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

Georgetown Law Journal, Apr 2006 by Getz, Matt

A change of administration in 1992 brought in a more activist FCC, but its attempts to reregulate ads proved unavailing. Reflecting a congressional "concern with the issue of commercialism in broadcasting," the new FCC started an inquiry "to determine whether the public interest would be served by reestablishing limits on the amount of commercial matter that a television station can broadcast."100 The response the FCC received was overwhelmingly negative: of thirty-two submissions received, all but two opposed any new regulation.101 The National Association of Broadcasters said such a move would be "unnecessary and counterproductive,"102 and Advertising Age said there was no need for such regulation because "since deregulation, there [had] not been an ad clutter increase of sufficient magnitude to warrant a return to federal regulation."103 In the face of such opposition, the FCC quietly shelved the proposal, never to return to it again.

E. . . . EXCEPT FOR CHILDREN'S TELEVISION

In one area alone limits on commercial time remain-children's television. Until 1974, the FCC did not look at children's television any differently from "mainstream" television. Then, faced with a request from Action for Children's Television (ACT) to ensure adequate programming for children and ban commercials aimed at children, the Commission promulgated a rule asking television companies to make a "meaningful effort" to produce more content for children, limit advertising, and keep programming and advertising separate.104 As it had done with television in general, the FCC asked that broadcasters do no more than adhere to their own limits.105

When the Commission switched off ad limits in 1984, it made no exception for children's programming, specifically finding that television was serving children well, and regulation would hurt the industry.106 The effect in increased commercialization was near-immediate,107 as was the reaction. A number of children's advocacy groups sued the FCC in an attempt to prevent deregulation.108 In 1987, the D.C. Circuit sided with the advocacy groups, finding that the FCC had not given adequate reasons for dropping the ad limits, and remanded the issue to the Commission for elaboration.109

The Commission, which still "believed that the interests of the children could be best protected by having the marketplace work with virtually no interference by the government,"110 acted slowly, and Congress took up the cudgel.111 In 1988, it passed a bill regulating all aspects of children's television, including advertising, but to general surprise President Reagan vetoed it.112 Undeterred, Congress passed an even more stringent bill in 1990.113 Reagan's successor, President George H. W. Bush, did not veto it, but he did not sign it either, saying it violated the First Amendment and the market would take care of children.114 The bill consequently became law in 1990.115 The Act established firm limits on the amount of advertising on children's television: no more than ten-and-a-half minutes per hour on weekends and twelve minutes during the week.116 These limits remain in force today.