REGULATION OF ELECTRONIC MEDIA. CHAPTER 11 Communications Law

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 kHz) Very High Frequency (VHF) 30–300 MHz (TV, FM radio between MHz) Ultra High Frequency (UHF) 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) KDKA

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 Required all large ships to be equipped with radio communication 1927 Radio Act: It set up Federal Radio Commission A comprehensive set of rules aimed at creating order in broadcasting: assigning specific frequency to a station

Broadcast Regulation 1934 Federal Communications Act: remains the base for all telecommunications regulations; replaced the Federal Radio Commission with a fully independent 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 In 1941 the FCC established the licensing and content of chain broadcasting stations (networks). NBC sued to enjoin the enforcement of the regulations.

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 20/25% 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

A Reuters report revealed the existence of the covert radio network, which broadcasts in more than a dozen American cities The California firm is owned by James Su, a naturalized U.S. citizen born in Shanghai. Su’s company, G&E Studio Inc, is 60 percent owned by a subsidiary of Chinese state-run radio broadcaster China Radio International (CRI). Su said his radio network abides by U.S. law because he leases air time from stations, rather than owning them outright. Further: U.S. law also requires anyone inside the United States seeking to influence American policy or public opinion on behalf of a foreign government or group to register with the Justice Department.

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: compelling governmental interest

License Renewal Congress 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 39 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

Dual TV Network Ownership The rule effectively prohibits a merger between any two of these television networks: ABC, CBS, Fox, and NBC.

Top Network TV companies by viewership Comcast*14,190,800 Disney12,606,700 CBS 8,840,100 PBS 1,100,000 *Comcast includes NBC Network

Top Cable News TV companies by viewership News Corporation1,910,000 Time Warner1,040,000 Comcast*1,001,000 * Comcast includes NBC Network

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…. George Carlin On1973's Occupation: Foole album Carlin performed a routine titled "Filthy Words." Pacifica station WBAI-FM broadcast the routine uncensored.Occupation: FoolePacificaWBAI-FM 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 – Y7approved for children 7 and over TV – Gsuitable for all ages TV – PGparental guidance TV – 14parent strongly cautioned TV – MAmature 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 Regulation Cable 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 Regulation The 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).