You Said What? The Perils of Content-Based Regulation of Public Broadcast Underwriting Acknowledgments

I. STATUTORY AND ADMINISTRATIVE PROHIBITIONS AGAINST THE BROADCAST OF ADVERTISEMENTS II. INCONSISTENCY IN IDENTIFYING QUALITATIVE OR COMPARATIVE DESCRIPTIONS III. THE FIRST AMENDMENT IMPACT OF INCONSISTENT CONTENT-BASED ENFORCEMENT IV. A NEW APPROACH: TIME LIMITS WITHOUT CONTENT REGULATION V. CONCLUSION Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. (1) However, under the FCC's sponsorship rules, these stations must acknowledge any financial contribution from donors that support particular programs. (2) Consequentially, public broadcast stations must broadcast information--so-called "underwriting" acknowledgements--regarding those individuals and companies that fund particular programs without promoting the goods and services offered by those donors. In particular, the FCC has interpreted this to prohibit the following: (a) qualitative or comparative descriptions; (b) price information; (c) calls to action; or (d) inducements to buy, sell, rent, or lease. (3) From a legal point of view, these sets of prohibitions distinguish underwriting announcements aired on public broadcast stations from commercial messages aired on their commercial counterparts. As modern advertising practices quickly move away from the traditional model of comparing the quality of an advertiser's product with its competing products toward "image spots" (where claims about the product are frequently absent), the FCC rules tend to look more and more like an anachronism. To illustrate, many commercial spots can be seamlessly transferred (sometimes with little or no editing) to serve as underwriting spots in a way that seems to blur in the public mind the distinction between commercials and nonpromotional underwriting acknowledgement. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional depictions, it has struggled to apply its traditional notion of what it means to be promotional within the context of this evolution in advertising practice. As a result, many noncommercial educational licensees find it difficult to apply the FCC's four categories of prohibited expression, because FCC enforcement has been less than a model of clarity. While the prohibition against providing price information, calls to action, or inducements to buy, sell, rent, or lease are fairly straightforward, a careful analysis of how the FCC determines whether certain content is qualitative or comparative yields the unmistakable conclusion that the entire process has become a clear lesson in the perils of content-based regulation. Stations therefore frequently lack a clear directive to guide their decisionmaking, leading many stations to act either too cautiously or not cautiously enough. Indeed, stations must rely on the FCC's own, often quite subjective, understanding of the context in which certain words are uttered, resulting in confusing results and inconsistent enforcement. What follows is an inconsistent and opaque enforcement system that subjects nonprofit entities to potentially economically crippling fines and impinges on the editorial integrity that is the hallmark of their First Amendment liberties. This Article concludes that Congress should revise the prohibition on promotional messages in favor of allowing limited commercial content--namely, eliminating any restrictions on content as long as announcements do not interrupt programming and are limited in length. This solution would get the FCC out of the business of content-analysis, would preserve the integrity of public broadcasting, and would be consistent with what surveys demonstrate is the public's attitude toward commercialism in the nonprofit media. Part I of this Article examines the statutory and administrative prohibitions against the broadcast of advertisements on public broadcast stations. …