Over-the-air educational radio stations are licensed to operate as "noncommercial" broadcasters -- but what it means to be "noncommercial" can be confusing. Regulators have established lines that educational broadcasters cannot cross from acceptable sponsorship messages into unacceptable advertisements. It's important to know these boundaries to minimize the risk of a budget-busting fine.
FM frequencies between 87.9(MHz) and 91.9(MHz) are reserved by the FCC for noncommercial educational broadcast radio stations. 1 FCC regulation provides that such stations will be licensed "only to a nonprofit educational organization and upon showing that the station will be used for the advancement of an educational program."2 In virtue of this special educational mission, noncommercial educational stations are subject to heightened regulations more stringent than ordinary commercial stations. All radio broadcast stations, commercial and noncommercial alike, are required to announce that a particular program is paid for by an outside party and disclose the identity of that sponsor.3 In addition, noncommercial stations' liberty to broadcast certain commercial speech is constrained by laws that do not apply to commercial stations.
Educational stations are regulated by both statutory codifications of Congress and rules and regulations promulgated by the Federal Communications Commission. In the early 1980s Congress amended the Communications Act of the 1934 to include sections 399a and 399b, both of which regard commercial speech of educational television and radio stations.
Section 399a governs the use of business or institutional "logograms," defined as audio or visual signs (such as company slogans) that are "used for the exclusive purpose of identifying... and which is not used for the purpose of promoting the products, services, or facilities of such corporation, company or other organization." 4 Public noncommercial stations are authorized to broadcast announcements that include logograms provided that such announcements do not interrupt regular programming.5 The key distinction to note is that between identification (permissible) and promotion (impermissible).
Section 399b prohibits the broadcasting of "advertisements," defined to be a message or other programming material that is broadcast in exchange for payment and which:
Although precise in language, 399a and 399b have been interpreted to leave room for the FCC to issue its own interpretative gloss under its general powers to establish, and manage the use of, categories of communication services. 6 In a rule that essentially reiterates the congressional statute, the FCC proclaims that "no promotional announcement on behalf of for profit entities shall be broadcast at any time in exchange... for the receipt of consideration. However, acknowledgments of contributions can be made. The scheduling of any announcements and acknowledgments may not interrupt regular programming."7 Because of the overlap, potential transgressors are usually charged with violations of Sec. 399(b) of the statute and Sec. 73.503(d) of the commission's rules.
The FCC has long recognized the difficulty in distinguishing between announcements that promote and those that identify. 8 The question is what to do about those announcements that straddle the fence between promotion and identification.
One relevant case involved Xavier University's Cincinnati-based educational station, WVXU-FM. The FCC sent a letter of admonition to the station based on six questionable announcements. The borderline announcements used the following terms to describe businesses sponsoring WVXU programming: "creative services," "fresh and original foods," "art expressing timeless traditional truths," "serving ... consulting needs for over 75 years," and "in its 36th year." One announcement also specifically mentioned a "discount" being offered by a local oil-change shop.
In the original letter of admonition, the FCC found the above language to be qualitative and comparative and thus impermissibly promotional. On reconsideration, FCC found that the language was not clearly promotional as opposed to identifying -- with the exception of the oil-change discount spot, which the station promptly recognized as a violation and pulled down. Because Xavier exercised reasonable, good faith judgment, the Commission concluded there was no punishable violation. The FCC declared that it will grant some latitude to "reasonable, good faith judgment" of the licensee. 9 In theory, this buffer should serve to insulate licensees against liability in debatable situations, but it is difficult to discern whether this Xavier presumption actually does any work, or rather is just lip service to discretion.
In response to the clamor for clarification, FCC has issued multiple policy memos addressing what subject matter is acceptable. In a first report, promulgated soon after the passage of Section 399b in 1981, the FCC explained that stations can carry promotional announcements on behalf of for-profit entities that offer "program-related" materials, so long as the station: "(1) receives no consideration for the announcement; and (2) the materials are offered on the basis of public interest considerations and not the private economic interests of the offeror; or (3) the price of the materials offered is only nominal." 10 For example, this would cover commercial products that a station offers as fundraising premium gifts, such as a particular brand of umbrella.
A year later, the FCC published a second report making clear that there is no restriction against broadcasting promotional announcements on behalf of non-profit organizations, although the audience must be informed of the identity of the sponsor. 11
In 1984 the FCC issued a third report on the subject, in which they expressly endorsed certain "enhanced" donor or underwriter acknowledgements. 12 The expansion encompasses "(1) logograms or slogans which identify and do not promote, (2) location information, (3) value neutral descriptions of a product line or service, and (4) brand and trade names and product of service listings."13 Later, the FCC added telephone numbers to the permitted list.14 While telephone numbers and location information are clear enough, whether a description is "value neutral" is far more nebulous. Each of the debatable broadcasts in the Xavier case centered on just that question -- whether the information was a proper value neutral description or illicit promotion.
To get a feel for the law it may be helpful to look at a few examples of language that the FCC ultimately deemed acceptable. The sample size is small and includes only phrases that were alleged to be violations but ultimately were cleared.
The FCC has approved use of the following phrases: "professional equipment and supplies," 15 "home style food,"16 "an intelligent four-wheel drive system,"17 "surgery never has to be unpleasant,"18 "only" (if "only" is used to indicate the store has the only goods of an identified kind within a geographic area but is otherwise not promotional or comparative).19
The FCC, likewise, has decreed certain practices to be definitely off limits. The Third Report, although allowing for some enhanced underwriting, affirmatively declared that both underwriting announcements as well as donor acknowledgements must not interrupt regular programming. 20 The Fourth Report forbids inclusion of "qualitative and comparative descriptions of the donor's products or services."21 For clarification's sake the Fourth Report also proscribed: 1. Announcements containing price information (e.g. "7.7% interest rate available now"); 2. Announcements containing a call to action (e.g. "Stop by our showroom to see a model"); 3. Announcements containing an inducement to buy, sell, rent or lease (e.g. "six months' free service", "A bonus available this week", "Special gift for the first 50 visitors"). 22
Examples of impermissibly violative language are more numerous. The following language has been held to be overly comparative: "more" (as in "more vivid," 23 "more realistic,"24 "more choices,"5 "see more get more,"26); "most" (as in "the people that know most about...",27 "the best fastest most comfortable way to Poland,"28 "most recent selection when it comes to rims,"29 "most loved,"30 "most trusted,"31 "most anticipated,"32); "best" (as in "best airline in the world"33; "number one"34; "greatest"35; "biggest variety"36; "hottest"37; "doing things right"38; "special" (as in "special place, always with something special for you"39); "is a member of the Professional Photographers of America."40
The following language has been found impermissibly qualitative: "efficient, economical, dependable, dedicated, prompt, fair price, reliable and excellent" 41; "quality financial services"42; "friendly efficient crew" 43; "convenient"44; "pretty to catch my fancy. . . strong. . . sharp. . . beautiful safety design. . . detailed lines, gorgeous power acceleration."45; "established"46; "beautiful."47 The FCC has declared that the "factuality" or "truth" of the description has no relevance to determining whether it should considered a promotion.48
To give a concrete example -- from one of the few enforcement actions ever brought against a station operated by high school students -- the FCC issued a written admonition to WPSR-FM in Evansville, Ind., because messages by corporate sponsors crossed the line into promoting for-profit products and services. 49 The messages -- mostly aired during WPSR's broadcasts of University of Southern Indiana basketball games -- included the following prohibited phrases:
"One can choose from one of eight different sandwiches, complete with chips and a 21-ounce drink" at a sub sandwich chain.
An automotive business "offers free tire mounting, free lifetime tire rotations with purchase, and free estimates and brake inspections."
A local florist, "the friendliest store in town, has made it convenient for those people wanting to order a flower bouquet or just buy a single flower, for any occasion."
As these examples show, it is perilous to include any detailed description touting a sponsor's product or service. But it can also be risky to include more generic language about the overall merits of the business. One of the other announcements that the FCC found impermissibly comparative, qualitative and descriptive simply said of a local bank: "Financial services from people with old-fashioned know-how is a way of life for us."
In one recent case, 50 broadcasters brought a constitutional challenge alleging that Section 399b was both an infringement of their First Amendment rights and was unconstitutionally vague by use of the unclear term "promote." Because the speech at issue is commercial, the court did not apply the highest level of First Amendment protection possible. Rather, the court applied an intermediate level of scrutiny, meaning that the burden is on the government to show that the restriction is narrowly tailored toward a significant government interest -- but not necessarily the least restrictive method of achieving that interest.
The district court concluded that the FCC's interest in "diversity of programming" was indeed substantial and that Section 399b struck a proper balance between financial viability and preserving the essential noncommercial, educational character of the service. 51 The court further concluded that the line between promotion and identification was not unconstitutionally vague, in part reasoning that "a station that is unsure of whether a particular underwriting announcement would run afoul of the statute may seek informal guidance or formal clarification from the agency."52
Violators subject themselves to a range of penalties. At the less severe end of the spectrum, the FCC issues warning letters in lieu of formal enforcement if it appears that the violation was minor or the licensee had a previously unblemished record. 53
On the other hand, willful and repeated failure to comply with Section 399b of the Act and Section 73.503(d) of the Commission's rules will be met with monetary fines. 54 "Repeated" has been construed to mean that the act was committed or omitted more than once, or lasts more than one day.55
The base amount for such a fine is $2,000 56, although that amount can be adjusted up or down based on the "nature, circumstances, extent and gravity of the violation" 57 and with respect to the violator "the degree of culpability, any history of prior offense, ability to pay, and such other matters as justice may require."58 A reduction in fine based upon inability to pay requires submission of full financial information of the licensee.59
By way of example, in one recent case, Cayuga County Community College was granted a $500 reduction in forfeiture amount because of its prior record of compliance with the law. After-the-fact remedial efforts, like terminating the program that committed the violation, are not considered to be reasons for mitigation of the fine. 60
Generally, the two most significant factors in determining the severity of the fine are the number of illegal broadcasts and the durational period thereof. The FCC has levied a $20,000 forfeiture for 10 announcements over a 15-month period, 61 a $12,500 forfeiture for thousands of announcements over a 9-month period,62 a $10,000 forfeiture for 288 announcements over a 1-month period,63 a $5,000 forfeiture for 8 announcements on 2 days over a week-long period,64 a $2,500 forfeiture for 4 announcements on 2 days over a week long-period.65 Countless other cases end in consent decrees in which the parties arrive at a settlement agreement.
A licensee has the right to initial FCC determinations to a higher administrative court. From a final FCC decision, the licensee may appeal to federal court. It was recently decided, however, that a competitor radio station does not have standing to appeal the FCC's determination that certain advertising on its competitor station did not warrant enforcement action. 66
As a policy matter, there are legitimate questions whether it makes sense as a policy to draw the legal line between promotion and identification. Andrew Cotlar has suggested that, in a world where advertising has moved toward "image spots", it is anachronistic to differentiate between identification and promotion at all. 67 It often leads to inconsistent outcomes and enforcement that could chill speech, notwithstanding the supposed leeway that the Xavier presumption provides. But history shows that the standards set by Section 399b are likely to withstand constitutional challenge, so -- like it or not -- over-the-air broadcasters must make their best effort to avoid crossing the "promotional" line.
While the boundaries are not always unmistakably clear, stations should be wary of any announcement that actually describes the merits of particular products or services that a for-profit company offers -- and certainly avoid anything mentioning specials, discounts or other merchandizing campaigns. Maintaining a clean record, and pulling down any impermissible spots promptly, do appear to minimize (and at times even eliminate) exposure to onerous FCC penalties.