The Impact Of The Janet Jackson "Incident" On Advertising How the Costume Malfunction Is Likely To Raise The Standards For Taste And Decency In Advertising On Network Television

Saturday, May 1, 2004 - 01:00

That shocking moment from CBS' February 1st broadcast of the Super Bowl will not soon be forgotten. Reportedly the most "Tivo'd" moment in history - the baring of Janet Jackson's breast during the now infamous Half Time Show - the "incident" has drawn strong fire from lawmakers and consumers alike that will have repercussions on more than just network programming for the foreseeable future.
The Incident

By now, we all know the story. The "costume malfunction" was seen by millions of viewers, leading to public outrage, a swift response from all parties involved (including CBS and its parent company Viacom, MTV (also a Viacom company), and the NFL and the most complaints ever logged by the Federal Communications Commission (over 500,000) for a single incident. Shortly thereafter, the FCC began its crackdown on indecency, levying huge fines on, among others, Viacom and Clear Channel for the broadcast of certain Howard Stern shows, and Congress took steps to raise fines against indecent broadcasters through the Broadcast Decency Enforcement Act of 2004, which is expected to be enacted prior to the summer. A number of lawsuits relating to the broadcast were also filed against CBS, MTV, Viacom and others.

The consequences of all this activity have already been felt in a real way in the entertainment industry. Some of the fallout included the following: CBS announced a five-minute broadcast delay (both audio and video) to deal with any issues arising out of the Grammy Awards; ABC followed suit at the Oscars; the FCC reversed a decision by its enforcement bureau and decided to fine U2 lead singer Bono for indecency as a result of uttering an expletive at last year's Golden Globe Awards; Clear Channel Communications announced a zero tolerance policy for indecency, fired Florida DJ Bubba the Love Sponge and stopped carrying Howard Stern broadcasts; and Victoria's Secret decided to drop its annual fashion show.
Television Advertising Is Being "Watched"

While it was a programming segment that triggered most of the furor - and programming that has borne the brunt of the reaction - the discussion has broadened to include the commercial advertising contained in the 2004 Super Bowl broadcast, and advertising in general. Instead of being lauded for their comedic or creative genius, many of the commercials (largely overshadowed by the Janet Jackson incident to the chagrin of the advertisers) were highly criticized for their lack of good taste, with a few being cited in the press as being particularly questionable.

Indeed, during a quickly scheduled hearing held by the Telecommunications and the Internet subcommittee of The House Energy and Commerce Committee, which took place just ten days after the Super Bowl, the Committee made it clear that it was not just programming material that may come under scrutiny. At the hearing, a television advertisement for Universal Picture's new motion picture "Van Helsing," which appeared during the Super Bowl broadcast, was criticized for being inappropriate for that time period due to all of the brutality and gore it contained. FCC Commissioner Michael Copps said that broadcast advertising, and not just the programming, should be examined. Further, one congressman wondered if obscenity fines should also apply to violent or obscene advertising as well as programming, and whether advertising revenues should be one of the determining factors with respect to the level of fines imposed.

In response to the concerns raised regarding the "Van Helsing" commercial, Mel Karmazin, Viacom President and COO, stated that CBS would reexamine its standards and practices for commercials and would review its guidelines for "taste" in programming and in advertising.
Television Network Standards And Practices / Advertising Guidelines

A review and revision of network advertising guidelines could have significant implications for advertisers. In addition to the myriad of state and federal laws that an advertiser must comply with when it produces and distributes an advertisement, advertisers that plan to air a television commercial on network television (CBS, NBC, FOX, and ABC, among others) must also comply with applicable network television advertising guidelines. These guidelines set forth, in a general way, the rules that an advertiser must comply with in submitting an advertisement for broadcast, including requirements relating to taste. They are purposely somewhat vague, allowing the networks greater flexibility in the review and approval process. As an example, it appears that the taste standards were actually easing up over the years leading to the Super Bowl broadcast. There had always been a dearth of commercials which raised taste concerns at the networks, with many coming closer and closer to the line, and a few that crossed over it. CBS once rejected a commercial for an advertiser which featured a flatulent swimmer, but the recent flatulent horse which appeared during the Super Bowl was deemed to be acceptable. Given Mr. Karmazin's statement, however, the pendulum is poised to swing back.

While no changes with respect to CBS' (or any other network's) review process have been announced as of yet, it is likely that advertising content will come under much stricter scrutiny regarding the issues of taste and violence. The flexibility that the networks have retained in their general guidelines will now allow the subjective review to become more conservative in accordance with the changing tide, and the networks have unofficially acknowledged that to be the case.
Potential Production Control Over Advertisements

This recent debacle could also see changes with respect to the way in which advertising is reviewed for big name events or programs with high numbers of viewers, such as the Super Bowl, the World Series, awards shows, and season or series finales. The NFL or Major League Baseball, for example, could take their lead from the Academy of Motion Picture Arts and Sciences and require that commercials not only be scrutinized by the networks' Standards and Practices Departments, but by their own organization as well. Since 1976, the Academy has been reviewing all commercials before broadcast and, in an effort to preserve the sanctity of the show, put rules in place which precluded the inclusion of certain product categories including feminine hygiene products, pharmaceutical advertisements and the mention of the "Oscars" or the appearance of an Oscar nominee or presenter in any of the advertisements.
Practical Suggestions In Uncertain Times

It has always been somewhat difficult to accurately gauge how the networks may react to a commercial that raised issues of taste, decency and violence. Since February, advertisers are even more limited in their ability to determine how the networks may react to a particular advertisement with any degree of accuracy. So, what can you do to make sure that your television commercial advertising is suitable for network television viewing? Here are a few suggestions:

• Review and become familiar with the networks' advertising guidelines.

• Deal with issues of taste and decency before the commercial is produced to avoid the cost of revising the spot after the fact. In this regard, it is critical to get network feedback as early in the process as possible, well before the commercial is produced, by submitting scripts, storyboards and rough cuts for review.

• Consider taping an alternate take that does not include the questionable content to permit easy revision in the case of network rejection.

• If you suspect that a particular commercial is crossing the line, it probably is. Think about whether you would feel comfortable viewing the commercial with your mother, and then revise accordingly. The networks are now likely to be more conservative.

• Remember, any television advertising that will or is likely to appear on network television must be vetted for compliance with such networks' advertising guidelines in addition to compliance with the multitude of laws and regulations that govern advertising. Consult legal counsel with extensive experience in advertising law, broadcast standards, clearance matters and review practices to help ensure that advertising does not run afoul of such guidelines or the law, and to negotiate with the networks, when necessary, to gain approval. Qualified counsel may be particularly beneficial when the networks are not in agreement with respect to a specific advertisement and time is of the essence.

• If you are successful in gaining network approval for a questionable commercial, in the event of one or more complaints, whether to the networks or the advertiser, there may be a tremendous amount of pressure on the advertiser to pull the commercial, and the networks may also refuse to allow further airings. It is for this reason that it is critical to have a plan of action in place before the fact to deal with this situation. Your plan should include contingencies that address revising or replacing the spot to minimize disruption to your media schedule and help reduce costs. It is at this time that the alternate take you so prudently taped during production becomes invaluable. Your plan must also effectively deal with the public relations and corporate image damage that may occur.

It is clear that the Super Bowl Half Time "stunt" will have far reaching effects, not only with respect to what is broadcast within programming, but also what will be allowable in commercial advertising. Adjustments will definitely need to be made by advertisers in order to comply with the new conservative ethos. However, following the network advertising guidelines and working closely with your outside advertising counsel and experienced network clearance professionals can help keep the transition smooth and the creative process in tact.

Joseph Lewczak is a Partner in the Advertising, Marketing and Promotions Department of Davis & Gilbert LLP and Marianne Lapidus is the Manager of and an Editor in the Firm's Network Clearance Department.

Please email the authors at jlewczak@dglaw.com or mlapidus@dglaw.com with questions about this article.