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FCC Imposes Monetary Forfeiture for Broadcast of Video News
Release Lacking a Sponsorship ID |
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Earlier this year, the
FCC’s Enforcement Bureau (“Bureau”) issued a Notice of Apparent Liability
(“NAL”) proposing a $4,000 fine against an owned and operated Fox television
affiliate for airing a video news release (“VNR”) without properly identifying
the provider of the footage. The Bureau has now issued a Forfeiture
Order which rejects Fox’s request for cancellation of the NAL. The
Bureau’s action underscores the importance of disclosing properly the source
of sponsored material at the time of broadcast. The Fox affiliate aired a
VNR produced by General Motors and distributed by Fox News Edge, a Fox news
service. The news report focused on consumer demand for convertibles,
and exclusively featured three GM vehicles in 12 shots. The station
included the VNR clip in a newscast but did not provide any form of
sponsorship announcement at the time the spot was broadcast, nor did the
station alert viewers that the clip was provided by a third party, and not produced by the station. In its Forfeiture Order,
the Bureau rejected three arguments made by Fox: ·
Fox Received No
Compensation. Fox contended that
the sponsorship identification rules should not apply because the station did
not receive any compensation for broadcasting the VNR. The Bureau held
mere receipt of the VNR itself is compensation in most circumstances, thereby
potentially requiring sponsorship identification. Moreover, sponsorship
identification is required “when the use of material involves an
identification of products or services beyond what is reasonably related to
the use of the product or service in the broadcast,” even if no compensation
was provided to the station. In other words, a station can show a clip
featuring a commercial product in order to enhance or emphasize the matter
being reported on, but cannot unnecessarily dwell on the brand name or other
unique identifying aspects of the product without providing sponsorship
identification. ·
Fox Paid For The
Material. Fox next contended that
the sponsorship identification rules did not apply because the station paid
Fox News Edge for the material. The Bureau rejected that
characterization of the transaction and instead considered it to be “little
more than [an] intercompany accounting” transfer because Fox News Edge is
owned by the same corporate entity that owns the subject Fox affiliate. ·
Fox Exercised Its
News Judgment. Finally, Fox argued that the Bureau’s actions impermissibly
intruded into its news judgment because airing the VNR was analogous to using
editorial comments from a press release, a practice that does not require
sponsorship identification. But the Bureau concluded that the use of
the material was more analogous to airing promotional footage provided by a
company – which would require a sponsorship announcement – because the
footage contained more than mere incidental or fleeting references to the
provider’s products. We remind you to exercise
care when using VNRs or other material provided by third parties, and to be
alert when the material features products, services, or brands. In
particular, stations should be cautious when using images and discussions
that focus disproportionately or exclusively on one company’s products, services,
or brands, or which feature extended or close-up images of such products,
services, or brands. If you are uncertain
whether an image or reference to products of a company furnishing a VNR
requires the broadcast of a sponsorship identification announcement, we
strongly encourage you to consult with an attorney in our office. July 20, 2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2010, Lerman Senter PLLC 2000 K Street NW,
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