The rulemaking part of the FCC’s Notice of Inquiry (NOI) and Notice of Proposed Rulemaking (NPRM) on product placement could require TV stations to broadcast lettering identifying the paid sponsorship at the same time the product is appearing, not just a mention at the end of the show. The Commission is also looking at whether to make cable networks subject to the same sponsorship ID rules as broadcast stations.
Commissioners Michael Copps and Jonathan Adelstein, the FCC’s two Democrats, were disappointed that the Commission did not skip the NOI and go straight to an NPRM on new rules to spell out exactly what is and is not allowed for product placement – along with how it must be identified. In particular Adelstein called for additional action on children’s television programming.
The NOI, however, noted that imbedded product placements are already prohibited in children’s programming, since that would automatically turn a program into a prohibited program-length commercial.
The Freedom to Advertise Coalition, a group backed by major advertisers and agencies, and the Washington Legal foundation argued that requiring concurrent disclosure would interfere the artistic integrity of programs and is constitutionally overbroad. They argued that product placements have been around for a long time and that there is no strong enough governmental interest to justify infringing on commercial speech in violation of the First Amendment.
The rulemaking actually proposed is to require concurrent identification of imbedded advertising by having lettering on screen to identify the sponsor. The FCC is seeking input on how large the lettering should be and how long it would have to remain on screen.
It also seeks comments on any additional rules that might be needed for children’s programming, if the current restrictions are not sufficient – but no new rule is actually proposed in the NPRM for that area. You could call that a notice of a non-proposed rulemaking that might result in a rule anyway.
Unlike broadcasters, who are responsible for the content of all of the programming that they air, cable companies are only responsible for programming they directly control. “Should the Commission take additional steps with respect to sponsorship identification announcements required of cable programmers?” the NPRM asks.
Finally, it deals with sponsorship identification on radio, which is detailed in a related story.
RBR/TVBR observation: With advertisers searching for ways to escape DVR commercial avoidance by viewers, it is not a bad idea for the FCC to provide some clear guidance on sponsorship identification for imbedded product placement in programming. Our main concern is that the Commission not create a situation where there would be cause for action where the exposure of a product was part of the plot (or just completely random) and no consideration was received. For example, we are pretty sure that Hostess did not arrange for Jon Stewart to serve Pakistani President Pervez Musharraf a Twinkie when he appeared on Comedy Central’s “Daily Show.” Lest you think we’re overreacting, we note that a USA Today story on the FCC proposal quickly drew an online comment from someone complaining that “Law & Order” character Jack McCoy’s unstopping of a scotch decanter in his TV set law office is promoting alcohol to kids.