Regulation

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• Regulation
• of Broadcasting

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• A. Regulation Why and How?
• 1. Scarcity of Airwaves the Original Basis for
  Regulation
• --1927 and 1934 laws establish federal licensing
• --Scarce resource doctrine and regulatory power
  upheld in NBC v. U.S. (1943)

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• 2. Does Scarcity Rationale Make Sense Today? If
  Not, Why Regulate?
• --Alternative reasons for regulation
• --Broadcasting has been substantially deregulated
  since 1980

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• 3. Broadcast (and Telecom) Policy Made through
  Interplay of Several Groups and Institutions
• --The Federal Communications Commission (FCC)
  plays a central role
• --The other players in shaping policy?

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• 3. Broadcast (and Telecom) Policy Made through
  Interplay of Several Groups and Institutions
  contd
• --The other players in shaping policy?

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• 4. FCCs Basic Regulatory Power is Licensing
• --Ownership qualifications
• --Limits on ownership
• --Licensees now selected through auction
• --Licenses routinely renewed

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• B. Content Regulations
• 1. Law Supposedly Denies FCC the Power to Censor
  Broadcasting, But. . .
• 2. Political Candidates Must Have Reasonable,
  Equal Access
• --What's reasonable access?

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• 2. Political Candidate Rules contd
• --Equal opportunities for opposing candidates
• 3. With Deregulation, Theres Little Legally
  Required Fairness in News and Public Affairs

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• 4. Law Forbids Broadcast Obscenity, Limits
  Indecency
• --Sup. Ct. upheld indecency as standard for
  broadcasting in FCC v. Pacifica (1978)

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• --Struggle over a safe harbor for broadcast
  indecency
• 1978--Pacifica decision
• 1987--FCC says indecent programming can only be
  aired after midnight
• 1988--D.C. Circuit Ct. of Appeals FCC needs
  evidence that midnight is the appropriate cutoff
• 1989--Congress passes Helms amendment tells FCC
  to ban indecency 24 hrs a day
• 1990--D.C. Cir. Ct. strikes down 24 hr ban as
  unconstitutional
• 1991--FCC studies matter and can find no
  alternative to 24 hr ban because children always
  in audience
• 1991--D.C. Cir. strikes down as unconstitutional
  because it lacked evidence that this was
  necessary to protect children (Supreme Ct.
  declines to hear appeal)
• 1992--Congress required FCC to restrict indecency
  to midnight-6 am
• 1993--three-judge panel of Cir. Ct. invalidates
  1992 law says Congress and FCC need to consider
  rights of all viewers, not just those of children
• 1995--full Cir. Ct. rehears case says 10 pm-6 am
  safe harbor ok, though FCC could modify it with
  sufficient evidence.

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• 5. Children's Programming
• --Deregulation in 1980s led to more ads on
  children's programs
• --1990 act re-imposed limits and obligations
• --V-chip and ratings give parents control

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• 6. Miscellaneous Content Controls
• --No limits on the amount of advertising except
  in childrens programs
• --FCC punishes broadcast hoaxes that endanger
  public safety
• --FCC frowns on shady station promotions
• --FCC requires disclosure of payola and plugola

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• For the next class, be prepared to discuss. .
  .
• Why does law lag behind -- or even delay --
  the development/use of new media technologies?
  There are three or four good reasons why law is
  inherently conservative in this respect.