NEW YORK As the Federal Communications Commission ponders the notion of assessing fines for violent or obscene advertising as part of its probe of decency standards related to programming, the fallout has begun to raise concerns among advertisers and agencies—particularly in categories that often rely on envelope-pushing ads.
While the FCC has no jurisdiction over advertising, broadcasters eventually could refrain from running ads that they believe could raise the FCC's ire.
"What will happen is advertisers will spend lots of money crafting commercials that they can't air, which will have a direct, chilling effect on the ad industry," said Rick Kurnit, an advertising attorney with Frankfurt, Kurnit, Klein & Selz in New York.
Last week, network execs were called to Washington for hearings on indecency in programming. Meanwhile, Clear Channel canned a controversial radio shock jock and pulled Howard Stern's show in six markets. While any number of mainstream advertisers have steered clear of such fare, advertisers have found themselves in the eye of the indecency storm.
"Most agencies are not onto this issue, but they ought to be," warned Mark DiMassimo, CEO of DiMassimo Brand Advertising in New York."It is developing so fast, it's not top of mind with advertisers."
"Advertising is the most easily pressured profession in the world," added Andy Berlin, chairman of WPP Group's Berlin Cameron/Red Cell. "It's an easy target for non-governmental organizations—people against alcohol or nudity … From a marketing standpoint, we do whatever is good for our clients' brands. From a moral or political standpoint, I don't like censorship, but that doesn't mean I wouldn't practice it on behalf of my clients."
Chrysler Group's Dodge unit backed out of a deal to sponsor a Super Bowl pay-per-view program dubbed The Lingerie Bowl featuring underwear models playing football in panties. (One columnist for a daily newspaper likened Dodge's sponsorship to a "march to the gutter.") Miller's "Catfight," Coors' cheerleader ads and Anheuser-Busch's slate of spots that ran during the Super Bowl XXXVIII telecast have all faced fire.
Last year, radio shock jocks Opie & Anthony prompted a couple to have sex in St. Patrick's Cathedral in New York as part of a "Sex for Sam" Sam Adams beer stunt and were subsequently fired. Observers are wary that the indecency campaign will spill over to advertising, often a target of activists. Pam Anderson, who has starred in Sirius and Miller ads, among others, has become almost a one-woman lightening rod for commercial criticism.
"It's enormously disconcerting to think that advertisers and their agencies will have no comfort to know in advance whether their ad will cross the line," said consultant Mark Rodman of Beverage Distribution Consultants in Swampscott, Mass.
The execs called before a House committee last week offered a mix of contrition for past lapses, a promise to air more advisories about program content and public-service announcements about the program-blocking V-chip, and reassurances that they keep within decency standards regardless of the magnitude of possible fines. John Hogan, Clear Channel Radio president/CEO, for example, was the image of contrition as he testified before lawmakers, saying he was "ashamed" by the sexually explicit broadcast that drew regulators' attention to Florida DJ Bubba the Love Sponge. Clear Channel fired the DJ on Feb. 23, four weeks after he attracted a proposed record fine of $715,000, and more than two years after the offending broadcasts. The company knocked Howard Stern off the air in six markets on the eve of the hearing.
"It's not so much the money as it is our reputation, and we take that very seriously," said Alan Wurtzel, president, research and media development and chief executive for standards and practices at NBC.
Another hearing is planned before the full Commerce Committee this week, when legislators will decide what provisions to add to a bill that increases tenfold to $275,000 the maximum indecency fine.
Ideas already suggested by committee members include increasing the ceiling on fines even further to some percentage of an offending company's revenue, and requiring regulators to consider license revocation for repeat indecency offenders.
Courts traditionally have held that federal power to govern programming content rests on broadcasters' use of publicly owned airwaves. Cable is held to be beyond regulators' reach because its distribution network, unlike the airwaves, is private, and its programming is viewed only by those who elect to pay for it. Broadcasters nonetheless used Thursday's hearing to call for lawmakers to consider cable, too.
"Networks are being proactive," said Rep. Fred Upton, R-Mich., the subcommittee chair and a leader in moving the bill forward. "But these initiatives do not lessen the need for our legislation. … Will they still be as vigilant without the eyes of Congress staring down on them?"
The political pressure has added another layer of complexity to marketers' jobs. "Programming now has content ratings, and advertisers should probably have to adhere to the same guidelines," concluded Dave Tutin, evp, managing partner at Grey Global Group's darkGrey. "Advertisers should analyze more closely what they're getting noticed for. Just because you're getting noticed doesn't mean you're getting noticed for the right reasons."