Chapter Eleven

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 gov’t 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 content;individual users liable • Rates are regulated • FCC review • 5. Internet—still developing

5. 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,gov’t 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 • Children’s 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 fides”—appearance 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 315’s 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 license…for 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 electiveoffice on behalf of his candidacy” • Easing 312’s burden: stations don’t have to sell if they have provided sufficient free air time; aren’t forced to sell particular time period, or several months in advance or particular length

16. 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

17. 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 doesn’t have to follow reasonable access rule • Broadcasters don’t have to sell slots during news shows, but must sell before and after slots (unless they don’t ever sell those slots) • “Use” is conservatively interpreted; now Reagan movies don’t trigger 315 requirements

19. 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 don’t 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 don’t trigger 315) • Debate broadcast live, in entirety • Broadcaster’s motivation was in public interest, not to favor one candidate

20. 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

21. 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 importance—even if meant giving free airtime! • Bad law as of 1987: FCCabolished, Democraticmajority voted to overruleFCC and put into statutorylaw, President Reagan vetoed • FCC’s 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

25. 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 harbored”between 10 pm and 6 am

26. 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.”

27. Kids’ TV • Children’s 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 • Couldn’t use “Flintstones as educational material! • Revised in 1996: morespecific guidelines on“educational” programs;stations that provide avg. of 3 hrs./week of truly educational programs get quick license renewal

28. 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 don’t create your own system, we will do it for you! • 1997 ratings system looked like MPAA ratings system for movies • Six categories—TV-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)

29. Ratings redux • Didn’t 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.)

30. Ratings redux • Didn’t 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.)

31. 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

32. 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.

33. 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.

34. 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.