Subliminal Advertising

ACTUAL CASES ARE FEW AND FAR BETWEEN

Actual cases involving so-called subliminal advertising are, in actuality, few and far between. Some have claimed that there are examples of subliminal messages in direct mail advertising, movies, songs, music and the print and broadcast media. More recent claims of subliminal messages focus on the Internet and computers, including alleged subliminal messages in flash ads and software. However, proof is often not forthcoming to substantiate such claims.

BACKGROUND

Defendant Mountain Valley Television Corporation (MVTC) is a non-profit corporation whose sole function is to control, manage, operate, and regulate community programming on Community Access Cable Channel 3 in Ukiah Valley, California. Plaintiff Rolland James Rickel has been a user of the public access cable TV facilities provided by MVTC, broadcasting programs of community interest including a regularly scheduled program called "Studio 3 Presents."

ALLEGATIONS THAT TAPE CONTAINED SUBLIMINAL ADVERTISING

Plaintiff's claims are based on allegations that in January of 1995, plaintiff submitted a videotape to MVTC which MVTC refused to broadcast. After this incident, on April 21, 1995, MVTC suspended plaintiff from further broadcasting on Channel 3. MVTC claims that its actions were based on its determination that the tape at issue contained subliminal advertising as well as false representations that plaintiff was an agent of MVTC, both of which violate MVTC policies. These policies--including MVTC's general prohibition against commercial advertising--are reflected in MVTC's Operating Policy and Procedures, in a Statement of Compliance signed by plaintiff, and in a Program Agreement signed by plaintiff. Plaintiff claimed MVTC told him that it refused to accept further submissions of videotaped programming from him since MVTC believed his broadcasts to be libelous.

According to plaintiff, on February 7, 1995, he met with defendant Hal Titen to discover the reason for MVTC's refusal to air plaintiff's videotape. Between February and April of 1995, plaintiff allegedly corresponded with Titen to try to learn why his tape was not broadcast. On April 21, 1995, plaintiff received the letter of suspension issued by the MVTC Board of Directors informing plaintiff that his suspension was due to his alleged insertion of subliminal advertising in his videotapes, and due to his alleged misrepresentation of his video service as an agent of MVTC.

Defendant Titen met with plaintiff on April 25, 1995 to discuss the suspension. Plaintiff then sent MVTC a letter dated May 1, 1995 in which plaintiff admitted the violations of MVTC's ban on commercial advertising, but tried to explain that they were unintentional. In response, defendants invited plaintiff to a Board of Directors meeting in June of 1995, which plaintiff attended. At another Board meeting in October of 1995, attended by plaintiff and his attorney, the Board agreed to reduce plaintiff's suspension to three years. At a February 26, 1996 Board meeting, plaintiff again requested that his access privileges be restored. Plaintiff claims that the Board of Directors of MVTC refused this request. However, defendants assert that at a meeting held on March 18, 1996, attended by plaintiff's lawyer, but not plaintiff himself, the Board decided to reduce plaintiff's suspension and let him back on the air at the end of May of 1996 contingent upon plaintiff's allowing MVTC to preview his videotape submissions. Plaintiff refused this offer and filed suit on March 20, 1996.

COURT GRANTS SUMMARY JUDGMENT

The Court granted summary judgment for defendants on all remaining causes of action. Its reason:

"Because plaintiff presents no evidence to create a factual dispute as to MVTC's being a `cable operator' within the meaning of the Act or MVTC's having conspired with Century [Century Communications Corporation operates cable services in the City of Ukiah and in Mendocino County], the Court must grant summary judgment for defendants."

LAWYER'S REFERENCE SERVICE

Rickel v. Mountain Valley Television Corporation, et al., No. C-96-1033 DLJ, United States District Court for the Northern District of California, 1996 U.S. Dist. LEXIS 19961, November 27, 1996.)

Volume XVII
Issue 5
March 3, 1997
Page 1