Read CMD's charges about
"Nelson's Rescue Sleep"

If you watched a Comcast CN8 show called "Art Fennell Reports" a little over a year ago, you may have seen a feature about "non-prescription sleep aids." Actually, the program focused on only one such product: "Nelson's Rescue Sleep," and included the comment that "If you are one of the estimated 70 million Americans who have trouble sleeping - Rescue Sleep may be what you're looking for."

What Comcast did not tell its viewers, the Federal Communications Commission charged today, is that Comcast based much of that feature on a Video News Release (VNR) commissioned by Nelson's Rescue Sleep. The cost of the omission: $4,000, the FCC declared.

"Commission rules are clear: viewers have a right to know who is trying to persuade them so they can make up their own minds about what they are presented," Commissioner Jonathan Adelstein said in a press statement released right after the decision.

Comcast responds that it isn't so clear, declaring that they are "perplexed" by the FCC's Notice of Apparent Liability, which they will challenge soon.

"The segments in question were chosen by journalists in the course of reporting, and Comcast received no consideration or benefit by using the material," Comcast's Sena Fitzmaurice said in a short press release sent to LLFCC.

This penalty represents the fruit of a two year long campaign by the Center for Media and Democracy (CMD) and Freepress against "fake news"—undisclosed VNRs used in news and public affairs features: VNRs about flowers paid for by the flower company; Halloween candy paid for by the candy company. What gets people upset is that nobody tells the viewer that the VNR is really a commercial.

LLFCC had a feeling that movement on this issue was pending when FCC chair Kevin Martin declared at last Thursday's hearing on media ownership that "there is a growing concern that our sponsorship identification rules fall short of their ultimate goal: to ensure that the public is able to identify both the commercial nature of the programming as well as its source."

"I believe it is important for consumers to know when someone is trying to sell them something and that it is appropriate for the Commission to examine these issues," Martin told a crowd of about 800 people in Chicago. He usually doesn't make these sort of comments unless something's coming down the bend.

But Comcast may come back at this decision hard, challenging its somewhat complex legal foundation. The cable giant has allies too, among them the influential Radio-Television News Directors Association (RTNDA) and the National Association of Broadcast Communicators, a trade group for VNR companies created in response to the CMD campaign.

The FCC bases its ruling on Section 76.1615 of the Communications Act. The paragraph says that a broadcaster must identify the sponsor of programming material whenever the operator takes money or some other valuable in exchange it. Comcast protests that it didn't take any payment in this case.

But the statute also says that if a cable television company produces "origination cablecasting"—meaning original programming for itself—and if that programming includes material (take a deep breath) “furnished in consideration for an identification in a broadcast of any person, product, service, trademark or brand name beyond an identification which is reasonably related to the use of such service or property on the broadcast,” then it runs afoul of the statute just as much as an undisclosed VNR which some company paid a broadcaster to run.

LLFCC added the italics. In other words, when there is "too much focus on a product or brand name in the programming," as the FCC puts it, it's unlawful fake news even though Comcast did not get cash to run the piece.

"We conclude that even though CN8 received this material at no charge," the FCC's Media Bureau says, "it falls within the exception specifically set forth in the rule and that a sponsorship announcement was thus required."

Freepress and the Center for Media and Democracy say they're happy about the decision, but hope this is just the beginning.

"We're pleased to see the FCC is finally waking up to the issue of fake news," Craig Aaron, communications director of Free Press, said today. "But the fine levied against Comcast is just the tip of the tip of the iceberg. Video news releases dressed up as real news were uncovered at more than 100 stations. We hope the FCC will soon fine those stations and issue clear guidelines to end the epidemic of fake news once and for all."

Comcast says that they will "reiterate" their arguments "in our response to this Notice."