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

Georgetown Law Journal, Apr 2006 by Getz, Matt

Led by Fowler, the Commission concluded that "regulatory underbrush" was impeding "the competitive functioning of the marketplace,"78 and in a series of actions proposed doing away with almost all regulation of radio and television broadcasting.79 Most of these regulations involved programming and character issues, not commercialization, and are therefore beyond the scope of this Note, but in 1983 the Commission turned its eye towards the ad limits.80 It solicited comments on whether to eliminate ad limits altogether in "the belief that competition within the video marketplace will serve as an adequate regulator of commercialization," or to raise them so that licensees would have greater leeway but the FCC would retain some control.81 In support of its contention that the market would keep ad times down, the FCC referred to a study of sixty stations in Florida, Georgia, and Alabama, showing an average commercial time of eight-and-a-half minutes per hour.82 This study might have struck some as unreliable, as it took place before NAB II83 (while the NAB Code was still in effect), but the FCC apparently (and perhaps disingenuously) did not expect that the demise of the Code would make much of a difference.84

One year later, having received comments, the FCC promulgated its new rule eliminating commercial limits.85 It suggested a number of reasons: ad levels on television were well beneath NAB guidelines, showing that the market was doing its job;86 the limits imposed paperwork burdens on broadcasters;87 the limits impeded broadcasters' ability to "present innovative and detailed commercials";88 the limits interfered with broadcast television's growth and ability to compete;89 and FCC regulation probably went against Supreme Court commercial speech doctrine, which demanded "the least restrictive means suitable."90

The FCC noted the concerns of some commenters that the market would not be able to control overcommercialization because "licensees in fact market their product primarily to advertisers rather than audiences, [and] elimination of the guidelines would increase commercial loading."91 The FCC rejected this argument for lack of "concrete evidence" that eliminating the guidelines would lead to an "increase in the programming power of advertisers to the detriment of the public interest."92 (It is difficult to understand what "concrete evidence" could have been provided to demonstrate the untested effects of a major regulatory change.) The FCC was so confident that viewers would not watch and advertisers would not buy time on stations that carried "too many" commercials that it did not even leave open the option that it could be wrong.93 Yet, as we have seen, the FCC got it almost exactly wrong, while the opposing commenters got it right-advertising time on television has doubled since the FCC removed the commercialization guidelines.94

The deregulation of the 1980s was severely criticized by some commentators,95 the courts,96 and even members of Congress,97 but, with one exception-and that required a Supreme Court decision and a veto-proof piece of legislation from Congress98-it has remained law. In one 1998 decision, a public interest group asked that a station's license renewal be turned down because, among other things, it showed too many commercials; the FCC flatly refused to even look at the level of commercialization.99