FAQ: Many old time radio programs have historic commercials embedded in them including for products that no longer exist. If I want to run these programs on an LPFM/NCE station, do I have to edit out the commercials?
The simple answer is you can keep the commercials in unless they advertise any of the following products:
- little cigars
- smokeless tobacco (snuff, chew, etc.)
Section 399b(a) of the Communications Act defines a commercial as "any message or other programming material which is broadcast or otherwise transmitted in exchange for any remuneration, and which is intended to promote any service facility or product offered by any person who is engaged in such offering for profit; to express the views of any person with respect to any matter of public importance or interest; or to support or oppose any candidate for political office.
Let's say you run an old episode of Fibber McGee & Molly and there is an advertisement for Johnson Wax's product GLOCOAT. Johnson Wax did not pay your LPFM/NCE station for the carriage of that announcement. Therefore, there was no exchange of remuneration (money, tangible goods, concert tickets, discounted rent/services, etc.) in exchange for the carriage of that announcement.
The prohibition on carrying vintage tobacco product advertising has been a long-standing interpretation of Section 6 of the Public Health Cigarette Smoking Act of 1969 that simply reads:
After January 1, 1971, it shall be unlawful to advertise cigarettes on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission. (15 USC §1335)
The Little Cigar Act of 1973 amended the Federal Cirgarette Labelling and Advertising Act (as amended by the Public Health Cigarette Smoking Act of 1969) to include a definition of little cigars (any roll of tobacco wrapped in leaf tobacco or any substance containing tobacco other than a cigarette) and in turn expand the §1335 advertising ban to include them.
The Comprehensive Smokeless Tobacco Health Education Act of 1986 further extended the advertising ban to include smokeless tobacco products. (15 USC §4402(c))
Based on REC's (non-attorney) review of the law, we interpret it as being solid and not having any kind of carve-out or implied exemption for non-commercial broadcasters and/or for on-air historical preservation and awareness. Therefore, where it comes to programs sponsored by tobacco products (Camel, Lucky Strike, Fatima, etc.), it's best to edit out the full length commercials, product mentions during the title sequence ("Dragnet.. brought to you by Fatima cigarettes") and any "host selling" where the mention of the sponsor was mentioned in the dialogue/script of the program.
15 USC §4402 Smokeless tobacco warning (See paragraph (c))