Rules and Regulations
Adam Lundquist
Quote
“Best test of truth is in the power
of thought to get accepted into the
free market”
Justice Holmes
First amendment
Congress shall make no law
restricting an establishment of
religion, or prohibiting the free
exercise thereof; or abridging the
freedom of speech, or of the
press; or the right of the people
peaceably to assemble, and to
petition the Government for a
redress of grievances.
Marketplace of ideas
Theory that we should be able to
speak our minds because free
speech is similar to a real market.
The best ideas will rise and the
worst will falter
Radio
Who owns the airwaves?
Limited
Frequency allocation
Auction
Overall picture National
Telecommunications and
information admin
Office of Spectrum Management
Problems
How do you regulate radio without
violating free speech?
Where does radio fall in the free
speech spectrum?
Protect without too much
restriction
Changing tastes
Obscenity
Never protected
Indecency is regulated
Why Government has the
right
Airwaves are considered public
property that government “rents
out”
Public interest
Radio act of 1912
“Act to regulate radio communication”
Mainly concerned with seafaring vessels.
Required radio operators to obtain
licenses
Prevented them from transmitting on
certain frequencies
Radio Act of 1927
Established the Federal Radio
Commission
Regulate radio commerce inside the US
“as public convience, interest or
necessity requires”
“No person within the US shall utter any
obscene, indecent, or profane language
by means of radio communication.”
First FRC Violation!
March 9, 1931 Robert Gordon
Duncan
Says damned and “by god”
Communications act of
1934
Formed the FCC
Equal time rule
Included the provisions of the
1927 act such as keeping out
indecent and obscene phrases
from the airwaves.
Case Study
John R. Brinkley
1940 Report on Chain
Broadcasting
Was one of the FCC’s earliest
attempts to preserve localism by
telling the networks that they
could only have so much say over
their affiliates. Upheld in NBC vs.
US 1942
March 10, 1943
NBC v. US
Scarcity theory
Rules radio spectrum is limited and
thus requires government
regulation
One of the reasons why the
regulate radio and not print, or
internet radio
Payola
Defined as “The illegal practice of
payment or other inducement by
record companies to broadcast the
song as if it is normally part of the
days programming”
A radio station CAN play a cong for
money, but THAT MUST BE
DISCLOSED.”
Effects
Some radio stations report spins of
songs to publications and can
change perceived popularity
Part of the reason that DJ’s are
often left out of the song choosing
process. Usually falls to program
directors, Music directors, etc.
Payola (FCC)
When a broadcast licensee has received
or been promised payment for the
airing of program material, then, at the
time of the airing, the station must
disclose that fact and identify who paid
for or promised to pay for the material.
All sponsored material must be
explicitly identified at the time of
broadcast as paid for and by whom,
except when it is clear that the mention
of a product or service constitutes
sponsorship identification.
Payola cont
Any broadcast station employee
who has accepted or agreed to
accept payment for the airing of
program material, and the person
making or promising to make the
payment, must disclose this
information to the station prior to
the airing of the program.
1969
Red lion broadcasting v FCC
Carried a program that attacked a
specific individual. Did not allow
him to reply
Equal time rule
Results of Red Lion Case
1. It is in the public interest that
both sides be represented
2. Does not violate the first
amendment since it is held that
viewing and listening public have
right to see and hear what they
want, but broadcaster operating in
the public interest doesn’t
Continued
3. Radio is a scarce resource
4. “The danger that licenses will
eliminate coverage as a result of
the personal attacks and political
editorial rules is at best speculative
and in any event FCC has authority
to guard against it”
First fine!
FCC issues 100 dollar fine against WHYY
in Philadelphia
Ran a pretaped interview with Gratefull
Dead front man Jerry Garcia where he
used many swears
2 FCC dissented because of possible
chilling effect
Cycle II (The show it was on) taken off
air
Obscenity and Indecency
Title 18 prohibits the broadcasting
of any “indecent or profane
language by means of radio
communication”
Leads to the question of “What is
obscenity”
Miller v California
(1973)
Miller was a West Coast distributor
of porn
Sent out unsolicited mail to
advertise for his product
Man and mother in Newport
Beach, Ca. open package
Complained to police
Court
Was the sale and distribution of
obscene materials protected by the
first amendment?
Court
No, obscene material is not
protected under the first
amendment
Government can outlaw works
based on “whether the work, taken
as a whole lacks serious literary,
artistic, political or scientific value
Obscenity
 3 pronged test for obscenity
 1. Average person when applying contemporary
community standards, must find that the
material when presented as a whole appeals to
the prurient interests (defined as materials
having to deal with lustful thoughts)
 The material must depict or describe in a
patently offensive way, sexual conduct as
explicitly defined by law.
 The material taken as a whole must lack serious
literary artistic or political or scientific value
Indecency
Indecent material is not illegal but
it is highly regulated
Can not be broadcast between
6am and 10 pm. This is because of
FCC v Pacifica
What is Indecent?
Does it depict sexual or excretory
organs or activities in terms
patently offensive judging by
contemporary community
standards
What is patently offensive?
Supreme courts test
3 tests
 Is the description explicit or graphic?
 Does the material dwell on or repeat at
length descriptions or descriptions of sexual
or excretory organs
 Does the material appear to pander to
titillate or shock. No single factor in
determining. FCC balances many factors.
 Pretty much can never say the F word
FCC vs. Pacifica
Before this case, broadcasters regulated
themselves
Landmark case
George Carlin releases album
“Occupation Foole”
Gets played on WBAI
Dad and son hear it
Seven words
Obscenity
Obscenity is illegal, indecency is
regulated.
Decided
Material was indecent
Right to broadcast indecent
material (not obscene) between 10
pm and 6am when kids are
sleeping and likely not listening to
the radio
5-4 Decision FCC could rule on
what is indecent
1987
In response to increasing complaints,
FCC expands their definition of what is
indecent is.
New definition - “Material that in
context depicts or describes sexual or
excretory organs in terms patently
offensive as measured by contemporary
community standards
10 pm no longer safe harbor
1988
FCC bans all indecent material
1991 Court rules that complete
ban on indecency is
unconstitutional
Jan 19, 1993
Congress passes the Public
Telecommunications Act of 1992.
Bans indecent material from 6am10pm
2001
Broadcasts TV first fine
January 26, 2004 FCC levies
largest single fine for indecency in
history against Bubba the Love
Sponge
Watchdogs
FCC does not actually monitor the
airwaves, rather works by acting
on complaints
For this reason watchdog agencies
have sprung up
Case study
Morality in America
Donald E. Wildman
Howard Stern
1.7 Million Dollar settlement
Broadcast limited
protection
1. Unique pervasiveness - can
come into homes uninvited. Since
audience constantly tuning in and
out doesn’t make sense to warn.
2. Broadcasting uniquely
accessible to children. Even those
who can’t read
Case study
Donald E Wildman
Head of Morality in America
Took on Howard Stern
Stern gets fined
Stern gets ratings
Infinity fined and paid 1.7 Million
FCC can’t stop free speech, but can
regulate it
Pervasiveness theory
Because broadcast waves are
available to anyone they are
uniquely pervasive. Choose to or
not to read a newspaper lying
there but theoretically if you were
walking through a city block you
would be forced to hear it.