Advisory opinion letter to Mr. Tosin: the unavailability of advertised food specials

Counsel.
Juuy 9, 1971
Dear Mr. Tosin:

The purpose of this letter is to secure, in accordance with Rule 1.3 of the Commission’s Rules, an advisory opinion as to the requirements of the Trade Regulation Rule effective July 12, 1971, concerning the unavailability of advertised food specials. Our client, Time Life Broadcasting, Inc., owns and operates television broadcast stations nationally. The stations’ broadcast signals, including the call signs identifying the principal cities of the stations, are often transmitted by independent CATV systems into distant markets which would not receive those signals without such transmission. The broadcast stations whose signals are utilized in this fashion have no control over the CATV system’s selection or transmission of their signals because the Federal Communications Commission’s Rules do not require a CATV system to obtain permission from the originating stations. ; As a result of independent CATV transmission, advertisements which are meant to inform consumers within a station’s coverage area, are transmitted into distant markets. Consequently, advertisements for food and grocery specials available in the coverage area may be televised in distant markets where the specials are not available. We are of the opinion that since the stations’ call signs are transmitted into the distant markets, the consumers within those markets cannot reasonably be expected to be deceived as to the availability of goods or prices. Additionally, we are of the opinion that the advertiser. cannot be considered to have violated the Commission’s Trade Regulation Rule by not making readily available in their stores in those distant markets goods advertised for the benefit of consumers in the broadcast coverage area, since transmission to those markets is beyond the control of both the advertiser and the broadcaster. _ However, in order to remove any doubt as to the implications of this Rule on advertisers in light of CATV transmission, it is respectfully requested that the Commission advise us as to its opinion concerning the impact of the Trade Regulation Rule under these

circumstances.
* 1040 FEDERAL TRADE COMMISSION DECISIONS
Opinion 79 F.T.C.,

The dilemma in which our client finds itself is that potential advertisers are reluctant to utilize the broadcasting media because of their fear of liability under the Commission’s Trade Regulation Rule as a consequence of CATV transmission. We have been informed by the National Association of Broadcasters that our client’s experience is not unique. Accordingly, NAB intends to seek an advisory opinion similar

to the one we are hereby requesting.
Sincerely,
PIERSON, BALL & DODD.
(S) William S. D’Amico