July 18, 2006
The Association of National Advertisers (ANA), in a letter to the members of the Senate Commerce Committee stated that, “new media innovations and communications technologies will be strangled or severely damaged by the Senate Commerce Committee’s reform bill (H.R. 5252, Advanced Telecommunications and Opportunity Reform Act).” The Association has called on the Senate Commerce Committee to drop two provisions of the communications reform legislation that was passed by that Committee on June 28th when it goes to the floor of the Senate. The two provisions (1) prohibit interactivity with any commercial matter during children’s TV programming and (2) mandate broadcast-type commercial time limits during children’s programming on all video media.
The ANA also raised serious questions about a further provision concerning violent television programming. ANA Executive Vice President Dan Jaffe stated: “These provisions would have a far-reaching impact on the media and could thwart the development of new communication innovations. They also raise fundamental policy and constitutional questions that demand a thorough analysis. Unfortunately, all these provisions were simply folded into the Senate bill without any opportunity for hearings or debate. The interactivity and time limit provisions must be removed when the full Senate considers the communications reform bill or they will severely damage development of the media marketplace.”
An amendment successfully offered by Senator John D. Rockefeller (D-WV) to H.R. 5252 would require broadcasters and cable providers to “prevent interactivity” with commercial matter during any children’s TV programming as well as during ads aired during or adjacent to children’s programming. The ANA letter stated that this provision: “is aimed at stifling the development of new technologies and innovative forms of programming even before they exist, and long before any problems have arisen. As such, this far-reaching legislative language is a ‘solution’ in search of a problem. Such preemptive regulation is almost always bad public policy simply because of the unanticipated consequences of restricting the development of new technologies and services.”
Jaffe noted that the definition of “commercial matter” in the amendment is significantly overbroad: “Under this provision, no children’s program could include information about that program’s website, even if it contained exclusively educational material. For example, no episode of “Sesame Street” could provide a link to the “Sesame Street” website, even if the site did not sell any merchandise, because the website arguably promotes the “Sesame Street” brand in general. This prohibition makes no sense and raises serious First Amendment concerns.”
Jaffe also argued that it is virtually impossible to restrict “interactivity” because children may choose interactivity by engaging in more than one media experience at a time: “There is nothing inherently dangerous or wrong with interactivity. Many children engage in ‘media multitasking’ by watching television while they are online. Why should it matter if a child accesses a website directly through his computer, or indirectly through a link in a TV program?”
ANA also opposes an amendment offered by Senators Bill Nelson (D-FL) and Mark Pryor (D-AR) that would extend the limits on advertising contained in the Children’s Television Act from broadcast licensees and cable providers to “other video service providers.” Jaffe stated: “This proposal has potentially vast ramifications in light of the development of new video services such as online video and mobile wireless services. It’s not clear that the commercial limits would even be relevant or workable in these new video technologies. The courts have permitted the government to impose more intrusive content regulations on broadcast licensees on the theory that they were using a scarce public resource, the broadcast spectrum. But there is no constitutional justification for extending the commercial time limits across the board to all video service providers.”
Another amendment by Senator Rockefeller would require the FCC to complete its inquiry on violent television programming. Jaffe stated: “ANA does not oppose further study of this issue or having the FCC complete its two-year-old inquiry. However, we would strongly oppose any effort by Congress to dictate or suggest how the FCC should conclude that inquiry. Along those lines, we have serious problems with a separate proposal by Senator Rockefeller to authorize the FCC to define and regulate violent programming. Every court considering this issue has struck down efforts to regulate violent programming, regardless of the medium of communication. ”
Jaffe concluded: “These provisions may be well-intended, but they would make sweeping and misguided changes in the media landscape and raise serious First Amendment concerns. It is critical that these provisions be removed from the communications reform bill when H.R. 5252 bill goes to the Senate floor.”
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ANA is the industry’s premier trade association dedicated exclusively to marketing and brand building. Representing more than 370 companies with 8,000 brands that collectively spend over $100 billion in marketing communications and advertising, the Association’s members market products and services to consumers and businesses. ANA serves the needs of its members by providing marketing and advertising industry leadership, legislative leadership, information resources, professional development and industry-wide networking. Founded in 1910, the ANA maintains offices in New York City and Washington, D.C. More information is available at www.ana.net