Background
This trend in commercial radio has been used in the past for sports broadcasts (“And now, time for our Budweiser player of the game.”) but in recent years has extended to broadcast station elements (“we are coming live from the the Acme Corporation Studios here in Riverton...”)
This has raised the question regarding the legality of these types of announcements in noncommercial educational radio.
Those who defend these types of announcements state that “they do not include calls to action, so they are OK”. As we have said numerous times, calls to action aren’t everything.
Analysis
The Communications Act does not just regulate the content of underwriting messages but also the scheduling of such messages. §399a(b) of the Communications Act states that:
Each public television station and each public radio station shall be authorized to broadcast announcements which include the use of any business or institutional logogram and which include a location of the corporation, company, or other organization involved, except that such announcements may not interrupt regular programming. (emphasis added)
The current statutory language of §399a comes from the House’s Public Broadcasting Amendments Act of 1981, which was engrossed into the Omnibus Budget Reconciliation Act of 1981. (See Section 1230, 95 Stat. 730, page 374.)
In the 1982 Memorandum Opinion and Order in BC Docket 21136 (90 FCC 2d. 895, 902 (1982)) (“1982 MO&O”), the Commission addressed a Petition for Declaratory Ruling filed regarding the impact of the which introduced the §399a(b) language above. In reaching their determination, the FCC depended highly on House Report 97-82 at section 24 (document not available online). The FCC quoted segments of the House Report in paragraph 12 of the 1982 MO&O where they stated in part:
..whereas Section 399A contains a caveat: the scheduling of donor announcements shall not interrupt regular programming. In other words, it is permissible to air such acknowledgements “at the beginning and end of programs . . . between identifiable segments of a longer program” or, in the absence of identifiable segments, in programming during “station breaks”, such that the flow of programming is not “unduly disrupted”.
The 1982 MO&O amended §73.503(d) of the Rules to read, in part, “However, acknowledgements of contributions can be made. The scheduling of any announcements and acknowledgements may not interrupt regular programming…” (original emphasis)
In the 1984 Memorandum Opinion and Order (97 FCC 2d. 255, 264 (1984)) (“1984 MO&O”), in paragraph 18, in response to a request for interpretation or clarification by the Wisconsin Educational Communications Board and Ohio State University, the FCC clarified that
“[R]egular programming encompasses those programs which the public broadcaster ordinarily carries, but does not encompass those fundraising activities that suspend or alter their normal programming fare.”
The last FCC Order to breach the subject on “interrupting programming” was Third Party Fundraising. In footnote 2, the FCC only repeats the points originally made in the 1982 MO&O where it comes to the definition of “regular programming”.
Therefore, there has been no reinterpretation of the definition of "regular programming” since the original 1982 determination. Therefore, this is what we must depend on to reach an opinion.
Non-attorney Opinion
While programming trends have evolved in the past 40+ years, the FCC’s interpretations of the Communications Act where it comes to the definition of “interrupting programming” have not.
In order to recognize an underwriter, there must first be a break in the programming. In other words, the program content must stop before the underwriting acknowledgement can begin.
For example, the following script could be considered as prohibited content:
“Good morning Riverton. You are listening to WVWA and the Clyde Ankle Morning Show. It’s current 7:42 and we are now joined here in the WVWA Acme Studios by our friend Herbert Humperdink, who has been researching how widgets are being used to study the migration of moray eels in the South Pacific Ocean…”
Also potentially prohibited:
“Thank you, Herbert for such an enthralling discussion about eels. Let’s now go check on what’s happening outside with Natalie Buttermilk in the Jimmy’s Blue Crab Emporium Weather Center with the Joe’s Hardware weather forecast. It’s going to be another muggy day here in Riverton. Sunny and hot with a high of 85 degrees. Overnight, expect a low of 68 degrees. At the Jimmy’s Blue Crab Emporium Weather Center, it is currently 72 and warming up. For WVWA Weather and Joe’s Hardware, located at 123 Main Street here in downtown Riverton, I’m Natalie Buttermilk.”
Both of those examples identified the underwriter, but did so in casual conversation during a program as opposed to breaking from the program in order to make the sponsorship identification.
The more appropriate approach would be:
“The Clyde Ankle Morning Show on WVWA is made possible by The Acme Corporation. Located at 234 Main Street in Riverton. Their phone number is 555-1414. [pause] Good Morning Riverton, we are back and now coming up on the Clyde Ankle Morning Mayhem, we have our friend Herbert Humperdink to discuss eels.”
“Thank you Herbert. This guy knows a lot about eels. We’ll be back with more insanity. [pause] WVWA’s studio facilities sponsored by the Acme Corporation at 234 Main Street in Riverton, their phone number is 555-1414. Our weather station is sponsored by Jimmy’s Blue Crab Emporium serving crabs and other seafood. They are at 202 Elm St in Riverton. More information at Joes Blue Crab dot com. This weather report on WVWA is brought to you by Joe’s Hardware, featuring toilets from Kohler and Toto. They are located at 123 Main Street in downtown Riverton. [pause] With WVWA weather, I’m Natalie Buttermilk….”
Top of the hour (Legal) IDs:
Since top of the hour legal IDs are normally made in station breaks, the use of a named studio can be appropriate here.
"[pause] This is WVWA-LP, Riverton, Sharptown, Mardela Springs. Live from the Acme studio. Acme, featuring anvils and rocket sleds is located at 123 Main Street. Their phone number is 555-4111. Thank you Acme for sponsoring our studio. [pause] I'm Clyde Ankle and this is the Clyde Ankle show. Today on the big show..."
Conclusion
In our interpretation of §399a(b), House Report 97-82 and the FCC’s 1982 and 1984 orders, that underwriting acknowledgements must be made during station breaks and therefore cannot be embedded into the flow of the program in progress.
Therefore, in our opinion, while you can name studio or program after a sponsor and use it for “off-air” promotion (such as on social media or website), you cannot use it in causal conversation during a program. You must stop the program first and go into a break before mentioning any underwriters. Once programming is stopped, then you can use it as part of an underwriting acknowledgement or part of the station's legal ID. There must be another "stop" before going back to regular programming.
Also, for full-service NCE stations, if you have a specific program that is being sponsored, the identification of that sponsor must be placed on the donor list that goes into your station’s public inspection file. LPFM stations should keep a donor list in their station records in the event there is an issue in the future. LPFM stations are not required to publicize any donor lists like full-service stations have to.
NOTE: This information was not written by, nor reviewed by an attorney and should not be construed as legal advice. REC is not responsible for any consequential damages that may arise from the use of this advice.
