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

Georgetown Law Journal, Apr 2006 by Getz, Matt

In the 1950s, CBS removed the words "gas chamber" from a presentation of Judgment at Nuremberg because the sponsor, a natural-gas company, felt that people could not differentiate between that gas and the gas people cook with.121 The sponsor's impulse is understandable, but in bowing to the pressure CBS severely weakened the show's content, as well as its informational and artistic value. Advertisers' understandable desire not to be involved in self-criticism means that media in general and television in particular cannot engage in full and frank discussion when commercial values and companies are at stake:

The press as cross-examiner can be very effective . . . for covering political news and many other topics. It seems to be much less effective, though, when the object of investigation is the marketplace. To consumers' misfortune, the press receives most of its revenue from the advertisers. It thus may fail to scrutinize such parties with the enthusiasm it shows toward such activities as the president's behavior during Watergate.

The point is not that the encounter with the truth never happens. Some scrutiny occurs [and] many of the media . . . commendably examine some consumer issues sometimes. However, such efforts are not enough to lift consumers routinely to a level of equality with sellers in their ability to assess truth and weed out falsity.122

Advertisers tend not to value public interest programming as its non- or even anti-commercial stance rarely helps them sell their products. For example, product tie-ins are hard to achieve with congressional hearings because they are little more than people sitting and talking about issues of public concern; no cars or consumer goods are on show. The results are palpable: from 1993 to 1997, C-Span, which shows no ads and would probably not attract any even if it did, disappeared from more than 5 million homes.123 Congress has a number of times recognized that an advertising-led model will lead to a shortfall of public-interest programming, most strikingly in 1967, when it created the Corporation for Public Broadcasting,124 and in 1984 and 1992, when it passed laws mandating the carriage by cable companies of a certain amount of public, educational, and governmental material.125

The sheer power of advertising means that certain groups will always be underserved.126 Advertisers' interest in a particular demographic, the eighteento forty-nine-year-olds who are responsible for most consumer purchases, means that those left out on either side of the age range will not get the programming they desire (and might be willing to pay for if given the chance).127 Even Mark Fowler recognized this in his famous Texas Law Review article:

Programming for children is a prime candidate [for public support]. An advertiser-supported system may be unable to meet the demand for children's programs because of the limited range of advertisers wishing to sponsor these programs. . . . A need also may exist for specialized programs for the elderly, who may be neither economically attractive to advertisers nor wealthy enough to generate a significant quantity of subscription programs for their special needs and interests.128