Lecture 10c: Regulation of Broadcasting and Political Candidate Programming

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Lecture 10cRegulation of Broadcasting and
Political Candidate Programming

• COM 451
• Communication and Law

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I. Broadcast Regulation Rationale

• Air is a public resource
• Spectrum is limited
• Government controls allocation of spectrum
• Government must set standards and make choices
• Licensees must broadcast in the public interest
• License renewal is not guaranteed

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I. Scarcity(?) of Broadcast Stations

• At the end of 1999, there were 12,500 radio
  stations in the USA.
• About
• 5,000 were AM
• 5,700 were FM
• almost 2,000 were educational.
• There were about
• 1,700 standard television stations, plus about
  2,000 low power TV stations
• By contrast, there were about 1,600 daily
  newspapers.

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II. Red Lion Broadcasting Co. v. FCC (1969)

• The Supreme Court upheld the constitutionality of
  a requirement that broadcasters provide a right
  of reply to a person whose character has been
  attacked during discussions of controversial
  public issues.
• Red Lion, a small town in Pennsylvania with a
  radio station and an association of broadcast
  journalists, challenged the personal attack
  policy.
• In Nov. 1964 on WGCB radio, Reverend Billy James
  Hargis sharply criticized Fred Cook, the author
  of a book about Senator Barry Goldwater.
• Cook did not like what was said and asked for
  free airtime to reply.
• Radio station refused, and Cook complained to the
  FCC.
• FCC insisted that Cook be provided free airtime.
  The radio station appealed arguing that the
  Fairness Doctrine violated his right of free
  expression.
• US Court of Appeals in DC upheld the FCC in 1967.

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II. Opportunity to rebut personal attack

• Personal attack policy is one of the few
  remaining remnants of the Fairness Doctrine
  (ousted in 1987)
• Requires broadcasters to provide diverse
  viewpoints on controversial public issues
• Regulation upheld station must offer free time
  for reply. Must also send a tape, transcript or
  broadcast summary to the person attacked.
• Justice White said the First Amendment can be
  applied differently to different media and
  spectrum scarcity makes broadcasting different.
• As long as the demand for spectrum space exceeds
  the frequencies available, no person has a
  constitutional right to use the broadcast
  spectrum, including the licensee who does not
  have an unfettered right to broadcast only their
  own views on public issues.
• It is the right of the viewers and listeners,
  not the right of the broadcasters, which is
  paramount.

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II.Miami Herald Publishing Co. v. Tornillo(1974)

• Similar factual background to Red Lion case but
  with totally opposite result.
• Illustrates how regulation of print media and of
  broadcasting are viewed very differently in the
  United States, even today.
• The Miami Herald refused to publish a reply to
  the papers criticism of Pat Tornillo, a
  candidate for the state legislature.
• Tornillo argued that the First Amendment rights
  of the public would be served if dominant
  newspapers were required to print replies from
  political candidates.
• The US Supreme Court said that requiring
  newspapers to print replies from political
  candidates attacked by a paper would dampen the
  vigor and limit the variety of public debate
  because the replies would cost money and time and
  take up space that could be devoted to other
  subjects.
• Thus, they found the Florida law that required
  that candidates be given a right of reply
  unconstitutional.
• Chief Justice Burger said A newspaper is more
  than a passive receptacle or conduit for news,
  comment, and advertising.

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II. CBS v. Democratic National Committee (1973)

• The DNC petitioned the FCC to declare that no
  broadcaster could refuse to run paid editorial
  advertisements. They wanted the FCC to declare
  that stations must sell airtime to the committee
  to present party views and solicit funds.
• FCC ruled that broadcasters could refuse to sell
  airtime for comment on public issues, but the DC
  Court of Appeals reversed the FCC. US Supreme
  Court then reversed the Appeals Court and
  supported the FCC.
• Court ruled that First Amendment does not require
  broadcasters to provide airtime to specific
  individuals or groups who want to present a point
  of view on public issues.
• FCC feared that if access to broadcast media
  could be purchased on demand, discussion of
  public issues would be dominated by rich, or
  monopolized by one political persuasion.
• Justice Burger For better or for worse, editing
  is what editors are for and editing is selection
  and choice of material.

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III. The Concern and the Law

• A licensee could influence an election by giving
  candidates unequal access to the audience, or
  through other types of favorable treatment
• To counter this possibility, Congress passed Sec
  315a which states
• If any licensee shall permit any person who is a
  legally qualified candidate for any public office
  to use a broadcasting station, he shall afford
  equal opportunities to all other candidates for
  that office in the use of such broadcasting
  station.

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III. What Section 315a Requires

• Equal opportunity for qualified candidates
• publicly announced (rule exemption incumbent may
  be expected but not formally announced)
• must be legally qualified for office (age,
  citizenship, etc.)
• Must qualify for place on ballot or meet write-in
  requirements
• Must be a candidate for the same office
• Reasonably equal amount and comparable quality of
  time
• 10 one-minute spots not equal to one 10-minute
  spot
• Equal facilities (sound, lighting, etc.)
• Equal prices and payment format
• Lowest unit charge for commercials
• No censorship
• Section 315a is invoked only when there is
• Use of the airwaves

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IV. Issues regarding Use

• Key is station control, not candidate control
• Problems of staff running for election
• Only for legally qualified candidates
• Political and non-political uses
• Fleeting appearances
• Foreign broadcasts received in USA
• Speech in time of crisis

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IV. Understanding what Use is

• Any positive appearance when candidate's voice or
  picture is used even if appears to benefit
  charities
• An incumbents weekly news broadcast
• TV evangelists time on program
• TV Anchors or journalists appearance on news
  show is use if person is a candidate
• Appearance need not be political
• i.e. Entertainment program If candidate appears
  on Saturday Night Live, considered use
• If the show is controlled by someone other than
  the candidate, the time of use is only when he
  is on screen or on mic.

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IV. Understanding what Not-Use is

• Any negative appearance or unfavorable
  description
• If spot merely describes a candidates voting
  record AND if opponent uses candidates picture
  and then tries to claim equal opportunity
• It is a use only if the candidate authorizes
  the appearance of his voice/picture (1991 rule)
• Campaign ad that does not use the candidates
  image or voice
• Appearances on Meet The Press, Face the Nation,
  Good Morning Americaand even Oprah are not use
• Conventions and debates not use
• Old movies no longer considered use (since 1991
  amendment)
• Law was changed after many old Ronald Reagan
  movies were shown by stations during his campaign
  for President.

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V. Exempt programming

• A station does not have to give equal
  opportunities in the following cases
• 1. Newscasts
• Must be regularly scheduled and emphasize news
• Content must be determined by someone other than
  candidate
• Today Show and Entertainment Tonight qualify as
  bona fide news programs
• 2. News Interviews and Documentaries
• Tomorrow show with Tom Snyder was found not to be
  usually associated with recent news events,
  thus not exempt
• Donahue show was found to be bona fide
  news/interview program, and thus exempt

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V. Exempt programming (cont)

• 3. On the Spot Coverage of News Events
• Includes announcing candidacy and appearances at
  parades, court proceedings and baseball games.
  Also, to political conventions, press conferences
  and many forms of debates featuring candidates.
• FCC trusts broadcasters' good-faith judgment
  that press conference is bona fide news event as
  long as licensee did not intend to provide one
  candidate with advantage over another.

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VI. Equal Opportunity / Time

• Equal opportunity, not just equal time
  (comparable audience)
• Not up to candidate to choose
• Station doesnt have to limit time to one
  candidate because the other one cant afford to
  buy the time
• An opponent may be granted time for the duration
  of a program not just for the limited time a
  candidate appears on the screen if appearance is
  substantial and candidate is integral to the
  plot.

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VII. Lowest-Unit Rate

• Until 1971, stations had to treat candidates the
  same as any commercial advertiser
• In 1971, Congress amended the law for 45 days
  before a primary and 60 before a general election
• Today, stations must charge candidates the
  lowest-unit rate, comparable to their most
  preferred commercial customers.
• That might mean giving a candidate the rate for
  one insertion that a commercial advertiser pays
  per insertion for a years worth of commercials
• Candidates still bound by the time of their
  purchase. Pay LUR for day-part purchased

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VIII. Section 315a and Censorship

• You sell time to candidate A
• Candidate B requests a purchase of the same
  amount of time you must sell B the time
• In his use he libels candidate A
• Is your station liable for what he said?
• The U.S. Supreme Court faced this issue in the
  1950s in a case involving a licensed radio
  station in North Dakota.
• Farmers Educational Cooperative v. WDAY, Inc.
• Court found that stations subject to the equal
  opportunities rule could not hold licensees
  responsible for libelous remarks.
• If the licensees were liable, then they would be
  penalized for doing what the law intended, that
  is to provide broadcast time for political
  candidates.
• Of course, the candidates themselves are
  responsible for any remarks they make over the
  air.

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VIII. Limitation of B'caster Censorship of
Political Content

• Broadcaster has NO control over content of
  programming aired by political candidates, even
  if statements are racist, vulgar or defamatory.
• So, broadcasters not responsible for libel by
  candidates.
• Fed District Court said broadcaster could delay
  airing of legally indecent advertisement to safe
  harbor hours.
• Attacking abortions graphic depictions of female
  genitalia, a uterus, dismembered fetal body parts
  and aborted fetuses.