Historical Context for Regulation of Broadcasting
1. Federal rationale for initiation of Interstate Commerce Commission under the Secretary of Commerce in 19th century was “public convenience, interest, or necessity.”
2. Radio Act of 1912 gave Secretary of Commerce limited authority to license radio operations.
3. World War I divided regulatory power between the Secretary of War and the Secretary of Commerce.
4. After World War I, rapid expansion of radio produced a largely unregulated era known as the Tower of Babel.
5. Radio Act of 1926 gave power to issue licenses, allocate frequencies and specify operating conditions to a Federal Radio Commission.
6. Communications Act of 1934 instituted current regula-tory structure and §303 included “public convenience, interest, or necessity” rationale.
Theories for Support of Broadcasting Regulation
1. Public Ownership of Airwaves: our government is justified in protecting our ownership of our airwaves.
2. Scarcity Theory: airwaves are an endangered species that must be preserved and conserved.
3. Media Differences Theory: captive broadcast audiences make fewer affirmative decisions than print readers.*
4. Powerful Media Theory: the media have become so powerful they must be controlled like other institutions.
5. Fiduciary Theory: First Amendment and airwaves are owned by electorate; elected fiduciaries act within owners’ best interest to regulate airwave usage and to en-hance First Amendment meaning through guaranteed access.
*[R]adio listener does not have the same option … to ignore advertising in which he is not interested” (Justice Burger quoting Secretary of Commerce Herbert Hoover, 1924, in CBS v. DNC; FCC v. BEM; Post-Newsweek v. BEM; ABC v. DNC, 1973).
How is the FCC organized?
1. Five FCC commissioners are appointed by the President and confirmed by the U.S. Senate.
2. The commission issues rules and regulations, conducts hearing, adjudicates and issues orders.
3. The staff comprises four bureaus – Mass Media, Cable Services, Common Carrier and Private Radio – with offices in D.C. and regional office locations, e.g., Dallas.
4. Administrative law judges conduct formal hearings and issue interlocutory orders, subject to commission review.
Some Sections of Communication Act (1934)
1. §303 provides legal rationale for regulating the airwaves: in the “public conven-ience, interest or necessity.”*
2. §307 gives FCC the power to grant, renew and revoke licenses in the “public convenience, interest or necessity.”
3. §312 bans licensee operation of lotteries – contests in which a thing of value is offered, contestant gives up some-thing of value, and no skill is required to have a chance.
4. §315 guaranteed equal opportunity for political candi-dates and led to other access rules. See below.
5. §326: [N]o regulation … shall interfere with the right of free speech by means of radio…television communication.”
*Judge Learned Hand said, “The interests which the regulations seek to protect are the very interests which the First Amendment itself protects, i.e., the interests, first, of the ‘listeners’.”
What content regulations /practices are restrictive?
1. §326, like First Amendment, is not interpreted as absolute.
2. FCC has warned against staged news events, misleading tape editing, instant analysis and intentional deception.
3. “The right of free speech does not include … the right to use the facilities … without a license” – Frankfurter (1943).
4. Licensee-run lotteries, fraudulent contests are banned.
5. Payola – unreported acceptance of anything of value from producers or suppliers to achieve airplay – is a crime.
6. Material judged “obscene” by appropriate judicial pro-ceedings (Miller and §1464 of U.S. Code) is punishable.
7. Content found “indecent” by appropriate judicial pro-ceedings is legal on air only in “safe harbor” (Pacifica).
8. Harmful medical advice is prohibited.
9. Gambling information, with exception of state-sponsor-ed lotteries, is prohibited.
10. See §315 unit for mandated, content access rules.
11. Networks experience “raised eyebrow” effect through their wholly owned affiliates.
Scriptural bases for evaluation of violence?
1. “The Lord examines the righteous, but the wicked and those who love violence his soul hates” (Psalm 11:5).
2. “‘I hate divorce,’ says the Lord God of Israel, ‘and I hate a man’s covering himself with violence as well as with his garment,’ says the Lord Almighty” (Malachi 2:16).
3. “From the fruit of his lips a man enjoys good things, but the unfaithful have a craving for violence” (Proverbs 13:2).
4. “Let slanderers not be established in the land; may disaster hunt down men of violence” (Psalm 140:11).
5. “A violent man entices his neighbor and leads him down a path that is not good” (Proverbs 16:29).
6. “The violence of the wicked will drag them away, for they refuse to do what is right” (Proverbs 21:7)
7. “Do not envy wicked men, do not desire their company; for their hearts plot violence, and their lips talk about making trouble” (Proverbs 24:1).
8. “Like cutting off one’s feet or drinking violence is the sending of a message by the hand of a fool” (Proverbs 26:6).
9. “Violentization” is a four-stage theory explaining why people act on vio-lent impulses,” says criminologist Lonnie Athens: brutal-iza-tion, belligerency, violent performance and chronic violence.
How can media violence be regulated?
1. Telecommunication Act of 1996 and 1998 FCC rules required all 13-inch+ TV’s to have V-chip in January 2000 and for TV industry to develop voluntary rating system.
2. NBC and BET have declined to use the ratings.
3. Paducah parents have been unsuccessful in suing nets, studios and game creators for liability in school deaths.
4. FTC in 1999 began study commissioned by President Clinton to study marketing of violence to children.
5. Problem: a constitutionally defensible definition of a harmful violent act in TV programming and movies.
6. Can we learn from constraints on two other types of commercial speech: obscenity and the Central Hudson-SUNY test for controlling substantive evils in advertising?
Regulating Children’s Programming
1. In 1974 the FCC issued a policy statement calling for upgrading of programming and an end to host advertising.
2. In 1978 Pacifica and ensuing FCC regulations banned indecent content except for a so-called “safe harbor” when kids, generally, are not watching, 10 p.m.-8 a.m. Indecency is defined as “language or material that depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.”
3. In 1983 the FCC reversed and declined to make standards for children’s programming.
4. In 1988 Congress made children’s programming a license renewal issue and limited ads. Reagan vetoed bill.
5. In 1990 Congress passed the bill again, and Bush allowed it to become law without his signature.
6. The Children’s Television Act of 1990 (a) limited ads to 12 minutes per weekday hour and 10.5 per weekend hour, (b) made kids programming a license issue, (c) established National Endowment for Children’s Television to support educational programming, (d) told FCC to limit program-length marketing of toys based on shows’ characters.
7. In 1991 the FCC made rules on toy shows that stopped short of banning them.
8. In 1996 the FCC made rules requiring: (a) three hours per week of children’s educational programming, (b) this is a license renewal issue, (c) the three hours comprise 30-minute minimum segments between 7 a.m.-10 p.m., (d) anti-preemption rules, (e) each station to name a chil-dren’s programming liaison, (f) public quarterly FCC reports.
9. In 1999 the Nielsen ratings showed that all over-air nets were attracting only a small share for their children’s programming, and Fox had almost half of that.
10. In November 1999, the Kaiser Family Foundation released a media use study. It showed kids: (a) watch 2 hours and 46 minutes of TV per day, (b) who are heavy TV watchers also spend more than average time reading,
(c) watch TV five times as much as they read, and (d) read less and less as they grow older.
11. In late 1999, the FCC asked for comment on digital TV license rules regarding kid’s programming and school TV.
How did cablecasting come under FCC regulation?
1. Cablecasting developed outside FCC licensing in 1950s to import TV signals to isolated areas.
2. By mid-1960s CATV was a threat to over-air television.
3. Court found CATV a functional equivalent of antennas, integral to broadcasting, whose control was necessary to FCC functions (U.S. v. Southwestern Cable, Co., 1968).
4. Court upheld FCC rule-making power over CATV (U.S. v. Midwest Video Corp., 1972).
5. FCC exceeded its power by imposing common carrier rules on CATV (Midwest Video v. FCC, 1979).What are the §315 Broadcasting Access Rules?
Equal Time Personal Attack Political Endorsement Fairness Doctrine
Definition All candidates for the same office must be sold equal access opportunity (same class of time) at lowest rate available. Individuals or groups whose integrity has been attacked in controversy important to public must get reasonable reply access. When station endorses candidate, reasonable access must be given to all other candidates for that office. Licensee must give reasonable access to all other views on controversies of public importance.
Notification Burden Licensee has no burden to notify other candidates that an Equal Time situation has been initiated. Licensee has one week after attack to notify of attack time, date and ID; provide script, tape or summary of; offer reason-able reply access. Licensee has 24 hours to notify unen-dorsed candi-dates of time, date and ID of editorial, pro-vide script, tape or summ-ary, and offer reasonable reply access. Licensee had no notification burden.
Who receives access? Candidates get the access; sur-rogate access is limited (Zapple). The identified individuals or spokespersons for the groups are the access candidates. Unendorsed candidates for the same office are the access candidates. Licensee has broad discre-tion as to who gives oppos-ing views. Station staff may do it.
Common carrier? Yes, licensee is libel proof. Yes Yes No
Miscellaneous Rules Movies, non-news docs can invoke E.T. Pres-idential de-bates, bona fide news are exempt. §312 guarantees federal candi-date access. “Reasonable opportunity” often does not remedy. Rule chills RTV from engaging in important controversies but was upheld by Red Lion . Tornillo (1973) found news-paper access law is uncon- stitutional. In the fall of 2000 the FCC and the courts issued an order to come up with a new rule. Red Lion (1969) upheld constitutionality of rule. FCC killed rule in 1987, saying it violated First Amendment.Reagan vetoed revival in 1987.