Another Consent Decree For Noncommercial Rules Violation

Ten or fifteen years ago, the FCC regularly issued decisions fining noncommercial stations for airing commercial matter.  It was common to see at least a half dozen such decisions each year.  But in recent years, that has changed dramatically, and to actually see a decision that fines a NCE station is now unusual.  Part of the reason for that change is the consent decree.  More stations are entering into consent decrees with the FCC to avoid heavier fines.  Those decrees, however, do not always provide other broadcasters with a clear picture of the violation at issue.  So the downside of the consent decree trend is that it is hard for broadcasters to have any “takeaways” for their day-to-day decision making and operations.  Or even worse, the consent decree leaves out just enough detail to raise questions as to what may or may not be permissible.

The FCC’s lastest consent decree for noncommercial violations is a good example.  The decision states that “the underwriting announcements at issue here may have violated the underwriting laws by using the word “free,” which appears to exceed the bounds of what is permissible and within licensee discretion under the Act and pertinent Commission precedent.”  The decision does not provide excerpts from actual underwriting announcements showing how the word “free” was used.  The “may have violated” language stops short of a finding that the broadcaster violated the FCC’s noncommercial policies by using the word “free,” but that is very likely only because of the consent decree context.  And without an example, it is impossible to gauge whether the use was a close call, or egregious.

For years, the FCC has taken the position that the word “free” when used in connection with the cost of a product or service is an impermissible reference to price information.  Price information includes any indication of savings or value associated with the product.  While this decision does include a footnote referring to price information, there is no information provided on the context of how the word was used by the broadcaster.  So that leaves us to scratch our heads and conclude that any time a NCE broadcaster considering underwriting copy sees or is inclined to use the word “free,” an internal alarm bell should sound.  To the extent the word is in any way related to price (i.e., “interest-free”), it should be stricken.  Similarly, if “free” is in any way an inducement to buy, sell, rent or lease (i.e., “six months free service”), it should be stricken.  But if “free” is not related to price or an inducement (i.e., describing a living facility as “pet-free”), the word might pass muster, but should still be closely scrutinized to be sure that in the context used, it does not exceed a description of the product or service and become a comparative or qualitative statement. 

Whew!  Those mental gymnastics make us tired too.  We salute those underwriting copy editors that walk the fine line of FCC noncommercial regulation.