When the flock ignores the shepherd - corralling the undisclosed use of video news releases.

AuthorPeabody, Jeffrey
  1. INTRODUCTION II. HISTORY OF VIDEO NEWS RELEASES A. Video News Releases--A Boon to Advertisers and Broadcasters Alike B. "Fake News" and the Bush Administration C. The CMD Report--Documenting the Undocumented Use of Commercial VNRs III. CURRENT STATE OF SPONSORSHIP IDENTIFICATION RULES IV. NO SOLUTION IN SIGHT--REMOVING THE "TRUTH" FROM THE TRUTH IN BROADCASTING ACT V. WHAT NEEDS TO HAPPEN--MANDATORY DISCLOSURE AND BEEFED-UP ENFORCEMENT A. Criticisms of Mandatory Sponsorship Identification 1. Constitutional Criticisms 2. Market-Based Criticisms B. Proposed Legislative Changes to the Disclosure Rules 592 C. Proposed Changes to the FCC's Enforcement Policies 595 VI. CONCLUSION 596 I. INTRODUCTION

    As long as mass media has existed, corporations and governments have sought to control, or at least influence, the message being delivered. While in the early days of radio and television such sponsorship was explicit, (2) today's advertisers have become experts at promoting their messages without drawing attention. One particularly popular form of modern sponsorship can be found in so-called "video news releases" ("VNRs"). These VNRs, considered "analogous to a printed press release," (3) are increasingly relied upon by broadcasters to supplement their local reporting. Filmed and written to look like regular news stories, VNRs deliver a hidden commercial message under the guise of important information. The broadcasters do not have to disclose the real source of these segments because they aren't "paid" to play them: companies--and the government--freely distribute VNRs, hoping to get them aired. What was once America's trusted source of news--the network newscast--has become open mic night for the government and powerful commercial interests, blurring the line between journalism and commercialism, all while the present sponsorship identification rules ensure that the public will remain none the wiser.

    Part II of this Note will examine the history of VNRs and the recent scrutiny they have faced from the FCC, the media, and Congress. Part III will discuss the current sponsorship identification laws and why they are inadequate to deal with this growing problem. Part IV will discuss the proposed Truth in Broadcasting Act and other recent proposals to amend current FCC disclosure rules and explain why these changes alone are insufficient to remedy the existing problems. Finally, Part V will propose new legislation, coupled with enforcement guidelines, which will help ensure that the viewing public is adequately informed when broadcasts contain material funded by corporate entities.

  2. HISTORY OF VIDEO NEWS RELEASES (4)

    What are VNRs, who makes them, and why are they so common? The American Marketing Association, one of the largest professional organizations for marketers, defines a VNR as "[a] publicity device designed to look and sound like a television news story. The publicist prepares a 60- to 90-second news release on videotape, which can then be used by television stations as is or after further editing." (5) The VNR is then offered to local and network broadcasters, free of charge, in the hope that the stations will air the segment and provide the company or product with free advertising. Robin Andersen, (6) in her book "Consumer Culture & TV Programming," describes the strategy advertisers use in producing their VNRs:

    For example, if the VNR is for Clairol, the news angle might be something like this: "Women are getting promoted to higher management positions and are thus more concerned about the way they look, so they're coloring their hair more often. We spoke to somebody from Clairol about this phenomenon." Or the producer could take a health angle on skin cream: "Yes, doctors say that all women should use face protection every time they go outside. Even if they're only walking around New York, they can apply a Neutrogena cream containing number 15 sunblock protection." Clearly, then, the VNR is the video equivalent of complementary copy and advertorials. (7) Since VNRs are little more than press releases, it is unsurprising to find that they are primarily produced by public relations firms. Many of these firms employ former news professionals to accurately capture the "local news" look, critical for widespread adoption of a VNR. (8) A well-designed VNR will attract the attention of news producers by having a "news hook" while subtly selling the product. VNR producers will often use diversity as another tactic; a VNR segment showing different ethnic groups may appeal to the station's diversity needs. The focus of a VNR is getting the product name out there, not providing material that is valuable to the viewing public. This underscores the fact that while news stations argue that VNRs provide them with much-needed footage, the news value of any material so supplied is limited, at best.

    1. Video News Releases--A Boon to Advertisers and Broadcasters Alike

      So why use prepackaged news segments at all? For the companies that pay for the creation of VNRs, the benefits are clear: cheap advertising and increased credibility. (9) The cost of producing a VNR in the early 1990s ranged from $10,000 to $100,000, (10) but can now be done for less than $25,000. (11) VNRs offer a low-cost alternative to pricey prime time commercial spots, which average $125,000 for a 30-second spot, without having to sacrifice exposure. (12) The cost to get a VNR into the hands of news stations will drop even more with the emergence of the Internet and podcasts as viable information sources; (13) almost anyone will be able to get their corporate message delivered to the front door of a television station. As stations become inundated with VNRs, their ability to sift through the material and use only the most objective footage will shrink--meaning that more and more corporate propaganda will make it on air and into the public's mind. Indeed, many local stations already rely on both Internet delivery services and major network news feeds--for example, PR Newswire, CNN Newsource, CBS NewsPath, and Pathfire--to supplement their locally produced material. (14)

      Not only are VNRs cheaper than traditional advertising methods, but companies gain additional benefits by packaging their commercials in a news format. First, consumers have come to expect neutrality in a news broadcast and may place inordinate trust in the message being delivered by their local news anchor. (15) Second, the growth of TiVo and other commercial-skipping devices means that traditional commercial segments are less likely to be viewed; hiding a commercial in a segment that viewers want to watch increases brand exposure. Finally, packaging a commercial as a "news segment" may avoid compliance with the Federal Trade Commission's "truth in advertising" rules. (16)

      News stations, in turn, rely on VNRs as a necessary tool to maintain their profit margins. As network news audiences dwindle, networks have responded by slashing the number of reporters they employ by an average of thirty-five percent from 1985 to 2002. (17) The local picture is not much better: local news staffing levels have remained relatively constant or have dropped in most markets between 1998 and 2004, while the volume of local news programming has reached record levels. (18) Local newsrooms must supply an average of 3.6 hours of news each day and have come to rely on third-party material, including VNRs, to meet this increased demand without breaking their budgets. (19) One study, tracking the content of local news programs, noted an increase in the use of third-party material from fourteen percent in 1998 to nearly twenty-four percent in 2002. (20) The study found that, for the most part, "stations have opted for efficiency over quality," and that this trend is likely to continue for the foreseeable future. (21)

    2. "Fake News" and the Bush Administration

      While VNRs have been in existence since at least the 1980s, (22) no real scrutiny had been placed on their use prior to 2004, when the Bush administration received criticism for using federal resources to produce and distribute hundreds of pro-administration news segments, many of which were aired on local news stations without any disclosure that the government had created them. (23) This prompted the FCC to release a statement reminding broadcasters that all government-sponsored VNRs must contain adequate disclosure identifying the government as the source of the material. (24) The General Accounting Office ("GAO") went a step further, finding that several of the government-sponsored VNRs rose to the level of"covert propaganda" expressly prohibited by law. (25)

      The media attention drawn to government-sponsored VNRs led to congressional action as well--in April of 2005, Senators John Kerry and Frank Lautenberg introduced the Truth in Broadcasting Act, with the express purpose of ensuring that "prepackaged news stories contain announcements that inform viewers that the information within was provided by the United States Government...." (26) This legislation would require that any prepackaged news story "produced by or on behalf of a Federal agency" and intended for public broadcast must "conspicuously identif[y]" that the news story was prepared by the United States Government. (27) While this appears to be a valuable piece of legislation, Part IV of this Note will discuss why the Act, as currently amended, will fail to have any significant impact on how government VNRs are used and will do nothing to stem the tide of corporate-funded VNRs.

    3. The CMD Report--Documenting the Undocumented Use of Commercial VNRs

      The flurry of media surrounding government-sponsored VNRs expanded to highlight the role that corporate VNRs play in news broadcasts; after April 2006, the Center for Media & Democracy ("CMD"), a nonprofit public interest organization, revealed that over seventy-seven television stations aired VNRs without disclosing the source of the material...

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