The FCC's Investigation of "Subliminal Techniques:"
               From the Sublime to the Absurd
                              
                              
                      Press Statement
                     September 19, 2000
                              
                   Harold Furchtgott-Roth
                        Commissioner
             Federal Communications Commission
  
  
  
  A casual observer of media coverage over the past week of an advertisement,
  sponsored by the Republican National Committee, might reasonably come to the
  following four conclusions:
  
     · The advertisement clearly violates well-established FCC rules.
  
     · The advertisement contains what the FCC has determined to be a "subliminal"
     message.
  
     · The FCC has authority to regulate advertisers, such as the Republican National
     Committee.  
  
     · The FCC's investigation of this matter is both ordinary and routine.
  
  None of these conclusions is correct. 
  
  The FCC has no formal rules on "subliminal" advertising.
  
  The FCC has no formal rules on the use of "subliminal perception" techniques.  In fact,
  the Commission appears to have addressed the issue only twice.  In 1974, the agency
  issued a policy statement that the use of "subliminal perception" is "contrary to the
  public interest."  But policy statements are not enforceable rules.  Nor would it be
  appropriate for the Commission to fine a person for failure to comply with a policy
  statement.
  
  Since 1974, there has been only one instance in which the Commission has received and
  acted on a "subliminal" message complaint.  In that matter, KMEZ(FM) a radio station in
  Dallas, Texas, was merely "admonished for its repeated transmission of subliminal
  messages on November 19, 1987" during an anti-smoking program on behalf of the
  American Cancer Society.
  
  
  The FCC has no rules on what is, or is not, a "subliminal" message.  Consequently,
  there is no basis for it to determine whether any advertisement contains a
  "subliminal" message.
  
  In the past 26 years, the FCC has acted upon only one complaint about "subliminal"
  techniques in television.  It has never before considered such a complaint in the context
  of political advertising.  Consequently, there is no precedent, much less clear and
  established rules, to guide the Commission's evaluation of a complaint about
  "subliminal" messages in a political advertisement on television.  There is certainly no
  basis for Commissioners or Commission employees to speculate regarding what
  Commission standards might be for "subliminal techniques" in a political television
  advertisement. In short, the Commission has no basis even for drawing a conclusion
  about whether the commercial sponsored by the Republican National Committee comes
  within the category of "subliminal perception" techniques.
  
  The Commission has no authority to regulate advertisers, such as the Republican
  National Committee.
  
  Federal law authorizes the FCC to regulate its licensees, such as broadcasters.  The
  Commission does not regulate advertisers.  Thus, to the extent that the Commission's
  1974 policy statement on "subliminal techniques" has any force, it is only with respect to
  broadcasters.  Consistent with this principle, the 1974 statement plainly places the
  responsibility of compliance on broadcast licensees, not advertisers.  
  
  The FCC action is neither ordinary nor routine.
  
  Last Friday, the FCC sent letters to a large number of broadcast licensees, directing the
  broadcasters to submit information on the broadcasting of the advertisement placed by
  the Republican National Committee by the end of this week.  The letter makes no
  mention of the unusual, if not unprecedented, nature of both the complaint and the
  request for information.
  
  For one thing, the Commission's lightning swift response to allegations of a violation of
  an obscure and rarely used policy statement, in a case where there are no formal
  guidelines, is nothing short of extraordinary.  The FCC has many virtues; expeditious
  resolution of petitions and complaints is not a consistent one.  Some Commission
  proceedings have gone on for more than ten years.  The Commission's responses to court
  decisions vacating or remanding FCC rules are usually measured in months, not weeks or
  days.  By way of comparison, the Commission took five months to act the only other
  time it has considered a violation of its policy regarding "subliminal" advertisements,
  issuing a letter in May 1988 regarding an advertisement aired in November 1987.  It is
  most decidedly not the norm for the Commission to have acted so hastily here, within
  hours of receiving a complaint.
  
                           * * *
  
  It is difficult to understand the basis for--or to predict the outcome of--the current inquiry
  into "subliminal techniques."  The Commission has embarked on an unpredictable and
  hasty proceeding, with no clear precedent to guide it.  It is an awkward proceeding for the
  Commission to defend in the best of times; the weeks before a national election are
  unlikely to be the best time for a proceeding on political advertising. 
  
  
                         
  *  For more information regarding this release, contact Bryan Tramont in the Office of
  Commissioner Furchtgott-Roth at the FCC   Btramont@FCC.gov or 202-418-2000.