Hello

1
Chapter Eleven

• Regulation of
• Electronic Media

2
Objectives

• To explain the rationales for broadcast
  regulations.
• To understand the role of the FCC.
• To explain broadcast content regulations.
• To understand cable television regulations.

3
Five models of 1A regulation

• 1. Print model (newspaper)
• Absence of govt regulation
• Right of individuals to speak minds
• Open marketplace of ideas
• Success measured by market
• 2. Broadcast model (television)
• Electromagnetic spectrum public resource
• Spectrum scarcity licensing
• Public interest, convenience necessity
• Right to hear diverse viewpoints
• Financial success not only measureof good
  service
• Licensee responsible for content
• FCC review

4
Five models of 1A regulation

• 3. Monopoly model (cable)
• Until recently, lack of competition
• Granted exclusive franchises bycities they serve
• Rates can be regulated
• Viewers choose to subscribe, thusfewer
  restrictions
• FCC review
• 4. Common carrier model (phone)
• Public utility
• Universal service required
• No discretion about contentindividual users
  liable
• Rates are regulated
• FCC review
• 5. Internetstill developing

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Three kinds of regulations

• Technical mechanical or electronic standards
  (e.g., TV picture standards)
• Structural guidelines for business relationships
  (e.g., ownership limitations)
• Content rules directly related to the messages
  produced and distributed (e.g., pornography laws)

6
Basic theory of regulations of electronic media

• Broadcasters use public resource (airwaves) to
  generate revenue
• As such, are trustees of public resource and
  must act in public interest, convenience and
  necessity
• Airwaves are scarce resource(theoretically), not
  everyone can use,govt can license use
• Broadcast media are intrusive andpervasive and
  deserve additionalregulations

7
A little history...

• Radio Act of 1912 prompted byTitanic disaster
  required alllarge ships to have 24-hr.wireless
  connections
• Radio Act of 1927 first comprehensive regulation
• Created Federal Radio Commission
• Gave FRC licensure and frequency allocation
  powers
• Communications Act of 1934 second comprehensive
  act
• Created FCC
• Enabled FCC to regulate in the public interest
• Broad regulatory powers no censorship (Sect. 326)

8
A little more history...

• Telecommunications Act of 1996 huge overhaul of
  1934 act
• Deregulated industries
• Set stage for one-stop shopping
• Permitted cross-ownership
• New possibilities for competition
• Trend toward bigness
• V-Chip
• Sect. 230

9
Our friends at the FCC

• Since 1934!
• Five commissioners, appointed by President with
  Senate consent for five-year terms
• Only three may come from one party
• Powers
• May make and enforce policies
• Must grant 14A due process
• Courts have review powers
• Martin, Abernathy, Copps,Adelstein and one
  vacancy

• 1 seat is vacant

10
The FCC and Broadcast Content Regulation

• Political broadcasting
• Indecency
• Childrens programming

11
Political Broadcasting

• Equal time rule
• Advertising rates
• Political debates
• Fairness doctrine
• Personal attack rule and
• editorializing

12
Political broadcasting

• Section 315 of Comm. Act of 1934 (a.k.a. equal
  time rule)
• 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 suchcandidates
  for that office in the useof such broadcasting
  station
• Basically if you sell ad time toone candidate,
  you must sell to all,at equal place/cost AND
  with nocensoring of message!!
• Can lose your license!

13
Exceptions to Section 315

• Bona fidesappearance of candidate on bona fide
  newscast, bona fide news interview, bona fide
  news documentary, or on-the-spot coverage of bona
  fide news events do not trigger Section 315
• But old Reaganmovies did trigger!

14
Easing 315s burden

• Broadcasters do not have to notifycandidates
  about use by opponents
• Must maintain records thatcandidates may see
• Broadcasters do not have tooffer exact same
  time/placeto everyone, but must be equitable
• 7-day rule candidates must give timely notice to
  broadcast station of intention to use after
  opponent has used station to qualify for airtime
• Broadcasters may refuse to sell airtime to many
  political candidates altogether (except 312ers)

15
Federal candidates have it gooooood with the FCC

• Section 312(a)(7) of Comm. Act of 1934 (added in
  1972)
• The Commission may revoke any station
  licensefor willful or repeated failure to allow
  reasonable access to or permit the purchase of
  reasonable amounts of time for the use of a
  broadcasting station by a legally qualified
  candidate for Federal elective office on behalf
  of his candidacy
• Easing 312s burden stations dont have to sell
  if they have provided sufficient free air time
  arent forced to sell particular time period, or
  several months in advance or particular length

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Test of Section 312

• CBS v. FCC (1981) Carter-Mondale 1980
  presidential campaign requested 30 min. on each
  network in 1979 all three refused (CBS offered 5
  min.)
• FCC ruled that they had not met their 312 burdens
• Supreme Court upheld FCC may order networks
  under 312 to air federal candidates political
  statements, even a year before election

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The biggest break of all

• Lowest unit charge obligation not only do
  stations have to sell to federal candidates, but
  they must sell at cheapest rate within 45 days
  before primary or 60 days before general
  election!
• Candidates get a big discount!
• FCC clarified in 1991 stations must tell
  candidates about all rates and classes of airtime
  and let them buy cheapest available to anyone

18
Exemptions

• Cable TV doesnt have to follow reasonable access
  rule
• Broadcasters dont have to sell slots during news
  shows, but must sell before and after slots
  (unless they dont ever sell those slots)
• Use is conservatively interpreted now Reagan
  movies dont trigger 315 requirements

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The debate debate

• As of 1975, FCC considers debates as bona fide
  news events, but before that, debates not under
  any exemptions to 315
• In re Aspen Institute (FCC 1975) debates dont
  trigger equal time provision if
• Debate arranged by third party(League of Women
  Voters,Commission on Debates)
• Debate does not occur in broadcastfacilities
  (now even sponsoreddebates dont trigger 315)
• Debate broadcast live, in entirety
• Broadcasters motivation was in public interest,
  not to favor one candidate

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Only major candidates?

• Arkansas Educational Television Commission v.
  Forbes (1998) confusing case, BUT Court did say
  that forcing broadcasters to include all
  candidates, even on public TV, would result in
  less speech, not more because no debate can be
  held with 20-30 participants
• Government stations, like public TV,must be
  viewpoint-neutral
• Dissenters concerned aboutgovernment entity
  exclusions ofcandidates

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No censoring of political broadcasts!

• But some candidates get cheap rates and use time
  for ads on controversial issues.
• Farmers Educational and Cooperative Union v.
  WDAY (1959) 1) Broadcasters cannot stop libel on
  air 2) Broadcasters exempt from any liability
  for defamatory remarks.
• Becker v. FCC (DCC 1996) even adsshowing
  aborted fetuses could notbe censored or
  channeled tonon-primetime spots

22
Fairness Doctrine

• Required coverage of both sides of controversial
  issues of public importanceeven if meant giving
  free airtime!
• Bad law as of 1987 FCCabolished,
  Democraticmajority voted to overruleFCC and put
  into statutorylaw, President Reagan vetoed
• FCCs arguments fear ofbureaucrats
  second-guessingbroadcasters news judgment
  chilling effect potential scarcity rationale
  no longer valid
• Very few stations ever cited for violations, even
  though hundreds of complaints received

23
Personal Attack Rule and Political Editorializing
Rule

• FCC orders that individuals attacked on-air and
  candidates not endorsed on-air must be given free
  airtime to respond
• Radio-Television News Directors Assoc. v. FCC
  (DCC 2000) court overturned rules, saying they
  interfered withbroadcasters news judgmentsand
  entangled governmenttoo much in
  day-to-dayoperations

24
Judicial action

• Red Lion Broadcasting v. FCC (1969)Court upheld
  Fairness Doctrine,saying that 1A rights of
  public to hearoverrode 1A rights of
  broadcasters, so must give right of reply
• But Miami Herald v. Tornillo (1974) FL law
  requiring newspapers to provide right of reply
  unconstitutional! (Broadcasters sad! ? )
• Then FCC v. League of Women Voters (1984) Court
  invited review of validity of content-based
  broadcast restrictions, like FD
• FD abolished in 1987

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Indecency

• Briefly Sect. 1464 of U.S. Criminal Code (not
  part of Communications Act or Telecom Act)
  Whoever utters any obscene, indecent, or profane
  language by means of radio communication shall be
  fined not more than 10,000 or imprisoned more
  than two years, or both
• Remember FCC v. PacificaFoundation (1978)
• Basically Legally obscenematerial banned
  indecentmaterial safe harboredbetween 10 pm
  and 6 am

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More clear indecency regs from FCC, April 2001

• http//www.fcc.gov/eb/Orders/2001/fcc01090.html
• The principal factors that have proved
  significant in our decisions to date are (1) the
  explicitness or graphic nature of the description
  or depiction of sexual or excretory organs or
  activities (2) whether the material dwells on or
  repeats at length descriptions of sexual or
  excretory organs or activities (3) whether the
  material appears to pander or is used to
  titillate, or whether the material appears to
  have been presented for its shock value. In
  assessing all of the factors, and particularly
  the third factor, the overall context of the
  broadcast in which the disputed material appeared
  is critical.

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Kids TV

• Childrens Television Act of 1990 broadcasters
  must serve educational needs of children
• Max commercials during kids programming 10.5
  min./hour/weekends, 12.5 min./hour/weekdays
• No specific guidelines broadcasters had to prove
  they met ed needs of kids
• Couldnt use Flintstones as educational
  material!
• Revised in 1996 morespecific guidelines
  oneducational programsstations that provide
  avg. of 3 hrs./week of truly educational programs
  get quick license renewal

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The ratings game the V-chip

• Telecom Act of 1996 all new TVs 13" must have
  technology to block programs with certain levels
  of objectionable content
• Ratings not mandated by Telecom Act, but
  broadcast industry was warned you dont create
  your own system, we will do it for you!
• 1997 ratings system looked like MPAA ratings
  system for movies
• Six categoriesTV-Y (all kids)TV-Y7 (kids 7 and
  older)TV-G (general audiences)TV-PG (parental
  guidance)TV-14 (kids older than 14)TV-MA
  (mature audiences only)

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Ratings redux

• Didnt work so well no way to tell what kind of
  content and solely age-based
• Codes added to age-based ratings
• V violence
• FV fantasy violence
• L coarse language
• S sexual situations
• D suggestive dialogue
• Shown for 15 sec. at start of all rated shows
• Apply to all programming except news, sports, and
  MPAA-rated movies (Showtime, HBO, etc.)

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Ratings redux

• Didnt work so well no way to tell what kind of
  content and solely age-based
• Codes added to age-based ratings
• V violence
• FV fantasy violence
• L coarse language
• S sexual situations
• D suggestive dialogue
• Shown for 15 sec. at start of all rated shows
• Apply to all programming except news, sports, and
  MPAA-rated movies (Showtime, HBO, etc.)

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Conclusion General info

• Five models of First Amendment regulation 1)
  Print 2) Broadcast 3) Cable 4) Phone 5)
  Internet
• Three kinds of regulations 1) Technical (TV
  picture standards) 2) Structural (ownership
  limitations) 3) Content (pornography laws)
• Three reasons broadcast needs more regulations
  1) Broadcasters use public resources (airwaves)
  2) Trustees of public resources must act in
  public interest, convenience and necessity 3)
  Broadcast media are intrusive and pervasive

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Conclusion Equal time

• Broadcast licensees must provide equal
  opportunities to legally qualified political
  candidates. To be considered legally qualified
  1) Satisfy requirements for office 2) publicly
  announce intention to run 3) qualify for ballot
  position or seek election as write-in.
• Candidates must have access to same amount of
  airtime and chance to appear before same size
  audience.
• Equal time does not apply to news programs or
  political candidate spokespersons.

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Conclusion Advertising

• Broadcast licensees must charge political
  candidates the lowest advertising rates within 45
  days of primary elections and 60 days of general
  elections.
• Broadcasters cannot censor remarks of legally
  qualified candidates during political broadcasts
  and are not liable for defamatory candidate
  comments.

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Conclusion Fairness doctrine

• Fairness doctrine and personal attack and
  political editorializing rules have been
  overturned.
• Broadcasters must offer all candidates for a
  given office equal opportunities to purchase
  airtime.
• Public broadcasters cannot support or oppose
  political candidates, but they can editorialize
  on public issues.