Broadcast Law and The FCC

Rules and Regulation Does a company that profits from the public airwaves have a responsibility to that same public?

Why Regulate Broadcasting? Scarcity Theory: The electromagnetic spectrum is limited -- only a finite number of broadcasting stations can exist in a certain place at a certain time. Therefore, the spectrum is a public resource and cannot be privately owned. Demand exceeds supply.

Why Regulate Broadcasting? Pervasive Presence Theory: Broadcasting is available to virtually all of the population. Once the TV or radio is turned on, offensive messages can enter the home at any time and without warning. Broadcasting is basically an intrusive business and consumers, especially children, need some protection from the government.

History of the FCC The Federal Radio Commission was established by the Radio Act of 1927. The Communications Act of 1934 expanded the role of the FRC, increased membership to seven commissioners and renamed the organization -- the Federal Communications Commission.

How Does the FCC Operate? There are five commissioners, one of who serves as chair, appointed by the president and confirmed by the Senate, for staggered five-year terms. No more than three members can be from the same political party.

What does the FCC do? International Bureau: Treaties/Satellites Compliance and Information: Technology and Field Offices Cable Services Bureau: Consumer Protection/Engineering Common Carrier Bureau: Telephone.Telegraph/Policy

What does the FCC Do? Mass Media Bureau: Audio/Video/Enforcement/ Policy and Rules Wireless Telecommunications Bureau

What does the FCC really do? Issues and Renews Licenses -- TV and radio licenses are granted for 8-year terms Responds to public complaints Sets new policies Enforces laws enacted by Congress Sets technology standards Enforces EEOC requirements

The FCC and Cable The FCC initially refused to regulate cable. Began enacting cable legislation in ‘60s because cable was becoming a threat to broadcasters. Increased regulation in ‘70s. Cable operators are not licensed by the FCC.

Cable Act of 1992 Broadcasters wanted retransmission consent regulations. Cable system operators were transmitting their signals for free, using profits from subscribers to add more cable networks -- competitors for the local stations. The Cable Act of 1992 gave broadcasters the right to choose whether to demand carriage on a local cable system or negotiate for retransmission consent rights payments.

Cable Act of 1992 Majority of stations opted for payment but cable system operators refused to pay. Finally most stations backed down in a face-saving deal, negotiating for new channels. Only the Big Four networks had the money and resources to actually program those channels.

FCC and Cable Most recent controversy centers around cable rates. Expanded basic cable costs around $41, and subscribers may get over 100 channels. In five years the monthly price has jumped 40 percent, even though subscribers still only watch 15-17 channels a month.

FCC and Cable Congress and the new FCC chairman, Kevin Martin, have proposed looking at an “a la carte” system. FCC report says a la carte would reduce cable bills.

FCC and Cable Another concern is content. For years, the FCC felt since viewers “invited” cable into the home audiences knew the risks. But now, to many viewers, TV is TV. One study showed that 85 percent of people watching cable television thought they were watching local stations.

FCC and Content Contrary to popular belief, the FCC has few hard and fast rules regarding programming content. The FCC rules on content after the fact.

Indecency Why is Congress now making its first major push in 25 years to toughen broadcast decency standards? The FCC recently levied fines of over $4.5 million on broadcast networks and stations.

Indecency Upheld $550 million fine against CBS for Janet Jackson’s halftime performance during 2004 Super Bowl $3.6 million in fines against 111 CBS affiliates for airing episode of “Without a Trace” that featured a teen orgy.

FCC Guidelines on Indecency and Obscenity In Miller v. California (1973), the Supreme Court defined obscenity as material that: depicts or describes in a patently offensive way certain sexual acts defined in state law appeals to the prurient interest of the average person, applying contemporary local community standards lacks serious artistic, literary, political or scientific value.

Indecency The current commonly accepted FCC definition of indecency is: Something broadcast is indecent if it depicts or describes sexual or excretory activities or organs in a fashion that is patently offensive according to contemporary community standards for the broadcast media at a time of day when there is a reasonable risk that children may be in the audience.

Indecency Broadcasters are forbidden to air “indecent” content that describes or depicts sexual or excretory organs or activities in a patently offensive way between 6 a.m. and 10 p.m. Obscene programming is prohibited.

Indecency According to Section 1464 of the U.S. Criminal Code, anyone who utters profane, indecent or obscene language over radio or TV is liable to fine or imprisonment. Violators may be prosecuted by both the FCC and the Department of Justice. If found guilty, perpetrators may face fines of up to $10,000, possible loss of license or jail time.

Indecency Bill introduced in Congress (b.j.j.) would: Increase FCC fines tenfold, from a maximum of $27,500 to a maximum of $275,000 per violation to a cap of $3 million per incident. Now, after Janet Jackson, the Senate Commerce Committee approved legislation that would: Regulate violent content on television whether it originates on broadcast, pay cable or satellite TV

Enforcement Identifying what truly constitutes indecent or obscene programming has always been difficult. Context is important. Viewer expectation is important. How can the FCC monitor programming? Complaints of indecent or obscene programming must be submitted to the FCC and must be accompanied by a tape or transcript of the offensive programming.

Indecency Broadcasters have filed suit against the FCC saying the new tougher indecency policies are arbitrary and unconstitutional.

Violence FCC is currently circulating a draft report that says Congress can draft a law that allows the FCC to regulate violent programming without violating the First Amendment. FCC would approach issue the way it has tackled sexual content and profanity -- can’t do it during hours when children could be watching.

Violence Studies say watching violent programming can lead to “short-term aggressive behavior” in children. Television executives say parents have the “tool” to control children’s viewing habits -- the v-chip as well as content ratings. Broadcasters launched a $300 million public campaign in 2006 to teach parents how to use the V-chip and other blocking technology.

Violence The Parents Television Council says violence is epidemic and the amount of violence on TV has increased 75 percent in six years.

Fairness Doctrine Section 315 says: 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 such candidates for that office in the use of the broadcasting station.

Fairness Doctrine Section 315 guarantees equal opportunities not equal time. Station does not provide air time for free unless other candidate had free time. Station is not required to notify opponents. Defining “use” is often difficult – especially when the candidate appears in a role that is different from that of a candidate.

Fairness Doctrine For example, four NBC affiliates in Iowa pre-empted an episode of “Saturday Night Live,” which featured Al Sharpton. What about candidates who were actors in previous lives – Ronald Reagan, Arnold, Gopher, Sonny Bono? What about incumbents running for re-election?

Political Ads Broadcasters cannot charge more for political ads than they do for regular ads. They also can’t charge candidate A more than they charge candidate B. They also have to provide equal access to time periods.

Current Issues Facing the FCC Ownership Cap Public Interest Children’s Programming Fairness Doctrine Network Affiliate Complaints Technology Issues Media Mergers