broadcast and cable regs - barron - spring 2003_4.doc

8/20/2019 Broadcast and Cable Regs - Barron - Spring 2003_4.doc

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Broadcast and Cable Regulations Outline

Professor Barron – Spring 2003

INTRODCTION

A. Broadcasting = first electronic media that reached a massB. Regulated first by

1. Radio Act 19122. Communications Act 19343. Subseuent statutes 4! ".S.C. ##

a. $elecommunications AC$ 199%C. &CC $'(A) * +++.fcc.go,

1. Commissioners * fi,e a--ointed by re/.0 only 3 of any -arty0 and no financial interest in &CCa. o+ell Chairman * re-ublican b. Abernathy * re-ublicanc. Co--s * re-ublicand. artin * democrate. Adelstein * democrat

2. enerally democrats are for more regulation +hile the re-ublicans +ant to let the mar5et ma5e the

choices(. Standards of Re,ie+

1. rint media regulation gets the strict scrutiny2. 'ther media get intermediate * must be substantially related to an im-ortant go,ernment ob6ecti,e3. Rational basis4. Common Carrier

T!" R"#$%TION O& BRO%DC%STIN#' PROB$"(S O& $%)* T"C!NO$O#+ %ND PO$IC+

I, T!"ORI"S O& BRO%DC%ST R"#$%TIONS

%, SP"CTR( $I(IT%TION %ND T!" SC%RCIT+ T!"OR+

-, 'n the scarcity -oint0 Congress had 3 o-tions in creating the &CC

a. $hrough la+suits in,o5ing -ro-erty la+ b. '-ted for outright -ublic o+nershi-c. Create an administrati,e body to de,elo- and enforce a classification system

2, NBC ., S* -/3 1pp, 04

a. Bac5ground * 7et+or5 challenge to the Chain8broadcasting rulesi. Radio Act 1912 ga,e some authority to the Secretary of Commerce. Since there +ere not

many radio stations0 he too5 2 freuencies from the s-ectrum and ga,e them a+ay. o+e,erin the192:s the increase in radio stations led to interferenceSecretary regulated by limiting

hours of o-erations. $he Broadcasters sued and +onii. Radio Act 192!Communications Act 1934

a roblem; Act did not s-ecifically refer to the net+or5s but only to the obligations of theindi,idual broadcasting licensee to be in the -ublic interest. But the net+or5s +ere -roducing the -rogramming and the licensees had no say

b &CC found that agreements bclusi,e affiliation

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i $he -roblem +as that the licensee is the focal -oint to the act and must ser,e the -rogramming needs of the community. o+e,er0 the net+or5s +ere ma5ing the -rogramming decisionsa Chain broadcasting rules aimed to -reclude this sort of control

b $erritorial e>clusi,ityi 7et+or5 bound not to sell -rograms to any other station in the same areaii $he -roblem is that it -re,ents the de,elo-ment of ne+ net+or5s and may

de-ri,e the -ublic of -rograms that might other+ise be a,ailablec $erm of affiliation

i Contracts bound stations for a -eriod of ? yearsii Runs contrary to -olice b


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a (eteriorating relationshi- b some of the chain broadcasting rulesii. &CC is trying to -rotect the net+or5s and facilitate the de,elo-ment of ne+ net+or5s

%4 T!"ORI"S O& $IST"N"RS9 %ND :I")"RS9 R I#!TS

, Red $ion Broadcasting ., &CC* -// 1pp, 4

a. Court recogni/ed a DhierarchyE of com-eting 1st A interests0 and held that some regulation of broadcasters in this case0 the fairness doctrine actually enhanced 1st A ,alues

b. But see $ornillo0 +hich refused to gi,e a Dright of accessE to -rint mediasome courts argue

under this theory that broadcasters ha,e uniue roles as -ublic trustees;, CBS ., &CC* -/


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ii. $o conform to the -ublic8interest standard0 the &CC has to ma5e an indi,iduali/eddetermination0 thus ma5ing the broad8s+ee-ing -olicy statement a ,iolation of the Act. &CChad sho+n inter8format di,ersity e>isted in the J7C7 thus destroying its argument that theformat doctrine +as not feasible.

iii. &CC has had a tradition of granting +ai,ers to e>em-t a -arty from -olicy safety8,al,e.$he dissent +anted a safety ,al,e for e>treme situations in,ol,ing format changes

/, 'ther mar5et-lace argumentsa. &CC Chairman &o+ler argued broadcasters should be concei,ed of as mar5et -artici-ants0 not

trusteesi. Analogi/ed the mar5et -lace model of broadcasting to that of -rint media0 and so argued

for 1st A D-arityE.

%4 R "CONC"PT%$I>%TION B+ T!" SSC

-0, 1st A"SSC has u-held a higher degree of restriction for broadcast than -rint

--, 1st A arity both -rint and broadcast should be treated from the same -oint of ,ie+ but casela+ has

held other+isea. Red Kion holds that the &CC can com-el the broadcaster to gi,e access for the -resentation of

,ie+s it does not re-resent but a ne+s-a-er does not ha,e to b. &CC ,. Keague of Jomen Loters0 --. %@3 the Court indicated that they +ere +illing to

reconsider the basis of broadcast regulation0 -articularly the scarcity rationale.i. Case dealt +< the ublic Broadcasting Act that -re,ented -ublic broadcasters from

editoriali/ing. Called for a signal from the &CC or Congress to abandon the scarcity rational.(id say that it +as content restriction0 and thus sub6ect to intermediate re,ie+

-2, TR%C ., &CC* -/tcomes across a screen so its $L and sub6ect to the eual time rule.i. Court re6ected &CCs argument that the broadcasting -olicies at issue did not a--ly to

telete>t

ii. Court held the form +ords rather than -ictures +as irrele,antG+hat mattered +as the+ay it +as transmitted o,er the air+a,esthen0 the scarcity rationale should still a--ly

iii. Bor5 +as ,ery critical of bifurcated 1st A a--roachthought both -rint and media +ere

deser,ing of 1st A -rotectiona Argues that the scarcity rationale0 as a--lied to broadcast but not to -rint media0 is a

Ddistinction +


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ii. 7o distortion b


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ii Also0 they e>tended the term b


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C, (INORIT+ %ND #"ND"R PR"&"R"NC"S IN T!" $IC"NSIN# PROC"SS

-, &CC Affirmati,e Action rogramsa, Com-arati,e references in rene+al -roceedings

i. "ntil the 199% Act0 the &CC +ould ha,e a com-arati,e -roceeding before an AKF. $heincumbent +ould sho+ ho+ their -rogramming met the -ublic interest. $he insurgent +ouldtry to sho+ the incumbents -roblems and ho+ its -rogramming +ould be better. "suallyresulted in the incumbent being rene+ed

ii. Ashbac5er ,. &CC --. !:4; "SSC held that +hen one -arty a--lies for a license andanother a--lies0 they must each be gi,en a fair o--ortunity to ma5e out their case

b, inority reference; $he &CC follo+ed a -olicy of gi,ing enhancements to a--lications fromgrou-s o+ned or o-erated by minorities

c, inority (istress Sales; &CC also ado-ted a Ddistress saleE -olicy0 +hich said that licenseesdesignated for rene+al hearings could sell their stations to minority8controlled cor-orations at a -rice not e>ceeding !?N fair8,alue0 no uestions as5edi. $he assum-tion behind all these -olicies +as that di,ersification of o+nershi- +ould lead

to di,ersification of -rogramming and ideasd, inority $a> Certificate rograms

i. Hf an o+ner of a broadcast station sold his -ro-erty to minority8controlled cor-orations0he +as allo+ed deferral of ca-ital gains ta>es sometimes com-lete a,oidance associated +<the sale.

2, 3 S'R in Ka+a, Rational basis * -resum-tion of rationality0 most deferentialb, Hntermediate * slightly more demanding0 court as5s if the regulation ser,es an im-ortant

go,ernment ob6ecti,e and is the means used substantially related to achie,ing that ob6ecti,ec, Strict Scrutiny * courts as5s if the regulation ser,es a com-elling or o,erriding go,ernmental

interest and is it narro+ly tailored3, &CC AA * ' olicies; (aor De.elopAents

a, Richmond ,. Croson 19@9; Affirmati,e action case +here "SSC said that +rt a city ordinancegi,ing 3:N construction to minority contractors fell under the strictest standard of re,ie+.

b, etro Broadcasting ,. &CC 199:; "SSC held that an intermediate S'R +ould be sufficient to 6ustify the com-arati,e -references and rene+als and the minority distress sales. (istinction b


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c, O9Connor 1dissent4 argued that a strict scrutiny standard be a--lied to all racial classifications0+hether DbenignE or noti. "nder this standard0 the -references +ere not Dnarro+ly tailoredE there +ere +ays to

increase di,ersification of o+nershi- +


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D, R "N")%$ "P"CT%NC+

-, enerallya, Hn Ashbac5er Radio Cor- ,. &CC --. !:40 the Court held that +here t+o a--licants are

com-eting for a single license0 e< must be considered com-arati,e hearings +ere reuired

2, Central &lorida "nterprises ., &CC* -/-ectancyE

incumbent broadcasters that had -ro,idedDsubstantial ser,iceE +ere afforded a -referencei. Hn the com-arati,e hearing the insurgent said that the incumbent had se,eral ,iolations *

no di,ersification of o+nershi-0 no integration0 mail fraud. $he &CC rene+ed any+ay andthe C$A said this +as arbitrary and remanded. $he &CC then ga,e the elementsconsideration

ii. C$A said that in a rene+al -roceeding0 the incumbent should ha,e a rene+al interesta 7o guarantee that a challengers -ro-osals +ill match the incumbents -ro,en

-erformance b Kicensees should be encouraged to ma5e in,estmentsc Com-aring insurgents and incumbents as if they +ere both ne+ a--licants is

economically un+ise * ha-ha/ard restructuring of the broadcasting industryb, Court u-held Drene+al e>-ectancyE in com-arati,e hearings0 S' K'7 AS it +as not the

controlling factor i. Rene+al e>-ectancy +as to be a factor +eighed li5e any other the better the -ast

record0 the greater +eight Drene+al e>-ectancyE +ould be gi,enc, Court relies on the idea that Drene+al e>-ectancyE is a benefit for the public0 not for broadcasters

i. g.0 it encourages broadcasters to de,elo- ne+ -rogramming and -rogramming in the -ublic interest0 rather than to ma>imi/e short term -rofit

ii. $he -ublic interest is -aramountd, Hs this the a--roach ta5en in #3:95M

i. )es consistent bercise general regulatory su-er,ision o,er the content of broadcasting

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a $he idea +as that the entire listening -ublic +as entitled to ser,ice from the station if

the station +as not meeting a segments need0 they +ere being discriminated against b enerally 1 ser,ice should be +ell8rounded0 and 2 o-inions should be handled

carefully fairness +as e>-ected. &RC a--eal for non8discriminatory -rogramming andfairness in co,erage

b, KLKB Broadcast v. FCC (1931); arly decisions ,indicated the go,ernments right to e>ercise

some content regulation0 arguing that it +as beyond &RC -o+er and that -ublic interest +as broader Db


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i. o+e,er0 Courts ha,e -ut some teeth into the Dissue res-onsi,eE -rogrammingreuirement

ii. (onroe CoAAunications ., &CC* -//0 1pp, 224

a C$A re,ersed a &CC decision rene+ing a license. $he licensee had initially a +ell8rounded -rogram. $hen it became a subscri-tion ser,ice and only issued an hour of non8entertainment -rogramming. onroe challenged rene+al.i $he administrati,e 6udge AKF said that the licensee +as not entitled to a

rene+al e>-ectancy b-ectancy based on its non8entertainment -rogramming

b C$A said that the institution of a dramatic -rogramming change is most indicati,e of thefuture.i $hus the &CC erred and should ha,e focused on this latter change. $he &CC

+as arbitrary in rene+ing the license in light of the fact that the station offered lessthan %N non8entertainment -rogramming.

ii articularly rele,ant in this case +as the stations recent -rogramming o,er last1


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a, KA station broadcasted casino ad,ertising for casinos in KA +hich bled into $ and AR +herecasinos +ere outla+ed

b, A--lying Central udson0 Court struc5 do+n the ad,ertising bans a--lication to the KA stationusing intermediate scrutinyi. Jhile there still e>isted a substantial go,ernment interest0 the ban +as no reasonably

related to that interest there e>isted so many e>ce-tions in $ and AR for Hndian casinos0

etca #13:4 cannot -rohibit broadcasting of -ri,ate casinos +here gambling is legal. A--lyingthe Central udson standard0 -rong one +as not met b


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i. ust be a regularly scheduled +ee5ly -rogramming aired b


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i. Any ty-e of regulation0 +hether content8based or content8neutral +ill be u-held if there isa reasonable basis for the regulation and its ,ie+-oint neutral

d, Court held that indi,idual members of the -ublic do not ha,e a right to -artici-ate in -rogrammingdecisions to com-el -ublic broadcast stations to air a -rogram e,en if refusal +as content8basedi. $he 1st A -rotects 0rivate rather than *overnment e>-ressionG-ri,ate indi,iduals do not

ha,e the right to limit or control the e>-ression of go,ernmentii. $he Court also said that -ublic tele,ision stations are not -ublic forums bercise of editorial discretion by state officials res-onsible for theo-eration of -ublic broadcastersa C$; go,ernment inter,ention that is content based and therefore ob6ectionable

+hen a non86ournalist is ma5ing the decision, &CC ., $eague of )oAen :oters 1pp, 3-ression of editorial o-inions +as one of the chief

reasons for the 1st A. $his +as content8based s-eechi. Hn,o5ed Hntermediate S'R but not strict scrutiny b


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ii. &CC in,estigated under1@ ".S.C. #1343 +hich criminali/es the use of radio to -er-etuatefraud and as5ed for Scotts recordsa Scott argued it +as a ,iolation of his free e>ercise rights and that he didnt ha,e to turn

o,er the documentsb, Court decided t+o uestions;

i. ust the &CC meet a different standard before deciding to in,estigate religious broadcastersM 7'0 &CC does not ha,e to 6ustify its in,estigations and such a -olicy +ouldraise 1st A -roblems in ,iolation of the no8establishment clause

ii. ust there be a different standard +hen actually in,estigating religious broadcastersM

Court says it de-endsGthere must be a com-elling interest0 and the in,estigation must benecessary to further that interesta $he in,estigation must either not infringe on 1st A rights of broadcaster0 or must be

su--orted by a com-elling interestc, Court uses strict scrutiny and found a com-elling interests. $oday the standard +ould be slightly

lesser

G, DI:"RSI&IC%TION O& O)N"RS!IP

-, enerallya, $he $CA significantly rela>ed rules on oners5ip caps e.g. no one entity may o+n more than ?

of each ty0e of broadcast outlet and audience cape no+ at 3?N of the nations $L audience

i. &or radio0 o+nershi- ca-s are generally calibrated to the si/e of the mar5etb, 4 ty-es of rules;

i. '+nershi- ca-s +hich +ere done a+ay +< for $L under the $CAO in radio it iscalibrated to the si/e of the mar5eta 'ne to a mar5et rule studded +< e>ce-tions

ii. Audience ca-siii. Cross8o+nershi- rules e.g.0 cannot o+n $L and radio in the same mar5et

a Jai,er is one of the reasons the cross o+nershi- rule is reasonableiv. (uo-oly rules e.g.0 no more than 2 $L stations in the same mar5et

a Kocal '+nershi- Rule Re,ised (uo-oly Rule 1999 no+ common o+nershi- of 2

$L stations in the same local mar5et is -ermitted if one of the stations is not among the 4highest ran5ing stations in the mar5et A7( @ inde-endently o+ned $L stations remainedin the mar5et

2, &CC ., National CitiHens CoAAittee 1pp, ;34a, &CC had initiated rules +hich -rohibited !t!re licensing or transfer of broadcast stations to those

+ho o+ned a ne+s-a-er in the same community. Rule also said that in mar5et +here the only 1$L and 1 ne+s-a-er e>isted and +ere o+ned by the one com-any0 di,estiture is orderedi. >isting cross8o+nershi-s +ere DgrandfatheredE no di,estiture +as reuired

b, s argued this -olicy ,iolated the 1st A rights of ne+s-a-er o+ners0 and that the distinction bisting and -ros-ecti,e cross8o+nershi-s +as arbitrary and ca-riciousi. Hf a com-any o+ns a ne+s-a-er and +ishes to s-ea5 on broadcasting but cannot then

they are singled out and denied free s-eecha "SSC res-onds that they are not being singled out b


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3, Congress0 Cross8'+nershi-0 and Ru-ert urdocha, 7e+s America ,. &CC0 (.C. Cir 19@@ --. !%1

i. +as about to acuire a $L station in 7)C and Boston. But already o+ned the 7) ostand the Boston erald. $o do this0 the &CC granted tem-orary +ai,ers so could sell thene+s-a-ers.a As the +ai,ers +ere about to run out0 still o+ned the Boston erald b Congress then -assed a resolution saying 1 the &CC could not ree>amine the cross

o+nershi- rule 2 nor could it e>tend the current grants of tem-orary +ai,ers to achie,ecom-liance +< such rules

c At the time only a--lied to sued as a ,iolation of the 1st A

ii. Court held that the challenged act +as unconstitutional +ith res-ect to the second -arta (etermine the a--ro-riate S'R.

i Relying on Sinclair0 &CC +ould claim that it +as structural regulation0 thereforecontent neutral. As long as its reasonable0 it is ,alid.

ii +ould say that its not structural b


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iii. Kimiting the concentration of medial o+nershi- -re,ents cor-orate media fromdominating local media

=, %DI"NC" C%PS

-, &CC established a rule that no one com-any could establish more than 3:N of the nation+ide cableaudience3?N in $elecom Act

a, As a result of the CBS Liacom merger the total audience reach of the com-any +as 41N. $he&CC ga,e them a +ai,er 2, Currently0 no entity * in the aggregate * may reach more than 3?N of the nations tele,ision audience

this is the most significant of the o+nershi- restrictions0 and becoming increasingly more so

a, &CC argues that these must be maintained in the face of their rela>ation of other restrictions e.g.0duo-oly rule this is a good com-romise to -ro,ide some di,ersity of o+nershi-

b, 'rigin is desire to curtail control o,er the national scalec, (o so indirectly by si/e as o--osed to the number of stations o+ned

3, 1st A im-licationsMa, $hese restrictions are clearly content8basedb, Courts ha,e re6ected 1st A arguments

, any net+or5 affiliates su--ort audience ca-s0 bisting ones ha,e both been found +anting by C$A and ha,e been sent bac5 to &CC for

consideration;, (o these audience ca- rules ,iolate the 1st AM

a, 7et+or5s argumenti. 1st A right to s-ea5 to any audience they +ould other+ise be able to reachii. But audience ca-s dont restrict s-eech in the same +ay as a restriction on editoriali/ingiii. Still0 it doesnt mean that all such restrictions are structuraliv. 7et+or5 affiliates belie,e that increasing eh si/e of the ca- +ill essentially fa,or the net+or5s

thus subordinating local interests and fa,oring net+or5 -rogramminga $here +ill be less +or5ing broadcast 6ournalists b


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b, Audience Ca-i. 7et+or5s argued it +as arbitrary and ca-ricious

a &undamentally irrational b Fustifications broadc 7ot determined if necessary for the -ublicd &CC did not address its de-arture from -re,ious rule in 19@4e Congress had inter,ened but changed its mind too * 2?N national broadcast ca-

i 199% changed the ca- to 3?Nf Ca- +as not ,alid to safeguard com-etition -roblemsg Hf #2:2h tal5s about com-etition0 then that means di,ersity cannot be considered

i C$A re6ected this argument b


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ii. &CC had as5ed ho+ to deal +< this and no one res-onded so they left the current system in -lace

c, &CC; $he -resent rules inhibit the acuisition of more stationsi. Consolidated o+nershi- may result in di,ersity of -rogrammingii. $he stronger a communications com-any is0 the better -ublic affairs and co,erage to e,ents

that concern the nation and the communityiii. $he court does not acce-t this argument

a $he "SSC has consistently refused to abandon the scarcity rationale b Bce-tion is Dnecessary in the -ublic interestE under#2:2h

d, (oes the local o+nershi- rule ,iolate the 4th AMi. Court says that the local o+nershi- rule is arbitrary and ca-ricious bclusion of non8broadcast ,oices in the local o+nershi- rule e,en though it included such,oices in another rule

e, Sinclairs 1st A Argument; $o limit the number of ,oices a broadcaster must ha,e is a ,iolation ofthe 1st Ai. S'R; Rational basis b


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a &CC argued that formatting +as irrele,antii Court deferred to &CCs determination the statute +as not clear in its definition of

Qne+scast0 and so the &CC had discretion to inter-ret it for themsel,esiii ne>t argued that #31? s-o5e only to licensees0 not to inde-endent -roducers of

-rogramminga Court says 7' the licensee maintains ultimate discretion o,er +hat is aired

the -roducers of the -rogram are irrele,ant b &ulani ,. &CC

i $hree criteria;a rogram must be regularly scheduledb Broadcaster must ha,e control o,er the -rogramc Broadcaster decisions on format must be based on reasonable0 good faith

6udgmentsii 'JLR0 Courts +ill generally defer to broadcasters e.g.0 a 7ightline s-ecial

that runs at 1:-m is still a bona fide ne+scast0 b


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a. Hn re Adrian Jeiss --. !%9; this means that a station -laying an old Regan mo,ie +ouldim-licate #31?. Ht is irrele,ant that the candidate is a--earing for a com-letely unrelated -ur-oseand ne,er mentions his or her o+n candidacy

b. aulsen ,. &CC; distinction from Jeiss is that Regans acting career +as o,er. $he &CCcontended that a bright8line +as better bem-tions is that the a--earance of the

candidate is itself the ne+s+orthy itemi Hn this case0 the is not himself Qne+s+orthy he is an em-loyeeii $he ne+s documentary e>ce-tions a--lies only of the a--earance of the candidate is

incidental to the -resentation of the sub6ects co,ered by the documentary.3. argues #31? e>tinguishes his right to run for office

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a. Court says 7' #31? does not e>tinguish anyones right to run for office0 it merely im-oses

some conditions and sacrifices no right to run for office and at the same time a,oid all -ersonalsacrificei $he burdens im-osed by #31? are 6ustifiable

4. argues #31? ,iolates the 1st A0 by infringing broadcasters rightsa. Court says 7' broadcast medium is entitled to less 1st A -rotection than -rintGs claim is

foreclosed by Red Kion this is a much lesser burden than that im-osed u-on broadcasters by RedKioni Hts not a considerable burden b


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d. "SSC said broadcasters could consider ? factors +hen deciding +hether to gi,e time under#312a! broadcaster +ould be gi,en deference so long as their determination +as reasonable

and in good faith;i $he indi,idual needs of the candidateii $he amount of time -re,iously -ro,ided to the candidateiii otential disru-tion of regular -rogramming

i, 7umber of other candidates li5ely to in,o5e eual o--ortunity, $iming of the reueste. "SSC re6ected (s argument that &CC should not be able to decide +hen a cam-aign DstartsE for

the -ur-oses of #312i &CC is not determining a starting date0 but using ob6ecti,e criteria to decide +hether a

cam-aign has already commencedf. &inally0 "SSC re6ected (s argument that #312 +as unconstitutional broadcasters acce-t0 as a

condition of their license0 that they +ill be burdened by enforceable -ublic obligationsi Broadcasters cannot ha,e a blan5et -olicy that a--lies to all federal candidates +rt #312a

!. $o allo+ that +ould be an incorrect reading of the statute b


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i Court argues that if you inter-ret #312a! to include eual time obligation0 it destroys the -ur-oses of the #31? e>em-tions

ii also argued that the &CC should ma5e a decision about +hether a broadcast is e>em-t afterthe fact * Carter said he +as going to tal5 about the economy but then blasted a Court said that it had to res-ect the broadcasters bona fide 6udgment -rior to the

broadcast b-licit reser,ation if it turns out that the fairness doctrine

has the net effect of reducing rather than enhancing the ,olume and uality of co,erage0 it may bereconsidered

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3. Rele,ance of Red Kiona. $he most im-ortant holding in Red Kion is that these are structural regulations0 rather than

content6based regulations0 and so deser,ing of rational re,ie+ b. Since Red Kion0 the &CC has decided the Qfairness doctrine does more to chill e>-ression than to

-romote it0 and has abandoned iti &CC is also more interested in 1st A -arity these days

, ".olution and Renunciation of t5e &airness Doctrine

a. 19@48 Hnuiry into the &airness (octrine --. @13i 'riginal a--roach +as to analy/e e< licensees -rogramming as +orld itself * Fust consider the

broadcast s-ectrumii $his re-ort loo5s to the -lethora of outlets media and -rint and as5s to consider something

beyond the indi,idual licensees -rogramminga $hought the &( had a chilling effect * fear that rather than be bound by the doctrine0 a

broadcaster may not choose to co,er a -articular issue0 thus not increasing di,ersity of,ie+-oints

iii (id the 19?9 amendment to #31? codify the doctrineMa Hf so0 the &CC could not change it and neither could the courts unless they declared it

unconstitutional b 3 alternati,es;

i Congress meant to ma5e it a statutory reuirement for broadcasters to follo+ &( in

its entiretyii eant to ensure by the statutory language that the Commission +ould a--ly &( to

-rograms e>em-ted in #31?iii erely ac5no+ledge that the &( e>isted +ious to 5ee- ne+ technology from being sub6ect to regulatory -oliciesiii C$A held that &( did not a--ly to telete>t and that Congress had0 at most0 intended to affirm

that the &CC could -romulgate the fairness doctrine but had not mandated it not codified

e. 19@% * Congress; Study Alternati,e eans of nforcing &(i Said the &CC had to do such a study if &( thro+n out to u-hold the basic ideas of the doctrine

f. 19@! * eredith Cor-. ,. &CC

i eredith o+ned J$L and a--ealed their ,iolationii C$A ,ery sym-athetic and suggested that &CC re,isit the +hole thing and in light of the19@? re-ort0 it should confront the 1st A and -ublic interest issues

iii An agency generally does not ha,e the -o+er to consider or in,alidate on constitutionalgrounds a regulationa C$A said that in these circumstances the &CC should consider b


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a Both +anted to get rid of &( but neither +anted to ta5e the res-onsibility of stri5ingdo+n an act of Congress

ii Abolished the doctrine and referred to C$As reuest to ta5e the heat off a Chills s-eech that is not narro+ly tailored to meet the go,ernmental interest b Contra,enes 2d -art of Red Kion * that if circumstances change then consider 1st A

iii Rebuts the bifurcated 1st A a--roach * treat -rint and broadcast under 1st A -aritya (ont need a license for -rint0 but do need a license for broadcasting

i Hts the go,ernment that gi,es the license and 5ee-s out the com-etition.ii Adamant that the license has nothing to do +< +hether broadcast should be treated

differently than -rint media0 but actually sho+ that the t+o are differenti, Alternati,es to &( -resented to commission --. @2:

a (esigned to ma5e &( milder * All the ideas +ere re6ected and &( abolished b Jhy not 6ust consider the matter at rene+al timeM $hen the station +ont ha,e to +orry if

its in com-liance e< time.i Behind this is that +ould need a +hole -attern to deny rene+alii ro-osed b


27/57

a "nion contended that the &( +as in fact codified in #31? and that $RAC +as mista5en0so the &CC could not abandon it

b Court said #31? merely intended to maintain the status uo at the time0 rather than toim-ose a ne+ statutory obligation &( is not codified

i Koo5s codified but legislati,e history argues other+ise0 so &CC should consider itii 199% * Coalition for a ealthy CA ,. &CC 9th Cir.

a n,ironmental grou- brought a -etition for the &CC to declare the &( codified b &CC failed to actc rou- +ent to 9th Cir for a +rit of mandamus to get the &CC to act one +ay or another d &CC still failed to act so +ent to C$A and as5ed it to issue its o+n ruling. C$A

refused saying it +as u- to the &CC

I:, R"#$%TOR+ %ND -ST % ISS"S IN C%B$"

%, !ISTOR+ O& C%B$" R "#$%TION

1. enerally0 --. @4@a. arly on0 some cable com-anies reali/ed that larger mar5et broadcast stations +ere better0 and

started -ic5ing u- their signals and deli,ering them to their largely rural subscribers local

broadcasters +ere u-set and +ent to the &CCi &or a long time the &CC too5 the -osition that it didnt ha,e any 6


28/57

occu-ancy -ro,isions for ,ertically integrated entities0 -remium channel notice -ro,isions0immunity for munici-alities0 and channel set8asides for (BS

, Daniels Cable.ision ., S* -//3 1pp, ce-t for (BS and -remium

channel notice b


29/57

i Court re6ected this content neutral substantial go,ernmental interest -romotion of fair

com-etition in the ,ideo mar5et-lace and narro+ly tailored do not burden substantiallymore s-eech than is necessary

ii reference for multi-le s-ea5ers as o--osed to -reference of one s-ea5er o,er the other g. -remium channel Qnotice -ro,ision +as unconstitutional

i Court re6ects this this is a disclosure -ro,ision0 not a direct restriction on s-eech further0

this is less of a burden than the Qsafe harbor -ro,ision of acificaii $atel dissent on this -oint b


30/57

a 183 non8commercial broadcastiii Cable system +< more than 3% channels

a ach local broadcaster c. Jhen the cable system carries the local broadcast station is must ha,e the same numerical

designation than it +ould o,er broadcast2, Turner Broadcast ., &CC – Turner I* -// 1pp,


31/57

i. (OST im-ortant in this case0 the "SSC re6ected the broadcast standard of scrutiny Red Kion for cablei Hnstead;

a Content neutral; 'Brien standard b Content based; strict scrutiny

6. After $urner Hi 'n remand0 the three 6udge -anel held that must carry satisfied the 'Brien test

a DBottlenec5E -roblem is sufficient to establish a threat to broadcasting b $he must8carry rules sur,i,e the Dintermediate le,el of scrutinyE b


32/57

a $urner H * the theme +as multi-licity if s-ea5ers0 local interest b $urner HH * doesnt not address this0 but tal5s about anti8com-etition. But its b


33/57

i4 a5es satellite more com-etiti,e to cableii Carry one * carry all

a4 As a tradeoff to the statutory U license0 satellite broadcast o-erators had to -ic5 u- all thelocal signals and not 6ust the net+or5 affiliatesi4 Jent into affect later than statutory license -ro,ision 19992::2 at urging of

cable industry that +anted regulator7 parit7

b4 roblem for the industry b


34/57

b. Circuit Court affirmed +< 4 main -ointsi 'bscene material is un-rotected by 1st A0 ho+e,er0 a state statute must be carefully limited

iller ,. CAii $he obscene material +as not uestioned0 but the definition of +hat is indecent +as 8 +ent

beyond iller definitiona4 (efinition outside the sco-e on t+o as-ects

i4 'rdinance does not reuire that the challenged materials ta5en as a +hole0 a--eal tothe -rurient interest in se>

ii4 'rdinance does not inuire +hether the materials0 ta5en as a +hole0 do not ha,eserious literary0 artistic0 -olitical0 or scientific ,alue

iii "SSC decision in acifica cannot be a--lied in this casea4 (oes not a--ly bist +ere it not for Congress -ro,iding for them0 sothey ha,e more control o,er their content lastly0 cable has become NIJ"$+

P"R:%SI:"

a4 Breyer considers cable to be 6ust as -er,asi,e and in,asi,e as broadcastingb4 Breyers S'R here0 to the e>tent that it e>ists0 so!nds li5e strict scrutiny but acts more

li5e a $urner HH balancingii #1:b struc5 do+n the reuirements ha,e restricti,e effects on subscribers access to

these channels finally0 the added costs and burdens on cable o-erators may encourage them

not to ma5e this a,ailable at alla4 Breyer essentially concludes this is not narro+ly tailored

iii #1:c struc5 do+n go,ernment failed to sho+ that there +as a sufficient -roblem of

indecent and obscene -rogramming on s there +ere also distinctions b


35/57

, Pla7bo7 "ntertainAent #roup ., S* D, Del, -// 1pp, -licit or indecent -rogramming -ro,ision +as an attem-t to -rotectfrom signal bleed if the signals could not be fully scrambled0 the -rogramming must be

restricted to Qsafe harbor hoursi s argued full scrambling +as -rohibiti,ely e>-ensi,e and so +as in effect a daytime bad on

their -rogrammingb. Court held this did not ,iolate the 1st Ai Signal bleed is not -rotected s-eechii $his +as aimed at the secondary effects of such s-eech0 not at the s-eech itself iii Cable is uniuely -er,asi,e see (en,er Area and so 6ustified acifica le,el of scrutiny

;, Pla7bo7 "ntertainAent #roup ., S* SSC 2000 1Supp* pp, -4

a. Iennedy held that this +as a content based regulation sub6ect to strict scrutiny

i Re6ected the Qsecondary effects rationale0 b


36/57

b4 $his +as a total ban +< no o-tion of channelingi. $here +ere ,arious technological screening de,ices to 5ee- 5ids a+ay from the -orn

c. (en,er Area ,. &CC 199%; Cablei Breyer -lurality o-inion tried to de,elo- a ne+ theory of content regulation

a4 Suggest that content8neutral


37/57

ii Court holds instead that Qgo,ernment use relates to the "R'S of the use0 not the -ersonusing it -rogramming must ha,e a go,ernmental -ur-ose this reasoning may be sub6ect to

1st A challenge btent that an agency +as as5ing themto carry &'0 it ,iolated #?44f and 1st Ai Court addressed #?44f argument * de-ends on +ho o+ns the channelsM

a4 $ime Jarner ne,er o+ned and ne,er +ill b


38/57

i Case in,ol,ed an a--eal to the &CC 'rder outlining t+o ty-es of limits on cable o-erators;a4 ori/ontal; im-osed a 3:N limit on the number of subscribers that may be ser,ed by a

S'0 including subscribers to satelliteb4 Lertical; set a 4:N channel ca-acity rule0 reser,ing %:N for -rogramming by non8

affiliated firmsii Court a--lied intermediate scrutiny * &CC has to sho+ it does not burden substantially gi,en

the interestsa4 Same ,alid interests as in $urner Hb4 ust ma5e a sho+ing about the effects of the regulationc4 Remanded for absence of sho+ing

iii Kegal basis for almost de no,o re,ie+ of &CCs findingsa4 "se the 'Brien standard almost as if it +ere strict scrutiny but F. Jilliams focuses on

+hether more s-eech is being restrained than necessaryb4 Both the limits to restrain more than necessary

i4 ori/ontal restricts the number of ,ie+ers to +hom they can s-ea5 ii4 Lertical restricts the editorial control of S'siii4 Hntermediate S'R bceeds the sco-e of the statutea4 Congress only meant to limit indi,idual cable o-erators absent e,idence of collusionb4 &CC failed to gi,e e,idence that 3:N is necessary * only 4:N needs to be reser,ed

i4 As long as %:N there +ould be 2 cable o-erators and other+ise &CC must sho+collusion

ii4 'nly 6ustification offered by &CC regarding collusion is that all other things beingeual0 collusion is more li5ely +hen there are more firmsa But this doesnt say that the hori/ontal limit is. $hin5s $urner H reuires that the

&CC dra+ Dreasonable inferences based on substantial e,idence.Ei Barron uestions this b-licit holding that there must be

inde-endent 6ustification of something Congress already saidc4 $hought the ca- should focus on the number of homes rather than the number of

subscribers bclusion

d4 Hf remanded bac5 to Jilliams0 he +ould reuire much more data and -roof ofanticom-etiti,e beha,ior and +ould -robably set the limit at ?:N

. !olding 2; Lertical limit also remanded for lac5 of 6ustificationa4 4:N limit seemed to ha,e come out of thin air b4 &CC should ha,e e>em-ted those S's sub6ect to effecti,e com-etition then rate

regulation rules did not a--lyc4 &CC argued not intended to be used in that conte>t but court said &CC should ha,e

changedd. o+ell is thin5ing of im-lementing Dsoft ca-sE

i Shift the focus of o+nershi- limits to mar5et8by8mar5et measures of local concentrations;, $he (ual 7et+or5 Rule

a. Hn 2::10 the Commission modified the dual net+or5 rule to -ermit acuisition of "7 or the JB by one of the four ma6or net+or5s. $he &CC based the decision on the increased com-etition for,ideo -rogramming and the continued gro+th of multi8channel ,ideo -rogramming distributors

$ HSS( 7'$S 3


39/57

b. Ht has also re6ected a reuest to force cable com-anies to rent some of their leased access channelsto HSs

3, ho+e,er0 some cities ha,e -assed o-en access regulations or made o-en access a condition fora--ro,ing cable franchise transfers

, %TMT ., Cit7 of Portland* /t5 Cir, 2000 1Supp* pp, --04

a. s challenged the citys o-en access -ro,ision0 arguing it ,iolated the 1st A and the $CAi $he ability to regulate in this area de-ends on +hether HSs o,er cable are considered a Qcable

ser,ice for the -ur-ose of the $CAa4 Courts ha,e since held that this a Qtelecommunications ser,ice0 and so may 7'$ be

regulatedb. As to s constitutional claims0 the court ruled this +as an economic regulations0 not a content

based e,en if this regulation did affect s-eech0 it +ould -ass under the 'Brien test

i 'ther courts ha,e sub6ected o-en access la+s to strict scrutiny0 arguing that they are content8 based

c. $hus far0 no o-en access -ro,ision has sur,i,ed court challenge although courts differ in the 6ustifications for stri5ing them do+n

:, S"$"CT"D PROB$"(S O& ("DI% $%) – OBSC"NIT+ %ND IND"C"NC+

%, GDICI%$ ST%ND%RDS O& OBSC"NIT+

-, (iller ., C%* S -/3 1pp, 034

a. "SSC ado-ted a ne+ test for obscenity0 +hich consisted of 3 factors for the trier of fact usuallythe 6ury to consider;i Jhether the a.erage person0 a--lying conteAporar7 coAAunit7 standards could find that

the +or5 * $AI7 AS A J'K * a--eals to the -rurient interestii Jhether the +or5 de-icts or describes in a patentl7 offensi.e a70 se>ual conduct

s-ecifically defined by the a--licable state la+iii Jhether the +or5 * $AI7 AS A J'K * lac5s serious literary0 artistic0 -olitical0 or

scientific ,alue b. "SSC re-laces a national standard of obscenity +< a community standard * trying to get itself out

of the business of determining obscenity this has been largely successful2, DLariable 'bscenityE * in/burg ,. "S

a. "SSC ruled that +here the -ur,eyors sole em-hasis is on the se>ually -ro,ocati,e as-ects of her

-ublication i.e. they mar5et it as obscene0 they can be ta5en at their +ord in other +ords0material can become obscene by the +ay it is mar5eted

B, GDICI%$ ST%ND%RDS O& OBSC"NIT+

-, &CC ., Pacifica &oundation* S -/< 1pp, 04

a. &CC enforced a list if D! dirty +ordsE +hich0 +hile not rising to the le,el of obscenity0 +ereconsidered indecenti &ollo+ing the broadcast of eorge Carlins monologue0 had a Qdemerit added to their file

challenged the &CCs indecency regulations

b. "SSC first held that the &CC +as not -rohibited by statute from re,ie+ing the content ofcom-elled broadcasts * only -rohibited from -rior re,ie+0 +hich is not at issue here

c. Ste,ens0 for the Court0 holds that the conce-t of indecency is not unconstitutional in the broadcasting conte>t

i &irst0 broadcasting medium is uniuely -er,asi,eii Second0 broadcasting is uniuely accessible to children

c. Ste,ens is arguing for a conte>tual a--lication of the 1st A0 de-ending on the circumstances of the broadcast0 the time0 etcGi Jhile he concedes that Qindecent material cannot be banned outright0 he says it may be

Qchanneleda $he conce-t of indecent is intimately connected +< the e>-osure of children to language

that describes in terms -atently offensi,e as measured by contem-orary communitystandards for the broadcast medium0 se>ual or e>cretory acti,ities and organs at times ofday +hen there is a reasonable ris5 that children may bei in the audience

39


40/57

i 7o -rurient interest reuirement li5e obscenityii $hus a more stringent le,el of regulatory and 6udicial su-er,ision is +arranted

d. Hn dissent0 Brennan argues this is cultural elitism on the -art of the Court there should be no

sliding scale of -rotected s-eech +hich de-ends on ho+ ,aluable the Court imagines the s-eech to be

2. 'bscenity and indecency continue to be used interchangeably0 e,en though the "SSC did -ro,ide a

com-arati,ely definiti,e descri-tion in iller

C, CON#R"SSION%$ ST%ND%RDS' T!" CO((NIC%TIONS D"C"NC+ %CT O& -//

1. rior to the $CA0 federal la+ forbade the use of tele-hone or cable for obscene0 le+d0 lasci,ious0filthy0 or indecent comments suggestions0 or -ro-osals. 'bscene material could not be -art of interstatecommerce

2. 199% Communications (ecency Acta. Criminali/es any interstate or foreign telecommunication that is Dobscene0 le+d0 lasci,ious0 filthy0

or indecentGor that de-icts or describes0 in terms -atently offensi,e as measure by contem-orarycommunity standards se>ual or e>cretory acti,ities or organs

b. Criminali/ed in interstate or foreign communication le+d or lasci,ious transmissions on theHnternet

3. Court -re,iously re6ected strict scrutiny in acificaa. )et0 the ,ery +ord indecent is challenged in some o-inions as being unconstitutionally ,ague and

the +hole conce-t of indecency regulation is being challenged b. (oesnt o,errule acifica but raises uestion as to +hether it can endurec. layboy * used a standard of great care and caution balancing testd. Standard for indecency in broadcast and cable seems to be in flu> and Barron thin5s it +ill be

influenced by Hnternet cases4. %$C ., Ganet Reno* ",D, Pa -// 1pp, -;4 * $hree Fudge Court Case

a. s brought a challenge to 2 -ro,isions of the C(Ai rohibition on the 5no+ing transmission of indecent messages to children under 1@ii rohibition on the 5no+ing0 sending0 or dis-laying or -atently offensi,e messages to a -erson

under 1@iii $hree 6udge courts only +hen Congress is enacting a la+ that it thin5s +ill ha,e constitutional

-roblems b. A ne+ electronic medium calls for analysis by analogy. ere0 the uestion +as +hether the court

should use Sable case struc5 do+n ban of indecent s-eech on tele-hone or acificai Hnternet is more li5e tele-hony b


41/57

d. o,ernment argued that ('F +ould not go after -eo-le -osting informational content0 that it+ould limit its a--lication of the C(A in a reasonable fashioni Court says that there are many "S attorneys around and issued an -reliminary in6unctions

such that consistency could not be guaranteedd. Court refused to limit the statute to -atently offensi,e and indecent messages b


42/57

tagging0 e>ce-tions for certain material0 tolerance for -arental choice0 regulation -ortions of the Hnternet differently

%. %s5croft ., %C$* 2002 a. Child 'nline rotection Act C'A -rohibits any -erson form D5no+ingly +< 5no+ledge of the

character of the material0 in interstate or foreign commerce by means of the Hnternet ma5ing anycommunication for commercial -ur-oses that is a,ailable to any minor that includes any materialthat is harmful to minors.Ei C'A does not a--ly to emailii C'A is limited to commercial communicationsiii "nli5e C(A0 +hich -rohibited indecent and -atently offensi,e materiali, C'A only restricts material harmful to minors

b. (efines material that is harmful to minors as material that the a,erage -erson a--lyingcontem-orary community standards +ould find as designed to a--eal to the -rurient interests +rtminorsi $a5e the iller -rongs and add D+rt minorsE

c. Ko+er court granted a -reliminary in6unction and C$A affirmedi (C in this case too5 the -osition that it +as ,ague and o,erbroadii C$A affirmed the result but on different grounds * that it +ould be sub6ect to the most

-uritanical community and thus restricts content too muchd. "SSC * confronted definition of contem-orary community standards $homas

i "se of such language did not ,iolate 1st Aii Jrt all other matters rele,ant to ,alidity of C'A0 Court did not -ass on itiii $homas o+n ,ie+ of community standards * not a geogra-hic area0 6uror +ill dra+ on

-ersonal 5no+ledge of the community from +hich he comes but no need to definea 'nly 6ointed by Scalia and Rehnuist

!. Com-aring Reno and broadcastinga. Ste,ens argued that the rela>ed le,el of scrutiny gi,en to broadcast regulations +as ina--ro-riate

in the internet conte>t bual or e>cretory acti,ity in a -atently offensi,e +ay to contem-orary community standardsii #1:b reuired the &CC to -romulgate rules reuiring cable o-erators +ho chose to transmit

indecent material o,er leased access channels to segregate such -rogramming on a se-aratechannel that is bloc5ed unless subscriber reuests other+ise

iii #1:c mandated the &CC to issue regulations that +ould authori/e cable o-erators to deny

the use of s to -rogramming +hich contained Qobscene material0 se>ually e>-licitconduct0 or material soliciting or -romoting unla+ful conduct b. "SSC;

i #1:a u-held com-elling go,ernment interest in -rotecting children insburg

further0 these channels +ould not e,en e>ist +ere it not for Congress -ro,iding for them0 sothey ha,e more control o,er their content -ro-erly balanced 1st A interestslastly0 cable

has become NIJ"$+ P"R:%SI:"a4 Breyer considers cable to be 6ust as -er,asi,e and in,asi,e as broadcasting analogous to

acificab4 Ka+ also fle>ible b


43/57

c4 Breyers S'R here0 to the e>tent that it e>ists0 so!nds li5e strict scrutiny but acts moreli5e a $urner HH balancing

ii #1:b struc5 do+n the reuirements ha,e restricti,e effects on subscribers access to

these channels finally0 the added costs and burdens on cable o-erators may encourage them

not to ma5e this a,ailable at alla4 "nli5e #1:a0 the la+ +as not -ermissi,e and there +ere alternati,es a,ailable that

+ould not ha,e abridged free s-eechb4 Breyer essentially concludes this is not narro+ly tailorediii #1:c struc5 do+n go,ernment failed to sho+ that there +as a sufficient -roblem of

indecent and obscene -rogramming on s there +ere also distinctions bclude borderline -rogramsc4 "nli5e lease access channels0 s are sub6ect to community o,ersightd4 (id not thin5 the go,ernment sho+ed that there +as a significant ris5 of -atently

offensi,e -rogramming on the channeli4 similar to a -ublic easement * ne,er the -ro-erty of the cable o-erator ii4 $homas does not agree +< this * o+nershi- rights should trum- e,erything else

d. Souter0 in concurrence0 agreed +< Breyer that cable has become so uniuely -er,asi,e that cableindecency should be 6udged on the acifica standard

e. Iennedy0 in concurrence and dissent0 argued that all of these sections +ere unconstitutional

argued acifica +as not a--licable in this conte>t continues to stress differences b-ression the legislature can regulate it as it +ishesa, At time of Roth0 Courts established a t+o8tiered a--roach to 1st A regulation

i $hat +hat +as -rotected by 1st A and that +hat +as not obscenity2. Katter X of 2:th Century0 the courta ha,e been reluctant to create lesser or un-rotected categories of

e>-ression

43


44/57

a, Fustification * "S re6ects a F5arAs6effect8 rationale; it is not an argument for the non8-rotectionor lesser -rotection of s-eech that it is offensi,e to usi ; grou- defamation not generally sub6ect to regulation e,en though the messages do affect

members of minority grou-s. $he -osition is that the ris5s of such regulation banning ideasand categories of s-eech is a dangerous -ath

ii Classic case re6ecting this rationale; Cohen ,. CA0 +here a young man during Lietnam sat inthe court +earing a 6ac5et that said D&uc5 the (raftE. Court held that this +as -rotecteds-eecha State rationale is that a +oman +as in court +< her children and that this +as offensi,e.

arlan; Done mans ,ulgarity is anothers lyricE0 there is no category of offensi,e s-eech b-licit ,ideos by arguing the material +as no obscene

i ( con,icted of ,iolating to 7) child -ornogra-hy la+s e,en though that -ornogra-hy +as noobscene +ould not a--eal to the a,erage -ersons -rurient interest

ii C$A said that the di,iding line b could not be singled out 7) la+ in,alid as

underinclusi,eb, Jhite unanimous

i Court says that states may a--ly more rela>ed standards than those outlined in iller in orderto -rotect minors from e>-loitation and abusea $his changes the rationale rather than focusing on +ho is the reci-ient of the material0

this focuses on +ho is de-ictedii C$As o-inion +as entirely reasonable in 5ee-ing +< "SSCs -rior decision. o+e,er this

+as the Courts 1st o--ortunity to deal +< material in,ol,ing child -ornogra-hyiii Court has ? 6ustifications for u-holding the -rohibition on child -ornogra-hy * e>-ression

other+ise not obscene in,ol,ing children in se>ual acts can be -unished by the statea State has an interest in safeguarding the -hysical and -sychological +ell8being of a minor b (istribution of -hotos related to se>ual abuse of childrenc Ad,ertising -ro,ides economic basis * the only +ay to shut do+n the industry is to cut

off its channels of distributiond Ko+ social ,aluee Classifying such material as outside 1st A -rotection is not incom-atible +< -rior

decisionsc, $his may be a case +here -ragmatics 6ustifies the o,erbreadth i.e. na5ed children in medical

boo5si Statute is facially o,erbroad can thin5 of an a--lication that +ould reach -erfectly

-rotected e>-ressionii $he reuirement0 ho+e,er0 is substantial o,erbreadthiii $he la+ might yield some -ermissible infractions this statutes legitimate reach d+arfs its

im-ermissible a--licationsd, SuAAar7; >-ression that may be on the other side of the line0 if it in,ol,es child -ornogra-hy0

may regulated by the state

i Sounds li5e strict scrutiny but does not include the narro+ly tailored -rongii >-ands the categories of -rotectioniii Basis of the o-inion is not lo+ ,alue0 but the 5arAs6effect rationale * i.e.0 children

2. Ko+er state and federal courts a--ear determined to -rotect the -hysical and -sychological +ell8beingof children but ha,e used the least8restricti,e means -art of strict scrutinya, ,S, ., ".ergreen (edia* N,D,Ill -//3 1pp, 3/4

i ( +as the licensee JK"8A0 Chicago that had an afternoon sho+ called the Ste,e andarry sho+. $hey discussed in a le+d manner Lanessa Jilliams -enthouse -ictures. $heyalso had a D5iddie8-ornE caller.a Someone com-lained to the &CC

44


45/57

i &CC has authority to enforce 1@ ".S.C. 14%4 * -rohibits broadcasting of obscenity0in,ol,ing fines or im-risonment

ii 4! ".S.C. ?:3B1( allo+s &CC to issue forfeitures for ,iolations fo #14%4 andthat is ho+ things ha,e generally -roceeded

b After a 7otice of A--arent Kiability the &CC issued a forfeiture order and then denied,ergreens motion to reconsider

ii ".S. (C * &CC files com-laint to collect Y%5 fine. (0 ,ergreen counterclaimed allegingunconstitutionality of #14%4 on ,agueness and o,erbreadth groundsa &CC defines as indecent Dlanguage or material that de-icts or describes in terms -atently

offensi,e as measured by contem-orary community standards for the broadcast medium0se>ual or e>cretory acti,ities or organs.Ei Hn acifica0 the &CC defined indecency differently; conce-t of indecent is intimately

connected +< the e>-osure of children to language that describes in terms -atentlyoffensi,e as measured by contem-orary community standards for the broadcastmedium0 se>ual or e>cretory acti,ities and organs0 at times of dayG $his is clearlymore restricti,e b-andediii ?


46/57

i o+ell; there should be no hierarchical -rotection. e thought it +as a time8-lace8mannerregulation 88W only had to be reasonable

3. City of Renton ,. laytime $heaters; 'rdinance aimed to concentrate adult theatersa, Court u-held the ordinance under the secondary8effects doctrine * a time0 -lace0 and manner

regulation designed to -reser,e the uality of urban lifeb, City not regulating b


47/57

i, any of the same issues are made to grou- defamation arguments in mediaa (e-ictions of subordination of a grou- that is subordinated only further subordinates

them b Court does not deny this

:, R"#$%TIN# OBSC"NTI+ %ND IND"C"NC+ IN BRO%DC%STIN# B"&OR" T!" &CC %ND

T!" &"D"R%$ CORTS

%, T!" B%SIS &OR R "#$%TION

-, Statutea. 4! ".S.C #32% -rohibits &CC censorshi- b. 1@ ".S.C. #14%4 -rohibits broadcasting any Dobscene0 indecent0 or -rofane languageE are these

consistentMi So long as the &CC is not enforcing #14%4 directly0 )S that is0 #14%4 is enforced by the

('F0 or tangentially by the &CC through rene+al -roceedingsa Hn 19@:s0 the &CC as5ed the ('F to enforce #14%4 but then changed its mind

ii Hn acifica0 the Court said that #32% +as ina--licable to #14%40 so the &CC is not free toenforce that statute itself

2, Sonderling Broadcast Corp* )#$D6&(* -/3 1pp, ual to-icsi &CC said this ,iolated #14%4 and im-osed a forfeiture

b. &CCs decision in this case +as based on the Roth national standard of obscenity -re8iller

+hile this +as being a--ealed0 iller +as decidedc. S'0 ho+ does the &CC determine #14%4 obscenity uestions in light of illers community

standards testMi Court in this case said the AKF could ma5e these determinations of local community standards

a Should the AKF be forced to ma5e some factual findings as to the community standardsMCourt doesnt say so e>-licitly

b Hs it fair for the &CC through the AKF to ma5e 4!dicia$ determinations of obscenity i.e.this doesnt gi,e any notice to the broadcaster that +hat they are airing is obscene

d. C$A u-held the decision * the material could be constitutionally ,ie+ed as obscenei aterial didnt really seem obscene but the court got around this by referring to in/burg ,.

"S; commercial e>-loitation of erotica not other+ise obscene could be -ercei,ed as obscenee. F. Ba/elon dissent; t+o -roblems b


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i .g.0 that the broadcast is 1 -atently offensi,e by contem-orary community standards or theroadcast media0 and 2 is utterly +t

b. 7J S$A7(AR(; after acifica0 the &CC returned to a generic definition of indecency action

is li5ely +hene,er broadcasts de-ict or describe se>ual or e>cretory acti,ities or organs in a

-atently offensi,e fashion or the roadcast media at a time of day +hen children are li5ely to bein the audiencei "-held in Act H

B, &CC R "#$%TION O& IND"C"NT PRO#R%((IN#' C!%NN"$IN#

-, Chronology of the Hndecency Conce-t in Broadcasta. ! dirty +ords * J") 19!: b. &CC ,. acifica 19!@c. JCB8$L * 7arro+ness u-heldd. 19@! * 7e+ generic indecency standarde. 19@@ * Act H * generic -olicy V safe harbor u-held

i Re6ected a ,agueness challenge on the ground that no such infirmity had been seen in the"SSC case

f. 19@@ * Congress im-osed a total 248hour ban on indecent -rogrammingg. 1991 * Act HH * total ban struc5 do+n * case remanded do+n to &CC to come u- +< ,alid safe

harbor i ',erbroad b


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ii Hn using strict scrutiny0 the court em-hasi/ed the uniue accessibility of radio and $L * in thatthese mediums may be sub6ect to stricter regulations acifica

d. Court re6ected s argument that the generic definition of indecency +as unconstitutionally ,aguei Court -oints out that it cant be too s-ecific bually e>-licit material not against things +< literary


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;, Sable CoAAunications ., &CC* S -/


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iv Cant say the -rocedure lac5s ( or is other+ise unconstitutionald. Claim 2; Current a--lication is unconstitutional

i Court re6ected s argument that this +as not being a00$ied constitutionally0 bcretory organs or acti,ities

ii $he broadcast must be 0atent$y oensive as measured by contem-orary community standardsfor the broadcast medium * not a local determination and does not encom-ass any -articulargeogra-hic area

a Rather0 the standard is that of an a,erage broadcast ,ie+er or listener c. Hn determining +hether the material is -atently offensi,e0 the !$$ conte5t in +hich the material

a--eared is critically im-ortant. $he -rinci-al factors are;i $he e50$icitness or *ra0hic nat!re of the indecent materialii Jhether the material d-e$$s on or re0eats at $en*th the indecent materialiii Jhether the material a--ears to 0ander or is !sed to titi$$ate0 or +hether the material a00ears

to have een 0resented or its shock va$!ed. Actual enforcement -rocess includes minimum reuirements of; 1 a full or -artial ta-e or

transcri-tO 2 the date and time of the broadcastO and 3 the call sign of the station in,ol,ede. Commissioner $risanti dissented arguing that the statement -er-etuates the myth that the

indecency standard is ,ague and too difficult to a--ly that it needs a -olicy statement2, Soon after this -olicy statement0 the &CC issued a 7AK for broadcast indecency against a radio station

that aired the Dradio editE ,ersion of an minem song

a. eo-le claimed that the &CC +as increasing indecency enforcement but it denied this3, 2::: &$C re-ort on mar5eting ,iolent content to children

a. &ound that adult8rated mo,ies +ere being ad,ertised e>tensi,ely during childrens $L -rograms. b. Kiberman s-onsored a bill to authori/e the &CC to fine com-anies mar5eting adult8rated content to

children

$ HSS( 7'$S 4


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g. R'; creating o--ortunities for e>-ression is as im-ortant as ensuring the right to e>-ress ideas+


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ii (oes it lessen the need to offer formal rights of re-lyMa ,idence suggests that the media giants +ill be able to use the Hnternet +ill not change

the identity and nature of those in -o+er iii Hn contrast; if the Hnternet is really successful0 there +ont be any -ublic debate. "ltimately

there +ill 6ust be one or t+o HSs +hich +ill control +hos +ebsites are -ic5ed u- * those in -o+er

a Assumes com-anies +ill acuire HSs and +ill do +hat they are not doing no+

B, T!" -ST % %ND %CC"SS TO T!" BRO%DC%ST ("DI%

-, CBS ., DNC* S -/3 1pp, ecuti,es +anted to buy 1 minute s-ots +< announcements o--osing the LietnamJar and +ere re6ected by the net+or5sa 7et+or5s -osition +as that they had co,ered the -ro and con of the +ar * their

res-onsibility ho+ to -resent contro,ersial issues and did not thin5 this means +asa--ro-riate sale of s-ots of ad,ersary grou-s

b 7et+or5s further argued that a %: second s-ot +as not the best +ay to discuss issuesii (7C feared they +ould be turned do+n and +anted to buy larger sections of time to -resent

the -osition of the (emocratic arty. &eared the net+or5s +ould say they had a -olicy of notselling time for the -resentation of ad,ersary issues. As5ed for a declaratory 6udgment;

a D$hat under the 1st A and $CAs -ublic interest standard0 a broadcaster may not0 as ageneral -olicy0 refuse to sell time to res-onsible entities0 such as the (7C0 for thesolicitation to funds and for comment on -ublic issues.E

b. &CC ruled that a broadcaster had no -ublic interest obligation to acce-t editorial ad,ertisingi C$A re,ersed * Blan5et -olicy of refusing editorial ad,ertising ,iolates the 1st Aii (id not say to gi,e time to the business e>ecuti,es or the (7C but that the &CC should set u-

rules to indicate +hat -olicies broadcasters should ha,e in allo+ing editorial ad,ertisingc. "SSC Burger

i olds that the broadcasters decision does not constitute go,ernment action for the -ur-osesof the 1st Aa 7et+or5s argued they +ere not bound by the 1st A b


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ii $he 1st A is addressed to+ard the -ublic mandating that broadcasts dis-lay this ad,ertising

+ould not im-ose too much of a burdeniii &urther0 the sim-le fact that broadcasters are Dgo,ernment actorsE does not mean the &CC

+ould be forced to re,ie+ e,ery editorial decision not e,ery editorial decision is a -ublic

act e.g. &orbesa Ad,ent of Hnternet commentators hinders this argument

b $his +as state action * relationshi- b


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i4 Barron thin5s the trouble is that there +as no criteria beforehand * criteria seemed to be +hether the candidate +as a democrat or re-ublican

ii4 $herefore0 this is a non-ublic forumd. Ste.ens dissent

i i,ing the ne+s director the discretion ris5s that no debate could ha--enii Stressed the fact that the Court had ignored the difference bcluding &orbes ,iolated 1st A b


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i -. 1%% Significance of 4! ".S.C. #?44b and #?43aa #?44b; A local franchising authority can establish and enforce reuirements for

facilities and eui-ment necessary to establish or o-erate a cable system b #?43a; Kocal franchising authority shall set the rates for ser,icec cCellan argued that since the statue +as silent as to his issue0 it +as a federal matter

ii -. 1%! cf 4! ".S.C. # ?32ca Anybody +ho +ants to lease time for commercial -ur-oses from a cable o-erator and has

been refused has a right of action in federal courti4 Cable,ision said that since there is no eui,alent -ro,ison +rt 0 then Congress

did not intent to gi,e a right to come to court b Court dismissed this argument b


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i Cable,ision said he could not sho+ the ta-e as a ,iolation of the -olicy against -olitical broadcasting %: days before an election. &urthermore0 this is really li5e a commercialad,ertisment no commercial use of a -ublic access channel

ii Additionally0 if oss thought it +as im-ortant to get the R candidates on $L0 they +ouldallo+ it on any channel for Y@?. oss refused and sued0 see5ing an in6unction b

broadcast and cable regs - barron - spring 2003_4.doc

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