Public Airwaves Open for Ads

Originally posted: April 30, 2012

by Jeffrey M. McCall, professor of communication at DePauw University and author of Viewer Discretion Advised: Taking Control of Mass Media Influences.

The effort to have public broadcasters fend for themselves financially got a big boost recently from an unlikely source — the normally left-leaning 9th Circuit Court of Appeals in California. In a 2-1 decision, an appeals panel opened the door for noncommercial broadcasters to sell political advertising, negating a longstanding federal prohibition.

Budget cutters on Capitol Hill have long targeted the Corporation for Public Broadcasting. The budget hawks say taxpayer money should not support programming that can’t pay for itself in a free marketplace. Other critics complain that tax money should not support programming they claim is ideologically driven.

The recent ruling is a victory for the Minority Television Project, a nonprofit corporation that operates KMTP-TV in the San Francisco area. KMTP promotes itself as a provider of multicultural programming serving underrepresented groups. KMPT sued the Federal Communications Commission on First Amendment grounds, seeking the right to fund its operation by selling commercials. KMTP claimed the government restriction of paid advertising on non-commercial channels was an “unconstitutional content-based restriction on speech.” KMTP and the FCC are quite familiar with each other. The FCC has fined the station thousands of dollars during the last decade for airing commercials.

The court majority sided with KMTP, striking down as unconstitutional the ban on paid advertising for public issues and political entities. The court left in place the restriction against advertising by for-profit companies selling “goods and services.” It is just a matter of time, however, before KMTP or another public broadcaster seeks to have the goods-and-services advertising ban lifted, too. Product advertisers also have free speech rights to get their messages out.

Public broadcasting already does look increasingly like commercial television. Many public broadcasters air “enhanced” underwriting announcements to identify corporations that help fund the programming. While these announcements are not technically advertisements, the corporations clearly benefit from the visibility and image enhancement.

Judge John Noonan, in a concurring opinion, sensed that commercials have already entered the noncommercial arena. He wrote, “I have seen announcements that to my mind are ads . . . I have watched as a pest control company has displayed the power of its techniques to eliminate a bug, a promotion of its services, one would suppose.”

Interestingly, KMTP crows on its website that it gets no funding from the Corporation for Public Broadcasting or any other government entity. So, while KMTP gets no government funding, the decision to allow it to sell political commercials will still impact those stations that do receive CPB funding. This decision provides more support for those budget cutters who want all public broadcasters to pay their own way, in that another revenue stream is now available to replace tax dollars.

In addition to efforts in Congress to cut CPB’s budget, state legislatures in several states — such as Rhode Island, Oklahoma and South Carolina — are discussing the removal of state dollars that subsidize public broadcasting. The amount of money from both federal and state coffers that goes into public broadcasting is relatively low (CPB receives about $500 million a year), but when budgets get squeezed, such expenses seem like a luxury.

In a strong dissent, Judge Richard Paez said the ruling to allow political ads on noncommercial stations “could jeopardize the future of public broadcasting.” The character of educational broadcasting is forever altered once the funding model changes and the uninterrupted nature of programming changes. In addition, programming that must seek the popular support required by advertising will probably not look like the programs we are accustomed to seeing on public broadcasting.

Public broadcasting has served an important role in our nation’s media landscape. In the 40-plus years since Congress created the CPB, however, many other channels have entered the arena to provide arts, public affairs and educational programs. Unless the FCC appeals and wins, Judge Paez’ warning about the future of public broadcasting will likely be prophetic.

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