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

Georgetown Law Journal, Apr 2006 by Getz, Matt

But the code was frequently flouted. In 1960, the FCC had instructed broadcasters "to avoid abuses with respect to total amount of time devoted to advertising continuity as well as the frequency with which regular programs are interrupted for advertising messages."46 By 1963, the FCC decided that the broadcasters must keep to their own codes. In May 1963, it proposed a rule requiring broadcasters to observe the NAB limits, saying that it favored self-regulation.47

The industry reacted vituperatively, especially in the pages of Broadcasting magazine, a leading trade journal of the time.48 One article called the proposed rule "a sort of socialism."49 Industry pressure eventually forced the rule out of existence: broadcasters lobbied Congress to pass a bill outlawing the rule, and in 1964 the House passed H.R. 8316, prohibiting the FCC from "adopting any rules governing the length or frequency of broadcast ads."50 But by that stage the bill was somewhat moot. In January 1964, the FCC, with a different composition under new President Lyndon Johnson, terminated the rulemaking proceedings.51 In 1965, accepting defeat, Commissioner Robert E. Lee said the FCC would never try anything like that again.52 Nevertheless, the Commission would continue to look at commercialization on a case-by-case basis for the next twenty years.

C. QUASI-REGULATION IN THE 1960s AND 1970s

After the defeat of the 1963 rule, the FCC never again proposed specific limits for advertising time. Instead, it used the delegation process to keep ad times down. Under delegation, the Broadcast Bureau of the FCC could approve license applications on its own as long as certain criteria were met.53 Beginning in 1961, the Bureau had to refer the application to the full Commission if the applicant had or planned greater than 85% commercial programming or more than twelve commercial spot announcements per hour.54

In 1973, the FCC took a more formal and transparent step, requiring referral to the full Commission for proposals with commercial matter of more than sixteen minutes per hour. The Commission adopted that number because it was in accord with industry standards (though it was more lenient than industry practice).55 Though such referral did not necessarily mean dismissal, it served as a strong disincentive against overcommercialization. The FCC believed it was setting limits: in 1979, it found that its ad limits were working,56 and in 1989, Senator Timothy Wirth told fellow Senators that they had worked well from 1974 to 1984.57 Ad time stayed significantly beneath the allowed sixteen minutes. In 1978, James Rosenfield, the president of CBS, said the networks generally had six to seven minutes per hour of outside commercials, and no more than nine-and-a-half minutes per hour of non-program time.58

D. THE END OF ADVERTISING LIMITS . . .

By the late 1970s, the FCC and NAB appeared satisfied with the limited ad times, even if some members of the public thought even then that there were too many ads.59 But two events ended the regulation of television ad times. First, the Department of Justice filed an (ultimately successful) suit against the NAB's codes as an unlawful restraint of trade. Second, the election of Ronald Reagan on a platform of rolling back regulation brought a very different FCC. New chairman Mark Fowler, who "had become known to some as the 'Mad Monk of Deregulation'"60 started cutting through what he called the "regulatory underbrush,"61 including any limits or guidelines on advertising time.