Greater Public’s FCC attorney Brad Deutsch recently led a dynamic FCC guidelines webinar, in which
January 29, 2024 by Dixie Lynn
January 26, 2024 by Anna McDonald
As corporate support professionals, we must frequently assess the nuances of FCC laws that govern the content of our sponsorship messages. Some guidelines are easier to interpret, while others can feel obscure. Greater Public’s FCC attorney Brad Deutsch recently led a dynamic encore webinar presentation of his highly-rated FCC workshop at the 2022 PMDMC. In response to many requests from attendees, below is a Q&A addressing some of the questions we couldn’t get to in the webinar, and clarifying some of the more layered scenarios that came up as examples.
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 are some of the FCC-related questions recently asked by our members.
Do you think a QR code image on a PBS underwriting spot is a call to action?
A QR code operates much like a website URL, in that it is an element of the spot that the viewer can choose – but is not forced – to interact with to get more information. Thus, as the FCC has approved the use of URLs in public television underwriting spots, a QR code is likely okay. In fact, an argument could be made that a QR code is even less promotional than a URL, as the address is masked in the spot unless a viewer interacts with the image.
For a website mention, what kind of language is permissible by the FCC? Can we say “visit”, “learn more,” or “Find out more at” before we mention the actual URL?
Since the FCC does not allow calls to action, it is better to use language that makes the mention of the URL informational in nature, i.e. “More information at” or “Details at”. When doing this though, take care to resist the temptation to turn a blatant call to action into a thinly-veiled call to action – just in statement form – by adding a qualifier like “you can” in front of it. This may push the envelope FCC-wise as it arguably sounds more promotional. Moreover, it doesn’t necessarily offer additional value to the sponsor that makes it worth the risk.
That all said, Greater Public’s position is that the phrase “Learn more” *is* likely defensible, because its use is educational in nature, matching the psychographics of public radio listeners who exhibit the desire to learn and grow.
If your client is a nonprofit, there is greater flexibility from an FCC standpoint anyway, so any of these phrases would be acceptable.
Can nonprofits mention “free admission” to their events?
While cost information is not generally permissible in an underwriting message, the FCC does permit more flexibility for nonprofit underwriters, including the use of calls to action and other language not otherwise permissible. So from an FCC standpoint, “free admission” would be allowed in a nonprofit spot, but the question of how much flexibility to allow nonprofits really is up to an individual station. The nuances between for-profit and nonprofit guidelines really are a matter of station policy vs. dictated by the FCC. Many stations choose to apply the same rules to nonprofits as they do for their for-profit sponsors, for 1) tax reasons (UBIT may apply) 2) to keep their on-air sound consistent and 3) to avoid listener confusion, especially in categories where there are both for-profit and nonprofit businesses with similar services operating in the same space (e.g. Healthcare).
What about nonprofits that have a commercial workforce development arm?
If the organization paying for the announcement is a nonprofit, then the FCC permits more flexibility for their message, including if that nonprofit has a commercial workforce development arm and if they want to mention this aspect of their mission in their spot. So yes, this is likely permissible.
What about sponsors mentioning that a certain % of their proceeds go to charity?
A for-profit mentioning that a certain % of their proceeds go to charity arguably creates a more favorable image of the underwriter, and thus would be considered promotional by the FCC, and should be avoided. That said, a for-profit entity can mention the name of a nonprofit entity or charity in its credit, so long as it is clear that the for-profit has paid for the announcement.
What about nonprofit underwriters mentioning their own fundraising?
The FCC allows announcements that promote the activities of other nonprofits, including fundraising. The caveat is that these announcements cannot “substantially interrupt or suspend regularly scheduled programming or constitute ‘joint fundraising’”. Underwriting spots are not considered substantial interruptions to regularly scheduled programming so mentions of fundraising activities by nonprofits is OK. That said, many stations choose not to allow this, in deference to their own individual giving programs and fundraising efforts. This is a matter of station policy, not the FCC.
Can sponsors mention job vacancies? And can job vacancy spots include qualitative or comparative language about the job, i.e. “Competitive wages” “Generous benefits”, etc.
Other than for headhunters or companies in the recruitment business, recruiting is not, in and of itself, a way underwriters promote themselves, and so mentioning hiring information in a spot would not necessarily be construed as promotional as it relates to their business. In addition, while an underwriter must be correctly identified in a spot (sponsor ID rule), the FCC does not limit the station to speaking only about the underwriter’s business in the spot. Thus, it is likely permissible to mention hiring information in a spot, as long as an underwriter is not in the recruiting business, and that information itself is presented in a way that doesn’t go against FCC copy guidelines.
In addition, otherwise promotional terms such as “competitive wages” or “generous benefits” would likely also be defensible in the case of underwriters *not* in the recruitment business, because they are terms which describe the company’s positions and not the company’s products or services.
Is first-person language allowed – for example pronouns: I, our, you, yours …?
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. Bottom line: stations can decide whether they are going to use them or not, and specifically which ones. But in doing so, once you decide, it’s best to then stay consistent. Consistency is key – along with documentation of decision making – when it comes to defending something as acting in good faith in the eyes of the FCC.
What criterion can be used to determine if an underwriter’s slogan is “recognized by the public” or “established”. If it is listed on their website, is that enough?
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, *and* it has been in use for at least 6 months (preferably more). A mention of it on the sponsor’s website is also helpful, but many times a quick Google search of the slogan is a better measure of whether the slogan in question maps to the company and can be considered “established” in good faith.
What about the word premiere? As in “premiere performance” or even “world premiere”?
This is really contextual. If it truly is the first time a performance is being offered, then it is likely technically OK to describe it as a premiere, especially if the underwriter is a non-profit organization. That said, the word “premiere” is a homonym of the word “premier” – which can be used to convey quality – so take care to ensure the proper context and use of each word.
Note: As copy approval can be an evolving process, this represents a slight shift in Greater Public’s previous guidance around this word. Credit Copy Central has been updated accordingly.
If a station follows the ”no more than four product mentions” per one spot rule, should the phrase “and more” be considered one of those four? Or could you list four products and then say “and more”? What about sublistings? Or performing artists in a lineup?
“And more” should be considered a product name for the purposes of this guideline. It is part of the listing.
There should be no more than four product listings in any one spot. So sublistings a.k.a “…ABC Variety, offering household goods (light bulbs, detergent, gifts, and Yankee candles), gardening supplies (mulch, tools, plants, and gloves), and party supplies …” is a no go if the number of things overall exceeds four.
When mentioning artists in a line-up – yes, the same rule applies. If the presenting venue is a nonprofit, there is more flexibility.
What about gift cards? Is it OK to list gift cards as a product?
Provided it is not offered as a coupon (which would be an inducement to buy), a gift card is a product and therefore it is acceptable to mention in an underwriting spot provided that the spot complies with FCC guidelines in other ways. This includes no mention of cost or value of the gift card, or any discounts or other benefits surrounding its use.
Is it OK to say that a bank offers loans if we’re not talking about rates or any specific price information?
Yes, loans are a service the bank offers and therefore permissible to mention in the spot provided no rate or price information is listed and the spot otherwise adheres to FCC copy guidelines.
What about saying “rate information available at” before the URL?
While it doesn’t mention specific rates, this term could push the envelope as it is calling out a place where the listener can read about prices and rates, and thus it is likely promotional. It would be safer to just list “More information at” and assume our educated and savvy audience will understand what to find there. That said, if this is a sticking point with a client that will force you to lose substantial business, you might decide that using it is worth the risk.
For a nonprofit on-air spot or digital ad units that really are advertisements, how do you determine UBIT implications?
Unrelated Business Income Tax (UBIT) applies specifically to nonprofit organizations like public media stations, and involves earned revenues not substantially related to furthering the tax-exempt purpose of the organization. UBIT does not apply to traditional on-air underwriting because your station is not selling advertising: It is acknowledging station funders. However, as stations move further into digital sponsorship with more aggressive messaging and sales techniques, you may find that UBIT applies. This archived Greater Public webinar introduces the concept of UBIT, the IRS’s definition of “advertising,” and IRS requirements for reporting and paying federal income tax on UBIT. You may also want to consult with your station’s tax advisor about this one.
Do FCC violations happen often? Do they usually end up with fines due?
The FCC is not out there proactively listening to or watching public media stations, or looking to fine us. Complaints to the FCC usually come from one individual – sometimes with ties to the station – and thankfully violations and related fines do not happen that often. And when they do, the violations are usually blatant. The FCC is also more likely to be sympathetic to stations when complaints come in if stations can show that they were interpreting and following the guidelines in good faith. What does this mean? Document your copy approval processes and decision-making, especially for any decision that might be a close call. If a question was addressed on a webinar like this one, save the link to the recorded webinar. Be as consistent as possible on your air.
What about online sports betting? Marijuana?
Online sports betting is a growing business area for sure. While the FCC restricts the promotion of some gambling on-air, the FCC does not regulate digital sales, and so it is technically permissible for public media stations to accept online sports bettings ads on their digital platforms within a very specific set of circumstances. Not surprisingly, there are important caveats and other factors to consider before making the decision to accept such business. This blog post lays them out well.
Marijuana has a whole other set of considerations as it is something that is legal in many states but not yet legal at the federal level (but this might change soon). Here is Greater Public’s advice on this issue. This corresponding blog post on CBD products in the wake of the 2018 Farm Bill legislation may also be helpful.
Here are many more Frequently Asked Questions (and answers) about sponsorship copy that is FCC-compliant.
Note: These examples represent Greater Public’s best interpretation of FCC regulations. This should not be construed as legal advice and Greater Public may not be held responsible for use of this content.
Greater Public’s FCC attorney Brad Deutsch recently led a dynamic FCC guidelines webinar, in which
All indicators show that online sports betting will grow exponentially in the next five years,
Follow FCC regulations when you’re fundraising on-air for another nonprofit.
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