FCC's 1984 Statement on Subliminals

Representative Dan Glickman, chairman of the House Subcommittee on Transportation, Aviation and Materials, opened an August 6, 1984 hearing on subliminal communication technology with a reference to Orwellian developments. Among the guests who contributed testimony was FCC official Dr. John Kamp. His statement updated the subcommittee on the history of government policy toward subliminal communication.


[document begins]

STATEMENT OF DR. JOHN KAMP, ASSISTANT TO THE DEPUTY CHIEF, MASS MEDIA BUREAU, FEDERAL COMMUNICATIONS COMMISSION, ACCOMPANIED BY CHARLES KELLEY, ENFORCEMENT DIVISION, MASS MEDIA BUREAU

Dr. KAMP. Thank you, Mr. Chairman. Good afternoon.

On behalf of Chairman Mark Fowler, I wish to thank you for inviting the FCC to participate in your hearing today. I was asked to represent Chairman Fowler on this matter at least partially because of my academic background as a social scientist, as well as my role at the Commission as a legal and policy assistant to the Mass Media Bureau Chief. I bring with me this afternoon Mr. Charles Kelley, head of our Enforcement Division in the Mass Media Bureau. He will be with me helping answer any questions you may have at the conclusion of my testimony.

Subliminal perception has been a persistent issue at the Commission spanning over 35 years but it has seldom required significant amounts of Commission time and resources. That is largely because the Commission's stand on the issue has been clear and consistent.

The FCC's position is that the use of such techniques involves intentional deception and, thus, is inconsistent with a licensee's obligation to broadcast in the public interest. The Commission defines subliminal projection as a technique of projecting information below the threshold of sensation or awareness.

This is not the subtle but overt message delivered by the attractive model selling toothpaste, this is the message that is so subtle the person is not intended to be at all aware of the attempt to persuade.

And it is that element -- intentional deception -- that has been the focus of concern at the FCC. Typical subliminal techniques are projections of visual messages of extremely short duration and transmissions of low volume audio messages that cannot be consciously perceived.

That said, two things are important to state at this juncture. First, as a social scientist I must note that there is considerable doubt in the scientific community that these techniques are very effective.

There is a whole host of problems, stemming from such things as the fact that individuals have highly varying levels of perception, making generalized threshold levels of subliminal perception very complicated. Another such problem is that to the extent that these messages are designed to change people's behavior, scientists as well as advertisers know that subtle appeals are often more interesting than they are effective.

But my second point is of more direct relevance -- that the Commission's prohibition against use of this technique by broadcasters is clear regardless of whether the technique is effective or not.

The Commission's authority to regulate subliminal projection techniques when used by broadcasters stems broadly from the public interest provisions of the Communications Act, including, in particular, sections 303 and 317. Section 303 contains the provisions that give the Commission general authority to regulate the industry to further the public interest, convenience or necessity.

More specific authority in this area is contained in section 317 of the act which has been reiterated in section 73.1212 of the FCC's regulations. Essentially, these provisions prohibit covert advertisements.

They require broadcasters to identify on each broadcast any sponsor of any broadcast program or advertisement. By requiring clear identification of sponsors, the Commission seeks to ensure public awareness of the nature of the persuasion and the identity of the persuader. Subliminal projections, which are designed to sidestep conscious awareness of advertisements, have been found to be against the public interest and the spirit and the language of section 317.

The FCC enforces its prohibition on the use of subliminal projections by following up on complaints. Viewers, listeners or members of the industry alert the FCC to possible violations.

If a complaint appears to be valid, the Commission first asks the broadcast licensee for an explanation. If necessary, Commission technicians can review a copy of the programming to check for subliminal messages.

The Commission, however, receives very few complaints in this area. From 1966 to the present, complaints concerning subliminal projections have comprised no more than one-half of 1 percent of all advertising complaints.

We think this system has worked well to date because broadcasters know the position of the Commission and know its intention to act as necessary to stem any abuse. A quick review of the major cases on this issue is instructive.

The FCC first became concerned with subliminal projection techniques in 1956 after it learned about a New Jersey movie theater which flashed the words "Drink Coca-Cola" and "Hungry? Eat popcorn" every 5 seconds at the subliminal level of one three-thousandths of a second during the film.

Although an increase in sales was reported, the theater refused to release any of the details of the experiment. The first broadcast case came in 1957 when television Station WTWO tested the technique by monitoring the reaction of viewers to flashes that stated "If you have seen this message, write WTWO."

WTWO reported no increase in incoming mail. In 1958, researchers conducted an experiment on Television Station WTTV where viewers were subliminally told to "Watch Frank Edwards," a news analyst featured on the station. The researchers reported that the message had no statistically significant effect. (De Fleur and Petranoff 23 Public Opinion Quarterly 168 (1959).)

In 1957, early in this period of experimentation, the FCC published a public notice expressing its concern and asserting its jurisdiction in this area. At that time the Commission noted that subliminal messages only had been used by broadcasters for experimental purposes and that the broadcast industry trade association had announced its intention to review and consider any subliminal advertising proposals.

The 1957 notice clearly stated that the FCC considered the use of subliminal messages to the inappropriate by broadcasters. No further immediate action was judged necessary because licensees appeared to be behaving responsibly.

In 1958, the National Association of Broadcasters amended its code to bar the use of these messages. Broadcasters interest in subliminal messages appeared to wane in the face of FCC policy statements, industry prohibitions and the lack of persuasive test results.

In 1973, the issue arose briefly when the FCC received complaints that television stations had broadcast an ad which contained a subliminal message to "Get it." An FCC investigation revealed that the advertising agency which produced the advertisement had already dispatched telegrams to the stations informing them of the existence of the subliminal message and authorizing them to delete it.

Some stations, however, continued to broadcast the advertisement containing the "Get it" message. The FCC took the occasion to clarify its position and issued a public notice which stated: "We believe that use of subliminal perception is inconsistent with the obligations of a licensee * * * Broadcasts employing such techniques are contrary to the public interest. Whether effective of not, such broadcasts clearly are intended to be deceptive." (Broadcast of Information by Means of "Subliminal Perception" Techniques at 44 F.C.C. 2d 1016 (1974).)

That statement in 1974 continues to contain the essence of Commission policy on this issue, and it appears to be good law and good social policy. As noted above, our complaint level is now so low as to be only a persistent trace at the agency reflecting, as far as we can tell, more public fascination with this issue and concern over the undesirable manipulative possibilities of the technique than evidence of any actual use.

Nothing in the information flowing into the Commission at this time has suggested the need for any new Commission initiative in this area. However, it is a matter that clearly warrants continuing scrutiny, for were the techniques (sic) shown to be effective or new techniques developed and used, the manipulative possibilities would clearly warrant further governmental concern.

In the meantime, we think this is good law because it has consumed a minimum amount of Commission resources. The Commission has established its position, made it clear to the industry, and stood ready to enforce it. Thus, it has been able to concentrate its resources on other major matters.

That concludes my formal remarks. Again, I thank you for this opportunity to appear, and I will be glad to remain to answer any questions you may have. In that regard, Mr. Charles Kelley, Chief of the Enforcement Division of the Mass Media Bureau is also here to help you.

Thank you.

Mr. GLICKMAN. Thank you, Dr. Kamp.

So you have not received any complaints recently regarding the use of subliminal advertising.

Dr. KAMP. We receive complaints from time to time, perhaps one a month or so. But we have not yet, or have not recently, in the last several years, received a complaint that on its face was sufficient for us to warrant a major investigation.

We have in those cases where we received complaints that appear to raise valid problems, we oftentimes first ask the complainant to give us further information, if he has it, and if we do have it, then we go to the station.

But very recently, over the past few years, there has been no major complaint.

Mr. GLICKMAN. But you do investigate each one of these complaints?

Dr. KAMP. It depends. In most cases we ask, we begin by asking the complainant for further information. And if the complainant comes forward with that, then we do a further investigation.

But very seldom do we receive information from the complainant about the matter that causes us to have a furtherÐto ask for further information.

Oftentimes, for example, and one very recent one we received just a few weeks ago, indicated to us that what was happening was that there was a strong image on the TV screen, and that was caused not by an attempt to subliminally send a message, but had to do with some problems with the technical aspects of the sending unit at the station, and when that was pointed out to the technicians at the station, we found that the problem had gone away.

Mr. GLICKMAN. How do you know if subliminal messages are or are not being used during television and radio commercials?

Dr. KAMP. Well, one of the strange parts of this, it is a catch-22, of course. If you know it is there, it is not subliminal.

We don t know unless there is a complaint sent to us. As it turns out, of course, the complaint system at the Commission works very well.


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