As corporate support professionals, we must frequently assess the nuances of FCC laws that govern
November 20, 2023 by Anna McDonald
Greater Public’s FCC attorney Brad Deutsch recently led a dynamic FCC guidelines webinar, in which he workshopped real-world station copy examples submitted by our members. In response to many requests from attendees, below is a Q&A addressing the questions that came up during the webinar, including those we did not have time to address.
Before diving in, we’d all do well to keep some of Deutsch’s guiding principles in mind when it comes to navigating the FCC and copy:
Here now are some of the FCC-related questions recently asked by our members:
Does that rule still apply if a nonprofit underwriter is related to the for-profit that they want to highlight in the message, i.e., both organizations are either “owned” by the same person, or operated under boards of directors with names in common?
If the sponsor is a nonprofit, it is better to avoid the mention of the for-profit altogether but if this is a particular sticking point with the client, it is probably defensible to mention the other company in this case IF:
1) the underwriter is a nonprofit (as there is more flexibility with the FCC) AND
2) it is clear which company is the one supporting the station (sponsor ID rule) AND
3) any copy surrounding the mention of the for-profit company adheres to the FCC guidelines that govern for-profit underwriters. For example:
Support for WKRP comes from The Clarke Foundation and Clarke Eyles, an award-winning full-service law firm serving local, national, and international clients for nearly a century. Learn more at Clarke dot com.
Support for WKRP comes from The Clarke Foundation, recognizing Clarke Eyles, a full-service law firm serving local, national, and international clients since 1921. More at Clarkefoundation dot org
What about if a nonprofit performing arts venue wants to mention a promotional ticket partner? For example:
Clarke Center, presenting The Bob Band in concert February 25th at the Clarke Performing Arts Theatre. Ticket information at Anytown Dental Tickets Dot Com.
Even though the FCC allows more flexibility for nonprofit underwriters, it is a no go from an FCC standpoint for any underwriter to mention another for-profit company in a spot unless the other company is also supporting the station *or* the URL mention of the other company is a vehicle by which the underwriter provides its services to the public (i.e. ticketmaster.com ). So in this example, assuming the relationship is between the venue and the dental group only, the mention of the dental company is not OK. That said, it would be fine to mention the dental group on the ticket URL landing page itself, just not in the broadcast spot. It is also technically ok for the dental group to be mentioned on digital/print companion units as the FCC does not govern digital or print, but you want to talk through as a station if that is something you would allow in this instance and moving forward, as going further in your digital ads than broadcast may have implications re UBIT (unrelated business income tax).
How about a nonprofit pushing traffic to a for-profit for a fundraiser – charity drive, e.g. bring your donation to Harley Davidson?
If the underwriter is a nonprofit, the announcement should avoid listing for-profits unless the for-profit organizations also support the station. An exception to this principle is that a for-profit event sponsor can be mentioned if the sponsor’s name is part of the name of the event — e.g. Avon Breast Cancer Crusade. In the example above, it would likely be ok to mention Harley Davidson as the location/place where the nonprofit’s own fundraising event or activity was taking place. But if the nonprofit was promoting a Harley Davidson-driven fundraising activity then it would not be permissible.
What about the reverse scenario? Can underwriters mention other nonprofits in a spot?
Yes, it is okay for nonprofit and for-profit underwriters alike to mention another nonprofit in a spot provided that it is clear which company is the one supporting the station *and* the mention of that nonprofit does not put the underwriter in a more positive light (which would be considered qualitative). So, for example, a restaurant mentioning that they will donate a percentage of their proceeds towards a cancer charity is not OK, but a CPA mentioning a tax workshop they are offering at the local food bank is likely fine.
Promoters often want to say the support is coming from the artist or tour even though the invoice will be paid from the theater. Would you say we must insist the support credit comes from theater? At the end of the day, we aren’t feeling that they are trying to deceive anyone.
Good intentions or not, the FCC requires that the organization paying for the credit be identified as the organization supporting the station. So, yes, the support credit should identify the theater if it is paying the invoice. The artist/tour can be mentioned as a product/service, but the theater is the sponsor.
What about mentioning the station itself as the other company? So, an underwriter might want to say “Company B, proud sponsor of WKRP”
It is totally fine for an underwriter to mention the station and that they are a sponsor, even a proud sponsor. Tread carefully though if a sponsor wants to add more to this, e.g. “since 2010” or any other language that paints them in a more positive light than other sponsors on your air, especially those in the same business category.
What about government agencies like state lotteries or 529 college savings plans?
There can be more flexibility in messaging when it comes to government agencies as these clients would be considered government entities equivalent to nonprofit underwriters, and so from an FCC standpoint, underwriting rules would *not* apply. It really becomes a matter of station policy and whether your station allows more flexibility in messaging from nonprofit clients rather than what is allowed by the FCC. There is some additional due diligence recommended re accepting underwriting from lotteries however, outlined here.
Would the term “happy hour” be acceptable in a spot?
No, it is well-known that the term “happy hour” necessarily implies discounts and special prices, so it would be considered an inducement to buy and therefore not allowed.
Can nonprofit underwriters use the term “free event,” something not ordinarily allowed with for-profit underwriters as it is considered pricing information?
Yes, from an FCC standpoint, there is greater flexibility with nonprofit underwriters and so it would be okay for a nonprofit underwriter to use this term. That said, while the FCC does permit more flexibility for nonprofits, many stations choose to apply the same rules to nonprofits as they do for their for-profit sponsors for tax reasons (UBIT may apply) and to keep their on-air sound consistent. So, this decision really is one of station policy rather than FCC guidelines.
Because of recent FCC rulings, we know it is recommended that menu listings of products and services be limited to no more than four items, but…
Does that apply for :30 second spots as well as :15s? In other words, if the spot is longer is there greater flexibility with the number of product mentions an underwriter can list?
No. Regardless of spot length, the recommendation is the same: an underwriter should list no more than four items in the spot.
What about the term “and more” – is that considered a product mention or could you list the recommended four items and then mention “and more”?
To be safe, it is best to consider the term “and more” a menu listing in itself. So, if you want to use the term “and more,” an underwriter would list three products or services and then add the “and more” to make four.
What about locations vs. product and service mentions? Can you list more than four locations?
To be safe, it is best to consider an underwriter’s locations the same as its services, so no more than four locations should be mentioned in the spot. And if you list multiple locations you should not then include a second menu listing of four products or services. It is a limit of four across the board.
What about the company name itself? Is there a limit to the number of times the underwriter itself can be mentioned?
Technically no, but the more mentions of the underwriter the more promotional the spot will seem.
Can a company’s URL contain a call to action?
The FCC guidelines do not permit calls to action in underwriting copy, so as a general rule, URLs that contain calls to action or terms perceived as an inducement to buy are not allowed, especially if these URLs have been set up solely as part of a specific marketing campaign or underwriter event, e.g. underwriterwebsite.com/50percentoff, underwriterwebsite.com/springsale, underwriterwebsite.com/giveaway. The exception here is if the qualitative or call-to-action term in the URL is actually the legal name of the business, or includes the business’ long-term tagline or slogan that would otherwise be acceptable as part of the copy. For instance, if the underwriter’s business is called Discount Flowers, then discountflowers.com would be allowed. However, if the underwriter’s legal name is Anytown Florists, then discountflowers.com would not be acceptable, even if it is the business’s web address, as the term is qualitative. Taglines that contain calls to action are only allowed as part of the URL if the tagline passes the test for being an established company tagline, and the business has been clearly identified by name as the funder somewhere else in the copy. (e.g. justdoit.com would be permissible for Nike or imlovingit.com for McDonald’s).
What about the use of slashes after a business’ URL – like anytownflorists.com/value for example?
The use of slashes is OK provided that the word(s) used in the slash does not violate FCC guidelines, i.e. does not contain a call to action, price information, an inducement to buy/sell, or a qualitative or comparative statement. So, in the above example, “slash value” is unacceptable because the word value is considered pricing information. Same with something like anytownflorists.com/2for1 as that is an inducement to buy. But something like anytownflorists.com/roses would be ok as it is essentially a product mention. Like with URLs in general, the exception here is long-term taglines or slogans, so nike.com/justdoit would be OK.
Can you list a Ticketmaster URL if they are not the sponsor?
Provided that it is clear in the spot which company *is* the sponsor, it is fine to list ticketmaster as the URL associated with the message.
What about [THIS PHRASE] before the URL mention?
“Tickets available at…”
“Tickets are on sale at…”
“”Tickets are on sale Friday at 10AM…”
These are OK for a nonprofit underwriter as the FCC allows greater flexibility, but for a for-profit it would be safer to say “Information available at…” as the mention of ticket availability could be interpreted as an inducement to buy. The mention of the date/time should definitely be avoided for for-profit underwriters as that creates a sense of urgency which is akin to a call to action/inducement to buy.
“Visit this website for more information…”
This is a call to action. Better to say “More information at…” and then list the URL.
“Appointments can be scheduled at…”
This is all about context and the underwriter’s business category. This phrase would be permitted for a nonprofit underwriter as the FCC allows greater flexibility. For for-profits, it would be ok to use this language in connection with an announcement that they are recruiting/hiring, as long as the for-profit business is not actually in the recruitment industry (a temp agency or indeed.com for example). An example in the webinar (see slide 11) was a medical business talking about a national clinical trial in which they were participating and working to get enrollment. In this case, this language would be ok if the medical business was a nonprofit but not if the medical business was a for-profit as it could be perceived as an inducement to participate. It would be safer to use language like, “Information available at…” That said, sometimes in extraordinary community circumstances, public service really is the motivation rather than qualitative or comparative claims, and in these cases the message can be okay (e.g. “Medical Company X, conducting a blood drive in support of local emergency victims. Appointments can be scheduled at…”)
Does the FCC give a length of time after which a slogan or tagline can be considered established?
No. As the FCC has given no firm guidance for determining when a logo or slogan is considered “established,” a good rule of thumb to follow is that the tagline or slogan is a registered trademark, *or* it has been in use for at least six months (preferably more). Prominent use of the tagline or slogan on the sponsor’s website is also helpful, but many times a quick Google search of the slogan is a good measure of whether the slogan in question maps to the company and can be considered “established” in good faith.
What about the use of first person “I” in copy?
While the FCC doesn’t restrict the use of personal pronouns explicitly, many stations opt to avoid personal pronouns in their underwriting credits. The thinking is that once a personal pronoun is used by an announcer, the announcer is speaking directly to the audience (you, your). These types of announcements tend to sound promotional. In terms of using the first person (I), this is not recommended as it can be perceived as an endorsement or testimonial by the announcer, which is also not allowed.
What about a PSA by a healthcare org doing an underwriting PSA telling you to “Get your annual check-up.” Not necessarily with them, but just in general? Non-profit or for-profit healthcare org?
The term “Public Service Announcement”” (PSA) in commercial media is usually a message from a nonprofit organization, e.g. anti-drinking/driving, driving awareness in school zones, etc. Commercial stations may air these, generally at no cost, as part of their public service commitment. In public broadcasting, these PSAs are okay to air when your station has not received any consideration (cash, trade or in-kind) to run them.
In some cases, paying underwriters may wish to align themselves with a public service campaign, seasonal sentiment or larger community event or crisis as part of their underwriting message such as “Company Z, encouraging you to vote this November.” There is no bright line answer to this one, and careful consideration should be given to an underwriter’s true intention in wanting to include these types of messages. Ask yourself, does it benefit or position the underwriter more positively as a result, or is it truly in the public’s interest? For instance, in the above example, it’s important to understand why Company Z is encouraging listeners to vote. Is their industry somehow on the ballot? Is their bottom line impacted when more people vote? Is it advocacy or something else? Similarly, you would want to think about how a message reminding listeners about an annual check-up would be received and if it would position the healthcare organization more positively as a result. If the answer is yes, then it likely is not permissible. At the same time, sometimes in extraordinary community circumstances, public service really is the motivation rather than qualitative or comparative claims, and in these cases the message can be okay (e.g. “Campus Books, gathering used children’s books for those families who have lost their homes in the wildfire.”) Regardless, decisions in this area should be made on a case-by-case basis, and with due diligence based on good faith determinations. As in other underwriting gray areas, the FCC allows more flexibility in this space for nonprofits, should your station make a distinction between nonprofit and for-profit underwriters.
Is it OK to accept Cannabis underwriting?
As long as Cannabis remains illegal at the federal level, stations should proceed with caution. This doesn’t necessarily mean you can’t accept it, but you want to be sure to sufficiently weigh the risks specific to your market and document your process so you are in a better position to defend it if you need to. Read Greater Public’s advice on the topic.
What are the guidelines on CBD edibles and topicals?
Certain CBD non-food products derived from low-THC industrial hemp (.3% or lower) are now legal under federal law, so it could follow that stations interested in accepting underwriting from companies with CBD products would face significantly lower risk. Read more on this topic here:
What about firearm manufacturers who want to underwrite?
Generally, as long as the underwriter’s business is considered lawful activity under federal law, then a station is free to accept underwriting from the business, including a firearms manufacturer.
That said, given the highly-charged politics currently associated with the gun control issue, it would be advisable to stay away from accepting firearm manufacturing underwriting – as well as gun violence prevention type underwriting – lest it be perceived as advocacy on a matter of public importance or interest, which is prohibited. Stations do have the right to legally turn away any underwriter so long as it’s for a non-discriminatory reason. Risk assessment is key in this instance. Consider your market, your audience, and your donors, and their potential reaction to viewing or hearing such a spot. And document your decision-making process so you can demonstrate to the FCC that your decisions were made carefully and in good faith.
Is the mention of salary ok for a for-profit underwriter?
While it is permissible for for-profit underwriters *not* in the recruiting business to mention hiring information, and as a call to action at that, the information itself should be presented in a way that doesn’t otherwise go against FCC copy guidelines (i.e., no pricing info, qualitative, promotional, etc.). The mention of an actual salary or the word “salary” on its own could be considered pricing info and thus should be avoided.
We just created a PBS spot for a closet company, and weren’t able to put the company logo on when people were smiling into the camera. Is that an FCC rule?
The FCC prohibits promotional spots, and a depiction of customers’ apparent satisfaction with the funder’s products or services could be deemed promotional. For this reason, PBS has long imposed a “no smiling” rule in its interpretation of FCC guidelines in national underwriting spots.
Can spots in PBS KIDS be :30s?
From an FCC standpoint this is likely OK, however PBS strongly advises stations to follow its own self-imposed additional restrictions when it comes to content intended for children. This includes the following PBS guideline about credit length re educational video content: For content intended primarily for use in classrooms or other educational settings, the total duration of all funding credits must not exceed 15 seconds. Learn more: Read more about this restriction here on pages 9-10.
The Daniel Tiger Live show is coming to a venue near us. Can we not place underwriting announcements adjacent to that show? Is that an FCC restriction?
From an FCC standpoint it is probably OK, but here again PBS strongly advises stations to follow its own self-imposed additional restrictions when it comes to content intended for children. This includes special considerations for brands and products appealing to children, and for the use of program characters or show hosts to sell a funder’s products or services. It would be prudent in this instance to run the spot/messaging around programs or digital communications targeted at adults.
Best to stay away from terms like “right here” or “right now” as both phrases, while perhaps not direct calls to action, create a sense of urgency and could reasonably be perceived as inducements to buy/sell.
Mentions of Award-winning, Grammy-Award-winning, NPR-Tiny-Desk-featured artist? This information is true after all so is it OK?
For for-profit underwriters this is a hard no, as whether or not information in a spot is factual has no bearing – the mention of an award that recognizes merit or quality is comparative in nature. For nonprofit underwriters this would technically be OK, but again remember that while the FCC does permit more flexibility for nonprofits, many stations choose to apply the same rules to nonprofits as they do for their for-profit sponsors for tax reasons (UBIT may apply) and to keep their on-air sound consistent. So, this decision really is one of station policy rather than FCC guidelines. It could also be that your station decides this kind of thing is OK in certain nonprofit categories such as Performing Arts, and not in others such as Healthcare, where it may be harder for listeners/viewers to distinguish the difference between a for-profit and a nonprofit hospital on-air.
The term “clean energy”? And if ok, can a TV spot feature a clean energy certification logo?
Much like “luxury car” is considered a subcategory of automobiles and “fine dining” is a subcategory of restaurants, in this instance a case could be made for clean energy as a subcategory of energy, so the term is probably OK. The use of the certification logo though is probably a no go. The FCC has specific rulings that relate to the mention of certifications and licenses. Certifications are almost always used as third-party endorsements and serve to differentiate one entity from another in order to induce patronage. As a rule of thumb then, it is best to avoid certifications, accreditations, and licenses unless you are describing a CPA, which is the one exception. If the “clean energy” company is a nonprofit, then there would be greater flexibility to include the logo.
Is it permissible to feature a logo highlighting ‘HOV ACCESS OK – California Clean Air Vehicle’? This is a state government designation.
If the logo is used in relation to an underwriter’s product (i.e. a car), it would not be acceptable as it is qualitative and an inducement to buy from that car dealer. If the underwriter itself was the California DMV then it would be permissible because the FCC considers government entities to be equivalent to nonprofit underwriters.
Terms like Black-, BIPOC-, minority- or women-owned to describe a business?
The FCC has not ruled definitively on this. On the surface, terms like this could be perceived as an inducement to buy/sell or comparative. But this is a nuanced scenario where risk assessment should also come into play. The chances of a listener complaining or reporting a station for using such terms are probably pretty slim, as is the likelihood of a station not being able to defend the good faith use of such terms as informational. So, this is probably OK until such time where the FCC offers specific guidance on this otherwise. As with any copy decision however, especially if it is one that will break precedent, consider your market, your audience, and your donors, and their potential reaction to viewing or hearing such a spot. And document your decision-making process so you can demonstrate to the FCC that your decisions were made carefully and in good faith. Copy approval process is less about being right or wrong, and more about what is defensible in the eyes of the FCC.
What about using a term usually not allowed in terms of describing the business to talk about the buyer/end user instead? For example, here the word “unique” describes the students’ career goals, not the underwriter:
MAPS, The Master of Applied Professional Studies at U-N-C. Serving students on campus and in the community with a graduate degree tailored to meet their unique career goals. Details and more online at: Grad School dot U-N-C dot E-D-U
For for-profit underwriters, even if the qualitative term describes the end user and not the business, it can be seen as putting the business in a more positive light because the business is able to do this unique thing for the end user. So, it is safer not to use it. That said, if the grad school in this example is a nonprofit there is more flexibility from the FCC standpoint and so this would be ok. Again, at the end of the day, it is a matter of station policy and whether your station allows more flexibility in messaging from nonprofit clients rather than what is allowed by the FCC.
Much like “luxury car” is considered a subcategory of automobiles and “fine dining” is a subcategory of restaurants, in this instance a case could be made for “free-range” as a subcategory of food, so the term is probably OK.
In addition to being a bit buzz-wordy (what does this phrase really mean?) you wouldn’t say the opposite of this phrase, that the underwriter has “cars for some lifestyles” and so it is likely promotional and a thinly veiled attempt to suggest that the car selection at this underwriter is more extensive and/or more in tune with customer values than other car dealers. This would make the phrase comparative and not acceptable. It would be safer to say a “variety of cars” as that is more informational and value-neutral.
I don’t understand why “cars can be picked up or delivered” is any different FCC-wise from pointing out that customers can shop virtually or in-store. Wouldn’t both be permissible?
It is permissible to state that customers can shop online or in a store as long as the use of the term “virtual” is not used to suggest a special “live” promotion or event (e.g.
“a virtual car buying experience right now during the Lot to Love event”). In the example on the webinar (see slide 8), the phrase ”cars can be picked up or delivered” was also used in the context of the Subaru “sale event” as a way to create urgency for acting now. It is therefore an inducement to buy and not acceptable. Outside of this context however, it would probably be ok to say that an underwriter offers “a variety of cars available in store or via delivery.”
Listing crowns as a service the dentist offers is fine (as long as the mention stays within the no more than four products/services in a menu listing guideline), but as you wouldn’t say the opposite of “same-day,” this term as a descriptor is likely not value-neutral and so should be avoided. “Same-day” also arguably creates a sense of urgency which could be perceived as a reason to choose this dentist over another, and thus would likely be considered comparative and not permissible by the FCC.
There is nothing inherently wrong with using aspirational language in an underwriting credit, along the lines of “committed to,” “striving to” or “dedicated to.” However, some stations use this phrase (and other aspirational words/phrases) in an attempt to hedge or tone down otherwise unacceptable copy. In the eyes of the FCC, aspirational wording very rarely renders a credit non-promotional. In this case, you wouldn’t say the opposite of “caring for their clients” and so it is likely promotional and therefore not permissible.
Can you clarify if the word “Reminding” is a call-to-action?
This depends on context, but more often than not this term is used to draw attention to/create urgency around an upcoming event or date (e.g. “Reminding listeners that Mother’s Day is Sunday May 4”), and so yes, in many cases, it would be considered akin to a call to action. It can also be problematic as it can potentially paint the underwriter in a more positive light depending on what the reminder entails. That said, there is more flexibility with nonprofits or government agencies, especially in the area of public safety and health (e.g. “Reminding listeners to get their COVID boosters” or “Reminding the community to update contact information on the Indiana Health app”).
Can you use the word “diverse” when describing a group of leaders such as “a diverse community of leaders dedicated to excellence in and out of the classroom”?
Underwriters often wish to describe their offerings as full, broad, diverse, etc. In some cases, these words can be justified as descriptive if the underwriter’s services are indeed broad and diverse (e.g. “full-service law firm”). In other cases, the underwriter is using these words to inflate the appearance of their products or offerings and the use can be considered promotional (e.g. a local grocery store offering a diverse selection of wines). So, context is important here. In this example, if the underwriter is a nonprofit, the use would be OK. If a for-profit, however, it is likely considered qualitative as it paints the underwriter in a more positive light, so it would be safer not to use it, or find language to describe how the leaders are diverse, e.g. “a community of leaders from elementary, middle, and high school educational settings” or “a community of leaders from business, nonprofit and government sectors”
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