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This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974).
Re: Enforcement Bureau Letter Dismissing a Request by Senators Ron Wyden and John Breaux for an Investigation Regarding Allegations of the Broadcast of Subliminal Advertising Provided by the Republican National Committee
The FCC Enforcement Bureau has issued a letter improperly dismissing a request for investigation into the alleged use of subliminal advertising by the Republican National Committee during the 2000 presidential campaign. The letter from Senators Wyden and Breaux said they had “reason to believe that broadcasters are airing television advertisements that contain subliminal messages.”1 They said the advertisement “displayed the word ‘RATS’ as it attacks Vice President Gore’s prescription drug proposal.”2 The letter cited a New York Times report that the word ‘RATS’ “appears for only one-thirtieth of a second, and it is in capital letters that are larger than any other words contained in the commercial.” Finally, the letter directed the Commission’s attention to a 1974 Public Notice in which this Commission set forth a policy proscribing subliminal advertising.
The 1974 Public Notice provides:
We believe that use of subliminal perception [technique] is inconsistent with the obligations of a licensee, and we take this occasion to make clear that broadcasts employing such techniques are contrary to the public interest. Whether effective or not, such broadcasts clearly are intended to be deceptive.
The same policy statement cited approvingly a definition of subliminal advertising as, “Any technique whereby an attempt is made to convey information to the viewer by transmitting messages below the threshold level of normal awareness.”3
In response to the request for an investigation, the Enforcement Bureau sent inquiries to 217 stations asking, (1) whether they aired the advertisement, (2) what dates it aired, (3) how many times it was aired and (4) whether the licensees or any of their officers, directors or employees knew it contained the word “RATS” prior to airing it.4 Finally, the licensees that broadcast the advertisement even though they knew it contained the word “RATS” were asked to explain the facts and circumstances surrounding their decision to do so. The Bureau reported the results.
Of the 179 stations that responded that they had aired the advertisement, 162 indicated that, when they aired the advertisement, they were not aware that the advertisement contained the word “RATS.” Of those that aired the advertisement knowing the word “RATS” appeared in it, several stations stated that they did so because they were able to see the word and, therefore, they believed that it was not subliminal.
The Bureau concluded: “Based on our review of the responses submitted by the stations, we conclude that no further action is warranted.”
The Bureau apparently misperceived its duty under the 1974 policy statement and attempted to answer the wrong question. The policy explicitly proscribes the broadcast of material that constitutes subliminal advertising. Whether or not a particular message is subliminal is a question of fact, i.e., whether “an attempt is made to convey information to the viewer by transmitting messages below the threshold level of normal awareness.”5 Only two pieces of evidence are in the record on this point. First, that the word “RATS” was visible for “one thirtieth of a second.” Second, 162 of 179 broadcasters did not notice the word “RATS” was part of the advertisement before broadcasting it. Without further development of the factual record it is inconceivable that the Bureau could have determined the message did not constitute a broadcast of subliminal advertising. In fact, the response by the broadcasters demonstrates that over 90% of them did not even notice the word RATS before running the advertisement.
The Bureau rendered a legal conclusion that, “no further action is warranted,” without ever answering the factual question called for by the Commission’s policy on subliminal advertising. The more appropriate approach would have been to determine if the allegations in the complaint letter were accurate and then, whether such facts proved the use of a subliminal perception technique.
1. See September 12, 2000 Letter to Chairman William E. Kennard.
3. See Public Notice Concerning the Broadcast of Information By Means of “Subliminal Perception” Techniques, 44 FCC 2d 1016, 1017 (1974).
4. See Dismissal Letter at 2.
5. See supra. n3