When the Flock Ignores the Shepherd - Corralling the Undisclosed Use of Video News Releases

I. INTRODUCTION II. HISTORY OF VIDEO NEWS RELEASES A. Video News Releases--A Boon to Advertisers and Broadcasters Alike B. "Fake News" and the Bush Administration C. The CMD Report--Documenting the Undocumented Use of Commercial VNRs III. CURRENT STATE OF SPONSORSHIP IDENTIFICATION RULES IV. NO SOLUTION IN SIGHT--REMOVING THE "TRUTH" FROM THE TRUTH IN BROADCASTING ACT V. WHAT NEEDS TO HAPPEN--MANDATORY DISCLOSURE AND BEEFED-UP ENFORCEMENT A. Criticisms of Mandatory Sponsorship Identification 1. Constitutional Criticisms 2. Market-Based Criticisms B. Proposed Legislative Changes to the Disclosure Rules 592 C. Proposed Changes to the FCC's Enforcement Policies 595 VI. CONCLUSION 596 I. INTRODUCTION As long as mass media has existed, corporations and governments have sought to control, or at least influence, the message being delivered. While in the early days of radio and television such sponsorship was explicit, (2) today's advertisers have become experts at promoting their messages without drawing attention. One particularly popular form of modern sponsorship can be found in so-called "video news releases" ("VNRs"). These VNRs, considered "analogous to a printed press release," (3) are increasingly relied upon by broadcasters to supplement their local reporting. Filmed and written to look like regular news stories, VNRs deliver a hidden commercial message under the guise of important information. The broadcasters do not have to disclose the real source of these segments because they aren't "paid" to play them: companies--and the government--freely distribute VNRs, hoping to get them aired. What was once America's trusted source of news--the network newscast--has become open mic night for the government and powerful commercial interests, blurring the line between journalism and commercialism, all while the present sponsorship identification rules ensure that the public will remain none the wiser. Part II of this Note will examine the history of VNRs and the recent scrutiny they have faced from the FCC, the media, and Congress. Part III will discuss the current sponsorship identification laws and why they are inadequate to deal with this growing problem. Part IV will discuss the proposed Truth in Broadcasting Act and other recent proposals to amend current FCC disclosure rules and explain why these changes alone are insufficient to remedy the existing problems. Finally, Part V will propose new legislation, coupled with enforcement guidelines, which will help ensure that the viewing public is adequately informed when broadcasts contain material funded by corporate entities. II. HISTORY OF VIDEO NEWS RELEASES (4) What are VNRs, who makes them, and why are they so common? The American Marketing Association, one of the largest professional organizations for marketers, defines a VNR as "[a] publicity device designed to look and sound like a television news story. The publicist prepares a 60- to 90-second news release on videotape, which can then be used by television stations as is or after further editing." (5) The VNR is then offered to local and network broadcasters, free of charge, in the hope that the stations will air the segment and provide the company or product with free advertising. Robin Andersen, (6) in her book "Consumer Culture & TV Programming," describes the strategy advertisers use in producing their VNRs: For example, if the VNR is for Clairol, the news angle might be something like this: "Women are getting promoted to higher management positions and are thus more concerned about the way they look, so they're coloring their hair more often. We spoke to somebody from Clairol about this phenomenon." Or the producer could take a health angle on skin cream: "Yes, doctors say that all women should use face protection every time they go outside. …