Federal Communications Law Journal

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59 Federal Communications Law Journal 47 (2006)


Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations yields the unmistakable conclusion that the entire process has become a clear lesson in the perils of content-based regulation. The FCC enforcement process is inconsistent and opaque and subjects nonprofit entities to potentially economically crippling fines while impinging on the editorial integrity that is the hallmark of their First Amendment liberties. This Article concludes that Congress should revise the prohibition on promotional messages in favor of allowing limited commercial content by eliminating any restrictions on content, as long as announcements do not interrupt programming and are limited in length. This solution would get the FCC out of the business of content analysis, would preserve the integrity of public broadcasting, and would be consistent with what surveys demonstrate is the public's attitude toward commercialism in the nonprofit media.