REGULATION OF ELECTRONIC MEDIA. CHAPTER 11

Communications Law. COMM 407, CSU Fullerton

Broadcasting The transmission of radio / television signal for

intended reception by the general public (over the air / not through terrestrial cable)

The radio spectrum The electromagnetic spectrum of frequencies lower than

around 300 GHz called radio waves and used mostly for radio communication. Examples:

Medium Frequency 300–3000 kHz

(AM radio in the U.S. from 530-1710 kHz) Very High Frequency (VHF) 30–300 MHz

(TV, FM radio between 88-108 MHz) Ultra High Frequency (UHF) 300-3000 MHz

(TV, mobile phones, bluetooth, microwave ovens).

The primary justification for broadcast regulation:

The scarcity rationale: Radio spectrum is limited

Thus: The government decides the rules for access and the rules for operations

BUT: Is the radio spectrum really limited?

First radio as we know it today The Netherlands: 1919 Canada 1919: American radio: Fall of 1920

KDKA Pittsburgh (Westinghouse)

1921: 5 stations and 50,000 radio sets

1923: 556 stations and millions of sets

KDKA Pittsburgh Westinghouse’s engineer Frank Conrad began

broadcasting from his garage. Horne’s department stores saw opportunity and began

selling radio sets for Conrad’s broadcast Westinghouse proposed to build a station that would

broadcast regular programming KDKA was born (11/2/1920)

The development of improved receivers

Between 1925 and 1930, 17 million radio sets were sold

At first battery operated By 1926 on ordinary house current By late 1920s, radios became a part of house

furnishing

Commercial Radio Early radio stations were owned by organizations and

businesses. For example WLS in Chicago by Sears, WSM in Nashville by insurance company, WGN by Chicago Tribune

In 1922 AT&T began charging for ‘commercials’

The first: the Queensboro Realty paid $300 for five radio “talks” that praised the benefits of living in the country

Broadcast Regulation 1912 Radio Act: required radio operators to be licensed 1927 Radio Act: a comprehensive set of rules aimed at

creating order in broadcasting 1934 Federal Communications Act: remains the base for

all telecommunications regulations; created the Federal Radio Commission, later Federal Communication Commission (FCC)

1996 Telecommunications Act: revised licensing/ownership rules; added rules for new technologies (wireless, internet)

Federal Communication Commission

MISSION STATEMENT:

"make available so far as possible,

to all the people of the United States,

without discrimination on the basis of race, color, religion,

national origin, or sex,

rapid, efficient, Nation-wide, and world-wide wire and radio

communication services with adequate facilities at

reasonable charges."

Federal Communication Commission

has jurisdiction over all forms of electronic communication (radio, TV, telephone).

should carry its powers for public convenience and interest

shall not interfere with the right of free speech

Challenges to FCC powers:

NBC v United States (1943): The Court ruled that the FCC supervises the traffic and also can determine the composition of the traffic

Regulations

Technical standards Licensing Content

The FCC has a wide range of sanctions against those who violate regulations:

Letter of reprimand Cease and desist order Forfeiture or fine Short-term renewal Non-renewal or revocation of license

Licensing: a prospective licensee must meet these qualifications:

The applicant must be a citizen of the United States or have less than 25% foreign ownership

The applicant must have sufficient funds to build and operate the station for at least three months without earning any advertising revenue

The applicant must either possess or hire people who possess the technical qualifications to operate a broadcast station

The applicant must be honest and open in dealing with the commission and must have good character

Licensing for new stations When two or more persons seek the same license, the FCC

uses an auction process to select who will receive the license

The FCC favors applicants who do not own other broadcast stations & and who promise ‘integration of ownership and management’

The U.S. Supreme Court decisions on Licensing / Minority Preferences

Metro Broadcasting v. FCC (1990): the court reaffirmed the minority preference rules

but Adarand Constructors Inc. v Peña (1995): the

court ruled that all race preference programs must be ruled by strict judicial scrutiny.

License RenewalCongress has instructed the FCC to renew a broadcaster’s license every eight years as long as:

The station has served the public interest, convenience and necessity

The licensee has not committed any serious violation of the Communication Act or FCC rules

The licensee has not committed any other violations that, taken together, would constitute a pattern of abuse

Multiple Ownership Rules A single company or individual may own

television stations whose signals reach no more than 45 percent of the total national viewing audience

There is no limit on the number of radio stations any single licensee can own

Ownership of both radio and television stations in a single market is limited, based on the number of stations in the market

Multiple Ownership Rules

Cross-ownership rules – the ownership of TV and radio stations and newspapers in the same market

Guided by the number of media properties in a market

Top Network TV companies by viewership

Comcast* 14,190,800 Disney 12,606,700 CBS 8,840,100 PBS 1,100,000

*Comcast includes NBC Network

Top Cable News TV companies by viewership

News Corporation 1,910,000 Time Warner 1,040,000 Comcast* 1,001,000

*Comcast includes NBC Network

Top Local TV companies(by combined station reach)

News Corporation 25% CBS 25% Univision 23% Tribune Company* 22% Disney 21%

*owns the L.A. Times and KTLA TV

Top Radio Companies(by radio audiences)

Clear Channel 160,099,000 CBS 82,178,500 Cumulus Media Inc. 46,266,900 National Public Radio* 27,200,000 Entercom 23,330,200

*NPR produces / distributes radio programming, but is not a radio station itself nor does it own any radio stations.

Top Online News CompaniesMonthly Unique Visitors for All News Sites

Yahoo 39,042,000 Time Warner 34,617,000 Comcast 29,438,000 Gannett 26,400,000 AOL 22,578,000 Walt Disney 18,199,000 News Corp 17,846,000 New York Times 16,647,000 Tribune 16,500,000

Broadcast Content Regulation

Federal Communication Commission regulates:

Political Broadcasting Limits on commercials Children programming ‘Indecent’ material

Political broadcasting:Equal Time Rule

If a broadcasting station permits one legally qualified candidate for any elective public office to use its facilities, it must afford an equal opportunity for all other legally qualified candidates for the same office (Section 315)

Once a political campaign begins, the broadcasters must give reasonable good faith attention to access requests from ‘legally qualified’ candidates (section 312)

A legally qualified candidate Any person:

Who publicly announces he or she is a candidate for nomination or election, and

Who meets the qualifications prescribed by law for that office (e.g., age, residency), and

Who qualifies for a place on the ballot, and Who was duly nominated by a political party

The use of a broadcast facility

Any presentation or appearance that features a candidate’s voice or image

For example: Appearances in televised feature films, TV entertainment programs, non-news interviews

Appearances Not Covered By the Rule

Appearance in a bona fide newscast Appearance in a bona fide news interview show Appearance in the sport news coverage of a bona

fide news event Incidental appearance in a news documentary

Bona Fide News Interview(in good faith)

A program must be regularly scheduled The content, format, and participants must be

determined by the licensee The determination that programming is a bona

fide news interview must have been made by the station “in exercise of its bona fide news judgment”

An equal opportunity

Equal time Equal facilities Comparable costs

A note: the rules apply to supporters of candidates

Candidate Access Rule Broadcasters must allow candidates for federal

office access to or the purchase of airtime Once a political campaign begins, the broadcasters must

give reasonable good faith attention to access requests from ‘legally qualified’ candidates

Advertising Rates: 45/60 days before elections candidates cannot be charged more than the lowest commercial rate

Political Debates

The problem: How many candidates should be included in the debate?

Initially treated under ‘Equal Time Rule.’ Since 1975 interpreted as bona fide news event.

Ethical questions of who should be included in the debates remains

The FCC and the First Amendment

In FCC v. League of Women Voters (1984), the U.S. Supreme Court struck down a statute that forbade public broadcasting stations from telecasting editorial opinions

Political Debates

A look from the First Amendment perspective Does a TV station licensed by FCC have a First

Amendment obligation to include all candidates in a debate?

NO. (The U.S. Supreme Court in Arkansas Educational

Television v. Forbes, 1998)

The Fairness Doctrine (abandoned in 1987, 2000)

The Doctrine required that all broadcasters 1. Devote a reasonable amount of their

programming to controversial issues of public importance

2. Provide contrasting viewpoints on those issues 3. Offer a reasonable opportunity to respond to

personal attacks 4. Offer an opportunity to candidates who were

not endorsed by a station to respond

Regulation of Indecent Material: Seven Dirty words

George Carlin Seven Dirty Words…. On1973's Occupation: Foole album Carlin performed a

routine titled "Filthy Words." Pacifica station WBAI-FM broadcast the routine uncensored.

Morality in Media organization complained to the FCC that the material was inappropriate for the time of day.

FCC v. Pacifica Foundation, (1978)

The FCC upheld the complaint. Pacifica appealed this decision. The U.S. Court of Appeals overturned FCC’s

decision. The FCC appealed to the Supreme Court. The Supreme Court ruled in favor of FCC, but

did not define the scope of “indecency”

FCC v. Pacifica Foundation, (1978)

The Court upheld the FCC action by a vote of 5 to 4 The government has interest in: 1) shielding children from potentially offensive material 2) ensuring that unwanted speech does not enter one's

home. The FCC had the authority to prohibit such broadcasts

during hours when children were likely to be among the audience

It gave the FCC broad leeway to determine what constituted indecency in different contexts.

Obscene, Indecent and Profane Broadcasts

It is a violation of federal law to air obscene programming at any time.

Obscene material is not protected by the First Amendment to the Constitution and cannot be broadcast at any time.

It is also a violation of federal law to air indecent programming or profane language during certain hours.

Indecent material The courts have held that indecent material is

protected by the First Amendment and cannot be banned entirely.

It may, however, be restricted in order to avoid its broadcast during times of the day when there is a reasonable risk that children may be in the audience.

The FCC adopted a rule that broadcasts that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00 p.m. are prohibited and subject to indecency enforcement action.

Indecent: Definitional problems

Indecent: offending against decency; unsuitable

Decent: correct, honorable, or modest behavior Special legal meaning: a class of speech that is

restricted on the broadcast airwaves, even though is not necessarily obscene and would be legally allowable in other avenues of expression.

The FCC has defined broadcast indecency as:

“Language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”

Indecent programming contains patently offensive sexual or excretory material that does not rise to the level of obscenity.

$550,000 Moment (FCC Fine)

The FCC determined that

the incident was of an “overall sexually provocative nature” and an indecency violation.

The FCC had fined CBS a total of $550,000, or $27,500 for each CBS owned-and-operated station.

BUT: A unanimous 3rd Circuit Court of Appeals in Philadelphia ruled that

Janet Jackson’s wardrobe malfunction on the 2004 Super Bowl halftime show didn’t violate TV indecency standards

FCC v. Fox Television Stations (2012)

The Supreme Court ruled against the FCC's policy regulating curse words and nudity on broadcast television.

In an 8-0 decision, the high court threw out fines and sanctions imposed by the Federal Communications Commission. The case involved some uncensored curse words and brief nudity on various networks.

FCC v. Fox Television Stations (2012)

The court said the FCC is "free to modify its current indecency policy" in light of the ruling.

The justices, though, declined to issue a broad ruling on the constitutionality of the FCC indecency policy.

Indecency on Cable

Generally, cable television is permitted to offer any sexually explicit programming

Violence on Television

In 1996, Congress mandated that all manufacturers of television sets include a V-Chip to block out violent programming

Along with the chip, Congress imposed a program rating system

Violence on Television

Television Ratings System:

TV – Y approved for all children TV – Y7 approved for children 7 and over TV – G suitable for all ages TV – PG parental guidance TV – 14 parent strongly cautioned TV – MA mature audiences only

Violence on Television

Television Ratings System:

A second tier of ratings summarizes content:

V – violence S – sexual situations L – coarse language D – suggestive dialogue FV – fantasy violence

Regulating Children’s Programming

All commercial television stations are required to offer at least three hours a week programming to meet the educational and informational needs of children

In blocks of at least 30 minutes (3 hours total) between 7 a.m. and 10 p.m.

Challenges: What is the programming that the government thinks children should be watching?

Regulating Children’s Programming

Restrictions on Advertisement: For shows for children 12 years old and younger: Only 10.5 advertising minutes are permitted each hour

on weekends, 12 minutes each hour or weekdays

Regulating Children’s Programming

Restrictions on Advertisement: There must be a buffer between commercials and

program content (“We’ll be right back…) A program may not mention an item advertised in a

commercial for the same show

Cable Television Regulation

FCC assumed jurisdiction over cable television based on the effect of cable on on-the-air broadcasters.

The U.S. Supreme Court affirmed the FCC’s authority in U.S. v Southwestern Cable Co (1968)

Cable Television RegulationCable television systems must

pay royalties for copyrighted programs from non-local broadcasters

must carry local television programming channels provide local public and government access channels Originate a minimum amount of local programming Refrain from importing distant signals over the nearest

network affiliate Respect syndication agreements (exclusive rights of local

broadcast)

Litigating “must carry”

In Turner Broadcasting System, Inc. v. FCC (1994, 1997), the U.S. Supreme Court ruled must carry rules were constitutional

Based on the argument that cable companies in some communities are the only available providers of quality signal

Cable Television Regulation

Under the 1992 Cable Television Consumer Protection and Competition Act:

Local governments are given the primary responsibility to regulate cable systems in their communities

Local governments may issue franchises, collect franchise fees, and renew franchises

Includes provisions to protect subscribers’ right to privacy

Cable Television RegulationThe question of exclusive franchise.

When technical capabilities permit, local government must allow more than one cable company to operate

The City of Los Angeles v. Preferred Communications (U.S. Supreme Court 1986 and District Court in 1990).