"Drowned in Advertising Chatter": The Case for Regulating Ad Time on Television

Georgetown Law Journal, Apr 2006 by Getz, Matt

INTRODUCTION

There is too much advertising on television. Viewers think there is too much.1 Advertisers think there is too much.2 But for the past twenty years, during which time advertising levels have risen inexorably,3 the Federal Communications Commission (FCC) has refused to regulate ad limits on anything but children's television.4 This Note will argue that advertising, while beneficial in some respects, is now out of control on television and should be regulated again, as it was from the first days of television until 1984. In Part I, I will outline where we are today: a television environment so overcome by advertising that no participants are satisfied. Part II will discuss the history of ad regulation on television, focusing in particular on the FCC's rationale for ending regulation in 1984. Part III will argue that too much advertising is a bad thing in two respects: first, it cheapens and weakens our culture and democracy; second, the high levels of advertising reflect and contribute to market failure. Part IV will show which legal precedents-from Congress and the Supreme Court-would allow such reregulation. Part V discusses and disposes of the major counterarguments against such regulation. Finally, the conclusion suggests other reforms that would make television both a better contributor to freedom and allow consumer choice to be expressed more forcefully.

I. TELEVISION'S AD GLUT

Among countries with large television markets, the United States is virtually alone in not regulating ad time on television.5 As a result, United States television devotes more time to ads than other developed countries, such as Canada, Japan, and the nations of Western Europe.6 And this is no short-term trend-at least since the early 1990s, the rate has crept upwards nearly every year. According to the 2001 Television Commercial Monitoring Report compiled by the American Association of Advertising Agencies (AAAA) and the Association of National Advertisers, average non-program minutes in prime time television on ABC, CBS, NBC, and Fox rose from 13:26 minutes per hour in 1992 to 16:08 minutes per hour in 2001.7 At the extremes, during sampling periods, ABC has exceeded seventeen minutes per hour twice, NBC once, the WB three times, and UPN four times.8 Prime time is in fact the least cluttered daypart, with daytime, for example, showing a rise from 18:16 minutes to 20:57 minutes and late night showing a rise from 16:20 minutes to 18:45 minutes.9 Even evening news has on occasion exceeded twenty minutes per hour.10 Some syndicated programs, usually shown in prime time, are also extremely saturated. In 2001, Wheel of Fortune had 21:58 minutes per hour of non-program time, surpassed only by Hollywood Squares' 22:25.11 In 1992, by contrast, Wheel of Fortune had only 16:32 minutes of non-program time.12

These examples, of course, involve broadcast stations only and a regular rejoinder against television limitation comes in the word "cable." A large majority of people now receive paid-for programming; according to the FCC, by 2002 about 85% of television households had it.13 Because consumers pay for cable, satellite, and the like, the argument goes, cable channels need not be as dependent on ads, and consumer preferences for fewer ads will be properly reflected.14 In the early days, this might have been true,15 but the Commercial Monitoring Report makes clear that many cable channels now broadcast as much non-program time as their broadcast competitors.16 There is more variety among cable channels than among the networks, but the report found that during two testing periods in 2001 ten of the nineteen cable channels monitored carried more than sixteen minutes per hour of non-program time on at least one of the two days monitored.17 Comedy Central, for example, reached 19:59 minutes during prime time one evening.18

Overall, the numbers just keep rising. In 2001, non-program time during early morning, daytime, and local news was at record levels, with late night and network news near records.19 The advertising industry sees no break in sight. "Unfortunately," said O. Burtch Drake, the president and CEO of the AAAA, "the level of non-programming time seems to increase inexorably every year on both the broadcast and cable networks."20

These numbers appear even starker when set against ad levels in other countries. In the United Kingdom, broadcast channels are allowed six minutes per hour over the day, with a maximum of seven in any one hour;21 in New Zealand, the limit is nine minutes per hour;22 in Canada, twelve minutes;23 and in Japan, commercial time can make up no more than 18% of total broadcasting time (about eleven minutes).24 Across continental Europe, the allowed times are all much lower than in the United States.25

Television viewers are finding the amount of ads excessive and ever more annoying. According to a recent study, 60% of consumers have a "much more negative" opinion towards advertising than they did a few years ago, 61% "feel the . . . amount of advertising is out of control," and 65% feel "constantly bombarded" with advertising.26 Ad avoidance (conscious activity designed to avoid ads) is higher on television than any other medium,27 and people feel ads on television hinder communication a great deal.28 "No medium is rated higher than television on disruption, hindered search, perceived clutter, or ad avoidance."29