The FCC and Subliminal Advertising - part 3
Tuesday, July 20th, 2010Below is a transcript from the opening of the Hearing on Subliminal Communication Technology that took place Monday, August 6, 1984. This section of the hearing deals with the House of Representatives, Committee on Science and Technology, Subcommittee on Transportation, Aviation and Materials, and FCC Representative, Dr. John Kamp, Assistant to the Deputy Chief, Mass Media Bureau, Federal Communications Commission, Accompanied by Charles Kelley, Enforcement Division, Mass Media Bureau. (1)
The subcommittee met, pursuant to call, at 1:30 p.m., in room 2325, Rayburn House Office Building, Hon. Dan Glickman (chairman of the subcommittee) presiding.
Mr. Glickman. Today the subcommittee will focus its attention on subliminal communication technology. This subcommittee has kind of made it a theme this year to explore in addition to the other areas of our jurisdiction those things which concern the public in a kind of Orwellian sense as a result of the nomenclature of this year 1984.
We held a series of hearings on computer security and privacy. Largely those hearings led to the enactment in the House of legislation which makes it a Federal crime to tap into people’s records for the purpose of obtaining financial or privacy information. But, the subject is one that has many different facets to it. This hearing today is concerned with the subject of subliminal communication.
And this, as many in this room are familiar, is a process by which an individual is presented with information without that individual being made aware specifically of that information, but to which they make a selective response. This message, which is usually in the form of words, pictures or voices, is presented so rapidly or faintly that the person seeing or hearing the message is not consciously aware of seeing or hearing anything.
Although little is known, at least by the general public, about the exact psychological and physiological mechanisms involved in subliminal communication, there have been a number of scientific advances in the area and an increase in its application in recent years.
For example, I understand that the use of subliminal communication is used by a large number of stores throughout the country to discourage shoplifting. Using an audio device, music is combined with a subliminal message such as “I will not steal.” These subliminal messages are reported to have reduced shoplifting by as much as 80 percent in some cases.
In addition, I understand that video tapes are now being marketed which use subliminal communication techniques to assist individuals in losing weight, stopping smoking, enhancing memory, lowering blood pressure, and for other purposes. If a store is able to reduce shoplifting by up to 80 percent through subliminal communication, several serious questions naturally follow: Are such techniques also being used as successfully in increasing sales? What other uses are being made of this technology? What is the potential outcome of research in this field?
Clearly we need to take a closer look at the use of subliminal communication technology given the serious moral, ethical and legal implications posed by some of these recent innovations. All of us remember the Vance Packard book, “The Hidden Persuaders,” which I think started public attention towards this area.
I, myself, think that subliminal communication clearly has a twilight zone implication to it. And given the rapid advance in computer technology in this country, as well as psychological research, much of which is being done by the Defeense Department, I think it is incumbent upon us in Congress to at least explore the issue to see how widespread it is and to see if anything needs to be done about it.
Our first witness today is Dr. John Kamp, Deputy Chief, Mass Media Bureau of the FCC. We are pleased to have you here, Dr. Kamp. Mr. Kamp, why don’t you proceed? You may feel ree to read or summarize your statement, because all the statements of the witnesses will appear in the record in their entirety.
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 perception 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 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 (NAB) 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 be 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 the use of subliminal perception is inconsistent with the obligations of a licensee * * * Broadcasts employing such techniques are contrary to the public interest. Whether effective or 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 shown to be effective or new techniques developed and used, the manipulative possibilities would clearly warrant further govermental 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.
MR. GLICKMAN.Thank you, Dr. Kamp.
So you have not received any complains recently regarding the use of subliminal advertising.
DR. KAMP. Wee receive complains from time to time, perhaps on 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 further - to 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 the 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, on - 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.
Subliminal perception is such that what is subliminal to one person is not necessarily subliminal to another. And an effective subliminal technique almost always is perceptible to some people, because their perceptions are much quicker than others.
So it will be seen relatively soon by people in the audience, and there will be a complaint.
What happens usually, however, is that other people in the industry concerned about the industry itself and the effect of what a competitor might be doing, complains to us, and that is where we get most of our complaints.
MR. GLICKMAN. Do you have a definition of the word “subliminal” in your rulemaking?
DR. KAMP. We have a definition in our public notice. I paraphrased it in my remarks, but it essentially has to do with a technique that is designed to persuade people that comes below the usual level of awareness.
MR. GLICKMAN. Now, for example, then, let’s say during the broadcasting of a religious program on TV, if the message subliminally was focused across the screen “Honor your father and your mother,” which on its face is a fairly benign message, that would violate the Commission’s rules; is that correct?
DR. KAMP. Under the current system, yes. We have not had a case like that of a message that would normally be construed as socially desirable, nor a challenge to our existing rules based on those kinds of facts.
And so I am not sure what the Commission might do in that sort of a situation. The example you give would seem to be on that would be very difficult for us to mount a firm challenge to the person who suggests that one should “honor thy father and mother.”
But the Commission for the most part tries to stay out of any content-based decisions because of the sensitive first amendment issues that arise here.
MR. GLICKMAN. But your basic testimony then - the thrust of your testimony is the Commission rules apply when products are being sold rather than when ideas are being brought across the television screen?
DR. KAMP. I think what the Commission would do - the Commission under its general public interest standard may look at ideas being sold subliminally in much the same way as it now looks at products.
But your question implies the correct answer. That is, the focus of this issue at the Commission to date has been in advertising areas where products are being sold.
MR. GLICKMAN. Do you know if other Federal agencies have gotten involved in this issue - the FTC, for example?
DR. KAMP. Yes. The Federal Trade Commission does have some authority under the FTC statute which allows them to regulate unfair or deceptive ads where there is an effect on interstate commerce.
The FTC’s authority operates separate from ours, of course, in that the FTC statute that gives the FTC authority to regulate except the broadcasting industry. So the Federal Communications Commission has authority where a broadcaster is involved and the FTC has authority where all other advertisers are involved.
But it is interesting to note that the question that you ask me may be answered somewhat differently by the FTC, because the FTC looks at it is somewhat more limited than that of the FCC.
The FTC has to have a demonstrated proof that the ad is unfair or deceptive, and then that has a negative effect on interstate commerce. So there could very well be different answers to very similar questions.
MR. GLICKMAN. Well, we are going to hear from some witnesses who have more experience in the mechanics of it and the technology of it. Just as one private citizen, I would think the American public would be very, very reluctant under any circumstances, no matter how socially desirable the message is, to know that they are being subliminally interfered with without their permission.
So I would just encourage you to keep a watch fully on this. I think with technology, the ability to modify tape in ways that we never dreamed of before, both video tape as well as audio tape, I think the kind of things that my have not occurred in the past could occur in the future.
DR. KAMP. I think that you are absolutely right on that. “Honor your father and mother” is something that might be very difficult to disagree with, but you might take a message like “drink more milk” that could be embedded in some communications and although that might seem socially desirable at the first level, you might also note that there could be commercial or industry interest in the commercial aspects of it, and that it also could be exposed to people for whom the drinking of more milk might be undesirable, people that had a propensity for heart trouble or for some reason were allergic to milk products.
So it is not easy in many cases to tell the difference between a socially desirable message and a socially undesirable message. But I will continue to honor my father and mother and the Commission will continue to take a watchful eye on these kinds of matters.
MR. GLICKMAN. Yes. We would not want to see any message like “reelect your Congressman”.
DR. KAMP. It depends on which Congressman. [Laughter.]
MR. GLICKMAN. That is right. Thank you very much for your testimony today. We appreciate it.
MR. KAMP. Thank you, sir.
1. 2006, University Press of the Pacific, “Subliminal Communication Technology: Hearing before the Subcommittee on Transportation Aviation and Materials, of the Committee on Science and Technology, U.S. House of Representatives.




by Alan Baldwin
