The FCC's Investigation of "Subliminal Techniques:"
From the Sublime to the Absurd
September 19, 2000
Federal Communications Commission
A casual observer of media coverage over the past week of an advertisement, sponsored by the Republican National Committee, might reasonably come to the following four conclusions:
None of these conclusions is correct.
The FCC has no formal rules on "subliminal" advertising.
The FCC has no formal rules on the use of "subliminal perception" techniques. In fact, the Commission appears to have addressed the issue only twice. In 1974, the agency issued a policy statement that the use of "subliminal perception" is "contrary to the public interest." But policy statements are not enforceable rules. Nor would it be appropriate for the Commission to fine a person for failure to comply with a policy statement.
Since 1974, there has been only one instance in which the Commission has received and acted on a "subliminal" message complaint. In that matter, KMEZ(FM) a radio station in Dallas, Texas, was merely "admonished for its repeated transmission of subliminal messages on November 19, 1987" during an anti-smoking program on behalf of the American Cancer Society.
The FCC has no rules on what is, or is not, a "subliminal" message. Consequently, there is no basis for it to determine whether any advertisement contains a "subliminal" message.
In the past 26 years, the FCC has acted upon only one complaint about "subliminal" techniques in television. It has never before considered such a complaint in the context of political advertising. Consequently, there is no precedent, much less clear and established rules, to guide the Commission's evaluation of a complaint about "subliminal" messages in a political advertisement on television. There is certainly no basis for Commissioners or Commission employees to speculate regarding what Commission standards might be for "subliminal techniques" in a political television advertisement. In short, the Commission has no basis even for drawing a conclusion about whether the commercial sponsored by the Republican National Committee comes within the category of "subliminal perception" techniques.
The Commission has no authority to regulate advertisers, such as the Republican National Committee.
Federal law authorizes the FCC to regulate its licensees, such as broadcasters. The Commission does not regulate advertisers. Thus, to the extent that the Commission's 1974 policy statement on "subliminal techniques" has any force, it is only with respect to broadcasters. Consistent with this principle, the 1974 statement plainly places the responsibility of compliance on broadcast licensees, not advertisers.
The FCC action is neither ordinary nor routine.
Last Friday, the FCC sent letters to a large number of broadcast licensees, directing the broadcasters to submit information on the broadcasting of the advertisement placed by the Republican National Committee by the end of this week. The letter makes no mention of the unusual, if not unprecedented, nature of both the complaint and the request for information.
For one thing, the Commission's lightning swift response to allegations of a violation of an obscure and rarely used policy statement, in a case where there are no formal guidelines, is nothing short of extraordinary. The FCC has many virtues; expeditious resolution of petitions and complaints is not a consistent one. Some Commission proceedings have gone on for more than ten years. The Commission's responses to court decisions vacating or remanding FCC rules are usually measured in months, not weeks or days. By way of comparison, the Commission took five months to act the only other time it has considered a violation of its policy regarding "subliminal" advertisements, issuing a letter in May 1988 regarding an advertisement aired in November 1987. It is most decidedly not the norm for the Commission to have acted so hastily here, within hours of receiving a complaint.
It is difficult to understand the basis for--or to predict the outcome of--the current inquiry into "subliminal techniques." The Commission has embarked on an unpredictable and hasty proceeding, with no clear precedent to guide it. It is an awkward proceeding for the Commission to defend in the best of times; the weeks before a national election are unlikely to be the best time for a proceeding on political advertising.
* For more information regarding this release, contact Bryan Tramont in the Office of Commissioner Furchtgott-Roth at the FCC - Btramont@FCC.gov or 202-418-2000.