Hot over heartburn credit: sounds illegal to some

Originally published in Current, April 7, 2003
By Dan Odenwald

Just days after announcing plans for a comprehensive review of its underwriting practices last month, NPR ignited a firestorm of criticism from stations incensed over a spot it accepted for Nexium, a heartburn pill.

To many, the credit seems to conclude with a call to action—"ask your doctor"—in violation of FCC underwriting guidelines.

"The inability of NPR management to say the simple words, 'No, we can't say that,' or to offer acceptable alternative language is very troubling," says Gerry Weston, president of the Public Radio Partnership in Louisville, Ky. "[NPR] should have the backbone to say no when something comes to them that is illegal."

But NPR defends the spot, claiming it got informal approval from an unidentified advisor at the FCC. The commission believes the language is non-promotional because "ask your doctor" directs listeners to seek more information, as do lines in other credits referring listeners to websites or toll-free numbers, wrote Barbara Hall, NPR's v.p. of development, in a memo to stations.

That reasoning wasn't enough to satisfy the many development professionals who posted angry e-mails last week to public radio's Internet discussion groups, slamming NPR for forcing the spot on local stations. NPR contracts require member stations to carry underwriting credits that come with national programs.

Weston refuses to carry the spots, which run in NPR's national newsmagazines, on his stations. A local announcer reads the credit aloud, stripping out the offending language, he says.

Besides calls to action, the commission also prohibits credits with comparative or qualitative descriptions, price information or inducements to buy, sell, rent or lease. But the call-to-action issue in the Nexium dust-up reveals just how bitterly divided NPR and stations can be over underwriting practices and how difficult it will be to write common guidelines.

That's not going to stop NPR from trying, says Ken Stern, executive v.p. The network's new review of underwriting policy--led by the network, station managers and development officers--will seek to develop consensus within the system.

The review panel will establish guidelines for the length, language and kinds of businesses that can buy public radio's airtime, Stern says. The Nexium spot will serve as a case study.

Previous attempts at developing national standards have failed, says Nancy Wood, development director at North Dakota Public Radio. "Finding a common standard is ideal--I'm just not convinced that's going to happen," she says.

"Of course, not everyone will agree all of the time," Stern says. "That doesn't even happen within NPR. But we can't follow 270 different standards."

Indeed, NPR hopes, a common set of standards will prevent future blowups over wording. In the past several months, stations have blasted the network for accepting a Microsoft spot that urged listeners to "learn more about. . ." and one for Saab heralding a ". . . dynamic new look."

"What strikes me about NPR accepting [the Nexium] spot and the one for Microsoft is how easily they could have been rewritten to eliminate the call to action," says Steve Chrypinski, underwriting sales manager for Detroit Public Radio. "What about 'information is available from your doctor'?"

The Microsoft spot is no longer running at the request of the underwriter, not because it was too promotional or stations complained, NPR says.

PRI and other producers also accept underwriting spots that rile stations' sensibilities, says Bill McGinley, g.m. of WOI in Ames, Iowa. For a long time, Marketplace's musical theme included an echo of the jingle from its underwriter, General Electric.

"Guidelines are interpreted in different ways by different people," says Eleanor Harris, who oversees corporate underwriting at PRI. "We understand that national standards affect member stations."

To that end, PRI relies on a team of advisors to vet spotty language, including colleagues from NPR, Minnesota Public Radio and the Development Exchange Inc., Harris says.

Heartburn over Nexium

"There is absolutely no scenario in which 'ask your doctor' is not a call to action," says Gray Smith, director of corporate support at the Public Radio Partnership. "We shouldn't be forced to accept NPR's conflicting interpretation of legality when we're the ones with licenses at stake."

According to Stern, however, the FCC distinguishes between permissible calls to action, which lead listeners to more information, and prohibited ones, which encourage listeners to make a purchase.

"FCC rules don't prohibit a call to action at all," says Allen Myers of the FCC's Media Bureau. "It simply prohibits promotion." Because a call to action can either promote or not, stations have to use their best judgment, he says.

But that's just Myers's opinion. "Informal conversations with staff do not carry the force of law," he admits. In the absence of listener complaints that prompt a formal FCC review, stations are taking a gamble by running spots of debatable legality.

Such advice doesn't seem to make much sense when, according to the FCC's own website, "announcements containing a call to action are not permissible." One example the commission offers up as a no-no--"stop by our showroom to see a model"--clearly seems like an invitation to learn more, some pubcasters contend.

Even an "informational" call to action is intended to get listeners to buy something, Chrypinski says. Why else would Nexium want you to ask your doctor?

Informal "guidance" from the FCC is worth nothing if someone decides to challenge the Nexium spot, says Mary Bokuniewicz, development director at KUNM in Albuquerque, N.M. "We are the ones at risk, not NPR," she says.

Kim Hodgson, g.m. of WDAV in Davidson, N.C., and former NPR Board chairman, thinks some stations are being too rigid.

"Our credits have been evolving for years," he says. "All of us approve credits every day that we wouldn't have touched five or 10 years ago."

But those arguments promise to make life more difficult for public radio, Smith argues. Politicians of both parties seldom miss an opportunity to rail against the "creeping commercialism" in public broadcasting. Opponents of public radio now have a "silver platter opportunity" to attack NPR by simply assailing its credits, he says.

Stern reminds pubcasters that the FCC forgives problematic underwriting so long as a good faith effort is made to get it right. Taking the Nexium spot to an FCC advisor and fully debating it within the system demonstrates more than enough "good faith," in Stern's opinion. Stations face no risk in carrying the credit, he adds.

Of course, carrying the controversial credit may alienate local underwriters, who wonder why their call to action was turned down and Nexium's wasn't.

The corporate support team at Louisville's three stations is livid, Weston says. "I know it's tough to say no when money is on the table, and they're asking you to compromise," he says. "But you have to find it within your station's soul to try to work something differently."

Stewart Vanderwilt, g.m. of KUT in Austin, Texas, thinks pubcasters are wasting time obsessing over semantics. "I don't think the audience is evaluating spots based on whether they're comparative, qualitative or contain a direct or implied call to action," he says.

Listeners are more offended by the notion that public radio accepts an ever-increasing number of spots from corporations they hold suspect, and that these companies may exercise influence over programming, Vanderwilt says.

While Stern is under no illusion that the underwriting review will unearth clean and simple answers, he hopes the process will minimize further controversy.

"This is a system of strong-minded people," he says. "I don't think we should ever seek unanimous opinion."