CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Chairman Martin, the main (and possibly sole) FCC cheerleader for the Number 38, was quoted after Gilliland’s impressive crash at Phoenix as saying that, “[e]xcept for the cars that win the races, the cars that are in wrecks get a lot of attention”. We understand this to be a variation on the old saw that any publicity is good publicity, in which event the Homestead race was probably a bust: During the four hours or so that the race was aired on ABC, the Number 38 DIGITAL TV TRANSITION Ford Fusion was mentioned maybe twice and appeared on-screen only for nanoseconds – and only when it serendipitously happened to be near a car the announcers were actually interested in.

As a practical matter, we doubt that the FCC’s sponsorship of the Number 38 (reportedly to the tune of some $350,000) has made any real difference relative to the upcoming DTV transition. The FCC-mandated PSA bombardment has already sensitized (or, possibly, de-sensitized) the viewing public to the fact of the February 17, 2009, transition date. (The fact that at least one brutally funny send-up of those PSA’s has already had more than 700,000 hits on YouTube -- and enjoyed considerable email circulation beyond that -- suggests more than a little audience burn-out on the whole PSA approach.)

But let’s not forget the issue of embedded advertising, which we raised last month when the NASCAR sponsorship was first announced. If and when the FCC moves forward with the embedded advertising inquiry/rulemaking it started last June, it will be interesting to see how the agency deals with broadcast coverage of NASCAR races.

As you may recall, on October 19, when David Gilliland piloted the Number 38 DIGITAL TV TRANSITION Ford Fusion in his first of three races under those colors, he DNF’d. The following week (not racing for the FCC), he managed to finish in the 27 position, but then ran into problems on November 2 in the Dickies 500 at the Texas Motor Speedway (again, not under the FCC’s colors). There he expressed his pique at rival Juan Pablo Montoya’s driving style somewhat aggressively – by smashing into the Montoya’s car in Lap 262, knocking him out of the race. Race officials then took Gilliland out of the race as a penalty for his petulance. Expounding on the contretemps after the race, Gilliland elaborated, “I kind of slid up in front of him and he jacked my rear wheels off the ground going down the back straightaway and then got into me again going into Turn 1 and 2 and jacked me up way up the track. I was trying to let him go and got a good run off the corner and just kind of mis-judged it coming down across him. I was going to let him go, so I feel real bad for those guys."

The final competitive appearance of the Number 38 DIGITAL TV TRANSITION Ford Fusion is set for November 16 in the Ford 400 at the Homestead-Miami Speedway.

The digital TV transition is still scheduled to occur on February 17, 2009.

(By the way, so far the most we’ve been able to glean is that Commissioners Copps and Adelstein were apparently not involved in the decision to sponsor the Number 38 car. Still no word one way or the other from Commissioners Tate and McDowell – both of whom hail from states with NASCAR tracks.)

The FCC’s purpose, after all, was presumably not simply to win races, but rather to promote the DTV transition. And notwithstanding the somewhat inglorious end the car met, since Gilliland didn’t kiss the wall until he had gone around the track 485 times (out of a possible 500 or so), the potential exposure of his car, for promotional purposes, wasn’t all that bad.

We emphasize “potential” exposure because, at least for the hour or two that we watched the race, we were blissfully unaware of the presence of Gilliland or the FCC at the track. The car constantly sat somewhere in the 25-30 (or so) position, bunched up with 10 or more other also-rans-to-be.  As a result, throughout the time we watched, neither the camera nor the race announcers had occasion to acknowledge the Number 38 at all. (It should also be pointed out that the graphics on the car’s hood – the focus of any good NASCAR’s money shot – were less than striking and would not likely have attracted much attention even if they had been on camera, which they weren’t.)

So to the extent that the FCC spent $350,000 for publicity and exposure through on-air mentions or coverage of its car, the Commission does not appear to have gotten much in return this time around. Next time, for sure. (Maybe the Commission can work on the hood graphics a bit between now and then.  We have some ideas -- email us.)

Meanwhile, we still haven’t had anyone calling “shotgun” for the passenger seat in our graphic, below, previously occupied by Commissioner Copps. We figure that there are at least three obvious candidates (those would be Commissioners Tate, Adelstein and McDowell), and maybe others. We hope they won’t be shy – we can probably even find a way to squeeze them all in, if need be.

If you don’t happen to be a NASCAR aficionado or cognoscente, David Gilliland is currently ranked 27th among NASCAR drivers in the Sprint (f/k/a Nextel, f/k/a Winston) Cup Series. He has started 30 races, but DNF’d in six of them. Oops. He hasn’t won any races, but does have a top five and two top ten finishes.

Some publicity photos of Gilliland show him in the No. 38 M&Ms car – which would appear to be sending a mixed message, what with the FCC’s efforts to discourage childhood obesity and all. As it turns out, though, his stint with M&Ms ended a year or two ago. He started the current season with FreeCreditReport.com as his primary sponsor. His secondary sponsors include Twix, Milky Way and Combos (“made with REAL CHEESE”), so there is still some possible disconnect there, but what the heck, it’s NASCAR. Other cars might have provided better co-sponsors in terms of image – the No. 43 Cheerios Dodge, or the No. 5 Kellogg’s Impala, or better yet, the No. 21 U.S. Air Force Ford Fusion. But again, at this stage in the season (and at this stage of the DTV transition), those alternatives may not have been available (at least not for $350,000).  At any rate, the Commission isn’t sharing chassis space with Jack Daniels or Viagra.  

While this bold promotional move may get the FCC the public awareness it’s looking for, there may be some conceptual problems to deal with on the backend.

For example, the three races in which the Digital TV Transition Ford Fusion will run are all set for broadcast on ABC. Will stations carrying those races be permitted to include race coverage in the calculation of their DTV education efforts? What about stations which would not ordinarily carry the races – aren’t they being disadvantaged by losing access to this potential educational resource? Is the FCC prepared to do something to help them out, too?

Let’s also talk about embedded advertising. The FCC, of course, has launched an extensive inquiry into the practice.  When we discussed that inquiry on our blog last June, we raised the question of how the FCC might treat coverage of sporting events – including, especially, NASCAR races – for purposes of embedded advertising. After all, as the FCC now knows, NASCAR racecars are, in a very real sense, bought-and-paid-for billboards, and coverage of a race amounts to near-constant visual images of those billboards. Those visual images are supplemented by commentary which invariably includes mention of the primary sponsors, since the official car names include the sponsors’ names (e.g., “the Number 38 Digital TV Transition Ford”).

Sponsors know all about that coverage, and that’s presumably why they pony up hundreds of thousands of dollars (or more) for the exposure. That’s also presumably why the Commission has hopped on board as well.

But will the FCC insist that each mention of the Number 38 Digital TV Transition Ford be accompanied by some specific audio sponsorship identification – or, worse yet, a “concurrent” on-screen visual ID? In its embedded advertising inquiry, the Commission has suggested precisely such a requirement (although, to be sure, it did not specifically mention how NASCAR races might be treated). Now that the FCC is stepping across the line and joining in the commercial promotion scrum, it may come to recognize the undesirable, and unnecessary, intrusiveness of the sponsorship ID requirement it is thinking about imposing. And if the FCC does not insist on sponsorship ID’s for its car throughout the three races, how will it be able, somewhere down the line, to insist that such ID’s are necessary for everybody else?

One final query. The FCC is using taxpayer dollars to buy the sponsorship, so we’re all shareholders in the enterprise.  So where are our free -- and way cool -- pit crew T-shirts?