Underwriting credit copy is hard to get right. FCC copy guidelines are rarely black and white and evaluating copy closely can take time and thoughtful discussion. The blurry middle ground of sponsor messaging can result in tricky conversations with sponsors, many of whom have strong preferences about how their spot is worded. Some sponsors want to walk right up to the edge of the FCC’s guidelines. And some misunderstand public media underwriting altogether. For as appealing as public media underwriting is compared with traditional advertising, navigating the restrictions of credit copy can be just plain hard. 

It may be tempting to look past these complexities in the interest of keeping sponsors happy and saving time. But two experts who specialize in FCC law, Garvey Schubert Barer Principal and Managing Director Brad Deutsch and PBS Director of Funding Policy Dan O'Melia, emphasized during a recent session at the 2019 Public Media Development and Marketing Conference that the long-term financial and time costs of being found out of compliance by the FCC can be crippling for some organizations.

This was a timely discussion as all public broadcasters will be up for license renewal over the coming two to five years. Brad pointed out that there is no FCC “Big Brother” watching; The FCC doesn’t have compliance officers checking stations around the country. FCC complaints are issued by our listeners and community. Every station up for license renewal must air messages essentially saying that if anyone has any problems with the station, they should call the FCC to complain. Those announcements may be heard by disgruntled past employees, competitors, or simply listeners who believe we are getting too commercial-sounding. So, it is important to get our ducks in a row.

On Thursday, January 20, 2018, President Trump signed the Agriculture Improvement Act of 2018, better known as "the farm bill," into law. In doing so, a small subset of cannabidiol (CBD) – a product derived from cannabis that has been promoted as non-intoxicating and has become trendy as a “wellness” product – has been legalized.

Marijuana is classified as a Schedule I drug under the federal law called the “Controlled Substances Act.” Even though there has been a recent wave of marijuana legalization at the state level, there has been no change to the federal law making marijuana illegal. 

This newly-signed law creates a small exception for hemp (with tetrahydrocannabinol (THC) concentration of 0.3% or lower) to be grown without violating the Controlled Substances Act if the grower receives approval from a state, Indian tribe, or the United States Department of Agriculture (USDA) and follows the applicable regulations.

However, the Food and Drug Administration (FDA) has not changed its position that CBD is not an approved food ingredient, food additive, or dietary supplement.  

Over the next several weeks, many public television licensees will have the opportunity to announce the results of their participation in the FCC’s National Broadband Plan, either as a seller of spectrum, as part of a channel-sharing agreement, or as a result of moving from a high-V or low-V channel. Proceeds from these transactions could result in millions of dollars of revenue for these stations.

Of course, such a windfall would be good news for any organization. But it could also create unintended consequences should donors fail to understand how the funds fit into a station’s long-term financial sustainability.

WITF, a joint licensee in Central Pennsylvania, grappled with this very prospect as they approached their own participation in the spectrum auction. In response, they assembled a board committee and a staff team that included president Kathleen Pavelko and senior VPs Ron Hetrick (chief financial officer) and Ron Kain (chief technology officer). Former board chair Tim Reeves, who also happens to be principal at Allen & Gerritsen, a nationally-renowned public relations firm, was tapped to devise a communication plan, should proceeds from the auction be received.

Among the many thousands of emails containing underwriting questions that I’ve received over the past two decades, one of the recurring questions is about public service announcements (PSAs). Do we have to run them? Are they free, or can we require payment to air them?

The emailed questions I received all revealed that nonprofit organizations feel that the radio station should air them for free because it’s a “public service” message.

At one point in time, broadcast stations were required by the Federal Communications Commission (FCC) to allocate a certain amount of time to public service. This meant that they had to allocate a certain amount of air time to nonprofit groups or make other announcements that are deemed to serve the community.

So, just what is a public service announcement?

The FCC defines a PSA as "any announcement for which no charge is made and which promotes programs, activities, or services of federal, state, or local governments (e.g., recruiting, sale of bonds, etc.) or the programs, activities or services of non-profit organizations (e.g., United Way, Red Cross blood donations, etc.) and other announcements regarded as serving community interests, excluding time signals, routine weather announcements and promotional announcements."

The regulations used to be that one half-hour per week was the amount of time needed to be given to community service. However, the FCC has relaxed this standard and has, for the most part, left the PSA requirements to be dealt with by local broadcast associations.

Now let’s travel back 100 years for a bit of public service announcement history.

Do you remember the poster with an image of Uncle Sam and the wording, “I want you for U.S. Army”? It was originally published as the cover for the July 6, 1916, issue of "Leslie's Weekly" (an American illustrated literary and news magazine founded in 1852 and published until 1922) with the title "What Are You Doing for Preparedness?" This “public service” war-effort message with the portrait of Uncle Sam went on to become one of the most recognized posters in the world. The campaign that used that portrait is what we would refer to as a public service announcement (PSA).

Okay, history lesson is over.

When it comes to whether radio stations should provide PSAs for free, or charge for them, the answer is: it’s up to your station.

"If you don't know where you're going, any road'll get you there."

- paraphrase of an exchange between Alice and the Cheshire Cat 
in Lewis Carroll's Alice in Wonderland

Once upon a time, underwriters were acknowledged solely by the name of their company. Now fast-forward several decades. Today some underwriting sponsors and underwriting sales people have become very good at wordsmithing for writing copy. That’s okay as long as the copy follows the FCC’s and your station’s guidelines for underwriting credits.

You must keep your destination in mind as you craft the copy that gets you there.

Be up front.

Writing copy that’s compliant with rules and guidelines is easy, especially when you’ve been proactive with underwriters about copy guidelines. This means it's essential to explain these guidelines to your new underwriter long before it’s time to write the copy. This should happen:

a) During early discussions about the uniqueness and value of public media underwriting or...

b) As part of your sales proposal. The copy should be based upon two to four descriptions of the underwriter's business that he has said he wants your listeners to know, (he'll have shared these business specifics with you during your very first meeting).

But let’s hit rewind and go back a bit. Does your station have a credit copy approval process to help you know where you’re going?

We all know that underwriting provides incredible value to our sponsors. Why then, when we’re talking with a prospective underwriter about their on-air message, do we take a position of weakness by saying something such as, “We can’t say that in an underwriting credit”?

Co-authored by Judith A. Endejan, attorney at Garvey Schubert Barer

As if public fundraising didn’t have enough challenges! In 2015 the Federal Communications Commission (“FCC”) issued a declaratory ruling on robocalling that could make public development staffs head for the aspirin bottles. Some nonprofits engage in “robocalling” as part of fundraising. This practice involves calls or text messages (the ruling affirms that SMS text messages are covered by the TCPA) made either with an automatic telephone dialing system (“autodialer”) or with a pre-recorded or artificial voice. It even includes internet-to-phone text messaging sent from a computer to a wireless phone. Robocalls can be used for many purposes as an efficient way to connect with supporters. However, their use is subject to restrictions in the Telephone Consumer Protection Act (“TCPA”), as interpreted by the FCC.

The most recent pronouncement by the FCC attempts to clarify its existing rules but really highlights the risks of robocalling that nonprofits need to be aware of. Of course, the safest practice might be to cease robocalling because the TCPA does not apply to calls or texts that are placed manually (i.e., by a person). If that does not work for your organization, then be aware of key aspects of the FCC’s “clarified” rules.*

1. The Basics

Here is a brief refresher on the elements of the TCPA:

For-profit:

• Robocalls require express written consent.
• Cannot call those on National Do Not Call registry (must search it every 31 days, and must maintain company-specific DNC list.)
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Nonprofit:

• Robocalls require prior express consent (oral or written) and no consent for residential landline.
• Exempt from DNC restrictions.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Telemarketers acting for nonprofit:

• Robocalls require prior express consent (oral or written) and no consent for residential landline.
• Exempt from DNC restrictions but must comply with entity-specific DNC requirements under TSR.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

Mixed commercial calls (i.e. gives gifts for contributions):

• Robocalls require prior express written consent
• Exempt from DNC restrictions.
• Must ID organization and telephone # at start of call.
• Consent cannot be transferred.

2. The Question of Technology: Are You Really Robocalling?

Today’s world is exploding with new devices for communication and apps that can be used on new communications devices. Creative marketers collaborate with techno-geeks to devise innovative ways to reach out to mass markets via texts, emails, and calls. Whether the equipment involved constitutes an “autodialer” can be a difficult question to answer under the ruling, which defines “autodialer” quite broadly. According to the FCC, an autodialer is equipment that has the capacity to store or produce and dial random or sequential numbers even if it is not used for that purpose at the time of calling. “Capacity” is not limited to the current configuration of the device but includes “potential” functionalities.

The FCC recently amended its requirements (47 C.F.R. § 73.1216) concerning station-conducted¹ contests to allow stations to post contest rules online rather than announce them over the air. The revised FCC requirements permit, but do not mandate online disclosure of contest rules.

What’s acceptable wording and what’s not in an underwriting message?

Credit copy is the lifeblood of underwriting. Federal law mandates that public media underwriters be identified on-air, and that the description of their products and services remain non-promotional. These announcements, and the Halo Effect that these underwriters enjoy, are the main reasons underwriters choose to make public media part of their advertising portfolio.