The FCC is looking into regulations regarding disclosures for product placements and has been soliciting comments on its proposed changes. Should feature films produced for theatrical release and then aired on TV, and which have traditionally enjoyed an exemption from the sponsorship identification required of TV programming—have that exemption removed? should product placements be identified when the product is shown on screen? Should embedded advertising be completely prohibited in children’s programming? Increasing product placement and integration into programming has stimulated concern among consumer advocacy groups and Congressional legislators that the rules, many of which are decades old, do not address the new wave of advertising and promotion that has arisen as DVR technology and marketing has migrated away from the traditional “30-second spot.”

It should also not go unnoticed that the FCC, which does not regulate the Internet, does regulate the broadcast license spectrum. As digital technology has enabled video programming, promotional messaging and advertising on mobile, wireless devices that use licensed carrier airwaves—the FCC’s jurisdiction over new media advertising and the perceived need to update its rules has increased.

That said, if the proposed rules regarding the scope and duration of disclosures and, by implication, the line of questioning from the FCC in areas not yet codified into proposed rules, are any indication, there are strong constitutional arguments against some of the approaches being considered that could result in legal challenge. In a difficult economy with dynamically evolving technology and distribution platforms for programming and advertising, changes by the FCC are likely to face strong opposition from advertisers and marketers that government regulation is a worse nightmare—especially with the FCC, FTC, and various states considering rule changes and legislation. Such changes create an inconsistent and cumbersome patchwork quilt of regulation that treats advertising— pure or embedded—differently across media and platforms.

Now sing along everyone: All we are saying, is give self-regulation a chance….