Before theFederal Communications CommissionWashington, D.C. 20554

In the Matter of ))Sponsorship Identification Rules ) MB Docket No. 08-90And Embedded Advertising )

COMMENTS

W. Kenneth Ferree and Adam Thierer, respectively President and Senior Fellowof The Progress & Freedom Foundation, hereby file these Comments in response to theNotice of Inquiry and Notice of Proposed Rulemaking (the “Notice”), released June 26,2008, in the above-referenced proceeding.

If the Notice demonstrates anything, it is that a majority of the currentCommissioners live in a world wholly alien and unfamiliar to most Americans; indeed, aworld long forgotten if it ever existed. The Notice alludes menacingly to new, “subtleand sophisticated means” of commercial messaging,

to “sneaky commercials” (quoting asenescent order topped with nearly fifty-years of dust)

and to “vindicat[ing]” the policygoals of the Communications Act – as if the FCC must exact vengeance on those whowould try – horror of horrors – to sell goods and services to the American public.

The melodramatic tone of the Notice is intended, of course, to set the stage for theCommission’s latest effort to micromanage the free marketplace of ideas,

i.e.

, the media.Only by portraying “embedded” advertising as something new and nefarious can the

The views expressed in these comments are those of the authors and do not necessarily reflect the viewsof the directors, officers or staff of the Foundation.

Notice at 1.

Notice at 6, n.31.

Notice at 10.

2Commission hope to justify a new portfolio of intrusive and burdensome speechregulations in the name of preserving the “public’s right to know who is paying to aircommercials or other program matter on broadcast television and radio and cable.”

Such rhetorical sleight-of-hand in an effort to enhance the government’s power tocontrol the media recalls Justice Brandeis’ apothegmatic dissent in

Olmstead v. United States

: “Experience should teach us to be most on our guard to protect liberty when theGovernment's purposes are beneficent. Men born to freedom are naturally alert to repelinvasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk ininsidious encroachment by men of zeal, well-meaning but without understanding.”

For in this case, with scant evidence that the public either has been mislead byembedded commercial matter or that it wants more program time and space devoted tocommercial disclosures, a majority of the Commission is poised to insist upon more, notless, commercial material (by requiring more and longer “disclosures”), while impairingcreative freedom (by potentially requiring disclosures within program material) andimposing upon the First Amendment rights of programmers (by regulating the precisesize, manner, and duration of each disclosure).More troubling still, a majority of the Commissioners, each of whom individuallywould like to take “credit” for instigating this proceeding, regard this Notice as a separate

Notice at 1. In fact, as we have noted, there is nothing new or novel about embedded advertising incommercial media. See Adam Thierer, “Product Placement in Historical Context,” Progress & FreedomFoundation,

PFF Blog

, July 30, 2008,http://blog.pff.org/archives/2008/07/product_placeme.html. Alsosee: Jack Myers, “After Losing Janet Jackson Battle, FCC Extends Its Misguided Policies Into TV ProductPlacement Review,”

JackMyers.com

, July 29, 2008,http://www.jackmyers.com/commentary/media-business-report/25857959.html

Olmstead v. United States

, 277 U.S. 479 (1928) (Brandeis, J., dissenting).

3front in their war – open or understood – against commercial media.

Without being toocavalier with the analogy, this latest campaign, from what are now over-extended lines, isdoomed to wreck itself on the bulwarks of the First Amendment.Motivating the effort to expand the FCC’s regulation of private speech is a viewthat the Commission must protect the public from “stealth advertising” and “secret”advertisements that “prey upon unsuspecting minds.”

One would think that before suchloaded and sinister characterizations were used, the Commission might demand someevidence that the public is both 1) unaware of the commercial nature of productplacements or other embedded advertisements and 2) that some positive harm flowsdirectly from any such lack of awareness.In fact, however, there can be little doubt but that viewers and listenersunderstand that when “American Idol” judges drink from Coca Cola cups, promotionalconsideration was exchanged; when a radio host talks about the great dinner he ate atRuth’s Chris Steak House, the restaurant is a sponsor of the show; when contestants on“The Biggest Loser” are taught how to make desserts with “Jell-O” gelatin, theassociation is not serendipitous. When brand names are used in program material, thepublic generally understands that some form of commercial sponsorship is involved.

See, e.g.,

Notice, Separate Statement of Chairman Martin (noting that he asked his colleagues to initiatethis proceeding at a hearing on media ownership); Separate Statement of Commissioner Adelstein (notingthat he first began pushing for new sponsorship identification rules years ago in his “Response to theCommercialization of the American Media” speech). Characteristically, Commissioner Copps has alreadyconcluded that new rules are needed, despite the fact that the Notice only begins the process of developingan administrative record.

See

Separate Statement of Commissioner Copps (objecting to the use of an NOIbecause it will take longer to adopt final rules). One wonders ever more frequently why the Commissiongoes through the charade of requesting public comment in proceedings in which the Commissioners knowthe outcome from the start.