Many members of the advertising industry know that infomercials started in the 1980s, “after the law changed.” That’s right, but not in the way they may think. So, in recognition of the 28th anniversary of the founding of the National Infomercial Marketing Association (NIMA) and ERA, let’s take a look back on what changed to allow the broadcast of long-form tv advertisements.
The television regulatory landscape in the early 1980s was different than it is today. It had been based mostly on a public-interest standard determined by the Communications Act to reflect a scarcity theory: Since there were a finite number of broadcast frequencies that can be found on the spectrum, the number of voices which could be allowed access to the media was restricted, and subject to stringent controls “in the public interest.” Stations licensed from the Federal Communications Commission (FCC) enjoyed a public trust; operators were trustees with a duty to serve the general interest.
In this time, discussions between the FCC and the business took the kind of informal “jawbone” sessions, and regulation was often little more than a raised eyebrow. The National Association of Broadcasters (NAB)—essentially a membership organization for the four significant television networks of the era—had evolved into a strong industry lobby. It issued comprehensive qualitative standards regarding the maximum quantity of broadcast time which could be committed in a given hour, and guidelines covering advertisements and application content.
In issuing and renewing broadcast licenses, the FCC made it known that it’d pay careful attention to the channel’s adherence to NAB guidelines like advertising-to-programming ratios to find out whether the channel was acting as a trustee in the public interest. The FCC discussed the problem of overcommercialization in its 1964 Report and Order in re Commercial Advertising, also articulated the trusteeship theory in 1960.
From the early ’80s, NAB’s Codes of Good Practice for Video Broadcasters limited network-affiliated stations to nine minutes of commercials per hour of primetime programming and 16 minutes each hour at all other times; independent stations were permitted to slate more advertisements. The code also set limits on the amounts of advertisements permitted during children’s programs, and restricted the number of occasions programs could be interrupted by a network-affiliated channel to four times per hour, with every break.
Finally, the Code banned advertising two or more products or services in a single commercial if that commercial was significantly less than 60 seconds in duration. None of these standards was issued by the government all were issued with a private company—NAB—at an attempt to flesh out criteria.
This model changed radically in the 1980s. The Department of Justice’s Antitrust Division harbored a mistrust of any agreement among competitors it saw as limiting output. In its view, the purpose of limitations on the marketing time made accessible by stations and the impact was to increase the cost of television advertisements. The DOJ sued NAB in federal court to stop NAB from enforcing its codes.
The court agreed with the DOJ, also issued a preliminary injunction enjoining the enforcement of period limits. After that year, NAB agreed to a consent decree preventing it from implementing its own air codes, including its limitations on the number of advertisements that could be shown in a given hour, and also the requirement that two different goods couldn’t be promoted in a single spot. The FCC might have issued a rule imposing the time limits, but never did, and thus the time limits were dead from November 1982.
It required some time for advertisers and stations to understand that the removal of those limits made what we call a long-form ad potential. However, infomercials had become a normal feature of the television advertising scene.