and the
request for information.

For one thing, the Commission's lightning swift response to allegations
of a violation of an obscure and rarely used policy statement, in a case
where there are no formal guidelines, is nothing short of extraordinary.
The FCC has many virtues; expeditious resolution of petitions and
complaints is not a consistent one. Some Commission proceedings have
gone on for more than ten years. The Commission's responses to court
decisions vacating or remanding FCC rules are usually measured in
months, not weeks or days. By way of comparison, the Commission took
five months to act the only other time it has considered a violation of
its policy regarding "subliminal" advertisements, issuing a letter in
May 1988 regarding an advertisement aired in November 1987. It is most
decidedly *not* the norm for the Commission to have acted so hastily
here, within hours of receiving a complaint.

\* \* \*

It is difficult to understand the basis for\--or to predict the outcome
of\--the current inquiry into "subliminal techniques." The Commission
has embarked on an unpredictable and hasty proceeding, with no clear
precedent to guide it. It is an awkward proceeding for the Commission to
defend in the best of times; the weeks before a national election are
unlikely to be the best time for a proceeding on political advertising.

\* For more information regarding this release, contact Bryan Tramont in
the Office of Commissioner Furchtgott-Roth at the FCC --
<Btramont@FCC.gov> or 202-418-2000.