Public Media Advertising: Fears of the Past, Hope for the Future

Old rules may no longer apply, but they could still bite

Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces.

The subject of this week’s column is advertising on public radio and TV stations. People who work in the field may tell you there is no such thing, but if you’ve ever watched or listened you know better. They prefer to call it “underwriting.” They do that because the government wants it that way, and could punish them if they get out of line.

I think this is worth writing about right now because many of the people who lead those stations are quietly scared about things that may have happened in the past— and because I think they are missing an opportunity for the future when they need all the opportunities they can get.

Before we get to that, though, I need to explain, for those who don’t already know, how the system has worked until now.

The rules as they have been

If you run a commercial radio or TV station, or a digital news nonprofit, there are almost no laws governing your advertising. It can’t be knowingly misleading (although this isn’t much enforced), or trade on someone else’s business, and you can’t libel people or companies. That’s about it, although some things like pharmaceutical or securities ads have additional rules that bind the advertisers.

But if you have a public radio or TV station, there is an almost comical list of what’s forbidden. You can’t include a call to action, which is, of course, the critical piece of most advertising; you can’t include an inducement to purchase, such as a discount or sale; you can’t include price information; and you can’t include qualitative claims about a product or service, such as that it’s the best, or better than others. Violations can and have resulted in fines. In an egregious case, a public broadcaster could lose its license. These are huge infringements on free speech, of course.

While the public was providing funding to these broadcasters, that deal may have struck some people (say, the Congress) as appropriate. But in the absence of such funding, the restrictions are outrageous.

Liberate public broadcasting!

And they are, I would submit, plainly unconstitutional. There is no serious question, for instance, that such rules if applied to commercial broadcasters or nonprofit digital news sites would be struck down by courts as a violation of the First Amendment. The vote in today’s usually-divided Supreme Court would almost surely be 9-0. Rights for commercial speech are clear; the seminal press case of New York Times Co. v. Sullivan was, people sometimes forget, about speech in an advertisement. Without the quid pro quo of public funding, I can’t see the justification for these restrictions.

If that’s the case, and acknowledging that lifting these onerous limitations would yield greater revenue for stations who badly need it right now, why haven’t public broadcasters declared the underwriting rules null and void, and even sued to have courts so rule?

Here’s where we come to the problem of the past.

The mailed fist of the FCC

Back in January, just nine days after Trump returned to power, and months before defunding, the chair of the FCC wrote to the CEOs of NPR and PBS announcing an investigation into whether stations were meeting their obligations to comply with the underwriting rules. He cited no complaints—which almost invariably precede FCC investigations—and offered no evidence that problems were occurring. He was just, transparently, ordering a fishing expedition, to build pressure for the defunding he and many fellow Republicans had long favored. The letter forthrightly admitted that this was his motivation.

The investigation, however, has continued, beginning with six radio and seven TV stations, even after defunding passed the Congress. The threat it presents is quite real. Given the complexity of the rules, if enough rocks are turned over across this big country, it’s almost a certainty that a few violations will be found. They have occurred occasionally in the past, almost always either through sheer negligence (people being human) or as the result of the greed of some people charged with generating underwriting dollars, and unable to resist the temptation of going over the line a bit.

Anyone who might think the FCC would now drop this line of attack hasn’t reckoned with the corruption of the agency these days. It’s chair is the very same guy who facilitated CBS’s “big fat bribe” to Trump, and tried to muscle Jimmy Kimmel off the air (“the easy way or the hard way”).

What’s next

Here’s what should happen: The FCC should put up or shut up, bringing charges of past violations or dropping an investigation whose announced purpose has been mooted. They’ve had more than 10 months. Enough. In light of defunding, and the requirements of the Constitution, the Commission could and should move to withdraw its underwriting regulations prospectively, say, effective January 1.

Genuine conservatives, particularly solicitous of commercial free speech, should insist on no less. Maybe this could be another way in which Ted Cruz, chair of the Senate committee that ostensibly oversees the FCC, rediscovers his principles.

Meanwhile, some station that has fully responded to the investigation, and is confident they’ve committed no violation of the old and ridiculous rules, should take the lead on declaring they won’t abide by them in the future, and presumably sue to enforce that argument unless or until the FCC acts.

What probably will happen is neither of these things. But maybe the rest of us can start weighing in, trying to move things in those directions. We need to re-imagine public broadcasting in this country in any number of ways. Getting real about advertising should be one of them.