As 2007 wound to an end, advertising issues figured prominently on the agenda of Washington agencies, including both the FCC and the FTC. While the FCC is looking at specific regulatory requirements governing broadcast advertising, the FTC is investigating the privacy issues raised by advertising conducted by on-line companies. In November, the FTC held a two day set of workshops and panels where interested parties discussed issues of behavioral advertising - advertising that can be targeted to individuals based on their history of Internet use, and whether or not regulation of these practices was necessary. The wide-ranging discussion is summarized on our firm's Privacy and Security Blog, here. After gathering this testimony, we will see if the FTC decides to proceed to propose any regulations dealing with this sort of personalized, on-line advertising.

At the FCC, there are two separate proceedings dealing with advertising issues for broadcasters. The first came about as part of the FCC's diversity initiatives adopted at its December meeting. There, the Commission determined that broadcasters will need to certify in their renewal applications that they have not discriminated in their advertising practices. While this proposal was adopted at the Commission's December 18 meeting, the full text of the decision has yet to be released, so we do not know the specifics of this new requirement.

The FCC was also planning to consider at its December 18 meeting the commencement of a new proceeding to inquire as to whether it should adopt new rules or policies for embedded advertising - advertising that is incorporated into broadcast programming rather being than placed into a stand-alone commercial. That order was removed from the FCC's agenda at the last moment, but will no doubt reappear at some point during 2008. Together with other issues dealing with sponsorship identification in video news releases (see our description of a recent enforcement action here) and in connection with payola allegations, the Commission will be exploring whether broadcasters are trying to persuade their audiences to take action without giving the audience sufficient warning that they are being persuaded.

All of these issues will be addressed in coming months - so advertising practices may well have to be modified to respond to Washington dictates in the new year.

David Oxenford

David Oxenford is a partner in the Washington, DC office of the law firm of Davis Wright Tremaine LLP. This post originally appeared on DWT's Broadcast Law Blog, and is posted on DMW with the author’s permission. This information is provided for educational purposes only and should not be relied on as legal advice, and should not substitute for competent legal advice from your own attorney."

Image By tienmao