“In the U.S., broadcasting was a form of speech that called for regulation mainly under the guise of spectrum scarcity. Since there were not enough spectrums, common wisdom of the FCC and the courts suggested rules needed to make sure that the dominant position of those fortunate to acquire licenses was not abused.” (Gould, et.al, 2000, p.41)
While the broadcasting industry enjoys immunity from prosecution, commercial speech does not. In 1942, the Supreme Court passed a ruling that made clear the non-applicability of First Amendment rights to “purely commercial advertising”. (Karrh, et.al., 2007, p.142) But, subsequent processes of “fine-tuning” (another euphemism) the decree, has made it practically meaningless.
Section 317 of the Communications Act of 1934 is another case in point. It states that “All matter broadcast by a broadcasting station for which any type of monetary
(or other) compensation is provided, needs to be identified as such.” (Balasubramanian, 2006, p.120) Section 507 of the same Act mentions a “requirement from those providing and from those receiving the compensation to notify the station of the received reward.” (Balasubramanian, 2006, p.120) Thus, the entertainment production houses as well as the sponsors will be liable for any breach of disclosure. These regulations were followed by a positive development when the Federal Communications Commission (FCC) imposed a stringent code of conduct on the industry. Rule 73.1212 of the FCC states that
“When a broadcast station transmits any matter for which money, service or other valuable consideration is either directly or indirectly paid or promised to, or charged or accepted by such station, the station, at the time of the broadcast, shall announce that such matter is sponsored, paid for or furnished, either in whole or in part, and by whom or on whose behalf such consideration was supplied.” (Balasubramanian, 2006, p.120)
Failure to follow these rules invited hefty fines or imprisonment up to a year (in some cases both were applicable). Yet, with the growing number of product placement instances every day, the FCC has not taken any concrete steps to enforce regulations. Every now and then some rhetoric is thrown in to keep the public deluded, but nothing substantial is seen yet. What is even more unfair is the fact that the United States government itself uses product placement strategies during election campaigns. So, who will regulate the regulator? (Gurevitch, 2010, p.372)
A public interest advocate group “Commercial Alert”, whose basic motto is to “keeping commercial culture within its proper sphere” sent a report to the FCC, highlighting the number of occasions in which the latter had taken no action on the deviant corporations. Some of the defaulting corporations include National Broadcasting Corporation, UPN, Fox Network, Walt Disney, CBS and Warner Brothers (some of the biggest media houses in the country). Prompt came a reply. Not from the FCC, but from an industry representative association “Freedom to Advertise Coalition”. The coalition’s response was a mix of false claims and false beliefs. However, it failed to provide proper justifications for the practice. (Gould, et.al, 2000, p.41)
Hence, in conclusion, it is beyond any reasonable doubt that laws and law enforcement agencies are unfavorable to a large majority of the public. The existing loopholes and poor law enforcement mechanisms in the country should motivate public representatives to bring the situation under control. If artistic expression and creative output is influenced or hindered by commercial interests then very soon the media will lose its audience. They may also lose public trust and goodwill.